United States Supreme Court

POINDEXTER v. GREENHOW, (1885)

No. 20
Argued: Decided: April 20, 1885
[114 U.S. 270, 272] A. H. Garland, R. T. Merrick, and F. S. Blair,
Atty. Gen., for defendant in error.

Wm. L. Royall, D. H. Chamberlain, Wm. M. Evarts, and Wager

Swayne, for plaintiff in error. [114 U.S. 270, 273]

MATTHEWS, J.

The plaintiff in error, who was also plaintiff below, brought his
action in detinue on the twenty-sixth day of April, 1883, against
Samuel C. Greenhow, for the recovery of specific personal
property, to-wit, one office desk of the value of $30, before a
police justice in the city of Richmond, who dismissed the same for
want of Jurisdiction. An appeal was taken by the plaintiff to the
hustings court for the city of Richmond, where the facts were
found by agreement of parties to be as follows: That the plaintiff
was a resident of the city of Richmond, in the state of Virginia;
that he owed to the state of Virginia, for taxes on property owned
by him in said city for the year 1882, $12.45, which said t xes were
due and leviable for, under the laws of Virginia, on the first day of
December, 1882; that the defendant, Samuel C. Greenhow, was
the treasurer of the city of Richmond, and as such is charged by
law with the duty of collecting taxes due to the state of Virginia by
all residents of said city; that on the twenty-fifth day of April,
1883, the defendant, as such treasurer and collector of taxes,
made upon the plaintiff demand for the payment of the taxes due
by him to the state as aforesaid; that the plaintiff, when demand
was so made for payment of his taxes, tendered to the defendant
in payment thereof 45 cents in lawful money of the United States,
and coupons issued by the state of Virginia under the provisions
of the act of the general assembly of that state of March 30, 1871,
entitled 'An act to provide for the funding and payment of the
public debt;' that said coupons so tendered by plaintiff were all
due and past maturity, and amounted in the aggregate to $12, and
were all cut from bonds issued by the said state of Virginia under
the provisions of the said act of March 30, 1871; that the said
coupons and money so tendered by the plaintiff amounted
together to exactly the sum so due the state by the plaintiff for
taxes; that the defendant refused to receive the said coupons and
money so tendered in payment of the plaintiff's taxes; that the
defendant, after said tender was made, as he deemed himself
required to do by the acts of assembly of Virginia, entered the
plaintiff's place of business in said city, [114 U.S. 270, 274] and
levied upon, and took possession of the desk, the property of the
plaintiff now sued for, for the purpose of selling the same to pay
the taxes due from him; and that the said desk is of the value of
$30, and still remains in possession of the defendant for the
purpose aforesaid, he having refused to return the same to the
plaintiff on demand.

The hustings court was of the opinion that the police justice erred
in deciding that he had no jurisdiction, and that the issue in the
action might have been tried by him, and that it should be tried by
that court on the appeal; but it was also of the opinion that in
tendering to the defendant, as part of the tender in payment of the
plaintiff's taxes, the coupons mentioned and described, the
plaintiff did not tender what the law required, nor what the
defendant was, as treasurer, obliged to or should have received in
payment of the plaintiff's taxes, under the provisions of the act of
the general assembly ov Virginia, approved January 26, 1882,
entitled 'An act to provide for the more efficient collection of the
revenue to support government, maintain the public schools, and
to pay interest on the public debt;' that the plaintiff's remedy for
the failure of the defendant, as treasurer, to receive coupons in
payment of taxes, was to be found in the provisions of said act of
January 26, 1882; and that, therefore, the defendant does not
unlawfully or wrongfully detain the plaintiff's property levied on
by the defendant, as treasurer of the city of Richmond, for the
plaintiff's taxes; and judgment was accordingly rendered for the
defendant.

It appears from the record that there was drawn in question the
validity of the said act of the general assembly of Virginia,
approved January 26, 1882, and of the eighteenth section of the
act of the general assembly of the state of Virginia, approved April
1, 1879, which authorizes the collection of delinquent taxes by
distraint of personal property, upon the ground that these acts are
repugnant to section 10 of article 1 of the constitution of the
United States, which declares that no state shall pass any law
impairing the obligation of contracts, the judgment of the court
being in favor of the validity of said acts and against the rights
claimed by the plaintiff under the [114 U.S. 270,
275] constitution of the United States. The hustings court is the
highest court of the state to which the said cause could be taken.

The act of January 26, 1882, the validity of which is thus

questioned, is as ollows:

'Be it enacted by the general assembly of the state of Virginia, that

the several tax collectors of this commonwealth shall receive, in
discharge of the taxes, license taxes, and other dues, gold, silver,
United States treasury notes, national bank currency, and nothing
else; provided that in all cases in which an officer charged by law
with the collection of revenue due the state, shall take any steps
for the collection of same, claimed to be due from any citizen or
tax-payer, such person against whom such step is taken, if he
conceives the same to be unjust or illegal, or against any statute,
or to be unconstitutional, may pay the same under protest, and
under such payment the officer collecting the same shall pay such
revenue into the state treasury, giving notice at the time of such
payment to the treasurer that the same was paid under protest.
The person so paying such revenue may, at any time within 30
days after making such payment, and not longer thereafter, sue
the said officer so collecting such revenue in the court having
jurisdiction of the parties and amounts.
'If it be determined that the same was wrongfully collected, for
any reason going to the merits of the same, then the court trying
the case may certify of record that the same was wrongfully paid
and ought to be refunded; and, thereupon, the auditor of public
accounts shall issue his proper warrant for the same, which shall
be paid in preference to other claims on the treasury, except such
as have priority by constitutional requirement.
'There shall be no other remedy in any case of the collection of
revenue, or the attempt to collect revenues illegally, or the
attempt to collect revenue in funds only receivable by said officers
under this law, the same being other and different funds than the
tax-payer may tender or claim the right to pay, than such as are
herein provided; and no writ for the prevention of any revenue
claim, or to hinder or delay the collection [114 U.S. 270, 276] of
the same, shall in anywise issue, either injunction, supersedeas,
mandamus, prohibition, or any other writ or process whatever;
but in all cases, if, for any reason, any person shall claim that the
revenue so collected of him was wrongfully or illegally collected,
the remedy for such person shall be as above provided, and in no
other manner. In all such cases If the court certify of record that
the officer defendant acted in good faith and diligently defended
the action, the necessary costs incurred by him shall be taxed to
and paid by the state, as in criminal cases. The commonwealth
attorney for the county or corporation in which suit is brought,
shall appear and represent the defense. In every case where
judgment is rendered for the defendant, a fee of five dollars shall
be taxed in favor of said attorney and against the plaintiff; and
whenever the court shall refuse to certify the good faith and
diligence of the officer defending the case, a like fee of five dollars
shall be taxed against said officer. Any officer charged with the
collection of revenue, who shall receive payment thereof in
anything other than that hereinbefore provided, shall be deemed
guilty of a misdemeanor, and fined not less than one hundred nor
more than five hundred dollars, in the discretion of the court; but
nothing herein contained shall be construed to subject any officer
of the state to any suit, other than as hereinbefore provided, for
any refusal on his part to accept in payment of revenue due the
state any kind or description of funds, security, or paper not
authorized by this act.
'(2) This act shall be in force from and after the first day of
December, eighteen hundred and eighty-two.'
The eighteenth section of the act of April 1, 1879, (Acts 1878-79, p.
318,) so far as material, is that 'it shall be the duty of the treasurer,
after the first day of December, to call upon each person
chargeable with taxes and levies, who has not paid the same prior
to that time, or upon the agent of such person resident within the
county or corporat on, and, upon failure or refusal of such person
or agent to pay the same, he shall proceed to collect by distress or
otherwise.' Goods and chattels distrained by an officer, by
provisions of other statutes then in force, were required to be sold
at public sale after due notice, as prescribed. [114 U.S. 270,
277] The act of January 26, 1882, was amended by an act which
was passed and took effect March 13, 1884, by the addition of the
following sections:

'Sec. 2. Whenever any papers, purporting to be coupons cut from

bonds of this state, shall be tendered to the collecting officer in
payment of any taxes due to the state by any party desiring to
bring a suit under this statute, it shall be the duty of the collecting
officer to place the coupons so tendered in an envelope, to seal the
said envelope, write his name across the seal thereof, indorse it
with the numbers of the coupons inclosed, and return it to the
taxpayer. Upon the trial of any proceeding under this act, the said
coupons, inclosed in the said envelope so sealed and indorsed,
must be produced in evidence to prove the tender. If the court
shall certify that the money paid under protest ought to be
refunded, the said coupons shall be delivered to the auditor of
public accounts, to be canceled simltaneously with the issue of his
warrant.
'Sec. 3. No action of trespass or trespass on the case shall be
brought or maintained against any collecting officer for levying
upon the property of any tax-payer who may have tendered in
payment, in whole or in part, any coupon, or paper purporting to
be a coupon, cut from bonds of this state for such taxes, and who
shall refuse to pay his taxes in gold, silver, United States treasury
notes, or national bank-notes. The suit contemplated by this act
shall be commenced by a petition filed at rules, upon which a
summons shall be issued to the collecting officer; and the said suit
shall be regularly matured like other actions at law, and the
coupons tendered shall be filed with said petition.'
The contract which the plaintiff in error alleges has been violated
is with the state of Virginia, and is contained in the act of March
30, 1871, known as the 'Funding Act.' entitled 'An act to provide
for the funding and payment of the public debt,' and in the bonds
and coupons issued under its authority. It provided for the
funding of two-thirds of the existing state debt, and of two-thirds
of the interest accrued thereon to July 1, 1871, in new 6 per cent.
bonds, to run 34 years, the bonds, coupon or registered, payable
to [114 U.S. 270, 278] order or bearer, and the coupons to bearer,
and declared that the coupons should be payable semi-annually,
and 'be receivable at and after maturity for all taxes, debts, dues,
and demands due the state,' and that this should be expressed on
their face. For the remaining one-third, certificates were to be
issued to the creditors to hold as claims against the state of West
Virginia, that being assumed as her just proportion of the entire
debt. 'Under this act,' it was said by this court, in Hartman v.
Greenhow, 102 U.S. 672 , 679, 'a large number of the creditors of
the state, holding bonds amounting, including interest thereon, to
about thirty millions of dollars, surrendered them and took new
bonds with interest coupons annexed for two-thirds of their
amount, and certificates for the balance. A contract was thus
consummated between the state and the holders of the new bonds
and the holders of the coupons, from the obligation of which she
could not, without their consent, release herself by any
subsequent legislation. She thus bound herself, not only to pay the
bonds when they became due, but to receive the interest coupons
from the bearer at and after their maturity, to their full amount,
for any taxes or dues by him to the state. This receivability of the
coupons for such taxes and dues was written on their face, and
accompanied them in whatever hands they passed. It constituted
their chief value, and was the main consideration offered to the
holders f the old bonds to surrender them and accept new bonds
for two-thirds of their amount.'

The same view had been taken by the supreme court of appeals of
Virginia in the cases of Antoni v. Wright, 22 Grat. 833; Wise v.
Rogers, 24 Grat. 169; and Clarke v. Tyler, 30 Grat. 134; in the last
of which cases it was declared to be the settled law of the state. It
was repeated by this court in Antoni v. Greenhow, 107 U.S. 769 ,
S. C. 2 SUP. CT. REP. 91, where it was said, (page 775:) 'The right
of the coupon-holder is to have his coupon received for taxes
when offered;' and (page 771) 'any act of the state which forbids
the receipt of these coupons for taxes is a violation of the contract,
and void as against coupon-holders.' Upon these propositions
there was an entire agreement between the majority and minority
of the court in that case. [114 U.S. 270, 279] The nature and value
of this contract right to the coupon-holder deserve to be further
explained. It was evidently a part of the consideration on which
the creditors of the state were induced to accept, under the act of
March 30, 1871, from the state of Virginia, new obligations for
two-thirds of their claim, in exchange for the surrender of the
original bonds. The latter depended for their payment, as to both
principle and interest, upon the continued good faith of the state
in making, from time to time, necessary appropriations out of the
public treasury, to meet its recurring liabilities, by positive
legislation to that effect. In case of default, there was no remedy
by legal process. The state itself could not be sued. Its bare
promises to pay had no sanction but the public sense of duty to
the public creditors. The only security for their performance was
the public faith.

But immediately on the passage of the act of March 30, 1871, and
thereafter, occasional or continued default in the payment of
interest on the bonds issued in pursuance of its provisions by
reason of failures to provide by laws necessary appropriations for
its payment, was met, if not obviated, by a self-executing remedy
lodged by the law in the hands of the creditor himself. For, from
that time it became the legal duty of every tax collector to receive
coupons from these bonds, offered for that purpose by tax-payers,
in payment of taxes, upon an equal footing, at an equal value, and
with equal effect, as though they were gold or silver or legal-
tender treasury notes. They were by that act reduced, in effect,
into money, and, as between the state and its tax-payers, were a
legal tender as money. And, being not only a law, but a contract, it
became, by force of the constitution of the United States,
irrepealable, and therefore is to-day, what it was when first
enacted, the unchangeable law of Virginia. After a tender of such
coupons by a tax-payer in payment of taxes, and a refusal by a tax
collector to receive them, the situation and rights of the tax-payer
and coupon-holder were precisely what they would have been if
he had made a like tender in gold coin and it had been refused.
What they would be we shall have occasion presently to inquire.
In the mean time, it is clear that the con- [114 U.S. 270, 280] tract
obligation embodied in the quality imparted by law to these
coupons, of being receivable in payment of taxes, is a distinct,
collateral, and real security, placed in the hands of the creditor,
intended to enable him to collect them without process of law. As
long as the annual taxes of the state are sufficient in amount to
absorb all coupons that are overdue and unpaid, a certain market
is created for them which will maintain them at or near their par
value. In the hands of the tax-payer who buys them for tender,
they are practically no longer choses in action, but equal in value
and quality to money, and equivalent to receipts for taxes already
paid.

At the time of the passage of the act of March 30, 1871, there
existed a remedy by mandamus, in case a tax collector refused to
receive the coupons, issued under that act tendered in payment of
taxes, to compel him specifically to do so. The case of Hartman v.
Greenhow, 102 U.S. 672 , was one in which that relief was
administered; and in Antoni v. Greenhow, 107 U.S. 769 , S. C. 2
SUP. CT. REP. 91, it is stated to have been the settled practice of
the supreme court of appeals of Virginia to entertain suits for
similar relief. By an act of January 14, 1882, the general assembly
of that state modified the proceedings in mandamus is such cases
so as to require the tax-payer first to pay his taxes in money, and
then the coupons endered having, in another proceeding, been
determined to be genuine, he was entitled to a judgment upon the
mandamus, requiring them to be received in payment of the taxes,
and the money previously paid refunded. The validity of this act
became the question in Antoni v. Greenhow, ubi supra, and it was
affirmed on the ground that, for the purpose of specifically
enforcing the right to have the coupons received in payment of
taxes, the new remedy was substantially equivalent to the old one.
The court were not willing to decide that it was a suit against the
state in which the mode of proceeding could be modified, or the
remedy taken away altogether, at the pleasure of the state. And it
affirmed the right of the coupon-holder to have his coupon
received for taxes when offered. 'The question here,' said the
court, 'is not as to that right, but as to the remedy the holder has
for its enforcement when denied.' 'The ques- [114 U.S. 270,
281] tion,' said the chief justice, delivering the opinion of the
court, 'we are now to consider is not whether, if the coupon
tendered is in fact genuine and such as ought under the contract
to be received, and the tender is kept good, the treasurer can
proceed to collect the tax by distraint, or such other process as the
law allows, without making himself personally responsible for any
trespass he may commit, but whether the act of 1882 violates any
implied obligation of the state in respect to the remedies that may
be employed for the enforcement of its contract, if the collector
refuses to take the coupon.'

That was a case in which it was sought, by mandamus, specifically

to enforce the contract of the state with the coupon-holder, by
compelling, by affirmative action and process of law the collector
actually to receive the coupons tendered in satisfaction of taxes. It
left unaffected the right of the coupon-holder and tax-payer, after
his tender had been unlawfully refused, to stand upon his contract
and the law, in defense of his rights, both of person and property,
against all unlawful assaults and seizures. In the former he was an
actor, seeking affirmative relief, to compel the specific
performance of the contract. In the latter he is a defendant,
passively resting on his rights, and resisting olny demands and
exactions sought to be enforced against him in denial of them. He
has himself, in all things, performed the contract on his part, and
obeyed the law, and simply insists that if more is illegally exacted
and taken from him, he shall have the remedy which the law gives
to every other citizen, not himself in default, against the
wrongdoer, who, under color of law, but without law, disturbs or
dispossesses him. As we have seen, the coupon- holder, whose
tender of genuine coupons in payment of taxes has been refused,
stands upon the same footing, in this respect, as though he had
tendered gold coin in similar circumstances and with like result.

The question next in order is whether he has any, and, if any, what
remedy for the recovery of property distrained to pay the same tax
which he has thus already offered and attempted to pay in money
or its equivalent. It is well settled by many decisions of this court
that, for the purpose of affect- [114 U.S. 270, 282] ing
proceedings to enforce the payment of taxes, a lawful tender of
payment is equivalent to actual payment, either being sufficient to
deprive the collecting officer of all authority for further action,
and making every subsequent step illegal and void. In Woodruff v.
Trapnall, 10 How. 190, 208, it was held that a tender of the notes
of the bank of the state of Arkansas, by law and a contract with the
note holders made receivable in payment of public dues to the
state, was equivalent to payment, in extinguishing the judgment
in satisfaction of which they were offered. The court said: 'The law
of tender which avoids future interest and costs has no application
in this case. The right to make payment to the state in this paper
arises out of a continuing contract, which is limited in time by the
circulation of the notes to be received They may be offered in
payment of debts due to the state, in its own right, before or after
judgment, and without regard to the cause of indebtment.' In the
case of U. S. v. Lee, 106 U.S. 196 , S. C. 1 SUP. CT. REP. 240, it
was held that a certificate of a sale of land for taxes, made by
commissioners, which by law was rendered impeachable by proof
that the taxes had been paid previous to sale, was rendered void
by proof that the commissioners had refused to receive the taxes,
without proof of an actual tender, where the commissioners had
waived it by a previous notice that they would not accept it. In the
opinion of the court it is said: 'This court has, in a series of cases,
established the proposition that where the commissioners refused
to receive such taxes, their action in thus preventing payment was
the equivalent of payment in its effect upon the certificate of sale;'
citing Bennett v. Hunter, 9 Wall. 326; Tacey v. Irwin, 18 Wall.
549; Atwood v. Weems, 99 U.S. 183 ; and Hills v. Exchange
Bank, 105 U.S. 319 .

The case, then, of the plaintiff below is reduced to this: He had

paid the taxes demanded of him by a lawful tender. The defendant
had no authority of law thereafter to attempt to enforce other
payment by seizing his property. In doing so he ceased to be an
officer of the law, and became a private wrongdoer. It is the
simple case in which the defendant, a natural private person, has
unlawfully, with force and arms, seized, [114 U.S. 270,
283] taken, and detained the personal property of another. That
an action of detinue will lie in such a case, according to the law of
Virginia, has not been questioned. The right of recovery would
seem to be complete, unless this case can be met and overthrown
on some of the grounds maintained in argument by counsel for
the defendant in error. These we proceed now to examine in their
order.

It is objected, in the first place, that the law and contract, by

which the quality of being receivable in payment of taxes to the
state is imputed to the coupons, is itself in violation of that clause
of the constitution of the United States (article 1, 10) which
declares that no state shall 'emit bills of credit,' and is therefore
void. The coupons in question are in the ordinary form, and one of
them reads as follows:

'Receivable at and after maturity for all taxes, debts, and demands
due the state.
'The commonwealth of Virginia will pay the bearer thirty dollars,
interest due first January, 1884, on bond No. 2,731.
'Coupon No. 20.
GEO. RYE, Treasurer.'

It is contended that this is a bill of credit in the sense of the

constitution, because, being receivable in payment of debts due
the state, and negotiable by delivery merely, it was intended to
pass from hand to hand and circulate as money. The meaning of
the term 'bills of credit,' as used in the constitution, has been
settled by decisions of this court. By a sound rule of interpretation
it has been construed in the light of the historical circumstances
which are known to have led to the adoption of the clause
prohibiting their emission by the states, and in view of the great
public and private mischiefs experienced during and prior to the
period of the war of independence, in consequence of
unrestrained issues, by the colonial and state governments, of
paper money, based alone upon credit. The definition thus
deduced was not founded on the abstract meaning of the words,
so as to include everything in the [114 U.S. 270, 284] nature of an
obligation to pay money, reposing on the public faith, and subject
to future redemption, but was limited to those particular forms of
evidences of debt which had been so abused to the detriment of
both private and public interests. Accordingly, Chief Justice
MARSHALL, in Craig v. Missouri, 4 Pet. 410, 432, said that 'bills
of credit signify a paper medium intended to circulate between
individuals, and between government and individuals, for the
ordinary purposes of society.' This definition was made more
exact by merely expressing, however, its implications, in Briscoe
v. Bank of Kentucky, 11 Pet. 257, 314, where it was said: 'The
definiion, then, which does include all classes of bills of credit,
emitted by the colonies or states, is a paper issued by the
sovereign power, containing a pledge of its faith and designed to
circulate as money.' And again, page 318: 'To constitute a bill of
credit, within the constitution, it must be issued by a state, on the
faith of the state, and be designed to circulate as money. It must
be a paper which circulates on the credit of the state, and is so
received and used in the ordinary business of life.' The definition
was repeated in Darrington v. Bank of Alabama, 13 How. 12.

It is very plain to us that the coupons in question are not

embraced within these terms. They are not bills of credit in the
sense of this constitutional prohibition. They are issued by the
state,

It is very plain to us that the coupons pay money. Their payment

and redemption are based on the credit of the state, but they were
not emitted by the state in the sense in which a government emits
its treasury notes, or a bank its bank-notes-a circulating medium
or paper currency-as a substitute for money. And there is nothing
on the face of the instruments, nor in their form or nature, nor in
the terms of the law which authorize their issue, nor in the
circumstances of their creation or use, as shown by the record, on
which to found an inference that these coupons were designed to
circulate in the common transactions of business, as money, nor
that in fact they were so used. The only feature relied on to show
such a design or to prove such a use is that they are made
receivable in payment of taxes and other dues to the state. From
this, [114 U.S. 270, 285] it is argued that they would obtain such
a circulation from hand to hand as money as the demand for
them, based upon such a quality, would naturally give. But this
falls far short of their fitness for general circulation in the
community, as a representative and substitute for money, in the
common transactions of business, which is necessary to bring
them within the constitutional prohibition against bills of credit.
The notes of the bank of the state of Arkansas, which were the
subject of controversy in Woodruff v. Trapnall, 10 How. 190, were,
by law, receivable by the state in payment of all dues to it, and this
circumstance was not supposed to make them bills of credit. It is
true, however, that in that case it was held they were not so
because they were not issued by the state and in its name,
although the entire stock of the bank was owned by the state,
which furnished the whole capital, and was entitled to all the
profits. In this case the coupons were issued by the state of
Virginia and in its name, and were obligations based on its credit,
and which it had agreed, as one mode of redemption, to receive in
payment of all dues to itself in the hands of any holder; but they
were not issued as and for money, nor was this quality impressed
upon them to fit them for use as money, or with the design to
facilitate their circulation as such. It was conferred, as is apparent
from all the circumstances of their creation and issue, merely as
an assurance, by way of contract with the holder, of the certainty
of their due redemption in the ordinary transactions between the
state treasury nd the tax-payers. They do not become receivable in
payment of taxes till they are due, and the design, we are bound to
presume, was that they would be paid at maturity. This
necessarily excludes the idea that they were intended for
circulation at all.

It is next objected that the suit of the plaintiff below could not be
maintained, because it is substantially an action against the state
of Virginia, to which it has not assented. It is said that the tax
collector who is sued, was an officer and agent of the state,
engaged in collecting its revenue under a valid law, and that the
tax he sought to collect from the plaintiff was lawfully due; that,
consequently, he was guilty of no personal wrong, but acted only
in an official capacity representing [114 U.S. 270, 286] the state,
and, in refusing to receive the coupons tendered, simply obeyed
the commands of his principal whom he was lawfully bound to
obey; and that if any wrong has been done, it has been done by the
state in refusing to perform its contract, and for that wrong the
state is alone liable, but is exempted from suit by the eleventh
article of amendment to the constitution of the United States,
which declares that 'the judicial power of the United States shall
not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by
citizens of another state, or by citizens or subjects of any foreign
state.'

This immunity from suit secured to the states, is undoubtedly a

part of the constitution of equal authority with every other, but no
greater, and to be construed and applied in harmony with all the
provisions of that instrument. That immunity, however, does not
exempt the state from the operation of the constitutional
provision that no state shall pass any law impairing the obligation
of contracts; for it has long been settled that contracts between a
state and an individual are as fully protected by the constitution
as contracts between two individuals. It is true that no remedy for
a breach of its contract by a state, by way of damages as
compensation, or by means of process to compel its performance,
is open under the constitution in the courts of the United States
by a direct suit against the state itself, on the part of the injured
party, being a citizen of another state, or a citizen or subject of a
foreign state. But it is equally true that whenever, in a controversy
between parties to a suit, of which these courts have jurisdiction,
the question arises upon the validity of a law by a state impairing
the obligation of its contract, the jurisdiction is not thereby
ousted, but must be exercised with whatever legal consequences
to the rights of the litigants, may be the result of the
determination. The cases establishing these propositions, which
have been decided by this court since the adoption of the eleventh
amendment to the constitution, are numerous. Fletcher v. Peck, 6
Cranch, 87; New Jersey v. Wilson, 7 Cranch, 164; Green v. Biddle,
8 Wheat. 1, 84; Providence Bank v. Billings, 4 Pet. 514; Woodruff
v. Trapnall, 10 [114 U.S. 270, 287] How. 190; Wolff v. New
Orleans, 103 U.S. 358 ; Jefferson Branch Bank v. Skelly, 1 Black,
436.

It is also true that the question whether a suit is within the

prohibiting of the eleventh amendment is not always determined
by reference to the nominal parties on the record. The provision is
to be substantially applied in furtherance of its intention, and not
to be evaded by technical and trivial subtleties. Accordingly, it was
held in New Hampshire v. Louisiana, and New York v.
Louisiana, 108 U.S. 76 , S. C. 2 SUP. CT. REP. 176, that, although
the judicial power of the United States extends to 'controversies
between two or more states,' it did not embrace a suit in which,
although nominally between two states, the plaintiff state had
merely permitted the use of its name for the benefit of its citizens
in the prosecution of their claims, for the enforcement of which
they ould not sue in their own names. So, on the other hand, in
Cunningham v. Macon & B. R. Co. 109 U.S. 446 , S. C. 3 SUP. CT.
REP. 292, 609, where the state of Georgia was not nominally a
party on the record, it was held that, as it clearly appeared that the
state was so interested in the property that final relief could not be
granted without making it a party, the court was without
jurisdiction. In that case, the general question was discussed in
the light of the authorities, and the cases in which the court has
taken jurisdiction, when the objection has been interposed, that a
state was a necessary party to enable the court to grant relief, were
examined and classified. The second head of that classification is
thus described: 'Another class of cases is where an individual is
sued in tort for some act injurious to another in regard to person
or property, to which his defense is that he has acted under the
orders of the government. In these cases he is not sued as, or
because he is, the officer of the government, but as an individual,
and the court is not ousted of jurisdiction because he asserts
authority as such officer. To make out his defense he must show
that his authority was sufficient in law to protect him.' And in
illustration of this principle reference was made to Mitchell v.
Harmony, 13 How. 115; Bates v. Clark, 95 U.S. 204 ; Meigs v.
McClung's Lessee, 9 Cranch, 11; Wilcox v. Jackson, 13 Pet. 498;
Brown v. Huger, 21 How. 315; [114 U.S. 270, 288] Grisar v.
McDowell, 6 Wall. 363; and U. S. v Lee, 106 U.S. 196 ; S. C. 1 SUP.
CT. REP. 240.

The ratio decidendi in this class of cases is very plain. A defendant

sued as a wrong-doer, who seeks to substitute the state in his
place, or to justify by the authority of the state, or to defend on the
ground that the state has adopted his act and exonerated him,
cannot rest on the bare assertion of his defense. He is bound to
establish it. The state is a political corporate body, can act only
through agents, and can command only by laws. It is necessary,
therefore, for such a defendant, in order to complete his defense,
to produce a law of the state which constitutes his commission as
its agent, and a warrant for his act. This the defendant, in the
present case, undertook to do. He relied on the act of January 26,
1882, requiring him to collect taxes in gold, silver, United States
treasury notes, national bank currency, and nothing else, and thus
forbidding his receipt of coupons in lieu of money. That, it is true,
is a legislative act of the government of Virginia, but it is not a law
of the state of Virginia. The state has passed no such law, for it
cannot; and what it cannot do, it certainly, in contemplation of
law, has not done. The constitution of the United States, and its
own contract, both irrepealable by any act on its part, are the law
of Virginia; and that law made it the duty of the defendant to
receive the coupons tendered in payment of taxes, and declared
every step to enforce the tax, thereafter taken, to be without
warrant of law, and therefore a wrong. He stands, then, stripped
of his official character, and, confessing a personal violation of the
plaintiff's rights, for which he must personally answer, he is
without defense.

No better illustration of this principle can be found than than

which is furnished by the case of U. S. v. Lee, 106 U.S. 196 , S. C. 1
SUP. CT. REP. 240, in which it was applied to a claim made on
behalf of the national government. The action was one in
ejectment, to recover possession of lands, to which the plaintiff
claimed title. The defendants were natural persons, whose defense
was that they were in possession as officers of the United States
under the orders of the government and for its [114 U.S. 270,
289] uses. The attorney general called this aspect of the case to
the attention of the court, but without making the United States a
party defendant. It was decided by this court that to sustain the
defense, and to d feat the plaintiff's cause of action, it was
necessary to show that the defendants were in possession under
the United States, and on their behalf, by virtue of some valid
authority. As this could not be shown, the contrary clearly
appearing, possession of lands, actually in use as a national
cemetery, was adjudged to the plaintiffs. The decision in that case
was rested largely upon the authority of Osborn v. Bank of U. S. 9
Wheat. 738, which was a suit in equity against an officer of the
state of Ohio, who sought to enforce one of her statutes which was
in violation of rights secured to the bank by the constitution of the
United States. The defendants, Osborn and others, denied the
jurisdiction of the court, upon the ground that the state was the
real party in interest and could not be sued, and that a suit against
her officers, who were executing her will, was in violation of the
eleventh amendment of the constitution. To this objection, Chief
Justice MARSHALL replied: 'If the state of Ohio could have been
made a party defendant, it can scarcely be denied that this would
be a strong case for an injunction. The objection is that, as the real
party cannot be brought before the court, a suit cannot be
sustained against the agents of that party; and cases have been
cited to show that a court of chancery will not make a decree
unless all those who are substantially interested be made parties
to the suit. This is certainly true where it is in the power of the
plaintiff to make them parties; but if the person who is the real
principal,-the person who is the true source of the mischief, by
whose power and for whose advantage it is done, be himself above
the law, be exempt from all judicial process, it would be
subversive of the best- established principles to say that the laws
could not afford the same remedies against the agent employed in
doing the wrong which they would afford against him could his
principal be joined in the suit.' This language, it may be observed,
was quoted with approval in U. S. v. Lee. The principle which it
enunciates con- [114 U.S. 270, 290] stitutes the very foundation
upon which the decision in that case rested.

In the discussion of such questions, the distinction between the

government of a state and the state itself is important, and should
be observed. In common speech and common apprehension they
are usually regarded as identical; and as ordinarily the acts of the
government are the acts of the state, because within the limits of
its delegation of power, the government of the state is generally
confounded with the state itself, and often the former is meant
when the latter is mentioned. The state itself is an ideal person,
intangible, invisible, immutable. The government is an agent, and,
within the sphere of the agency, a perfect representative; but
outside of that, it is a lawless usurpation. The constitution of the
state is the limit of the authority of its government, and both
government and state are subject to the supremacy of the
constitution of the United States, and of the laws made in
pursuance thereof. So that, while it is true in respect to the
government of a state, as was said in Langford v. U. S. 101 U.S.
341 , that the maxim, that the king can do no wrong, has no place
in our system of government; yet it is also true, in respect to the
state itself, that whatever wrong is attempted in its name is
imputable to its government, and not to the state, for, as it can
speak and act only by law, whatever it does say and do must be
lawful. That which, therefore, is unlawful because made so by the
supreme law, the constitution of the United States, is not the word
or deed of the state, but is the mere wrong and trespass of those
individual persons who falsely speak and act in its name. It was
upon the ground of this important distinction that this court
proceeded in the case of Texas v. White, 7 Wall. 700, when it
adjudged that the acts of secession, which constituted the civil war
of 1861, were the unlawful acts of usurping state governments,
and not the acts of the states themselves, inasmuch as 'the
constitution, in all its provisions, looks to an indestructible Union,
composed of indestructible states;' and that, consequently, the
war itself was not a war between the states, nor a war of the
United States against states, but a war of the United States
against [114 U.S. 270, 291] unlawful and usurping governments,
representing not the states, but a rebellion against the United
States. This is, in substance, what was said by Chief Justice
CHASE, delivering the opinion of the court in Thorington v.
Smith, 8 Wall. 1, 9, when he declared, speaking of the confederate
government, that 'it was regarded as simply the military
representative of the insurrection against the authority of the
United States.' The same distinction was declared and enforced in
Williams v. Bruffy, 96 U.S. 176 , 192, and in Horn v. Lockhart, 17
Wall. 570, both of which were referred to and approved in Keith v.
Clark, 97 U.S. 454 , 465.
This distinction is essential to the idea of constitutional
government. To deny it or blot it out obliterate the line of
demarcation that separates constitutional government from
absolutism, free self- government based on the sovereignty of the
people from that despotism, whether of the one or the many,
which enables the agent of the state to declare and decree that he
is the state; to say 'L'Etat, c'est moi.' Of what avail are written
constitutions, whose bills of right, for the security of individual
liberty, have been written too often with the blood of martyrs shed
upon the battle-field and the scaffold, if their limitations and
restraints upon power may be overpassed with impunity by the
very agencies created and appointed to guard, defend, and enforce
them; and that, too, with the sacred authority of law, not only
compelling obedience, but entitled to respect? And how else can
these principles of individual liberty and right be maintained, if,
when violated, the judicial tribunals are forbidden to visit
penalties upon individual offenders, who are the instruments of
wrong, whenever they interpose the shield of the state? The
doctrine is not to be tolerated. The whole frame and scheme of the
political institutions of this country, state and federal, protest
against it. Their continued existence is not compatible with it. It is
the doctrine of absolutism, pure, simple, and naked, and of
communism which is its twin, the double progeny of the same evil
birth.

It was said by Chief Justice CHASE, speaking for the whole court
in Lane Co. v. Oregon, 7 Wall. 71, 76, that the peo- [114 U.S. 270,
292] ple, through the constitution of the United States,
'established a more perfect union by substituting a national
government, acting, with ample power, directly upon the citizens,
instead of the confederate government, which acted with powers,
greatly restricted, only upon the states.' In no other way can the
supremacy of that constitution be maintained. It creates a
government in fact as well as in name, because its constitution is
the supreme law of the land, 'anything in the constitution or laws
of any state to the contrary notwithstanding;' and its authority is
enforced by its power to regulate and govern the conduct of
individuals, even where its prohibitions are laid only upon the
states themselves. The mandate of the state affords no
justification for the invasion of rights secured by the constitution
of the United States; otherwise, that constitution would not be the
supreme law of the land. When, therefore, an individual
defendant pleads a statute of a state, which is in violation of the
constitution of the United States, as his authority for taking or
holding property, to which the citizen asserts title, and for the
protection or possession of which he appeals to the courts, to say
that the judicial enforcement of the supreme law of the land, as
between the individual parties, is to coerce the state, ignores the
fundamental principles on which the constitution rest , as
contrasted with the articles of confederation, which it displaced,
and practically makes the statutes of the states the supreme law of
the land within their respective limits.

When, therefore, by the act of March 30, 1871, the contract was
made, by which it was agreed that the coupons issued under that
act should thereafter be receivable in payment of taxes, it was the
contract of the state of Virginia, because, though made by the
agency of the government, for the time being, of the state, that
government was acting within the scope of its authority, and
spoke with its voice as its true representative; and inasmuch as, by
the constitution of the United States, which is also the supreme
law of Virginia, that contract, when made, became thereby
unchangeable and irrepealable by the state, the subsequent act of
January 26, 1882, and all other like acts, which deny the
obligation of that* con- [114 U.S. 270, 293] tract and forbid its
performance, are not the acts of the state of Virginia. The true and
real commonwealth which contracted the obligation is incapable
in law of doing anything in derogation of it. Whatever having that
effect, if operative, has been attempted or done, is the work of its
government acting without authority, in violation of its
fundamental law, and must be looked upon, in all courts of
justice, as if it were not and never had been. The argument,
therefore, which seeks to defeat the present action, for the reason
that it is a suit against the state of Virginia, because the nominal
defendant is merely its officer and agent, acting in its behalf, in its
name, and for its interest, and amenable only to it, falls to the
ground, because its chief postulate fails. The state of Virginia has
done none of these things with which this defense charges her.
The defendant in error is not her officer, her agent, or her
representative, in the matter complained of; for he has acted not
only without her authority, but contrary to her express
commands. The plaintiff in error, in fact and in law, is
representing her as he seeks to establish her law, and vindicates
her integrity as he maintains his own right.

Tried by every test which has been judicially suggested for the
determination of the question, this cannot be considered to be a
suit against the state. The state is not named as a party in the
record; the action is not directly upon the contract; it is not for the
purpose of controlling the discretion of executive officers, or
administering funds actually in the public treasury, as was held to
be the case in Louisiana v. Jumel, 107 U.S. 711 ; S. C. 2 SUP. CT.
REP. 128; it is not an attempt to compel officers of the state to do
the acts which constitute a performance of its contract by the
state, as suggested by a minority of the court in Antoni v.
Greenhow, 107 U.S. 769 , 783; S. C. 2 SUP. CT. REP. 91; nor is it a
case where the state is a necessary party, that the defendant may
be protected from liability to it, after having answered to the
present plaintiff. For, on this supposition, if the accounting
officers of the state government refuse to credit the tax collector
with coupons received by him in payment of taxes, or seek to hold
him responsible for a failure to execute the void statute, which
required him to refuse coupons in payment of taxes, in any action
or [114 U.S. 270, 294] prosecution brought against him in the
name of the state, the grounds of the judgment rendered in favor
of the present plaintiff will constitute his perfect defense. And as
that defense, made in any cause, though brought in a state court,
would present a question arising under the constitution and laws
of the United States, it would be within the jurisdiction of this
court to give it effect, upon a writ of error, without regard to the
amount or value in dispute.

In the case of Osborn v. Bank of U. S. 9 Wheat, 738, 853, Chief

Justice MARSHALL put, by way of argument and illustration, the
very case we are now considering. He said: 'Controversies
respecting boundary have l tely existed between Virginia and
Tennessee, between Kentucky and Tennessee, and now exist
between New York and New Jersey. Suppose, while such a
controversy is pending, the collecting officer of one state should
seize property for taxes belonging to a man who supposes himself
to reside in the other state, and who seeks redress in the federal
court of that state in which the officer resides. The interest of the
state is obvious. Yet it is admitted that in such a case the action
would lie, because the officer might be treated as a trespasser, and
the verdict and judgment against him would not act directly on
the property of the state. That it would not so act, may, perhaps,
depend on circumstances. The officer may retain the amount of
the taxes in his hands, and, on the proceedings of the state against
him, may plead in bar the judgment of a court of competent
jurisdiction. If this plea ought to be sustained, and it is far from
being certain that it ought not, the judgment so pleaded would
have acted directly on the revenue of the state in the hands of its
officers. And yet the argument admits that the action, in such a
case, would be sustained. But suppose, in such a case, the party
conceiving himself to be injured, instead of bringing an action
sounding in damages, should sue for the specific thing, while yet
in possession of the seizing officer. It being admitted, in
argument, that the action sounding in damages would lie, we are
unable to perceive the line of distinction between that and the
action of detinue. Yet the latter action would claim the specific
article seized for the tax, [114 U.S. 270, 295] and would obtain it,
should the seizure be deemed unlawful.'

Although the plaintiff below was nominally the actor, the action
itself is purely defensive. Its object is merely to resist an
attempted wrong, and to restore the status in quo as it was when
the right to be vindicated was invaded. In this respect, it is upon
the same footing with the preventive remedy of injunction in
equity, when that jurisdiction is invoked, and of which a
conspicuous example, constantly followed in the courts of the
United States, was the case of Osborn v. Bank of U. S., ubi supra.
In that case the taxing power of the state was resisted on the
ground that its exercise threatened to deprive the complainant of
a right conferred by the constitution of the United States. The
jurisidiction has been constantly exerted by the courts of the
United States to prevent the illegal taxation of national banks by
the officers of the states. And in Cummings v. National Bank, 101
U.S. 153 , 157, it was laid down as a general principle of equity
jurisidiction 'that when a rule or system of valuation is adopted by
those whose duty it is to make the assessment, which is designed
to operate unequally and to violate a fundamental principle of the
constitution, and when this rule is applied not solely to one
individual, but to a large class of individuals or corporations,
equity may properly interfere to restrain the operation of this
unconstitutional exercise of power.' And it is no objection to the
remedy in such cases that the statute, whose application in the
particular case is sought to be restrained is not void on its face,
but is complained of only because its operation in the particular
instance works a violation of a constitutional right; for the cases
are numerous where the tax laws of a state, which in their general
and proper application are perfectly valid, have been held to
become void in particular cases, either as unconstitutional
regulations of commerce, or as violations of contracts prohibited
by the constitution, or because in some other way they operate to
deprive the party complaining of a right secured to him by the
constitution of the United States. At the present term of this court,
at least three cases have been decided, in which railroad
companies [114 U.S. 270, 296] have been complaints in equity,
seeking to restrain officers of states from collecting taxes, on the
ground of an exem tion by contract, and no question of
jurisdiction has been raised. The practice has become common,
and is well settled on incontestable principles of equity procedure.
Memphis R. R. v. Railroad Com'rs, 112 U.S. 609 ; S. C. ante, 299;
St. Louis, etc., Ry. Co. v. Berry, 113 U.S. 465 ; S. C. ante, 529;
Chesapeake & O. R. R. Co. v. Miller, 114 U. S. --; S. C. ante, 813.

It is still urged upon us, however, in argument, that,

notwithstanding all that has been or can be said, it still remains
that the controversy disclosed by the record is between an
individual and the state; that the state alone has any real interest
in its determination; that the practical effect of such
determination is to control the action of the state in the regular
and orderly administration of its public affairs; and that,
therefore, the suit is and must be regarded as a suit against the
state, within the prohibition of the eleventh amendment to the
constitution. Omitting for the time being the consideration
already enforced, of the fallacy that lies at the bottom of this
objection, arising from the distinction to be kept in view between
the government of a state and the state itself, the premises which
it assumes may all be admitted, but the conclusion would not
follow. The same argument was employed in the name of the
United States in the Lee Case, and did not prevail. It was pressed
with the greatest force of which it was susceptible in the case of
Osborn v. Bank of U. S., and was met and overcome by the
masterly reasoning of Chief Justice MARSHALL. It appeared early
in the history of this court, in 1799, in the case of Fowler v.
Lindsey, 3 Dall. 411, in which that able magistrate, Mr. Justice
WASHINGTON, pronounced his first reported opinion. On a
motion to remove the cause by certiorari from the circuit court, on
the ground that it was a suit in which a state was a party, it being
an ejectment for lands, the title to which was claimed under
grants from different states, he said: 'A case which belongs to the
jurisdiction of the supreme court on account of the interest that a
state has in the controversy must be a case in which a state is
either nominally or substantially the party. [114 U.S. 270, 297] It
is not sufficient that a state may be consequentially affected, for in
such case (as where the grants of different states are brought into
litigation) the circuit court has clearly a jurisdiction. And this
remark furnishes an answer to the suggestions that have been
founded on the remote interest of the state in making retribution
to her grantees upon the event of an eviction.'

The thing prohibited by the eleventh amendment is the exercise of

jurisidiction in a 'suit in law or equity commenced or prosecuted
against one of the United States by citizens of another state, or by
citizens or subjects of any foreign state.' Nothing else is touched;
and suits between individuals, unless the state is the party, in a
substantial sense, are left untouched, no matter how much their
determination may incidentally and consequentially affect the
interests of a state, or the operations of its government. The
fancied inconvenience of an interference with the collection of its
taxes by the government of Virginia, by suits against its tax
collectors, vanishes at once upon the suggestion that such
interference is not possible, except when that government seeks to
enforce the collection of its taxes contrary to the law and contract
of the state, and in violation of the constitution of the United
States. The immunity from suit by the state, now invoked, vainly,
to protect the individual wrong-doers, finds no warrant in the
eleventh amendment to the constitution, and is, in fact, a protest
against the enforcement of that other provision which forbids any
state from passing laws impairing the obligation of contracts. To
accomplish that result requires a new amendment, which would
not forbid any state from passing laws impairing the obligation of
its own contracts.
What we are a ked to do is, in effect, to overrule the doctrine in
Fletcher v. Peck, 6 Cranch, 87, and hold that a state is not under a
constitutional obligation to perform its contracts, for it is
equivalent to that to say that it is not subject to the consequences
when that constitutional prohibition is applied to suits between
individuals. We could not stop there. We should be required to go
still further, and reverse the doctrine on which that constitutional
provision rests, stated by Chief Justice MAR- [114 U.S. 270,
298] SHALL in that case, when he said: 'When, then, a law is in
its nature a contract, when absolute rights have vested under that
contract, a repeal of the law cannot divest those rights; and the act
of annulling them, if legitimate, is rendered so by a power
applicable to the case of every individual in the community. It
may well be doubted whether the nature of society and of
government does not prescribe some limits to the legislative
power; and, if any be prescribed, where are they to be found if the
property of an individual, fairly and honestly acquired, may be
seized without compensation? To the legislature all legislative
power is granted; but the question, whether the act of transferring
the property of an individual to the public be in the nature of
legislative power, is well worthy of serious reflection.' And in view
of such a contention, we may well add the impressive and weighty
words of the same illustrious man, when he said, in Marbury v.
Madison, 1 Cranch, 137: 'The government of the United States has
been emphatically termed a government of laws and not of men.
It will certainly cease to deserve this high appellation if the laws
furnish no remedy for the violation of a vested legal right.'

It is contended, however, in behalf of the defendant in error, that

the act of January 26, 1882, under which he justified his refusal of
the tender of coupons, does not impair the obligation of the
contract between the couponholder and the state of Virginia,
inasmuch as it secures to him a remedy equal in legal value to all
that it takes away, and that, consequently, as the state may
lawfully legislate by changing remedies so that it does not destroy
rights, the remedy thus provided is exclusive, and must defeat the
plaintiff's action. The remedy thus substituted and declared
exclusive is one that requires the tax-payer demanding to have
coupons received in payment of taxes, first, to pay the taxes due
from him in money, under protest, when, within thirty days
thereafter, he may sue the officer to recover back the amount paid,
which, on obtaining judgment therefor, shall be refunded by the
auditor of public accounts out of the treasury. By the amendment
passed March 13, 1884, the coupons tendered are required to [114
U.S. 270, 299] be sealed up and marked for identification, filed
with the petition at the commencement of the suit, produced on
the trial as evidence of the tender, and delivered to the auditor of
public accounts, to be canceled when he issues his warrant for the
amount of the judgment.

It is contended that, in view of this remedy, the case is ruled by

the decision of this court in Antoni v. Greenhow, 107 U.S. 769 ; S.
C. 2 SUP. CT. REP. 91. We have, however, already shown, by
extracts from the opinion of the court in that case, that the
question involved in the present proceeding was not covered by
that judgment. In that case the plaintiff in error was seeking to
compel the officer specifically to receive his coupons in payment
of taxes by mandamus, on the ground that he was entitled to that
remedy when the contract was made by the law of March 30, 1871.
The law giving that remedy was subsequently amended, requiring
the petitioner to pay the taxes in money in the first instance, and
permitting the writ to issue only after a trial, in which the
genuineness of the coupons tendered had been established. The
court held that he might have been put to the same proof in the
former mode of proceeding, and that the amendment did not
destroy the eff ciency of the remedy.

But here the plaintiff did not seek any compulsory process against
the officer to require him specifically to receive the coupons
tendered. He offered them and they were refused. He chose to
stand upon the defensive, and maintain his rights as they might
be assailed. His right was to have his coupon received for taxes
when offered. That was the contract. To refuse to receive them
was an open breach of its obligation. It is no remedy for this that
he may acquiesce in the wrong, pay his taxes in money which he
was entitled to pay in coupons, and bring suit to recover it back.
His tender, as we have already seen, was equivalent to payment,
so far as concerns the legality of all subsequent steps by the
collector to enforce payment by distraint of his property. He has
the right to say he will not pay the amount a second time, even for
the privilege of recovering it back. And if he chooses to stand upon
a lawful payment once made, he asks no remedy to recover back
taxes illegally collected, but may resist the exaction, and treat [114
U.S. 270, 300] as a wrongdoer the officer who seizes his property
to enforce it.

It is suggested that the right to have coupons received in payment

of taxes is a mere right of set-off, and is itself but a remedy subject
to the control of legislation. Ordinarily, it is true, the right to set
off mutual independent debts, by way of compensation and
satisfaction, is dependent on the general law, does not enter into
the contract, although it may be the lex loci contractus, and is
dependent for its enforcement upon the lex fori, when suit is
brought, and consequently may be changed by the legislature,
without impairing vested rights. But in such cases the right is
entirely dependent upon the general law, and changes with it. It is
defferent, when, as in many cases of equitable set-off, it inheres in
the transaction, or arises out of the relations of the parties; and it
may in any case, as it was in this, be made the subject of contract
between parties. When this is done, it stands upon the footing of
every other lawful contract, upon valuable consideration, the
obligation of which cannot be impaired by subsequent legislation.

It is urged upon us, however, that in a revenue system, a provision

of law which gives to a party complaining of an illegal exaction of
taxes, the right to recover back the amount in dispute only after
previous payment under protest, as the sole remedy, against
either the officer or the government, is a just and reasonable rule,
sufficiently securing private rights, and convenient, if not
necessary, to the interests of the public. We are referred to the
revenue laws of the United States for illustration and example,
and the question is put, why a similar provision, as it is assumed
to be, should not be considered adequate as a remedy for the
holders of coupons in Virginia, who have been denied the right to
use them in payment of taxes.

The answer is obvious and complete. Virginia, by a contract which

the constitution of the United States disables her from impairing,
has bound herself that it shall be otherwise. The state has agreed
that the coupons cut from her bonds shall be received in payment
of taxes due to her, as though they were money. When the tax-
payer has tendered such coupons, he has complied with the
agreement, and in legal contemplation [114 U.S. 270, 301] has
paid the debt he owed the state. So far as that tax is concerned,
and every step taken for enforcing its payment in disregard of that
tender, the coupon-holder is withdrawn from the power and
jurisdiction of the state. He is free from all further disturbance,
and is securely shielded by the constitution in his immunity. No
proceeding, whatever its pretext, which does not respect this
right, can be judicially upheld. The question is not of the
reasonableness of a remedy for a breach of the contract to receive
the tendered coupons in payment of the tax; it is whether the right
to have them so received, and the use of that right as a defense a
against all further efforts to exact and compel payment of the tax,
in denial and defiance of that right, can be taken away without a
violation of that provision of the constitution which prohibits the
states from passing laws which impair the obligation of contracts.
Certainly, a law which takes from the party his whole contract,
and all the rights which it was intended to confer, must be
regarded as a law impairing its obligation.
Another point remains for consideration. Section 721, Rev. St.,
provides that 'the laws of the several states, except where the
constitution, treaties, or statutes of the United States otherwise
require or provide, shall be regarded as rules of decision in trials
at common law, in the courts of the United States, in cases where
they apply;' and section 914, Rev. St., declares that 'the practice,
pleadings, and forms and modes of proceeding in civil causes,
other that equity and admiralty causes, in the circuit and district
courts, shall conform, as near as may be, to the practice,
pleadings, and forms and modes of proceeding existing at the time
in like causes in the courts of record of the state within which such
circuit or district courts are held, any rule of court to the contrary
notwithstanding.' Upon these sections it is argued that, admitting
the acts of the general assembly of Virginia of January 26, 1882,
and the amendment by the act of March 13, 1884, to be
unconstitutional and void, so far as they forbid tax collectors from
receiving coupons in payment of taxes, nevertheless, as the state
has control over the forms of action and modes of proceeding by
way of remedy, and has forbidden, in cases where the tax collector
has refused [114 U.S. 270, 302] coupons in payment of taxes, any
personal action against him other than the suit to recover back the
tax demanded and paid under protest, the same law, by force of
the Revised Statutes of the United States, must govern in the
courts of the United States.

It is not entirely clear, on the face of the act of January 26, 1882,
that it does forbid actions against the officer for illegally levying
upon the property of the coupon-holder for the tax which he has
offered to pay. The language of the act seems to embrace only
such suits as are framed with the direct object of preventing or
restraining him from taking steps to collect the tax. And this
uncertainty is not made clear by the amendatory act of March 13,
1884, which, by expressly forbidding actions of trespass or
trespass on the case to be brought or maintained against any
collecting officer for levying upon the property of any tax-payer
who may have tendered coupons in payment of the tax demanded,
would seem to have left the action of detinue, which was
authorized in such cases by the previously existing law of Virginia,
untouched by the prohibition. We shall assume, however, for the
purposes of this opinion, that these acts of the general assembly of
Virginia were intended to and do forbid every action, of whatever
kind, against the collecting officer, for the recovery of specific
property taken by distraint, or of damages for its caption or
detention, and leaves to the coupon-holder, as his sole right of
action, the suit to recover back the money illegally collected from
him.

This action, as we have already seen, is no remedy whatever for

the loss of the specific right of paying his taxes with coupons. It
does not even profess so to be. Neither is it a remedy for the loss
of the right sought to be vindicated in this and other personal
actions against the collector for unlawfully taking from the
plaintiff his property. And, upon the supposition made, this wrong
is without remedy by any law of Virginia. The direct result, then,
of giving effect to these provisions of the act in question is to
defeat entirely the right of the [114 U.S. 270, 303] coupon-holder
to pay his taxes with his coupons, which we have already said
avoids that part of the acts in question which forbids it in terms,
and to take from him that right as a defense against the wrongs
and trespasses committed upon him and his property in denial
and defiance of it. All persons, whose property is unlawfully taken,
otherwise than to enforce payment of taxes, are secured in their
right of section for redress. But the coupon-holder, to whom the
constitution of the United States guaranties the right, conferred
upon him by the law and contract of Virginia, to pay his taxes in
coupons, is excepted. The discrimination is made against him in
order to deprive him of that right, and, if permitted, will have the
effect of denying to him all redress for a deprivation of a right
secured to him by the constitution. To take away all remedy for
the enforcement of a right is to take away the right itself. But that
is not within the power of the state.

Section 721, Rev. St., it will be observed, makes an express

exception, in reference to the adoption of state laws as rules of
decision, of cases where the constitution otherwise requires,
which it does wherever the adoption of the state law deprives a
complaining party of a remedy essential to the vindication of a
right, and that right is derived from or protected by the
constitution of the United States. The same exception is implied
in section 914, the language of which, indeed, is not imperative, as
the conformity required in the practice and procedure of the
courts of the United States with that of the state courts needs only
to be 'as near as may be.' No one would contend that a law of a
state, forbidding all redress by actions at law for injuries to
property, would be upheld in the courts of the United States, for
that would be to deprive one of his properties without due process
of law.
This is exactly what the statutes in question undertake to do, in
respect to that class of persons whose property is taken from them
for the offense of asserting, under the protection of the
constitution, the right to pay their taxes in coupons. The contract
with Virginia was not only that the coupons should be received in
payment of taxes, but, by necessary implication, that the tax-
payer making such a tender should not be molested further, as
though he were a [114 U.S. 270, 304] delinquent, and that for
every illegal attempt subsequently to enforce the collection of the
tax, by the seizure of property, he should have the remedies of the
law in force when the contract was made, for redress, or others
equally effective. 'The obligation of a contract,' said this court, in
McCracken v. Hayward, 2 How. 608, 612, 'consists in its binding
force on the party who makes it. This depends on the laws in
existence when it is made. These are necessarily referred to in all
contracts, and forming a part of them, as the measure of the
obligation to perform them by the one party and the right
acquired by the other. There can be no other standard by which to
ascertain the extent of either than that which the terms of the
contract indicate, according to their settled legal meaning; when it
becomes consummated, the law defines the duty and the right,
compels one party to perform the thing contracted for, and gives
the other a right to enforce the performance by the remedies then
in force. If any subsequent law affect to diminish the duty or to
impair the right, it necessarily bears on the obligation of the
contract, in favor of one party to the injury of the other; hence any
law which in its operation amounts to a denial or obstruction of
the rights accruing by a contract, though professing to act only on
the remedy, is directly obnoxious to the prohibition of the
constitution.'

The acts of assembly in question must be taken together, as one is

but an amendment to the other. The scheme of the whole is
indivisible. It cannot be separated into parts. It must stand or fall
together. The substantive part of it, which forbids the tax collector
to receive coupons in payment of taxes, as we have already
declared, as, indeed, on all sides is admitted, cannot stand,
because it is not consistent with the constitution. That which is
merely auxiliary to the main design must also fall with the princi
al of which it is merely an incident; and it follows that the acts in
question are not laws of Virginia, and are therefore not within the
sections of the Revised Statutes referred to, nor obligatory upon
the courts of the United States.

It is undoubtedly true that there may be cases where one part of a

statute may be enforced as constitutional, and another [114 U.S.
270, 305] be declared inoperative and void, because
unconstitutional; but these are cases where the parts are so
distinctly separable that each can stand alone, and where the
court is able to see, and to declare, that the intention of the
legislature was that the part pronounced valid should be
enforceable, even though the other part should fail. To hold
otherwise would be to substitute for the law intended by the
legislature one they may never have been willing by itself to enact.
An illustration of this principle is found in the Trade-mark
Cases, 100 U.S. 82 , where an act of congress, which, it was
claimed, would have been valid as a regulation of commerce with
foreign nations and among the states, was held to be void
altogether, because it embraced all commerce, including that
between citizens of the same state, which was not within the
jurisdiction of congress, and its language could not be restrained
to that which was subject to the control of congress. 'If we should,'
said the court in that case, (page 99,) 'in the case before us
undertake to make, by judicial construction, a law which congress
did not make, it is quite probable we should do what, if the matter
were now before that body, it would be un willing to do.'

Indeed, it is quite manifest from the face of the laws themselves

that they are together but parts of a larger whole. By an act of the
general assembly of Virginia, passed February 14, 1882, the
legislature restated the account between the state and its creditors
on a basis of readjustment which reduced it to the sum of
$21,035,377.15, including interest in arrears to July 1, 1882, which
was thereby declared to be her equitable share of the debt of the
old and entire state, and on which it was also declared that the
state was not able to pay interest for the future at a larger rate
than 3 per cent. per annum. The outstanding debt, of which this
was a reduction, was then classified, and bonds of the state were
authorized to be issued, bearing interest at the rate of 3 per cent.
per annum, in exchange for outstanding bonds of the different
classes, scaled at rates of 53 per cent., 60 per cent., 69 per cent.,
63 per cent., and, as to one class, as high as 80 per cent., which
were to be retired [114 U.S. 270, 306] and canceled. The coupons
on the new bonds were not made receivable in payment of taxes.
To coerce creditors holding bonds issued under the act of March
30, 1871, to exchange them for these new bonds, at these reduced
rates, and with them to give up their security for the payment of
interest arising out of the receivability of coupons in payment of
taxes, is the evident purpose of the acts of January 26, 1882, and
of March 13, 1884, and all together form a single scheme, the
undisguised object of which is to enable the state to rid itself of a
considerable portion of its public debt, and to place the remainder
on terms to suit its own convenience, without regard to the
obligation it owes to its creditors.

The whole legislation, in all its parts, as to creditors affected by it

and not consenting to it, must be pronounced null and void. Such
is the sentence of the constitution itself, the fundamental and
supreme law for Virginia, as for all the states and for all the
people, both of the states separately and of the United States, and
which speaks with sovereign and commanding voice, expecting
and receiving ready and cheerful obedience, not so much for the
display of its power, as on account of the majesty of its authority
and the justice of its mandates.

The judgment of the hustings court of the city of Richmond is

accordingly reversed, and the cause will be remanded, with
directions to re der judgment upon the agreed statement of facts
in favor of the plaintiff; and it is so ordered.

Footnotes

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-66321 October 31 1984

TRADERS ROYAL BANK, petitioner,

vs.
THE HON INTERMEDIATE APPELATE COURT, HON., JESUS R.
DE VEGA, AS PRESIDING JUDGE OF THE RETIONAL TRIA
COURT, THIRD JUDICIAL REGION, BRANCH IX, MALOLOS,
Bulacan, LA TONDEA, INC., VICTORINO P. EVANGELISTA IN
HIS CAPACITY AS Ex-Officio Provincial Sheriff of Bulacan,
and/or any and all his deputies, respondents.

ESCOLIN, J.: +.wph! 1

The issue posed for resolution in this petition involves the authority of
a Regional Trial Court to issue, at the instance of a third-party
claimant, an injunction enjoining the sale of property previously levied
upon by the sheriff pursuant to a writ of attachment issued by another
Regional Trial Court.

The antecedent facts, undisputed by the parties, are set forth in the
decision of the respondent Intermediate Appellate Court thus: t.hqw

Sometime on March 18, 1983 herein petitioner Traders

Royal Bank instituted a suit against the Remco Alcohol
Distillery, Inc. REMCO before the Regional Trial Court,
Branch CX, Pasay City, in Civil Case No. 9894-P, for the
recovery of the sum of Two Million Three Hundred Eighty
Two Thousand Two Hundred Fifty Eight & 71/100 Pesos
(P2,382,258.71) obtaining therein a writ of pre attachment
directed against the assets and properties of Remco
Alcohol Distillery, Inc.

Pursuant to said writ of attachment issued in Civil Case No.

9894-P, Deputy Sheriff Edilberto Santiago levied among
others about 4,600 barrels of aged or rectified alcohol
found within the premises of said Remco Distillery Inc. A
third party claim was filed with the Deputy Sheriff by herein
respondent La Tondea, Inc. on April 1, 1982 claiming
ownership over said attached property (Complaint, p. 17,
Rollo).
On May 12, 1982, private respondent La Tondea, Inc.
filed a complaint-in- intervention in said Civil Case No.
9894, alleging among others, that 'it had made advances to
Remco Distillery Inc. which totalled P3M and which remains
outstanding as of date' and that the 'attached properties are
owned by La Tondea, Inc.' (Annex '3' to petitioner's Motion
to Dismiss dated July 27, 1983 Annex "C" to the
petition).

Subsequently, private respondent La Tondea, Inc.,

without the foregoing complaint-in- intervention having
been passed upon by the Regional Trial Court, Branch CX,
(Pasay City), filed in Civil Case No. 9894-P a "Motion to
Withdraw" dated October 8, 1983, praying that it be allowed
to withdraw alcohol and molasses from the Remco Distillery
Plant (Annex 4 to Petitioner's Motion to Dismiss-Annex C,
Petition) and which motion was granted per order of the
Pasay Court dated January 27, 1983, authorizing
respondent La Tondea, Inc. to withdraw alcohol and
molasses from the Remco Distillery Plant at Calumpit,
Bulacan (Annex "I" to Reply to Plaintiff's Opposition dated
August 2, 1983 Annex E to the Petition).

The foregoing order dated January 27, 1983 was however

reconsidered by the Pasay Court by virtue of its order
dated February 18, 1983 (Annex A Petition, p. 15)
declaring that the alcohol "which has not been withdrawn
remains in the ownership of defendant Remco Alcohol
Distillery Corporation" and which order likewise denied La
Tondea's motion to intervene.

A motion for reconsideration of the foregoing order of

February 18, 1983 was filed by respondent La Tondea,
Inc., on March 8, 1983 reiterating its request for leave to
withdraw alcohol from the Remco Distillery Plant, and
praying further that the "portion of the order dated February
18, 1983" declaring Remco to be the owner of subject
alcohol, "be reconsidered and striken off said order". This
motion has not been resolved (p. 4, Petition) up to July 18,
1983 when a manifestation that it was withdrawing its
motion for reconsideration was filed by respondent La
Tondea Inc.

On July 19, 1983, private respondent La Tondea Inc.

instituted before the Regional Trial Court, Branch IX,
Malolos, Bulacan presided over by Respondent Judge,
Civil Case No. 7003-M, in which it asserted its claim of
ownership over the properties attached in Civil Case No.
9894-P, and likewise prayed for the issuance of a writ of
Preliminary Mandatory and Prohibitory Injunction (Annex
B,id ).

A Motion to Dismiss and/or Opposition to the application for

a writ of Preliminary Injunction by herein respondent La
Tondea Inc. was filed by petitioner on July 27, 1983
(Annex C, p. 42, Id.)

This was followed by respondent La Tondea's opposition

to petitioner's Motion to Dismiss on August 1, 1983 (Annex
D, p. 67, Id.).

A reply on the part of petitioner was made on the foregoing

opposition on August 3, 1983 (p. 92, Id.).

Hearings were held on respondent La Tondea's

application for injunctive relief and on petitioner's motion to
dismiss on August 8, 19 & 23, 1983 (p. 5, Id.).

Thereafter, the parties filed their respective memoranda

(Annex F, p. 104; Annex G, p. 113, Rollo).

Subsequently, the questioned order dated September 28,

1983 was issued by the respondent Judge declaring
respondent La Tondea Inc. to be the owner of the
disputed alcohol, and granting the latter's application for
injunctive relief (Annex H-1, Id.).
 On October 6, 1983, respondent Sheriff Victorino
Evangelista issued on Edilberto A. Santiago Deputy Sheriff
of Pasay City the corresponding writ of preliminary
injunction (Annex N, p. 127, Id.).

This was followed by an order issued by the Pasay Court

dated October 11, 1983 in Civil Case No. 9894-P requiring
Deputy Sheriff Edilberto A. Santiago to enforce the writ of
preliminary attachment previously issued by said court, by
preventing respondent sheriff and respondent La Tondea,
Inc. from withdrawing or removing the disputed alcohol
from the Remco ageing warehouse at Calumpit, Bulacan,
and requiring the aforenamed respondents to explain and
show cause why they should not be cited for contempt for
withdrawing or removing said attached alcohol belonging to
Remco, from the latter's ageing warehouse at Calumpit,
Bulacan (Annex F, p. 141, Petition).

Thereafter, petitioner Traders Royal Bank filed with the Intermediate

Appellate Court a petition for certiorari and prohibition, with application
for a writ of preliminary injunction, to annul and set aside the Order
dated September 28, 1983 of the respondent Regional Trial Court of
Malolos, Bulacan, Branch IX, issued in Civil Case No. 7003-M; to
dissolve the writ of preliminary injunction dated October 6, 1983
issued pursuant to said order; to prohibit respondent Judge from
taking cognizance of and assuming jurisdiction over Civil Case No.
7003-M, and to compel private respondent La Tondea, Inc., and Ex-
Oficio Provincial Sheriff of Bulacan to return the disputed alcohol to
their original location at Remco's ageing warehouse at Calumpit,
Bulacan.

In its decision, the Intermediate Appellate Court dismissed the petition

for lack of legal and factual basis, holding that the respondent Judge
did not abuse his discretion in issuing the Order of September 28,
1983 and the writ of preliminary injunction dated October 3, 1983.
citing the decision in Detective and Protective Bureau vs. Cloribel (26
SCRA 255). Petitioner moved for reconsideration, but the respondent
court denied the same in its resolution dated February 2, 1984.
Hence, this petition.

Petitioner contends that respondent Judge of the Regional T- trial

Court of Bulacan acted without jurisdiction in entertaining Civil Case
No. 7003-M, in authorizing the issuance of a writ of preliminary
mandatory and prohibitory injunction, which enjoined the sheriff of
Pasay City from interferring with La Tondea's right to enter and
withdraw the barrels of alcohol and molasses from Remco's ageing
warehouse and from conducting the sale thereof, said merchandise
having been previously levied upon pursuant to the attachment writ
issued by the Regional Trial Court of Pasay City in Civil Case No.
9894-P. It is submitted that such order of the Bulacan Court
constitutes undue and illegal interference with the exercise by the
Pasay Court of its coordinate and co-equal authority on matters
properly brought before it.

We find the petition devoid of merit.

There is no question that the action filed by private respondent La

Tondea, Inc., as third-party claimant, before the Regional Trial Court
of Bulacan in Civil Case No. 7003-M wherein it claimed ownership
over the property levied upon by Pasay City Deputy Sheriff Edilberto
Santiago is sanctioned by Section 14, Rule 57 of the Rules of Court.
Thus t.hqw

If property taken be claimed by any person other than the

party against whom attachment had been issued or his
agent, and such person makes an affidavit of his title
thereto or right to the possession thereof, stating the
grounds of such right or title, and serves such affidavit
upon the officer while the latter has possession of the
property, and a copy thereof upon the attaching creditor,
the officer shall not be bound to keep the property under
the attachment, unless the attaching creditor or his agent,
on demand of said officer, secures aim against such claim
by a bond in a sum not greater than the value of the
property attached. In case of disagreement as to such
value, the same shall be decided by the court issuing the
 writ of attachment. The officer shall not be liable for
damages, for the taking or keeping of such property, to any
such third-party claimant, unless such a claim is so made
and the action upon the bond brought within one hundred
and twenty (120) days from the date of the filing of said
bond. But nothing herein contained shall prevent such third
person from vindicating his claim to the property by proper
action ...

The foregoing rule explicitly sets forth the remedy that may be availed
of by a person who claims to be the owner of property levied upon by
attachment, viz: to lodge a third- party claim with the sheriff, and if the
attaching creditor posts an indemnity bond in favor of the sheriff, to file
a separate and independent action to vindicate his claim (Abiera vs.
Court of Appeals, 45 SCRA 314). And this precisely was the remedy
resorted to by private respondent La Tondea when it filed the
vindicatory action before the Bulacan Court.

The case before us does not really present an issue of first

impression. In Manila Herald Publishing Co., Inc. vs. Ramos, 1 this Court
resolved a similar question in this wise: t.hqw

The objection that at once suggests itself to entertaining in

Case No. 12263 the motion to discharge the preliminary
attachment levied in Case No. 11531 is that by so doing
one judge would interfere with another judge's actuations.
The objection is superficial and will not bear analysis.

It has been seen that a separate action by the third party

who claims to be the owner of the property attached is
appropriate. If this is so, it must be admitted that the judge
trying such action may render judgment ordering the sheriff
of whoever has in possession the attached property to
deliver it to the plaintiff-claimant or desist from seizing it. It
follows further that the court may make an interlocutory
order, upon the filing of such bond as may be necessary, to
release the property pending final adjudication of the title.
Jurisdiction over an action includes jurisdiction over an
 interlocutory matter incidental to the cause and deemed
necessary to preserve the subject matter of the suit or
protect the parties' interests. This is self-evident.

xxx xxx xxx

It is true of course that property in custody of the law can

not be interfered without the permission of the proper court,
and property legally attached is property in custodia legis.
But for the reason just stated, this rule is confined to cases
where the property belongs to the defendant or one in
which the defendant has proprietary interest. When the
sheriff acting beyond the bounds of his office seizes a
stranger's property, the rule does not apply and
interference with his custody is not interference with
another court's order of attachment.

It may be argued that the third-party claim may be

unfounded; but so may it be meritorious, for that matter.
Speculations are however beside the point. The title is the
very issue in the case for the recovery of property or the
dissolution of the attachment, and pending final decision,
the court may enter any interlocutory order calculated to
preserve the property in litigation and protect the parties'
rights and interests.

Generally, the rule that no court has the power to interfere by

injunction with the judgments or decrees of a concurrent or coordinate
jurisdiction having equal power to grant the injunctive relief sought by
injunction, is applied in cases where no third-party claimant is
involved, in order to prevent one court from nullifying the judgment or
process of another court of the same rank or category, a power which
devolves upon the proper appellate court . The purpose of the rule is
2

to avoid conflict of power between different courts of coordinate

jurisdiction and to bring about a harmonious and smooth functioning of
their proceedings.
It is further argued that since private respondent La Tondea, Inc.,
had voluntarily submitted itself to the jurisdiction of the Pasay Court by
filing a motion to intervene in Civil Case No. 9894-P, the denial or
dismissal thereof constitutes a bar to the present action filed before
the Bulacan Court.

We cannot sustain the petitioner's view. Suffice it to state that

intervention as a means of protecting the third-party claimant's right in
an attachment proceeding is not exclusive but cumulative and
suppletory to the right to bring an independent suit. The denial or
3

dismissal of a third-party claim to property levied upon cannot operate

to bar a subsequent independent action by the claimant to establish
his right to the property even if he failed to appeal from the order
denying his original third-party claim. 4

WHEREFORE, the instant petition is hereby dismissed and the

decision of the Intermediate Appellate Court in AC-G.R. No. SP-01860
is affirmed, with costs against petitioner Traders Royal Bank.

SO ORDERED. 1w ph1.t

Aquino, Concepcion, Jr., Guerrero and Cuevas, JJ., concur.

Makasiar and Abad Santos, JJ., reserves their vote

Footnotes t.hq w

1 88 Phil. 94.

2 Arabay, Inc. v. Salvador, 82 SCRA 138.

3 Manila Herald Publishing Co., Inc. v.

Ramos, supra; Zulueta, et al. v. Munoz, et al., 17 SCRA
979: Bayer Phil., Inc. v. Agana, 63 SCRA 365.

Potenciano v. Dineros, 97 Phil. 196, 200.

 4 Potenciano v. Dineros, 97 Phil. 196. 200.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-14639 March 25, 1919

ZACARIAS VILLAVICENCIO, ET AL., petitioners,

vs.
JUSTO LUKBAN, ET AL., respondents.

Alfonso Mendoza for petitioners.

City Fiscal Diaz for respondents.

MALCOLM, J.:

The annals of juridical history fail to reveal a case quite as remarkable

as the one which this application for habeas corpus submits for
decision. While hardly to be expected to be met with in this modern
epoch of triumphant democracy, yet, after all, the cause presents no
great difficulty if there is kept in the forefront of our minds the basic
principles of popular government, and if we give expression to the
paramount purpose for which the courts, as an independent power of
such a government, were constituted. The primary question is Shall
the judiciary permit a government of the men instead of a government
of laws to be set up in the Philippine Islands?

Omitting much extraneous matter, of no moment to these

proceedings, but which might prove profitable reading for other
departments of the government, the facts are these: The Mayor of the
city of Manila, Justo Lukban, for the best of all reasons, to exterminate
vice, ordered the segregated district for women of ill repute, which had
been permitted for a number of years in the city of Manila, closed.
Between October 16 and October 25, 1918, the women were kept
confined to their houses in the district by the police. Presumably,
during this period, the city authorities quietly perfected arrangements
with the Bureau of Labor for sending the women to Davao, Mindanao,
as laborers; with some government office for the use of the
coastguard cutters Corregidor and Negros, and with the Constabulary
for a guard of soldiers. At any rate, about midnight of October 25, the
police, acting pursuant to orders from the chief of police, Anton
Hohmann and the Mayor of the city of Manila, Justo Lukban,
descended upon the houses, hustled some 170 inmates into patrol
wagons, and placed them aboard the steamers that awaited their
arrival. The women were given no opportunity to collect their
belongings, and apparently were under the impression that they were
being taken to a police station for an investigation. They had no
knowledge that they were destined for a life in Mindanao. They had
not been asked if they wished to depart from that region and had
neither directly nor indirectly given their consent to the deportation.
The involuntary guests were received on board the steamers by a
representative of the Bureau of Labor and a detachment of
Constabulary soldiers. The two steamers with their unwilling
passengers sailed for Davao during the night of October 25.

The vessels reached their destination at Davao on October 29. The

women were landed and receipted for as laborers by Francisco Sales,
provincial governor of Davao, and by Feliciano Yigo and Rafael
Castillo. The governor and the hacendero Yigo, who appear as
parties in the case, had no previous notification that the women were
prostitutes who had been expelled from the city of Manila. The further
happenings to these women and the serious charges growing out of
alleged ill-treatment are of public interest, but are not essential to the
disposition of this case. Suffice it to say, generally, that some of the
women married, others assumed more or less clandestine relations
with men, others went to work in different capacities, others assumed
a life unknown and disappeared, and a goodly portion found means to
return to Manila.

To turn back in our narrative, just about the time the Corregidor and
the Negros were putting in to Davao, the attorney for the relatives and
friends of a considerable number of the deportees presented an
application for habeas corpus to a member of the Supreme Court.
Subsequently, the application, through stipulation of the parties, was
made to include all of the women who were sent away from Manila to
Davao and, as the same questions concerned them all, the application
will be considered as including them. The application set forth the
salient facts, which need not be repeated, and alleged that the women
were illegally restrained of their liberty by Justo Lukban, Mayor of the
city of Manila, Anton Hohmann, chief of police of the city of Manila,
and by certain unknown parties. The writ was made returnable before
the full court. The city fiscal appeared for the respondents, Lukban
and Hohmann, admitted certain facts relative to sequestration and
deportation, and prayed that the writ should not be granted because
the petitioners were not proper parties, because the action should
have been begun in the Court of First Instance for Davao, Department
of Mindanao and Sulu, because the respondents did not have any of
the women under their custody or control, and because their
jurisdiction did not extend beyond the boundaries of the city of Manila.
According to an exhibit attached to the answer of the fiscal, the 170
women were destined to be laborers, at good salaries, on
the haciendas of Yigo and Governor Sales. In open court, the fiscal
admitted, in answer to question of a member of the court, that these
women had been sent out of Manila without their consent. The court
awarded the writ, in an order of November 4, that directed Justo
Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of
the city of Manila, Francisco Sales, governor of the province of Davao,
and Feliciano Yigo, an hacenderoof Davao, to bring before the court
the persons therein named, alleged to be deprived of their liberty, on
December 2, 1918.

Before the date mentioned, seven of the women had returned to

Manila at their own expense. On motion of counsel for petitioners,
their testimony was taken before the clerk of the Supreme Court sitting
as commissioners. On the day named in the order, December 2nd,
1918, none of the persons in whose behalf the writ was issued were
produced in court by the respondents. It has been shown that three of
those who had been able to come back to Manila through their own
efforts, were notified by the police and the secret service to appear
before the court. The fiscal appeared, repeated the facts more
comprehensively, reiterated the stand taken by him when pleading to
the original petition copied a telegram from the Mayor of the city of
Manila to the provincial governor of Davao and the answer thereto,
and telegrams that had passed between the Director of Labor and the
attorney for that Bureau then in Davao, and offered certain affidavits
showing that the women were contained with their life in Mindanao
and did not wish to return to Manila. Respondents Sales answered
alleging that it was not possible to fulfill the order of the Supreme
Court because the women had never been under his control, because
they were at liberty in the Province of Davao, and because they had
married or signed contracts as laborers. Respondent Yigo answered
alleging that he did not have any of the women under his control and
that therefore it was impossible for him to obey the mandate. The
court, after due deliberation, on December 10, 1918, promulgated a
second order, which related that the respondents had not complied
with the original order to the satisfaction of the court nor explained
their failure to do so, and therefore directed that those of the women
not in Manila be brought before the court by respondents Lukban,
Hohmann, Sales, and Yigo on January 13, 1919, unless the women
should, in written statements voluntarily made before the judge of first
instance of Davao or the clerk of that court, renounce the right, or
unless the respondents should demonstrate some other legal motives
that made compliance impossible. It was further stated that the
question of whether the respondents were in contempt of court would
later be decided and the reasons for the order announced in the final
decision.

Before January 13, 1919, further testimony including that of a number

of the women, of certain detectives and policemen, and of the
provincial governor of Davao, was taken before the clerk of the
Supreme Court sitting as commissioner and the clerk of the Court of
First Instance of Davao acting in the same capacity. On January 13,
1919, the respondents technically presented before the Court the
women who had returned to the city through their own efforts and
eight others who had been brought to Manila by the respondents.
Attorneys for the respondents, by their returns, once again recounted
the facts and further endeavored to account for all of the persons
involved in the habeas corpus. In substance, it was stated that the
respondents, through their representatives and agents, had
succeeded in bringing from Davao with their consent eight women;
that eighty-one women were found in Davao who, on notice that if they
desired they could return to Manila, transportation fee, renounced the
right through sworn statements; that fifty-nine had already returned to
Manila by other means, and that despite all efforts to find them twenty-
six could not be located. Both counsel for petitioners and the city fiscal
were permitted to submit memoranda. The first formally asked the
court to find Justo Lukban, Mayor of the city of Manila, Anton
Hohmann, chief of police of the city of Manila, Jose Rodriguez and
Fernando Ordax, members of the police force of the city of Manila,
Feliciano Yigo, an hacendero of Davao, Modesto Joaquin, the
attorney for the Bureau of Labor, and Anacleto Diaz, fiscal of the city
of Manila, in contempt of court. The city fiscal requested that
the replica al memorandum de los recurridos, (reply to respondents'
memorandum) dated January 25, 1919, be struck from the record.

In the second order, the court promised to give the reasons for
granting the writ of habeas corpus in the final decision. We will now
proceed to do so.

One fact, and one fact only, need be recalled these one hundred
and seventy women were isolated from society, and then at night,
without their consent and without any opportunity to consult with
friends or to defend their rights, were forcibly hustled on board
steamers for transportation to regions unknown. Despite the feeble
attempt to prove that the women left voluntarily and gladly, that such
was not the case is shown by the mere fact that the presence of the
police and the constabulary was deemed necessary and that these
officers of the law chose the shades of night to cloak their secret and
stealthy acts. Indeed, this is a fact impossible to refute and practically
admitted by the respondents.

With this situation, a court would next expect to resolve the

question By authority of what law did the Mayor and the Chief of
Police presume to act in deporting by duress these persons from
Manila to another distant locality within the Philippine Islands? We turn
to the statutes and we find

Alien prostitutes can be expelled from the Philippine Islands in

conformity with an Act of congress. The Governor-General can order
the eviction of undesirable aliens after a hearing from the Islands. Act
No. 519 of the Philippine Commission and section 733 of the Revised
Ordinances of the city of Manila provide for the conviction and
punishment by a court of justice of any person who is a common
prostitute. Act No. 899 authorizes the return of any citizen of the
United States, who may have been convicted of vagrancy, to the
homeland. New York and other States have statutes providing for the
commitment to the House of Refuge of women convicted of being
common prostitutes. Always a law! Even when the health authorities
compel vaccination, or establish a quarantine, or place a leprous
person in the Culion leper colony, it is done pursuant to some law or
order. But one can search in vain for any law, order, or regulation,
which even hints at the right of the Mayor of the city of Manila or the
chief of police of that city to force citizens of the Philippine Islands
and these women despite their being in a sense lepers of society are
nevertheless not chattels but Philippine citizens protected by the same
constitutional guaranties as are other citizens to change their
domicile from Manila to another locality. On the contrary, Philippine
penal law specifically punishes any public officer who, not being
expressly authorized by law or regulation, compels any person to
change his residence.

In other countries, as in Spain and Japan, the privilege of domicile is

deemed so important as to be found in the Bill of Rights of the
Constitution. Under the American constitutional system, liberty of
abode is a principle so deeply imbedded in jurisprudence and
considered so elementary in nature as not even to require a
constitutional sanction. Even the Governor-General of the Philippine
Islands, even the President of the United States, who has often been
said to exercise more power than any king or potentate, has no such
arbitrary prerogative, either inherent or express. Much less, therefore,
has the executive of a municipality, who acts within a sphere of
delegated powers. If the mayor and the chief of police could, at their
mere behest or even for the most praiseworthy of motives, render the
liberty of the citizen so insecure, then the presidents and chiefs of
police of one thousand other municipalities of the Philippines have the
same privilege. If these officials can take to themselves such power,
then any other official can do the same. And if any official can exercise
the power, then all persons would have just as much right to do so.
And if a prostitute could be sent against her wishes and under no law
from one locality to another within the country, then officialdom can
hold the same club over the head of any citizen.

Law defines power. Centuries ago Magna Charta decreed that "No
freeman shall be taken, or imprisoned, or be disseized of his freehold,
or liberties, or free customs, or be outlawed, or exiled, or any other
wise destroyed; nor will we pass upon him nor condemn him, but by
lawful judgment of his peers or by the law of the land. We will sell to
no man, we will not deny or defer to any man either justice or right."
(Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.)
No official, no matter how high, is above the law. The courts are the
forum which functionate to safeguard individual liberty and to punish
official transgressors. "The law," said Justice Miller, delivering the
opinion of the Supreme Court of the United States, "is the only
supreme power in our system of government, and every man who by
accepting office participates in its functions is only the more strongly
bound to submit to that supremacy, and to observe the limitations
which it imposes upon the exercise of the authority which it gives."
(U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said Justice
Matthews of the same high tribunal in another case, "that one man
may be compelled to hold his life, or the means of living, or any
material right essential to the enjoyment of life, at the mere will of
another, seems to be intolerable in any country where freedom
prevails, as being the essence of slavery itself." (Yick Wo vs. Hopkins
[1886], 118 U.S., 356, 370.) All this explains the motive in issuing the
writ of habeas corpus, and makes clear why we said in the very
beginning that the primary question was whether the courts should
permit a government of men or a government of laws to be
established in the Philippine Islands.
What are the remedies of the unhappy victims of official oppression?
The remedies of the citizen are three: (1) Civil action; (2) criminal
action, and (3) habeas corpus.

The first is an optional but rather slow process by which the aggrieved
party may recoup money damages. It may still rest with the parties in
interest to pursue such an action, but it was never intended effectively
and promptly to meet any such situation as that now before us.

As to criminal responsibility, it is true that the Penal Code in force in

these Islands provides:

Any public officer not thereunto authorized by law or by

regulations of a general character in force in the Philippines who
shall banish any person to a place more than two hundred
kilometers distant from his domicile, except it be by virtue of the
judgment of a court, shall be punished by a fine of not less than
three hundred and twenty-five and not more than three thousand
two hundred and fifty pesetas.

Any public officer not thereunto expressly authorized by law or

by regulation of a general character in force in the Philippines
who shall compel any person to change his domicile or
residence shall suffer the penalty of destierro and a fine of not
less than six hundred and twenty-five and not more than six
thousand two hundred and fifty pesetas. (Art. 211.)

We entertain no doubt but that, if, after due investigation, the proper
prosecuting officers find that any public officer has violated this
provision of law, these prosecutors will institute and press a criminal
prosecution just as vigorously as they have defended the same official
in this action. Nevertheless, that the act may be a crime and that the
persons guilty thereof can be proceeded against, is no bar to the
instant proceedings. To quote the words of Judge Cooley in a case
which will later be referred to "It would be a monstrous anomaly in
the law if to an application by one unlawfully confined, ta be restored
to his liberty, it could be a sufficient answer that the confinement was
a crime, and therefore might be continued indefinitely until the guilty
party was tried and punished therefor by the slow process of criminal
procedure." (In the matter of Jackson [1867], 15 Mich., 416, 434.) The
writ of habeas corpus was devised and exists as a speedy and
effectual remedy to relieve persons from unlawful restraint, and as the
best and only sufficient defense of personal freedom. Any further
rights of the parties are left untouched by decision on the writ, whose
principal purpose is to set the individual at liberty.

Granted that habeas corpus is the proper remedy, respondents have

raised three specific objections to its issuance in this instance. The
fiscal has argued (l) that there is a defect in parties petitioners, (2) that
the Supreme Court should not a assume jurisdiction, and (3) that the
person in question are not restrained of their liberty by respondents. It
was finally suggested that the jurisdiction of the Mayor and the chief of
police of the city of Manila only extends to the city limits and that
perforce they could not bring the women from Davao.

The first defense was not presented with any vigor by counsel. The
petitioners were relatives and friends of the deportees. The way the
expulsion was conducted by the city officials made it impossible for
the women to sign a petition for habeas corpus. It was consequently
proper for the writ to be submitted by persons in their behalf. (Code of
Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The
law, in its zealous regard for personal liberty, even makes it the duty of
a court or judge to grant a writ of habeas corpus if there is evidence
that within the court's jurisdiction a person is unjustly imprisoned or
restrained of his liberty, though no application be made therefor.
(Code of Criminal Procedure, sec. 93.) Petitioners had standing in
court.

The fiscal next contended that the writ should have been asked for in
the Court of First Instance of Davao or should have been made
returnable before that court. It is a general rule of good practice that,
to avoid unnecessary expense and inconvenience, petitions
for habeas corpus should be presented to the nearest judge of the
court of first instance. But this is not a hard and fast rule. The writ
of habeas corpus may be granted by the Supreme Court or any judge
thereof enforcible anywhere in the Philippine Islands. (Code of
Criminal Procedure, sec. 79; Code of Civil Procedure, sec. 526.)
Whether the writ shall be made returnable before the Supreme Court
or before an inferior court rests in the discretion of the Supreme Court
and is dependent on the particular circumstances. In this instance it
was not shown that the Court of First Instance of Davao was in
session, or that the women had any means by which to advance their
plea before that court. On the other hand, it was shown that the
petitioners with their attorneys, and the two original respondents with
their attorney, were in Manila; it was shown that the case involved
parties situated in different parts of the Islands; it was shown that the
women might still be imprisoned or restrained of their liberty; and it
was shown that if the writ was to accomplish its purpose, it must be
taken cognizance of and decided immediately by the appellate court.
The failure of the superior court to consider the application and then to
grant the writ would have amounted to a denial of the benefits of the
writ.

The last argument of the fiscal is more plausible and more difficult to
meet. When the writ was prayed for, says counsel, the parties in
whose behalf it was asked were under no restraint; the women, it is
claimed, were free in Davao, and the jurisdiction of the mayor and the
chief of police did not extend beyond the city limits. At first blush, this
is a tenable position. On closer examination, acceptance of such
dictum is found to be perversive of the first principles of the writ
of habeas corpus.

A prime specification of an application for a writ of habeas corpus is

restraint of liberty. The essential object and purpose of the writ
of habeas corpus is to inquire into all manner of involuntary restraint
as distinguished from voluntary, and to relieve a person therefrom if
such restraint is illegal. Any restraint which will preclude freedom of
action is sufficient. The forcible taking of these women from Manila by
officials of that city, who handed them over to other parties, who
deposited them in a distant region, deprived these women of freedom
of locomotion just as effectively as if they had been imprisoned.
Placed in Davao without either money or personal belongings, they
were prevented from exercising the liberty of going when and where
they pleased. The restraint of liberty which began in Manila continued
until the aggrieved parties were returned to Manila and released or
until they freely and truly waived his right.

Consider for a moment what an agreement with such a defense would

mean. The chief executive of any municipality in the Philippines could
forcibly and illegally take a private citizen and place him beyond the
boundaries of the municipality, and then, when called upon to defend
his official action, could calmly fold his hands and claim that the
person was under no restraint and that he, the official, had no
jurisdiction over this other municipality. We believe the true principle
should be that, if the respondent is within the jurisdiction of the court
and has it in his power to obey the order of the court and thus to undo
the wrong that he has inflicted, he should be compelled to do so. Even
if the party to whom the writ is addressed has illegally parted with the
custody of a person before the application for the writ is no reason
why the writ should not issue. If the mayor and the chief of police,
acting under no authority of law, could deport these women from the
city of Manila to Davao, the same officials must necessarily have the
same means to return them from Davao to Manila. The respondents,
within the reach of process, may not be permitted to restrain a fellow
citizen of her liberty by forcing her to change her domicile and to avow
the act with impunity in the courts, while the person who has lost her
birthright of liberty has no effective recourse. The great writ of liberty
may not thus be easily evaded.

It must be that some such question has heretofore been presented to

the courts for decision. Nevertheless, strange as it may seem, a close
examination of the authorities fails to reveal any analogous case.
Certain decisions of respectable courts are however very persuasive
in nature.

A question came before the Supreme Court of the State of Michigan at

an early date as to whether or not a writ of habeas corpus would issue
from the Supreme Court to a person within the jurisdiction of the State
to bring into the State a minor child under guardianship in the State,
who has been and continues to be detained in another State. The
membership of the Michigan Supreme Court at this time was notable.
It was composed of Martin, chief justice, and Cooley, Campbell, and
Christiancy, justices. On the question presented the court was equally
divided. Campbell, J., with whom concurred Martin, C. J., held that the
writ should be quashed. Cooley, J., one of the most distinguished
American judges and law-writers, with whom concurred Christiancy,
J., held that the writ should issue. Since the opinion of Justice
Campbell was predicated to a large extent on his conception of the
English decisions, and since, as will hereafter appear, the English
courts have taken a contrary view, only the following eloquent
passages from the opinion of Justice Cooley are quoted:

I have not yet seen sufficient reason to doubt the power of this
court to issue the present writ on the petition which was laid
before us. . . .

It would be strange indeed if, at this late day, after the eulogiums
of six centuries and a half have been expended upon the Magna
Charta, and rivers of blood shed for its establishment; after its
many confirmations, until Coke could declare in his speech on
the petition of right that "Magna Charta was such a fellow that he
will have no sovereign," and after the extension of its benefits
and securities by the petition of right, bill of rights and habeas
corpus acts, it should now be discovered that evasion of that
great clause for the protection of personal liberty, which is the life
and soul of the whole instrument, is so easy as is claimed here.
If it is so, it is important that it be determined without delay, that
the legislature may apply the proper remedy, as I can not doubt
they would, on the subject being brought to their notice. . . .

The second proposition that the statutory provisions are

confined to the case of imprisonment within the state seems
to me to be based upon a misconception as to the source of our
jurisdiction. It was never the case in England that the court of
king's bench derived its jurisdiction to issue and enforce this writ
from the statute. Statutes were not passed to give the right, but
to compel the observance of rights which existed. . . .
 The important fact to be observed in regard to the mode of
procedure upon this writ is, that it is directed to and served upon,
not the person confined, but his jailor. It does not reach the
former except through the latter. The officer or person who
serves it does not unbar the prison doors, and set the prisoner
free, but the court relieves him by compelling the oppressor to
release his constraint. The whole force of the writ is spent upon
the respondent, and if he fails to obey it, the means to be
resorted to for the purposes of compulsion are fine and
imprisonment. This is the ordinary mode of affording relief, and if
any other means are resorted to, they are only auxiliary to those
which are usual. The place of confinement is, therefore, not
important to the relief, if the guilty party is within reach of
process, so that by the power of the court he can be compelled
to release his grasp. The difficulty of affording redress is not
increased by the confinement being beyond the limits of the
state, except as greater distance may affect it. The important
question is, where the power of control exercised? And I am
aware of no other remedy. (In the matter of Jackson [1867], 15
Mich., 416.)

The opinion of Judge Cooley has since been accepted as authoritative

by other courts. (Rivers vs. Mitchell [1881], 57 Iowa, 193;
Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex
parte Young [1892], 50 Fed., 526.)

The English courts have given careful consideration to the subject.

Thus, a child had been taken out of English by the respondent. A writ
of habeas corpus was issued by the Queen's Bench Division upon the
application of the mother and her husband directing the defendant to
produce the child. The judge at chambers gave defendant until a
certain date to produce the child, but he did not do so. His return
stated that the child before the issuance of the writ had been handed
over by him to another; that it was no longer in his custody or control,
and that it was impossible for him to obey the writ. He was found in
contempt of court. On appeal, the court, through Lord Esher, M. R.,
said:
 A writ of habeas corpus was ordered to issue, and was issued on
January 22. That writ commanded the defendant to have the
body of the child before a judge in chambers at the Royal Courts
of Justice immediately after the receipt of the writ, together with
the cause of her being taken and detained. That is a command
to bring the child before the judge and must be obeyed, unless
some lawful reason can be shown to excuse the nonproduction
of the child. If it could be shown that by reason of his having
lawfully parted with the possession of the child before the issuing
of the writ, the defendant had no longer power to produce the
child, that might be an answer; but in the absence of any lawful
reason he is bound to produce the child, and, if he does not, he
is in contempt of the Court for not obeying the writ without lawful
excuse. Many efforts have been made in argument to shift the
question of contempt to some anterior period for the purpose of
showing that what was done at some time prior to the writ cannot
be a contempt. But the question is not as to what was done
before the issue of the writ. The question is whether there has
been a contempt in disobeying the writ it was issued by not
producing the child in obedience to its commands. (The
Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the
same effect the Irish case of In re Matthews, 12 Ir. Com. Law
Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's Case
[1890], 24 Q. B. D., 283.)

A decision coming from the Federal Courts is also of interest.

A habeas corpus was directed to the defendant to have before the
circuit court of the District of Columbia three colored persons, with the
cause of their detention. Davis, in his return to the writ, stated on oath
that he had purchased the negroes as slaves in the city of
Washington; that, as he believed, they were removed beyond the
District of Columbia before the service of the writ of habeas corpus,
and that they were then beyond his control and out of his custody. The
evidence tended to show that Davis had removed the negroes
because he suspected they would apply for a writ of habeas corpus.
The court held the return to be evasive and insufficient, and that Davis
was bound to produce the negroes, and Davis being present in court,
and refusing to produce them, ordered that he be committed to the
custody of the marshall until he should produce the negroes, or be
otherwise discharged in due course of law. The court afterwards
ordered that Davis be released upon the production of two of the
negroes, for one of the negroes had run away and been lodged in jail
in Maryland. Davis produced the two negroes on the last day of the
term. (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas.
No. 14926. See also Robb vs. Connolly [1883], 111 U.S., 624; Church
on Habeas, 2nd ed., p. 170.)

We find, therefore, both on reason and authority, that no one of the

defense offered by the respondents constituted a legitimate bar to the
granting of the writ of habeas corpus.

There remains to be considered whether the respondent complied

with the two orders of the Supreme Court awarding the writ of habeas
corpus, and if it be found that they did not, whether the contempt
should be punished or be taken as purged.

The first order, it will be recalled, directed Justo Lukban, Anton

Hohmann, Francisco Sales, and Feliciano Yigo to present the
persons named in the writ before the court on December 2, 1918. The
order was dated November 4, 1918. The respondents were thus given
ample time, practically one month, to comply with the writ. As far as
the record discloses, the Mayor of the city of Manila waited until the
21st of November before sending a telegram to the provincial
governor of Davao. According to the response of the attorney for the
Bureau of Labor to the telegram of his chief, there were then in Davao
women who desired to return to Manila, but who should not be
permitted to do so because of having contracted debts. The half-
hearted effort naturally resulted in none of the parties in question
being brought before the court on the day named.

For the respondents to have fulfilled the court's order, three optional
courses were open: (1) They could have produced the bodies of the
persons according to the command of the writ; or (2) they could have
shown by affidavit that on account of sickness or infirmity those
persons could not safely be brought before the court; or (3) they could
have presented affidavits to show that the parties in question or their
attorney waived the right to be present. (Code of Criminal Procedure,
sec. 87.) They did not produce the bodies of the persons in whose
behalf the writ was granted; they did not show impossibility of
performance; and they did not present writings that waived the right to
be present by those interested. Instead a few stereotyped affidavits
purporting to show that the women were contended with their life in
Davao, some of which have since been repudiated by the signers,
were appended to the return. That through ordinary diligence a
considerable number of the women, at least sixty, could have been
brought back to Manila is demonstrated to be found in the municipality
of Davao, and that about this number either returned at their own
expense or were produced at the second hearing by the respondents.

The court, at the time the return to its first order was made, would
have been warranted summarily in finding the respondents guilty of
contempt of court, and in sending them to jail until they obeyed the
order. Their excuses for the non-production of the persons were far
from sufficient. The, authorities cited herein pertaining to somewhat
similar facts all tend to indicate with what exactitude a habeas
corpus writ must be fulfilled. For example, in Gossage's case, supra,
the Magistrate in referring to an earlier decision of the Court, said:
"We thought that, having brought about that state of things by his own
illegal act, he must take the consequences; and we said that he was
bound to use every effort to get the child back; that he must do much
more than write letters for the purpose; that he must advertise in
America, and even if necessary himself go after the child, and do
everything that mortal man could do in the matter; and that the court
would only accept clear proof of an absolute impossibility by way of
excuse." In other words, the return did not show that every possible
effort to produce the women was made by the respondents. That the
court forebore at this time to take drastic action was because it did not
wish to see presented to the public gaze the spectacle of a clash
between executive officials and the judiciary, and because it desired to
give the respondents another chance to demonstrate their good faith
and to mitigate their wrong.
In response to the second order of the court, the respondents appear
to have become more zealous and to have shown a better spirit.
Agents were dispatched to Mindanao, placards were posted, the
constabulary and the municipal police joined in rounding up the
women, and a steamer with free transportation to Manila was
provided. While charges and counter-charges in such a bitterly
contested case are to be expected, and while a critical reading of the
record might reveal a failure of literal fulfillment with our mandate, we
come to conclude that there is a substantial compliance with it. Our
finding to this effect may be influenced somewhat by our sincere
desire to see this unhappy incident finally closed. If any wrong is now
being perpetrated in Davao, it should receive an executive
investigation. If any particular individual is still restrained of her liberty,
it can be made the object of separate habeas corpus proceedings.

Since the writ has already been granted, and since we find a
substantial compliance with it, nothing further in this connection
remains to be done.

The attorney for the petitioners asks that we find in contempt of court
Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of
police of the city of Manila, Jose Rodriguez, and Fernando Ordax,
members of the police force of the city of Manila, Modesto Joaquin,
the attorney for the Bureau of Labor, Feliciano Yigo, an hacendero of
Davao, and Anacleto Diaz, Fiscal of the city of Manila.

The power to punish for contempt of court should be exercised on the

preservative and not on the vindictive principle. Only occasionally
should the court invoke its inherent power in order to retain that
respect without which the administration of justice must falter or fail.
Nevertheless when one is commanded to produce a certain person
and does not do so, and does not offer a valid excuse, a court must, to
vindicate its authority, adjudge the respondent to be guilty of
contempt, and must order him either imprisoned or fined. An officer's
failure to produce the body of a person in obedience to a writ
of habeas corpus when he has power to do so, is a contempt
committed in the face of the court. (Ex parte Sterns [1888], 77 Cal.,
156; In re Patterson [1888], 99 N. C., 407.)
With all the facts and circumstances in mind, and with judicial regard
for human imperfections, we cannot say that any of the respondents,
with the possible exception of the first named, has flatly disobeyed the
court by acting in opposition to its authority. Respondents Hohmann,
Rodriguez, Ordax, and Joaquin only followed the orders of their chiefs,
and while, under the law of public officers, this does not exonerate
them entirely, it is nevertheless a powerful mitigating circumstance.
The hacendero Yigo appears to have been drawn into the case
through a misconstruction by counsel of telegraphic communications.
The city fiscal, Anacleto Diaz, would seem to have done no more than
to fulfill his duty as the legal representative of the city government.
Finding him innocent of any disrespect to the court, his counter-motion
to strike from the record the memorandum of attorney for the
petitioners, which brings him into this undesirable position, must be
granted. When all is said and done, as far as this record discloses, the
official who was primarily responsible for the unlawful deportation, who
ordered the police to accomplish the same, who made arrangements
for the steamers and the constabulary, who conducted the
negotiations with the Bureau of Labor, and who later, as the head of
the city government, had it within his power to facilitate the return of
the unfortunate women to Manila, was Justo Lukban, the Mayor of the
city of Manila. His intention to suppress the social evil was
commendable. His methods were unlawful. His regard for the writ
of habeas corpus issued by the court was only tardily and reluctantly
acknowledged.

It would be possible to turn to the provisions of section 546 of the

Code of Civil Procedure, which relates to the penalty for disobeying
the writ, and in pursuance thereof to require respondent Lukban to
forfeit to the parties aggrieved as much as P400 each, which would
reach to many thousands of pesos, and in addition to deal with him as
for a contempt. Some members of the court are inclined to this stern
view. It would also be possible to find that since respondent Lukban
did comply substantially with the second order of the court, he has
purged his contempt of the first order. Some members of the court are
inclined to this merciful view. Between the two extremes appears to lie
the correct finding. The failure of respondent Lukban to obey the first
mandate of the court tended to belittle and embarrass the
administration of justice to such an extent that his later activity may be
considered only as extenuating his conduct. A nominal fine will at
once command such respect without being unduly oppressive such
an amount is P100.

In resume as before stated, no further action on the writ of habeas

corpus is necessary. The respondents Hohmann, Rodriguez, Ordax,
Joaquin, Yigo, and Diaz are found not to be in contempt of court.
Respondent Lukban is found in contempt of court and shall pay into
the office of the clerk of the Supreme Court within five days the sum of
one hundred pesos (P100). The motion of the fiscal of the city of
Manila to strike from the record the Replica al Memorandum de los
Recurridos of January 25, 1919, is granted. Costs shall be taxed
against respondents. So ordered.

In concluding this tedious and disagreeable task, may we not be

permitted to express the hope that this decision may serve to bulwark
the fortifications of an orderly government of laws and to protect
individual liberty from illegal encroachment.

Arellano, C.J., Avancea and Moir, JJ., concur.

Johnson, and Street, JJ., concur in the result.

Separate Opinions

TORRES, J., dissenting:

The undersigned does not entirely agree to the opinion of the majority
in the decision of the habeas corpusproceeding against Justo Lukban,
the mayor of this city.

There is nothing in the record that shows the motive which impelled
Mayor Lukban to oblige a great number of women of various ages,
inmates of the houses of prostitution situated in Gardenia Street,
district of Sampaloc, to change their residence.
We know no express law, regulation, or ordinance which clearly
prohibits the opening of public houses of prostitution, as those in the
said Gardenia Street, Sampaloc. For this reason, when more than one
hundred and fifty women were assembled and placed aboard a
steamer and transported to Davao, considering that the existence of
the said houses of prostitution has been tolerated for so long a time, it
is undeniable that the mayor of the city, in proceeding in the manner
shown, acted without authority of any legal provision which constitutes
an exception to the laws guaranteeing the liberty and the individual
rights of the residents of the city of Manila.

We do not believe in the pomp and obstentation of force displayed by

the police in complying with the order of the mayor of the city; neither
do we believe in the necessity of taking them to the distant district of
Davao. The said governmental authority, in carrying out his intention
to suppress the segregated district or the community formed by those
women in Gardenia Street, could have obliged the said women to
return to their former residences in this city or in the provinces, without
the necessity of transporting them to Mindanao; hence the said official
is obliged to bring back the women who are still in Davao so that they
may return to the places in which they lived prior to their becoming
inmates of certain houses in Gardenia Street.

As regards the manner whereby the mayor complied with the orders of
this court, we do not find any apparent disobedience and marked
absence of respect in the steps taken by the mayor of the city and his
subordinates, if we take into account the difficulties encountered in
bringing the said women who were free at Davao and presenting them
before this court within the time fixed, inasmuch as it does not appear
that the said women were living together in a given place. It was not
because they were really detained, but because on the first days there
were no houses in which they could live with a relative independent
from one another, and as a proof that they were free a number of
them returned to Manila and the others succeeded in living separate
from their companions who continued living together.

To determine whether or not the mayor acted with a good purpose

and legal object and whether he has acted in good or bad faith in
proceeding to dissolve the said community of prostitutes and to oblige
them to change their domicile, it is necessary to consider not only the
rights and interests of the said women and especially of the patrons
who have been directing and conducting such a reproachable
enterprise and shameful business in one of the suburbs of this city,
but also the rights and interests of the very numerous people of Manila
where relatively a few transients accidentally and for some days
reside, the inhabitants thereof being more than three hundred
thousand (300,000) who can not, with indifference and without
repugnance, live in the same place with so many unfortunate women
dedicated to prostitution.

If the material and moral interests of the community as well as the

demands of social morality are to be taken into account, it is not
possible to sustain that it is legal and permissible to establish a house
of pandering or prostitution in the midst of an enlightened population,
for, although there were no positive laws prohibiting the existence of
such houses within a district of Manila, the dictates of common sense
and dictates of conscience of its inhabitants are sufficient to warrant
the public administration, acting correctly, in exercising the inevitable
duty of ordering the closing and abandonment of a house of
prostitution ostensibly open to the public, and of obliging the inmates
thereof to leave it, although such a house is inhabited by its true
owner who invokes in his behalf the protection of the constitutional law
guaranteeing his liberty, his individual rights, and his right to property.

A cholera patient, a leper, or any other person affected by a known

contagious disease cannot invoke in his favor the constitutional law
which guarantees his liberty and individual rights, should the
administrative authority order his hospitalization, reclusion, or
concentration in a certain island or distant point in order to free from
contagious the great majority of the inhabitants of the country who
fortunately do not have such diseases. The same reasons exist or
stand good with respect to the unfortunate women dedicated to
prostitution, and such reasons become stronger because the first
persons named have contracted their diseases without their
knowledge and even against their will, whereas the unfortunate
prostitutes voluntarily adopted such manner of living and
spontaneously accepted all its consequences, knowing positively that
their constant intercourse with men of all classes, notwithstanding the
cleanliness and precaution which they are wont to adopt, gives way to
the spread or multiplication of the disease known as syphilis, a
venereal disease, which, although it constitutes a secret disease
among men and women, is still prejudicial to the human species in the
same degree, scope, and seriousness as cholera, tuberculosis,
leprosy, pest, typhoid, and other contagious diseases which produce
great mortality and very serious prejudice to poor humanity.

If a young woman, instead of engaging in an occupation or works

suitable to her sex, which can give her sufficient remuneration for her
subsistence, prefers to put herself under the will of another woman
who is usually older than she is and who is the manager or owner of a
house of prostitution, or spontaneously dedicates herself to this
shameful profession, it is undeniable that she voluntarily and with her
own knowledge renounces her liberty and individual rights guaranteed
by the Constitution, because it is evident that she can not join the
society of decent women nor can she expect to get the same respect
that is due to the latter, nor is it possible for her to live within the
community or society with the same liberty and rights enjoyed by
every citizen. Considering her dishonorable conduct and life, she
should therefore be comprised within that class which is always
subject to the police and sanitary regulations conducive to the
maintenance of public decency and morality and to the conservation
of public health, and for this reason it should not permitted that the
unfortunate women dedicated to prostitution evade the just orders and
resolutions adopted by the administrative authorities.

It is regrettable that unnecessary rigor was employed against the said

poor women, but those who have been worrying so much about the
prejudice resulting from a governmental measure, which being a very
drastic remedy may be considered arbitrary, have failed to consider
with due reflection the interests of the inhabitants of this city in general
and particularly the duties and responsibilities weighing upon the
authorities which administer and govern it; they have forgotten that
many of those who criticize and censure the mayor are fathers of
families and are in duty bound to take care of their children.

For the foregoing reasons, we reach the conclusion that when the
petitioners, because of the abnormal life they assumed, were obliged
to change their residence not by a private citizen but by the mayor of
the city who is directly responsible for the conservation of public health
and social morality, the latter could take the step he had taken,
availing himself of the services of the police in good faith and only with
the purpose of protecting the immense majority of the population from
the social evils and diseases which the houses of prostitution situated
in Gardenia Street have been producing, which houses have been
constituting for years a true center for the propagation of general
diseases and other evils derived therefrom. Hence, in ordering the
dissolution and abandonment of the said houses of prostitution and
the change of the domicile of the inmates thereof, the mayor did not in
bad faith violate the constitutional laws which guarantees the liberty
and the individual rights of every Filipino, inasmuch as the women
petitioners do not absolutely enjoy the said liberty and rights, the
exercise of which they have voluntarily renounced in exchange for the
free practice of their shameful profession.

In very highly advanced and civilized countries, there have been

adopted by the administrative authorities similar measures, more or
less rigorous, respecting prostitutes, considering them prejudicial to
the people, although it is true that in the execution of such measures
more humane and less drastic procedures, fortiter in re et suaviter in
forma, have been adopted, but such procedures have always had in
view the ultimate object of the Government for the sake of the
community, that is, putting an end to the living together in a certain
place of women dedicated to prostitution and changing their domicile,
with the problematical hope that they adopt another manner of living
which is better and more useful to themselves and to society.

In view of the foregoing remarks, we should hold, as we hereby hold,

that Mayor Justo Lukban is obliged to take back and restore the said
women who are at present found in Davao, and who desire to return
to their former respective residences, not in Gardenia Street,
Sampaloc District, with the exception of the prostitutes who should
expressly make known to the clerk of court their preference to reside
in Davao, which manifestation must be made under oath. This
resolution must be transmitted to the mayor within the shortest time
possible for its due compliance. The costs shall be charged de officio.

ARAULLO, J., dissenting in part:

I regret to dissent from the respectable opinion of the majority in the

decision rendered in these proceedings, with respect to the finding as
to the importance of the contempt committed, according to the same
decision, by Justo Lukban, Mayor of the city of Manila, and the
consequent imposition upon him of a nominal fine of P100.

In the said decision, it is said:

The first order, it will be recalled, directed Justo Lukban, Anton

Hohmann, Francisco Sales, and Feliciano Yigo to present the
persons named in the writ before the court on December 2,
1918. The order was dated November 4, 1918. The respondents
were thus given ample time, practically one month, to comply
with the writ. As far as the record disclosed, the mayor of the city
of Manila waited until the 21st of November before sending a
telegram to the provincial governor of Davao. According to the
response of the Attorney for the Bureau of Labor to the telegram
of his chief, there were then in Davao women who desired to
return to Manila, but who should not be permitted to do so
because of having contracted debts. The half-hearted effort
naturally resulted in none of the parties in question being brought
before the court on the day named.

In accordance with section 87 of General Orders No. 58, as said in the

same decision, the respondents, for the purpose of complying with the
order of the court, could have, (1) produced the bodies of the persons
according to the command of the writ; (2) shown by affidavits that on
account of sickness or infirmity the said women could not safely be
brought before this court; and (3) presented affidavits to show that the
parties in question or their lawyers waived their right to be present.
According to the same decision, the said respondents ". . . did not
produce the bodies of the persons in whose behalf the writ was
granted; did not show impossibility of performance; and did not
present writings, that waived the right to be present by those
interested. Instead, a few stereotyped affidavits purporting to show
that the women were contented with their life in Davao, some of which
have since been repudiated by the signers, were appended to the
return. That through ordinary diligence a considerable number of the
women, at least sixty, could have been brought back to Manila is
demonstrated by the fact that during this time they were easily to be
found in the municipality of Davao, and that about this number either
returned at their own expense or were produced at the second hearing
by the respondents."

The majority opinion also recognized that, "That court, at the time the
return to its first order was made, would have been warranted
summarily in finding the respondent guilty of contempt of court, and in
sending them to jail until they obeyed the order. Their excuses for the
non production of the persons were far from sufficient." To corroborate
this, the majority decision cites the case of the Queen vs. Barnardo,
Gossage's Case ([1890], 24 Q. B. D., 283) and added "that the return
did not show that every possible effort to produce the women was
made by the respondents."

When the said return by the respondents was made to this court in
banc and the case discussed, my opinion was that Mayor Lukban
should have been immediately punished for contempt. Nevertheless, a
second order referred to in the decision was issued on December 10,
1918, requiring the respondents to produce before the court, on
January 13, 1919, the women who were not in Manila, unless they
could show that it was impossible to comply with the said order on the
two grounds previously mentioned. With respect to this second order,
the same decision has the following to say:

In response to the second order of the court, the respondents

appear to have become more zealous and to have shown a
better spirit. Agents were dispatched to Mindanao, placards were
posted, the constabulary and the municipal police joined in
 rounding up the women, and a steamer with free transportation
to Manila was provided. While charges and countercharges in
such a bitterly contested case are to be expected, and while a
critical reading of the record might reveal a failure of literal
fulfillment with our mandate, we come to conclude that there is a
substantial compliance with it.

I do not agree to this conclusion.

The respondent mayor of the city of Manila, Justo Lukban, let 17 days
elapse from the date of the issuance of the first order on November
4th till the 21st of the same month before taking the first step for
compliance with the mandate of the said order; he waited till the 21st
of November, as the decision says, before he sent a telegram to the
provincial governor o f Davao and naturally this half-hearted effort, as
is so qualified in the decision, resulted in that none of the women
appeared before this court on December 2nd. Thus, the said order
was not complied with, and in addition to this noncompliance there
was the circumstances that seven of the said women having returned
to Manila at their own expense before the said second day of
December and being in the antechamber of the court room, which fact
was known to Chief of Police Hohmann, who was then present at the
trial and to the attorney for the respondents, were not produced before
the court by the respondents nor did the latter show any effort to
present them, in spite of the fact that their attention was called to this
particular by the undersigned.

The result of the said second order was, as is said in the same
decision, that the respondents, on January 13th, the day fixed for the
protection of the women before this court, presented technically the
seven (7) women above-mentioned who had returned to the city at
their own expense and the other eight (8) women whom the
respondents themselves brought to Manila, alleging moreover that
their agents and subordinates succeeded in bringing them from Davao
with their consent; that in Davao they found eighty-one (81) women
who, when asked if they desired to return to Manila with free
transportation, renounced such a right, as is shown in the affidavits
presented by the respondents to this effect; that, through other means,
fifty-nine (59) women have already returned to Manila, but
notwithstanding the efforts made to find them it was not possible to
locate the whereabouts of twenty-six (26) of them. Thus, in short, out
of the one hundred and eighty-one (181) women who, as has been
previously said, have been illegally detained by Mayor Lukban and
Chief of Police Hohmann and transported to Davao against their will,
only eight (8) have been brought to Manila and presented before this
court by the respondents in compliance with the said two orders. Fifty-
nine (59) of them have returned to Manila through other means not
furnished by the respondents, twenty-six of whom were brought by the
attorney for the petitioners, Mendoza, on his return from Davao. The
said attorney paid out of his own pocket the transportation of the said
twenty-six women. Adding to these numbers the other seven (7)
women who returned to this city at their own expense before January
13 we have a total of sixty-six (66), which evidently proves, on the one
hand, the falsity of the allegation by the respondents in their first
answer at the trial of December 2, 1918, giving as one of the reasons
for their inability to present any of the said women that the latter were
content with their life in Mindanao and did not desire to return to
Manila; and, on the other hand, that the respondents, especially the
first named, that is Mayor Justo Lukban, who acted as chief and
principal in all that refers to the compliance with the orders issued by
this court, could bring before December 2nd, the date of the first
hearing of the case, as well as before January 13th, the date fixed for
the compliance with the second order, if not the seventy-four (74)
women already indicated, at least a great number of them, or at least
sixty (60) of them, as is said in the majority decision, inasmuch as the
said respondent could count upon the aid of the Constabulary forces
and the municipal police, and had transportation facilities for the
purpose. But the said respondent mayor brought only eight (8) of the
women before this court on January 13th. This fact can not, in my
judgment, with due respect to the majority opinion, justify the
conclusion that the said respondent has substantially complied with
the second order of this court, but on the other hand demonstrates
that he had not complied with the mandate of this court in its first and
second orders; that neither of the said orders has been complied with
by the respondent Justo Lukban, Mayor of the city of Manila, who is,
according to the majority decision, principally responsible for the
contempt, to which conclusion I agree. The conduct of the said
respondent with respect to the second order confirms the contempt
committed by non-compliance with the first order and constitutes a
new contempt because of non-compliance with the second, because
of the production of only eight (8) of the one hundred and eighty-one
(181) women who have been illegally detained by virtue of his order
and transported to Davao against their will, committing the twenty-six
(26) women who could not be found in Davao, demonstrates in my
opinion that, notwithstanding the nature of the case which deals with
the remedy of habeas corpus, presented by the petitioners and
involving the question whether they should or not be granted their
liberty, the respondent has not given due attention to the same nor
has he made any effort to comply with the second order. In other
words, he has disobeyed the said two orders; has despised the
authority of this court; has failed to give the respect due to justice; and
lastly, he has created and placed obstacles to the administration of
justice in the said habeas corpus proceeding, thus preventing,
because of his notorious disobedience, the resolution of the said
proceeding with the promptness which the nature of the same
required.

Contempt of court has been defined as a despising of the

authority, justice, or dignity of the court; and he is guilty of
contempt whose conduct is such as tends to bring the authority
and administration of the law into disrespect or disregard. . . ."
(Ruling Case Law, vol. 6, p. 488.)

It is a general principle that a disobedience of any valid order of

the court constitutes contempt, unless the defendant is unable to
comply therewith. (Ruling Case Law, vol. 6, p. 502.)

It is contempt to employ a subterfuge to evade the judgment of

the court, or to obstruct or attempt to obstruct the service of legal
process. If a person hinders or prevents the service of process
by deceiving the officer or circumventing him by any means, the
result is the same as though he had obstructed by some direct
means. (Ruling Case Law, vol. 6, p. 503.)
 While it may seem somewhat incongruous to speak, as the
courts often do, of enforcing respect for the law and for the
means it has provided in civilized communities for establishing
justice, since true respect never comes in that way, it is apparent
nevertheless that the power to enforce decorum in the courts
and obedience to their orders and just measures is so essentially
a part of the life of the courts that it would be difficult to conceive
of their usefulness or efficiency as existing without it. Therefore it
may be said generally that where due respect for the courts as
ministers of the law is wanting, a necessity arises for the use of
compulsion, not, however, so much to excite individual respect
as to compel obedience or to remove an unlawful or unwarranted
interference with the administration of justice. (Ruling Case Law,
vol. 6, p. 487.)

The power to punish for contempt is as old as the law itself, and
has been exercised from the earliest times. In England it has
been exerted when the contempt consisted of scandalizing the
sovereign or his ministers, the law-making power, or the courts.
In the American states the power to punish for contempt, so far
as the executive department and the ministers of state are
concerned, and in some degree so far as the legislative
department is concerned, is obsolete, but it has been almost
universally preserved so far as regards the judicial department.
The power which the courts have of vindicating their own
authority is a necessary incident to every court of justice,
whether of record or not; and the authority for issuing
attachments in a proper case for contempts out of court, it has
been declared, stands upon the same immemorial usage as
supports the whole fabric of the common law. . . . (Ruling Case
Law, vol. 6, p. 489.)

The undisputed importance of the orders of this court which have

been disobeyed; the loss of the prestige of the authority of the court
which issued the said orders, which loss might have been caused by
noncompliance with the same orders on the part of the respondent
Justo Lukban; the damages which might have been suffered by some
of the women illegally detained, in view of the fact that they were not
brought to Manila by the respondents to be presented before the court
and of the further fact that some of them were obliged to come to this
city at their own expense while still others were brought to Manila by
the attorney for the petitioners, who paid out of his own pocket the
transportation of the said women; and the delay which was
necessarily incurred in the resolution of the petition interposed by the
said petitioners and which was due to the fact that the said orders
were not opportunately and duly obeyed and complied with, are
circumstances which should be taken into account in imposing upon
the respondent Justo Lukban the penalty corresponding to the
contempt committed by him, a penalty which, according to section 236
of the Code of Civil Procedure, should consist of a fine not exceeding
P1,000 or imprisonment not exceeding months, or both such fine and
imprisonment. In the imposition of the penalty, there should also be
taken into consideration the special circumstance that the contempt
was committed by a public authority, the mayor of the city of Manila,
the first executive authority of the city, and consequently, the person
obliged to be the first in giving an example of obedience and respect
for the laws and the valid and just orders of the duly constituted
authorities as well as for the orders emanating from the courts of
justice, and in giving help and aid to the said courts in order that
justice may be administered with promptness and rectitude.

I believe, therefore, that instead of the fine of one hundred pesos

(P100), there should be imposed upon the respondent Justo Lukban a
fine of five hundred pesos (P500), and all the costs should be charged
against him. Lastly, I believe it to be my duty to state here that the
records of this proceeding should be transmitted to the Attorney-
General in order that, after a study of the same and deduction from
the testimony which he may deem necessary, and the proper
transmittal of the same to the fiscal of the city of Manila and to the
provincial fiscal of Davao, both the latter shall present the
corresponding informations for the prosecution and punishment of the
crimes which have been committed on the occasion when the illegal
detention of the women was carried into effect by Mayor Justo Lukban
of the city of Manila and Chief of Police Anton Hohmann, and also of
those crimes committed by reason of the same detention and while
the women were in Davao. This will be one of the means whereby the
just hope expressed in the majority decision will be realized, that is,
that in the Philippine Islands there should exist a government of laws
and not a government of men and that this decision may serve to
bulwark the fortifications of an orderly Government of laws and to
protect individual liberty from illegal encroachments.

G.R. No. 169777* April 20, 2006

SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as

Senate President, JUAN M. FLAVIER, in his capacity as Senate President Pro Tempore,
FRANCIS N. PANGILINAN, in his capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in
his capacity as Minority Leader, SENATORS RODOLFO G. BIAZON, "COMPANERA" PIA S.
CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN
PONCE ENRILE, RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S.LIM, M. A.
MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President
Gloria Macapagal-Arroyo, and anyone acting in his stead and in behalf of the President of the
Philippines, Respondents.

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

G.R. No. 169659 April 20, 2006

BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep. SATUR OCAMPO, Rep.
CRISPIN BELTRAN, Rep. RAFAEL MARIANO, Rep. LIZA MAZA, Rep. TEODORO CASINO, Rep.
JOEL VIRADOR, COURAGE represented by FERDINAND GAITE, and COUNSELS FOR THE
DEFENSE OF LIBERTIES (CODAL) represented by ATTY. REMEDIOS BALBIN, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria
Macapagal-Arroyo, Respondent.

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

G.R. No. 169660 April 20, 2006

FRANCISCO I. CHAVEZ, Petitioner,

vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary, AVELINO J. CRUZ, JR., in his
capacity as Secretary of Defense, and GENEROSO S. SENGA, in his capacity as AFP Chief of
Staff, Respondents.
x-------------------------x

G.R. No. 169667 April 20, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,

vs.
HON. EDUARDO R. ERMITA, in his capacity as Executive Secretary, Respondent.

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

G.R. No. 169834 April 20, 2006

PDP- LABAN, Petitioner,

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

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

G.R. No. 171246 April 20, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR

AMORANDO, ALICIA A. RISOS-VIDAL, FILEMON C. ABELITA III, MANUEL P. LEGASPI, J. B.
JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and the INTEGRATED
BAR FOR THE PHILIPPINES, Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

DECISION

CARPIO MORALES, J.:

A transparent government is one of the hallmarks of a truly republican state. Even in the early history
of republican thought, however, it has been recognized that the head of government may keep
certain information confidential in pursuit of the public interest. Explaining the reason for vesting
executive power in only one magistrate, a distinguished delegate to the U.S. Constitutional
Convention said: "Decision, activity, secrecy, and dispatch will generally characterize the
proceedings of one man, in a much more eminent degree than the proceedings of any greater
number; and in proportion as the number is increased, these qualities will be diminished."1

History has been witness, however, to the fact that the power to withhold information lends itself to
abuse, hence, the necessity to guard it zealously.

The present consolidated petitions for certiorari and prohibition proffer that the President has abused
such power by issuing Executive Order No. 464 (E.O. 464) last September 28, 2005. They thus pray
for its declaration as null and void for being unconstitutional.

In resolving the controversy, this Court shall proceed with the recognition that the issuance under
review has come from a co-equal branch of government, which thus entitles it to a strong
presumption of constitutionality. Once the challenged order is found to be indeed violative of the
Constitution, it is duty-bound to declare it so. For the Constitution, being the highest expression of
the sovereign will of the Filipino people, must prevail over any issuance of the government that
contravenes its mandates.

In the exercise of its legislative power, the Senate of the Philippines, through its various Senate
Committees, conducts inquiries or investigations in aid of legislation which call for, inter alia, the
attendance of officials and employees of the executive department, bureaus, and offices including
those employed in Government Owned and Controlled Corporations, the Armed Forces of the
Philippines (AFP), and the Philippine National Police (PNP).

On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to various
officials of the Executive Department for them to appear on September 29, 2005 as resource
speakers in a public hearing on the railway project of the North Luzon Railways Corporation with the
China National Machinery and Equipment Group (hereinafter North Rail Project). The public hearing
was sparked by a privilege speech of Senator Juan Ponce Enrile urging the Senate to investigate
the alleged overpricing and other unlawful provisions of the contract covering the North Rail Project.

The Senate Committee on National Defense and Security likewise issued invitations2 dated
September 22, 2005 to the following officials of the AFP: the Commanding General of the Philippine
Army, Lt. Gen. Hermogenes C. Esperon; Inspector General of the AFP Vice Admiral Mateo M.
Mayuga; Deputy Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the
Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant Superintendent of the
Philippine Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and Assistant Commandant,
Corps of Cadets of the PMA, Col. Alexander F. Balutan, for them to attend as resource persons in a
public hearing scheduled on September 28, 2005 on the following: (1) Privilege Speech of Senator
Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled "Bunye has Provided Smoking Gun or
has Opened a Can of Worms that Show Massive Electoral Fraud in the Presidential Election of May
2005"; (2) Privilege Speech of Senator Jinggoy E. Estrada delivered on July 26, 2005 entitled "The
Philippines as the Wire-Tapping Capital of the World"; (3) Privilege Speech of Senator Rodolfo
Biazon delivered on August 1, 2005 entitled "Clear and Present Danger"; (4) Senate Resolution No.
285 filed by Senator Maria Ana Consuelo Madrigal Resolution Directing the Committee on National
Defense and Security to Conduct an Inquiry, in Aid of Legislation, and in the National Interest, on the
Role of the Military in the So-called "Gloriagate Scandal"; and (5) Senate Resolution No. 295 filed by
Senator Biazon Resolution Directing the Committee on National Defense and Security to Conduct
an Inquiry, in Aid of Legislation, on the Wire-Tapping of the President of the Philippines.

Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of Staff,
General Generoso S. Senga who, by letter3 dated September 27, 2005, requested for its
postponement "due to a pressing operational situation that demands [his utmost personal attention"
while "some of the invited AFP officers are currently attending to other urgent operational matters."

On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary
Eduardo R. Ermita a letter4 dated September 27, 2005 "respectfully request[ing] for the
postponement of the hearing [regarding the NorthRail project] to which various officials of the
Executive Department have been invited" in order to "afford said officials ample time and opportunity
to study and prepare for the various issues so that they may better enlighten the Senate Committee
on its investigation."

Senate President Drilon, however, wrote5 Executive Secretary Ermita that the Senators "are unable
to accede to [his request]" as it "was sent belatedly" and "[a]ll preparations and arrangements as well
as notices to all resource persons were completed [the previous] week."
Senate President Drilon likewise received on September 28, 2005 a letter6 from the President of the
North Luzon Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the NorthRail
project be postponed or cancelled until a copy of the report of the UP Law Center on the contract
agreements relative to the project had been secured.

On September 28, 2005, the President issued E.O. 464, "Ensuring Observance of the Principle of
Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of
Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and
For Other Purposes,"7 which, pursuant to Section 6 thereof, took effect immediately. The salient
provisions of the Order are as follows:

SECTION 1. Appearance by Heads of Departments Before Congress. In accordance with Article

VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of
powers between co-equal branches of the government, all heads of departments of the Executive
Branch of the government shall secure the consent of the President prior to appearing before either
House of Congress.

When the security of the State or the public interest so requires and the President so states in
writing, the appearance shall only be conducted in executive session.

SECTION. 2. Nature, Scope and Coverage of Executive Privilege.

(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the
operation of government and rooted in the separation of powers under the Constitution (Almonte vs.
Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct
and Ethical Standards for Public Officials and Employees provides that Public Officials and
Employees shall not use or divulge confidential or classified information officially known to them by
reason of their office and not made available to the public to prejudice the public interest.

Executive privilege covers all confidential or classified information between the President and the
public officers covered by this executive order, including:

Conversations and correspondence between the President and the public official covered by this
executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July 2002);

Military, diplomatic and other national security matters which in the interest of national security
should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential
Commission on Good Government, G.R. No. 130716, 9 December 1998).

Information between inter-government agencies prior to the conclusion of treaties and executive
agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9
December 1998);

Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good

Government, G.R. No. 130716, 9 December 1998);

Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No.
133250, 9 July 2002).

(b) Who are covered. The following are covered by this executive order:
Senior officials of executive departments who in the judgment of the department heads are covered
by the executive privilege;

Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the
judgment of the Chief of Staff are covered by the executive privilege;

Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other
officers who in the judgment of the Chief of the PNP are covered by the executive privilege;

Senior national security officials who in the judgment of the National Security Adviser are covered by
the executive privilege; and

Such other officers as may be determined by the President.

SECTION 3. Appearance of Other Public Officials Before Congress. All public officials enumerated
in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either
House of Congress to ensure the observance of the principle of separation of powers, adherence to
the rule on executive privilege and respect for the rights of public officials appearing in inquiries in
aid of legislation. (Emphasis and underscoring supplied)

Also on September 28, 2005, Senate President Drilon received from Executive Secretary Ermita a
copy of E.O. 464, and another letter8 informing him "that officials of the Executive Department invited
to appear at the meeting [regarding the NorthRail project] will not be able to attend the same without
the consent of the President, pursuant to [E.O. 464]" and that "said officials have not secured the
required consent from the President." On even date which was also the scheduled date of the
hearing on the alleged wiretapping, Gen. Senga sent a letter9 to Senator Biazon, Chairperson of the
Committee on National Defense and Security, informing him "that per instruction of [President
Arroyo], thru the Secretary of National Defense, no officer of the [AFP] is authorized to appear
before any Senate or Congressional hearings without seeking a written approval from the President"
and "that no approval has been granted by the President to any AFP officer to appear before the
public hearing of the Senate Committee on National Defense and Security scheduled [on] 28
September 2005."

Despite the communications received from Executive Secretary Ermita and Gen. Senga, the
investigation scheduled by the Committee on National Defense and Security pushed through, with
only Col. Balutan and Brig. Gen. Gudani among all the AFP officials invited attending.

For defying President Arroyos order barring military personnel from testifying before legislative
inquiries without her approval, Brig. Gen. Gudani and Col. Balutan were relieved from their military
posts and were made to face court martial proceedings.

As to the NorthRail project hearing scheduled on September 29, 2005, Executive Secretary Ermita,
citing E.O. 464, sent letter of regrets, in response to the invitations sent to the following government
officials: Light Railway Transit Authority Administrator Melquiades Robles, Metro Rail Transit
Authority Administrator Roberto Lastimoso, Department of Justice (DOJ) Chief State Counsel
Ricardo V. Perez, then Presidential Legal Counsel Merceditas Gutierrez, Department of
Transportation and Communication (DOTC) Undersecretary Guiling Mamonding, DOTC Secretary
Leandro Mendoza, Philippine National Railways General Manager Jose Serase II, Monetary Board
Member Juanita Amatong, Bases Conversion Development Authority Chairperson Gen. Narciso
Abaya and Secretary Romulo L. Neri.10 NorthRail President Cortes sent personal regrets likewise
citing E.O. 464.11
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and 169667, for
certiorari and prohibition, were filed before this Court challenging the constitutionality of E.O. 464.

In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives Members Satur
Ocampo, Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage,
an organization of government employees, and Counsels for the Defense of Liberties (CODAL), a
group of lawyers dedicated to the promotion of justice, democracy and peace, all claiming to have
standing to file the suit because of the transcendental importance of the issues they posed, pray, in
their petition that E.O. 464 be declared null and void for being unconstitutional; that respondent
Executive Secretary Ermita, in his capacity as Executive Secretary and alter-ego of President
Arroyo, be prohibited from imposing, and threatening to impose sanctions on officials who appear
before Congress due to congressional summons. Additionally, petitioners claim that E.O. 464
infringes on their rights and impedes them from fulfilling their respective obligations. Thus, Bayan
Muna alleges that E.O. 464 infringes on its right as a political party entitled to participate in
governance; Satur Ocampo, et al. allege that E.O. 464 infringes on their rights and duties as
members of Congress to conduct investigation in aid of legislation and conduct oversight functions in
the implementation of laws; Courage alleges that the tenure of its members in public office is
predicated on, and threatened by, their submission to the requirements of E.O. 464 should they be
summoned by Congress; and CODAL alleges that its members have a sworn duty to uphold the rule
of law, and their rights to information and to transparent governance are threatened by the
imposition of E.O. 464.

In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional rights as a citizen,
taxpayer and law practitioner, are affected by the enforcement of E.O. 464, prays in his petition that
E.O. 464 be declared null and void for being unconstitutional.

In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging that as a coalition of 17
legal resource non-governmental organizations engaged in developmental lawyering and work with
the poor and marginalized sectors in different parts of the country, and as an organization of citizens
of the Philippines and a part of the general public, it has legal standing to institute the petition to
enforce its constitutional right to information on matters of public concern, a right which was denied
to the public by E.O. 464,13 prays, that said order be declared null and void for being unconstitutional
and that respondent Executive Secretary Ermita be ordered to cease from implementing it.

On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital interest in the
resolution of the issue of the validity of E.O. 464 for it stands to suffer imminent and material injury,
as it has already sustained the same with its continued enforcement since it directly interferes with
and impedes the valid exercise of the Senates powers and functions and conceals information of
great public interest and concern, filed its petition for certiorari and prohibition, docketed as G.R. No.
169777 and prays that E.O. 464 be declared unconstitutional.

On October 14, 2005, PDP-Laban, a registered political party with members duly elected into the
Philippine Senate and House of Representatives, filed a similar petition for certiorari and prohibition,
docketed as G.R. No. 169834, alleging that it is affected by the challenged E.O. 464 because it
hampers its legislative agenda to be implemented through its members in Congress, particularly in
the conduct of inquiries in aid of legislation and transcendental issues need to be resolved to avert a
constitutional crisis between the executive and legislative branches of the government.

Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his invitation to Gen.
Senga for him and other military officers to attend the hearing on the alleged wiretapping scheduled
on February 10, 2005. Gen. Senga replied, however, by letter15 dated February 8, 2006, that
"[p]ursuant to Executive Order No. 464, th[e] Headquarters requested for a clearance from the
President to allow [them] to appear before the public hearing" and that "they will attend once [their]
request is approved by the President." As none of those invited appeared, the hearing on February
10, 2006 was cancelled.16

In another investigation conducted jointly by the Senate Committee on Agriculture and Food and the
Blue Ribbon Committee on the alleged mismanagement and use of the fertilizer fund under the
Ginintuang Masaganang Ani program of the Department of Agriculture (DA), several Cabinet officials
were invited to the hearings scheduled on October 5 and 26, November 24 and December 12, 2005
but most of them failed to attend, DA Undersecretary Belinda Gonzales, DA Assistant Secretary
Felix Jose Montes, Fertilizer and Pesticide Authority Executive Director Norlito R. Gicana,17 and
those from the Department of Budget and Management18 having invoked E.O. 464.

In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary and
Presidential Spokesperson Ignacio R. Bunye,19 DOJ Secretary Raul M. Gonzalez20 and Department
of Interior and Local Government Undersecretary Marius P. Corpus21 communicated their inability to
attend due to lack of appropriate clearance from the President pursuant to E.O. 464. During the
February 13, 2005 budget hearing, however, Secretary Bunye was allowed to attend by Executive
Secretary Ermita.

On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board of
Governors of the Integrated Bar of the Philippines, as taxpayers, and the Integrated Bar of the
Philippines as the official organization of all Philippine lawyers, all invoking their constitutional right to
be informed on matters of public interest, filed their petition for certiorari and prohibition, docketed as
G.R. No. 171246, and pray that E.O. 464 be declared null and void.

All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents from
implementing, enforcing, and observing E.O. 464.

In the oral arguments on the petitions conducted on February 21, 2006, the following substantive
issues were ventilated: (1) whether respondents committed grave abuse of discretion in
implementing E.O. 464 prior to its publication in the Official Gazette or in a newspaper of general
circulation; and (2) whether E.O. 464 violates the following provisions of the Constitution: Art. II, Sec.
28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1,
and Art. XIII, Sec. 16. The procedural issue of whether there is an actual case or controversy that
calls for judicial review was not taken up; instead, the parties were instructed to discuss it in their
respective memoranda.

After the conclusion of the oral arguments, the parties were directed to submit their respective
memoranda, paying particular attention to the following propositions: (1) that E.O. 464 is, on its face,
unconstitutional; and (2) assuming that it is not, it is unconstitutional as applied in four instances,
namely: (a) the so called Fertilizer scam; (b) the NorthRail investigation (c) the Wiretapping activity
of the ISAFP; and (d) the investigation on the Venable contract.22

Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda on March 7, 2006,
while those in G.R. No. 16966725 and G.R. No. 16983426 filed theirs the next day or on March 8,
2006. Petitioners in G.R. No. 171246 did not file any memorandum.

Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file
memorandum27 was granted, subsequently filed a manifestation28 dated March 14, 2006 that it would
no longer file its memorandum in the interest of having the issues resolved soonest, prompting this
Court to issue a Resolution reprimanding them.29
Petitioners submit that E.O. 464 violates the following constitutional provisions:

Art. VI, Sec. 2130

Art. VI, Sec. 2231

Art. VI, Sec. 132

Art. XI, Sec. 133

Art. III, Sec. 734

Art. III, Sec. 435

Art. XIII, Sec. 16 36

Art. II, Sec. 2837

Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated
memorandum38 on March 13, 2006 for the dismissal of the petitions for lack of merit.

The Court synthesizes the issues to be resolved as follows:

1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;

2. Whether E.O. 464 violates the right of the people to information on matters of public
concern; and

3. Whether respondents have committed grave abuse of discretion when they implemented
E.O. 464 prior to its publication in a newspaper of general circulation.

Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of whether
the requisites for a valid exercise of the Courts power of judicial review are present is in order.

Like almost all powers conferred by the Constitution, the power of judicial review is subject to
limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial
power; (2) the person challenging the act must have standing to challenge the validity of the subject
act or issuance; otherwise stated, he must have a personal and substantial interest in the case such
that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must
be the very lis mota of the case.39

Except with respect to the requisites of standing and existence of an actual case or controversy
where the disagreement between the parties lies, discussion of the rest of the requisites shall be
omitted.

Standing
Respondents, through the Solicitor General, assert that the allegations in G.R. Nos. 169659, 169660
and 169667 make it clear that they, adverting to the non-appearance of several officials of the
executive department in the investigations called by the different committees of the Senate, were
brought to vindicate the constitutional duty of the Senate or its different committees to conduct
inquiry in aid of legislation or in the exercise of its oversight functions. They maintain that
Representatives Ocampo et al. have not shown any specific prerogative, power, and privilege of the
House of Representatives which had been effectively impaired by E.O. 464, there being no mention
of any investigation called by the House of Representatives or any of its committees which was
aborted due to the implementation of E.O. 464.

As for Bayan Munas alleged interest as a party-list representing the marginalized and
underrepresented, and that of the other petitioner groups and individuals who profess to have
standing as advocates and defenders of the Constitution, respondents contend that such interest
falls short of that required to confer standing on them as parties "injured-in-fact."40

Respecting petitioner Chavez, respondents contend that Chavez may not claim an interest as a
taxpayer for the implementation of E.O. 464 does not involve the exercise of taxing or spending
power.41

With regard to the petition filed by the Senate, respondents argue that in the absence of a personal
or direct injury by reason of the issuance of E.O. 464, the Senate and its individual members are not
the proper parties to assail the constitutionality of E.O. 464.

Invoking this Courts ruling in National Economic Protectionism Association v. Ongpin42 and
Valmonte v. Philippine Charity Sweepstakes Office,43 respondents assert that to be considered a
proper party, one must have a personal and substantial interest in the case, such that he has
sustained or will sustain direct injury due to the enforcement of E.O. 464.44

That the Senate of the Philippines has a fundamental right essential not only for intelligent public
decision-making in a democratic system, but more especially for sound legislation45 is not disputed.
E.O. 464, however, allegedly stifles the ability of the members of Congress to access information
that is crucial to law-making.46 Verily, the Senate, including its individual members, has a substantial
and direct interest over the outcome of the controversy and is the proper party to assail the
constitutionality of E.O. 464. Indeed, legislators have standing to maintain inviolate the prerogative,
powers and privileges vested by the Constitution in their office and are allowed to sue to question
the validity of any official action which they claim infringes their prerogatives as legislators.47

In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro Casino (Bayan
Muna), Joel Virador (Bayan Muna), Crispin Beltran (Anakpawis), Rafael Mariano (Anakpawis), and
Liza Maza (Gabriela) are allowed to sue to question the constitutionality of E.O. 464, the absence of
any claim that an investigation called by the House of Representatives or any of its committees was
aborted due to the implementation of E.O. 464 notwithstanding, it being sufficient that a claim is
made that E.O. 464 infringes on their constitutional rights and duties as members of Congress to
conduct investigation in aid of legislation and conduct oversight functions in the implementation of
laws.

The national political party, Bayan Muna, likewise meets the standing requirement as it obtained
three seats in the House of Representatives in the 2004 elections and is, therefore, entitled to
participate in the legislative process consonant with the declared policy underlying the party list
system of affording citizens belonging to marginalized and underrepresented sectors, organizations
and parties who lack well-defined political constituencies to contribute to the formulation and
enactment of legislation that will benefit the nation.48
As Bayan Muna and Representatives Ocampo et al. have the standing to file their petitions, passing
on the standing of their co-petitioners Courage and Codal is rendered unnecessary.49

In filing their respective petitions, Chavez, the ALG which claims to be an organization of citizens,
and the incumbent members of the IBP Board of Governors and the IBP in behalf of its lawyer
members,50 invoke their constitutional right to information on matters of public concern, asserting that
the right to information, curtailed and violated by E.O. 464, is essential to the effective exercise of
other constitutional rights51 and to the maintenance of the balance of power among the three
branches of the government through the principle of checks and balances.52

It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the
constitutionality of laws, presidential decrees, orders, and other regulations, must be direct and
personal. In Franciso v. House of Representatives,53 this Court held that when the proceeding
involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of
personal interest.

As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in view of the
transcendental issues raised in its petition which this Court needs to resolve in order to avert a
constitutional crisis. For it to be accorded standing on the ground of transcendental importance,
however, it must establish (1) the character of the funds (that it is public) or other assets involved in
the case, (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by
the public respondent agency or instrumentality of the government, and (3) the lack of any party with
a more direct and specific interest in raising the questions being raised.54 The first and last
determinants not being present as no public funds or assets are involved and petitioners in G.R.
Nos. 169777 and 169659 have direct and specific interests in the resolution of the controversy,
petitioner PDP-Laban is bereft of standing to file its petition. Its allegation that E.O. 464 hampers its
legislative agenda is vague and uncertain, and at best is only a "generalized interest" which it shares
with the rest of the political parties. Concrete injury, whether actual or threatened, is that
indispensable element of a dispute which serves in part to cast it in a form traditionally capable of
judicial resolution.55 In fine, PDP-Labans alleged interest as a political party does not suffice to
clothe it with legal standing.

Actual Case or Controversy

Petitioners assert that an actual case exists, they citing the absence of the executive officials invited
by the Senate to its hearings after the issuance of E.O. 464, particularly those on the NorthRail
project and the wiretapping controversy.

Respondents counter that there is no case or controversy, there being no showing that President
Arroyo has actually withheld her consent or prohibited the appearance of the invited officials.56 These
officials, they claim, merely communicated to the Senate that they have not yet secured the consent
of the President, not that the President prohibited their attendance.57 Specifically with regard to the
AFP officers who did not attend the hearing on September 28, 2005, respondents claim that the
instruction not to attend without the Presidents consent was based on its role as Commander-in-
Chief of the Armed Forces, not on E.O. 464.

Respondents thus conclude that the petitions merely rest on an unfounded apprehension that the
President will abuse its power of preventing the appearance of officials before Congress, and that
such apprehension is not sufficient for challenging the validity of E.O. 464.

The Court finds respondents assertion that the President has not withheld her consent or prohibited
the appearance of the officials concerned immaterial in determining the existence of an actual case
or controversy insofar as E.O. 464 is concerned. For E.O. 464 does not require either a deliberate
withholding of consent or an express prohibition issuing from the President in order to bar officials
from appearing before Congress.

As the implementation of the challenged order has already resulted in the absence of officials invited
to the hearings of petitioner Senate of the Philippines, it would make no sense to wait for any further
event before considering the present case ripe for adjudication. Indeed, it would be sheer
abandonment of duty if this Court would now refrain from passing on the constitutionality of E.O.
464.

Constitutionality of E.O. 464

E.O. 464, to the extent that it bars the appearance of executive officials before Congress, deprives
Congress of the information in the possession of these officials. To resolve the question of whether
such withholding of information violates the Constitution, consideration of the general power of
Congress to obtain information, otherwise known as the power of inquiry, is in order.

The power of inquiry

The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution
which reads:

SECTION 21. The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The
rights of persons appearing in or affected by such inquiries shall be respected. (Underscoring
supplied)

This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that, in
the latter, it vests the power of inquiry in the unicameral legislature established therein the
Batasang Pambansa and its committees.

The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno,58 a
case decided in 1950 under that Constitution, the Court already recognized that the power of inquiry
is inherent in the power to legislate.

Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and
Tambobong Estates by the Rural Progress Administration. Arnault, who was considered a leading
witness in the controversy, was called to testify thereon by the Senate. On account of his refusal to
answer the questions of the senators on an important point, he was, by resolution of the Senate,
detained for contempt. Upholding the Senates power to punish Arnault for contempt, this Court held:

Although there is no provision in the Constitution expressly investing either House of Congress with
power to make investigations and exact testimony to the end that it may exercise its legislative
functions advisedly and effectively, such power is so far incidental to the legislative function as to be
implied. In other words, the power of inquiry with process to enforce it is an essential and
appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or
effectively in the absence of information respecting the conditions which the legislation is intended to
affect or change; and where the legislative body does not itself possess the requisite information
which is not infrequently true recourse must be had to others who do possess it. Experience has
shown that mere requests for such information are often unavailing, and also that information which
is volunteered is not always accurate or complete; so some means of compulsion is essential to
obtain what is needed.59 . . . (Emphasis and underscoring supplied)
That this power of inquiry is broad enough to cover officials of the executive branch may be deduced
from the same case. The power of inquiry, the Court therein ruled, is co-extensive with the power to
legislate.60 The matters which may be a proper subject of legislation and those which may be a
proper subject of investigation are one. It follows that the operation of government, being a legitimate
subject for legislation, is a proper subject for investigation.

Thus, the Court found that the Senate investigation of the government transaction involved in Arnault
was a proper exercise of the power of inquiry. Besides being related to the expenditure of public
funds of which Congress is the guardian, the transaction, the Court held, "also involved government
agencies created by Congress and officers whose positions it is within the power of Congress to
regulate or even abolish."

Since Congress has authority to inquire into the operations of the executive branch, it would be
incongruous to hold that the power of inquiry does not extend to executive officials who are the most
familiar with and informed on executive operations.

As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the
necessity of information in the legislative process. If the information possessed by executive officials
on the operation of their offices is necessary for wise legislation on that subject, by parity of
reasoning, Congress has the right to that information and the power to compel the disclosure
thereof.

As evidenced by the American experience during the so-called "McCarthy era," however, the right of
Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than
executive or judicial power. It may thus be subjected to judicial review pursuant to the Courts
certiorari powers under Section 1, Article VIII of the Constitution.

For one, as noted in Bengzon v. Senate Blue Ribbon Committee,61 the inquiry itself might not
properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry
could not usurp judicial functions. Parenthetically, one possible way for Congress to avoid such a
result as occurred in Bengzon is to indicate in its invitations to the public officials concerned, or to
any person for that matter, the possible needed statute which prompted the need for the inquiry.
Given such statement in its invitations, along with the usual indication of the subject of inquiry and
the questions relative to and in furtherance thereof, there would be less room for speculation on the
part of the person invited on whether the inquiry is in aid of legislation.

Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of
inquiry. The provision requires that the inquiry be done in accordance with the Senate or Houses
duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry
conducted without duly published rules of procedure. Section 21 also mandates that the rights of
persons appearing in or affected by such inquiries be respected, an imposition that obligates
Congress to adhere to the guarantees in the Bill of Rights.

These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons
affected, even if they belong to the executive branch. Nonetheless, there may be exceptional
circumstances, none appearing to obtain at present, wherein a clear pattern of abuse of the
legislative power of inquiry might be established, resulting in palpable violations of the rights
guaranteed to members of the executive department under the Bill of Rights. In such instances,
depending on the particulars of each case, attempts by the Executive Branch to forestall these
abuses may be accorded judicial sanction.
Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of
inquiry, which exemptions fall under the rubric of "executive privilege." Since this term figures
prominently in the challenged order, it being mentioned in its provisions, its preambular
clauses,62 and in its very title, a discussion of executive privilege is crucial for determining the
constitutionality of E.O. 464.

Executive privilege

The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the
promulgation of the 1986 Constitution.63 Being of American origin, it is best understood in light of
how it has been defined and used in the legal literature of the United States.

Schwartz defines executive privilege as "the power of the Government to withhold information from
the public, the courts, and the Congress."64 Similarly, Rozell defines it as "the right of the President
and high-level executive branch officers to withhold information from Congress, the courts, and
ultimately the public."65

Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has encompassed claims of
varying kinds.67Tribe, in fact, comments that while it is customary to employ the phrase "executive
privilege," it may be more accurate to speak of executive privileges "since presidential refusals to
furnish information may be actuated by any of at least three distinct kinds of considerations, and may
be asserted, with differing degrees of success, in the context of either judicial or legislative
investigations."

One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S. Presidents,
beginning with Washington, on the ground that the information is of such nature that its disclosure
would subvert crucial military or diplomatic objectives. Another variety is the informers privilege, or
the privilege of the Government not to disclose the identity of persons who furnish information of
violations of law to officers charged with the enforcement of that law. Finally, a generic privilege for
internal deliberations has been said to attach to intragovernmental documents reflecting advisory
opinions, recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated. 68

Tribes comment is supported by the ruling in In re Sealed Case, thus:

Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist
disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique
role and responsibilities of the executive branch of our government. Courts ruled early that the
executive had a right to withhold documents that might reveal military or state secrets. The courts
have also granted the executive a right to withhold the identity of government informers in some
circumstances and a qualified right to withhold information related to pending investigations. x x
x"69 (Emphasis and underscoring supplied)

The entry in Blacks Law Dictionary on "executive privilege" is similarly instructive regarding the
scope of the doctrine.

This privilege, based on the constitutional doctrine of separation of powers, exempts the executive
from disclosure requirements applicable to the ordinary citizen or organization where such
exemption is necessary to the discharge of highly important executive responsibilities involved in
maintaining governmental operations, and extends not only to military and diplomatic secrets but
also to documents integral to an appropriate exercise of the executive domestic decisional and
policy making functions, that is, those documents reflecting the frank expression necessary in intra-
governmental advisory and deliberative communications.70 (Emphasis and underscoring supplied)

That a type of information is recognized as privileged does not, however, necessarily mean that it
would be considered privileged in all instances. For in determining the validity of a claim of privilege,
the question that must be asked is not only whether the requested information falls within one of the
traditional privileges, but also whether that privilege should be honored in a given procedural
setting.71

The leading case on executive privilege in the United States is U.S. v. Nixon, 72 decided in 1974. In
issue in that case was the validity of President Nixons claim of executive privilege against a
subpoena issued by a district court requiring the production of certain tapes and documents relating
to the Watergate investigations. The claim of privilege was based on the Presidents general interest
in the confidentiality of his conversations and correspondence. The U.S. Court held that while there
is no explicit reference to a privilege of confidentiality in the U.S. Constitution, it is constitutionally
based to the extent that it relates to the effective discharge of a Presidents powers. The Court,
nonetheless, rejected the Presidents claim of privilege, ruling that the privilege must be balanced
against the public interest in the fair administration of criminal justice. Notably, the Court was careful
to clarify that it was not there addressing the issue of claims of privilege in a civil litigation or against
congressional demands for information.

Cases in the U.S. which involve claims of executive privilege against Congress are rare.73 Despite
frequent assertion of the privilege to deny information to Congress, beginning with President
Washingtons refusal to turn over treaty negotiation records to the House of Representatives, the
U.S. Supreme Court has never adjudicated the issue.74 However, the U.S. Court of Appeals for the
District of Columbia Circuit, in a case decided earlier in the same year as Nixon, recognized the
Presidents privilege over his conversations against a congressional subpoena.75 Anticipating the
balancing approach adopted by the U.S. Supreme Court in Nixon, the Court of Appeals weighed the
public interest protected by the claim of privilege against the interest that would be served by
disclosure to the Committee. Ruling that the balance favored the President, the Court declined to
enforce the subpoena. 76

In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v.
Vasquez.77Almonte used the term in reference to the same privilege subject of Nixon. It quoted the
following portion of the Nixon decision which explains the basis for the privilege:

"The expectation of a President to the confidentiality of his conversations and correspondences, like
the claim of confidentiality of judicial deliberations, for example, has all the values to which we
accord deference for the privacy of all citizens and, added to those values, is the necessity for
protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential
decision-making. A President and those who assist him must be free to explore alternatives in the
process of shaping policies and making decisions and to do so in a way many would be unwilling to
express except privately. These are the considerations justifying a presumptive privilege for
Presidential communications. The privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the Constitution x x x " (Emphasis and
underscoring supplied)

Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein
petitioners. It did not involve, as expressly stated in the decision, the right of the people to
information.78 Nonetheless, the Court recognized that there are certain types of information which the
government may withhold from the public, thus acknowledging, in substance if not in name, that
executive privilege may be claimed against citizens demands for information.
In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the common law holding that
there is a "governmental privilege against public disclosure with respect to state secrets regarding
military, diplomatic and other national security matters."80 The same case held that closed-door
Cabinet meetings are also a recognized limitation on the right to information.

Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right to information does
not extend to matters recognized as "privileged information under the separation of powers,"82 by
which the Court meant Presidential conversations, correspondences, and discussions in closed-door
Cabinet meetings. It also held that information on military and diplomatic secrets and those affecting
national security, and information on investigations of crimes by law enforcement agencies before
the prosecution of the accused were exempted from the right to information.

From the above discussion on the meaning and scope of executive privilege, both in the United
States and in this jurisdiction, a clear principle emerges. Executive privilege, whether asserted
against Congress, the courts, or the public, is recognized only in relation to certain types of
information of a sensitive character. While executive privilege is a constitutional concept, a claim
thereof may be valid or not depending on the ground invoked to justify it and the context in which it is
made. Noticeably absent is any recognition that executive officials are exempt from the duty to
disclose information by the mere fact of being executive officials. Indeed, the extraordinary character
of the exemptions indicates that the presumption inclines heavily against executive secrecy and in
favor of disclosure.

Validity of Section 1

Section 1 is similar to Section 3 in that both require the officials covered by them to secure the
consent of the President prior to appearing before Congress. There are significant differences
between the two provisions, however, which constrain this Court to discuss the validity of these
provisions separately.

Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior
determination by any official whether they are covered by E.O. 464. The President herself has,
through the challenged order, made the determination that they are. Further, unlike also Section 3,
the coverage of department heads under Section 1 is not made to depend on the department heads
possession of any information which might be covered by executive privilege. In fact, in marked
contrast to Section 3 vis--vis Section 2, there is no reference to executive privilege at all. Rather,
the required prior consent under Section 1 is grounded on Article VI, Section 22 of the Constitution
on what has been referred to as the question hour.

SECTION 22. The heads of departments may upon their own initiative, with the consent of the
President, or upon the request of either House, as the rules of each House shall provide, appear
before and be heard by such House on any matter pertaining to their departments. Written questions
shall be submitted to the President of the Senate or the Speaker of the House of Representatives at
least three days before their scheduled appearance. Interpellations shall not be limited to written
questions, but may cover matters related thereto. When the security of the State or the public
interest so requires and the President so states in writing, the appearance shall be conducted in
executive session.

Determining the validity of Section 1 thus requires an examination of the meaning of Section 22 of
Article VI. Section 22 which provides for the question hour must be interpreted vis--vis Section 21
which provides for the power of either House of Congress to "conduct inquiries in aid of legislation."
As the following excerpt of the deliberations of the Constitutional Commission shows, the framers
were aware that these two provisions involved distinct functions of Congress.
MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the Question Hour]
yesterday, I noticed that members of the Cabinet cannot be compelled anymore to appear before the
House of Representatives or before the Senate. I have a particular problem in this regard, Madam
President, because in our experience in the Regular Batasang Pambansa as the Gentleman
himself has experienced in the interim Batasang Pambansa one of the most competent inputs that
we can put in our committee deliberations, either in aid of legislation or in congressional
investigations, is the testimonies of Cabinet ministers. We usually invite them, but if they do not
come and it is a congressional investigation, we usually issue subpoenas.

I want to be clarified on a statement made by Commissioner Suarez when he said that the fact that
the Cabinet ministers may refuse to come to the House of Representatives or the Senate [when
requested under Section 22] does not mean that they need not come when they are invited or
subpoenaed by the committee of either House when it comes to inquiries in aid of legislation or
congressional investigation. According to Commissioner Suarez, that is allowed and their presence
can be had under Section 21. Does the gentleman confirm this, Madam President?

MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to what was
originally the Question Hour, whereas, Section 21 would refer specifically to inquiries in aid of
legislation, under which anybody for that matter, may be summoned and if he refuses, he can be
held in contempt of the House.83 (Emphasis and underscoring supplied)

A distinction was thus made between inquiries in aid of legislation and the question hour. While
attendance was meant to be discretionary in the question hour, it was compulsory in inquiries in aid
of legislation. The reference to Commissioner Suarez bears noting, he being one of the proponents
of the amendment to make the appearance of department heads discretionary in the question hour.

So clearly was this distinction conveyed to the members of the Commission that the Committee on
Style, precisely in recognition of this distinction, later moved the provision on question hour from its
original position as Section 20 in the original draft down to Section 31, far from the provision on
inquiries in aid of legislation. This gave rise to the following exchange during the deliberations:

MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style] We now go, Mr.
Presiding Officer, to the Article on Legislative and may I request the chairperson of the Legislative
Department, Commissioner Davide, to give his reaction.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized. |avv phi|.net

MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the Question Hour. I
propose that instead of putting it as Section 31, it should follow Legislative Inquiries.

THE PRESIDING OFFICER. What does the committee say?

MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer.

MR. MAAMBONG. Actually, we considered that previously when we sequenced this but we
reasoned that in Section 21, which is Legislative Inquiry, it is actually a power of Congress in terms
of its own lawmaking; whereas, a Question Hour is not actually a power in terms of its own
lawmaking power because in Legislative Inquiry, it is in aid of legislation. And so we put Question
Hour as Section 31. I hope Commissioner Davide will consider this.
MR. DAVIDE. The Question Hour is closely related with the legislative power, and it is precisely as a
complement to or a supplement of the Legislative Inquiry. The appearance of the members of
Cabinet would be very, very essential not only in the application of check and balance but also, in
effect, in aid of legislation.

MR. MAAMBONG. After conferring with the committee, we find merit in the suggestion of
Commissioner Davide. In other words, we are accepting that and so this Section 31 would now
become Section 22. Would it be, Commissioner Davide?

MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)

Consistent with their statements earlier in the deliberations, Commissioners Davide and Maambong
proceeded from the same assumption that these provisions pertained to two different functions of
the legislature. Both Commissioners understood that the power to conduct inquiries in aid of
legislation is different from the power to conduct inquiries during the question hour. Commissioner
Davides only concern was that the two provisions on these distinct powers be placed closely
together, they being complementary to each other. Neither Commissioner considered them as
identical functions of Congress.

The foregoing opinion was not the two Commissioners alone. From the above-quoted exchange,
Commissioner Maambongs committee the Committee on Style shared the view that the two
provisions reflected distinct functions of Congress. Commissioner Davide, on the other hand, was
speaking in his capacity as Chairman of the Committee on the Legislative Department. His views
may thus be presumed as representing that of his Committee.

In the context of a parliamentary system of government, the "question hour" has a definite meaning.
It is a period of confrontation initiated by Parliament to hold the Prime Minister and the other
ministers accountable for their acts and the operation of the government,85 corresponding to what is
known in Britain as the question period. There was a specific provision for a question hour in the
1973 Constitution86 which made the appearance of ministers mandatory. The same perfectly
conformed to the parliamentary system established by that Constitution, where the ministers are also
members of the legislature and are directly accountable to it.

An essential feature of the parliamentary system of government is the immediate accountability of

the Prime Minister and the Cabinet to the National Assembly. They shall be responsible to the
National Assembly for the program of government and shall determine the guidelines of national
policy. Unlike in the presidential system where the tenure of office of all elected officials cannot be
terminated before their term expired, the Prime Minister and the Cabinet remain in office only as long
as they enjoy the confidence of the National Assembly. The moment this confidence is lost the Prime
Minister and the Cabinet may be changed.87

The framers of the 1987 Constitution removed the mandatory nature of such appearance during the
question hour in the present Constitution so as to conform more fully to a system of separation of
powers.88 To that extent, the question hour, as it is presently understood in this jurisdiction, departs
from the question period of the parliamentary system. That department heads may not be required to
appear in a question hour does not, however, mean that the legislature is rendered powerless to
elicit information from them in all circumstances. In fact, in light of the absence of a mandatory
question period, the need to enforce Congress right to executive information in the performance of
its legislative function becomes more imperative. As Schwartz observes:

Indeed, if the separation of powers has anything to tell us on the subject under discussion, it is that
the Congress has the right to obtain information from any source even from officials of
departments and agencies in the executive branch. In the United States there is, unlike the situation
which prevails in a parliamentary system such as that in Britain, a clear separation between the
legislative and executive branches. It is this very separation that makes the congressional right to
obtain information from the executive so essential, if the functions of the Congress as the elected
representatives of the people are adequately to be carried out. The absence of close rapport
between the legislative and executive branches in this country, comparable to those which exist
under a parliamentary system, and the nonexistence in the Congress of an institution such as the
British question period have perforce made reliance by the Congress upon its right to obtain
information from the executive essential, if it is intelligently to perform its legislative tasks. Unless the
Congress possesses the right to obtain executive information, its power of oversight of
administration in a system such as ours becomes a power devoid of most of its practical content,
since it depends for its effectiveness solely upon information parceled out ex gratia by the
executive.89 (Emphasis and underscoring supplied)

Sections 21 and 22, therefore, while closely related and complementary to each other, should not be
considered as pertaining to the same power of Congress. One specifically relates to the power to
conduct inquiries in aid of legislation, the aim of which is to elicit information that may be used for
legislation, while the other pertains to the power to conduct a question hour, the objective of which is
to obtain information in pursuit of Congress oversight function.

When Congress merely seeks to be informed on how department heads are implementing the
statutes which it has issued, its right to such information is not as imperative as that of the President
to whom, as Chief Executive, such department heads must give a report of their performance as a
matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that
Congress may only request their appearance. Nonetheless, when the inquiry in which Congress
requires their appearance is "in aid of legislation" under Section 21, the appearance is mandatory for
the same reasons stated in Arnault.90

In fine, the oversight function of Congress may be facilitated by compulsory process only to the
extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from
the deliberations of the Constitutional Commission.

Ultimately, the power of Congress to compel the appearance of executive officials under Section 21
and the lack of it under Section 22 find their basis in the principle of separation of powers. While the
executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to
legislate by refusing to comply with its demands for information.

When Congress exercises its power of inquiry, the only way for department heads to exempt
themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they
are department heads. Only one executive official may be exempted from this power the
President on whom executive power is vested, hence, beyond the reach of Congress except through
the power of impeachment. It is based on her being the highest official of the executive branch, and
the due respect accorded to a co-equal branch of government which is sanctioned by a long-
standing custom.

By the same token, members of the Supreme Court are also exempt from this power of inquiry.
Unlike the Presidency, judicial power is vested in a collegial body; hence, each member thereof is
exempt on the basis not only of separation of powers but also on the fiscal autonomy and the
constitutional independence of the judiciary. This point is not in dispute, as even counsel for the
Senate, Sen. Joker Arroyo, admitted it during the oral argument upon interpellation of the Chief
Justice.
Having established the proper interpretation of Section 22, Article VI of the Constitution, the Court
now proceeds to pass on the constitutionality of Section 1 of E.O. 464.

Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the
absence of any reference to inquiries in aid of legislation, must be construed as limited in its
application to appearances of department heads in the question hour contemplated in the provision
of said Section 22 of Article VI. The reading is dictated by the basic rule of construction that
issuances must be interpreted, as much as possible, in a way that will render it constitutional.

The requirement then to secure presidential consent under Section 1, limited as it is only to
appearances in the question hour, is valid on its face. For under Section 22, Article VI of the
Constitution, the appearance of department heads in the question hour is discretionary on their part.

Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of

legislation. Congress is not bound in such instances to respect the refusal of the department head to
appear in such inquiry, unless a valid claim of privilege is subsequently made, either by the
President herself or by the Executive Secretary.

Validity of Sections 2 and 3

Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the
consent of the President prior to appearing before either house of Congress. The enumeration is
broad. It covers all senior officials of executive departments, all officers of the AFP and the PNP, and
all senior national security officials who, in the judgment of the heads of offices designated in the
same section (i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and the National
Security Adviser), are "covered by the executive privilege."

The enumeration also includes such other officers as may be determined by the President. Given
the title of Section 2 "Nature, Scope and Coverage of Executive Privilege" , it is evident that
under the rule of ejusdem generis, the determination by the President under this provision is
intended to be based on a similar finding of coverage under executive privilege.

En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege
actually covers persons. Such is a misuse of the doctrine. Executive privilege, as discussed above,
is properly invoked in relation to specific categories of information and not to categories of persons.

In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of
executive privilege, the reference to persons being "covered by the executive privilege" may be read
as an abbreviated way of saying that the person is in possession of information which is, in the
judgment of the head of office concerned, privileged as defined in Section 2(a). The Court shall thus
proceed on the assumption that this is the intention of the challenged order.

Upon a determination by the designated head of office or by the President that an official is "covered
by the executive privilege," such official is subjected to the requirement that he first secure the
consent of the President prior to appearing before Congress. This requirement effectively bars the
appearance of the official concerned unless the same is permitted by the President. The proviso
allowing the President to give its consent means nothing more than that the President may reverse a
prohibition which already exists by virtue of E.O. 464.

Thus, underlying this requirement of prior consent is the determination by a head of office,
authorized by the President under E.O. 464, or by the President herself, that such official is in
possession of information that is covered by executive privilege. This determination then becomes
the basis for the officials not showing up in the legislative investigation.

In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such
invocation must be construed as a declaration to Congress that the President, or a head of office
authorized by the President, has determined that the requested information is privileged, and that
the President has not reversed such determination. Such declaration, however, even without
mentioning the term "executive privilege," amounts to an implied claim that the information is being
withheld by the executive branch, by authority of the President, on the basis of executive privilege.
Verily, there is an implied claim of privilege.

The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate President
Drilon illustrates the implied nature of the claim of privilege authorized by E.O. 464. It reads:

In connection with the inquiry to be conducted by the Committee of the Whole regarding the Northrail
Project of the North Luzon Railways Corporation on 29 September 2005 at 10:00 a.m., please be
informed that officials of the Executive Department invited to appear at the meeting will not be able
to attend the same without the consent of the President, pursuant to Executive Order No. 464 (s.
2005), entitled "Ensuring Observance Of The Principle Of Separation Of Powers, Adherence To The
Rule On Executive Privilege And Respect For The Rights Of Public Officials Appearing In Legislative
Inquiries In Aid Of Legislation Under The Constitution, And For Other Purposes". Said officials have
not secured the required consent from the President. (Underscoring supplied)

The letter does not explicitly invoke executive privilege or that the matter on which these officials are
being requested to be resource persons falls under the recognized grounds of the privilege to justify
their absence. Nor does it expressly state that in view of the lack of consent from the President
under E.O. 464, they cannot attend the hearing.

Significant premises in this letter, however, are left unstated, deliberately or not. The letter assumes
that the invited officials are covered by E.O. 464. As explained earlier, however, to be covered by the
order means that a determination has been made, by the designated head of office or the President,
that the invited official possesses information that is covered by executive privilege. Thus, although it
is not stated in the letter that such determination has been made, the same must be deemed
implied. Respecting the statement that the invited officials have not secured the consent of the
President, it only means that the President has not reversed the standing prohibition against their
appearance before Congress.

Inevitably, Executive Secretary Ermitas letter leads to the conclusion that the executive branch,
either through the President or the heads of offices authorized under E.O. 464, has made a
determination that the information required by the Senate is privileged, and that, at the time of
writing, there has been no contrary pronouncement from the President. In fine, an implied claim of
privilege has been made by the executive.

While there is no Philippine case that directly addresses the issue of whether executive privilege
may be invoked against Congress, it is gathered from Chavez v. PEA that certain information in the
possession of the executive may validly be claimed as privileged even against Congress. Thus, the
case holds:

There is no claim by PEA that the information demanded by petitioner is privileged information
rooted in the separation of powers. The information does not cover Presidential conversations,
correspondences, or discussions during closed-door Cabinet meetings which, like internal-
deliberations of the Supreme Court and other collegiate courts, or executive sessions of either house
of Congress, are recognized as confidential. This kind of information cannot be pried open by a co-
equal branch of government. A frank exchange of exploratory ideas and assessments, free from the
glare of publicity and pressure by interested parties, is essential to protect the independence of
decision-making of those tasked to exercise Presidential, Legislative and Judicial power. This is not
the situation in the instant case.91 (Emphasis and underscoring supplied)

Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it
sanctions claims of executive privilege. This Court must look further and assess the claim of
privilege authorized by the Order to determine whether it is valid.

While the validity of claims of privilege must be assessed on a case to case basis, examining the
ground invoked therefor and the particular circumstances surrounding it, there is, in an implied claim
of privilege, a defect that renders it invalid per se. By its very nature, and as demonstrated by the
letter of respondent Executive Secretary quoted above, the implied claim authorized by Section 3 of
E.O. 464 is not accompanied by any specific allegation of the basis thereof (e.g., whether the
information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.).
While Section 2(a) enumerates the types of information that are covered by the privilege under the
challenged order, Congress is left to speculate as to which among them is being referred to by the
executive. The enumeration is not even intended to be comprehensive, but a mere statement of
what is included in the phrase "confidential or classified information between the President and the
public officers covered by this executive order."

Certainly, Congress has the right to know why the executive considers the requested information
privileged. It does not suffice to merely declare that the President, or an authorized head of office,
has determined that it is so, and that the President has not overturned that determination. Such
declaration leaves Congress in the dark on how the requested information could be classified as
privileged. That the message is couched in terms that, on first impression, do not seem like a claim
of privilege only makes it more pernicious. It threatens to make Congress doubly blind to the
question of why the executive branch is not providing it with the information that it has requested.

A claim of privilege, being a claim of exemption from an obligation to disclose information, must,
therefore, be clearly asserted. As U.S. v. Reynolds teaches:

The privilege belongs to the government and must be asserted by it; it can neither be claimed nor
waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege,
lodged by the head of the department which has control over the matter, after actual personal
consideration by that officer. The court itself must determine whether the circumstances are
appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the
privilege is designed to protect.92 (Underscoring supplied)

Absent then a statement of the specific basis of a claim of executive privilege, there is no way of
determining whether it falls under one of the traditional privileges, or whether, given the
circumstances in which it is made, it should be respected.93 These, in substance, were the same
criteria in assessing the claim of privilege asserted against the Ombudsman in Almonte v.
Vasquez94 and, more in point, against a committee of the Senate in Senate Select Committee on
Presidential Campaign Activities v. Nixon.95

A.O. Smith v. Federal Trade Commission is enlightening:

[T]he lack of specificity renders an assessment of the potential harm resulting from disclosure
impossible, thereby preventing the Court from balancing such harm against plaintiffs needs to
determine whether to override any claims of privilege.96 (Underscoring supplied)
And so is U.S. v. Article of Drug:97

On the present state of the record, this Court is not called upon to perform this balancing operation.
In stating its objection to claimants interrogatories, government asserts, and nothing more, that the
disclosures sought by claimant would inhibit the free expression of opinion that non-disclosure is
designed to protect. The government has not shown nor even alleged that those who evaluated
claimants product were involved in internal policymaking, generally, or in this particular instance.
Privilege cannot be set up by an unsupported claim. The facts upon which the privilege is based
must be established. To find these interrogatories objectionable, this Court would have to assume
that the evaluation and classification of claimants products was a matter of internal policy
formulation, an assumption in which this Court is unwilling to indulge sua sponte.98 (Emphasis and
underscoring supplied)

Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency must provide
precise and certain reasons for preserving the confidentiality of requested information."

Black v. Sheraton Corp. of America100 amplifies, thus:

A formal and proper claim of executive privilege requires a specific designation and description of
the documents within its scope as well as precise and certain reasons for preserving their
confidentiality. Without this specificity, it is impossible for a court to analyze the claim short of
disclosure of the very thing sought to be protected. As the affidavit now stands, the Court has little
more than its sua sponte speculation with which to weigh the applicability of the claim. An improperly
asserted claim of privilege is no claim of privilege. Therefore, despite the fact that a claim was made
by the proper executive as Reynolds requires, the Court can not recognize the claim in the instant
case because it is legally insufficient to allow the Court to make a just and reasonable determination
as to its applicability. To recognize such a broad claim in which the Defendant has given no precise
or compelling reasons to shield these documents from outside scrutiny, would make a farce of the
whole procedure.101 (Emphasis and underscoring supplied)

Due respect for a co-equal branch of government, moreover, demands no less than a claim of
privilege clearly stating the grounds therefor. Apropos is the following ruling in McPhaul v. U.S:102

We think the Courts decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly
relevant to these questions. For it is as true here as it was there, that if (petitioner) had legitimate
reasons for failing to produce the records of the association, a decent respect for the House of
Representatives, by whose authority the subpoenas issued, would have required that (he) state (his)
reasons for noncompliance upon the return of the writ. Such a statement would have given the
Subcommittee an opportunity to avoid the blocking of its inquiry by taking other appropriate steps to
obtain the records. To deny the Committee the opportunity to consider the objection or remedy is in
itself a contempt of its authority and an obstruction of its processes. His failure to make any such
statement was "a patent evasion of the duty of one summoned to produce papers before a
congressional committee[, and] cannot be condoned." (Emphasis and underscoring supplied;
citations omitted)

Upon the other hand, Congress must not require the executive to state the reasons for the claim with
such particularity as to compel disclosure of the information which the privilege is meant to
protect.103 A useful analogy in determining the requisite degree of particularity would be the privilege
against self-incrimination. Thus, Hoffman v. U.S.104 declares:

The witness is not exonerated from answering merely because he declares that in so doing he would
incriminate himself his say-so does not of itself establish the hazard of incrimination. It is for the
court to say whether his silence is justified, and to require him to answer if it clearly appears to the
court that he is mistaken. However, if the witness, upon interposing his claim, were required to
prove the hazard in the sense in which a claim is usually required to be established in court, he
would be compelled to surrender the very protection which the privilege is designed to guarantee. To
sustain the privilege, it need only be evident from the implications of the question, in the setting in
which it is asked, that a responsive answer to the question or an explanation of why it cannot be
answered might be dangerous because injurious disclosure could result." x x x (Emphasis and
underscoring supplied)

The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It
is not asserted. It is merely implied. Instead of providing precise and certain reasons for the claim, it
merely invokes E.O. 464, coupled with an announcement that the President has not given her
consent. It is woefully insufficient for Congress to determine whether the withholding of information is
justified under the circumstances of each case. It severely frustrates the power of inquiry of
Congress.

In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.

No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only
on the heads of office mentioned in Section 2(b), on what is covered by executive privilege. It does
not purport to be conclusive on the other branches of government. It may thus be construed as a
mere expression of opinion by the President regarding the nature and scope of executive privilege.

Petitioners, however, assert as another ground for invalidating the challenged order the alleged
unlawful delegation of authority to the heads of offices in Section 2(b). Petitioner Senate of the
Philippines, in particular, cites the case of the United States where, so it claims, only the President
can assert executive privilege to withhold information from Congress.

Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a
certain information is privileged, such determination is presumed to bear the Presidents authority
and has the effect of prohibiting the official from appearing before Congress, subject only to the
express pronouncement of the President that it is allowing the appearance of such official. These
provisions thus allow the President to authorize claims of privilege by mere silence.

Such presumptive authorization, however, is contrary to the exceptional nature of the privilege.
Executive privilege, as already discussed, is recognized with respect to information the confidential
nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive
branch,105 or in those instances where exemption from disclosure is necessary to the discharge of
highly important executive responsibilities.106 The doctrine of executive privilege is thus premised on
the fact that certain informations must, as a matter of necessity, be kept confidential in pursuit of the
public interest. The privilege being, by definition, an exemption from the obligation to disclose
information, in this case to Congress, the necessity must be of such high degree as to outweigh the
public interest in enforcing that obligation in a particular case.

In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the
President the power to invoke the privilege. She may of course authorize the Executive Secretary to
invoke the privilege on her behalf, in which case the Executive Secretary must state that the
authority is "By order of the President," which means that he personally consulted with her. The
privilege being an extraordinary power, it must be wielded only by the highest official in the executive
hierarchy. In other words, the President may not authorize her subordinates to exercise such power.
There is even less reason to uphold such authorization in the instant case where the authorization is
not explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on this score.
It follows, therefore, that when an official is being summoned by Congress on a matter which, in his
own judgment, might be covered by executive privilege, he must be afforded reasonable time to
inform the President or the Executive Secretary of the possible need for invoking the privilege. This
is necessary in order to provide the President or the Executive Secretary with fair opportunity to
consider whether the matter indeed calls for a claim of executive privilege. If, after the lapse of that
reasonable time, neither the President nor the Executive Secretary invokes the privilege, Congress
is no longer bound to respect the failure of the official to appear before Congress and may then opt
to avail of the necessary legal means to compel his appearance.

The Court notes that one of the expressed purposes for requiring officials to secure the consent of
the President under Section 3 of E.O. 464 is to ensure "respect for the rights of public officials
appearing in inquiries in aid of legislation." That such rights must indeed be respected by Congress
is an echo from Article VI Section 21 of the Constitution mandating that "[t]he rights of persons
appearing in or affected by such inquiries shall be respected."

In light of the above discussion of Section 3, it is clear that it is essentially an authorization for
implied claims of executive privilege, for which reason it must be invalidated. That such authorization
is partly motivated by the need to ensure respect for such officials does not change the infirm nature
of the authorization itself.

Right to Information

E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in
the hearings conducted by it, and not with the demands of citizens for information pursuant to their
right to information on matters of public concern. Petitioners are not amiss in claiming, however, that
what is involved in the present controversy is not merely the legislative power of inquiry, but the right
of the people to information.

There are, it bears noting, clear distinctions between the right of Congress to information which
underlies the power of inquiry and the right of the people to information on matters of public concern.
For one, the demand of a citizen for the production of documents pursuant to his right to information
does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither
does the right to information grant a citizen the power to exact testimony from government officials.
These powers belong only to Congress and not to an individual citizen.

Thus, while Congress is composed of representatives elected by the people, it does not follow,
except in a highly qualified sense, that in every exercise of its power of inquiry, the people are
exercising their right to information.

To the extent that investigations in aid of legislation are generally conducted in public, however, any
executive issuance tending to unduly limit disclosures of information in such investigations
necessarily deprives the people of information which, being presumed to be in aid of legislation, is
presumed to be a matter of public concern. The citizens are thereby denied access to information
which they can use in formulating their own opinions on the matter before Congress opinions
which they can then communicate to their representatives and other government officials through the
various legal means allowed by their freedom of expression. Thus holds Valmonte v. Belmonte:

It is in the interest of the State that the channels for free political discussion be maintained to the end
that the government may perceive and be responsive to the peoples will. Yet, this open dialogue
can be effective only to the extent that the citizenry is informed and thus able to formulate its will
intelligently. Only when the participants in the discussion are aware of the issues and have access to
information relating thereto can such bear fruit.107(Emphasis and underscoring supplied)
The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore,
in the sense explained above, just as direct as its violation of the legislatures power of inquiry.

Implementation of E.O. 464 prior to its publication

While E.O. 464 applies only to officials of the executive branch, it does not follow that the same is
exempt from the need for publication. On the need for publishing even those statutes that do not
directly apply to people in general, Taada v. Tuvera states:

The term "laws" should refer to all laws and not only to those of general application, for strictly
speaking all laws relate to the people in general albeit there are some that do not apply to them
directly. An example is a law granting citizenship to a particular individual, like a relative of President
Marcos who was decreed instant naturalization. It surely cannot be said that such a law does not
affect the public although it unquestionably does not apply directly to all the people. The subject of
such law is a matter of public interest which any member of the body politic may question in the
political forums or, if he is a proper party, even in courts of justice.108 (Emphasis and underscoring
supplied)

Although the above statement was made in reference to statutes, logic dictates that the challenged
order must be covered by the publication requirement. As explained above, E.O. 464 has a direct
effect on the right of the people to information on matters of public concern. It is, therefore, a matter
of public interest which members of the body politic may question before this Court. Due process
thus requires that the people should have been apprised of this issuance before it was implemented.

Conclusion

Congress undoubtedly has a right to information from the executive branch whenever it is sought in
aid of legislation. If the executive branch withholds such information on the ground that it is
privileged, it must so assert it and state the reason therefor and why it must be respected.

The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional
requests for information without need of clearly asserting a right to do so and/or proffering its
reasons therefor. By the mere expedient of invoking said provisions, the power of Congress to
conduct inquiries in aid of legislation is frustrated. That is impermissible. For

[w]hat republican theory did accomplishwas to reverse the old presumption in favor of secrecy,
based on the divine right of kings and nobles, and replace it with a presumption in favor of publicity,
based on the doctrine of popular sovereignty. (Underscoring supplied)109

Resort to any means then by which officials of the executive branch could refuse to divulge
information cannot be presumed valid. Otherwise, we shall not have merely nullified the power of our
legislature to inquire into the operations of government, but we shall have given up something of
much greater value our right as a people to take part in government.

WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No.
464 (series of 2005), "Ensuring Observance of the Principle of Separation of Powers, Adherence to
the Rule on Executive

Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of
Legislation Under the Constitution, and For Other Purposes," are declared VOID. Sections 1 and
2(a) are, however, VALID.
SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice

(ON LEAVE)
REYNATO S. PUNO CONSUELO YNARES- SANTIAGO
Associate Justice Asscociate Justice

LEONARDO A. QUISUMBING ANGELINA SANDOVAL-GUTIERREZ

Associate Justice Asscociate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Asscociate Justice

RENATO C. CORONA ADOLFO S. AZCUNA

Associate Justice Asscociate Justice

ROMEO J. CALLEJO, SR. DANTE O. TINGA

Associate Justice Asscociate Justice

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA

Associate Justice Asscociate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in
the above Resolution were reached in consultation before the case was assigned to the writer of the
opinion of the Court.

ARTEMIO V. PANGANIBAN
Chief Justice
Footnotes

Tanada vs Angara
Justiciable Question; Theory of Auto-Limitation; Declaration of
Principles and State Policies

TANADA VS ANGARA
G.R. No. 118295 May 2, 1997

Wigberto E. Tanada et al, in representation of various taxpayers and as non-governmental

organizations, petitioners,
vs.
EDGARDO ANGARA, et al, respondents.

Facts:
This is a case petition by Sen. Wigberto Tanada, together with other lawmakers, taxpayers, and various NGOs
to nullify the Philippine ratification of the World Trade Organization (WTO) Agreement.

Petitioners believe that this will be detrimental to the growth of our National Economy and against to the
Filipino First policy. The WTO opens access to foreign markets, especially its major trading partners,
through the reduction of tariffs on its exports, particularly agricultural and industrial products. Thus, provides
new opportunities for the service sector cost and uncertainty associated with exporting and more investment in
the country. These are the predicted benefits as reflected in the agreement and as viewed by the signatory
Senators, a free market espoused by WTO.

Petitioners also contends that it is in conflict with the provisions of our constitution, since the said Agreement
is an assault on the sovereign powers of the Philippines because it meant that Congress could not pass
legislation that would be good for national interest and general welfare if such legislation would not conform
to the WTO Agreement.

Issues:

1. Whether or not the petition present a justiciable controversy.

2. Whether or not the provisions of the Agreement Establishing the World Trade Organization and the
Agreements and Associated Legal Instruments included in Annexes one (1), two (2) and three (3) of that
agreement cited by petitioners directly contravene or undermine the letter, spirit and intent of Section 19,
Article II and Sections 10 and 12, Article XII of the 1987 Constitution.
3. Whether or not certain provisions of the Agreement unduly limit, restrict or impair the exercise of
legislative power by Congress.
4. Whether or not certain provisions of the Agreement impair the exercise of judicial power by this
Honorable Court in promulgating the rules of evidence.
5. Whether or not the concurrence of the Senate in the ratification by the President of the Philippines of the
Agreement establishing the World Trade Organization implied rejection of the treaty embodied in the
Final Act.

Discussions:

1987 Constitution states that 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.
Although the Constitution mandates to develop a self-reliant and independent national economy controlled
by Filipinos, does not necessarily rule out the entry of foreign investments, goods and services. It
contemplates neither economic seclusion nor mendicancy in the international community. The WTO
itself has some built-in advantages to protect weak and developing economies, which comprise the vast
majority of its members. Unlike in the UN where major states have permanent seats and veto powers in
the Security Council, in the WTO, decisions are made on the basis of sovereign equality, with each
members vote equal in weight to that of any other. Hence, poor countries can protect their common
interests more effectively through the WTO than through one-on-one negotiations with developed
countries. Within the WTO, developing countries can form powerful blocs to push their economic agenda
more decisively than outside the Organization. Which is not merely a matter of practical alliances but a
negotiating strategy rooted in law. Thus, the basic principles underlying the WTO Agreement recognize
the need of developing countries like the Philippines to share in the growth in international trade
commensurate with the needs of their economic development.
In its Declaration of Principles and State Policies, the Constitution adopts the generally accepted
principles of international law as part of the law of the land, and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity, with all nations. By the doctrine of incorporation, the country is
bound by generally accepted principles of international law, which are considered to be automatically part
of our own laws. A state which has contracted valid international obligations is bound to make in its
legislations such modifications as may be necessary to ensure the fulfillment of the obligations
undertaken. Paragraph 1, Article 34 of the General Provisions and Basic Principles of the Agreement on
 Trade-Related Aspects of Intellectual Property Rights (TRIPS) may intrudes on the power of the Supreme
Court to promulgate rules concerning pleading, practice and procedures. With regard to Infringement of a
design patent, WTO members shall be free to determine the appropriate method of implementing the
provisions of TRIPS within their own internal systems and processes.
The alleged impairment of sovereignty in the exercise of legislative and judicial powers is balanced by the
adoption of the generally accepted principles of international law as part of the law of the land and the
adherence of the Constitution to the policy of cooperation and amity with all nations. The Senate, after
deliberation and voting, voluntarily and overwhelmingly gave its consent to the WTO Agreement thereby
making it a part of the law of the land is a legitimate exercise of its sovereign duty and power.

Rulings:

1. In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the
petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously
alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary
to settle the dispute. As explained by former Chief Justice Roberto Concepcion, the judiciary is the final
arbiter on the question of whether or not a branch of government or any of its officials has acted without
jurisdiction or in excess of jurisdiction or so capriciously as to constitute an abuse of discretion amounting
to excess of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this
nature.
2. While the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and enterprises,
at the same time, it recognizes the need for business exchange with the rest of the world on the bases of
equality and reciprocity and limits protection of Filipino enterprises only against foreign competition and
trade practices that are unfair. In other words, the Constitution did not intend to pursue an isolationist
policy. It did not shut out foreign investments, goods and services in the development of the Philippine
economy. While the Constitution does not encourage the unlimited entry of foreign goods, services and
investments into the country, it does not prohibit them either. In fact, it allows an exchange on the basis of
equality and reciprocity, frowning only on foreign competition that is unfair.
3. By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary
act, nations may surrender some aspects of their state power in exchange for greater benefits granted by or
derived from a convention or pact. After all, states, like individuals, live with coequals, and in pursuit of
mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their
otherwise absolute rights. As shown by the foregoing treaties Philippines has entered, a portion of
sovereignty may be waived without violating the Constitution, based on the rationale that the Philippines
adopts the generally accepted principles of international law as part of the law of the land and adheres to
the policy of cooperation and amity with all nations.
4. The provision in Article 34 of WTO agreement does not contain an unreasonable burden, consistent as it is
with due process and the concept of adversarial dispute settlement inherent in our judicial system.
5. The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final Act required from
its signatories, namely, concurrence of the Senate in the WTO Agreement. Moreover, the Senate was well-
aware of what it was concurring in as shown by the members deliberation on August 25, 1994. After
reading the letter of President Ramos dated August 11, 1994, the senators of the Republic minutely
dissected what the Senate was concurring in.

1.6. EN BANC
2.7. [G.R. No. 118295. May 2, 1997]
3.8. WIGBERTO E. TAADA and ANNA DOMINIQUE COSETENG,
as members of the Philippine Senate and as taxpayers;
GREGORIO ANDOLANA and JOKER ARROYO as members of
the House of Representatives and as taxpayers; NICANOR P.
PERLAS and HORACIO R. MORALES, both as taxpayers; CIVIL
LIBERTIES UNION, NATIONAL ECONOMIC PROTECTIONISM
ASSOCIATION, CENTER FOR ALTERNATIVE DEVELOPMENT
INITIATIVES, LIKAS-KAYANG KAUNLARAN FOUNDATION, INC.,
PHILIPPINE RURAL RECONSTRUCTION MOVEMENT,
DEMOKRATIKONG KILUSAN NG MAGBUBUKID NG PILIPINAS,
INC., and PHILIPPINE PEASANT INSTITUTE, in representation of
various taxpayers and as non-governmental
organizations, petitioners, vs.EDGARDO ANGARA, ALBERTO
ROMULO, LETICIA RAMOS-SHAHANI, HEHERSON ALVAREZ,
AGAPITO AQUINO, RODOLFO BIAZON, NEPTALI GONZALES,
ERNESTO HERRERA, JOSE LINA, GLORIA MACAPAGAL-
ARROYO, ORLANDO MERCADO, BLAS OPLE, JOHN OSMEA,
SANTANINA RASUL, RAMON REVILLA, RAUL ROCO,
FRANCISCO TATAD and FREDDIE WEBB, in their respective
capacities as members of the Philippine Senate who concurred
in the ratification by the President of the Philippines of the
Agreement Establishing the World Trade Organization;
SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget
and Management; CARIDAD VALDEHUESA, in her capacity as
National Treasurer; RIZALINO NAVARRO, in his capacity as
Secretary of Trade and Industry; ROBERTO SEBASTIAN, in his
capacity as Secretary of Agriculture; ROBERTO DE OCAMPO, in
his capacity as Secretary of Finance; ROBERTO ROMULO, in his
capacity as Secretary of Foreign Affairs; and TEOFISTO T.
 GUINGONA, in his capacity as Executive
Secretary, respondents.
4.9. DECISION
5.10. PANGANIBAN, J.:
6.11. The emergence on January 1, 1995 of the World Trade Organization,
abetted by the membership thereto of the vast majority of countries has
revolutionized international business and economic relations amongst states. It
has irreversibly propelled the world towards trade liberalization and economic
globalization. Liberalization, globalization, deregulation and privatization, the
third-millennium buzz words, are ushering in a new borderless world of business
by sweeping away as mere historical relics the heretofore traditional modes of
promoting and protecting national economies like tariffs, export subsidies, import
quotas, quantitative restrictions, tax exemptions and currency controls. Finding
market niches and becoming the best in specific industries in a market-driven
and export-oriented global scenario are replacing age-old beggar-thy-neighbor
policies that unilaterally protect weak and inefficient domestic producers of goods
and services. In the words of Peter Drucker, the well-known management guru,
Increased participation in the world economy has become the key to domestic
economic growth and prosperity.
7.12. Brief Historical Background
8.13. To hasten worldwide recovery from the devastation wrought by the
Second World War, plans for the establishment of three multilateral institutions --
inspired by that grand political body, the United Nations -- were discussed at
Dumbarton Oaks and Bretton Woods. The first was the World Bank (WB) which
was to address the rehabilitation and reconstruction of war-ravaged and later
developing countries; the second, the International Monetary Fund (IMF) which
was to deal with currency problems; and the third, the International Trade
Organization (ITO), which was to foster order and predictability in world trade and
to minimize unilateral protectionist policies that invite challenge, even retaliation,
from other states. However, for a variety of reasons, including its non-ratification
by the United States, the ITO, unlike the IMF and WB, never took off. What
remained was only GATT -- the General Agreement on Tariffs and Trade. GATT
was a collection of treaties governing access to the economies of treaty
adherents with no institutionalized body administering the agreements or
dependable system of dispute settlement.
9.14. After half a century and several dizzying rounds of negotiations, principally
the Kennedy Round, the Tokyo Round and the Uruguay Round, the world finally
gave birth to that administering body -- the World Trade Organization -- with the
signing of the Final Act in Marrakesh, Morocco and the ratification of the WTO
Agreement by its members.[1]
10.15. Like many other developing countries, the Philippines joined WTO as a
founding member with the goal, as articulated by President Fidel V. Ramos in
two letters to the Senate (infra), of improving Philippine access to foreign
markets, especially its major trading partners, through the reduction of tariffs on
its exports, particularly agricultural and industrial products. The President also
saw in the WTO the opening of new opportunities for the services sector x x x,
 (the reduction of) costs and uncertainty associated with exporting x x x, and (the
attraction of) more investments into the country. Although the Chief Executive did
not expressly mention it in his letter, the Philippines - - and this is of special
interest to the legal profession - - will benefit from the WTO system of dispute
settlement by judicial adjudication through the independent WTO settlement
bodies called (1) Dispute Settlement Panels and (2) Appellate
Tribunal. Heretofore, trade disputes were settled mainly through negotiations
where solutions were arrived at frequently on the basis of relative bargaining
strengths, and where naturally, weak and underdeveloped countries were at a
disadvantage.
11.16. The Petition in Brief
12.17. Arguing mainly (1) that the WTO requires the Philippines to place
nationals and products of member-countries on the same footing as Filipinos and
local products and (2) that the WTO intrudes, limits and/or impairs the
constitutional powers of both Congress and the Supreme Court, the instant
petition before this Court assails the WTO Agreement for violating the mandate
of the 1987 Constitution to develop a self-reliant and independent national
economy effectively controlled by Filipinos x x x (to) give preference to qualified
Filipinos (and to) promote the preferential use of Filipino labor, domestic
materials and locally produced goods.
13.18. Simply stated, does the Philippine Constitution prohibit Philippine
participation in worldwide trade liberalization and economic globalization? Does it
prescribe Philippine integration into a global economy that is liberalized,
deregulated and privatized? These are the main questions raised in this petition
for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court
praying (1) for the nullification, on constitutional grounds, of the concurrence of
the Philippine Senate in the ratification by the President of the Philippines of the
Agreement Establishing the World Trade Organization (WTO Agreement, for
brevity) and (2) for the prohibition of its implementation and enforcement through
the release and utilization of public funds, the assignment of public officials and
employees, as well as the use of government properties and resources by
respondent-heads of various executive offices concerned therewith. This
concurrence is embodied in Senate Resolution No. 97, dated December 14,
1994.
14.19. The Facts
15.20. On April 15, 1994, Respondent Rizalino Navarro, then Secretary of
the Department of Trade and Industry (Secretary Navarro, for brevity),
representing the Government of the Republic of the Philippines, signed in
Marrakesh, Morocco, the Final Act Embodying the Results of the Uruguay Round
of Multilateral Negotiations (Final Act, for brevity).
16.21. By signing the Final Act,[2] Secretary Navarro on behalf of the Republic of
the Philippines, agreed:
17.22. (a) to submit, as appropriate, the WTO Agreement for the consideration
of their respective competent authorities, with a view to seeking approval of the
Agreement in accordance with their procedures; and
18.23. (b) to adopt the Ministerial Declarations and Decisions.
19.24. On August 12, 1994, the members of the Philippine Senate received a
letter dated August 11, 1994 from the President of the Philippines, [3] stating
among others that the Uruguay Round Final Act is hereby submitted to the
Senate for its concurrence pursuant to Section 21, Article VII of the Constitution.
20.25. On August 13, 1994, the members of the Philippine Senate received
another letter from the President of the Philippines[4]likewise dated August 11,
1994, which stated among others that the Uruguay Round Final Act, the
Agreement Establishing the World Trade Organization, the Ministerial
Declarations and Decisions, and the Understanding on Commitments in Financial
Services are hereby submitted to the Senate for its concurrence pursuant to
Section 21, Article VII of the Constitution.
21.26. On December 9, 1994, the President of the Philippines certified the
necessity of the immediate adoption of P.S. 1083, a resolution entitled
Concurring in the Ratification of the Agreement Establishing the World Trade
Organization.[5]
22.27. On December 14, 1994, the Philippine Senate adopted Resolution No. 97
which Resolved, as it is hereby resolved, that the Senate concur, as it hereby
concurs, in the ratification by the President of the Philippines of the Agreement
Establishing the World Trade Organization.[6] The text of the WTO Agreement is
written on pages 137 et seq. of Volume I of the 36-volume Uruguay Round of
Multilateral Trade Negotiations and includes various agreements and associated
legal instruments (identified in the said Agreement as Annexes 1, 2 and 3 thereto
and collectively referred to as Multilateral Trade Agreements, for brevity) as
follows:
23.28. ANNEX 1
24.29. Annex 1A: Multilateral Agreement on Trade in Goods
25.30. General Agreement on Tariffs and Trade 1994
26.31. Agreement on Agriculture
27.32. Agreement on the Application of Sanitary and
28.33. Phytosanitary Measures
29.34. Agreement on Textiles and Clothing
30.35. Agreement on Technical Barriers to Trade
31.36. Agreement on Trade-Related Investment Measures
32.37. Agreement on Implementation of Article VI of the General Agreement
on Tariffs and Trade 1994
33.38. Agreement on Implementation of Article VII of the General on Tariffs
and Trade 1994
34.39. Agreement on Pre-Shipment Inspection
35.40. Agreement on Rules of Origin
36.41. Agreement on Imports Licensing Procedures
37.42. Agreement on Subsidies and Coordinating Measures
38.43. Agreement on Safeguards
39.44. Annex 1B: General Agreement on Trade in Services and Annexes
40.45. Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property
Rights
41.46. ANNEX 2
42.47. Understanding on Rules and Procedures Governing the Settlement of
Disputes
43.48. ANNEX 3
44.49. Trade Policy Review Mechanism
45.50. On December 16, 1994, the President of the Philippines signed [7] the
Instrument of Ratification, declaring:
46.51. NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President
of the Republic of the Philippines, after having seen and considered the
aforementioned Agreement Establishing the World Trade Organization and the
agreements and associated legal instruments included in Annexes one (1), two
(2) and three (3) of that Agreement which are integral parts thereof, signed at
Marrakesh, Morocco on 15 April 1994, do hereby ratify and confirm the same
and every Article and Clause thereof.
47.52. To emphasize, the WTO Agreement ratified by the President of the
Philippines is composed of the Agreement Proper and the associated legal
instruments included in Annexes one (1), two (2) and three (3) of that Agreement
which are integral parts thereof.
48.53. On the other hand, the Final Act signed by Secretary Navarro embodies
not only the WTO Agreement (and its integral annexes aforementioned) but also
(1) the Ministerial Declarations and Decisions and (2) the Understanding on
Commitments in Financial Services. In his Memorandum dated May 13,
1996,[8] the Solicitor General describes these two latter documents as follows:
49.54. The Ministerial Decisions and Declarations are twenty-five declarations
and decisions on a wide range of matters, such as measures in favor of least
developed countries, notification procedures, relationship of WTO with the
International Monetary Fund (IMF), and agreements on technical barriers to
trade and on dispute settlement.
50.55. The Understanding on Commitments in Financial Services dwell on,
among other things, standstill or limitations and qualifications of commitments
to existing non-conforming measures, market access, national treatment, and
definitions of non-resident supplier of financial services, commercial presence
and new financial service.
51.56. On December 29, 1994, the present petition was filed. After careful
deliberation on respondents comment and petitioners reply thereto, the Court
resolved on December 12, 1995, to give due course to the petition, and the
parties thereafter filed their respective memoranda. The Court also requested the
Honorable Lilia R. Bautista, the Philippine Ambassador to the United Nations
stationed in Geneva, Switzerland, to submit a paper, hereafter referred to as
Bautista Paper,[9] for brevity, (1) providing a historical background of and (2)
summarizing the said agreements.
52.57. During the Oral Argument held on August 27, 1996, the Court directed:
53.58. (a) the petitioners to submit the (1) Senate Committee Report on the
matter in controversy and (2) the transcript of proceedings/hearings in the
Senate; and
54.59. (b) the Solicitor General, as counsel for respondents, to file (1) a list of
Philippine treaties signed prior to the Philippine adherence to the WTO
Agreement, which derogate from Philippine sovereignty and (2) copies of the
multi-volume WTO Agreement and other documents mentioned in the Final
Act, as soon as possible.
55.60. After receipt of the foregoing documents, the Court said it would consider
the case submitted for resolution. In a Compliance dated September 16, 1996,
the Solicitor General submitted a printed copy of the 36-volume Uruguay Round
of Multilateral Trade Negotiations, and in another Compliance dated October 24,
1996, he listed the various bilateral or multilateral treaties or international
instruments involving derogation of Philippine sovereignty. Petitioners, on the
other hand, submitted their Compliance dated January 28, 1997, on January 30,
1997.
56.61. The Issues
57.62. In their Memorandum dated March 11, 1996, petitioners summarized the
issues as follows:
58.63. A. Whether the petition presents a political question or is otherwise not
justiciable.
59.64. B. Whether the petitioner members of the Senate who participated in the
deliberations and voting leading to the concurrence are estopped from
impugning the validity of the Agreement Establishing the World Trade
Organization or of the validity of the concurrence.
60.65. C. Whether the provisions of the Agreement Establishing the World
Trade Organization contravene the provisions of Sec. 19, Article II, and Secs.
10 and 12, Article XII, all of the 1987 Philippine Constitution.
61.66. D. Whether provisions of the Agreement Establishing the World Trade
Organization unduly limit, restrict and impair Philippine sovereignty
specifically the legislative power which, under Sec. 2, Article VI, 1987
Philippine Constitution is vested in the Congress of the Philippines;
62.67. E. Whether provisions of the Agreement Establishing the World Trade
Organization interfere with the exercise of judicial power.
63.68. F. Whether the respondent members of the Senate acted in grave abuse
of discretion amounting to lack or excess of jurisdiction when they voted for
concurrence in the ratification of the constitutionally-infirm Agreement
Establishing the World Trade Organization.
64.69. G. Whether the respondent members of the Senate acted in grave abuse
of discretion amounting to lack or excess of jurisdiction when they concurred
only in the ratification of the Agreement Establishing the World Trade
Organization, and not with the Presidential submission which included the
 Final Act, Ministerial Declaration and Decisions, and the Understanding on
Commitments in Financial Services.
65.70. On the other hand, the Solicitor General as counsel for respondents
synthesized the several issues raised by petitioners into the following: [10]
66.71. 1. Whether or not the provisions of the Agreement Establishing the
World Trade Organization and the Agreements and Associated Legal
Instruments included in Annexes one (1), two (2) and three (3) of that
agreement cited by petitioners directly contravene or undermine the letter, spirit
and intent of Section 19, Article II and Sections 10 and 12, Article XII of the
1987 Constitution.
67.72. 2. Whether or not certain provisions of the Agreement unduly limit,
restrict or impair the exercise of legislative power by Congress.
68.73. 3. Whether or not certain provisions of the Agreement impair the
exercise of judicial power by this Honorable Court in promulgating the rules of
evidence.
69.74. 4. Whether or not the concurrence of the Senate in the ratification by the
President of the Philippines of the Agreement establishing the World Trade
Organization implied rejection of the treaty embodied in the Final Act.
70.75. By raising and arguing only four issues against the seven presented by
petitioners, the Solicitor General has effectively ignored three, namely: (1)
whether the petition presents a political question or is otherwise not justiciable;
(2) whether petitioner-members of the Senate (Wigberto E. Taada and Anna
Dominique Coseteng) are estopped from joining this suit; and (3) whether the
respondent-members of the Senate acted in grave abuse of discretion when they
voted for concurrence in the ratification of the WTO Agreement. The foregoing
notwithstanding, this Court resolved to deal with these three issues thus:
71.76. (1) The political question issue -- being very fundamental and vital, and
being a matter that probes into the very jurisdiction of this Court to hear and
decide this case -- was deliberated upon by the Court and will thus be ruled
upon as the first issue;
72.77. (2) The matter of estoppel will not be taken up because this defense is
waivable and the respondents have effectively waived it by not pursuing it in
any of their pleadings; in any event, this issue, even if ruled in respondents
favor, will not cause the petitions dismissal as there are petitioners other than
the two senators, who are not vulnerable to the defense of estoppel; and
73.78. (3) The issue of alleged grave abuse of discretion on the part of the
respondent senators will be taken up as an integral part of the disposition of the
four issues raised by the Solicitor General.
74.79. During its deliberations on the case, the Court noted that the respondents
did not question the locus standi of petitioners.Hence, they are also deemed to
have waived the benefit of such issue. They probably realized that grave
constitutional issues, expenditures of public funds and serious international
commitments of the nation are involved here, and that transcendental public
 interest requires that the substantive issues be met head on and decided on the
merits, rather than skirted or deflected by procedural matters.[11]
75.80. To recapitulate, the issues that will be ruled upon shortly are:
76.81. (1) DOES THE PETITION PRESENT A JUSTICIABLE
CONTROVERSY? OTHERWISE STATED, DOES THE PETITION INVOLVE A
POLITICAL QUESTION OVER WHICH THIS COURT HAS NO JURISDICTION?
77.82. (2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE
ANNEXES CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10 AND 12,
ARTICLE XII, OF THE PHILIPPINE CONSTITUTION?
78.83. (3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES
LIMIT, RESTRICT, OR IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY
CONGRESS?
79.84. (4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE
EXERCISE OF JUDICIAL POWER BY THIS COURT IN PROMULGATING RULES
ON EVIDENCE?
80.85. (5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO
AGREEMENT AND ITS ANNEXES SUFFICIENT AND/OR VALID, CONSIDERING
THAT IT DID NOT INCLUDE THE FINAL ACT, MINISTERIAL DECLARATIONS
AND DECISIONS, AND THE UNDERSTANDING ON COMMITMENTS IN
FINANCIAL SERVICES?
81.86. The First Issue: Does the Court Have Jurisdiction Over the
Controversy?
82.87. In seeking to nullify an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the duty
of the judiciary to settle the dispute. The question thus posed is judicial rather
than political. The duty (to adjudicate) remains to assure that the supremacy of
the Constitution is upheld.[12] Once a controversy as to the application or
interpretation of a constitutional provision is raised before this Court (as in the
instant case), it becomes a legal issue which the Court is bound by constitutional
mandate to decide.[13]
83.88. The jurisdiction of this Court to adjudicate the matters[14] raised in the
petition is clearly set out in the 1987 Constitution,[15]as follows:
84.89. 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.
85.90. The foregoing text emphasizes the judicial departments duty and power to
strike down grave abuse of discretion on the part of any branch or instrumentality
of government including Congress. It is an innovation in our political law.[16] As
explained by former Chief Justice Roberto Concepcion,[17] the judiciary is the final
arbiter on the question of whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction or so
capriciously as to constitute an abuse of discretion amounting to excess of
 jurisdiction. This is not only a judicial power but a duty to pass judgment on
matters of this nature.
86.91. As this Court has repeatedly and firmly emphasized in many cases, [18] it will
not shirk, digress from or abandon its sacred duty and authority to uphold the
Constitution in matters that involve grave abuse of discretion brought before it in
appropriate cases, committed by any officer, agency, instrumentality or
department of the government.
87.92. As the petition alleges grave abuse of discretion and as there is no other
plain, speedy or adequate remedy in the ordinary course of law, we have no
hesitation at all in holding that this petition should be given due course and the
vital questions raised therein ruled upon under Rule 65 of the Rules of
Court. Indeed, certiorari, prohibition and mandamus are appropriate remedies to
raise constitutional issues and to review and/or prohibit/nullify, when proper, acts
of legislative and executive officials. On this, we have no equivocation.
88.93. We should stress that, in deciding to take jurisdiction over this petition, this
Court will not review the wisdom of the decision of the President and the Senate
in enlisting the country into the WTO, or pass upon the merits of trade
liberalization as a policy espoused by said international body. Neither will it rule
on the propriety of the governments economic policy of reducing/removing tariffs,
taxes, subsidies, quantitative restrictions, and other import/trade barriers. Rather,
it will only exercise its constitutional duty to determine whether or not there had
been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of the Senate in ratifying the WTO Agreement and its three annexes.
89.94. Second Issue: The WTO Agreement and Economic Nationalism
90.95. This is the lis mota, the main issue, raised by the petition.
91.96. Petitioners vigorously argue that the letter, spirit and intent of the
Constitution mandating economic nationalism are violated by the so-called parity
provisions and national treatment clauses scattered in various parts not only of
the WTO Agreement and its annexes but also in the Ministerial Decisions and
Declarations and in the Understanding on Commitments in Financial Services.
92.97. Specifically, the flagship constitutional provisions referred to are Sec. 19,
Article II, and Secs. 10 and 12, Article XII, of the Constitution, which are worded
as follows:
93.98. Article II
94.99. DECLARATION OF PRINCIPLES AND STATE POLICIES
95.100. xx xx xx xx
96.101. Sec. 19. The State shall develop a self-reliant and independent national
economy effectively controlled by Filipinos.
97.102. xx xx xx xx
98.103. Article XII
99.104. NATIONAL ECONOMY AND PATRIMONY
100.105. xx xx xx xx
101.106. Sec. 10. x x x. The Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is wholly owned by
Filipinos.
102.107. In the grant of rights, privileges, and concessions covering the national
economy and patrimony, the State shall give preference to qualified Filipinos.
103.108. xx xx xx xx
104.109. Sec. 12. The State shall promote the preferential use of Filipino labor,
domestic materials and locally produced goods, and adopt measures that help
make them competitive.
105.110. Petitioners aver that these sacred constitutional principles are desecrated
by the following WTO provisions quoted in their memorandum:[19]
106.111. a) In the area of investment measures related to trade in goods
(TRIMS, for brevity):
107.112. Article 2
108.113. National Treatment and Quantitative Restrictions.
109.114. 1. Without prejudice to other rights and obligations under GATT
1994. no Member shall apply any TRIM that is inconsistent with the provisions
of Article III or Article XI of GATT 1994.
110.115. 2. An Illustrative list of TRIMS that are inconsistent with the obligations
of general elimination of quantitative restrictions provided for in paragraph I of
Article XI of GATT 1994 is contained in the Annex to this
Agreement. (Agreement on Trade-Related Investment Measures, Vol. 27,
Uruguay Round, Legal Instruments, p.22121, emphasis supplied).
111.116. The Annex referred to reads as follows:
112.117. ANNEX
113.118. Illustrative List
114.119. 1. TRIMS that are inconsistent with the obligation of national
treatment provided for in paragraph 4 of Article III of GATT 1994 include
those which are mandatory or enforceable under domestic law or under
administrative rulings, or compliance with which is necessary to obtain an
advantage, and which require:
115.120. (a) the purchase or use by an enterprise of products of domestic origin or
from any domestic source, whether specified in terms of particular products, in
terms of volume or value of products, or in terms of proportion of volume or
value of its local production; or
116.121. (b) that an enterprises purchases or use of imported products be limited
to an amount related to the volume or value of local products that it exports.
117.122. 2. TRIMS that are inconsistent with the obligations of general
elimination of quantitative restrictions provided for in paragraph 1 of Article XI
of GATT 1994 include those which are mandatory or enforceable under
domestic laws or under administrative rulings, or compliance with which is
necessary to obtain an advantage, and which restrict:
118.123. (a) the importation by an enterprise of products used in or related to the
local production that it exports;
119.124. (b) the importation by an enterprise of products used in or related to its
local production by restricting its access to foreign exchange inflows
attributable to the enterprise; or
120.125. (c) the exportation or sale for export specified in terms of particular
products, in terms of volume or value of products, or in terms of a preparation
of volume or value of its local production. (Annex to the Agreement on Trade-
Related Investment Measures, Vol. 27, Uruguay Round Legal Documents,
p.22125, emphasis supplied).
121.126. The paragraph 4 of Article III of GATT 1994 referred to is quoted as
follows:
122.127. The products of the territory of any contracting party imported into the
territory of any other contracting party shall be accorded treatment no less
favorable than that accorded to like products of national origin in respect
of laws, regulations and requirements affecting their internal sale, offering for
sale, purchase, transportation, distribution or use. the provisions of this
paragraph shall not prevent the application of differential internal transportation
charges which are based exclusively on the economic operation of the means of
transport and not on the nationality of the product. (Article III, GATT 1947, as
amended by the Protocol Modifying Part II, and Article XXVI of GATT, 14
September 1948, 62 UMTS 82-84 in relation to paragraph 1(a) of the General
Agreement on Tariffs and Trade 1994, Vol. 1, Uruguay Round, Legal
Instruments p.177, emphasis supplied).
123.128. b) In the area of trade related aspects of intellectual property rights
(TRIPS, for brevity):
124.129. Each Member shall accord to the nationals of other Members
treatment no less favourable than that it accords to its own nationalswith
regard to the protection of intellectual property... (par. 1, Article 3, Agreement
on Trade-Related Aspect of Intellectual Property rights, Vol. 31, Uruguay
Round, Legal Instruments, p.25432 (emphasis supplied)
125.130. (c) In the area of the General Agreement on Trade in Services:
126.131. National Treatment
127.132. 1. In the sectors inscribed in its schedule, and subject to any conditions
and qualifications set out therein, each Member shall accord to services and
service suppliers of any other Member, in respect of all measures affecting the
supply of services, treatment no less favourable than it accords to its own
like services and service suppliers.
128.133. 2. A Member may meet the requirement of paragraph I by according to
services and service suppliers of any other Member, either formally identical
treatment or formally different treatment to that it accords to its own like
services and service suppliers.
129.134. 3. Formally identical or formally different treatment shall be considered
to be less favourable if it modifies the conditions of completion in favour of
services or service suppliers of the Member compared to like services or
service suppliers of any other Member. (Article XVII, General Agreement on
Trade in Services, Vol. 28, Uruguay Round Legal Instruments, p.22610
emphasis supplied).
130.135. It is petitioners position that the foregoing national treatment and parity
provisions of the WTO Agreement place nationals and products of member
countries on the same footing as Filipinos and local products, in contravention of
the Filipino Firstpolicy of the Constitution. They allegedly render meaningless the
phrase effectively controlled by Filipinos. The constitutional conflict becomes
more manifest when viewed in the context of the clear duty imposed on the
Philippines as a WTO member to ensure the conformity of its laws, regulations
and administrative procedures with its obligations as provided in the annexed
agreements.[20] Petitioners further argue that these provisions contravene
constitutional limitations on the role exports play in national development and
negate the preferential treatment accorded to Filipino labor, domestic materials
and locally produced goods.
131.136. On the other hand, respondents through the Solicitor General counter (1)
that such Charter provisions are not self-executing and merely set out general
policies; (2) that these nationalistic portions of the Constitution invoked by
petitioners should not be read in isolation but should be related to other relevant
provisions of Art. XII, particularly Secs. 1 and 13 thereof; (3) that read properly,
the cited WTO clauses do not conflict with the Constitution; and (4) that the WTO
Agreement contains sufficient provisions to protect developing countries like the
Philippines from the harshness of sudden trade liberalization.
132.137. We shall now discuss and rule on these arguments.
133.138. Declaration of Principles Not Self-Executing
134.139. By its very title, Article II of the Constitution is a declaration of principles
and state policies. The counterpart of this article in the 1935 Constitution[21] is
called the basic political creed of the nation by Dean Vicente Sinco.[22] These
principles in Article II are not intended to be self-executing principles ready for
enforcement through the courts.[23] They are used by the judiciary as aids or as
guides in the exercise of its power of judicial review, and by the legislature in its
enactment of laws. As held in the leading case of Kilosbayan, Incorporated vs.
Morato,[24] the principles and state policies enumerated in Article II and some
sections of Article XII are not self-executing provisions, the disregard of which
can give rise to a cause of action in the courts.They do not embody judicially
enforceable constitutional rights but guidelines for legislation.
135.140. In the same light, we held in Basco vs. Pagcor[25] that broad constitutional
principles need legislative enactments to implement them, thus:
136.141. On petitioners allegation that P.D. 1869 violates Sections 11 (Personal
Dignity) 12 (Family) and 13 (Role of Youth) of Article II; Section 13 (Social
Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of
the 1987 Constitution, suffice it to state also that these are merely statements of
 principles and policies. As such, they are basically not self-executing, meaning
a law should be passed by Congress to clearly define and effectuate such
principles.
137.142. In general, therefore, the 1935 provisions were not intended to be self-
executing principles ready for enforcement through the courts. They were
rather directives addressed to the executive and to the legislature. If the
executive and the legislature failed to heed the directives of the article, the
available remedy was not judicial but political. The electorate could express
their displeasure with the failure of the executive and the legislature through the
language of the ballot. (Bernas, Vol. II, p. 2).
138.143. The reasons for denying a cause of action to an alleged infringement of
broad constitutional principles are sourced from basic considerations of due
process and the lack of judicial authority to wade into the uncharted ocean of
social and economic policy making. Mr. Justice Florentino P. Feliciano in his
concurring opinion in Oposa vs. Factoran, Jr.,[26] explained these reasons as
follows:
139.144. My suggestion is simply that petitioners must, before the trial court,
show a more specific legal right -- a right cast in language of a significantly
lower order of generality than Article II (15) of the Constitution -- that is or
may be violated by the actions, or failures to act, imputed to the public
respondent by petitioners so that the trial court can validly render judgment
granting all or part of the relief prayed for.To my mind, the court should be
understood as simply saying that such a more specific legal right or rights may
well exist in our corpus of law, considering the general policy principles found
in the Constitution and the existence of the Philippine Environment Code, and
that the trial court should have given petitioners an effective opportunity so to
demonstrate, instead of aborting the proceedings on a motion to dismiss.
140.145. It seems to me important that the legal right which is an essential
component of a cause of action be a specific, operable legal right, rather than a
constitutional or statutory policy, for at least two (2) reasons. One is that unless
the legal right claimed to have been violated or disregarded is given
specification in operational terms, defendants may well be unable to defend
themselves intelligently and effectively; in other words, there are due process
dimensions to this matter.
141.146. The second is a broader-gauge consideration -- where a specific violation
of law or applicable regulation is not alleged or proved, petitioners can be
expected to fall back on the expanded conception of judicial power in the
second paragraph of Section 1 of Article VIII of the Constitution which reads:
142.147. Section 1. x x x
143.148. Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
 amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. (Emphases supplied)
144.149. When substantive standards as general as the right to a balanced and
healthy ecology and the right to health are combined with remedial standards as
broad ranging as a grave abuse of discretion amounting to lack or excess of
jurisdiction, the result will be, it is respectfully submitted, to propel courts into
the uncharted ocean of social and economic policy making. At least in respect
of the vast area of environmental protection and management, our courts have
no claim to special technical competence and experience and professional
qualification. Where no specific, operable norms and standards are shown to
exist, then the policy making departments -- the legislative and executive
departments -- must be given a real and effective opportunity to fashion and
promulgate those norms and standards, and to implement them before the
courts should intervene.
145.150. Economic Nationalism Should Be Read with Other Constitutional
Mandates to Attain Balanced Development of Economy
146.151. On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying
down general principles relating to the national economy and patrimony, should
be read and understood in relation to the other sections in said article, especially
Secs. 1 and 13 thereof which read:
147.152. Section 1. The goals of the national economy are a more equitable
distribution of opportunities, income, and wealth; a sustained increase in the
amount of goods and services produced by the nation for the benefit of the
people; and an expanding productivity as the key to raising the quality of life
for all, especially the underprivileged.
148.153. 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.
149.154. In the pursuit of these goals, all sectors of the economy and all regions of
the country shall be given optimum opportunity to develop. x x x
150.155. x x x x x x x x x
151.156. Sec. 13. The State shall pursue a trade policy that serves the general
welfare and utilizes all forms and arrangements of exchange on the basis of
equality and reciprocity.
152.157. As pointed out by the Solicitor General, Sec. 1 lays down the basic goals
of national economic development, as follows:
153.158. 1. A more equitable distribution of opportunities, income and wealth;
154.159. 2. A sustained increase in the amount of goods and services provided by
the nation for the benefit of the people; and
155.160. 3. An expanding productivity as the key to raising the quality of life for all
especially the underprivileged.
156.161. With these goals in context, the Constitution then ordains the ideals of
economic nationalism (1) by expressing preference in favor of qualified Filipinos
in the grant of rights, privileges and concessions covering the national economy
and patrimony[27]and in the use of Filipino labor, domestic materials and locally-
produced goods; (2) by mandating the State to adopt measures that help make
them competitive;[28] and (3) by requiring the State to develop a self-reliant and
independent national economy effectively controlled by Filipinos.[29] In similar
language, the Constitution takes into account the realities of the outside world as
it requires the pursuit of a trade policy that serves the general welfare and utilizes
all forms and arrangements of exchange on the basis of equality and
reciprocity;[30] and speaks of industries which are competitive in both domestic and
foreign markets as well as of the protection of Filipino enterprises against unfair
foreign competition and trade practices.
157.162. It is true that in the recent case of Manila Prince Hotel vs. Government
Service Insurance System, et al.,[31] this Court held that Sec. 10, second par., Art.
XII of the 1987 Constitution is a mandatory, positive command which is complete
in itself and which needs no further guidelines or implementing laws or rules for
its enforcement. From its very words the provision does not require any
legislation to put it in operation. It is per se judicially enforceable. However, as
the constitutional provision itself states, it is enforceable only in regard to the
grants of rights, privileges and concessions covering national economy and
patrimony and not to every aspect of trade and commerce. It refers to exceptions
rather than the rule. The issue here is not whether this paragraph of Sec. 10 of
Art. XII is self-executing or not. Rather, the issue is whether, as a rule, there are
enough balancing provisions in the Constitution to allow the Senate to ratify the
Philippine concurrence in the WTO Agreement. And we hold that there are.
158.163. All told, while the Constitution indeed mandates a bias in favor of Filipino
goods, services, labor and enterprises, at the same time, it recognizes the need
for business exchange with the rest of the world on the bases of equality and
reciprocity and limits protection of Filipino enterprises only against foreign
competition and trade practices that are unfair.[32] In other words, the Constitution
did not intend to pursue an isolationist policy. It did not shut out foreign
investments, goods and services in the development of the Philippine
economy. While the Constitution does not encourage the unlimited entry of
foreign goods, services and investments into the country, it does not prohibit
them either. In fact, it allows an exchange on the basis of equality and reciprocity,
frowning only on foreign competition that is unfair.
159.164. WTO Recognizes Need to Protect Weak Economies
160.165. Upon the other hand, respondents maintain that the WTO itself has some
built-in advantages to protect weak and developing economies, which comprise
the vast majority of its members. Unlike in the UN where major states have
permanent seats and veto powers in the Security Council, in the WTO, decisions
are made on the basis of sovereign equality, with each members vote equal in
 weight to that of any other. There is no WTO equivalent of the UN Security
Council.
161.166. WTO decides by consensus whenever possible, otherwise, decisions of
the Ministerial Conference and the General Council shall be taken by the
majority of the votes cast, except in cases of interpretation of the Agreement or
waiver of the obligation of a member which would require three fourths
vote. Amendments would require two thirds vote in general. Amendments to
MFN provisions and the Amendments provision will require assent of all
members. Any member may withdraw from the Agreement upon the expiration
of six months from the date of notice of withdrawals. [33]

162.167. Hence, poor countries can protect their common interests more effectively
through the WTO than through one-on-one negotiations with developed
countries. Within the WTO, developing countries can form powerful blocs to push
their economic agenda more decisively than outside the Organization. This is not
merely a matter of practical alliances but a negotiating strategy rooted in
law. Thus, the basic principles underlying the WTO Agreement recognize the
need of developing countries like the Philippines to share in the growth in
international trade commensurate with the needs of their economic
development.These basic principles are found in the preamble[34] of the WTO
Agreement as follows:
163.168. The Parties to this Agreement,
164.169. Recognizing that their relations in the field of trade and economic
endeavour should be conducted with a view to raising standards of living,
ensuring full employment and a large and steadily growing volume of real
income and effective demand, and expanding the production of and trade in
goods and services, while allowing for the optimal use of the worlds resources
in accordance with the objective of sustainable development, seeking both to
protect and preserve the environment and to enhance the means for doing so in
a manner consistent with their respective needs and concerns at different levels
of economic development,
165.170. Recognizing further that there is need for positive efforts designed to
ensure that developing countries, and especially the least developed among
them, secure a share in the growth in international trade commensurate with the
needs of their economic development,
166.171. Being desirous of contributing to these objectives by entering into
reciprocal and mutually advantageous arrangements directed to the substantial
reduction of tariffs and other barriers to trade and to the elimination of
discriminatory treatment in international trade relations,
167.172. Resolved, therefore, to develop an integrated, more viable and durable
multilateral trading system encompassing the General Agreement on Tariffs
and Trade, the results of past trade liberalization efforts, and all of the results of
the Uruguay Round of Multilateral Trade Negotiations,
168.173. Determined to preserve the basic principles and to further the objectives
underlying this multilateral trading system, x x x. (underscoring supplied.)
169.174. Specific WTO Provisos Protect Developing Countries
170.175. So too, the Solicitor General points out that pursuant to and consistent
with the foregoing basic principles, the WTO Agreement grants developing
countries a more lenient treatment, giving their domestic industries some
protection from the rush of foreign competition. Thus, with respect to tariffs in
general, preferential treatment is given to developing countries in terms of
the amount of tariff reduction and the period within which the reduction is to be
spread out. Specifically, GATT requires an average tariff reduction rate of 36%
for developed countries to be effected within a period of six (6) years while
developing countries -- including the Philippines -- are required to effect an
average tariff reduction of only 24% within ten (10) years.
171.176. In respect to domestic subsidy, GATT requires developed countries to
reduce domestic support to agricultural products by 20% over six (6) years, as
compared to only 13% for developing countries to be effected within ten (10)
years.
172.177. In regard to export subsidy for agricultural products, GATT requires
developed countries to reduce their budgetary outlays for export subsidy by
36% and export volumes receiving export subsidy by 21% within a period of six
(6) years. For developing countries, however, the reduction rate is only two-
thirds of that prescribed for developed countries and a longer period of ten (10)
years within which to effect such reduction.
173.178. Moreover, GATT itself has provided built-in protection from unfair foreign
competition and trade practices including anti-dumping measures, countervailing
measures and safeguards against import surges. Where local businesses are
jeopardized by unfair foreign competition, the Philippines can avail of these
measures. There is hardly therefore any basis for the statement that under the
WTO, local industries and enterprises will all be wiped out and that Filipinos will
be deprived of control of the economy. Quite the contrary, the weaker situations
of developing nations like the Philippines have been taken into account; thus,
there would be no basis to say that in joining the WTO, the respondents have
gravely abused their discretion. True, they have made a bold decision to steer
the ship of state into the yet uncharted sea of economic liberalization. But such
decision cannot be set aside on the ground of grave abuse of discretion, simply
because we disagree with it or simply because we believe only in other economic
policies. As earlier stated, the Court in taking jurisdiction of this case will not pass
upon the advantages and disadvantages of trade liberalization as an economic
policy. It will only perform its constitutional duty of determining whether the
Senate committed grave abuse of discretion.
174.179. Constitution Does Not Rule Out Foreign Competition
175.180. Furthermore, the constitutional policy of a self-reliant and independent
national economy[35] does not necessarily rule out the entry of foreign
investments, goods and services. It contemplates neither economic seclusion nor
mendicancy in the international community. As explained by Constitutional
Commissioner Bernardo Villegas, sponsor of this constitutional policy:
176.181. Economic self-reliance is a primary objective of a developing country
that is keenly aware of overdependence on external assistance for even its most
basic needs. It does not mean autarky or economic seclusion; rather, it means
avoiding mendicancy in the international community. Independence refers to
the freedom from undue foreign control of the national economy, especially in
such strategic industries as in the development of natural resources and public
utilities.
[36]

177.182. The WTO reliance on most favored nation, national treatment, and trade
without discrimination cannot be struck down as unconstitutional as in fact they
are rules of equality and reciprocity that apply to all WTO members. Aside from
envisioning a trade policy based on equality and reciprocity, [37] the fundamental
law encourages industries that are competitive in both domestic and foreign
markets, thereby demonstrating a clear policy against a sheltered domestic trade
environment, but one in favor of the gradual development of robust industries
that can compete with the best in the foreign markets. Indeed, Filipino managers
and Filipino enterprises have shown capability and tenacity to compete
internationally. And given a free trade environment, Filipino entrepreneurs and
managers in Hongkong have demonstrated the Filipino capacity to grow and to
prosper against the best offered under a policy of laissez faire.
178.183. Constitution Favors Consumers, Not Industries or Enterprises
179.184. The Constitution has not really shown any unbalanced bias in favor of any
business or enterprise, nor does it contain any specific pronouncement that
Filipino companies should be pampered with a total
proscription of foreign competition. On theother hand, respondents claim that
WTO/GATT aims to make available to the Filipino consumer the best goods and
services obtainable anywhere in the world at the most reasonable
prices. Consequently, the question boils down to whether WTO/GATT will favor
the general welfare of the public at large.
180.185. Will adherence to the WTO treaty bring this ideal (of favoring the general
welfare) to reality?
181.186. Will WTO/GATT succeed in promoting the Filipinos general welfare
because it will -- as promised by its promoters -- expand the countrys exports
and generate more employment?
182.187. Will it bring more prosperity, employment, purchasing power and quality
products at the most reasonable rates to the Filipino public?
183.188. The responses to these questions involve judgment calls by our policy
makers, for which they are answerable to our people during appropriate electoral
exercises. Such questions and the answers thereto are not subject to judicial
pronouncements based on grave abuse of discretion.
184.189. Constitution Designed to Meet Future Events and Contingencies
185.190. No doubt, the WTO Agreement was not yet in existence when the
Constitution was drafted and ratified in 1987. That does not mean however that
the Charter is necessarily flawed in the sense that its framers might not have
anticipated the advent of a borderless world of business. By the same token, the
United Nations was not yet in existence when the 1935 Constitution became
effective. Did that necessarily mean that the then Constitution might not have
 contemplated a diminution of the absoluteness of sovereignty when the
Philippines signed the UN Charter, thereby effectively surrendering part of its
control over its foreign relations to the decisions of various UN organs like the
Security Council?
186.191. It is not difficult to answer this question. Constitutions are designed to
meet not only the vagaries of contemporary events.They should be interpreted to
cover even future and unknown circumstances. It is to the credit of its drafters
that a Constitution can withstand the assaults of bigots and infidels but at the
same time bend with the refreshing winds of change necessitated by unfolding
events. As one eminent political law writer and respected jurist[38] explains:
187.192. The Constitution must be quintessential rather than superficial, the root
and not the blossom, the base and framework only of the edifice that is yet to
rise. It is but the core of the dream that must take shape, not in a twinkling by
mandate of our delegates, but slowly in the crucible of Filipino minds and
hearts, where it will in time develop its sinews and gradually gather its strength
and finally achieve its substance. In fine, the Constitution cannot, like the
goddess Athena, rise full-grown from the brow of the Constitutional
Convention, nor can it conjure by mere fiat an instant Utopia. It must grow with
the society it seeks to re-structure and march apace with the progress of the
race, drawing from the vicissitudes of history the dynamism and vitality that
will keep it, far from becoming a petrified rule, a pulsing, living law attuned to
the heartbeat of the nation.
188.193. Third Issue: The WTO Agreement and Legislative Power
189.194. The WTO Agreement provides that (e)ach Member shall ensure the
conformity of its laws, regulations and administrative procedures with its
obligations as provided in the annexed Agreements.[39] Petitioners maintain that
this undertaking unduly limits, restricts and impairs Philippine sovereignty,
specifically the legislative power which under Sec. 2, Article VI of the 1987
Philippine Constitution is vested in the Congress of the Philippines. It is an
assault on the sovereign powers of the Philippines because this means that
Congress could not pass legislation that will be good for our national interest and
general welfare if such legislation will not conform with the WTO Agreement,
which not only relates to the trade in goods x x x but also to the flow of
investments and money x x x as well as to a whole slew of agreements on socio-
cultural matters x x x.[40]
190.195. More specifically, petitioners claim that said WTO proviso derogates from
the power to tax, which is lodged in the Congress.[41] And while the Constitution
allows Congress to authorize the President to fix tariff rates, import and export
quotas, tonnage and wharfage dues, and other duties or imposts, such authority
is subject to specified limits and x x x such limitations and restrictions as
Congress may provide,[42] as in fact it did under Sec. 401 of the Tariff and
Customs Code.
191.196. Sovereignty Limited by International Law and Treaties
192.197. This Court notes and appreciates the ferocity and passion by which
petitioners stressed their arguments on this issue.However, while sovereignty
 has traditionally been deemed absolute and all-encompassing on the domestic
level, it is however subject to restrictions and limitations voluntarily agreed to by
the Philippines, expressly or impliedly, as a member of the family of
nations. Unquestionably, the Constitution did not envision a hermit-type isolation
of the country from the rest of the world. In its Declaration of Principles and State
Policies, the Constitution adopts the generally accepted principles of international
law as part of the law of the land, and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity, with all nations."[43] By the doctrine of
incorporation, the country is bound by generally accepted principles of
international law, which are considered to be automatically part of our own
laws.[44] One of the oldest and most fundamental rules in international law is pacta
sunt servanda -- international agreements must be performed in good faith. A
treaty engagement is not a mere moral obligation but creates a legally binding
obligation on the parties x x x. A state which has contracted valid international
obligations is bound to make in its legislations such modifications as may be
necessary to ensure the fulfillment of the obligations undertaken.[45]
193.198. By their inherent nature, treaties really limit or restrict the absoluteness of
sovereignty. By their voluntary act, nations may surrender some aspects of their
state power in exchange for greater benefits granted by or derived from a
convention or pact.After all, states, like individuals, live with coequals, and in
pursuit of mutually covenanted objectives and benefits, they also commonly
agree to limit the exercise of their otherwise absolute rights. Thus, treaties have
been used to record agreements between States concerning such widely diverse
matters as, for example, the lease of naval bases, the sale or cession of territory,
the termination of war, the regulation of conduct of hostilities, the formation of
alliances, the regulation of commercial relations, the settling of claims, the laying
down of rules governing conduct in peace and the establishment of international
organizations.[46] The sovereignty of a state therefore cannot in fact and in reality
be considered absolute. Certain restrictions enter into the picture: (1) limitations
imposed by the very nature of membership in the family of nations and (2)
limitations imposed by treaty stipulations. As aptly put by John F. Kennedy,
Today, no nation can build its destiny alone. The age of self-sufficient nationalism
is over. The age of interdependence is here.[47]
194.199. UN Charter and Other Treaties Limit Sovereignty
195.200. Thus, when the Philippines joined the United Nations as one of its 51
charter members, it consented to restrict its sovereign rights under the concept of
sovereignty as auto-limitation.47-A Under Article 2 of the UN Charter, (a)ll
members shall give the United Nations every assistance in any action it takes in
accordance with the present Charter, and shall refrain from giving assistance to
any state against which the United Nations is taking preventive or enforcement
action. Such assistance includes payment of its corresponding share not merely
in administrative expenses but also in expenditures for the peace-keeping
operations of the organization. In its advisory opinion of July 20, 1961, the
International Court of Justice held that money used by the United Nations
Emergency Force in the Middle East and in the Congo were expenses of the
United Nations under Article 17, paragraph 2, of the UN Charter. Hence, all its
 members must bear their corresponding share in such expenses. In this sense,
the Philippine Congress is restricted in its power to appropriate. It is compelled to
appropriate funds whether it agrees with such peace-keeping expenses or
not. So too, under Article 105 of the said Charter, the UN and its representatives
enjoy diplomatic privileges and immunities, thereby limiting again the exercise of
sovereignty of members within their own territory. Another example: although
sovereign equality and domestic jurisdiction of all members are set forth as
underlying principles in the UN Charter, such provisos are however subject to
enforcement measures decided by the Security Council for the maintenance of
international peace and security under Chapter VII of the Charter. A final
example: under Article 103, (i)n the event of a conflict between the obligations of
the Members of the United Nations under the present Charter and their
obligations under any other international agreement, their obligation under the
present charter shall prevail, thus unquestionably denying the Philippines -- as a
member -- the sovereign power to make a choice as to which of conflicting
obligations, if any, to honor.
196.201. Apart from the UN Treaty, the Philippines has entered into many other
international pacts -- both bilateral and multilateral -- that involve limitations on
Philippine sovereignty. These are enumerated by the Solicitor General in his
Compliance dated October 24, 1996, as follows:
197.202. (a) Bilateral convention with the United States regarding taxes on
income, where the Philippines agreed, among others, to exempt from tax,
income received in the Philippines by, among others, the Federal Reserve Bank
of the United States, the Export/Import Bank of the United States, the Overseas
Private Investment Corporation of the United States. Likewise, in said
convention, wages, salaries and similar remunerations paid by the United States
to its citizens for labor and personal services performed by them as employees
or officials of the United States are exempt from income tax by the Philippines.
198.203. (b) Bilateral agreement with Belgium, providing, among others, for the
avoidance of double taxation with respect to taxes on income.
199.204. (c) Bilateral convention with the Kingdom of Sweden for the avoidance
of double taxation.
200.205. (d) Bilateral convention with the French Republic for the avoidance of
double taxation.
201.206. (e) Bilateral air transport agreement with Korea where the Philippines
agreed to exempt from all customs duties, inspection fees and other duties or
taxes aircrafts of South Korea and the regular equipment, spare parts and
supplies arriving with said aircrafts.
202.207. (f) Bilateral air service agreement with Japan, where the Philippines
agreed to exempt from customs duties, excise taxes, inspection fees and other
similar duties, taxes or charges fuel, lubricating oils, spare parts, regular
equipment, stores on board Japanese aircrafts while on Philippine soil.
203.208. (g) Bilateral air service agreement with Belgium where the Philippines
granted Belgian air carriers the same privileges as those granted to Japanese
and Korean air carriers under separate air service agreements.
204.209. (h) Bilateral notes with Israel for the abolition of transit and visitor visas
where the Philippines exempted Israeli nationals from the requirement of
obtaining transit or visitor visas for a sojourn in the Philippines not exceeding
59 days.
205.210. (I) Bilateral agreement with France exempting French nationals from the
requirement of obtaining transit and visitor visa for a sojourn not exceeding 59
days.
206.211. (j) Multilateral Convention on Special Missions, where the Philippines
agreed that premises of Special Missions in the Philippines are inviolable and
its agents can not enter said premises without consent of the Head of Mission
concerned. Special Missions are also exempted from customs duties, taxes and
related charges.
207.212. (k) Multilateral Convention on the Law of Treaties. In this convention,
the Philippines agreed to be governed by the Vienna Convention on the Law of
Treaties.
208.213. (l) Declaration of the President of the Philippines accepting compulsory
jurisdiction of the International Court of Justice. The International Court of
Justice has jurisdiction in all legal disputes concerning the interpretation of a
treaty, any question of international law, the existence of any fact which, if
established, would constitute a breach of international obligation.
209.214. In the foregoing treaties, the Philippines has effectively agreed to limit the
exercise of its sovereign powers of taxation, eminent domain and police
power. The underlying consideration in this partial surrender of sovereignty is the
reciprocal commitment of the other contracting states in granting the same
privilege and immunities to the Philippines, its officials and its citizens. The same
reciprocity characterizes the Philippine commitments under WTO-GATT.
210.215. International treaties, whether relating to nuclear disarmament, human
rights, the environment, the law of the sea, or trade, constrain domestic political
sovereignty through the assumption of external obligations. But unless anarchy
in international relations is preferred as an alternative, in most cases we accept
that the benefits of the reciprocal obligations involved outweigh the costs
associated with any loss of political sovereignty. (T)rade treaties that structure
relations by reference to durable, well-defined substantive norms and objective
dispute resolution procedures reduce the risks of larger countries exploiting raw
economic power to bully smaller countries, by subjecting power relations to
some form of legal ordering. In addition, smaller countries typically stand to
gain disproportionately from trade liberalization.This is due to the simple fact
that liberalization will provide access to a larger set of potential new trading
 relationship than in case of the larger country gaining enhanced success to the
smaller countrys market. [48]

211.216. The point is that, as shown by the foregoing treaties, a portion of

sovereignty may be waived without violating the Constitution, based on the
rationale that the Philippines adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of x x x
cooperation and amity with all nations.
212.217. Fourth Issue: The WTO Agreement and Judicial Power
213.218. Petitioners aver that paragraph 1, Article 34 of the General Provisions and
Basic Principles of the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS)[49] intrudes on the power of the Supreme Court to
promulgate rules concerning pleading, practice and procedures.[50]
214.219. To understand the scope and meaning of Article 34, TRIPS, [51] it will be
fruitful to restate its full text as follows:
215.220. Article 34
216.221. Process Patents: Burden of Proof
217.222. 1. For the purposes of civil proceedings in respect of the infringement of
the rights of the owner referred to in paragraph 1(b) of Article 28, if the subject
matter of a patent is a process for obtaining a product, the judicial authorities
shall have the authority to order the defendant to prove that the process to
obtain an identical product is different from the patented process. Therefore,
Members shall provide, in at least one of the following circumstances, that any
identical product when produced without the consent of the patent owner shall,
in the absence of proof to the contrary, be deemed to have been obtained by the
patented process:
218.223. (a) if the product obtained by the patented process is new;
219.224. (b) if there is a substantial likelihood that the identical product was made
by the process and the owner of the patent has been unable through reasonable
efforts to determine the process actually used.
220.225. 2. Any Member shall be free to provide that the burden of proof
indicated in paragraph 1 shall be on the alleged infringer only if the condition
referred to in subparagraph (a) is fulfilled or only if the condition referred to in
subparagraph (b) is fulfilled.
221.226. 3. In the adduction of proof to the contrary, the legitimate interests of
defendants in protecting their manufacturing and business secrets shall be taken
into account.
222.227. From the above, a WTO Member is required to provide a rule of
disputable (note the words in the absence of proof to the contrary) presumption
that a product shown to be identical to one produced with the use of a patented
process shall be deemed to have been obtained by the (illegal) use of the said
patented process, (1) where such product obtained by the patented product is
new, or (2) where there is substantial likelihood that the identical product was
made with the use of the said patented process but the owner of the patent could
 not determine the exact process used in obtaining such identical product.Hence,
the burden of proof contemplated by Article 34 should actually be understood as
the duty of the alleged patent infringer to overthrow such presumption. Such
burden, properly understood, actually refers to the burden of evidence (burden of
going forward) placed on the producer of the identical (or fake) product to show
that his product was produced without the use of the patented process.
223.228. The foregoing notwithstanding, the patent owner still has the burden of
proof since, regardless of the presumption provided under paragraph 1 of Article
34, such owner still has to introduce evidence of the existence of the alleged
identical product, the fact that it is identical to the genuine one produced by the
patented process and the fact of newness of the genuine product or the fact of
substantial likelihood that the identical product was made by the patented
process.
224.229. The foregoing should really present no problem in changing the rules of
evidence as the present law on the subject, Republic Act No. 165, as amended,
otherwise known as the Patent Law, provides a similar presumption in cases of
infringement of patented design or utility model, thus:
225.230. SEC. 60. Infringement. - Infringement of a design patent or of a patent
for utility model shall consist in unauthorized copying of the patented design or
utility model for the purpose of trade or industry in the article or product and in
the making, using or selling of the article or product copying the patented
design or utility model. Identity or substantial identity with the patented design
or utility model shall constitute evidence of copying. (underscoring supplied)
226.231. Moreover, it should be noted that the requirement of Article 34 to provide a
disputable presumption applies only if (1) the product obtained by the patented
process is NEW or (2) there is a substantial likelihood that the identical product
was made by the process and the process owner has not been able through
reasonable effort to determine the process used. Where either of these
two provisos does not obtain, members shall be free to determine the appropriate
method of implementing the provisions of TRIPS within their own internal
systems and processes.
227.232. By and large, the arguments adduced in connection with our disposition of
the third issue -- derogation of legislative power - will apply to this fourth issue
also. Suffice it to say that the reciprocity clause more than justifies such intrusion,
if any actually exists. Besides, Article 34 does not contain an unreasonable
burden, consistent as it is with due process and the concept of adversarial
dispute settlement inherent in our judicial system.
228.233. So too, since the Philippine is a signatory to most international
conventions on patents, trademarks and copyrights, the adjustment in legislation
and rules of procedure will not be substantial.[52]
229.234. Fifth Issue: Concurrence Only in the WTO Agreement and Not in
Other Documents Contained in the Final Act
230.235. Petitioners allege that the Senate concurrence in the WTO Agreement and
its annexes -- but not in the other documents referred to in the Final Act, namely
the Ministerial Declaration and Decisions and the Understanding on
Commitments in Financial Services -- is defective and insufficient and thus
 constitutes abuse of discretion. They submit that such concurrence in the WTO
Agreement alone is flawed because it is in effect a rejection of the Final Act,
which in turn was the document signed by Secretary Navarro, in representation
of the Republic upon authority of the President. They contend that the second
letter of the President to the Senate[53] which enumerated what constitutes the
Final Act should have been the subject of concurrence of the Senate.
231.236. A final act, sometimes called protocol de clture, is an instrument which
records the winding up of the proceedings of a diplomatic conference and usually
includes a reproduction of the texts of treaties, conventions, recommendations
and other acts agreed upon and signed by the plenipotentiaries attending the
conference.[54] It is not the treaty itself. It is rather a summary of the proceedings
of a protracted conference which may have taken place over several years. The
text of the Final Act Embodying the Results of the Uruguay Round of Multilateral
Trade Negotiations is contained in just one page[55] in Vol. I of the 36-
volume Uruguay Round of Multilateral Trade Negotiations. By signing said Final
Act, Secretary Navarro as representative of the Republic of the Philippines
undertook:
232.237. "(a) to submit, as appropriate, the WTO Agreement for the consideration
of their respective competent authorities with a view to seeking approval of the
Agreement in accordance with their procedures; and
233.238. (b) to adopt the Ministerial Declarations and Decisions."
234.239. The assailed Senate Resolution No. 97 expressed concurrence in exactly
what the Final Act required from its signatories, namely, concurrence of the
Senate in the WTO Agreement.
235.240. The Ministerial Declarations and Decisions were deemed adopted without
need for ratification. They were approved by the ministers by virtue of Article
XXV: 1 of GATT which provides that representatives of the members can meet to
give effect to those provisions of this Agreement which invoke joint action, and
generally with a view to facilitating the operation and furthering the objectives of
this Agreement.[56]
236.241. The Understanding on Commitments in Financial Services also approved
in Marrakesh does not apply to the Philippines. It applies only to those 27
Members which have indicated in their respective schedules of commitments on
standstill, elimination of monopoly, expansion of operation of existing financial
service suppliers, temporary entry of personnel, free transfer and processing of
information, and national treatment with respect to access to payment, clearing
systems and refinancing available in the normal course of business.[57]
237.242. On the other hand, the WTO Agreement itself expresses what multilateral
agreements are deemed included as its integral parts,[58] as follows:
238.243. Article II
239.244. Scope of the WTO
240.245. 1. The WTO shall provide the common institutional framework for the
conduct of trade relations among its Members in matters to the agreements and
associated legal instruments included in the Annexes to this Agreement.
241.246. 2. The Agreements and associated legal instruments included in Annexes
1, 2, and 3 (hereinafter referred to as Multilateral Agreements) are integral parts
of this Agreement, binding on all Members.
242.247. 3. The Agreements and associated legal instruments included in Annex 4
(hereinafter referred to as Plurilateral Trade Agreements) are also part of this
Agreement for those Members that have accepted them, and are binding on
those Members. The Plurilateral Trade Agreements do not create either
obligation or rights for Members that have not accepted them.
243.248. 4. The General Agreement on Tariffs and Trade 1994 as specified in
annex 1A (hereinafter referred to as GATT 1994) is legally distinct from the
General Agreement on Tariffs and Trade, dated 30 October 1947, annexed to
the Final Act adopted at the conclusion of the Second Session of the
Preparatory Committee of the United Nations Conference on Trade and
Employment, as subsequently rectified, amended or modified (hereinafter
referred to as GATT 1947).
244.249. It should be added that the Senate was well-aware of what it was
concurring in as shown by the members deliberation on August 25, 1994. After
reading the letter of President Ramos dated August 11, 1994,[59] the senators of
the Republic minutely dissected what the Senate was concurring in, as follows: [60]
245.250. THE CHAIRMAN: Yes. Now, the question of the validity of the
submission came up in the first day hearing of this Committee yesterday.Was
the observation made by Senator Taada that what was submitted to the Senate
was not the agreement on establishing the World Trade Organization by the
final act of the Uruguay Round which is not the same as the agreement
establishing the World Trade Organization? And on that basis, Senator
Tolentino raised a point of order which, however, he agreed to withdraw upon
understanding that his suggestion for an alternative solution at that time was
acceptable. That suggestion was to treat the proceedings of the Committee as
being in the nature of briefings for Senators until the question of the submission
could be clarified.
246.251. And so, Secretary Romulo, in effect, is the President submitting a new...
is he making a new submission which improves on the clarity of the first
submission?
247.252. MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there
should be no misunderstanding, it was his intention to clarify all matters by
giving this letter.
248.253. THE CHAIRMAN: Thank you.
249.254. Can this Committee hear from Senator Taada and later on Senator
Tolentino since they were the ones that raised this question yesterday?
250.255. Senator Taada, please.
251.256. SEN. TAADA: Thank you, Mr. Chairman.
252.257. Based on what Secretary Romulo has read, it would now clearly appear
that what is being submitted to the Senate for ratification is not the Final Act of
the Uruguay Round, but rather the Agreement on the World Trade Organization
as well as the Ministerial Declarations and Decisions, and the Understanding
and Commitments in Financial Services.
253.258. I am now satisfied with the wording of the new submission of President
Ramos.
254.259. SEN. TAADA. . . . of President Ramos, Mr. Chairman.
255.260. THE CHAIRMAN. Thank you, Senator Taada. Can we hear from
Senator Tolentino? And after him Senator Neptali Gonzales and Senator Lina.
256.261. SEN TOLENTINO, Mr. Chairman, I have not seen the new submission
actually transmitted to us but I saw the draft of his earlier, and I think it now
complies with the provisions of the Constitution, and with the Final Act
itself. The Constitution does not require us to ratify the Final Act. It requires us
to ratify the Agreement which is now being submitted. The Final Act itself
specifies what is going to be submitted to with the governments of the
participants.
257.262. In paragraph 2 of the Final Act, we read and I quote:
258.263. By signing the present Final Act, the representatives agree: (a) to submit
as appropriate the WTO Agreement for the consideration of the respective
competent authorities with a view to seeking approval of the Agreement in
accordance with their procedures.
259.264. In other words, it is not the Final Act that was agreed to be submitted to
the governments for ratification or acceptance as whatever their constitutional
procedures may provide but it is the World Trade Organization
Agreement. And if that is the one that is being submitted now, I think it
satisfies both the Constitution and the Final Act itself.
260.265. Thank you, Mr. Chairman.
261.266. THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator
Gonzales.
262.267. SEN. GONZALES. Mr. Chairman, my views on this matter are already a
matter of record. And they had been adequately reflected in the journal of
yesterdays session and I dont see any need for repeating the same.
263.268. Now, I would consider the new submission as an act ex abudante
cautela.
264.269. THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you
want to make any comment on this?
265.270. SEN. LINA. Mr. President, I agree with the observation just made by
Senator Gonzales out of the abundance of question. Then the new submission
is, I believe, stating the obvious and therefore I have no further comment to
make.
 266.271. Epilogue
267.272. In praying for the nullification of the Philippine ratification of the WTO
Agreement, petitioners are invoking this Courts constitutionally imposed duty to
determine whether or not there has been grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the Senate in giving its concurrence
therein via Senate Resolution No. 97. Procedurally, a writ of certiorari grounded
on grave abuse of discretion may be issued by the Court under Rule 65 of the
Rules of Court when it is amply shown that petitioners have no other plain,
speedy and adequate remedy in the ordinary course of law.
268.273. By grave abuse of discretion is meant such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction.[61] Mere abuse of
discretion is not enough. It must be grave abuse of discretion as when the power
is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, and must be so patent and so gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.[62] Failure on the part of the petitioner to show grave abuse
of discretion will result in the dismissal of the petition.[63]
269.274. In rendering this Decision, this Court never forgets that the Senate, whose
act is under review, is one of two sovereign houses of Congress and is thus
entitled to great respect in its actions. It is itself a constitutional body independent
and coordinate, and thus its actions are presumed regular and done in good
faith. Unless convincing proof and persuasive arguments are presented to
overthrow such presumptions, this Court will resolve every doubt in its
favor. Using the foregoing well-accepted definition of grave abuse of discretion
and the presumption of regularity in the Senates processes, this Court cannot
find any cogent reason to impute grave abuse of discretion to the Senates
exercise of its power of concurrence in the WTO Agreement granted it by Sec. 21
of Article VII of the Constitution.[64]
270.275. It is true, as alleged by petitioners, that broad constitutional principles
require the State to develop an independent national economy effectively
controlled by Filipinos; and to protect and/or prefer Filipino labor, products,
domestic materials and locally produced goods. But it is equally true that such
principles -- while serving as judicial and legislative guides -- are not in
themselves sources of causes of action. Moreover, there are other equally
fundamental constitutional principles relied upon by the Senate which mandate
the pursuit of a trade policy that serves the general welfare and utilizes all forms
and arrangements of exchange on the basis of equality and reciprocity and the
promotion of industries which are competitive in both domestic and foreign
markets, thereby justifying its acceptance of said treaty. So too, the alleged
impairment of sovereignty in the exercise of legislative and judicial powers is
balanced by the adoption of the generally accepted principles of international law
as part of the law of the land and the adherence of the Constitution to the policy
of cooperation and amity with all nations.
271.276. That the Senate, after deliberation and voting, voluntarily and
overwhelmingly gave its consent to the WTO Agreement thereby making it a part
of the law of the land is a legitimate exercise of its sovereign duty and power. We
 find no patent and gross arbitrariness or despotism by reason of passion or
personal hostility in such exercise. It is not impossible to surmise that this Court,
or at least some of its members, may even agree with petitioners that it is more
advantageous to the national interest to strike down Senate Resolution No.
97. But that is not a legal reason to attribute grave abuse of discretion to the
Senate and to nullify its decision. To do so would constitute grave abuse in the
exercise of our own judicial power and duty.Ineludably, what the Senate did was
a valid exercise of its authority. As to whether such exercise was wise, beneficial
or viable is outside the realm of judicial inquiry and review. That is a matter
between the elected policy makers and the people. As to whether the nation
should join the worldwide march toward trade liberalization and economic
globalization is a matter that our people should determine in electing their policy
makers. After all, the WTO Agreement allows withdrawal of membership, should
this be the political desire of a member.
272.277. The eminent futurist John Naisbitt, author of the best seller Megatrends,
predicts an Asian Renaissance[65] where the East will become the dominant region
of the world economically, politically and culturally in the next century. He refers
to the free market espoused by WTO as the catalyst in this coming Asian
ascendancy. There are at present about 31 countries including China, Russia
and Saudi Arabia negotiating for membership in the WTO. Notwithstanding
objections against possible limitations on national sovereignty, the WTO remains
as the only viable structure for multilateral trading and the veritable forum for the
development of international trade law. The alternative to WTO is isolation,
stagnation, if not economic self-destruction.Duly enriched with original
membership, keenly aware of the advantages and disadvantages of globalization
with its on-line experience, and endowed with a vision of the future, the
Philippines now straddles the crossroads of an international strategy for
economic prosperity and stability in the new millennium. Let the people, through
their duly authorized elected officers, make their free choice.
273.278. WHEREFORE, the petition is DISMISSED for lack of merit.
274.279. SO ORDERED.
275.280. Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno,
Kapunan, Mendoza, Francisco, Hermosisima, Jr., and Torres, Jr., JJ., concur.
276.281. Padilla, and Vitug, JJ., in the result.
277.282.

278.283.
279.284. [1]
In Annex A of her Memorandum, dated August 8, 1996, received by this Court on
August 12, 1996, Philippine Ambassador to the United Nations, World Trade Organization and
other international organizations Lilia R. Bautista (hereafter referred to as Bautista Paper)
submitted a 46-year Chronology of GATT as follows:
280.285. 1947 The birth of GATT. On 30 October 1947, the General Agreement on
Tariffs and Trade (GATT) was signed by 23 nations at the Palais des Nations in
Geneva. The Agreement contained tariff concessions agreed to in the first multilateral
trade negotiations and a set of rules designed to prevent these concessions from being
frustrated by restrictive trade measures.
281.286. The 23 founding contracting parties were members of the Preparatory Committee
established by the United Nations Economic and Social Council in 1946 to draft the
 charter of the International Trade Organization (ITO). The ITO was envisaged as the final
leg of a triad of post-War economic agencies (the other two were the International
Monetary Fund and the International Bank for Reconstruction - later the World Bank).
282.287. In parallel with this task, the Committee members decided to negotiate tariff
concessions among themselves. From April to October 1947, the participants completed
some 123 negotiations and established 20 schedules containing the tariff reductions and
bindings which became an integral part of GATT. These schedules resulting from the first
Round covered some 45,000 tariff concessions and about $10 billion in trade.
283.288. GATT was conceived as an interim measure that put into effect the commercial-
policy provisions of the ITO. In November, delegations from 56 countries met in Havana,
Cuba, to consider the ITO draft as a whole. After long and difficult negotiations, some 53
countries signed the Final Act authenticating the text of the Havana Charter in March
1948. There was no commitment, however, from governments to ratification and, in the
end, the ITO was stillborn, leaving GATT as the only international instrument governing
the conduct of world trade.
284.289. 1948 Entry into force. On 1 January 1948, GATT entered into force. The 23
founding members were: Australia, Belgium, Brazil, Burma, Canada, Ceylon, Chile,
China, Cuba, Czechoslovakia, France, India, Lebanon, Luxemburg, Netherlands, New
Zealand, Norway, Pakistan, Southern Rhodesia, Syria, South Africa, United Kingdom and
United States. The first Session of the contracting parties was held from February to
March in Havana, Cuba. The secretariat of the Interim Commission for the ITO, which
served as the ad hoc secretariat of GATT, move from lake Placid, New York, to
Geneva. The Contracting Parties held their second session in Geneva from August to
September.
285.290. 1949 Second Round at Annecy. During the second Round of trade
negotiations, held from April to August at Annecy, France, the contracting parties
exchange some 5,000 tariff concession. At their third Session, they also dealt with the
accession of ten more countries.
286.291. 1950 Third Round At Torquay. From September 1950 to April 1951, the
contracting parties exchange some 8,700 tariff concessions in the English town, yielding
tariff reduction of about 25 per cent in relation to the 1948 level. Four more countries
acceded to GATT. During the fifth Session of the Contracting Parties, the United States
indicated that the ITO Charter would not be re-submitted to the US congress; this, in
effect, meant that ITO would not come into operation.
287.292. 1956 Fourth Round at Geneva. The fourth Round was completed in May and
produce some $2.5 billion worth of tariff reductions. At the beginning of the year, the
GATT commercial policy course for officials of developing countries was inaugurated.
288.293. 1958 The Haberler Report. GATT published Trends in International Trade in
October. Known as the "Haberler Report" in honour of Professor Gottfried Haberler, the
chairman of the panel of imminent economist, it provided initial guidelines for the work of
GATT. The Contracting Parties at their 13th Sessions, attended by Ministers,
subsequently established 3 committees in GATT:Committee I to convene a further tariff
negotiating conference; Committee II To review the agricultural policies of member
governments and Committee III to tackle the problems facing developing countries in
their trade. The establishment of the European Economic Community during the previous
year also demanded large scale tariff negotiation under Article XXIV 6 of the General
Agreement.
289.294. 1960 The Dillon Round. The fifth Round opened in September and was divided
into two phases: the first was concerned with EEC members states for the creation of a
single schedule of concessions for the Community based on its Common External Tariff;
and the second was a further general round of tariff negotiations. Named in honor of US
Under-Secretary of State Douglas Dillon who proposed the negotiations, the Round was
concluded in July 1962 and resulted in about 4,400 tariff concessions covering $4.9
billion of trade.
290.295. 1961 The Short-Term Arrangement covering cotton textiles was agreed as an
exception to the GATT rules. The arrangement permitted the negotiation of quota
 restrictions affecting the exports of cotton-producing countries. In 1962 the "Short Term "
Arrangement become the "Long term" Arrangement, lasting until 1974 when the Multifibre
Arrangement entered into force.
291.296. 1964 The Kennedy Round. Meeting at Ministerial Level, a Trade Negotiations
Committee formally opened the Kennedy Round in May.In June 1967, the Round's Final
Act was signed by some 50 participating countries which together accounted for 75 per
cent of world trade. For the first time, negotiation departed from product-by-product
approach used in the previous Rounds to an across-the-board or linear method of cutting
tariffs for industrial goods. The working hypothesis of a 50 per cent target cut in tariff
levels was achieved in many areas. Concessions covered an estimated total value of
trade of about $40 billion. Separate agreements were reached on grains, chemical
products and a Code on Anti-Dumping.
292.297. 1965 A New Chapter. The early 1960s marked the accession to the General
Agreement of many newly-independent developing countries. In February, the
Contracting Parties, meeting in a special session, adopted the text of Part IV on Trade
and Development. The additional chapter to the GATT required developed countries to
accord high priority to the reduction of trade barriers to products of developing
countries. A committee on Trade and Development was established to oversee the
functioning of the new GATT provisions. In the preceding year, GATT had established the
International Trade Center (ITC) to help developing countries in trade promotion and
identification of potential markets. Since 1968, the ITC had been jointly operated by
GATT and the UN Conference on Trade and Development (UNCTAD).
293.298. 1973 The Tokyo Round. The seventh Round was launched by Ministers in
September at the Japanese capital. Some 99 countries participated in negotiating a
comprehensive body of agreements covering both tariff and non-tariff matters. At the end
of the Round in November 1979, participants exchange tariff reduction and bindings
which covered more than $300 billion of trade. As a result of these cuts, the weighted
average tariff on manufactured goods in the world's nine major Industrial Markets
declined from 7.0 to 4.7 per cent. Agreements were reached in the following areas;
subsidies and countervailing measures, technical barriers to trade, import licensing
procedures, government procurement, customs valuation, a revised anti-dumping code,
trade in bovine meat, trade in daily products and trade in civil aircraft. The first concrete
result of the Round was the reduction of import duties and other trade barriers by
industrial countries on tropical products exported by developing countries.
294.299. 1974 On 1 January 1974, the Arrangement Regarding International Trade in
textiles, otherwise known as the Multifibre Arrangement(MFA), entered into force. Its
superseded the arrangement that had been governing trade in cotton textiles since
1961. The MFA seeks to promote the expansion and progressive liberalization of trade in
textile product while at the same time avoiding disruptive effects in individual markets in
lines of production. The MFA was extended in 1978, 1982, 1986, 1991 and 1992. MFA
members account for most of the world exports of textiles and clothing which in 1986
amounted to US$128 billion.
295.300. 1982 Ministerial Meeting. Meeting for the first time in nearly ten years, the
GATT Ministers in November at Geneva reaffirmed the validity of GATT rules for the
conduct of international trade and committed themselves to combating protectionist
pressures.They also established a wide-ranging work programme for the GATT which
was to laid down the ground work for a new Round. 1986 The Uruguay Round. The
GATT Trade Ministers meeting at Punta del Este, Uruguay, launched the eighth Round of
Trade Negotiations on 20 September. The Punta del Este, declarations, while
representing a single political undertaking, was divided into two section. The First
covered negotiations on Trade in goods and the second initiated negotiation on trade in
services. In the area of trade in goods, the Ministers committed themselves to
a "standstill" on new trade measures inconsistent with their GATT obligations and to a
"rollback" programme aimed at phasing out existing inconsistent measures. Envisaged to
last four years, negotiations started in early February 1987 in the following areas: tariffs,
non-tariff measures, tropical products, natural resource-based products, textiles and
 clothing, agriculture, subsidies, safeguards, trade-related aspects of intellectual property
rights including trade in counterfeit goods, in trade- related investment measures. The
work of other groups included a review of GATT articles, the GATT dispute-settlement
procedure, the Tokyo Round agreements, as well as functioning of the GATT system as
a whole.
296.301. 1994 "GATT 1994" is the updated version of GATT 1947 and takes into account the
substantive and institutional changes negotiated in the Uruguay Round. GATT 1994 is an integral
part of the World Trade Organization established on 1 January 1995. It is agreed that there be a
one year transition period during which certain GATT 1947 bodies and commitments would co-
exist with those of the World Trade Organization."
297.302. [2]
The Final Act was signed by representatives of 125 entities, namely Algeria, Angola,
Antigua and Barbuda, Argentine Republic, Australia, Republic of Austria, State of Bahrain,
Peoples Republic of Bangladesh, Barbados, The Kingdom of Belgium, Belize, Republic of Benin,
Bolivia, Botswana, Brazil, Brunei Darussalam, Burkina Faso, Burundi, Cameroon, Canada,
Central African Republic, Chad, Chile, Peoples Republic of China, Colombia, Congo, Costa Rica,
Republic of Cote dIvoire, Cuba, Cyprus, Czech Republic, Kingdom of Denmark, Commonwealth
of Dominica, Dominican Republic, Arab Republic of Egypt, El Salvador, European Communities,
Republic of Fiji, Finland, French Republic, Gabonese Republic, Gambia, Federal Republic of
Germany, Ghana, Hellenic Republic, Grenada, Guatemala, Republic of Guinea-Bissau, Republic
of Guyana, Haiti, Honduras, Hong Kong, Hungary, Iceland, India, Indonesia, Ireland, State of
Israel, Italian Republic, Jamaica, Japan, Kenya, Korea, State of Kuwait, Kingdom of Lesotho,
Principality of Liechtenstein, Grand Duchy of Luxembourg, Macau, Republic of Madagascar,
Republic of Malawi, Malaysia, Republic of Maldives, Republic of Mali, Republic of Malta, Islamic
Republic of Mauritania, Republic of Mauritius, United Mexican States, Kingdom of Morocco,
Republic of Mozambique, Union of Myanmar, Republic of Namibia, Kingdom of the Netherlands,
New Zealand, Nicaragua, Republic of Niger, Federal Republic of Nigeria, Kingdom of Norway,
Islamic Republic of Pakistan, Paraguay, Peru, Philippines, Poland, Portuguese Republic, State of
Qatar, Romania, Rwandese Republic, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the
Grenadines, Senegal, Sierra Leone, Singapore, Slovak Republic, South Africa, Kingdom of
Spain, Democratic Socialist Republic of Sri Lanka, Republic of Surinam, Kingdom of Swaziland,
Kingdom of Sweden, Swiss Confederation, United Republic of Tanzania, Kingdom of Thailand,
Togolese Republic, Republic of Trinidad and Tobago, Tunisia, Turkey, Uganda, United Arab
Emirates, United Kingdom of Great Britain and Northern Ireland, United States of America,
Eastern Republic of Uruguay, Venezuela, Republic of Zaire, Republic of Zambia, Republic of
Zimbabwe; see pp. 6-25, Vol. 1, Uruguay Round of Multilateral Trade Negotiations.
298.303. [3] 11 August 1994
299.304. The Honorable Members
300.305. Senate
301.306. Through Senate President Edgardo Angara
302.307. Manila
303.308. Ladies and Gentlemen:
304.309. I have the honor to forward herewith an authenticated copy of the Uruguay Round Final
Act signed by Department of Trade and Industry Secretary Rizalino S. Navarro for the Philippines
on 15 April 1994 in Marrakesh, Morocco.
305.310. The Uruguay Round Final Act aims to liberalize and expand world trade and strengthen
the interrelationship between trade and economic policies affecting growth and development.
306.311. The Final Act will improve Philippine access to foreign markets, especially its major
trading partners through the reduction of tariffs on its exports particularly agricultural and
industrial products. These concessions may be availed of by the Philippines, only if it is a member
of the World Trade Organization. By GATT estimates, the Philippines can acquire additional
export revenues from $2.2 to $2.7 Billion annually under Uruguay Round. This will be on top of
the normal increase in exports that the Philippines may experience.
307.312. The Final Act will also open up new opportunities for the services sector in such areas as
the movement of personnel, (e.g. professional services and construction services), cross-border
supply (e.g. computer-related services), consumption abroad (e.g. tourism, convention services,
etc.) and commercial presence.
308.313. The clarified and improved rules and disciplines on anti-dumping and countervailing
measures will also benefit Philippine exporters by reducing the costs and uncertainty associated
with exporting while at the same time providing a means for domestic industries to safeguard
themselves against unfair imports.
309.314. Likewise, the provision of adequate protection for intellectual property rights is expected
to attract more investments into the country and to make it less vulnerable to unilateral actions by
its trading partners (e.g. Sec. 301 of the United States Omnibus Trade Law).
310.315. In view of the foregoing, the Uruguay Round Final Act is hereby submitted to the Senate
for its concurrence pursuant to Section 21, Article VII of the Constitution.
311.316. A draft of a proposed Resolution giving its concurrence to the aforesaid Agreement is
enclosed.
312.317. Very truly yours,
313.318. (SGD.) FIDEL V. RAMOS
314.319. [4] 11 August 1994
315.320. The Honorable Members
316.321. Senate
317.322. Through Senate President Edgardo Angara
318.323. Manila
319.324. Ladies and Gentlemen:
320.325. I have the honor to forward herewith an authenticated copy of the Uruguay Round Final
Act signed by Department of Trade and Industry Secretary Rizalino S. Navarro for the Philippines
on 13 April 1994 in Marrakech (sic), Morocco.
321.326. Members of the trade negotiations committee, which included the Philippines, agreed that
the Agreement Establishing the World Trade Organization, the Ministerial Declarations and
Decisions, and the Understanding on Commitments in Financial Services embody the results of
their negotiations and form an integral part of the Uruguay Round Final Act.
322.327. By signing the Uruguay Round Final Act, the Philippines, through Secretary Navarro,
agreed:
323.328. (a) To submit the Agreement Establishing the World Trade Organization to the Senate for
its concurrence pursuant to Section 21, Article VII of the Constitution; and
324.329. (b) To adopt the Ministerial Declarations and Decisions.
325.330. The Uruguay Round Final Act aims to liberalize and expand world trade and strengthen
the interrelationship between trade and economic policies affecting growth and development.
326.331. The Final Act will improve Philippine access to foreign markets, especially its major
trading partners through the reduction of tariffs on its exports particularly agricultural and
industrial products. These concessions may be availed of by the Philippines, only if it is a member
of the World Trade Organization. By GATT estimates, the Philippines can acquire additional
export revenues from $2.2 to $2.7 Billion annually under Uruguay Round. This will be on top of
the normal increase in the exports that the Philippines may experience.
327.332. The Final Act will also open up new opportunities for the services sector in such areas as
the movement of personnel, (e.g., professional services and construction services), cross-border
supply (e.g., computer-related services), consumption abroad (e.g., tourism, convention services,
etc.) and commercial presence.
328.333. The clarified and improved rules and disciplines on anti-dumping and countervailing
measures will also benefit Philippine exporters by reducing the costs and uncertainty associated
with exporting while at the same time providing a means for domestic industries to safeguard
themselves against unfair imports.
329.334. Likewise, the provision of adequate protection for intellectual property rights is expected
to attract more investments into the country and to make it a less vulnerable to unilateral actions
by its trading partners (e.g., Sec. 301 of the United States Omnibus Trade Law).
330.335. In view of the foregoing, the Uruguay Round Final Act, the Agreement Establishing the
World Trade Organization, the Ministerial Declarations and Decisions, and the Understanding on
Commitments in Financial Services, as embodied in the Uruguay Round Final Act and forming
and integral part thereof are hereby submitted to the Senate for its concurrence pursuant to
Section 21, Article VII of the Constitution.
331.336. A draft of a proposed Resolution giving its concurrence to the aforesaid Agreement is
enclosed.
332.337. Very truly yours,
333.338. (SGD.) FIDEL V. RAMOS
334.339. [5] December 9, 1994
335.340. HON. EDGARDO J. ANGARA
336.341. Senate President
337.342. Senate, Manila
338.343. Dear Senate President Angara:
339.344. Pursuant to the provisions of Sec. 26 (2) Article VI of the Constitution, I hereby certify to
the necessity of the immediate adoption of P.S. 1083, entitled:
340.345. CONCURRING IN THE RATIFICATION OF THE AGREEMENT ESTABLISHING THE
WORLD TRADE ORGANIZATION
341.346. to meet a public emergency consisting of the need for immediate membership in the
WTO in order to assure the benefits to the Philippine economy arising from such membership.
342.347. Very truly yours,
343.348. (SGD.) FIDEL V. RAMOS
344.349. [6]
Attached as Annex A, Petition; rollo, p. 52. P.S. 1083 is the forerunner of assailed
Senate Resolution No. 97. It was prepared by the Committee of the Whole on the General
Agreement on Tariffs and Trade chaired by Sen. Blas F. Ople and co-chaired by Sen. Gloria
Macapagal-Arroyo; see Annex C, Compliance of petitioners dated January 28, 1997.
345.350. [7]
The Philippines is thus considered an original or founding member of WTO, which as of
July 26, 1996 had 123 members as follows: Antigua and Barbuda, Argentina, Australia, Austria,
Bahrain, Bangladesh, Barbados, Belgium, Belize, Benin, Bolivia, Botswana, Brazil, Brunei
Darussalam, Burkina Faso, Burundi, Cameroon, Canada, Central African Republic, Chili,
Colombia, Costa Rica, Cote dIvoire, Cuba, Cyprus, Czech Republic, Denmark, Djibouti,
Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, European Community, Fiji, Finland,
France, Gabon, Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guinea Bissau,
Guyana, Haiti, Honduras, Hongkong, Hungary, Iceland, India, Indonesia, Ireland, Israel, Italy,
Jamaica, Japan, Kenya, Korea, Kuwait, Lesotho, Liechtenstein, Luxembourg, Macau,
Madagascar, Malawi, Malaysia, Maldives, Mali, Malta, Mauritania, Mauritius, Mexico, Morocco,
Mozambique, Myanmar, Namibia, Netherlands -- for the Kingdom in Europe and for the
Netherlands Antilles, New Zealand, Nicaragua, Nigeria, Norway, Pakistan, Papua New Guinea,
Paraguay, Peru, Philippines, Poland, Portugal, Qatar, Romania, Rwanda, Saint Kitts and Nevis,
Saint Lucia, Saint Vincent & the Grenadines, Senegal, Sierra Leone, Singapore, Slovak Republic,
Slovenia, Solomon Islands, South Africa, Spain, Sri Lanka, Surinam, Swaziland, Sweden,
Switzerland, Tanzania, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Uganda, United
Arab Emirates, United Kingdom, United States, Uruguay, Venezuela, Zambia, and
Zimbabwe. See Annex A, Bautista Paper, infra.
346.351. [8]
Page 6; rollo, p. 261.
347.352. [9]
In compliance, Ambassador Bautista submitted to the Court on August 12, 1996, a
Memorandum (the Bautista Paper) consisting of 56 pages excluding annexes. This is the same
document mentioned in footnote no. 1.
348.353. [10]
Memorandum for Respondents, p. 13; rollo, p. 268.
349.354. [11]
Cf. Kilosbayan, Incorporated vs. Morato, 246 SCRA 540, July 17, 1995 for a
discussion on locus standi. See also the Concurring Opinion of Mr. Justice Vicente V. Mendoza in
Tatad vs. Garcia, Jr., 243 SCRA 473, April 6, 1995, as well as Kilusang Mayo Uno Labor
Center vs. Garcia, Jr., 239 SCRA 386, 414, December 23, 1994.
350.355. [12]
Aquino, Jr. vs. Ponce Enrile, 59 SCRA 183, 196, September 17, 1974, cited in
Bondoc vs. Pineda, 201 SCRA 792, 795, September 26, 1991.
351.356. [13]
Guingona, Jr. vs. Gonzales, 219 SCRA 326, 337, March 1, 1993.
352.357. [14]
See Tanada and Macapagal vs. Cuenco, et al., 103 Phil. 1051 for a discussion on the
scope of political question.
353.358. [15]
Section 1, Article VIII, (par. 2).
354.359. [16]
In a privilege speech on May 17, 1993, entitled Supreme Court -- Potential Tyrant?
Senator Arturo Tolentino concedes that this new provision gives the Supreme Court a duty to
intrude into the jurisdiction of the Congress or the President.
355.360. [17]
I Record of the Constitutional Commission 436.
356.361. [18]
Cf. Daza vs. Singson, 180 SCRA 496, December 21, 1989.
357.362. [19]
Memorandum for Petitioners, pp. 14-16; rollo, pp. 204-206.
358.363. [20]
Par. 4, Article XVI, WTO Agreement, Uruguay Round of Multilateral Trade
Negotiations, Vol. 1, p. 146.
359.364. [21]
Also entitled Declaration of Principles. The nomenclature in the 1973 Charter is
identical with that in the 1987s.
360.365. [22]
Philippine Political Law, 1962 Ed., p. 116.
361.366. [23]
Bernas, The Constitution of the Philippines: A Commentary, Vol. II, 1988 Ed., p. 2. In
the very recent case of Manila Prince Hotel vs. GSIS, G.R. No. 122156, February 3, 1997, p. 8, it
was held that A provision which lays down a general principle, such as those found in Art. II of the
1987 Constitution, is usually not self-executing.
362.367. [24]
246 SCRA 540, 564, July 17, 1995. See also Tolentino vs. Secretary of Finance, G.R.
No. 115455 and consolidated cases, August 25, 1995.
363.368. [25]
197 SCRA 52, 68, May 14, 1991.
364.369. [26]
224 SCRA 792, 817, July 30, 1993.
365.370. [27]
Sec. 10, Article XII.
366.371. [28]
Sec. 12, Article XII.
367.372. [29]
Sec. 19, Art. II.
368.373. [30]
Sec. 13, Art. XII.
369.374. [31]
G.R. No. 122156, February 3, 1997, pp. 13-14.
370.375. [32]
Sec. 1, Art. XII.
371.376. [33]
Bautista Paper, p. 19.
372.377. [34]
Preamble, WTO Agreement p. 137, Vol. 1, Uruguay Round of Multilateral Trade
Negotiations. Underscoring supplied.
373.378. [35]
Sec. - 19, Article II, Constitution.
374.379. [36]
III Records of the Constitutional Commission 252.
375.380. [37]
Sec. 13, Article XII, Constitution.
376.381. [38]
Justice Isagani A. Cruz, Philippine Political Law, 1995 Ed., p. 13, quoting his own
article entitled, A Quintessential Constitution earlier published in the San Beda Law Journal, April
1972; underscoring supplied.
377.382. [39]
Par. 4, Article XVI (Miscellaneous Provisions), WTO Agreement, p.146, Vol.
1, Uruguay Round of Multilateral Trade Negotiations.
378.383. [40]
Memorandum for the Petitioners, p. 29; rollo, p. 219.
379.384. [41]
Sec. 24, Article VI, Constitution.
380.385. [42]
Subsection (2), Sec. 28, Article, VI Constitution.
381.386. [43]
Sec. 2, Article II, Constitution.
382.387. [44]
Cruz, Philippine Political Law, 1995 Ed., p. 55.
383.388. [45]
Salonga and Yap, op cit 305.
384.389. [46]
Salonga, op. cit., p. 287.
385.390. [47]
Quoted in Paras and Paras, Jr., International Law and World Politics, 1994 Ed., p. 178.
386.391. 47-A Reagan vs. Commission of Internal Revenue, 30 SCRA 968, 973, December 27,

1969.
387.392. [48]
Trebilcock and Howse. The Regulation of International Trade, p. 14, London, 1995,
cited on p. 55-56, Bautista Paper.
388.393. [49]
Uruguay Round of Multilateral Trade Negotiations, Vol. 31, p. 25445.
389.394. [50]
Item 5, Sec. 5, Article VIII, Constitution.
390.395. [51]
Uruguay Round of Multilateral Trade Negotiations, Vol. 31, p. 25445.
391.396. [52]
Bautista Paper, p. 13.
392.397. [53]
See footnote 3 of the text of this letter.
393.398. [54]
Salonga and Yap, op cit., pp. 289-290.
394.399. [55]
The full text, without the signatures, of the Final Act is as follows:
395.400. Final Act Embodying the Results of the
 396.401. Uruguay Round of Multilateral Trade Negotiations
397.402. 1. Having met in order to conclude the Uruguay Round of Multilateral Trade Negotiations,
representatives of the governments and of the European Communities, members of the Trade
Negotiations Committee, agree that the Agreement Establishing the World Trade Organization
(referred to in the Final Act as the WTO Agreement), the Ministerial Declarations and Decisions,
and the Understanding on Commitments in Financial Services, as annexed hereto, embody the
results of their negotiations and form an integral part of this Final Act.
398.403. 2. By signing to the present Final Act, the representatives agree.
399.404. (a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective competent authorities with a view to seeking approval of the Agreement in accordance
with their procedures; and
400.405. (b) to adopt the Ministerial Declarations and Decisions.
401.406. 3. The representatives agree on the desirability of acceptance of the WTO Agreement by
all participants in the Uruguay Round of Multilateral Trade Negotiations (hereinafter referred to as
participants) with a view to its entry into force by 1 January 1995, or as early as possible
thereafter. Not later than late 1994, Ministers will meet, in accordance with the final paragraph of
the Punta del Este Ministerial Declarations, to decide on the international implementation of the
results, including the timing of their entry into force.
402.407. 4. The representatives agree that the WTO Agreement shall be opened for acceptance
as a whole, by signature or otherwise, by all participants pursuant to Article XIV thereof. The
acceptance and entry into force of a Plurilateral Trade Agreement included in Annex 4 of the
WTO Agreement shall be governed by the provisions of that Plurilateral Trade Agreement.
403.408. 5. Before accepting the WTO Agreement, participants which are not contracting parties to
the General Agreement on Tariffs and Trade must first have concluded negotiations for their
accession to the General Agreement and become contracting parties thereto. For participants
which are not contracting parties to the general Agreement as of the date of the Final Act, the
Schedules are not definitive and shall be subsequently completed for the purpose of their
accession to the General Agreement and acceptance of the WTO Agreement.
404.409. 6. This Final Act and the Texts annexed hereto shall be deposited with the Director-
General to the CONTRACTING PARTIES to the General Agreement on Tariffs and Trade who
shall promptly furnish to each participant a certified copy thereof.
405.410. DONE at Marrakesh this fifteenth day of April One thousand nine hundred and ninety-
four, in a single copy, in the English, French and Spanish languages, each text being authentic."
406.411. [56]
Bautista Paper, p. 16.
407.412. [57]
Bautista Paper, p. 16.
408.413. [58]
Uruguay Round of Multilateral Trade Negotiations, Vol. I, pp. 137-138.
409.414. [59]
See footnote 3 for complete text.
410.415. [60]
Taken from pp. 63-85, Respondent Memorandum.
411.416. [61]
Zarate vs. Olegario, G.R. No. 90655, October 7, 1996.
412.417. [62]
San Sebastian College vs. Court of Appeals, 197 SCRA 138, 144, May 15, 1991;
Commissioner of Internal Revenue vs. Court of Tax Appeals, 195 SCRA 444, 458 March 20,
1991; Simon vs. Civil Service Commission, 215 SCRA 410, November 5, 1992;
Bustamante vs. Commissioner on Audit, 216 SCRA 134, 136, November 27, 1992.
413.418. [63]
Paredes vs. Civil Service Commission, 192 SCRA 84, 94, December 4, 1990.
414.419. [64]
Sec. 21. No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.
415.420. [65]
Readers Digest, December 1996 issue, p. 28.
416.421. EN BANC
417.422. [G.R. No. 122156. February 3, 1997]
418.423. MANILA PRINCE HOTEL, petitioner, vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE
OF THE GOVERNMENT CORPORATE COUNSEL, respondents.
 419.424. DECISION
420.425. BELLOSILLO, J.:
421.426. The Filipino First Policy enshrined in the 1987 Constitution, i.e., in the
grant of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos,[1] is invoked by
petitioner in its bid to acquire 51% of the shares of the Manila Hotel Corporation
(MHC) which owns the historic Manila Hotel. Opposing, respondents maintain
that the provision is not self-executing but requires an implementing legislation
for its enforcement.Corollarily, they ask whether the 51% shares form part of the
national economy and patrimony covered by the protective mantle of the
Constitution.
422.427. The controversy arose when respondent Government Service Insurance
System (GSIS), pursuant to the privatization program of the Philippine
Government under Proclamation No. 50 dated 8 December 1986, decided to sell
through public bidding 30% to 51% of the issued and outstanding shares of
respondent MHC. The winning bidder, or the eventual strategic partner, is to
provide management expertise and/or an international marketing/reservation
system, and financial support to strengthen the profitability and performance of
the Manila Hotel.[2] In a close bidding held on 18 September 1995 only two (2)
bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino
corporation, which offered to buy 51% of the MHC or 15,300,000 shares
at P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as
its hotel operator, which bid for the same number of shares at P44.00 per share,
or P2.42 more than the bid of petitioner.
423.428. Pertinent provisions of the bidding rules prepared by respondent GSIS
state -
424.429. I. EXECUTION OF THE NECESSARY CONTRACTS WITH
GSIS/MHC -
425.430. 1. The Highest Bidder must comply with the conditions set forth below
by October 23, 1995 (reset to November 3, 1995) or the Highest Bidder will
lose the right to purchase the Block of Shares and GSIS will instead offer the
Block of Shares to the other Qualified Bidders:
426.431. a. The Highest Bidder must negotiate and execute with the GSIS/MHC
the Management Contract, International Marketing/Reservation System
Contract or other type of contract specified by the Highest Bidder in its
strategic plan for the Manila Hotel x x x x
427.432. b. The Highest Bidder must execute the Stock Purchase and Sale
Agreement with GSIS x x x x
428.433. K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER -
429.434. The Highest Bidder will be declared the Winning Bidder/Strategic
Partner after the following conditions are met:
430.435. a. Execution of the necessary contracts with GSIS/MHC not later than
October 23, 1995 (reset to November 3, 1995); and
431.436. b. Requisite approvals from the GSIS/MHC and COP (Committee on
Privatization)/ OGCC (Office of the Government Corporate Counsel) are
obtained. [3]

432.437. Pending the declaration of Renong Berhard as the winning

bidder/strategic partner and the execution of the necessary contracts, petitioner
in a letter to respondent GSIS dated 28 September 1995 matched the bid price
of P44.00 per share tendered by Renong Berhad.[4] In a subsequent letter dated
10 October 1995 petitioner sent a managers check issued by Philtrust Bank for
Thirty-three Million Pesos (P33,000,000.00) as Bid Security to match the bid of
the Malaysian Group, Messrs. Renong Berhad x x x x[5] which respondent GSIS
refused to accept.
433.438. On 17 October 1995, perhaps apprehensive that respondent GSIS has
disregarded the tender of the matching bid and that the sale of 51% of the MHC
may be hastened by respondent GSIS and consummated with Renong Berhad,
petitioner came to this Court on prohibition and mandamus. On 18 October 1995
the Court issued a temporary restraining order enjoining respondents from
perfecting and consummating the sale to the Malaysian firm.
434.439. On 10 September 1996 the instant case was accepted by the Court En
Banc after it was referred to it by the First Division.The case was then set for oral
arguments with former Chief Justice Enrique M. Fernando and Fr. Joaquin G.
Bernas, S.J., as amici curiae.
435.440. In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987
Constitution and submits that the Manila Hotel has been identified with the
Filipino nation and has practically become a historical monument which reflects
the vibrancy of Philippine heritage and culture. It is a proud legacy of an earlier
generation of Filipinos who believed in the nobility and sacredness of
independence and its power and capacity to release the full potential of the
Filipino people. To all intents and purposes, it has become a part of the national
patrimony.[6] Petitioner also argues that since 51% of the shares of the MHC
carries with it the ownership of the business of the hotel which is owned by
respondent GSIS, a government-owned and controlled corporation, the hotel
business of respondent GSIS being a part of the tourism industry is
unquestionably a part of the national economy. Thus, any transaction involving
51% of the shares of stock of the MHC is clearly covered by the term national
economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies.[7]
436.441. It is also the thesis of petitioner that since Manila Hotel is part of the
national patrimony and its business also unquestionably part of the national
economy petitioner should be preferred after it has matched the bid offer of the
Malaysian firm. For the bidding rules mandate that if for any reason, the Highest
Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other
Qualified Bidders that have validly submitted bids provided that these Qualified
Bidders are willing to match the highest bid in terms of price per share. [8]
437.442. Respondents except. They maintain that: First, Sec. 10, second par., Art.
XII, of the 1987 Constitution is merely a statement of principle and policy since
it is not a self-executing provision and requires implementing legislation(s) x x x x
 Thus, for the said provision to operate, there must be existing laws to lay down
conditions under which business may be done.[9]
438.443. Second, granting that this provision is self-executing, Manila Hotel does
not fall under the term national patrimony which only refers to lands of the public
domain, waters, minerals, coal, petroleum and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna and all
marine wealth in its territorial sea, and exclusive marine zone as cited in the first
and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to
respondents, while petitioner speaks of the guests who have slept in the hotel
and the events that have transpired therein which make the hotel historic, these
alone do not make the hotel fall under the patrimony of the nation. What is more,
the mandate of the Constitution is addressed to the State, not to respondent
GSIS which possesses a personality of its own separate and distinct from the
Philippines as a State.
439.444. Third, granting that the Manila Hotel forms part of the national patrimony,
the constitutional provision invoked is still inapplicable since what is being sold is
only 51% of the outstanding shares of the corporation, not the hotel building nor
the land upon which the building stands. Certainly, 51% of the equity of the MHC
cannot be considered part of the national patrimony. Moreover, if the disposition
of the shares of the MHC is really contrary to the Constitution, petitioner should
have questioned it right from the beginning and not after it had lost in the bidding.
440.445. Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding
rules which provides that if for any reason, the Highest Bidder cannot be
awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders
that have validly submitted bids provided that these Qualified Bidders are willing
to match the highest bid in terms of price per share, is misplaced. Respondents
postulate that the privilege of submitting a matching bid has not yet arisen since it
only takes place if for any reason, the Highest Bidder cannot be awarded the
Block of Shares. Thus the submission by petitioner of a matching bid is
premature since Renong Berhad could still very well be awarded the block of
shares and the condition giving rise to the exercise of the privilege to submit a
matching bid had not yet taken place.
441.446. Finally, the prayer for prohibition grounded on grave abuse of discretion
should fail since respondent GSIS did not exercise its discretion in a capricious,
whimsical manner, and if ever it did abuse its discretion it was not so patent and
gross as to amount to an evasion of a positive duty or a virtual refusal to perform
a duty enjoined by law. Similarly, the petition for mandamus should fail as
petitioner has no clear legal right to what it demands and respondents do not
have an imperative duty to perform the act required of them by petitioner.
442.447. We now resolve. A constitution is a system of fundamental laws for the
governance and administration of a nation. It is supreme, imperious, absolute
and unalterable except by the authority from which it emanates. It has been
defined as the fundamental and paramount law of the nation.[10] It prescribes the
permanent framework of a system of government, assigns to the different
departments their respective powers and duties, and establishes certain fixed
principles on which government is founded. The fundamental conception in other
 words is that it is a supreme law to which all other laws must conform and in
accordance with which all private rights must be determined and all public
authority administered.[11] Under the doctrine of constitutional supremacy, if a law
or contract violates any norm of the constitution that law or contract whether
promulgated by the legislative or by the executive branch or entered into by
private persons for private purposes is null and void and without any force and
effect. Thus, since the Constitution is the fundamental, paramount and supreme
law of the nation, it is deemed written in every statute and contract.
443.448. Admittedly, some constitutions are merely declarations of policies and
principles. Their provisions command the legislature to enact laws and carry out
the purposes of the framers who merely establish an outline of government
providing for the different departments of the governmental machinery and
securing certain fundamental and inalienable rights of citizens. [12] A provision
which lays down a general principle, such as those found in Art. II of the 1987
Constitution, is usually not self-executing. But a provision which is complete in
itself and becomes operative without the aid of supplementary or enabling
legislation, or that which supplies sufficient rule by means of which the right it
grants may be enjoyed or protected, is self-executing. Thus a constitutional
provision is self-executing if the nature and extent of the right conferred and the
liability imposed are fixed by the constitution itself, so that they can be
determined by an examination and construction of its terms, and there is no
language indicating that the subject is referred to the legislature for action.[13]
444.449. As against constitutions of the past, modern constitutions have been
generally drafted upon a different principle and have often become in effect
extensive codes of laws intended to operate directly upon the people in a manner
similar to that of statutory enactments, and the function of constitutional
conventions has evolved into one more like that of a legislative body.Hence,
unless it is expressly provided that a legislative act is necessary to enforce a
constitutional mandate, the presumption now is that all provisions of the
constitution are self-executing. If the constitutional provisions are treated as
requiring legislation instead of self-executing, the legislature would have the
power to ignore and practically nullify the mandate of the fundamental law. [14] This
can be cataclysmic. That is why the prevailing view is, as it has always been, that
-
445.450. x x x x in case of doubt, the Constitution should be considered self-
executing rather than non-self-executing x x x x Unless the contrary is clearly
intended, the provisions of the Constitution should be considered self-
executing, as a contrary rule would give the legislature discretion to determine
when, or whether, they shall be effective. These provisions would be
subordinated to the will of the lawmaking body, which could make them
entirely meaningless by simply refusing to pass the needed implementing
statute.[15]

446.451. Respondents argue that Sec. 10, second par., Art. XII, of the 1987
Constitution is clearly not self-executing, as they quote from discussions on the
floor of the 1986 Constitutional Commission -
447.452. MR. RODRIGO. Madam President, I am asking this question as the
Chairman of the Committee on Style. If the wording of PREFERENCE is given to
QUALIFIED FILIPINOS, can it be understood as a preference to qualified
Filipinos vis-a-visFilipinos who are not qualified. So, why do we not make it
clear? To qualified Filipinos as against aliens?
448.453. THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to
remove the word QUALIFIED?
449.454. MR. RODRIGO. No, no, but say definitely TO QUALIFIED FILIPINOS as
against whom? As against aliens or over aliens ?
450.455. MR. NOLLEDO. Madam President, I think that is understood. We use the
word QUALIFIED because the existing laws or prospective laws will always lay
down conditions under which business may be done. For example, qualifications on
capital, qualifications on the setting up of other financial structures, et
cetera (underscoring supplied by respondents).
451.456. MR. RODRIGO. It is just a matter of style.
452.457. MR. NOLLEDO. Yes.[16]
453.458. Quite apparently, Sec. 10, second par., of Art XII is couched in such a way
as not to make it appear that it is non-self-executing but simply for purposes of
style. But, certainly, the legislature is not precluded from enacting further laws to
enforce the constitutional provision so long as the contemplated statute squares
with the Constitution. Minor details may be left to the legislature without impairing
the self-executing nature of constitutional provisions.
454.459. In self-executing constitutional provisions, the legislature may still enact
legislation to facilitate the exercise of powers directly granted by the constitution,
further the operation of such a provision, prescribe a practice to be used for its
enforcement, provide a convenient remedy for the protection of the rights
secured or the determination thereof, or place reasonable safeguards around the
exercise of the right. The mere fact that legislation may supplement and add to or
prescribe a penalty for the violation of a self-executing constitutional provision
does not render such a provision ineffective in the absence of such
legislation. The omission from a constitution of any express provision for a
remedy for enforcing a right or liability is not necessarily an indication that it was
not intended to be self-executing. The rule is that a self-executing provision of the
constitution does not necessarily exhaust legislative power on the subject, but
any legislation must be in harmony with the constitution, further the exercise of
constitutional right and make it more available. [17] Subsequent legislation however
does not necessarily mean that the subject constitutional provision is not, by
itself, fully enforceable.
455.460. Respondents also argue that the non-self-executing nature of Sec. 10,
second par., of Art. XII is implied from the tenor of the first and third paragraphs
of the same section which undoubtedly are not self-executing.[18] The argument is
flawed. If the first and third paragraphs are not self-executing because Congress
is still to enact measures to encourage the formation and operation of enterprises
fully owned by Filipinos, as in the first paragraph, and the State still needs
legislation to regulate and exercise authority over foreign investments within its
national jurisdiction, as in the third paragraph, then a fortiori, by the same logic,
the second paragraph can only be self-executing as it does not by its language
require any legislation in order to give preference to qualified Filipinos in the
 grant of rights, privileges and concessions covering the national economy and
patrimony.A constitutional provision may be self-executing in one part and non-
self-executing in another.[19]
456.461. Even the cases cited by respondents holding that certain constitutional
provisions are merely statements of principles and policies, which are basically
not self-executing and only placed in the Constitution as moral incentives to
legislation, not as judicially enforceable rights - are simply not in point. Basco v.
Philippine Amusements and Gaming Corporation[20] speaks of constitutional
provisions on personal dignity,[21] the sanctity of family life,[22] the vital role of the
youth in nation-building,[23] the promotion of social justice,[24] and the values of
education.[25] Tolentino v. Secretary of Finance[26] refers to constitutional provisions
on social justice and human rights[27] and on education.[28] Lastly, Kilosbayan, Inc.
v. Morato[29] cites provisions on the promotion of general welfare, [30] the sanctity of
family life,[31] the vital role of the youth in nation-building[32] and the promotion of
total human liberation and development.[33] A reading of these provisions indeed
clearly shows that they are not judicially enforceable constitutional rights but
merely guidelines for legislation. The very terms of the provisions manifest that
they are only principles upon which legislations must be based. Res ipsa loquitur.
457.462. On the other hand, Sec. 10, second par., Art. XII of the 1987 Constitution
is a mandatory, positive command which is complete in itself and which needs no
further guidelines or implementing laws or rules for its enforcement. From its very
words the provision does not require any legislation to put it in operation. It is per
se judicially enforceable. When our Constitution mandates that [i]n the grant of
rights, privileges, and concessions covering national economy and patrimony, the
State shall give preference to qualified Filipinos, it means just that - qualified
Filipinos shall be preferred. And when our Constitution declares that a right exists
in certain specified circumstances an action may be maintained to enforce such
right notwithstanding the absence of any legislation on the subject; consequently,
if there is no statute especially enacted to enforce such constitutional right, such
right enforces itself by its own inherent potency and puissance, and from which
all legislations must take their bearings. Where there is a right there is a
remedy. Ubi jus ibi remedium.
458.463. As regards our national patrimony, a member of the 1986 Constitutional
Commission[34] explains -
459.464. The patrimony of the Nation that should be conserved and developed
refers not only to our rich natural resources but also to the cultural heritage of
our race. It also refers to our intelligence in arts, sciences and letters. Therefore,
we should develop not only our lands, forests, mines and other natural
resources but also the mental ability or faculty of our people.
460.465. We agree. In its plain and ordinary meaning, the term patrimony pertains
to heritage.[35] When the Constitution speaks of national patrimony, it refers not
only to the natural resources of the Philippines, as the Constitution could have
very well used the term natural resources, but also to the cultural heritage of the
Filipinos.
461.466. Manila Hotel has become a landmark - a living testimonial of Philippine
heritage. While it was restrictively an American hotel when it first opened in 1912,
 it immediately evolved to be truly Filipino. Formerly a concourse for the elite, it
has since then become the venue of various significant events which have
shaped Philippine history. It was called the Cultural Center of the 1930s. It was
the site of the festivities during the inauguration of the Philippine
Commonwealth. Dubbed as the Official Guest House of the Philippine
Government it plays host to dignitaries and official visitors who are accorded the
traditional Philippine hospitality.[36]
462.467. The history of the hotel has been chronicled in the book The Manila Hotel:
The Heart and Memory of a City.[37] During World War II the hotel was converted
by the Japanese Military Administration into a military headquarters. When the
American forces returned to recapture Manila the hotel was selected by the
Japanese together with Intramuros as the two (2) places for their final
stand. Thereafter, in the 1950s and 1960s, the hotel became the center of
political activities, playing host to almost every political convention. In 1970 the
hotel reopened after a renovation and reaped numerous international
recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986 the
hotel was the site of a failed coup d etat where an aspirant for vice-president was
proclaimed President of the Philippine Republic.
463.468. For more than eight (8) decades Manila Hotel has bore mute witness to
the triumphs and failures, loves and frustrations of the Filipinos; its existence is
impressed with public interest; its own historicity associated with our struggle for
sovereignty, independence and nationhood. Verily, Manila Hotel has become
part of our national economy and patrimony. For sure, 51% of the equity of the
MHC comes within the purview of the constitutional shelter for it comprises the
majority and controlling stock, so that anyone who acquires or owns the 51% will
have actual control and management of the hotel. In this instance, 51% of the
MHC cannot be disassociated from the hotel and the land on which the hotel
edifice stands. Consequently, we cannot sustain respondents claim that
the Filipino First Policy provision is not applicable since what is being sold is only
51% of the outstanding shares of the corporation, not the Hotel building nor the
land upon which the building stands.[38]
464.469. The argument is pure sophistry. The term qualified Filipinos as used in our
Constitution also includes corporations at least 60% of which is owned by
Filipinos. This is very clear from the proceedings of the 1986 Constitutional
Commission -
465.470. THE PRESIDENT. Commissioner Davide is recognized.
466.471. MR. DAVIDE. I would like to introduce an amendment to the Nolledo
amendment. And the amendment would consist in substituting the words
QUALIFIED FILIPINOS with the following: CITIZENS OF THE PHILIPPINES OR
CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING
STOCK IS WHOLLY OWNED BY SUCH CITIZENS.
467.472. x x x x
468.473. MR. MONSOD. Madam President, apparently the proponent is agreeable,
but we have to raise a question. Suppose it is a corporation that is 80-percent
Filipino, do we not give it preference?
469.474. MR. DAVIDE. The Nolledo amendment would refer to an individual
Filipino. What about a corporation wholly owned by Filipino citizens?
470.475. MR. MONSOD. At least 60 percent, Madam President.
471.476. MR. DAVIDE. Is that the intention?
472.477. MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that
the preference should only be 100-percent Filipino.
473.478. MR. DAVIDE. I want to get that meaning clear because QUALIFIED
FILIPINOS may refer only to individuals and not to juridical personalities or entities.
474.479. MR. MONSOD. We agree, Madam President.[39]
475.480. x x x x
476.481. MR. RODRIGO. Before we vote, may I request that the amendment be read
again.
477.482. MR. NOLLEDO. The amendment will read: IN THE GRANT OF RIGHTS,
PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED
FILIPINOS. And the word Filipinos here, as intended by the proponents, will include
not only individual Filipinos but also Filipino-controlled entities or entities fully-
controlled by Filipinos.[40]
478.483. The phrase preference to qualified Filipinos was explained thus -
479.484. MR. FOZ. Madam President, I would like to request Commissioner Nolledo
to please restate his amendment so that I can ask a question.
480.485. MR. NOLLEDO. IN THE GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE
STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS.
481.486. MR. FOZ. In connection with that amendment, if a foreign enterprise is
qualified and a Filipino enterprise is also qualified, will the Filipino enterprise still be
given a preference?
482.487. MR. NOLLEDO. Obviously.
483.488. MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino
enterprise, will the Filipino still be preferred?
484.489. MR. NOLLEDO. The answer is yes.
485.490. MR. FOZ. Thank you.[41]
486.491. Expounding further on the Filipino First Policy provision Commissioner
Nolledo continues
487.492. MR. NOLLEDO. Yes, Madam President. Instead of MUST, it will be SHALL -
THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. This
embodies the so-called Filipino First policy. That means that Filipinos should be
given preference in the grant of concessions, privileges and rights covering the
national patrimony.[42]
488.493. The exchange of views in the sessions of the Constitutional Commission
regarding the subject provision was still further clarified by Commissioner
Nolledo[43] -
489.494. Paragraph 2 of Section 10 explicitly mandates the Pro-Filipino bias in all
economic concerns. It is better known as the FILIPINO FIRST Policy x x x
x This provision was never found in previous Constitutions x x x x
490.495. The term qualified Filipinos simply means that preference shall be given
to those citizens who can make a viable contribution to the common good,
because of credible competence and efficiency. It certainly does NOT mandate
the pampering and preferential treatment to Filipino citizens or organizations
 that are incompetent or inefficient, since such an indiscriminate preference
would be counterproductive and inimical to the common good.
491.496. In the granting of economic rights, privileges, and concessions, when a
choice has to be made between a qualified foreigner and a qualified Filipino,
the latter shall be chosen over the former.
492.497. Lastly, the word qualified is also determinable. Petitioner was so
considered by respondent GSIS and selected as one of the qualified bidders. It
was pre-qualified by respondent GSIS in accordance with its own guidelines so
that the sole inference here is that petitioner has been found to be possessed of
proven management expertise in the hotel industry, or it has significant equity
ownership in another hotel company, or it has an overall management and
marketing proficiency to successfully operate the Manila Hotel.[44]
493.498. The penchant to try to whittle away the mandate of the Constitution by
arguing that the subject provision is not self-executory and requires implementing
legislation is quite disturbing. The attempt to violate a clear constitutional
provision - by the government itself - is only too distressing. To adopt such a line
of reasoning is to renounce the duty to ensure faithfulness to the
Constitution. For, even some of the provisions of the Constitution which evidently
need implementing legislation have juridical life of their own and can be the
source of a judicial remedy. We cannot simply afford the government a defense
that arises out of the failure to enact further enabling, implementing or guiding
legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional
government is apt -
494.499. The executive department has a constitutional duty to implement laws,
including the Constitution, even before Congress acts - provided that there are
discoverable legal standards for executive action. When the executive acts, it
must be guided by its own understanding of the constitutional command and of
applicable laws. The responsibility for reading and understanding the
Constitution and the laws is not the sole prerogative of Congress. If it were, the
executive would have to ask Congress, or perhaps the Court, for an
interpretation every time the executive is confronted by a constitutional
command. That is not how constitutional government operates. [45]

495.500. Respondents further argue that the constitutional provision is addressed to

the State, not to respondent GSIS which by itself possesses a separate and
distinct personality. This argument again is at best specious. It is undisputed that
the sale of 51% of the MHC could only be carried out with the prior approval of
the State acting through respondent Committee on Privatization. As correctly
pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the
assets of respondents GSIS and MHC a state action. In constitutional
jurisprudence, the acts of persons distinct from the government are
considered state action covered by the Constitution (1) when the activity it
engages in is a public function; (2) when the government is so significantly
involved with the private actor as to make the government responsible for his
action; and, (3) when the government has approved or authorized the action. It is
evident that the act of respondent GSIS in selling 51% of its share in respondent
 MHC comes under the second and third categories of state action. Without doubt
therefore the transaction, although entered into by respondent GSIS, is in fact a
transaction of the State and therefore subject to the constitutional command. [46]
496.501. When the Constitution addresses the State it refers not only to the people
but also to the government as elements of the State. After all, government is
composed of three (3) divisions of power - legislative, executive and
judicial. Accordingly, a constitutional mandate directed to the State is
correspondingly directed to the three (3) branches of government. It is
undeniable that in this case the subject constitutional injunction is addressed
among others to the Executive Department and respondent GSIS, a government
instrumentality deriving its authority from the State.
497.502. It should be stressed that while the Malaysian firm offered the higher bid it
is not yet the winning bidder. The bidding rules expressly provide that the highest
bidder shall only be declared the winning bidder after it has negotiated and
executed the necessary contracts, and secured the requisite approvals. Since
the Filipino First Policy provision of the Constitution bestows preference
on qualified Filipinos the mere tending of the highest bid is not an assurance that
the highest bidder will be declared the winning bidder. Resultantly, respondents
are not bound to make the award yet, nor are they under obligation to enter into
one with the highest bidder. For in choosing the awardee respondents are
mandated to abide by the dictates of the 1987 Constitution the provisions of
which are presumed to be known to all the bidders and other interested parties.
498.503. Adhering to the doctrine of constitutional supremacy, the subject
constitutional provision is, as it should be, impliedly written in the bidding rules
issued by respondent GSIS, lest the bidding rules be nullified for being violative
of the Constitution. It is a basic principle in constitutional law that all laws and
contracts must conform with the fundamental law of the land. Those which violate
the Constitution lose their reason for being.
499.504. Paragraph V. J. 1 of the bidding rules provides that [i]f for any reason the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to
other Qualified Bidders that have validly submitted bids provided that these
Qualified Bidders are willing to match the highest bid in terms of price per
share.[47] Certainly, the constitutional mandate itself is reason enough not to award
the block of shares immediately to the foreign bidder notwithstanding its
submission of a higher, or even the highest, bid. In fact, we cannot conceive of
a stronger reason than the constitutional injunction itself.
500.505. In the instant case, where a foreign firm submits the highest bid in a public
bidding concerning the grant of rights, privileges and concessions covering the
national economy and patrimony, thereby exceeding the bid of a Filipino, there is
no question that the Filipino will have to be allowed to match the bid of the
foreign entity. And if the Filipino matches the bid of a foreign firm the award
should go to the Filipino. It must be so if we are to give life and meaning to
the Filipino First Policy provision of the 1987 Constitution. For, while this may
neither be expressly stated nor contemplated in the bidding rules, the
constitutional fiat is omnipresent to be simply disregarded. To ignore it would be
to sanction a perilous skirting of the basic law.
501.506. This Court does not discount the apprehension that this policy may
discourage foreign investors. But the Constitution and laws of the Philippines are
understood to be always open to public scrutiny. These are given factors which
investors must consider when venturing into business in a foreign
jurisdiction. Any person therefore desiring to do business in the Philippines or
with any of its agencies or instrumentalities is presumed to know his rights and
obligations under the Constitution and the laws of the forum.
502.507. The argument of respondents that petitioner is now estopped from
questioning the sale to Renong Berhad since petitioner was well aware from the
beginning that a foreigner could participate in the bidding is
meritless. Undoubtedly, Filipinos and foreigners alike were invited to the
bidding. But foreigners may be awarded the sale only if no Filipino qualifies, or if
the qualified Filipino fails to match the highest bid tendered by the foreign
entity. In the case before us, while petitioner was already preferred at the
inception of the bidding because of the constitutional mandate, petitioner had not
yet matched the bid offered by Renong Berhad. Thus it did not have the right or
personality then to compel respondent GSIS to accept its earlier bid.Rightly, only
after it had matched the bid of the foreign firm and the apparent disregard by
respondent GSIS of petitioners matching bid did the latter have a cause of action.
503.508. Besides, there is no time frame for invoking the constitutional safeguard
unless perhaps the award has been finally made.To insist on selling the Manila
Hotel to foreigners when there is a Filipino group willing to match the bid of the
foreign group is to insist that government be treated as any other ordinary market
player, and bound by its mistakes or gross errors of judgment, regardless of the
consequences to the Filipino people. The miscomprehension of the Constitution
is regrettable.Thus we would rather remedy the indiscretion while there is still an
opportunity to do so than let the government develop the habit of forgetting that
the Constitution lays down the basic conditions and parameters for its actions.
504.509. Since petitioner has already matched the bid price tendered by Renong
Berhad pursuant to the bidding rules, respondent GSIS is left with no alternative
but to award to petitioner the block of shares of MHC and to execute the
necessary agreements and documents to effect the sale in accordance not only
with the bidding guidelines and procedures but with the Constitution as well. The
refusal of respondent GSIS to execute the corresponding documents with
petitioner as provided in the bidding rules after the latter has matched the bid of
the Malaysian firm clearly constitutes grave abuse of discretion.
505.510. The Filipino First Policy is a product of Philippine nationalism. It is
embodied in the 1987 Constitution not merely to be used as a guideline for future
legislation but primarily to be enforced; so must it be enforced. This Court as the
ultimate guardian of the Constitution will never shun, under any reasonable
circumstance, the duty of upholding the majesty of the Constitution which it is
tasked to defend. It is worth emphasizing that it is not the intention of this Court
to impede and diminish, much less undermine, the influx of foreign
investments. Far from it, the Court encourages and welcomes more business
opportunities but avowedly sanctions the preference for Filipinos whenever such
preference is ordained by the Constitution. The position of the Court on this
 matter could have not been more appropriately articulated by Chief Justice
Narvasa -
506.511. As scrupulously as it has tried to observe that it is not its function to
substitute its judgment for that of the legislature or the executive about the
wisdom and feasibility of legislation economic in nature, the Supreme Court
has not been spared criticism for decisions perceived as obstacles to economic
progress and development x x x x in connection with a temporary injunction
issued by the Courts First Division against the sale of the Manila Hotel to a
Malaysian Firm and its partner, certain statements were published in a major
daily to the effect that that injunction again demonstrates that the Philippine
legal system can be a major obstacle to doing business here.
507.512. Let it be stated for the record once again that while it is no business of
the Court to intervene in contracts of the kind referred to or set itself up as the
judge of whether they are viable or attainable, it is its bounden duty to make
sure that they do not violate the Constitution or the laws, or are not adopted or
implemented with grave abuse of discretion amounting to lack or excess of
jurisdiction. It will never shirk that duty, no matter how buffeted by winds of
unfair and ill-informed criticism. [48]

508.513. Privatization of a business asset for purposes of enhancing its business

viability and preventing further losses, regardless of the character of the asset,
should not take precedence over non-material values. A commercial, nay even a
budgetary, objective should not be pursued at the expense of national pride and
dignity. For the Constitution enshrines higher and nobler non-material
values. Indeed, the Court will always defer to the Constitution in the proper
governance of a free society; after all, there is nothing so sacrosanct in any
economic policy as to draw itself beyond judicial review when the Constitution is
involved.[49]
509.514. Nationalism is inherent in the very concept of the Philippines being a
democratic and republican state, with sovereignty residing in the Filipino people
and from whom all government authority emanates. In nationalism, the
happiness and welfare of the people must be the goal. The nation-state can have
no higher purpose. Any interpretation of any constitutional provision must adhere
to such basic concept. Protection of foreign investments, while laudible, is merely
a policy. It cannot override the demands of nationalism.[50]
510.515. The Manila Hotel or, for that matter, 51% of the MHC, is not just any
commodity to be sold to the highest bidder solely for the sake of privatization. We
are not talking about an ordinary piece of property in a commercial district. We
are talking about a historic relic that has hosted many of the most important
events in the short history of the Philippines as a nation. We are talking about a
hotel where heads of states would prefer to be housed as a strong manifestation
of their desire to cloak the dignity of the highest state function to their official
visits to the Philippines. Thus the Manila Hotel has played and continues to play
a significant role as an authentic repository of twentieth century Philippine history
and culture. In this sense, it has become truly a reflection of the Filipino soul - a
 place with a history of grandeur; a most historical setting that has played a part in
the shaping of a country.[51]
511.516. This Court cannot extract rhyme nor reason from the determined efforts of
respondents to sell the historical landmark - this Grand Old Dame of hotels in
Asia - to a total stranger. For, indeed, the conveyance of this epic exponent of
the Filipino psyche to alien hands cannot be less than mephistophelian for it is, in
whatever manner viewed, a veritable alienation of a nations soul for some pieces
of foreign silver. And so we ask: What advantage, which cannot be equally drawn
from a qualified Filipino, can be gained by the Filipinos if Manila Hotel - and all
that it stands for - is sold to a non-Filipino? How much of national pride will
vanish if the nations cultural heritage is entrusted to a foreign entity? On the
other hand, how much dignity will be preserved and realized if the national
patrimony is safekept in the hands of a qualified, zealous and well-meaning
Filipino? This is the plain and simple meaning of the Filipino First Policy provision
of the Philippine Constitution. And this Court, heeding the clarion call of the
Constitution and accepting the duty of being the elderly watchman of the nation,
will continue to respect and protect the sanctity of the Constitution.
512.517. WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE
SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION
and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL are directed to
CEASE and DESIST from selling 51% of the shares of the Manila Hotel
Corporation to RENONG BERHAD, and to ACCEPT the matching bid of
petitioner MANILA PRINCE HOTEL CORPORATION to purchase the subject
51% of the shares of the Manila Hotel Corporation at P44.00 per share and
thereafter to execute the necessary agreements and documents to effect the
sale, to issue the necessary clearances and to do such other acts and deeds as
may be necessary for the purpose.
513.518. SO ORDERED.
514.519. Regalado, Davide, Jr., Romero, Kapunan, Francisco, and Hermosisima,
Jr., JJ, concur.
515.520. Narvasa, C.J., (Chairman), and Melo, J., joins J. Puno in his dissent.
516.521. Padilla, J., see concurring opinion.
517.522. Vitug, J., see separate concurring opinion
518.523. Mendoza, J., see concurring opinion
519.524. Torres, J., with separate opinion
520.525. Puno, J., see dissent.
521.526. Panganiban J., with separate dissenting opinion.
522.527.

523.528.
524.529. [1]
See Sec. 10, par. 2, Art. XII, 1987 Constitution.
525.530. [2]
Par. I. Introduction and Highlights, Guidelines and Procedures: Second
Prequalifications and Public Bidding of the MHC Privatization; Annex A, Consolidated Reply to
Comments of Respondents; Rollo, p.142.
526.531. [3]
Par. V. Guidelines for the Public Bidding, Id., pp. 153-154.
527.532. [4]
Annex A, Petition for Prohibition and Mandamus with Temporary Restraining
Order; Rollo, pp.13-14.
528.533. [5]
Annex B, Petition for Prohibition and Mandamus with Temporary Restraining Order; Id.,
p.15.
529.534. [6]
Petition for Prohibition and Mandamus with Temporary Restraining Order, pp. 5-6; Id.,
pp.6-7.
530.535. [7]
Consolidated Reply to Comments of Respondents, p. 17; Id., p.133.
531.536. [8]
Par. V. J. 1,Guidelines for Public Bidding, Guidelines and Procedures: Second
Prequalifications and Public Bidding of the MHC Privatization, Annex A, Consolidated Reply to
Comments of Respondents; Id., p. 154.
532.537. [9]
Respondents Joint Comment with Urgent Motion to Lift Temporary Restraining Order,
p.9; Rollo, p. 44.
533.538. [10]
Marbury v. Madison, 5 U.S. 138 (1803).
534.539. [11]
11 Am Jur. 606.
535.540. [12]
16 Am Jur. 2d 281.
536.541. [13]
Id., p. 282.
537.542. [14]
See Note 12.
538.543. [15]
Cruz, Isagani A., Constitutional Law, 1993 ed., pp. 8-10.
539.544. [16]
Record of the Constitutional Commission, Vol. 3, 22 August 1986, p. 608.
540.545. [17]
16 Am Jur 2d 283-284.
541.546. [18] Sec. 10, first par., reads: The Congress shall, upon recommendation of the economic
and planning agency, when the national interest dictates, reserve to citizens of the Philippines or
to corporations or associations at least sixty per centum of whose capital is owned by such
citizens, or such higher percentage as Congress may prescribe, certain areas of
investments. The Congress shall enact measures that will encourage the formation and operation
of enterprises whose capital is wholly owned by Filipinos.
542.547. Sec. 10, third par., reads: The State shall regulate and exercise authority over foreign
investments within its national jurisdiction and in accordance with its national goals and priorities.
543.548. [19]
State ex rel. Miller v. OMalley, 342 Mo 641, 117 SW2d 319.
544.549. [20]
G.R. No. 91649, 14 May 1991, 197 SCRA 52.
545.550. [21]
Sec. 11, Art. II (Declaration of Principles and State Policies), provides that [t]he State
values the dignity of every human person and guarantees full respect for human rights.
546.551. [22]
Sec. 12, Art. II, provides that [t]he State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic autonomous social institution. It shall equally protect
the life of the mother and the life of the unborn from conception. The natural and primary right and
duty of parents in the rearing of the youth for civic efficiency and the development of moral
character shall receive the support of the government.
547.552. [23]
Sec. 13, Art. II, provides that [t]he State recognizes the vital role of the youth in nation-
building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-
being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement
in public and civic affairs.
548.553. [24] Sec. 1, Art. XIII (Social Justice and Human Rights), provides that [t]he Congress shall
give highest priority to the enactment of measures that protect and enhance the right of all the
people to human dignity, reduce social, economic and political inequalities, and remove cultural
inequities by equitably diffusing wealth and political power for the common good.
549.554. To this end, the State shall regulate the acquisition, ownership, use, and disposition of
property and its increments.
550.555. Sec. 2, Art. XIII, provides that [t]he promotion of social justice shall include the
commitment to create economic opportunities based on freedom of initiative and self-reliance.
551.556. [25] Sec. 2, Art. XIV (Education, Science and Technology, Arts, Culture, and Sports),
provides that [t]he State shall:
552.557. (1) Establish, maintain, and support a complete, adequate, and integrated system of
education relevant to the needs of the people and society;
553.558. (2) Establish and maintain a system of free public education in the elementary and high
school levels. Without limiting the natural right of parents to rear their children, elementary
education is compulsory for all children of school age;
554.559. (3) Establish and maintain a system of scholarship grants, student loan programs,
subsidies, and other incentives which shall be available to deserving students in both public and
private schools, especially to the underprivileged;
555.560. (4) Encourage non-formal, informal, and indigenous learning, independent, and out-of-
school study programs particularly those that respond to community needs; and
556.561. (5) Provide adult citizens, the disabled, and out-of-school youth with training in civics,
vocational efficiency, and other skills.
557.562. [26]
G.R. No. 115455, 25 August 1994, 235 SCRA 630.
558.563. [27]
See Note 25.
559.564. [28]
Sec. 1, Art. XIV, provides that [t]he State shall protect and promote the right of all
citizens to quality education at all levels of education and shall take appropriate steps to make
such education accessible to all.
560.565. [29]
G.R. No. 118910, 17 July 1995.
561.566. [30]
Sec. 5, Art. II (Declaration of Principles and State Policies), provides that [t]he
maintenance of peace and order, the protection of life, liberty, and property, and the promotion of
the general welfare are essential for the enjoyment by all the people of the blessings of
democracy.
562.567. [31]
See Note 23.
563.568. [32]
See Note 24.
564.569. [33]
Sec. 17, Art. II, provides that [t]he State shall give priority to education, science and
technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social
progress, and promote total human liberation and development.
565.570. [34]
Nolledo, Jose N., The New Constitution of the Philippines Annotated, 1990 ed., p. 72.
566.571. [35]
Websters Third New International Dictionary, 1986 ed., p. 1656.
567.572. [36]
The guest list of the Manila Hotel includes Gen. Douglas MacArthur, the Duke of
Windsor, President Richard Nixon of U.S.A., Emperor Akihito of Japan, President Dwight
Eisenhower of U.S.A, President Nguyen Van Thieu of Vietnam, President Park Chung Hee of
Korea, Prime Minister Richard Holt of Australia, Prime Minister Keith Holyoake of New Zealand,
President Lyndon Johnson of U.S.A., President Jose Lopez Portillo of Mexico, Princess Margaret
of England, Prime Minister Malcolm Fraser of Australia, Prime Minister Yasuhiro Nakasone of
Japan, Prime Minister Pierre Elliot Trudeau of Canada, President Raul Alfonsin of Argentina,
President Felipe Gonzalez of Spain, Prime Minister Noboru Takeshita of Japan, Prime Minister
Hussain Muhammad Ershad of Bangladesh, Prime Minister Bob Hawke of Australia, Prime
Minister Yasuhiro Nakasone of Japan, Premier Li Peng of China, Sultan Hassanal Bolkiah of
Brunei, President Ramaswami Venkataraman of India, Prime Minister Go Chok Tong of
Singapore, Prime Minister Enrique Silva Cimma of Chile, Princess Chulaborn and Mahacharri
Sirindhorn of Thailand, Prime Minister Tomiichi Murayama of Japan, Sultan Azlan Shah and Raja
Permaisuri Agong of Malaysia, President Kim Young Sam of Korea, Princess Infanta Elena of
Spain, President William Clinton of U.S.A., Prime Minister Mahathir Mohamad of Malaysia, King
Juan Carlos I and Queen Sofia of Spain, President Carlos Saul Menem of Argentina, Prime
Ministers Chatichai Choonhavan and Prem Tinsulanonda of Thailand, Prime Minister Benazir
Bhutto of Pakistan, President Vaclav Havel of Czech Republic, Gen. Norman Schwarzkopf of
U.S.A., President Ernesto Perez Balladares of Panama, Prime Minister Adolfas Slezevicius of
Lithuania, President Akbar Hashemi Rafsanjani of Iran, President Askar Akayev of Kyrgyztan,
President Ong Teng Cheong of Singapore, President Frei Ruiz Tagle of Chile, President Le Duc
Anh of Vietnam, and Prime Minister Julius Chan of Papua New Guinea, see Memorandum for
Petitioner, pp. 16-19.
568.573. [37]
Authored by Beth Day Romulo.
569.574. [38]
See Note 9, pp.15-16; Rollo, pp. 50-51.
570.575. [39]
Record of the Constitutional Commission, Vol. 3, 22 August 1986, p. 607.
571.576. [40]
Id., p. 612.
572.577. [41]
Id., p. 616.
573.578. [42]
Id., p. 606.
574.579. [43]
Nolledo, J.N., The New Constitution of the Philippines Annotated, 1990 ed., pp.930-
931.
 575.580. [44]
Bidders were required to have at least one of the these qualifications to be able to
participate in the bidding process; see Note 2.
576.581. [45]
Memorandum of Fr. Joaquin G. Bernas, S.J., p.6.
577.582. [46]
Id., pp. 3-4.
578.583. [47]
See Note 8.
579.584. [48]
Keynote Address at the ASEAN Regional Symposium on Enforcement of Industrial
Property Rights held 23 October 1995 at New World Hotel, Makati City.
580.585. [49]
Speech of Senior Associate Justice Teodoro R. Padilla at the Induction of Officers and
Directors of the PHILCONSA for 1996 held 16 January 1996 at the Sky-Top, Hotel
Intercontinental, Makati City.
581.586. [50]
Memorandum of Authorities submitted by former Chief Justice Enrique M. Fernando,
p.5.
582.587. [51]
8 March 1996 issue of Philippine Daily Inquirer, p. B13.

Manila Prince Hotel vs GSIS

Self Executing Statutes

MANILA PRINCE HOTEL VS. GSIS

G.R. NO. 122156. February 3, 1997
MANILA PRINCE HOTEL petitioner,
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE
ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL, respondents.

Facts:
The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to the
privatization program of the Philippine Government, decided to sell through public bidding 30% to 51% of the
issued and outstanding shares of respondent Manila Hotel Corporation (MHC). The winning bidder, or the
eventual strategic partner, will provide management expertise or an international marketing/reservation
system, and financial support to strengthen the profitability and performance of the Manila Hotel.
In a close bidding held on 18 September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel
Corporation, a Filipino corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per
share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the same
number of shares at P44.00 per share, or P2.42 more than the bid of petitioner. Prior to the declaration of
Renong Berhard as the winning bidder, petitioner Manila Prince Hotel matched the bid price and sent a
managers check as bid security, which GSIS refused to accept.
Apprehensive that GSIS has disregarded the tender of the matching bid and that the sale may be consummated
with Renong Berhad, petitioner filed a petition before the Court.

Issues:
1. Whether or not Sec. 10, second par., Art. XII, of the 1987 Constitution is a self-executing provision.
2. Whether or not the Manila Hotel forms part of the national patrimony.
3. Whether or not the submission of matching bid is premature
4. Whether or not there was grave abuse of discretion on the part of the respondents in refusing the matching
bid of the petitioner.

Rulings:
In the resolution of the case, the Court held that:

1. It is a self-executing provision.
1. Since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed
written in every statute and contract. A provision which lays down a general principle, such as those
found in Art. II of the 1987 Constitution, is usually not self-executing. But a provision which is
complete in itself and becomes operative without the aid of supplementary or enabling legislation, or
that which supplies sufficient rule by means of which the right it grants may be enjoyed or protected,
is self-executing.
2. A constitutional provision is self-executing if the nature and extent of the right conferred and the
liability imposed are fixed by the constitution itself, so that they can be determined by an examination
and construction of its terms, and there is no language indicating that the subject is referred to the
legislature for action. Unless it is expressly provided that a legislative act is necessary to enforce a
constitutional mandate, the presumption now is that all provisions of the constitution are self-
executing. If the constitutional provisions are treated as requiring legislation instead of self-executing,
the legislature would have the power to ignore and practically nullify the mandate of the fundamental
law.
3. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command which is
complete in itself and which needs no further guidelines or implementing laws or rules for its
enforcement. From its very words the provision does not require any legislation to put it in operation.
It is per se judicially enforceable. When our Constitution mandates that in the grant of rights,
privileges, and concessions covering national economy and patrimony, the State shall give preference
to qualified Filipinos, it means just that qualified Filipinos shall be preferred. And when our
Constitution declares that a right exists in certain specified circumstances an action may be
maintained to enforce such right notwithstanding the absence of any legislation on the subject;
consequently, if there is no statute especially enacted to enforce such constitutional right, such right
enforces itself by its own inherent potency and puissance, and from which all legislations must take
their bearings. Where there is a right there is a remedy. Ubi jus ibi remedium.
1.2. The Court agree.
 1. In its plain and ordinary meaning, the term patrimony pertains to heritage. When the Constitution
speaks of national patrimony, it refers not only to the natural resources of the Philippines, as the
Constitution could have very well used the term natural resources, but also to the cultural heritage of
the Filipinos.
2. It also refers to Filipinos intelligence in arts, sciences and letters. In the present case, Manila Hotel
has become a landmark, a living testimonial of Philippine heritage. While it was restrictively an
American hotel when it first opened in 1912, a concourse for the elite, it has since then become the
venue of various significant events which have shaped Philippine history.
3. Verily, Manila Hotel has become part of our national economy and patrimony. For sure, 51% of the
equity of the MHC comes within the purview of the constitutional shelter for it comprises the majority
and controlling stock, so that anyone who acquires or owns the 51% will have actual control and
management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the hotel
and the land on which the hotel edifice stands.
3. It is not premature.
1. In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the
grant of rights, privileges and concessions covering the national economy and patrimony, thereby
exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed to match
the bid of the foreign entity. And if the Filipino matches the bid of a foreign firm the award should go
to the Filipino. It must be so if the Court is to give life and meaning to the Filipino First Policy
provision of the 1987 Constitution. For, while this may neither be expressly stated nor contemplated
in the bidding rules, the constitutional fiat is omnipresent to be simply disregarded. To ignore it would
be to sanction a perilous skirting of the basic law.
2. The Court does not discount the apprehension that this policy may discourage foreign investors. But
the Constitution and laws of the Philippines are understood to be always open to public scrutiny.
These are given factors which investors must consider when venturing into business in a foreign
jurisdiction. Any person therefore desiring to do business in the Philippines or with any of its agencies
or instrumentalities is presumed to know his rights and obligations under the Constitution and the
laws of the forum.
4. There was grave abuse of discretion.
1. To insist on selling the Manila Hotel to foreigners when there is a Filipino group willing to match the
bid of the foreign group is to insist that government be treated as any other ordinary market player,
and bound by its mistakes or gross errors of judgement, regardless of the consequences to the Filipino
people. The miscomprehension of the Constitution is regrettable. Thus, the Court would rather
remedy the indiscretion while there is still an opportunity to do so than let the government develop the
habit of forgetting that the Constitution lays down the basic conditions and parameters for its actions.
2. Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the bidding
rules, respondent GSIS is left with no alternative but to award to petitioner the block of shares of
 MHC and to execute the necessary agreements and documents to effect the sale in accordance not
only with the bidding guidelines and procedures but with the Constitution as well. The refusal of
respondent GSIS to execute the corresponding documents with petitioner as provided in the bidding
rules after the latter has matched the bid of the Malaysian firm clearly constitutes grave abuse of
discretion.

Hence, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL

CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT
CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the Manila
Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner MANILA PRINCE
HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila Hotel Corporation
at P44.00 per share and thereafter to execute the necessary agreements and documents to effect the sale, to
issue the necessary clearances and to do such other acts and deeds as may be necessary for the purpose.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 100588 March 7, 1994

UNIVERSITY OF SAN AGUSTIN, INC., SISTER CONCEPCION CAJILIG, NENALYN ABIODA,

MARY ESPINO, RHODORA AZUCENA, MA. DULCE SOCORRO POSA and COSETTE
MONTEBLANCO, petitioners,
vs.
COURT OF APPEALS, ANTONIO H. LARA, EDUARDO MAGANTE, JOSE SANCHO,
REYNALDA F. SO and WINNEFRIDA C. VALENZUELA, as parents/guardians of Antonio Marco
Ho, Ma. Elanie Magante, Roy D. Sancho, Michael Kim So and Bernardina Cainoy, respondents.

Tirol & Tirol for petitioner.s

Nilo S. Sampiano for private respondents.

NOCON, J.:

The present case involves third year Nursing students who failed to meet the retention policy of the
school, that is, minimum grade of 80% in any major Nursing subject and in two minor subjects. As a
consequence, the school refused to re-admit them. In view of the rights granted to students by the
provisions of Section IV, paragraph 107 of the Manual of Regulations for Private Schools, Section
9(2) of Batas Pambansa Blg. 232 and Article XIV, Section 5(3) of the 1987 Constitution, may they
compel the school to allow them to complete their course?

The antecedent facts are undisputed:

Private respondents Antonio Marco Ho, Ma. Elaine Magante, Roy D. Sancho, Michael Kim So and
Bernardita Cainoy were third year Nursing students of petitioner University of San Agustin (USA)
who were refused re-admission in the summer classes of 1989 and last two semesters of school
year 1989-1990 on the alleged ground that they failed to obtain grades of not lower than 80% in
Nursing 104 (Nursing Practice II with Related Learning Experience). Its persistent refusal to re-admit
them prejudiced their right to freely choose their field of study and finish a college degree and worse,
no other school within the city and nearby areas is willing to accept them due to the difference in the
curriculum and school residency requirement. Thus, they filed a petition for mandamus before the
Regional Trial Court of Iloilo City, to command petitioner USA to re-admit them. Aside from the
prayer for re-admission, they also prayed for actual and moral damages in the amount of P50,000.00
for each of them.

Submitting a joint answer to the petition, petitioner USA and the other petitioners, Dean Concepcion
Cajilig and Clinical Instructors Nenalyn Abioda, Mary Espino, Rhodora Azucena, Ma. Dulce Socorro
Posa and Cosette Monteblanco admitted having barred private respondents from finishing their
Nursing course but justified the decision not to re-admit them as being in pursuance of the school's
policy that only students with grades of at least 80% in any major Nursing subject, including Nursing
104, and two minor subjects, are allowed enrollment in the following year. Private respondents were
duly informed and forewarned of their below 80% performance rating. To buttress petitioner's stance,
they placed reliance on Section 9(2) of the Education Act of 1982 (B.P. Blg. 232) which recognizes
the right of students to freely choose their field of study subject to existing curricula, and to continue
their course up to graduation, except in cases of academic deficiency or violation of disciplinary
regulations; and Section 13(2) thereof vesting in institutions of higher learning the right to determine
on academic grounds who shall be admitted to study, who may teach, and what shall be the subjects
of study and research.

Additionally, petitioners contended that private respondents have no cause of action

for mandamus under the premises because there is no clear and well-defined right of the latter
which has been violated neither do the former have a corresponding ministerial duty to re-admit
them, since petitioner USA is a private educational institution not performing public functions and
duties. Under the Manual of Regulations for Private Schools, petitioner USA enjoys the right to
academic freedom.

The trial court was not persuaded that private respondents are entitled to the relief sought. The
dispositive portion of its order dated September 15, 1989 thus reads:

WHEREFORE, this Court resolves that:

1. This Court has jurisdiction over this case as the correct and proper docket fees
has (sic) been paid by petitioners when so required by the Court;

2. That Mandamus will not lie to compel the respondents to enroll petitioning
students because of their academic deficiencies and that this refusal of respondents
university falls within its right to do so under the academic freedom clause of our
Constitution.

This petition is hereby dismissed with cost upon petitioners.

SO ORDERED.1

It supported its ruling on the basis of the following considerations:

When petitioning students enrolled at respondent university, they and their
parents/guardians signed agreements of admission wherein they bound themselves
to abide by the policies of the school, otherwise to discontinue. This is also provided
for in the Nursing Catalog of respondent university.

These petitioning students have been given warnings of their sub-standard

performance after and before examination periods and informed of their efficiency
and performance ratings. During the evaluation and promotional meetings, some of
the students were advised to discontinue while those on the boarder (sic) line were,
for humanitarian reasons (sic), allowed to sign promises to improve, otherwise they
agreed to withdraw from the course. Respondents' judgment not to readmit
petitioning students was based on sound reasons and good faith.

xxx xxx xxx

Upon the admission of petitioning students at (sic) the First Year of (sic) the School
of Nursing of respondent university, they as well as their parents or guardians signed
Agreements for Admission, (Annex 1, 2, 3, 4, and 5 to Answer) where they agreed to
maintain very good academic performance so that the student belongs to the rank
No. 100 of the class.

Upon admission to the Second Year at the start of the school year 1987-88, they also
signed Agreements for Admission, (Annex 6, 7, 8, 9 and 10).Among other things they
agreed that at anytime after the first semester of the first semester internship, they
may be asked to discontinue the course due to grades below 80 on two minor and
any nursing subjects and agreed that at anytime for failure to meet said standard, the
College of Nursing can disqualify said students from the BSN Course and that the
disqualification does not render the college liable for damages said students may
suffer.

The students involved were in the third year of the Nursing Course of the respondent
University at the start of the school year 1988-89 but at the start and by the end of
the first semester were borderline cases. They and their parents/guardians signed
promises to improve, copies attached are Annexes 11, 12, 13, 14, 15, 16 and 17.
They promised to "improve my academic performance" (a grade of at least 80% in all
major nursing subjects) and "improve my behaviour and attitude in the classroom
and/or the clinical area" and "should I fail to meet the above considerations, I will
voluntarily withdraw from this college." However, even these borderline students now
petitioning failed to make good.

. . . .Mandamus will not lie to compel the school authorities to graduate a student who
has failed to comply with the disciplinary and academic rules of the school as said
writ cannot review or control the exercise of discretionary powers (Magtibay vs.
Garcia L-28971, Jan. 25, 1983). The same rule was applied in the recent case of
Tangonan vs. Pano 137 SCRA 245 where our Supreme Court held that a school may
refuse to enroll a student for academic delinquencies. It cannot be compelled by
mandamus to enroll a student. In the same case it was held that a school has the
right to refuse to enroll a student and such refusal falls within the academic freedom
clause of the Constitution.

xxx xxx xxx

 Under the principle of equitable estoppel, the petitioning students, their
parents/guardians are now estopped to deny what they have signed at the start of
the semester and to question the same signing only at about the end of the semester
when they could not keep up with the grades required of them.

Petitioning students, their parents/guardians who has (sic) full knowledge of the facts
that the agreement of admission is one-sided against them but continued to keep
quite (sic) and acted on the requirements of the respondent university not to have a
grade below 80% but having failed to obtain the same at grading time shall not be
permitted to act in a manner inconsistent with their former position or conduct to the
injury of the other.2

Respondent Court of Appeals did not agree with the ruling of the trial court. The dispositive portion of
its decision dated April 23, 1991 reads:

WHEREFORE, the judgment appealed from is hereby REVERSED and respondent

USA and the other respondents are hereby ordered to re-admit petitioners as 4th
year students in the College of Nursing of respondent USA for the current school
year, 1991-1992. Costs against the respondents.

SO ORDERED.3

It expressed the different view that:

. . . . The outcome of the case under consideration hinges on the decisive issue as to
whether or not petitioners, with grades ranging from 77% to 78% in Nursing 104, are
deemed, within legal contemplation, to be with academic deficiency. And on this
crucial issue, We cannot help but resolve in the negative. In our considered view,
petitioners possess no academic deficiency within the purview of the aforecited law
(Section IV, paragraph 107 of the Manual or Regulations for Private Schools), and
are not disqualified from re-admission to respondent USA's College of Nursing. While
it is true that they did not obtain a grade of at least 80% in Nursing 104, they passed
and did not fail in said subject. It is irrefutable that 75% is the passing grade in
respondent USA, and in all educational institutions of this country; so that petitioners'
grades of 77% and 78% are well above passing mark. Therefore, petitioners having
been given passing grades in all their subjects and full credit for the corresponding
number of units; it stands to reason, and conclude, that far from suffering from any
academic deficiency petitioners have satisfactorily complied with the prescribed
curriculum, entitling them to re-admission and enrollment as 4th year students in the
College of Nursing of respondent USA. Indeed, to be fair to all concerned, especially
to the students and their parents who sacrifice day and night for the education of
their children, academic deficiency should be construed to refer to failing or flunking
grades or, to be more precise, grades lower than 75% in any subject; something
herein petitioners never obtained. This must be so because exceptions or limitations
to the constitutionally protected right of students to enroll in schools of their
preference must be strictly construed and should not be given an unreasonably
broad and expanded scope. To our mind, this is the proper interpretation and
approach, the agreement between the parties to the contrary notwithstanding. More
concretely stated; the stipulation between petitioners and respondent USA to the
effect that a grade of at least 80% in all major nursing subjects and two (2) minor
subjects is a prerequisite for re-admission is repugnant to public policy and is
consequently unavailing to defeat the constitutionally guaranteed right of petitioners
 to re-admission, absent any academic deficiency or violation of rules of discipline.
Verily, clear, express and succinct is the mandate of Section 4, paragraph 107 of the
Manual of Regulations for Private Schools that in the absence of any academic
deficiency or violation of rules on discipline, students have the right to be re-admitted
to finish and graduate from their chosen course. In the instant case, We hold that
petitioners neither have any academic deficiency nor violated any rule of discipline,
and, therefore, richly deserve re-admission in the respondent educational institution.
It bears stressing that the right of every Filipino to acquire an education is impressed
with public interest; and any contract tending to defeat or nullify such right cannot be
countenanced and is not entitled to judicial recognition and protection. Thus infirmed,
the agreements for admission relied upon by respondent USA cannot defeat the right
of petitioners to pursue a successful conclusion their nursing course.

It is not Our purpose, however, to undermine or disregard rules and regulations

promulgated to maintain desirable academic standards; but it bears repeating that
when a school, such as respondent USA here, has given a student a passing grade
of 75% or higher, that passing mark is, to all intents and purposes, a certification and
acknowledgment of the student's eligibility for promotion to the next higher grade;
which, in the case of the herein petitioners, signified their eligibility for re-admission
and enrollment as 4th year students in the College of Nursing of respondent USA
because if the latter itself, which gave petitioners ratings ranging from 77% to 78%
well above the passing mark of 75%, is not ready to re-admit petitioners, how can
other schools with different curricula be expected to admit petitioners who already
finished 3rd year and cannot therefore meet the usual residence requirement?
Obviously, then, there aforesaid contracts invoked by respondent USA are not only
contrary to public policy but are most unfair to petitioners, and cannot be upheld.

Respondents' stance that petitioners are precluded by the principle of estoppel

from impugning or assailing such agreements, is untenable. We believe that the
equitable principle of estoppel cannot muzzle or defeat the constitutional right of a
citizen to pursue higher education subject only to reasonable rules and regulations.
Here, to repeat, what the respondents required of petitioners are unreasonable, nay
unconscionable.

Prior to the decision of respondent court, or on April 4, 1991, petitioners already filed a motion for
dismissal of appeal4 averring, inter alia, that the appeal has become moot and academic because
private respondents have enrolled in and graduated from the Lanting College of Nursing, Tandang
Sora, Quezon City. In the resolution dated April 25, 1991, respondent court merely noted said
motion, considering that the appeal has been decided and the importance of the issues
involved.5 Petitioners then filed a motion for reconsideration ad cautelam of the April 23, 1991
decision, reiterating their previous averments. The motion was denied in the resolution dated June
10, 1991 because:

[t]he importance of the issues involved and jurisprudential relevance and significance
of the ponencia sought to be vacated militate against (petitioners') posture.6

Hence, the present petition.

Petitioners fault respondent court for: 1) not dismissing the case although moot and academic; and
2) ordering them to re-admit private respondents.
Petitioners allege that the private respondents, before rendition of the questioned decision of
respondent court, had already enrolled in the Lanting College of Nursing, Tandang Sora, Quezon
City and graduated in October, 1990. Therefore, respondent court's directive to re-admit them is
futile and illusory. Moreover, while the Manual of Regulations for private Schools (Sections X, XII,
and XIII thereof) is very specific about 75% being the passing grade for the elementary and
secondary courses (or stating with Grade IV up to the intermediate grades), vocational courses, and
in night school (secondary subjects), it is silent with respect to the collegiate course. This can only
mean that the passing grade therein can be based on school standards and policies, in consonance
with the principle of academic freedom. With respect to the Nursing course in particular, it is
undeniable that Nursing as a profession involves the life and death of patients, and petitioners bear
a heavy responsibility to the local community, the nation, and the world to produce graduates of
competence and high quality. The high standard of grading which they have set coupled with rigid
training and instruction is intended to develop the quality of extraordinary diligence which is expected
of professionals. This goal cannot be accomplished by graduates who pass the ordinary and dilute
standard of 75%.

Private respondents do not deny that they had enrolled in the Lanting College of Nursing and
finished the Nursing course therein in October, 1990. Nevertheless, they contend that even if a case
were moot and academic, a statement of the governing principle is appropriate in the resolution
thereof for the guidance not only of the parties but of others similarly situated. Petitioners cannot
dispute the fact that private respondents obtained grades of 77% or 78% in Nursing 104, as reflected
in their respective transcripts of records. And they earned credits for the subject, signifying that they
have passed. The pertinent provisions of the Manual of Regulations for Private Schools that were
cited by petitioners can very well be construed to mean that a student given credit for the completion
of a course is eligible for promotion.

We rule that the special civil action of mandamus is not available in this instance.

The petition which was filed by private respondents before the trial court sought the issuance of a
writ of mandamus, to command petitioners to admit them for enrollment.7 Taking into account the
admission of private respondents that they have finished their Nursing course at the Lanting College
of Nursing even before the promulgation of the questioned decision, this case has clearly been
overtaken by events and should therefore be dismissed. However, the case of Eastern Broadcasting
Corporation (DYRE) v. Dans, etc., et al.8 is the authority for the view that even if a case were moot
and academic, a statement of the governing principle is appropriate in the resolution of dismissal for
the guidance not only of the parties but of others similarly situated.9 We shall adhere to this view and
proceed to dwell on the merits of this petition.

Under Rule 65, Section 3 of the Rules of Court, mandamus lies under any of the following cases: (1)
against any tribunal which unlawfully neglects the performance of an act which the law specifically
enjoins as a duty; (2) in case any corporation, board or person unlawfully neglects the performance
of an act which the law enjoins as a duty resulting from an office, trust or station; and (3) in case any
tribunal, corporation, board or person unlawfully excludes another from the use and enjoyment of a
right or office to which such other is legally entitled; and there is no other plain, speedy and
adequate remedy in the ordinary course of law. 10

The nature of mandamus has been the subject of discussions in several cases. It is settled
that mandamus is employed to compel the performance, when refused, of a ministerial duty, this
being its main objective. It does not lie to require anyone to fulfill contractual obligations or to compel
a course of conduct, 11 nor to control or review the exercise of discretion. 12 On the part of the
petitioner, 13 it is essential to the issuance of a writ of mandamus that he should have a clear legal
right to the thing demanded and it must be the imperative duty of the respondent to perform the act
required. It never issues in doubtful cases. While it may not be necessary that the duty be absolutely
expressed, it must however, be clear. The writ will not issue to compel an official to do anything
which is not his duty to do or which is his duty not to do, or give to the applicant anything to which he
is not entitled by law. The writ neither confers powers nor imposes duties. It is simply a command to
exercise a power already possessed and to perform a duty already imposed. 14

In the present case, private respondents have failed to satisfy the prime and indispensable requisites
of a mandamus proceeding. There is no showing that they possess a clear legal right to be enrolled
in petitioner USA. Moreover, assuming that petitioner USA has an imperative duty to enroll them, it
does not appear to this Court that the duty is merely ministerial; rather, it is a duty involving the
exercise of discretion. This was likewise our ruling in the case of Tangonan v. Pao et al., 15 which
involves a factual setting similar to the present petition. We adopted as our own the rationalization of
the trial court therein:

. . . . Every school has a right to determine who are the students it should accept for
enrolment. It has the right to judge the fitness of students. This is particularly true in
the case of nursing students who perform essential health services. Over and above
its responsibility to petitioner is the responsibility of the school to the general public
and the community. This Court take (sic) judicial notice that nursing has become a
popular course because of the great demand for Filipino Nurses abroad, especially in
the United States. It is essential therefore that Nursing graduates who go abroad and
become in a sense our own ambassador (sic) should be highly qualified to perform
their tasks. This is the responsibility of our school and in the discharge of this
responsibility, they certainly should be given the greatest latitude in formulating their
admission policies.

While petitioner questions the findings of respondent school as to her academic

competence, the Court cannot find any legal jurisdiction to interfere in the exercise of
judgment of the school on this matter. . . .16

The late Chief Justice Claudio Teehankee supplied the rationale underlying our attitude
towards academic decisions or policies in his concurring opinion in the case of Garcia v. The
Faculty Admission Committee, et al., 17 to wit:

Only . . . when there is marked arbitrariness, will the courts interfere with the
academic judgment of the school faculty and the proper authorities as to the
competence and fitness of an applicant for enrollment. . . . The courts simply do not
have the competence nor inclination to constitute themselves as Admission
Committees of the universities and institutions of higher learning and to substitute
their judgment for that of the regularly constituted Admission Committees of such
educational institutions. Were the courts to do so, they would conceivably be
swamped with petitions for admission from the thousands refused admission every
year, and next the thousands who flunked and were dropped would also be
petitioning the courts for a judicial review of their grades.

Section IV, paragraph 107 of the Manual of Regulations for Private School states:

Every student has the right to enrol in any school, college or university upon meeting
its specific requirement and reasonable regulation: Provided, that except in the case
of academic delinquency and violation of disciplinary regulation, the student is
presumed to be qualified for enrolment for the entire period he is expected to
complete his course without prejudice to his right to transfer. 18
The meaning of this provision is that the school, after having accepted a student for enrollment in a
given course may not expel him or refuse to re-enroll him until he completes his course, except
when he is academically deficientor has violated the rules of discipline. He is presumed to be
qualified to study there for the entire period it will take to complete his course. 19

This presumption has been translated into a right in Batas Pambansa Blg. 232, otherwise known as
the "Education Act of 1982." 20 Section 9(2) of this Act provides:

SEC. 9. Rights of Students in School. In addition to other rights, and subject to the
limitations prescribed by law and regulations, students and pupils in all schools shall
enjoy the following rights:

xxx xxx xxx

(2) The right to freely choose their field of study subject to existing curricula and to
continue their course therein up to graduation, except in cases of academic
deficiency, or violation of disciplinary regulations. (emphasis supplied)

Article XIV, Section 5(3) of the 1987 Constitution affords a similar right, although limited to citizens:

Sec. 5 (3) Every citizen has a right to select a profession or course of study, subject
to fair, reasonable, and equitable admission and academic requirements. (emphasis
supplied).

At the same time, educational institutions are entitled to pursue their academic freedom and in the
process have the concomitant right to see to it that this freedom is not jeopardized. 21

Section 13(2) of B.P. Blg. 232 provides:

Sec. 13. Rights of Schools. In addition to their rights provided for by law, school
shall enjoy the following:

xxx xxx xxx

2. The right for institutions of higher learning to determine on academic grounds who
shall be admitted to study, who may teach, and what shall be the subjects of the
study and research. (emphasis supplied)

Equally mandated by Article XIV, Section 5(2) of the 1987 Constitution is that academic freedom
shall be enjoyed in all institutions of higher learning. Academic freedom of educational institutions
has been defined as the right of the school or college to decide for itself, its aims and objectives, and
how best to attain them free from outside coercion or interference save possibly when the
overriding public welfare calls for some restraint. It has a wide sphere of autonomy certainly
extending to the choice of students. Said constitutional provision is not to be construed in a niggardly
manner or in a grudging fashion. That would be to frustrate its purposes and nullify its intent. 22

While it is true that an institution of learning has a contractual obligation to afford its students a fair
opportunity to complete the course they seek to pursue, 23 since a contract creates reciprocal rights
and obligations, the obligation of the school to educate a student would imply a corresponding
obligation on the part of the student to study and obey the rules and regulations of the
school. 24 When a student commits a serious breach of discipline or fails to maintain the required
academic standard, he forfeits his contractual right. In this connection, this Court recognizes the
expertise of educational institutions in the various fields of learning. Thus, they are afforded ample
discretion to formulate reasonable rules and regulations in the admission of students, 25 including
setting of academic standards. Within the parameters thereof, they are competent to determine who
are entitled to admission and re-admission.

We find the challenged regulation of petitioner USA reasonable and relevant to its objective, namely:
. . . to produce graduates of proven competence and aptitude in a demanding profession, for which it
is responsible to society-at-large, not only nationally but also internationally, considering the good
fame and reputation of Filipino nurses abroad. 26 Although private respondents did not flunk in
Nursing 104 but on the contrary earned credits therefor, nevertheless, their performances are still
academically deficient for failure to meet the standards set by petitioner USA. Besides, it is worthy to
note that they were apprised fully beforehand about the rules and regulations of petitioner USA.
When they applied for admission to first year at petitioner USA, they signed agreements therefor,
containing the following terms and conditions:

1. That the College of Nursing, University of San Agustin admits _________ to the
BSN Courses for a period of one year;.

2. That after this period of probation, a final deliberation will take place to decide the
Candidates who will be taken in for BSN second year based on the following
conditions:

"a. very good academic performance so that the student belongs to

the rank No. 100 of the class;

"b. very good attitudes such as punctuality in classes, cooperation in

the activities in the school, respectfulness and cordiality in dealing
with others, honesty;

"c. good physical and mental health;

"d. obedience to the rules and regulations of the College of Nursing.

3. That I hereby waive any right and agree that anytime for failure of the above-
named student to meet the necessary standards specifically mentioned above, the
College of Nursing, USA can disqualify said student from the BSN Course;

4. That the disqualification of the said student from the department does not render
the College of Nursing, USA liable from (sic) whatever damage the said student may
suffer. 27

A year later, or on April 5, 1987, private respondents signed new agreements for admission, subject
to the following terms and conditions:

1. That the College of Nursing, University of San Agustin admits _________ to the
BSN Course for a period of probation of at least one (1) semester;

2. That after the period of probation (first semester of the first year internship) and at
anytime thereafter, unless officially accepted as a candidate for graduation, the
above-named student may be asked to discontinue the course due to:
 "a. poor academic performance, such as failure in one nursing
subject or a grade of 70%;

"b. receipt of a grade below 80 on two minor and any nursing

subjects;

"c. frequent absences from classes and related clinical experience

without legitimate reasons;

"d. poor physical and mental health and;

"e. failure to comply with the requirements of the University and/or the
rules and regulations of the College of Nursing.

3. That I hereby waive any right and agree that any time for failure of the above-
named student to meet the necessary standards specifically mentioned above, the
College of Nursing, USA can disqualify said student from the BSN Course;

4. That the College of Nursing has no right to disqualify the said student possessing
the necessary qualifications and has completed the requirements both academic and
related clinical experience and thus has met the standards set by the College of
Nursing, USA and the MECS office;

5. That the disqualification of the said student from the department does not render
the College of Nursing, University of San Agustin liable from (sic) whatever damage
the said student may suffer.28

On October 28, 1988, private respondents, except Michael Kim So, wrote to the Dean, College of
Nursing of petitioner USA promising to:

a. improve my academic performance (a grade of at least 80% in all major nursing

subjects).

b. improve my behavior and attitude in the classroom and/or the clinical area.

Should I fail to meet the above considerations I will voluntarily withdraw from this
college. 29

Our conclusion is, as sure to follow as night follows the day, that the dismissal of private
respondents' petition by the trial court is proper.

WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals dated April
23, 1991 and its resolutions dated April 25, 1991 and June 10, 1991 are SET ASIDE. The order of
the Regional Trial Court of Iloilo City dated September 15, 1989 is REINSTATED.

SO ORDERED.

Narvasa, C.J., Regalado and Puno, JJ., concur.

 EN BANC

[G.R. No. 141284. August 15, 2000]

INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON.

RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN.
EDGAR B. AGLIPAY, and GEN. ANGELO REYES, respondents.

DECISION
KAPUNAN, J.:

At bar is a special civil action for certiorari and prohibition with prayer for issuance of
a temporary restraining order seeking to nullify on constitutional grounds the order of
President Joseph Ejercito Estrada commanding the deployment of the Philippine
Marines (the Marines) to join the Philippine National Police (the PNP) in visibility patrols
around the metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like
robberies, kidnappings and carnappings, the President, in a verbal directive, ordered
the PNP and the Marines to conduct joint visibility patrols for the purpose of crime
prevention and suppression. The Secretary of National Defense, the Chief of Staff of the
Armed Forces of the Philippines (the AFP), the Chief of the PNP and the Secretary of
the Interior and Local Government were tasked to execute and implement the said
order. In compliance with the presidential mandate, the PNP Chief, through Police Chief
Superintendent Edgar B. Aglipay, formulated Letter of Instruction 02/2000 [1] (the LOI)
which detailed the manner by which the joint visibility patrols, called Task
Force Tulungan, would be conducted.[2] Task Force Tulungan was placed under the
leadership of the Police Chief of Metro Manila.
Subsequently, the President confirmed his previous directive on the deployment of
the Marines in a Memorandum, dated24 January 2000, addressed to the Chief of Staff
of the AFP and the PNP Chief.[3] In the Memorandum, the President expressed his
desire to improve the peace and order situation in Metro Manila through a more
effective crime prevention program including increased police patrols. [4] The President
further stated that to heighten police visibility in the metropolis, augmentation from the
AFP is necessary.[5] Invoking his powers as Commander-in-Chief under Section 18,
Article VII of the Constitution, the President directed the AFP Chief of Staff and PNP
Chief to coordinate with each other for the proper deployment and utilization of the
Marines to assist the PNP in preventing or suppressing criminal or lawless
violence.[6] Finally, the President declared that the services of the Marines in the anti-
crime campaign are merely temporary in nature and for a reasonable period only, until
such time when the situation shall have improved.[7]
The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as
follows:
xxx

2. PURPOSE:

The Joint Implementing Police Visibility Patrols between the PNP NCRPO and
the Philippine Marines partnership in the conduct of visibility patrols in Metro
Manila for the suppression of crime prevention and other serious threats to
national security.

3. SITUATION:

Criminal incidents in Metro Manila have been perpetrated not only by ordinary
criminals but also by organized syndicates whose members include active and
former police/military personnel whose training, skill, discipline and firepower
prove well-above the present capability of the local police alone to
handle. The deployment of a joint PNP NCRPO-Philippine Marines in the
conduct of police visibility patrol in urban areas will reduce the incidence of
crimes specially those perpetrated by active or former police/military
personnel.

4. MISSION:

The PNP NCRPO will organize a provisional Task Force to conduct joint
NCRPO-PM visibility patrols to keep Metro Manila streets crime-free, through
a sustained street patrolling to minimize or eradicate all forms of high-profile
crimes especially those perpetrated by organized crime syndicates whose
members include those that are well-trained, disciplined and well-armed active
or former PNP/Military personnel.

5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:

a. The visibility patrols shall be conducted jointly by the NCRPO [National

Capital Regional Police Office] and the Philippine Marines to curb criminality
in Metro Manila and to preserve the internal security of the state against
insurgents and other serious threat to national security, although the primary
responsibility over Internal Security Operations still rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all forms
of high-profile crimes perpetrated by organized crime syndicates operating in
Metro Manila. This concept requires the military and police to work cohesively
and unify efforts to ensure a focused, effective and holistic approach in
addressing crime prevention. Along this line, the role of the military and police
aside from neutralizing crime syndicates is to bring a wholesome atmosphere
wherein delivery of basic services to the people and development is achieved.
Hand-in-hand with this joint NCRPO-Philippine Marines visibility patrols, local
Police Units are responsible for the maintenance of peace and order in their
locality.

c. To ensure the effective implementation of this project, a provisional Task

Force TULUNGAN shall be organized to provide the mechanism, structure,
and procedures for the integrated planning, coordinating, monitoring and
assessing the security situation.

xxx.[8]
The selected areas of deployment under the LOI are: Monumento Circle, North
Edsa (SM City), Araneta Shopping Center, Greenhills, SM Megamall, Makati
Commercial Center, LRT/MRT Stations and the NAIA and Domestic Airport.[9]
On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the instant
petition to annul LOI 02/2000 and to declare the deployment of the Philippine Marines,
null and void and unconstitutional, arguing that:
I

THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS

VIOLATIVE OF THE CONSTITUTION, IN THAT:

A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD

JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT OF SOLDIERS
FOR LAW ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN
DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION;

B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY

THE MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW
ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF
THE CONSTITUTION;

C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY

ON THE MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF THE
GOVERNMENT.
 II

IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE

ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY MORE
POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE
CONSTITUTION.[10]

Asserting itself as the official organization of Filipino lawyers tasked with the
bounden duty to uphold the rule of law and the Constitution, the IBP questions the
validity of the deployment and utilization of the Marines to assist the PNP in law
enforcement.
Without granting due course to the petition, the Court in a Resolution, [11] dated 25
January 2000, required the Solicitor General to file his Comment on the petition. On 8
February 2000, the Solicitor General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the act of the
President in deploying the Marines, contending, among others, that petitioner has no
legal standing; that the question of deployment of the Marines is not proper for judicial
scrutiny since the same involves a political question; that the organization and conduct
of police visibility patrols, which feature the team-up of one police officer and one
Philippine Marine soldier, does not violate the civilian supremacy clause in the
Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has legal
standing; (2) Whether or not the Presidents factual determination of the necessity of
calling the armed forces is subject to judicial review; and, (3) Whether or not the calling
of the armed forces to assist the PNP in joint visibility patrols violates the
constitutional provisions on civilian supremacy over the military and the civilian
character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the requisites of
standing to raise the issues in the petition. Second, the President did not commit grave
abuse of discretion amounting to lack or excess of jurisdiction nor did he commit a
violation of the civilian supremacy clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the Constitution,
to wit:

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

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

When questions of constitutional significance are raised, the Court can exercise its
power of judicial review only if the following requisites are complied with, namely: (1) the
existence of an actual and appropriate case; (2) a personal and substantial interest of
the party raising the constitutional question; (3) the exercise of judicial review is pleaded
at the earliest opportunity; and (4) the constitutional question is the lis mota of the
case.[12]

The IBP has not sufficiently complied with the requisites of standing in this case.

Legal standing or locus standi has been defined as a personal and substantial
interest in the case such that the party has sustained or will sustain direct injury as a
result of the governmental act that is being challenged.[13] The term interest means a
material interest, an interest in issue affected by the decree, as distinguished from mere
interest in the question involved, or a mere incidental interest. [14] The gist of the question
of standing is whether a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult constitutional
questions.[15]
In the case at bar, the IBP primarily anchors its standing on its alleged responsibility
to uphold the rule of law and the Constitution. Apart from this declaration, however, the
IBP asserts no other basis in support of its locus standi. The mere invocation by the IBP
of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not
sufficient to clothe it with standing in this case. This is too general an interest which is
shared by other groups and the whole citizenry. Based on the standards above-stated,
the IBP has failed to present a specific and substantial interest in the resolution of the
case. Its fundamental purpose which, under Section 2, Rule 139-A of the Rules of
Court, is to elevate the standards of the law profession and to improve the
administration of justice is alien to, and cannot be affected by the deployment of the
Marines. It should also be noted that the interest of the National President of the IBP
who signed the petition, is his alone, absent a formal board resolution authorizing him to
file the present action. To be sure, members of the BAR, those in the judiciary included,
have varying opinions on the issue. Moreover, the IBP, assuming that it has duly
authorized the National President to file the petition, has not shown any specific injury
which it has suffered or may suffer by virtue of the questioned governmental act.Indeed,
none of its members, whom the IBP purportedly represents, has sustained any form of
injury as a result of the operation of the joint visibility patrols. Neither is it alleged that
any of its members has been arrested or that their civil liberties have been violated by
the deployment of the Marines. What the IBP projects as injurious is the supposed
militarization of law enforcement which might threaten Philippine democratic institutions
and may cause more harm than good in the long run. Not only is the presumed injury
not personal in character, it is likewise too vague, highly speculative and uncertain to
satisfy the requirement of standing. Since petitioner has not successfully established a
direct and personal injury as a consequence of the questioned act, it does not possess
the personality to assail the validity of the deployment of the Marines. This Court,
however, does not categorically rule that the IBP has absolutely no standing to raise
constitutional issues now or in the future. The IBP must, by way of allegations and
proof, satisfy this Court that it has sufficient stake to obtain judicial resolution of the
controversy.
Having stated the foregoing, it must be emphasized that this Court has the
discretion to take cognizance of a suit which does not satisfy the requirement of legal
standing when paramount interest is involved.[16] In not a few cases, the Court has
adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able
to craft an issue of transcendental significance to the people. [17] Thus, when the issues
raised are of paramount importance to the public, the Court may brush aside
technicalities of procedure.[18] In this case, a reading of the petition shows that the IBP
has advanced constitutional issues which deserve the attention of this Court in view of
their seriousness, novelty and weight as precedents. Moreover, because peace and
order are under constant threat and lawless violence occurs in increasing tempo,
undoubtedly aggravated by the Mindanao insurgency problem, the legal controversy
raised in the petition almost certainly will not go away. It will stare us in the face
again. It, therefore, behooves the Court to relax the rules on standing and to resolve the
issue now, rather than later.

The President did not commit grave abuse of discretion in calling out the Marines.

In the case at bar, the bone of contention concerns the factual determination of the
President of the necessity of calling the armed forces, particularly the Marines, to aid
the PNP in visibility patrols. In this regard, the IBP admits that the deployment of the
military personnel falls under the Commander-in-Chief powers of the President as
stated in Section 18, Article VII of the Constitution, specifically, the power to call out the
armed forces to prevent or suppress lawless violence, invasion or rebellion.What the
IBP questions, however, is the basis for the calling of the Marines under the aforestated
provision. According to the IBP, no emergency exists that would justify the need for the
calling of the military to assist the police force. It contends that no lawless violence,
invasion or rebellion exist to warrant the calling of the Marines. Thus, the IBP prays that
this Court review the sufficiency of the factual basis for said troop [Marine]
deployment.[19]
The Solicitor General, on the other hand, contends that the issue pertaining to the
necessity of calling the armed forces is not proper for judicial scrutiny since it involves a
political question and the resolution of factual issues which are beyond the review
powers of this Court.
As framed by the parties, the underlying issues are the scope of presidential powers
and limits, and the extent of judicial review. But, while this Court gives considerable
weight to the parties formulation of the issues, the resolution of the controversy may
warrant a creative approach that goes beyond the narrow confines of the issues
raised. Thus, while the parties are in agreement that the power exercised by the
President is the power to call out the armed forces, the Court is of the view that the
power involved may be no more than the maintenance of peace and order and
promotion of the general welfare.[20] For one, the realities on the ground do not show that
there exist a state of warfare, widespread civil unrest or anarchy. Secondly, the full
brunt of the military is not brought upon the citizenry, a point discussed in the latter part
of this decision. In the words of the late Justice Irene Cortes in Marcos v. Manglapus:

More particularly, this case calls for the exercise of the Presidents powers as
protector of the peace. [Rossiter, The American Presidency]. The power of the
President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State
against external and internal threats to its existence. The President is not only
clothed with extraordinary powers in times of emergency, but is also tasked
with attending to the day-to-day problems of maintaining peace and order and
ensuring domestic tranquility in times when no foreign foe appears on the
horizon. Wide discretion, within the bounds of law, in fulfilling presidential
duties in times of peace is not in any way diminished by the relative want of an
emergency specified in the commander-in-chief provision. For in making the
President commander-in-chief the enumeration of powers that follow cannot
be said to exclude the Presidents exercising as Commander-in-Chief powers
short of the calling of the armed forces, or suspending the privilege of the writ
of habeas corpus or declaring martial law, in order to keep the peace, and
maintain public order and security.

xxx[21]
Nonetheless, even if it is conceded that the power involved is the Presidents power
to call out the armed forces to prevent or suppress lawless violence, invasion or
rebellion, the resolution of the controversy will reach a similar result.
We now address the Solicitor Generals argument that the issue involved is not
susceptible to review by the judiciary because it involves a political question, and thus,
not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter which is
appropriate for court review.[22] It pertains to issues which are inherently susceptible of
being decided on grounds recognized by law. Nevertheless, the Court does not
automatically assume jurisdiction over actual constitutional cases brought before it even
in instances that are ripe for resolution. One class of cases wherein the Court hesitates
to rule on are political questions. The reason is that political questions are concerned
with issues dependent upon the wisdom, not the legality, of a particular act or measure
being assailed. Moreover, the political question being a function of the separation of
powers, the courts will not normally interfere with the workings of another co-equal
branch unless the case shows a clear need for the courts to step in to uphold the law
and the Constitution.
As Taada v. Cuenco[23] puts it, political questions refer to those questions which,
under the Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the legislative or
executive branch of government. Thus, if an issue is clearly identified by the text of the
Constitution as matters for discretionary action by a particular branch of government or
to the people themselves then it is held to be a political question.In the classic
formulation of Justice Brennan in Baker v. Carr,[24] [p]rominent on the surface of any
case held to involve a political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial discretion; or the
impossibility of a courts undertaking independent resolution without expressing lack of
the respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the potentiality of
embarassment from multifarious pronouncements by various departments on the one
question.
The 1987 Constitution expands the concept of judicial review by providing that (T)he
Judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law. Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable, and
to determine whether or notthere has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.[25] Under this definition, the Court cannot agree with the Solicitor General
that the issue involved is a political question beyond the jurisdiction of this Court to
review. When the grant of power is qualified, conditional or subject to limitations, the
issue of whether the prescribed qualifications or conditions have been met or the
limitations respected, is justiciable - the problem being one of legality or validity, not its
wisdom.[26] Moreover, the jurisdiction to delimit constitutional boundaries has been given
to this Court.[27] When political questions are involved, the Constitution limits the
determination as to whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the official whose action is
being questioned.[28]
By grave abuse of discretion is meant simply capricious or whimsical exercise of
judgment that is patent and gross as to amount to an evasion of positive duty or a virtual
refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as
where the power is exercised in an arbitrary and despotic manner by reason of passion
or hostility.[29] Under this definition, a court is without power to directly decide matters
over which full discretionary authority has been delegated. But while this Court has no
power to substitute its judgment for that of Congress or of the President, it may look into
the question of whether such exercise has been made in grave abuse of discretion. [30] A
showing that plenary power is granted either department of government, may not be an
obstacle to judicial inquiry, for the improvident exercise or abuse thereof may give rise
to justiciable controversy.[31]
 When the President calls the armed forces to prevent or suppress lawless violence,
invasion or rebellion, he necessarily exercises a discretionary power solely vested in his
wisdom. This is clear from the intent of the framers and from the text of the Constitution
itself. The Court, thus, cannot be called upon to overrule the Presidents wisdom or
substitute its own. However, this does not prevent an examination of whether such
power was exercised within permissible constitutional limits or whether it was exercised
in a manner constituting grave abuse of discretion. In view of the constitutional intent to
give the President full discretionary power to determine the necessity of calling out the
armed forces, it is incumbent upon the petitioner to show that the Presidents decision is
totally bereft of factual basis. The present petition fails to discharge such heavy burden
as there is no evidence to support the assertion that there exist no justification for
calling out the armed forces. There is, likewise, no evidence to support the proposition
that grave abuse was committed because the power to call was exercised in such a
manner as to violate the constitutional provision on civilian supremacy over the
military. In the performance of this Courts duty of purposeful hesitation [32] before
declaring an act of another branch as unconstitutional, only where such grave abuse of
discretion is clearly shown shall the Court interfere with the Presidents judgment. To
doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the
President full discretionary power to call out the armed forces and to determine the
necessity for the exercise of such power. Section 18, Article VII of the Constitution,
which embodies the powers of the President as Commander-in-Chief, provides in part:

The President shall be the Commander-in-Chief of all armed forces of the

Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case
of invasion or rebellion, when the public safety requires it, he may, for a period
not exceeding sixty days, suspend the privilege of the writ of habeas corpus,
or place the Philippines or any part thereof under martial law.

xxx
The full discretionary power of the President to determine the factual basis for the
exercise of the calling out power is also implied and further reinforced in the rest of
Section 18, Article VII which reads, thus:
xxx

Within forty-eight hours from the proclamation of martial law or the suspension
of the privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting jointly, by
a vote of at least a majority of all its Members in regular or special session,
may revoke such proclamation or suspension, which revocation shall not be
set aside by the President. Upon the initiative of the President, the Congress
may, in the same manner, extend such proclamation or suspension for a
period to be determined by the Congress, if the invasion or rebellion shall
persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without
need of a call.

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

citizen, the sufficiency of the factual basis of the proclamation of martial law or
the suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or directly connected with
invasion.

During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be
released.

Under the foregoing provisions, Congress may revoke such proclamation or

suspension and the Court may review the sufficiency of the factual basis
thereof. However, there is no such equivalent provision dealing with the revocation or
review of the Presidents action to call out the armed forces. The distinction places the
calling out power in a different category from the power to declare martial law and the
power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of
the Constitution would have simply lumped together the three powers and provided for
their revocation and review without any qualification. Expressio unius est exclusio
alterius. Where the terms are expressly limited to certain matters, it may not, by
interpretation or construction, be extended to other matters. [33] That the intent of the
Constitution is exactly what its letter says, i.e., that the power to call is fully discretionary
to the President, is extant in the deliberation of the Constitutional Commission, to wit:

FR. BERNAS. It will not make any difference. I may add that there is a
graduated power of the President as Commander-in-Chief. First, he can call
out such Armed Forces as may be necessary to suppress lawless violence;
then he can suspend the privilege of the writ of habeas corpus, then he can
impose martial law. This is a graduated sequence.

When he judges that it is necessary to impose martial law or suspend the

privilege of the writ of habeas corpus, his judgment is subject to review. We
are making it subject to review by the Supreme Court and subject to
concurrence by the National Assembly. But when he exercises this lesser
power of calling on the Armed Forces, when he says it is necessary, it is my
opinion that his judgment cannot be reviewed by anybody.

xxx

FR. BERNAS. Let me just add that when we only have imminent danger, the
matter can be handled by the first sentence: The President may call out such
armed forces to prevent or suppress lawless violence, invasion or rebellion.
So we feel that that is sufficient for handling imminent danger.

MR. DE LOS REYES. So actually, if a President feels that there is imminent

danger, the matter can be handled by the First Sentence: The
President....may call out such Armed Forces to prevent or suppress lawless
violence, invasion or rebellion. So we feel that that is sufficient for handling
imminent danger, of invasion or rebellion, instead of imposing martial law or
suspending the writ of habeas corpus, he must necessarily have to call the
Armed Forces of the Philippines as their Commander-in-Chief. Is that the
idea?

MR. REGALADO. That does not require any concurrence by the legislature
nor is it subject to judicial review.[34]

The reason for the difference in the treatment of the aforementioned powers
highlights the intent to grant the President the widest leeway and broadest discretion in
using the power to call out because it is considered as the lesser and more benign
power compared to the power to suspend the privilege of the writ of habeas corpus and
the power to impose martial law, both of which involve the curtailment and suppression
of certain basic civil rights and individual freedoms, and thus necessitating safeguards
by Congress and review by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of the
power to suspend the privilege of the writ of habeas corpus or to impose martial law,
two conditions must concur: (1) there must be an actual invasion or rebellion and, (2)
public safety must require it. These conditions are not required in the case of the power
to call out the armed forces. The only criterion is that whenever it becomes necessary,
the President may call the armed forces to prevent or suppress lawless violence,
invasion or rebellion." The implication is that the President is given full discretion and
wide latitude in the exercise of the power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the President
acted without factual basis, then this Court cannot undertake an independent
investigation beyond the pleadings. The factual necessity of calling out the armed forces
is not easily quantifiable and cannot be objectively established since matters considered
for satisfying the same is a combination of several factors which are not always
accessible to the courts. Besides the absence of textual standards that the court may
use to judge necessity, information necessary to arrive at such judgment might also
prove unmanageable for the courts.Certain pertinent information might be difficult to
verify, or wholly unavailable to the courts. In many instances, the evidence upon which
the President might decide that there is a need to call out the armed forces may be of a
nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence
network to gather information, some of which may be classified as highly confidential or
affecting the security of the state. In the exercise of the power to call, on-the-spot
decisions may be imperatively necessary in emergency situations to avert great loss of
human lives and mass destruction of property. Indeed, the decision to call out the
military to prevent or suppress lawless violence must be done swiftly and decisively if it
were to have any effect at all. Such a scenario is not farfetched when we consider the
present situation in Mindanao, where the insurgency problem could spill over the other
parts of the country. The determination of the necessity for the calling out power if
subjected to unfettered judicial scrutiny could be a veritable prescription for disaster, as
such power may be unduly straitjacketed by an injunction or a temporary restraining
order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as
Commander-in-Chief of the Armed Forces, full discretion to call forth the military when
in his judgment it is necessary to do so in order to prevent or suppress lawless violence,
invasion or rebellion. Unless the petitioner can show that the exercise of such discretion
was gravely abused, the Presidents exercise of judgment deserves to be accorded
respect from this Court.
The President has already determined the necessity and factual basis for calling the
armed forces. In his Memorandum, he categorically asserted that, [V]iolent crimes like
bank/store robberies, holdups, kidnappings and carnappings continue to occur in Metro
Manila...[35] We do not doubt the veracity of the Presidents assessment of the situation,
especially in the light of present developments. The Court takes judicial notice of the
recent bombings perpetrated by lawless elements in the shopping malls, public utilities,
and other public places. These are among the areas of deployment described in the LOI
2000.Considering all these facts, we hold that the President has sufficient factual basis
to call for military aid in law enforcement and in the exercise of this constitutional power.

The deployment of the Marines does not violate the civilian supremacy clause nor
does it infringe the civilian character of the police force.
 Prescinding from its argument that no emergency situation exists to justify the
calling of the Marines, the IBP asserts that by the deployment of the Marines, the
civilian task of law enforcement is militarized in violation of Section 3, Article II[36] of the
Constitution.
We disagree. The deployment of the Marines does not constitute a breach of the
civilian supremacy clause. The calling of the Marines in this case constitutes
permissible use of military assets for civilian law enforcement. The participation of the
Marines in the conduct of joint visibility patrols is appropriately circumscribed. The
limited participation of the Marines is evident in the provisions of the LOI itself, which
sufficiently provides the metes and bounds of the Marines authority. It is noteworthy that
the local police forces are the ones in charge of the visibility patrols at all times, the real
authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall
leader of the PNP-Philippine Marines joint visibility patrols.[37] Under the LOI, the police
forces are tasked to brief or orient the soldiers on police patrol procedures. [38] It is their
responsibility to direct and manage the deployment of the Marines.[39] It is, likewise, their
duty to provide the necessary equipment to the Marines and render logistical support to
these soldiers.[40] In view of the foregoing, it cannot be properly argued that military
authority is supreme over civilian authority. Moreover, the deployment of the Marines to
assist the PNP does not unmake the civilian character of the police force. Neither does
it amount to an insidious incursion of the military in the task of law enforcement in
violation of Section 5(4), Article XVI of the Constitution.[41]
In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of
the AFP, by his alleged involvement in civilian law enforcement, has been virtually
appointed to a civilian post in derogation of the aforecited provision. The real authority in
these operations, as stated in the LOI, is lodged with the head of a civilian institution,
the PNP, and not with the military. Such being the case, it does not matter whether the
AFP Chief actually participates in the Task Force Tulungan since he does not exercise
any authority or control over the same. Since none of the Marines was incorporated or
enlisted as members of the PNP, there can be no appointment to civilian position to
speak of. Hence, the deployment of the Marines in the joint visibility patrols does not
destroy the civilian character of the PNP.
Considering the above circumstances, the Marines render nothing more than
assistance required in conducting the patrols.As such, there can be no insidious
incursion of the military in civilian affairs nor can there be a violation of the civilian
supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian authorities in various
forms persists in Philippine jurisdiction. The Philippine experience reveals that it is not
averse to requesting the assistance of the military in the implementation and execution
of certain traditionally civil functions. As correctly pointed out by the Solicitor General,
some of the multifarious activities wherein military aid has been rendered, exemplifying
the activities that bring both the civilian and the military together in a relationship of
cooperation, are:
1. Elections;[42]
 2. Administration of the Philippine National Red Cross;[43]
3. Relief and rescue operations during calamities and disasters;[44]
4. Amateur sports promotion and development;[45]
5. Development of the culture and the arts;[46]
6. Conservation of natural resources;[47]
7. Implementation of the agrarian reform program;[48]
8. Enforcement of customs laws;[49]
9. Composite civilian-military law enforcement activities;[50]
10. Conduct of licensure examinations;[51]
11. Conduct of nationwide tests for elementary and high school students;[52]
12. Anti-drug enforcement activities;[53]
13. Sanitary inspections;[54]
14. Conduct of census work;[55]
15. Administration of the Civil Aeronautics Board;[56]
16. Assistance in installation of weather forecasting devices;[57]
17. Peace and order policy formulation in local government units.[58]
This unquestionably constitutes a gloss on executive power resulting from a
systematic, unbroken, executive practice, long pursued to the knowledge of Congress
and, yet, never before questioned.[59] What we have here is mutual support and
cooperation between the military and civilian authorities, not derogation of civilian
supremacy.
In the United States, where a long tradition of suspicion and hostility towards the
use of military force for domestic purposes has persisted, [60] and whose Constitution,
unlike ours, does not expressly provide for the power to call, the use of military
personnel by civilian law enforcement officers is allowed under circumstances similar to
those surrounding the present deployment of the Philippine Marines. Under the Posse
Comitatus Act[61] of the US, the use of the military in civilian law enforcement is generally
prohibited, except in certain allowable circumstances. A provision of the Act states:

1385. Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by

the Constitution or Act of Congress, willfully uses any part of the Army or the
Air Force as posse comitatus or otherwise to execute the laws shall be fined
not more than $10,000 or imprisoned not more than two years, or both.[62]

To determine whether there is a violation of the Posse Comitatus Act in the use of
military personnel, the US courts[63]apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law enforcement
officers at Wounded Knee in such a manner that the military personnel
subjected the citizens to the exercise of military power which was regulatory,
proscriptive, or compulsory[64]George Washington Law Review, pp. 404-433 (1986), which
discusses the four divergent standards for assessing acceptable involvement of military personnel in civil
law enforcement. See likewise HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO
EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in nature,
either presently or prospectively?

xxx

When this concept is transplanted into the present legal context, we take it to
mean that military involvement, even when not expressly authorized by the
Constitution or a statute, does not violate the Posse Comitatus Act unless it
actually regulates, forbids or compels some conduct on the part of those
claiming relief. A mere threat of some future injury would be
insufficient.(emphasis supplied)

Even if the Court were to apply the above rigid standards to the present case to
determine whether there is permissible use of the military in civilian law enforcement,
the conclusion is inevitable that no violation of the civilian supremacy clause in the
Constitution is committed. On this point, the Court agrees with the observation of the
Solicitor General:

3. The designation of tasks in Annex A[65] does not constitute the exercise of
regulatory, proscriptive, or compulsory military power. First, the soldiers do not control or direct the
operation. This is evident from Nos. 6,[66] 8(k)[67] and 9(a)[68] of Annex A. These soldiers, second, also
have no power to prohibit or condemn. In No. 9(d)[69] of Annex A, all arrested persons are brought to
the nearest police stations for proper disposition. And last, these soldiers apply no coercive
force. The materials or equipment issued to them, as shown in No. 8(c) [70] of Annex A, are all low
impact and defensive in character. The conclusion is that there being no exercise of regulatory,
proscriptive or compulsory military power, the deployment of a handful of Philippine Marines
constitutes no impermissible use of military power for civilian law enforcement.[71]

It appears that the present petition is anchored on fear that once the armed forces
are deployed, the military will gain ascendancy, and thus place in peril our cherished
liberties. Such apprehensions, however, are unfounded. The power to call the armed
forces is just that - calling out the armed forces. Unless, petitioner IBP can show, which
it has not, that in the deployment of the Marines, the President has violated the
fundamental law, exceeded his authority or jeopardized the civil liberties of the people,
this Court is not inclined to overrule the Presidents determination of the factual basis for
the calling of the Marines to prevent or suppress lawless violence.
One last point. Since the institution of the joint visibility patrol in January, 2000, not
a single citizen has complained that his political or civil rights have been violated as a
result of the deployment of the Marines. It was precisely to safeguard peace, tranquility
and the civil liberties of the people that the joint visibility patrol was conceived. Freedom
and democracy will be in full bloom only when people feel secure in their homes and in
the streets, not when the shadows of violence and anarchy constantly lurk in their midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-
Santiago, and De Leon, Jr., JJ., concur.
Bellosillo, J., on official leave.
Puno, J., see separate opinion.
Vitug, J., see separate opinion.
Mendoza, J., see concurring and dissenting opinion.
Panganiban, J., in the result.
Quisumbing, J., joins the opinion of J. Mendoza.

SEPARATE OPINION

PUNO, J.:

If the case at bar is significant, it is because of the government attempt to foist

the political question doctrine to shield an executive act done in the exercise of the
commander-in-chief powers from judicial scrutiny. If the attempt succeeded, it would
have diminished the power of judicial review and weakened the checking
authority of this Court over the Chief Executive when he exercises his
commander-in-chief powers. The attempt should remind us of the tragedy that
befell the country when this Court sought refuge in the political question doctrine
and forfeited its most important role as protector of the civil and political rights of
our people. The ongoing conflict in Mindanao may worsen and can force the
Chief Executive to resort to the use of his greater commander-in-chief powers,
hence, this Court should be extra cautious in assaying similar attempts. A laid
back posture may not sit well with our people considering that the 1987
Constitution strengthened the checking powers of this Court and expanded its
jurisdiction precisely to stop any act constituting xxx grave abuse of jurisdiction
xxx on the part of any branch or instrumentality of the Government.1
The importance of the issue at bar includes this humble separate opinion. We can
best perceive the different intersecting dimensions of the political question doctrine by
viewing them from the broader canvass of history. Political questions are defined as
those questions which under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been delegated
to the legislative or executive branch of government. 2 They have two aspects: (1) those
matters that are to be exercised by the people in their primary political capacity and (2)
matters which have been specifically delegated to some other department or particular
office of the government, with discretionary power to act. 3 The exercise of the
discretionary power of the legislative or executive branch of government was often the
area where the Court had to wrestle with the political question doctrine. 4
 A brief review of some of our case law will thus give us a sharper perspective of the
political question doctrine. This question confronted the Court as early as 1905 in the
case of Barcelon v. Baker.5 The Governor-General of the Philippine Islands, pursuant
to a resolution of the Philippine Commission, suspended the privilege of the writ of
habeas corpus in Cavite and Batangas based on a finding of open insurrection in said
provinces. Felix Barcelon, who was detained by constabulary officers in Batangas, filed
a petition for the issuance of a writ of habeas corpus alleging that there was no open
insurrection in Batangas. The issue to resolve was whether or not the judicial
department may investigate the facts upon which the legislative (the Philippine
Commission) and executive (the Governor-General) branches of government acted in
suspending the privilege of the writ.
The Court ruled that under our form of government, one department has no
authority to inquire into the acts of another, which acts are performed within the
discretion of the other department.6 Surveying American law and jurisprudence, it held
that whenever a statute gives discretionary power to any person, to be exercised by him
upon his own opinion of certain facts, the statute constitutes him the sole judge of the
existence of those facts.7 Since the Philippine Bill of 1902 empowered the Philippine
Commission and the Governor-General to suspend the privilege of the writ of habeas
corpus, this power is exclusively within the discretion of the legislative and executive
branches of government. The exercise of this discretion is conclusive upon the
courts.8
The Court further held that once a determination is made by the executive and
legislative departments that the conditions justifying the assailed acts exists, it will
presume that the conditions continue until the same authority decide that they no longer
exist.9 It adopted the rationale that the executive branch, thru its civil and military
branches, are better situated to obtain information about peace and order from every
corner of the nation, in contrast with the judicial department, with its very limited
machinery.10 The seed of the political question doctrine was thus planted in
Philippine soil.
The doctrine barring judicial review because of the political question doctrine
was next applied to the internal affairs of the legislature. The Court refused to
interfere in the legislative exercise of disciplinary power over its own members.In the
1924 case of Alejandrino v. Quezon,11 Alejandrino, who was appointed Senator by the
Governor-General, was declared by Senate Resolution as guilty of disorderly conduct
for assaulting another Senator in the course of a debate, and was suspended from
office for one year. Senator Alejandrino filed a petition for mandamus and injunction to
compel the Senate to reinstate him. The Court held that under the Jones Law, the
power of the Senate to punish its members for disorderly behavior does not authorize it
to suspend an appointive member from the exercise of his office. While the Court found
that the suspension was illegal, it refused to issue the writ of mandamus on the ground
that "the Supreme Court does not possess the power of coercion to make the Philippine
Senate take any particular action. [T]he Philippine Legislature or any branch thereof
cannot be directly controlled in the exercise of their legislative powers by any judicial
process."12
 The issue revisited the Court twenty-two (22) years later. In 1946, in Vera v.
Avelino,13 three senators-elect who had been prevented from taking their oaths of office
by a Senate resolution repaired to this Court to compel their colleagues to allow them to
occupy their seats contending that only the Electoral Tribunal had jurisdiction over
contests relating to their election, returns and qualifications. Again, the Court refused to
intervene citing Alejandrino and affirmed the inherent right of the legislature to
determine who shall be admitted to its membership.
In the 1947 case of Mabanag v. Lopez-Vito,14 three Senators and eight
representatives who were proclaimed elected by Comelec were not allowed by
Congress to take part in the voting for the passage of the Parity amendment to the
Constitution.If their votes had been counted, the affirmative votes in favor of the
proposed amendment would have been short of the necessary three-fourths vote in
either House of Congress to pass the amendment. The amendment was eventually
submitted to the people for ratification. The Court declined to intervene and held that a
proposal to amend the Constitution is a highly political function performed by Congress
in its sovereign legislative capacity.15
In the 1955 case of Arnault v. Balagtas,16 petitioner, a private citizen, assailed the
legality of his detention ordered by the Senate for his refusal to answer questions put to
him by members of one of its investigating committees. This Court refused to order his
release holding that the process by which a contumacious witness is dealt with by the
legislature is a necessary concomitant of the legislative process and the legislature's
exercise of its discretionary authority is not subject to judicial interference.
In the 1960 case of Osmena v. Pendatun,17 the Court followed the traditional line.
Congressman Sergio Osmena, Jr. was suspended by the House of Representatives for
serious disorderly behavior for making a privilege speech imputing "malicious charges"
against the President of the Philippines. Osmena, Jr. invoked the power of review of this
Court but the Court once more did not interfere with Congress' power to discipline its
members.
The contours of the political question doctrine have always been tricky. To be sure,
the Court did not always stay its hand whenever the doctrine is invoked. In the 1949
case of Avelino v. Cuenco,18 Senate President Jose Avelino, who was deposed and
replaced, questioned his successor's title claiming that the latter had been elected
without a quorum. The petition was initially dismissed on the ground that the selection of
Senate President was an internal matter and not subject to judicial review. 19 On
reconsideration, however, the Court ruled that it could assume jurisdiction over the
controversy in light of subsequent events justifying intervention among which was the
existence of a quorum.20 Though the petition was ultimately dismissed, the Court
declared respondent Cuenco as the legally elected Senate President.
In the 1957 case of Tanada v. Cuenco,21 the Court assumed jurisdiction over a
dispute involving the formation and composition of the Senate Electoral Tribunal. It
rejected the Solicitor General's claim that the dispute involved a political question.
Instead, it declared that the Senate is not clothed with "full discretionary authority" in the
choice of members of the Senate Electoral Tribunal and the exercise of its power
thereon is subject to constitutional limitations which are mandatory in nature. 22 It held
that under the Constitution, the membership of the Senate Electoral Tribunal was
designed to insure the exercise of judicial impartiality in the disposition of election
contests affecting members of the lawmaking body.23 The Court then nullified the
election to the Senate Electoral Tribunal made by Senators belonging to the party
having the largest number of votes of two of their party members but purporting to act
on behalf of the party having the second highest number of votes.
In the 1962 case of Cunanan v. Tan, Jr.,24 the Court passed judgment on whether
Congress had formed the Commission on Appointments in accordance with the
Constitution and found that it did not. It declared that the Commission on Appointments
is a creature of the Constitution and its power does not come from Congress but from
the Constitution.
The 1967 case of Gonzales v. Comelec25 and the 1971 case of Tolentino v.
Comelec26 abandoned Mabanag v. Lopez-Vito. The question of whether or not
Congress, acting as a constituent assembly in proposing amendments to the
Constitution violates the Constitution was held to be a justiciable and not a political
issue. In Gonzales, the Court ruled:

"It is true that in Mabanag v. Lopez-Vito, this Court characterizing the issue
submitted thereto as a political one, declined to pass upon the question
whether or not a given number of votes cast in Congress in favor of a
proposed amendment to the Constitution-which was being submitted to the
people for ratification-satisfied the three-fourths vote requirement of the
fundamental law. The force of this precedent has been weakened, however,
by Suanes v. Chief Accountant of the Senate, Avelino v. Cuenco, Tanada v.
Cuenco, and Macias v. Commission on Elections. In the first, we held that the
officers and employees of the Senate Electoral Tribunal are under its
supervision and control, not of that of the Senate President, as claimed by the
latter; in the second, this Court proceeded to determine the number of
Senators necessary for a quorum in the Senate; in the third, we nullified the
election, by Senators belonging to the party having the largest number of
votes in said chamber, purporting to act on behalf of the party having the
second largest number of votes therein, of two (2) Senators belonging to the
first party, as members, for the second party, of the Senate Electoral Tribunal;
and in the fourth, we declared unconstitutional an act of Congress purporting
to apportion the representative districts for the House of Representatives upon
the ground that the apportionment had not been made as may be possible
according to the number of inhabitants of each province. Thus, we rejected
the theory, advanced in these four cases, that the issues therein raised were
political questions the determination of which is beyond judicial review.27

The Court explained that the power to amend the Constitution or to propose
amendments thereto is not included in the general grant of legislative powers to
Congress. As a constituent assembly, the members of Congress derive their authority
from the fundamental law and they do not have the final say on whether their acts are
within or beyond constitutional limits.28This ruling was reiterated in Tolentino which held
that acts of a constitutional convention called for the purpose of proposing amendments
to the Constitution are at par with acts of Congress acting as a constituent assembly. 29
In sum, this Court brushed aside the political question doctrine and assumed
jurisdiction whenever it found constitutionally-imposed limits on the exercise of
powers conferred upon the Legislature.30
The Court hewed to the same line as regards the exercise of Executive
power. Thus, the respect accorded executive discretion was observed in Severino v.
Governor-General,31 where it was held that the Governor-General, as head of the
executive department, could not be compelled by mandamus to call a special election in
the town of Silay for the purpose of electing a municipal president. Mandamus and
injunction could not lie to enforce or restrain a duty which is discretionary. It was held
that when the Legislature conferred upon the Governor-General powers and duties, it
did so for the reason that he was in a better position to know the needs of the country
than any other member of the executive department, and with full confidence that he will
perform such duties as his best judgment dictates.32
Similarly, in Abueva v. Wood,33 the Court held that the Governor-General could not
be compelled by mandamus to produce certain vouchers showing the various
expenditures of the Independence Commission. Under the principle of separation of
powers, it ruled that it was not intended by the Constitution that one branch of
government could encroach upon the field of duty of the other. Each department has an
exclusive field within which it can perform its part within certain discretionary limits. 34 It
observed that "the executive and legislative departments of government are frequently
called upon to deal with what are known as political questions, with which the judicial
department of government has no intervention. In all such questions, the courts
uniformly refused to intervene for the purpose of directing or controlling the actions of
the other department; such questions being many times reserved to those departments
in the organic law of the state."35
In Forties v. Tiaco,36 the Court also refused to take cognizance of a case enjoining
the Chief Executive from deporting an obnoxious alien whose continued presence in the
Philippines was found by him to be injurious to the public interest. It noted that sudden
and unexpected conditions may arise, growing out of the presence of untrustworthy
aliens, which demand immediate action. The President's inherent power to deport
undesirable aliens is universally denominated as political, and this power continues to
exist for the preservation of the peace and domestic tranquility of the nation. 37
In Manalang v. Quitoriano,38 the Court also declined to interfere in the exercise of
the President's appointing power. It held that the appointing power is the exclusive
prerogative of the President, upon which no limitations may be imposed by Congress,
except those resulting from the need of securing concurrence of the Commission on
Appointments and from the exercise of the limited legislative power to prescribe
qualifications to a given appointive office.
 We now come to the exercise by the President of his powers as Commander-
in-Chief vis-a-vis the political question doctrine. In the 1940's, this Court has held that
as Commander-in-Chief of the Armed Forces, the President has the power to determine
whether war, in the legal sense, still continues or has terminated. It ruled that it is within
the province of the political department and not of the judicial department of government
to determine when war is at end.39
In 1952, the Court decided the landmark case of Montenegro v.
Castaneda.40 President Quirino suspended the privilege of the writ of habeas corpus for
persons detained or to be detained for crimes of sedition, insurrection or rebellion. The
Court, citing Barcelon, declared that the authority to decide whether the exigency has
arisen requiring the suspension of the privilege belongs to the President and his
decision is final and conclusive on the courts.41
Barcelon was the ruling case law until the 1971 case of Lansang v.
Garcia came.42 Lansang reversed the previous cases and held that the suspension of the
privilege of the writ of habeas corpus was not a political question. According to the
Court, the weight of Barcelon was diluted by two factors: (1) it relied heavily on Martin
v. Mott, which involved the U.S. President's power to call out the militia which is a much
broader power than suspension of the privilege of the writ; and (2) the privilege was
suspended by the American Governor-General whose act, as representative of the
sovereign affecting the freedom of its subjects, could not be equated with that of the
President of the Philippines dealing with the freedom of the sovereign Filipino people.
The Court declared that the power to suspend the privilege of the writ of
habeas corpus is neither absolute nor unqualified because the Constitution sets
limits on the exercise of executive discretion on the matter. These limits are: (1)
that the privilege must not be suspended except only in cases of invasion, insurrection
or rebellion or imminent danger thereof; and (2) when the public safety requires it, in
any of which events the same may be suspended wherever during such period the
necessity for the suspension shall exist. The extent of the power which may be inquired
into by courts is defined by these limitations.43
On the vital issue of how the Court may inquire into the President's exercise of
power, it ruled that the function of the Court is not to supplant but merely to check the
Executive; to ascertain whether the President has gone beyond the constitutional limits
of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of
his act. Judicial inquiry is confined to the question of whether the President did not act
arbitrarily.44 Using this yardstick, the Court found that the President did not.
The emergency period of the 1970's flooded the Court with cases which raised the
political question defense. The issue divided the Court down the middle. Javellana v.
Executive Secretary45 showed that while a majority of the Court held that the issue of
whether or not the 1973 Constitution had been ratified in accordance with the 1935
Constitution was justiciable, a majority also ruled that the decisive issue of whether the
1973 Constitution had come into force and effect, with or without constitutional
ratification, was a political question.46
 The validity of the declaration of martial law by then President Marcos was next
litigated before the Court. In Aquino, Jr. v. Enrile,47 it upheld the President's declaration
of martial law. On whether the validity of the imposition of martial law was a political or
justiciable question, the Court was almost evenly divided. One-half embraced the
political question position and the other half subscribed to the justiciable position in
Lansang. Those adhering to the political question doctrine used different methods of
approach to it.48
In 1983, the Lansang ruling was weakened by the Court in Garcia-Padilla v.
Enrile.49 The petitioners therein were arrested and detained by the Philippine
Constabulary by virtue of a Presidential Commitment Order (PCO). Petitioners sought
the issuance of a writ of habeas corpus. The Court found that the PCO had the function
of validating a person's detention for any of the offenses covered in Proclamation No.
2045 which continued in force the suspension of the privilege of the writ of habeas
corpus. It held that the issuance of the PCO by the President was not subject to judicial
inquiry.50 It went further by declaring that there was a need to re-examine Lansang with
a view to reverting to Barcelon and Montenegro. It observed that in times of war or
national emergency, the President must be given absolute control for the very life of the
nation and government is in great peril. The President, it intoned, is answerable only to
his conscience, the people, and God.51
But barely six (6) days after Garcia-Padilla, the Court promulgated Morales, Jr. v.
Enrile52 reiterating Lansang. It held that by the power of judicial review, the Court must
inquire into every phase and aspect of a person's detention from the moment he was
taken into custody up to the moment the court passes upon the merits of the
petition. Only after such a scrutiny can the court satisfy itself that the due process
clause of the Constitution has been met.53
It is now history that the improper reliance by the Court on the political
question doctrine eroded the people's faith in its capacity to check abuses
committed by the then Executive in the exercise of his commander-in-chief
powers, particularly violations against human rights. The refusal of courts to be
pro-active in the exercise of its checking power drove the people to the streets to
resort to extralegal remedies. They gave birth to EDSA.
Two lessons were not lost to the members of the Constitutional Commission that
drafted the 1987 Constitution. The first was the need to grant this Court the express
power to review the exercise of the powers as commander-in-chief by the President
and deny it of any discretion to decline its exercise. The second was the need to
compel the Court to be pro-active by expanding its jurisdiction and, thus, reject its laid
back stance against acts constituting grave abuse of discretion on the part of any
branch or instrumentality of government. Then Chief Justice Roberto Concepcion, a
member of the Constitutional Commission, worked for the insertion of the second
paragraph of Section 1, Article VIII in the draft Constitution,54 which reads:

"Sec. 1. x x x.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government."

The language of the provision clearly gives the Court the power to strike down acts
amounting to grave abuse of discretion of both the legislative and executive branches
of government.
We should interpret Section 18, Article VII of the 1987 Constitution in light of our
constitutional history. The provision states:

"Sec. 18. The President shall be the Commander-in-Chief of all armed

forces of the Philippines and whenever it becomes necessary, he may
call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty days,
suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law.Within forty-eight hours
from the proclamation of martial law or the suspension of the privilege of the
writ of habeas corpus, the President shall submit a report in person or in
writing to Congress. The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be
determined by Congress, if the invasion or rebellion shall persist and public
safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without
need of a call.

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

any citizen, the sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon within thirty days
from its filing.

x x x."
It is clear from the foregoing that the President, as Commander-in-Chief of the
armed forces of the Philippines, may call out the armed forces subject to two
conditions: (1) whenever it becomes necessary; and (2) to prevent or suppress
lawless violence, invasion or rebellion. Undeniably, these conditions lay down
the sine qua requirement for the exercise of the power and the objective sought to
be attained by the exercise of the power. They define the constitutional
parameters of the calling out power. Whether or not there is compliance with
these parameters is a justiciable issue and is not a political question.
I am not unaware that in the deliberations of the Constitutional Commission,
Commissioner Bernas opined that the President's exercise of the "calling out power,"
unlike the suspension of the privilege of the writ of habeas corpus and the declaration of
martial law, is not a justiciable issue but a political question and therefore not subject to
judicial review.
It must be borne in mind, however, that while a member's opinion expressed on the
floor of the Constitutional Convention is valuable, it is not necessarily expressive of the
people's intent.55 The proceedings of the Convention are less conclusive on the proper
construction of the fundamental law than are legislative proceedings of the proper
construction of a statute, for in the latter case it is the intent of the legislature the courts
seek, while in the former, courts seek to arrive at the intent of the peoplethrough the
discussions and deliberations of their representatives.56 The conventional wisdom is that
the Constitution does not derive its force from the convention which framed it, but from
the people who ratified it, the intent to be arrived at is that of the people. 57
It is true that the third paragraph of Section 18, Article VII of the 1987
Constitution expressly gives the Court the power to review the sufficiency of the
factual bases used by the President in the suspension of the privilege of the writ
of habeas corpus and the declaration of martial law. It does not follow, however,
that just because the same provision did not grant to this Court the power to
review the exercise of the calling out power by the President, ergo, this Court
cannot pass upon the validity of its exercise.
Given the light of our constitutional history, this express grant of power
merely means that the Court cannot decline the exercise of its power because of
the political question doctrine as it did in the past. In fine, the express grant
simply stresses the mandatory duty of this Court to check the exercise of the
commander-in-chief powers of the President. It eliminated the discretion of the
Court not to wield its power of review thru the use of the political question
doctrine.
It may be conceded that the calling out power may be a "lesser power" compared to
the power to suspend the privilege of the writ of habeas corpus and the power to
declare martial law. Even then, its exercise cannot be left to the absolute discretion of
the Chief Executive as Commander-in-Chief of the armed forces, as its impact on the
rights of our people protected by the Constitution cannot be downgraded. We cannot
hold that acts of the commander-in-chief cannot be reviewed on the ground that they
have lesser impact on the civil and political rights of our people. The exercise of the
calling out power may be "benign" in the case at bar but may not be so in future cases.
 The counsel of Mr. Chief Justice Enrique M. Fernando, in his Dissenting and
Concurring Opinion in Lansang that it would be dangerous and misleading to push the
political question doctrine too far, is apropos. It will not be complementary to the Court
if it handcuffs itself to helplessness when a grievously injured citizen seeks relief from a
palpably unwarranted use of presidential or military power, especially when the question
at issue falls in the penumbra between the "political" and the "justiciable. " 58
We should not water down the ruling that deciding whether a matter has been
committed by the Constitution to another branch of government, or whether the action of
that branch exceeds whatever authority has been committed, is a delicate exercise in
constitutional interpretation, and is a responsibility of the Court as ultimate
interpreter of the fundamental law.59 When private justiciable rights are involved in a
suit, the Court must not refuse to assume jurisdiction even though questions of extreme
political importance are necessarily involved.60 Every officer under a constitutional
government must act according to law and subject to the controlling power of the
people, acting through the courts, as well as through the executive and legislative. One
department is just as representative of the other, and the judiciary is the department
which is charged with the special duty of determining the limitations which the law
places upon all official action.61 This historic role of the Court is the foundation stone
of a government of laws and not of men.62
I join the Decision in its result.

SEPARATE OPINION

VITUG, J.:

In the equation of judicial power, neither of two extremes - one totalistic and the
other bounded - is acceptable nor ideal.The 1987 Constitution has introduced its
definition of the term "judicial power" to be that which -

x x x includes the duty of the courts of justice to settle actual controversies

involving rights which are legally demandable and enforceable, and to
determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.1

It is not meant that the Supreme Court must be deemed vested with the awesome
power of overseeing the entire bureaucracy, let alone of institutionalizing judicial
absolutism, under its mandate. But while this Court does not wield unlimited authority to
strike down an act of its two co-equal branches of government, it must not wither under
technical guise on its constitutionally ordained task to intervene, and to nullify if need
be, any such act as and when it is attended by grave abuse of discretion amounting to
lack or excess of jurisdiction. The proscription then against an interposition by the Court
into purely political questions, heretofore known, no longer holds within that context.
 Justice Feria, in the case of Avelino vs. Cuenco, 2 has aptly elucidated in his
concurring opinion:

"x x x [I] concur with the majority that this Court has jurisdiction over cases like
the present x x x so as to establish in this country the judicial supremacy, with
the Supreme Court as the final arbiter, to see that no one branch or agency of
the government transcends the Constitution, not only in justiceable but
political questions as well."3

It is here when the Court must have to depart from the broad principle of separation of
powers that disallows an intrusion by it in respect to the purely political decisions of its
independent and coordinate agencies of government.
The term grave abuse of discretion is long understood in our jurisprudence as
being, and confined to, a capricious and whimsical or despotic exercise of judgment
amounting to lack or excess of jurisdiction. Minus the not-so-unusual exaggerations
often invoked by litigants in the duel of views, the act of the President in simply calling
on the Armed Forces of the Philippines, an executive prerogative, to assist the
Philippine National Police in "joint visibility patrols" in the metropolis does not, I
believe, constitute grave abuse of discretion that would now warrant an exercise by the
Supreme Court of its extraordinary power as so envisioned by the fundamental law.
Accordingly, I vote for the dismissal of the petition.

MENDOZA, J., concurring and dissenting:

I concur in the opinion of the Court insofar as it holds petitioner to be without

standing to question the validity of LOI 02/2000 which mandates the Philippine Marines
to conduct "joint visibility" patrols with the police in Metro Manila. But I dissent insofar as
the opinion dismisses the petition in this case on other grounds. I submit that judgment
on the substantive constitutional issues raised by petitioner must await an actual case
involving real parties with "injuries" to show as a result of the operation of the
challenged executive action. While as an organization for the advancement of the rule
of law petitioner has an interest in upholding the Constitution, its interest is
indistinguishable from the interest of the rest of the citizenry and falls short of that which
is necessary to give petitioner standing.
As I have indicated elsewhere, a citizens' suit challenging the constitutionality of
governmental action requires that (1) the petitioner must have suffered an "injury in fact"
of an actual or imminent nature; (2) there must be a causal connection between the
injury and the conduct complained of; and (3) the injury is likely to be redressed by a
favorable action by this Court.1 The "injury in fact" test requires more than injury to a
cognizable interest. It requires that the party seeking review be himself among those
injured.2
My insistence on compliance with the standing requirement is grounded in the
conviction that only a party injured by the operation of the governmental action
challenged is in the best position to aid the Court in determining the precise nature of
the problem presented. Many a time we have adverted to the power of judicial review as
an awesome power not to be exercised save in the most exigent situation. For, indeed,
sound judgment on momentous constitutional questions is not likely to be reached
unless it is the result of a clash of adversary arguments which only parties with direct
and specific interest in the outcome of the controversy can make. This is true not only
when we strike down a law or official action but also when we uphold it.
In this case, because of the absence of parties with real and substantial interest to
protect, we do not have evidence on the effect of military presence in malls and
commercial centers, i.e., whether such presence is coercive or benign. We do not know
whether the presence of so many marines and policemen scares shoppers, tourists,
and peaceful civilians, or whether it is reassuring to them. To be sure, the deployment of
troops to such places is not like parading them at the Luneta on Independence
Day. Neither is it, however, like calling them out because of actual fighting or the
outbreak of violence.
We need to have evidence on these questions because, under the Constitution, the
President's power to call out the armed forces in order to suppress lawless violence,
invasion or rebellion is subject to the limitation that the exercise of this power is required
in the interest of public safety.3
Indeed, whether it is the calling out of the armed forces alone in order to suppress
lawless violence, invasion or rebellion or also the suspension of the privilege of the writ
of habeas corpus or the proclamation of martial law (in case of invasion or rebellion),
the exercise of the President's powers as commander-in-chief, requires proof - not mere
assertion.4 As has been pointed out, "Standing is not `an ingenious academic exercise
in the conceivable' . . . but requires . . . a factual showing of perceptible harm."5
Because of the absence of such record evidence, we are left to guess or even
speculate on these questions. Thus, at one point, the majority opinion says that what is
involved here is not even the calling out of the armed forces but only the use of marines
for law enforcement. (p. 13) At another point, however, the majority opinion somersaults
and says that because of bombings perpetrated by lawless elements, the deployment of
troops in shopping centers and public utilities is justified. (p. 24)
We are likely to err in dismissing the suit brought in this case on the ground that the
calling out of the military does not violate the Constitution, just as we are likely to do so
if we grant the petition and invalidate the executive issuance in question.For indeed, the
lack of a real, earnest and vital controversy can only impoverish the judicial
process. That is why, as Justice Laurel emphasized in the Angara case, "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."6
We are told, however, that the issues raised in this case are of "paramount interest"
to the nation. It is precisely because the issues raised are of paramount importance that
we should all the more forego ruling on the constitutional issues raised by petitioner and
limit the dismissal of this petition on the ground of lack of standing of petitioner. A
Fabian policy of leaving well enough alone is a counsel of prudence.
For these reasons and with due appreciation of the scholarly attention lavished by
the majority opinion on the constitutional questions raised, I am constrained to limit my
concurrence to the dismissal of this suit on the ground of lack of standing of petitioner
and the consequent lack of an actual case or controversy.

1
Sec. 1, Article VIII, 1987 Constitution.
2
Tanada v. Cuenco, 103 Phil. 1051, 1067 [1957], citing 16 C.J.S. 413.
3
Tanada v. Cuenco, supra, 1067, quoting In re McConaughy, 119 NW 408 [1909].
4
Bernas, The 1987 Constitution of the Republic of the Philippines A Commentary, p. 859 [1996].
5
5 Phil. 87 [1905].
6
Id. at 97.
7
Id. at 104.
8
See Cruz, Philippine Political law, p. 87 [1998].
9
Id. at 113-114.
10
Id. at 106-107.
11
46 Phil. 83 [1924].
12
Id. at 97.
13
77 Phil. 192 [1946].
14
78 Phil. 1 [1947].
15
Id. at 4-5. The court also adopted the enrolled bill theory which, like findings under the political question doctrine,
imports absolute verity on the courts-at 12.
16
97 Phil. 358 [1955].
17
109 Phil. 863 [1960].
18
83 Phil. 17 [1949].
19
Id. at 21-22.
20
Id. at 68-69.
21
103 Phil. 1051 [1957].
22
Id. at 1068.
23
Id. at 1083.
24
5 SCRA 1 [1962].
25
21 SCRA 774 [1967].
26
41 SCRA 702 [1971].
27
Id. at 785-786.
28
Id. at 787.
29
41 SCRA at 713.
30
Bernas, The 1987 Constitution of the Republic of the Philippines A Commentary, p. 861 [1996].
31
16 Phil. 366 [1910].
32
Id. at 401.
33
45 Phil. 612 [1924].
34
Id. At 630.
35
Id. at 637-638.
36
16 Phil. 534 [1910].
37
Id. at 568-569, 576.
38
94 Phil. 903 [1954].
39
Untal v. Chief of Staff, AFP, 84 Phil. 586 [1949]; Raquiza v. Bradford, 75 Phil. 50 [1945].
40
91 Phil. 882 [1952].
41
Id. at 887.
42
42 SCRA 448 [1971].
43
Id. at 474.
44
Id. at 480-481.
45
50 SCRA 30 [1973].
46
Id. at 138, 140-141.
47
59 SCRA 183 [1973].
48
Ibid.
49
121 SCRA 472 [1983].
50
Id. at 490-491.
51
Id. at 500-501.
52
121 SCRA 538 [1983].
53
Id. at 563.
54
See Concepcions sponsorship speech, I Record 434-435; see also Bernas, the Constitution of the Republic of the
Philippines A Commentary, p. 863 [1996].
55
J.M. Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413, 423-426 [1970].
56
Vera v. Avelino, 77 Phil. 192, 215 [1946]; see also Agpalo, Statutory Construction, 4th ed., p. 454 [1998].
57
Black, Handbook on the Construction and Interpretation of the laws, 2d ed., p. 39 [1911].
58
SCRA at 506-507, see also Rossiter, The Supreme Court and the Commander-in-Chief, pp. 16-17 [1951].
59
Baker v. Carr, 7 L Ed 2d at 682.
60
Willoughby on the Constitution of the United States, vol. 3, 2d ed., p. 1336 [1929].
61
Tanada v. Macapagal, 103 Phil. At 1067, quoting In re McConaughy, 119 NW 408 [1909].
62
Id.
1
Section 1, Article VIII of the Constitution.
2
83 Phil. 17.
3
Sen. Miriam Defensor Santiago, et al. vs. Sen. Teofisto Guingona, Jr., et al., 298 SCRA 756.
1
Tatad v. Garcia, 243 SCRA 436, 473 (1995) (concurring). Accord, Telecommunication and Broadcast Attorneys of
the Philippines v. COMELEC, 289 SCRA 343 (1998).
2
Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d 351 (1992).
3
See CONST., ART. VII, 18.
4
See Lansang v. Garcia, 42 SCRA 448 (1971).
5
Lujan v. Defenders of Wildlife, supra.
6
Angara v. Electoral Commission, 63 Phil. 139, 158 (1936)

[1]
Rollo, pp. 17-21.
[2]
As of 19 May 2000, the Marines have been recalled from their areas of deployment to join the military operations
in Mindanao, and replaced by Air Force personnel who took over their functions in the joint visibility patrols. The
Air Force personnel, just like the Marines, were ordered to assist the PNP, also by virtue of LOI 2/2000.Since both
the Marines and Air Force belong to the Armed Forces, the controversy has not been rendered moot and academic
by the replacement of the former by the latter. The validity of the deployment of the armed forces in the joint
visibility patrols thus remain an issue.
[3]
Rollo, pp. 75-76.
[4]
Id., at 75.
[5]
Id.
[6]
Id.
[7]
Rollo, p. 75.
[8]
Id., at 17-18.
[9]
Id.
[10]
Rollo, p. 7.
[11]
Id., at 24.
[12]
Philippine Constitution Association v. Enriquez, 235 SCRA 506 (1994) citing Luz Farms v. Secretary of
the Department of Agrarian Reform, 192 SCRA 51 (1990); Dumlao v. Commission on Elections, 95 SCRA 392
(1980); and, People v. Vera, 65 Phil. 56 (1937).
[13]
Joya v. Presidential Commission on Good Govenment, 225 SCRA 568, 576 (1993).
[14]
Ibid., citing House International Building Tenants Association, Inc. v. Intermediate Appellate Court, 151 SCRA
703 (1987).
[15]
Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7L. Ed. 2d 663, 678 (1962).
[16]
Joya v. Presidential Commission on Good Government, supra note 13, at 579 citing Dumlao v. Commission
on Elections, 95 SCRA 392 (1980).
[17]
Tatad v. Secretary of the Department of Energy, 281 SCRA 330, 349 (1997) citing Garcia v. Executive Secretary,
211 SCRA 219 (1992); Osmea v. COMELEC, 199 SCRA 750 (1991); Basco v. Pagcor, 197 SCRA 52 (1991); and,
Araneta v. Dinglasan, 84 Phil. 368 (1949).
[18]
Santiago v. COMELEC, 270 SCRA 106 (1997); Joya v. Presidential Commission on Good Government, 225
SCRA 568 (1993); Daza v. Singson, 180 SCRA 496 (1989). As formulated by Mr. Justice (now Chief Justice)
Hilario G. Davide, Jr. in Kilosbayan, Inc. vs. Guingona, Jr., [232 SCRA 110 (1994)] "(a) party's standing before this
Court is a procedural technicality which it may, in the exercise of its discretion, set aside in view of the importance
of the issues raised," favorably citing our ruling in the Emergency Powers Cases [L-2044 (Araneta v. Dinglasan); L-
2756 (Araneta v. Angeles); L-3054 (Rodriquez v. Tesorero de Filipinas); and L-3056 (Barredov. COMELEC), 84
Phil. 368 (1940)] where this Court brushed aside this technicality because "the transcendental importance to the
public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technical
rules of procedure." An inflexible rule on locus standi would result in what Mr. Justice Florentino P. Feliciano aptly
described as a doctrinal ball and chain xxx clamped on our own limbs." [Kilosbayan, Inc. v. Morato, 250 SCRA 130
(1995)].
[19]
Rollo, p. 12
[20]
Article II, Sections 4 and 5 of the Constitution provide:
Sec. 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the
people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by
law, to render personal, military or civil service.
Sec. 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the
general welfare are essential for the enjoyment by all the people of the blessings of democracy.
[21]
177 SCRA 668, 694 (1989).
[22]
WESTS LEGAL THESAURUS/DICTIONARY (Special Deluxe Edition) p. 440 (1986).
[23]
103 Phil. 1051 (1957).
[24]
369 U.S. 186, 82 S ct. 691, 7 L. Ed. 2d 663, 678 (1962).
[25]
Article VIII, Sec. 1 of the 1987 CONSTITUTION.
[26]
Santiago v. Guingona, Jr., 298 SCRA 756 (1998).
[27]
Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767 (1991).
[28]
Marcos v. Manglapus,, supra note 21, see also Daza v. Singson, 180 SCRA 496 (1988); Coseteng v. Mitra, 187
SCRA 377 (1990).
[29]
Sinon v. Civil Service Commission, 215 SCRA 410 (1992); See also Producers Bank v. NLRC, 165 SCRA 284
(1988); Litton Mills v. Galleon Trader, Inc., 163 SCRA 494 (1988).
[30]
Ledesma v. Court of Appeals, 278 SCRA 659 (1997).
[31]
Bondoc v. Pineda, 201 SCRA 792 (1991).
[32]
Drilon v. Lim, 235 SCRA 135 (1994).
[33]
Sarmiento v. Mison, 156 SCRA 549 (1987).
[34]
II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, pp. 409, 412
(1986).
[35]
Rollo, p. 75.
[36]
Section 3, provides:
Civilian authority, is at all times, supreme over the military. The Armed Forces of the Philippines is the protector of
the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.
[37]
No. 9 of the LOI provides: COORDINATING INSTRUCTIONS:
a. RD, NCRPO is designated as Task Force Commander TULUNGAN.
[38]
No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-PHILIPPINE MARINES:
b. Before their deployment/employment, receiving units shall properly brief/orient the troops on police
patrol/visibility procedures.
[39]
No. 8 of the LOI provides: TASKS:
k. POLICE DISTRICTS/STATIONS
-Provide direction and manage the deployment of all Philippine Marines personnel deployed in your AOR for police
visibility operations.
-Conduct briefing/orientation to Philippine Marines personnel on the dos and donts of police visibility patrols.
-Provide transportation to Philippine Marines from districts headquarters to different stations and PCPs.
-Perform other tasks as directed.
[40]
No. 8 of the LOI states: TASKS:
c. RLD/R4
-Coordinate with the Directorate for Logistics for the issuance of the following equipments (sic) to be utilize (sic)
by the Philippine Marines personnel: 500 pieces Probaton, 500 whistle (sic), 500 pieces brazzard blazoned.
-Coordinate with the Directorate for Logistics for the issuance of the following for use of PNP personnel involved in
the visibility patrol operations:
1,000 sets of PNP GOA Uniform
500 each raincoats
500 each Probaton
500 each Whistle
500 each handcuffs
500 each Combat Boots
500 each low cut shoes
-Provide transportation to the Philippine Marines personnel in coordination with LSS, NHQ PNP.
-Provide additional gas allocation to Philippine Marines members of the Inspection Teams.
- Perform other tasks as directed.40
[41]
Sec. 5(4), Article XVI, provides:
No member of the Armed Forces in the active service shall, at any time, be appointed in the government including
government-owned and controlled corporations or any of their subsidiaries.
[42]
CONSTITUTION, Article IX-C, Section 2; Comelec Resolution No. 3071 (1999), which is entitled In Re
Guidelines for the Designation of Registration Centers and the Accountable Officers for the Polaroid Instant
Cameras for Purposes of the Registration of Voters on 8-9 May 1999 in the Autonomous Region in Muslim
Mindanao; Comelec Resolution No. 3059 (1999), which is entitled, In the Matter of Deputizing the Armed Forces of
the Philippines and the Three (3) AFP Components, Namely: Philippine Army, Philippine Navy and Philippine Air
Force, for the Purpose of Ensuring Free, Orderly, Honest and Peaceful Precinct Mapping, Registration of Voters and
the Holding of the September 13, 1999 Elections in the Autonomous Region in Muslim Mindanao
(ARMM); Republic Act No. 7166 (1991), Section 33, which is entitled An Act Providing for Synchronized National
and Local Elections and for Electoral Reforms, Authorizing Appropriations therefor, and for other Purposes;
Administrative Code of 1987, Book V, Title I, Subtitle C, Chapter 1, Sections 2 (4) and 3; Batas Pambansa Blg.
881, Article VI, Sections 52 (b) and 57 (3) (1985), which is also known as Omnibus Election Code.
[43]
Republic Act No. 95 (1947), Section 5, which is entitled An Act to Incorporate the Philippine National Red
Cross Section; Republic Act No. 855 (1953), Section 1, which is entitled An Act to Amend Section V of Republic
Act Numbered Ninety-Five, entitled An Act to Incorporate the Philippine National Red Cross.
[44]
Republic Act No. 7077 (1991), Article III, Section 7, which is entitled An Act Providing for the Development,
Administration, Organization, Training, Maintenance and Utilization of the Citizen Armed Forces of the Armed
Forces of the Philippines and for other Purposes.
[45]
Republic Act No. 6847 (1990), Section 7, which is entitled An Act Creating and Establishing The Philippine
Sports Commission, Defining its Powers, Functions and Responsibilities, Appropriating Funds therefor, and for
other Purposes.
[46]
Republic Act No. 8492 (1998), Section 20, which is entitled An Act Establishing a National Museum System,
Providing for its Permanent Home and for other Purposes.
[47]
Republic Act No. 8550 (1998), Section 124, which is entitled An Act Providing for the Development,
Management and Conservation of the Fisheries and Aquatic Resources, Integrating All Laws Pertinent Thereto, and
for other Purposes; Memorandum Circular No. 150 (1996), which is entitled Amending Memorandum Circular No.
128, dated July 20, 1995 by Reorganizing the Presidential Task Force on Tubbataha Reef National Marine
Park; Executive Order No. 544 (1979), Letter I, which is entitled Creating a Presidential Committee for the
Conservation of the Tamaraw, Defining its Powers and for other Purposes.
[48]
Executive Order No. 129-A (1987) Section 5 (m), which is entitled Modifying Executive Order No. 129
Reorganizing and Strengthening the Department of Agrarian Reform and for other Purposes.
[49]
Republic Act No. 1937 (1957), Section 2003, which is entitled An Act to Revised and Codify the Tariff and
Customs Laws of the Philippines; Executive Order No. 45 (1998), which is entitled Creating a Presidential Anti-
Smuggling Task Force to Investigate and Prosecute Crimes Involving Large-Scale Smuggling and other Frauds
upon Customs and Providing Measures to Expedite Seizure Proceedings;
[50]
These cases involved joint military and civilian law enforcement operations: People v. Escalante, G.R No.
106633, December 1, 1994; People v. Bernardo, G.R. No. 97393, March 17, 1993; People v. De la Cruz, G.R. No.
83260, April 18, 1990; Guanzon v. de Villa, 181 SCRA 623, 631 (1990). (This case recognizes the complementary
roles of the PNP and the military in conducting anti-crime campaigns, provided that the peoples rights are not
violated in these words: If the military and the police must conduct concerted campaigns to flush out and catch
criminal elements, such drives must be consistent with the constitutional and statutory rights of all people affected
by such actions. The creation of the Task Force also finds support in Valmonte v. de Villa, 185 SCRA 665
(1990). Executive Order No. 62 (1999), which is entitled Creating the Philippine Center on Transnational Crime to
Formulate and Implement a Concerted Program of Action of All Law Enforcement, Intelligence and other Agencies
for the Prevention and Control of Transnational Crime; Executive Order No. 8 (1998), which is entitled Creating a
Presidential Anti-Organized Crime Commission and a Presidential Anti-Organized Crime Task Force, to Investigate
and Prosecute Criminal Elements in the Country; Executive Order No. 280 (1995), which is entitled Creating a
Presidential Task Force of Intelligence and Counter-Intelligence to Identify, Arrest and Cause the Investigation and
Prosecution of Military and other Law Enforcement Personnel on their Former Members and Their Cohorts
Involved in Criminal Activities.
[51]
Memorandum Circular No. 141 (1996), which is entitled Enjoining Government Agencies Concerned to Extend
Optimum Support and Assistance to the Professional Regulation Commission in its Conduct of Licensure
Examinations.
[52]
Memorandum Circular No. 32 (1999), which is entitled Directing the Government Agencies Concerned to
Extend Maximum Support and Assistance to the National Educational Testing and Research Center (NETRC) of the
Department of Education, Culture and Sports (DECS) in the Conduct of Tests of National Coverage.
[53]
Executive Order No. 61 (1999), which is entitled Creating the National Drug Law Enforcement and Prevention
Coordinating Center to Orchestrate Efforts of national Government Agencies, Local Government Units, and Non-
Government Organizations for a More Effective Anti-Drug Campaign.
[54]
Republic Act No. 4089 (1964), which is entitled An Act Making the City Health Officer of Bacolod City the
Local Civil Registrar, Amending for the Purpose Section Forty-Three of the Charter of said City;" Republic Act No.
537 (1950), which is entitled "An Act to Revise the Charter of Quezon City; Commonwealth Act No. 592 (1940),
which is entitled An Act to Create the City of Dansalan; Commonwealth Act No. 509 (1939), which is entitled An
Act to Create Quezon City; Commonwealth Act No. 326 (1938), which is entitled An Act Creating the City of
Bacolod; Commonwealth Act No. 39 (1936), which is entitled An Act Creating the City of Zamboanga;
Commonwealth Act No. 51 (1936), which is entitled An Act Creating the City of Davao.
[55]
Republic Act No. 36 (1946), which is entitled Census Act of Nineteen Hundred and Forty-Six.
[56]
Republic Act No. 776 (1952), Section 5, which is entitled An Act to Reorganize the Civil Aeronautics Board and
the Civil Aeronautics Administration, To Provide for the Regulation of Civil Aeronautics in the Philippines and
Authorizing the Appropriation of Funds Therefor.
[57]
Republic Act No. 6613 (1972), Section 4, which is entitled An Act Declaring a Policy of the State to Adopt
Modern Scientific Methods to Moderate Typhoons and Prevent Destruction by Floods, Rains and Droughts,
Creating a Council on Typhoons and Prevent Destruction by Flood, Rains and Droughts, Creating a Council on
Typhoon Moderation and Flood Control Research and Development, Providing for its Powers and Functions and
Appropriating Funds Therefor.
[58]
Local Government Code of 1991, Book I, Title Seven, Section 116.
[59]
This theory on gloss of executive power was advanced by Justice Frankfurter in his concurring opinion
in Youngstown Sheet and Tube v. Sawyer, 343 US 579, 610-611 (1952).
[60]
Bissonette v. Haig, 766 F.2d 1384, 1389 (1985).
[61]
18 U.S.C.A 1385 (1878).
[62]
Ibid.
[63]
Bissonette v. Haig, supra note 60, at 1390.
[64]
A power regulatory in nature is one which controls or directs. It is proscriptive if it prohibits or condemns
and compulsory if it exerts some coercive force. See US v. Yunis, 681 F.Supp. 891 (D.D.C., 1988). See also
FOURTH AMENDMENT AND POSSE COMITATUS ACT RESTRICTIONS ON MILITARY INVOLVEMENT
IN CIVIL LAW ENFORCEMENT,
[65]
L.O.I. 02/2000, TULUNGAN, Rollo, pp. 17-22.

[66]
No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-PHILIPPINE MARINES:

a. The PNP NCPRO thru Police Districts will continue to deploy uniformed PNP personnel dedicated for police
visibility patrols in tandem with the Philippine Marines.
 b. Before their deployment/employment, receiving units shall properly brief/orient the troops on police
patrol/visibility procedures.66
[67]
Supra note 34.
[68]
Supra note 32.

[69]
No. 9 of the LOI states:

d. In case of apprehensions, arrested person/s shall be brought to the nearest police stations/PCPs.
[70]
Supra note 35.
[71]
Rollo, p. 70.

UP v. Dizon (G.R. No. 171182;

August 23, 2012)

CASE DIGEST: UNIVERSITY OF THE PHILIPPINES, et al. v. HON. AGUSTIN S.

DIZON, et al.

FACTS: University of the Philippines (UP) entered into a General Construction Agreement with
respondent Stern Builders Corporation (Stern Builders) for the construction and renovation of the
buildings in the campus of the UP in Los Bas. UP was able to pay its first and second billing.
However, the third billing worth P273,729.47 was not paid due to its disallowance by the
Commission on Audit (COA). Thus, Stern Builders sued the UP to collect the unpaid balance.

On November 28, 2001, the RTC rendered its decision ordering UP to pay Stern Builders. Then
on January 16, 2002, the UP filed its motion for reconsideration. The RTC denied the motion.
The denial of the said motion was served upon Atty. Felimon Nolasco (Atty.Nolasco) of the
UPLB Legal Office on May 17, 2002. Notably, Atty. Nolasco was not the counsel of record of
the UP but the OLS inDiliman, Quezon City.

Thereafter, the UP filed a notice of appeal on June 3, 2002. However, the RTC denied due course
to the notice of appeal for having been filed out of time. On October 4, 2002, upon motion of
Stern Builders, the RTC issued the writ of execution.

On appeal, both the CA and the High Court denied UPs petition. The denial became final
and executory. Hence, Stern Builders filed in the RTC its motion for execution despite their
previous motion having already been granted and despite the writ of execution having already
issued. On June 11, 2003, the RTC granted another motion for execution filed on May 9, 2003
(although the RTC had already issued the writ of execution on October 4, 2002). Consequently,
the sheriff served notices of garnishment to the UPs depositary banks and the RTC ordered the
release of the funds.

Aggrieved, UP elevated the matter to the CA. The CA sustained the RTC. Hence, this petition.

ISSUES:

I. Was UP's funds validly garnished?

II. Has the UP's appeal dated June 3, 2002 been filed out of time?

HELD: UP's funds, being government funds, are not subject to garnishment. (Garnishment
of public funds; suability vs. liability of the State)

Despite its establishment as a body corporate, the UP remains to be a "chartered institution"

performing a legitimate government function. Irrefragably, the UP is a government
instrumentality, performing the States constitutional mandate of promoting quality and
accessible education. As a government instrumentality, the UP administers special funds sourced
from the fees and income enumerated under Act No. 1870 and Section 1 of Executive Order No.
714, and from the yearly appropriations, to achieve the purposes laid down by Section 2 of Act
1870, as expanded in Republic Act No. 9500. All the funds going into the possession of the UP,
including any interest accruing from the deposit of such funds in any banking institution,
constitute a "special trust fund," the disbursement of which should always be aligned with the
UPs mission and purpose, and should always be subject to auditing by the COA. The funds of
the UP are government funds that are public in character. They include the income accruing from
the use of real property ceded to the UP that may be spent only for the attainment of its
institutional objectives.

A marked distinction exists between suability of the State and its liability. As the Court
succinctly stated in Municipality of San Fernando, La Union v. Firme: A distinction should first
be made between suability and liability. "Suability depends on the consent of the state to be sued,
liability on the applicable law and the established facts. The circumstance that a state is suable
does not necessarily mean that it is liable; on the other hand, it can never be held liable if it does
not first consent to be sued. Liability is not conceded by the mere fact that the state has allowed
itself to be sued. When the state does waive its sovereign immunity, it is only giving the plaintiff
the chance to prove, if it can, that the defendant is liable.

The Constitution strictly mandated that "no money shall be paid out of the Treasury except in
pursuance of an appropriation made by law." The execution of the monetary judgment against
the UP was within the primary jurisdiction of the COA. It was of no moment that a final
and executory decision already validated the claim against the UP.

HELD: The period of appeal did not start without effective service of decision upon counsel
of record. (The doctrine of immutability of a final judgment; service of judgments; fresh-
period rule; computation of time)

At stake in the UPs plea for equity was the return of the amount of P16,370,191.74 illegally
garnished from its trust funds. Obstructing the plea is the finality of the judgment based on the
supposed tardiness of UPs appeal, which the RTC declared on September 26, 2002. It is true that
a decision that has attained finality becomes immutable and unalterable, and cannot be modified
in any respect, even if the modification is meant to correct erroneous conclusions of fact and law,
and whether the modification is made by the court that rendered it or by this Court as the highest
court of the land. But the doctrine of immutability of a final judgment has not been absolute, and
has admitted several exceptions, among them: (a) the correction of clerical errors; (b) the so-
called nunc pro tunc entries that cause no prejudice to any party; (c) void judgments; and (d)
whenever circumstances transpire after the finality of the decision that render its execution unjust
and inequitable. We rule that the UPs plea for equity warrants the Courts exercise of the
exceptional power to disregard the declaration of finality of the judgment of the RTC for being in
clear violation of the UPs right to due process.

Firstly, the service of the denial of the motion for reconsideration upon Atty. Nolasco of the
UPLB Legal Office was invalid and ineffectual because he was admittedly not the counsel of
record of the UP. Verily, the service of the denial of the motion for reconsideration could only be
validly made upon the OLS in Diliman, and no other. It is settled that where a party has appeared
by counsel, service must be made upon such counsel. This is clear enough from Section 2,
second paragraph, of Rule 13, Rules of Court, which explicitly states that: "If any party has
appeared by counsel, service upon him shall be made upon his counsel or one of them, unless
service upon the party himself is ordered by the court. Where one counsel appears for several
parties, he shall only be entitled to one copy of any paper served upon him by the opposite side."

Secondly, even assuming that the service upon Atty. Nolasco was valid and effective, such that
the remaining period for the UP to take a timely appeal would end by May 23, 2002, it would
still not be correct to find that the judgment of the RTC became final and immutable thereafter
due to the notice of appeal being filed too late on June 3, 2002. In so declaring the judgment of
the RTC as final against the UP, the CA and the RTC applied the rule contained in the second
paragraph of Section 3, Rule 41 of the Rules of Court to the effect that the filing of a motion for
reconsideration interrupted the running of the period for filing the appeal; and that the period
resumed upon notice of the denial of the motion for reconsideration. For that reason, the CA and
the RTC might not be taken to task for strictly adhering to the rule then prevailing.

However, equity calls for the retroactive application in the UPs favor of the fresh-period rule that
the Court first announced in mid-September of 2005 through its ruling in Neypes v. Court of
Appeals, viz: "to standardize the appeal periods provided in the Rules and to afford litigants fair
opportunity to appeal their cases, the Court deems it practical to allow a fresh period of 15 days
within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the
order dismissing a motion for a new trial or motion for reconsideration." The retroactive
application of the fresh-period rule, a procedural law that aims "to regiment or make the appeal
period uniform, to be counted from receipt of the order denying the motion for new trial, motion
for reconsideration (whether full or partial) or any final order or resolution," is impervious to any
serious challenge. This is because there are no vested rights in rules of procedure.

Consequently, even if the reckoning started from May 17, 2002, when Atty. Nolasco received the
denial, the UPs filing on June 3, 2002 of the notice of appeal was not tardy within the context of
the fresh-period rule. For the UP, the fresh period of 15-days counted from service of the denial
of the motion for reconsideration would end on June 1, 2002, which was a Saturday. Hence, the
UP had until the next working day, or June 3, 2002, a Monday, within which to appeal,
conformably with Section 1 of Rule 22, Rules of Court, which holds that: "If the last day of the
period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the
court sits, the time shall not run until the next working day.

GRANTED

EN BANC

[G.R. No. 107369. August 11, 1999]

JESULITO A. MANALO, petitioner, vs. PEDRO G. SISTOZA, REGINO

ARO III, NICASIO MA. CUSTODIO, GUILLERMO DOMONDON,
RAYMUNDO L. LOGAN, WILFREDO R. REOTUTAR, FELINO C.
PACHECO, JR., RUBEN J. CRUZ, GERONIMO B. VALDERRAMA,
MERARDO G. ABAYA, EVERLINO B. NARTATEZ, ENRIQUE T.
BULAN, PEDRO J. NAVARRO, DOMINADOR M. MANGUBAT,
RODOLFO M. GARCIA and HONORABLE SALVADOR M.
ENRIQUEZ II In His Capacity as Secretary of Budget and
Management, respondents.

DECISION
PURISIMA, J.:

The case at bar is not of first impression. The issue posed concerning the limits of the power
of the Commission on Appointments to confirm appointments issued by the Chief Executive has
been put to rest in a number of cases. The court finds no basis for departing from the ruling laid
down in those cases.
 In this special civil action for Prohibition under Rule 65 of the Revised Rules of Court,
petitioners question the constitutionality and legality of the permanent appointments issued by
former President Corazon C. Aquino to the respondent senior officers of the Philippine National
Police who were promoted to the ranks of Chief Superintendent and Director without their
appointments submitted to the Commission on Appointments for confirmation under Section 16,
Article VII of the 1987 Constitution and Republic Act 6975 otherwise known as the Local
Government Act of 1990. Impleaded in the case is the former Secretary of Budget and
Management Salvador M. Enriquez III, who approved and effected the disbursements for the
salaries and other emoluments of subject police officers.
The antecedents facts are as follows:
On December 13, 1990, Republic Act 6975 creating the Department of Interior and Local
Government was signed into law by former President Corazon C. Aquino. Pertinent provisions
of the said Act read:

Sec. 26. Powers, Functions and Term of Office of the PNP Chief. - The command and
direction of the PNP shall be vested in the Chief of the PNP who shall have the power
to direct and control tactical as well as strategic movements, deployment, placement,
utilization of the PNP or any of its units and personal, including its equipment,
facilities and other resources. Such command and direction of the Chief of the PNP
may be delegated to subordinate officials with respect to the units under their
respective commands, in accordance with the rules and regulations prescribed by the
Commission. The Chief of the PNP shal also have the power to issue detailed
implementing policies and instructions regarding personnel, funds, properties, records,
correspondence and such other matters as may be necesary to effectively carry out the
functions, powers and duties of the Bureau. The Chief of the PNP shall be appointed
by the President from among the senior officers down to the rank of the chief
superintendent, subject to confirmation by the Commission on
Appointments: Provided, That the Chief of the PNP shall serve a term of office not to
exceed four (4) years: Provided, further, That in times of war or other national
emergency declared by Congress, the President may extend such term of
office. [1] (underlining supplied).

Sec.31. Appointment of PNP Officers and Members. - The appointment of the officers
and members of the PNP shall be effected in the following manner:

(a) Police Officer I to Senior Police Officer IV - Appointed by the PNP regional
director for regional personnel or by the Chief of the PNP for the national
headquarters personnel and attested by the Civil Service Commission;

(b) Inspector to Superintendent - Appointed by the Chief of the PNP, as recommended

by their immediate superiors, and attested by the Civil Service Commission;
(c) Senior Superintendent to Deputy Director General - Appointed by the President
upon recommendation of the Chief of the PNP, with the proper endorsement by the
Chairman of the Civil Service Commission and subject to confirmation by the
Commission on Appointments; and

(d) Director General - Appointed by the President from among the senior officers
down to the rank of chief superintendent in the service, subject to confirmation by the
Commission on Appointments; Provided, That the Chief of the PNP shall serve a tour
of duty not to exceed four (4) years; Provided, further, That, in times of war or other
national emergency declared by Congres, the President may extend such tour of duty.
(underlining supplied).

In accordance therewith, on March 10, 1992, the President of the Philippines, through then
Executive Secretary Franklin M. Drilon, promoted the fifteen (15) respondent police officers
herein, by appointing them to positions in the Philippine National Police with the rank of Chief
Superintendent to Director[2], namely:

Chief Supt. PEDRO G. SISTOZA - Director

Chief Supt. REGINO ARO III - Director

Chief Supt. NICASIO MA. CUSTODIO - Director

Chief Supt. GUILLERMO DOMONDON - Director

Chief Supt. RAYMUNDO L. LOGAN - Director

Senior Supt. WILFREDO REOTUTAR - Chief Superintendent

Senior Supt. FELINO C. PACHECO, JR. - Chief Superintendent

Senior Supt. RUBEN J. CRUZ - Chief Superintendent

Senior Supt. GERONIMO B. VALDERRAMA - Chief Superintendent

Senior Supt. MERARDO G. ABAYA - Chief Superintendent

Senior Supt. EVERLINO NARTATEZ - Chief Superintendent

Senior Supt. ENRIQUE T. BULAN - Chief Superintendent

Senior Supt. PEDRO J. NAVARRO - Chief Superintendent

Senior Supt. DOMINADOR MANGUBAT - Chief Superintendent

Senior Supt. RODOLFO M. GARCIA - Chief Superintendent

The appointments of respondent police officers were in a permanent capacity. Their letters
of appointment stated in part :

By virtue hereof, they may qualify and enter upon the performance of the duties of the
office, furnishing this office and the Civil Service Commission with copies of their
oath of office.[3]

Without their names submitted to the Commission on Appointments for confirmation, the
said police officers took their oath of office and assumed their respective positions. Thereafter,
the Department of Budget and Management, under the then Secretary Salvador M. Enriquez III,
authorized disbursements for their salaries and other emoluments.
On October 21, 1992, the petitioner brought before this Court this present original petition
for prohibition, as a taxpayer suit, to assail the legality of subject appointments and
disbursements made therefor.
Petitioner contends that:

I. Respondent officers, in assuming their offices and discharging the functions

attached thereto, despite their invalid appointments, in view of the failure to secure the
required confirmation of the Commission on Appointments as required by the
Constitution and the law, are acting without or in excess of their jurisdiction or with
grave abuse of discretion, considering that :

A. Republic Act 6975 is a valid law that duly requires confirmation of the
appointments of officers from the rank of senior superintendent and higher by the
Commission on Appointments;

B. The Philippine National Police is akin to the Armed Forces where the Constitution
specifically requires confirmation by the Commission on Appointments.

II. Respondent Secretary in allowing and/or effecting disbursements in favor of

respondent officers despite the unconstitutionality and illegality of their appointments
is acting without or in excess of his jurisdiction or with grave abuse of discretion.

The petition must fail. It is not impressed with merit.

Petitioner theorizes that Republic Act 6975 enjoys the presumption of constitutionality and
that every statute passed by Congress is presumed to have been carefully studied and considered
before its enactment. He maintains that the respect accorded to each department of the
government requires that the court should avoid, as much as possible, deciding constitutional
questions.
 The Court agrees with petitioner. However, it is equally demanded from the courts, as
guardians of the Constitution, to see to it that every law passed by Congress is not repugnant to
the organic law. Courts have the inherent authority to determine whether a statute enacted by the
legislature transcends the limit delineated by the fundamental law.[4] When it does, the courts will
not hesitate to strike down such unconstitutional law.
The power to make appointments is vested in the Chief Executive by Section 16, Article VII
of the Constitution, which provides:

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

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

The aforecited provision of the Constitution has been the subject of several cases on the
issue of the restrictive function of the Commission on Appointments with respect to the
appointing power of the President. This court touched upon the historical antecedent of the said
provision in the case of Sarmiento III vs. Mison[5] in which it was ratiocinated upon that Section
16 of Article VII of the 1987 Constitution requiring confirmation by the Commission on
Appointments of certain appointments issued by the President contemplates a system of checks
and balances between the executive and legislative branches of government. Experience showed
that when almost all presidential appointments required the consent of the Commission on
Appointments, as was the case under the 1935 Constitution, the commission became a venue of
horse-trading and similar malpractices.[6] On the other hand, placing absolute power to make
appointments in the President with hardly any check by the legislature, as what happened under
1973 Constitution, leads to abuse of such power. Thus was perceived the need to establish a
middle ground between the 1935 and 1973 Constitutions. The framers of the 1987 Constitution
deemed it imperative to subject certain high positions in the government to the power of
confirmation of the Commission on Appointments and to allow other positions within the
exclusive appointing power of the President.
Conformably, as consistently interpreted and ruled in the leading case of Sarmiento III vs.
Mison[7], and in the subsequent cases of Bautista vs. Salonga[8], Quintos-Deles vs. Constitutional
Commission[9], and Calderon vs. Carale[10]; under Section 16, Article VII, of the Constitution,
there are four groups of officers of the government to be appointed by the President:
First, the heads of the executive departments, ambassadors, other public ministers and
consuls, officers of the armed forces from the rank of colonel or naval captain, and
other officers whose appointments are vested in him in this Constitution;

Second, all other officers of the Government whose appointments are not otherwise
provided for by law;

Third, those whom the President may be authorized by law to appoint;

Fourth, officers lower in rank whose appointments the Congress may by law vest in
the President alone.

It is well-settled that only presidential appointments belonging to the first group require the
confirmation by the Commission on Appointments. The appointments of respondent officers
who are not within the first category, need not be confirmed by the Commission on
Appointments. As held in the case of Tarrosa vs. Singson[11], Congress cannot by law expand the
power of confirmation of the Commission on Appointments and require confirmation of
appointments of other government officials not mentioned in the first sentence of Section 16 of
Article VII of the 1987 Constitution.
Consequently, unconstitutional are Sections 26 and 31 of Republic Act 6975 which
empower the Commission on Appointments to confirm the appointments of public officials
whose appointments are not required by the Constitution to be confirmed. But the
unconstitutionality of the aforesaid sections notwithstanding, the rest of Republic Act 6975
stands. It is well-settled that when provisions of law declared void are severable from the main
statute and the removal of the unconstitutional provisions would not affect the validity and
enforceability of the other provisions, the statute remains valid without its voided sections.[12]
It is petitioners submission that the Philippine National Police is akin to the Armed Forces of
the Philippines and therefore, the appointments of police officers whose rank is equal to that of
colonel or naval captain require confirmation by the Commission on Appointments.
This contention is equally untenable. The Philippine National Police is separate and distinct
from the Armed Forces of the Philippines.The Constitution, no less, sets forth the
distinction. Under Section 4 of Article XVI of the 1987 Constitution,

The Armed Forces of the Philippines shall be composed of a citizen armed force
which shall undergo military training and service, as may be provided by law. It shall
keep a regular force necessary for the security of the State.

On the other hand, Section 6 of the same Article of the Constitution ordains that:

The State shall establish and maintain one police force, which shall be national in
scope and civilian in character to be administered and controlled by a national police
commission. The authority of local executives over the police units in their
jurisdiction shall be provided by law.
 To so distinguish the police force from the armed forces, Congress enacted Republic Act
6975 which states in part:

Section 2. Declaration of policy - It is hereby declared to be the policy of the State to

promote peace and order, ensure public safety and further strengthen local
government capability aimed towards the effective delivery of the basic services to the
citizenry through the establishment of a highly efficient and competent police force
that is national in scope and civilian in character. xxx

The policy force shall be organized, trained and equipped primarily for the
performance of police functions. Its national scope and civilian character shall be
paramount. No element of the police force shall be military nor shall any position
thereof be occupied by active members of the Armed Forces of the Philippines.

Thereunder, the police force is different from and independent of the armed forces and the
ranks in the military are not similar to those in the Philippine National Police. Thus, directors and
chief superintendents of the PNP, such as the herein respondent police officers, do not fall under
the first category of presidential appointees requiring the confirmation by the Commission on
Appointments.
In view of the foregoing disquisition and conclusion, the respondent former Secretary
Salvador M. Enriquez III of the Department of Budget and Management, did not act with grave
abuse of discretion in authorizing and effecting disbursements for the salaries and other
emoluments of the respondent police officers whose appointments are valid.
WHEREFORE, for lack of merit, the petition under consideration is hereby
DISMISSED. No pronouncement as to costs.
SO ORDERED.
Davide, C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Pardo, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-45892 July 13, 1938

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
TRANQUILINO LAGMAN, defendant-appellant.

-----------------------------
G.R. No. L-45893 July 13, 1938

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PRIMITIVO DE SOSA, defendant-appellant.

Severino P. Izon for appellants.

Office of the Solicitor-General Tuason for appellee.

AVANCEA, J.:

In these two cases (G.R. Nos. L-45892 and 45893), the appellants Tranquilino and Primitivo de
Sosa are charged with a violation of section 60 of Commonwealth Act No. 1, known as the National
Defense Law. It is alleged that these two appellants, being Filipinos and having reached the age of
twenty years in 1936, willfully and unlawfully refused to register in the military service between the
1st and 7th of April of said year, notwithstanding the fact that they had been required to do so. The
evidence shows that these two appellants were duly notified by the corresponding authorities to
appear before the Acceptance Board in order to register for military service in accordance with law,
and that the said appellants, in spite of these notices, had not registered up to the date of the filing of
the information.

The appellants do not deny these facts, but they allege in defense that they have not registered in
the military service because Primitivo de Sosa is fatherless and has a mother and a brother eight
years old to support, and Tranquilino Lagman also has a father to support, has no military learnings,
and does not wish to kill or be killed.

Each of these appellants was sentenced by the Court of First Instance to one month and one day of
imprisonment, with the costs.

In this instance, the validity of the National Defense Law, under which the accused were sentenced,
is impugned on the ground that it is unconstitutional. Section 2, Article II of the Constitution of the
Philippines provides as follows:

SEC. 2. The defense of the state is a prime duty of government, and in the fulfillment of this
duty all citizens may be required by law to render personal military or civil service.

The National Defense Law, in so far as it establishes compulsory military service, does not go
against this constitutional provision but is, on the contrary, in faithful compliance therewith. The duty
of the Government to defend the State cannot be performed except through an army. To leave the
organization of an army to the will of the citizens would be to make this duty of the Government
excusable should there be no sufficient men who volunteer to enlist therein. 1vvphl.nt

In the United States the courts have held in a series of decisions that the compulsory military service
adopted by reason of the civil war and the world war does not violate the Constitution, because the
power to establish it is derived from that granted to Congress to declare war and to organize and
maintain an army. This is so because the right of the Government to require compulsory military
service is a consequence of its duty to defend the State and is reciprocal with its duty to defend the
life, liberty, and property of the citizen. In the case of Jacobson vs. Massachusetts (197 U.S., 11; 25
Sup. Ct. Rep., 385), it was said that, without violating the Constitution, a person may be compelled
by force, if need be, against his will, against his pecuniary interests, and even against his religious or
political convictions, to take his place in the ranks of the army of his country, and risk the chance of
being shot down in its defense. In the case of United States vs. Olson (253 Fed., 233), it was also
said that this is not deprivation of property without due process of law, because, in its just sense,
there is no right of property to an office or employment.

The circumstance that these decisions refer to laws enacted by reason on the actual existence of
war does not make our case any different, inasmuch as, in the last analysis, what justifies
compulsory military service is the defense of the State, whether actual or whether in preparation to
make it more effective, in case of need. The circumstance that the appellants have dependent
families to support does not excuse them from their duty to present themselves before the
Acceptance Board because, if such circumstance exists, they can ask for determent in complying
with their duty and, at all events, they can obtain the proper pecuniary allowance to attend to these
family responsibilities (secs. 65 and 69 of Commonwealth Act No. 1).

The appealed judgment rendered in these two cases is affirmed, with the costs to the appellants. So
ordered.

Villa-Real, Imperial, Diaz, Laurel and Concepcion, JJ., concur.

PEOPLE vs. LAGMANG.R. Nos. L-45892 and 45893FACTS:Appellants Tranquilino Lagman and Primitivo
de Sosa are charged with a violationof section 60 of Commonwealth Act No. 1, known as the National Defense
Law. Itis alleged that these two appellants, being Filipinos and having reached the age of twenty years in 1936,
willfully and unlawfully refused to register in the military service between the 1st and 7th of April of said year,
even though they had been required to do so. The two appellants were duly notified to appear before the
Acceptance Board in order to register for military service but still did not register up to the date of the filing of
the information.Appellants argue that they did not register because de Sosa is fatherless and has a mother and a
brother eight years old to support, and Lagman also has a father to support, has no military learnings, and does
not wish to kill or be killed. The Court of First Instance sentenced them both to one month and one day of
imprisonment, with the costs.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 196231 September 4, 2012

EMILIO A. GONZALES III, Petitioner,

vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES, acting through and represented by
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE
SECRETARY JOSE AMOR M. AMORANDO, Officer in Charge, Office of the Deputy Executive
Secretary for Legal Affairs, ATTY. RONALDO A. GERON, DIR. ROWENA TURINGAN-
SANCHEZ, and ATTY. CARLITOD. CATAYONG, Respondents.

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

G.R. No. 196232

WENDELL BARRERAS-SULIT, Petitioner,

vs.
ATTY. PAQUITO N. OCHOA, JR., in his capacity as EXECUTIVE SECRETARY, OFFICE OF THE
PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY. CARLO D.SULAY and ATTY. FROILAN
MONTALBAN, .JR., in their capacities as CHAIRMAN and MEMBERS of the OFFICE OF
MALACAANG LEGAL AFFAIRS, Respondents.

DECISION

PERLAS-BERNABE, J.:

The Case

These two petitions have been consolidated not because they stem from the same factual milieu but
because they raise a common thread of issues relating to the President's exercise of the power to
remove from office herein petitioners who claim the protective cloak of independence of the
constitutionally-created office to which they belong - the Office of the Ombudsman.

The first case, docketed as G.R. No. 196231, is a Petition for Certiorari (with application for issuance
of temporary restraining order or status quo order) which assails on jurisdictional grounds the
Decision1 dated March 31, 2011 rendered by the Office of the President in OP Case No. 10-J-460
dismissing petitioner Emilio A. Gonzales III, Deputy Ombudsman for the Military and Other Law
Enforcement Offices (MOLEO), upon a finding of guilt on the administrative charges of Gross
Neglect of Duty and Grave Misconduct constituting a Betrayal of Public Trust. The petition primarily
seeks to declare as unconstitutional Section 8(2) of Republic Act (R.A.) No. 6770, otherwise known
as the Ombudsman Act of 1989, which gives the President the power to dismiss a Deputy
Ombudsman of the Office of the Ombudsman.

The second case, docketed as G.R. No. 196232, is a Petition for Certiorari and Prohibition (with
application for issuance of a temporary restraining order or status quo order) seeking to annul,
reverse and set aside (1) the undated Order2 requiring petitioner Wendell Barreras-Sulit to submit a
written explanation with respect to alleged acts or omissions constituting serious/grave offenses in
relation to the Plea Bargaining Agreement (PLEBARA) entered into with Major General Carlos F.
Garcia; and (2) the April 7, 2011 Notice of Preliminary Investigation,3 both issued by the Office of the
President in OP-DC-Case No. 11-B-003, the administrative case initiated against petitioner as a
Special Prosecutor of the Office of the Ombudsman. The petition likewise seeks to declare as
unconstitutional Section 8(2) of R.A. No. 6770 giving the President the power to dismiss a Special
Prosecutor of the Office of the Ombudsman.

The facts from which these two cases separately took root are neither complicated nor unfamiliar.

In the morning of August 23, 2010, news media scampered for a minute-by-minute coverage of a
hostage drama that had slowly unfolded right at the very heart of the City of Manila. While initial
news accounts were fragmented it was not difficult to piece together the story on the hostage-taker,
Police Senior Inspector Rolando Mendoza. He was a disgruntled former police officer attempting to
secure his reinstatement in the police force and to restore the benefits of a life-long, and erstwhile
bemedaled, service. The following day, broadsheets and tabloids were replete with stories not just of
the deceased hostage-taker but also of the hostage victims, eight of whom died during the bungled
police operation to rescue the hapless innocents. Their tragic deaths triggered word wars of foreign
relation proportions. One newspaper headline ran the story in detail, as follows:

MANILA, Philippines - A dismissed policeman armed with an assault rifle hijacked a bus packed with
tourists, and killed most of its passengers in a 10 hour-hostage drama shown live on national
television until last night.
Former police senior inspector Rolando Mendoza was shot dead by a sniper at past 9 p.m. Mendoza
hijacked the bus and took 21 Chinese tourists hostage, demanding his reinstatement to the police
force.

The hostage drama dragged on even after the driver of the bus managed to escape and told police
that all the remaining passengers had been killed.

Late into the night assault forces surrounded the bus and tried to gain entry, but a pair of dead
hostages hand-cuffed to the door made it difficult for them. Police said they fired at the wheels of the
bus to immobilize it.

Police used hammers to smash windows, door and wind-shield but were met with intermittent fire
from the hos-tage taker.

Police also used tear gas in an effort to confirm if the remaining hostages were all dead or alive.
When the standoff ended at nearly 9 p.m., some four hostages were rescued alive while Mendoza
was killed by a sniper.

Initial reports said some 30 policemen stormed the bus. Shots also rang out, sending bystanders
scampering for safety.

It took the policemen almost two hours to assault the bus because gunfire reportedly rang out from
inside the bus.

Mendoza hijacked the tourist bus in the morning and took the tourists hostage.

Mendoza, who claimed he was illegally dismissed from the police service, initially released nine of
the hostages during the drama that began at 10 a.m. and played out live on national television.

Live television footage showed Mendoza asking for food for those remaining in the bus, which was
delivered, and fuel to keep the air-conditioning going. The disgruntled former police officer was
reportedly armed with an M-16 rifle, a 9 mm pistol and two hand grenades.

Mendoza posted a handwritten note on the windows of the bus, saying "big deal will start after 3 p.m.
today." Another sign stuck to another window said "3 p.m. today deadlock."

Stressing his demand, Mendoza stuck a piece of paper with a handwritten message: "Big mistake to
correct a big wrong decision." A larger piece of paper on the front windshield was headed, "Release
final decision," apparently referring to the case that led to his dismissal from the police force.

Negotiations dragged on even after Mendoza's self-imposed deadline.

Senior Police Officer 2 Gregorio Mendoza said his brother was upset over his dismissal from the
police force. "His problem was he was unjustly removed from service. There was no due process, no
hearing, no com-plaint," Gregorio said.

Last night, Gregorio was arrested by his colleagues on suspicions of being an accessory to his
brother's action. Tensions rose as relatives tried to prevent lawmen from arresting Gregorio in front
of national television. This triggered the crisis that eventually forced Mendoza to carry out his threat
and kill the remaining hostages.
Negotiators led by Superintendent Orlando Yebra and Chief Inspector Romeo Salvador tried to talk
Mendoza into surrendering and releasing the 21 hostages, mostly children and three Filipinos,
including the driver, the tourist guide and a photographer. Yebra reportedly lent a cellphone to allow
communications with Mendoza in-side the bus, which was parked in front ofthe Quirino Grandstand.

Children could be seen peeking from the drawn curtains of the bus while police negotiators hovered
near the scene.

Manila Police District (MPD) director Chief Superinten-dent Rodolfo Magtibay ordered the
deployment of crack police teams and snipers near the scene. A crisis man-agement committee had
been activated with Manila Vice Mayor Isko Moreno coordinating the actions with the MPD.

Earlier last night, Ombudsman Merceditas Gutierrez had a meeting with Moreno to discuss
Mendoza's case that led to his dismissal from the service. Ombudsman spokesman Jose de Jesus
said Gutierrez gave a "sealed letter" to Moreno to be delivered to Mendoza. De Jesus did not
elaborate on the contents of the letter but said Moreno was tasked to personally deliver the letter to
Mendoza.

MPD spokesman Chief Inspector Edwin Margarejo said Mendoza was apparently distraught by the
slow process of the Ombudsman in deciding his motion for reconside-ration. He said the PNP-
Internal Affairs Service and the Manila Regional Trial Court had already dismissed crim-inal cases
against him.

The hostage drama began when Mendoza flagged down the Hong Thai Travel Tourist bus (TVU-
799), pretend-ing to hitch a ride. Margarejo said the bus had just left Fort Santiago in Intramuros
when Mendoza asked the driver to let him get on and ride to Quirino Grandstand. Upon reaching the
Quirino Grandstand, Mendoza an-nounced to the passengers that they would be taken hostage.
"Having worn his (police) uniform, of course there is no doubt that he already planned the hostage
taking," Margarejo said. - Sandy Araneta, Nestor Etolle, Delon Porcalla, Amanda Fisher, Cecille
Suerte Felipe, Christi-na Mendez, AP Grandstand Carnage, The Philippine Star, Updated August 24,
2010 12:00 AM, Val Rodri-guez.4

In a completely separate incident much earlier in time, more particularly in December of 2003, 28-
year-old Juan Paolo Garcia and 23-year-old Ian Carl Garcia were caught in the United States
smuggling $100,000 from Manila by concealing the cash in their luggage and making false
statements to US Customs Officers. The Garcia brothers pleaded guilty to bulk cash smuggling and
agreed to forfeit the amount in favor of the US Government in exchange for the dismissal of the rest
of the charges against them and for being sentenced to time served. Inevitably, however, an
investigation into the source of the smuggled currency conducted by US Federal Agents and the
Philippine Government unraveled a scandal of military corruption and amassed wealth -- the boys'
father, Retired Major General Carlos F. Garcia, former Chief Procurement Officer of the Armed
Forces, had accumulated more than 300 Million during his active military service. Plunder and
Anti-Money Laundering cases were eventually filed against Major General Garcia, his wife and their
two sons before the Sandiganbayan.

G.R. No. 196231

Sometime in 2008, a formal charge5 for Grave Misconduct (robbery, grave threats, robbery extortion
and physical injuries) was filed before the Philippine National Police-National Capital Region (PNP-
NCR) against Manila Police District Senior Inspector (P/S Insp.) Rolando Mendoza, and four others,
namely, Police Inspector Nelson Lagasca, Senior Police Inspector I Nestor David, Police Officer III
Wilson Gavino, and Police Officer II Roderick Lopena. A similar charge was filed by the private
complainant, Christian M. Kalaw, before the Office of the City Prosecutor, Manila, docketed as I.S.
No. 08E-09512.

On July 24, 2008, while said cases were still pending, the Office of the Regional Director of the
National Police Commission (NPC) turned over, upon the request of petitioner Emilio A. Gonzales III,
all relevant documents and evidence in relation to said case to the Office of the Deputy Ombudsman
for appropriate administrative adjudication.6 Subsequently, Case No. OMB-P-A-08-0670-H for Grave
Misconduct was lodged against P/S Insp. Rolando Mendoza and his fellow police officers, who filed
their respective verified position papers as directed.

Meanwhile, on August 26, 2008, I.S. No. 08E-09512 was dismissed7 upon a finding that the material
allegations made by the complainant had not been substantiated "by any evidence at all to warrant
the indictment of respondents of the offenses charged." Similarly, the Internal Affairs Service of the
PNP issued a Resolution8 dated October 17, 2008 recommending the dismissal without prejudice of
the administrative case against the same police officers, for failure of the complainant to appear in
three (3) consecutive hearings despite due notice.

However, on February 16, 2009, upon the recommendation of petitioner Emilio Gonzales III, a
Decision9 in Case No. OMB-P-A-08-0670-H finding P/S Insp. Rolando Mendoza and his fellow police
officers guilty of Grave Misconduct was approved by the Ombudsman. The dispositive portion of
said Decision reads:

WHEREFORE, it is respectfully recommended that respondents P/S Insp. ROLANDO DEL

ROSARIO MENDOZA and PO3 WILSON MATIC GAVINO of PRO-ARMM, Camp Brig. Gen.
Salipada K. Pendatun, Parang, Shariff Kabunsuan; P/INSP. NELSON URBANO LAGASCA, SPO1
NESTOR REYES DAVID and PO2 RODERICK SALVA LOPEA of Manila Police District,
Headquarters, United Nations Avenue, Manila, be meted the penalty of DISMISSAL from the
Service, pursuant to Section 52 (A), Rule IV, Uniform Rules on Administrative Cases in the Civil
Service, with the accessory penalties of forfeiture of retirement benefits and perpetual
disqualification from reemployment in the government service pursuant to Section 58, Rule IV of the
same Uniform Rules of Administrative Cases in the Civil Service, for having committed GRAVE
MISCONDUCT.

On November 5, 2009, they filed a Motion for Reconsideration10 of the foregoing Decision, followed
by a Supplement to the Motion for Reconsideration11 on November 19, 2009. On December 14, 2009,
the pleadings mentioned and the records of the case were assigned for review and recommendation
to Graft Investigation and Prosecutor Officer Dennis L. Garcia, who released a draft Order12 on April
5, 2010 for appropriate action by his immediate superior, Director Eulogio S. Cecilio, who, in turn,
signed and forwarded said Order to petitioner Gonzalez's office on April 27, 2010. Not more than ten
(10) days after, more particularly on May 6, 2010, petitioner endorsed the Order, together with the
case records, for final approval by Ombudsman Merceditas N. Gutierrez, in whose office it remained
pending for final review and action when P/S Insp. Mendoza hijacked a bus-load of foreign tourists
on that fateful day of August 23, 2010 in a desperate attempt to have himself reinstated in the police
service.

In the aftermath of the hostage-taking incident, which ended in the tragic murder of eight HongKong
Chinese nationals, the injury of seven others and the death of P/S Insp. Rolando Mendoza, a public
outcry against the blundering of government officials prompted the creation of the Incident
Investigation and Review Committee (IIRC),13 chaired by Justice Secretary Leila de Lima and vice-
chaired by Interior and Local Government Secretary Jesus Robredo. It was tasked to determine
accountability for the incident through the conduct of public hearings and executive sessions.
However, petitioner, as well as the Ombudsman herself, refused to participate in the IIRC
proceedings on the assertion that the Office of the Ombudsman is an independent constitutional
body.

Sifting through testimonial and documentary evidence, the IIRC eventually identified petitioner
Gonzales to be among those in whom culpability must lie. In its Report,14 the IIRC made the following
findings:

Deputy Ombudsman Gonzales committed serious and inexcusable negligence and gross violation of
their own rules of procedure by allowing Mendoza's motion for reconsideration to languish for more
than nine (9) months without any justification, in violation of the Ombudsman prescribed rules to
resolve motions for reconsideration in administrative disciplinary cases within five (5) days from
submission. The inaction is gross, considering there is no opposition thereto. The prolonged inaction
precipitated the desperate resort to hostage-taking.

More so, Mendoza's demand for immediate resolution of his motion for reconsideration is not without
legal and compelling bases considering the following:

(a) PSI Mendoza and four policemen were investigated by the Ombudsman involving
a case for alleged robbery (extortion), grave threats and physical injuries amounting
to grave misconduct allegedly committed against a certain Christian Kalaw. The
same case, however, was previously dismissed by the Manila City Prosecutors
Office for lack of probable cause and by the PNP-NCR Internal Affairs Service for
failure of the complainant (Christian Kalaw) to submit evidence and prosecute the
case. On the other hand, the case which was filed much ahead by Mendoza et al.
against Christian Kalaw involving the same incident, was given due course by the
City Prosecutors Office.

(b) The Ombudsman exercised jurisdiction over the case based on a letter issued
motu proprio for Deputy Ombudsman Emilio A. Gonzalez III, directing the PNP-NCR
- without citing any reason - to endorse the case against Mendoza and the arresting
policemen to his office for administrative adjudication, thereby showing undue
interest on the case. He also caused the docketing of the case and named Atty.
Clarence V. Guinto of the PNP-CIDG-NCR, who indorsed the case records, as the
nominal complainant, in lieu of Christian Kalaw. During the proceedings, Christian
Kalaw did not also affirm his complaint-affidavit with the Ombudsman or submit any
position paper as required.

(c) Subsequently, Mendoza, after serving preventive suspension, was adjudged

liable for grave misconduct by Deputy Ombudsman Gonzales (duly approved on May
21, 2009) based on the sole and uncorroborated complaint-affidavit of Christian
Kalaw, which was not previously sustained by the City Prosecutor's Office and the
PNP Internal Affairs Service. From the said Resolution, Mendoza interposed a timely
motion for reconsideration (dated and filed November 5, 2009) as well as a
supplement thereto. No opposition or comment was filed thereto.

(d) Despite the pending and unresolved motion for reconsideration, the judgment of
dismissal was enforced, thereby abruptly ending Mendoza's 30 years of service in
the PNP with forfeiture of all his benefits. As a result, Mendoza sought urgent relief
by sending several hand-written letter-requests to the Ombudsman for immediate
resolution of his motion for reconsideration. But his requests fell on deaf ears.

xxxx
By allowing Mendoza's motion for reconsideration to languish for nine long (9) months without any
justification, Ombudsman Gutierrez and Deputy Ombudsman Gonzales committed complete and
wanton violation of the Ombudsman prescribed rule to resolve motions for reconsideration in
administrative disciplinary cases within five (5) days from submission (Sec. 8, Ombudsman Rules of
Procedure). The inaction is gross, there being no opposition to the motion for reconsideration.

Besides, the Ombudsman, without first resolving the motion for reconsideration, arbitrarily enforced
the judgment of dismissal and ignored the intervening requests for immediate resolution, thereby
rendering the inaction even more inexcusable and unjust as to amount to gross negligence and
grave misconduct.

SECOND, Ombudsman Gutierrez and Deputy Ombudsman Gonzales committed serious disregard
of due process, manifest injustice and oppression in failing to provisionally suspend the further
implementation of the judgment of dismissal against Mendoza pending disposition of his unresolved
motion for reconsideration.

By enforcing the judgment of dismissal without resolving the motion for reconsideration for over nine
months, the two Ombudsman officials acted with arbitrariness and without regard to due process
and the constitutional right of an accused to the speedy disposition of his case. As long as his
motion for reconsideration remained pending and unresolved, Mendoza was also effectively
deprived of the right to avail of the ordinary course of appeal or review to challenge the judgment of
dismissal before the higher courts and seek a temporary restraining order to prevent the further
execution thereof.

As such, if the Ombudsman cannot resolve with dispatch the motion for reconsideration, it should
have provisionally suspended the further enforcement of the judgment of dismissal without prejudice
to its re-implementation if the reconsideration is eventually denied. Otherwise, the Ombudsman will
benefit from its own inaction. Besides, the litigant is entitled to a stay of the execution pending
resolution of his motion for reconsideration. Until the motion for reconsideration is denied, the
adjudication process before the Ombudsman cannot be considered as completely finished and,
hence, the judgment is not yet ripe for execution.

xxxx

When the two Ombudsman officials received Mendoza's demand for the release of the final order
resolving his motion for reconsideration, they should have performed their duty by resolving the
reconsideration that same day since it was already pending for nine months and the prescribed
period for its resolution is only five days. Or if they cannot resolve it that same day, then they should
have acted decisively by issuing an order provisionally suspending the further enforcement of the
judgment of dismissal subject to revocation once the reconsideration is denied and without prejudice
to the arrest and prosecution of Mendoza for the hostage-taking. Had they done so, the crisis may
have ended peacefully, without necessarily compromising the integrity of the institution. After all, as
relayed to the negotiators, Mendoza did express willingness to take full responsibility for the
hostage-taking if his demand for release of the final decision or reinstatement was met.

But instead of acting decisively, the two Ombudsman officials merely offered to review a pending
motion for review of the case, thereby prolonging their inaction and aggravating the situation. As
expected, Mendoza - who previously berated Deputy Gonzales for allegedly demanding Php150,000
in exchange for favorably resolving the motion for reconsideration - rejected and branded as trash
("basura") the Ombudsman [sic] letter promising review, triggering the collapse of the negotiations.
To prevent the situation from getting out of hand, the negotiators sought the alternative option of
securing before the PNP-NCRPO an order for Mendoza's provisional reinstatement pending
resolution of the motion for reconsideration. Unfortunately, it was already too late. But had the
Ombudsman officials performed their duty under the law and acted decisively, the entire crisis may
have ended differently.

The IIRC recommended that its findings with respect to petitioner Gonzales be referred to the Office
of the President (OP) for further determination of possible administrative offenses and for the
initiation of the proper administrative proceedings.

On October 15, 2010, the OP instituted a Formal Charge15 against petitioner Gonzales for Gross
Neglect of Duty and/or Inefficiency in the Performance of Official Duty under Rule XIV, Section 22 of
the Omnibus Rules Implementing Book V of E.O. No. 292 and other pertinent Civil

Service Laws, rules and regulations, and for Misconduct in Office under Section 3 of the Anti-Graft
and Corrupt Practices Act.16 Petitioner filed his Answer17 thereto in due time.

Shortly after the filing by the OP of the administrative case against petitioner, a complaint dated
October 29, 2010 was filed by Acting Assistant Ombudsman Joselito P. Fangon before the Internal
Affairs Board of the Office of the Ombudsman charging petitioner with "directly or indirectly
requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other
person, in connection with any contract or transaction between the Government and any other party,
wherein the public officer in his official capacity has to intervene under the law" under Section 3(b) of
the Anti-Graft and Corrupt Practices Act, and also, with solicitation or acceptance of gifts under
Section 7(d) of the Code of Conduct and Ethical Standards.18 In a Joint Resolution19 dated February
17, 2011, which was approved by Ombudsman Ma. Merceditas N. Gutierrez, the complaint was
dismissed, as follows:

WHEREFORE, premises considered, finding no probable cause to indict respondent Emilio A.

Gonzales III for violations of Section 3(b) of R.A. No. 3019 and Section 7(d) of R.A. No. 6713, the
complaint is hereby be [sic] DISMISSED.

Further, finding no sufficient evidence to hold respondent administratively liable for Misconduct, the
same is likewise DISMISSED.

Meanwhile, the OP notified20 petitioner that a Preliminary Clarificatory Conference relative to the
administrative charge against him was to be conducted at the Office of the Deputy Executive
Secretary for Legal Affairs (ODESLA) on February 8, 2011. Petitioner Gonzales alleged,21 however,
that on February 4, 2011, he heard the news that the OP had announced his suspension for one
year due to his delay in the disposition of P/S Insp. Mendoza's motion for reconsideration. Hence,
believing that the OP had already prejudged his case and that any proceeding before it would simply
be a charade, petitioner no longer attended the scheduled clarificatory conference. Instead, he filed
an Objection to Proceedings22 on February 7, 2011. Despite petitioner's absence, however, the OP
pushed through with the proceedings and, on March 31, 2011, rendered the assailed Decision,23 the
dispositive portion of which reads:

WHEREFORE, in view of the foregoing, this Office finds Deputy Ombudsman Emilio A. Gonzales III
guilty of Gross Neglect of Duty and Grave Misconduct constituting betrayal of public trust, and
hereby meted out the penalty of DISMISSAL from service.

SO ORDERED.

Hence, the petition.

G.R. No. 196232

In April of 2005, the Acting Deputy Special Prosecutor of the Office of the Ombudsman charged
Major General Carlos F. Garcia, his wife Clarita D. Garcia, their sons Ian Carl Garcia, Juan Paulo
Garcia and Timothy Mark Garcia and several unknown persons with Plunder (Criminal Case No.
28107) and Money Laundering (Criminal Case No. SB09CRM0194) before the Sandiganbayan.

On January 7, 2010, the Sandiganbayan denied Major General Garcia's urgent petition for bail
holding that strong prosecution evidence militated against the grant of bail. On March 16, 2010,
however, the government, represented by petitioner, Special Prosecutor Wendell Barreras-Sulit
("Barreras-Sulit") and her prosecutorial staff sought the Sandiganbayan's approval of a Plea
Bargaining Agreement (hereinafter referred to as "PLEBARA") entered into with the accused. On
May 4, 2010, the Sandiganbayan issued a Resolution finding the change of plea warranted and the
PLEBARA compliant with jurisprudential guidelines.

Outraged by the backroom deal that could allow Major General Garcia to get off the hook with
nothing but a slap on the hand notwithstanding the prosecution's apparently strong evidence of his
culpability for serious public offenses, the House of Representatives' Committee on Justice
conducted public hearings on the PLEBARA. At the conclusion of these public hearings, the
Committee on Justice passed and adopted Committee Resolution No. 3,24recommending to the
President the dismissal of petitioner Barreras-Sulit from the service and the filing of appropriate
charges against her Deputies and Assistants before the appropriate government office for having
committed acts and/or omissions tantamount to culpable violations of the Constitution and betrayal
of public trust, which are violations under the Anti-Graft and Corrupt Practices Act and grounds for
removal from office under the Ombudsman Act.

The Office of the President initiated OP-DC-Case No. 11-B-003 against petitioner Barreras-Sulit. In
her written explanation, petitioner raised the defenses of prematurity and the lack of jurisdiction of
the OP with respect to the administrative disciplinary proceeding against her. The OP, however, still
proceeded with the case, setting it for preliminary investigation on April 15, 2011.

Hence, the petition.

The Issues

In G.R. No. 196231, petitioner Gonzales raises the following grounds, to wit:

(A)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER INDIVIDUAL

RESPONDENTS, HAS NO CONSTITUTIONAL OR VALID STATUTORY AUTHORITY TO
SUBJECT PETITIONER TO AN ADMINISTRATIVE INVESTIGATION AND TO THEREAFTER
ORDER HIS REMOVAL AS DEPUTY OMBUDSMAN.

(B)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER INDIVIDUAL

RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT CONDUCTED ITS INVESTIGATION AND RENDERED ITS DECISION IN
VIOLATION OF PETITIONER'S RIGHT TO DUE PROCESS.
 (C)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL

RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FINDING THAT PETITIONER COMMITTED DELAY IN THE DISPOSITION OF
MENDOZA'S MOTION FOR RECONSIDERATION.

(D)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL

RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FINDING THAT PETITIONER TOOK UNDUE INTEREST IN MENDOZA'S
CASE.

(E)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL

RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FAULTING PETITIONER FOR NOT RELEASING THE RESOLUTION ON
MENDOZA'S MOTION FOR RECONSIDERATION OR FOR NOT SUSPENDING MENDOZA'S
DISMISSAL FROM SERVICE DURING THE HOSTAGE CRISIS.

(F)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL

RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FINDING THAT THERE WAS SUBSTANTIAL EVIDENCE TO SHOW THAT
PETITIONER DEMANDED A BRIBE FROM MENDOZA.25

On the other hand, in G.R. No. 196232, petitioner Barreras-Sulit poses for the Court the question -

AS OF THIS POINT IN TIME, WOULD TAKING AND CONTINUING TO TAKE ADMINISTRATIVE

DISCIPLINARY PROCEEDING AGAINST PETITIONER BE LAWFUL AND JUSTIFIABLE? 26

Re-stated, the primordial question in these two petitions is whether the Office of the President has
jurisdiction to exercise administrative disciplinary power over a Deputy Ombudsman and a Special
Prosecutor who belong to the constitutionally-created Office of the Ombudsman.

The Court's Ruling

Short of claiming themselves immune from the ordinary means of removal, petitioners asseverate
that the President has no disciplinary jurisdiction over them considering that the Office of the
Ombudsman to which they belong is clothed with constitutional independence and that they, as
Deputy Ombudsman and Special Prosecutor therein, necessarily bear the constitutional attributes of
said office.

The Court is not convinced.

The Ombudsman's administrative

disciplinary power over a Deputy
Ombudsman and Special Prose-cutor is not exclusive.
It is true that the authority of the Office of the Ombudsman to conduct administrative investigations
proceeds from its constitutional mandate to be an effective protector of the people against inept and
corrupt government officers and employees,27 and is subsumed under the broad powers "explicitly
conferred" upon it by the 1987 Constitution and R.A. No. 6770.28

The ombudsman traces its origins to the primitive legal order of Germanic tribes. The Swedish term,
which literally means "agent" or "representative," communicates the concept that has been carried
on into the creation of the modern-day ombudsman, that is, someone who acts as a neutral
representative of ordinary citizens against government abuses.29 This idea of a people's protector
was first institutionalized in the Philippines under the 1973 Constitution with the creation of the
Tanodbayan, which wielded the twin powers of investigation and prosecution. Section 6, Article XIII
of the 1973 Constitution provided thus:

Sec. 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as
Tanodbayan, which shall receive and investigate complaints relative to public office, including those
in government-owned or controlled corporations, make appropriate recommendations, and in case of
failure of justice as defined by law, file and prosecute the corresponding criminal, civil, or
administrative case before the proper court or body.

The framers of the 1987 Constitution later envisioned a more effective ombudsman vested with
authority to "act in a quick, inexpensive and effective manner on complaints against administrative
officials", and to function purely with the "prestige and persuasive powers of his office" in correcting
improprieties, inefficiencies and corruption in government freed from the hampering effects of
prosecutorial duties.30 Accordingly, Section 13, Article XI of the 1987 Constitution enumerates the
following powers, functions, and duties of the Office of the Ombudsman, viz:

(1) Investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient.

(2) Direct, upon complaint or at its own instance, any public official or employee of the
Government, or any subdivision, agency or instrumentality thereof, as well as of any government-
owned or controlled corporation with original charter, to perform and expedite any act or duty
required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of
duties.

(3) Direct the officer concerned to take appropriate action against a public official or employee at
fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith.

(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be
provided by law, to furnish it with copies of documents relating to contracts or transactions entered
into by his office involving the disbursement or use of public funds or properties, and report any
irregularity to the Commission on Audit for appropriate action.

(5) Request any government agency for assistance and information necessary in the discharge of
its responsibilities, and to examine, if necessary, pertinent records and documents.

(6) Publicize matters covered by its investigation when circumstances so warrant and with due
prudence.
(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the
Government and make recommendations for their elimination and the observance of high standards
of ethics and efficiency.

(8) Promulgate its rules of procedure and exercise such other powers or perform such functions or
duties as may be provided by law.31

Congress thereafter passed, on November 17, 1989, Republic Act No. 6770, the Ombudsman Act of
1989, to shore up the Ombudsman's institutional strength by granting it "full administrative
disciplinary power over public officials and employees,"32 as follows:

Sec. 21. Officials Subject to Disciplinary Authority; Exceptions. - The Office of the Ombudsman shall
have disciplinary authority over all elective and appointive officials of the Government and its
subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government,
government-owned or controlled corporations and their subsidiaries, except over officials who may
be removed only by impeachment or over Members of Congress, and the Judiciary.(Emphasis
supplied)

In the exercise of such full administrative disciplinary authority, the Office of the Ombudsman was
explicitly conferred the statutory power to conduct administrative investigations under Section 19 of
the same law, thus:

Sec. 19. Administrative complaints. - The Ombudsman shall act on all complaints relating, but not
limited, to acts or omissions which:

1. Are contrary to law or regulation;

2. Are unreasonable, unfair, oppressive or discriminatory;

3. Are inconsistent with the general course of an agency's functions, though in accordance with law;

4. Proceed from a mistake of law or an arbitrary ascertainment of facts;

5. Are in the exercise of discretionary powers but for an improper purpose; or

6. Are otherwise irregular, immoral or devoid of justification.

While the Ombudsman's authority to discipline administratively is extensive and covers all
government officials, whether appointive or elective, with the exception only of those officials
removable by impeachment, the members of congress and the judiciary, such authority is by no
means exclusive. Petitioners cannot insist that they should be solely and directly subject to the
disciplinary authority of the Ombudsman. For, while Section 21 declares the Ombudsman's
disciplinary authority over all government officials, Section 8(2), on the other hand, grants the
President express power of removal over a Deputy Ombudsman and a Special Prosecutor. Thus:

Section 8. Removal; Filling of Vacancy.-

xxxx

(2) A Deputy or the Special Prosecutor, may be removed from office by the President for any of the
grounds provided for the removal of the Ombudsman, and after due process.
It is a basic canon of statutory construction that in interpreting a statute, care should be taken that
every part thereof be given effect, on the theory that it was enacted as an integrated measure and
not as a hodge-podge of conflicting provisions. A construction that would render a provision
inoperative should be avoided; instead, apparently inconsistent provisions should be reconciled
whenever possible as parts of a coordinated and harmonious whole.33Otherwise stated, the law must
not be read in truncated parts. Every part thereof must be considered together with the other parts,
and kept subservient to the general intent of the whole enactment.34

A harmonious construction of these two apparently conflicting provisions in R.A. No. 6770 leads to
the inevitable conclusion that Congress had intended the Ombudsman and the President to exercise
concurrent disciplinary jurisdiction over petitioners as Deputy Ombudsman and Special

Prosecutor, respectively. This sharing of authority goes into the wisdom of the legislature, which
prerogative falls beyond the pale of judicial inquiry. The Congressional deliberations on this matter
are quite insightful, viz:

x x x Senator Angara explained that the phrase was added to highlight the fact that the Deputy
Tanodbayan may only be removed for cause and after due process. He added that the President
alone has the power to remove the Deputy Tanodbayan.

Reacting thereto, Senator Guingona observed that this might impair the independence of the
Tanodbayan and suggested that the procedural removal of the Deputy Tanodbayan...; and that he
can be removed not by the President but by the Ombudsman.

However, the Chair expressed apprehension that the Ombudsman and the Deputy Ombudsman
may try to protect one another. The Chair suggested the substitution of the phrase "after due
process" with the words after due notice and hearing with the President as the ultimate authority.

Senator Guingona contended, however, that the Constitution provides for an independent Office of
the Tanodbayan, and to allow the Executive to have disciplinary powers over the Tanodbayan
Deputies would be an encroachment on the independence of the Tanodbayan.

Replying thereto, Senator Angara stated that originally, he was not averse to the proposal, however,
considering the Chair's observation that vesting such authority upon the Tanodbayan itself could
result in mutual protection, it is necessary that an outside official should be vested with such
authority to effect a check and balance.35

Indubitably, the manifest intent of Congress in enacting both provisions - Section 8(2) and Section
21 - in the same Organic Act was to provide for an external authority, through the person of the
President, that would exercise the power of administrative discipline over the Deputy Ombudsman
and Special Prosecutor without in the least diminishing the constitutional and plenary authority of the
Ombudsman over all government officials and employees. Such legislative design is simply a
measure of "check and balance" intended to address the lawmakers' real and valid concern that the
Ombudsman and his Deputy may try to protect one another from administrative liabilities.

This would not be the first instance that the Office of the President has locked horns with the
Ombudsman on the matter of disciplinary jurisdiction. An earlier conflict had been settled in favor of
shared authority in Hagad v. Gozo Dadole.36 In said case, the Mayor and Vice-Mayor of Mandaue
City, and a member of the Sangguniang Panlungsod, were charged before the Office of the Deputy
Ombudsman for the Visayas with violations of R.A. No. 3019, R.A. No. 6713, and the Revised Penal
Code. The pivotal issue raised therein was whether the Ombudsman had been divested of his
authority to conduct administrative investigations over said local elective officials by virtue of the
subsequent enactment of the Local Government Code of 1991 (R.A. No. 7160), the pertinent
provision of which states:

Sec. 61. Form and Filing of Administrative Complaints.- A verified complaint against any erring local
elective official shall be prepared as follows:

(a) A complaint against any elective official of a province, a highly urbanized city, an independent
component city or component city shall be filed before the Office of the President.

The Court resolved said issue in the negative, upholding the ratiocination of the Solicitor General
that R.A. No. 7160 should be viewed as having conferred on the Office of the President, but not on
an exclusive basis, disciplinary authority over local elective officials. Despite the fact that R.A. No.
7160 was the more recent expression of legislative will, no repeal of pertinent provisions in the
Ombudsman Act was inferred therefrom. Thus said the Court:

Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether
expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the
specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only
uphold one and strike down the other. Well settled is the rule that repeals of laws by implication are
not favored, and that courts must generally assume their congruent application. The two laws must
be absolutely incompatible, and a clear finding thereof must surface, before the inference of implied
repeal may be drawn. The rule is expressed in the maxim, interpretare et concordare legibus est
optimus interpretendi, i.e., every statute must be so interpreted and brought into accord with other
laws as to form a uniform system of jurisprudence. The fundament is that the legislature should be
presumed to have known the existing laws on the subject and not to have enacted conflicting
statutes. Hence, all doubts must be resolved against any implied repeal, and all efforts should be
exerted in order to harmonize and give effect to all laws on the subject.37

While Hagad v. Gozo Dadole38 upheld the plenary power of the Office of the Ombudsman to
discipline elective officials over the same disciplinary authority of the President under R.A. No. 7160,
the more recent case of the Office of the Ombudsman v. Delijero39 tempered the exercise by the
Ombudsman of such plenary power invoking Section 23(2)40 of R.A. No. 6770, which gives the
Ombudsman the option to "refer certain complaints to the proper disciplinary authority for the
institution of appropriate administrative proceedings against erring public officers or employees." The
Court underscored therein the clear legislative intent of imposing "a standard and a separate set of
procedural requirements in connection with administrative proceedings involving public school
teachers"41 with the enactment of R.A. No. 4670, otherwise known as "The Magna Carta for Public
School Teachers." It thus declared that, while the Ombudsman's administrative disciplinary authority
over a public school teacher is concurrent with the proper investigating committee of the Department
of Education, it would have been more prudent under the circumstances for the Ombudsman to have
referred to the DECS the complaint against the public school teacher.

Unquestionably, the Ombudsman is possessed of jurisdiction to discipline his own people and mete
out administrative sanctions upon them, including the extreme penalty of dismissal from the service.
However, it is equally without question that the President has concurrent authority with respect to
removal from office of the Deputy Ombudsman and Special Prosecutor, albeit under specified
conditions. Considering the principles attending concurrence of jurisdiction where the Office of the
President was the first to initiate a case against petitioner Gonzales, prudence should have
prompted the Ombudsman to desist from proceeding separately against petitioner through its
Internal Affairs Board, and to defer instead to the President's assumption of authority, especially
when the administrative charge involved "demanding and soliciting a sum of money" which
constitutes either graft and corruption or bribery, both of which are grounds reserved for the
President's exercise of his authority to remove a Deputy Ombudsman.

In any case, assuming that the Ombudsman's Internal Affairs Board properly conducted a
subsequent and parallel administrative action against petitioner, its earlier dismissal of the charge of
graft and corruption against petitioner could not have the effect of preventing the Office of the
President from proceeding against petitioner upon the same ground of graft and corruption. After all,
the doctrine of res judicata applies only to judicial or quasi-judicial proceedings, not to the exercise of
administrative powers.42 In Montemayor v. Bundalian,43 the Court sustained the President's dismissal
from service of a Regional Director of the Department of Public Works and Highways (DPWH) who
was found liable for unexplained wealth upon investigation by the now defunct Philippine
Commission Against Graft and Corruption (PCAGC). The Court categorically ruled therein that the
prior dismissal by the Ombudsman of similar charges against said official did not operate as res
judicata in the PCAGC case.

By granting express statutory

power to the President to remove
a Deputy Ombudsman and a
Special Prosecutor, Congress
merely filled an obvious gap in
the law.

Section 9, Article XI of the 1987 Constitution confers upon the President the power to appoint the
Ombudsman and his Deputies, viz:

Section 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at
least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for
every vacancy thereafter. Such appointments shall require no confirmation. All vacancies shall be
filled within three months after they occur.

While the removal of the Ombudsman himself is also expressly provided for in the Constitution,
which is by impeachment under Section 244 of the same Article, there is, however, no constitutional
provision similarly dealing with the removal from office of a Deputy Ombudsman, or a Special
Prosecutor, for that matter. By enacting Section 8(2) of R.A. 6770, Congress simply filled a gap in
the law without running afoul of any provision in the Constitution or existing statutes. In fact, the
Constitution itself, under Section 2, authorizes Congress to provide for the removal of all other public
officers, including the Deputy Ombudsman and Special Prosecutor, who are not subject to
impeachment.

That the Deputies of the Ombudsman were intentionally excluded from the enumeration of
impeachable officials is clear from the following deliberations45 of the Constitutional Commission,
thus:

MR. REGALADO. Yes, thank you. On Section 10, regarding the Ombudsman, there has been
concern aired by Commissioner Rodrigo about who will see to it that the Ombudsman will perform
his duties because he is something like a guardian of the government. This recalls the statement of
Juvenal that while the Ombudsman is the guardian of the people, "Quis custodiet ipsos custodies",
who will guard the guardians? I understand here that the Ombudsman who has the rank of a
chairman of a constitutional commission is also removable only by impeachment.

MR. ROMULO. That is the intention, Madam President.

MR. REGALADO. Only the Ombudsman?

MR. MONSOD. Only the Ombudsman.

MR. REGALADO. So not his deputies, because I am concerned with the phrase "have the rank of".
We know, for instance, that the City Fiscal of Manila has the rank of a justice of the Intermediate
Appellate Court, and yet he is not a part of the judiciary. So I think we should clarify that also and
read our discussions into the Record for purposes of the Commission and the Committee.46

xxx

THE PRESIDENT. The purpose of the amendment of Commissioner Davide is not just to include the
Ombudsman among those officials who have to be removed from office only onimpeachment. Is that
right?

MR. DAVIDE. Yes, Madam President.

MR. RODRIGO. Before we vote on the amendment, may I ask a question?

THE PRESIDENT. Commissioner Rodrigo is recognized.

MR. RODRIGO. The Ombudsman, is this only one man?

MR. DAVIDE. Only one man.

MR. RODRIGO. Not including his deputies.

MR. MONSOD. No.47 (Emphasis supplied)

The Power of the President to

Remove a Deputy Ombudsman
and a Special Prosecutor is
Implied from his Power to
Appoint.

Under the doctrine of implication, the power to appoint carries with it the power to remove.48 As a
general rule, therefore, all officers appointed by the President are also removable by him.49 The
exception to this is when the law expressly provides otherwise - that is, when the power to remove is
expressly vested in an office or authority other than the appointing power. In some cases, the
Constitution expressly separates the power to remove from the President's power to appoint. Under
Section 9, Article VIII of the 1987 Constitution, the Members of the Supreme Court and judges of
lower courts shall be appointed by the President. However, Members of the Supreme Court may be
removed after impeachment proceedings initiated by Congress (Section 2, Article XI), while judges
of lower courts may be removed only by the Supreme Court by virtue of its administrative
supervision over all its personnel (Sections 6 and 11, Article VIII). The Chairpersons and
Commissioners of the Civil Service Commission Section 1(2), Article IX(B), the Commission on
Elections Section 1(2), Article IX(C), and the Commission on Audit Section 1(2), Article IX(D) shall
likewise be appointed by the President, but they may be removed only by impeachment (Section 2,
Article XI). As priorly stated, the Ombudsman himself shall be appointed by the President (Section 9,
Article XI) but may also be removed only by impeachment (Section 2, Article XI).
In giving the President the power to remove a Deputy Ombudsman and Special Prosecutor,
Congress simply laid down in express terms an authority that is already implied from the President's
constitutional authority to appoint the aforesaid officials in the Office of the Ombudsman.

The Office of the Ombudsman is charged with monumental tasks that have been generally
categorized into investigatory power, prosecutorial power, public assistance, authority to inquire and
obtain information and the function to adopt, institute and implement preventive measures.50 In order
to ensure the effectiveness of his constitutional role, the Ombudsman was provided with an over-all
deputy as well as a deputy each for Luzon, Visayas and Mindanao. However, well into the
deliberations of the Constitutional Commission, a provision for the appointment of a separate deputy
for the military establishment was necessitated by Commissioner Ople's lament against the rise
within the armed forces of "fraternal associations outside the chain of command" which have
become the common soldiers' "informal grievance machinery" against injustice, corruption and
neglect in the uniformed service,51 thus:

In our own Philippine Armed Forces, there has arisen in recent years a type of fraternal association
outside the chain of command proposing reformist objectives. They constitute, in fact, an informal
grievance machinery against injustices to the rank and file soldiery and perceive graft in higher rank
and neglect of the needs of troops in combat zones. The Reform the Armed Forces Movement of
RAM has kept precincts for pushing logistics to the field, the implied accusation being that most of
the resources are used up in Manila instead of sent to soldiers in the field. The Guardians, the El
Diablo and other organizations dominated by enlisted men function, more or less, as grievance
collectors and as mutual aid societies.

This proposed amendment merely seeks to extend the office of the Ombudsman to the military
establishment, just as it champions the common people against bureaucratic indifference. The
Ombudsman can designate a deputy to help the ordinary foot soldier get through with his grievance
to higher authorities. This deputy will, of course work in close cooperation with the Minister of
National Defense because of the necessity to maintain the integrity of the chain of command.
Ordinary soldiers, when they know they can turn to a military Ombudsman for their complaints, may
not have to fall back on their own informal devices to obtain redress for their grievances. The
Ombudsman will help raise troop morale in accordance with a major professed goal of the President
and the military authorities themselves. x x x

The add-on now forms part of Section 5, Article XI which reads as follows:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one over-all Deputy and at least one Deputy each for
Luzon, Visayas and Mindanao. A separate deputy for the military establishment shall likewise be
appointed.(Emphasis supplied)

The integrity and effectiveness of the Deputy Ombudsman for the MOLEO as a military watchdog
looking into abuses and irregularities that affect the general morale and professionalism in the
military is certainly of primordial importance in relation to the President's own role asCommander-in-
Chief of the Armed Forces. It would not be incongruous for Congress, therefore, to grant the
President concurrent disciplinary authority over the Deputy Ombudsman for the military and other
law enforcement offices.

Granting the President the Power

to Remove a Deputy Ombudsman
does not Diminish the
Independence of the Office of the
Ombudsman.

The claim that Section 8(2) of R.A. No. 6770 granting the President the power to remove a Deputy
Ombudsman from office totally frustrates, if not resultantly negates the independence of the Office of
the Ombudsman is tenuous. The independence which the Office of the Ombudsman is vested with
was intended to free it from political considerations in pursuing its constitutional mandate to be a
protector of the people. What the Constitution secures for the Office of the Ombudsman is,
essentially, political independence. This means nothing more than that "the terms of office, the
salary, the appointments and discipline of all persons under the office" are "reasonably insulated
from the whims of politicians."52 And so it was that Section 5, Article XI of the 1987 Constitution had
declared the creation of the independent Office of the Ombudsman, composed of the Ombudsman
and his Deputies, who are described as "protectors of the people" and constitutionally mandated to
act promptly on complaints filed in any form or manner against public officials or employees of the
Government Section 12, Article XI. Pertinent provisions under Article XI prescribes a term of office of
seven years without reappointment Section 11, prohibits a decrease in salaries during the term of
office Section 10, provides strict qualifications for the office Section 8, grants fiscal autonomy
Section 14 and ensures the exercise of constitutional functions Section 12 and 13. The cloak of
independence is meant to build up the Office of the Ombudsman's institutional strength to effectively
function as official critic, mobilizer of government, constitutional watchdog53 and protector of the
people. It certainly cannot be made to extend to wrongdoings and permit the unbridled acts of its
officials to escape administrative discipline.

Being aware of the constitutional imperative of shielding the Office of the Ombudsman from political
influences and the discretionary acts of the executive, Congress laid down two restrictions on the
President's exercise of such power of removal over a Deputy Ombudsman, namely: (1) that the
removal of the Deputy Ombudsman must be for any of the grounds provided for the removal of the
Ombudsman and (2) that there must be observance of due process. Reiterating the grounds for
impeachment laid down in Section 2, Article XI of the 1987 Constitution, paragraph 1 of Section 8 of
R.A. No. 6770 states that the Deputy Ombudsman may be removed from office for the same
grounds that the Ombudsman may be removed through impeachment, namely, "culpable violation of
the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust."
Thus, it cannot be rightly said that giving the President the power to remove a Deputy Ombudsman,
or a Special Prosecutor for that matter, would diminish or compromise the constitutional
independence of the Office of the Ombudsman. It is, precisely, a measure of protection of the
independence of the Ombudsman's Deputies and Special Prosecutor in the discharge of their duties
that their removal can only be had on grounds provided by law.

In Espinosa v. Office of the Ombudsman,54 the Court elucidated on the nature of the Ombudsman's
independence in this wise -

The prosecution of offenses committed by public officers is vested in the Office of the Ombudsman.
To insulate the Office from outside pressure and improper influence, the Constitution as well as RA
6770 has endowed it with a wide latitude of investigatory and prosecutory powers virtually free from
legislative, executive or judicial intervention. This Court consistently refrains from interfering with the
exercise of its powers, and respects the initiative and independence inherent in the Ombudsman
who, 'beholden to no one, acts as the champion of the people and the preserver of the integrity of
public service.

Petitioner Gonzales may not be

removed from office where the
questioned acts, falling short of
constitutional standards, do not
constitute betrayal of public trust.

Having now settled the question concerning the validity of the President's power to remove the
Deputy Ombudsman and Special Prosecutor, we now go to the substance of the administrative
findings in OP Case No. 10-J-460 which led to the dismissal of herein petitioner, Deputy
Ombudsman Emilio A. Gonzales, III.

At the outset, the Court finds no cause for petitioner Gonzales to complain simply because the OP
proceeded with the administrative case against him despite his non-attendance thereat. Petitioner
was admittedly able to file an Answer in which he had interposed his defenses to the formal charge
against him. Due process is satisfied when a person is notified of the charge against him and given
an opportunity to explain or defend himself. In administrative proceedings, the filing of charges and
giving reasonable opportunity for the person so charged to answer the accusations against him
constitute the minimum requirements of due process.55 Due process is simply having the opportunity
to explain one's side, or an opportunity to seek a reconsideration of the action or ruling complained
of.56

The essence of due process is that a party is afforded reasonable opportunity to be heard and to
submit any evidence he may have in support of his defense.57 Mere opportunity to be heard is
sufficient. As long as petitioner was given the opportunity to explain his side and present evidence,
the requirements of due process are satisfactorily complied with because what the law abhors is an
absolute lack of opportunity to be heard.58 Besides, petitioner only has himself to blame for limiting his
defense through the filing of an Answer. He had squandered a subsequent opportunity to elucidate
upon his pleaded defenses by adamantly refusing to attend the scheduled Clarificatory Conference
despite notice. The OP recounted as follows -

It bears noting that respondent Deputy Ombudsman Gonzalez was given two separate opportunities
to explain his side and answer the Formal Charge against him.

In the first instance, respondent was given the opportunity to submit his answer together with his
documentary evidence, which opportunity respondent actually availed of. In the second instance,
this Office called a Clarificatory Conference on 8 February 2011 pursuant to respondent's express
election of a formal investigation. Despite due notice, however, respondent Deputy Ombudsman
refused to appear for said conference, interposing an objection based on the unfounded notion that
this Office has prejudged the instant case. Respondent having been given actual and reasonable
opportunity to explain or defend himself in due course, the requirement of due process has been
satisfied.59

In administrative proceedings, the quantum of proof necessary for a finding of guilt is substantial
evidence,60 which is more than a mere scintilla and means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.61 The fact, therefore, that petitioner later
refused to participate in the hearings before the OP is not a hindrance to a finding of his culpability
based on substantial evidence, which only requires that a decision must "have something upon
which it is based."62

Factual findings of administrative bodies are controlling when supported by substantial

evidence.63 The OP's pronouncement of administrative accountability against petitioner and the
imposition upon him of the corresponding penalty of removal from office was based on the finding of
gross neglect of duty and grave misconduct in office amounting to a betrayal of public trust, which is
a constitutional ground for the removal by impeachment of the Ombudsman (Section 2, Article XI,
1987 Constitution), and a statutory ground for the President to remove from office a Deputy
Ombudsman and a Special Prosecutor Section 8(2) of the Ombudsman Act.

The OP held that petitioner's want of care and wrongful conduct consisted of his unexplained action
in directing the PNP-NCR to elevate P/S Insp. Mendoza's case records to his office; his failure to
verify the basis for requesting the Ombudsman to take over the case; his pronouncement of
administrative liability and imposition of the extreme penalty of dismissal on P/S Insp. Mendoza
based upon an unverified complaint-affidavit; his inordinate haste in implementing P/S Insp.
Mendoza's dismissal notwithstanding the latter's non-receipt of his copy of the Decision and the
subsequent filing of a motion for reconsideration; and his apparent unconcern that the pendency of
the motion for reconsideration for more than five months had deprived P/S Insp. Mendoza of
available remedies against the immediate implementation of the Decision dismissing him from the
service.

Thus, taking into consideration the factual determinations of the IIRC, the allegations and evidence
of petitioner in his Answer as well as other documentary evidence, the OP concluded that: (1)
petitioner failed to supervise his subordinates to act with dispatch on the draft resolution of P/S Insp.
Mendoza's motion for reconsideration and thereby caused undue prejudice to P/S Insp. Mendoza by
effectively depriving the latter of the right to challenge the dismissal before the courts and prevent its
immediate execution, and (2) petitioner showed undue interest by having P/S Insp. Mendoza's case
endorsed to the Office of the Ombudsman and resolving the same against P/S Insp. Mendoza on the
basis of the unverified complaint-affidavit of the alleged victim Christian Kalaw.

The invariable rule is that administrative decisions in matters within the executive jurisdiction can
only be set aside on proof of gross abuse of discretion, fraud, or error of law.64 In the instant case,
while the evidence may show some amount of wrongdoing on the part of petitioner, the Court
seriously doubts the correctness of the OP's conclusion that the imputed acts amount to gross
neglect of duty and grave misconduct constitutive of betrayal of public trust. To say that petitioner's
offenses, as they factually appear, weigh heavily enough to constitute betrayal of public trust would
be to ignore the significance of the legislature's intent in prescribing the removal of the Deputy
Ombudsman or the Special Prosecutor for causes that, theretofore, had been reserved only for the
most serious violations that justify the removal by impeachment of the highest officials of the land.

Would every negligent act or misconduct in the performance of a Deputy Ombudsman's duties
constitute betrayal of public trust warranting immediate removal from office? The question calls for a
deeper, circumspective look at the nature of the grounds for the removal of a Deputy Ombudsman
and a Special Prosecutor vis-a-vis common administrative offenses.

Betrayal of public trust is a new ground for impeachment under the 1987 Constitution added to the
existing grounds of culpable violation of the Constitution, treason, bribery, graft and corruption and
other high crimes. While it was deemed broad enough to cover any violation of the oath of
office,65 the impreciseness of its definition also created apprehension that "such an overarching
standard may be too broad and may be subject to abuse and arbitrary exercise by the
legislature."66 Indeed, the catch-all phrase betrayal of public trust that referred to "all acts not
punishable by statutes as penal offenses but, nonetheless, render the officer unfit to continue in
office"67 could be easily utilized for every conceivable misconduct or negligence in office. However,
deliberating on some workable standard by which the ground could be reasonably interpreted, the
Constitutional Commission recognized that human error and good faith precluded an adverse
conclusion.

MR. VILLACORTA: x x x One last matter with respect to the use of the words "betrayal of public
trust" as embodying a ground for impeachment that has been raised by the Honorable Regalado. I
am not a lawyer so I can anticipate the difficulties that a layman may encounter in understanding this
provision and also the possible abuses that the legislature can commit in interpreting this phrase. It
is to be noted that this ground was also suggested in the 1971 Constitutional Convention. A review
of the Journals of that Convention will show that it was not included; it was construed as
encompassing acts which are just short of being criminal but constitute gross faithlessness against
public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross
exercise of discretionary powers. I understand from the earlier discussions that these constitute
violations of the oath of office, and also I heard the Honorable Davide say that even the criminal acts
that were enumerated in the earlier 1973 provision on this matter constitute betrayal of public trust
as well. In order to avoid confusion, would it not be clearer to stick to the wording of Section 2 which
reads: "may be removed from office on impeachment for and conviction of, culpable violation of the
Constitution, treason, bribery, and other high crimes, graft and corruption or VIOLATION OF HIS
OATH OF OFFICE", because if betrayal of public trust encompasses the earlier acts that were
enumerated, then it would behoove us to be equally clear about this last provision or phrase.

MR. NOLLEDO: x x x I think we will miss a golden opportunity if we fail to adopt the words "betrayal
of public trust" in the 1986 Constitution. But I would like him to know that we are amenable to any
possible amendment. Besides, I think plain error of judgment, where circumstances may indicate
that there is good faith, to my mind, will not constitute betrayal of public trust if that statement will
allay the fears of difficulty in interpreting the term."68 (Emphasis supplied)

The Constitutional Commission eventually found it reasonably acceptable for the phrase betrayal of
public trust to refer to "acts which are just short of being criminal but constitute gross faithlessness
against public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross
exercise of discretionary powers."69 In other words, acts that should constitute betrayal of public trust
as to warrant removal from office may be less than criminal but must be attended by bad faith and of
such gravity and seriousness as the other grounds for impeachment.

A Deputy Ombudsman and a Special Prosecutor are not impeachable officers. However, by
providing for their removal from office on the same grounds as removal by impeachment, the
legislature could not have intended to redefine constitutional standards of culpable violation of the
Constitution, treason, bribery, graft and corruption, other high crimes, as well as betrayal of public
trust, and apply them less stringently. Hence, where betrayal of public trust, for purposes of
impeachment, was not intended to cover all kinds of official wrongdoing and plain errors of judgment,
this should remain true even for purposes of removing a Deputy Ombudsman and Special
Prosecutor from office. Hence, the fact that the grounds for impeachment have been made statutory
grounds for the removal by the President of a Deputy Ombudsman and Special Prosecutor cannot
diminish the seriousness of their nature nor the acuity of their scope. Betrayal of public trust could
not suddenly "overreach" to cover acts that are not vicious or malevolent on the same level as the
other grounds for impeachment.

The tragic hostage-taking incident was the result of a confluence of several unfortunate events
including system failure of government response. It cannot be solely attributed then to what
petitioner Gonzales may have negligently failed to do for the quick, fair and complete resolution of
the case, or to his error of judgment in the disposition thereof. Neither should petitioner's official acts
in the resolution of P/S Insp. Mendoza's case be judged based upon the resulting deaths at the
Quirino Grandstand. The failure to immediately act upon a party's requests for an early resolution of
his case is not, by itself, gross neglect of duty amounting to betrayal of public trust. Records show
that petitioner took considerably less time to act upon the draft resolution after the same was
submitted for his appropriate action compared to the length of time that said draft remained pending
and unacted upon in the Office of Ombudsman Merceditas N. Gutierrez. He reviewed and denied
P/S Insp. Mendoza's motion for reconsideration within nine (9) calendar days reckoned from the time
the draft resolution was submitted to him on April 27, 2010 until he forwarded his recommendation to
the Office of Ombudsman Gutierrez on May 6, 2010 for the latter's final action. Clearly, the release
of any final order on the case was no longer in his hands.

Even if there was inordinate delay in the resolution of P/S Insp. Mendoza's motion and an
unexplained failure on petitioner's part to supervise his subordinates in its prompt disposition, the
same cannot be considered a vicious and malevolent act warranting his removal for betrayal of
public trust. More so because the neglect imputed upon petitioner appears to be an isolated case.

Similarly, petitioner's act of directing the PNP-IAS to endorse P/S Insp. Mendoza's case to the
Ombudsman without citing any reason therefor cannot, by itself, be considered a manifestation of his
undue interest in the case that would amount to wrongful or unlawful conduct. After all, taking
cognizance of cases upon the request of concerned agencies or private parties is part and parcel of
the constitutional mandate of the Office of the Ombudsman to be the "champion of the people." The
factual circumstances that the case was turned over to the Office of the Ombudsman upon
petitioner's request; that administrative liability was pronounced against P/S Insp. Mendoza even
without the private complainant verifying the truth of his statements; that the decision was
immediately implemented; or that the motion for reconsideration thereof remained pending for more
than nine months cannot be simply taken as evidence of petitioner's undue interest in the case
considering the lack of evidence of any personal grudge, social ties or business affiliation with any of
the parties to the case that could have impelled him to act as he did. There was likewise no evidence
at all of any bribery that took place, or of any corrupt intention or questionable motivation.

Accordingly, the OP's pronouncement of administrative accountability against petitioner and the
imposition upon him of the corresponding penalty of dismissal must be reversed and set aside, as
the findings of neglect of duty or misconduct in office do not amount to a betrayal of public trust.
Hence, the President, while he may be vested with authority, cannot order the removal of petitioner
as Deputy Ombudsman, there being no intentional wrongdoing of the grave and serious kind
amounting to a betrayal of public trust.

This is not to say, however, that petitioner is relieved of all liability for his acts showing less than
diligent performance of official duties. Although the administrative acts imputed to petitioner fall short
of the constitutional standard of betrayal of public trust, considering the OP's factual findings of
negligence and misconduct against petitioner, the Court deems it appropriate to refer the case to the
Office of the Ombudsman for further investigation of the charges in OP Case No. 10-J-460 and the
imposition of the corresponding administrative sanctions, if any.

Inasmuch as there is as yet no existing ground justifying his removal from office, petitioner is entitled
to reinstatement to his former position as Deputy Ombudsman and to the payment of backwages
and benefits corresponding to the period of his suspension.

The Office of the President is vested

with statutory authority to proceed
administratively against petitioner
Barreras-Sulit to determine the
existence of any of the grounds for
her removal from office as provided
for under the Constitution and the
Ombudsman Act.

Petitioner Barreras-Sulit, on the other hand, has been resisting the President's authority to remove
her from office upon the averment that without the Sandiganbayan's final approval and judgment on
the basis of the PLEBARA, it would be premature to charge her with acts and/or omissions
"tantamount to culpable violations of the Constitution and betrayal of public trust," which are grounds
for removal from office under Section 8, paragraph (2) of the Ombudsman Act of 1989; and which
also constitute a violation of Section 3, paragraph (e) of Republic Act No. 3019 (Anti-Graft and
Corrupt Practices Act) - causing undue injury to the Government or giving any private party any
unwarranted benefits, advantage or preference through manifest partiality, evident bad faith or gross
inexcusable negligence. With reference to the doctrine of prejudicial procedural antecedent,
petitioner Barreras-Sulit asserts that the propriety of taking and continuing to take administrative
disciplinary proceeding against her must depend on the final disposition by the Sandiganbayan of
the PLEBARA, explaining that if the Sandiganbayan would uphold the PLEBARA, there would no
longer be any cause of complaint against her; if not, then the situation becomes ripe for the
determination of her failings.

The argument will not hold water. The incidents that have taken place subsequent to the submission
in court of the PLEBARA shows that the PLEBARA has been practically approved, and that the only
thing which remains to be done by the Sandiganbayan is to promulgate a judgment imposing the
proper sentence on the accused Major General Garcia based on his new pleas to lesser offenses.
On May 4, 2010, the Sandiganbayan issued a resolution declaring that the change of plea under the
PLEBARA was warranted and that it complied with jurisprudential guidelines. The Sandiganbayan,
thereafter, directed the accused Major General Garcia to immediately convey in favor of the State all
the properties, both real and personal, enumerated therein. On August 11, 2010, the Sandiganbayan
issued a resolution, which, in order to put into effect the reversion of Major General Garcia's ill-gotten
properties, ordered the corresponding government agencies to cause the transfer of ownership of
said properties to the Republic of the Philippines. In the meantime, the Office of the Special
Prosecutor (OSP) informed the Sandiganbayan that an Order70 had been issued by the Regional Trial
Court of Manila, Branch 21 on November 5, 2010 allowing the transfer of the accused's frozen
accounts to the Republic of the Philippines pursuant to the terms of the PLEBARA as approved by
the Sandiganbayan. Immediately after the OSP informed the Sandiganbayan that its May 4, 2010
Resolution had been substantially complied with, Major General Garcia manifested71 to the
Sandiganbayan on November 19, 2010 his readiness for sentencing and for the withdrawal of the
criminal information against his wife and two sons. Major General Garcia's Motion to Dismiss,72 dated
December 16, 2010 and filed with the Sandiganbayan, reads:

1.0 The Co-Accused were impleaded under the theory of conspiracy with the Principal Accused
MGen. Carlos F. Garcia (AFP Ret.), (Principal Accused) with the allegation that the act of one is the
act of the others. Therefore, with the approval by the Honorable Court of the Plea Bargaining
Agreement executed by the Principal Accused, the charges against the Co-Accused should likewise
be dismissed since the charges against them are anchored on the same charges against the
Principal Accused.

On December 16, 2010, the Sandiganbayan allowed accused Major General Garcia to plead guilty
to the lesser offenses of direct bribery and violation of Section 4(b), R.A. No. 9160, as amended.
Upon Major General Garcia's motion, and with the express conformity of the OSP, the
Sandiganbayan allowed him to post bail in both cases, each at a measly amount of 30,000.00.

The approval or disapproval of the PLEBARA by the Sandiganbayan is of no consequence to an

administrative finding of liability against petitioner Barreras-Sulit. While the court's determination of
the propriety of a plea bargain is on the basis of the existing prosecution evidence on record, the
disciplinary authority's determination of the prosecutor's administrative liability is based on whether
the plea bargain is consistent with the conscientious consideration of the government's best interest
and the diligent and efficient performance by the prosecution of its public duty to prosecute crimes
against the State. Consequently, the disciplining authority's finding of ineptitude, neglect or
willfulness on the part of the prosecution, more particularly petitioner Special Prosecutor Barreras-
Sulit, in failing to pursue or build a strong case for the government or, in this case, entering into an
agreement which the government finds "grossly disadvantageous," could result in administrative
liability, notwithstanding court approval of the plea bargaining agreement entered into.

Plea bargaining is a process in criminal cases whereby the accused and the prosecution work out a
mutually satisfactory disposition of the case subject to court approval.73 The essence of a plea
bargaining agreement is the allowance of an accused to plead guilty to a lesser offense than that
charged against him. Section 2, Rule 116 of the Revised Rules of Criminal Procedure provides the
procedure therefor, to wit:

SEC. 2. Plea of guilty to a lesser offense. -- At arraignment, the accused, with the consent of the
offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser
offense which is necessarily included in the offense charged. After arraignment but before trial, the
accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not
guilty. No amendment of the complaint or information is necessary. (Sec. 4, Cir. 38-98)

Plea bargaining is allowable when the prosecution does not have sufficient evidence to establish the
guilt of the accused of the crime charged.74 However, if the basis for the allowance of a plea bargain
in this case is the evidence on record, then it is significant to state that in its earlier
Resolution75 promulgated on January 7, 2010, the Sandiganbayan had evaluated the testimonies of
twenty (20) prosecution witnesses and declared that "the conglomeration of evidence presented by
the prosecution is viewed by the Court to be of strong character that militates against the grant of
bail."

Notwithstanding this earlier ruling by the Sandiganbayan, the OSP, unexplainably, chose to plea
bargain with the accused Major General Garcia as if its evidence were suddenly insufficient to
secure a conviction. At this juncture, it is not amiss to emphasize that the "standard of strong
evidence of guilt which is sufficient to deny bail to an accused is markedly higher than the standard
of judicial probable cause which is sufficient to initiate a criminal case."76Hence, in light of the
apparently strong case against accused Major General Garcia, the disciplining authority would be
hard-pressed not to look into the whys and wherefores of the prosecution's turnabout in the case.

The Court need not touch further upon the substantial matters that are the subject of the pending
administrative proceeding against petitioner Barreras-Sulit and are, thus, better left to the complete
and effective resolution of the administrative case before the Office of the President.

The challenge to the constitutionality of Section 8(2) of the Ombudsman Act has, nonetheless, failed
to obtain the necessary votes to invalidate the law, thus, keeping said provision part of the law of the
land. To recall, these cases involve two distinct issues: (a) the constitutionality of Section 8(2) of the
Ombudsman Act; and (b) the validity of the administrative action of removal taken against petitioner
Gonzales. While the Court voted unanimously to reverse the decision of the OP removing petitioner
Gonzales from office, it was equally divided in its opinion on the constitutionality of the assailed
statutory provision in its two deliberations held on April 17, 2012 and September 4, 2012. There
being no majority vote to invalidate the law, the Court, therefore, dismisses the challenge to the
constitutionality of Section 8(2) of the Ombudsman Act in accordance with Section 2(d), Rule 12 of
the Internal Rules of the Court.

Indeed, Section 4(2), Article VIII of the 1987 Constitution requires the vote of the majority of the
Members of the Court actually taking part in the deliberation to sustain any challenge to the
constitutionality or validity of a statute or any of its provisions.

WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in OP Case No. 10-J-
460 isREVERSED and SET ASIDE. Petitioner Emilio A. Gonzales III is ordered REINSTATED with
payment of backwages corresponding to the period of suspension effective immediately, even as the
Office of the Ombudsman is directed to proceed with the investigation in connection with the above
case against petitioner. In G.R. No. 196232, We AFFIRM the continuation of OP-DC Case No. 11-B-
003 against Special Prosecutor Wendell Barreras-Sulit for alleged acts and omissions tantamount to
culpable violation of the Constitution and a betrayal of public trust, in accordance with Section 8(2) of
the Ombudsman Act of 1989.

The challenge to the constitutionality of Section 8(2) of the Ombudsman Act is hereby DENIED.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO ROBERTO A. ABAD

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

JOSE CATRAL MENDOZA BIENVENIDO L. REYES

Associate Justice Associate Justice

CERTIFICATION

I certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court.

Ma. LOURDES P. A. SERENO

Chief Justice

EN BANC
 [G.R. No. 127325. March 19, 1997]

MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA and MARIA

ISABEL ONGPIN, petitioners, vs.COMMISSION ON ELECTIONS,
JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA, in
their capacities as founding members of the Peoples Initiative
for Reforms, Modernization and Action
(PIRMA), respondents, SENATOR RAUL S. ROCO,
DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK),
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD INTEGRITY
AND NATIONALISM, INC. (MABINI), INTEGRATED BAR OF THE
PHILIPPINES (IBP) and LABAN NG DEMOKRATIKONG PILIPINO
(LABAN), petitioners-intervenors.

DECISION
DAVIDE, JR., J.:

The heart of this controversy brought to us by way of a petition for prohibition under
Rule 65 of the Rules of Court is the right of the people to directly propose amendments
to the Constitution through the system of initiative under Section 2 of Article XVII of the
1987 Constitution. Undoubtedly, this demands special attention, as this system of
initiative was unknown to the people of this country, except perhaps to a few scholars,
before the drafting of the 1987 Constitution. The 1986 Constitutional Commission itself,
through the original proponent[1] and the main sponsor[2] of the proposed Article on
Amendments or Revision of the Constitution, characterized this system as
innovative.[3] Indeed it is, for both under the 1935 and 1973 Constitutions, only two
methods of proposing amendments to, or revision of, the Constitution were
recognized, viz., (1) by Congress upon a vote of three-fourths of all its members and (2)
by a constitutional convention.[4] For this and the other reasons hereafter discussed, we
resolved to give due course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public
respondent Commission on Elections (hereafter, COMELEC) a Petition to Amend the
Constitution, to Lift Term Limits of Elective Officials, by Peoples Initiative (hereafter,
Delfin Petition)[5] wherein Delfin asked the COMELEC for an order
1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached Petition for
Initiative on the 1987 Constitution, in newspapers of general and local circulation;
3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist
Petitioners and volunteers, in establishingsigning stations at the time and on the
dates designated for the purpose.
 Delfin alleged in his petition that he is a founding member of the Movement for
Peoples Initiative,[6] a group of citizens desirous to avail of the system intended to
institutionalize people power; that he and the members of the Movement and other
volunteers intend to exercise the power to directly propose amendments to the
Constitution granted under Section 2, Article XVII of the Constitution; that the exercise
of that power shall be conducted in proceedings under the control and supervision of
the COMELEC; that, as required in COMELEC Resolution No. 2300, signature stations
shall be established all over the country, with the assistance of municipal election
registrars, who shall verify the signatures affixed by individual signatories; that before
the Movement and other volunteers can gather signatures, it is necessary that the time
and dates to be designated for the purpose be first fixed in an order to be issued by the
COMELEC; and that to adequately inform the people of the electoral process involved,
it is likewise necessary that the said order, as well as the Petition on which the
signatures shall be affixed, be published in newspapers of general and local circulation,
under the control and supervision of the COMELEC.
The Delfin Petition further alleged that the provisions sought to be amended are
Sections 4 and 7 of Article VI,[7] Section 4 of Article VII,[8] and Section 8 of Article X[9] of
the Constitution. Attached to the petition is a copy of a Petition for Initiative on the 1987
Constitution[10] embodying the proposed amendments which consist in the deletion from
the aforecited sections of the provisions concerning term limits, and with the following
proposition:

DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE

GOVERNMENT OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4
AND 7 OF ARTICLE VI, SECTION 4 OF ARTICLE VII, AND SECTION 8 OF
ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION?

According to Delfin, the said Petition for Initiative will first be submitted to the
people, and after it is signed by at least twelve per cent of the total number of registered
voters in the country it will be formally filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-
037 (INITIATIVE), the COMELEC, through its Chairman, issued an Order[11] (a) directing
Delfin to cause the publication of the petition, together with the attached Petition for
Initiative on the 1987 Constitution (including the proposal, proposed constitutional
amendment, and the signature form), and the notice of hearing in three (3) daily
newspapers of general circulation at his own expense not later than 9 December 1996;
and (b) setting the case for hearing on 12 December 1996 at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following appeared:
Delfin and Atty. Pete Q. Quadra; representatives of the Peoples Initiative for Reforms,
Modernization and Action (PIRMA); intervenor-oppositor Senator Raul S. Roco,
together with his two other lawyers; and representatives of, or counsel for, the
Integrated Bar of the Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon
(DIK), Public Interest Law Center, and Laban ng Demokratikong Pilipino
(LABAN).[12] Senator Roco, on that same day, filed a Motion to Dismiss the Delfin
Petition on the ground that it is not the initiatory petition properly cognizable by the
COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the oppositors to
file their memoranda and/or oppositions/memoranda within five days.[13]
On 18 December 1996, the petitioners herein -- Senator Miriam Defensor Santiago,
Alexander Padilla, and Maria Isabel Ongpin -- filed this special civil action for prohibition
raising the following arguments:

(1) The constitutional provision on peoples initiative to amend the Constitution can
only be implemented by law to be passed by Congress.No such law has been passed;
in fact, Senate Bill No. 1290 entitled An Act Prescribing and Regulating
Constitutional Amendments by Peoples Initiative, which petitioner Senator Santiago
filed on 24 November 1995, is still pending before the Senate Committee on
Constitutional Amendments.

(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely,
initiative on the Constitution, on statutes, and on local legislation. However, it failed
to provide any subtitle on initiative on the Constitution, unlike in the other modes of
initiative, which are specifically provided for in Subtitle II and Subtitle III. This
deliberate omission indicates that the matter of peoples initiative to amend the
Constitution was left to some future law. Former Senator Arturo Tolentino stressed
this deficiency in the law in his privilege speech delivered before the Senate in 1994:
There is not a single word in that law which can be considered as implementing [the
provision on constitutional initiative]. Such implementing provisions have been
obviously left to a separate law.

(3) Republic Act No. 6735 provides for the effectivity of the law after publication in
print media. This indicates that the Act covers only laws and not constitutional
amendments because the latter take effect only upon ratification and not after
publication.

(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern the
conduct of initiative on the Constitution and initiative and referendum on national and
local laws, is ultra vires insofar as initiative on amendments to the Constitution is
concerned, since the COMELEC has no power to provide rules and regulations for the
exercise of the right of initiative to amend the Constitution. Only Congress is
authorized by the Constitution to pass the implementing law.

(5)The peoples initiative is limited to amendments to the Constitution, not

to revision thereof. Extending or lifting of term limits constitutes a revision and is,
therefore, outside the power of the peoples initiative.
(6) Finally, Congress has not yet appropriated funds for peoples initiative; neither the
COMELEC nor any other government department, agency, or office has realigned
funds for the purpose.

To justify their recourse to us via the special civil action for prohibition, the
petitioners allege that in the event the COMELEC grants the Delfin Petition, the peoples
initiative spearheaded by PIRMA would entail expenses to the national treasury for
general re-registration of voters amounting to at least P180 million, not to mention the
millions of additional pesos in expenses which would be incurred in the conduct of the
initiative itself. Hence, the transcendental importance to the public and the nation of the
issues raised demands that this petition for prohibition be settled promptly and
definitely, brushing aside technicalities of procedure and calling for the admission of a
taxpayers and legislators suit.[14] Besides, there is no other plain, speedy, and adequate
remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to comment on the
petition within a non-extendible period of ten days from notice; and (b) issued a
temporary restraining order, effective immediately and continuing until further orders,
enjoining public respondent COMELEC from proceeding with the Delfin Petition, and
private respondents Alberto and Carmen Pedrosa from conducting a signature drive for
peoples initiative to amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their
Comment[15] on the petition. They argue therein that:

1. IT IS NOT TRUE THAT IT WOULD ENTAIL EXPENSES TO THE NATIONAL

TREASURY FOR GENERAL REGISTRATION OF VOTERS AMOUNTING TO
AT LEAST PESOS: ONE HUNDRED EIGHTY MILLION (P180,000,000.00) IF
THE COMELEC GRANTS THE PETITION FILED BY RESPONDENT DELFIN
BEFORE THE COMELEC.

2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL

GOVERNMENT IF THE COMELEC GRANTS THE PETITION OF
RESPONDENT DELFIN. ALL EXPENSES IN THE SIGNATURE GATHERING
ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN AND HIS
VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES
SUBMITTED TO THE COMELEC. THE ESTIMATED COST OF THE DAILY
PER DIEM OF THE SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE
GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN AND HIS
VOLUNTEERS IS P2,571, 200.00;

3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE

SIGNATURE GATHERING WHICH BY LAW COMELEC IS DUTY BOUND TO
SUPERVISE CLOSELY PURSUANT TO ITS INITIATORY JURISDICTION
UPHELD BY THE HONORABLE COURT IN ITS RECENT SEPTEMBER 26,
1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY
VS. COMELEC, ET AL. G.R. NO. 125416;

4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING

LAW IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE
AMENDMENTS TO THE CONSTITUTION. SENATOR DEFENSOR-
SANTIAGOS SENATE BILL NO. 1290 IS A DUPLICATION OF WHAT ARE
ALREADY PROVIDED FOR IN REP. ACT NO. 6735;

5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991

PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT
IN THE RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC
BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416
WHERE THE HONORABLE COURT SAID: THE COMMISSION ON
ELECTIONS CAN DO NO LESS BY SEASONABLY AND JUDICIOUSLY
PROMULGATING GUIDELINES AND RULES FOR BOTH NATIONAL AND
LOCAL USE, IN IMPLEMENTING OF THESE LAWS.

6. EVEN SENATOR DEFENSOR-SANTIAGOS SENATE BILL NO. 1290

CONTAINS A PROVISION DELEGATING TO THE COMELEC THE POWER TO
PROMULGATE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY
TO CARRY OUT THE PURPOSES OF THIS ACT. (SEC. 12, S.B. NO. 1290,
ENCLOSED AS ANNEX E, PETITION);

7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF

ELECTIVE OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS NOT
A REVISION OF THE CONSTITUTION. IT IS ONLY AN
AMENDMENT. AMENDMENT ENVISAGES AN ALTERATION OF ONE OR A
FEW SPECIFIC PROVISIONS OF THE CONSTITUTION. REVISION
CONTEMPLATES A RE-EXAMINATION OF THE ENTIRE DOCUMENT TO
DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED. (PP.
412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G.
BERNAS, S.J.).

Also on 2 January 1997, private respondent Delfin filed in his own behalf a
Comment[16] which starts off with an assertion that the instant petition is a knee-jerk
reaction to a draft Petition for Initiative on the 1987 Constitution ... which is not formally
filed yet. What he filed on 6 December 1996 was an Initiatory Pleading or Initiatory
Petition, which was legally necessary to start the signature campaign to amend the
Constitution or to put the movement to gather signatures under COMELEC power and
function. On the substantive allegations of the petitioners, Delfin maintains as follows:
(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which
governs the conduct of initiative to amend the Constitution. The absence therein of a
subtitle for such initiative is not fatal, since subtitles are not requirements for the
validity or sufficiency of laws.

(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in
an initiative to amend the Constitution approved by the majority of the votes cast in
the plebiscite shall become effective as of the day of the plebiscite.

(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by
(a) Section 2, Article IX-C of the Constitution, which grants the COMELEC the
power to enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A.
6735, which empowers the COMELEC to promulgate such rules and regulations as
may be necessary to carry out the purposes of the Act.

(4) The proposed initiative does not involve a revision of, but mere amendment to, the
Constitution because it seeks to alter only a few specific provisions of the
Constitution, or more specifically, only those which lay term limits. It does not seek to
reexamine or overhaul the entire document.

As to the public expenditures for registration of voters, Delfin considers petitioners

estimate of P180 million as unreliable, for only the COMELEC can give the exact
figure. Besides, if there will be a plebiscite it will be simultaneous with the 1997
Barangay Elections. In any event, fund requirements for initiative will be a priority
government expense because it will be for the exercise of the sovereign power of the
people.
In the Comment[17] for the public respondent COMELEC, filed also on 2 January
1997, the Office of the Solicitor General contends that:

(1) R.A. No. 6735 deals with, inter alia, peoples initiative to amend the
Constitution. Its Section 2 on Statement of Policy explicitly affirms, recognizes, and
guarantees that power; and its Section 3, which enumerates the three systems
of initiative, includes initiative on the Constitution and defines the same as the power
to propose amendments to the Constitution. Likewise, its Section 5 repeatedly
mentions initiative on the Constitution.

(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No.
6735 because, being national in scope, that system ofinitiative is deemed included in
the subtitle on National Initiative and Referendum; and Senator Tolentino simply
overlooked pertinent provisions of the law when he claimed that nothing therein was
provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No.
6735 does not deal with initiative on the Constitution.

(4) Extension of term limits of elected officials constitutes a mere amendment to the
Constitution, not a revision thereof.

(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No.
6735 and under the Omnibus Election Code. The rule-making power of the
COMELEC to implement the provisions of R.A. No. 6735 was in fact upheld by this
Court in Subic Bay Metropolitan Authority vs. COMELEC .

On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary
restraining order; (b) noted the aforementioned Comments and the Motion to Lift
Temporary Restraining Order filed by private respondents through Atty. Quadra, as well
as the latters Manifestation stating that he is the counsel for private respondents Alberto
and Carmen Pedrosa only and the Comment he filed was for the Pedrosas; and (c)
granted the Motion for Intervention filed on 6 January 1997 by Senator Raul Roco and
allowed him to file his Petition in Intervention not later than 20 January 1997; and (d) set
the case for hearing on 23 January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the
Movement of Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a
Motion for Intervention. Attached to the motion was their Petition in Intervention, which
was later replaced by an Amended Petition in Intervention wherein they contend that:

(1) The Delfin proposal does not involve a mere amendment to, but a revision of, the
Constitution because, in the words of Fr. Joaquin Bernas, S.J., it would involve a
[18]

change from a political philosophy that rejects unlimited tenure to one that accepts
unlimited tenure; and although the change might appear to be an isolated one, it can
affect other provisions, such as, on synchronization of elections and on the State
policy of guaranteeing equal access to opportunities for public service and prohibiting
political dynasties. A revision cannot be done by initiative which, by express
[19]

provision of Section 2 of Article XVII of the Constitution, is limited to amendments.

(2) The prohibition against reelection of the President and the limits provided for all
other national and local elective officials are based on the philosophy of governance,
to open up the political arena to as many as there are Filipinos qualified to handle the
demands of leadership, to break the concentration of political and economic powers in
the hands of a few, and to promote effective proper empowerment for participation in
policy and decision-making for the common good; hence, to remove the term limits is
to negate and nullify the noble vision of the 1987 Constitution.

(3) The Delfin proposal runs counter to the purpose of initiative, particularly in a
conflict-of-interest situation. Initiative is intended as a fallback position that may be
availed of by the people only if they are dissatisfied with the performance of their
elective officials, but not as a premium for good performance. [20]

(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law
that implements the peoples initiative on amendments to the Constitution. It fails to
state (a) the proper parties who may file the petition, (b) the appropriate agency before
whom the petition is to be filed, (c) the contents of the petition, (d) the publication of
the same, (e) the ways and means of gathering the signatures of the voters nationwide
and 3% per legislative district, (f) the proper parties who may oppose or question the
veracity of the signatures, (g) the role of the COMELEC in the verification of the
signatures and the sufficiency of the petition, (h) the appeal from any decision of the
COMELEC, (I) the holding of a plebiscite, and (g) the appropriation of funds for such
peoples initiative. Accordingly, there being no enabling law, the COMELEC has no
jurisdiction to hear Delfins petition.

(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC
Resolution No. 2300, since the COMELEC is without authority to legislate the
procedure for a peoples initiative under Section 2 of Article XVII of the
Constitution. That function exclusively pertains to Congress. Section 20 of R.A. No.
6735 does not constitute a legal basis for the Resolution, as the former does not set a
sufficient standard for a valid delegation of power.

On 20 January 1997, Senator Raul Roco filed his Petition in Intervention.[21] He avers
that R.A. No. 6735 is the enabling law that implements the peoples right to initiate
constitutional amendments. This law is a consolidation of Senate Bill No. 17 and House
Bill No. 21505; he co-authored the House Bill and even delivered a sponsorship speech
thereon. He likewise submits that the COMELEC was empowered under Section 20 of
that law to promulgate COMELEC Resolution No. 2300. Nevertheless, he contends that
the respondent Commission is without jurisdiction to take cognizance of the Delfin
Petition and to order its publication because the said petition is not the initiatory
pleading contemplated under the Constitution, Republic Act No. 6735, and COMELEC
Resolution No. 2300. What vests jurisdiction upon the COMELEC in an initiative on the
Constitution is the filing of a petition for initiative which is signed by the required number
of registered voters. He also submits that the proponents of a constitutional amendment
cannot avail of the authority and resources of the COMELEC to assist them is securing
the required number of signatures, as the COMELECs role in an initiative on the
Constitution is limited to the determination of the sufficiency of the initiative petition and
the call and supervision of a plebiscite, if warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it attached a
Petition in Intervention raising the following arguments:
(1) Congress has failed to enact an enabling law mandated under Section 2, Article
XVII of the 1987 Constitution.

(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing
law on the initiative to amend the Constitution.

(3) The Petition for Initiative suffers from a fatal defect in that it does not have the
required number of signatures.

(4) The petition seeks, in effect a revision of the Constitution, which can be proposed
only by Congress or a constitutional convention. [22]

On 21 January 1997, we promulgated a Resolution (a) granting the Motions for

Intervention filed by the DIK and MABINI and by the IBP, as well as the Motion for
Leave to Intervene filed by LABAN; (b) admitting the Amended Petition in Intervention of
DIK and MABINI, and the Petitions in Intervention of Senator Roco and of the IBP; (c)
requiring the respondents to file within a nonextendible period of five days their
Consolidated Comments on the aforesaid Petitions in Intervention; and (d) requiring
LABAN to file its Petition in Intervention within a nonextendible period of three days from
notice, and the respondents to comment thereon within a nonextendible period of five
days from receipt of the said Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the following
pivotal issues, which the Court formulated in light of the allegations and arguments
raised in the pleadings so far filed:

1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and
Referendum and Appropriating Funds Therefor, was intended to include or
cover initiative on amendments to the Constitution; and if so, whether the Act, as
worded, adequately covers such initiative.

2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and
Regulations Governing the Conduct of Initiative on the Constitution, and Initiative
and Referendum on National and Local Laws) regarding the conduct of initiative on
amendments to the Constitution is valid, considering the absence in the law of specific
provisions on the conduct of such initiative.

3. Whether the lifting of term limits of elective national and local officials, as
proposed in the draft Petition for Initiative on the 1987 Constitution, would constitute
a revision of, or an amendment to, the Constitution.

4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition
solely intended to obtain an order (a) fixing the time and dates for signature gathering;
(b) instructing municipal election officers to assist Delfin's movement and volunteers
in establishing signature stations; and (c) directing or causing the publication of, inter
alia, the unsigned proposed Petition for Initiative on the 1987 Constitution.

5. Whether it is proper for the Supreme Court to take cognizance of the petition when
there is a pending case before the COMELEC.

After hearing them on the issues, we required the parties to submit simultaneously
their respective memoranda within twenty days and requested intervenor Senator Roco
to submit copies of the deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the
allegations and arguments in the main Petition. It further submits that the COMELEC
should have dismissed the Delfin Petition for failure to state a sufficient cause of action
and that the Commissions failure or refusal to do so constituted grave abuse of
discretion amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the Journal
and the Record of the House of Representatives relating to the deliberations of House
Bill No. 21505, as well as the transcripts of stenographic notes on the proceedings of
the Bicameral Conference Committee, Committee on Suffrage and Electoral Reforms,
of 6 June 1989 on House Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated
Comments on the Petitions in Intervention of Senator Roco, DIK and MABINI, and
IBP.[23] The parties thereafter filed, in due time, their separate memoranda.[24]
As we stated in the beginning, we resolved to give due course to this special civil
action.
For a more logical discussion of the formulated issues, we shall first take up the fifth
issue which appears to pose a prejudicial procedural question.
I

THE INSTANT PETITION IS VIABLE DESPITE THE

PENDENCY IN THE COMELEC OF THE DELFIN
PETITION.

Except for the petitioners and intervenor Roco, the parties paid no serious attention
to the fifth issue, i.e., whether it is proper for this Court to take cognizance of this special
civil action when there is a pending case before the COMELEC. The petitioners provide
an affirmative answer. Thus:

28. The Comelec has no jurisdiction to take cognizance of the petition filed by private
respondent Delfin. This being so, it becomes imperative to stop the Comelec from
proceeding any further, and under the Rules of Court, Rule 65, Section 2, a petition
for prohibition is the proper remedy.
29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of
superior jurisdiction and directed to an inferior court, for the purpose of preventing the
inferior tribunal from usurping a jurisdiction with which it is not legally vested.
(People v. Vera, supra., p. 84). In this case the writ is an urgent necessity, in view of
the highly divisive and adverse environmental consequences on the body politic of the
questioned Comelec order. The consequent climate of legal confusion and political
instability begs for judicial statesmanship.

30. In the final analysis, when the system of constitutional law is threatened by the
political ambitions of man, only the Supreme Court can save a nation in peril and
uphold the paramount majesty of the Constitution. [25]

It must be recalled that intervenor Roco filed with the COMELEC a motion to
dismiss the Delfin Petition on the ground that the COMELEC has no jurisdiction or
authority to entertain the petition.[26] The COMELEC made no ruling thereon evidently
because after having heard the arguments of Delfin and the oppositors at the hearing
on 12 December 1996, it required them to submit within five days their memoranda or
oppositions/memoranda.[27] Earlier, or specifically on 6 December 1996, it practically
gave due course to the Delfin Petition by ordering Delfin to cause the publication of the
petition, together with the attached Petition for Initiative, the signature form, and the
notice of hearing; and by setting the case for hearing. The COMELECs failure to act on
Rocos motion to dismiss and its insistence to hold on to the petition rendered ripe and
viable the instant petition under Section 2 of Rule 65 of the Rules of Court, which
provides:

SEC. 2. Petition for prohibition. -- Where the proceedings of any tribunal,

corporation, board, or person, whether exercising functions judicial or ministerial, are
without or in excess of its or his jurisdiction, or with grave abuse of discretion, and
there is no appeal or any other 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
commanding the defendant to desist from further proceedings in the action or matter
specified therein.

It must also be noted that intervenor Roco claims that the COMELEC has no
jurisdiction over the Delfin Petition because the said petition is not supported by the
required minimum number of signatures of registered voters. LABAN also asserts that
the COMELEC gravely abused its discretion in refusing to dismiss the Delfin Petition,
which does not contain the required number of signatures. In light of these claims, the
instant case may likewise be treated as a special civil action for certiorariunder Section I
of Rule 65 of the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his Memorandum, this
Court may brush aside technicalities of procedure in cases of transcendental
importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr.:[28]
A partys standing before this Court is a procedural technicality which it may, in the
exercise of its discretion, set aside in view of the importance of issues raised. In the
landmark Emergency Powers Cases, this Court brushed aside this technicality because
the transcendental importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside, if we must, technicalities of procedure.

II

R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM

OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, BUT IS, UNFORTUNATELY,
INADEQUATE TO COVER THAT SYSTEM.

Section 2 of Article XVII of the Constitution provides:

SEC. 2. Amendments to this Constitution may likewise be directly proposed by the

people through initiative upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district must be represented by
at least three per centum of the registered voters therein. No amendment under this
section shall be authorized within five years following the ratification of this
Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

This provision is not self-executory. In his book,[29] Joaquin Bernas, a member of the
1986 Constitutional Commission, stated:

Without implementing legislation Section 2 cannot operate. Thus, although this mode
of amending the Constitution is a mode of amendment which bypasses congressional
action, in the last analysis it still is dependent on congressional action.

Bluntly stated, the right of the people to directly propose amendments to the
Constitution through the system of initiative would remain entombed in the cold niche of
the Constitution until Congress provides for its implementation. Stated otherwise, while
the Constitution has recognized or granted that right, the people cannot exercise it if
Congress, for whatever reason, does not provide for its implementation.
This system of initiative was originally included in Section 1 of the draft Article on
Amendment or Revision proposed by the Committee on Amendments and Transitory
Provisions of the 1986 Constitutional Commission in its Committee Report No. 7
(Proposed Resolution No. 332).[30] That section reads as follows:

SECTION 1. Any amendment to, or revision of, this Constitution may be proposed:
(a) by the National Assembly upon a vote of three-fourths of all its members; or

(b) by a constitutional convention; or

(c) directly by the people themselves thru initiative as provided for in Article ____
Section ____ of the Constitution. [31]

After several interpellations, but before the period of amendments, the Committee
submitted a new formulation of the concept of initiative which it denominated as Section
2; thus:

MR. SUAREZ. Thank you, Madam President. May we respectfully call attention of
the Members of the Commission that pursuant to the mandate given to us last night,
we submitted this afternoon a complete Committee Report No. 7 which embodies the
proposed provision governing the matter of initiative. This is now covered by Section
2 of the complete committee report. With the permission of the Members, may I quote
Section 2:

The people may, after five years from the date of the last plebiscite held, directly
propose amendments to this Constitution thru initiative upon petition of at least ten
percent of the registered voters.

This completes the blanks appearing in the original Committee Report No. 7. [32]

The interpellations on Section 2 showed that the details for carrying out Section
2 are left to the legislature. Thus:

FR. BERNAS. Madam President, just two simple, clarificatory questions.

First, on Section 1 on the matter of initiative upon petition of at least 10 percent, there
are no details in the provision on how to carry this out. Do we understand, therefore,
that we are leaving this matter to the legislature?

MR. SUAREZ. That is right, Madam President.

FR. BERNAS. And do we also understand, therefore, that for as long as the legislature
does not pass the necessary implementing law on this, this will not operate?

MR. SUAREZ. That matter was also taken up during the committee hearing,
especially with respect to the budget appropriations which would have to be legislated
so that the plebiscite could be called. We deemed it best that this matter be left to the
legislature. The Gentleman is right. In any event, as envisioned, no amendment
through the power of initiative can be called until after five years from the date of the
ratification of this Constitution. Therefore, the first amendment that could be proposed
through the exercise of this initiative power would be after five years. It is reasonably
expected that within that five-year period, the National Assembly can come up with
the appropriate rules governing the exercise of this power.

FR. BERNAS. Since the matter is left to the legislature - the details on how this is to
be carried out - is it possible that, in effect, what will be presented to the people for
ratification is the work of the legislature rather than of the people? Does this provision
exclude that possibility?

MR. SUAREZ. No, it does not exclude that possibility because even the legislature
itself as a body could propose that amendment, maybe individually or collectively, if
it fails to muster the three-fourths vote in order to constitute itself as a constituent
assembly and submit that proposal to the people for ratification through the process of
an initiative.

xxx

MS. AQUINO. Do I understand from the sponsor that the intention in the proposal is
to vest constituent power in the people to amend the Constitution?

MR. SUAREZ. That is absolutely correct, Madam President.

MS. AQUINO. I fully concur with the underlying precept of the proposal in terms of
institutionalizing popular participation in the drafting of the Constitution or in the
amendment thereof, but I would have a lot of difficulties in terms of accepting the
draft of Section 2, as written.Would the sponsor agree with me that in the hierarchy of
legal mandate, constituent power has primacy over all other legal mandates?

MR. SUAREZ. The Commissioner is right, Madam President.

MS. AQUINO. And would the sponsor agree with me that in the hierarchy of legal
values, the Constitution is source of all legal mandates and that therefore we require a
great deal of circumspection in the drafting and in the amendments of the
Constitution?

MR. SUAREZ. That proposition is nondebatable.

MS. AQUINO. Such that in order to underscore the primacy of constituent power we
have a separate article in the constitution that would specifically cover the process and
the modes of amending the Constitution?
MR. SUAREZ. That is right, Madam President.

MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted
now, to again concede to the legislature the process or the requirement of determining
the mechanics of amending the Constitution by people's initiative?

MR. SUAREZ. The matter of implementing this could very well be placed in the
hands of the National Assembly, not unless we can incorporate into this provision the
mechanics that would adequately cover all the conceivable situations. [33]

It was made clear during the interpellations that the aforementioned Section 2 is
limited to proposals to AMEND -- not to REVISE -- the Constitution; thus:

MR. SUAREZ. ... This proposal was suggested on the theory that this matter of
initiative, which came about because of the extraordinary developments this year, has
to be separated from the traditional modes of amending the Constitution as embodied
in Section 1. The committee members felt that this system of initiative should not
extend to the revision of the entire Constitution, so we removed it from the operation
of Section 1 of the proposed Article on Amendment or Revision. [34]

xxx

MS. AQUINO. In which case, I am seriously bothered by providing this process of

initiative as a separate section in the Article on Amendment. Would the sponsor be
amenable to accepting an amendment in terms of realigning Section 2 as another
subparagraph (c) of Section 1, instead of setting it up as another separate section as if
it were a self-executing provision?

MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this
process of initiative is limited to the matter of amendment and should not expand into
a revision which contemplates a total overhaul of the Constitution. That was the sense
that was conveyed by the Committee.

MS. AQUINO. In other words, the Committee was attempting to distinguish the
coverage of modes (a) and (b) in Section 1 to include the process of revision; whereas
the process of initiation to amend, which is given to the public, would only apply to
amendments?

MR. SUAREZ.That is right. Those were the terms envisioned in the Committee. [35]

Amendments to the proposed Section 2 were thereafter introduced by then

Commissioner Hilario G. Davide, Jr., which the Committee accepted. Thus:
MR. DAVIDE. Thank you Madam President. I propose to substitute the entire Section
2 with the following:

xxx

MR. DAVIDE. Madam President, I have modified the proposed amendment after
taking into account the modifications submitted by the sponsor himself and the
honorable Commissioners Guingona, Monsod, Rama, Ople, de los Reyes and
Romulo. The modified amendment in substitution of the proposed Section 2 will now
read as follows: "SECTION 2. -- AMENDMENTS TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH
INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE
TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY
LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE
PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT
UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS
FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER
THAN ONCE EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE

IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.

MR. SUAREZ. Madam President, considering that the proposed amendment is

reflective of the sense contained in Section 2 of our completed Committee Report No.
7, we accept the proposed amendment. [36]

The interpellations which ensued on the proposed modified amendment to Section

2 clearly showed that it was a legislative act which must implement the exercise of the
right. Thus:

MR. ROMULO. Under Commissioner Davide's amendment, is it possible for the

legislature to set forth certain procedures to carry out the initiative...?

MR. DAVIDE. It can.

xxx

MR. ROMULO. But the Commissioners amendment does not prevent the legislature
from asking another body to set the proposition in proper form.

MR. DAVIDE. The Commissioner is correct. In other words, the implementation of

this particular right would be subject to legislation, provided the legislature
cannot determine anymore the percentage of the requirement.
MR. ROMULO. But the procedures, including the determination of the proper form
for submission to the people, may be subject to legislation.

MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other
words, none of the procedures to be proposed by the legislative body must diminish or
impair the right conceded here.

MR. ROMULO. In that provision of the Constitution can the procedures which I have
discussed be legislated?

MR. DAVIDE. Yes. [37]

Commissioner Davide also reaffirmed that his modified amendment strictly

confines initiative to AMENDMENTS to -- NOT REVISION of -- the Constitution. Thus:

MR. DAVIDE. With pleasure, Madam President.

MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment

on line 1 refers to "amendment." Does it not cover the word "revision" as defined by
Commissioner Padilla when he made the distinction between the words
"amendments" and "revision"?

MR. DAVIDE. No, it does not, because "amendments" and "revision" should be
covered by Section 1. So insofar as initiative is concerned, it can only relate to
"amendments" not "revision." [38]

Commissioner Davide further emphasized that the process of proposing

amendments through initiative must be more rigorous and difficult than the initiative on
legislation. Thus:

MR. DAVIDE. A distinction has to be made that under this proposal, what is involved
is an amendment to the Constitution. To amend a Constitution would ordinarily
require a proposal by the National Assembly by a vote of three-fourths; and to call a
constitutional convention would require a higher number. Moreover, just to submit the
issue of calling a constitutional convention, a majority of the National Assembly is
required, the import being that the process of amendment must be made more rigorous
and difficult than probably initiating an ordinary legislation or putting an end to a law
proposed by the National Assembly by way of a referendum. I cannot agree to
reducing the requirement approved by the Committee on the Legislative because it
would require another voting by the Committee, and the voting as precisely based on
a requirement of 10 percent. Perhaps, I might present such a proposal, by way of an
amendment, when the Commission shall take up the Article on the Legislative or on
the National Assembly on plenary sessions. [39]
 The Davide modified amendments to Section 2 were subjected to amendments, and
the final version, which the Commission approved by a vote of 31 in favor and 3 against,
reads as follows:

MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads as

follows: "AMENDMENT TO THIS CONSTITUTION MAY LIKEWISE BE
DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A
PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF
REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST
BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED
VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE
AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF
THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS
THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE

IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. [40]

The entire proposed Article on Amendments or Revisions was approved on second

reading on 9 July 1986.[41] Thereafter, upon his motion for reconsideration,
Commissioner Gascon was allowed to introduce an amendment to Section 2 which,
nevertheless, was withdrawn. In view thereof, the Article was again approved
on Second and Third Readings on 1 August 1986.[42]
However, the Committee on Style recommended that the approved Section 2 be
amended by changing percent to per centum and thereof to therein and deleting the
phrase by law in the second paragraph so that said paragraph reads: The
Congress[43] shall provide for the implementation of the exercise of this right.[44] This
amendment was approved and is the text of the present second paragraph of Section 2.
The conclusion then is inevitable that, indeed, the system of initiative on the
Constitution under Section 2 of Article XVII of the Constitution is not self-executory.
Has Congress provided for the implementation of the exercise of this right? Those
who answer the question in the affirmative, like the private respondents and intervenor
Senator Roco, point to us R.A. No. 6735.
There is, of course, no other better way for Congress to implement the exercise of
the right than through the passage of a statute or legislative act. This is the essence or
rationale of the last minute amendment by the Constitutional Commission to substitute
the last paragraph of Section 2 of Article XVII then reading:

The Congress[45] shall by law provide for the implementation of the exercise of this right.

with

The Congress shall provide for the implementation of the exercise of this right.
 This substitute amendment was an investiture on Congress of a power to provide
for the rules implementing the exercise of the right. The rules means the details on how
[the right] is to be carried out.[46]
We agree that R.A. No. 6735 was, as its history reveals, intended to
cover initiative to propose amendments to the Constitution. The Act is a consolidation of
House Bill No. 21505 and Senate Bill No. 17. The former was prepared by the
Committee on Suffrage and Electoral Reforms of the House of Representatives on the
basis of two House Bills referred to it, viz., (a) House Bill No. 497,[47] which dealt with the
initiative and referendum mentioned in Sections 1 and 32 of Article VI of the
Constitution; and (b) House Bill No. 988,[48] which dealt with the subject matter of House
Bill No. 497, as well as with initiative and referendum under Section 3 of Article X (Local
Government) and initiative provided for in Section 2 of Article XVII of the
Constitution. Senate Bill No. 17[49] solely dealt with initiative and referendum concerning
ordinances or resolutions of local government units. The Bicameral Conference
Committee consolidated Senate Bill No. 17 and House Bill No. 21505 into a draft bill,
which was subsequently approved on 8 June 1989 by the Senate [50] and by the House of
Representatives.[51] This approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of Congress to
provide for the implementation of the exercise of the right?
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act
does not suggest an initiative on amendments to the Constitution. The said section
reads:

SECTION 2. Statement and Policy. -- The power of the people under a system of
initiative and referendum to directly propose, enact, approve or reject, in whole or in
part, the Constitution, laws, ordinances, or resolutions passed by any legislative
body upon compliance with the requirements of this Act is hereby affirmed,
recognized and guaranteed. (Underscoring supplied).

The inclusion of the word Constitution therein was a delayed afterthought. That word is
neither germane nor relevant to said section, which exclusively relates to initiative and
referendum on national laws and local laws, ordinances, and resolutions.That section is
silent as to amendments on the Constitution. As pointed out earlier, initiative on the
Constitution is confined only to proposals to AMEND. The people are not accorded the
power to directly propose, enact, approve, or reject, in whole or in part, the Constitution
through the system of initiative. They can only do so with respect to laws, ordinances, or
resolutions.
The foregoing conclusion is further buttressed by the fact that this section was lifted
from Section 1 of Senate Bill No. 17, which solely referred to a statement of policy on
local initiative and referendum and appropriately used the phrases propose and enact,
approve or reject and in whole or in part.[52]
 Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on
amendments to the Constitution and mentions it as one of the three systems
of initiative, and that Section 5 (Requirements) restates the constitutional requirements
as to the percentage of the registered voters who must submit the proposal. But unlike
in the case of the other systems of initiative, the Act does not provide for the contents of
a petition for initiative on the Constitution. Section 5, paragraph (c) requires, among
other things, statement of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be. It does not include, as among the contents
of the petition, the provisions of the Constitution sought to be amended, in the case of
initiative on the Constitution. Said paragraph (c) reads in full as follows:

(c) The petition shall state the following:

c.1 contents or text of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be;

c.2 the proposition;

c.3 the reason or reasons therefor;

c.4 that it is not one of the exceptions provided therein;

c.5 signatures of the petitioners or registered voters; and

c.6 an abstract or summary proposition is not more than one hundred (100) words
which shall be legibly written or printed at the top of every page of the petition.
(Underscoring supplied).

The use of the clause proposed laws sought to be enacted, approved or rejected,
amended or repealed only strengthens the conclusion that Section 2, quoted earlier,
excludes initiative on amendments to the Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum
(Subtitle II) and for Local Initiative and Referendum (Subtitle III), no subtitle is provided
for initiative on the Constitution. This conspicuous silence as to the latter simply means
that the main thrust of the Act is initiative and referendum on national and local laws. If
Congress intended R.A. No. 6735 to fully provide for the implementation of
the initiative on amendments to the Constitution, it could have provided for a subtitle
therefor, considering that in the order of things, the primacy of interest, or hierarchy of
values, the right of the people to directly propose amendments to the Constitution is far
more important than the initiative on national and local laws.
We cannot accept the argument that the initiative on amendments to the
Constitution is subsumed under the subtitle on National Initiative and Referendum
because it is national in scope. Our reading of Subtitle II (National Initiative and
Referendum) and Subtitle III (Local Initiative and Referendum) leaves no room for doubt
that the classification is not based on the scope of the initiative involved, but on
its nature and character. It is national initiative, if what is proposed to be adopted or
enacted is a national law, or a law which only Congress can pass. It is local initiative if
what is proposed to be adopted or enacted is a law, ordinance, or resolution which only
the legislative bodies of the governments of the autonomous regions, provinces, cities,
municipalities, and barangays can pass. This classification of initiative
into national and local is actually based on Section 3 of the Act, which we quote for
emphasis and clearer understanding:

SEC. 3. Definition of terms --

xxx

There are three (3) systems of initiative, namely:

a.1 Initiative on the Constitution which refers to a petition proposing amendments to

the Constitution;

a.2 Initiative on Statutes which refers to a petition proposing to enact a national

legislation; and

a.3 Initiative on local legislation which refers to a petition proposing to enact a

regional, provincial, city, municipal, or barangay law, resolution or ordinance.
(Underscoring supplied).

Hence, to complete the classification under subtitles there should have been a
subtitle on initiative on amendments to the Constitution.[53]
A further examination of the Act even reveals that the subtitling is
not accurate. Provisions not germane to the subtitle on National Initiative and
Referendum are placed therein, like (1) paragraphs (b) and (c) of Section 9, which
reads:

(b) The proposition in an initiative on the Constitution approved by the majority of the
votes cast in the plebiscite shall become effective as to the day of the plebiscite.

(c) A national or local initiative proposition approved by majority of the votes cast in
an election called for the purpose shall become effective fifteen (15) days after
certification and proclamation of the Commission. (Underscoring supplied).

(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the
legislative bodies of local governments; thus:
SEC. 11. Indirect Initiative. -- Any duly accredited peoples organization, as defined
by law, may file a petition for indirect initiative with the House of Representatives,
and other legislative bodies....

and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the
findings of sufficiency or insufficiency of the petition for initiative or referendum, which
could be petitions for both national and local initiative and referendum.
Upon the other hand, Section 18 on Authority of Courts under subtitle III on Local
Initiative and Referendum is misplaced,[54] since the provision therein applies to both
national and local initiative and referendum. It reads:

SEC. 18. Authority of Courts. -- Nothing in this Act shall prevent or preclude the
proper courts from declaring null and void any proposition approved pursuant to this
Act for violation of the Constitution or want of capacity of the local legislative body
to enact the said measure.

Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing
for the details in the implementation of initiative and referendum on national and local
legislation thereby giving them special attention, it failed, rather intentionally, to do so on
the system of initiative on amendments to the Constitution. Anent the initiative on
national legislation, the Act provides for the following:

(a) The required percentage of registered voters to sign the petition and the contents of
the petition;

(b) The conduct and date of the initiative;

(c) The submission to the electorate of the proposition and the required number of
votes for its approval;

(d) The certification by the COMELEC of the approval of the proposition;

(e) The publication of the approved proposition in the Official Gazette or in a

newspaper of general circulation in the Philippines; and

(f) The effects of the approval or rejection of the proposition. [55]

As regards local initiative, the Act provides for the following:

(a) The preliminary requirement as to the number of signatures of registered voters for
the petition;

(b) The submission of the petition to the local legislative body concerned;
(c) The effect of the legislative bodys failure to favorably act thereon, and the
invocation of the power of initiative as a consequence thereof;

(d) The formulation of the proposition;

(e) The period within which to gather the signatures;

(f) The persons before whom the petition shall be signed;

(g) The issuance of a certification by the COMELEC through its official in the local
government unit concerned as to whether the required number of signatures have been
obtained;

(h) The setting of a date by the COMELEC for the submission of the proposition to
the registered voters for their approval, which must be within the period specified
therein;

(i) The issuance of a certification of the result;

(j) The date of effectivity of the approved proposition;

(k) The limitations on local initiative; and

(l) The limitations upon local legislative bodies. [56]

Upon the other hand, as to initiative on amendments to the Constitution, R.A. No.
6735, in all of its twenty-three sections, merely (a) mentions, the word Constitution in
Section 2; (b) defines initiative on the Constitution and includes it in the enumeration of
the three systems of initiative in Section 3; (c) speaks of plebiscite as the process by
which the proposition in an initiative on the Constitution may be approved or rejected by
the people; (d) reiterates the constitutional requirements as to the number of voters who
should sign the petition; and (e) provides for the date of effectivity of the approved
proposition.
There was, therefore, an obvious downgrading of the more important or the
paramount system of initiative. R.A. No. 6735 thus delivered a humiliating blow to the
system of initiative on amendments to the Constitution by merely paying it a reluctant lip
service.[57]
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete,
inadequate, or wanting in essential terms and conditions insofar as initiative on
amendments to the Constitution is concerned. Its lacunae on this substantive matter are
fatal and cannot be cured by empowering the COMELEC to promulgate such rules and
regulations as may be necessary to carry out the purposes of [the] Act. [58]
 The rule is that what has been delegated, cannot be delegated or as expressed in a
Latin maxim: potestas delegata non delegari potest.[59] The recognized exceptions to the
rule are as follows:

(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of
the Constitution;

(2) Delegation of emergency powers to the President under Section 23(2) of Article
VI of the Constitution;

(3) Delegation to the people at large;

(4) Delegation to local governments; and

(5) Delegation to administrative bodies. [60]

Empowering the COMELEC, an administrative body exercising quasi-judicial

functions, to promulgate rules and regulations is a form of delegation of legislative
authority under no. 5 above. However, in every case of permissible delegation, there
must be a showing that the delegation itself is valid. It is valid only if the law (a) is
complete in itself, setting forth therein the policy to be executed, carried out, or
implemented by the delegate; and (b) fixes a standard -- the limits of which are
sufficiently determinate and determinable -- to which the delegate must conform in the
performance of his functions.[61] A sufficient standard is one which defines legislative
policy, marks its limits, maps out its boundaries and specifies the public agency to apply
it. It indicates the circumstances under which the legislative command is to be
effected.[62]
Insofar as initiative to propose amendments to the Constitution is concerned, R.A.
No. 6735 miserably failed to satisfy both requirements in subordinate legislation. The
delegation of the power to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND
REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and
regulations to implement the exercise of the right of the people to directly propose
amendments to the Constitution through the system of initiative. It does not have that
power under R.A. No. 6735. Reliance on the COMELECs power under Section 2(1) of
Article IX-C of the Constitution is misplaced, for the laws and regulations referred to
therein are those promulgated by the COMELEC under (a) Section 3 of Article IX-C of
the Constitution, or (b) a law where subordinate legislation is authorized and which
satisfies the completeness and the sufficient standard tests.
IV
 COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION IN ENTERTAINING THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the
power of Congress to implement the right to initiate constitutional amendments, or that it
has validly vested upon the COMELEC the power of subordinate legislation and that
COMELEC Resolution No. 2300 is valid, the COMELEC acted without jurisdiction or
with grave abuse of discretion in entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No.
6735, a petition for initiative on the Constitution must be signed by at least 12% of the
total number of registered voters of which every legislative district is represented by at
least 3% of the registered voters therein. The Delfin Petition does not contain signatures
of the required number of voters. Delfin himself admits that he has not yet gathered
signatures and that the purpose of his petition is primarily to obtain assistance in his
drive to gather signatures. Without the required signatures, the petition cannot be
deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its
filing. The petition then is the initiatory pleading. Nothing before its filing is cognizable by
the COMELEC, sitting en banc. The only participation of the COMELEC or its personnel
before the filing of such petition are (1) to prescribe the form of the petition;[63] (2) to issue
through its Election Records and Statistics Office a certificate on the total number of
registered voters in each legislative district;[64] (3) to assist, through its election registrars,
in the establishment of signature stations;[65] and (4) to verify, through its election
registrars, the signatures on the basis of the registry list of voters, voters affidavits, and
voters identification cards used in the immediately preceding election. [66]
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and
COMELEC Resolution No. 2300, it cannot be entertained or given cognizance of by the
COMELEC. The latter knew that the petition does not fall under any of the actions or
proceedings under the COMELEC Rules of Procedure or under Resolution No. 2300,
for which reason it did not assign to the petition a docket number. Hence, the said
petition was merely entered as UND, meaning, undocketed. That petition was nothing
more than a mere scrap of paper, which should not have been dignified by the Order of
6 December 1996, the hearing on 12 December 1996, and the order directing Delfin
and the oppositors to file their memoranda or oppositions. In so dignifying it, the
COMELEC acted without jurisdiction or with grave abuse of discretion and merely
wasted its time, energy, and resources.
The foregoing considered, further discussion on the issue of whether the proposal
to lift the term limits of the elective national and local officials is an amendment to, and
not a revision of, the Constitution is rendered unnecessary, if not academic.

CONCLUSION
 This petition must then be granted, and the COMELEC should be permanently
enjoined from entertaining or taking cognizance of any petition for initiative on
amendments on the Constitution until a sufficient law shall have been validly enacted to
provide for the implementation of the system.
We feel, however, that the system of initiative to propose amendments to the
Constitution should no longer be kept in the cold; it should be given flesh and blood,
energy and strength. Congress should not tarry any longer in complying with the
constitutional mandate to provide for the implementation of the right of the people under
that system.
WHEREFORE, judgment is hreby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on
amendments to the Constitution, and to have failed to provide sufficient standard for
subordinate legislation;
c) DECLARING void those parts of Resolutions No. 2300 of the Commission on
Elections prescribing rules and regulations on the conduct of initiative or amendments to
the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN
petition (UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is made permanent
as against the Commission on Elections, but is LIFTED against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
Narvasa, C.J., Regalado, Romero, Bellosillo,Kapunan, Hermosisima, Jr. and Torres
Jr., JJ., concur.
Padilla, J., took no part; related to a co-petitioner and co-counsel of the petitioners.
Melo and Mendoza, JJ., joins the separate, concurring opinions of Justices Puno,
Francisco and Panganiban.
Puno, Vitug, , Francisco and Panganiban, JJ., has separate opinions.

G.R. No. 147589 June 26, 2001

ANG BAGONG BAYANI-OFW LABOR PARTY (under the acronym OFW), represented herein by
its secretary-general, MOHAMMAD OMAR FAJARDO, petitioner,
vs.
ANG BAGONG BAYANI-OFW LABOR PARTY GO! GO! PHILIPPINES; THE TRUE MARCOS
LOYALIST ASSOCIATION OF THE PHILIPPINES; PHILIPPINE LOCAL AUTONOMY; CITIZENS
MOVEMENT FOR JUSTICE, ECONOMY, ENVIRONMENT AND PEACE; CHAMBER OF REAL
ESTATE BUILDERS ASSOCIATION; SPORTS & HEALTH ADVANCEMENT FOUNDATION, INC.;
ANG LAKAS NG OVERSEAS CONTRACT WORKERS (OCW); BAGONG BAYANI
ORGANIZATION and others under "Organizations/Coalitions" of Omnibus Resolution No.
3785; PARTIDO NG MASANG PILIPINO; LAKAS NUCD-UMDP; NATIONALIST PEOPLE'S
COALITION; LABAN NG DEMOKRATIKONG PILIPINO; AKSYON DEMOKRATIKO; PDP-
LABAN; LIBERAL PARTY; NACIONALISTA PARTY; ANG BUHAY HAYAANG YUMABONG; and
others under "Political Parties" of Omnibus Resolution No. 3785. respondents.

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

G.R. No. 147613 June 26, 2001

BAYAN MUNA, petitioner,

vs.
COMMISSION ON ELECTIONS; NATIONALIST PEOPLE'S COALITION (NPC); LABAN NG
DEMOKRATIKONG PILIPINO (LDP); PARTIDO NG MASANG PILIPINO (PMP); LAKAS-NUCD-
UMDP; LIBERAL PARTY; MAMAMAYANG AYAW SA DROGA; CREBA; NATIONAL
FEDERATION OF SUGARCANE PLANTERS; JEEP; and BAGONG BAYANI
ORGANIZATION, respondents.

PANGANIBAN, J.:

The party-list system is a social justice tool designed not only to give more law to the great masses
of our people who have less in life, but also to enable them to become veritable lawmakers
themselves, empowered to participate directly in the enactment of laws designed to benefit them. It
intends to make the marginalized and the underrepresented not merely passive recipients of the
State's benevolence, but active participants in the mainstream of representative democracy. Thus,
allowing all individuals and groups, including those which now dominate district elections, to have
the same opportunity to participate in party-list elections would desecrate this lofty objective and
mongrelize the social justice mechanism into an atrocious veneer for traditional politics.

The Case

Before us are two Petitions under Rule 65 of the Rules of Court, challenging Omnibus Resolution
No. 3785 1 issued by the Commission on Elections (Comelec) on March 26, 2001. This Resolution
approved the participation of 154 organizations and parties, including those herein impleaded, in the
2001 party-list elections. Petitioners seek the disqualification of private respondents, arguing mainly
that the party-list system was intended to benefit the marginalized and underrepresented; not the
mainstream political parties, the non-marginalized or overrepresented.

The Factual Antecedents

With the onset of the 2001 elections, the Comelec received several Petitions for registration filed by
sectoral parties, organizations and political parties. According to the Comelec, "[v]erifications were
made as to the status and capacity of these parties and organizations and hearings were scheduled
day and night until the last party w[as] heard. With the number of these petitions and the observance
of the legal and procedural requirements, review of these petitions as well as deliberations takes a
longer process in order to arrive at a decision and as a result the two (2) divisions promulgated a
separate Omnibus Resolution and individual resolution on political parties. These numerous petitions
and processes observed in the disposition of these petition[s] hinder the early release of the
Omnibus Resolutions of the Divisions which were promulgated only on 10 February 2001." 2

Thereafter, before the February 12, 2001 deadline prescribed under Comelec Resolution No. 3426
dated December 22, 2000, the registered parties and organizations filed their respective
Manifestations, stating their intention to participate in the party-list elections. Other sectoral and
political parties and organizations whose registrations were denied also filed Motions for
Reconsideration, together with Manifestations of their intent to participate in the party-list elections.
Still other registered parties filed their Manifestations beyond the deadline.

The Comelec gave due course or approved the Manifestations (or accreditations) of 154 parties and
organizations, but denied those of several others in its assailed March 26, 2001 Omnibus Resolution
No. 3785, which we quote:

"We carefully deliberated the foregoing matters, having in mind that this system of proportional
representation scheme will encourage multi-partisan [sic] and enhance the inability of small, new or
sectoral parties or organization to directly participate in this electoral window.

"It will be noted that as defined, the 'party-list system' is a 'mechanism of proportional representation'
in the election of representatives to the House of Representatives from national, regional, and
sectoral parties or organizations or coalitions thereof registered with the Commission on Elections.

"However, in the course of our review of the matters at bar, we must recognize the fact that there is
a need to keep the number of sectoral parties, organizations and coalitions, down to a manageable
level, keeping only those who substantially comply with the rules and regulations and more
importantly the sufficiency of the Manifestations or evidence on the Motions for Reconsiderations or
Oppositions." 3

On April 10, 2001, Akbayan Citizens Action Party filed before the Comelec a Petition praying that
"the names of [some of herein respondents] be deleted from the 'Certified List of Political
Parties/Sectoral Parties/Organizations/Coalitions Participating in the Party List System for the May
14, 2001 Elections' and that said certified list be accordingly amended." It also asked, as an
alternative, that the votes cast for the said respondents not be counted or canvassed, and that the
latter's nominees not be proclaimed. 4 On April 11, 2001, Bayan Muna and Bayan Muna-Youth also
filed a Petition for Cancellation of Registration and Nomination against some of herein respondents. 5

On April 18, 2001, the Comelec required the respondents in the two disqualification cases to file
Comments within three days from notice. It also set the date for hearing on April 26, 2001, 6 but
subsequently reset it to May 3, 2001.7 During the hearing, however, Commissioner Ralph C. Lantion
merely directed the parties to submit their respective memoranda. 8

Meanwhile, dissatisfied with the pace of the Comelec, Ang Bagong Bayani-OFW Labor Party filed a
Petition 9 before this Court on April 16, 2001. This Petition, docketed as GR No. 147589, assailed
Comelec Omnibus Resolution No. 3785. In its Resolution dated April 17, 2001, 10 the Court directed
respondents to comment on the Petition within a non-extendible period of five days from notice. 11

On April 17, 2001, Petitioner Bayan Muna also filed before this Court a Petition, 12 docketed as GR
No. 147613, also challenging Comelec Omnibus Resolution No. 3785. In its Resolution dated May 9,
2001, 13 the Court ordered the consolidation of the two Petitions before it; directed respondents
named in the second Petition to file their respective Comments on or before noon of May 15, 2001;
and called the parties to an Oral Argument on May 17, 2001. It added that the Comelec may
proceed with the counting and canvassing of votes cast for the party-list elections, but barred the
proclamation of any winner therein, until further orders of the Court.

Thereafter, Comments 14 on the second Petition were received by the Court and, on May 17, 2001,
the Oral Argument was conducted as scheduled. In an Order given in open court, the parties were
directed to submit their respective Memoranda simultaneously within a non-extendible period of five
days. 15
Issues:

During the hearing on May 17, 2001, the Court directed the parties to address the following issues:

"1. Whether or not recourse under Rule 65 is proper under the premises. More specifically, is
there no other plain, speedy or adequate remedy in the ordinary course of law?

"2. Whether or not political parties may participate in the party-list elections.

"3. Whether or not the party-list system is exclusive to 'marginalized and underrepresented'
sectors and organizations.

"4. Whether or not the Comelec committed grave abuse of discretion in promulgating
Omnibus Resolution No. 3785." 16

The Court's Ruling

The Petitions are partly meritorious. These cases should be remanded to the Comelec which will
determine, after summary evidentiary hearings, whether the 154 parties and organizations
enumerated in the assailed Omnibus Resolution satisfy the requirements of the Constitution and RA
7941, as specified in this Decision.

First Issue:

Recourse Under Rule 65

Respondents contend that the recourse of both petitioners under Rule 65 is improper because there
are other plain, speedy and adequate remedies in the ordinary course of law. 17 The Office of the
Solicitor General argues that petitioners should have filed before the Comelec a petition either for
disqualification or for cancellation of registration, pursuant to Sections 19, 20, 21 and 22 of Comelec
Resolution No. 3307-A 18 dated November 9, 2000.19

We disagree. At bottom, petitioners attack the validity of Comelec Omnibus Resolution 3785 for
having been issued with grave abuse of discretion, insofar as it allowed respondents to participate in
the party-list elections of 2001. Indeed, under both the Constitution 20 and the Rules of Court, such
challenge may be brought before this Court in a verified petition for certiorari under Rule 65.

Moreover, the assailed Omnibus Resolution was promulgated by Respondent Commission en banc;
hence, no motion for reconsideration was possible, it being a prohibited pleading under Section 1
(d), Rule 13 of the Comelec Rules of Procedure. 21

The Court also notes that Petitioner Bayan Muna had filed before the Comelec a Petition for
Cancellation of Registration and Nomination against some of herein respondents. 22 The Comelec,
however, did not act on that Petition. In view of the pendency of the elections, Petitioner Bayan
Muna sought succor from this Court, for there was no other adequate recourse at the time.
Subsequent events have proven the urgency of petitioner's action; to this date, the Comelec has not
yet formally resolved the Petition before it. But a resolution may just be a formality because the
Comelec, through the Office of the Solicitor General, has made its position on the matter quite clear.

In any event, this case presents an exception to the rule that certiorari shall lie only in the absence of
any other plain, speedy and adequate remedy. 23 It has been held that certiorari is available,
notwithstanding the presence of other remedies, "where the issue raised is one purely of law, where
public interest is involved, and in case of urgency." 24 Indeed, the instant case is indubitably imbued
with public interest and with extreme urgency, for it potentially involves the composition of 20 percent
of the House of Representatives.

Moreover, this case raises transcendental constitutional issues on the party-list system, which this
Court must urgently resolve, consistent with its duty to "formulate guiding and controlling
constitutional principles, precepts, doctrines, or rules." 25

Finally, procedural requirements "may be glossed over to prevent a miscarriage of justice, when the
issue involves the principle of social justice x x x when the decision sought to be set aside is a
nullity, or when the need for relief is extremely urgent and certiorari is the only adequate and speedy
remedy available." 26

Second Issue:

Participation of Political Parties

In its Petition, Ang Bagong Bayani-OFW Labor Party contends that "the inclusion of political parties
in the party-list system is the most objectionable portion of the questioned Resolution." 27 For its part,
Petitioner Bayan Muna objects to the participation of "major political parties." 28 On the other hand,
the Office of the Solicitor General, like the impleaded political parties, submits that the Constitution
and RA No. 7941 allow political parties to participate in the party-list elections. It argues that the
party-list system is, in fact, open to all "registered national, regional and sectoral parties or
organizations." 29

We now rule on this issue. Under the Constitution and RA 7941, private respondents cannot be
disqualified from the party-list elections, merely on the ground that they are political parties. Section
5, Article VI of the Constitution provides that members of the House of Representatives may "be
elected through a party-list system of registered national, regional, and sectoral parties or
organizations."

Furthermore, under Sections 7 and 8, Article IX (C) of the Constitution, political parties may be
registered under the party-list system.

"Sec. 7. No votes cast in favor of a political party, organization, or coalition shall be valid,
except for those registered under the party-list system as provided in this Constitution.

"Sec. 8. Political parties, or organizations or coalitions registered under the party-list system,
shall not be represented in the voters' registration boards, boards of election inspectors,
boards of canvassers, or other similar bodies. However, they shall be entitled to appoint poll
watchers in accordance with law." 30

During the deliberations in the Constitutional Commission, Comm. Christian S. Monsod pointed out
that the participants in the party-list system may "be a regional party, a sectoral party, a national
party, UNIDO, 31Magsasaka, or a regional party in Mindanao." 32 This was also clear from the
following exchange between Comms. Jaime Tadeo and Blas Ople: 33

"MR. TADEO. Naniniwala ba kayo na ang party list ay pwedeng paghati-hatian ng UNIDO, PDP-
Laban, PNP, Liberal at Nacionalista?
MR. OPLE. Maaari yan sapagkat bukas ang party list system sa lahat ng mga partido."

Indeed, Commissioner Monsod stated that the purpose of the party-list provision was to open up the
system, in order to give a chance to parties that consistently place third or fourth in congressional
district elections to win a seat in Congress. 34 He explained: "The purpose of this is to open the
system. In the past elections, we found out that there were certain groups or parties that, if we count
their votes nationwide, have about 1,000,000 or 1,500,000 votes. But they were always third or
fourth place in each of the districts. So, they have no voice in the Assembly. But this way, they would
have five or six representatives in the Assembly even if they would not win individually in legislative
districts. So, that is essentially the mechanics, the purpose and objectives of the party-list system."

For its part, Section 2 of RA 7941 also provides for "a party-list system of registered national,
regional and sectoral parties or organizations or coalitions thereof, x x x." Section 3 expressly states
that a "party" is "either a political party or a sectoral party or a coalition of parties." More to the point,
the law defines "political party" as "an organized group of citizens advocating an ideology or
platform, principles and policies for the general conduct of government and which, as the most
immediate means of securing their adoption, regularly nominates and supports certain of its leaders
and members as candidates for public office."

Furthermore, Section 11 of RA 7941 leaves no doubt as to the participation of political parties in the
party-list system. We quote the pertinent provision below:

"x x x

"For purposes of the May 1998 elections, the first five (5) major political parties on the basis of party
representation in the House of Representatives at the start of the Tenth Congress of the Philippines
shall not be entitled to participate in the party-list system.

x x x"

Indubitably, therefore, political parties even the major ones -- may participate in the party-list
elections.

Third Issue:

Marginalized and Underrepresented

That political parties may participate in the party-list elections does not mean, however, that any
political party -- or any organization or group for that matter -- may do so. The requisite character of
these parties or organizations must be consistent with the purpose of the party-list system, as laid
down in the Constitution and RA 7941. Section 5, Article VI of the Constitution, provides as follows:

"(1) The House of Representatives shall be composed of not more than two hundred and fifty
members, unless otherwise fixed by law, who shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan Manila area in accordance
with the number of their respective inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law, shall be elected through a party-list
system of registered national, regional, and sectoral parties or organizations.

(2) The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party list. For three consecutive terms after the
 ratification of this Constitution, one-half of the seats allocated to party-list representatives
shall be filled, as provided by law, by selection or election from the labor, peasant, urban
poor, indigenous cultural communities, women, youth, and such other sectors as may be
provided by law, except the religious sector." (Emphasis supplied.)

Notwithstanding the sparse language of the provision, a distinguished member of the Constitutional
Commission declared that the purpose of the party-list provision was to give "genuine power to our
people" in Congress. Hence, when the provision was discussed, he exultantly announced: "On this
first day of August 1986, we shall, hopefully, usher in a new chapter to our national history, by giving
genuine power to our people in the legislature." 35

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

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

The Marginalized and Underrepresented to Become Lawmakers Themselves

The foregoing provision mandates a state policy of promoting proportional representation by means
of the Filipino-style party-list system, which will "enable" the election to the House of Representatives
of Filipino citizens,

1. who belong to marginalized and underrepresented sectors, organizations and parties; and

2. who lack well-defined constituencies; but

3. who could contribute to the formulation and enactment of appropriate legislation that will
benefit the nation as a whole.

The key words in this policy are "proportional representation," "marginalized and underrepresented,"
and "lack ofwell-defined constituencies."

"Proportional representation" here does not refer to the number of people in a particular district,
because the party-list election is national in scope. Neither does it allude to numerical strength in a
distressed or oppressed group. Rather, it refers to the representation of the "marginalized and
underrepresented" as exemplified by the enumeration in Section 5 of the law; namely, "labor,
peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women,
youth, veterans, overseas workers, and professionals."
However, it is not enough for the candidate to claim representation of the marginalized and
underrepresented, because representation is easy to claim and to feign. The party-list organization
or party must factually and truly represent the marginalized and underrepresented constituencies
mentioned in Section 5. 36 Concurrently, the persons nominated by the party-list candidate-
organization must be "Filipino citizens belonging to marginalized and underrepresented sectors,
organizations and parties."

Finally, "lack of well-defined constituenc[y] " refers to the absence of a traditionally identifiable
electoral group, like voters of a congressional district or territorial unit of government. Rather, it
points again to those with disparate interests identified with the "marginalized or underrepresented."

In the end, the role of the Comelec is to see to it that only those Filipinos who are "marginalized and
underrepresented" become members of Congress under the party-list system, Filipino-style.

The intent of the Constitution is clear: to give genuine power to the people, not only by giving more
law to those who have less in life, but more so by enabling them to become veritable lawmakers
themselves. Consistent with this intent, the policy of the implementing law, we repeat, is likewise
clear: "to enable Filipino citizens belonging to marginalized and underrepresented sectors,
organizations and parties, x x x, to become members of the House of Representatives." Where the
language of the law is clear, it must be applied according to its express terms. 37

The marginalized and underrepresented sectors to be represented under the party-list system are
enumerated in Section 5 of RA 7941, which states:

"SEC. 5. Registration. -- Any organized group of persons may register as a party, organization or
coalition for purposes of the party-list system by filing with the COMELEC not later than ninety (90)
days before the election a petition verified by its president or secretary stating its desire to participate
in the party-list system as a national, regional or sectoral party or organization or a coalition of such
parties or organizations, attaching thereto its constitution, by-laws, platform or program of
government, list of officers, coalition agreement and other relevant information as the COMELEC
may require: Provided, that the sector shall include labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and
professionals."

While the enumeration of marginalized and underrepresented sectors is not exclusive, it

demonstrates the clear intent of the law that not all sectors can be represented under the party-list
system. It is a fundamental principle of statutory construction that words employed in a statute are
interpreted in connection with, and their meaning is ascertained by reference to, the words and the
phrases with which they are associated or related. Thus, the meaning of a term in a statute may be
limited, qualified or specialized by those in immediate association. 38

The Party-List System Desecrated by the OSG Contentions

Notwithstanding the unmistakable statutory policy, the Office of the Solicitor General submits that RA
No. 7941 "does not limit the participation in the party-list system to the marginalized and
underrepresented sectors of society."39 In fact, it contends that any party or group that is not
disqualified under Section 6 40 of RA 7941 may participate in the elections. Hence, it admitted during
the Oral Argument that even an organization representing the super rich of Forbes Park or
Dasmarias Village could participate in the party-list elections. 41

The declared policy of RA 7941 contravenes the position of the Office of the Solicitor General
(OSG). We stress that the party-list system seeks to enable certain Filipino citizens specifically
those belonging to marginalized and underrepresented sectors, organizations and parties to be
elected to the House of Representatives. The assertion of the OSG that the party-list system is not
exclusive to the marginalized and underrepresented disregards the clear statutory policy. Its claim
that even the super-rich and overrepresented can participate desecrates the spirit of the party-list
system.

Indeed, the law crafted to address the peculiar disadvantages of Payatas hovel dwellers cannot be
appropriated by the mansion owners of Forbes Park. The interests of these two sectors are
manifestly disparate; hence, the OSG's position to treat them similarly defies reason and common
sense. In contrast, and with admirable candor, Atty. Lorna Patajo-Kapunan 42 admitted during the
Oral Argument that a group of bankers, industrialists and sugar planters could not join the party-list
system as representatives of their respective sectors. 43

While the business moguls and the mega-rich are, numerically speaking, a tiny minority, they are
neither marginalized nor underrepresented, for the stark reality is that their economic clout
engenders political power more awesome than their numerical limitation. Traditionally, political
power does not necessarily emanate from the size of one's constituency; indeed, it is likely to arise
more directly from the number and amount of one's bank accounts.

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

Because the marginalized and underrepresented had not been able to win in the congressional
district elections normally dominated by traditional politicians and vested groups, 20 percent of the
seats in the House of Representatives were set aside for the party-list system. In arguing that even
those sectors who normally controlled 80 percent of the seats in the House could participate in the
party-list elections for the remaining 20 percent, the OSG and the Comelec disregard the
fundamental difference between the congressional district elections and the party-list elections.

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

The import of the open party-list system may be more vividly understood when compared to a
student dormitory "open house," which by its nature allows outsiders to enter the facilities. Obviously,
the "open house" is for the benefit of outsiders only, not the dormers themselves who can enter the
dormitory even without such special privilege. In the same vein, the open party-list system is only for
the "outsiders" who cannot get elected through regular elections otherwise; it is not for the non-
marginalized or overrepresented who already fill the ranks of Congress.
Verily, allowing the non-marginalized and overrepresented to vie for the remaining seats under the
party-list system would not only dilute, but also prejudice the chance of the marginalized and
underrepresented, contrary to the intention of the law to enhance it. The party-list system is a tool for
the benefit of the underprivileged; the law could not have given the same tool to others, to the
prejudice of the intended beneficiaries.

This Court, therefore, cannot allow the party-list system to be sullied and prostituted by those who
are neither marginalized nor underrepresented. It cannot let that flicker of hope be snuffed out. The
clear state policy must permeate every discussion of the qualification of political parties and other
organizations under the party-list system.

Refutation of the Separate Opinions

The Separate Opinions of our distinguished colleagues, Justices Jose C. Vitug and Vicente V.
Mendoza, are anchored mainly on the supposed intent of the framers of the Constitution as culled
from their deliberations.

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

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

Section 5, Article VI of the Constitution, relative to the party-list system, is couched in clear terms:
the mechanics of the system shall be provided by law. Pursuant thereto, Congress enacted RA
7941. In understanding and implementing party-list representation, we should therefore look at the
law first. Only when we find its provisions ambiguous should the use of extraneous aids of
construction be resorted to.

But, as discussed earlier, the intent of the law is obvious and clear from its plain words. Section 2
thereof unequivocally states that the party-list system of electing congressional representatives was
designed to "enable underrepresented sectors, organizations and parties, and who lack well-defined
political constituencies but who could contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole x x x." The criteria for participation is well defined.
Thus, there is no need for recourse to constitutional deliberations, not even to the proceedings of
Congress. In any event, the framers' deliberations merely express their individual opinions and are,
at best, only persuasive in construing the meaning and purpose of the constitution or statute.
Be it remembered that the constitutionality or validity of Sections 2 and 5 of RA 7941 is not an issue
here. Hence, they remain parts of the law, which must be applied plainly and simply.

Fourth Issue:

Grave Abuse of Discretion

From its assailed Omnibus Resolution, it is manifest that the Comelec failed to appreciate fully the
clear policy of the law and the Constitution. On the contrary, it seems to have ignored the facet of the
party-list system discussed above. The OSG as its counsel admitted before the Court that any
group, even the non-marginalized and overrepresented, could field candidates in the party-list
elections.

When a lower court, or a quasi-judicial agency like the Commission on Elections, violates or ignores
the Constitution or the law, its action can be struck down by this Court on the ground of grave abuse
of discretion. 49 Indeed, the function of all judicial and quasi-judicial instrumentalities is to apply the
law as they find it, not to reinvent or second-guess it. 50

In its Memorandum, Petitioner Bayan Muna passionately pleads for the outright disqualification of
the major political parties Respondents Lakas-NUCD, LDP, NPC, LP and PMP on the ground
that under Comelec Resolution No. 4073, they have been accredited as the five (six, including PDP-
Laban) major political parties in the May 14, 2001 elections. It argues that because of this, they have
the "advantage of getting official Comelec Election Returns, Certificates of Canvass, preferred poll
watchers x x x." We note, however, that this accreditation does not refer to the party-list election, but,
inter alia, to the election of district representatives for the purpose of determining which parties
would be entitled to watchers under Section 26 of Republic Act No. 7166.

What is needed under the present circumstances, however, is a factual determination of whether
respondents herein and, for that matter, all the 154 previously approved groups, have the necessary
qualifications to participate in the party-list elections, pursuant to the Constitution and the law.

Bayan Muna also urges us to immediately rule out Respondent Mamamayan Ayaw sa Droga (MAD),
because "it is a government entity using government resources and privileges." This Court, however,
is not a trier of facts. 51 It is not equipped to receive evidence and determine the truth of such factual
allegations.

Basic rudiments of due process require that respondents should first be given an opportunity to
show that they qualify under the guidelines promulgated in this Decision, before they can be
deprived of their right to participate in and be elected under the party-list system.

Guidelines for Screening Party-List Participants

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

First, the political party, sector, organization or coalition must represent the marginalized and
underrepresented groups identified in Section 5 of RA 7941. In other words, it must show -- through
its constitution, articles of incorporation, bylaws, history, platform of government and track record --
that it represents and seeks to uplift marginalized and underrepresented sectors. Verily, majority of
its membership should belong to the marginalized and underrepresented. And it must demonstrate
that in a conflict of interests, it has chosen or is likely to choose the interest of such sectors.

Second, while even major political parties are expressly allowed by RA 7941 and the Constitution to
participate in the party-list system, they must comply with the declared statutory policy of enabling
"Filipino citizens belonging to marginalized and underrepresented sectors x x x to be elected to the
House of Representatives." In other words, while they are not disqualified merely on the ground that
they are political parties, they must show, however, that they represent the interests of the
marginalized and underrepresented. The counsel of Aksyon Demokratiko and other similarly situated
political parties admitted as much during the Oral Argument, as the following quote shows:

"JUSTICE PANGANIBAN: I am not disputing that in my question. All I am saying is, the political
party must claim to represent the marginalized and underrepresented sectors?

ATTY. KAPUNAN: Yes, Your Honor, the answer is yes."52

Third, in view of the objections53 directed against the registration of Ang Buhay Hayaang Yumabong,
which is allegedly a religious group, the Court notes the express constitutional provision that the
religious sector may not be represented in the party-list system. The extent of the constitutional
proscription is demonstrated by the following discussion during the deliberations of the Constitutional
Commission:

"MR. OPLE. x x x

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

MR. MONSOD. If the evidence shows that the intention is to go around the prohibition, then certainly
the Comelec can pierce through the legal fiction."54

The following discussion is also pertinent:

"MR. VILLACORTA. When the Commissioner proposed "EXCEPT RELIGIOUS GROUPS," he is

not, of course, prohibiting priests, imams or pastors who may be elected by, say, the indigenous
community sector to represent their group.

REV. RIGOS. Not at all, but I am objecting to anybody who represents the Iglesia ni Kristo, the
Catholic Church, the Protestant Church et cetera."55

Furthermore, the Constitution provides that "religious denominations and sects shall not be
registered."56 The prohibition was explained by a member57 of the Constitutional Commission in this
wise: "[T] he prohibition is on any religious organization registering as a political party. I do not see
any prohibition here against a priest running as a candidate. That is not prohibited here; it is the
registration of a religious sect as a political party."58

Fourth, a party or an organization must not be disqualified under Section 6 of RA 7941, which
enumerates the grounds for disqualification as follows:
 "(1) It is a religious sect or denomination, organization or association organized for religious
purposes;

(2) It advocates violence or unlawful means to seek its goal;

(3) It is a foreign party or organization;

(4) It is receiving support from any foreign government, foreign political party, foundation,
organization, whether directly or through any of its officers or members or indirectly through
third parties for partisan election purposes;

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

(6) It declares untruthful statements in its petition;

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

(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two
per centum (2%) of the votes cast under the party-list system in the two (2) preceding
elections for the constituency in which it has registered."59

Note should be taken of paragraph 5, which disqualifies a party or group for violation of or failure to
comply with election laws and regulations. These laws include Section 2 of RA 7941, which states
that the party-list system seeks to "enable Filipino citizens belonging to marginalized and
underrepresented sectors, organizations and parties x x x to become members of the House of
Representatives." A party or an organization, therefore, that does not comply with this policy must be
disqualified.

Fifth, the party or organization must not be an adjunct of, or a project organized or an entity funded
or assisted by, the government. By the very nature of the party-list system, the party or organization
must be a group of citizens, organized by citizens and operated by citizens. It must be independent
of the government. The participation of the government or its officials in the affairs of a party-list
candidate is not only illegal60 and unfair to other parties, but also deleterious to the objective of the
law: to enable citizens belonging to marginalized and underrepresented sectors and organizations to
be elected to the House of Representatives.

Sixth, the party must not only comply with the requirements of the law; its nominees must likewise do
so. Section 9 of RA 7941 reads as follows:

"SEC. 9. Qualifications of Party-List Nominees. No person shall be nominated as party-list

representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of
the Philippines for a period of not less than one (1) year immediately preceding the day of the
election, able to read and write, a bona fide member of the party or organization which he seeks to
represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five
(25) years of age on the day of the election.

In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty
(30) years of age on the day of the election. Any youth sectoral representative who attains the age of
thirty (30) during his term shall be allowed to continue in office until the expiration of his term."
Seventh, not only the candidate party or organization must represent marginalized and
underrepresented sectors; so also must its nominees. To repeat, under Section 2 of RA 7941, the
nominees must be Filipino citizens "who belong to marginalized and underrepresented sectors,
organizations and parties." Surely, the interests of the youth cannot be fully represented by a retiree;
neither can those of the urban poor or the working class, by an industrialist. To allow otherwise is to
betray the State policy to give genuine representation to the marginalized and underrepresented.

Eighth, as previously discussed, while lacking a well-defined political constituency, the nominee
must likewise be able to contribute to the formulation and enactment of appropriate legislation that
will benefit the nation as a whole. Senator Jose Lina explained during the bicameral committee
proceedings that "the nominee of a party, national or regional, is not going to represent a particular
district x x x."61

Epilogue

The linchpin of this case is the clear and plain policy of the law: "to enable Filipino citizens belonging
to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined
political constituencies but who could contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole, to become members of the House of
Representatives."

Crucial to the resolution of this case is the fundamental social justice principle that those who have
less in life should have more in law. The party-list system is one such tool intended to benefit those
who have less in life. It gives the great masses of our people genuine hope and genuine power. It is
a message to the destitute and the prejudiced, and even to those in the underground, that change is
possible. It is an invitation for them to come out of their limbo and seize the opportunity.

Clearly, therefore, the Court cannot accept the submissions of the Comelec and the other
respondents that the party-list system is, without any qualification, open to all. Such position does
not only weaken the electoral chances of the marginalized and underrepresented; it also prejudices
them. It would gut the substance of the party-list system. Instead of generating hope, it would create
a mirage. Instead of enabling the marginalized, it would further weaken them and aggravate their
marginalization.

In effect, the Comelec would have us believe that the party-list provisions of the Constitution and RA
7941 are nothing more than a play on dubious words, a mockery of noble intentions, and an empty
offering on the altar of people empowerment. Surely, this could not have been the intention of the
framers of the Constitution and the makers of RA 7941.

WHEREFORE, this case is REMANDED to the Comelec, which is hereby DIRECTED to immediately
conduct summary evidentiary hearings on the qualifications of the party-list participants in the light of
the guidelines enunciated in this Decision. Considering the extreme urgency of determining the
winners in the last party-list elections, the Comelec is directed to begin its hearings for the parties
and organizations that appear to have garnered such number of votes as to qualify for seats in the
House of Representatives. The Comelec is further DIRECTED to submit to this Court its compliance
report within 30 days from notice hereof. 1wphi 1. nt

The Resolution of this Court dated May 9, 2001, directing the Comelec "to refrain from proclaiming
any winner" during the last party-list election, shall remain in force until after the Comelec itself will
have complied and reported its compliance with the foregoing disposition.
This Decision is immediately executory upon the Commission on Elections' receipt thereof. No
pronouncement as to costs.

SO ORDERED.

Bellosillo, Melo, Puno, Kapunan, Pardo, Buena, and Gonzaga-Reyes, JJ., concur.
Davide, Jr., C.J., in the result.
Vitug and Mendoza, JJ., see dissenting opinion.
Quisumbing, De Leon, Jr., and Sandoval-Gutierrez, JJ., join the dissent of J. Vicente M. Mendoza.
Ynares-Santiago, J., abroad on official business.

EN BANC

[G.R. No. 147589. June 26, 2001]

ANG BAGONG BAYANI-OFW LABOR PARTY (under the acronym OFW),

represented herein by its secretary-general, MOHAMMAD OMAR
FAJARDO, petitioner, vs. COMMISSION ON ELECTIONS;
CITIZENS DRUG WATCH; MAMAMAYAN AYAW SA DROGA;
GO! GO! PHILIPPINES; THE TRUE MARCOS LOYALIST
ASSOCIATION OF THE PHILIPPINES; PHILIPPINE LOCAL
AUTONOMY; CITIZENS MOVEMENT FOR JUSTICE, ECONOMY,
ENVIRONMENT AND PEACE; CHAMBER OF REAL ESTATE
BUILDERS ASSOCIATION; SPORTS & HEALTH ADVANCEMENT
FOUNDATION, INC.; ANG LAKAS NG OVERSEAS CONTRACT
WORKERS (OCW); BAGONG BAYANI ORGANIZATION and
others under Organizations/Coalitions of Omnibus Resolution No. 3785;
PARTIDO NG MASANG PILIPINO; LAKAS NUCD-UMDP;
NATIONALIST PEOPLES COALITION; LABAN NG
DEMOKRATIKONG PILIPINO; AKSYON DEMOKRATIKO; PDP-
LABAN; LIBERAL PARTY; NACIONALISTA PARTY; ANG
BUHAY HAYAANG YUMABONG; and others under Political Parties
of Omnibus Resolution No. 3785. respondents.

[G.R. No. 147613. June 26, 2001]

BAYAN MUNA, petitioner, vs. COMMISSION ON ELECTIONS;
NATIONALIST PEOPLES COALITION (NPC); LABAN NG
DEMOKRATIKONG PILIPINO (LDP); PARTIDO NG MASANG
PILIPINO (PMP); LAKAS-NUCD-UMDP; LIBERAL PARTY;
MAMAMAYANG AYAW SA DROGA; CREBA; NATIONAL
FEDERATION OF SUGARCANE PLANTERS; JEEP; and BAGONG
BAYANI ORGANIZATION, respondents.

DECISION
PANGANIBAN, J.:

The party-list system is a social justice tool designed not only to give more law to the great
masses of our people who have less in life, but also to enable them to become veritable
lawmakers themselves, empowered to participate directly in the enactment of laws designed to
benefit them. It intends to make the marginalized and the underrepresented not merely passive
recipients of the States benevolence, but active participants in the mainstream of representative
democracy. Thus, allowing all individuals and groups, including those which now dominate
district elections, to have the same opportunity to participate in party-list elections would
desecrate this lofty objective and mongrelize the social justice mechanism into an atrocious
veneer for traditional politics.

The Case

Before us are two Petitions under Rule 65 of the Rules of Court, challenging Omnibus
Resolution No. 3785[1] issued by the Commission on Elections (Comelec) on March 26,
2001. This Resolution approved the participation of 154 organizations and parties, including
those herein impleaded, in the 2001 party-list elections. Petitioners seek the disqualification of
private respondents, arguing mainly that the party-list system was intended to benefit the
marginalized and underrepresented; not the mainstream political parties, the non-marginalized or
overrepresented.

The Factual Antecedents

With the onset of the 2001 elections, the Comelec received several Petitions for registration
filed by sectoral parties, organizations and political parties. According to the Comelec,
[v]erifications were made as to the status and capacity of these parties and organizations and
hearings were scheduled day and night until the last party w[as] heard. With the number of these
petitions and the observance of the legal and procedural requirements, review of these petitions
as well as deliberations takes a longer process in order to arrive at a decision and as a result the
two (2) divisions promulgated a separate Omnibus Resolution and individual resolution on
political parties. These numerous petitions and processes observed in the disposition of these
petition[s] hinder the early release of the Omnibus Resolutions of the Divisions which were
promulgated only on 10 February 2001.[2]
Thereafter, before the February 12, 2001 deadline prescribed under Comelec Resolution No.
3426 dated December 22, 2000, the registered parties and organizations filed their respective
Manifestations, stating their intention to participate in the party-list elections.Other sectoral and
political parties and organizations whose registrations were denied also filed Motions for
Reconsideration, together with Manifestations of their intent to participate in the party-list
elections. Still other registered parties filed their Manifestations beyond the deadline.
The Comelec gave due course or approved the Manifestations (or accreditations) of 154
parties and organizations, but denied those of several others in its assailed March 26, 2001
Omnibus Resolution No. 3785, which we quote:

We carefully deliberated the foregoing matters, having in mind that this system of
proportional representation scheme will encourage multi-partisan [sic] and enhance
the inability of small, new or sectoral parties or organization to directly participate in
this electoral window.

It will be noted that as defined, the party-list system is a mechanism of proportional

representation in the election of representatives to the House of Representatives from
national, regional, and sectoral parties or organizations or coalitions thereof registered
with the Commission on Elections.

However, in the course of our review of the matters at bar, we must recognize the fact
that there is a need to keep the number of sectoral parties, organizations and
coalitions, down to a manageable level, keeping only those who substantially comply
with the rules and regulations and more importantly the sufficiency of the
Manifestations or evidence on the Motions for Reconsiderations or Oppositions. [3]

On April 10, 2001, Akbayan Citizens Action Party filed before the Comelec a Petition
praying that the names of [some of herein respondents] be deleted from the Certified List of
Political Parties/Sectoral Parties/Organizations/Coalitions Participating in the Party List System
for the May 14, 2001 Elections and that said certified list be accordingly amended. It also asked,
as an alternative, that the votes cast for the said respondents not be counted or canvassed, and
that the latters nominees not be proclaimed.[4] On April 11, 2001, Bayan Muna and Bayan Muna-
Youth also filed a Petition for Cancellation of Registration and Nomination against some of
herein respondents.[5]
On April 18, 2001, the Comelec required the respondents in the two disqualification cases to
file Comments within three days from notice. It also set the date for hearing on April 26,
2001,[6] but subsequently reset it to May 3, 2001.[7] During the hearing, however, Commissioner
Ralph C. Lantion merely directed the parties to submit their respective memoranda.[8]
Meanwhile, dissatisfied with the pace of the Comelec, Ang Bagong Bayani-OFW Labor
Party filed a Petition[9] before this Court on April 16, 2001. This Petition, docketed as GR No.
147589, assailed Comelec Omnibus Resolution No. 3785. In its Resolution dated April 17,
2001,[10] the Court directed respondents to comment on the Petition within a non-extendible
period of five days from notice.[11]
On April 17, 2001, Petitioner Bayan Muna also filed before this Court a Petition,[12] docketed
as GR No. 147613, also challenging Comelec Omnibus Resolution No. 3785. In its Resolution
dated May 9, 2001,[13] the Court ordered the consolidation of the two Petitions before it; directed
respondents named in the second Petition to file their respective Comments on or before noon of
May 15, 2001; and called the parties to an Oral Argument on May 17, 2001. It added that the
Comelec may proceed with the counting and canvassing of votes cast for the party-list elections,
but barred the proclamation of any winner therein, until further orders of the Court.
Thereafter, Comments[14] on the second Petition were received by the Court and, on May 17,
2001, the Oral Argument was conducted as scheduled. In an Order given in open court, the
parties were directed to submit their respective Memoranda simultaneously within a non-
extendible period of five days.[15]

Issues:

During the hearing on May 17, 2001, the Court directed the parties to address the following
issues:

1. Whether or not recourse under Rule 65 is proper under the premises. More
specifically, is there no other plain, speedy or adequate remedy in the ordinary course
of law?

2. Whether or not political parties may participate in the party-list elections.

3. Whether or not the party-list system is exclusive to marginalized and

underrepresented sectors and organizations.

4. Whether or not the Comelec committed grave abuse of discretion in promulgating

Omnibus Resolution No. 3785.[16]

The Courts Ruling

The Petitions are partly meritorious. These cases should be remanded to the Comelec which
will determine, after summary evidentiary hearings, whether the 154 parties and organizations
enumerated in the assailed Omnibus Resolution satisfy the requirements of the Constitution and
RA 7941, as specified in this Decision.

First Issue:
Recourse Under Rule 65
 Respondents contend that the recourse of both petitioners under Rule 65 is improper because
there are other plain, speedy and adequate remedies in the ordinary course of law.[17] The Office
of the Solicitor General argues that petitioners should have filed before the Comelec a petition
either for disqualification or for cancellation of registration, pursuant to Sections 19, 20, 21 and
22 of Comelec Resolution No. 3307-A[18]dated November 9, 2000.[19]
We disagree. At bottom, petitioners attack the validity of Comelec Omnibus Resolution
3785 for having been issued with grave abuse of discretion, insofar as it allowed respondents to
participate in the party-list elections of 2001. Indeed, under both the Constitution[20] and the
Rules of Court, such challenge may be brought before this Court in a verified petition
for certiorari under Rule 65.
Moreover, the assailed Omnibus Resolution was promulgated by Respondent Commission
en banc; hence, no motion for reconsideration was possible, it being a prohibited pleading under
Section 1 (d), Rule 13 of the Comelec Rules of Procedure.[21]
The Court also notes that Petitioner Bayan Muna had filed before the Comelec a Petition for
Cancellation of Registration and Nomination against some of herein respondents.[22] The
Comelec, however, did not act on that Petition. In view of the pendency of the elections,
Petitioner Bayan Muna sought succor from this Court, for there was no other adequate recourse
at the time. Subsequent events have proven the urgency of petitioners action; to this date, the
Comelec has not yet formally resolved the Petition before it. But a resolution may just be a
formality because the Comelec, through the Office of the Solicitor General, has made its position
on the matter quite clear.
In any event, this case presents an exception to the rule that certiorari shall lie only in the
absence of any other plain, speedy and adequate remedy.[23] It has been held that certiorari is
available, notwithstanding the presence of other remedies, where the issue raised is one purely of
law, where public interest is involved, and in case of urgency.[24] Indeed, the instant case is
indubitably imbued with public interest and with extreme urgency, for it potentially involves the
composition of 20 percent of the House of Representatives.
Moreover, this case raises transcendental constitutional issues on the party-list system,
which this Court must urgently resolve, consistent with its duty to formulate guiding and
controlling constitutional principles, precepts, doctrines, or rules.[25]
Finally, procedural requirements may be glossed over to prevent a miscarriage of justice,
when the issue involves the principle of social justice x x x when the decision sought to be set
aside is a nullity, or when the need for relief is extremely urgent and certiorari is the only
adequate and speedy remedy available.[26]

Second Issue:
Participation of Political Parties

In its Petition, Ang Bagong Bayani-OFW Labor Party contends that the inclusion of political
parties in the party-list system is the most objectionable portion of the questioned
Resolution.[27] For its part, Petitioner Bayan Muna objects to the participation of major political
parties.[28] On the other hand, the Office of the Solicitor General, like the impleaded political
parties, submits that the Constitution and RA No. 7941 allow political parties to participate in the
party-list elections. It argues that the party-list system is, in fact, open to all registered national,
regional and sectoral parties or organizations.[29]
We now rule on this issue. Under the Constitution and RA 7941, private respondents cannot
be disqualified from the party-list elections, merely on the ground that they are political
parties. Section 5, Article VI of the Constitution provides that members of the House of
Representatives may be elected through a party-list system of registered national, regional, and
sectoral parties or organizations.
Furthermore, under Sections 7 and 8, Article IX (C) of the Constitution, political parties may
be registered under the party-list system.

Sec. 7. No votes cast in favor of a political party, organization, or coalition shall be

valid, except for those registered under the party-list system as provided in this
Constitution.

Sec. 8. Political parties, or organizations or coalitions registered under the party-list

system, shall not be represented in the voters' registration boards, boards of election
inspectors, boards of canvassers, or other similar bodies. However, they shall be
entitled to appoint poll watchers in accordance with law.[30]

During the deliberations in the Constitutional Commission, Comm. Christian S. Monsod

pointed out that the participants in the party-list system may be a regional party, a sectoral party,
a national party, UNIDO,[31] Magsasaka, or a regional party in Mindanao."[32] This was also clear
from the following exchange between Comms. Jaime Tadeo and Blas Ople:[33]
MR. TADEO. Naniniwala ba kayo na ang party list ay pwedeng paghati-hatian ng UNIDO, PDP-
Laban, PNP, Liberal at Nacionalista?
MR. OPLE. Maaari yan sapagkat bukas ang party list system sa lahat ng mga partido.
Indeed, Commissioner Monsod stated that the purpose of the party-list provision was to
open up the system, in order to give a chance to parties that consistently place third or fourth in
congressional district elections to win a seat in Congress.[34] He explained: The purpose of this is
to open the system. In the past elections, we found out that there were certain groups or parties
that, if we count their votes nationwide, have about 1,000,000 or 1,500,000 votes. But they were
always third or fourth place in each of the districts. So, they have no voice in the Assembly. But
this way, they would have five or six representatives in the Assembly even if they would not win
individually in legislative districts. So, that is essentially the mechanics, the purpose and
objectives of the party-list system.
For its part, Section 2 of RA 7941 also provides for a party-list system of registered national,
regional and sectoral parties or organizations or coalitions thereof, x x x. Section 3 expressly
states that a party is either a political party or a sectoral party or a coalition of parties. More to
the point, the law defines political party as an organized group of citizens advocating an ideology
or platform, principles and policies for the general conduct of government and which, as the
most immediate means of securing their adoption, regularly nominates and supports certain of its
leaders and members as candidates for public office.
 Furthermore, Section 11 of RA 7941 leaves no doubt as to the participation of political
parties in the party-list system. We quote the pertinent provision below:
xxxxxxxxx

For purposes of the May 1998 elections, the first five (5) major political parties on the
basis of party representation in the House of Representatives at the start of the Tenth
Congress of the Philippines shall not be entitled to participate in the party-list system.

xxxxxxxxx
Indubitably, therefore, political parties even the major ones -- may participate in the party-
list elections.

Third Issue:
Marginalized and Underrepresented

That political parties may participate in the party-list elections does not mean, however,
that any political party -- or any organization or group for that matter -- may do so. The requisite
character of these parties or organizations must be consistent with the purpose of the party-list
system, as laid down in the Constitution and RA 7941. Section 5, Article VI of the Constitution,
provides as follows:

(1) The House of Representatives shall be composed of not more than two hundred
and fifty members, unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective inhabitants, and on the
basis of a uniform and progressive ratio, and those who, as provided by law, shall be
elected through a party-list system of registered national, regional, and sectoral parties
or organizations.

(2) The party-list representatives shall constitute twenty per centum of the total
number of representatives including those under the party list. For three consecutive
terms after the ratification of this Constitution, one-half of the seats allocated to party-
list representatives shall be filled, as provided by law, by selection or election from
the labor, peasant, urban poor, indigenous cultural communities, women, youth, and
such other sectors as may be provided by law, except the religious sector. (Emphasis
supplied.)

Notwithstanding the sparse language of the provision, a distinguished member of the

Constitutional Commission declared that the purpose of the party-list provision was to give
genuine power to our people in Congress. Hence, when the provision was discussed, he
exultantly announced: On this first day of August 1986, we shall, hopefully, usher in a new
chapter to our national history, by giving genuine power to our people in the legislature.[35]
 The foregoing provision on the party-list system is not self-executory. It is, in fact,
interspersed with phrases like in accordance with law or as may be provided by law; it was thus
up to Congress to sculpt in granite the lofty objective of the Constitution. Hence, RA 7941 was
enacted. It laid out the statutory policy in this wise:

SEC. 2. Declaration of Policy. -- The State shall promote proportional representation

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

The Marginalized and Underrepresented to Become Lawmakers Themselves

The foregoing provision mandates a state policy of promoting proportional representation by

means of the Filipino-style party-list system, which will enable the election to the House of
Representatives of Filipino citizens,
1. who belong to marginalized and underrepresented sectors, organizations and parties; and
2. who lack well-defined constituencies; but
3. who could contribute to the formulation and enactment of appropriate legislation that will
benefit the nation as a whole.
The key words in this policy are proportional representation, marginalized and
underrepresented, and lack [of] well-defined constituencies.
Proportional representation here does not refer to the number of people in a particular
district, because the party-list election is national in scope. Neither does it allude to numerical
strength in a distressed or oppressed group. Rather, it refers to the representation of the
marginalized and underrepresented as exemplified by the enumeration in Section 5 of the law;
namely, labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and professionals.
However, it is not enough for the candidate to claim representation of the marginalized and
underrepresented, because representation is easy to claim and to feign. The party-list
organization or party must factually and truly represent the marginalized and underrepresented
constituencies mentioned in Section 5.[36] Concurrently, the persons nominated by the party-list
candidate-organization must be Filipino citizens belonging to marginalized and underrepresented
sectors, organizations and parties.
Finally, lack of well-defined constituenc[y] refers to the absence of a traditionally
identifiable electoral group, like voters of a congressional district or territorial unit of
government. Rather, it points again to those with disparate interests identified with the
marginalized or underrepresented.
In the end, the role of the Comelec is to see to it that only those Filipinos who are
marginalized and underrepresented become members of Congress under the party-list system,
Filipino-style.
The intent of the Constitution is clear: to give genuine power to the people, not only by
giving more law to those who have less in life, but more so by enabling them to become veritable
lawmakers themselves. Consistent with this intent, the policy of the implementing law, we
repeat, is likewise clear: to enable Filipino citizens belonging to marginalized and
underrepresented sectors, organizations and parties, x x x, to become members of the House of
Representatives. Where the language of the law is clear, it must be applied according to its
express terms.[37]
The marginalized and underrepresented sectors to be represented under the party-list system
are enumerated in Section 5 of RA 7941, which states:

SEC. 5. Registration. -- Any organized group of persons may register as a party,

organization or coalition for purposes of the party-list system by filing with the
COMELEC not later than ninety (90) days before the election a petition verified by its
president or secretary stating its desire to participate in the party-list system as a
national, regional or sectoral party or organization or a coalition of such parties or
organizations, attaching thereto its constitution, by-laws, platform or program of
government, list of officers, coalition agreement and other relevant information as the
COMELEC may require: Provided, that the sector shall include labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped,
women, youth, veterans, overseas workers, and professionals.

While the enumeration of marginalized and underrepresented sectors is not exclusive, it

demonstrates the clear intent of the law that not all sectors can be represented under the party-list
system. It is a fundamental principle of statutory construction that words employed in a statute
are interpreted in connection with, and their meaning is ascertained by reference to, the words
and the phrases with which they are associated or related. Thus, the meaning of a term in a
statute may be limited, qualified or specialized by those in immediate association.[38]

The Party-List System Desecrated by the OSG Contentions

Notwithstanding the unmistakable statutory policy, the Office of the Solicitor General
submits that RA No. 7941 does not limit the participation in the party-list system to the
marginalized and underrepresented sectors of society.[39] In fact, it contends that any party or
group that is not disqualified under Section 6[40]of RA 7941 may participate in the
elections. Hence, it admitted during the Oral Argument that even an organization representing
the super rich of Forbes Park or Dasmarias Village could participate in the party-list elections.[41]
The declared policy of RA 7941 contravenes the position of the Office of the Solicitor
General (OSG). We stress that the party-list system seeks to enable certain Filipino citizens
specifically those belonging to marginalized and underrepresented sectors, organizations and
parties to be elected to the House of Representatives. The assertion of the OSG that the party-list
system is not exclusive to the marginalized and underrepresented disregards the clear statutory
policy. Its claim that even the super-rich and overrepresented can participate desecrates the spirit
of the party-list system.
Indeed, the law crafted to address the peculiar disadvantages of Payatas hovel dwellers
cannot be appropriated by the mansion owners of Forbes Park. The interests of these two sectors
are manifestly disparate; hence, the OSGs position to treat them similarly defies reason and
common sense. In contrast, and with admirable candor, Atty. Lorna Patajo-Kapunan[42] admitted
during the Oral Argument that a group of bankers, industrialists and sugar planters could not join
the party-list system as representatives of their respective sectors.[43]
While the business moguls and the mega-rich are, numerically speaking, a tiny minority,
they are neither marginalized nor underrepresented, for the stark reality is that their economic
clout engenders political power more awesome than their numerical limitation.Traditionally,
political power does not necessarily emanate from the size of ones constituency; indeed, it is
likely to arise more directly from the number and amount of ones bank accounts.
It is ironic, therefore, that the marginalized and underrepresented in our midst are the
majority who wallow in poverty, destitution and infirmity. It was for them that the party-list
system was enacted -- to give them not only genuine hope, but genuine power; to give them the
opportunity to be elected and to represent the specific concerns of their constituencies; and
simply to give them a direct voice in Congress and in the larger affairs of the State. In its noblest
sense, the party-list system truly empowers the masses and ushers a new hope for genuine
change. Verily, it invites those marginalized and underrepresented in the past the farm hands, the
fisher folk, the urban poor, even those in the underground movement to come out and participate,
as indeed many of them came out and participated during the last elections. The State cannot
now disappoint and frustrate them by disabling and desecrating this social justice vehicle.
Because the marginalized and underrepresented had not been able to win in the
congressional district elections normally dominated by traditional politicians and vested groups,
20 percent of the seats in the House of Representatives were set aside for the party-list system. In
arguing that even those sectors who normally controlled 80 percent of the seats in the House
could participate in the party-list elections for the remaining 20 percent, the OSG and the
Comelec disregard the fundamental difference between the congressional district elections and
the party-list elections.
As earlier noted, the purpose of the party-list provision was to open up the system,[44] in
order to enhance the chance of sectoral groups and organizations to gain representation in the
House of Representatives through the simplest scheme possible.[45] Logic shows that the system
has been opened to those who have never gotten a foothold within it -- those who cannot
otherwise win in regular elections and who therefore need the simplest scheme possible to do
so. Conversely, it would be illogical to open the system to those who have long been within it --
those privileged sectors that have long dominated the congressional district elections.
The import of the open party-list system may be more vividly understood when compared to
a student dormitory open house, which by its nature allows outsiders to enter the facilities.
Obviously, the open house is for the benefit of outsiders only, not the dormers themselves who
can enter the dormitory even without such special privilege. In the same vein, the open party-list
system is only for the outsiders who cannot get elected through regular elections otherwise; it is
not for the non-marginalized or overrepresented who already fill the ranks of Congress.
Verily, allowing the non-marginalized and overrepresented to vie for the remaining seats
under the party-list system would not only dilute, but also prejudice the chance of the
marginalized and underrepresented, contrary to the intention of the law to enhance it. The party-
list system is a tool for the benefit of the underprivileged; the law could not have given the same
tool to others, to the prejudice of the intended beneficiaries.
This Court, therefore, cannot allow the party-list system to be sullied and prostituted by
those who are neither marginalized nor underrepresented. It cannot let that flicker of hope be
snuffed out. The clear state policy must permeate every discussion of the qualification of
political parties and other organizations under the party-list system.

Refutation of the Separate Opinions

The Separate Opinions of our distinguished colleagues, Justices Jose C. Vitug and Vicente
V. Mendoza, are anchored mainly on the supposed intent of the framers of the Constitution as
culled from their deliberations.
The fundamental principle in constitutional construction, however, is that the primary source
from which to ascertain constitutional intent or purpose is the language of the provision
itself. The presumption is that the words in which the constitutional provisions are couched
express the objective sought to be attained.[46] In other words, verba legis still prevails. Only
when the meaning of the words used is unclear and equivocal should resort be made to
extraneous aids of construction and interpretation, such as the proceedings of the Constitutional
Commission or Convention, in order to shed light on and ascertain the true intent or purpose of
the provision being construed.[47]
Indeed, as cited in the Separate Opinion of Justice Mendoza, this Court stated in Civil
Liberties Union v. Executive Secretary[48] that the debates and proceedings of the constitutional
convention [may be consulted] in order to arrive at the reason and purpose of the resulting
Constitution x x x only when other guides fail as said proceedings are powerless to vary the
terms of the Constitution when the meaning is clear. Debates in the constitutional convention are
of value as showing the views of the individual members, and as indicating the reason for their
votes, but they give us no light as to the views of the large majority who did not talk, much less
of the mass or our fellow citizens whose votes at the polls gave that instrument the force of
fundamental law. We think it safer to construe the constitution from what appears upon its face.
The proper interpretation therefore depends more on how it was understood by the people
adopting it than in the framers understanding thereof.
Section 5, Article VI of the Constitution, relative to the party-list system, is couched in clear
terms: the mechanics of the system shall be provided by law. Pursuant thereto, Congress enacted
RA 7941. In understanding and implementing party-list representation, we should therefore look
at the law first. Only when we find its provisions ambiguous should the use of extraneous aids of
construction be resorted to.
But, as discussed earlier, the intent of the law is obvious and clear from its plain
words. Section 2 thereof unequivocally states that the party-list system of electing congressional
representatives was designed to enable underrepresented sectors, organizations and parties, and
who lack well-defined political constituencies but who could contribute to the formulation and
enactment of appropriate legislation that will benefit the nation as a whole x x x. The criteria for
participation is well defined. Thus, there is no need for recourse to constitutional deliberations,
not even to the proceedings of Congress. In any event, the framers deliberations merely express
their individual opinions and are, at best, only persuasive in construing the meaning and purpose
of the constitution or statute.
Be it remembered that the constitutionality or validity of Sections 2 and 5 of RA 7941 is not
an issue here. Hence, they remain parts of the law, which must be applied plainly and simply.

Fourth Issue:
Grave Abuse of Discretion

From its assailed Omnibus Resolution, it is manifest that the Comelec failed to appreciate
fully the clear policy of the law and the Constitution. On the contrary, it seems to have ignored
the facet of the party-list system discussed above. The OSG as its counsel admitted before the
Court that any group, even the non-marginalized and overrepresented, could field candidates in
the party-list elections.
When a lower court, or a quasi-judicial agency like the Commission on Elections, violates or
ignores the Constitution or the law, its action can be struck down by this Court on the ground of
grave abuse of discretion.[49] Indeed, the function of all judicial and quasi-judicial
instrumentalities is to apply the law as they find it, not to reinvent or second-guess it.[50]
In its Memorandum, Petitioner Bayan Muna passionately pleads for the outright
disqualification of the major political parties Respondents Lakas-NUCD, LDP, NPC, LP and
PMP on the ground that under Comelec Resolution No. 4073, they have been accredited as the
five (six, including PDP-Laban) major political parties in the May 14, 2001 elections. It argues
that because of this, they have the advantage of getting official Comelec Election Returns,
Certificates of Canvass, preferred poll watchers x x x. We note, however, that this accreditation
does not refer to the party-list election, but, inter alia, to the election of district representatives
for the purpose of determining which parties would be entitled to watchers under Section 26 of
Republic Act No. 7166.
What is needed under the present circumstances, however, is a factual determination of
whether respondents herein and, for that matter, all the 154 previously approved groups, have the
necessary qualifications to participate in the party-list elections, pursuant to the Constitution and
the law.
Bayan Muna also urges us to immediately rule out Respondent Mamamayan Ayaw sa Droga
(MAD), because it is a government entity using government resources and privileges. This
Court, however, is not a trier of facts.[51] It is not equipped to receive evidence and determine the
truth of such factual allegations.
Basic rudiments of due process require that respondents should first be given an opportunity
to show that they qualify under the guidelines promulgated in this Decision, before they can be
deprived of their right to participate in and be elected under the party-list system.

Guidelines for Screening Party-List Participants

The Court, therefore, deems it proper to remand the case to the Comelec for the latter to
determine, after summary evidentiary hearings,whether the 154 parties and organizations
allowed to participate in the party-list elections comply with the requirements of the law. In this
light, the Court finds it appropriate to lay down the following guidelines, culled from the law and
the Constitution, to assist the Comelec in its work.
First, the political party, sector, organization or coalition must represent the marginalized
and underrepresented groups identified in Section 5 of RA 7941. In other words, it must show --
through its constitution, articles of incorporation, bylaws, history, platform of government and
track record -- that it represents and seeks to uplift marginalized and underrepresented sectors.
Verily, majority of its membership should belong to the marginalized and underrepresented. And
it must demonstrate that in a conflict of interests, it has chosen or is likely to choose the interest
of such sectors.
Second, while even major political parties are expressly allowed by RA 7941 and the
Constitution to participate in the party-list system, they must comply with the declared statutory
policy of enabling Filipino citizens belonging to marginalized and underrepresented sectors x x x
to be elected to the House of Representatives. In other words, while they are not disqualified
merely on the ground that they are political parties, they must show, however, that they represent
the interests of the marginalized and underrepresented. The counsel of Aksyon Demokratiko and
other similarly situated political parties admitted as much during the Oral Argument, as the
following quote shows:
JUSTICE PANGANIBAN: I am not disputing that in my question. All I am saying is, the political
party must claim to represent the marginalized and underrepresented sectors?
ATTY. KAPUNAN: Yes, Your Honor, the answer is yes.[52]
Third, in view of the objections[53] directed against the registration of Ang Buhay Hayaang
Yumabong, which is allegedly a religious group, the Court notes the express constitutional
provision that the religious sector may not be represented in the party-list system. The extent of
the constitutional proscription is demonstrated by the following discussion during the
deliberations of the Constitutional Commission:
MR. OPLE. x x x
 In the event that a certain religious sect with nationwide and even international networks
of members and supporters, in order to circumvent this prohibition, decides to form its own
political party in emulation of those parties I had mentioned earlier as deriving their inspiration
and philosophies from well-established religious faiths, will that also not fall within this
prohibition?
MR. MONSOD. If the evidence shows that the intention is to go around the prohibition, then certainly
the Comelec can pierce through the legal fiction.[54]
The following discussion is also pertinent:
MR. VILLACORTA. When the Commissioner proposed EXCEPT RELIGIOUS GROUPS, he is not,
of course, prohibiting priests, imams or pastors who may be elected by, say, the indigenous
community sector to represent their group.
REV. RIGOS. Not at all, but I am objecting to anybody who represents the Iglesia ni Kristo, the
Catholic Church, the Protestant Church et cetera.[55]
Furthermore, the Constitution provides that religious denominations and sects shall not be
registered.[56] The prohibition was explained by a member[57] of the Constitutional Commission in
this wise: [T]he prohibition is on any religious organization registering as a political party. I do
not see any prohibition here against a priest running as a candidate. That is not prohibited here; it
is the registration of a religious sect as a political party.[58]
Fourth, a party or an organization must not be disqualified under Section 6 of RA 7941,
which enumerates the grounds for disqualification as follows:
(1) It is a religious sect or denomination, organization or association organized for religious
purposes;
(2) It advocates violence or unlawful means to seek its goal;
(3) It is a foreign party or organization;
(4) It is receiving support from any foreign government, foreign political party, foundation,
organization, whether directly or through any of its officers or members or indirectly through
third parties for partisan election purposes;
(5) It violates or fails to comply with laws, rules or regulations relating to elections;
(6) It declares untruthful statements in its petition;
(7) It has ceased to exist for at least one (1) year; or
(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least
two per centum (2%) of the votes cast under the party-list system in the two (2) preceding
elections for the constituency in which it has registered.[59]
Note should be taken of paragraph 5, which disqualifies a party or group for violation of or
failure to comply with election laws and regulations. These laws include Section 2 of RA 7941,
which states that the party-list system seeks to enable Filipino citizens belonging to marginalized
and underrepresented sectors, organizations and parties x x x to become members of the House
of Representatives. A party or an organization, therefore, that does not comply with this policy
must be disqualified.
 Fifth, the party or organization must not be an adjunct of, or a project organized or an entity
funded or assisted by, the government. By the very nature of the party-list system, the party or
organization must be a group of citizens, organized by citizens and operated by citizens.It must
be independent of the government. The participation of the government or its officials in the
affairs of a party-list candidate is not only illegal[60] and unfair to other parties, but also
deleterious to the objective of the law: to enable citizens belonging to marginalized and
underrepresented sectors and organizations to be elected to the House of Representatives.
Sixth, the party must not only comply with the requirements of the law; its nominees must
likewise do so. Section 9 of RA 7941 reads as follows:

SEC. 9. Qualifications of Party-List Nominees. No person shall be nominated as

party-list representative unless he is a natural-born citizen of the Philippines, a
registered voter, a resident of the Philippines for a period of not less than one (1) year
immediately preceding the day of the election, able to read and write, a bona
fide member of the party or organization which he seeks to represent for at least
ninety (90) days preceding the day of the election, and is at least twenty-five (25)
years of age on the day of the election.

In case of a nominee of the youth sector, he must at least be twenty-five (25) but not
more than thirty (30) years of age on the day of the election. Any youth sectoral
representative who attains the age of thirty (30) during his term shall be allowed to
continue in office until the expiration of his term.

Seventh, not only the candidate party or organization must represent marginalized and
underrepresented sectors; so also must its nominees. To repeat, under Section 2 of RA 7941, the
nominees must be Filipino citizens who belong to marginalized and underrepresented sectors,
organizations and parties. Surely, the interests of the youth cannot be fully represented by a
retiree; neither can those of the urban poor or the working class, by an industrialist. To allow
otherwise is to betray the State policy to give genuine representation to the marginalized and
underrepresented.
Eighth, as previously discussed, while lacking a well-defined political constituency, the
nominee must likewise be able to contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole. Senator Jose Lina explained during the
bicameral committee proceedings that the nominee of a party, national or regional, is not going
to represent a particular district x x x.[61]

Epilogue

The linchpin of this case is the clear and plain policy of the law: to enable Filipino citizens
belonging to marginalized and underrepresented sectors, organizations and parties, and who lack
well-defined political constituencies but who could contribute to the formulation and enactment
of appropriate legislation that will benefit the nation as a whole, to become members of the
House of Representatives.
Crucial to the resolution of this case is the fundamental social justice principle that those
who have less in life should have more in law.The party-list system is one such tool intended to
benefit those who have less in life. It gives the great masses of our people genuine hope and
genuine power. It is a message to the destitute and the prejudiced, and even to those in the
underground, that change is possible. It is an invitation for them to come out of their limbo and
seize the opportunity.
Clearly, therefore, the Court cannot accept the submissions of the Comelec and the other
respondents that the party-list system is, without any qualification, open to all. Such position
does not only weaken the electoral chances of the marginalized and underrepresented; it also
prejudices them. It would gut the substance of the party-list system. Instead of generating hope, it
would create a mirage. Instead of enabling the marginalized, it would further weaken them and
aggravate their marginalization.
In effect, the Comelec would have us believe that the party-list provisions of the
Constitution and RA 7941 are nothing more than a play on dubious words, a mockery of noble
intentions, and an empty offering on the altar of people empowerment. Surely, this could not
have been the intention of the framers of the Constitution and the makers of RA 7941.
WHEREFORE, this case is REMANDED to the Comelec, which is hereby DIRECTED to
immediately conduct summary evidentiary hearings on the qualifications of the party-list
participants in the light of the guidelines enunciated in this Decision. Considering the extreme
urgency of determining the winners in the last party-list elections, the Comelec is directed to
begin its hearings for the parties and organizations that appear to have garnered such number of
votes as to qualify for seats in the House of Representatives. The Comelec is
further DIRECTED to submit to this Court its compliance report within 30 days from notice
hereof.
The Resolution of this Court dated May 9, 2001, directing the Comelec to refrain from
proclaiming any winner during the last party-list election, shall remain in force until after the
Comelec itself will have complied and reported its compliance with the foregoing disposition.
This Decision is immediately executory upon the Commission on Elections receipt
thereof. No pronouncement as to costs.
SO ORDERED.
Bellosillo, Melo, Puno, Kapunan, Pardo, Buena, and Gonzaga-Reyes, JJ., concur.
Davide, Jr., C.J., in the result.
Vitug and Mendoza, JJ., see dissenting opinion.
Quisumbing, De Leon, Jr., and Sandoval-Gutierrez, JJ., join the dissent of J. Vicente M.
Mendoza.
Ynares-Santiago, J., abroad on official business.
[1]
Signed by Chairman Alfredo L. Benipayo and Commissioners Luzviminda G. Tancangco, Rufino S. B. Javier,
Ralph C. Lantion, Mehol K. Sadain, Resurreccion Z. Borra and Florentino A. Tuason Jr.
[2]
Omnibus Resolution No. 3785, p. 13; rollo (GR No. 147589), p. 40.
[3]
Ibid., pp. 21-22; rollo, pp. 48-49.
[4]
Rollo (GR No. 147589), pp. 272-273.
[5]
Rollo (GR No. 147589), pp. 250-263.
[6]
Rollo (GR No. 147589), pp. 282-283.
[7]
See rollo (GR No. 147613), p. 223.
[8]
TSN (GR No. 147589 and 147613), May 17, 2001, p. 49.
[9]
Rollo (GR No. 147589), pp. 4-73.
[10]
Rollo (GR No. 147589), p. 74.
[11]
Comments were filed by MAD, Bagong Bayani, The True Marcos Loyalists, the Comelec, Partido ng Masang
Pilipino, the Liberal Party, the Office of the Solicitor General, CREBA, Lakas-NUCD-UMDP, the Philippine Local
Autonomy Movement, Aksyon Demokratiko, Citizens Drug Watch Foundation, Ang Buhay Hayaang Yumabong,
Ang Lakas ng OCW, and Sports and Health Foundation.
[12]
Rollo (GR No. 147613), pp. 3-45.
[13]
Rollo (GR No. 147613), p. 46.
[14]
These were filed by the Office of the Solicitor General, the Comelec, the Bagong Bayani Organization,
Mamamayan Ayaw sa Droga, and the Philippine Local Autonomy Movement.
[15]
Memoranda were filed by Petitioners Bayan Muna and Ang Bagong Bayani-OFW Labor Party; and Respondents
Mamamayan Ayaw sa Droga, CREBA, the Bagong Bayani Organization, the Office of the Solicitor General, and
Aksyon Demokratiko. Manifestations instead of memoranda were filed by Lakas-NUCD and OCW.
[16]
See the May 17, 2001 Resolution, p. 2; rollo (GR No. 147613), p. 88.
[17]
See, e.g., the Bagong Bayani Organizations Memorandum, pp. 3-4; Aksyon Demokratikos Memorandum, pp. 2-
3; and MADs Memorandum, pp. 3-6.
[18]
Rules and regulations governing the filing of a petition for registration, a manifestation to participate, and the
names of nominees under the party-list system of representation in connection with the May 14, 2001 national and
local elections.
[19]
OSGs Memorandum, pp. 6-14; rollo (GR No. 147613), pp. 151-159.
[20]
Section 1, Article VIII of the Constitution, provides: 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.
[21]
SECTION 1. What pleadings are not allowed. The following pleadings are not allowed:
xxxxxxxxx
d) motion for reconsideration of an en banc ruling, resolution, order or decision except in election offense cases;
xxxxxxxxx
[22]
Docketed as SPA 01-113. As earlier noted, Akbayan also filed before the Comelec a similar Petition, docketed as
SPA-01-109. See Annexes 1 and 2, Comment of the Office of the Solicitor General; rollo (GR No. 147589), pp. 250
et seq. and 266 et seq.
[23]
Section 1, Rule 65. See Filoteo v. Sandiganbayan, 263 SCRA 222, October 16, 1996; BF Corporation v. CA, 288
SCRA 267, March 27, 1998; GSIS v. Olisa, 304 SCRA 421, March 10, 1999; National Steel Corporation v. CA, GR
No. 134437, January 31, 2000; Sahali v. Comelec, GR No. 134169, February 2, 2000
[24]
Republic v. Sandiganbayan, 269 SCRA 316, March 7, 1997, per Panganiban, J. See also ABS-CBN Broadcasting
Corporation v. Commission on Elections, GR No. 133486, January 28, 2000; Central Bank v. Cloribel, 44 SCRA
307, April 11, 1972.
[25]
Salonga v. Cruz Pao, 134 SCRA 438, February 18, 1985, per Gutierrez, Jr., J. See also Taada v. Angara, 272
SCRA 18, May 2, 1997; Guingona v. Gonzales, 219 SCRA 326, March 1, 1993.
[26]
ABS-CBN v. Comelec, GR No. 133486, January 28, 2000, per Panganiban, J.
[27]
Petition of Ang Bagong Bayani-OFW Labor Party, p. 15; rollo (GR No. 147589), p. 18.
[28]
Petition of Bayan Muna, p. 18; rollo (GR No. 147613), p. 20.
[29]
OSG Comment, p. 18; rollo (GR No. 147589), p. 244.
[30]
Emphasis supplied. See also 17 and 18, Article VI of the Constitution.
[31]
It may be noted that when the Constitution was being drafted in the early days of the post-Marcos era, UNIDO
was the dominant political party.
[32]
Record of the Constitutional Commission, Vol. II, p. 86.
[33]
Record of the Constitutional Commission, Vol. II, p. 570.
[34]
Record of the Constitutional Commission, Vol. II, p. 86.
[35]
Record of the Constitutional Commission, Vol. II, p. 561.
[36]
Infra.
[37]
Azarcon v. Sandiganbayan, 268 SCRA 747, February 26, 1997; Ramirez v. CA, 248 SCRA 590, September 28,
1995.
[38]
82 C.J.S. Statutes 331.
[39]
OSG Comment, p. 18; rollo (GR No. 147589), p. 244.
[40]
Infra.
[41]
TSN, May 17, 2001, pp. 147-148.
[42]
Counsel of Aksyon Demokratiko.
[43]
TSN, May 17, 2001, pp. 178-180.
[44]
Supra. See also 6, Article IX (C) of the Constitution, which reads: A free and open party system shall be allowed
to evolve according to the free choice of the people, subject to the provisions of this Article.
[45]
Section 2 of RA 7941 states in part as follows: x x x. Towards this end, the State shall develop and guarantee a
full, free and open party system in order to attain the broadest possible representation of party, sectoral or group
interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature,
and shall provide the simplest scheme possible.
[46]
JM Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413, February 18, 1970; cited in Ruben C.
Agpalo, Statutory Construction, 1990 ed., p. 311. See also Gold Creek Mining Corp. v. Rodriguez, 66 Phil 259, 264
(1938).
[47]
See Agpalo, ibid., p. 313.
[48]
194 SCRA 317, February 22, 1991, per Fernan, CJ; quoting Commonwealth v. Ralph, 111 Pa 365, 3 Atl 220.
[49]
Taada v. Angara, 272 SCRA 18, May 2, 1997. See also Santiago v. Guingona, 298 SCRA 756, November 18,
1998; Miranda v. Aguirre, 314 SCRA 603, September 16, 1999; Garcia v. HRET, 312 SCRA 353, August 12, 1999.
[50]
Veterans Federation Party et al. v. Comelec et al., GR No. 136781, October 6, 2000.
[51]
See Valmonte v. Court of Appeals, 303 SCRA 278, February 18, 1999; Inciong Jr. v. CA, 257 SCRA 578, June
26, 1996; Palomado v. NLRC, 257 SCRA 680, June 28, 1996; Heirs of the Late Teodoro Guaring Jr. v. CA, 269
SCRA 283, March 7, 1997; Sesbreo v. Central Board of Assessment Appeals, 270 SCRA 360, March 24, 1997;
PCGG v. Cojuangco Jr., 302 SCRA 217, January 27, 1999.
[52]
TSN, May 17, 2001, p. 180.
[53]
Petition of Ang Bagong Bayani-OFW Labor Party, p. 16; rollo (GR No. 147589), p. 19.
[54]
Record of the Constitutional Commission, Vol. I, p. 636.
[55]
Record of the Constitutional Commission, Vol. II, p. 589.
[56]
2 (5), Article IX (C).
[57]
Christian S. Monsod.
[58]
Record of the Constitutional Commission, Vol. I, p. 634
[59]
See also 11, Comelec Resolution No. 3307-A.
[60]
See 2 (4), Article IX (B) of the Constitution. See also Article 261 (o), BP 881.
[61]
The bicameral conference committee on the disagreeing provision of Senate Bill No. 1913 and House Bill No.
3040, January 31, 1994, p. 4.

EN BANC

[G.R. No. 136781. October 6, 2000]

VETERANS FEDERATION PARTY, ALYANSANG BAYANIHAN NG

MGA MAGSASAKA, MANGGAGAWANG BUKID AT
MANGINGISDA, ADHIKAIN AT KILUSAN NG ORDINARYONG
TAO PARA SA LUPA, PABAHAY AT KAUNLARAN, and LUZON
FARMERS PARTY, petitioners, vs. COMMISSION ON
ELECTIONS, PAG-ASA, SENIOR CITIZENS, AKAP AKSYON,
PINATUBO, NUPA, PRP, AMIN, PAG-ASA, MAHARLIKA, OCW-
UNIFIL, PCCI, AMMA-KATIPUNAN, KAMPIL, BANTAY-BAYAN,
AFW, ANG LAKAS OCW, WOMEN-POWER, INC., FEJODAP,
CUP, VETERANS CARE, 4L, AWATU, PMP, ATUCP, NCWP, ALU,
BIGAS, COPRA, GREEN, ANAKBAYAN, ARBA, MINFA, AYOS,
ALL COOP, PDP-LABAN, KATIPUNAN, ONEWAY PRINT,
AABANTE KA PILIPINAS -- All Being Party-List
Parties/Organizations -- and Hon. MANUEL B. VILLAR, JR. in His
 Capacity as Speaker of the House of
Representatives, respondents.

[G.R. No. 136786. October 6, 2000]

AKBAYAN! (CITIZENS' ACTION PARTY), ADHIKAIN AT KILUSAN NG

ORDINARYONG TAO PARA SA LUPA, PABAHAY AT
KAUNLARAN (AKO), and ASSOCIATION OF PHILIPPINE
ELECTRIC COOPERATIVES (APEC), petitioners,
vs. COMMISSION ON ELECTIONS (COMELEC), HOUSE OF
REPRESENTATIVES represented by Speaker Manuel B. Villar,
PAG-ASA, SENIOR CITIZENS, AKAP, AKSYON, PINATUBO,
NUPA, PRP, AMIN, MAHARLIKA, OCW, UNIFIL, PCCI, AMMA-
KATIPUNAN, KAMPIL, BANTAY-BAYAN, AFW, ANG LAKAS
OCW, WOMENPOWER INC., FEJODAP, CUP, VETERANS CARE,
FOUR "L", AWATU, PMP, ATUCP, NCWP, ALU, BIGAS, COPRA,
GREEN, ANAK-BAYAN, ARBA, MINFA, AYOS, ALL COOP, PDP-
LABAN, KATIPUNAN, ONEWAY PRINT, AABANTE KA
PILIPINAS, respondents.

[G.R. No. 136795. October 6, 2000]

ALAGAD (PARTIDO NG MARALITANG-LUNGSOD), NATIONAL

CONFEDERATION OF SMALL COCONUT FARMERS'
ORGANIZATIONS (NCSFCO), and LUZON FARMERS' PARTY
(BUTIL), petitioners, vs. COMMISSION ON ELECTIONS, SENIOR
CITIZENS, AKAP, AKSYON, PINATUBO, NUPA, PRP, AMIN, PAG-
ASA, MAHARLIKA, OCW, UNIFIL, PCCI, AMMA-KATIPUNAN,
KAMPIL, BANTAY-BAYAN, AFW, ANG LAKAS OCW,
WOMENPOWER INC., FEJODAP, CUP, VETERANS CARE, 4L,
AWATU, PMP, ATUCP, NCWP, ALU, BIGAS, COPRA, GREEN,
ANAK-BAYAN, ARBA, MINFA, AYOS, ALL COOP, PDP-LABAN,
KATIPUNAN, ONEWAY PRINT, and AABANTE KA
PILIPINAS, respondents.
 DECISION
PANGANIBAN, J.:*

Prologue

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

and Republic Act (RA) No. 7941 mandate at least four inviolable parameters. These
are:
First, the twenty percent allocation - the combined number of all party-list
congressmen shall not exceed twenty percent of the total membership of the House of
Representatives, including those elected under the party list.
Second, the two percent threshold - only those parties garnering a minimum of
two percent of the total valid votes cast for the party-list system are qualified to have a
seat in the House of Representatives;
Third, the three-seat limit - each qualified party, regardless of the number of votes
it actually obtained, is entitled to a maximum of three seats; that is, one qualifying and
two additional seats.
Fourth, proportional representation - the additional seats which a qualified party
is entitled to shall be computed in proportion to their total number of votes.
Because the Comelec violated these legal parameters, the assailed Resolutions
must be struck down for having been issued in grave abuse of discretion. The poll body
is mandated to enforce and administer election-related laws. It has no power to
contravene or amend them. Neither does it have authority to decide the wisdom,
propriety or rationality of the acts of Congress.
Its bounden duty is to craft rules, regulations, methods and formulas to implement
election laws -- not to reject, ignore, defeat, obstruct or circumvent them.
In fine, the constitutional introduction of the party-list system - a normal feature of
parliamentary democracies - into our presidential form of government, modified by
unique Filipino statutory parameters, presents new paradigms and novel questions,
which demand innovative legal solutions convertible into mathematical formulations
which are, in turn, anchored on time-tested jurisprudence.

The Case

Before the Court are three consolidated Petitions for Certiorari (with applications for
the issuance of a temporary restraining order or writ of preliminary injunction) under
Rule 65 of the Rules of Court, assailing (1) the October 15, 1998 Resolution [1] of the
Commission on Elections (Comelec), Second Division, in Election Matter 98-065;[2] and
(2) the January 7, 1999 Resolution[3] of the Comelec en banc, affirming the said
disposition. The assailed Resolutions ordered the proclamation of thirty-eight (38)
additional party-list representatives "to complete the full complement of 52 seats in the
House of Representatives as provided under Section 5, Article VI of the 1987
Constitution and R.A. 7941.

The Facts and the Antecedents

Our 1987 Constitution introduced a novel feature into our presidential system of
government -- the party-list method of representation. Under this system, any national,
regional or sectoral party or organization registered with the Commission on Elections
may participate in the election of party-list representatives who, upon their election and
proclamation, shall sit in the House of Representatives as regular members. [4] In effect,
a voter is given two (2) votes for the House -- one for a district congressman and
another for a party-list representative.[5]
Specifically, this system of representation is mandated by Section 5, Article VI of the
Constitution, which provides:

Sec. 5. (1) The House of Representatives shall be composed of not more than two
hundred and fifty members, unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective inhabitants, and on the
basis of a uniform and progressive ratio, and those who, as provided by law, shall be
elected by a party-list system of registered national, regional, and sectoral parties or
organizations.

(2) The party-list representatives shall constitute twenty per centum of the total
number of representatives including those under the party-list. For three consecutive
terms after the ratification of this Constitution, one half of the seats allocated to party-
list representatives shall be filled, as provided by law, by selection or election from
the labor, peasant, urban poor, indigenous cultural communities, women, youth, and
such other sectors as may be provided by law, except the religious sector.

Complying with its constitutional duty to provide by law the selection or election of
party-list representatives, Congress enacted RA 7941 on March 3, 1995. Under this
statutes policy declaration, the State shall "promote proportional representation in the
election of representatives to the House of Representatives through a party-list system
of registered national, regional and sectoral parties or organizations or coalitions
thereof, which will enable Filipino citizens belonging to marginalized and
underrepresented sectors, organizations and parties, and who lack well-defined political
constituencies but who could contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole, to become members of the House of
Representatives. Towards this end, the State shall develop and guarantee a full, free
and open party system in order to attain the broadest possible representation of party,
sectoral or group interests in the House of Representatives by enhancing their chances
to compete for and win seats in the legislature, and shall provide the simplest scheme
possible. (italics ours.)
The requirements for entitlement to a party-list seat in the House are prescribed by
this law (RA 7941) in this wise:

Sec. 11. Number of Party-List Representatives. -- The party-list representatives shall

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

For purposes of the May 1998 elections, the first five (5) major political parties on the
basis of party representation in the House of Representatives at the start of the Tenth
Congress of the Philippines shall not be entitled to participate in the party-list system.

In determining the allocation of seats for the second vote, the following procedure
shall be observed:

(a) The parties, organizations, and coalitions shall be ranked from the highest to the
lowest based on the number of votes they garnered during the elections.

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

Pursuant to Section 18 of RA 7941, the Comelec en banc promulgated Resolution

No. 2847, prescribing the rules and regulations governing the election of party-list
representatives through the party-list system.

Election of the Fourteen Party-List Representatives

On May 11, 1998, the first election for party-list representation was held
simultaneously with the national elections. A total of one hundred twenty-three (123)
parties, organizations and coalitions participated. On June 26, 1998, the Comelec en
banc proclaimed thirteen (13) party-list representatives from twelve (12) parties and
organizations, which had obtained at least two percent of the total number of votes cast
for the party-list system. Two of the proclaimed representatives belonged to Petitioner
APEC, which obtained 5.5 percent of the votes. The proclaimed winners and the votes
cast in their favor were as follows:[6]
Party/Organization/ Number of Percentage of Nominees
Coalition Votes Obtained Total Votes
1. APEC 503,487 5.5% Rene M. Silos
Melvyn D. Eballe
2. ABA 321,646 3.51% Leonardo Q. Montemayor
3. ALAGAD 312,500 3.41% Diogenes S. Osabel
4. VETERANS 304,802 3.33% Eduardo P. Pilapil
FEDERATION
5. PROMDI 255,184 2.79% Joy A.G. Young
6. AKO 239,042 2.61% Ariel A. Zartiga
7. NCSCFO 238,303 2.60% Gorgonio P. Unde
8. ABANSE! PINAY 235,548 2.57% Patricia M. Sarenas
9. AKBAYAN 232,376 2.54% Loreta Ann P. Rosales
10. BUTIL 215,643 2.36% Benjamin A. Cruz
11. SANLAKAS 194,617 2.13% Renato B. Magtubo
12. COOP-NATCCO 189,802 2.07% Cresente C. Paez
After passing upon the results of the special elections held on July 4, 18, and 25,
1998, the Comelec en banc further determined that COCOFED (Philippine Coconut
Planters Federation, Inc.) was entitled to one party-list seat for having garnered 186,388
votes, which were equivalent to 2.04 percent of the total votes cast for the party-list
system. Thus, its first nominee, Emerito S. Calderon, was proclaimed on September 8,
1998 as the 14th party-list representative.[7]
On July 6, 1998, PAG-ASA (Peoples Progressive Alliance for Peace and Good
Government Towards Alleviation of Poverty and Social Advancement) filed with the
Comelec a "Petition to Proclaim [the] Full Number of Party-List Representatives
provided by the Constitution." It alleged that the filling up of the twenty percent
membership of party-list representatives in the House of Representatives, as provided
under the Constitution, was mandatory. It further claimed that the literal application of
the two percent vote requirement and the three-seat limit under RA 7941 would defeat
this constitutional provision, for only 25 nominees would be declared winners, short of
the 52 party-list representatives who should actually sit in the House.
Thereafter, nine other party-list organizations[8] filed their respective Motions for
Intervention, seeking the same relief as that sought by PAG-ASA on substantially the
same grounds. Likewise, PAG-ASAs Petition was joined by other party-list
organizations in a Manifestation they filed on August 28, 1998. These organizations
were COCOFED, Senior Citizens, AKAP, AKSYON, PINATUBO, NUPA, PRP, AMIN,
PCCI, AMMA-KATIPUNAN, OCW-UNIFIL, KAMPIL, MAHARLIKA, AFW, Women
Power, Inc., Ang Lakas OCW, FEJODAP, CUP, Veterans Care, Bantay Bayan, 4L,
AWATU, PMP, ATUCP, ALU and BIGAS.
On October 15, 1998, the Comelec Second Division promulgated the present
assailed Resolution granting PAG-ASA's Petition. It also ordered the proclamation of
herein 38 respondents who, in addition to the 14 already sitting, would thus total 52
party-list representatives. It held that "at all times, the total number of
congressional[9] seats must be filled up by eighty (80%) percent district representatives
and twenty (20%) percent party-list representatives." In allocating the 52 seats, it
disregarded the two percent-vote requirement prescribed under Section 11 (b) of RA
7941. Instead, it identified three "elements of the party-list system," which should
supposedly determine "how the 52 seats should be filled up." First, "the system was
conceived to enable the marginalized sectors of the Philippine society to be represented
in the House of Representatives." Second, "the system should represent the broadest
sectors of the Philippine society." Third, "it should encourage [the] multi-party system.
(Boldface in the original.) Considering these elements, but ignoring the two percent
threshold requirement of RA 7941, itconcluded that "the party-list groups ranked Nos. 1
to 51 x x x should have at least one representative. It thus disposed as follows:

"WHEREFORE, by virtue of the powers vested in it by the Constitution, the Omnibus

Election Code (B.P. 881), Republic Act No. 7941 and other election laws, the
Commission (Second Division) hereby resolves to GRANT the instant petition and
motions for intervention, to include those similarly situated.

ACCORDINGLY, the nominees from the party-list hereinbelow enumerated based on

the list of names submitted by their respective parties, organizations and coalitions are
PROCLAIMED as party-list representatives, to wit:

1. SENIOR CITIZENS
2. AKAP
3. AKSYON
4. PINATUBO
5. NUPA
6. PRP
7. AMIN
8. PAG-ASA
9. MAHARLIKA
10. OCW-UNIFIL
11. FCL
12. AMMA-KATIPUNAN
13. KAMPIL
14. BANTAY BAYAN
15. AFW
16. ANG LAKAS OCW
17. WOMENPOWER, INC.
18. FEJODAP
19. CUP
 20. VETERANS CARE
21. 4L
22. AWATU
23. PMP
24. ATUCP
25. NCWP
26. ALU
27. BIGAS
28. COPRA
29. GREEN
30. ANAKBAYAN
31. ARBA
32. MINFA
33. AYOS
34. ALL COOP
35. PDP-LABAN
36. KATIPUNAN
37. ONEWAY PRINT
38. AABANTE KA PILIPINAS

to complete the full complement of 52 seats in the House of Representatives as

provided in Section 5, Article VI of the 1987 Constitution and R.A. 7941.

The foregoing disposition sums up a glaring bit of inconsistency and flip-flopping. In

its Resolution No. 2847 dated June 25, 1996, the Comelec en banc had unanimously
promulgated a set of Rules and Regulations Governing the Election of x x x Party-List
Representatives Through the Party-List System. Under these Rules and Regulations,
one additional seat shall be given for every two percent of the vote, a formula the
Comelec illustrated in its Annex A. It apparently relied on this method when it
proclaimed the 14 incumbent party-list solons (two for APEC and one each for the 12
other qualified parties). However, for inexplicable reasons, it abandoned said
unanimous Resolution and proclaimed, based on its three elements, the Group of 38
private respondents.[10]
The twelve (12) parties and organizations, which had earlier been proclaimed
winners on the basis of having obtained at least two percent of the votes cast for the
party-list system, objected to the proclamation of the 38 parties and filed separate
Motions for Reconsideration. They contended that (1) under Section 11 (b) of RA 7941,
only parties, organizations or coalitions garnering at least two percent of the votes for
the party-list system were entitled to seats in the House of Representatives; and (2)
additional seats, not exceeding two for each, should be allocated to those which had
garnered the two percent threshold in proportion to the number of votes cast for the
winning parties, as provided by said Section 11.

Ruling of the Comelec En Banc

Noting that all the parties -- movants and oppositors alike - had agreed that the
twenty percent membership of party-list representatives in the House "should be filled
up, the Comelec en banc resolved only the issue concerning the apportionment or
allocation of the remaining seats. In other words, the issue was: Should the remaining
38 unfilled seats allocated to party-list solons be given (1) to the thirteen qualified
parties that had each garnered at least two percent of the total votes, or (2) to the Group
of 38 - herein private respondents - even if they had not passed the two percent
threshold?
The poll body held that to allocate the remaining seats only to those who had
hurdled the two percent vote requirement "will mean the concentration of representation
of party, sectoral or group interests in the House of Representatives to thirteen
organizations representing two political parties, three coalitions and four sectors: urban
poor, veterans, women and peasantry x x x. Such strict application of the 2% 'threshold'
does not serve the essence and object of the Constitution and the legislature -- to
develop and guarantee a full, free and open party system in order to attain the broadest
possible representation of party, sectoral or group interests in the House of
Representatives x x x. Additionally, it "will also prevent this Commission from complying
with the constitutional and statutory decrees for party-list representatives to compose
20% of the House of Representatives.
Thus, in its Resolution dated January 7, 1999, the Comelec en banc, by a razor-thin
majority -- with three commissioners concurring[11] and two members[12] dissenting --
affirmed the Resolution of its Second Division. It, however, held in abeyance the
proclamation of the 51st party (AABANTE KA PILIPINAS), "pending the resolution of
petitions for correction of manifest errors.
Without expressly declaring as unconstitutional or void the two percent vote
requirement imposed by RA 7941, the Commission blithely rejected and circumvented
its application, holding that there were more important considerations than this statutory
threshold.
Consequently, several petitions for certiorari, prohibition and mandamus, with
prayers for the issuance of temporary restraining orders or writs of preliminary
injunction, were filed before this Court by the parties and organizations that had
obtained at least two per cent of the total votes cast for the party-list system.[13] In the
suits, made respondents together with the Comelec were the 38 parties, organizations
and coalitions that had been declared by the poll body as likewise entitled to party-list
seats in the House of Representatives. Collectively, petitioners sought the proclamation
of additional representatives from each of their parties and organizations, all of which
had obtained at least two percent of the total votes cast for the party-list system.
On January 12, 1999, this Court issued a Status Quo Order directing the Comelec
to CEASE and DESIST from constituting itself as a National Board of Canvassers on 13
January 1999 or on any other date and proclaiming as winners the nominees of the
parties, organizations and coalitions enumerated in the dispositive portions of its 15
October 1998 Resolution or its 7 January 1999 Resolution, until further orders from this
Court.
On July 1, 1999, oral arguments were heard from the parties. Atty. Jeremias U.
Montemayor appeared for petitioners in GR No. 136781; Atty. Gregorio A. Andolana, for
petitioners in GR No. 136786; Atty. Rodante D. Marcoleta for petitioners in GR No.
136795; Attys. Ricardo Blancaflor and Pete Quirino Quadra, for all the private
respondents; Atty. Porfirio V. Sison for Intervenor NACUSIP; and Atty. Jose P.
Balbuena for Respondent Comelec. Upon invitation of the Court, retired Comelec
Commissioner Regalado E. Maambong acted as amicus curiae. Solicitor General
Ricardo P. Galvez appeared, not for any party but also as a friend of the Court.
Thereafter, the parties and the amici curiae were required to submit their respective
Memoranda in amplification of their verbal arguments.[14]

The Issues

The Court believes, and so holds, that the main question of how to determine the
winners of the subject party-list election can be fully settled by addressing the following
issues:

1. Is the twenty percent allocation for party-list representatives mentioned in Section 5

(2), Article VI of the Constitution, mandatory or is it merely a ceiling? In other words,
should the twenty percent allocation for party-list solons be filled up completely and
all the time?

2. Are the two percent threshold requirement and the three-seat limit provided in
Section 11 (b) of RA 7941 constitutional?

3. If the answer to Issue 2 is in the affirmative, how should the additional seats of a
qualified party be determined?

The Courts Ruling

The Petitions are partly meritorious. The Court agrees with petitioners that the
assailed Resolutions should be nullified, but disagrees that they should all be granted
additional seats.
 First Issue: Whether the Twenty Percent Constitutional Allocation Is Mandatory

The pertinent provision[15] of the Constitution on the composition of the House of

Representatives reads as follows:

Sec. 5. (1) The House of Representatives shall be composed of not more than two
hundred and fifty members, unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective inhabitants, and on the
basis of a uniform and progressive ratio, and those who, as provided by law, shall be
elected by a party-list system of registered national, regional, and sectoral parties or
organizations.

(2) The party-list representatives shall constitute twenty per centum of the total
number of representatives including those under the party-list. For three consecutive
terms after the ratification of this Constitution, one half of the seats allocated to party-
list representatives shall be filled, as provided by law, by selection or election from
the labor, peasant, urban poor, indigenous cultural communities, women, youth, and
such other sectors as may be provided by law, except the religious sector.

Determination of the Total Number of Party-List Lawmakers

Clearly, the Constitution makes the number of district representatives the

determinant in arriving at the number of seats allocated for party-list lawmakers, who
shall comprise "twenty per centum of the total number of representatives including those
under the party-list." We thus translate this legal provision into a mathematical formula,
as follows:
No. of district representatives
---------------------------------- x .20 = No. of party-list
.80 representatives
This formulation[16] means that any increase in the number of district
representatives, as may be provided by law, will necessarily result in a corresponding
increase in the number of party-list seats. To illustrate, considering that there were 208
district representatives to be elected during the 1998 national elections, the number of
party-list seats would be 52, computed as follows:
208
-------- x .20 = 52
.80
 The foregoing computation of seat allocation is easy enough to comprehend. The
problematic question, however, is this: Does the Constitution require all such allocated
seats to be filled up all the time and under all circumstances? Our short answer is No.

Twenty Percent Allocation a Mere Ceiling

The Constitution simply states that "[t]he party-list representatives shall constitute
twenty per centum of the total number of representatives including those under the
party-list.
According to petitioners, this percentage is a ceiling; the mechanics by which it is to
be filled up has been left to Congress.In the exercise of its prerogative, the legislature
enacted RA 7941, by which it prescribed that a party, organization or coalition
participating in the party-list election must obtain at least two percent of the total votes
cast for the system in order to qualify for a seat in the House of Representatives.
Petitioners further argue that the constitutional provision must be construed together
with this legislative requirement. If there is no sufficient number of participating parties,
organizations or coalitions which could hurdle the two percent vote threshold and
thereby fill up the twenty percent party-list allocation in the House, then naturally such
allocation cannot be filled up completely. The Comelec cannot be faulted for the
"incompleteness," for ultimately the voters themselves are the ones who, in the exercise
of their right of suffrage, determine who and how many should represent them.
On the other hand, Public Respondent Comelec, together with the respondent
parties, avers that the twenty percent allocation for party-list lawmakers is mandatory,
and that the two percent vote requirement in RA 7941 is unconstitutional, because its
strict application would make it mathematically impossible to fill up the House party-list
complement.
We rule that a simple reading of Section 5, Article VI of the Constitution, easily
conveys the equally simple message that Congress was vested with the broad power to
define and prescribe the mechanics of the party-list system of representation.The
Constitution explicitly sets down only the percentage of the total membership in the
House of Representatives reserved for party-list representatives.
In the exercise of its constitutional prerogative, Congress enacted RA 7941. As said
earlier, Congress declared therein a policy to promote "proportional representation" in
the election of party-list representatives in order to enable Filipinos belonging to the
marginalized and underrepresented sectors to contribute legislation that would benefit
them. It however deemed it necessary to require parties, organizations and coalitions
participating in the system to obtain at least two percent of the total votes cast for the
party-list system in order to be entitled to a party-list seat. Those garnering more than
this percentage could have "additional seats in proportion to their total number of votes.
Furthermore, no winning party, organization or coalition can have more than three seats
in the House of Representatives. Thus the relevant portion of Section 11(b) of the law
provides:
(b) The parties, organizations, and coalitions receiving at least two percent (2%) of the
total votes cast for the party-list system shall be entitled to one seat each; Provided,
That those garnering more than two percent (2%) of the votes shall be entitled to
additional seats in proportion to their total number of votes; Provided, finally, That
each party, organization, or coalition shall be entitled to not more than three (3) seats.

Considering the foregoing statutory requirements, it will be shown presently that

Section 5 (2), Article VI of the Constitution is not mandatory. It merely provides a ceiling
for party-list seats in Congress.
On the contention that a strict application of the two percent threshold may result in
a mathematical impossibility, suffice it to say that the prerogative to determine whether
to adjust or change this percentage requirement rests in Congress. [17] Our task now, as
should have been the Comelecs, is not to find fault in the wisdom of the law through
highly unlikely scenarios of clinical extremes, but to craft an innovative mathematical
formula that can, as far as practicable, implement it within the context of the actual
election process.
Indeed, the function of the Supreme Court, as well as of all judicial and quasi-
judicial agencies, is to apply the law as we find it, not to reinvent or second-guess
it. Unless declared unconstitutional, ineffective, insufficient or otherwise void by the
proper tribunal, a statute remains a valid command of sovereignty that must be
respected and obeyed at all times. This is the essence of the rule of law.

Second Issue: The Statutory Requirement and Limitation

The Two Percent Threshold

In imposing a two percent threshold, Congress wanted to ensure that only those
parties, organizations and coalitions having a sufficient number of constituents
deserving of representation are actually represented in Congress. This intent can be
gleaned from the deliberations on the proposed bill. We quote below a pertinent portion
of the Senate discussion:

SENATOR GONZALES: For purposes of continuity, I would want to follow up a

point that was raised by, I think, Senator Osmea when he said that a political party
must have obtained at least a minimum percentage to be provided in this law in order
to qualify for a seat under the party-list system.

They do that in many other countries. A party must obtain at least 2 percent of the
votes cast, 5 percent or 10 percent of the votes cast.Otherwise, as I have said, this will
actually proliferate political party groups and those who have not really been given by
the people sufficient basis for them to represent their constituents and, in turn, they
will be able to get to the Parliament through the backdoor under the name of the party-
list system, Mr. President."[18]

A similar intent is clear from the statements of the bill sponsor in the House of
Representatives, as the following shows:

MR. ESPINOSA. There is a mathematical formula which this computation is based at,
arriving at a five percent ratio which would distribute equitably the number of seats
among the different sectors. There is a mathematical formula which is, I think,
patterned after that of the party list of the other parliaments or congresses, more
particularly the Bundestag of Germany.[19]

Moreover, even the framers of our Constitution had in mind a minimum-vote

requirement, the specification of which they left to Congress to properly
determine. Constitutional Commissioner Christian S. Monsod explained:

MR. MONSOD. x x x We are amenable to modifications in the minimum percentage

of votes. Our proposal is that anybody who has two-and-a-half percent of the votes
gets a seat. There are about 20 million who cast their votes in the last elections. Two-
and-a-half percent would mean 500,000 votes. Anybody who has a constituency of
500,000 votes nationwide deserves a seat in the Assembly. If we bring that down to
two percent, we are talking about 400,000 votes. The average vote per family is
three. So, here we are talking about 134,000 families. We believe that there are many
sectors who will be able to get seats in the Assembly because many of them have
memberships of over 10,000. In effect, that is the operational implication of our
proposal. What we are trying to avoid is this selection of sectors, the reserve seat
system. We believe that it is our job to open up the system and that we should not
have within that system a reserve seat. We think that people should organize, should
work hard, and should earn their seats within that system.[20]

The two percent threshold is consistent not only with the intent of the framers of the
Constitution and the law, but with the very essence of "representation." Under a
republican or representative state, all government authority emanates from the people,
but is exercised by representatives chosen by them.[21] But to have meaningful
representation, the elected persons must have the mandate of a sufficient number of
people. Otherwise, in a legislature that features the party-list system, the result might be
the proliferation of small groups which are incapable of contributing significant
legislation, and which might even pose a threat to the stability of Congress. Thus, even
legislative districts are apportioned according to "the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio"[22] to ensure meaningful
local representation.
 All in all, we hold that the statutory provision on this two percent requirement is
precise and crystalline. When the law is clear, the function of courts is simple
application, not interpretation or circumvention.[23]

The Three-Seat-Per-Party Limit

An important consideration in adopting the party-list system is to promote and

encourage a multiparty system of representation. Again, we quote Commissioner
Monsod:

MR. MONSOD. Madam President, I just want to say that we suggested or proposed
the party list system because we wanted to open up the political system to a pluralistic
society through a multiparty system. But we also wanted to avoid the problems of
mechanics and operation in the implementation of a concept that has very serious
shortcomings of classification and of double or triple votes. We are for opening up the
system, and we would like very much for the sectors to be there. That is why one of
the ways to do that is to put a ceiling on the number of representatives from any single
party that can sit within the 50 allocated under the party list system. This way, we will
open it up and enable sectoral groups, or maybe regional groups, to earn their seats
among the fifty. x x x.[24]

Consistent with the Constitutional Commission's pronouncements, Congress set the

seat-limit to three (3) for each qualified party, organization or coalition. "Qualified"
means having hurdled the two percent vote threshold. Such three-seat limit ensures the
entry of various interest-representations into the legislature; thus, no single group, no
matter how large its membership, would dominate the party-list seats, if not the entire
House.
We shall not belabor this point, because the validity of the three-seat limit is not
seriously challenged in these consolidated cases.

Third Issue: Method of Allocating Additional Seats

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

One Additional Seat Per Two Percent Increment

One proposed formula is to allocate one additional seat for every additional
proportion of the votes obtained equivalent to the two percent vote requirement for the
first seat.[25] Translated in figures, a party that wins at least six percent of the total votes
cast will be entitled to three seats; another party that gets four percent will be entitled to
two seats; and one that gets two percent will be entitled to one seat only. This proposal
has the advantage of simplicity and ease of comprehension. Problems arise, however,
when the parties get very lop-sided votes -- for example, when Party A receives 20
percent of the total votes cast; Party B, 10 percent; and Party C, 6 percent. Under the
method just described, Party A would be entitled to 10 seats; Party B, to 5 seats and
Party C, to 3 seats. Considering the three-seat limit imposed by law, all the parties will
each uniformly have three seats only. We would then have the spectacle of a party
garnering two or more times the number of votes obtained by another, yet getting the
same number of seats as the other one with the much lesser votes. In effect,
proportional representation will be contravened and the law rendered nugatory by this
suggested solution. Hence, the Court discarded it.

The Niemeyer Formula

Another suggestion that the Court considered was the Niemeyer formula, which was
developed by a German mathematician and adopted by Germany as its method of
distributing party-list seats in the Bundestag. Under this formula, the number of
additional seats to which a qualified party would be entitled is determined by multiplying
the remaining number of seats to be allocated by the total number of votes obtained by
that party and dividing the product by the total number of votes garnered by all the
qualified parties. The integer portion of the resulting product will be the number of
additional seats that the party concerned is entitled to. Thus:
No. of remaining seats
to be allocated No. of additional
--------------------------- x No. of votes of = seats of party
Total no. of votes of party concerned concerned
qualified parties (Integer.decimal)
The next step is to distribute the extra seats left among the qualified parties in the
descending order of the decimal portions of the resulting products. Based on the 1998
election results, the distribution of party-list seats under the Niemeyer method would be
as follows:
Party Number of Guaranteed Additional Extra Total
Votes Seats Seats Seats
1. APEC 503,487 1 5.73 1 7
2. ABA 321,646 1 3.66 1 5
3. ALAGAD 312,500 1 3.55 4
4. VETERANS 304,802 1 3.47 4
FEDERATION
5. PROMDI 255,184 1 2.90 1 4
6. AKO 239,042 1 2.72 1 4
7. NCSCFO 238,303 1 2.71 1 4
8. ABANSE! PINAY 235,548 1 2.68 1 4
9. AKBAYAN 232,376 1 2.64 1 4
10. BUTIL 215,643 1 2.45 3
11. SANLAKAS 194,617 1 2.21 3
12. COOP-NATCCO 189,802 1 2.16 3
13. COCOFED 186,388 1 2.12 3
Total 3,429,338 13 32 7 52
However, since Section 11 of RA 7941 sets a limit of three (3) seats for each party,
those obtaining more than the limit will have to give up their excess seats. Under our
present set of facts, the thirteen qualified parties will each be entitled to three seats,
resulting in an overall total of 39. Note that like the previous proposal, the Niemeyer
formula would violate the principle of "proportional representation," a basic tenet of our
party-list system.
The Niemeyer formula, while no doubt suitable for Germany, finds no application in
the Philippine setting, because of our three-seat limit and the non-mandatory character
of the twenty percent allocation. True, both our Congress and the Bundestaghave
threshold requirements -- two percent for us and five for them. There are marked
differences between the two models, however. As ably pointed out by private
respondents,[26] one half of the German Parliament is filled up by party-list
members.More important, there are no seat limitations, because German law
discourages the proliferation of small parties. In contrast, RA 7941, as already
mentioned, imposes a three-seat limit to encourage the promotion of the multiparty
system. This major statutory difference makes the Niemeyer formula completely
inapplicable to the Philippines.
Just as one cannot grow Washington apples in the Philippines or Guimaras
mangoes in the Arctic because of fundamental environmental differences, neither can
the Niemeyer formula be transplanted in toto here because of essential variances
between the two party-list models.
The Legal and Logical Formula for the Philippines

It is now obvious that the Philippine style party-list system is a unique paradigm
which demands an equally unique formula.In crafting a legally defensible and logical
solution to determine the number of additional seats that a qualified party is entitled to,
we need to review the parameters of the Filipino party-list system.
As earlier mentioned in the Prologue, they are as follows:
First, the twenty percent allocation - the combined number of all party-list
congressmen shall not exceed twenty percent of the total membership of the House of
Representatives, including those elected under the party list.
Second, the two percent threshold - only those parties garnering a minimum of
two percent of the total valid votes cast for the party-list system are qualified to have a
seat in the House of Representatives;
Third, the three-seat limit - each qualified party, regardless of the number of votes
it actually obtained, is entitled to a maximum of three seats; that is, one qualifying and
two additional seats.
Fourth, proportional representation - the additional seats which a qualified party
is entitled to shall be computed in proportion to their total number of votes.
The problem, as already stated, is to find a way to translate proportional
representation into a mathematical formula that will not contravene, circumvent or
amend the above-mentioned parameters.
After careful deliberation, we now explain such formula, step by step.
Step One. There is no dispute among the petitioners, the public and the private
respondents, as well as the members of this Court, that the initial step is to rank all the
participating parties, organizations and coalitions from the highest to the lowest based
on the number of votes they each received. Then the ratio for each party is computed
by dividing its votes by the total votes cast for all the parties participating in the
system. All parties with at least two percent of the total votes are guaranteed one seat
each. Only these parties shall be considered in the computation of additional seats. The
party receiving the highest number of votes shall thenceforth be referred to as the first
party.
Step Two. The next step is to determine the number of seats the first party is
entitled to, in order to be able to compute that for the other parties. Since the distribution
is based on proportional representation, the number of seats to be allotted to the other
parties cannot possibly exceed that to which the first party is entitled by virtue of its
obtaining the most number of votes.
For example, the first party received 1,000,000 votes and is determined to be
entitled to two additional seats. Another qualified party which received 500,000 votes
cannot be entitled to the same number of seats, since it garnered only fifty percent of
the votes won by the first party. Depending on the proportion of its votes relative to that
of the first party whose number of seats has already been predetermined, the second
party should be given less than that to which the first one is entitled.
The other qualified parties will always be allotted less additional seats than the first
party for two reasons: (1) the ratio between said parties and the first party will always be
less than 1:1, and (2) the formula does not admit of mathematical rounding off, because
there is no such thing as a fraction of a seat. Verily, an arbitrary rounding off could result
in a violation of the twenty percent allocation. An academic mathematical demonstration
of such incipient violation is not necessary because the present set of facts, given the
number of qualified parties and the voting percentages obtained, will definitely not end
up in such constitutional contravention.
The Court has previously ruled in Guingona Jr. v. Gonzales[27] that a fractional
membership cannot be converted into a whole membership of one when it would, in
effect, deprive another party's fractional membership. It would be a violation of the
constitutional mandate of proportional representation. We said further that "no party can
claim more than what it is entitled to x x x.
In any case, the decision on whether to round off the fractions is better left to the
legislature. Since Congress did not provide for it in the present law, neither will this
Court. The Supreme Court does not make the law; it merely applies it to a given set of
facts.

Formula for Determining Additional Seats for the First Party

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

Formula for Additional Seats of Other Qualified Parties

Step Three The next step is to solve for the number of additional seats that
the other qualified parties are entitled to, based on proportional representation. The
formula is encompassed by the following complex fraction:
No. of votes of
concerned party
------------------
Total no. of votes
Additional seats for party-list system No. of additional
for concerned = ----------------------- x seats allocated to
party No. of votes of the first party
first party
------------------
Total no. of votes
for party list system
In simplified form, it is written as follows:
No. of votes of
Additional seats concerned party No. of additional
for concerned = ------------------ x seats allocated to
party No. of votes of the first party
first party
Thus, in the case of ABA, the additional number of seats it would be entitled to is
computed as follows:
No. of votes of
Additional seats ABA No. of additional
for concerned = -------------------- x seats allocated to
party (ABA) No. of votes of the first party
first party (APEC)
Substituting actual values would result in the following equation:
Additional seats 321,646
for concerned = ----------- x 1 = .64 or 0 additional seat, since
party (ABA) 503,487 rounding off is not to be applied
Applying the above formula, we find the outcome of the 1998 party-list election to be
as follows:
Organization Votes %age of Initial No. Additional Total
Garnered Total Votes of Seats Seats
1. APEC 503,487 5.50% 1 1 2
2. ABA 321,646 3.51% 1 321,646 / 503,487 * 1 = 0.64 1
3. ALAGAD 312,500 3.41% 1 312,500 / 503,487 * 1 = 0.62 1
4. VETERANS 304,802 3.33% 1 304,802 / 503,487 * 1 = 0.61 1
FEDERATION
5. PROMDI 255,184 2.79% 1 255,184 / 503,487 * 1 = 0.51 1
6. AKO 239,042 2.61% 1 239,042 / 503,487 * 1 = 0.47 1
7. NCSFO 238,303 2.60% 1 238,303 / 503,487 * 1 = 0.47 1
8. ABANSE! 235,548 2.57% 1 321,646 / 503,487 * 1 = 0.47 1
PINAY
9. AKBAYAN! 232,376 2.54% 1 232,376 / 503,487 * 1 = 0.46 1
10. BUTIL 215,643 2.36% 1 215,643 / 503,487 * 1 = 0.43 1
11. SANLAKAS 194,617 2.13% 1 194,617 / 503,487 * 1 = 0.39 1
12. COOP- 189,802 2.07% 1 189,802 / 503,487 * 1 = 0.38 1
NATCCO
13. COCOFED 186,388 2.04% 1 186,388 / 503,487 * 1 = 0.37 1
Incidentally, if the first party is not entitled to any additional seat, then the ratio of the
number of votes for the other party to that for the first one is multiplied by zero. The end
result would be zero additional seat for each of the other qualified parties as well.
 The above formula does not give an exact mathematical representation of the
number of additional seats to be awarded since, in order to be entitled to one additional
seat, an exact whole number is necessary. In fact, most of the actual mathematical
proportions are not whole numbers and are not rounded off for the reasons explained
earlier. To repeat, rounding off may result in the awarding of a number of seats in
excess of that provided by the law. Furthermore, obtaining absolute proportional
representation is restricted by the three-seat-per-party limit to a maximum of
two additional slots. An increase in the maximum number of additional representatives a
party may be entitled to would result in a more accurate proportional representation. But
the law itself has set the limit: only two additional seats. Hence, we need to work within
such extant parameter.
The net result of the foregoing formula for determining additional seats happily
coincides with the present number of incumbents; namely, two for the first party (APEC)
and one each for the twelve other qualified parties. Hence, we affirm the legality of the
incumbencies of their nominees, albeit through the use of a different formula and
methodology.
In his Dissent, Justice Mendoza criticizes our methodology for being too strict. We
say, however, that our formula merely translated the Philippine legal parameters into a
mathematical equation, no more no less. If Congress in its wisdom decides to modify
RA 7941 to make it less strict, then the formula will also be modified to reflect the
changes willed by the lawmakers.

Epilogue

In sum, we hold that the Comelec gravely abused its discretion in ruling that the
thirty-eight (38) herein respondent parties, organizations and coalitions are each entitled
to a party-list seat, because it glaringly violated two requirements of RA 7941: the two
percent threshold and proportional representation.
In disregarding, rejecting and circumventing these statutory provisions, the Comelec
effectively arrogated unto itself what the Constitution expressly and wholly vested in the
legislature: the power and the discretion to define the mechanics for the enforcement of
the system. The wisdom and the propriety of these impositions, absent any clear
transgression of the Constitution or grave abuse of discretion amounting to lack or
excess of jurisdiction, are beyond judicial review.[28]
Indeed, the Comelec and the other parties in these cases - both petitioners and
respondents - have failed to demonstrate that our lawmakers gravely abused their
discretion in prescribing such requirements. By grave abuse of discretion is meant such
capricious or whimsical exercise of judgment equivalent to lack or excess of
jurisdiction.[29]
The Comelec, which is tasked merely to enforce and administer election-related
laws,[30] cannot simply disregard an act of Congress exercised within the bounds of its
authority. As a mere implementing body, it cannot judge the wisdom, propriety or
rationality of such act. Its recourse is to draft an amendment to the law and lobby for its
approval and enactment by the legislature.
Furthermore, a reading of the entire Constitution reveals no violation of any of its
provisions by the strict enforcement of RA 7941. It is basic that to strike down a law or
any of its provisions as unconstitutional, there must be a clear and unequivocal showing
that what the Constitution prohibits, the statute permits.[31]
Neither can we grant petitioners prayer that they each be given additional seats (for
a total of three each), because granting such plea would plainly and simply violate the
proportional representation mandated by Section 11 (b) of RA 7941.
The low turnout of the party-list votes during the 1998 elections should not be
interpreted as a total failure of the law in fulfilling the object of this new system of
representation. It should not be deemed a conclusive indication that the requirements
imposed by RA 7941 wholly defeated the implementation of the system. Be it
remembered that the party-list system, though already popular in parliamentary
democracies, is still quite new in our presidential system. We should allow it some time
to take root in the consciousness of our people and in the heart of our tripartite form of
republicanism. Indeed, the Comelec and the defeated litigants should not despair.
Quite the contrary, the dismal result of the first election for party-list representatives
should serve as a challenge to our sectoral parties and organizations. It should stir them
to be more active and vigilant in their campaign for representation in the State's
lawmaking body. It should also serve as a clarion call for innovation and creativity in
adopting this novel system of popular democracy.
With adequate information dissemination to the public and more active sectoral
parties, we are confident our people will be more responsive to future party-list
elections. Armed with patience, perseverance and perspicacity, our marginalized
sectors, in time, will fulfill the Filipino dream of full representation in Congress under the
aegis of the party-list system, Philippine style.
WHEREFORE, the Petitions are hereby partially GRANTED. The assailed
Resolutions of the Comelec are SET ASIDE and NULLIFIED. The proclamations of the
fourteen (14) sitting party-list representatives - two for APEC and one each for the
remaining twelve (12) qualified parties - are AFFIRMED. No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and
De Leon Jr., JJ., concur.
Bellosillo, Melo, and Vitug, JJ., in the result.
Puno, J., see separate concurring opinion.
Mendoza, J., dissents.
Kapunan, and Quisumbing, JJ., join the opinion of J. Mendoza.

Consolidated Table
DISTRIBUTION OF SEATS

Group (1) (2) (3) (4) (5) (6) (7) (8)

 Actual Percentag Guarantee Addition Extra Total Seats Total
6
votes e of d al seats in number
5
received votes cast seat3 seats4 exces of
1
for s of seats
party-list2 3 allowed
7

1. APEC 503,487 5.50% 1 5.73 1 7 4 3

2. ABA 321,646 3.51% 1 3.66 1 5 2 3
3. ALAGAD 312,500 3.41% 1 3.55 4 1 3
4. 304,902 3.33% 1 3.47 4 1 3
VETERANS
FEDERATIO
N
5. PROMDI 255,184 2.79% 1 2.90 1 4 1 3
6. AKO 239,042 2.61% 1 2.72 1 4 1 3
7. NCSFO 338,303 2.60% 1 2.71 1 4 1 3
8. ABANSE! 235,548 2.57% 1 2.68 1 4 1 3
PINAY
9. 232,376 2.54% 1 2.64 1 4 1 3
AKBAYAN!
10 BUTIL 215,643 2.36% 1 2.45 3 - 3
11. 194,617 2.13% 1 2.21 3 - 3
SANLAKAS
12. COOP- 189,802 2.07% 1 2.16 3 - 3
NATCCO
13. 186,388 2.04% 1 2.12 3 - 3
COCOFED
14. SENIOR 143,444 1.57%
CITIZENS
15. Other 5,582,42 Each with
Parties 7 less than
2%
TOTAL 9,155,30 100% 13 32 7 52 13 39
9

* At the outset of this case, I offered to inhibit myself from participating in these cases because, prior to my
appointment to this Court, I had been a general counsel and director of one of the respondents. However,
the Court unanimously resolved to deny my request for the following reasons: (1) I was merely a voluntary
non-compensated officer of the non-profit Philippine Chamber of Commerce and Industry (PCCI), (2) the
present case and its antecedents were not extant during my incumbency at PCCI, and (3) this case
involved important constitutional questions, and the Court believed that all justices should as much as
possible participate and vote. This Court action was announced during the Oral Argument on July 1,
1999.

[1]
Rollo in GR No. 136781, pp. 62-71. Penned by Comm. Japal M. Guiani, concurred in by Comm. Abdul
Gani M. Marohombsar, Al. Haj.; with Pres. Comm. Julio F. Desamito, dissenting.
[2]
People's Progressive Alliance for Peace and Good Government Toward Alleviation of Poverty and
Social Advancement (PAG-ASA) v. Comelec.

[3]
Rollo in GR No. 136781, pp. 81-109. Per curiam, concurred in by Comm. and Officer-in-Charge
Luzviminda G. Tancangco, and Comms. Japal M. Guiani and Abdul Gani M. Marohombsar, Al.
Haj. Comms. Julio F. Desamito and Teresita Dy-Liacco Flores dissented; while Comm. Manolo B.
Gorospe took no part, being "out of town."

[4] See II Record of the Constitutional Commission 253.

[5] 10, RA 7941.

[6]
Commission on Elections, Party-List Canvass Report No. 16 (By Rank); Assailed Comelec en banc
Resolution, p. 22.

[7] Resolution No. 3047-C, September 9, 1998.

[8]
People's Reform Party (PRP), Ang Lakas OCW, KAMPIL, Maharlika, Women Power, Inc., NACUSIP,
Aniban Ng Mga Magsasaka, Mangingisda at Manggagawa sa Agrikultura Inc., All Trade Unions Congress
Party (ATUCP), and Anak-Mindanao (AMIN).

[9] More accurately, it should be "House of Representatives."

[10]
See Dissenting Opinion of Comm. T.D. Flores and the Memorandum for petitioners in GR No. 136786
which was filed with the Court on July 12, 1999 and signed by Attys. Hans Leo J. Cacdac, Raissa H.
Jajurie and Manuel Senar.

[11] Comms. Luzviminda G. Tancangco, Japal M. Guiani and Abdul Gani M. Marohombsar.

[12]
Comms. Julio F. Desamito and Teresita Dy-Liacco Flores. Comm. Manolo B. Gorospe did not vote, as
he was out of town.

[13]
The Petitions of PROMDI, ABANSE! PINAY and COOP-NATCCO were dismissed for procedural
deficiencies. SANLAKAS did not file any petition.

[14]These consolidated cases were deemed submitted for resolution upon receipt by the Court of
Intervenor NACUSIP's Memorandum on July 20, 1999. This was signed by Attys. Froilan M. Bacungan,
Porfirio V. Sison and Zoilo V. de la Cruz. The writing of this Decision was, however, assigned to
this ponente only on September 26, 2000 during the deliberations and verbal discussions of the
contentious issues, wherein the Court, by majority vote, upheld his then dissenting views.

[15] 5, Article VI, 1987 Constitution.

[16] In their Consolidated Memorandum filed on July 12, 1999 and signed by Attys. Rodante

B. Marcoleta, Jeremias U. Montemayor, R.A.V. Saguisag, Romeo G. Roxas and Katrina Legarda-
Santos, petitioners submitted this similar computation:
208 : = 208/4 = 52 or 208 : 0.8 (0.20) = 52

[17]See the Concurring Opinion of Comm. Tancangco, in which she posits that the strict application of the
two percent threshold may become a mathematical impossibility, because 52 seats multiplied by two
percent yields a total of 104 percent. Though theoretically imaginable, such feared impossibility will not
ripen to a judicial controversy, because two percent of the votes will never be achieved by each of 52
parties in the same election. In short, the fear is purely academic. Besides, the mathematical impossibility
wrongly assumes that the Constitution requires all 52 seats to be filled up all the time. See also
Memorandum for private respondents dated July 9, 1999 and signed by Attys. Arturo M. Tolentino, C.
Fortunato R. Balasbas and Miguel Amador S.O. Camero.

[18] II Record of the Senate 145, Second Regular Session, Ninth Congress.

[19] Transcript, House of Representatives, November 22, 1994, p. 34.

[20] II Record of the Constitutional Commission 256.

[21]Joaquin G. Bernas, SJ, The 1987 Constitution of the Philippines: A Reviewer-Primer, 2nd ed. (1992),
p. 15.

[22] 5, Article VI of the Constitution.

[23]
Quijano v. Development Board, 35 SCRA 270, October 16, 1970; Luzon Surety v. de Garcia, 30
SCRA 111, October 31, 1969, cited in the Memorandum of the Solicitor General, filed on July 12, 1999
and signed by Sol. Gen. Ricardo P. Galvez, Asst. Sol. Gen. Cecilio O. Estoesta and Sol. Ma. Antonia
Edita C. Dizon.

[24] Supra.
[25]
In its en banc Resolution No. 2847 dated June 25, 1996, Comelec adopted this simple formula, but
discarded it in the assailed Resolutions.

[26]
In fairness, the Group of 38 explains these differences in the context of its concluding plea to dilute the
two percent threshold. See Memorandum for private respondents, pp. 44-46.

[27]
214 SCRA 789, October 20, 1992; 219 SCRA 329, March 1, 1993 (Resolution on the Motion for
Reconsideration).

[28]
See Taada v. Angara, 272 SCRA 18, May 2, 1997; Santiago v. Guingona, 298 SCRA 756, November
18, 1998.

[29]
Commissioner of Internal Revenue v. Court of Appeals, 257 SCRA 200, 209, June 4, 1996;
Santiago v. Guingona Jr., 298 SCRA 756, 786, November 18, 1998; People v. Court of Appeals and
Casan Maquiling, GR No. 128986, June 21, 1999.

[30] 2 (1), Article IX-C of the Constitution.

[31] Garcia v. Commission on Elections, 227 SCRA 100, October 5, 1993.

1 COMELEC Canvass Report dated June 1, 1998.

2Obtained by dividing the votes received by one party by the total number of votes cast for the party-list
system.

3Pursuant to the first clause of R.A. No. 7941, 11(b) which provides: The parties, organizations, and
coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be
entitled to one seat each.
4 Pursuant to the second clause of R.A. No. 7941, 11(b) which provides: Provided, That those garnering
more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total
number of votes. This is obtained by dividing the total votes received by a 2 percenter over the total votes
received by all 2 percenters.

5 Allocated by ranking the decimal portions of the resulting products shown in Column 4.

6 Sum of integers in Column 4 & 5.

7Pursuant to the third clause of R.A. NO. 7941 which provides: Provided, finally, That each party,
organization, or coalition shall be entitled to not more than three (3) seats.
ISSUE:WON the National Defense Law (Sec 60, Commonwealth Act No. 1) was constitutionalby virtue of
Section 2, Article II of the Constitution which states that:SEC. 2. The defense of the state is a prime duty of
government, and in the fulfillment of this duty all citizens may be required by law to render personal military
or civil service
.HELD:YES. Decision of CFI affirmed. The National Defense Law, in so far as it establishes compulsory
military service, does not go against this constitutional provision but is, on the contrary, in faithful compliance
therewith. The duty of the Government to defend the State cannot be performed except through an army. To
leave the organization of an army to the will of the citizens would be to make thisduty of the Government
excusable should there be no sufficient men who volunteer to enlist therein.In US cases, it was stated that the
right of the Government to require compulsory military service is a consequence of its duty to defend the State;
and, that aperson may be compelled by force
to take his place in the ranks of the army of hiscountry, and risk the chance of being shot down in its
defense.What justifies compulsory military service is the defense of the State, whetheractual or whether in
preparation to make it more effective, in case of need. Thecircumstances of the appellants do not excuse them
from their duty to present themselves before the Acceptance Board because they can obtain the proper
pecuniary allowance to attend to these family responsibilities (secs. 65 and 69 of Commonwealth Act No. 1)

G.R. No. 86564 August 1, 1989

RAMON L. LABO, JR., petitioner,

vs.
THE COMMISSION ON ELECTIONS (COMELEC) EN BANC AND LUIS L.
LARDIZABAL, respondents

Estelito P. Mendoza for petitioner.

Rillera and Quintana for private respondent.

CRUZ, J.:

The petitioner asks this Court to restrain the Commission on Elections from looking into the question
of his citizenship as a qualification for his office as Mayor of Baguio City. The allegation that he is a
foreigner, he says, is not the issue. The issue is whether or not the public respondent has jurisdiction
to conduct any inquiry into this matter, considering that the petition for quo warranto against him was
not filed on time.

It is noteworthy that this argument is based on the alleged tardiness not of the petition itself but of
the payment of the filing fee, which the petitioner contends was an indispensable requirement. The
fee is, curiously enough, all of P300.00 only. This brings to mind the popular verse that for want of a
horse the kingdom was lost. Still, if it is shown that the petition was indeed filed beyond the
reglementary period, there is no question that this petition must be granted and the challenge
abated.

The petitioner's position is simple. He was proclaimed mayor-elect of Baguio City, on January 20,
1988. The petition for quo warranto was filed by the private respondent on January 26, 1988, but no
filing fee was paid on that date. This fee was finally paid on February 10, 1988, or twenty-one days
after his proclamation. As the petition by itself alone was ineffectual without the filing fee, it should be
deemed filed only when the fee was paid. This was done beyond the reglementary period provided
for under Section 253 of the Omnibus Election Code reading as follows:

SEC. 253. Petition for quo warranto. Any voter contesting the election of a
Member of the Batasang Pambansa, regional, provincial, or city officer on the ground
of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn
petition for quo warranto with the Commission within ten days after the proclamation
of the result of the election.

The petitioner adds that the payment of the filing fee is required under Rule 36, Section 5, of the
Procedural Rules of the COMELEC providing that

Sec. 5. No petition for quo warranto shall be given due course without the payment of
a filing fee in the amount of Three Hundred Pesos (P300.00) and the legal research
fee as required by law.

and stresses that there is abundant jurisprudence holding that the payment of the filing fee is
essential to the timeliness of the filling of the petition itself. He cites many rulings of the Court to this
effect, specifically Manchester v. Court of Appeals. 1

For his part, the private respondent denies that the filing fee was paid out of time. In fact he says, it
was flied ahead of time. His point is that when he filed his "Petition for Quo Warranto with Prayer for
Immediate Annulment of Proclamation and Restraining Order or Injunction" on January 26, 1988, the
COMELEC treated it as a pre-proclamation controversy and docketed it as SPC Case No. 88-288.
No docket fee was collected although it was offered. It was only on February 8, 1988, that the
COMELEC decided to treat his petition as solely for quo warranto and re-docketed it as EPC Case
No. 88-19, serving him notice on February 10, 1988. He immediately paid the filing fee on that date.

The private respondent argues further that during the period when the COMELEC regarded his
petition as a pre-proclamation controversy, the time for filing an election protest or quo
warranto proceeding was deemed suspended under Section 248 of the Omnibus Election Code. 2 At
any rate, he says, Rule 36, Section 5, of the COMELEC Rules of Procedure cited by the petitioner,
became effective only on November 15, 1988, seven days after publication of the said Rules in the
Official Gazette pursuant to Section 4, Rule 44 thereof. 3 These rules could not retroact to January
26,1988, when he filed his petition with the COMELEC.

In his Reply, the petitioner argues that even if the Omnibus Election Code did not require it, the
payment of filing fees was still necessary under Res. No. 1996 and, before that, Res. No. 1450 of
the respondent COMELEC, promulgated on January 12, 1988, and February 26, 1980, respectively.
To this, the private respondent counters that the latter resolution was intended for the local elections
held on January 30, 1980, and did not apply to the 1988 local elections, which were supposed to be
governed by the first-mentioned resolution. However, Res. No. 1996 took effect only on March 3,
1988, following the lapse of seven days after its publication as required by RA No. 6646, otherwise
known as the Electoral Reform Law of 1987, which became effective on January 5, 1988. Its Section
30 provides in part:

Sec. 30. Effectivity of Regulations and Orders of the Commission. The rules and
regulations promulgated by the Commission shall take effect on the seventh day
after their publication in the Official Gazette or in at least (2) daily newspapers of
general circulation in the Philippines.
The Court has considered the arguments of the parties and holds that the petition for quo
warranto was filed on time. We agree with the respondents that the fee was paid during the ten-day
period as extended by the pendency of the petition when it was treated by the COMELEC as a pre-
proclamation proceeding which did not require the payment of a filing fee. At that, we reach this
conclusion only on the assumption that the requirement for the payment of the fees in quo
warranto proceedings was already effective. There is no record that Res. No. 1450 was even
published; and as for Res. No. 1996, this took effect only on March 3, 1988, seven days after its
publication in the February 25, 1988 issues of the Manila Chronicle and the Philippine Daily Inquirer,
or after the petition was filed.

The petitioner forgets Ta;ada v. Tuvera 4 when he argues that the resolutions became effective
"immediately upon approval" simply because it was so provided therein. We held in that case that
publication was still necessary under the due process clause despite such effectivity clause.

In any event, what is important is that the filing fee was paid, and whatever delay there may have
been is not imputable to the private respondent's fault or neglect. It is true that in
the Manchester Case, we required the timely payment of the filing fee as a precondition for the
timeliness of the filing of the case itself. In Sun Insurance Office, Ltd. v. Asuncion, 5 however this
Court, taking into account the special circumstances of that case, declared:

This Court reiterates the rule that the trial court acquires jurisdiction over a case only
upon the payment of the prescribed filing fee. However, the court may allow the
payment of the said fee within a reasonable time. In the event of non-compliance
therewith, the case shall be dismissed.

The same idea is expressed in Rule 42, Section 18, of the COMELEC Rules of Procedure adopted
on June 20, 1988, thus:

Sec. 18. Non-payment of prescribed fees. If the fees above prescribed are not
paid, the Commission may refuse to take action thereon until they are paid and may
dismiss the action or the proceeding. (Emphasis supplied.)

The Court notes that while arguing the technical point that the petition for quo warranto should be
dismissed for failure to pay the filing fee on time, the petitioner would at the same time minimize his
alleged lack of citizenship as "a futile technicality," It is regrettable, to say the least, that the
requirement of citizenship as a qualification for public office can be so demeaned. What is worse is
that it is regarded as an even less important consideration than the reglementary period the
petitioner insists upon.

This matter should normally end here as the sole issue originally raised by the petitioner is the
timeliness of the quo warranto proceedings against him. However, as his citizenship is the subject of
that proceeding, and considering the necessity for an early resolution of that more important
question clearly and urgently affecting the public interest, we shall directly address it now in this
same action.

The Court has similarly acted in a notable number of cases, thus:

From the foregoing brief statement of the nature of the instant case, it would appear
that our sole function in this proceeding should be to resolve the single issue of
whether or not the Court of Appeals erred in ruling that the motion for new trial of the
GSIS in question should indeed be deemed pro forma.But going over the extended
pleadings of both parties, the Court is immediately impressed that substantial justice
may not be timely achieved, if we should decide this case upon such a technical
ground alone. We have carefully read all the allegations and arguments of the
parties, very ably and comprehensively expounded by evidently knowledgeable and
unusually competent counsel, and we feel we can better serve the interests of justice
by broadening the scope of our inquiry, for as the record before us stands, we see
that there is enough basis for us to end the basic controversy between the parties
here and now, dispensing, however, with procedural steps which would not anyway
affect substantially the merits of their respective claims. 6

xxx

While it is the fault of the petitioner for appealing to the wrong court and thereby
allowing the period for appeal to lapse, the more correct procedure was for the
respondent court to forward the case to the proper court which was the Court of
Appeals for appropriate action. Considering, however, the length of time that this
case has been pending, we apply the rule in the case of Del Castillo v. Jaymalin,
(112 SCRA 629) and follow the principle enunciated in Alger Electric, Inc. v. Court of
Appeals, (135 SCRA 37) which states:

... it is a cherished rule of procedure for this Court to always strive to

settle the entire controversy in a single proceeding leaving no root or
branch to bear the seeds of future litigation. No useful purpose will be
served if this case is remanded to the trial court only to have its
decision raised again to the Intermediate Appellate Court and from
there to this Court. (p. 43)

Only recently in the case of Beautifont, Inc., et al. v. Court of Appeals, et al. (G.R.
No. 50141, January 29, 1988), we stated that:

... But all those relevant facts are now before this Court. And those facts dictate the
rendition of a verdict in the petitioner's favor. There is therefore no point in referring
the case back to the Court of Appeals. The facts and the legal propositions involved
will not change, nor should the ultimate judgment. Considerable time has already
elapsed and, to serve the ends of justice, it is time that the controversy is finally laid
to rest. (See Sotto v. Samson, 5 SCRA 733; Republic v. Paredes, 108 Phil. 57;
Lianga Lumber Co. v. Lianga Timber Co., Inc., 76 SCRA 197; Erico v. Heirs of
Chigas, 98 SCRA 575; Francisco v. City of Davao, 12 SCRA 628; Valencia v.
Mabilangan, 105 Phil. 162). Sound practice seeks to accommodate the theory which
lw ph1.t

avoids waste of time, effort and expense, both to the parties and the government, not
to speak of delay in the disposal of the case (cf. Fernandez v. Garcia, 92 Phil. 592,
597). A marked characteristic of our judicial set-up is that where the dictates of
justice so demand ... the Supreme Court should act, and act with finality.' (Li Siu Liat
v. Republic, 21 SCRA 1039, 1046, citing Samal v. CA, 99 Phil. 230 and U.S. v.
Gimenez, 34 Phil. 74). In this case, the dictates of justice do demand that this Court
act, and act with finality. 7

xxx

Remand of the case to the lower court for further reception of evidence is not
necessary where the court is in a position to resolve the dispute based on the
records before it. On many occasions, the Court, in the public interest and the
expeditious administration of justice, has resolved actions on the merits instead of
 remanding them to the trial court for further proceedings, such as where the ends of
justice would not be subserved by the remand of the case or when public interest
demands an early disposition of the case or where the trial court had already
received all the evidence of the parties. 8

This course of action becomes all the more justified in the present case where, to repeat for stress, it
is claimed that a foreigner is holding a public office.

We also note in his Reply, the petitioner says:

In adopting private respondent's comment, respondent COMELEC implicitly adopted

as "its own" private respondent's repeated assertion that petitioner is no longer a
Filipino citizen. In so doing, has not respondent COMELEC effectively disqualified
itself, by reason of prejudgment, from resolving the petition for quo warranto filed by
private respondent still pending before it? 9

This is still another reason why the Court has seen fit to rule directly on the merits of this case.

Going over the record, we find that there are two administrative decisions on the question of the
petitioner's citizenship. The first was rendered by the Commission on Elections on May 12, 1982,
and found the petitioner to be a citizen of the Philippines. 10 The second was rendered by the
Commission on Immigration and Deportation on September 13, 1988, and held that the petitioner
was not a citizen of the Philippines. 11

The first decision was penned by then COMELEC Chigas, Vicente Santiago, Jr., with
Commissioners Pabalate Savellano and Opinion concurring in full and Commissioner Bacungan
concurring in the dismissal of the petition "without prejudice to the issue of the respondent's
citizenship being raised anew in a proper case." Commissioner Sagadraca reserved his vote, while
Commissioner Felipe was for deferring decision until representations shall have been made with the
Australian Embassy for official verification of the petitioner's alleged naturalization as an Australian.

The second decision was unanimously rendered by Chairman Miriam Defensor-Santiago and
Commissioners Alano and Geraldez of the Commission on Immigration and Deportation. It is
important to observe that in the proceeding before the COMELEC, there was no direct proof that the
herein petitioner had been formally naturalized as a citizen of Australia. This conjecture, which was
eventually rejected, was merely inferred from the fact that he had married an Australian citizen,
obtained an Australian passport, and registered as an alien with the CID upon his return to this
country in 1980.

On the other hand, the decision of the CID took into account the official statement of the Australian
Government dated August 12, 1984, through its Consul in the Philippines, that the petitioner was still
an Australian citizen as of that date by reason of his naturalization in 1976. That statement 12 is
reproduced in full as follows:

I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by virtue of a certificate of

appointment signed and sealed by the Australian Minister of State for Foreign Affairs on 19 October
1983, and recognized as such by Letter of Patent signed and sealed by the Philippines Acting
Minister of Foreign Affairs on 23 November 1983, do hereby provide the following statement in
response to the subpoena Testificandum dated 9 April 1984 in regard to the Petition for
disqualification against RAMON LABO, JR. Y LOZANO (SPC No. 84-73), and do hereby certify that
the statement is true and correct.
 STATEMENT

A) RAMON LABO, JR. Y LOZANO, date of birth 23 December 1934, was married in
the Philippines to an Australian citizen. As the spouse of an Australian citizen, he
was not required to meet normal requirements for the grant of citizenship and was
granted Australian citizenship by Sydney on 28 July 1976.

B) Any person over the age of 16 years who is granted Australian citizenship must
take an oath of allegiance or make an affirmation of allegiance. The wording of the
oath of affirmation is: "I ..., renouncing all other allegiance ..." etc. This need not
necessarily have any effect on his former nationality as this would depend on the
citizenship laws of his former country.

C) The marriage was declared void in the Australian Federal Court in Sydney on 27
June 1980 on the ground that the marriage had been bigamous.

D) According to our records LABO is still an Australian citizen.

E) Should he return to Australia, LABO may face court action in respect of Section 50
of Australian Citizenship Act 1948 which relates to the giving of false or misleading
information of a material nature in respect of an application for Australian citizenship.
If such a prosecution was successful, he could be deprived of Australian citizenship
under Section 21 of the Act.

F) There are two further ways in which LABO could divest himself of Australian
citizenship:

(i) He could make a declaration of Renunciation of Australian citizenship under

Section 18 of the Australian Citizenship Act, or

(ii) If he acquired another nationality, (for example, Filipino) by a formal and voluntary
act other than marriage, then he would automatically lose as Australian citizenship
under Section 17 of the Act.

IN WITNESS WHEREOF, I HAVE HEREUNTO SET MAY HAND AND SEAL OF

THE AUSTRALIAN EMBASSY, MANILA, THIS 12th DAY OF APRIL 1984. DONE AT
MANILA IN THE PHILIPPINES.

(Signed) GRAHAM C. WEST Consul

This was affirmed later by the letter of February 1, 1988, addressed to the private
respondent by the Department of Foreign Affairs reading as follows: 13

Sir:

With reference to your letter dated 1 February 1988, I wish to inform you that inquiry
made with the Australian Government through the Embassy of the Philippines in
Canberra has elicited the following information:

1) That Mr. Ramon L. Labo, Jr. acquired Australian citizenship on 28 July 1976.
 2) That prior to 17 July 1986, a candidate for Australian citizenship had to either
swear an oath of allegiance or make an affirmation of allegiance which carries a
renunciation of "all other allegiance.

Very truly yours, For the Secretary of Foreign Affairs: (SGD) RODOLFO SEVERINO,
JR. Assistant Secretary

The decision also noted the oath of allegiance taken by every naturalized Australian reading as
follows:

OATH OF ALLEGIANCE

I, A.B., renouncing all other allegiance, swear by Almighty God that I will be faithful
and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia,
Her heirs and successors according to law, and that I will faithfully observe the laws
of Australia and fulfill my duties as an Australian citizen. 14

and the Affirmation of Allegiance, which declares:

AFFIRMATION OF ALLEGIANCE

I, A.B., renouncing all other allegiance, solemnly and sincerely promise and declare
that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second,
Queen of Australia, Her heirs and successors according to law, and that I will
faithfully observe the Laws of Australia and fulfill my duties as an Australian citizen. 15

The petitioner does not question the authenticity of the above evidence. Neither does he deny that
he obtained Australian Passport No. 754705, which he used in coming back to the Philippines in
1980, when he declared before the immigration authorities that he was an alien and registered as
such under Alien Certificate of Registration No. B-323985. 16 He later asked for the change of his
status from immigrant to a returning former Philippine citizen and was granted Immigrant Certificate
of Residence No. 223809. 17 He also categorically declared that he was a citizen of Australia in a
number of sworn statements voluntarily made by him and. even sought to avoid the jurisdiction of
the barangay court on the ground that he was a foreigner. 18

The decision of the COMELEC in 1982 quaintly dismisses all these acts as "mistakes" that did not
divest the petitioner of his citizenship, although, as earlier noted, not all the members joined in this
finding. We reject this ruling as totally baseless. The petitioner is not an unlettered person who was
not aware of the consequences of his acts, let alone the fact that he was assisted by counsel when
he performed these acts.

The private respondent questions the motives of the COMELEC at that time and stresses Labo's
political affiliation with the party in power then, but we need not go into that now.

There is also the claim that the decision can no longer be reversed because of the doctrine of res
judicata, but this too must be dismissed. This doctrine does not apply to questions of citizenship, as
the Court has ruled in several cases. 19 Moreover, it does not appear that it was properly and
seasonably pleaded, in a motion to dismiss or in the answer, having been invoked only when the
petitioner filed his reply 20 to the private respondent's comment. Besides, one of the requisites of res
judicata, to wit, identity of parties, is not present in this case.
The petitioner's contention that his marriage to an Australian national in 1976 did not automatically
divest him of Philippine citizenship is irrelevant. There is no claim or finding that he automatically
ceased to be a Filipino because of that marriage. He became a citizen of Australia because he was
naturalized as such through a formal and positive process, simplified in his case because he was
married to an Australian citizen. As a condition for such naturalization, he formally took the Oath of
Allegiance and/or made the Affirmation of Allegiance, both quoted above. Renouncing all other
allegiance, he swore "to be faithful and bear true allegiance to Her Majesty Elizabeth the Second,
Queen of Australia ..." and to fulfill his duties "as an Australian citizen."

The petitioner now claims that his naturalization in Australia made him at worst only a dual national
and did not divest him of his Philippine citizenship. Such a specious argument cannot stand against
the clear provisions of CA No. 63, which enumerates the modes by which Philippine citizenship may
be lost. Among these are: (1) naturalization in a foreign country; (2) express renunciation of
citizenship; and (3) subscribing to an oath of allegiance to support the Constitution or laws of a
foreign country, all of which are applicable to the petitioner. It is also worth mentioning in this
connection that under Article IV, Section 5, of the present Constitution, "Dual allegiance of citizens is
inimical to the national interest and shall be dealt with by law."

Even if it be assumed that, as the petitioner asserts, his naturalization in Australia was annulled after
it was found that his marriage to the Australian citizen was bigamous, that circumstance alone did
not automatically restore his Philippine citizenship. His divestiture of Australian citizenship does not
concern us here. That is a matter between him and his adopted country. What we must consider is
the fact that he voluntarily and freely rejected Philippine citizenship and willingly and knowingly
embraced the citizenship of a foreign country. The possibility that he may have been subsequently
rejected by Australia, as he claims, does not mean that he has been automatically reinstated as a
citizen of the Philippines.

Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be reacquired by direct act
of Congress, by naturalization, or by repatriation. It does not appear in the record, nor does the
petitioner claim, that he has reacquired Philippine citizenship by any of these methods. He does not
point to any judicial decree of naturalization as to any statute directly conferring Philippine citizenship
upon him. Neither has he shown that he has complied with PD No. 725, providing that:

... (2) natural-born Filipinos who have lost their Philippine citizenship may reacquire
Philippine citizenship through repatriation by applying with the Special Committee on
Naturalization created by Letter of Instruction No. 270, and, if their applications are
approved, taking the necessary oath of allegiance to the Republic of the Philippines,
after which they shall be deemed to have reacquired Philippine citizenship. The
Commission on Immigration and Deportation shall thereupon cancel their certificate
of registration. (Emphasis supplied.)

That is why the Commission on Immigration and Deportation rejected his application for the
cancellation of his alien certificate of registration. And that is also the reason we must deny his
present claim for recognition as a citizen of the Philippines.

The petitioner is not now, nor was he on the day of the local elections on January 18, 1988, a citizen
of the Philippines. In fact, he was not even a qualified voter under the Constitution itself because of
his alienage. 21 He was therefore ineligible as a candidate for mayor of Baguio City, under Section 42
of the Local Government Code providing in material part as follows:

Sec. 42. Qualifications. An elective local official must be a citizen of the

Philippines, at least twenty-three years of age on election day, a qualified voter
 registered as such in the barangay, municipality, city or province where he proposes
to be elected, a resident therein for at least one year at the time of the filing of his
certificate of candidacy, and able to read and write English, Filipino, or any other
local language or dialect.

The petitioner argues that his alleged lack of citizenship is a "futile technicality" that should not
frustrate the will of the electorate of Baguio City, who elected him by a "resonant and thunderous
majority." To be accurate, it was not as loud as all that, for his lead over the second-placer was only
about 2,100 votes. In any event, the people of that locality could not have, even unanimously,
changed the requirements of the Local Government Code and the Constitution. The electorate had
no power to permit a foreigner owing his total allegiance to the Queen of Australia, or at least a
stateless individual owing no allegiance to the Republic of the Philippines, to preside over them as
mayor of their city. Only citizens of the Philippines have that privilege over their countrymen.

The probability that many of those who voted for the petitioner may have done so in the belief that
he was qualified only strengthens the conclusion that the results of the election cannot nullify the
qualifications for the office now held by him. These qualifications are continuing requirements; once
any of them is lost during incumbency, title to the office itself is deemed forfeited. In the case at bar,
the citizenship and voting requirements were not subsequently lost but were not possessed at all in
the first place on the day of the election. The petitioner was disqualified from running as mayor and,
although elected, is not now qualified to serve as such.

Finally, there is the question of whether or not the private respondent, who filed the quo
warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he
obtained only the second highest number of votes in the election, he was obviously not the choice of
the people of Baguio city.

The latest ruling of the Court on this issue is Santos v. Commission on Elections 22 decided in 1985.
In that case, the candidate who placed second was proclaimed elected after the votes for his
winning rival, who was disqualified as a turncoat and considered a non-candidate, were all
disregarded as stray. In effect, the second placer won by default. That decision was supported by
eight members of the Court then 23 with three dissenting 24 and another two reserving their
vote. 25 One was on official leave. 26

Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the
earlier case of Geronimo v. Ramos, 27 Which represents the more logical and democratic rule. That
case, which reiterated the doctrine first announced in 1912 in Topacio vs. Paredes 28 was supported
by ten members of the Court 29 without any dissent, although one reserved his vote, 30 another took
no part 31 and two others were on leave. 32 There the Court held:

... it would be extremely repugnant to the basic concept of the constitutionally

guaranteed right to suffrage if a candidate who has not acquired the majority or
plurality of votes is proclaimed a winner and imposed as the representative of a
constituency, the majority of which have positively declared through their ballots that
they do not choose him.

Sound policy dictates that public elective offices are filled by those who have
received the highest number of votes cast in the election for that office, and it is a
fundamental Idea in all republican forms of government that no one can be declared
elected and no measure can be declared carried unless he or it receives a majority
or plurality of the legal votes cast in the election. (20 Corpus Juris 2nd, S 243, p.
676.)
 The fact that the candidate who obtained the highest number of votes is later
declared to be disqualified or not eligible for the office to which he was elected does
not necessarily entitle the candidate who obtained the second highest number of
votes to be declared the winner of the elective office. The votes cast for a dead,
disqualified, or non-eligible person may not be valid to vote the winner into office or
maintain him there. However, in the absence of a statute which clearly asserts a
contrary political and legislative policy on the matter, if the votes were cast in the
sincere belief that the candidate was alive, qualified, or eligible, they should not be
treated as stray, void or meaningless.

It remains to stress that the citizen of the Philippines must take pride in his status as such and
cherish this priceless gift that, out of more than a hundred other nationalities, God has seen fit to
grant him. Having been so endowed, he must not lightly yield this precious advantage, rejecting it for
another land that may offer him material and other attractions that he may not find in his own
country. To be sure, he has the right to renounce the Philippines if he sees fit and transfer his
allegiance to a state with more allurements for him. 33 But having done so, he cannot expect to be
welcomed back with open arms once his taste for his adopted country turns sour or he is himself
disowned by it as an undesirable alien.

Philippine citizenship is not a cheap commodity that can be easily recovered after its renunciation. It
may be restored only after the returning renegade makes a formal act of re-dedication to the country
he has abjured and he solemnly affirms once again his total and exclusive loyalty to the Republic of
the Philippines. This may not be accomplished by election to public office.

WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a citizen of the Philippines and
therefore DISQUALIFIED from continuing to serve as Mayor of Baguio City. He is ordered to
VACATE his office and surrender the same to the Vice-Mayor of Baguio City, once this decision
becomes final and executory. The temporary restraining order dated January 31, 1989, is LIFTED.

Fernan, (C.J.), Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento,
Cortes, Gri;o-Aquino Medialdea and Regalado, JJ., concur.

176 SCRA 1 Law on Public Officers Election Laws Citizenship of a Public Officer
Dual Citizenship Labo Doctrine
In 1988, Ramon Labo, Jr. was elected as mayor of Baguio City. His rival, Luis Lardizabal
filed a petition for quo warranto against Labo as Lardizabal asserts that Labo is an
Australian citizen hence disqualified; that he was naturalized as an Australian after he
married an Australian. Labo avers that his marriage with an Australian did not make him an
Australian; that at best he has dual citizenship, Australian and Filipino; that even if he
indeed became an Australian when he married an Australian citizen, such citizenship was
lost when his marriage with the Australian was later declared void for being bigamous. Labo
further asserts that even if hes considered as an Australian, his lack of citizenship is just a
mere technicality which should not frustrate the will of the electorate of Baguio who voted
for him by a vast majority.
ISSUES:
1. Whether or not Labo can retain his public office.
2. Whether or not Lardizabal, who obtained the second highest vote in the mayoralty race,
can replace Labo in the event Labo is disqualified.
HELD: 1. No. Labo did not question the authenticity of evidence presented against him. He
was naturalized as an Australian in 1976. It was not his marriage to an Australian that made
him an Australian. It was his act of subsequently swearing by taking an oath of allegiance to
the government of Australia. He did not dispute that he needed an Australian passport to
return to the Philippines in 1980; and that he was listed as an immigrant here. It cannot be
said also that he is a dual citizen. Dual allegiance of citizens is inimical to the national
interest and shall be dealt with by law. He lost his Filipino citizenship when he swore
allegiance to Australia. He cannot also claim that when he lost his Australian citizenship, he
became solely a Filipino. To restore his Filipino citizenship, he must be naturalized or
repatriated or be declared as a Filipino through an act of Congress none of this happened.
Labo, being a foreigner, cannot serve public office. His claim that his lack of citizenship
should not overcome the will of the electorate is not tenable. The people of Baguio could not
have, even unanimously, changed the requirements of the Local Government Code and the
Constitution simply by electing a foreigner (curiously, would Baguio have voted for Labo had
they known he is Australian). The electorate had no power to permit a foreigner owing his
total allegiance to the Queen of Australia, or at least a stateless individual owing no
allegiance to the Republic of the Philippines, to preside over them as mayor of their city.
Only citizens of the Philippines have that privilege over their countrymen.
2. Lardizabal on the other hand cannot assert, through the quo warranto proceeding, that he
should be declared the mayor by reason of Labos disqualification because Lardizabal
obtained the second highest number of vote. It would be extremely repugnant to the basic
concept of the constitutionally guaranteed right to suffrage if a candidate who has not
acquired the majority or plurality of votes is proclaimed a winner and imposed as the
representative of a constituency, the majority of which have positively declared through their
ballots that they do not choose him. Sound policy dictates that public elective offices are
filled by those who have received the highest number of votes cast in the election for that
office, and it is a fundamental idea in all republican forms of government that no one can be
declared elected and no measure can be declared carried unless he or it receives a majority
or plurality of the legal votes cast in the election.
EN BANC

[G.R. Nos. 132875-76. November 16, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs., ROMEO G.

JALOSJOS, accused-appellant.

DECISION
YNARES-SANTIAGO, J.:

This Court has declared that the state policy on the heinous offense of rape is clear and
unmistakable. Under certain circumstances, some of them present in this case, the offender may
be sentenced to a long period of confinement, or he may suffer death. The crime is an assault on
human dignity. No legal system worthy of the name can afford to ignore the traumatic
consequences for the unfortunate victim and grievous injury to the peace and good order of the
community.[1]
Rape is particularly odious, one which figuratively scrapes the bottom of the barrel of moral
depravity, when committed against a minor.[2]
In view of the intrinsic nature of the crime of rape where only two persons are usually
involved, the testimony of the complainant is always scrutinized with extreme caution.[3]
In the present case, there are certain particulars which impelled the court to devote an even
more painstaking and meticulous examination of the facts on record and a similarly
conscientious evaluation of the arguments of the parties. The victim of rape in this case is a
minor below twelve (12) years of age. As narrated by her, the details of the rape are
mesmerically sordid and repulsive. The victim was peddled for commercial sex by her own
guardian whom she treated as a foster father. Because the complainant was a willing victim, the
acts of rape were preceded by several acts of lasciviousness on distinctly separate occasions. The
accused is also a most unlikely rapist. He is a member of Congress. Inspite of his having been
charged and convicted by the trial court for statutory rape, his constituents liked him so much
that they knowingly re-elected him to his congressional office, the duties of which he could not
perform.
Statutory rape committed by a distinguished Congressman on an eleven (11) year old
commercial sex worker is bound to attract widespread media and public attention. In the words
of accused-appellant, he has been demonized in the press most unfairly, his image transmogrified
into that of a dastardly, ogre, out to get his slimy hands on innocent and nave girls to satiate his
lustful desires.[4] This Court, therefore, punctiliously considered accused-appellants claim that he
suffered invidiously discriminatory treatment. Regarding the above allegation, the Court has
ascertained that the extensive publicity generated by the case did not result in a mistrial; the
records show that the accused had ample and free opportunity to adduce his defenses.
This is an appeal from the decision[5] of the Regional Trial Court of Makati, Branch 62, in
Criminal Case Nos. 96-1985 and 96-1986, convicting accused-appellant Romeo Jalosjos of two
(2) counts of statutory rape, and in Criminal Case Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-
1992, and 96-1993, for six (6) counts of acts of lasciviousness defined and penalized under
Article 336 of the Revised Penal Code, in relation to Section 5(b) of Republic Act No. 7610, also
known as the Child Abuse Law.
There were six (6) other cases, Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996,
96-1997, and 96-1998, where the accused-appellant was acquitted of the charges of acts of
lasciviousness for failure of the prosecution to prove his guilt beyond reasonable doubt.
On December 16, 1996, two (2) informations for the crime of statutory rape; and twelve (12)
for acts of lasciviousness defined and penalized under Article 336 of the Revised Penal Code, in
relation to Section 5(b) of Republic Act No. 7610, were filed against accused-appellant. The
accusatory portion of said informations for the crime of statutory rape state:

In Criminal Case No. 96-1985:

The undersigned, upon prior sworn complaint by the offended party, eleven (11) year
old minor ROSILYN DELANTAR, accuses ROMEO JALOSJOS of the crime of
RAPE defined and penalized under Art. 335 (3) of the Revised Penal Code,
committed as follows:

That on or about June 18, 1996 at Room No.1702, Ritz Towers, Makati City, and
within the jurisdiction of this Honorable Court, the above-named accused, did then
and there willfully, unlawfully and feloniously have carnal knowledge
with (sic) eleven year old minor Rosilyn Delantar against her will, with damage and
prejudice.

CONTRARY TO LAW.[6]

In Criminal Case No. 96-1986:

The undersigned, upon prior sworn complaint by the offended party, eleven (11) year
old minor ROSILYN DELANTAR, accuses ROMEO JALOSJOS of the crime of
RAPE defined and penalized under Art. 335 (3) of the Revised Penal Code,
committed as follows:

That on or about June 20, 1996 at Room No. 1702, Ritz Towers, Makati City, and
within the jurisdiction of this Honorable Court, the above-named accused, did then
and there willfully, unlawfully and feloniously have carnal knowledge
with (sic) eleven year old minor Rosilyn Delantar against her will, with damage and
prejudice.

CONTRARY TO LAW.[7]

For acts of lasciviousness, the informations[8] under which accused-appellant was convicted
were identical except for the different dates of commission on June 14, 1996; June 15, 1996;
June 16, 1996; June 20, 1996; June 21, 1996; and June 22, 1996, to wit:

The undersigned, upon prior sworn complaint by the offended party, eleven (11)-year
old minor ROSILYN DELANTAR accuses ROMEO JALOSJOS of the crime of
ACTS OF LASCIVIOUSNESS in relation to Section 5 (b), Article III of Republic Act
No. 7610, otherwise known as the Special Protection of Children against Abuse,
Exploitation and Discrimination Act, committed as follows:

That in the evening of June 14, 1996, or thereabout, in Room No. 1702, Ritz Towers,
Makati City, Metro-Manila and within the jurisdiction of this Honorable Court, the
above-named accused, with lewd design, did then and there wilfully, unlawfully and
feloniously kiss, caress and fondle said complainant's face, lips, neck, breasts, whole
body, and vagina, suck her nipples and insert his finger and then his tongue into her
vagina, place himself on top of her, then insert his penis in between her thighs until
ejaculation, and other similar lascivious conduct against her will, to her damage and
prejudice.

CONTRARY TO LAW.

In Criminal Cases Nos. 96-1988; 96-1990; and 96-1993, there were added averments that on
the different dates, the accused gave the complainant P10,000.00, P5,000.00 and P5,000.00
respectively.
Upon arraignment on January 29, 1997, accused-appellant refused to enter a plea. Hence, the
trial court entered a plea of not guilty for him. At the trial, the prosecution presented eight (8)
main witnesses and seven (7) rebuttal witnesses as well as documentary evidences marked as
Exhibits A to EEEE, inclusive of submarkings. The defense, on the other hand presented twenty-
six (26) witnesses. Its documentary evidence consists of Exhibits 1 to 153, inclusive of
submarkings. The records of the case are extremely voluminous.
The Peoples version of the facts, culled mainly from the testimony of the victim, are as
follows:
Maria Rosilyn Delantar was a slim, eleven-year old lass with long, straight black hair and
almond-shaped black eyes. She grew up in a two-storey apartment in Pasay City under the care
of Simplicio Delantar, whom she treated as her own father. Simplicio was a fifty-six year old
homosexual whose ostensible source of income was selling longganiza and tocino and accepting
boarders at his house. On the side, he was also engaged in the skin trade as a pimp.
Rosilyn never got to see her mother, though she had known a younger brother, Shandro,
who was also under the care of Simplicio. At a very young age of 5, fair and smooth-
complexioned Rosilyn was exposed by Simplicio to his illicit activities. She and her brother
would tag along with Simplicio whenever he delivered prostitutes to his clients. When she turned
9, Rosilyn was offered by Simplicio as a prostitute to an Arabian national known as Mr.
Hammond. Thus begun her ordeal as one of the girls sold by Simplicio for sexual favors.
Rosilyn first met accused-appellant, Romeo Jalosjos, sometime in February 1996 at his
office located near Robinsons Galleria. Rosilyn and Simplicio were brought there and introduced
by a talent manager by the name of Eduardo Suarez. Accused-appellant promised to help Rosilyn
become an actress. When he saw Rosilyn, accused-appellant asked how old she was. Simplicio
answered, 10. She is going to be 11 on May 11. Accused-appellant inquired if Rosilyn knows
how to sing. Simplicio told Rosilyn to sing, so she sang the song, Tell Me You Love
Me. Accused-appellant then asked if Rosilyn has nice legs and then raised her skirt up to the
mid-thighs. He asked if she was already menstruating, and Simplicio said yes. Accused-appellant
further inquired if Rosilyn already had breasts. When nobody answered, accused-appellant
cupped Rosilyns left breast. Thereafter, accused-appellant assured them that he would help
Rosilyn become an actress as he was one of the producers of the TV programs, Valiente and Eat
Bulaga.
Simplicio and Suarez then discussed the execution of a contract for Rosilyns movie
career. Accused-appellant, on the other hand, said that he would adopt Rosilyn and that the latter
would have to live with him in his condominium at the Ritz Towers. Before Simplicio and
Rosilyn went home, accused-appellant gave Rosilyn P2,000.00.
The second time Rosilyn met accused-appellant was at his condominium unit, located at
Room 1702, Ritz Towers, Makati City. Accused-appellant and Simplicio discussed the contract
and his plan to finance Rosilyns studies. Accused-appellant gave Simplicio P500.00, thereafter,
Rosilyn, Shandro and Simplicio left.
The third meeting between Rosilyn and accused-appellant was also at Ritz Towers to discuss
her acting career. Accused-appellant referred the preparation of Rosilyns contract to his lawyer,
who was also present. After the meeting, Simplicio and Rosilyn left. As they were walking
towards the elevator, accused-appellant approached them and gave Rosilyn P3,000.00.
On June 14, 1996, at about 8:30 to 9:00 p.m., Simplicio and Rosilyn returned to accused-
appellants condominium unit at Ritz Towers. When accused-appellant came out of his bedroom,
Simplicio told Rosilyn to go inside the bedroom, while he and accused-appellant stayed
outside. After a while, accused-appellant entered the bedroom and found Rosilyn watching
television. He walked towards Rosilyn and kissed her on the lips, then left the room
again. Simplicio came in and bid her goodbye. Rosilyn told Simplicio that accused-appellant
kissed her to which Simplicio replied, Halik lang naman.
Rosilyn was left alone in the bedroom watching television. After some time, accused-
appellant came in and entered the bathroom. He came out clad in a long white T-shirt on which
was printed the word, Dakak. In his hand was a plain white T-shirt. Accused-appellant told
Rosilyn that he wanted to change her clothes. Rosilyn protested and told accused-appellant that
she can do it herself, but accused-appellant answered, Daddy mo naman ako. Accused-appellant
then took off Rosilyns blouse and skirt. When he was about to take off her panties, Rosilyn
said, Huwag po. Again, accused-appellant told her, After all, I am your Daddy. Accused-
appellant then removed her panties and dressed her with the long white T-shirt.
The two of them watched television in bed. After sometime, accused-appellant turned off the
lamp and the television. He turned to Rosilyn and kissed her lips. He then raised her shirt,
touched her breasts and inserted his finger into her vagina. Rosilyn felt pain and cried out, Tama
na po. Accused-appellant stopped. He continued to kiss her lips and fondle her breasts. Later,
accused-appellant told Rosilyn to sleep.
The following morning, Rosilyn was awakened by accused-appellant whom she found bent
over and kissing her. He told her to get up, took her hand and led her to the bathroom. He
removed Rosilyns shirt and gave her a bath. While accused-appellant rubbed soap all over
Rosilyns body, he caressed her breasts and inserted his finger into her vagina. After that, he
rinsed her body, dried her with a towel and applied lotion on her arms and legs. Then, he dried
her hair and told her to dress up. Rosilyn put on her clothes and went out of the bathroom, while
accused-appellant took a shower.
Accused-appellant ate breakfast while Rosilyn stayed in the bedroom watching
television. When accused-appellant entered the room, he knelt in front of her, removed her
panties and placed her legs on his shoulders. Then, he placed his tongue on her
vagina. Thereafter, he gave Rosilyn P10,000.00 and told his housemaid to take her shopping at
Shoemart. When she returned to the Ritz Towers, Simplicio was waiting for her. The two of
them went home. Rosilyn narrated to Simplicio what accused-appellant did to her, and pleaded
for him not to bring her back to the Ritz Towers. Simplicio told her that everything was alright as
long as accused-appellant does not have sexual intercourse with her.
That same evening, at around 9:00 to 9:30 in the evening, Simplicio again brought Rosilyn
to the Ritz Towers. After Simplicio left, accused-appellant removed Rosilyns clothes and dressed
her with the same long T-shirt. They watched television for a while, then accused-appellant sat
beside Rosilyn and kissed her on the lips. He made Rosilyn lie down, lifted her shirt above her
breasts, and inserted his finger into her vagina. Then, accused-appellant removed his own
clothes, placed his penis between Rosilyns thighs and made thrusting motions until he ejaculated
on her thighs. Thereafter, accused-appellant kissed her and told her to sleep.
The next day, June 16, 1996, accused-appellant roused her from sleep and bathed
her. Again, he rubbed soap all over her body, washed her hair, and thereafter rinsed her body and
dried her hair. While accused-appellant was bathing Rosilyn, he asked her to fondle his penis
while he caressed her breasts and inserted his finger into her vagina. After their shower, accused-
appellant ate breakfast. He gave Rosilyn P5,000.00 and told her to just wait for Simplicio in the
condominium unit. On their way home, Simplicio told Rosilyn that if accused-appellant tries to
insert his penis into her vagina, she should refuse.
At around 8:00 p.m. of June 18, 1996, Simplicio brought Rosilyn to the Ritz Towers. They
found accused-appellant sitting on the bed in his bedroom. Simplicio told Rosilyn to approach
accused-appellant, then he left. Accused-appellant took off Rosilyns clothes and dressed her with
a long T-shirt on which was printed a picture of accused-appellant and a woman, with the
caption, Cong. Jalosjos with his Toy.They watched television for a while, then accused-appellant
lay beside Rosilyn and kissed her on the lips. He raised her shirt and parted her legs. He
positioned himself between the spread legs of Rosilyn, took off his own shirt, held his penis, and
poked and pressed the same against Rosilyns vagina. This caused Rosilyn pain inside her sex
organ. Thereafter, accused-appellant fondled her breasts and told her to sleep.
When Rosilyn woke up the following morning, June 19, 1996, accused-appellant was no
longer around but she found P5,000.00 on the table. Earlier that morning, she had felt somebody
touching her private parts but she was still too sleepy to find out who it was. Rosilyn took a bath,
then went off to school with Simplicio, who arrived to fetch her.
The next encounter of Rosilyn with accused-appellant was on June 21, 1996, at about 9:00
oclock in the evening in his bedroom at the Ritz Towers. Accused-appellant stripped her naked
and again put on her the long shirt he wanted her to wear. After watching television for a while,
accused-appellant knelt beside Rosilyn, raised her shirt, caressed her breasts and inserted his
finger into her vagina. Then, he clipped his penis between Rosilyns thighs, and made thrusting
motions until he ejaculated. Thereafter, Rosilyn went to sleep.
The next day, June 22, 1996, Rosilyn was awakened by accused-appellant who was kissing
her and fondling her sex organ. She, however, ignored him and went back to sleep. When she
woke up, she found the P5,000.00 which accused-appellant left and gave the same to Simplicio
Delantar, when the latter came to pick her up.
On June 29, 1996, Rosilyn again went to the Ritz Towers. During that visit, accused-
appellant took photographs of Rosilyn. He asked her to pose with her T-shirt pulled down
thereby exposing her breasts. He also took her photographs with her T-shirt rolled up to the
pelvis but without showing her pubis, and finally, while straddled on a chair facing the backrest,
showing her legs.
Before Rosilyn went to sleep, accused-appellant kissed her lips, fondled her breasts and
inserted his finger into her vagina. The following morning, she woke up and found the P5,000.00
left by accused-appellant on the table. She recalled that earlier that morning, she felt somebody
caressing her breasts and sex organ.
On July 2, 1996 at 7:00 p.m., Rosilyn and Simplicio returned to the Ritz Towers. Rosilyn
had to wait for accused-appellant, who arrived between 12:00 to 1:00 a.m. He again dressed her
with the long white shirt similar to what he was wearing. While sitting on the bed, accused-
appellant kissed her lips and inserted his tongue into her mouth. He then fondled her breasts and
inserted his finger into her vagina, causing her to cry in pain. Accused-appellant stopped and told
her to sleep.
The next morning, accused-appellant bathed her again. While he soaped her body, he
fondled her breasts and inserted his finger in her vagina. Rosilyn felt pain and shoved his hand
away. After bathing her, accused-appellant had breakfast. Before he left, he gave Rosilyn
P5,000.00. As soon as Simplicio arrived, Rosilyn gave her the money and then they left for
school.
On July 20, 1996, Simplicio again brought Rosilyn to the Ritz Towers. Accused-appellant
was waiting in his bedroom. He took off Rosilyns clothes, including her panties, and dressed her
with a long T-shirt similar to what he was wearing. After watching television, accused-appellant
kissed Rosilyn on the lips, inserted his tongue in her mouth and fondled her breasts. Then, he
made Rosilyn lie on the bed, spread her legs apart and placed a pillow under her back. He
inserted his finger in her vagina and mounted himself between her legs with his hands rested on
her sides. After that, he lifted his shirt, then pointed and pressed his penis against her
vagina. Accused-appellant made thrusting motions, which caused Rosilyn pain. Thereafter,
accused-appellant told her to sleep.
In the early morning of July 21, 1996, Rosilyn felt somebody touching her sex organ, but
she did not wake up. When she woke up later, she found P5,000.00 on the table, and she gave
this to Simplicio when he came to fetch her.
On August 15, 1996, Rosilyn and Simplicio went to the Ritz Towers at around 7:00
p.m. Accused-appellant was about to leave, so he told them to come back later that evening. The
two did not return.
The following day, Rosilyn ran away from home with the help of Yamie Estreta, one of their
boarders. Yamie accompanied Rosilyn to the Pasay City Police, where she executed a sworn
statement against Simplicio Delantar. Rosilyn was thereafter taken to the custody of the
Department of Social Welfare and Development (DSWD). The National Bureau of Investigation
(NBI) conducted an investigation, which eventually led to the filing of criminal charges against
accused-appellant.
On August 23, 1996, Rosilyn was examined by Dr. Emmanuel L. Aranas at Camp
Crame. The examination yielded the following results:

EXTERNAL AND EXTRAGENITAL

Fairly developed, fairly nourished and coherent female subject. Breasts are conical
with pinkish brown areola and nipples from which no secretions could be pressed
out. Abdomen is flat and soft

GENITAL

There is moderate growth of pubic hair. Labia majora are full, convex and coaptated
with the pinkish brown labia minora presenting in between. On separating the same
disclosed an elastic, fleshy type hymen, with shallow healed laceration at 3 o'clock
position and deep healed laceration at 8 o'clock position. External vaginal orifice
offers moderate resistance to the introduction of the examining index finger and the
virgin sized vaginal speculum. Vaginal canal is narrow with prominent
rugosities. Cervix is firm and closed.

CONCLUSION:

Subject is in non-virgin state physically.

There are no external signs of application of any form of violence.[9]

During the trial, accused-appellant raised the defense of denial and alibi. He claimed that it
was his brother, Dominador Jun Jalosjos, whom Rosilyn had met, once at accused-appellants
Dakak office and twice at the Ritz Towers. Accused-appellant insisted that he was in the
province on the dates Rosilyn claimed to have been sexually abused. He attributed the filing of
the charges against him to a small group of blackmailers who wanted to extort money from him,
and to his political opponents, particularly Ex-Congressman Artemio Adaza, who are allegedly
determined to destroy his political career and boost their personal agenda.
More specifically, accused-appellant claims that on June 16, 1996, he was on the Philippine
Airlines (PAL) 9:40 a.m. flight from Manila to Dipolog. He stayed in Dipolog until June 18,
1996. He submitted in evidence airline ticket no. 10792424,[10] showing that he was on board
Flight PR 165; the said flights passengers manifest,[11] where the name JALOSJOS/RM/MR
appears; and photographs showing accused-appellants constituents welcoming his arrival and
showing accused-appellant talking with former Mayor Hermanico Carreon and Fiscal
Empainado.
Accused-appellant further alleges that on June 28, 1996, he again took the 9:40 a.m. flight
from Manila to Dipolog City. On the same flight, he met Armando Nocom of the Philippine
Daily Inquirer. Upon arrival and after talking to his representatives, he proceeded to his
residence known as Barangay House in Taguinon, Dapitan, near Dakak Beach resort, and spent
the night there.
On June 29, 1996, accused-appellant attended the fiesta at Barangay San Pedro. He stayed in
the house of Barangay Captain Mila Yap until 5:30 p.m. Then, together with some friends, he
visited the Rizal Shrine and the Pirate Bar at Dakak Beach Resort. Thereafter, he retired in the
Barangay House in Taguilon.
 On June 30, 1996, accused-appellant alleges that he attended a city-wide consultation with
his political leaders at the Blue Room of Dakak, which lasted till the afternoon. In the evening,
he went home and slept in the Barangay House.
On July 1, 1996, he attended the whole day celebration of Dipolog Day. He spent the night
in the Barangay House.
On July 2, 1996, he attended the inauguration of the reception hall of Dakak Beach
Resort. The blessing ceremony was officiated by Assistant Parish Priest Adelmo Laput.
On July 3, 1996, he was the guest in the inaguration of the 3rd Engineering District of
Dapitan City. After the mass, he visited the Jamboree site in Barangay Taguilon, Dapitan City.
He further contended that after his arrival in Dipolog on June 28, 1996, there was never an
instance when he went to Manila until July 9, 1996, when he attended a conference called by the
President of the Philippines.
Accused-appellant likewise alleged that on July 21, 1996, he took the 5:00 a.m. flight of
PAL from Manila to Dumaguete City. From there, he was flown by a private plane to Dipolog,
where he stayed until the President of the Philippines arrived.
To buttress the theory of the defense, Dominador Jun Jalosjos testified that he was the one,
and not accused-appellant, whom Rosilyn met on three occasions. These occurred once during
the first week of May 1996, at accused-appellants Dakak office where Rosilyn and Simplicio
Delantar were introduced to him by Eduardo Suarez, and twice at the Ritz Towers when he
interviewed Rosilyn, and later when Rosilyn and Simplicio followed up the proposed entry of
Rosilyn into the show business.
Dominadors admission of his meetings with Rosilyn on three instances were limited to
interviewing her and assessing her singing and modeling potentials. His testimony made no
mention of any sexual encounter with Rosilyn.
After trial, the court rendered the assailed decision, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. In Criminal Cases Nos. 96-1985 and 96-1986, the prosecution has proven beyond
reasonable doubt the guilt of the accused, ROMEO JALOSJOS y GARCIA, as
principal in the two (2) counts of statutory rape defined and penalized under Article
335 of the Revised Penal Code. He is hereby declared CONVICTED in each of these
cases.

2. Accordingly, he is sentenced to:

2a. suffer the penalty of reclusion perpetua in each of these cases.

2b. indemnify the victim, MA. ROSILYN DELANTAR, in the amount of FIFTY
THOUSAND PESOS (P50,000.00) as moral damages for each of the cases.
3. In Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992 and 96-
1993, the prosecution has proven beyond reasonable doubt the guilt of the accused,
ROMEO JALOSJOS y GARCIA, as principal in six (6) counts of acts of
lasciviousness defined under Article 336 of the Revised Penal Code and penalized
under Section 5 (b) of R.A. 7610 otherwise known as the Child Abuse Law. He is
hereby declared CONVICTED in each of these cases;

4. Accordingly he is sentenced to:

4.a. suffer in each of the cases an indeterminate prison term of from eight (8) years,
eight (8) months and one (1) day of prision mayor in its medium period, as maximum,
to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal in its
medium period, as maximum;

4.b. indemnify the victim, MA ROSILYN DELANTAR, in the amount of TWENTY

THOUSAND (P20,000.00) as moral damages for each of the cases;

5. In Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997 and 96-1998,
the prosecution has failed to prove beyond reasonable doubt the guilt of the accused,
ROMEO JALOSJOS y GARCIA, in six (6) counts of acts of
lasciviousness. Therefore, on the ground of reasonable doubt, the accused in these
cases is hereby ACQUITTED.

SO ORDERED.[12]

Hence, the instant appeal. Accused-appellant contends:

A.

THE TRIAL COURT GRIEVOUSLY ERRED IN CONVICTING THE

ACCUSED-APPELLANT BASED ON TESTIMONY OF THE PRIVATE
COMPLAINANT, CONSIDERING THE ATTENDANT INDICIA OF
INCONSISTENCIES AND UNTRUTHS.
B.

THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE

SIGNIFICANCE OF THE CONFLICTING STATEMENTS GIVEN BY THE
PRIVATE COMPLAINANT.
C.
 THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE
SIGNIFICANCE OF PRIVATE COMPLAINANTS FAILURE TO IDENTIFY
THE ACCUSED-APPELLANT.
D.

THE TRIAL COURT GRIEVOUSLY ERRED IN RULING THAT THE

PRIVATE COMPLAINANT WAS A MINOR LESS THAN TWELVE YEARS
OF AGE WHEN THE CLAIMED INCIDENTS ALLEGEDLY TOOK PLACE.
E.

THE TRIAL COURT GRIEVOUSLY ERRED IN FINDING THAT RAPE WAS

COMMITTED AGAINST THE PRIVATE COMPLAINANT.[13]

In this jurisdiction, the testimony of the private complainant in rape cases is scrutinized with
utmost caution. The constitutional presumption of innocence requires no less than moral
certainty beyond any scintilla of doubt. This applies with more vigor in rape cases where the
evidence for the prosecution must stand or fall on its own merits and is not allowed to draw
strength from the weakness of the evidence of the defense. As an inevitable consequence, it is the
rape victim herself that is actually put on trial. The case at bar is no exception. Bent on
destroying the veracity of private complainants testimony, the errors assigned by accused-
appellant, particularly the first three, are focused on the issue of credibility.
Accused-appellant makes much of his acquittal in Criminal Case Nos. 96-1991, 96-1994,
96-1995, 96-1996, 96-1997, and 96-1998, for acts of lasciviousness. According to him, the fact
that the trial court sustained his defense of alibi in the said cases only shows that Rosilyn
concocted her stories and the rest of her testimony ought not to be believed. Stated differently,
accused-appellant urges the application of the doctrine of "falsus in uno falsus in omnibus (false
in part, false in everything).[14]
The contention is without merit. Falsus in uno falsus in omnibus is not an absolute rule of
law and is in fact rarely applied in modern jurisprudence.[15] Thus, in People v. Yanson-
Dumancas,[16] citing People v. Li Bun Juan,[17] this Court held that:

... In this connection it must be borne in mind that the principle falsus in uno falsus in
omnibus is not an absolute one, and that it is perfectly reasonable to believe the
testimony of a witness with respect to some facts and disbelieve it with respect to
other facts. In People vs. Keller, 46 O.G. No. 7, pp. 3222-3223, the following was
quoted with approval by the Court of Appeals from 1 Moore on Facts, p. 23:

18. Testimony may be partly credited and partly rejected. --- Trier of facts are not
bound to believe all that any witness has said; they may accept some portions of his
testimony and reject other portions, according to what seems to them, upon other facts
and circumstances to be the truth Even when witnesses are found to have deliberately
falsified in some material particulars, the jury are not required to reject the whole of
their uncorroborated testimony, but may credit such portions as they deem worthy of
belief. (p. 945)[18]

Being in the best position to discriminate between the truth and the falsehood, the trial
court's assignment of values and weight on the testimony of Rosilyn should be given
credence. Significantly, it should be borne in mind that the issue at hand hinges on credibility,
the assessment of which, as oft-repeated, is best made by the trial court because of its
untrammeled opportunity to observe her demeanor on the witness stand.
On the demeanor and manner of testifying shown by the complainant, the trial court stated:

Guided by the foregoing principles, this court found no reason why it should not
believe Rosilyn when she claimed she was raped.Testimonies of rape victims
especially those who are young and immature deserve full credence (People v.
Liquiran, 228 SCRA 62 (1993) considering that no woman would concoct a story of
defloration, allow an examination of her private parts and thereafter allow herself to
be perverted in a public trial if she was not motivated solely by the desire to have the
culprit apprehended and punished. (People v. Buyok, 235 SCRA 622 [1996]).

When asked to describe what had been done to her, Rosilyn was able to narrate
spontaneously in detail how she was sexually abused. Her testimony in this regard
was firm, candid, clear and straightforward, and it remained to be so even during the
intense and rigid cross-examination made by the defense counsel.[19]

Accused-appellant next argues that Rosilyns direct and redirect testimonies were rehearsed
and lacking in candidness. He points to the supposed hesitant and even idiotic answers of
Rosilyn on cross and re-cross examinations. He added that she was trained to give answers such
as, Ano po?, Parang po, Medyo po, and Sa tingin ko po.
Accused-appellants arguments are far from persuasive. A reading of the pertinent transcript
of stenographic notes reveals that Rosilyn was in fact firm and consistent on the fact of rape and
lascivious conduct committed on her by accused-appellant. She answered in clear, simple and
natural words customary of children of her age. The above phrases quoted by accused-appellant
as uttered by Rosilyn are, as correctly pointed out by the Solicitor General, typical answers of
child witnesses like her.
At any rate, even assuming that Rosilyn, during her lengthy ordeals on the witness stand,
may have given some ambiguous answers, they refer merely to minor and peripheral details
which do not in any way detract from her firm and straightforward declaration that she had been
molested and subjected to lascivious conduct by accused-appellant. Moreover, it should be borne
in mind that even the most candid witness oftentimes makes mistakes and confused
statements. At times, far from eroding the effectiveness of the evidence, such lapses could,
indeed, constitute signs of veracity.[20]
Then, too, accused-appellant capitalizes on the alleged absence of any allegation of rape in
the five (5) sworn statements executed by Rosilyn as well as in the interviews and case study
conducted by the representatives of the DSWD. In particular, accused-appellant points to the
following documents:
(1) Sworn statements dated August 22 and 26, 1996, executed before SPO5 Milagros A.
Carrasco of the Pasay City Police;
(2) Sworn statements dated September 5, 11, and 19, 1996, executed before NBI Agents
Cynthia L. Mariano and Supervising NBI Agent Arlis E. Vela;
(3) The Initial Interview of Rosilyn by the DSWD dated August 30, 1996;
(4) DSWD Final Case Study Report dated January 10, 1997.
It must be stressed that rape is a technical term, the precise and accurate definition of which
could not have been understood by Rosilyn. Indeed, without the assistance of a lawyer, who
could explain to her the intricacies of rape, she expectedly could not distinguish in her affidavits
and consequently disclose with proficient exactitude the act or acts of accused-appellant that
under the contemplation of law constitute the crime of rape. This is especially true in the present
case where there was no exhaustive and clear-cut evidence of full and complete penetration of
the victims vagina. It may well be that Rosilyn thought, as any layman would probably do, that
there must be the fullest penetration of the victims vagina to qualify a sexual act to rape.
In People v. Campuhan,[21] we ruled that rape is consummated by the slightest penetration of
the female organ, i.e., touching of either labia of the pudendum by the penis. There need not be
full and complete penetration of the victims vagina for rape to be consummated.There being no
showing that the foregoing technicalities of rape was fully explained to Rosilyn on all those
occasions that she was interviewed by the police, the NBI agents and DSWD social workers, she
could not therefore be expected to intelligibly declare that accused-appellants act of pressing his
sex organ against her labia without full entry of the vaginal canal amounted to rape.
In the decision of the trial court, the testimony on one of the rapes is cited plus the courts
mention of the jurisprudence on this issue, to wit:
Q: You said that when Congressman Jalosjos inserted his finger into your vagina, your back was
rested on a pillow and your legs were spread wide apart, what else did he do?
A: He lifted his shirt, and held his penis; and again idinikit-dikit niya ang ari niya sa ari
ko. (underscoring supplied)
Q: And, after doing that: Idinikit-dikit niya yong ari niya sa ari ko; what else did he do?
A: After that, Itinutok niya po yong ari niya at idiniin-diin niya ang ari niya sa ari ko. (underscoring
supplied)
(pp. 23, 25 to 30, TSN, 16 April 1997)

It is well-entrenched in this jurisdiction that rape can be committed even without full
penetration of the male organ into the vagina of the woman. It is enough that there be
proof of the entrance of the male organ within the labia of the pudendum of the female
organ. (People vs. Mangalino, 182 SCRA 329; People vs. Tismo, 204 SCRA 535;
People vs. Bacani, 181 SCRA 393). Penetration of the penis by entry into the lips of
the female organ suffices to warrant a conviction. (People vs. Galimba, G.R. No.
111563-64, February 20, 1996 citing People vs. Abonada, 169 SCRA 530). Hence,
with the testimony of Rosilyn that the accused pressed against (idiniin) and pointed to
(itinutok) Rosilyns vagina his sexual organ on two (2) occasions, two (2) acts of rape
were consummated.[22]

Moreover, it must be borne in mind that Rosilyns purpose in executing the affidavits on
August 22 and 26, 1996 before the Pasay City Police was to charge Simplicio Delantar, not
accused-appellant. As aptly pointed out by the trial court, it is preposterous to expect Rosilyn to
make an exhaustive narration of the sexual abuse of accused-appellant when he was not the
object of the said complaint.
Additionally, Rosilyns statements, given to the NBI on September 11 and 19, 1996,
concerned mainly the identification of pictures.There was thus no occasion for her to narrate the
details of her sexual encounter with accused-appellant.
As to the interviews and studies conducted by the DSWD, suffice it to state that said
meetings with Rosilyn were specially focused on the emotional and psychological repercussions
of the sexual abuse on Rosilyn, and had nothing to do with the legal actions being prepared as a
consequence thereof. Thus, the documents pertaining to said interviews and studies cannot be
relied upon to reveal every minute aspect of the sexual molestations complained of.
At any rate, the inconsistencies between the affidavits and Rosilyns testimony, if at all they
existed, cannot diminish the probative value of Rosilyns declarations on the witness stand. The
consistent ruling of this Court is that, if there is an inconsistency between the affidavit of a
witness and her testimonies given in open court, the latter commands greater weight than the
former.[23]
In the third assigned error, accused-appellant attempts to impress upon this Court that
Rosilyn gave the name Congressman Romeo Jalosjos as her abuser only because that was the
name given to her by the person to whom she was introduced. That same name, accused-
appellant claims, was merely picked up by Rosilyn from the name plate, plaque, and memo pad
she saw on accused-appellants office desk.Accused-appellant presented his brother, Dominador
Jun Jalosjos, in an attempt to cast doubt on his culpability. It was Dominador Jun Jalosjos who
allegedly met and interviewed Rosilyn at the Dakak office. In advancement of this theory,
accused-appellant cites the fact that out of a total of 16 pictures presented to Rosilyn for
identification, she picked up only 4, which depict Dominador Jun Jalosjos. In the same vein,
accused-appellant claims that the resulting cartographic sketch from the facial characteristics
given by Rosilyn to the cartographer, resembles the facial appearance of Dominador Jun
Jalosjos. Accused-appellant also points out that Rosilyn failed to give his correct age or state that
he has a mole on his lower right jaw.
Contrary to the contentions of accused-appellant, the records reveal that Rosilyn positively
and unhesitatingly identified accused-appellant at the courtroom. Such identification during the
trial cannot be diminished by the fact that in her sworn statement, Rosilyn referred to accused-
appellant as her abuser based on the name she heard from the person to whom she was
introduced and on the name she saw and read in accused-appellants office. Verily, a persons
identity does not depend solely on his name, but also on his physical features. Thus, a victim of a
crime can still identify the culprit even without knowing his name. Similarly, the Court, in
People v. Vasquez,[24] ruled that:

It matters little that the eyewitness initially recognized accused-appellant only by face
[the witness] acted like any ordinary person in making inquiries to find out the name
that matched [appellants] face. Significantly, in open court, he unequivocally
identified accused-appellant as their assailant.

Even in the case of People v. Timon,[25] relied upon by accused-appellant to discredit his
identification, this Court said that even assuming that the out-of-court identification of accused-
appellant was defective, their subsequent identification in court cured any flaw that may have
initially attended it.
In light of the foregoing, Rosilyns failure to identify accused-appellant out of the 16 pictures
shown to her does not foreclose the credibility of her unqualified identification of accused-
appellant in open court. The same holds true with the subject cartographic sketch which,
incidentally, resembles accused-appellant. As noted by the trial court, accused-appellant and his
brother Dominador Jalosjos have a striking similarity in facial features. Naturally, if the sketch
looks like Dominador, it logically follows that the same drawing would definitely look like
accused-appellant.
Likewise, Rosilyns failure to correctly approximate the age of accused-appellant and to state
that he has a mole on the lower right jaw, cannot affect the veracity of accused-appellants
identification. At a young age, Rosilyn cannot be expected to give the accurate age of a 56 year-
old person. As to accused-appellants mole, the Solicitor General is correct in contending that said
mole is not so distinctive as to capture Rosilyns attention and memory. When she was asked to
give additional information about accused-appellant, Rosilyn described him as having a
prominent belly. This, to our mind, is indeed a more distinguishing feature that would naturally
catch the attention of an eleven year-old child like Rosilyn.
In his fifth assigned error, accused-appellant insists that the words idinikit,
itinutok, and idiniin-diin, which Rosilyn used to describe what accused-appellant did to her
vagina with his genitals, do not constitute consummated rape. In addition, the defense argued
that Rosilyn did not actually see accused-appellants penis in the supposed sexual contact. In fact,
they stressed that Rosilyn declared that accused-appellants semen spilled in her thighs and not in
her sex organ.
Moreover, in his Reply Brief, accused-appellant, citing People v. Campuhan, argued that,
assuming that his penis touched or brushed Rosilyns external genitals, the same is not enough to
establish the crime of rape.
True, in People v. Campuhan,[26] we explained that the phrase, the mere touching of the
external genitalia by the penis capable of consummating the sexual act is sufficient to constitute
carnal knowledge, means that the act of touching should be understood here as inherently part of
the entry of the penis into the labia of the female organ and not mere touching alone of the mons
pubis or the pudendum.We further elucidated that:
The pudendum or vulva is the collective term for the female genital organs that are
visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen,
the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that
becomes hairy after puberty, and is instantly visible within the surface. The next layer
is the labia majora or the outer lips of the female organ composed of the outer convex
surface and the inner surface. The skin of the outer convex surface is covered with
hair follicles and is pigmented, while the inner surface is a thin skin which does not
have any hairs but has many sebaceous glands. Directly beneath the labia majora is
the labia minora. Jurisprudence dictates that the labia majora must be entered for rape
to be consummated, and not merely for the penis to stroke the surface of the female
organ. Thus, a grazing of the surface of the female organ or touching the mons pubis
of the pudendum is not sufficient to constitute consummated rape. Absent any
showing of the slightest penetration of the female organ, i.e., touching of either labia
of the pudendum by the penis, there can be no consummated rape; at most, it can only
be attempted rape, if not acts of lasciviousness.[27]

In the present case, there is sufficient proof to establish that the acts of accused-appellant
went beyond strafing of the citadel of passion or shelling of the castle of orgasmic potency, as
depicted in the Campuhan case, and progressed into bombardment of the drawbridge [which] is
invasion enough,[28] there being, in a manner of speaking, a conquest of the fortress of
ignition. When the accused-appellant brutely mounted between Rosilyns wide-spread legs,
unfetteredly touching, poking and pressing his penis against her vagina, which in her position
would then be naturally wide open and ready for copulation, it would require no fertile
imagination to belie the hypocrisy claimed by accused-appellant that his penis or that of someone
who looked like him, would under the circumstances merely touch or brush the external genital
of Rosilyn. The inevitable contact between accused-appellants penis, and at the very least, the
labia of the pudendum of Rosilyn, was confirmed when she felt pain inside her vagina when
the idiniin part of accused appellants sex ritual was performed.
The incident on June 18, 1996 was described by Rosilyn as follows:
PROS. ZUNO:
Q. And, after kissing your lips; after kissing you in your lips, what else did he do?
A. After that, he was lifting my shirt.
Q. Now, while he was lifting your shirt, what was your position; will you tell the court?
A. I was lying, sir.
Q. Lying on what?
A. On the bed, sir.
Q. And, after lifting your shirt, what else did he do?
A. He spread my legs sir.
Q. And, after spreading your legs apart; what did he do?
A. After that, he lifted his shirt and held his penis.
Q. And while he was holding his penis; what did he do?
A. He pressed it in my vagina.
ATTY. FERNANDEZ:
May we request that the vernacular be used?
A. Tapos po, idinikit-dikit po niya yong ari niya sa ari ko.
PROS. ZUNO:
May I respectfully move that the word: idinikit-dikit niya ang ari niya sa ari ko, be incorporated?
Q. And while he was doing that; according to you, idinikit-dikit niya ang ari niya sa ari mo; what did
you feel?
A. I was afraid and then, I cried.
Q. Will you tell the Court why you felt afraid and why you cried?
A. Because I was afraid he might insert his penis into my vagina.
Q. And, for how long did Congressman Jalosjos perform that act, which according to you, idinikit-
dikit niya yong ari niya sa ari ko?
COURT:
Place the Tagalog words, into the records.
A. Sandali lang po yon.
Q. What part of your vagina, or ari was being touched by the ari or penis?
xxxxxxxxx
Q. You said that you felt I withdraw that question. How did you know that Congressman Jalosjos was
doing, idinikit-dikit niya yung ari niya sa ari ko?
A. Because I could feel it, sir.
Q. Now, you said you could feel it. What part of the vagina in what part of your vagina was
Congressman Jalosjos, according to you, idinikit-dikit niya yong ari niya sa ari mo?
A. In front of my vagina, sir.
Q. In front of your vagina? O.K.; will you tell the Court the position?
Will you describe the position of Congressman Jalosjos when he was doing that. Idinikit-dikit niya sa
ari ko?
A. Ide-demonstrate ko po ba?
FISCAL ZUNO:
Q. Can you demonstrate?
xxxxxxxxx
A. He was holding me like this with his one hand; and was holding his penis while his other hand, or
his free hand was on the bed.
 xxxxxxxxx
PROS. ZUNO:
Now, according to you, you dont know how to say it; or what was done to you. Now, will you tell the
Court how can you describe what was done to you?
A. After he dinikit-dikit niya yong ari niya sa ari ko; itinutok naman niya ito.
Q. O.K. you said itinutok niya ito; what else did he do?
PROS. ZUNO:
She is now trying to describe.
COURT:
Translate.
A. He seems to be parang idinidiin po niya.
Q. Now, what did you feel, when according to you; as I would quote: parang idinidiin niya?
A. Masakit po.
Q. And, just to make it clear in Tagalog: Ano itong idinidiin niya?
COURT:
Q. Sabi mo itinutok. Nakita mo bang itinutok?
A. I saw him na nakaganuon po sa ano niya.
PROS. ZUNO:
Q. O.K., clarify. You said nakaganuon siya what do you mean by nakaganuon siya?
A. He was holding his penis, and then, that was the one which he itinutok sa ari ko.
PROS. ZUNO:
Q. And, when you said idinidiin po niya; to which you are referring? What is this idinidiin niya?
A. Idinidiin niya ang ari niya sa ari ko.
Q. And what did you feel when you said: he was idinidiin niya ang ari niya sa ari ko?
A. Masakit po.
COURT:
The answer is masakit po.
Proceed.
PROS. ZUNO:
Q. Where did you feel the pain?
A. Inside my ari po. (Sa loob po ng ari ko.)
xxxxxxxxx
PROS. ZUNO:
 Q. And then, after that, what else did he do
A. After that, he touched my breast, sir.
Q. And, after touching your breast, what did he do?
A. And after that I felt that he was (witness demonstrating to the court, with her index finger, rubbing
against her open left palm)
Q. And after doing that, what else did he do?
A. After that, he instructed me to go to sleep.
xxxxxxxxx
A. I put down my clothes and then, I cried myself to sleep, sir.
Q. Why did you cry? Will you tell the court, why did you cried after putting down your clothes?
A. Because I felt pity for myself.
(Naaawa po ako sa sarili ko.)
x x x x x x x x x.
(Emphasis supplied.)[29]
Even the July 20, 1996 encounter between Rosilyn and accused-appellant would not tax the
sketchy visualization of the nave and uninitiated to conclude that there was indeed penile
invasion by accused-appellant of Rosilyns labia. On that occasion, accused-appellant was
similarly ensconced between the parted legs of Rosilyn, except that, this time, Rosilyn was
conveniently rested on, and elevated with a pillow on her back while accused-appellant was
touching, poking and pressing his penis against her vagina. Topped with the thrusting motions
employed by accused-appellant, the resulting pain felt by Rosilyn in her sex organ was no doubt
a consequence of consummated rape.
The pertinent portions of Rosilyns account of the July 20, 1996 incident is as follows:
PROS. ZUNO:
xxxxxxxxx
Q. The moment when Cong. Jalosjos inserted his finger into your vagina, what was your position?
INTERPRETER:
The witness is asking he (sic) she has to demonstrate?
FISCAL ZUNO:
Q. Ipaliwanag mo lang?
A. My back was rested on a pillow and my legs were spread apart.
Q. You said that when Congressman Jalosjos inserted his finger into your vagina, your back was
rested on a pillow and your legs were spread wide apart, what else did he do?
A. He lifted his shirt, and held his penis; and again idinikit-dikit niya ang ari niya sa ari ko.
 Q. And what did you feel when he was doing that which according to you and I would quote in
Tagalog: idinikit-dikit niya yong ari niya sa ari ko?
A. I was afraid sir.
Q. And, after doing that: idinikit-dikit niya yong ari niya sa ari ko, what else did he do?
A. After that, itinutok niya po yong ari niya at idiniin-diin niya ang ari niya sa ari ko.
Q. You said: Congressman Jalosjos itinutok niya yong ari niya sa ari ko; at idiniin-diin niya yong ari
niya sa ari ko; Now, while he was doing that act, what was the position of Congressman Jalosjos?
A. His two (2) hands were on my side and since my legs were spread apart; he was in-between them,
and doing an upward and downward movement.
(Witness demonstrated a pushing, or pumping movement)
Q. For how long did Congressman Jalosjos perform that act, pushing or pumping movement while his
penis, or ang ari niya ay nakatutok at idinidiin-diin yong ari niya sa ari mo?
A. I dont know.
Q. And what did you feel when Congressman Jalosjos was making that movement, pushing, or
pumping?
A. I felt pain and then I cried.
Q. Where did you feel the pain?
A. Inside my vagina, sir.
x x x x x x x x x.[30]
The childs narration of the rape sequence is revealing. The act of idinikit-dikit niya was
followed by itinutok niya xxx at idiniin-diin niya. The idiniin-diin niya was succeeded
by Masakit po. Pain inside her ari is indicative of consummated penetration.
The environmental circumstances displayed by the graphic narration of what took place at
the appellants room from June 14 to June 16 and June 21 to June 22, 1996 are consistent with the
complainants testimony which shows that rape was legally consummated.
In the case of People v. Campuhan, the victim put up a resistance --- by putting her legs
close together --- which, although futile, somehow made it inconvenient, if not difficult, for the
accused-appellant to attempt penetration. On the other hand, the ease with which accused-
appellant herein perpetrated the sexual abuse, not to mention the absence of time constraint,
totally distinguishes the instant case from Campuhan. Here, the victim was passive and even
submissive to the lecherous acts of accused-appellant. Thus, even assuming that his penis then
was flaccid, his act of holding, guiding and assisting his penis with his one hand, while touching,
poking and pressing the same against Rosilyn's vagina, would surely result in even the slightest
contact between the labia of the pudendum and accused-appellant's sex organ.
Considering that Rosilyn is a self-confessed sex worker, and the circumstances of the
alleged sexual assault at bar, the defense argued that it is highly improbable and contrary to
human experience that accused-appellant exercised a Spartan-like discipline and restrained
himself from fully consummating the sexual act when there was in fact no reason for him not to
do so. In the same light, the defense likewise branded as unnatural the testimony of Rosilyn that
accused-appellant contented himself with rubbing his penis clipped between her thighs until he
reached orgasm and desisted from fully penetrating her, when Rosilyn was then entirely at his
disposal.
The defense seems to forget that there is no standard form of behavior when it comes to
gratifying ones basic sexual instinct. The human sexual perversity is far too intricate for the
defense to prescribe certain forms of conduct. Even the word perverse is not entirely precise, as
what may be perverse to one may not be to another. Using a child of tender years who could
even pass as ones granddaughter, to unleash what others would call downright bestial lust, may
be utterly nauseating and repulsive to some, but may peculiarly be a festive celebration of
salacious fantasies to others. For all we know, accused-appellant may have found a distinct and
complete sexual gratification in such kind of libidinous stunts and maneuvers.
Nevertheless, accused-appellant may not have fully and for a longer period penetrated
Rosilyn for fear of perpetrating his name through a child from the womb of a minor; or because
of his previous agreement with his suking bugaw, Simplicio Delantar, that there would be no
penetration, otherwise the latter would demand a higher price. This may be the reason why
Simplicio Delantar gave his mocking fatherly advice to Rosilyn that it is bad if accused-appellant
inserts his penis into her sex organ, while at the same time ordering her to call him if accused-
appellant would penetrate her. Such instance of penile invasion would prompt Simplicio to
demand a higher price, which is, after all, as the Solicitor General calls it, the peculiarity of
prostitution.
The defense contends that the testimony of Rosilyn that accused-appellant ejaculated on her
thighs and not in her vagina, only proves that there was no rape. It should be noted that this
portion of Rosilyns testimony refers to the June 15 and 21, 1996 charges of acts of
lasciviousness, and not the rape charges. In any event, granting that it occurred during the twin
instances of rape on June 18 and July 20, 1996, the ejaculation on the victims thighs would not
preclude the fact of rape.
There is no truth to the contention of the defense that Rosilyn did not see the penis of
accused-appellant. As can be gleaned from the above-quoted portions of the transcripts, Rosilyn
unequivocally testified that accused-appellant held his penis then poked her vagina with it.And
even if she did not actually see accused-appellants penis go inside her, surely she could have felt
whether it was his penis or just his finger.
We now come to the issue of whether or not Rosilyn was below twelve (12) years of age at
the time the rape complained of occurred.To bolster the declaration of Rosilyn that she was then
eleven years old, the prosecution presented the following documents:
(1) Rosilyns birth certificate showing her birthday as May 11, 1985;[31]
(2) Rosilyns baptismal certificate showing her birthday as May 11, 1985;[32]
(3) Master List of Live Births stating that Ma. Rosilyn Delantar was born on May 11, 1985 to
Librada Telen as the mother;[33]
(4) Marked pages of the Cord Dressing Room Book;[34]
(5) Summary of the Cord Dressing Book, showing her birthday as May 11, 1985 and her parents
(Librada Telen and Simplicio Delantar) patient file number (39-10-71);[35]
 (6) Record of admission showing her parents patient number (39-10-71) and confinement at the
Jose Fabella Memorial Hospital from May 5-14, 1985.[36]
It is settled that in cases of statutory rape, the age of the victim may be proved by the
presentation of her birth certificate. In the case at bar, accused-appellant contends that the birth
certificate of Rosilyn should not have been considered by the trial court because said birth
certificate has already been ordered cancelled and expunged from the records by the Regional
Trial Court of Manila, Branch 38, in Special Proceedings No. 97-81893, dated April 11,
1997.[37] However, it appears that the said decision has been annulled and set aside by the Court
of Appeals on June 10, 1999, in CA-G.R. SP No. 45289. The decision of the Court of Appeals
was appealed to this Court by petition for review, docketed as G.R. No. 140305. Pending the
final outcome of that case, the decision of the Court of Appeals is presumed valid and can be
invoked as prima facie basis for holding that Rosilyn was indeed eleven years old at the time she
was abused by accused-appellant.
However, even assuming the absence of a valid birth certificate, there is sufficient and
ample proof of the complainants age in the records.
Rosilyns Baptismal Certificate can likewise serve as proof of her age. In People v.
Liban,[38] we ruled that the birth certificate, or in lieu thereof, any other documentary evidence
that can help establish the age of the victim, such as the baptismal certificate, school records, and
documents of similar nature, can be presented.
And even assuming ex gratia argumenti that the birth and baptismal certificates of Rosilyn
are inadmissible to prove her age, the Master List of Live Births and the Cord Dressing Book of
Dr. Jose Fabella Memorial Hospital where Rosilyn was born are sufficient evidence to prove that
her date of birth was May 11, 1985. These documents are considered entries in official records,
admissible as prima facie evidence of their contents and corroborative of Rosilyns testimony as
to her age.
Thus, Rule 130, Section 44, of the Rules of Court states:

Entries in official records. --- Entries in official records made in the performance of
his duty by a public officer of the Philippines, or by a person in the performance of a
duty especially enjoined by law, are prima facie evidence of the facts therein stated.

In Africa v. Caltex, et al., (Phil), Inc., et al.,[39] the Court laid down the requisites for the
application of the foregoing rule, thus:
(a) That the entry was made by a public officer, or by another person specially enjoined by law
to do so;
(b) That it was made by the public officer in the performance of his duties or by such other
person in the performance of a duty specially enjoined by law; and
(c) That the public office or the other person had sufficient knowledge of the facts by him
stated, which must have been acquired by him personally or through official information.
In order for a book to classify as an official register and admissible in evidence, it is not
necessary that it be required by an express statute to be kept, nor that the nature of the office
should render the book indispensable; it is sufficient that it be directed by the proper authority to
be kept. Thus, official registers, though not required by law, kept as convenient and appropriate
modes of discharging official duties, are admissible.[40]
Entries in public or official books or records may be proved by the production of the books
or records themselves or by a copy certified by the legal keeper thereof.[41] It is not necessary to
show that the person making the entry is unavailable by reason of death, absence, etc., in order
that the entry may be admissible in evidence, for his being excused from appearing in court in
order that public business be not deranged, is one of the reasons for this exception to the hearsay
rule.[42]
Corollary thereto, Presidential Decree No. 651, as amended by P.D. No. 766,[43] mandates
hospitals to report and register with the local civil registrar the fact of birth, among others, of
babies born under their care. Said Decree imposes a penalty of a fine of not less that P500.00 nor
more than P1,000.00 or imprisonment of not less than three (3) months nor more than six (6)
months, or both, in the discretion of the court, in case of failure to make the necessary report to
the local civil registrar.
Hence, under the above-cited P.D. 651, as amended, in connection with Rule 30, Section 44,
of the Rules of Court, it is clear that the Cord Dressing Room Book where the fact of birth, name
of the mother and other related entries are initially recorded, as well as the Master List of Live
Births of the hospital, are considered entries in official record, being indispensable to and
appropriate modes of recording the births of children preparatory to registration of said entries
with the local civil registrar, in compliance with a duty specifically mandated by law.
It matters not that the person presented to testify on these hospital records was not the
person who actually made those entries way back in 1985, but Amelita Avenante, the records
custodian of the hospital in 1995. To reiterate, these records may be proved by the presentation
of the record itself or by a certified copy or the legal keeper thereof. Proof of the unavailability
of the person who made those entries is not a requisite for their admissibility. What is important
is that the entries testified to by Avenante were gathered from the records of the hospital which
were accomplished in compliance with a duty specifically mandated by law.
Therefore, the Cord Dressing Room Book and the Master List of Live Births of the hospital
are admissible as evidence of the facts stated therein.
The preparation of these hospital documents preceded that of the birth and baptismal
certificates of Rosilyn. They establish independent and material facts prepared by unbiased and
disinterested persons under environmental circumstances apart from those that may have
attended the preparation of the birth and baptismal certificates. Hence, these hospital records, to
reiterate, are sufficient to support the testimony of Rosilyn as to her age.
Consequently, the testimony of Simplicio Delantar that the entries in the birth certificate of
Rosilyn are false and that he merely made them up, particularly her date of birth, was correctly
disregarded by the trial court. It should be noted that the criminal charges for child abuse filed by
Rosilyn against him was the direct cause of his incarceration. This raises a possibility that
Simplicio falsely testified in the present case, to get even with Rosilyn.
Likewise, the trial court correctly disregarded the testimonies of Gloria Binay and Angelito
Intruzo because the defense failed to prove that they were knowledgeable as to the circumstances
of Rosilyns birth. Their testimonies consist mainly of observations tending to show that Rosilyns
appearance belie her claim that she was born on May 11, 1985.
In the four instances of acts of lasciviousness allegedly committed on June 29, June 30, July
2, and July 3, 1996 (Criminal Cases Nos. 96-1994, 96-1995, 96-1996, and 96-1997,
respectively), the trial court acquitted accused-appellant on the ground of reasonable doubt as the
defense was able to prove that accused-appellant was not in Manila but either in Dipolog or
Dapitan City at the time the lascivious acts were supposedly committed. The evidence of the
defense established that accused-appellant flew to Dipolog on June 28, 1996, and stayed there
until July 9, 1996.
In Criminal Cases Nos. 96-1991 and 96-1998, for two counts of acts of lasciviousness
allegedly committed both in the early mornings of June 19 and July 21, 1996, Rosilyn merely
testified that she felt somebody touching her private part but failed to identify the person who
was performing those lecherous acts as she was too sleepy to wake up. Hence, accused-appellant
was likewise acquitted in these cases on the ground of reasonable doubt.
With respect, however, to the acts of lasciviousness committed in the morning of June 15
and 22, 1996, and in the evening of June 14, 15, 18, and 21, 1996, as well as the rape perpetrated
on June 18, 1996 and July 20, 1996, accused-appellant failed to account for his whereabouts. A
careful review of the pertinent transcript of stenographic notes reveals that accused-appellant did
not give any testimony as to where he was at the time these crimes were committed. Clearly,
therefore, the trial court correctly disregarded his unsubstantiated defense of denial, which
cannot prevail over his positive identification by Rosilyn as the culprit.
As regards the charge of acts of lasciviousness committed in the morning of June 16, 1996,
accused-appellant claimed that it was impossible for him to have committed the same because he
flew to Dipolog on that day. The records disclose, however, that accused-appellants flight was at
9:40 a.m. The possibility, therefore, of accused-appellants having performed the lascivious acts
on the victim before he went off to the airport is not at all precluded. For his failure to prove the
physical impossibility of his presence at the Ritz Towers in the morning of June 16, 1996, when
the sexual abuse of Rosilyn was committed, his defense of alibi must fail.
Article III, Section 5 of Republic Act No. 7610, states:

Child Prostitution and other Sexual Abuse. --- Children, whether male or female, who
for money or profit, or any other consideration or due to the coercion or influence of
any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct are
deemed to be children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be
imposed upon the following:

xxx xxx xxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subjected to other sexual abuse; Provided, That when the
victim is under twelve (12) years of age, the perpetrators shall be prosecuted under
Article 335, paragraphs 3, for rape and Article 336 of Act No. 3815, as amended, the
Revised Penal Code, for rape or lascivious conduct, as the case may
be: Provided, That the penalty for lascivious conduct when the victim is under twelve
(12) years of age shall be reclusion temporal in its medium period; x x x . (Emphasis
supplied.)

In People v. Optana,[44] the Court, citing the case of People v. Larin,[45] explained the elements of
the offense of violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, as follows:

1. The accused commits the act of sexual intercourse or lascivious conduct.

2. The said act is performed with a child exploited in prostitution or subjected other
sexual abuse.

3. The child, whether male or female, is below 18 years of age.

A child is deemed exploited in prostitution or subjected to other sexual abuse, when

the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or
any other consideration; or (b) under the coercion or influence of any adult, syndicate
or group. Under RA 7610, children are persons below eighteen years of age or those
unable to fully take care of themselves or protect themselves from abuse, neglect,
cruelty, exploitation or discrimination because of their age or mental disability or
condition.

Lascivious conduct is defined under Article XIII, Section 32 of the Implementing Rules and
Regulation of R.A. 7610, as follows:

[T]he intentional touching, either directly or through clothing, of the genitalia, anus,
groin, breast, inner thigh, or buttocks, or the introduction of any object into the
genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an
intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any
person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a
person.

In the case at bar, accused-appellants acts of kissing Rosilyn on the lips, fondling her breast,
inserting his finger into her vagina and placing his penis between her thighs, all constitute
lascivious conduct intended to arouse or gratify his sexual desire. Hence, the trial court correctly
convicted accused-appellant of violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law,
in Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-1993, charging
him with the above-described lascivious acts.
The penalty for violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, where the
victim is below 12 years of age, is reclusion temporal in its medium period.
 The records show that on at least nine (9) separate occasions, the accused-appellant inserted
his finger into the complainants vagina.These insertions took place in 1996. A year later,
Congress enacted Republic Act No. 8353, the Anti-Rape law of 1997. It does not apply to this
case but it indicates state policy on rape. The Revised Penal Code is now amended to read as
follows:

Article 266-A. Rape; When and How Committed. Rape is committed

1. By a man who have carnal knowledge of a woman under any of the following
circumstances:

a) Through force, threat or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented, even
though none of the circumstances mentioned above be present.

2. By any person who, under any of the circumstances mentioned in paragraph 1

hereof, shall commit an act of sexual assault by inserting his penis into another
persons mouth or anal orifice or any instrument or object, into the genital or anal
orifice of another person. (Emphasis supplied.)

Indicative of the continuing state policy towards rape, the Anti-Rape Law of 1997 now
classifies the crime as an offense against persons. Any public prosecutor, not necessarily the
victim or her parents, can prosecute the case.
The penalties for the crime of rape in the light of various circumstances, which are now set
forth and contained in Article 266-B of the Revised Penal Code, have also been increased.
Considering that there are neither mitigating nor aggravating circumstance, the trial court
correctly imposed on accused-appellant the maximum penalty of fifteen (15) years, six (6)
months and twenty (20) days of reclusion temporal, which is within the medium period
of reclusion temporal medium, pursuant to our ruling in Dulla v. Court of
Appeals.[46] Notwithstanding that R.A. 7610 is a special law, accused-appellant may enjoy a
minimum term of the indeterminate sentence to be taken within the range of the penalty next
lower to that prescribed by the Code.[47] However, the trial court erroneously fixed the minimum
term of the indeterminate sentence at eight (8) years, eight (8) months and one (1) day of prision
mayor in its medium period. In the aforesaid case of Dulla,[48] we held that the penalty next lower in
degree to reclusion temporal medium is reclusion temporal minimum, the range of which is from twelve (12) years
and one (1) day to fourteen (14) years and eight (8) months. Hence, for violation of Article III, Section 5 (b) of R.A.
7610, accused-appellant shall suffer the indeterminate sentence of twelve years (12) and one (1) day of reclusion
temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal as
maximum.
 At the time of commission of the crimes complained of herein in 1996, statutory rape was
penalized under Section 11 of R.A. 7659, which amended Article 335 of the Revised Penal
Code, to wit:

When and how rape is committed. --- Rape is committed by having carnal knowledge
of a woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua. xxx.

In statutory rape, mere sexual congress with a woman below twelve years of age
consummates the crime of statutory rape regardless of her consent to the act or lack of it. The
law presumes that a woman of tender age does not possess discernment and is incapable of
giving intelligent consent to the sexual act. Thus, it was held that carnal knowledge of a child
below twelve years old even if she is engaged in prostitution is still considered statutory
rape. The application of force and intimidation or the deprivation of reason of the victim
becomes irrelevant. The absence of struggle or outcry of the victim or even her passive
submission to the sexual act will not mitigate nor absolve the accused from liability.[49]
In the case at bar, the prosecution established beyond reasonable doubt that accused-
appellant had carnal knowledge of Rosilyn.Moreover, the prosecution successfully proved that
Rosilyn was only eleven years of age at the time she was sexually abused. As such, the absence
of proof of any struggle, or for that matter of consent or passive submission to the sexual
advances of accused-appellant, was of no moment. The fact that accused-appellant had sexual
congress with eleven year-old Rosilyn is sufficient to hold him liable for statutory rape, and
sentenced to suffer the penalty of reclusion perpetua.
As to accused-appellant's civil liability, the amount of moral damages awarded by the trial
court for each count of acts of lasciviousness under Section 5 (b) of R.A. 7610 should be
increased from P20,000.00 to P50,000.00.[50] On the other hand, the award of the amount of
P50,000.00 as moral damages for each count of statutory rape was correct.
In People v. Lor,[51] citing the cases of People v. Victor,[52] and People v. Gementiza,[53] we
held that the indemnity authorized by our criminal law as civil indemnity ex delicto for the
offended party, in the amount authorized by the prevailing judicial policy and aside from other
proven actual damages, is itself equivalent to actual or compensatory damages in civil law. Said
civil indemnity is mandatory upon finding of the fact of rape; it is distinct from and should not be
denominated as moral damages which are based on different jural foundations and assessed by
the court in the exercise of sound judicial discretion.[54] Hence, accused-appellant should be
ordered to pay the offended party another P50,000.00 as civil indemnity for each count of rape
and acts of lasciviousness.
 WHEREFORE, the Decision of the Regional Trial Court of Makati, Branch 62, in Criminal
Case Nos. 96-1985 and 96-1986 finding accused-appellant Romeo Jalosjos guilty beyond
reasonable doubt of two counts of statutory rape, and sentencing him to suffer the penalty
of reclusion perpetua for each count, is AFFIRMED. Likewise, the appealed Decision of the
Regional Trial Court of Makati, Branch 62 in Criminal Case Nos. 96-1987, 96-1988, 96-1989,
96-1990, 96-1992, and 96-1993, finding accused-appellant guilty beyond reasonable doubt of
acts of lasciviousness in six counts, is AFFIRMED with MODIFICATIONS. As modified,
accused-appellant is sentenced to suffer, for each count of acts of lasciviousness, the
indeterminate penalty of twelve years (12) and one (1) day of reclusion temporal, as minimum,
to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal as
maximum. Further, accused-appellant is ordered to pay the victim, Ma. Rosilyn Delantar, the
additional amount of P50,000.00 as civil indemnity for each count of statutory rape and acts of
lasciviousness. Finally, the award of moral damages for each count of acts of lasciviousness is
increased to P50,000.00.
SO ORDERED.
Davide, Jr., CJ., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Pardo, Buena, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-3820 July 18, 1950

JEAN L. ARNAULT, petitioner,

vs.
LEON NAZARENO, Sergeant-at-arms, Philippine Senate, and EUSTAQUIO BALAGTAS,
Director of Prisons,respondents.

J.C. Orendain, Augusto Revilla, and Eduardo Arboleda for petitioner.

Office of the Solicitor General Felix Bautista Angelo, Lorenzo Sumulong, Lorenzo Taada, and
Vicente J. Francisco for respondents.

OZAETA, J.:

This is an original petition for habeas corpus to relieve the petitioner from his confinement in the New
Bilibid Prison to which he has been committed by virtue of a resolution adopted by the Senate on
May 15, 1950, which reads as follows:

Whereas, Jean L. Arnault refused to reveal the name of the person to whom he gave the
P440,000, as well as answer other pertinent questions related to the said amount; Now,
therefore, be it.
 Resolved, that for his refusal to reveal the name of the person to whom he gave the
P440,000 Jean L. Arnault be committed to the custody of the Sergeant-at-Arms and
imprisoned in the New Bilibid Prison, Muntinlupa, Rizal, until discharged by further order of
the Senate or by the special committee created by Senate Resolution No. 8, such discharge
to be ordered when he shall have purged the contempt by revealing to the Senate or to the
said special committee the name of the person to whom he gave the P440,000, as well as
answer other pertinent questions in connection therewith.

The facts that gave rise to the adoption of said resolution, insofar as pertinent here, may be briefly
stated as follows:

In the latter part of October, 1949, the Philippine Government, through the Rural Progress
Administration, bought two estates known as Buenavista and Tambobong for the sums of
P4,500,000 and P500,000, respectively. Of the first sum, P1,000,000 was paid to Ernest H. Burt, a
nonresident American, thru his attorney-in-fact in the Philippines, the Associated Estates, Inc.,
represented by Jean L. Arnault, for alleged interest of the said Burt in the Buenavista Estate. The
second sum of P500,000 was all paid to the same Ernest H. Burt through his other attorney-in-fact,
the North Manila Development Co., Inc., also represented by Jean L. Arnault, for the alleged interest
of the said Burt in the Tambobong Estate.

The original owner of the Buenavista Estate was the San Juan de Dios Hospital. The Philippine
Government held a 25-year lease contract on said estate, with an option to purchase it for
P3,000,000 within the same period of 25 years counted from January 1, 1939. The occupation
Republic of the Philippines purported to exercise that option by tendering to the owner the sum of
P3,000,000 and, upon its rejection, by depositing it in court on June 21, 1944, together with the
accrued rentals amounting to P3224,000. Since 1939 the Government has remained in possession
of the estate.

On June 29, 1946, the San Juan de Dios Hospital sold the Buenavista Estate for P5,000,000 to
Ernest H. Burt, who made a down payment of P10,000 only and agreed to pay P5000,000 within one
year and the remainder in annual installments of P500,000 each, with the stipulation that failure on
his part to make any of said payments would cause the forfeiture of his down payment of P10,000
and would entitle the Hospital to rescind to sale to him. Aside from the down payment of P10,000,
Burt has made no other payment on account of the purchase price of said estate.

The original owner of the Tambobong Estate was the Philippine Trust Company. On May 14, 1946,
the Philippine Trust Company sold estate for the sum of P1,200,000 to Ernest H. Burt, who paid
P10,000 down and promise to pay P90,000 within nine months and the balance of P1,100,000 in ten
successive installments of P110,000 each. The nine-month period within which to pay the first
installment of P90,000 expired on February 14, 1947, without Burt's having paid the said or any
other amount then or afterwards. On September 4, 1947, the Philippine Trust Company sold,
conveyed, and delivered the Tambobong Estate to the Rural Progress Administration by an absolute
deed of sale in consideration of the sum of P750,000. On February 5, 1948, the Rural Progress
Administration made, under article 1504 of the Civil Code, a notarial demand upon Burt for the
resolution and cancellation of his contract of purchase with the Philippine Trust Company due to his
failure to pay the installment of P90,000 within the period of nine months. Subsequently the Court of
First Instance of Rizal ordered the cancellation of Burt's certificate of title and the issuance of a new
one in the name of the Rural Progress Administration, from which order he appealed to the Supreme
Court.1

It was in the face of the antecedents sketched in the last three preceding paragraphs that the
Philippine Government, through the Secretary of Justice as Chairman of the Board of Directors of
the Rural Progress Administration and as Chairman of the Board of Directors of the Philippine
National Bank, from which the money was borrowed, accomplished the purchase of the two estates
in the latter part of October, 1949, as stated at the outset.

On February 27, 1950, the Senate adopted its Resolution No. 8, which reads as follows:

RESOLUTION CREATING A SPECIAL COMMITTEE TO INVESTIGATE THE BUENAVISTA

AND THE TAMBOBONG ESTATES DEAL.

WHEREAS, it is reported that the Philippine government, through the Rural Progress
Administration, has bought the Buenavista and the Tambobong Estates for the aggregate
sum of five million pesos;

WHEREAS, it is reported that under the decision of the Supreme Court dated October 31,
1949, the Buenavista Estate could have been bought for three million pesos by virtue of a
contract entered into between the San Juan de Dios Hospital and Philippine Government in
1939;

WHEREAS, it is even alleged that the Philippine Government did not have to purchase the
Buenavista Estate because the occupation government had made tender of payment in the
amount of three million pesos, Japanese currency, which fact is believed sufficient to vest
title of Ownership in the Republic of the Philippines pursuant to decisions of the Supreme
Court sustaining the validity of payments made in Japanese military notes during the
occupation;

WHEREAS, it is reported that the Philippine Government did not have to pay a single
centavo for the Tambobong Estate as it was already practically owned by virtue of a deed of
sale from the Philippine Trust Company dated September 3, 194, for seven hundred and fifty
thousand pesos, and by virtue of the recission of the contract through which Ernest H. Burt
had an interest in the estate; Now, therefore, be it.

RESOLVED, That a Special Committee, be, as it hereby is, created, composed of five
members to be appointed by the President of the Senate to investigate the Buenavista and
Tambobong Estate deals. It shall be the duty of the said Committee to determine whether the
said purchase was honest, valid, and proper and whether the price involved in the deal was
fair and just, the parties responsible therefor, and any other facts the Committee may deem
proper in the premises. Said Committee shall have the power to conduct public hearings;
issue subpoena or subpoena duces tecum to compel the attendance of witnesses or the
production of documents before it; and may require any official or employee of any bureau,
office, branch, subdivision, agency, or instrumentality of the Government to assist or
otherwise cooperate with the Special Committee in the performance of its functions and
duties. Said Committee shall submit its report of findings and recommendations within two
weeks from the adoption of this Resolution.

The special committee created by the above resolution called and examined various witnesses,
among the most important of whom was the herein petitioner, Jean L. Arnault. An intriguing question
which the committee sought to resolve was that involved in the apparent unnecessariness and
irregularity of the Government's paying to Burt the total sum of P1,500,000 for his alleged interest of
only P20,000 in the two estates, which he seemed to have forfeited anyway long before October,
1949. The committee sought to determine who were responsible for and who benefited from the
transaction at the expense of the Government.
Arnault testified that two checks payable to Burt aggregating P1,500,000 were delivered to him on
the afternoon of October 29, 1949; that on the same date he opened a new account in the name of
Ernest H. Burt with the Philippine National Bank in which he deposited the two checks aggregating
P1,500,000; and that on the same occasion he draw on said account two checks; one for P500,000,
which he transferred to the account of the Associated Agencies, Inc., with the Philippine National
Bank, and another for P440,000 payable to cash, which he himself cashed. It was the desire of the
committee to determine the ultimate recipient of this sum of P440,000 that gave rise to the present
case.

At first the petitioner claimed before the Committee:

Mr. ARNAULT (reading from a note). Mr. Chairman, for questions involving the disposition of
funds, I take the position that the transactions were legal, that no laws were being violated,
and that all requisites had been complied with. Here also I acted in a purely functional
capacity of representative. I beg to be excused from making answer which might later be
used against me. I have been assured that it is my constitutional right to refuse to incriminate
myself, and I am certain that the Honorable Members of this Committee, who, I understand,
are lawyers, will see the justness of my position.

At as subsequent session of the committee (March 16) Senator De Vera, a member of the
committee, interrogated him as follows:

Senator DE VERA. Now these transactions, according to your own typewritten statement,
were legal?

Mr. ARNAULT. I believe so.

Senator DE VERA. And the disposition of that fund involved, according to your own
statement, did not violate any law?

Mr. ARNAULT. I believe so.

xxx xxx xxx

Senator DE VERA. So that if the funds were disposed of in such a manner that no laws were
violated, how is it that when you were asked by the Committee to tell what steps you took to
have this money delivered to Burt, you refused to answer the questions, saying that it would
incriminate you?

Mr. ARNAULT. Because it violates the rights of a citizen to privacy in his dealings with other
people.

xxx xxx xxx

Senator DE VERA. Are you afraid to state how the money was disposed of because you
would be incriminated, or you would be incriminating somebody?

Mr. ARNAULT. I am not afraid; I simply stand on the privilege to dispose of the money that
has been paid to me as a result of a legal transaction without having to account for any use
of it.
But when in the same session the chairman of the committee, Senator Sumulong, interrogated the
petitioner, the latter testified as follows:

The CHAIRMAN. The other check of P440,000 which you also made on October 29, 1949, is
payable to cash; and upon cashing this P440,000 on October 29, 1949, what did you do with
that amount?

Mr. ARNAULT. I turned it over to a certain person.

The CHAIRMAN. The whole amount of P440,000?

Mr. ARNAULT. Yes.

The CHAIRMAN. Who was that certain person to whom you delivered these P440,000 which
you cashed on October 29, 1949?

Mr. ARNAULT. I don't remember the name; he was a representative of Burt.

The CHAIRMAN. That representative of Burt to whom you delivered the P440,000 was a
Filipino?

Mr. ARNAULT. I don't know.

The CHAIRMAN. You do not remember the name of that representative of Burt to whom you
delivered this big amount of P440,000?

Mr. ARNAULT. I am not sure; I do not remember the name.

The CHAIRMAN. That certain person who represented Burt to whom you delivered the big
amount on October 29, 1949, gave you a receipt for the amount?

Mr. ARNAULT. No.

The CHAIRMAN. Neither did you ask a receipt?

Mr. ARNAULT. I didn't ask.

The CHAIRMAN. And why did you give that certain person, representative of Burt, this big
amount of P440,000 which forms part of the P1- million paid to Burt?

Mr. ARNAULT. Because I have instructions to that effect.

The CHAIRMAN. Who gave you the instruction?

Mr. ARNAULT. Burt.

The CHAIRMAN. Where is the instruction; was that in writing?

Mr. ARNAULT. No.

The CHAIRMAN. By cable?

Mr. ARNAULT. No.

The CHAIRMAN. In what form did you receive that instruction?

Mr. ARNAULT. Verbal instruction.

The CHAIRMAN. When did you receive this verbal instruction from Burt to deliver these
P440,000 to a certain person whose name you do not like to reveal?

Mr. ARNAULT. I have instruction to comply with the request of the person.

The CHAIRMAN. Now, you said that instruction given to you by Burt was verbal?

Mr. ARNAULT. Yes.

The CHAIRMAN. When was that instruction given to you by Burt?

Mr. ARNAULT. Long time ago.

The CHAIRMAN. In what year did Burt give you that verbal instruction; when Burt was still
here in the Philippines?

Mr. ARNAULT. Yes.

The CHAIRMAN. But at that time Burt already knew that he would receive the money?

Mr. ARNAULT. No.

The CHAIRMAN. In what year was that when Burt while he was here in the Philippines gave
you the verbal instruction?

Mr. ARNAULT. In 1946.

The CHAIRMAN. And what has that certain person done for Burt to merit receiving these
P440,000?

Mr. ARNAULT. I absolutely do not know.

The CHAIRMAN. You do not know?

Mr. ARNAULT. I do not know.

The CHAIRMAN. Burt did not tell you when he gave you the verbal instruction why that
certain person should receive these P440,000?

Mr. ARNAULT. He did not tell me.

The CHAIRMAN. And Burt also authorized you to give this big amount to that certain person
without receipt?

Mr. ARNAULT. He told me that a certain person would represent him and where could I meet
him.

The CHAIRMAN. Did Burt know already that certain person as early as 1946?

Mr. ARNAULT. I presume much before that.

The CHAIRMAN. Did that certain person have any intervention in the prosecution of the two
cases involving the Buenavista and Tambobong estates?

Mr. ARNAULT. Not that I know of.

The CHAIRMAN. Is that certain person related to any high government official?

Mr. ARNAULT. No, I do not know.

The CHAIRMAN. Why can you not tell us the name of that certain person?

Mr. ARNAULT. Because I am not sure of his name; I cannot remember the name.

The CHAIRMAN. When gave that certain person that P440,000 on October 29, 1949, you
knew already that person?

Mr. ARNAULT. Yes, I have seen him several times.

The CHAIRMAN. And the name of that certain person is a Filipino name?

Mr. ARNAULT. I would say Spanish name.

The CHAIRMAN. And how about his Christian name; is it also a Spanish name?

Mr. ARNAULT. I am not sure; I think the initial is J.

The CHAIRMAN. Did he have a middle name?

Mr. ARNAULT. I never knew it.

The CHAIRMAN. And how about his family name which according to your recollection is
Spanish; can you remember the first letter with which that family name begins?

Mr. ARNAULT. S, D or F.

The CHAIRMAN. And what was the last letter of the family name?

Mr. ARNAULT. I do not know.

The CHAIRMAN. Have you seen that person again after you have delivered this P440,000?
 Mr. ARNAULT. Yes.

The CHAIRMAN. Several times?

Mr. ARNAULT. Two or three times.

The CHAIRMAN. Here in Manila?

Mr. ARNAULT. Yes.

The CHAIRMAN. And in spite of the fact that you met that person two or three times, you
never were able to find out what was his name?

Mr. ARNAULT. If I knew, I would [have] taken it down. Mr. Peralta knows my name; of
course, we have not done business. Lots of people in Manila know me, but they don't know
my name, and I don't know them. They sa{ I am "chiflado" because I don't know their names.

The CHAIRMAN. That certain person is a male or female?

Mr. ARNAULT. He is a male.

The CHAIRMAN. You are sure that he is a male at least?

Mr. ARNAULT. Let us say 38 or 40 years, more or less.

The CHAIRMAN. Can you give us, more or less, a description of that certain person? What
is his complexion: light, dark or light brown?

Mr. ARNAULT. He is like the gentleman there (pointing to Senator Cabili), but smaller. He
walks very straight, with military bearing.

The CHAIRMAN. Do you know the residence of that certain person to whom you gave the
P440,000?

Mr. ARNAULT. No.

The CHAIRMAN. During these frequent times that you met that certain person, you never
came to know his residence?

Mr. ARNAULT. No, because he was coming to the office.

The CHAIRMAN. How tall is that certain person?

Mr. ARNAULT. Between 5-2 and 5-6.

On May 15, 1950, the petitioner was haled before the bar of the Senate, which approved and read to
him the following resolution:

Be it resolved by the Senate of the Philippines in Session assembled:

 That Jean L. Arnault, now at the bar of the Senate, be arraigned for contempt consisting of
contumacious acts committed by him during the investigation conducted by the Special
Committee created by Senate Resolution No. 8 to probe the Tambobong and Buenavista
estates deal of October 21, 1949, and that the President of the Senate propounded to him
the following interrogatories:

1. What excuse have you for persistently refusing to reveal the name of the person to whom
you gave the P440,000 on October 29, 1949, a person whose name it is impossible for you
not to remember not only because of the big amount of money you gave to him without
receipt, but also by your own statements you knew him as early as 1946 when General
Ernest H. Burt was still in the Philippines, you made two other deliveries of money to him
without receipt, and the last time you saw him was in December 1949?

Thereupon petitioner's attorney, Mr. Orendain, submitted for him a written answer alleging that the
questions were incriminatory in nature and begging leave to be allowed to stand on his constitutional
right not to be compelled to be a witness against himself. Not satisfied with that written answer
Senator Sumulong, over the objection of counsel for the petitioner, propounded to the latter the
following question:

Sen. SUMULONG. During the investigation, when the Committee asked you for the name of
that person to whom you gave the P440,000, you said that you can [could] not remember his
name. That was the reason then for refusing to reveal the name of the person. Now, in the
answer that you have just cited, you are refusing to reveal the name of that person to whom
you gave the P440,000 on the ground that your answer will be self-incriminating. Now, do I
understand from you that you are abandoning your former claim that you cannot remember
the name of that person, and that your reason now for your refusal to reveal the name of that
person is that your answer might be self-incriminating? In other words, the question is this:
What is your real reason for refusing to reveal the name of that person to whom you gave the
P440,000: that you do not remember his name or that your answer would be self-
incriminating?

xxx xxx xxx

Mr. ORENDAIN. Mr. President, we are begging for the rules of procedure that the accused
should not be required to testify unless he so desires.

The PRESIDENT. It is the duty of the respondent to answer the question. The question is
very clear. It does not incriminate him.

xxx xxx xxx

Mr. ARNAULT. I stand by every statement that I have made before the Senate Committee on
the first, second, and third hearings to which I was made in my letter to this Senate of May 2,
1950, in which I gave all the reasons that were in my powers to give, as requested. I cannot
change anything in those statements that I made because they represent the best that I can
do , to the best of my ability.

The PRESIDENT. You are not answering the question. The answer has nothing to do with
the question.

Sen. SUMULONG. I would like to remind you , Mr. Arnault, that the reason that you gave
during the investigation for not revealing the name of the person to whom you gave the
P440,000 is not the same reason that you are now alleging because during the investigation
you told us: "I do not remember his name." But, now, you are now saying: "My answer might
incriminate me." What is your real position?

Mr. ARNAULT. I have just stated that I stand by my statements that I made at the first,
second, and third hearings. I said that I wanted to be excused from answering the question. I
beg to be excused from making any answer that might be incriminating in nature. However,
in this answer, if the detail of not remembering the name of the person has not been
included, it is an oversight.

Sen. SUMULONG. Mr. Arnault, will you kindly answer a simple question: Do you remember
or not the name of the person to whom you gave the P440,000?

Mr. ARNAULT. I do not remember .

Sen. SUMULONG. Now, if you do not remember the name of that person, how can you say
that your answer might be incriminating? If you do not remember his name, you cannot
answer the question; so how could your answer be self-incriminating? What do you say to
that?

Mr. ARNAULT. This is too complicated for me to explain. Please, I do not see how to answer
those questions. That is why I asked for a lawyer, so he can help me. I have no means of
knowing what the situation is about. I have been in jail 13 days without communication with
the outside. How could I answer the question? I have no knowledge of legal procedure or
rule, of which I am completely ignorant.

xxx xxx xxx

Sen. SUMULONG. Mr. President, I ask that the question be answered.

The PRESIDENT. The witness is ordered to answer the question. It is very clear. It does not
incriminate the witness.

xxx xxx xxx

Mr. ARNAULT. I do not remember. I stand on my constitutional rights. I beg to be excused

from making further answer, please.

Sen. SUMULONG. In that mimeographed letter that you sent addressed to the President of
the Senate, dated May 2, 1950, you stated there that you cannot reveal the name of the
person to whom you gave the P440,000 because if he is a public official you might render
yourself liable for prosecution for bribery, and that if he is a private individual you might
render yourself liable for prosecution for slander. Why did you make those statements when
you cannot even tell us whether that person to whom you gave the P440,000 is a public
official or a private individual ? We are giving you this chance to convince the Senate that all
these allegations of yours that your answers might incriminate you are given by you honestly
or you are just trying to make a pretext for not revealing the information desired by the
Senate.

The PRESIDENT. You are ordered to answer the question.

 Mr. ARNAULT. I do not even understand the question. (The question is restated and
explained.)

Mr. ARNAULT. That letter of May 2, was prepared by a lawyer for me and signed it. That is
all I can say how I stand about this letter. I have no knowledge myself enough to write such a
letter, so I had to secure the help of a lawyer to help me in my period of distress.

In that same session of the Senate before which the petitioner was called to show cause why he
should not be adjudged guilty of contempt of the Senate, Senator Sumulong propounded to the
petitioner questions tending to elicit information from him as to the identity of the person to whom he
delivered the P440,000; but the petitioner refused to reveal it by saying that he did not remember.
The President of the Senate then propounded to him various questions concerning his past activities
dating as far back as when witness was seven years of age and ending as recently as the post
liberation period, all of which questions the witness answered satisfactorily. In view thereof, the
President of the Senate also made an attempt to illicit the desired information from the witness, as
follows:

The PRESIDENT. Now I am convinced that you have a good memory. Answer: Did you
deliver the P440,000 as a gift, or of any consideration?

Mr. ARNAULT. I have said that I had instructions to deliver it to that person, that is all.

The PRESIDENT. Was it the first time you saw that person?

Mr. ARNAULT. I saw him various times, I have already said.

The PRESIDENT. In spite of that, you do not have the least remembrance of the name of
that person?

Mr. ARNAULT. I cannot remember.

The PRESIDENT. How is it that you do not remember events that happened a short time ago
and, on the other hand, you remember events that occurred during your childhood?

Mr. ARNAULT. I cannot explain.

The Senate then deliberated and adopted the resolution of May 15 hereinabove quoted whereby the
petitioner was committed to the custody of the Sergeant-at-Arms and imprisoned until "he shall have
purged the contempt by revealing to the Senate or to the aforesaid Special Committee the name of
the person to whom he gave the P440,000, as well as answer other pertinent questions in
connection therewith."

The Senate also adopted on the same date another resolution (No. 16) , to wit:

That the Special Committee created by Senate Resolution No. 8 be empowered and directed
to continue its investigation of the Tambobong and Buenavista Estates deal of October 21,
1949, more particularly to continue the examination of Jean L. Arnault regarding the name of
the person to whom he gave the P440,000 and other matters related therewith.

The first session of the Second Congress was adjourned at midnight on May 18, 1950.
The case was argued twice before us. We have given its earnest and prolonged consideration
because it is the first of its kind to arise since the Constitution of the Republic of the Philippines was
adopted. For the first time this Court is called upon to define the power of either House of Congress
to punish a person not a member for contempt; and we are fully conscious that our pronouncements
here will set an important precedent for the future guidance of all concerned.

Before discussing the specific issues raised by the parties, we deem it necessary to lay down the
general principles of law which form the background of those issues.

Patterned after the American system, our Constitution vests the powers of the Government in three
independent but coordinate Departments Legislative, Executive, and Judicial. The legislative
power is vested in the Congress, which consists of the Senate and the House of Representatives.
(Section 1, Article VI.) Each house may determine the rules of its proceedings, punish its Members
for disorderly behavior, and, with the concurrence of two-thirds of all its Members, expel a Member.
(Section 10, Article VI.) The judicial power is vested in the Supreme Court and in such inferior courts
as may be established by law. (Section 1, Article VIII.) Like the Constitution of the United States,
ours does not contain an express provision empowering either of the two Houses of Congress to
punish nonmembers for contempt. It may also be noted that whereas in the United States the
legislative power is shared by and between the Congress of the United States, on the one hand, and
the respective legislatures of the different States, on the other the powers not delegated to the
United States by the Constitution nor prohibited by it to States being reserved to the States,
respectively, or to the people in the Philippines, the legislative power is vested in the Congress of
the Philippines alone. It may therefore be said that the Congress of the Philippines has a wider
range of legislative field than the Congress of the United States or any State Legislature. Our form of
Government being patterned after the American system the framers of our Constitution having
drawn largely from American institutions and practices we can, in this case, properly draw also
from American precedents in interpreting analogous provisions of our Constitution, as we have done
in other cases in the past. Although there is no provision in the Constitution expressly investing
either House of Congress with power to make investigations and exact testimony to the end that it
may exercise its legislative functions as to be implied. In other words, the power of inquiry with
process to enforce it is an essential and appropriate auxiliary to the legislative function. A
legislative body cannot legislate wisely or effectively in the absence of information respecting the
conditions which the legislation is intended to effect or change; and where the legislative body does
not itself possess the requisite information which is not infrequently true recourse must be had
to others who do possess it. Experience has shown that mere requests for such information are
often unavailing, and also that information which is volunteered is not always accurate or complete;
so some means of compulsion is essential to obtain what is needed. (McGrain vs.Daugherty, 273
U.S., 135; 71 L. ed., 580; 50 A.L R., 1.) The fact that the Constitution expressly gives to Congress
the power to punish its Members for disorderly behavior, does not by necessary implication exclude
the power to punish for contempt any other person. (Anderson vs. Dunn, 6, Wheaton, 204; 5 L. ed.,
242.) But no person can be punished for contumacy as a witness before either House, unless his
testimony is required in a matter into which that House has jurisdiction to inquire.
(Kilbourn vs. Thompson, 26 L. ed., 377.).

Since, as we have noted, the Congress of the Philippines has a wider range of legislative field than
either the Congress of the United States or a State Legislature, we think it is correct to say that the
field of inquiry into which it may enter is also wider. It would be difficult to define any limits by which
the subject matter of its inquiry can be bounded. It is not necessary to do so in this case. Suffice it to
say that it must be coextensive with the range of the legislative power.

In the present case the jurisdiction of the Senate, thru the Special Committee created by it, to
investigate the Buenavista and Tambobong Estates deal is not challenged by the petitioner; and we
entertain no doubt as to the Senate's authority to do so and as to the validity of Resolution No. 8
hereinabove quoted. The transaction involved a questionable and allegedly unnecessary and
irregular expenditure of no less than P5,000,000 of public funds, of which Congress is the
constitutional guardian. It also involved government agencies created by Congress to regulate or
even abolish. As a result of the yet uncompleted investigation, the investigating committee has
recommended and the Senate approved three bills (1) prohibiting the Secretary of Justice or any
other department head from discharging functions and exercising powers other than those attached
to his own office, without ]previous congressional authorization; (2) prohibiting brothers and near
relatives of any President of the Philippines from intervening directly or indirectly and in whatever
capacity in transactions in which the Government is a party, more particularly where the decision lies
in the hands of executive or administrative officers who are appointees of the President; and (3)
providing that purchases of the Rural Progress Administration of big landed estates at a price of
P100,000 or more, shall not become effective without previous congressional confirmation.2

We shall now consider and pass upon each of the questions raised by the petitioner in support of his
contention that his commitment is unlawful.

First He contends that the Senate has no power to punish him for contempt for refusing to reveal the
name of the person to whom he gave the P440,000, because such information is immaterial to, and
will not serve, any intended or purported legislation and his refusal to answer the question has not
embarrassed, obstructed, or impeded the legislative process. It is argued that since the investigating
committee has already rendered its report and has made all its recommendations as to what
legislative measures should be taken pursuant to its findings, there is no necessity to force the
petitioner to give the information desired other than that mentioned in its report, to wit: "In justice to
Judge Quirino and to Secretary Nepomuceno, this atmosphere of suspicion that now pervades the
public mind must be dissipated, and it can only be done if appropriate steps are taken by the Senate
to compel Arnault to stop pretending that he cannot remember the name of the person to whom he
gave the P440,000 and answer the questions which will definitely establish the identity of that person
. . ." Senator Sumulong, Chairman of the Committee, who appeared and argued the case for the
respondents, denied that that was the only purpose of the Senate in seeking the information from the
witness. He said that the investigation had not been completed, because, due to the contumacy of
the witness, his committee had not yet determined the parties responsible for the anomalous
transaction as required by Resolution No. 8; that, by Resolution No. 16, his committee was
empowered and directed to continue its investigation, more particularly to continue its examination of
the witness regarding the name of the person to whom he gave the P440,000 and other matters
related therewith; that the bills recommended by his committee had not been approved by the House
and might not be approved pending the completion of the investigation; and that those bills were not
necessarily all the measures that Congress might deem it necessary to pass after the investigation is
finished.

Once an inquiry is admitted or established to be within the jurisdiction of a legislative body to make,
we think the investigating committee has the power to require a witness to answer any question
pertinent to that inquiry, subject of course to his constitutional right against self-incrimination. The
inquiry, to be within the jurisdiction of the legislative body to make, must be material or necessary to
the exercise of a power in it vested by the Constitution, such as to legislate, or to expel a Member;
and every question which the investigator is empowered to coerce a witness to answer must be
material or pertinent to the subject of the inquiry or investigation. So a witness may not be coerced to
answer a question that obviously has no relation to the subject of the inquiry. But from this it does
not follow that every question that may be propounded to a witness must be material to any
proposed or possible legislation. In other words, the materiality of the question must be determined
by its direct relation to any proposed or possible legislation. The reason is, that the necessity or lack
of necessity for legislative action and the form and character of the action itself are determined by
the sum total of the information to be gathered as a result of the investigation, and not by a fraction
of such information elicited from a single question.
In this connection, it is suggested by counsel for the respondents that the power of the Court is
limited to determining whether the legislative body has jurisdiction to institute the inquiry or
investigation; that once that jurisdiction is conceded, this Court cannot control the exercise of that
jurisdiction; and it is insinuated, that the ruling of the Senate on the materiality of the question
propounded to the witness is not subject to review by this Court under the principle of the separation
of powers. We have to qualify this proposition. As was said by the Court of Appeals of New York:
"We are bound to presume that the action of the legislative body was with a legitimate object if it is
capable of being so construed, and we have no right to assume that the contrary was intended."
(People ex rel.McDonald vs. Keeler, 99 N.Y., 463; 52 Am. Rep., 49; 2 N.E., 615, quoted with
approval by the Supreme Court of the United States in the said case of McGrain vs. Daugherty, it is
necessary deduction from the decision in Re Chapman, 41 L. ed., 1154, that where the questions
are not pertinent to the matter under inquiry a witness rightfully may refuse to answer. So we are of
the opinion that where the alleged immateriality of the information sought by the legislative body
from a witness is relied upon to contest its jurisdiction, the court is in duty bound to pass upon the
contention. The fact that the legislative body has jurisdiction or the power to make the inquiry would
not preclude judicial intervention to correct a clear abuse of discretion in the exercise of that power.

Applying the criterion laid down in the last two preceding paragraphs to the resolution of the issue
under consideration, we find that the question for the refusal to answer which the petitioner was held
in contempt by the Senate is pertinent to the matter under inquiry. In fact, this is not and cannot be
disputed. Senate Resolution No. 8, the validity of which is not challenged by the petitioner, requires
the Special Committee, among other things, to determine the parties responsible for the Buenavista
and Tambobong estates deal, and it is obvious that the name of the person to whom the witness
gave the P440,000 involved in said deal is pertinent to that determination it is in fact the very thing
sought to be determined. The contention is not that the question is impertinent to the subject of the
inquiry but that it has no relation or materiality to any proposed legislation. We have already
indicated that it is not necessary for the legislative body to show that every question propounded to a
witness is material to any proposed or possible legislation; what is required is that is that it be
pertinent to the matter under inquiry.

It is said that the Senate has already approved the three bills recommended by the Committee as a
result of the uncompleted investigation and that there is no need for it to know the name of the
person to whom the witness gave the P440,000. But aside from the fact that those bills have not yet
been approved by the lower house and by the President and that they may be withdrawn or modified
if after the inquiry is completed they should be found unnecessary or inadequate, there is nothing to
prevent the Congress from approving other measures it may deem necessary after completing the
investigation. We are not called upon, nor is it within our province, to determine or imagine what
those measures may be. And our inability to do so is no reason for overruling the question
propounded by the Senate to the witness.

The case of Re Chapman , 166 U.S., 661; 41 L. ed., 1154, is in point here. The inquiry there in
question was conducted under a resolution of the Senate and related to charges, published in the
press, that senators were yielding to corrupt influences in considering a tariff bill then before the
Senate and were speculating in stocks the value of which would be affected by pending
amendments to the bill. Chapman, a member of a firm of stock brokers dealing in the stock of the
American Sugar Refining Company, appeared before the committee in response to a subpoena and
asked, among others, the following questions:

Had the firm, during the month of March, 1894, bought or sold any stock or securities, known
as sugar stocks, for or in the interest, directly or indirectly, of any United Senate senator?
 Was the said firm at that time carrying any sugar stock for the benefit of, or in the interest,
directly or indirectly, of any United Senate senator?

He refused to answer the questions and was prosecuted under an Act of Congress for contempt of
the Senate. Upon being convicted and sent to jail he petitioned the Supreme Court of the United
States for a writ of habeas corpus. One of the questions decided by the Supreme Court of the United
States in that case was whether the committee had the right to compel the witness to answer said
questions, and the Court held that the committee did have such right, saying:

The questions were undoubtedly pertinent to the subject-matter of the inquiry. The resolution
directed the committee to inquire whether any senator has been, or is, speculating in what
are known as sugar stocks during the consideration of the tariff bill now before the
Senate." What the Senate might or might not do upon the facts when ascertained, we cannot
say, nor are we called upon to inquire whether such ventures might be defensible, as
contended in argument, but is plain that negative answers would have cleared that body of
what the Senate regarded as offensive imputations, while affirmative answers might have led
to further action on the part of the Senate within its constitutional powers. (Emphasis
supplied.)

It may be contended that the determination of the parties responsible for the deal is incumbent upon
the judicial rather than upon the legislative branch. But we think there is no basis in fact or in law for
such assumption. The petitioner has not challenged the validity of Senate Resolution No. 8, and that
resolution expressly requires the committee to determine the parties responsible for the deal. We are
bound to presume that the Senate has acted in the due performance of its constitutional function in
instituting the inquiry, if the act is capable of being so construed. On the other hand, there is no
suggestion that the judiciary has instituted an inquiry to determine the parties responsible for the
deal. Under the circumstances of the case, it appearing that the questioned transaction was affected
by the head of the Department of Justice himself, it is not reasonable to expect that the Fiscal or the
Court of First Instance of Manila will take the initiative to investigate and prosecute the parties
responsible for the deal until and unless the Senate shall determined those parties are and shall
taken such measures as may be within its competence to take the redress the wrong that may have
been committed against the people as a result of the transaction. As we have said, the transaction
involved no less than P5,000,000 of public funds. That certainly is a matter of a public concern which
it is the duty of the constitutional guardian of the treasury to investigate.

If the subject of investigation before the committee is within the range of legitimate legislative
inquiry and the proposed testimony of the witness called relates to that subject, obedience, to its
process may be enforced by the committee by imprisonment. (Sullivan vs. Hill, 73 W. Va., 49; 79
S.E., 670; 40 Ann. Cas. [1916 B.], 1115.)

The decision in the case of Kilbourn vs. Thompson, 26 L. ed., 377, relied upon by the petitioner, is
not applicable here. In that case the inquiry instituted by the House of Representatives of the United
States related to a private real-estate pool or partnership in the District of Columbia. Jay Cook and
Company had had an interest in the pool but become bankrupts, and their estate was in course of
administration in a federal bankruptcy court in Pennsylvania. The United States was one of their
creditors. The trustee in the bankruptcy proceeding had effected a settlement of the bankrupts'
interest in the pool, and of course his action was subject to examination and approval or disapproval
by the bankruptcy court. Some of the creditors, including the United States, were dissatisfied with
the settlement. The resolution of the House directed the Committee "to inquire into the nature and
history of said real-estate pool and the character of said settlement, with the amount of property
involve, in which Jay Cooke and Co. were interested, and the amount paid or to be paid in said
settlement, with power to send for persons and papers, and report to this House." The Supreme
Court of the United States, speaking thru Mr. Justice Miller, pointed out that the resolution contained
no suggestion of contemplated legislation; that the matter was one in respect of which no valid
legislation could be had; that the bankrupts' estate and the trustee's settlement were still pending in
the bankruptcy court; and that the United States and other creditors were free to press their claims in
that proceeding. And on these grounds the court held that in undertaking the investigation "the
House of Representatives not only exceeded the limit of its own authority, but assumed a power
which could only be properly exercised by another branch of the government, because the power
was in its nature clearly judicial." The principles announced and applied in that case are: that neither
House of Congress possesses a "general power of making inquiry into the private affairs of the
citizen"; that the power actually possessed is limited to inquires relating to matters of which the
particular House has jurisdiction, and in respect of which it rightfully may take other action; that if the
inquiry relates to a matter wherein relief or redress could be had only by judicial proceeding, it is not
within the range of this power , but must be left to the court, conformably to the constitutional
separation of government powers.

That case differs from the present case in two important respects: (1) There the court found that the
subject of the inquiry, which related to a private real-estate pool or partnership, was not within the
jurisdiction of either House of Congress; while here if it is not disputed that the subject of the inquiry,
which relates to a transaction involving a questionable expenditure by the Government of
P5,000,000 of public funds, is within the jurisdiction of the Senate, (2) There the claim of the
Government as a creditor of Jay Cooke and Company, which had had an interest in the pool, was
pending adjudication by the court; while here the interposition of the judicial power on the subject of
the inquiry cannot be expected, as we have pointed out above, until after the Senate shall have
determined who the parties responsible are and shall have taken such measures as may be within
its competence to take to redress the wrong that may have been committed against the people as a
result of the transaction.

It is interesting to note that the decision in the case of Killbourn vs. Thompson has evoked strong
criticisms from legal scholars. (See Potts, Power of Legislative Bodies to Punish for
Contempt [1926], 74 U. Pa. L. Rev., 692-699; James L. Land is, Constitutional Limitations on the
Congressional Power of Investigation [1926], 40 Harvard L. Rev., 153, 154, 214-220.) We quoted
the following from Professor Land is' criticism: "Mr. Justice Miller saw the case purely as an attempt
by the House to secure to the Government certain priority rights as creditor of the bankrupt concern.
To him it assumed the character of a lawsuit between the Government and Jay Cooke and Co., with
the Government, acting through the House, attempting to override the orderliness of established
procedure and thereby prefer a creditors' bill not before the courts but before Congress. That
bankruptcy proceedings had already been instituted against Jay Cooke and Co., in a federal court
gave added impetus to such a conception. The House was seeking to oust a court of prior acquired
jurisdiction by an extraordinary and unwarranted assumption of "judicial power"! The broader aspect
of the investigation had not been disclosed to the Court. That Jay Cooke and Co.'s indebtedness
and the particular funds in question were only part of the great administrative problem connected
with the use and disposition of public monies, that the particular failure was of consequence mainly
in relation to the security demanded for all government deposits, that the facts connected with one
such default revealed the possibility of other and greater maladministration, such considerations had
not been put before the Court. Nor had it been acquainted with the every-day nature of the particular
investigation and the powers there exerted by the House, powers whose exercise was customary
and familiar in legislative practice. Instead of assuming the character of an extraordinary judicial
proceeding, the inquiry, place in its proper background, should have been regarded as a normal and
customary part of the legislative process. Detailed definiteness of legislative purpose was thus made
the demand of the court in Killbourn vs. Thompson. But investigators cannot foretell the results that
may be achieved. The power of Congress to exercise control over a real-estate pool is not a matter
for abstract speculation but one to be determined only after an exhaustive examination of the
problem. Relationship, and not their possibilities, determine the extent of congressional power.
Constitutionality depends upon such disclosures. Their presence, whether determinative of
legislative or judicial power, cannot be relegated to guesswork. Neither Congress nor the Court can
predict, prior to the event, the result of the investigation."

The other case relied upon by the petitioner is Marshall vs. Gordon, 243 U.S., 521; 61. ed., 881. The
question there was whether the House of Representatives exceeded its power in punishing, as for
contempt of its authority, the District Attorney of the Southern District of New York, who had written,
published, and sent to the chairman of one of its committees an ill-tempered and irritating letter
respecting the action and purposes of the committee in interfering with the investigation by the grand
jury of alleged illegal activities of a member of the House of Representatives. Power to make
inquires and obtain evidence by compulsory process was not involved. The court recognized
distinctly that the House of Representatives had implied power to punish a person not a member for
contempt, but held that its action in this instance was without constitutional justification. The decision
was put on the ground that the letter, while offensive and vexatious, was not calculated or likely to
affect the House in any of its proceedings or in the exercise of any of its functions. This brief
statement of the facts and the issues decided in that case is sufficient to show the inapplicability
thereof to the present case. There the contempt involved consisted in the district attorney's writing to
the chairman of the committee an offensive and vexatious letter, while here the contempt involved
consists in the refusal of the witness to answer questions pertinent to the subject of an inquiry which
the Senate has the power and jurisdiction to make . But in that case, it was recognized that the
House of Representatives has implied power to punish a person not a member of contempt. In that
respect the case is applicable here in favor of the Senate's (and not of the Petitioner's ) contention.

Second. It is next contended for the petitioner that the Senate lacks authority to commit him for
contempt for a term beyond its period of legislative session, which ended on May 18, 1950. This
contention is based on the opinion of Mr. Justice Malcolm, concurred in by Justices Street and Villa-
Real, in the case of Lopez vs. De los Reyes (1930), 55 Phil., 170. In that case it appears that on
October 23, 1929, Candido Lopez assaulted a member of the House of Representatives while the
latter was going to the hall of the House of Representatives to attend the session which was then
about to begin, as a result of which assault said representative was unable to attend the sessions on
that day and those of the two days next following by reason of the threats which Candido Lopez
made against him. By the resolution of the House adopted November 6, 1929, Lopez was declared
guilty of contempt of the House of Representatives and ordered punished by confinement in Bilibid
Prison for a period of twenty-four hours. That resolution was not complied with because the session
of the House of Representatives adjourned at midnight on November 8, 1929, and was reiterated at
the next session on September 16, 1930. Lopez was subsequently arrested, whereupon he applied
for the writ of habeas corpus in the Court of First Instance of Manila, which denied the application.
Upon appeal to the Supreme Court, six justices voted to grant the writ: Justice Malcolm, Street, and
Villa-real, on the ground that the term of imprisonment meted out to the petitioner could not legally
be extended beyond the session of the body in which the contempt occurred; and Justices Johns,
Villamor, and Ostrand, on the ground that the Philippine Legislature had no power to punish for
contempt because it was a creature merely of an Act of the Congress of the United States and not of
a Constitution adopted by the people. Chief Justice Avancea, Justice Johnson, and Justice
Romualdez wrote separate opinions, concurring with Justice Malcolm, Street, and Villa-Real, that the
Legislature had inherent power to punish for contempt but dissenting from the opinion that the order
of commitment could only be executed during the particular session in which the act of contempt
was committed.

Thus, on the question under consideration, the Court was equally divided and no decisive
pronouncement was made. The opinion of Mr. Justice Malcolm is based mainly on the following
passage in the case of Anderson vs.Dunn, supra:
 And although the legislative power continues perpetual, the legislative body ceases to exist
on the moment of its adjournment or periodical dissolution. It follows that imprisonment must
terminate with that adjournment.

as well as on the following quotation from Marshall vs. Gordon, supra:

And the essential nature of the power also makes clear the cogency and application of the
two limitations which were expressly pointed out in Anderson vs. Dunn, supra, that is, that
the power even when applied to subjects which justified its exercise is limited to
imprisonment and such imprisonment may not be extended beyond the session of the body
in which the contempt occurred.

Interpreting the above quotations, Chief Justice Avancea held:

From this doctrine it follows, in my judgement, that the imposition of the penalty is limited to
the existence of the legislative body, which ceases to function upon its final periodical
dissolution. The doctrine refers to its existence and not to any particular session thereof. This
must be so, inasmuch as the basis of the power to impose such penalty is the right which the
Legislature has to self-preservation, and which right is enforceable during the existence of
the legislative body. Many causes might be conceived to constitute contempt to the
Legislature, which would continue to be a menace to its preservation during the existence of
the legislative body against which contempt was committed.

If the basis of the power of the legislature to punish for contempt exists while the legislative
body exercising it is in session, then that power and the exercise thereof must perforce
continue until the final adjournment and the election of its successor.

Mr. Justice Johnson's more elaborate opinion, supported by quotations from Cooley's Constitutional
Limitations and from Jefferson's Manual, is to the same effect. Mr. Justice Romualdez said: "In my
opinion, where as in the case before us, the members composing the legislative body against which
the contempt was committed have not yet completed their three-year term, the House may take
action against the petitioner herein."

We note that the quotations from Anderson vs. Dunn and Marshall vs. Gordon relied upon by Justice
Malcolm are obiter dicta. Anderson vs. Dunn was an action of trespass against the Sergeant-at-
Arms of the House of Representatives of the United States for assault and battery and false
imprisonment. The plaintiff had been arrested for contempt of the House, brought before the bar of
the House, and reprimanded by the Speaker, and then discharged from custody. The question as to
the duration of the penalty was not involved in that case. The question there was "whether the
House of Representatives can take cognizance of contempt committed against themselves, under
any circumstances." The court there held that the House of Representatives had the power to punish
for contempt, and affirmed the judgment of the lower court in favor of the defendant. In
Marshall vs. Gordon, the question presented was whether the House had the power under the
Constitution to deal with the conduct of the district attorney in writing a vexatious letter as a contempt
of its authority, and to inflict punishment upon the writer for such contempt as a matter of legislative
power. The court held that the House had no such power because the writing of the letter did not
obstruct the performance of legislative duty and did not endanger the preservation of the power of
the House to carry out its legislative authority. Upon that ground alone, and not because the House
had adjourned, the court ordered the discharge of the petitioner from custody.

The case where the question was squarely decided is McGrain vs. Daugherty, supra. There it
appears that the Senate had adopted a resolution authorizing and directing a select committee of
five senators to investigate various charges of misfeasance and nonfeasance in the Department of
Justice after Attorney General Harry M. Daugherty became its supervising head. In the course of the
investigation the committee caused to be served on Mally S. Daugherty, brother of Harry M.
Daugherty and president of the Midland National Bank of Washington Court House, Ohio, a
subpoena commanding him to appear before it for the purpose of giving testimony relating to the
subject under consideration. The witness failed to appear without offering any excuse for his failure.
The committee reported the matter to the Senate and the latter adopted a resolution, "That the
President of the Senate pro tempore issue his warrant commanding the Sergeant-at-Arms or his
deputy to take into custody the body of the said M.S. Daugherty wherever found, and to bring the
said M.S. Daugherty before the bar of the Senate, then and there to answer such questions pertinent
to the matter under inquiry as the Senate may order the President of the Senate pro tempore to
propound; and to keep the said M.S. Daugherty in custody to await the further order of the Senate."
Upon being arrested, the witness petitioned the federal court in Cincinnati for a writ of habeas
corpus. The federal court granted the writ and discharged the witness on the ground that the Senate,
in directing the investigation and in ordering the arrest, exceeded its power under the Constitution.
Upon appeal to the Supreme Court of the United States, one of the contentions of the witness was
that the case ha become moot because the investigation was ordered and the committee was
appointed during the Sixty-eighth Congress, which expired on March 4, 1926. In overruling the
contention, the court said:

. . . The resolution ordering the investigation in terms limited the committee's authority to the
period of the Sixty-eighth Congress; but this apparently was changed by a later and
amendatory resolution authorizing the committee to sit at such times and places as it might
deem advisable or necessary. It is said in Jefferson's Manual: "Neither House can continue
any portion of itself in any parliamentary function beyond the end of the session without the
consent of the other two branches. When done, it is by a bill constituting them
commissioners for the particular purpose." But the context shows that the reference is to the
two houses of Parliament when adjourned by prorogation or dissolution by the King. The rule
may be the same with the House of Representatives whose members are all elected for the
period of a single Congress: but it cannot well be the same with the Senate, which is a
continuing body whose members are elected for a term of six years and so divided into
classes that the seats of one third only become vacant at the end of each Congress, two
thirds always continuing into the next Congress, save as vacancies may occur through death
or resignation.

Mr. Hinds in his collection of precedents, says: "The Senate, as a continuing body, may
continue its committees through the recess following the expiration of a Congress;" and, after
quoting the above statement from Jefferson's Manual, he says: "The Senate, however being
a continuing body, gives authority to its committees during the recess after the expiration of a
Congress." So far as we are advised the select committee having this investigation in charge
has neither made a final report nor been discharged; nor has been continued by an
affirmative order. Apparently its activities have been suspended pending the decision of this
case. But, be this as it may, it is certain that the committee may be continued or revived now
by motion to that effect, and if, continued or revived, will have all its original powers. This
being so, and the Senate being a continuing body, the case cannot be said to have become
moot in the ordinary sense. The situation is measurably like that in Southern P. Terminal
Co. vs. Interstate Commerce Commission, 219 U. S., 498, 514-516; 55 L. ed., 310, 315, 316;
31 Sup. Ct. Rep., 279, where it was held that a suit to enjoin the enforcement of an order of
the Interstate Commerce Commission did not become moot through the expiration of the
order where it was capable of repetition by the Commission and was a matter of public
interest. Our judgment may yet be carried into effect and the investigation proceeded with
from the point at which it apparently was interrupted by reason of the habeas
 corpus proceedings. In these circumstances we think a judgment should be rendered as was
done in the case cited.

What has been said requires that the final order in the District Court discharging the witness
from custody be reversed.

Like the Senate of the United States , the Senate of the Philippines is a continuing body whose
members are elected for a term of six years and so divided that the seats of only one-third become
vacant every two years, two-thirds always continuing into the next Congress save as vacancies may
occur thru death or resignation. Members of the House of Representatives are all elected for a term
of four years; so that the term of every Congress is four years. The Second Congress of the
Philippines was constituted on December 30, 1949, and will expire on December 30, 1953. The
resolution of the Senate committing the Petitioner was adopted during the first session of the Second
Congress, which began on the fourth Monday of January and ended in May 18, 1950.

Had said resolution of commitment been adopted by the House of Representatives, we think it could
be enforced until the final adjournment of the last session of the Second Congress in 1953. We find
no sound reason to limit the power of the legislative body to punish for contempt to the end of every
session and not to the end of the last session terminating the existence of that body. The very
reason for the exercise of the power to punish for contempt is to enable the legislative body to
perform its constitutional function without impediment or obstruction. Legislative functions may be
and in practice are performed during recess by duly constituted committees charged with the duty of
performing investigations or conducting hearing relative to any proposed legislation. To deny to such
committees the power of inquiry with process to enforce it would be to defeat the very purpose for
which that the power is recognized in the legislative body as an essential and appropriate auxiliary to
is legislative function. It is but logical to say that the power of self-preservation is coexistent with the
life to be preserved.

But the resolution of commitment here in question was adopted by the Senate, which is a continuing
body and which does not cease exist upon the periodical dissolution of the Congress or of the House
of Representatives. There is no limit as to time to the Senate's power to punish for contempt in
cases where that power may constitutionally be exerted as in the present case.

Mere reflection upon the situation at hand convinces us of the soundness of this proposition. The
Senate has ordered an investigation of the Buenavista and Tambobong estates deal, which we have
found it is within its competence to make. That investigation has not been completed because of the
refusal of the petitioner as a witness to answer certain questions pertinent to the subject of the
inquiry. The Senate has empowered the committee to continue the investigation during the recess.
By refusing to answer the questions, the witness has obstructed the performance by the Senate of
its legislative function, and the Senate has the power to remove the obstruction by compelling the
witness to answer the questions thru restraint of his liberty until he shall have answered them. That
power subsists as long as the Senate, which is a continuing body, persists in performing the
particular legislative function involved. To hold that it may punish the witness for contempt only
during the session in which investigation was begun, would be to recognize the right of the Senate to
perform its function but at the same time to deny to it an essential and appropriate means for its
performance. Aside from this, if we should hold that the power to punish for contempt terminates
upon the adjournment of the session, the Senate would have to resume the investigation at the next
and succeeding sessions and repeat the contempt proceedings against the witness until the
investigation is completed-an absurd, unnecessary, and vexatious procedure, which should be
avoided.
As against the foregoing conclusion it is argued for the petitioner that the power may be abusively
and oppressively exerted by the Senate which might keep the witness in prison for life. But we must
assume that the Senate will not be disposed to exert the power beyond its proper bounds. And if,
contrary to this assumption, proper limitations are disregarded, the portals of this Court are always
open to those whose rights might thus be transgressed.

Third. Lastly, the petitioner invokes the privilege against self-incrimination. He contends that he
would incriminate himself if he should reveal the name of the person to whom he gave the P440,000
if that person be a public official be (witness) might be accused of bribery, and if that person be a
private individual the latter might accuse him of oral defamation.

The ground upon which the witness' claim is based is too shaky, in firm, and slippery to afford him
safety. At first he told the Committee that the transactions were legal, that no laws were violated, and
that all requisites had been replied with; but at the time he begged to be excused from making
answers "which might later be used against me." A little later he explained that although the
transactions were legal he refused to answer questions concerning them "because it violates the
right of a citizen to privacy in his dealings with other people . . . I simply stand on my privilege to
dispose of the money that has been paid to me as a result of a legal transaction without having to
account for the use of it." But after being apparently convinced by the Committee that his position
was untenable, the witness testified that, without securing any receipt, he turned over the P440,000
to a certain person, a representative of Burt, in compliance with Burt's verbal instruction made in
1946; that as far as he know, that certain person had nothing to do with the negotiations for the
settlement of the Buenavista and Tambobong cases; that he had seen that person several times
before he gave him the P440,000 on October 29, 1949, and that since then he had seen him again
two or three times, the last time being in December, 1949, in Manila; that the person was a male, 39
to 40 years of age, between 5 feet, 2 inches and 5 feet, 6 inches in height. Butt the witness would
not reveal the name of that person on these pretexts: " I don't remember the name; he was a
representative of Burt." "I am not sure; I don't remember the name."

We are satisfied that those answers of the witness to the important question, what is the name of
that person to whom you gave the P440,000? were obviously false. His insistent claim before the bar
of the Senate that if he should reveal the name he would incriminate himself, necessarily implied that
he knew the name. Moreover, it is unbelievable that he gave the P440,000 to a person to him
unknown.

"Testimony which is obviously false or evasive is equivalent to a refusal to testify and is punishable
as contempt, assuming that a refusal to testify would be so punishable." (12 Am. Jur., sec. 15,
Contempt, pp. 399-400.) In the case of Mason vs. U.S., 61 L. ed., 1198, it appears that Mason was
called to testify before a grand jury engaged in investigating a charge of gambling against six other
men. After stating that he was sitting at a table with said men when they were arrested, he refused to
answer two questions, claiming so to do might tend to incriminate him: (1) "Was there a game of
cards being played on this particular evening at the table at which you are sitting?" (2) "Was there a
game of cards being played at another table at this time?" The foreman of the grand jury reported
the matter to the judge, who ruled "that each and all of said questions are proper and that the
answers thereto would not tend to incriminate the witness." Mason was again called and refused to
answer the first question propounded to him, but, half yielding to frustration, he said in response to
the second question: "I don't know." In affirming the conviction for contempt, the Supreme Court of
the United States among other things said:

In the present case, the witness certainly were not relieved from answering merely because
they declared that so to do might incriminate them. The wisdom of the rule in this regard is
 well illustrated by the enforced answer, "I don't know ," given by Mason to the second
question, after he had refused to reply under a claim of constitutional privilege.

Since according to the witness himself the transaction was legal, and that he gave the P440,000 to a
representative of Burt in compliance with the latter's verbal instruction, we find no basis upon which
to sustain his claim that to reveal the name of that person might incriminate him. There is no conflict
of authorities on the applicable rule, to wit:

Generally, the question whether testimony is privileged is for the determination of the Court.
At least, it is not enough for the witness to say that the answer will incriminate him. as he is
not the sole judge of his liability. The danger of self-incrimination must appear reasonable
and real to the court, from all the circumstances, and from the whole case, as well as from
his general conception of the relations of the witness. Upon the facts thus developed, it is the
province of the court to determine whether a direct answer to a question may criminate or
not. . . . The fact that the testimony of a witness may tend to show that he has violated the
law is not sufficient to entitle him to claim the protection of the constitutional provision against
self-incrimination, unless he is at the same time liable to prosecution and punishment for
such violation. The witness cannot assert his privilege by reason of some fanciful excuse, for
protection against an imaginary danger, or to secure immunity to a third person. ( 3
Wharton's Criminal Evidence, 11th ed., secs. 1135,1136.)

It is the province of the trial judge to determine from all the facts and circumstances of the
case whether the witness is justified in refusing to answer. (People vs. Gonzo, 23 N.E. [2d],
210 [Ill. App., 1939].) A witness is not relieved from answering merely on his own declaration
that an answer might incriminate him, but rather it is for the trial judge to decide that
question. (Mason vs. U.S., 244 U. S., 362; 61 L. ed., 1193, 1200.)

As against witness's inconsistent and unjustified claim to a constitutional right, is his clear duty as a
citizen to give frank, sincere, and truthful testimony before a competent authority. The state has the
right to exact fulfillment of a citizen's obligation, consistent of course with his right under the
Constitution. The witness in this case has been vociferous and militant in claiming constitutional
rights and privileges but patently recreant to his duties and obligations to the Government which
protects those rights under the law. When a specific right and a specific obligation conflict with each
other, and one is doubtful or uncertain while the other is clear and imperative, the former must give
way to the latter. The right to life is one of the most sacred that the citizen may claim, and yet the
state may deprive him of it if he violates his corresponding obligation to respect the life of others. As
Mr. Justice Johnson said in Anderson vs. Dunn: "The wretch beneath the gallows may repine at the
fate which awaits him, and yet it is not certain that the laws under which he suffers were made for
the security." Paraphrasing and applying that pronouncement here, the petitioner may not relish the
restraint of his liberty pending the fulfillment by him of his duty, but it is no less certain that the laws
under which his liberty is restrained were made for his welfare.

From all the foregoing, it follows that the petition must be denied, and it is so ordered, with costs.

Paras, Pablo, Bengzon, Montemayor, and Reyes, JJ., concur.

Separate Opinions

TUASON, J., dissenting:

The estates deal which gave the petitioner's examination by a committee of the Senate was one that
aroused popular indignation as few cases of graft and corruption have. The investigation was
greeted with spontaneous outburst of applause by an outraged citizenry, and the Senate was rightly
commended for making the lead in getting at the bottom of an infamous transaction.

All the more necessary it is that we should approach the consideration of this case with
circumspection, lest the influence of strong public passions should get the batter of our judgment. It
is trite to say that public sentiment fades into insignificance before a proper observance of
constitutional processes, the maintenance of the constitutional structure, and the protection of
individual rights. Only thus can a government of laws, the foundation stone of human liberty, be
strengthened and made secure for that very public.

It is with these thoughts in mind that, with sincere regret, I am constrained to dissent.

The power of the legislative bodies under the American system of government to punish for
contempt was at the beginning totally denied by some courts and students of constitutional law, on
the ground that this power is judicial in nature and belongs to the judiciary branch of the government
under the constitutional scheme. The point however is now settled in favor of the existence of the
power. This rule is based on the necessity for the attainment of the ends for which legislative body is
created. Nor can the legitimacy of the purpose of the investigation which the Senate ordered in this
case be disputed. As a corollary, it was likewise legitimate and necessary for the committee to
summon the petitioner with a command to produce his books and documents, and to commit him to
prison for his refusal or failure to obey the subpoena. And, finally, there is no question that the
arresting officers were fully justified in using necessary bodily force to bring him before the bar of the
Senate when he feigned illness and stalled for time in the mistaken belief that after the closing of the
then current session of Congress he could go scot-free.

At the same time, there is also universal agreement that the power is not absolute. The
disagreement lies in the extent of the power, and such disagreement is to be found even between
decisions of the same court. Anderson vs.Dunn, 6 Wheat., No. 204, may be said to have taken the
most liberal view of the legislature's authority and Kilbourn vs. Thompson, 103 U.S. 168, which partly
overruled and qualified the former, the strictest. By the most liberal standard the power is restricted
"by considerations as to the nature of the inquiry, occasion, or action in connection with which the
contemptuous conduct has occurred." Punishment must be resorted to for the efficient exercise of
the legislative function. Even Anderson vs. Dunn speaks of the power as "the least possible power
adequate to the end proposed."

Judged by any test, the question propounded to the witness does not, in my opinion, meet the
constitutional requirement. It is obvious, I think, that the query has nothing to do with any matter
within the cognizance of the Congress. There is, on the contrary, positive suggestion that the
question has no relation to the contemplated legislation. The statement of the committee in its report
that the information sought to be obtained would clear the names of the persons suspected of having
received the money, is, on the surface, the most or only plausible reason that can be advanced.
Assuming this to be the motive behind the question, yet little reflection will show that the same is
beyond the scope of legislative authority and prerogatives. It is outside the concern of the Congress
to protect the honor of particular citizens except that of its own members' as a means of preserving
respect and confidence in that body. Moreover, the purported good intention must assume, if it is to
materialize, that the persons under suspicion are really innocent; for if they are not and the witness
will tell the truth, the result will be to augment their disgrace rather than vindicate their honor. This is
all the more likely to happen because one of those persons, is judged from the committee's findings,
the most likely one, to say the least, who got the money.
If the process of deduction is pressed further, the reasonable conclusion seems to be that the object
of the question is, to mention only one, to prepare the way for a court action. The majority, decision
indirectly admits or insinuates this to be the case. It says, "It appearing that the questioned
transaction was affected by the head of the Department of Justice himself, it is not reasonable to
expect the fiscal or the Court of First Instance of Manila will take the initiative to investigate and
prosecute the parties responsible for the deal until and unless the Senate shall have determined who
those parties are and shall have taken such measures as may be within its competence to take, to
redress the wrong that may have been committed against the people as a result of the transaction."
So here is an admission, implied if not express, that the Senate wants the witness to give names
because the fiscal or the courts will not initiate an action against parties who should be prosecuted. It
is needless to say that the institution of a criminal or civil suit is a matter that devolves upon other
departments of the government, alien to the duties of the Congress to look after.

The Congress is at full liberty, of course, to make any investigation for the purpose of aiding the
fiscal or the courts, but this liberty does not carry with it the authority to imprison persons who refuse
to testify.

In the intricacy and complexity of an investigation it is often impossible to foretell before its close
what relation certain facts may bear on the final results, and experience has shown that investigators
and courts would do well to veer on the liberal side in the resolution of doubtful questions. But the
Senate is not now in the midst of an inquiry with the situation still in a fluid or tentative state. Now the
facts are no longer confused. The committee has finished its investigation and submitted its final
report and the Senate has approved a bill on the bases of the facts found. All the pertinent facts
having been gathered, as is to be inferred from that the report and the nature of the Senate's action,
every question, every fact, every bit of testimony has taken a distinct meaning susceptible of
concrete and definite evaluation; the task has been reduced to the simple process of sifting the grain
from the chaffs.

In the light of the committee's report and of the bill introduced and approved in the Senate, it seems
quite plain that the express naming of the recipient or recipients of the money is entirely unessential
to anything the Senate has a right or duty to do in premises. Names may be necessary for the
purpose of criminal prosecution, impeachment or civil suit. In such proceedings, identities are
essential. In some legislative investigations it is important to know the names of public officials
involved. But the particular disclosure sought of the petitioner here is immaterial to the proposed law.
It is enough for the Senate, for its own legitimate object, to learn how the Department of Justice had
in the purchase, and to have a moral conviction as to the identity of the person who benefited
thereby. The need for such legislation and translated into the bill approved by the Senate is met by
an insight into a broad outline of the deal. To paraphrase the U.S. Supreme Court in
Anderson vs. Dunn, although the passage was used in another connection, legislation is a science
of experiment and the relation between the legislator and the end does not have to be so direct as to
strike the eye of the former.

One of the proposed laws have prohibits brothers and near relatives of any president of the
Philippines from intervening directly or indirectly in transactions in which the Government is a party.
It is stated that this is subject to change depending on the answer Arnault may give. This statement
is wide open to challenge.

If Arnault should Antonio Quirino it must be admitted that the bill would not be altered. But let us
suppose that the witness will point to another man. Will the result be any different? Will the Senate
recall the bill? I can not perceive the slightest possibility of such eventuality. The pending bill was
framed on the assumption that Antonio Quirino was a party to the deal in question. As has been
said, the committee entertains a moral conviction that this brother of the President was the recipient
of a share of the proceeds of sale. No amount of assurance by Arnault to the contrary would be
believed for truth. And, I repeat, the proposed legislation does not need for its justification legal
evidence of Antonio Quirino's intervention in the transaction.

All this in the first place. In the second place, it is not to be assumed that the present bill is aimed
solely against Antonio Quirino whose relation to the Administration is but temporary. It is more
reasonable to presume that the proposed enactment is intended for all time and for all brothers of
future presidents, for in reality it is no more than an extension or enlargement of laws already found
in the statute book which guard against temptations to exploit official positions or influence to the
prejudice of public interests.

The disputed question is, in fact, not only irrelevant but moot. This is decisive of the irrelevancy of
this question. As has been noticed, the committee has submitted its final report and
recommendation, and a bill has been approved by the Senate calculated to prevent recurrence of
the anomalies exposed. For the purpose for which it was instituted the inquiry is over and the
committee's mission accomplished.

It is true that the committee continues to sit during the recess of Congress, but it is obvious from all
the circumstances that the sole and real object of the extension of the committee's sittings is to
receive the witness' answer in the event he capitulates. I am unable to see any new phase of the
deal which the Senate could legitimately wish to know, and the respondents and this Court have not
pointed out any. That the committee has not sat and nothing has been done so far except to wait for
Arnault's answer is a convincing manifestation of the above conclusion.

The order "to continue its investigation" contained in Senate Resolution No. 16 cannot disguise the
realities revealed by the Senate's actions already referred to and by the emphasis given to the
instruction "to continue its (committee's) examination of Jean L. Arnault regarding the name of the
person to whom he gave the P440,000." The instruction 'to continue the investigation' is not entitled
to the blind presumption that it embraces matters other than the revelation by the witness of the
name of the person who got the money. Jurisdiction to deprive a citizen of liberty outside the usual
process is not acquired by innuendoes or vague assertions of the facts on which jurisdiction is made
to depend. If the judgment of the court of law of limited jurisdiction does not enjoy the presumption of
legality, much less can the presumption of regularity be invoked for a resolution of a deliberative
body whose power to inflict punishment upon private citizens is wholly derived by implication and
vehemently contested by some judges. At any rate, "the stronger presumption of innocence attends
accused at the trial", "and it is incumbent" upon the respondents "to show that the question pertains
to some matter under investigation." (Sinclair vs. U. S., 73 L. ed., 693.) This rule stems from the fact
that the power is in derogation of the constitutional guarantee that no person shall be deprived of life,
liberty, or property without due process of law, which presupposes " a trial in which the rights of the
parties shall be decided by a tribunal appointed by law, which tribunal is to governed by rules of law
previously established." Powers so dangerous to the liberty of a citizen can not be allowed except
where the pertinence is clear. A Judge who abuses such power may be impeached and he acts at
all times under the sense of this accountability and responsibility. His victims may be reached by the
pardoning power. But if the Congress be allowed this unbounded jurisdiction of discretion, there is
no redress, The Congress may dispoil of a citizen's life, liberty or property and there is no power on
earth to stop its hand. There is, there can be, no such unlimited power in any department of the
government of the Republic. (Loan Association vs. Topeka, 20 Wall, Nos. 662, 663; Taylor vs.Porter,
4 Hill No. N.Y. 140.)

The above rule and discussion apply with equal force to the instruction to the committee in the
original resolution, "to determine the parties responsible for the deal." It goes without saying that the
congress cannot authorize a committee to do what it itself cannot do. In other words, the` Senate
could not insist on the disclosure of Arnault's accomplice in the present state of the investigation if
the Senate were conducting the inquiry itself instead of through a committee.

Our attention is called to the fact that "in the Philippines, the legislative power is vested in the
Congress of the Philippines alone, and therefore that the Congress of the Philippines has a wider
range of legislative field than the Congress of the United States or any state legislature." From this
premise the inference is drawn that " the field of inquiry into it (Philippine Congress) may enter is
also wider."

This argument overlooks the important fact that congressional or legislative committees both here
and in the Unived States, do not embark upon fishing expeditions in search of information which by
chance may be useful to legislation. Inquiries entrusted to congressional committee, whether here or
in the United States, are necessarily for specific objects within the competence of the Congress to
look into. I do not believe any reason, rule or principle could be found which would sustain the theory
that just because the United States Congress or a state legislature could legislate on, say, only ten
subjects and the Philippine Congress on twenty, the latter's power to commit to prison for contempt
is proportionately as great as that of the former. In the consideration of the legality of an
imprisonment for the contempt by each House, the power is gauged not be the greater or lesser
number of subject matters that fall within its sphere of action, but by the answer to the question, has
it jurisdiction over the matter under investigation? Bearing this distinction in mind, it is apparent that
the power of a legislature to punish for contempt can be no greater nor less than that of any other.
Were it possible for the Philippine Senate and the United States Senate to undertake an
investigation of exactly identical anomalies in their respective departments of justice, could it be
asserted with any support of logic that one Senate has a wider authority to imprison for contempt in
such investigation simply because it has a "wider range of legislative field?"

It is said that the Senate bill has not been acted upon by the lower house and that even if it should
pass in that chamber it would still have the President's veto to hurdle. It has been expressly stated at
the oral argument, and there is insinuation in this Court's decision, that the revelation of the name or
names of the person or persons who received the money may help in convincing the House of
Representatives or the President of the wisdom of the pending measure. Entirely apart from the
discussion that the House of Representatives and the Chief Executive have their own idea of what
they need to guide them in the discharge of their respective duties, and they have the facilities of
their own for obtaining the requisite data.

There is another objection, more fundamental, to the Senate invoking the interest or convenience of
the other House or the President as ground of jurisdiction. The House of Representatives and the
President are absolutely independent of the Senate, in the conduct of legislative and administrative
inquiries, and the power of each House to imprison for contempt does not go beyond the necessity
for its own self-preservation or for making its express powers effective. Each House exercises this
power to protect or accomplish its own authority and not that of the other House or the President.
Each House and the President are supposed to take care of their respective affairs. The two Houses
and the Chief Executive act separately although the concurrence of the three is required in the
passage of legislation and of both Houses in the approval of resolutions. As the U.S. Supreme Court
in Kilbourn vs.Thompson, said, "No general power of inflicting punishment by the Congress (as
distinct from a House is found in the Constitution." "An act of Congress it said which proposed
to adjudge a man guilty of a crime and inflict the punishment, will be considered by all thinking men
to be unauthorized by the Constitution."

Kilbourn vs. Thompson, supra, it is said can not be relied on in this case as a precedent because, so
it is also said, "the subject of the inquiry, which related to a private real-estate pool or partnership,
was not within the jurisdiction of either House of Congress; while here it is not disputed that the
subject of the inquiry, which relates to a transaction involving a questionable expenditure by the
Government of P5,000,000 of public funds, is within the Jurisdiction of the Senate." Yet the remarks
of Judge Land is which are quoted in the majority decision point out that the inquiry "was a normal
and customary part of the legislative process." Moreover, Kilbourn vs. Thompson is important, not for
the matter it treated but for the principles it enunciated.

It is also said that Kilbourn vs. Thompson did not meet with universal approval as Judge Land is'
article above mentioned shows. The jurist who delivered the opinion in that case, Mr. Justice Miller,
was one of the "giants" who have ever sat on the Supreme Federal Bench, venerated and eminent
for the width and depth of his learning. Subsequent decisions, as far as I have been able to
ascertain, have not rejected or criticized but have followed it, and it still stands as a landmark in this
branch of constitutional law.

If we can lean on private opinions and magazine articles for comfort, the petitioner can cite one by a
legal scholar and author no less reknown and respected than Judge Land is. I refer to Judge
Wigmore who, referring to an investigation of the U.S. Department of Justice said in an article
published in 19 (1925) Illinois Law Review, 452:

The senatorial debauch of investigations poking into political garbage cans and dragging
the sewers of political intrigue filled the winter of 1923-24 with a stench which has not yet
passed away. Instead of employing the constitutional, manly, fair procedure of impeachment,
the Senate flung self-respect and fairness to the winds. As a prosecutor, the Senate
presented a spectacle which cannot even be dignified by a comparison with the persecutive
scoldings of Coke and Scroggs and Jeffreys, but fell rather in popular estimate to the level of
professional searchers of the municipal dunghills.

It is far from my thought to subscribe to this vituperation as applied to our Senate. Certainly, this
august body said not only do the right thing but is entitled to the lasting gratitude of the people for
taking the courageous stand it did in probing into an anomaly that robbed a depleted treasury of a
huge amount. I have tried to make it clear that my disagreement with the majority lies not in the
propriety or constitutionality of the investigation but in the pertinence to that investigation of a single
question. The investigation, as had been said, was legal and commendable. My objection is that the
Senate having started within the bounds of its authority, has, in entire good faith, overstepped those
bounds and trespassed on a territory reserved to other branches of the government, when it
imprisoned a witness for contumacy on a point that is unimportant, useless, impertinent and
irrelevant, let alone moot.

Thus understood, this humble opinion does not conflict with the views of Judge Land is and all other
advocates of wide latitude for congressional investigations. All are agreed, and the majority accept
the proposition, that there is a limit to the legislative power to punish for contempt. The limit is set in
Anderson vs. Dunn which Judge Land is approved "the least possible power adequate to the end
proposed."

Footnotes

1 The appeal was withdrawn on November 9, 1949.

2 These bills, however, have not yet been acted upon by the House of Representatives.
 Arnault v. Nazareno, G.R. No. L-3820, July 18, 1950
DECISION
(En Banc)

OZAETA, J.:

I. THE FACTS

The Senate investigated the purchase by the government of two parcels of land, known as
Buenavista and Tambobong estates. An intriguing question that the Senate sought to resolve was
the apparent irregularity of the governments payment to one Ernest Burt, a non-resident American
citizen, of the total sum of Php1.5 million for his alleged interest in the two estates that only
amounted to Php20,000.00, which he seemed to have forfeited anyway long before. The Senate
sought to determine who were responsible for and who benefited from the transaction at the
expense of the government.

Petitioner Jean Arnault, who acted as agent of Ernest Burt in the subject transactions, was
one of the witnesses summoned by the Senate to its hearings. In the course of the investigation, the
petitioner repeatedly refused to divulge the name of the person to whom he gave the amount of
Php440,000.00, which he withdrew from the Php1.5 million proceeds pertaining to Ernest Burt.

Arnault was therefore cited in contempt by the Senate and was committed to the custody of
the Senate Sergeant-at-Arms for imprisonment until he answers the questions. He thereafter filed a
petition for habeas corpus directly with the Supreme Court questioning the validity of his detention.

II. THE ISSUE

1. Did the Senate have the power to punish the petitioner for contempt for refusing to reveal the name of
the person to whom he gave the Php440,000.00?
2. Did the Senate have the authority to commit petitioner for contempt for a term beyond its period of
legislative session?
3. May the petitioner rightfully invoke his right against self-incrimination?

III. THE RULING

[The Court DENIED the petition for habeas corpus filed by Arnault.]

1. Yes, the Senate had the power to punish the petitioner for contempt for refusing to
reveal the name of the person to whom he gave the Php440,000.00.

Although there is no provision in the [1935] Constitution expressly investing either House of
Congress with power to make investigations and exact testimony to the end that it may exercise its
legislative functions as to be implied. In other words, the power of inquiry with process to enforce it
is an essential and appropriate auxiliary to the legislative function. A legislative body cannot
legislate wisely or effectively in the absence of information respecting the conditions which the
legislation is intended to effect or change; and where the legislative body does not itself possess the
requisite information which is not infrequently true recourse must be had to others who do
possess it. Experience has shown that mere requests for such information are often unavailing, and
also that information which is volunteered is not always accurate or complete; so some means of
compulsion is essential to obtain what is needed.
 xxx xxx xxx

[W]e find that the question for the refusal to answer which the petitioner was held in
contempt by the Senate is pertinent to the matter under inquiry. In fact, this is not and cannot be
disputed. Senate Resolution No. 8, the validity of which is not challenged by the petitioner, requires
the Special Committee, among other things, to determine the parties responsible for the Buenavista
and Tambobong estates deal, and it is obvious that the name of the person to whom the witness
gave the P440,000 involved in said deal is pertinent to that determination it is in fact the very thing
sought to be determined. The contention is not that the question is impertinent to the subject of the
inquiry but that it has no relation or materiality to any proposed legislation. We have already
indicated that it is not necessary for the legislative body to show that every question propounded to a
witness is material to any proposed or possible legislation; what is required is that is that it be
pertinent to the matter under inquiry.

xxx xxx xxx

If the subject of investigation before the committee is within the range of legitimate legislative
inquiry and the proposed testimony of the witness called relates to that subject, obedience, to its
process may be enforced by the committee by imprisonment.

2. YES, the Senate had the authority to commit petitioner for contempt for a term
beyond its period of legislative session.

We find no sound reason to limit the power of the legislative body to punish for contempt to
the end of every session and not to the end of the last session terminating the existence of that
body. The very reason for the exercise of the power to punish for contempt is to enable the
legislative body to perform its constitutional function without impediment or obstruction. Legislative
functions may be and in practice are performed during recess by duly constituted committees
charged with the duty of performing investigations or conducting hearing relative to any proposed
legislation. To deny to such committees the power of inquiry with process to enforce it would be to
defeat the very purpose for which that the power is recognized in the legislative body as an essential
and appropriate auxiliary to is legislative function. It is but logical to say that the power of self-
preservation is coexistent with the life to be preserved.

But the resolution of commitment here in question was adopted by the Senate, which is a
continuing body and which does not cease exist upon the periodical dissolution of the Congress . . .
There is no limit as to time to the Senates power to punish for contempt in cases where that power
may constitutionally be exerted as in the present case.

3. NO, the petitioner may NOT rightfully invoke his right against self-incrimination.

Since according to the witness himself the transaction was legal, and that he gave the
[P440,000.00] to a representative of Burt in compliance with the latters verbal instruction, we find no
basis upon which to sustain his claim that to reveal the name of that person might incriminate him.
There is no conflict of authorities on the applicable rule, to wit:

Generally, the question whether testimony is privileged is for the determination of the Court. At
least, it is not enough for the witness to say that the answer will incriminate him as he is not the sole
judge of his liability. The danger of self-incrimination must appear reasonable and real to the court, from
all the circumstances, and from the whole case, as well as from his general conception of the relations of
the witness. Upon the facts thus developed, it is the province of the court to determine whether a direct
answer to a question may criminate or not. . . The fact that the testimony of a witness may tend to show
that he has violated the law is not sufficient to entitle him to claim the protection of the constitutional
provision against self-incrimination, unless he is at the same time liable to prosecution and punishment
for such violation. The witness cannot assert his privilege by reason of some fanciful excuse, for
protection against an imaginary danger, or to secure immunity to a third person.

It is the province of the trial judge to determine from all the facts and circumstances of the case
whether the witness is justified in refusing to answer. A witness is not relieved from answering merely on
his own declaration that an answer might incriminate him, but rather it is for the trial judge to decide that
question.
Posted by Edgardo Luardo Jr. at 9:46 PM
Email ThisBlogThis!Share to TwitterShare to FacebookShare to Pinterest
Labels: arnault v. nazareno, contempt power of senate, inherent powers, investigation in aid of legislation,right
against self-incrimination
Location: Lapu-Lapu City, Philippines

epublic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 89914 November 20, 1991

JOSE F.S. BENGZON JR., ABELARDO TERMULO, JOSE MANTECON, VICENTE MILLS JR.,
LEONARDO GAMBOA, KURT BACHMANN JR., JOSE V.E. JIMENEZ, ERNESTO CALUYA,
AGERICO UNGSON, SUSAN ROXAS, ELVIE CASTILLO, and CYNTHIA SABIDO
LIMJAP, petitioners,
vs.
THE SENATE BLUE RIBBON COMMITTEE AND ITS MEMBERS, represented by and through
the CHAIRMAN, HON. WIGBERTO TAADA, respondents, JOSE S. SANDEJAS, intervenor.

Bengzon, Zarraga, Narciso, Cudala, Pecson & Bengson for petitioners.

Balgos & Perez for intervening petitioner.

Eddie Tamondong and Antonio T. Tagaro for respondents.

PADILLA, J.:

This is a petition for prohibition with prayer for the issuance of a temporary restraining order and/or
injuective relief, to enjoin the respondent Senate Blue Ribbon committee from requiring the
petitioners to testify and produce evidence at its inquiry into the alleged sale of the equity of
Benjamin "Kokoy" Romualdez to the Lopa Group in thirty-six (36) or thirty-nine (39) corporations.

On 30 July 1987, the Republic of the Philippines, represented by the Presidential Commission on
Good Government (PCGG), assisted by the Solicitor General, filed with the Sandiganbayan Civil
Case No. 0035 (PCGG Case No. 35) entitled "Republic of the Philippines vs. Benjamin "Kokoy"
Romualdez, et al.", for reconveyance, reversion, accounting, restitution and damages.
The complaint was amended several times by impleading new defendants and/or amplifying the
allegations therein. Under the Second Amended Complaint, 1 the herein petitioners were impleaded
as party defendants.

The complaint insofar as pertinent to herein petitioners, as defendants, alleges among others that:

14. Defendants Benjamin (Kokoy) Romualdez and Juliette Gomez Romualdez, acting by
themselves and/or in unlawful concert with Defendants Ferdinand E. Marcos and Imelda R.
Marcos, and taking undue advantage of their relationship, influence and connection with the
latter Defendant spouses, engaged in devices, schemes and strategems to unjuestly enrigh
themselves at the expense of Plaintiff and the Filipino people, among others:

(a) Obatained, with the active collaboration of Defendants Sene J. Gabaldon, Mario
D. Camacho, Mamerto Nepomuceno, Carlos J. Valdez, Cesar C. Zalamea and
Francisco Tantuico, Atty. Jose Bengzon, Jr. and his law partners, namely: Edilberto
S. Narciso, Jr., Jose Vicente E. Jimenez, Amando V. Faustino, Jr., and Leonardo C.
Cruz; Jose S. Sandejas and his fellow senior managers of FMMC/PNI Holdings
groups of companies such as Leonardo Gamboa, Vicente T. Mills, Jr., Jose M.
Mantecon, Abelardo S. Termulo, Rex C. Drilon II and Kurt Bachmann, Jr., control of
some of the biggest business enterprises in the Philippines, such as the Manila
Corporation (MERALCO), Benguet Consolidated and the Philippine Commercial
International Bank (PCI Bank) by employing devious financial schemes and
techniques calculated to require the massive infusion and hemorrhage of
government funds with minimum or negligible "cashout" from Defendant Benjamin
Romualdez...

xxx xxx xxx

(m) manipulated, with the support, assistance and collaboration of Philgurantee

officials led by chairman Cesar E.A. Virata and the Senior managers of FMMC/PNI
Holdings, Inc. led by Jose S. Sandejas, Jr., Jose M. Mantecom and Kurt S.
Bachmann, Jr., among others, the formation of Erectors Holdings, Inc. without
infusing additional capital solely for the purpose of Erectors Incorporated with
Philguarantee in the amount of P527,387,440.71 with insufficient
securities/collaterals just to enable Erectors Inc, to appear viable and to borrow more
capitals, so much so that its obligation with Philgurantee has reached a total of more
than P2 Billion as of June 30, 1987.

(n) at the onset of the present Administration and/or within the week following the
February 1986 People's Revolution, in conspiracy with, supoort, assistance and
collaboration of the abovenamed lawyers of the Bengzon Law Offices, or specifically
Defendants Jose F.S. Bengzon, Jr., V.E. Jimenez, Amando V. Faustino, Jr., and
Edilberto S. Narciso, Jr., manipulated, shcemed, and/or executed a series of devices
intended to conceal and place, and/or for the purpose of concealing and placing,
beyond the inquiry and jurisdiction of the Presidential Commission on Good
Government (PCGG) herein Defendant's individual and collective funds, properties,
and assets subject of and/or suited int he instant Complaint.

(o) manuevered, with the technical know-how and legalitic talents of the FMMC
senior manager and some of the Bengzon law partners, such as Attys. Jose F.S.
Bengzon, Jr., Edilberto S. Narciso, Jr., Amando V. Faustino, Jose Vicente E.
Jimenez and Leonardo C. Cruz, the purported sale of defendant Benjamin
Romualdez's interests in the (i) Professional Managers, (ii) A & E International
Corporation (A & E), (iii) First Manila Managerment Corporation (FMMC), (iv)
Philippine World Travel Inc. (PWTI) and its subsidiaries consisting of 36 corporations
in all, to PNI Holdings, Inc. (wjose purported incorporations are all members of Atty.
Jose F.S. Bengzon's law firm) for only P5 million on March 3, 1986 or three days
after the creation of the Presidential Commission on Good Government on February
28, 1986, for the sole purpose of deceiving and preempting the Government,
particularly the PCGG, and making it appear that defendant Benjamin Romualdez
had already divested himself of his ownership of the same when in truth and in fact,
his interests are well intact and being protected by Atty. Jose F.S. Bengzon, Jr. and
some of his law partners, together with the FMMC senior managers who still control
and run the affiars of said corporations, and in order to entice the PCGG to approve
the said fictitious sale, the above-named defendants offered P20 million as
"donation" to the Government;

(p) misused, with the connivance, support and technical assitance of the Bengzon
law firm represented by Atty. Jose F.S. Bengzon, Jr. as legal counsel, together with
defendants Cesar Zalamea, Antonio Ozaeta, Mario D. Camacho amd Senen J.
Gabaldon as members of the Board of Directors of the Philippine Commercial
International bank (PCIB), the Meralco Pension Fund (Fund, for short) in the amount
of P25 million by cuasing it to be invested in the PCIB and through the Bank's TSG,
assigned to PCI Development and PCI Equity at 50% each, the Fund's (a) 8,028.011
common shares in the Bank and (b) "Deposit in Subscription" in the amount of
P4,929.972.50 but of the agreed consideration of P28 million for the said
assignment, PCI Development and PCI Equity were able to pay only P5,500.00
downpayment and the first amortization of P3,937,500.00 thus prompting the Fund to
rescind its assignment, and the consequent reversion of the assigned brought the
total shareholding of the Fund to 11,470,555 voting shares or 36.8% of the voting
stock of the PCIB, and this development (which the defendants themselves
orchestrated or allowed to happen) was used by them as an excuse for the unlawful
dismantling or cancellation of the Fund's 10 million shares for allegedly exceeding
the 30-percent ceiling prescribed by Section 12-B of the General Banking Act,
although they know for a fact that what the law declares as unlawful and void ab initio
are the subscriptions in excess of the 30% ceiling "to the extent of the excess over
any of the ceilings prescribed ..." and not the whole or entire stockholding which they
allowed to stay for six years (from June 30, 1980 to March 24, 1986);

(q) cleverly hid behind the veil of corporate entity, through the use of the names and
managerial expertise of the FMMC senior manager and lawyers identified as Jose B.
Sandejas, Leonardo Gamboa, Vicente T. Mills, Abelardo S, Termulo, Edilberto S.
Narciso, Jr., Jose M. Mantecon, Rex C. Drilon II, Kurt Bachmann, Jr. together with
the legal talents of corporate lawyers, such as Attys. Jose F.S. Bengzon, Jr., Jose
V.E. Jimenez, Amando V. Faustino, Jr., and Leonardo C. Cruz, the ill-gotten wealth
of Benjamin T. Romualdez including, among others, the 6,229,177 shares in PCIB
registered in the names of Trans Middle East Phils. Equities, Inc. and Edilberto S.
Narciso, Jr. which they refused to surrender to PCGG despite their disclosure as they
tried and continue to exert efforts in getting hold of the same as well as the shares in
Benguet registered in the names of Palm Avenue Holdings and Palm Avenue Realty
Development Corp. purportedly to be applied as payment for the claim of P70 million
of a "merger company of the First Manila Managerment Corp. group" supposedly
owned by them although the truth is that all the said firms are still beneficially owned
by defendants Benjamin Romualdez.
 xxx xxx xxx

On 28 September 1988, petitioner (as defendants) filed their respective

answers. 2 Meanwhile, from 2 to 6 August 1988, conflicting reports on the disposition by the
PCGG of the "Romualdez corporations" were carried in various metropolitan newspapers.
Thus, one newspaper reported that the Romuladez firms had not been sequestered because
of the opposition of certain PCGG officials who "had worked prviously as lawyers of the
Marcos crony firms." Another daily reported otherwise, while others declared that on 3 March
1986, or shortly after the EDSA February 1986 revolution, the Romualdez companies" were
sold for P5 million, without PCGG approval, to a holding company controlled by Romualdez,
and that Ricardo Lopa, the President's brother-in-law, had effectively taken over the firms,
even pending negotiations for the purchase of the corporations, for the same price of P5
million which was reportedly way below the fair value of their assets. 3
On 13 September 1988, the Senate Minority Floor Leader, Hon. Juan Ponce Enrile delivered a speech "on a matter of personal privilege" before the Senate on the alleged "take-over personal privilege" before the
Senate on the alleged "take-over of SOLOIL Incorporated, the flaship of the First Manila Management of Companies (FMMC) by Ricardo Lopa" and called upon "the Senate to look into the possible violation of the law
in the case, particularly with regard to Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act." 4

Thereafter, the Senate

On motion of Senator Orlando Mercado, the matter was referred by the Senate to the Committee on Accountability of Public Officers (Blue Ribbon Committee). 5

Blue Ribbon Committee started its investigation on the matter. Petitioners and Ricardo Lopa
were subpoenaed by the Committee to appear before it and testify on "what they know"
regarding the "sale of thirty-six (36) corporations belonging to Benjamin "Kokoy"
Romualdez."

At the hearing held on 23 May 1989, Ricardo Lopa declined to testify on the ground that his
testimony may "unduly prejudice" the defendants in Civil Case No. 0035 before the
Sandiganbayan. Petitioner Jose F.S. Bengzon, Jr. likewise refused to testify involing his
constitutional right to due process, and averring that the publicity generated by respondents
Committee's inquiry could adversely affect his rights as well as those of the other petitioners
who are his co-defendants in Civil Case No. 0035 before the Sandiganbayan.

The Senate Blue Ribbon Committee, thereupon, suspended its inquiry and directed the
petitioners to file their memorandum on the constitutional issues raised, after which, it issued
a resolution 6 dated 5 June 1989 rejecting the petitioner's plea to be excused from testifying,
and the Committee voted to pursue and continue its investigation of the matter. Senator
Neptali Gonzales dissented. 7

Claiming that the Senate Blue Ribbon Committee is poised to subpoena them and required their attendance and testimony in proceedings
before the Committee, in excess of its jurisdiction and legislative purpose, in clear and blatant disregard of their constitutional rights, and to
their grave and irreparable damager, prejudice and injury, and that there is no appeal nor any other plain, speedy and adequate remedy in
the ordinary course of law, the petitioners filed the present petition for prohibition with a prayer for temporary restraning order and/or
injunctive relief.

which the Court granted in

Meanwhile, one of the defendants in Civil Case No. 0035 before the Sandiganbayan, Jose S. Sandejas, filed with the Court of motion for intervention, 8

the resolution 9 of 21 December 1989, and required the respondent Senate Blue Ribbon
Committee to comment on the petition in intervention. In compliance, therewith, respondent
Senate Blue Ribbon Committee filed its comment 10 thereon.
Before discussing the issues raised by petitioner and intervenor, we will first tackle the
jurisdictional question raised by the respondent Committee.

In its comment, respondent Committee claims that this court cannot properly inquire into the
motives of the lawmakers in conducting legislative investigations, much less cna it enjoin the
Congress or any its regular and special commitees like what petitioners seek from
making inquiries in aid of legislation, under the doctrine of separation of powers, which
obtaines in our present system of government.

The contention is untenable. In Angara vs. Electoral Commission, 11 the Court held:

The separation of powers is a fundamental principle in our system of government. It

obtains not hrough express provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of matters wihtin 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...

xxx xxx xxx

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 ovelapping and interlacing of funcstions and duties between the
several deaprtments, however, sometimes makes it hard to say just where the
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 departments 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.

xxx xxx xxx

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 inr eality nullify or invalidate an act of the legislature, but
only asserts the solemn and sacred obligation assigned to it by tyhe Constitution to
determine conflicting claims of authority under the Constitution and to established for
the parties in an actual controversy the rights which that instrument secures and
guarantess to them. This is in thruth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial review under the Constitution.
Even the, 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 thatn that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is presumed to abide by the
 Constitution but also becuase the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as expressed
through their representatives in the executive and legislative departments of the
government.

The "allocation of constituional boundaries" is a task that this Court must perfomr under the
Constitution. Moreowever, as held in a recent case, 12 "(t)he political question doctrine neither
interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit
constitutional boundaries has been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by no means does away with
kthe applicability of the principle in appropriate cases." 13

The Court is thus of the considered view that it has jurisdiction over the present controversy for the purpose of determining the scope and
extent of the power of the Senate Blue Ribbon Committee to conduct inquiries into private affirs in purported aid of legislation.

Coming to the specific issues raised in this case, petitioners contend that (1) the Senate Blue Ribbon Committee's inquiry has no valid
legislative purpose, i.e., it is not done in aid of legislation; (2) the sale or disposition of hte Romualdez corporations is a "purely private
transaction" which is beyond the power of the Senate Blue Ribbon Committee to inquire into; and (3) the inquiry violates their right to due
process.

The 1987 Constition expressly recognizes the power of both houses of Congress to conduct inquiries in aid of legislation. 14
Thus, Section 21, Article VI thereof
provides:

The Senate or the House of Representatives or any of its respective committee may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be
respected. 15

The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore, absolute or unlimited. Its exercise is
circumscribed by the afore-quoted provision of the Constitution. Thus, as provided therein, the investigation must be "in aid of legislation in
accordance with its duly published rules of procedure" and that "the rights of persons appearing in or affected by such inquiries shall be
respected." It follows then that the rights of persons under the Bill of Rights must be respected, including the right to due process and the
right not to be compelled to testify against one's self.

The power to conduct formal inquiries or investigations in specifically provided for in Sec. 1 of the Senate Rules of Procedure Governing
Inquiries in Aid of Legislation. Such inquiries may refer to the implementation or re-examination of any law or in connection with any
proposed legislation or the formulation of future legislation. They may also extend to any and all matters vested by the Constitution in
Congress and/or in the Seante alone.

the inquiry, to be within the jurisdiction of the legislative body making

As held in Jean L. Arnault vs. Leon Nazareno, et al., 16

it, must be material or necessary to the exervise of a power in it vested by the Constitution,
such as to legislate or to expel a member.
Under Sec. 4 of the aforementioned Rules, the Senate may refer to any committee or
committees any speech or resolution filed by any Senator which in tis judgment requires an
appropriate inquiry in aid of legislation. In order therefore to ascertain the character or nature
of an inquiry, resort must be had to the speech or resolution under which such an inquiry is
proposed to be made.

A perusal of the speech of Senator Enrile reveals that he (Senator Enrile) made a statement
which was published in various newspapers on 2 September 1988 accusing Mr. Ricardo
"Baby" Lopa of "having taken over the FMMC Group of Companies." As a consequence
thereof, Mr. Lopa wrote a letter to Senator Enrile on 4 September 1988 categorically denying
that he had "taken over " the FMMC Group of Companies; that former PCGG Chairman
Ramon Diaz himself categorically stated in a telecast interview by Mr. Luis Beltran on
Channel 7 on 31 August 1988 that there has been no takeover by him (Lopa); and that
theses repeated allegations of a "takeover" on his (Lopa's) part of FMMC are baseless as
they are malicious.

The Lopa reply prompted Senator Enrile, during the session of the Senate on 13 September
1988, to avail of the privilege hour, 17 so that he could repond to the said Lopa letter, and also
to vindicate his reputation as a Member of the Senate of the Philippines, considering the
claim of Mr. Lopa that his (Enrile's) charges that he (Lopa) had taken over the FMMC Group
of Companies are "baseless" and "malicious." Thus, in his speech, 18Senator Enrile said,
among others, as follows:

Mr. President, I rise this afternnon on a matter of personal privilege; the privilege
being that I received, Mr. President, a letter dated September 4, 1988, signed by Mr.
ricardo A. Lopa, a.k.a. or Baby Lopa, wherein he denied categorically that he has
taken over the First Manila Management Group of Companies which includes
SOLOIL Incorporated.

xxx xxxx xxx

In answer to Mr. Lopa, I will quote pertinent portions from an Official Memorandum to
the Presidential Commission of Good Government written and signed by former
Governor, now Congressman Jose Ramirez, in his capacity as head of the PCGG
Task Force for Region VIII. In his memorandum dated July 3, 1986, then Governor
Ramirez stated that when he and the members of his task force sought to serve a
sequestration order on the management of SOLOIL in Tanauan, Leyte, management
officials assured him that relatives of the President of the Philippines were personally
discussing and representing SOLOIL so that the order of sequestration would be
lifted and that the new owner was Mr. Ricardo A. Lopa.

I will quote the pertinent portions in the Ramire's memorandum.

The first paragraph of the memorandum reads as follows and I quote, Mr. President:

"Our sequestration work of SOLOIL in Tanauan, Leyte was not heeded by

management because they said another representation was being made to
this Commission for the ventual lifting of our sequestrationorder. They even
assured us that Mr. Ricardo Lopa and Peping Cojunangco were personally
discussing and representing SOLOIL, so the order of sequestration will finally
be lifted. While we attempted to carry on our order, management refused to
cooperate and vehemently turned down our request to make available to us
 the records of the company. In fact it was obviously clear that they will meet
us with forcethe moment we insist on doing normally our assigned task. In
view of the impending threat, and to avoid any untoward incident we decided
to temporarily suspend our work until there is a more categorical stand of this
Commission in view of the seemingly influential represetation being made by
SOLOIL for us not to continue our work."

Another pertinent portion of the same memorandum is paragraph five, which reads
as follows, and I quote Mr. President:

"The President, Mr. Gamboa, this is, I understand, the President of SOLOIL,
and the Plant Superintendent, Mr. Jimenez including their chief counsel, Atty.
Mandong Mendiola are now saying that there have been divestment, and that
the new owner is now Mr. Ricardo Lopa who according to them, is the
brother-in-law of the President. They even went further by telling us that even
Peping Cojuangco who we know is the brother of her excellency is also
interested in the ownership and management of SOLOIL. When he
demanded for supporting papers which will indicate aforesaid divestment,
Messrs. Gamboa, Jimenez and Mendiola refused vehemently to submit these
papers to us, instead they said it will be submitted directly to this
Commission. To our mind their continuous dropping of names is not good for
this Commission and even to the President if our dersire is to achieve
respectability and stability of the government."

The contents of the memorandum of then Governor and now Congressman Jose
Ramirez were personally confirmed by him in a news interview last September 7,
1988.

xxx xxxx xxx

Also relevant to this case, Mr. President, is a letter of Mr. Ricardo Lopa himself in
August 11, 1988 issue of the newspaper Malaya headlined "On Alleged Takeover of
Romualdez Firms."

Mr. Lopa states in the last paragraph of the published letter and I quote him:

12. As of this writing, the sales agreement is under review by the PCGG
solely to determine the appropriate price. The sale of these companies and
our prior rigtht to requires them have never been at issue.

Perhaps I could not make it any clearer to Mr. Lopa that I was not really making
baseless and malicious statements.

Senator Enrile concluded his privilege speech in the following tenor:

Mr. President, it may be worthwhile for the Senate to look into the possible violation
of the law in the case particularly with regard to Republic Act No. 3019, the Anti-Graft
and Corrupt Practices Act, Section 5 of which reads as follows and I quote:

Sec. 5. Prohibition on certain relatives. It shall be unlawful for the spouse

or for nay 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: Provided, that this section shall not apply to
any person who prior to the assumption of office of any of the above officials
to whom he is related, has been already dealing with the Government along
the same line of business, nor to any transaction, contract or application filed
by him for approval of which is not discretionary on the part of the officials
concerned but depends upon compliance with requisites provided by law, nor
to any act lawfully performed in an official capacity or in the exercise of a
profession.

Mr. President, I have done duty to this Senate and to myself. I leave it to this august
Body to make its own conclusion.

Verily, the speech of Senator Enrile contained no suggestion of contemplated legislation; he

merely called upon the Senate to look into a possible violation of Sec. 5 of RA No. 3019,
otherwise known as "The Anti-Graft and Corrupt Practices Act." I other words, the purpose of
the inquiry to be conducted by respondent Blue Ribbon commitee was to find out whether or
not the relatives of President Aquino, particularly Mr. ricardo Lopa, had violated the law in
connection with the alleged sale of the 36 or 39 corporations belonging to Benjamin "Kokoy"
Romualdez to the Lopaa Group. There appears to be, therefore, no intended legislation
involved.

The Court is also not impressed with the respondent Committee's argument that the
questioned inquiry is to be conducted pursuant to Senate Resolution No. 212. The said
resolution was introduced by Senator Jose D. Lina in view of the representaions made by
leaders of school youth, community groups and youth of non-governmental organizations to
the Senate Committee on Youth and Sports Development, to look into the charges against
the PCGG filed by three (3) stockholders of Oriental petroleum, i.e., that it has adopted a
"get-rich-quick scheme" for its nominee-directors in a sequestered oil exploration firm.The
pertinent portion of Senate Resolution No. 212 reads as follows:

xxx xxx xxx

WHEREAS, recent developments have shown that no less than the Solicitor-General
has stated that the PCGG Chairman and at least three Commissioners should resign
and that the agency should rid itself of "ineptness, incompetence and corruption" and
that the Sandiganbayan has reportedly ordered the PCGG to answer charges filed by
three stockholders of Oriental Petroleum that it has adopted a "get-rich-quick
scheme" for its nominee-directors in a sequestered oil exploration firm;

WHEREAS, leaders of school youth, community groups and youth of non-

governmental organization had made representations to the Senate Committee on
Youth and Sports Development to look into the charges against the PCGG since said
agency is a symbol of the changes expected by the people when the EDSA
revolution took place and that the ill-gotten wealth to be recovered will fund priority
projects which will benefit our people such as CARP, free education in the
elementary and secondary levels reforestration, and employment generation for rural
and urban workers;
 WHEREAS, the government and the present leadeship must demonstrate in their
public and private lives integrity, honor and efficient management of government
services lest our youth become disillusioned and lose hope and return to an Idelogy
and form of government which is repugnant to true freedom, democratic participation
and human rights: Now, therefore, be it.

Resolved by the Senate, That the activities of the Presidential Commission on Good
Government be investigated by the appropriate Committee in connection with the
implementation of Section 26, Article XVIII of the Constitution. 19

Thus, the inquiry under Senate Resolution No. 212 is to look into the charges against the PCGG filed by the three (3) stockholders of
Oriental Petroleum in connection with the implementation of Section 26, Article XVIII of the Constitution.

It cannot, therefore, be said that the contemplated inquiry on the subject of the privilege speech of Senator Juan Ponce Enrile, i.e., the
alleged sale of the 36 (or 39) corporations belonging to Benjamin "Kokoy" Romualdez to the Lopa Group is to be conducted pursuant to
Senate Resolution No. 212 because, firstly, Senator Enrile did not indict the PCGG, and, secondly, neither Mr. Ricardo Lopa nor the herein
petitioners are connected with the government but are private citizens.

It appeals, therefore, that the contemplated inquiry by respondent Committee is not really "in aid of legislation" becuase it is not related to a purpose within the jurisdiction of Congress, since the aim of the investigation
is to find out whether or not the ralatives of the President or Mr. Ricardo Lopa had violated Section 5 RA No. 3019, the "Anti-Graft and Corrupt Practices Act", a matter that appears more within the province of the

courts rather than of the legislature. Besides, the Court may take judicial notice that Mr. Ricardo Lopa died during the pendency of this case. In John T. Watkins vs. United States, 20
it was held
held:

... The power of congress to conduct investigations in inherent in the legislative

process. That power is broad. it encompasses inquiries concerning the
administration of existing laws as well as proposed, or possibly needed statutes. It
includes surveys of defects in our social,economic, or political system for the purpose
of enabling Congress to remedy them. It comprehends probes into departments of
the Federal Government to expose corruption, inefficiency or waste. But broad asis
this power of inquiry, it is not unlimited. There is no general authority to expose the
private affairs ofindividuals without justification in terms of the functions of congress.
This was freely conceded by Solicitor General in his argument in this case. Nor is the
Congress a law enforcement or trial agency. These are functions of the executive
and judicial departments of government. No inquiry is an end in itself; it must be
related to and in furtherance of a legitimate task of Congress. Investigations
conducted soly for the personal aggrandizement of the investigators or to "punish"
those investigated are indefensible. (emphasis supplied)

It can not be overlooked that when respondent Committee decide to conduct its investigation
of the petitioners, the complaint in Civil No. 0035 had already been filed with the
Sandiganbayan. A perusal of that complaint shows that one of its principal causes of action
against herein petitioners, as defendants therein, is the alleged sale of the 36 (or 39)
corporations belonging to Benjamin "Kokoy" Romualdez. Since the issues in said complaint
had long been joined by the filing of petitioner's respective answers thereto, the issue sought
to be investigated by the respondent Commitee is one over which jurisdiction had been
acquired by the Sandiganbayan. In short, the issue had been pre-empted by that court. To
allow the respondent Committee to conduct its own investigation of an issue already before
the Sandiganbayan would not only pose the possibility of conflicting judgments betweena
legislative commitee and a judicial tribunal, but if the Committee's judgment were to be
reached before that of the Sandiganbayan, the possibility of its influence being made to bear
on the ultimate judgment of the Sandiganbayan can not be discounted.

In fine, for the rspondent Committee to probe and inquire into the same justiciable
controversy already before the Sandiganbayan, would be an encroachment into the
exclusive domain of judicial jurisdiction that had much earlier set in. In Baremblatt vs. United
States, 21 it was held that:

Broad as it is, the power is not, howevern, without limitations. Since congress may
only investigate into those areas in which it may potentially legislate or appropriate, it
cannot inquire into matters which are within the exclusive province of one of the other
branches of the government. Lacking the judicial power given to the Judiciary, it
cannot inquire into mattes that are exclusively the concern of the Judiciary. Neither
can it suplant the Executive in what exclusively belongs to the Executive. ...

Now to another matter. It has been held that "a congressional committee's right to inquire is
'subject to all relevant limitations placed by the Constitution on governmental action,'
including "'the relevant limitations of the Bill of Rights'." 22

In another case

... the mere semblance of legislative purpose would not justify an inquiry in the face of the Bill of Rights. The critical element is the exeistence of, and the weight to be ascribed to, the interest of the
Congress in demanding disclosures from an unwilling witness. We cannot simply assume, however, that every congressional investigation is justified by a public need that over-balances any private
rights affected. To do so would be to abdicate the responsibility placed by the Constitution upon the judiciary to insure that the Congress does not unjustifiably encroah upon an individual's right to
privacy nor abridge his liberty of speech, press, religion or assembly. 23

Thir right constured as the right to remain

One of the basic rights guaranteed by the Constitution to an individual is the right against self-incrimination. 24

completely silent may be availed of by the accused in a criminal case; but kit may be invoked
by other witnesses only as questions are asked of them.

This distinction was enunciated by the Court in Romeo Chavez vs. The Honorable Court of
Appeals, et al. 25thus

Petitioner, as accused, occupies a different tier of protection from an ordinary

witness. Whereas an ordinary witness may be compelled to take the witness stand
and claim the privilege as each question requiring an incriminating answer is hot at
him, an accused may altother refuse to take the witness stand and refuse to answer
any all questions.

Moreover, this right of the accused is extended to respondents in administrative

investigations but only if they partake of the nature of a criminal proceeding or analogous to
a criminal proceeding. In Galman vs. Pamaran,26 the Court reiterated the doctrine in Cabal
vs. Kapuanan (6 SCRA 1059) to illustrate the right of witnesses to invoke the right against
self-incrimination not only in criminal proceedings but also in all other types of suit

It was held that:

We did not therein state that since he is not an accused and the case is not a
criminal case, Cabal cannot refuse to take the witness stand and testify, and that he
 can invoke his right against self-incrimination only when a question which tends to
elicit an answer that will incriminate him is propounded to him. Clearly then, it is not
the characeter of the suit involved but the nature of the proceedings that controls.
The privilege has consistenly been held to extend to all proceedings sanctioned by
law and to all cases in which punishment is sought to be visited upon a witness,
whether a party or not.

We do not here modify these doctrines. If we presently rule that petitioners may not be
compelled by the respondent Committee to appear, testify and produce evidenc before it, it is
only becuase we hold that the questioned inquiry is not in aid of legislation and, if pursued,
would be violative of the principle of separation of powers between the legislative and the
judicial departments of government, ordained by the Constitution.

WHEREFORE, the petition is GRANTED. The Court holds that, under the facts, including the
circumtance that petitioners are presently impleaded as defendants in a case before the
Sandiganbayan, which involves issues intimately related to the subject of contemplated
inquiry before the respondet Committee, the respondent Senate Blue Ribbon Committee is
hereby enjoined from compelling the petitioners and intervenor to testify before it and
produce evidence at the said inquiry.

SO ORDERED.

Fernan, C.J., Melencio-Herrera, Feliciano, Bidin, Grio-Aquino, Medialdea, Regalado,

Davide, Jr. and Romero, JJ., concur.

Separate Opinions

PARAS, J., concurring:

I concur principally because any decision of the respondent committee may unduly influence
the Sandiganbayan

GUTIERREZ, JR., J., dissenting:

I regret that I must express a strong dissent the Court's opinion in this case.

The Court is asserting a power which I believe we do not possess. We are encroaching on
the turf of Congress. We are prohibiting the Senate from proceeding with a consitutionally
vested function. We are stopping the Senate Blue Ribbon Committee from exercising a
legislative prerogative investigations in aid of legislation. We do so becuase we somehow
feel that the purported aim is not the real purpose.

The Court has no power to second guess the motives behind an act of a House of Congress.
Neither can we substitute our judgment for its judgment on a matter specifically given to it by
the Constitution. The scope of the legislative power is broad. it emcompasses practically
every aspect of human or corporate behavior capable of regulation. How can this Court say
that unraveling the tangled and secret skeins behind the acquisition by Benjamin "Kokoy"
Romualdez of 39 corporations under the past regime and their sudden sale to the Lopa
Group at the outset of the new dispensation will not result in useful legislation?

The power of either House of Congress to conduct investigations is inherent. It needs no

textual grant. As stated in Arnault v. Nazareno, 87 Phil. 29 (1950)

Our form of government being patterned after the American system the framers of
our Constitution having drawn largely from American institutions and practices we
can, in this case, properly draw also from American precedents in interpreting
analogous provisions of our Constitution, as we have done in other cases in the past.

Although there is no provision in the Constitution expressly investing either House of

Congress with power to make investigations and exact testimony to the end that it
may exercise its legislative functions advisely and effectively, such power is so far
incidental to the legislative function as to be implied. In other words, the power of
inquiry with process to enforce it is an essential and appropriate auxiliary to the
legislative function. A legislative body cannot legislate wisely or effectively in the
absence of information respecting the conditions which the legislation is intended to
affect or change: and where the legislative body does not itself possess the requisite
information which is not infrequently true recourse must be had to others who
do possess it. ... (At p. 45)

The framers of the present Constitution were not content to leave the power inherent,
incidental or implied. The power is now expressed as follows:

Sec. 21 The Senate or the House of Representatives or may of its respective

committees may conduct inquiries in aid of legialtion in accordance with its duly
published rules of precedure. The rights of persons appearing in or affected by such
inquiries shall be respected.

Apart from the formal requirement of publishing the rules of procedure, I agree that there are
three queries which, if answered in the affirmative, may give us cause to intervene.

First, is the matter being investigated one on which no valid legislation could possibly be
enacted?

Second, is Congress encroaching on terrain which the Constitution has reserved as the
exclusive domain of another branch of government?

And third, is Congress violating the basic liberties of an individual?

The classic formulation of the power of the Court to interpret the meaning of "in aid of
legislation" is expressed in Kilbourn v. Thompson, 103 U.S. 168 (1880).

The House of Representatives passed a resolution creating a committee to investigate the

financial relations between Jay Cooke and Co., a depositary of federal funds and a real
estate pool. A debtor of Jay Cooke and Co, Kilbourn, general manager of the pool refused to
answer questions put to him by the Committee and to produce certain book sna papers.
Consequently, he was ordered jailed for forty-five days. He brought an action for false
imprisonment and the Supreme Court decided in his favor.

Speaking through Justice Miller, the Court ruled:

The resolution adopted as a sequence of this preamble contains no hint of any

intention of final action by Congress on the subject, In all the argument of the case
no suggestion has been made of what the House of Respresentatives or the
Congress could have done in the way of remedying the wrong or securing the
creditors of Jay Cooke and Co., or even the United States. Was it to be simply a
fruitless investigation into the personal affiars of individuals? If so the House of
Representatives had no power or authority in the matter more than any other equal
number of gentlemen interested for the government of their country. By fruitless we
mean that it could result in no valid legislation on the subject to which the inquiry
referrred. (Kilbourn v. Thompson, Id. at page 388)

The Kilbourn decision is, however, crica 1880. The world has turned over many times since
that era. The same court which validated separate but equal facilities against of racial
discrimination and ruled that a private contract may bar improved labor standards and social
justice legislation has reversed itslef on these and many other questions.

In McGrain v. Daugherty, 273 U.S. 135; 71 L. Ed. 580 [1927], the court went beyond the
express terms of the Senate resolution directing the investigation of a former Attorney
General for non-feasance, misfeasance, and malfeasance in office. It presumed that the
action of the Senate was with a legitimate object.

... Plainly the subject was one on which legislation could be had and would be
materially aided by the information which the investigation was calculated to elicit.
This becomes manifest when it is reflected that the functions of the Department of
Justice, the powers and duties of the Attorney-General and the duties of his
assitants, are all subject to regulation by congressional legislation, and that the
department is maintained and its activitites are carried on under such appropriations
as in the judgment of Congress are needed from year to year.

The only legitimate object the Senate could have in ordering the investigation was to
aid it in legislating, and we think the subject was the real object. An express avowal
of the object would have been better; but in view of the particular subject matter was
not indispenable. In People ex rel. Mc Donald v. Keeler, 99, N.Y. 463, 52 Am. Rep.
49, 2 N.E. 615, where the Court of Appeals of New york sustained an investigation
order by the House of Representatives of that state where the resolution contained
no avowal, but disclosed that it definitely related to the administrative of public office
the duties of which were subject to legislative regulation, the court said (pp. 485,
487): Where public institutions under the control of the State are ordered to be
investigated, it is generally with the view of some legislative action respecting them,
and the same may be said in respect of public officers,' And again "We are bound to
presume that the action of the legislative body was with a legitimate object if it is
capable of being so construed, and we have no right to assume that the contrary was
intended." (McGrain v. Daugherty Id., at page 594-595, Emphasis supplied)

The American Court was more categorical in United States v. Josephson, 333 U.S. 858
(1938). It declared that declaration of legislative purpose was conclusive on the Courts:
 Whatever may be said of the Committee on the un-American activities, its authorizing
resolution recites it is in aid of legislation and that fact is establshed for courts.

And since the matter before us in somethingwe inherited from the American constitutional
system, rulings from the decision of federal courts may be apropos. (Stamler v. Willis, 287 F.
Supp. 734 [1968]

The Court cannot probe into the motives of the members of the Congress.

Barsky v. United States, 167 F. 2d 241 [1948]

The measure of the power of inquiry is the potentiality that constitutional legislation
might ensue from information derived from such inquiry.

The possibility that invalid as well as valid legislation might ensue from an inquiry
does not limit the power of inquiry, since invalid legislation might ensue from any
inquiry.

United States v. Shelton, 148 F. Supp. 926 [1957]

The contention of the defendant that the hearing at which he testified and from which
the indictment arose was not in furtherance og a legislative purpose proceeds on the
assumption that a failure to have specific legislation in contemplation, or a failure to
show that legislation was in fact enacted, estabished an absence of legislative
purpose. This argument is patently unsound. The investigative power of Congress is
not subject to the limitation that hearings must result in legislation or
recommendations for legislation.

United States v. Deutch (147 F. Supp. 89 (1956)

Under the Constitution of the U.S., the Federal Government is a government of

limited powers. The Congress, being the legislative branch of the Federal
Government, is also clothed with limited legislative powers. In orders, however, to
carry its legislative powers into effect successfully, it has always been held that
Congress has the power to secure information concerning matters in respect to
which it has the authority to legislate. In fact, it would seem that Congress must
secure information in order to legislate intelligently. Beyond that, the Congress has
the right secure information in order to determine whether or not to legislate on a
particular subject matter on which it is within its constitutional powers to act.
(Emphasis Supplied)

The even broader scope of legislative investigation in the Philippine context is explained by a
member of the Constitutional Commission.

The requirement that the investigation be "in aid of legislation" is an essential

element for establishing the jurisdiction of the legislative body. It is, however, a
requirement which is not difficult to satisfy becuase, unlike in the United States,
where legislative power is shared by the United State Congress and the states
legislatures, the totality of legislative power is possessed by the Congress nad its
legislative field is well-nigh unlimited. "It would be difficult to define any limits by
which the subject matter of its inquiry can be bounded." (Supra, at p. 46) Moreover, it
 is not necessary that every question propounded to a witness must be material to a
proposed legislation. "In other words, the materiality of the question must be
determined by its direct relation to the subject of the inquiry and not by its indirect
relation to any proposed or possible legislation. The reason is that the necessity or
lack of necessity for legislative action and form and character of the action itself are
determined by the sum total of the information to be gathered as a result of the
investigation, and not by a fraction to be gathered as a result of the investigation, and
not by a fraction of such information elicited from a single question. (Id., at 48)

On the basis of this interpretation of what "in aid of legislation" means, it can readily
be seen that the phrase contributes practically nothing towards protecting witnesses.
Practically any investigation can be in aid of the broad legislative power of Congress.
The limitation, therefore cannot effectively prevent what Kilbourn v. Thompson (103
U.S. 168 [1880]) characterized as "roving commissions" or what Watkins v. United
States (354 U.S. 178, 200 [1957] labeled as exposure for the sake of exposure.
(Bernas, Constitution of the Republic of the Philippines, Vol. II, 1st Ed., page 132).

Applying the above principles to the present casem, it can readily be seen that the Senate is
investigating an area where it may potentially legislate. The ease with which relatives of the
President were allegedly able to amass great wealth under the past regime is a legitimate
area of inquiry. And if we tack on the alleged attempts o f relatives of a succeeding
adminsitration to duplicate the feat, the need for remedial legislation becomes more
imperative.

Our second area of concern is congressional encroachment on matters reserved by the

Constitution for the Executive or the Judiciary.

The majority opinion cites the decision in Angara v. Electoral Commission, 63 Phil. 139
(1936) explaining our power to determined conflicting claims of authority. It is indeed the
function on this Court to allocate constitutional boundaries but in the exercise of this "umpire"
function we have to take care that we do not keep any of the three great departments of
government from performing functions peculiar to each department or specifically vested to it
sby the Constitution. When a power is vested, ti carries with is everything legitimately neede
to exercise it.

It may be argued that the investigation into the Romualdez Lopa transactions is more
appropriate for the Department of Justice and the judiciary. This argument misses the point
of legislative inquiry.

The prosecution of offenders by the Department of Justice or the Ombudsman and their trial
before courts of justice is intended to punish persons who violate the law. Legislative
investigations go further. The aim is to arrive at policy determinations which may or may not
be enacted into legislation. Referral to prosecutors or courts of justice is an added bonus.
For sure, the Senate Blue Ribbon Committee knows it cannot sentence any offender, no
matter how overwhelming the proof that it may gatherm to a jail term. But certainly, the
Committee can recommend to Congress how the situation which enabled get-rich-quick
schemes to flourish may be remedied. The fact that the subject of the investigation may
currently be undergoing trial does not restrict the power of Congress to investigate for its own
purposes. The legislative purpose is distinctly different from the judicial purpose.

In Sinclair v. United States, 279 U.S. 263, 73 L ed. 692 (1928), leases of naval reservations
to oil companies were investigated by the United States Senate. On a finding that certain
leases were fraudulent, court action was recommended. In other words, court action on one
hand and legislation on the other, are not mutually exclusive. They may complement each
other.

... It may be conceded that Congress is without authority to compel disclosyres for
the purpose of aiding the prosecution of pending suits; but the authority of that body,
directly or through it Committees, to require pertinent disclosures in aid of its own
consitutional power is not abridged because the information sought to be elicited may
also be of use in such suits... It is plain that investigation of the matters involved in
suits brought or to be commenced under the Senate resolution directing the
institution of suits for the cancellation of the leases might directly aid in respect of
legislative action... (Sinclair v. United States, Id.at page 698).

In United States v. Orman, 207 F. 2d Ed. 148 (1953), the court declared that it was pertinent
for a legislative committee to seek facts indicating that a witness was linked to unlawful
intestate gambling.

The power of a congressional committee to investigate matters cannot be challenged

on the ground that the Committee went beyond the scope of any contemplated
legislative and assumed the functions of a grand jury. Whre the genral subject of
investigation is one concerning which Congress can legislate, and the information
sought might aid the congressional consideration, in such a situation a legitimate
legislative purpose must be presumed...

I submit that the filing of indictments or informations or the trial of certain persons cannot, by
themselves, half the intitiation or stop the progress of legislative investigations.

The other ground which I consider the more important one is where the legislative
investigation violates the liberties of the witnesses.

The Constitution expressly provides that "the rights of persons appearing in or affected by
such inquiries shall be respected.

It should be emphasized that the constitutional restriction does not call for the banning or
prohibition of investigations where a violation of a basis rights is claimed. It only requires that
in the course of the proceedings, the right of persons should be respected.

What the majority opinion mandates is a blanket prohibition against a witness testifying at all,
simply because he is already facing charges before the Sandiganbayan. To my mind, the
Consitution allows him to interpose objections whenever an incriminating question is posed
or when he is compelled to reveal his ocurt defenses, but not ot refuse to take the witness
stand completely.

Arnault v. Nazareno, supra, illustrates the reticence, with which the court views petitions to
curtail legislative investigations even where an invocation of individual liberties is made.

In Arnault, the entire country already knew the name of the presidential realtive whom the
Sentate was trying to link to the Tambobong-Buenavista estate anomalies. Still, the Court did
not interfere when Arnault refused to answer specific questions directed at him and he was
punished for hir refusal. The Court did not restrain the Senate when Arnault was sent o the
national penitentiary for an indefinite visit until the name which the Senate wanted him to
utter was extracted. Only when the imprisonment became ureasonably prolonged and the
situation in Congress had changed was he released.

As pointed out by the respondents, not one question has been asked requiring an answer
that would incriminate the petitioners. The allegation that their basic rights are vilolated is not
only without basis but is also premature.

I agree with the respondents that the slae of 39 Romualdez corporations to Mr. Lopa is not a
purely private transaction into which the Senate may not inquire. if this were so, much of the
work of the Presidential Commission on Good Government (PCGG) as it seeks to recover
illegally acquired wealth would be negated. Much of what PCGG is trying to recover is the
product of arrangements which are not only private but also secret and hidden.

I therefore, vote to DISMISS the petition.

Narvasa, J., dissents.

CRUZ, J., dissenting:

I regret I am unable to give my concurrence, I do not agree that the investigation being
conducted by the Blue Ribbon Committee is not in aid of legislation.

In Arnault v. Nazareno, 87 Phil. 29, this Court observed that "we are bound to presume that
the action of the legislative body was with a legitimate object if it is capable of being so
construed, and we have no right ot assume that the contrary was intended." (People ex
rel. Mc Donald vs. Keeler, 99 N.Y. 463; 52 Am. Rep., 49; 2 N.E., 615, quoted with approval
by the U.S. Supreme Court in McGrain vs. Daugherty, 273 U.S. 135). As far as I know, that
is still the rule today.

More importantly, the presumption is supported by the established facts. The inquiry is
sustainable as an implied of power the legislature and even as expressly limited by the
Constitution.

The inquiry deals with alleged manipulations of public funds and illicit acquisitions of
properties now being claimed by the PCGG for the Republic of the Philippines. The purpose
of the Committee is to ascertain if and how such anomalies have been committed. It is
settled that the legislature has a right to investigate the disposition of the public funds it has
appropriated; indeed, "an inquiry into the expenditure of all public money is na indispensable
duty of the legislature." Moreover, an investigation of a possible violation of a law may be
useful in the drafting of amendatory legislation to correct or strengthen that law.

The ponencia quotes lengthily from Senator Enrile's speech and concludes that it "contained
no suggestions of contemplated legislation; he merely called upon the Senate to look into a
possible violation of section 5 of R.A. No. 3019." However, according to McGrain v.
Daugherty, supra:

Primarily, the purpose for which legislative inquiry and investigation is pursued is to
serve as an aid in legislation. Through it, the legislature is able to obtain facts or data
in aid fo proposed legislation. However, it is not necessary that the resolution
ordering an investigation should in terms expressly state that the object of the inquiry
is to obtain data in aid of proposed legislation. It is enough that such purpose
 appears from a consideration of the entire proceedings or one in which legislation
could be had and would be materially aided by the information which the
investigation was calculated to elicit. An express avowal of the object would be
better, but such is not indispensable. (Emphasis supplied).

The petitioner's contention that the questioned investigation would compel them to reveal
their defense in the cases now pending against them in the Sandigangbayan is untenable.
They know or should know that they cannot be compelled to answer incriminating questions.
The case of Chavez v. Court of Appeals, 24 SCRA 663, where we held that an accused may
refuse at the outset to take the stand on the ground that the questions to be put by the
prosecutor will tend to incriminate him is, of course, not applicable to them. They are not
facing criminal charges before the Blue Ribbon Committee. Like any ordinary witness, they
can invoke the right against self-incrimination only when and as the incriminating question is
propounded.

While it is true that the Court is now allowed more leeway in reviewing the traditionally
political acts of the legislative and executive departments, the power must be exercised with
the utmost circumspection lest we unduly trench on their prerogatives and disarrange the
constitutional separation of powers. That power is available to us only if there is a clear
showing of a grave abuse of discretion, which I do not see in the case at bar.

Guided by the presumption and the facts, I vote to DISMISS the petition.

Narvasa, J., dissents.

# Separate Opinions

PARAS, J., concurring:

I concur principally because any decision of the respondent committee may unduly influence
the Sandiganbayan

GUTIERREZ, JR., J., dissenting:

I regret that I must express a strong dissent the Court's opinion in this case.

The Court is asserting a power which I believe we do not possess. We are encroaching on
the turf of Congress. We are prohibiting the Senate from proceeding with a consitutionally
vested function. We are stopping the Senate Blue Ribbon Committee from exercising a
legislative prerogative investigations in aid of legislation. We do so becuase we somehow
feel that the purported aim is not the real purpose.

The Court has no power to second guess the motives behind an act of a House of Congress.
Neither can we substitute our judgment for its judgment on a matter specifically given to it by
the Constitution. The scope of the legislative power is broad. it emcompasses practically
every aspect of human or corporate behavior capable of regulation. How can this Court say
that unraveling the tangled and secret skeins behind the acquisition by Benjamin "Kokoy"
Romualdez of 39 corporations under the past regime and their sudden sale to the Lopa
Group at the outset of the new dispensation will not result in useful legislation?

The power of either House of Congress to conduct investigations is inherent. It needs no

textual grant. As stated in Arnault v. Nazareno, 87 Phil. 29 (1950)

Our form of government being patterned after the American system the framers of
our Constitution having drawn largely from American institutions and practices we
can, in this case, properly draw also from American precedents in interpreting
analogous provisions of our Constitution, as we have done in other cases in the past.

Although there is no provision in the Constitution expressly investing either House of

Congress with power to make investigations and exact testimony to the end that it
may exercise its legislative functions advisely and effectively, such power is so far
incidental to the legislative function as to be implied. In other words, the power of
inquiry with process to enforce it is an essential and appropriate auxiliary to the
legislative function. A legislative body cannot legislate wisely or effectively in the
absence of information respecting the conditions which the legislation is intended to
affect or change: and where the legislative body does not itself possess the requisite
information which is not infrequently true recourse must be had to others who
do possess it. ... (At p. 45)

The framers of the present Constitution were not content to leave the power inherent,
incidental or implied. The power is now expressed as follows:

Sec. 21 The Senate or the House of Representatives or may of its respective

committees may conduct inquiries in aid of legialtion in accordance with its duly
published rules of precedure. The rights of persons appearing in or affected by such
inquiries shall be respected.

Apart from the formal requirement of publishing the rules of procedure, I agree that there are
three queries which, if answered in the affirmative, may give us cause to intervene.

First, is the matter being investigated one on which no valid legislation could possibly be
enacted?

Second, is Congress encroaching on terrain which the Constitution has reserved as the
exclusive domain of another branch of government?

And third, is Congress violating the basic liberties of an individual?

The classic formulation of the power of the Court to interpret the meaning of "in aid of
legislation" is expressed in Kilbourn v. Thompson, 103 U.S. 168 (1880).

The House of Representatives passed a resolution creating a committee to investigate the

financial relations between Jay Cooke and Co., a depositary of federal funds and a real
estate pool. A debtor of Jay Cooke and Co, Kilbourn, general manager of the pool refused to
answer questions put to him by the Committee and to produce certain book sna papers.
Consequently, he was ordered jailed for forty-five days. He brought an action for false
imprisonment and the Supreme Court decided in his favor.
Speaking through Justice Miller, the Court ruled:

The resolution adopted as a sequence of this preamble contains no hint of any

intention of final action by Congress on the subject, In all the argument of the case
no suggestion has been made of what the House of Respresentatives or the
Congress could have done in the way of remedying the wrong or securing the
creditors of Jay Cooke and Co., or even the United States. Was it to be simply a
fruitless investigation into the personal affiars of individuals? If so the House of
Representatives had no power or authority in the matter more than any other equal
number of gentlemen interested for the government of their country. By fruitless we
mean that it could result in no valid legislation on the subject to which the inquiry
referrred. (Kilbourn v. Thompson, Id. at page 388)

The Kilbourn decision is, however, crica 1880. The world has turned over many times since
that era. The same court which validated separate but equal facilities against of racial
discrimination and ruled that a private contract may bar improved labor standards and social
justice legislation has reversed itslef on these and many other questions.

In McGrain v. Daugherty, 273 U.S. 135; 71 L. Ed. 580 [1927], the court went beyond the
express terms of the Senate resolution directing the investigation of a former Attorney
General for non-feasance, misfeasance, and malfeasance in office. It presumed that the
action of the Senate was with a legitimate object.

... Plainly the subject was one on which legislation could be had and would be
materially aided by the information which the investigation was calculated to elicit.
This becomes manifest when it is reflected that the functions of the Department of
Justice, the powers and duties of the Attorney-General and the duties of his
assitants, are all subject to regulation by congressional legislation, and that the
department is maintained and its activitites are carried on under such appropriations
as in the judgment of Congress are needed from year to year.

The only legitimate object the Senate could have in ordering the investigation was to
aid it in legislating, and we think the subject was the real object. An express avowal
of the object would have been better; but in view of the particular subject matter was
not indispenable. In People ex rel. Mc Donald v. Keeler, 99, N.Y. 463, 52 Am. Rep.
49, 2 N.E. 615, where the Court of Appeals of New york sustained an investigation
order by the House of Representatives of that state where the resolution contained
no avowal, but disclosed that it definitely related to the administrative of public office
the duties of which were subject to legislative regulation, the court said (pp. 485,
487): Where public institutions under the control of the State are ordered to be
investigated, it is generally with the view of some legislative action respecting them,
and the same may be said in respect of public officers,' And again "We are bound to
presume that the action of the legislative body was with a legitimate object if it is
capable of being so construed, and we have no right to assume that the contrary was
intended." (McGrain v. Daugherty Id., at page 594-595, Emphasis supplied)

The American Court was more categorical in United States v. Josephson, 333 U.S. 858
(1938). It declared that declaration of legislative purpose was conclusive on the Courts:

Whatever may be said of the Committee on the un-American activities, its authorizing
resolution recites it is in aid of legislation and that fact is establshed for courts.
And since the matter before us in somethingwe inherited from the American constitutional
system, rulings from the decision of federal courts may be apropos. (Stamler v. Willis, 287 F.
Supp. 734 [1968]

The Court cannot probe into the motives of the members of the Congress.

Barsky v. United States, 167 F. 2d 241 [1948]

The measure of the power of inquiry is the potentiality that constitutional legislation
might ensue from information derived from such inquiry.

The possibility that invalid as well as valid legislation might ensue from an inquiry
does not limit the power of inquiry, since invalid legislation might ensue from any
inquiry.

United States v. Shelton, 148 F. Supp. 926 [1957]

The contention of the defendant that the hearing at which he testified and from which
the indictment arose was not in furtherance og a legislative purpose proceeds on the
assumption that a failure to have specific legislation in contemplation, or a failure to
show that legislation was in fact enacted, estabished an absence of legislative
purpose. This argument is patently unsound. The investigative power of Congress is
not subject to the limitation that hearings must result in legislation or
recommendations for legislation.

United States v. Deutch (147 F. Supp. 89 (1956)

Under the Constitution of the U.S., the Federal Government is a government of

limited powers. The Congress, being the legislative branch of the Federal
Government, is also clothed with limited legislative powers. In orders, however, to
carry its legislative powers into effect successfully, it has always been held that
Congress has the power to secure information concerning matters in respect to
which it has the authority to legislate. In fact, it would seem that Congress must
secure information in order to legislate intelligently. Beyond that, the Congress has
the right secure information in order to determine whether or not to legislate on a
particular subject matter on which it is within its constitutional powers to act.
(Emphasis Supplied)

The even broader scope of legislative investigation in the Philippine context is explained by a
member of the Constitutional Commission.

The requirement that the investigation be "in aid of legislation" is an essential

element for establishing the jurisdiction of the legislative body. It is, however, a
requirement which is not difficult to satisfy becuase, unlike in the United States,
where legislative power is shared by the United State Congress and the states
legislatures, the totality of legislative power is possessed by the Congress nad its
legislative field is well-nigh unlimited. "It would be difficult to define any limits by
which the subject matter of its inquiry can be bounded." (Supra, at p. 46) Moreover, it
is not necessary that every question propounded to a witness must be material to a
proposed legislation. "In other words, the materiality of the question must be
determined by its direct relation to the subject of the inquiry and not by its indirect
relation to any proposed or possible legislation. The reason is that the necessity or
 lack of necessity for legislative action and form and character of the action itself are
determined by the sum total of the information to be gathered as a result of the
investigation, and not by a fraction to be gathered as a result of the investigation, and
not by a fraction of such information elicited from a single question. (Id., at 48)

On the basis of this interpretation of what "in aid of legislation" means, it can readily
be seen that the phrase contributes practically nothing towards protecting witnesses.
Practically any investigation can be in aid of the broad legislative power of Congress.
The limitation, therefore cannot effectively prevent what Kilbourn v. Thompson (103
U.S. 168 [1880]) characterized as "roving commissions" or what Watkins v. United
States (354 U.S. 178, 200 [1957] labeled as exposure for the sake of exposure.
(Bernas, Constitution of the Republic of the Philippines, Vol. II, 1st Ed., page 132).

Applying the above principles to the present casem, it can readily be seen that the Senate is
investigating an area where it may potentially legislate. The ease with which relatives of the
President were allegedly able to amass great wealth under the past regime is a legitimate
area of inquiry. And if we tack on the alleged attempts o f relatives of a succeeding
adminsitration to duplicate the feat, the need for remedial legislation becomes more
imperative.

Our second area of concern is congressional encroachment on matters reserved by the

Constitution for the Executive or the Judiciary.

The majority opinion cites the decision in Angara v. Electoral Commission, 63 Phil. 139
(1936) explaining our power to determined conflicting claims of authority. It is indeed the
function on this Court to allocate constitutional boundaries but in the exercise of this "umpire"
function we have to take care that we do not keep any of the three great departments of
government from performing functions peculiar to each department or specifically vested to it
sby the Constitution. When a power is vested, ti carries with is everything legitimately neede
to exercise it.

It may be argued that the investigation into the Romualdez Lopa transactions is more
appropriate for the Department of Justice and the judiciary. This argument misses the point
of legislative inquiry.

The prosecution of offenders by the Department of Justice or the Ombudsman and their trial
before courts of justice is intended to punish persons who violate the law. Legislative
investigations go further. The aim is to arrive at policy determinations which may or may not
be enacted into legislation. Referral to prosecutors or courts of justice is an added bonus.
For sure, the Senate Blue Ribbon Committee knows it cannot sentence any offender, no
matter how overwhelming the proof that it may gatherm to a jail term. But certainly, the
Committee can recommend to Congress how the situation which enabled get-rich-quick
schemes to flourish may be remedied. The fact that the subject of the investigation may
currently be undergoing trial does not restrict the power of Congress to investigate for its own
purposes. The legislative purpose is distinctly different from the judicial purpose.

In Sinclair v. United States, 279 U.S. 263, 73 L ed. 692 (1928), leases of naval reservations
to oil companies were investigated by the United States Senate. On a finding that certain
leases were fraudulent, court action was recommended. In other words, court action on one
hand and legislation on the other, are not mutually exclusive. They may complement each
other.
 ... It may be conceded that Congress is without authority to compel disclosyres for
the purpose of aiding the prosecution of pending suits; but the authority of that body,
directly or through it Committees, to require pertinent disclosures in aid of its own
consitutional power is not abridged because the information sought to be elicited may
also be of use in such suits... It is plain that investigation of the matters involved in
suits brought or to be commenced under the Senate resolution directing the
institution of suits for the cancellation of the leases might directly aid in respect of
legislative action... (Sinclair v. United States, Id.at page 698).

In United States v. Orman, 207 F. 2d Ed. 148 (1953), the court declared that it was pertinent
for a legislative committee to seek facts indicating that a witness was linked to unlawful
intestate gambling.

The power of a congressional committee to investigate matters cannot be challenged

on the ground that the Committee went beyond the scope of any contemplated
legislative and assumed the functions of a grand jury. Whre the genral subject of
investigation is one concerning which Congress can legislate, and the information
sought might aid the congressional consideration, in such a situation a legitimate
legislative purpose must be presumed...

I submit that the filing of indictments or informations or the trial of certain persons cannot, by
themselves, half the intitiation or stop the progress of legislative investigations.

The other ground which I consider the more important one is where the legislative
investigation violates the liberties of the witnesses.

The Constitution expressly provides that "the rights of persons appearing in or affected by
such inquiries shall be respected.

It should be emphasized that the constitutional restriction does not call for the banning or
prohibition of investigations where a violation of a basis rights is claimed. It only requires that
in the course of the proceedings, the right of persons should be respected.

What the majority opinion mandates is a blanket prohibition against a witness testifying at all,
simply because he is already facing charges before the Sandiganbayan. To my mind, the
Consitution allows him to interpose objections whenever an incriminating question is posed
or when he is compelled to reveal his ocurt defenses, but not ot refuse to take the witness
stand completely.

Arnault v. Nazareno, supra, illustrates the reticence, with which the court views petitions to
curtail legislative investigations even where an invocation of individual liberties is made.

In Arnault, the entire country already knew the name of the presidential realtive whom the
Sentate was trying to link to the Tambobong-Buenavista estate anomalies. Still, the Court did
not interfere when Arnault refused to answer specific questions directed at him and he was
punished for hir refusal. The Court did not restrain the Senate when Arnault was sent o the
national penitentiary for an indefinite visit until the name which the Senate wanted him to
utter was extracted. Only when the imprisonment became ureasonably prolonged and the
situation in Congress had changed was he released.
As pointed out by the respondents, not one question has been asked requiring an answer
that would incriminate the petitioners. The allegation that their basic rights are vilolated is not
only without basis but is also premature.

I agree with the respondents that the slae of 39 Romualdez corporations to Mr. Lopa is not a
purely private transaction into which the Senate may not inquire. if this were so, much of the
work of the Presidential Commission on Good Government (PCGG) as it seeks to recover
illegally acquired wealth would be negated. Much of what PCGG is trying to recover is the
product of arrangements which are not only private but also secret and hidden.

I therefore, vote to DISMISS the petition.

Narvasa, J., dissents.

CRUZ, J., dissenting:

I regret I am unable to give my concurrence, I do not agree that the investigation being
conducted by the Blue Ribbon Committee is not in aid of legislation.

In Arnault v. Nazareno, 87 Phil. 29, this Court observed that "we are bound to presume that
the action of the legislative body was with a legitimate object if it is capable of being so
construed, and we have no right ot assume that the contrary was intended." (People ex
rel. Mc Donald vs. Keeler, 99 N.Y. 463; 52 Am. Rep., 49; 2 N.E., 615, quoted with approval
by the U.S. Supreme Court in McGrain vs. Daugherty, 273 U.S. 135). As far as I know, that
is still the rule today.

More importantly, the presumption is supported by the established facts. The inquiry is
sustainable as an implied of power the legislature and even as expressly limited by the
Constitution.

The inquiry deals with alleged manipulations of public funds and illicit acquisitions of
properties now being claimed by the PCGG for the Republic of the Philippines. The purpose
of the Committee is to ascertain if and how such anomalies have been committed. It is
settled that the legislature has a right to investigate the disposition of the public funds it has
appropriated; indeed, "an inquiry into the expenditure of all public money is na indispensable
duty of the legislature." Moreover, an investigation of a possible violation of a law may be
useful in the drafting of amendatory legislation to correct or strengthen that law.

The ponencia quotes lengthily from Senator Enrile's speech and concludes that it "contained
no suggestions of contemplated legislation; he merely called upon the Senate to look into a
possible violation of section 5 of R.A. No. 3019." However, according to McGrain v.
Daugherty, supra:

Primarily, the purpose for which legislative inquiry and investigation is pursued is to
serve as an aid in legislation. Through it, the legislature is able to obtain facts or data
in aid fo proposed legislation. However, it is not necessary that the resolution
ordering an investigation should in terms expressly state that the object of the inquiry
is to obtain data in aid of proposed legislation. It is enough that such purpose
appears from a consideration of the entire proceedings or one in which legislation
could be had and would be materially aided by the information which the
investigation was calculated to elicit. An express avowal of the object would be
better, but such is not indispensable. (Emphasis supplied).
The petitioner's contention that the questioned investigation would compel them to reveal
their defense in the cases now pending against them in the Sandigangbayan is untenable.
They know or should know that they cannot be compelled to answer incriminating questions.
The case of Chavez v. Court of Appeals, 24 SCRA 663, where we held that an accused may
refuse at the outset to take the stand on the ground that the questions to be put by the
prosecutor will tend to incriminate him is, of course, not applicable to them. They are not
facing criminal charges before the Blue Ribbon Committee. Like any ordinary witness, they
can invoke the right against self-incrimination only when and as the incriminating question is
propounded.

While it is true that the Court is now allowed more leeway in reviewing the traditionally
political acts of the legislative and executive departments, the power must be exercised with
the utmost circumspection lest we unduly trench on their prerogatives and disarrange the
constitutional separation of powers. That power is available to us only if there is a clear
showing of a grave abuse of discretion, which I do not see in the case at bar.

Guided by the presumption and the facts, I vote to DISMISS the petition.

Narvasa, J., dissents.

Footnotes

EN BANC

[G.R. No. 129118. July 19, 2000]

AGRIPINO A. DE GUZMAN, JR., NARCISO M. ARABE, LETICIA T.

ENDOMA, ARISTIDES A. RAMOS, PANCHO M. RIVERA, TERESITA
A. DE CASTRO, CANDIDA C. HABANA, AZUCENA C. FALCON,
MARIA LUZ P. CAEDO, YOLANDA V. RIO, RUBEN S. ANIEVAS,
LELISA L. SANCHEZ, VILLARDO A. TRINIDAD, ENRIQUE CH.
ZUNIGA, ROMEO A. GONZALES, CASIANO G. ATUEL, JR., GEMMA
L. BANARES, PERFECTO T. CAMPOS, ARNULFO A. AGUILAR,
RUDOLPH R. MELON, MAGDALENA M. LAO, MARINA GERONA,
FLORIANA O. DE GUIA, EMETERIO B. BRUCAL, NILDA C.
CONCHA, YOLANDA P. FERMA, TEOTISTA C. ANGKIKO,
FRANCISCO V. TRIAS, JENELYN E. ESTERNON, MILAGROS M.
ABELLAR, ALICIA T. MOJICA, ELVIRA E. BAYBAY, PRICILLA P.
GOLFO, ELISEA M. HIERCO, TERESITA L. DIMACUHA, MYRNA
GUILLERMO, GRACIANO R. SAMELA, JR., NIMFA M. LAGASCA,
JOSEFINA P. JARENO, NORMA V. ORDENES, FRANCISCO T.
SERVANDO, VIOLETA M. ANONUEVO, ALFREDO O. BAYANI,
MARIO J. RAMOS, EME FEROLINO, LEONIDES P. COMIA,
MILAGROS E. GENEBLAZO, LORNA L. MENORCA, REYNALDO DE
LA CRUZ, ROMULO A. FAZ, LIMUEL G. GADO, REY G. FABELLA,
DOMINGUITO G. TACASA, IMELDA R.B. ROTONI, TITA FOJA,
NOEMI F. CASTRO, LILIA B. CAWALING, ROBERT A. REYES,
CONCEPCION H. PARRENO, SERAFIN L. OLMEDO, ADOLFO L.
ALLAN, PROSPERO D. CASTRO, ROSELLER C. GAPULAO,
GLICERIO B. LAURENTE, BERNICE E. BERNABE, ADINA L.
FERNANDEZ, ANITA M. PAALAN, ROSA P. PINOON, INOCENCIA P.
DANGUE, JULITA E. MENDOZA, ELENA O. RAMOS, GENE BE
BARTE, FLORENCIA Z. MAGANITO, PABLO A. ARGA, PEDRO S.
LUNA, CARMELITA P. LAUREL, VICTORINO I. MARASIGAN,
ROMEO M. MENDOZA, JUAN C. MALABANAN, MANUEL B.
ABRELI, JOSEPH T. MACAHIYA, LEONOR P. ARADA, JULIA G.
PEREZ, MODESTO M. VILLADELREY, ARNULFO Y. FAJILAN,
MARLON P. HERRERA, JAIME A. BISCOCHO, MICHAEL D.
CASTILLO, MILAGROS H. BAYLOSIS, ARSENIO T. GUSTE,
ALFREDO V. ORAYANI, DANTE A. PENAMANTE, ROMEO A. DE
CHAVEZ, MANUEL M. ILAGAN, ALFREDO O. MANZA, JR.,
DOMINGO B. GUNIO, FIDEL V. PALERACIO, VICENTE V. DEL
MORO, JUSTINO R. DEQUILLA, ERNESTO A. RUZOL, ROMEO D.
DELGADO, ERLINDA P. MAGSINO, VERONICA R. CAMBRONERO,
NORMA A. DEQUINA, WELLIE R. RAVINA, CORAZON T. LOPEZ,
REMEDIOS R. QUIZON, LORETA E. VERGARA, MELECIA M.
ASTRERA, VICENTA R. SAMANTE, HELEN M. CUENTO-
BUENDICHO, ANICIA V. MORALES, RISALINA C. GONZALES,
ROSARIO CHARITO R. PABELLON, LOLITA L. MALADAGA,
MAXIMO A. GLINDO, WILFREDO A. RODELAS, CELSO O. ROGO,
RAMON C. VALENCIA, FELIPE R. FRANDO, ADEN B. DUNGO,
OFELIA N. QUIBEN, LIGAYA S. VALENZUELA, EUNICE S.
FAMILARIN, MARCELA DE LEON, ADELA M. JAMILLA, RENY
ABLES, ADELA E. FABERES, ALICIA P. BALDOMAR, EDNA C.
GARCIA, ANGELINA V. GARRIDO, ELOISA P. TORRENO, CHARITO
M. LACAMENTO, CLARENCIA M. AQUINO, HILDA DIMALANTA,
ELSIE SIBAL, PURIFICACION TANGONAN, AMELITA FERNANDEZ,
TEDDY C. MARIANO, LORETO SANGGALANG, GERARDO
GONZALES, FEDERICO ONATE, JR., ARTURO BALIGNASAY,
FELIX M. CABARIOS, JR., NORBERTO PUNZALAN, JAIME G.
ALCANTARA, ERNESTO VILLANUEVA, ESTANISLAO SANCHEZ,
ADORACION L. PINEDA, LUCILA S. DUNGCA, ADELAIDA B.
LAOIJINDANUM, ROLANDO A. BALUYUT, FRANCISCO M. DAVID,
LEONELLE S. MENDOZA, MA. LUZ A. BASILIO, NESTOR J.
TIMBANG, HILDA P. DIZON, EMMANUEL E. IGNACIO, RAMON S.
ABELLA, JOSELITO MATIAS, HEZEQUIAS B. GALANG, ERLINDA
C. ZAPATA, IMELDA R. MANALASTAS, PEDRO L. PALO, AURECIO
C. TRASPE, JOSEPHINE GALANG, FLORINDA R. MADULID,
MAGDALENA W. SADI, NYDIA V.A. BOLISAY, PRESENTACION A.
PALOM, ANTONIO B. ANCHETA, MACARIO L. SADI, PACIFICO E.
GISAPON, FELICIANO C. CRUZ, IMELDA A. QUIMEL, LINDA D.
SANDOVAL, MARILOU R. ORTIZ, NORMA F. SANTOS, MAGPAYO
V. ABESAMIS, BONIFACIO B. VILLAFLOR, DANIEL O. TABIOS,
CONSTANTE T. CATRIZ, JESUS E. ALICANTE, FEDERICO
SACLAYAN, JR., NOLY G. UMINGA, FE FRAELI L. DE GUZMAN,
RODRIGO S. WYCOCO, JOVEN HERMOGENES, RODOLFO D.
BANAWA, ABELARDO O. CAPANZANA, ERNESTO Q. TIONGSON,
ROSANNA CRUZ, OSCAR C. ONGOCO, CONSUELO A.
KABIGTING, JULITA V. PASTELERO, ARSENIA V. BONDOC,
ISIDRO A. TOMAS, ANGELINA V. GARRIDO, CONSOLACION N.
LABOG, ELENITA A. RIVERA, SOCORRO NOCES, RODOLFO
GALLARDO, CARMENCITA M. ONGEO, CAMILO L. SEDURIFA,
ARLEEN VIC B. OCHANDRA, EDGARDO E. APOSTOL, CLOTILDE
C. CANETE, ALEJANDRO B. DEL AGUA, PILAR R. BUENO,
TEODOICO C. MAGALLANES, PETRONIO N. PIANGCO, JR., JOSE
M. FLORENDO, BIBIANO A. CAGNAN, ALICIA A. TUBI, RODOLFO
C. NATAN, JAIME B. MENDONEZ, EDILBERTO EDANG, ROSENDA
T. JENOVEVA, VEDASTO B. ELIZAN, JR., MILAGROS P. DE LUNA,
ATILANO L. ISAAC, CORAZON L. J. PEPITO, LUCILA S. PINEDA,
ROCHE B. CERRO, JOCELYN KL. LIBUT, REMBERTO L.
GUTIERREZ, NAZARIO A. TRASMONTE, REYNALDO O. MACARAT,
FLORENCIA M. MALIBAGO, IMELDA G. TUYAY, JUAN A. GIBA,
JR., JOSE M. CAPACITE, ARCITA M. GARCIA, ANGEL G. DACUNO,
RITA M. BEDIANG, RENATO L. CANDIDO, NESTORIO B. BOCO,
JONATHAN C. AMBIDA, MONICA MACABARE, BENITO A.
MONTALLANA, CLOTILDE C. APURA-VALDEMORO, CIRIACO J.
ARCENO, PABLO L. FORMARAN, JR., PROSPERO S. OLMEDO,
IGNACIO V. CASCANO, SERAFIN L. CLUTARIO, ARTURO L. DIN,
JUCHITA C. SY, RODOLFO L. ASUERO, PIO T. PORTES, MARILOU
F. TAMAYO, MILAGROS P. LAMBINO, ESTANISLAO A. ESPINA,
RENERIO D. ENGO, FERNANDO A. MOSCARE, CONCHITA A.
PICARDAL, ELIAS T. TURLA, BONIFACIO T. LIM, JOSEFINA A.
AGUILAR, ANTONIO O. TEPACE, GAVINO S. ASOTES, RENE P.
MAGBUTAY, NICOLAS C. UY, JR., JESUS B. LAVA, SENORA C.
CALAGOS, RAFAEL A. PAYOD, MACARIO L. CIEGO, SALVADOR
T. CRUZ, VIRGINIA V. BESAS, RAUL S. FIGUERDA, EDGAR R.
DELOS REYES, TERESO R. ROSEL, JOSE J. MABANGUE, PRIMO
D. PALOMO, JOHN C. YANGZON, ROMULO D. JABON, FIDENCIO
Z. LA TORRE, JR., LETICIA R. MACARIOLA, CARLOS P. VARELA,
JR., ANTONIO L. PEDRAZA, SALVACION A. LAMBAN, LINO L.
JAPSON, EUNIA H. VACAL, ANTONIO F. VALDEZ, NATIVIDAD E.
PRADO, LORENZO C. MERKA, GAUDIOSO A. RUEGO, ETERIO Z.
ABOCEJO, DEMETRIA O. COROLLO, MARIA S. OBEN, ARTHUR V.
LEYSON, PEDRO L. AVILA, DOMINADOR S. RODILLA, MARCIAL
MAGPATOC, FEDERICO D. BARCELON, EVANGELINE DELA
ROSA, ELENO GIL, ARSENIA GARCIA, HUMILDA ALICUM,
DIOSDADO CAS, ABRAHAM MASAOY, SAMUEL ORALLO, AMELIA
OLORES, CANDIDO URBANO, LOURDES FRIAS, ROEL SORIANO,
EMELDA AGUSTIN, PAQUITO SORIANO, GERMAN BALOLONG,
BENJAMIN C. ROSARIO, EFREN BUYA, LEONIDA LEGASPI,
TOMAS ABELLA, JR., JOVENCIA CANTO, JUAN DACONO,
MIGUEL BAUTISTA, LORNA PASCUAL, FERDINAND BRAGANZA,
PRISCILLA PEREZ, ALMA LUZ SORIANO, JUAN VALENCIA, JR.,
JULIAN APOSTOL, ROSARIO GUICO, BONITA VIDAL, GUIA
GARCIA, LEOCADIO GINEZ, CATALINA BANEZ, VERONICA
TABILIN, ELVIRA CALSADO, ALIPIO LOPEZ, JOSEPHINE
MALANA, PIO ANONUEVO, ELMA DEL ROSARIO, RUFINO
FLORES, ANTONIO ORDONEZ, CARMEN CLAVERIA, ESTRELLA
RAMOS, petitioners, vs. COMMISSION ON
ELECTIONS, respondent.

DECISION

PURISIMA, J.:

At bar is a petition for certiorari and prohibition with urgent prayer for the
issuance of a writ of preliminary injunction and temporary restraining order,
assailing the validity of Section 44 of Republic Act No. 8189 (RA 8189) otherwise
known as "The Voters Registration Act of 1996".

RA 8189 was enacted on June 10, 1996 and approved by President Fidel V.
Ramos on June 11, 1996. Section 44 thereof provides:

"SEC. 44. Reassignment of Election Officers. - No Election Officer shall

hold office in a particular city or municipality for more than four (4) years.
Any election officer who, either at the time of the approval of this Act or
subsequent thereto, has served for at least four (4) years in a particular
 city or municipality shall automatically be reassigned by the Commission
to a new station outside the original congressional district."

By virtue of the aforequoted provision of law, the Commission on Elections

(COMELEC) promulgated Resolution Nos. 97-0002[1] and 97-0610[2] for the
implementation thereof. Thereafter, the COMELEC issued several
directives[3]reassigning the petitioners, who are either City or Municipal Election
Officers, to different stations.

Aggrieved by the issuance of the aforesaid directives and resolutions, petitioners

found their way to this Court via the present petition assailing the validity of
Section 44 of RA 8189, contending that:

SECTION 44 OF REPUBLIC ACT NO. 8189 VIOLATES THE EQUAL

PROTECTION CLAUSE ENSHRINED IN THE CONSTITUTION;

II

SECTION 44 OF REPUBLIC ACT NO. 8189 VIOLATES THE

CONSTITUTIONAL GUARANTEE ON SECURITY OF TENURE OF CIVIL
SERVANTS;

III

SECTION 44 OF REPUBLIC ACT NO. 8189 CONSTITUTES A DEPRIVATION

OF PROPERTY WITHOUT DUE PROCESS OF LAW;

IV

SECTION 44 OF REPUBLIC ACT NO. 8189 UNDERMINES THE

CONSTITUTIONAL INDEPENDENCE OF COMELEC AND COMELECS
CONSTITUTIONAL AUTHORITY TO NAME, DESIGNATE AND APPOINT AND
THEN REASSIGN AND TRANSFER ITS VERY OWN OFFICIALS AND
EMPLOYEES;

SECTION 44 OF REPUBLIC ACT NO. 8189 CONTRAVENES THE BASIC

CONSTITUTIONAL PRECEPT [Article VI, SECTION 26(1), Phil. Constitution]
THAT EVERY BILL PASSED BY CONGRESS SHALL EMBRACE ONLY ONE
SUBJECT WHICH MUST BE EXPRESSED IN THE TITLE THEREOF; and

VI
SECTION 44 OF REPUBLIC ACT NO. 8189 IS VOID FOR FAILURE TO
COMPLY WITH THE CONSTITUTIONAL REQUIREMENT [ARTICLE VI,
SECTION 26 (2)] OF THREE READINGS ON SEPARATE DAYS AND
DISTRIBUTION OF PRINTED COPIES IN ITS FINAL FORM THREE DAYS
BEFORE ITS PASSAGE.

Petitioners contentions revolve on the pivotal issue, whether Section 44 of RA

8189 is valid and constitutional.

The petition is barren of merit. Section 44 of RA 8189 enjoys the presumption of

validity, and the Court discerns no ground to invalidate it.

Petitioners theorize that Section 44 of RA 8189 is violative of the "equal

protection clause" of the 1987 Constitution because it singles out the City and
Municipal Election Officers of the COMELEC as prohibited from holding office in
the same city or municipality for more than four (4) years. They maintain that
there is no substantial distinction between them and other COMELEC officials,
and therefore, there is no valid classification to justify the objective of the
provision of law under attack.

The Court is not persuaded by petitioners arguments. The "equal protection

clause" of the 1987 Constitution permits a valid classification under the following
conditions:

1. The classification must rest on substantial distinctions;

2. The classification must be germane to the purpose of the law;

3. The classification must not be limited to existing conditions only; and

4. The classification must apply equally to all members of the same class. [4]

After a careful study, the ineluctable conclusion is that the classification under
Section 44 of RA 8189 satisfies the aforestated requirements.

The singling out of election officers in order to "ensure the impartiality of election
officials by preventing them from developing familiarity with the people of their
place of assignment" does not violate the equal protection clause of the
Constitution.

In Lutz vs. Araneta,[5] it was held that "the legislature is not required by the
Constitution to adhere to a policy of all or none". This is so for underinclusiveness
is not an argument against a valid classification. It may be true that all the other
officers of COMELEC referred to by petitioners are exposed to the same evils
sought to be addressed by the statute. However, in this case, it can be discerned
that the legislature thought the noble purpose of the law would be sufficiently
served by breaking an important link in the chain of corruption than by breaking
up each and every link thereof. Verily, under Section 3(n) of RA 8189, election
officers are the highest officials or authorized representatives of the COMELEC
in a city or municipality. It is safe to say that without the complicity of such
officials, large scale anomalies in the registration of voters can hardly be carried
out.

Moreover, to require the COMELEC to reassign all employees (connected with

the registration of voters) who have served at least four years in a given city or
municipality would entail a lot of administrative burden on the part of the
COMELEC.

Neither does Section 44 of RA 8189 infringe the security of tenure of petitioners

nor unduly deprive them of due process of law. As held in Sta. Maria vs. Lopez.[6]

"xxx the rule that outlaws unconsented transfers as anathema to security

of tenure applies only to an officer who is appointed - not merely assigned
- to a particular station. Such a rule does not pr[o]scribe a transfer carried
out under a specific statute that empowers the head of an agency to
periodically reassign the employees and officers in order to improve the
service of the agency. xxx" (italics supplied)

The guarantee of security of tenure under the Constitution is not a guarantee of

perpetual employment. It only means that an employee cannot be dismissed (or
transferred) from the service for causes other than those provided by law and
after due process is accorded the employee. What it seeks to prevent is
capricious exercise of the power to dismiss. But, where it is the law-making
authority itself which furnishes the ground for the transfer of a class of
employees, no such capriciousness can be raised for so long as the remedy
proposed to cure a perceived evil is germane to the purposes of the law.

Untenable is petitioners contention that Section 44 of RA 8189 undermines the

authority of COMELEC to appoint its own officials and employees. As stressed
upon by the Solicitor General, Section 44 establishes a guideline for the
COMELEC to follow. Said section provides the criterion or basis for the
reassignment or transfer of an election officer and does not deprive the
COMELEC of its power to appoint, and maintain its authority over its officials and
employees. As a matter of fact, the questioned COMELEC resolutions and
directives illustrate that it is still the COMELEC which has the power to reassign
and transfer its officials and employees. But as a government agency tasked with
the implementation and enforcement of election laws, the COMELEC is duty
bound to comply with the laws passed by Congress.

The independence of the COMELEC is not at issue here. There is no impairment

or emasculation of its power to appoint its own officials and employees. In fact,
Section 44 even strengthens the COMELECs power of appointment, as the
power to reassign or transfer is within its exclusive jurisdiction and domain.

Petitioners contention that Section 44 has an isolated and different subject from
that of RA 8189 and that the same is not expressed in the title of the law, is
equally untenable.

The objectives of Section 26(1), Article VI of the 1987 Constitution, that "[e]very
bill passed by the Congress shall embrace only one subject which shall be
expressed in the title thereof", are:

1. To prevent hodge-podge or log-rolling legislation;

2. To prevent surprise or fraud upon the legislature by means of provisions

in bills of which the titles gave no information, and which might therefore
be overlooked and carelessly and unintentionally adopted; and

3. To fairly apprise the people, through such publication of legislative

proceedings as is usually made, of the subjects of legislation that are
being considered, in order that they may have opportunity of being heard
thereon by petition or otherwise if they shall so desire.[7]

Section 26(1) of Article VI of the 1987 Constitution is sufficiently complied with

where, as in this case, the title is comprehensive enough to embrace the general
objective it seeks to achieve, and if all the parts of the statute are related and
germane to the subject matter embodied in the title or so long as the same are
not inconsistent with or foreign to the general subject and title.[8] Section 44 of RA
8189 is not isolated considering that it is related and germane to the subject
matter stated in the title of the law. The title of RA 8189 is "The Voters
Registration Act of 1996" with a subject matter enunciated in the explanatory
note as "AN ACT PROVIDING FOR A GENERAL REGISTRATION OF VOTERS,
ADOPTING A SYSTEM OF CONTINUING REGISTRATION, PRESCRIBING
THE PROCEDURES THEREOF AND AUTHORIZING THE APPROPRIATION
OF FUNDS THEREFOR." Section 44, which provides for the reassignment of
election officers, is relevant to the subject matter of registration as it seeks to
ensure the integrity of the registration process by providing a guideline for the
COMELEC to follow in the reassignment of election officers. It is not an alien
provision but one which is related to the conduct and procedure of continuing
registration of voters. In this regard, it bears stressing that the Constitution does
not require Congress to employ in the title of an enactment, language of such
precision as to mirror, fully index or catalogue, all the contents and the minute
details therein.[9]

In determining the constitutionality of a statute dubbed as defectively titled, the

presumption is in favor of its validity.[10]
 As regards the issue raised by petitioners - whether Section 44 of RA 8189 was
enacted in accordance with Section 26 (2), Article VI of the 1987 Constitution,
petitioners have not convincingly shown grave abuse of discretion on the part of
Congress. Respect due to co-equal departments of the government in matters
entrusted to them by the Constitution, and the absence of a clear showing of
grave abuse of discretion suffice to stay the judicial hand.[11]

WHEREFORE, the petition is DISMISSED; and the constitutionality and validity

of Section 44 of RA 8189 UPHELD. No pronouncement as to costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing, Buena, Gonzaga-Reyes, Ynares-Santiago, and De
Leon, Jr., JJ., concur.

Pardo, J., no part.

FREDO DE GUZMAN, JR., Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BERSAMIN, J.:

Frustrated homicide requires intent to kill on the part of the offender. Without proof of such intent, the
felony may only be serious physical injuries. Intent to kill may be established through the overt and external
acts and conduct of the offender before, during and after the assault, or by the nature, location and number
of the wounds inflicted on the victim.

The Case

Under review at the instance of the petitioner is the decision promulgated on September 27, 2006,1whereby
the Court of Appeals (CA) affirmed his conviction for frustrated homicide committed against Alexander Flojo
under the judgment rendered on September 10, 2003 by the Regional Trial Court (RTC), Branch 213, in
Mandaluyong City in Criminal Case No. 191-MD.2

Antecedents

The CA summarized the versions of the parties as follows: chan roblesv irt uallawl ibra ry

x x x [O]n December 24, 1997, at about ten oclock in the evening, Alexander Flojo (hereafter Alexander)
was fetching water below his rented house at 443 Aglipay Street, Old Zaniga St., Mandaluyong City when
suddenly Alfredo De Guzman (hereafter Alfredo), the brother of his land lady, Lucila Bautista (hereafter
Lucila), hit him on the nape. Alexander informed Lucila about what Alfredo did to him. Lucila apologized to
Alexander by saying, Pasensya ka na Mang Alex and told the latter to just go up. Alexander obliged and
went upstairs. He took a rest for about two hours. Thereafter, at around 12:00 to 12:15 A.M., Alexander
went down and continued to fetch water. While pouring water into a container, Alfredo suddenly appeared in
front of Alexander and stabbed him on his left face and chest.

Cirilino Bantaya, a son-in-law of Alexander, saw the latter bleeding on the left portion of his body and
begging for help. Alexander then told Cirilino that Alfredo stabbed him. Cirilino immediately loaded
Alexander into his motorcycle (backride) and brought him to the Mandaluyong City Medical Center. Upon
arrival at the hospital, the doctors immediately rendered medical assistance to Alexander. Alexander stayed
in the emergency room of said hospital for about 30 to 40 minutes. Then, he was brought to the second
floor of the said hospital where he was confined for two days. Thereafter, Alexander was transferred to the
Polymedic General Hospital where he was subjected for (sic) further medical examination.
Alexander sustained two stabbed (sic) wounds. (sic) One of which was on the zygoma, left side, and about
one (1) cm. long. The other is on his upper left chest which penetrated the fourth intercostal space at the
proximal clavicular line measuring about two (2) cm. The second stabbed (sic) wound penetrated the
thoracic wall and left lung of the victim which resulted to blood air (sic) in the thoracic cavity thus
necessitating the insertion of a thoracostomy tube to remove the blood. According to Dr. Francisco
Obmerga, the physician who treated the victim at the Mandaluyong City Medical Center, the second wound
was fatal and could have caused Alexanders death without timely medical intervention. (Tsn, July 8, 1998,
p.8).

On the other hand, Alfredo denied having stabbed Alexander. According to him, on December 25, 1997 at
around midnight, he passed by Alexander who was, then, fixing a motorcycle. At that point, he accidentally
hit Alexanders back, causing the latter to throw invective words against him. He felt insulted, thus, a
fistfight ensued between them. They even rolled on the ground. Alfredo hit Alexander on the cheek causing
blood to ooze from the latters face.3
The RTC convicted the petitioner, decreeing thusly: c han roblesv irt uallawl ibra ry

PRESCINDING (sic) FROM THE FOREGOING CONSIDERATIONS, the court finds accused Alfredo De Guzman
y Agkis a.k.a., JUNIOR, guilty beyond reasonable doubt for (sic) the crime of FRUSTRATED HOMICIDE
defined and penalized in Article 250 of the Revised Penal Code and in the absence of any modifying
circumstance, he is hereby sentenced to suffer the indeterminate penalty of Six (6) Months and One (1) day
of PRISION CORR[R]ECCIONAL as MINIMUM to Six (6) Years and One (1) day of PRISION MAYOR
as MAXIMUM .

The accused is further ordered to pay the private complainant compensatory damages in the amount of
P14,170.35 representing the actual pecuniary loss suffered by him as he has duly proven.

SO ORDERED.4
On appeal, the petitioner contended that his guilt had not been proved beyond reasonable doubt; that intent
to kill, the critical element of the crime charged, was not established; that the injuries sustained by
Alexander were mere scuffmarks inflicted in the heat of anger during the fistfight between them; that he did
not inflict the stab wounds, insisting that another person could have inflicted such wounds; and that he had
caused only slight physical injuries on Alexander, for which he should be accordingly found guilty.

Nonetheless, the CA affirmed the petitioners conviction, viz: chan rob lesvi rtua llawlib ra ry

WHEREFORE, premises considered, the instant appeal is DISMISSED. The September 10, 2003 Decision of
the Regional Trial Court of Mandaluyong City, Branch 213, is hereby AFFIRMED in toto.

SO ORDERED.5
The CA denied the petitioners motion for reconsideration on May 2, 2007.6

Issue

Was the petitioner properly found guilty beyond reasonable doubt of frustrated homicide?

Ruling

The appeal lacks merit.

The elements of frustrated homicide are: (1) the accused intended to kill his victim, as manifested by his
use of a deadly weapon in his assault; (2) the victim sustained fatal or mortal wound but did not die
because of timely medical assistance; and (3) none of the qualifying circumstances for murder under Article
248 of the Revised Penal Code , as amended, is present.7 Inasmuch as the trial and appellate courts found
none of the qualifying circumstances in murder under Article 248 to be present, we immediately proceed to
ascertain the presence of the two other elements.

The petitioner adamantly denies that intent to kill was present during the fistfight between him and
Alexander. He claims that the heightened emotions during the fistfight naturally emboldened both of them,
but he maintains that he only inflicted minor abrasions on Alexander, not the stab wounds that he appeared
to have sustained. Hence, he should be held liable only for serious physical injuries because the intent to
kill, the necessary element to characterize the crime as homicide, was not sufficiently established. He avers
that such intent to kill is the main element that distinguishes the crime of physical injuries from the crime of
homicide; and that the crime is homicide only if the intent to kill is competently shown.
The essential element in frustrated or attempted homicide is the intent of the offender to kill the victim
immediately before or simultaneously with the infliction of injuries. Intent to kill is a specific intent that the
State must allege in the information, and then prove by either direct or circumstantial evidence, as
differentiated from a general criminal intent, which is presumed from the commission of a felony
by dolo.8 Intent to kill, being a state of mind, is discerned by the courts only through external
manifestations, i.e., the acts and conduct of the accused at the time of the assault and immediately
thereafter. In Rivera v. People,9 we considered the following factors to determine the presence of intent to
kill, namely: (1) the means used by the malefactors; (2) the nature, location, and number of wounds
sustained by the victim; (3) the conduct of the malefactors before, during, or immediately after the killing of
the victim; and (4) the circumstances under which the crime was committed and the motives of the
accused. We have also considered as determinative factors the motive of the offender and the words he
uttered at the time of inflicting the injuries on the victim.10

Here, both the trial and the appellate court agreed that intent to kill was present. We concur with them.
Contrary to the petitioners submission, the wounds sustained by Alexander were not mere scuffmarks
inflicted in the heat of anger or as the result of a fistfight between them. The petitioner wielded and used a
knife in his assault on Alexander. The medical records indicate, indeed, that Alexander sustained two stab
wounds, specifically, one on his upper left chest and the other on the left side of his face. The petitioners
attack was unprovoked with the knife used therein causing such wounds, thereby belying his submission,
and firmly proving the presence of intent to kill. There is also to be no doubt about the wound on
Alexanders chest being sufficient to result into his death were it not for the timely medical intervention.

With the State having thereby shown that the petitioner already performed all the acts of execution that
should produce the felony of homicide as a consequence, but did not produce it by reason of causes
independent of his will, i.e., the timely medical attention accorded to Alexander, he was properly found
guilty of frustrated homicide.

We have no cogent reason to deviate from or to disregard the findings of the trial and appellate courts on
the credibility of Alexanders testimony. It is not disputed that the testimony of a single but credible and
trustworthy witness sufficed to support the conviction of the petitioner. This guideline finds more compelling
application when the lone witness is the victim himself whose direct and positive identification of his
assailant is almost always regarded with indubitable credibility, owing to the natural tendency of the victim
to seek justice for himself, and thus strive to remember the face of his assailant and to recall the manner in
which the latter committed the crime.11 Moreover, it is significant that the petitioners mere denial of the
deadly manner of his attack was contradicted by the credible physical evidence corroborating Alexanders
statements. Under the circumstances, we can only affirm the petitioners conviction for frustrated homicide.

The affirmance of the conviction notwithstanding, we find the indeterminate penalty of Six (6) Months and
One (1) day of PRISION CORR[R]ECCIONAL as MINIMUM to Six (6) Years and One (1) day of PRISION
MAYOR as MAXIMUM 12 fixed by the RTC erroneous despite the CA concurring with the trial court thereon.
Under Section 1 of the Indeterminate Sentence Law, an indeterminate sentence is imposed on the offender
consisting of a maximum term and a minimum term.13 The maximum term is the penalty properly imposed
under the Revised Penal Code after considering any attending modifying circumstances; while the minimum
term is within the range of the penalty next lower than that prescribed by the Revised Penal Code for the
offense committed. Conformably with Article 50 of the Revised Penal Code,14 frustrated homicide is punished
by prision mayor, which is next lower to reclusion temporal, the penalty for homicide under Article 249 of
the Revised Penal Code. There being no aggravating or mitigating circumstances present, however, prision
mayor in its medium period from eight years and one day to 10 years is proper. As can be seen, the
maximum of six years and one day of prision mayor as fixed by the RTC and affirmed by the CA was not
within the medium period of prision mayor. Accordingly, the correct indeterminate sentence is four years
of prision correccional, as the minimum, to eight years and one day of prision mayor, as the maximum.

The RTC and the CA also agreed on limiting the civil liability to the sum of P14,170.35 as compensatory
damages representing the actual pecuniary loss suffered by [Alexander] as he has duly proven.15 We need
to revise such civil liability in order to conform to the law, the Rules of Court and relevant jurisprudence.
In Bacolod v. People,16 we emphatically declared to be imperative that the courts prescribe the proper
penalties when convicting the accused, and determine the civil liability to be imposed on the accused, unless
there has been a reservation of the action to recover civil liability or a waiver of its recovery. We explained
why in the following manner: chan roblesv irtuallawl ib rary

It is not amiss to stress that both the RTC and the CA disregarded their express mandate under Section 2,
Rule 120 of the Rules of Court to have the judgment, if it was of conviction, state: (1) the legal qualification
of the offense constituted by the acts committed by the accused and the aggravating or mitigating
circumstances which attended its commission; (2) the participation of the accused in the offense, whether
as principal, accomplice, or accessory after the fact; (3) the penalty imposed upon the accused; and
(4) the civil liability or damages caused by his wrongful act or omission to be recovered from the
accused by the offended party, if there is any, unless the enforcement of the civil liability by a
separate civil action has been reserved or waived. Their disregard compels us to act as we now do
lest the Court be unreasonably seen as tolerant of their omission. That the Spouses Cogtas did not
themselves seek the correction of the omission by an appeal is no hindrance to this action because the
Court, as the final reviewing tribunal, has not only the authority but also the duty to correct at any time a
matter of law and justice.

We also pointedly remind all trial and appellate courts to avoid omitting reliefs that the parties are properly
entitled to by law or in equity under the established facts. Their judgments will not be worthy of the name
unless they thereby fully determine the rights and obligations of the litigants. It cannot be otherwise, for
only by a full determination of such rights and obligations would they be true to the judicial office of
administering justice and equity for all. Courts should then be alert and cautious in their rendition of
judgments of conviction in criminal cases. They should prescribe the legal penalties, which is what the
Constitution and the law require and expect them to do. Their prescription of the wrong penalties will be
invalid and ineffectual for being done without jurisdiction or in manifest grave abuse of discretion amounting
to lack of jurisdiction. They should also determine and set the civil liability ex delicto of the accused, in order
to do justice to the complaining victims who are always entitled to them. The Rules of Court mandates them
to do so unless the enforcement of the civil liability by separate actions has been reserved or waived.17
Alexander as the victim in frustrated homicide suffered moral injuries because the offender committed
violence that nearly took away the victims life. Moral damages include physical suffering, mental anguish,
fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar
injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the
proximate result of the defendant's wrongful act for omission.18 Indeed, Article 2219, (1), of the Civil
Code expressly recognizes the right of the victim in crimes resulting in physical injuries.19 Towards that end,
the Court, upon its appreciation of the records, decrees that P30,000.00 is a reasonable award of moral
damages.20 In addition, AAA was entitled to recover civil indemnity of P30,000.00.21 Both of these awards
did not require allegation and proof.

In addition, the amounts awarded as civil liability of the petitioner shall earn interest of 6% per
annumreckoned from the finality of this decision until full payment by the accused.

WHEREFORE, the Court AFFIRMS the decision promulgated on September 27, 2006 finding petitioner
Alfredo De Guzman, Jr. GUILTY beyond reasonable doubt of FRUSTRATED HOMICIDE,
and SENTENCES him to suffer the indeterminate penalty of four years of prision correccional, as the
minimum, to eight years and one day of prision mayor, as the maximum; ORDERS the petitioner to pay to
Alexander Flojo civil indemnity of P30,000.00; moral damages of P30,000.00; and compensatory damages
of P14,170.35, plus interest of 6% per annum on all such awards from the finality of this decision until full
payment; and DIRECTS the petitioner to pay the costs of suit.

SO ORDERED.

Sereno, Chief Justice, Leonardo-De Castro, Villarama, Jr.,* and Perez, JJ., concur.

Endnotes:

*
Vice Associate Justice Estela M. Perlas-Bernabe per Special Order No. 1885 dated November 24, 2014.

1
Rollo, pp 74-79; penned by Associate Justice Elvi John S. Asuncion, with the concurrence of Associate
Justice Jose Catral Mendoza (now a Member of this Court) and Associate Justice Sesinando E. Villon.

2
Id. at 29-35; penned by Presiding Judge Amalia F. Dy.

3
Id. at 75-76.

4
Id. at 35.

5
Id. at 79.
6
Id. at 90.

7
Serrano v. People, G.R. No. 175023, July 5, 2010, 623 SCRA 322, 339.

8
Mahawan v. People, G.R. No. 176609, December 18, 2008, 574 SCRA 737; Rivera v. People, G.R. No.
166326, January 25, 2006, 480 SCRA 188, 196.

9
Rivera v. People, supra at 197, citing People v. Delim, G.R. No. 142773, January 28, 2003, 396 SCRA 386,
400.

10
Serrano v. People, supra note 7, at 335-336.

11
Cabildo v. People, G.R. No. 189971, August 23, 2010, 628 SCRA 602, 609.

12
Supra note 3.

13
Section 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or
its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of
which shall be that which, in view of the attending circumstances, could be properly imposed under the rules
of the said Code, and the minimum which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall
sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the
same.

14
Article 50. Penalty to be imposed upon principals of a frustrated crime. The penalty next lower in
degree than that prescribed by law for the consummated felony shall be imposed upon the principal in a
frustrated felony.

15
Supra note 3.

16
G.R. No. 206236, July 15, 2013, 701 SCRA 229.

17
Id. at 239-240 (the bold underscoring is part of the original text).

18
Article 2217, Civil Code.

19
Article 2219. Moral damages may be recovered in the following and analogous cases:

xxxx

(1) A criminal offense resulting in physical injuries;

xxxx

Nacario v. People, G.R. No. 173106, September 30, 2008, 567 SCRA 262, 268; Angeles v. People, G.R.
20

No. 172744, September 29, 2008, G.R. No. 172744, 567 SCRA 20, 30; Adame v. Court of Appeals, G.R. No.
139830, November 21, 2002, 392 SCRA 305, 316.

21
Flores v. People, G.R. No. 181625, October 2, 2009, 602 SCRA 611, 626.

EN BANC

[G.R. No. 127255. August 14, 1997]

JOKER P. ARROYO, EDCEL C. LAGMAN, JOHN HENRY R. OSMEA,
WIGBERTO E. TAADA, and RONALDO B. ZAMORA, petitioners,
vs. JOSE DE VENECIA, RAUL DAZA, RODOLFO ALBANO, THE
EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE, AND
THE COMMISSIONER OF INTERNAL REVENUE, respondents.

DECISION
MENDOZA, J.:

This is a petition for certiorari and/or prohibition challenging the validity of

Republic Act No. 8240, which amends certain provisions of the National
Internal Revenue Code by imposing so-called sin taxes (actually specific
taxes) on the manufacture and sale of beer and cigarettes.
Petitioners are members of the House of Representatives. They brought
this suit against respondents Jose de Venecia, Speaker of the House of
Representatives, Deputy Speaker Raul Daza, Majority Leader Rodolfo
Albano, the Executive Secretary, the Secretary of Finance, and the
Commissioner of Internal Revenue, charging violation of the rules of the
House which petitioners claim are constitutionally mandated so that their
violation is tantamount to a violation of the Constitution.
The law originated in the House of Representatives as H. No. 7198. This
bill was approved on third reading on September 12, 1996 and transmitted on
September 16, 1996 to the Senate which approved it with certain
amendments on third reading on November 17, 1996. A bicameral conference
committee was formed to reconcile the disagreeing provisions of the House
and Senate versions of the bill.
The bicameral conference committee submitted its report to the House at
8 a.m. on November 21, 1996. At 11:48 a.m., after a recess, Rep. Exequiel
Javier, chairman of the Committee on Ways and Means, proceeded to deliver
his sponsorship speech, after which he was interpellated. Rep. Rogelio
Sarmiento was first to interpellate. He was interrupted when Rep. Arroyo
moved to adjourn for lack of quorum. Rep. Antonio Cuenco objected to the
motion and asked for a head count. After a roll call, the Chair (Deputy
Speaker Raul Daza) declared the presence of a quorum. Rep. Arroyo [1]

appealed the ruling of the Chair, but his motion was defeated when put to a
vote. The interpellation of the sponsor thereafter proceeded.
Petitioner Rep. Joker Arroyo registered to interpellate. He was fourth in the
order, following Rep. Rogelio Sarmiento, Rep. Edcel C. Lagman and Rep.
Enrique Garcia. In the course of his interpellation, Rep. Arroyo announced
that he was going to raise a question on the quorum, although until the end of
his interpellation he never did. What happened thereafter is shown in the
following transcript of the session on November 21, 1996 of the House of
Representatives, as published by Congress in the newspaper issues of
December 5 and 6, 1996:
MR. ALBANO. Mr. Speaker, I move that we now approve and ratify the conference
committee report.
THE DEPUTY SPEAKER (Mr. Daza). Any objection to the motion?
MR. ARROYO. What is that, Mr. Speaker?
THE DEPUTY SPEAKER (Mr. Daza). There being none, approved.
(Gavel)
MR. ARROYO. No, no, no, wait a minute, Mr. Speaker, I stood up. I want to know what
is the question that the Chair asked the distinguished sponsor.
THE DEPUTY SPEAKER (Mr. Daza). There was a motion by the Majority Leader for
approval of the report, and the Chair called for the motion.
MR. ARROYO. Objection, I stood up, so I wanted to object.
THE DEPUTY SPEAKER (Mr. Daza). The session is suspended for one minute.
(It was 3:01 p.m.)
(3:40 p.m., the session was resumed)
THE DEPUTY SPEAKER (Mr. Daza). The session is resumed.
MR. ALBANO. Mr. Speaker, I move to adjourn until four oclock, Wednesday, next
week.
THE DEPUTY SPEAKER (Mr. Daza). The session is adjourned until four oclock,
Wednesday, next week.
(It was 3:40 p.m.)
On the same day, the bill was signed by the Speaker of the House of
Representatives and the President of the Senate and certified by the
respective secretaries of both Houses of Congress as having been finally
passed by the House of Representatives and by the Senate on November 21,
1996. The enrolled bill was signed into law by President Fidel V. Ramos on
November 22, 1996.
Petitioners claim that there are actually four different versions of the
transcript of this portion of Rep. Arroyos interpellation: (1) the transcript of
audio-sound recording of the proceedings in the session hall immediately after
the session adjourned at 3:40 p.m. on November 21, 1996, which petitioner
Rep. Edcel C. Lagman obtained from the operators of the sound system; (2)
the transcript of the proceedings from 3:00 p.m. to 3:40 p.m. of November 21,
1996, as certified by the Chief of the Transcription Division on November 21,
1996, also obtained by Rep. Lagman; (3) the transcript of the proceedings
from 3:00 p.m. to 3:40 p.m. of November 21, 1996 as certified by the Chief of
the Transcription Division on November 28, 1996, also obtained by Rep.
Lagman; and (4) the published version abovequoted. According to petitioners,
the four versions differ on three points, to wit: (1) in the audio-sound recording
the word approved, which appears on line 13 in the three other versions,
cannot be heard; (2) in the transcript certified on November 21, 1996 the word
no on line 17 appears only once, while in the other versions it is repeated
three times; and (3) the published version does not contain the sentence
(Y)ou better prepare for a quorum because I will raise the question of
the quorum, which appears in the other versions.
Petitioners allegations are vehemently denied by respondents. However,
there is no need to discuss this point as petitioners have announced that, in
order to expedite the resolution of this petition, they admit, without conceding,
the correctness of the transcripts relied upon by the respondents. Petitioners
agree that for purposes of this proceeding the word approved appears in the
transcripts.
Only the proceedings of the House of Representatives on the conference
committee report on H. No. 7198 are in question.Petitioners principal
argument is that R.A. No. 8240 is null and void because it was passed in
violation of the rules of the House; that these rules embody the constitutional
mandate in Art. VI, 16(3) that each House may determine the rules of its
proceedings and that, consequently, violation of the House rules is a violation
of the Constitution itself. They contend that the certification of Speaker De
Venecia that the law was properly passed is false and spurious.
More specifically, petitioners charge that (1) in violation of Rule VIII, 35
and Rule XVII, 103 of the rules of the House, the Chair, in submitting the
[2]

conference committee report to the House, did not call for

the yeas or nays, but simply asked for its approval by motion in order to
prevent petitioner Arroyo from questioning the presence of a quorum; (2) in
violation of Rule XIX, 112, the Chair deliberately ignored Rep. Arroyos
[3]

question, What is that . . . Mr. Speaker? and did not repeat Rep. Albanos
motion to approve or ratify; (3) in violation of Rule XVI, 97, the Chair refused
[4]

to recognize Rep. Arroyo and instead proceeded to act on Rep. Albanos

motion and afterward declared the report approved; and (4) in violation of
Rule XX, 121-122, Rule XXI, 123, and Rule XVIII, 109, the Chair suspended
[5]

the session without first ruling on Rep. Arroyos question which, it is alleged, is
a point of order or a privileged motion. It is argued that Rep. Arroyos query
should have been resolved upon the resumption of the session on November
28, 1996, because the parliamentary situation at the time of the adjournment
remained upon the resumption of the session.
Petitioners also charge that the session was hastily adjourned at 3:40 p.m.
on November 21, 1996 and the bill certified by Speaker Jose De Venecia to
prevent petitioner Rep. Arroyo from formally challenging the existence of
a quorum and asking for a reconsideration.
Petitioners urge the Court not to feel bound by the certification of the
Speaker of the House that the law had been properly passed, considering the
Courts power under Art. VIII, 1 to pass on claims of grave abuse of discretion
by the other departments of the government, and they ask for a reexamination
of Tolentino v. Secretary of Finance, which affirmed the conclusiveness of an
[6]

enrolled bill, in view of the changed membership of the Court.

The Solicitor General filed a comment in behalf of all respondents. In
addition, respondent De Venecia filed a supplemental comment. Respondents
defense is anchored on the principle of separation of powers and the enrolled
bill doctrine. They argue that the Court is not the proper forum for the
enforcement of the rules of the House and that there is no justification for
reconsidering the enrolled bill doctrine. Although the Constitution provides in
Art. VI, 16(3) for the adoption by each House of its rules of proceedings,
enforcement of the rules cannot be sought in the courts except insofar as they
implement constitutional requirements such as that relating to three readings
on separate days before a bill may be passed. At all events, respondents
contend that, in passing the bill which became R.A. No. 8240, the rules of the
House, as well as parliamentary precedents for approval of conference
committee reports on mere motion, were faithfully observed.
In his supplemental comment, respondent De Venecia denies that his
certification of H. No. 7198 is false and spurious and contends that under the
journal entry rule, the judicial inquiry sought by the petitioners is barred.
Indeed, Journal No. 39 of the House of Representatives, covering the
sessions of November 20 and 21, 1996, shows that On Motion of Mr. Albano,
there being no objection, the Body approved the Conference Committee
Report on House Bill No. 7198. This Journal was approved on December 2,
[7]

1996 over the lone objection of petitioner Rep. Lagman. [8]

After considering the arguments of the parties, the Court finds no ground
for holding that Congress committed a grave abuse of discretion in enacting
R.A. No. 8240. This case is therefore dismissed.
First. It is clear from the foregoing facts that what is alleged to have been
violated in the enactment of R.A. No. 8240 are merely internal rules of
procedure of the House rather than constitutional requirements for the
enactment of a law, i.e., Art. VI, 26-27. Petitioners do not claim that there was
no quorum but only that, by some maneuver allegedly in violation of the rules
of the House, Rep. Arroyo was effectively prevented from questioning the
presence of a quorum.
Petitioners contend that the House rules were adopted pursuant to the
constitutional provision that each House may determine the rules of its
proceedings and that for this reason they are judicially enforceable. To begin
[9]

with, this contention stands the principle on its head. In the decided
cases, the constitutional provision that each House may determine the rules
[10]

of its proceedings was invoked by parties, although not successfully, precisely

to support claims of autonomy of the legislative branch to conduct its business
free from interference by courts. Here petitioners cite the provision for the
opposite purpose of invoking judicial review.
But the cases, both here and abroad, in varying forms of expression, all
deny to the courts the power to inquire into allegations that, in enacting a law,
a House of Congress failed to comply with its own rules, in the absence of
showing that there was a violation of a constitutional provision or the rights of
private individuals. In Osmea v. Pendatun, it was held: At any rate, courts
[11]

have declared that the rules adopted by deliberative bodies are subject to
revocation, modification or waiver at the pleasure of the body adopting
them. And it has been said that Parliamentary rules are merely procedural,
and with their observance, the courts have no concern. They may be waived
or disregarded by the legislative body. Consequently, mere failure to conform
to parliamentary usage will not invalidate the action (taken by a deliberative
body) when the requisite number of members have agreed to a particular
measure.
In United States v. Ballin, Joseph & Co., the rule was stated thus: The
[12]

Constitution empowers each house to determine its rules of proceedings. It

may not by its rules ignore constitutional restraints or violate fundamental
rights, and there should be a reasonable relation between the mode or
method of proceeding established by the rule and the result which is sought to
be attained. But within these limitations all matters of method are open to the
determination of the House, and it is no impeachment of the rule to say that
some other way would be better, more accurate, or even more just. It is no
objection to the validity of a rule that a different one has been prescribed and
in force for a length of time. The power to make rules is not one which once
exercised is exhausted. It is a continuous power, always subject to be
exercised by the House, and within the limitations suggested, absolute and
beyond the challenge of any other body or tribunal.
 In Crawford v. Gilchrist, it was held: The provision that each House shall
[13]

determine the rules of its proceedings does not restrict the power given to a
mere formulation of standing rules, or to the proceedings of the body in
ordinary legislative matters; but in the absence of constitutional restraints, and
when exercised by a majority of a constitutional quorum, such authority
extends to a determination of the propriety and effect of any action as it is
taken by the body as it proceeds in the exercise of any power, in the
transaction of any business, or in the performance of any duty conferred upon
it by the Constitution.
In State ex rel. City Loan & Savings Co. v. Moore, the Supreme Court of
[14]

Ohio stated: The provision for reconsideration is no part of the Constitution

and is therefore entirely within the control of the General Assembly. Having
made the rule, it should be regarded, but a failure to regard it is not the
subject-matter of judicial inquiry. It has been decided by the courts of last
resort of many states, and also by the United States Supreme Court, that a
legislative act will not be declared invalid for noncompliance with rules.
In State v. Savings Bank, the Supreme Court of Errors of Connecticut
[15]

declared itself as follows: The Constitution declares that each house shall
determine the rules of its own proceedings and shall have all powers
necessary for a branch of the Legislature of a free and independent
state. Rules of proceedings are the servants of the House and subject to its
authority.This authority may be abused, but when the House has acted in a
matter clearly within its power, it would be an unwarranted invasion of the
independence of the legislative department for the court to set aside such
action as void because it may think that the House has misconstrued or
departed from its own rules of procedure.
In McDonald v. State, the Wisconsin Supreme Court held: When it
[16]

appears that an act was so passed, no inquiry will be permitted to ascertain

whether the two houses have or have not complied strictly with their own rules
in their procedure upon the bill, intermediate its introduction and final
passage. The presumption is conclusive that they have done so. We think no
court has ever declared an act of the legislature void for non-compliance with
the rules of procedure made by itself, or the respective branches thereof, and
which it or they may change or suspend at will. If there are any such
adjudications, we decline to follow them.
Schweizer v. Territory is illustrative of the rule in these cases. The 1893
[17]

Statutes of Oklahoma provided for three readings on separate days before a

bill may be passed by each house of the legislature, with the proviso that in
case of an emergency the house concerned may, by two-thirds vote, suspend
the operation of the rule. Plaintiff was convicted in the district court of violation
of a law punishing gambling. He appealed contending that the gambling
statute was not properly passed by the legislature because the suspension of
the rule on three readings had not been approved by the requisite two-thirds
vote. Dismissing this contention, the State Supreme Court of Oklahoma held:

We have no constitutional provision requiring that the legislature should read a bill in
any particular manner. It may, then, read or deliberate upon a bill as it sees fit, either
in accordance with its own rules, or in violation thereof, or without making any
rules. The provision of section 17 referred to is merely a statutory provision for the
direction of the legislature in its action upon proposed measures. It receives its entire
force from legislative sanction, and it exists only at legislative pleasure. The failure of
the legislature to properly weigh and consider an act, its passage through the
legislature in a hasty manner, might be reasons for the governor withholding his
signature thereto; but this alone, even though it is shown to be a violation of a rule
which the legislature had made to govern its own proceedings, could be no reason for
the courts refusing its enforcement after it was actually passed by a majority of each
branch of the legislature, and duly signed by the governor. The courts cannot declare
an act of the legislature void on account of noncompliance with rules of procedure
made by itself to govern its deliberations. McDonald v. State, 80 Wis. 407, 50 N.W.
185; In re Ryan, 80 Wis. 414, 50 N. W. 187; State v. Brown, 33 S.C. 151, 11 S. E.
641; Railway Co. v. Gill, 54 Ark. 101, 15 S. W. 18.

We conclude this survey with the useful summary of the rulings by former
Chief Justice Fernando, commenting on the power of each House of
Congress to determine its rules of proceedings. He wrote:

Rules are hardly permanent in character. The prevailing view is that they are subject
to revocation, modification or waiver at the pleasure of the body adopting them as
they are primarily procedural. Courts ordinarily have no concern with their
observance. They may be waived or disregarded by the legislative
body. Consequently, mere failure to conform to them does not have the effect of
nullifying the act taken if the requisite number of members have agreed to a particular
measure. The above principle is subject, however, to this qualification. Where the
construction to be given to a rule affects persons other than members of the legislative
body the question presented is necessarily judicial in character. Even its validity is
open to question in a case where private rights are involved. [18]

In this case no rights of private individuals are involved but only those of a
member who, instead of seeking redress in the House, chose to transfer the
dispute to this Court. We have no more power to look into the internal
proceedings of a House than members of that House have to look over our
shoulders, as long as no violation of constitutional provisions is shown.
Petitioners must realize that each of the three departments of our
government has its separate sphere which the others may not invade without
upsetting the delicate balance on which our constitutional order rests. Due
regard for the working of our system of government, more than mere comity,
compels reluctance on our part to enter upon an inquiry into an alleged
violation of the rules of the House. We must accordingly decline the invitation
to exercise our power.
Second. Petitioners, quoting former Chief Justice Roberto Concepcions
sponsorship in the Constitutional Commission, contend that under Art. VIII, 1,
nothing involving abuse of discretion [by the other branches of the
government] amounting to lack or excess of jurisdiction is beyond judicial
review. Implicit in this statement of the former Chief Justice, however, is an
[19]

acknowledgment that the jurisdiction of this Court is subject to the case and
controversy requirement of Art. VIII, 5 and, therefore, to the requirement of a
justiciable controversy before courts can adjudicate constitutional questions
such as those which arise in the field of foreign relations. For while Art. VIII, 1
has broadened the scope of judicial inquiry into areas normally left to the
political departments to decide, such as those relating to national security, it [20]

has not altogether done away with political questions such as those which
arise in the field of foreign relations. As we have already held, under Art. VIII,
1, this Courts function

is merely [to] check whether or not the governmental branch or agency has gone
beyond the constitutional limits of its jurisdiction, not that it erred or has a different
view. In the absence of a showing . . . [of] grave abuse of discretion amounting to lack
of jurisdiction, there is no occasion for the Court to exercise its corrective power. . . .
It has no power to look into what it thinks is apparent error.[21]

If, then, the established rule is that courts cannot declare an act of the
legislature void on account merely of noncompliance with rules of procedure
made by itself, it follows that such a case does not present a situation in which
a branch of the government has gone beyond the constitutional limits of its
jurisdiction so as to call for the exercise of our Art. VIII, 1 power.
Third. Petitioners claim that the passage of the law in the House was
railroaded. They claim that Rep. Arroyo was still making a query to the Chair
when the latter declared Rep. Albanos motion approved.
What happened is that, after Rep. Arroyos interpellation of the sponsor of
the committee report, Majority Leader Rodolfo Albano moved for the approval
and ratification of the conference committee report. The Chair called out for
objections to the motion. Then the Chair declared: There being none,
approved. At the same time the Chair was saying this, however, Rep. Arroyo
was asking, What is that . . . Mr. Speaker? The Chair and Rep. Arroyo were
talking simultaneously. Thus, although Rep. Arroyo subsequently objected to
the Majority Leaders motion, the approval of the conference committee report
had by then already been declared by the Chair, symbolized by its banging of
the gavel.
Petitioners argue that, in accordance with the rules of the House, Rep.
Albanos motion for the approval of the conference committee report should
have been stated by the Chair and later the individual votes of the Members
should have been taken.They say that the method used in this case is a
legislators nightmare because it suggests unanimity when the fact was that
one or some legislators opposed the report.
No rule of the House of Representatives has been cited which specifically
requires that in cases such as this involving approval of a conference
committee report, the Chair must restate the motion and conduct a viva voce
or nominal voting. On the other hand, as the Solicitor General has pointed out,
the manner in which the conference committee report on H. No. 7198 was
approved was by no means a unique one. It has basis in legislative practice. It
was the way the conference committee report on the bills which became the
Local Government Code of 1991 and the conference committee report on the
bills amending the Tariff and Customs Code were approved.
In 1957, the practice was questioned as being contrary to the rules of the
House. The point was answered by Majority Leader Arturo M. Tolentino and
his answer became the ruling of the Chair. Mr. Tolentino said:

Mr. Tolentino. The fact that nobody objects means a unanimous action of the
House. Insofar as the matter of procedure is concerned, this has been a precedent since
I came here seven years ago, and it has been the procedure in this House that if
somebody objects, then a debate follows and after the debate, then the voting comes
in.

....

Mr. Speaker, a point of order was raised by the gentleman from Leyte, and I wonder
what his attitude is now on his point of order. I should just like to state that I believe
that we have had a substantial compliance with the Rules. The Rule invoked is not one
that refers to statutory or constitutional requirement, and a substantial compliance, to
my mind, is sufficient. When the Chair announces the vote by saying Is there any
objection? and nobody objects, then the Chair announces The bill is approved on
second reading. If there was any doubt as to the vote, any motion to divide would
have been proper. So, if that motion is not presented, we assume that the House
approves the measure. So I believe there is substantial compliance here, and if
anybody wants a division of the House he can always ask for it, and the Chair can
announce how many are in favor and how many are against. [22]

Indeed, it is no impeachment of the method to say that some other way

would be better, more accurate and even more just. The advantages or
[23]

disadvantages, the wisdom or folly of a method do not present any matter for
judicial consideration. In the words of the U.S. Circuit Court of Appeals, this
[24]

Court cannot provide a second opinion on what is the best procedure.

Notwithstanding the deference and esteem that is properly tendered to
individual congressional actors, our deference and esteem for the institution
as a whole and for the constitutional command that the institution be allowed
to manage its own affairs precludes us from even attempting a diagnosis of
the problem. [25]

Nor does the Constitution require that the yeas and the nays of the
Members be taken every time a House has to vote, except only in the
following instances: upon the last and third readings of a bill, at the request
[26]

of one-fifth of the Members present, and in repassing a bill over the veto of
[27]

the President. Indeed, considering the fact that in the approval of the original
[28]

bill the votes of the Members by yeas and nays had already been taken, it
would have been sheer tedium to repeat the process.
Petitioners claim that they were prevented from seeking reconsideration
allegedly as a result of the precipitate suspension and subsequent
adjournment of the session. It would appear, however, that the session was
[29]

suspended to allow the parties to settle the problem, because when it

resumed at 3:40 p.m. on that day Rep. Arroyo did not say anything
anymore. While it is true that the Majority Leader moved for adjournment until
4 p.m. of Wednesday of the following week, Rep. Arroyo could at least have
objected if there was anything he wanted to say. The fact, however, is that he
did not. The Journal of November 21, 1996 of the House shows:

ADJOURNMENT OF SESSION

On motion of Mr. Albano, there being no objection, the Chair declared the session
adjourned until four oclock in the afternoon of Wednesday, November 27, 1996.

It was 3:40 p.m. Thursday, November 21, 1996. (emphasis added)

This Journal was approved on December 2, 1996. Again, no one objected to
its approval except Rep. Lagman.
It is thus apparent that petitioners predicament was largely of their own
making. Instead of submitting the proper motions for the House to act upon,
petitioners insisted on the pendency of Rep. Arroyos question as an obstacle
to the passage of the bill. But Rep. Arroyos question was not, in form or
substance, a point of order or a question of privilege entitled to
precedence. And even if Rep. Arroyos question were so, Rep. Albanos
[30]

motion to adjourn would have precedence and would have put an end to any
further consideration of the question.[31]

Given this fact, it is difficult to see how it can plausibly be contended that
in signing the bill which became R.A. No. 8240, respondent Speaker of the
House be acted with grave abuse of his discretion. Indeed, the phrase grave
abuse of discretion amounting to lack or excess of jurisdiction has a settled
meaning in the jurisprudence of procedure. It means such capricious and
whimsical exercise of judgment by a tribunal exercising judicial or quasi
judicial power as to amount to lack of power. As Chief Justice Concepcion
himself said in explaining this provision, the power granted to the courts by
Art. VIII, 1 extends to cases where a branch of the government or any of its
officials has acted without jurisdiction or in excess of jurisdiction, or so
capriciously as to constitute an abuse of discretion amounting to excess of
jurisdiction.
[32]

Here, the matter complained of concerns a matter of internal procedure of

the House with which the Court should not be concerned. To repeat, the claim
is not that there was no quorum but only that Rep. Arroyo was effectively
prevented from questioning the presence of a quorum. Rep. Arroyos earlier
motion to adjourn for lack of quorum had already been defeated, as the roll
call established the existence of a quorum. The question of quorum cannot be
raised repeatedly especially when the quorum is obviously present for the
purpose of delaying the business of the House. Rep. Arroyo waived his
[33]

objection by his continued interpellation of the sponsor for in so doing he in

effect acknowledged the presence of a quorum. [34]

At any rate it is noteworthy that of the 111 members of the House earlier
found to be present on November 21, 1996, only the five, i.e., petitioners in
this case, are questioning the manner by which the conference committee
report on H. No. 7198 was approved on that day. No one, except Rep. Arroyo,
appears to have objected to the manner by which the report was approved.
Rep. John Henry Osmea did not participate in the bicameral conference
committee proceedings. Rep. Lagman and Rep. Zamora objected to the
[35]
report but not to the manner it was approved; while it is said that, if voting
[36]

had been conducted, Rep. Taada would have voted in favor of the conference
committee report. [37]

Fourth. Under the enrolled bill doctrine, the signing of H. No. 7198 by the
Speaker of the House and the President of the Senate and the certification by
the secretaries of both Houses of Congress that it was passed on November
21, 1996 are conclusive of its due enactment. Much energy and learning is
devoted in the separate opinion of Justice Puno, joined by Justice Davide, to
disputing this doctrine. To be sure, there is no claim either here or in the
decision in the EVAT cases [Tolentino v. Secretary of Finance] that the
enrolled bill embodies a conclusive presumption. In one case we went [38]

behind an enrolled bill and consulted the Journal to determine whether certain
provisions of a statute had been approved by the Senate.
But, where as here there is no evidence to the contrary, this Court will
respect the certification of the presiding officers of both Houses that a bill has
been duly passed. Under this rule, this Court has refused to determine claims
that the three-fourths vote needed to pass a proposed amendment to the
Constitution had not been obtained, because a duly authenticated bill or
resolution imports absolute verity and is binding on the courts. This Court
[39]

quoted from Wigmore on Evidence the following excerpt which embodies

good, if old-fashioned, democratic theory:

The truth is that many have been carried away with the righteous desire to check at
any cost the misdoings of Legislatures. They have set such store by the Judiciary for
this purpose that they have almost made them a second and higher Legislature. But
they aim in the wrong direction. Instead of trusting a faithful Judiciary to check an
inefficient Legislature, they should turn to improve the Legislature. The sensible
solution is not to patch and mend casual errors by asking the Judiciary to violate legal
principle and to do impossibilities with the Constitution; but to represent ourselves
with competent, careful, and honest legislators, the work of whose hands on the
statute-roll may come to reflect credit upon the name of popular government. [40]

This Court has refused to even look into allegations that the enrolled bill
sent to the President contained provisions which had been surreptitiously
inserted in the conference committee:

[W]here allegations that the constitutional procedures for the passage of bills have not
been observed have no more basis than another allegation that the Conference
Committee surreptitiously inserted provisions into a bill which it had prepared, we
should decline the invitation to go behind the enrolled copy of the bill. To disregard
the enrolled bill rule in such cases would be to disregard the respect due the other two
departments of our government. [41]

It has refused to look into charges that an amendment was made upon the
last reading of a bill in violation of Art. VI, 26(2) of the Constitution that upon
the last reading of a bill, no amendment shall be allowed. [42]

In other cases, this Court has denied claims that the tenor of a bill was
[43]

otherwise than as certified by the presiding officers of both Houses of

Congress.
The enrolled bill doctrine, as a rule of evidence, is well established. It is
cited with approval by text writers here and abroad. The enrolled bill rule
[44]

rests on the following considerations:

. . . As the President has no authority to approve a bill not passed by Congress, an

enrolled Act in the custody of the Secretary of State, and having the official
attestations of the Speaker of the House of Representatives, of the President of the
Senate, and of the President of the United States, carries, on its face, a solemn
assurance by the legislative and executive departments of the government, charged,
respectively, with the duty of enacting and executing the laws, that it was passed by
Congress. The respect due to coequal and independent departments requires the
judicial department to act upon that assurance, and to accept, as having passed
Congress, all bills authenticated in the manner stated; leaving the court to determine,
when the question properly arises, whether the Act, so authenticated, is in conformity
with the Constitution. [45]

To overrule the doctrine now, as the dissent urges, is to repudiate the

massive teaching of our cases and overthrow an established rule of evidence.
Indeed, petitioners have advanced no argument to warrant a departure
from the rule, except to say that, with a change in the membership of the
Court, the three new members may be assumed to have an open mind on the
question of the enrolled bill rule. Actually, not three but four (Cruz, Feliciano,
Bidin, and Quiason, JJ.) have departed from the Court since our decision in
the EVAT cases and their places have since been taken by four new
members (Francisco, Hermosisima, Panganiban, and Torres, JJ.) Petitioners
are thus simply banking on the change in the membership of the Court.
Moreover, as already noted, the due enactment of the law in question is
confirmed by the Journal of the House of November 21, 1996 which shows
that the conference committee report on H. No. 7198, which became R.A. No.
8240, was approved on that day. The keeping of the Journal is required by the
Constitution. Art. VI, 16(4) provides:
Each House shall keep a Journal of its proceedings, and from time to time publish the
same, excepting such parts as may, in its judgment, affect national security; and
the yeas and nays on any question shall, at the request of one-fifth of the Members
present, be entered in the Journal.

Each House shall also keep a Record of its proceedings.

The Journal is regarded as conclusive with respect to matters that are

required by the Constitution to be recorded therein. With respect to other
[46]

matters, in the absence of evidence to the contrary, the Journals have also
been accorded conclusive effect. Thus, in United States v. Pons, this Court [47]

spoke of the imperatives of public policy for regarding the Journals as public
memorials of the most permanent character, thus: They should be public,
because all are required to conform to them; they should be permanent, that
rights acquired today upon the faith of what has been declared to be law shall
not be destroyed tomorrow, or at some remote period of time, by facts resting
only in the memory of individuals. As already noted, the bill which became
R.A. No. 8240 is shown in the Journal. Hence its due enactment has been
duly proven.
___________________
It would be an unwarranted invasion of the prerogative of a coequal
department for this Court either to set aside a legislative action as void
because the Court thinks the House has disregarded its own rules of
procedure, or to allow those defeated in the political arena to seek a rematch
in the judicial forum when petitioners can find their remedy in that department
itself. The Court has not been invested with a roving commission to inquire
into complaints, real or imagined, of legislative skullduggery. It would be
acting in excess of its power and would itself be guilty of grave abuse of its
discretion were it to do so.The suggestion made in a case may instead[48]

appropriately be made here: petitioners can seek the enactment of a new law
or the repeal or amendment of R.A. No. 8240. In the absence of anything to
the contrary, the Court must assume that Congress or any House thereof
acted in the good faith belief that its conduct was permitted by its rules, and
deference rather than disrespect is due the judgment of that body. [49]

WHEREFORE, the petition for certiorari and prohibition is DISMISSED.

SO ORDERED.
Narvasa, C.J., Padilla, Melo, Kapunan, Francisco, and Hermosisima,
Jr., JJ., concur.
Romero, J., has a separate opinion.
 Puno, J., has a separate concurring and dissenting opinion.
Davide, Jr., J., joined the concurring and dissenting opinion of Justice
Puno.
Vitug, J., has a separate concurring opinion.
Regalado, J., in the result.
Bellosillo, J., took no part due to relationship with parties.
Panganiban, J., took no part. Former counsel of a party.
Torres, Jr., J., on leave during the deliberations.
epublic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-17144 October 28, 1960

SERGIO OSMEA, JR., petitioner,

vs.
SALIPADA K. PENDATUN, LEON Z. GUINTO, JR., VICENTE L. PERALTA, FAUSTINO TOBIA,
LORENZO G. TEVES, JOPSE J. ROY, FAUSTINO DUGENIO, ANTONIO Y. DE PIO, BENJAMIN
T. LIGOT, PEDRO G. TRONO, FELIPE ABRIGO, FELIPE S. ABELEDA, TECLA SAN ANDRES
ZIGA, ANGEL B. FERNADEZ, and EUGENIO S. BALTAO, in their capacity as members of the
Special Committee created by House Resolution No. 59,respondents.

Antonio Y. de Pio in his own behalf.

F. S. Abeleda, A. b. Fernandez. E. S. Baltao and Tecla San Andres Ziga in their own behalf.
C. T. Villareal and R. D. Bagatsing as amici curiae.

BENGZON, J.:

On July 14, 1960, Congressman Sergio Osmea, Jr., submitted to this Court a verified petition for
"declaratory relief, certiorari and prohibition with preliminary injunction" against Congressman
Salapida K. Pendatun and fourteen other congressmen in their capacity as members of the Special
Committee created by House Resolution No. 59. He asked for annulment of such Resolution on the
ground of infringenment of his parliamentary immunity; he also asked, principally, that said members
of the special committee be enjoined from proceeding in accordance with it, particularly the portion
authorizing them to require him to substantiate his charges against the President with the admonition
that if he failed to do so, he must show cause why the House should not punish him.

The petition attached a copy of House Resolution No. 59, the pertinent portions of which reads as
follows:

WHEREAS, on the 23rd day of June, 1960 , the Honorable Sergio Osmea, Jr., Member of
the House of Representatives from the Second District of the province of Cebu, took the floor
of this chamber on the one hour privilege to deliver a speech, entitled 'A Message to Garcia;

WHEREAS, in the course of said speech, the Congressman from the Second District of
Cebu stated the following:.
 xxx xxx xxx

The people, Mr. President, have been hearing of ugly reports that under your unpopular
administration the free things they used to get from the government are now for sale at
premium prices. They say that even pardons are for sale, and that regardless of the gravity
or seriousness of a criminal case, the culprit can always be bailed out forever from jail as
long as he can come across with a handsome dole. I am afraid, such an anomalous situation
would reflect badly on the kind of justice that your administration is dispensing. . . . .

WHEREAS, the charges of the gentleman from the Second District of Cebu, if made
maliciously or recklessly and without basis in truth and in fact, would constitute a serious
assault upon the dignity and prestige of the Office of 37 3 the President, which is the one
visible symbol of the sovereignty of the Filipino people, and would expose said office to
contempt and disrepute; . . . .

Resolved by the House of Representative, that a special committee of fifteen Members to be

appointed by the Speaker be, and the same hereby is, created to investigate the truth of the
charges against the President of the Philippines made by Honorable Sergio Osmea, Jr., in
his privilege speech of June 223, 1960, and for such purpose it is authorized to summon
Honorable Sergio Osmea, jr., to appear before it to substantiate his charges, as well as to
issue subpoena and/or subpoena duces tecum to require the attendance of witnesses and/or
the production of pertinent papers before it, and if Honorable Sergio Osmea, Jr., fails to do
so to require him to show cause why he should not be punished by the House. The special
committee shall submit to the House a report of its findings and recommendations before the
adjournment of the present special session of the Congress of the Philippines.

In support of his request, Congressman Osmea alleged; first, the Resolution violated his
constitutional absolute parliamentary immunity for speeches delivered in the House; second, his
words constituted no actionable conduct; and third, after his allegedly objectionable speech and
words, the House took up other business, and Rule XVII, sec. 7 of the Rules of House provides that
if other business has intervened after the member had uttered obnoxious words in debate, he shall
not be held to answer therefor nor be subject to censure by the House.

Although some members of the court expressed doubts of petitioner's cause of action and the
Court's jurisdiction, the majority decided to hear the matter further, and required respondents to
answer, without issuing any preliminary injunction. Evidently aware of such circumstance with its
implications, and pressed for time in view of the imminent adjournment of the legislative session, the
special committee continued to perform its talk, and after giving Congressman Osmea a chance to
defend himself, submitted its reports on July 18, 1960, finding said congressman guilty of serious
disorderly behaviour; and acting on such report, the House approved on the same daybefore
closing its sessionHouse Resolution No. 175, declaring him guilty as recommended, and
suspending him from office for fifteen months.

Thereafter, on July 19, 1960, the respondents (with the exception of Congressmen De Pio, Abeleda,
San Andres Ziga, Fernandez and Balatao)1 filed their answer, challenged the jurisdiction of this
Court to entertain the petition, defended the power of Congress to discipline its members with
suspension, upheld a House Resolution No. 175 and then invited attention to the fact that Congress
having ended its session on July 18, 1960, the Committeewhose members are the sole
respondentshad thereby ceased to exist.

There is no question that Congressman Osmea, in a privilege speech delivered before the House,
made the serious imputations of bribery against the President which are quoted in Resolution No. 59
and that he refused to produce before the House Committee created for the purpose, evidence to
substantiate such imputations. There is also no question that for having made the imputations and
for failing to produce evidence in support thereof, he was, by resolution of the House, suspended
from office for a period of fifteen months for serious disorderly behaviour.

Resolution No. 175 states in part:

WHEREAS, the Special Committee created under and by virtue of Resolution No. 59,
adopted on July 8, 1960, found Representative Sergio Osmea, Jr., guilty of serious
disorderly behaviour for making without basis in truth and in fact, scurrilous, malicious,
reckless and irresponsible charges against the President of the Philippines in his privilege
speech of June 23, 1960; and

WHEREAS, the said charges are so vile in character that they affronted and degraded the
dignity of the House of Representative: Now, Therefore, be it

RESOLVED by the House of Representatives. That Representative Sergio Osmea, Jr., be,
as he hereby is, declared guilty of serious disorderly behaviour; and . . .

As previously stated, Osmea contended in his petition that: (1) the Constitution gave him complete
parliamentary immunity, and so, for words spoken in the House, he ought not to be questioned; (20
that his speech constituted no disorderly behaviour for which he could be punished; and (3)
supposing he could be questioned and discipline therefor, the House had lost the power to do so
because it had taken up other business before approving House Resolution No. 59. Now, he takes
the additional position (4) that the House has no power, under the Constitution, to suspend one of its
members.

Section 15, Article VI of our Constitution provides that "for any speech or debate" in Congress, the
Senators or Members of the House of Representative "shall not be questioned in any other place."
This section was taken or is a copy of sec. 6, clause 1 of Art. 1 of the Constitution of the United
States. In that country, the provision has always been understood to mean that although exempt
from prosecution or civil actions for their words uttered in Congress, the members of Congress may,
nevertheless, be questioned in Congress itself. Observe that "they shall not be questioned in any
other place" than Congress.

Furthermore, the Rules of the House which petitioner himself has invoked (Rule XVII, sec. 7),
recognize the House's power to hold a member responsible "for words spoken in debate."

Our Constitution enshrines parliamentary immunity which is a fundamental privilege cherished in

every legislative assembly of the democratic world. As old as the English Parliament, its purpose "is
to enable and encourage a representative of the public to discharge his public trust with firmness
and success" for "it is indispensably necessary that he should enjoy the fullest liberty of speech, and
that he should be protected from the resentment of every one, however powerful, to whom exercise
of that liberty may occasion offense."2 Such immunity has come to this country from the practices of
Parliamentary as construed and applied by the Congress of the United States. Its extent and
application remain no longer in doubt in so far as related to the question before us. It guarantees the
legislator complete freedom of expression without fear of being made responsible in criminal or civil
actions before the courts or any other forum outside of the Congressional Hall. But is does not
protect him from responsibility before the legislative body itself whenever his words and conduct are
considered by the latter disorderly or unbecoming a member thereof. In the United States Congress,
Congressman Fernando Wood of New York was censured for using the following language on the
floor of the House: "A monstrosity, a measure the most infamous of the many infamous acts of the
infamous Congress." (Hinds' Precedents, Vol. 2,. pp. 798-799). Two other congressmen were
censured for employing insulting words during debate. (2 Hinds' Precedents, 799-801). In one case,
a member of Congress was summoned to testify on a statement made by him in debate, but invoked
his parliamentary privilege. The Committee rejected his plea. (3 Hinds' Precedents 123-124.)

For unparliamentary conduct, members of Parliament or of Congress have been, or could be

censured, committed to prison3, even expelled by the votes of their colleagues. The appendix to this
decision amply attest to the consensus of informed opinion regarding the practice and the traditional
power of legislative assemblies to take disciplinary action against its members, including
imprisonment, suspension or expulsion. It mentions one instance of suspension of a legislator in a
foreign country.

And to cite a local illustration, the Philippine Senate, in April 1949, suspended a senator for one
year.

Needless to add, the Rules of Philippine House of Representatives provide that the parliamentary
practices of the Congress of the United States shall apply in a supplementary manner to its
proceedings.

This brings up the third point of petitioner: the House may no longer take action against me, he
argues, because after my speech, and before approving Resolution No. 59, it had taken up other
business. Respondents answer that Resolution No. 59 was unanimously approved by the House,
that such approval amounted to a suspension of the House Rules, which according to standard
parliamentary practice may done by unanimous consent.

Granted, counters the petitioner, that the House may suspended the operation of its Rules, it may
not, however, affect past acts or renew its rights to take action which had already lapsed.

The situation might thus be compared to laws4 extending the period of limitation of actions and
making them applicable to actions that had lapsed. The Supreme Court of the United States has
upheld such laws as against the contention that they impaired vested rights in violation of the
Fourteenth Amendment (Campbell vs. Holt, 115 U. S. 620). The states hold divergent views. At any
rate, court are subject to revocation modification or waiver at the pleasure of the body adopting
them."5 And it has been said that "Parliamentary rules are merely procedural, and with their
observancem, the courts have no concern. They may be waived or disregarded by the legislative
body." Consequently, "mere failure to conform to parliamentary usage will not invalidate the action
(taken by a deliberative body) when the requisited number of members have agreed to a particular
measure."6

The following is quoted from a reported decision of the Supreme court of Tennessee:

The rule here invoked is one of parliamentary procedure, and it is uniformly held that it is
within the power of all deliberative bodies to abolish, modify, or waive their own rules of
procedure, adopted for the orderly con duct of business, and as security against hasty
action. (Bennet vs. New Bedford, 110 Mass, 433; Holt vs.Somerville, 127 Mass. 408, 411;
City of Sadalia vs. Scott, 104 Mo. App. 595, 78 S. W. 276; Ex parte Mayor, etc., of Albany,
23 Wend. [N. Y.] 277, 280; Wheelock vs. City of Lowell, 196 Mass. 220, 230. 81 N. e. 977,
124 Am. St. Rep. 543, 12 Ann. Cas. 1109; City of Corinth vs. Sharp, 107 Miss. 696, 65 So.
888; McGraw vs.Whitson, 69 Iowa, 348, 28 N. W. 632; Tuell vs. Meacham Contracting Co.
145 Ky. 181, 186, 140 S. W. Ann. Cas. 1913B, 802.) [Takenfrom the case of
Rutherford vs. City of Nashville, 78 south Western Reporter, p. 584.]
It may be noted in this connection, that in the case of Congressman Stanbery of Ohio, who insulted
the Speaker, for which Act a resolution of censure was presented, the House approved the
resolution, despite the argument that other business had intervened after the objectionable remarks.
(2 Hinds' Precedents pp. 799-800.)

On the question whether delivery of speeches attacking the Chief Executive constitutes disorderly
conduct for which Osmea may be discipline, many arguments pro and con have been advanced.
We believe, however, that the House is the judge of what constitutes disorderly behaviour, not only
because the Constitution has conferred jurisdiction upon it, but also because the matter depends
mainly on factual circumstances of which the House knows best but which can not be depicted in
black and white for presentation to, and adjudication by the Courts. For one thing, if this Court
assumed the power to determine whether Osmea conduct constituted disorderly behaviour, it
would thereby have assumed appellate jurisdiction, which the Constitution never intended to confer
upon a coordinate branch of the Government. The theory of separation of powers fastidiously
observed by this Court, demands in such situation a prudent refusal to interfere. Each department, it
has been said, had exclusive cognizance of matters within its jurisdiction and is supreme within its
own sphere. (Angara vs. Electoral Commission, 63 Phil., 139.)

SEC. 200. Judicial Interference with Legislature. The principle is well established that the
courts will not assume a jurisdiction in any case amount to an interference by the judicial
department with the legislature since each department is equally independent within the
power conferred upon it by the Constitution. . . . .

The general rule has been applied in other cases to cause the courts to refuse to intervene in
what are exclusively legislative functions. Thus, where the stated Senate is given the power
to example a member, the court will not review its action or revise even a most arbitrary or
unfair decision. (11 Am. Jur., Const. Law, sec. p. 902.) [Emphasis Ours.].

The above statement of American law merely abridged the landmark case of Clifford vs. French.7 In
1905, several senators who had been expelled by the State Senate of California for having taken a
bribe, filed mandamus proceeding to compel reinstatement, alleging the Senate had given them no
hearing, nor a chance to make defense, besides falsity of the charges of bribery. The Supreme
Court of California declined to interfere , explaining in orthodox juristic language:

Under our form of government, the judicial department has no power to revise even the most
arbitrary and unfair action of the legislative department, or of either house thereof, taking in
pursuance of the power committed exclusively to that department by the Constitution. It has
been held by high authority that, even in the absence of an express provision conferring the
power, every legislative body in which is vested the general legislative power of the state
has the implied power to expel a member for any cause which it may deem sufficient.
In Hiss. vs. Barlett, 3 Gray 473, 63 Am. Dec. 768, the supreme court of Mass. says, in
substance, that this power is inherent in every legislative body; that it is necessary to the to
enable the body 'to perform its high functions, and is necessary to the safety of the state;'
'That it is a power of self-protection, and that the legislative body must necessarily be the
sole judge of the exigency which may justify and require its exercise. '. . . There is no
provision authority courts to control, direct, supervise, or forbid the exercise by either house
of the power to expel a member. These powers are functions of the legislative department
and therefore, in the exercise of the power this committed to it, the senate is supreme. An
attempt by this court to direct or control the legislature, or either house thereof, in the
exercise of the power, would be an attempt to exercise legislative functions, which it is
expressly forbidden to do.
We have underscored in the above quotation those lines which in our opinion emphasize the
principles controlling this litigation. Although referring to expulsion, they may as well be applied to
other disciplinary action. Their gist as applied to the case at bar: the House has exclusive power; the
courts have no jurisdiction to interfere.

Our refusal to intervene might impress some readers as subconscious hesitation due to discovery of
impermissible course of action in the legislative chamber. Nothing of that sort: we merely refuse to
disregard the allocation of constitutional functions which it is our special duty to maintain. Indeed, in
the interest of comity, we feel bound to state that in a conscientious survey of governing principles
and/or episodic illustrations, we found the House of Representatives of the United States taking the
position upon at least two occasions, that personal attacks upon the Chief Executive constitute
unparliamentary conduct or breach of orders.8 And in several instances, it took action against
offenders, even after other business had been considered.9

Petitioner's principal argument against the House's power to suspend is the Alejandrino precedent.
In 1924, Senator Alejandrino was, by resolution of Senate, suspended from office for 12 months
because he had assaulted another member of the that Body or certain phrases the latter had uttered
in the course of a debate. The Senator applied to this Court for reinstatement, challenging the
validity of the resolution. Although this Court held that in view of the separation of powers, it had no
jurisdiction to compel the Senate to reinstate petitioner, it nevertheless went on to say the Senate
had no power to adopt the resolution because suspension for 12 months amounted to removal, and
the Jones Law (under which the Senate was then functioning) gave the Senate no power to remove
an appointive member, like Senator Alejandrino. The Jones Law specifically provided that "each
house may punish its members for disorderly behaviour, and, with the concurrence of two-thirds
votes, expel an elective member (sec. 18). Note particularly the word "elective."

The Jones Law, it mist be observed, empowered the Governor General to appoint "without consent
of the Senate and without restriction as to residence senators . . . who will, in his opinion, best
represent the Twelfth District." Alejandrino was one appointive Senator.

It is true, the opinion in that case contained an obiter dictum that "suspension deprives the electoral
district of representation without that district being afforded any means by which to fill that vacancy."
But that remark should be understood to refer particularly to the appointive senator who was then
the affected party and who was by the same Jones Law charged with the duty to represent the
Twelfth District and maybe the view of the Government of the United States or of the Governor-
General, who had appointed him.

It must be observed, however, that at that time the Legislature had only those power which were
granted to it by the Jones Law10; whereas now the Congress has the full legislative powers and
preprogatives of a sovereign nation, except as restricted by the Constitution. In other words, in the
Alejandrino case, the Court reached the conclusion that the Jones Law did not give the Senate the
power it then exercisedthe power of suspension for one year. Whereas now, as we find, the
Congress has the inherent legislative prerogative of suspension11 which the Constitution did not
impair. In fact, as already pointed out, the Philippine Senate suspended a Senator for 12 months in
1949.

The Legislative power of the Philippine Congress is plenary, subject only to such limitations
are found in the Republic's Constitution. So that any power deemed to be legislative by
usage or tradition, is necessarily possessed by the Philippine Congress, unless the
Constitution provides otherwise. (Vera vs. Avelino, 77 Phil., 192, 212 .)
In any event, petitioner's argument as to the deprivation of the district's representation can not be
more weightly in the matter of suspension than in the case of imprisonment of a legislator; yet
deliberative bodies have the power in proper cases, to commit one of their members to jail.12

Now come questions of procedure and jurisdiction. the petition intended to prevent the Special
Committee from acting tin pursuance of House Resolution No. 59. Because no preliminary injunction
had been issued, the Committee performed its task, reported to the House, and the latter approved
the suspension order. The House had closed it session, and the Committee has ceased to exist as
such. It would seem, therefore, the case should be dismissed for having become moot or
academic.13 Of course, there is nothing to prevent petitioner from filing new pleadings to include all
members of the House as respondents, ask for reinstatement and thereby to present a justiciable
cause. Most probable outcome of such reformed suit, however, will be a pronouncement of lack of
jurisdiction, as in Vera vs. Avelino14 and Alejandrino vs. Qeuaon.15

At any rate, having perceived suitable solutions to the important questions of political law, the Court
thought it proper to express at this time its conclusions on such issues as were deemed relevant and
decisive.

ACCORDINGLY, the petition has to be, and is hereby dismissed. So ordered.

Paras, C. J., Bautista Angelo, Concepcion, Barrera, Gutierrez David, Paredes, and Dizon,
JJ., concur.

Separate Opinions

REYES, J. B. L., J., dissenting:

I concur with the majority that the petition filed by Congressman Osmea, Jr. does not make out a
case either for declaratory judgment or certiorari, since this Court has no original jurisdiction over
declaratory judgment proceedings, and certiorari is available only against bodies exercising judicial
or quasi-judicial powers. The respondent committee, being merely fact finding, was not properly
subject to certiorari.

I submit, however, that Congressman Osmea was entitled to invoke the Court's jurisdiction on his
petition for a writ of prohibition against the committee, in so far as House Resolution No. 59 (and its
sequel, Resolution No. 175) constituted an unlawful attempt to divest him of an immunity from
censure or punishment, an immunity vested under the very Rules of the House of Representatives.

House Rule XVII, on Decorum and Debates, in its section V, provides as follows:

If it is requested that a Member be called to order for words spoken in debate, the Member
making such request shall indicate the words excepted to, and they shall be taken down in
writing by the Secretary and read aloud to the House; but the Member who uttered them
shall not be held to answer, nor be subject to the censure of the House therefor, if further
debate or other business has intervened.

Now, it is not disputed that after Congressman Osmea had delivered his speech and before the
House adopted, fifteen days later, the resolution (No. 59) creating the respondent Committee and
empowering it to investigate and recommend proper action in the case, the House had acted on
other matters and debated them. That being the case, the Congressman, even before the resolution
was adopted, had ceased to be answerable for the words uttered by him in his privilege speech. By
the express wording of the Rules, he was no longer subject to censure or disciplinary action by the
House. Hence, the resolution, in so far as it attempts to divest him of the immunity so acquired and
subject him to discipline and punishment, when he was previously not so subject, violates the
constitutional inhibition against ex post facto legislation, and Resolution Nos. 59 and 175 are legally
obnoxious and invalid on that score. The rule is well established that a law which deprives an
accused person of any substantial right or immunity possessed by him before its passage is ex post
facto as to prior offenses (Cor. Jur. vol. 16-A, section 144, p. 153; People vs. Mc Donnell, 11 Fed.
Supp. 1015; People vs. Talklington, 47 Pac. 2d 368; U. S. vs.Garfinkel, 69 F. Supp. 849).

The foregoing also answer the contention that since the immunity was but an effect of section 7 of
House Rule XVII, the House could, at any time, remove it by amending those Rules, and
Resolutions Nos. 59 and 175 effected such an amendment by implication. the right of the House to
amend its Rules does not carry with it the right to retroactive divest the petitioner of an immunity he
had already acquired. The Bill of Rights is against it.

It is contended that as the liability for his speech attached when the Congressman delivered it, the
subsequent action of the House only affected the procedure for dealing with that liability. But
whatever liability Congressman Sergio Osmea, Jr. then incurred was extinguished when the House
thereafter considered other business; and this extinction is a substantive right that can not be
subsequently torn away to his disadvantage. On an analogous issue, this Court, in People vs. Parel,
44 Phil., 437 has ruled:

In regards to the point that the subject of prescription of penalties and of penal actions
pertains to remedial and not substantive law, it is to be observed that in the Spanish legal
system, provisions for limitation or prescription of actions are invariably classified as
substantive and not as remedial law; we thus find the provisions for the prescription of
criminal actions in the Penal Code and not in the 'Ley de Enjuiciamiento Criminal.' This is in
reality a more logical law. In criminal cases prescription is not, strictly speaking, a matter of
procedure; it bars or cuts off the right to punish the crime and consequently, goes directly to
the substance of the action. . . . (Emphasis supplied.).

I see no substantial difference, from the standpoint of the constitutional prohibition against ex post
facto laws, that the objectionable measures happen to be House Resolutions and not statutes. In so
far as the position of petitioner Osmea is concerned, the essential point is that he is being
subjected to a punishment to which he was formerly not amenable. And while he was only meted out
a suspension of privileges that suspension is as much a penalty as imprisonment or a fine, which the
House could have inflicted upon him had it been so minded. Such punitive action is violative of the
spirit, if not of the letter, of the constitutional provision against ex post facto legislation. Nor is it
material that the punishment was inflicted in the exercise of disciplinary power. "The ex post
facto effect of a law," the Federal Supreme Court has ruled, "can not be evaded by giving civil form
to that which is essentially criminal" (Burgess vs. Salmon, 97 L. Ed. [U. S.] 1104, 1106;
Cummings vs. MIssouri, 18 L. Ed. 276).

The plain purpose of the immunity provided by the House rules is to protect the freedom of action of
its members and to relieve them from the fear of disciplinary action taken upon second thought, as a
result of political convenience, vindictiveness, or pressures. it is unrealistic to overlook that, without
the immunity so provided, no member of Congress can remain free from the haunting fear that his
most innocuous expressions may at any time afterwards place him in jeopardy of punishment
whenever a majority, however transient, should feel that the shifting sands of political expediency so
demand. A rule designed to assure that members of the House of the House may freely act as their
conscience and sense of duty should dictate complements the parliamentary immunity from outside
pressure enshrined in our Constitution, and is certainly deserving of liberal interpretation and
application.

The various precedents, cited in the majority opinion, as instances of disciplinary taken
notwithstanding intervening business, are not truly applicable. Of the five instances cited by
Deschkler (in his edition of Jefferson's Manual), the case of Congressman Watson of Georgia
involved also printed disparaging remarks by the respondent (III Hinds' Precedents, sec. 2637), so
that the debate immunity rule afforded no defense; that of Congressmen Weaver and Sparks was
one of censure for actual disorderly conduct (II Hinds, sec. 1657); while the cases of Congressmen
Stanbery of Ohio, Alex Long of Ohio, and of Lovell Rousseau of Kentucky (II Hinds, sec. 1248, 1252
and 1655) were decided under Rule 62 of the U. s. House of Representatives as it stood before the
1880 amendments, and was differently worded. Thus, in the Rousseau case, the ruling of Speaker
Colfax was to the following effect (II Hinds' Precedents, page 1131):

This sixty-second rule is divided in the middle a semicolon, and the Chair asks the attention
of the gentleman from Iowa (Mr. Wilson) top the language of that rule, as it settles the whole
question:

62. If a Member be called to order for words spoken in debate, the person calling him to be
order shall repeat the words excerpted to

That is, the "calling to order" is "excepting" to words spoken in debate "and they shall be
taken done in writing at the Clerk's table; and no Member shall be held to answer, or be
subject to the censure of the House, for words spoken, or other business has intervened,
after the words spoken, and before exception to them shall have been taken.

The first part of this rule declares that "calling to order" is "excepting to words spoken in
debate." the second part of the rule declares that a Member shall not be held subject to
censure for words spoken in debate if other business has intervened after the words have
been spoken and before "exception" to them has been taken. Exception to the words of the
gentleman from Iowa (Mr. Grinnell) was taken by the gentleman from Illinois (Mr. Harding),
the gentleman from Massachusetts (Mr. Banks), the gentleman from Kentucky (Mr.
Rosseau), and also by the Speaker of the House, as the records of the Congressional Globe
will show. The distinction is obvious between the two parts of the rule. In the first part it
speaks of a Member excepting to language of another and having the words taken down. In
the last part of the rule it says he shall not be censured thereafter unless exception to his
words were taken; but it omits to add as an condition that words must also have been taken
down. The substantial point, indeed the only point, required in the latter part of the rule is,
that exception to the objectionable words must have taken.

The difference between the Rules as invoked in these cases and the Rules of our House of
Representatives is easily apparent. As Rule 62 of the United States House of Representatives stood
before 1880, all that was required to preserve the disciplinary power of the Hose was that exception
should have been taken to the remarks on the floor before further debate or other business
intervened. Under the rules of the Philippines House of Representatives, however, the immunity
becomes absolute if other debate or business has taken place before the motion for censure is
made, whether or not exceptions or point of order have been made to the remarks complained of at
the time they were uttered.
While it is clear that the parliamentary immunity established in Article VI, section 15 of our
Constitution does not bar the members being questioned and disciplined by Congress itself fro
remarks made on the floor, that disciplinary power does not, as I have noted, include the right to
retroactively amend the rules so as to divest a member of an immunity already gained. And if Courts
can shield an ordinary citizen from the effects of ex post facto legislation, I see no reason why a
member of Congress should be deprived of the same protection. Surely membership in the
Legislature does not mean forfeiture of the liberties enjoyed by the individual citizen.

The Constitution empowers each house to determine its rules of proceedings. If may not by
its rules ignore constitutional restraint or violate fundamental rights and there should be a
reasonable relation between the mode or method of proceeding established by the rule and
the result which is sought to be attained. But within these limitation all matters of method are
open to the determination of the House, and it is no impeachment of the rule to say that
some other way would be better, more accurate or even more just. (U. S. vs. Ballin, Joseph
& Co., 36 Law Ed., 324-325.)

Court will not interfere with the action of the state senate in reconsideration its vote on a
resolution submitting an amendment to the Constitution, where its action was in compliance
with its own rules, and there was no constitutional provision to the contrary.
(Crawford vs. Gilchrist, 64 Fla. 41, 59 So. 963) (Emphasis supplied.).

Finally, that this Court possesses no power to direct or compel the Legislature to act in any specified
manner, should not deter it from recognizing and declaring the unconstitutionality and nullify of the
questioned resolutions and of all action that has been disbanded after the case was filed, the basic
issues remain so important as to require adjudication by this Court.

LABRADOR, J., dissenting:

I fully concur in the above dissent Mr. Justice J. B. L. Reyes, Reyes, and I venture to add:

Within a constitutional government and in a regime which purports to be one of law, where law is
supreme, even the Congress in the exercise of the power conferred upon it to discipline its
members, must follow the rules and regulation that it had itself promulgated for its guidance and for
that of its members. The rules in force at the time Congressman Osmea delivered the speech
declared by the House to constitutes a disorderly conduct provides:

. . . but the Member who uttered them shall not be held to answer, nor be subject to the
censure of the House therefor, if further debate or other business has intervened. (Rule XVII,
Sec. 7, Rules, House of Representatives.)

Congressman Osmea delivered the speech in question on June 23, 1960. It was only on July 8, or
15 days after June 23, 1060 when the House created the committee that would investigated him. For
fully 15 days the House took up other matters. All that was done, while the speech was being
delivered, was to have certains portions thereof deleted. I hold that pursuant to its own Rules the
House may no longer punish Congressman Osmea for the delivered fifteen days before.

The fact that no action was promptly taken to punish Congressman Osmea immediately after its
delivery, except to have some part of the speech deleted, show that the members of the House did
not consider Osmea's speech a disorderly conduct. The idea to punish Congressman Osmea,
which came 15 days after, was, therefore, an afterthought. It is, therefore, clear that Congressman
Osmea is being made to answer for an act, after the time during which he could be punished
therefor had lapsed.

The majority opinion holds that the House can amend its rules any time. We do not dispute this
principle, but we hold that the House may not do so in utter disregard of the fundamental principle of
law that an amendment takes place only after its approval, or, as in this case, to the extent of
punishing an offense after the time to punishing an had elapsed. Since the rule, that a member can
be punished only before other proceedings have intervened, was in force at the time Congressman
Osmea delivered his speech, the House may not ignore said rule. It is said in the majority opinion
that the rule limiting the period for imposition of a penalty for a speech to the day it was made, is
merely one of procedure. With due respect to the majority, we do not think that it is merely a rule of
procedure; we believe it actually is a limitation of the time in which the House may take punitive
action against an offending member; it is alienation (in reference to time) on the liability to
punishment. As Mr. Justice J.B.L., Reyes points out, the rule is substantive, not merely a procedural
principle, and may not be ignored when invoked.

If this Government of laws and not of men, then the House should observe its own rule and not
violate it by punishing a member after the period for indictment and punishment had already passed.
Not because the subject of the Philippic is no less than the Chief Magistrate of the nation should the
rule of the House be ignored by itself. It is true that our Government is based on the principle of
separation of powers between the three branches thereof. I also agree to the corollary proposition
that this Court should not interfere with the legislature in the manner it performs its functions; but I
also hold that the Court cannot abandon its duty to pronounce what the law is when any of its (the
House) members, or any humble citizen, invokes the law.

Congressman Osmea had invoked the protection of a rule of the House. I believe it is our bounden
duty to state what the rule being invoked by him is, to point out the fact that the rule is being violated
in meting out punishment for his speech; we should not shirk our responsibility to declare his rights
under the rule simply on the board excuse of separation of powers. Even the legislature may not
ignore the rule it has promulgated for the government of the conduct of its members, and the fact
that a coordinate branches of the Government is involved, should not deter us from performing our
duty. We may not possess the power to enforce our opinion if the House chooses to disregard the
same. In such case the members thereof stand before the bar of public opinion to answer for their
act in ignoring what they themselves have approved as their norm of conduct.

Let it be clearly understood that the writer of this dissent personally believe that vitreous attacks
against the Chief Executive, or any official or citizen for that matter, should be condemned. But
where the Rules, promulgated by the House itself, fix the period during which punishment may be
meted out, said Rules should be enforced regardless of who may be prejudicated thereby. Only in
that way may the supermacy of the law be maintained.

Footnotes

WILLIAM COFFIN v. MICAJAH COFFIN

4 Mass. 1
March, 1808
Suffolk County
This Court is competent to decide on a plea of privilege pleaded by a member of the House of
Representatives, in bar to an action for slander.

The freedom of deliberation, speech, and debate, secured by the declaration of rights to each
house of the legislature, is rather the privilege of the individual members, than of the house as an
organized body; being derived from the will of the people, the members are entitled to it, even
against the will of the house

The article securing this freedom ought to be construed liberally, that its full design may be
answered; and it extends to every act resulting from the nature of the member's office, and done
in the execution of it, and exempts him from prosecution for every thing said or done by him, as
a representative, whether according to the rules of the house or not.

So if he is sitting on a committee in a lobby, or in a convention of the two houses out of the

representatives' chamber.

A representative is not answerable in a prosecution for defamation, if the words charged were
uttered in the execution of his official duty, although spoken maliciously; nor if not uttered in the
execution of his official duty, and not maliciously, or with intent to defame.

When, in an action for a tort, the damages found by the jury are so great, that it may be
reasonably presumed that the jury, in assessing them, did not exercise a sound discretion, but
were influenced by passion, partiality, prejudice, or corruption, the Court may set aside the
verdict, and award a new trial.

This action was originally commenced at the Court of Common Pleas for the county of
Nantucket, to which both the parties belong, October term, 1805. The declaration is in case for
slander, and after the usual allegations respecting

Page 2

the plaintiff's good name, fame, and reputation, charges the defendant with speaking and
publishing, in the hearing of Benjamin Russell and other good citizens of the commonwealth, of
and concerning the plaintiff, the following false, feigned, scandalous, malicious, and opprobrious
words, viz.: "That convict," thereby meaning that the plaintiff had been convicted of some
felony, or other infamous crime, in some court having competent jurisdiction of such offences;
and when the said Russell said to the defendant that he did not comprehend him, the defendant
added these words: "Did you never hear of the affair of the Nantucket Bank?" thereby meaning a
late robbery and theft committed by some person or persons at the Nantucket Bank; whereupon
the said Russell observed to the defendant that the plaintiff had been honorably acquitted by the
jury in that affair; to which the defendant replied, "That does not make him the less guilty;"
thereby meaning and intending that the said William was guilty of the crimes of theft and
robbery, and had stolen the money then lately stolen from the Nantucket Bank. The plaintiff lays
his damages at five thousand dollars.

The defendant, by leave, pleaded two several pleas at the court below; 1st. The general issue of
not guilty, which was joined by the plaintiff.

2. In bar, that the plaintiff "his action aforesaid thereof against him ought not to have or
maintain, because, protesting that he, the said Micajah, did not, in the presence and hearing of
divers good citizens of this commonwealth, falsely and maliciously speak and publish the
defamatory words mentioned in the plaintiff's declaration, as the plaintiff has therein alleged, the
said Micajah for plea says, that by the constitution of this commonwealth, it is declared that the
freedom of deliberation, speech, and debate, in either house of the legislature of this
commonwealth, cannot be the foundation of any prosecution or action in any other court or place
whatsoever; and because the said Micajah and the said Benjamin Russell, at the time the said
words are alleged to have been spoken, were members of the House of Representatives, one of
the houses of said legislature, and the said supposed words, if spoken, were spoken by the said
Micajah to the

Page 3

said Russell, in deliberation in said house, while the same was in session, and some of the
members were there, and particularly the said Micajah and the said Russell, deliberating
concerning the appointment of a notary public; and the said words, if spoken, had relation to the
subject in deliberation; wherefore the said Micajah, at the time and place mentioned in the
plaintiff's declaration, spoke and uttered the words therein mentioned of and concerning the
plaintiff, as he, the said Micajah, lawfully and constitutionally might do, and this he is ready to
verify; wherefore the said Micajah prays judgment if the plaintiff his action aforesaid thereof
against him ought to have and maintain, and for his costs."

By Isaac Coffin

To this second plea the plaintiff replied, "that notwithstanding any thing in the said plea of the
said Micajah alleged, he, the said William, ought not to be barred from having and maintaining
his said action against him, the said Micajah, because he says that, at the time and place, when
and where the said false, feigned, scandalous, opprobrious, and defamatory words were by the
said Micajah spoken and published of and concerning him, the said William, in manner and form
as he has alleged in his declaration, the said Micajah, of his own wrong, and without any such
cause as is by him in his said plea alleged, spoke and published the said words; and this the said
William prays may be inquired of by the country.

By Kilborn Whitman
And the said Micajah doth the like.

By Isaac Coffin.

Both these issues were found for the plaintiff at the Court of Common Pleas, in Nantucket, and
his damages assessed in the sum of fifteen dollars. From the judgment rendered below on this
verdict, both parties appealed to this Court, which is by law holden for the counties of Suffolk
and Nantucket, and the same issues came on to be tried before Parker, J., at the last November
term.

From the report of the judge who sat in the trial, it appears that the facts in the case were testified
to by Benjamin Russell, a member of the House of Representatives, and were in substance as
follows: That in the session of the legislature, June, 1805, William Coffin, the plaintiff,

Page 4

with whom the witness had some acquaintance, and of whose integrity he had a high opinion,
applied to him to move a resolution in the house, authorizing the appointment of an additional
notary public for Nantucket. The witness asked and obtained leave to lay on the table a
resolution for that purpose. Micajah Coffin, the defendant, rose in his seat, and asked where the
member (meaning the witness) obtained his information of the facts, upon which the proposed
resolution was founded. In reply, the witness observed that his information came from a
respectable gentleman from Nantucket.

The resolve passed, and the speaker had taken up some other business, when the defendant
crossed the house, and came to the place where the witness was standing, talking with several
gentlemen, in the passage-way, within the walls of the house, and asked the witness who the
respectable gentleman was, from whom he had received the information which he had
communicated to the house. The witness observed, carelessly, it was perhaps one of his relations,
and named Coffin, as very many of the Nantucket people were of that name.

On perceiving the plaintiff sitting without the bar, behind the speaker's chair, the witness pointed
to him, and told the defendant that was the gentleman from whom he received the information.
The defendant looked towards him, and said, "What, that convict?" The witness was much
surprised at the expression, and asked the defendant what he meant: he replied, "Don't [Note
p4] thee know the business of the Nantucket Bank?" The witness replied, "Yes, but he was
honorably acquitted." The defendant then said, "That did not make him the less guilty, thee
knows."

The witness, being asked whether the house were not then proceeding to the choice of a notary
public for Nantucket, answered, No; that this conversation took place a little before one o'clock,
and that the choice was not until the afternoon session, or the next day: being asked whether the
plaintiff was not a candidate for that office, he answered, No, and he afterwards recollected that
one Hussey was the candidate.

Page 5
No contradictory evidence being offered by the defendant, the principal question made by his
counsel was upon the plea of privilege.

The direction of the judge to the jury was in substance as follows, viz.: That the words charged in
the declaration being proved by one witness, whose recollection appeared to be very clear on the
subject, and no evidence being offered to contradict his testimony, they would probably not
hesitate much, as to finding the first issue for the plaintiff.

That as to the matter of defence, which seemed alone relied on, viz., that the speaking of the
words was justifiable under the clause of the constitution, which provides for the freedom of
speech, deliberation, and debate, in either house of the legislature, this was partly a question of
law, and partly of fact; the whole, however, for the jury to determine, under such advice as
should be given by the Court.

That the question of law would be reserved for the consideration of the whole Court, it being a
constitutional question, and worthy of deliberate consultation and decision; that being, however,
called upon, by his official duty, to declare the law to the jury, the judge gave it as his then
present opinion that the facts proved were not such as would amount to the justification
contended for by the defendant; that in order to exempt a member of the legislature from the
legal scrutiny, which every other man must submit to, if he traduce the character of another, it
should appear that the words charged as defamatory, were spoken in the course of legislative
business, under the forms prescribed by the house for the conduct of its members; that it could
not be supposed that the framers of the constitution intended to shelter the legislators from
punishment, for any violation of the rights of others, further than was necessary for their personal
security and independence; and that, in his opinion, the freedom of speech, deliberation, and
debate, of the defendant, as a member of the House of Representatives, according to the true
sense and meaning of the constitution, was not infringed by the maintenance of this action
against him.

The subject of damages, the judge observed, was so entirely and exclusively within the province
of the jury, that

Page 6

he should say nothing to them upon it, except to caution them, on the one hand, not to give
exorbitant damages; and, on the other hand, if they were satisfied from the facts that the plaintiff
ought to recover, not to turn him off with such slight damages, as to induce one so situated rather
to seek personal revenge, than resort to the laws of his country; that the degree of malice, in an
action of this kind, would properly measure the damages; if the jury believed the words to have
been spoken in haste, and in the heat of the moment, without a deliberate and malicious intent to
injure, they would of course give small damages; on the other hand, if the evidence satisfied
them that the words were spoken from malignant motives, the damages would be greater.

The jury returned a verdict against the defendant for two thousand five hundred dollars' damages.
A motion was made by his counsel for a new trial on the question of law reserved by the judge,
and also for the excessiveness of the damages; and the action was continued to this term for a
decision upon that motion.
And now the Court observed that they would first hear an argument on the question of law, saved
at the trial, reserving the question on the subject of damages to be spoken to afterwards, if the
defendant should not prevail on the first point; Dexter and the Attorney-General, Bidwell, being
of counsel for the defendant, and B. Whitman for the plaintiff.

The Attorney-General apprehended that, although the defendant's plea in bar was not penned
with technical precision, the question of privilege was by it sufficiently brought before the Court
to admit a discussion of that question upon the present motion.

The motion, then, may be considered as presenting to the Court a constitutional question,
important in itself, as indeed any question is which affects the constitution; and of additional
importance and peculiar delicacy, inasmuch as it respects the limits of jurisdiction between two
independent coordinate departments of our government, the judiciary and one branch of the
legislature.

To avoid a conflict of jurisdictions, and to settle the question on its true principle, it is necessary
to consider the nature

Page 7

of the privilege claimed, and the constitutional ground on which the claim is founded.

Privilege has been said to be an odious plea, in derogation of common right, and therefore not to
be favored in law, but to receive a restrictive construction. However just this observation may be
when made with reference to private and personal claims of exemption from public duties or
services, for the ease or emolument of the individual, it can have no application to such
privileges as are conferred by the constitution upon public functionaries for the benefit of the
people at large. Of a claim thus founded the principles of our free government require the most
favorable allowance. Such is that which is asserted by the defendant in this case. He has not
claimed an exemption from responsibility for what he said of the plaintiff; he has only insisted
that the House of Representatives, of which he was then a member, and in which he spoke the
words in question, and not the judicial courts, had the cognizance of that subject.

The constitution declares that "The freedom of deliberation, speech, and debate, in either house
of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any
accusation or prosecution, action or complaint, in any other court or place whatsoever." Dec. of
Rights, Art. 21.

The House of Representatives are also empowered by the constitution "to settle the rules and
orders of proceedings in their own house." (Chap. 1, Sect. 3, Art. 10.) They alone can judge of
those rules and orders, enforce their observance, and punish a member for any violation of them.

The constitution having thus vested the house with the freedom of deliberation, speech, and
debate, in the most absolute and exclusive terms, and having also given them a discretionary
control of the manner in which that freedom shall be exercised, it results that they are the sole
judges of the extent of the privilege, and the only tribunal to which the members are responsible
for any abuse of it.
This is not a novel doctrine. It is founded on a principle as old as the history of jurisprudence.
The decision of either house of parliament, respecting any subject of parliamentary

Page 8

privilege, has for ages been holden to be conclusive upon the courts of law. "When, in 31 Hen. 6,
the House of Lords propounded a question to the judges, touching the privileges of parliament,
the chief justice, Sir John Fortescue, in the name of his brethren, declared, that "they ought not to
make answer to that question; for it hath not been used aforetime that the justices should, in
anywise, determine the privileges of the high court of parliament; for it is so high and mighty in
its nature that it may make law, and that which is law it may make no law, and the determination
and knowledge of that privilege belongs to the lords of parliament, and not to the justices." [Note
1]

Mr. De Lolme, whose doctrine, and even language, the framers of our constitution have adopted
and copied, and whose treatise was written since the privileges of parliament were in some
measure defined by the bill of rights, says, "These two houses enjoy the most complete freedom
in their debates, whether the subject be grievances, or regulations concerning government
matters of any kind; no restriction whatever is laid upon them; they may start any subject they
please.-- And in short, what makes the freedom of deliberating, exercised by the two houses,
really to be unlimited, unbounded, is the privilege, or sovereignty, we may say, enjoyed by each
within its own walls, in consequence of which nothing done or said in parliament is to be
questioned in any place out of parliament."

Sir William Blackstone, in his Commentaries, quotes the declaration of the chief justice
Fortescue and his brethren with approbation, and gives it the sanction of his own authority, as
established law in his day. The doctrine is well settled and understood. A declaration of privilege
by either house of parliament is always respected by the judicial courts, as evidence of the
privilege declared. And it is believed that this honorable Court will receive, with equal respect, a
declaratory resolve of our own House of Representatives, relative to their privilege of free
deliberation, speech, and debate.

Whitman requested the Attorney-General to state to the Court the purpose for which he
introduced the resolution.

Page 9

Bidwell said he offered it for two purposes; 1st. To show the claim of the house, and of the
defendant as a member of that house. 2d. As an authority decisive of the principle on which the
question before the Court ought to be decided.

Whitman objected to the reading of the resolve, and observed that it was merely a declaration of
the house made in their own favor, and that upon the application of this defendant since the trial
of the cause.

Bidwell, in answer to the objection, said that the resolve was a general one, not predicated upon,
nor alluding to this particular case, but adapted to all cases coming within its general principle.
As it respects a general principle, it can be of no importance, at what time, or upon what
occasion, it was adopted. It is sufficient that the house have made a decision on a subject within
their jurisdiction. Such a decision is entitled to respect, as an authority, according to the rule
quoted from Blackstone, and agreeably to the nature of our balanced government.

Whitman hoped the practice or the claims of the British parliament would not be considered as
authorities here. We have a constitution of our own, which establishes this Court, and not the
House of Representatives, as the supreme tribunal, to determine the true meaning of each part of
the constitution, as well as of the laws.

The Chief Justice asked the Attorney-General whether he contended that a declaration of
privilege by one branch of the legislature was an authority to the same extent, as a similar
declaration by either house of parliament.

Bidwell said he did not contend that it was so as to privileges generally, but only as to those
privileges which are granted by the constitution to the two houses, such as freedom of
deliberation, speech, and debate. Upon the subject of privileges, which the constitution has
vested in either house, that house is the supreme court, whose decision, as to the nature and
extent of the privileges, is final and conclusive. It cannot be reversed for error by any other court.
No other tribunal can, without usurpation, undertake to consider whether it is erroneous or not.
This is the true theory of our government;

Page 10

and on this ground the declaratory resolve of the house on the subject of the privilege in question
is offered.

The Court admitted the resolution to be read, reserving for further consideration the effect of it.
And it was read by Bidwell as follows:--

"COMMONWEALTH OF MASSACHUSETTS

In the House of Representatives, March 1st, 1808.

'The House of Representatives, impressed with their duty to protect the rights of their citizens,
and the principles of the constitution, under the safeguard of which they assemble and deliberate
for the public good, and to guard, at all times, their own privileges against the undue interference
of any other department of the government, do, therefore, Resolve, and Declare, that words
spoken by any member, within the walls of this house, relative to a subject under their
consideration, either in their separate capacity, or in a convention of both branches of the
legislature, (whether the member speaking such words addresses himself, in debate, to the chair,
or deliberates and advises with another member, respecting such subject,) are alone and
exclusively cognizable by this house; and that for any other tribunal or department of
government to interfere with its authority, and take cognizance of words thus spoken, is a breach
of the rights and privileges of this house, and a flagrant violation of that important article of the
constitution, which expressly provides for 'the freedom of deliberation, speech, and debate, in
each house of the legislature.")
The Attorney-General proceeded. It is here decided and declared that words spoken by a member
of the house, within its walls, although not addressed to the chair in formal debate, but
communicated in conversation with another member, are within the constitutional privilege. The
reason of this decision is obvious. The house being exclusively responsible for the manner in
which the freedom of deliberation, speech, and debate, is exercised by its members, no other
court has authority to decide whether the member uttering the words is in order or not; or what
consequences he is to suffer, if out of order. Those are questions cognizable by the house alone.
No other tribunal has a right to consider

Page 11

whether he uttered them standing or sitting, with his hat on or uncovered, in his proper seat or in
some other part of the house, in a public address to the speaker or in private deliberation with
another member, after the subject had been moved or before any motion was made respecting it,
within the rules of decorum or in transgression of them. If they were spoken by a member in the
presence of the house, during its sitting, in any manner suffered or not prevented by the house,
they are within the constitutional freedom of deliberation, speech, and debate, in the house; and
however improper they may be thought, they cannot be drawn into question "in any other court
or place what soever."

Chief Justice. Is the privilege confined to the immediate presence of the house? Would not the
members of a committee sitting in a lobby and deliberating on a subject committed to them by
the house, be as much protected, as if they were deliberating in the house?

Bidwell. Perhaps they would. That, however, is a point which it may not be necessary to
determine in deciding the question before the Court. It is not the object of the defendant's
counsel, in this argument, to ascertain with precision the utmost limits to which the privilege
may be extended, but to show that it embraces every word spoken by a member of the house,
while in actual session, however disorderly or improper; because for any disorder or impropriety
the member is amenable to the house, which has the power to punish him for abusing his
privilege, and to do justice to any person, who is the object of that abuse; not, indeed, in the form
of damages, as in a court of law, but in one adapted to its own forms of proceeding, and not less
satisfactory to an honorable mind.

Chief Justice. Would you extend the privilege to actions as well as words? Suppose, for instance,
one member should assault or beat another in the presence of the house; would he not be
answerable in an action, or on an indictment, in a court of law?

Bidwell. Unquestionably he would. For it is the freedom of deliberation, speech, and debate,
only, and not of assaulting and beating, that is secured by the constitution. For other personal
injuries and abuses, a member may be

Page 12

answerable or indictable; but not for any abuse of the freedom of deliberation, speech, and
debate, in the house.
This principle is recognized in the case of Lord Abingdon, [Note 2] who was prosecuted in the
Court of King's Bench, for a libel. From the report of the case it appears "that Lord A., having, in
the House of Lords, given notice of his intention to bring in a bill, the next session of parliament,
to regulate the practice of attorneys, had, in the course of his speech, mentioned his having
employed Mr. Sermon, of Gray's Inn, as his attorney, and after much invective, charged him with
improper conduct in his profession, with pettifogging practices, and other matters highly
injurious to his character. This speech his lordship read, in the House of Lords, from a printed
paper, which paper he had, at his own expense, sent and had printed in several of the
newspapers. Lord Kenyon, in summing up the cause to the jury, said that, as to the words in
question, had they been spoken in the House of Lords, and confined to its walls, that court [the
King's Bench] would have no jurisdiction to call his lordship before them, to answer for them as
an offence." And yet, had Lord Kenyon been presiding in the House of Lords, he would
doubtless have pronounced the same words to have been disorderly and abusive, being uttered on
a subject respecting which there was no motion before the house, and being also of a personal
and slanderous nature. Lord Abingdon was responsible to the House of Lords, of which he was a
member, for an abuse of his privilege; but he was not answerable in a judicial court for speaking
the offensive words, although he afterwards rendered himself liable by publishing his speech in
the newspapers.

That case is precisely in point. The words charged upon the present defendant were spoken in the
presence of the House of Representatives, which was then actually sitting, and of which he was a
member. They were, in the language of Lord Kenyon, confined to the walls of the house; and if it
were competent for this Court to make the inquiry, it would appear that they were, at least, as
fairly within the rules of order, as the words of Lord Abingdon. Until, therefore, the

Page 13

defendant, in imitation of his lordship, shall publish in the newspapers what he said of the
plaintiff, it is believed that this Court has no more jurisdiction of the subject, than the King's
Bench had in that case.

Whitman agreed with the defendant's counsel that the question before the Court was a great
constitutional one, involving the construction of the twenty-first article in the declaration of
rights. That declaration consists of certain political maxims or axioms, deliberately settled and
established by the people of the state in the formation of their government, which were intended
to operate as controlling rules over the exercise of any power delegated, by the constitution, or
by laws made pursuant to it, to any public functionaries or officers of government. And these
axioms are all to be construed together, not to be taken abstractedly, and pursued or considered
separately.

In construing this, and indeed any other part of the constitution, little aid can be derived from
precedents found in the proceedings of the British parliament, or of the judicial courts in any
other country. No other country furnishes an example of a nation peaceably and deliberately
settling the principles of their government, and distributing and limiting the duties, powers, and
privileges, of those who should be designated to fill the various departments and offices which
were to exist under it. The British government, indeed, in its practice, has considerable
resemblance to those of our country; but it can furnish us with no decisions applicable to the
present question, as there is not, nor ever was, any written constitution in that country,
controlling, in any degree, what has been called the omnipotence of the three estates of
parliament. As to what is commonly, but, to say the least, very inaccurately, called the
constitution of England, it is nothing more than certain rights and privileges, which the two
houses of parliament have wrested from the power of the crown in revolutionary days; but
especially those which the commons have, in their struggles with the monarchical and
aristocratical branches of the government, been able to obtain, as concessions or grants, rather
than as original rights, or principles and axioms of an original compact.

Page 14

We contend that, under our own constitution, the judiciary power is an original, coordinate, and
independent branch of the government. It is through the medium of this branch that the citizen
expects to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which
he may receive in his person, property, or character. [Note 3]

It is a necessary principle, in every government of laws and not of men, that the supreme
judiciary has the power of judging and finally determining on the extent and limits of jurisdiction
belonging of right to every inferior judiciary tribunal, and also to every public functionary and
officer, and every other military, civil, and judicial tribunal within the same government.

The plaintiff in this case having instituted a legal and proper suit for an injury alleged to have
been received from the defendant, and the defendant having pleaded certain facts, which, he
says, take away the jurisdiction of this Court, it is of necessity that the Court adjudge the point
thus brought before them: in other words, they must try and determine whether the House of
Representatives have, or have not, the exclusive jurisdiction of the ground of this action; unless,
indeed, it shall be said that the mere allegation of a party, or, at most, the claim of the House of
Representatives, is to deprive the plaintiff of his common law remedy, and to oust this Court of
its jurisdiction. If the Court find the cause of action to belong exclusively to the House of
Representatives, they will immediately stop their hands, they will proceed no further; but if they
are satisfied that their jurisdiction is not taken away in the present case by the constitution, they
will not deny the plaintiff the remedy he has sought in a regular, legal, and orderly manner.

If the House of Representatives can, by their own act, determine, ultimately and exclusively, the
extent of their own powers and jurisdiction, and if they have a right to say, in any instance, that
this Court cannot interfere with its jurisdiction, to redress a private wrong or a public mischief, it
will follow that, whenever the House of Representatives chooses, by its interference, to take
away the subject's remedy, the people must submit to the oppression, or resort to arms in order to

Page 15

dissolve the government and produce a revolution. For the House of Representatives cannot be
impeached, nor removed in any constitutional and orderly manner.

On the other hand, if, as we contend, this Court have authority to interfere in every case of
private injury or public wrong, which may be regularly brought before them, and to decide the
limits of jurisdiction and privilege of all other tribunals, the people have a certain remedy for any
unconstitutional, oppressive, or imbecile exercise of the powers of this Court, viz., by
impeachment or address, to procure the removal of any or all the justices, whose conduct may
call for the application of those high constitutional remedies; and this without dissolving the
social compact, or causing any violent shock in the government.

Presuming, then, that this Court will find itself competent to decide the question of jurisdiction,
we shall contend that, in the present case, the House of Representatives have not constitutionally
any jurisdiction of the facts which are the foundation of the present action.

The provisions of the constitution ought to receive a legal and technical construction, if
consistent with the apparent intention of the framers of the instrument, so as, if possible, to
prevent the mischief intended to be guarded against, or to obtain the good intended to be
produced; in other words, to effectuate the intentions of the people in that fundamental act. Thus
it is apparent that, by the twenty-first article in the declaration of rights, nothing more was
intended, than to secure to the individual members of the two houses the independent exercise of
their offices, the privilege of doing whatever was proper and necessary for them to do as
legislators. The words "either house of the legislature" cannot intend the walls or building which
cover and surround the members. They plainly intend the aggregate assembly of members,
organized, and in the exercise of the functions allotted to them. In the standing rules and orders
of the House of Representatives, there are more than fifty instances, in which the word house has
the signification here contended for. And so long as a member is occupied as such, is actually in
the exercise of his functions as a member, so long, and no longer, is he entitled to the privileges
contained in that

Page 16

article; so long, and no longer, is he to be considered, for the purposes of that article, a member
of the house.

Further, we contend that, to be entitled to this high immunity and privilege, the member must be
within the standing rules and orders of the house. By one of those rules it is provided that "No
member shall speak out of his place, nor without first rising and addressing the speaker, and shall
sit down as soon as he is done speaking."

The deliberation, speech, and debate, to which the constitution has annexed this great immunity,
must intend the public discussion of some subject under consideration, such speech and debate as
is permitted by the rules and orders of proceeding, which the house has established to restrain
and control its members.

In a "Manual of Parliamentary Practice for the Use of the Senate of the United States," composed
by the present president of the United States, a construction is given to a like provision in the
constitution of the United States, which confirms the interpretation we contend for in the present
case. The provision is in these words: "For any speech or debate in either house they shall not be
questioned in any other place." The commentary by Mr. Jefferson is, "But this is restrained to
things done in the house in a parliamentary course. [Note 4] For he is not to have privilege contra
morem parliamentarium to exceed the bounds and limits of his place and duty." [Note 5]
In the case of The King vs. Lord Abingdon, the court expressly define the limits of the privileges
of the lords. Lord Kenyon says, had the words been spoken in the House of Lords, (meaning, no
doubt, in public, open, and orderly debate,) the Court of King's Bench would have had no
jurisdiction; but here the privilege stopped, and when the member caused his speech to be printed
and published, he ceased to be protected.

So, in the case at bar, had the defendant spoken the defamatory words complained of, or even
words more slanderous, if

Page 17

such can be conceived, in regular and orderly debate, the constitution would have protected him.
But the facts were altogether otherwise. The subject was not then under consideration, was not
before the house. The defendant was not in his place, did not address the house, nor the speaker.
On the contrary, he was at that moment breaking the orders of that body, from whom he now
asks protection; he was bound to attend to the subject then before the house, and being
wandering from his place and duty, forfeited, for the time, his claim of privilege.

Suppose that the plaintiff, instead of coming here to obtain satisfaction for the injury he has
sustained, had applied by petition to the House of Representatives, stating the facts, and praying
their animadversion upon the defendant. Waiving, for the present, the futility of any remedy in
the power of the house to furnish, they would have answered him, and properly too, "This was a
private conversation between two members of our body, relating to a subject not in debate at the
time: we have no authority in the case. The courts of law are open to you; there you are at liberty
to seek your remedy, and there you will undoubtedly find it."

Dexter, in reply, observed that, in the discussion of this question, very little aid could be derived
from books of reports, as no adjudged cases were to be found on the point in question, and that
this fact was a strong proof that courts of common law, in England, would not hold cognizance
of facts arising in parliament; otherwise we should find cases reported, as the passions excited in
debate would compel parties to institute suits at law. For English authorities, then, we can resort
only to elementary books and proceedings in parliament.

In our own country, however, we have a higher, and a more definite and explicit authority to
recur to, - an authority paramount to judicial decisions, and even to the most solemn acts of the
legislature, viz., the constitution or frame of government, which was established by the people,
as a restraint upon and an authoritative guide to, every department and officer of the government.
It is by this written constitution that the question now before the Court must be decided.

Page 18

It is a question of no less delicacy than importance, and, if not prudently discussed and gravely
adjudged, may produce an unfortunate collision between two coordinate branches of the
government, each claiming to derive its rights, powers, and privileges, from the same original
source.
Such a collision it is in every view desirable to avoid, as there is to superior tribunal having
power to determine on the respective claims of the parties to the contest. And it will be avoided
in this case by a decision of this Court, that it is not competent to decide a question on the extent
of privilege of a member of the House of Representatives.

Unless the House of Representatives have the exclusive power to decide, in every case, whether
they have jurisdiction, there is an end to their independence. If this Court can take cognizance of
a fact, of which the house claim the exclusive cognizance, the decisions of the two tribunals,
each claiming to be supreme, and having no common arbiter, may be contradictory. The
mischiefs flowing from such a state of things are as discernible as they are great.

It is not a new position that the two houses of the legislature have respectively the right to define
their own jurisdiction; nor can inconvenience arise from it, more than from the authority claimed
by the judicial courts to determine exclusively the limits of their jurisdiction, and to decide, in
every instance, what is a contempt, and to punish it at discretion. Such an authority is thought
necessary to the independent exercise of their general jurisdiction; and it is difficult to conceive a
reason applying on this point to the courts of common law, which does not apply with equal
strength to the House of Representatives.

Neither is there any inconvenience or mischief to be apprehended from ascribing to the house the
jurisdiction claimed for them by the defendant in this suit, but what arises from supposing an
abuse of their power.

But it is to be presumed that the decision of the house, in every case, will be what it ought to be.
It is true they cannot award satisfaction, for a wrong done by a member to another member or to
a stranger, in dollars and cents. But is this the only recompense an honorable man will be
satisfied

Page 19

with, when his character has been traduced? To such a man, would not a public apology and
recantation be a higher satisfaction? Would not the expulsion of the offender from that situation
in which he had committed the offence, be as severe a punishment, and as satisfactory an
atonement, to a man of correct and liberal mind, as a pecuniary mulct? To say this would not be
done in the present, or in any supposable case, is presuming very improperly.

But if individuals may, in some solitary instances, fail of obtaining a satisfaction for an injury of
the sort alluded to, yet the public interest must be preferred to the claims of individual
resentment, and even of individual justice, when they are incompatible with each other. The
public interest demands the perfect freedom of every member of the legislature, while exercising
his functions. The privilege of a member is the privilege of the house.

The very frame and nature of our government contemplates checks and balances in the different
departments. If one scale preponderates, the balance is destroyed, and confusion must ensue. It is
absolutely necessary to the peaceful and regular administration of the legislative, executive, and
judicial departments, that they be respectively independent of each other. When in any case this
Court shall have solemnly decided that they have jurisdiction, it is not in the power of the House
of Representatives to say they have not, except by impeachment of the individual judges; yet the
judgment would still remain in force.

By the decision of this Court, the question would be put at rest forever. If this is true, it is equally
true that when the House of Representatives, in exercising its constitutional jurisdiction, have
made a decision in any case or upon any point, that question is also put at rest between the
parties, and such decision cannot be revised or impeached by this or any other tribunal. It will
not be denied that the House of Representatives have constitutionally a judicial authority in
certain cases, limited, indeed, as it respects the objects of it, but within those limits final and
supreme. But this is destroyed, if another tribunal has authority to say that the house has it not in
any particular case, wherein it claims it.

Page 20

A question of jurisdiction, like every other question, must be capable of receiving a final
decision by some competent tribunal; and that Court which is lawfully authorized to determine
finally on the general subject matter, must be competent to ascertain finally the limits of its
jurisdiction; otherwise contention must be eternal.

But if it were competent to this Court to determine a question on the extent of jurisdiction of the
House of Representatives, we contend that the decision in this case, from the facts as they appear
before the Court, must be that the House of Representatives have exclusive cognizance of the
cause of action set forth.

The declaratory resolution of the house, which was read in the opening of the argument, is not a
new law; it is rather a judicial explanation of the law as it stood; a practical exercise of their right
to construe the constitution, so far as it relates to their own privileges. And it contains no
extended or extravagant claim of jurisdiction; nothing more than is necessary to secure that
freedom of deliberation, speech, and debate, assured to them by the constitution.

They claim the exclusive cognizance of words spoken by a member within the walls of the
house, relative to a subject matter under consideration, either of the representatives alone, or of
the two houses in convention; whether the member speaking the words addresses the chair, or
deliberates with another member on such subject.

Now, by "a subject matter under consideration" must be understood, not merely a subject at the
very instant under debate; but the phrase must include one which has been before the house, and
is not yet finally determined; and whether any other matter is before the house at the moment,
cannot, in the nature and reason of the thing, make a difference. It is necessary to deliberate in
various ways and forms. Subjects, for instance, are commonly referred to committees in their
various stages. It is the duty of such committees to deliberate, and they must be protected in their
deliberations, or the end of their appointment will be frustrated.

Whenever a measure is proposed to the house, it is the right, and it is the duty, of every member,
to communicate

Page 21
to his brethren the information he possesses, and to obtain such as he may need.

Further, the members have a right to deliberate and confer with each other on a measure not yet
publicly moved, and they must be protected and privileged in the exercise of such right. Suppose,
for example, a member contemplated an impeachment of a certain public officer; it would be his
duty to confer with his brethren, and their duty to confer with him, on the propriety and
expediency of the proposed measure; to scrutinize the character and conduct of the officer. And
shall it be said that for the exercise of this duty a member is amenable in this Court in an action
for slander? Is not a principal benefit and effect of the provision of the constitution annihilated
by such a construction of it?

In the case before the Court, it appears that a motion had been laid on the table, which had not
been finally acted upon. It was at the time, then, a subject of deliberation. Before the defendant
could obtain the information he needed or wished for on the subject, another subject came before
the house. He then took the orderly and proper course to obtain the information he had a right to
obtain. In this state of things, he spoke the words complained of. The question is not, what were
the defendant's motives for speaking the words; what was his offence; whether the words were
true or false, malicious or not; but whether he is liable to any other jurisdiction for that offence,
be it what it may, than the House of Representatives, in whose presence they were spoken;
whether he is amenable in this Court, in this action, for these words thus spoken.

The defendant had a right to take every lawful measure in his power to prevent what he might
think an unnecessary or improper act. He might have persuaded Mr. Russell to move for a
reconsideration of the resolve that had just passed. It is presumable that he spoke the words with
that view. If he had succeeded in the intention, - if he had, by this means, procured a decision of
the house conformed to his wishes, - it would not be denied that the words were spoken
relatively to a subject matter under consideration. But surely his failure of success cannot render
him more liable to the plaintiff's action, than he would otherwise have been. It is

Page 22

possible, also, that he might suppose that the plaintiff was a candidate for the proposed
appointment.

The rules of the house were cited by the plaintiff to show that the defendant was not protected by
them. But for this Court to look into those rules, in order to determine whether the defendant is
or is not protected by them, would be to decide the very question of jurisdiction about which the
parties are now contending. Those rules are adopted by the house for the preservation of
decorum among the members, and for the orderly conducting of the business of the house. The
very question, whether a member has or has not transgressed those rules, is proper to the House
of Representatives. They have prescribed the rules; they have affixed the penalty to the breach of
them, and they claim the sole and exclusive right of applying the penalty in every case of a
breach. Thus, by article xvi. of the section relating to the duties, rights, and decorum, of the
members, "When any member shall be guilty of the breach of either of the rules and orders of the
house, and the house has determined he has so transgressed, he shall not be allowed to speak or
vote until he has made satisfaction, unless by way of excuse for the same."
In fact, these rules (and the same remark is a sufficient answer to the citations from Jefferson's
Manual, and to the authorities cited) are intended as principles of conduct for the government of
the members, and by which the speaker or presiding officer is to regulate their conduct. They can
be no rule in a court of law. They are made for the regulation of a tribunal competent to execute
them, and will probably govern there; but they are no authority to show whether one tribunal or
another has jurisdiction in any supposed case. The house is the proper tribunal to explain and
enforce their rules, and the house has decided that they alone have jurisdiction of such facts as
appear in the present case.

The fifth article of those from which the citation was just now made, is this: "No member shall
speak more than twice to one question, without first obtaining leave of the house." Put the case
that, in violation of this rule, a member speaks a third time, without first obtaining permission,
and in that third speech, not being called to order, he uses words respecting

Page 23

a citizen, which, in any other place, would be clearly actionable; will this Court say that he was
out of order, and therefore amenable here, but that, if he had spoken the same words in the
second address he made to the house, no action would have lain against him in this Court? They
must say so, if, by being guilty of a breach of the rules established by the house entirely for the
orderly conduct of business, a member loses the protection and privilege which the constitution
has provided for him.

The passage cited from Blackstone, in the opening, states the law to have been, from early
antiquity, what it continued to be at the time of his writing, respecting the privileges of
parliament. There is no case in the books, in which judicial courts have rendered judgment
against a member for an act done in either house of parliament.

The case cited from Espinasse recognizes the principle that the Court of King's Bench had no
cognizance of words spoken in the House of Lords. Those words were highly indecent and
calumnious; and there was nothing then before the house to which they had relation. Lord
Abingdon merely signified his intention to make a certain motion at the next session of
parliament, and then went into a scandalous aspersion of the character of a private citizen. Yet
the court say they have no jurisdiction of slander thus wantonly and impertinently uttered. It is
true, when the member came out of the place of his privilege, and, by a new and voluntary act,
published the same slander, he became amenable to the justice of his country in her courts of
common law. So long as the facts, whatever they might be, were confined to the parliament
house, the Court of King's Bench would not inquire whether they were in the rules and orders of
the house or not.

The Court took time to consider the motion, and at an after day in the term, the following opinion
was delivered, by
PARSONS, C. J. The plaintiff has commenced an action of the case, demanding damages of the
defendant for an injury to his character, committed by the defendant, in maliciously uttering and
publishing defamatory words, which imported that the plaintiff had committed felony by robbing
the Nantucket Bank.

Page 24

To this demand the defendant pleaded not guilty, and also, by leave of the Court, a special plea
in bar, justifying the speaking of the words, because, as he alleged, at the time when they were
spoken, he and Benjamin Russell were members of the House of Representatives, then in
session, and that he spoke the words to Russell, in deliberation in the house, concerning the
appointment of a notary public, and that the words had relation to the subject of their
deliberation.

The plaintiff, in his replication, denies these allegations, and avers that the words were spoken by
the defendant of his own wrong, and without such cause as he had alleged, and tenders an issue
to the country. The defendant does not demur to the replication, but joins the issue thus tendered.

Both the issues came on to trial, and it appeared from the evidence, that when the words were
spoken, the defendant and Russell were members of the House of Representatives, then in
session. The occasion, manner, and circumstances, of speaking them are thus related by Russell,
the witness. He, having some acquaintance with the plaintiff, and thinking highly of his integrity,
was applied to by him to move a resolution for the appointment of an additional notary for
Nantucket, the town represented by the defendant. Russell made the motion, and had leave to lay
the resolution on the table The defendant, in his place, inquired where Russell had the
information of the facts on which the resolution was moved. The witness answered, from a
respectable gentleman from Nantucket. The resolution then passed, and the speaker took up
some other business. Russell then left his place, and was standing in the passage-way, within the
room, conversing with several gentlemen. The defendant, leaving his place, came over to
Russell, and asked him who was the respectable gentleman, from whom he had received the
information he had communicated to the house. Russell answered carelessly, he was perhaps one
of his relations, and named Coffin, as most of the Nantucket people were of that name. The
witness, then, perceiving the plaintiff sitting behind the bar, pointed to him, and informed the
defendant he was the man. The defendant looked towards him, and said, "What, that convict?"
Russell, surprised at the question, asked the

Page 25

defendant what he meant; he replied, "Don't thee know the business of Nantucket Bank?"
Witness said, "Yes, but he was honorably acquitted." The defendant then said, "That did not
make him less guilty, thee knows." It further appears that this conversation passed a little before
one o'clock, that the election of notaries was not then before the house, but was made that
afternoon, or the next day, and that the plaintiff was not a candidate for that office. And there is
no evidence that the resolution laid on the table by Russell, and passed, or the subject matter of
it, was ever after called up in the house.
It does not appear from the report that it was contended by the defendant, that the words testified
to did not import the slander charged in the plaintiff's declaration, nor is the verdict objected to
on that ground: the judge therefore directed the jury, that if they believed the testimony, the
plaintiff had maintained the first issue. But the defendant insisted that the evidence supported the
justification contained in the bar, and that by law the second issue ought to be found for him.

The question of law, therefore, arises on the second issue. Both parties had submitted the trial of
this issue to a jury. The issue involved both law and fact, and the jury must decide the law and
the fact. To enable them to settle the fact, they were to weigh the testimony: that they might truly
decide the law, they were entitled to the assistance of the judge. If the judge had declined his aid
in a matter of law, yet the jury must have formed their conclusion of law as correctly as they
were able. But the judge was officially obliged to declare to the jury his opinion of the law. If
this be denied, as a matter not within the jurisdiction of the Court, it must also be denied that the
jury were legally authorized to decide on the law; the consequence of which would be, that,
when any defendant representative should plead his privilege in bar, whether the plea be true or
false cannot be inquired into, because every such plea must involve both law and fact; and the
judge must send the parties out of Court.

If the judge was officially obliged to declare the law to the jury, he must necessarily take notice
of the law, on which the defendant relied, and give it, according to his judgment,

Page 26

a sound construction, applicable to the issue on trial. The law relied on is the twenty-first article
of the declaration of rights.

This article he was obliged to notice and explain, according to what he judged to be its true intent
and effect. If there had been any explanation of this article, by the act of any legislature, or by the
judgment of any court, constitutionally obligatory on courts of law, such explanation is law, and
ought to have governed the judge in his construction of the article. It is not pretended that at the
time of the trial any such act or judgment existed. The only aid which the judge could receive,
must have been derived from other parts of the constitution, and from the principles of the
common law, by which sound rules of construction are established.

The judge accordingly gave to the jury his construction of the article, and declared to them his
opinion, that the facts did not in law maintain the issue for the defendant; and the jury found a
verdict for the plaintiff.

To this opinion of the judge the defendant excepted, and moves for a new trial; and on the
correctness of it are we now to decide.

As the jury found a verdict agreeably to the judge's direction, it is to be presumed that they were
influenced by it; and if the direction was wrong, the cause ought to be again tried by another
jury, uninfluenced by an erroneous opinion of the judge in a matter of law.

The twenty-first article of the declaration of rights declares that "The freedom of deliberation,
speech, and debate, in either house of the legislature, is so essential to the rights of the people,
that it cannot be the foundation of any accusation or prosecution, action or complaint, in any
other court or place whatsoever." On this article the defendant relies for his justification. And if
it were competent to the judge, on the trial, to declare his opinion of the true intent and meaning
of it, it must be competent for this Court to decide whether his opinion was or was not legal; or
the defendant can have no relief by his motion; unless the Court are to decide, without inquiry or
authority, that the opinion was against law. But I know of no action within the jurisdiction of a
court, and regularly before it, in which it will not be the duty of the judges to decide all matters
of law arising in it,

Page 27

so far as the court is competent to decide on them, according to their own apprehension of the
law. Otherwise they will have no jurisdiction of legal questions; or they must act as ministerial
agents, deciding according to the will of others.

In considering this article, it appears to me that the privilege secured by it is not so much the
privilege of the house, as an organized body, as of each individual member composing it, who is
entitled to this privilege, even against the declared will of the house. For he does not hold this
privilege at the pleasure of the house, but derives it from the will of the people, expressed in the
constitution, which is paramount to the will of either or both branches of the legislature. In this
respect, the privilege here secured resembles other privileges attached to each member by
another part of the constitution, by which he is exempted from arrests on mesne (or original)
process, during his going to, returning from, or attending, the General Court. Of these privileges,
thus secured to each member, he cannot be deprived, by a resolve of the house or by an act of the
legislature.

These privileges are thus secured, not with the intention of protecting the members against
prosecutions for their own benefit, but to support the rights of the people, by enabling their
representatives to execute the functions of their office without fear of prosecutions, civil or
criminal. I therefore think that the article ought not to be construed strictly, but liberally, that the
full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech,
or haranguing in debate; but will extend it to the giving of a vote, to the making of a written
report, and to every other act resulting from the nature, and in the execution, of the office; and I
would define the article as securing to every member exemption from prosecution, for every
thing said or done by him, as a representative, in the exercise of the functions of that office,
without inquiring whether the exercise was regular according to the rules of the house, or
irregular and against their rules. I do not confine the member to his place in the house; and I am
satisfied that there are cases in which he is entitled to this privilege, when not within the walls of
the representatives' chamber.

Page 28

He cannot be exercising the functions of his office as member of a body, unless the body be in
existence. The house must be in session, to enable him to claim this privilege; and it is in session,
notwithstanding occasional adjournments, for short intervals, for the convenience of its
members. If a member, therefore, be out of the chamber, sitting in committee, executing the
commission of the house, it appears to me that such member is within the reason of the article,
and ought to be considered within the privilege. The body of which he is a member, is in session
and he, as a member of that body, is in fact discharging the duties of his office. He ought,
therefore, to be protected from civil or criminal prosecutions for every thing said or done by him
in the exercise of his functions, as a representative, in committee, either in debating, in assenting
to, or in draughting a report. Neither can I deny the member his privilege, when executing the
duties of his office, in a convention of both houses, although the convention should be holden in
the senate chamber.

To this construction of the article it is objected, that a private citizen may have his character
basely defamed, without any pecuniary recompense or satisfaction. The truth of the objection is
admitted. But he may have other compensation awarded to him by the house, who have power,
as a necessary incident, to demand of any of its members a retraction, or apology, of or for any
thing he has said, while discharging the duties of his office, either in the house, in committee, or
in a convention of the two houses, on pain of expulsion. But if it is allowed that the remedy is
inadequate, then a private benefit must submit to the public good. The injury to the reputation of
a private citizen is of less importance to the common wealth, than the free and unreserved
exercise of the duties of a representative, unawed by the fear of legal prosecutions.

A more extensive construction of the privileges of the members secured by this article, I cannot
give; because it could not be supported by the language, or the manifest intent, of the article.
When a representative is not acting as a member of the house, he is not entitled to any privileges
above his fellow-citizens; nor are the rights of the people affected if he is placed on the same
ground, on which his constituents

Page 29

stand. He is secured the liberty of travelling to the house, of attending his duties there, of
exercising the functions of his office as a member, and of returning home. But so careful were
the people in providing that the privileges, which they, for their own benefit, had secured to their
representatives, should not unreasonably prejudice the rights of private citizens, that a member
may be arrested upon execution in a civil suit, in cases where he could not be lawfully arrested
on original or mesne process. And that offences against law may be duly and seasonably
punished, this privilege is not extended to arrests on criminal prosecutions, in any case where by
law the member may be prosecuted as a criminal.

If this very liberal construction of the twenty-first article be just; if it be warranted by its
language; if it be consonant to its manifest intent and design, - the question before the Court lies
in a narrow compass.

Was Coffin, the defendant, in speaking the defamatory words executing the duties of his office?
Or, in other language, was he acting as a representative? If he was, he is entitled to the privilege
he claims; if he was not, but was acting as a private citizen, as a private citizen he must answer.

Upon information given by the plaintiff to Russell, a member, he had moved a resolution
providing for the choice of another notary for Nantucket; and on Russell's stating that his
information was from a respectable person from that place, the resolution had passed; the house
had proceeded to other business; and the subject matter of the resolution, or of the information,
was not in fact before the house, although it is certain that any member might have moved to
rescind the resolution. Russell, his brother member, was in the passage-way, conversing with
several gentlemen: the defendant came to him, and inquired the name of Russell's informant,
who, he had declared, was a respectable gentleman from Nantucket. Was this inquiry, thus made,
the act of a representative, discharging his duty, or of a private citizen, to gratify his curiosity? It
was the former, say the defendant's counsel. Whether it was or not, certainly it was innocent. But
to pursue the evidence: the defendant was answered: whatever was his motive, he had received
the information.

Page 30

If, upon it, he intended again to call up the resolution, he might have done it. But no motion for
that purpose was ever made. He then utters to Russell the defamatory words. What part of his
legislative duty was he now performing? It is said that he might apprehend that the plaintiff was
a candidate for the office of notary, and that his motive might be to dissuade Russell from giving
him his vote. But there is no evidence that the defendant supposed the plaintiff to be a candidate,
and it is in evidence that the plaintiff was not a candidate. It is also apparent that the defendant
believed that Russell was not ignorant of the indictment against the plaintiff, and of his acquittal.
I cannot, therefore, assign to the defendant any other motive for his indiscreet language, but to
correct Russell for giving to the plaintiff the appellation of a respectable gentleman, and to
justify the correction by asserting that an honorable acquittal, by the verdict of a jury, is not
evidence of innocence. It is not, therefore, possible for me to presume that the defendant, in
using thus publicly the defamatory words, even contemplated that he was in the discharge of any
official duty. This inquiry by the defendant, and his replies, might have been made, for all the
purposes intended by him, in State Street, or in any other place, as well as in the representatives'
chamber; and it is not easy for me to conceive that any language or conduct of a representative
must be considered as official, merely because he chooses the representatives' chamber for the
scene.

But it has been urged that the privilege must extend to a representative giving information to a
brother member, on any subject before the house; or which may be expected to come before the
house; for the information may be necessary to enable the member informed to discharge his
official duty with ability and propriety. Without remarking the essential distinction between a
man's seeking information on subjects relating to his office, and his actual execution of its
functions, and without observing the extreme difficulty of supposing that defamatory words,
maliciously uttered, can ever be considered as useful information, I do clearly admit that a
representative will certainly be entitled to his privilege in all cases, where he shall give
information in the discharge

Page 31

of his official duty; although the manner may be irregular, and against the rules of the house. But
when a representative pleads his privilege, to entitle himself to it, it must appear that some
language or conduct of his, in the character of a representative, is the foundation of the
prosecution, for in no other character can he claim the privilege.
But in actions for defamatory words against a member, he may, in cases to which his privilege
does not extend, defend himself like any other citizen, by proving that the words were spoken for
a justifiable purpose, not maliciously, nor with a design to defame the character of any man. And
this defence will avail every man charged with slander, although it may be that the words uttered
are not true. I do not, therefore, consider any citizen, who is a representative, answerable in a
prosecution for defamation, where the words charged were uttered in the execution of his official
duty, although they were spoken maliciously; or where they were not uttered in the execution of
his official duty, if they were not spoken maliciously, with an intent to defame the character of
any person. And I do consider a representative holden to answer for defamatory words, spoken
maliciously, and not in discharging the functions of his office. But to consider every malicious
slander, uttered by a citizen, who is a representative, as within his privilege, because it was
uttered in the walls of the representatives' chamber to another member, but not uttered in
executing his official duty, would be to extend the privilege farther than was intended by the
people, or than is consistent with sound policy, and would render the representatives' chamber a
sanctuary for calumny -- an effect which never has been, and, I confidently trust, never will be,
endured by any House of Representatives of Massachusetts.

It has been said that, although the judge at the trial had no other information of the nature and
extent of the defendant's privileges but what he derived from the constitution, yet that, since the
trial on the first of March instant, the house passed a resolution declaratory of the privileges of its
members, to which declaration we are obliged to conform in our judgments; because the house is
to judge exclusively of its own privileges.

Page 32

That the house is to judge exclusively of its privileges, for certain intents and purposes, is very
certain; but if it is to exclude courts of law from judging of the privileges of its members in every
case, the consequences would be unfortunate to the members. If a member, in any action, pleads
his privilege, he submits it to the judgment of the court; and if it be allowed, it is by virtue of the
judgment of the court. All, therefore, which the court could do, upon such an hypothesis, would
be to reject the plea, lest, in judging of it, it should invade the privileges of the house.

The resolution declares that words spoken by any member, within the walls of the house, relative
to any subject under their consideration, either in their separate capacity, or in a convention of
both branches of the legislature, whether the member speaking such words addresses himself in
debate to the chair, or deliberates or advises with another member respecting such subject, are
alone and exclusively cognizance by the house; and that for any other tribunal to take cognizance
of words thus spoken would be a violation of the twenty-first article of the constitution. And the
words relied on for the defendant are, "whether the member speaking such words addresses
himself to the chair, or deliberates or advises with another member respecting such subject."

As it is admitted by the defendant's counsel that this Court is competent to construe the twenty-
first article, in order to decide whether the facts in the case bring the defendant within it, so also
it is admitted that the Court is competent to construe this resolution for the same purpose. The
resolution, judging from the face of it, does not appear to be an act of the house in any case of
contempt on trial before it, but to be a general declaration of the privileges secured to the
members by the twenty-first article of the constitution; because it is declared that an invasion of
these privileges would be a violation of that article. I consider the house, therefore, as defining
the constitutional privileges of its members, relating to words spoken by them. In this
declaration, the words must be spoken on a subject before the house, and either addressed to the
chair, or by one member to another by way of deliberation and advice on the same subject.

Page 33

In either case, the words must be spoken officially, although in the latter case they may be
spoken in a disorderly and irregular manner. The house has not, therefore, claimed any privileges
for its members, when prosecuted for slander, unless the words charged were spoken officially in
the character of a representative. This inference is inevitable, unless it should be unreasonably
concluded that one member could deliberate or advise with another member, on a subject before
the house, having abandoned his official duty, and acting as a private citizen. Whether I do or do
not allow to the resolution, thus passed, the force of law, I am satisfied that it claims no
privileges, but what are secured to the members by the constitution, of which, as far as it extends,
it is in affirmance. The resolution does not, therefore, in my opinion, aid the defendant; for it
appears, from the facts in the case, that the defamatory words, charged on the defendant, were
not spoken by him on a subject before the house, either in an address to the chair, or by way of
deliberation or advice with another member.

It has been urged that a declaration of privileges made by the house, whether those privileges do
or do not belong to it, has the force of law, and is obligatory, in all cases, on the courts of justice.
A declaration of that nature is not now before us; for I am satisfied that the house has all the
privileges claimed by its resolution. Whenever a declaration shall be made by the house,
claiming privileges not belonging to it in the opinion of the judges of a court of law, let the
judges then decide the question. The merits of it must depend on a careful consideration of the
constitution, with a due regard to the privileges and prerogatives of the house resulting from it.
On this subject I give no opinion; but from the observations I have already made, it may not be
improper to declare, that if it had appeared to me that the words charged on the defendant had
been officially spoken by him without the walls of the representatives' chamber, either in a
convention of the two houses holden in the senate chamber, or in a committee, while executing
the commission of the house then in session, as I am now advised, I would have allowed him his
privilege, although, by the resolution

Page 34

produced, the house seem to confine its privileges to words spoken within the walls of the
representatives' chamber.

But the danger of conflicting jurisdictions has been insisted on with much ability and eloquence,
if we should support the present action. I am sensible that where a conflict of final jurisdictions
exists in any state, there must be a defect in the laws of that state. In my opinion, this state is not
liable to the opprobrium; for I do not conceive that final conflicting jurisdictions here are
consistent either with our constitution or statutes.

To introduce examples from the British House of Commons cannot much illustrate the subject.
The privileges of that house are not derived from any written constitution, but have been
acquired by the successful struggles of centuries, directed either against the monarchy or an
hereditary aristocracy. The exertions of the commons have generally been popular, because the
people were supposed to reap the fruits of them. In this state, we have a written constitution,
formed by the people, in which they have defined, not only the powers, but the privileges, of the
house, either by express words, or by necessary implication. A struggle for privileges, in this
state, would be a contest against the people, to wrest from them what they have not chosen to
grant. And it may be added that the grant of privileges is a restraint on the rights of private
citizens, which cannot be further restrained but by some constitutional law. These principles are
perfectly consistent with the resolution of the house, which is not a claim of any further
privileges not granted by the constitution, but a description of some, and only of some, privileges
there granted.

I consider the House of Representatives not only as an integral branch of the legislature, and as
an essential part of the two houses in convention, but also as a court having final and exclusive
cognizance of all matters within its jurisdiction, for the purposes for which it was vested with
jurisdiction. It has jurisdiction of the election of its members; of the choice of its officers; of its
rules of proceeding; and of all contempts against the house, either in its presence, or by violating
the constitutional privileges of its members. When the house is proceeding as a court, it has,
exclusively,

Page 35

authority to decide whether the matter before it be or be not within its jurisdiction, without the
legal control of any other court. As to contempts, the house proceeds against the offender to
punish the contempt. Courts of law proceed to punish offences against the state, and to redress
private wrongs. The same act may be a contempt against the house, an offence against the state,
and an injury to an individual; and in all these respects, proceedings may be had against the
offender.

When the house decides in a question of election, it can conclusively decide on the right of
voting claimed by any elector, so far as is necessary to settle the election. But an elector illegally
deprived of his right of voting, may demand redress for this wrong against the selectmen by a
suit at law. This was decided in the cases of Gardiner and of Kilham against the Selectmen of
Salem, [Note 6] where the only defence set up was, that the plaintiffs had no right to vote. Upon
this question, the judgments of both courts, however rendered, could be executed without any
interference. Let me illustrate the subject by supposing a case or two. A member is assaulted in
the town in which the house is in session, and is cruelly beaten, for words spoken in the house in
the execution of his duty. The house may proceed against the assailant for a contempt; and
cannot the member prosecute him at law for damages? And may not the grand jury indict him for
a breach of the peace? And neither can the proceedings of a court of law control the proceedings
of the house, nor can the proceedings of the house control the courts of law. The judgments of
each court, whatever may be the result, can be executed without any interference. Suppose a
public officer indicted for extortion, and upon trial acquitted at law; cannot he afterwards be
convicted by the senate on an impeachment? Both judgments may be executed without
interference. The courts of law proceed to punish the offender, and he is acquitted. The power of
the senate is censorial, and exercised to preserve purity in office. If it should be supposed that the
senate cannot proceed after an acquittal at law, it should be remembered that, by the express
provision of the constitution, courts of law may proceed after a conviction in senate; and

Page 36

in the proceedings at law the jury may acquit; and it could not have been intended to place the
senate as subordinate to a court of law. The true design of that provision was a mere cautionary
declaration that the proceedings in the senate were not to punish offenders against the state, but
for a different end. And I would add that, in the present case, if the house, of which the defendant
was a member, had proceeded against the plaintiff for a contempt in suing this action, - whatever
had been the result of its proceedings, this Court could not have interfered, or granted any relief,
until the sentence had been performed. And as this judgment could not have affected those
proceedings, so neither could those proceedings have controlled the authority of this Court. The
two courts are independent, and have each exclusive cognizance of the matters within its
jurisdiction; and although the transaction animadverted on may be the same, yet the proceedings
are for different purposes, and the judgments of both courts may be executed without any
interference. There cannot, therefore, be any conflict of jurisdictions.

Extreme cases of the abuse of power, either in the House of Representatives, or in this Court,
may be imagined; but they are not to be argued from, to influence legal decisions.

Since the argument of this cause, I have examined the subject with as much attention as I have
been able to give to it, amidst all the business of the Court pressing on us, with a strong
disposition to guard the privileges of the house, and of its members, because their privileges are
essential to the rights of the people, and ought to be supported, by every good citizen, according
to their true limits.

From this examination I am satisfied that, whatever may be our decision of the question, it is
within our jurisdiction thus brought before us; and that no breach of the privileges of the house,
or a conflict with its jurisdiction, can result from our determination.

I am convinced, after much consideration, that the facts presented by the case do not entitle the
defendant to the privilege which he claims; and that, for this cause, the verdict ought not to be set
aside.

Page 37

Under this impression, to give a different opinion would be a desertion of a solemn duty, and a
gross prevarication with my own conscience.

In this opinion of the Chief Justice, the other judges, viz., Sedgwick, Sewall, Thatcher, and
Parker, severally declared their full and entire concurrence.

The motion for a new trial, on the ground that the jury had given excessive damages, was
afterwards argued by the same counsel.
Dexter observed that the true principle which must govern in every case of this kind was, that the
damages ought to be in exact proportion to the injury sustained. In actions for a breach of
contract, or for a tort committed on property, it is easy to apply this principle; but in actions for a
mere personal tort, the great difficulty was to form a precise estimate of the injury received. It
must be greater or less according to the character and circumstances of the parties, the manner of
the act or words complained of, the degree of malice shown by the wrong-doer, the amount of
the suffering of the other party, and very many other circumstances, which it is not necessary to
recite.

In the case now before the Court, no circumstances appear which should occasion the award of
very extravagant damages. There was no evidence that either of the parties was possessed of very
great wealth. The only witness sworn at the trial testified that the plaintiff was a very respectable
man. There is no disposition on the part of the counsel for the defendant to derogate from that
character. The plaintiff is, however, but a private citizen; so he has not lost any office of rank or
profit, nor been put in hazard of losing such an office. The defendant is the representative of his
town in the legislature of the commonwealth. This is the amount of what appears respecting the
character and circumstances of the parties.

If the words charged had been publicly spoken and addressed to the house, the damage to the
plaintiff would have been greater in proportion to the number of the persons who should hear
them; and it may be added that the defendant's official standing, as a member of the house,
would

Page 38

have given weight, as well as credit and currency, to the slander. Yet in such a case, it is agreed
that the plaintiff could have obtained no pecuniary satisfaction whatever for the injury he might
have sustained.

The sole ground on which an action of slander for charging the party with a crime can be
maintained, though no actual damage be sustained, is that the law presumes damage from the
danger that may arise of being prosecuted for the offence: the present case is one in which the
general principle would not entitle the plaintiff to any damages; for he cannot be put in danger of
a prosecution after an acquittal.

From the fact of the acquittal, it may likewise be strongly argued that the real damage to the
plaintiff must be very inconsiderable; inasmuch as he had it in his power, at any time, to prove
his innocence, by the record of his trial, which he might always have in his pocket, or publish to
the world, if he saw fit. [Note p38]

From these considerations, the damages assessed by the jury appear enormous and excessive,
and it is believed that no case can be shown where so high a sum was given without the
allegation or proof of any actual or special damage whatever.

Whitman, in support of the verdict, said that the conclusions he should draw from his brother
Dexter's premises were widely different from those he had suggested.
If these words had been spoken in debate, they might have been attributed to the warmth, and
even intemperance, not unfrequently exhibited in public discussions. In such case, malice would
be less presumable in the speaker, and the impression on the minds of the hearers would be less
forcible and permanent. By uttering the slander in the artful manner which the case exhibits, the
defendant not only showed more malice than by an open charge unguardedly made in

Page 39

an animated contest, but the mischief and damage to the subject of the slander were also greatly
enhanced.

The counsel for the defendant has said that the plaintiff's acquittal was notorious, and if it was
not, he might publish it, and by this means prevent any injurious impression on the public mind
from the words spoken. That acquittal has been published, and it ought to have been a shield to
the plaintiff, and have protected him against such malignant insinuations. If a judicial declaration
of innocence is not sufficient to protect that innocence from an imputation of guilt, an acquittal
in a court of law, after a full discussion, will lose much of the value which has been attached to
it.

In the case of Bartlett vs. Willis, in Cumberland, which was for a libel, the jury gave 1500
dollars' damage. The defendant there pleaded the truth of the words in justification; and although
such a justification, if it wholly fail in the proof, may be considered rather as an aggravation of
the injury, yet it often happens, and therefore may well be presumed to have happened in that
case, that the defendant, in support of his justification, approaches very near to the legal evidence
of the truth of his plea, which, though not sufficient to give him a verdict, would naturally and
properly have an influence with the jury in lessening the damages.

In the case at bar, the direction of the judge to the jury as to the damages was exceptionable: he
declared it to be a subject entirely and exclusively within their province, and he would say
nothing which might have a tendency to influence their verdict, except to lay down a general rule
in cases of this kind, that the degree of malice was the proper measure of the damages. The law
and the fact united were left to the decision of the jury; and the Court will respect the rights of
juries as well as their own. They will not lightly set aside a verdict given upon full evidence and
solemn argument, where no surprise or corruption is suggested.

The parties in this action, their characters and circumstances, were well known to the jury, who,
in contemplation of law, are their neighbors. If they have estimated those characters and
circumstances, and considered the degree of malice shown in the case, is it for the Court to say
they

Page 40

have overvalued the plaintiff's character, or judged wrongly of the malice exhibited? It was not
improper for the jury to consider the very great expense the plaintiff had been put to in the
prosecution of this action, to which he was impelled by every sentiment of honor. And although
the maintenance of a fair and irreproachable character among his fellow-citizens was his sole
motive in instituting the suit, yet a pecuniary satisfaction is all that by our law he can obtain, and
upon the amount of this will his character in no small degree depend.

The true principle, in cases of this sort was laid down by Lord Mansfield, in the case of Gilbert
vs. Burtenshaw. [Note 7] That was, like the present, a motion to set aside a verdict, and grant a
new trial, on the ground of excessive damages in an action for a malicious prosecution for
perjury, and for slander. Lord Mansfield says he should be sorry to say, that in cases of personal
torts, no new trials should ever be granted for damages which manifestly show the jury to have
been actuated by passion, partiality, or prejudice. But it is not to be done without very strong
grounds indeed; nor unless it appears that the damages are flagrantly outrageous and extravagant.

The Attorney-General, Bidwell, in reply, thought that the circumstances, under which the words
in this case were spoken, indicated a much less degree of malice in the defendant, than if they
had been spoken in public debate. They were not even addressed to an enemy of the plaintiff,
who might have derived a malicious satisfaction in propagating the slander: the communication
was made to the plaintiff's friend, who had, without doubt, been acquainted with all the
circumstances of the indictment and trial, which the defendant is supposed to have had in his
mind when he spoke the words; to one who, the defendant had every reason to believe, would
have no disposition to give currency to the insinuation. The case shows no repetition of the
slander, from which a resolution to persist in it, beyond the mere occasion of uttering it, might be
inferred.

The case of Bartlett vs. Willis was for eighteen or twenty libellous publications concerning the
plaintiff, in a newspaper,

Page 41

edited by the defendant. Some of them charged Mr. Bartlett with gross misconduct in his office,
as a senator of the commonwealth. Neither in the circumstances of the case, nor in the character
of the parties, therefore, can any inference be drawn from that case in support of the present
verdict. It is well known too, notwithstanding the circumstances of aggravation in that action,
that the amount of the damages awarded was a matter of extreme surprise, wherever it was
known.

It is very true that, in presumption of law, the jurors are summoned from among the neighbors of
the parties. But if any stress is laid on this point in the present argument, the Court will take
notice, that when this cause was submitted, at the court below, to a jury, who were in fact all
inhabitants of Nantucket, and the real neighbors of the parties, to whom not only their characters
and situation were perfectly known, but all the circumstances of the transaction, which were
alluded to by the defendant, were familiar, the plaintiff recovered but fifteen dollars for this very
injury and upon the same evidence upon which a jury of this county have awarded the enormous
sum of two thousand five hundred dollars.

Some days after this last argument, the following opinion of the Court was delivered by
PARSONS, C. J. The Court having given their opinion that the verdict ought not to be set aside
for the misdirection of the judge, the defendant now moves for a new trial, because the damages
found by the jury are excessive.

That a verdict may be set aside for excessive damages, there can be no doubt; and it may be done
in two cases: one case is where the law recognizes some fixed rules and principles in measuring
the damages, whence it may be known that there is an error in the verdict. In this case are
included actions on contracts, or for torts done to property, the value of which may be
ascertained by evidence. The other case includes actions for personal injuries, where no rules are
prescribed by law for ascertaining the damages, but from the exorbitancy of them the Court must
conclude that the jury acted from passion, partiality, or corruption -- causes which naturally
produce error or injustice. But to enable the Court to draw this conclusion, it is not enough, that
in

Page 42

their opinion the damages are too high, or that much less damages would have been a sufficient
satisfaction to the plaintiff; for the law has not intrusted the Court with a discretion to estimate
the damages, but has devolved the power on a jury, as a matter of sentiment and feeling, to be
exercised by them according to their sound discretion, duly weighing all the circumstances of the
case, and considering the state, degree, quality, trade, or profession, as well of the party injured,
as of him who did the injury. Judges, therefore, should be very cautious how they overthrow
verdicts, given by twelve men on their oaths, on the ground of excessive damages.

But as excessive damages may be a good cause for setting aside a verdict in an action for a
personal injury, it may be proper to consider when damages are, for this purpose, to be adjudged
by the court to be excessive. In Wilford vs. Berkley, [Note 8] the principle stated is, that the
magnitude of the damages must be such that the court can manifestly see that the jury have been
outrageous in giving such damages as greatly exceeded the injury. A verdict must be set aside for
excessive damages, if they are such as are unreasonable and outrageous, and which all mankind
might at first blush see to be unreasonable. [Note 9] And it must be a glaring case, indeed, of
outrageous damages in a tort, and which all mankind at first blush must think so, to induce the
court to grant a new trial for excessive damages. [Note 10] In the case of Boardman vs.
Carrington & Al., [Note 11] it is observed by the court, that there is great difference between
cases where damages may be seen, as in promises or trespass for goods, and where the damages
are matters of opinion and speculation, and are ideal; that the judges are to advise, and not to
control juries; and when a verdict is set aside for excessive damages, it must be in a case where
the damages are monstrous and enormous indeed, and such as all mankind will be ready to
exclaim against at first blush. It is admitted in the case of Gilbert vs. Burtenshaw, which was
cited at the bar, that verdicts may be set aside for excessive damages, when

Page 43

their magnitude manifestly shows the jury to have been actuated by passion, partiality, or
prejudice. But it is observed that it is by no means to be done because the court may feel, that if
they had been on the jury, they would have given less damages, or because they may think that
the jury would have discharged their duty by giving a less sum; and that of all the cases delivered
to a jury, none is more emphatically left to their sound discretion than an action of slander; and
unless it appears that the damages are flagrantly outrageous and extravagant, it is difficult for the
court to draw a line.

The result of these cases seems clearly to settle the principles which are to govern the court in
setting aside a verdict for excessive damages in an action for a personal injury. When the
damages are so great, that it may be reasonably presumed that the jury, in assessing them, did not
exercise a sound discretion, but were influenced by passion, partiality, prejudice, or corruption,
the court may set aside the verdict, and send the cause to another jury for revision.

Let us now consider the evidence, so far as it can be collected from the record and the judge's
report.

The words uttered imported a charge of a heinous crime, a felonious robbery of the Nantucket
Bank. They were not spoken privately, but in the chamber of the House of Representatives, and
in the hearing of some people there, for Russell was interrupted by the defendant, when
conversing with several gentlemen. The defendant was in a respectable and honorable station,
representing in the legislature the town of Nantucket. And there is no evidence of the condition,
circumstances, or profession, of the plaintiff.

The defendant's counsel have argued that the damages are excessive, on three grounds - That it
appears from the record, that the jury, at the Common Pleas in Nantucket, assessed the damages
at fifteen dollars only; that the defendant did not wantonly seek occasion for uttering the slander,
but that it was offered by the language the witness had used on a subject recently under the
consideration of the house; and that it appears that the plaintiff, having been acquitted of the
crime imputed to him, was not in danger of being prosecuted criminally in consequence of the
defamation.

Page 44

The first argument cannot have any weight, because we have no knowledge of the evidence
offered to the former jury, and can, therefore, form no opinion of the impression, which the
injury, the plaintiff complained of, ought to have made on their minds. And if we could presume
that they had the same evidence that was given to the last jury, yet it is an established rule of law,
that the jury on the appeal are obliged to try the cause uninfluenced by any former verdict.

The circumstance relied on in the second argument does not appear to us to have much, if any,
tendency to mitigate the damages. Russell had declared that his information was from a
respectable gentleman - an epithet, when applied to the plaintiff, the defendant did not brook, but
retorted the charge of felony.

The last circumstance relied on by the defendant's counsel certainly had a tendency, in one view
of the subject, to mitigate the damages, for the reason assigned in the argument. But upon a
consideration of all the circumstances, it is our opinion that its tendency was, upon the whole, to
aggravate the damages. The plaintiff, having been accused of felony, had submitted his cause to
his country, and a jury had acquitted him. This was all he could do in his own justification. If he
is not now to be considered as an innocent man, he has no other remedy, no other hope. This
public declaration of his innocence before a competent and impartial tribunal he has a right to
consider not only as a defence against punishment, but as a shield against calumny. But the
defendant, as far as in him lay, would disarm him of his defence, and expose him, helpless and
unprotected, to obloquy and disgrace. He cannot have another trial for the offence, and when he
seeks, in a civil action, a compensation for the injury, he ought to receive a liberal and exemplary
satisfaction.

There is no objection to the direction of the judge to the jury on the subject of damages; and
there is no evidence that they had been tampered with, or were connected with either party, or
were influenced by any bias or prejudice to either side. The cause was left to them, under all the
circumstances either party thought fit to lay before them; and they found a verdict for the
plaintiff, assessing his damages at twenty-five hundred dollars.

Page 45

Before we can set aside this verdict, on account of these damages, we must infer from their
magnitude, under all the circumstances of this case, that the jury acted intemperately, or were
influenced by passion, prejudice, or partiality. To make this inference, we must have satisfactory
evidence that the damages are excessive; [Note 12]and in our opinion this evidence is not before
us. The verdict, therefore, cannot be set aside.

Were we impressed with a belief that the damages were too great, and that a less sum would
have been an adequate compensation to the plaintiff, yet whether our impression or the
impression of the jury is the most correct, as judges, we are not authorized to determine. The
plaintiff's counsel has intimated that he did not wish for larger damages than the Court should
think reasonable, as the object of his client in the prosecution was to obtain justice for his
character, and not to dispose of it for money. It is not the province of the Court to advise either
party; but as the jury have done ample justice to the plaintiff's character, we are satisfied that a
liberal remission of a part of the damages could not in any manner operate to the plaintiff's
dishonor.

Unless there be a remission of part of the damages, judgment must be entered according to the
verdict. [Note a]

FOOTNOTES

[Note p4] The defendant is of the religious sect called Friends or Quakers

[Note 1] 1 Black. Com. 161

[Note 2] 1 Esp. Rep. 226.

[Note 3] Declaration of Rights, Art. 11.

[Note 4] Rush. 663.

[Note 5] Whitman observed that, the book from which he read not being paged, he could not cite
the place where the passage is found.

[Note 6] Vide 2 Mass. 236 , 244.

[Note p38] Mr. Dexter observed, in the course of his argument upon this question, that he was of
counsel for the prosecution, upon the indictment against the present plaintiff to which the words
spoken alluded; and he said that he was himself perfectly satisfied of the correctness of the
verdict of acquittal, there having been, in his opinion, very little evidence, to throw a suspicion of
guilt upon the object of the prosecution. And this Mr. Dexter believed to be the unanimous
sentiment of all fair and discerning men, who heard the trial.

[Note 7] Cowper, 230.

[Note 8] 1 Burr. 609.

[Note 9] Leeman vs. Allen & Al., 2 Wils. 160.

[Note 10] Huckle vs. Money, 2 Wils. 205.

[Note 11] 2 Wils. 244.

[Note 12] 2 Wils. 248.

[Note a] [ Clark vs. Binney, 2 Pick. 113 . -- Bodwell vs. Osgood, 3 Pick. 379 . -- Shute vs.
Barrett, 7 Pick. 82 . -- Lord Townsend vs. Hughes, 2 Mod. 150. -- Duke of York vs. Pilkington, 2
Show. 246. -- Tillotson vs. Cheetham, 2 Johns. 63. -- Coleman vs. Southwick, 9 Johns. 45. -- 5
Cow. 119. -- Southwick vs. Stevens, 10 Johns. 443. -- Root vs. King, 7 Cow. 613.-- Cole vs.
Perry, 8 Cow. 214. -- Douglass vs. Tinney, 2 Wend. 352. Ryckman vs. Parkins, 9 Wend. 470. --
Rundell vs. Butler, 10 Wend. 119. -- Neal vs Lewis, 2 Bay 204. -- Davis vs. Davis, 2 N. &
McCord, 81. -- Graham's N. T. 410-- 442.-- Ed.]

rticle 1, Section 6, Clause 1

Document 22

Coffin v. Coffin
4 Mass. 1 1803
Parsons, C. J.: The twenty-first article of the declaration of rights declares that "The
freedom of deliberation, speech and debate in either house of the legislature is so
essential to the rights of the people, that it cannot be the foundation of any accusation
or prosecution, action or complaint in any other court or place whatsoever." On this
article the defendant relies for his justification. And if it were competent to the judge
on the trial to declare his opinion of the true intent and meaning of it, it must be
competent for this court to decide whether his opinion was or was not legal: or the
defendant can have no relief by his motion; unless the court are to decide without
enquiry or authority, that the opinion was against law. But I know of no action within
the jurisdiction of a court, and regularly before it, in which it will not be the duty of
the judges to decide all matters of law arising in it, so far as the court is competent to
decide on them, according to their own apprehension of the law. Otherwise they will
have no jurisdiction of legal questions; or they must act as ministerial agents, deciding
according to the will of others.

In considering this article, it appears to me that the privilege secured by it is not so

much the privilege of the house as an organized body, as of each individual member
composing it, who is entitled to this privilege, even against the declared will of the
house. For he does not hold this privilege at the pleasure of the house; but derives it
from the will of the people, expressed in the constitution, which is paramount to the
will of either or both branches of the legislature. In this respect the privilege here
secured resembles other privileges attached to each member by another part of the
constitution, by which he is exempted from arrests on mesne (or original) process,
during his going to, returning from, or attending the general court. Of these privileges,
thus secured to each member, he cannot be deprived, by a resolve of the house, or by
an act of the legislature.

These privileges are thus secured, not with the intention of protecting the members
against prosecutions for their own benefit, but to support the rights of the people, by
enabling their representatives to execute the functions of their office without fear of
prosecutions, civil or criminal. I therefore think that the article ought not to be
construed strictly, but liberally, that the full design of it may be answered. I will not
confine it to delivering an opinion, uttering a speech, or haranguing in debate; but will
extend it to the giving of a vote, to the making of a written report, and to every other
act resulting from the nature, and in the execution, of the office: and I would define
the article, as securing to every member exemption from prosecution, for every thing
said or done by him, as a representative, in the exercise of the functions of that office;
without enquiring whether the exercise was regular according to the rules of the
house, or irregular and against their rules. I do not confine the member to his place in
the house; and I am satisfied that there are cases, in which he is entitled to this
privilege, when not within the walls of the representatives' chamber.
He cannot be exercising the functions of his office as member of a body, unless the
body be in existence. The house must be in session, to enable him to claim this
privilege: and it is in session, notwithstanding occasional adjournments, for short
intervals for the convenience of its members. If a member therefore be out of the
chamber, sitting in committee, executing the commission of the house, it appears to
me that such member is within the reason of the article, and ought to be considered
within the privilege. The body of which he is a member, is in session, and he, as a
member of that body, is in fact discharging the duties of his office. He ought therefore
to be protected from civil or criminal prosecutions for every thing said or done by him
in the exercise of his functions, as a representative in committee, either in debating, in
assenting to, or in draughting a report. Neither can I deny the member his privilege,
when executing the duties of his office, in a convention of both houses, although the
convention should be holden in the senate chamber.

To this construction of the article it is objected, that a private citizen may have his
character basely defamed, without any pecuniary recompense or satisfaction. The
truth of the objection is admitted. But he may have other compensation awarded to
him by the house, who have power, as a necessary incident, to demand of any of its
members a retraction, or apology, of or for any thing he has said, while discharging
the duties of his office, either in the house, in committee, or in a convention of the two
houses, on pain of expulsion. But if it is allowed that the remedy is inadequate, then a
private benefit must submit to the publick good. The injury to the reputation of a
private citizen is of less importance to the commonwealth, than the free and
unreserved exercise of the duties of a representative, unawed by the fear of legal
prosecutions.

A more extensive construction of the privileges of the members secured by this

article, I cannot give; because it could not be supported by the language, or the
manifest intent of the article. When a representative is not acting as a member of the
house, he is not entitled to any privileges above his fellow citizens; nor are the rights
of the people affected if he is placed on the same ground, on which his constituents
stand. He is secured the liberty of travelling to the house, of attending his duties there,
of exercising the functions of his office as a member, and of returning home. But so
careful were the people in providing that the privileges, which they, for their own
benefit, had secured to their representatives, should not unreasonably prejudice the
rights of private citizens; that a member may be arrested upon execution in a civil suit,
in cases where he could not be lawfully arrested on original, or mesne process. And
that offences against law may be duly and seasonably punished, this privilege is not
extended to arrests on criminal prosecutions, in any case where by law the member
may be prosecuted as a criminal.
If this very liberal construction of the twenty-first article be just; if it be warranted by
its language; if it be consonant to its manifest intent and design, the question before
the court lies in a narrow compass.

Was Coffin, the defendant, in speaking the defamatory words, executing the duties of
his office? Or, in other language, was he acting as a representative? If he was, he is
entitled to the privilege he claims: If he was not, but was acting as a private citizen, as
a private citizen he must answer.

Upon information given by the plaintiff to Russell, a member, he had moved a

resolution providing for the choice of another notary for Nantucket; and
on Russell's stating that his information was from a respectable person from that place
the resolution had passed; the house had proceeded to other business; and the subject
matter of the resolution, or of the information, was not in fact before the house;
although it is certain that any member might have moved to rescind the
resolution. Russell, his brother member, was in the passage way, conversing with
several gentlemen: the defendant came to him, and enquired the name
of Russell's informant, who, he had declared, was a respectable gentleman
from Nantucket. Was this inquiry, thus made, the act of a representative, discharging
his duty, or of a private citizen to gratify his curiosity? It was the former, say the
defendant's counsel. Whether it was or not, certainly it was innocent. But to pursue the
evidence: the defendant was answered: whatever was his motive, he had received the
information. If upon it, he intended again to call up the resolution, he might have done
it. But no motion, for that purpose, was ever made. He then utters to Russell the
defamatory words. What part of his legislative duty was he now performing? It is said
that he might apprehend that the plaintiff was a candidate for the office of notary; and
that his motive might be to dissuade Russell from giving him his vote. But there is no
evidence that the defendant supposed the plaintiff to be a candidate, and it is in
evidence that the plaintiff was not a candidate. It is also apparent that the defendant
believed thatRussell was not ignorant of the indictment against the plaintiff, and of his
acquittal. I cannot therefore assign to the defendant any other motive for his indiscreet
language, but to correct Russell for giving to the plaintiff the appellation of a
respectable gentleman; and to justify the correction by asserting that an honourable
acquittal, by the verdict of a jury, is not evidence of innocence. It is not therefore
possible for me to presume that the defendant, in using thus publickly, the defamatory
words, even contemplated that he was in the discharge of any official duty. This
enquiry by the defendant, and his replies might have been made, for all the purposes
intended by him, in State-Street,or in any other place, as well as in the representatives'
chamber: and it is not easy for me to conceive that any language or conduct of a
representative must be considered as official, merely because he chooses the
representatives' chamber for the scene.
But it has been urged, that the privilege must extend to a representative giving
information to a brother member, on any subject before the house; or which may be
expected to come before the house; for the information may be necessary to enable the
member informed to discharge his official duty with ability and propriety. Without
remarking the essential distinction between a man's seeking information on subjects
relating to his office, and his actual execution of its functions: and without observing
the extreme difficulty of supposing that defamatory words, maliciously uttered, can
ever be considered as useful information: I do clearly admit, that a representative will
certainly be entitled to his privilege in all cases, where he shall give information in the
discharge of his official duty; although the manner may be irregular, and against the
rules of the house. But when a representative pleads his privilege, to entitle himself to
it, it must appear that some language or conduct of his, in the character of a
representative, is the foundation of the prosecution, for in no other character can he
claim the privilege.

But in actions for defamatory words against a member, he may, in cases to which his
privilege does not extend, defend himself like any other citizen, by proving that the
words were spoken for a justifiable purpose, not maliciously, nor with a design to
defame the character of any man. And this defence will avail every man charged with
slander, although it may be that the words uttered are not true. I do not therefore
consider any citizen, who is a representative, answerable in a prosecution for
defamation, where the words charged were uttered in the execution of his official duty
although they were spoken maliciously: or where they were not uttered in the
execution of his official duty, if they were not spoken maliciously with an intent to
defame the character of any person. And I do consider a representative holden to
answer for defamatory words, spoken maliciously, and not in discharging the
functions of his office. But to consider every malicious slander, uttered by a citizen,
who is a representative, as within his privilege, because it was uttered in the walls of
the representatives' chamber to another member, but not uttered in executing his
official duty, would be to extend the privilege farther than was intended by the people,
or than is consistent with sound policy; and would render the representatives' chamber
a sanctuary for calumny: an effect, which never has been, and I confidently trust,
never will be endured by any house of representatives of Massachusetts.

It has been said, that although the judge at the trial had no other information of the
nature and extent of the defendant's privileges but what he derived from the
constitution; yet that since the trial, on the first of March instant, the house passed a
resolution declaratory of the privileges of its members, to which declaration we are
obliged to conform in our judgments: because the house is to judge exclusively of its
own privileges.
That the house is to judge exclusively of its privileges; for certain intents and
purposes, is very certain: but if it is to exclude courts of law from judging of the
privileges of its members in every case, the consequences would be unfortunate to the
members. If a member, in any action pleads his privilege, he submits it to the
judgment of the court; and if it be allowed, it is by virtue of the judgment of the court.
All therefore, which the court could do, upon such a hypothesis, would be to reject the
plea, lest, in judging of it, it should invade the privileges of the house.

The resolution declares that words spoken by any member, within the walls of the
house, relative to any subject under their consideration, either in their separate
capacity, or in a convention of both branches of the legislature, whether the member
speaking such words addresses himself in debate to the chair or deliberates or advises
with another member respecting such subject, are alone and exclusively cognizable by
the house; and that for any other tribunal to take cognizance of words thus spoken
would be a violation of the twenty-first article of the constitution. And the words
relied on for the defendant are, "whether the member speaking such words addressed
himself to the chair, or deliberates or advises with another member respecting such
subject."

As it is admitted by the defendants counsel that this court is competent to construe the
twenty-first article, in order to decide whether the facts in the case bring the defendant
within it; so also it is admitted that the court is competent to construe this resolution
for the same purpose. The resolution, judging from the face of it, does not appear to
be an act of the house in any case of contempt on trial before it; but to be a general
declaration of the privileges secured to the members by the twenty-first article of the
constitution; because it is declared that an invasion of these privileges would be a
violation of that article. I consider the house therefore as defining the constitutional
privileges of its members, relating to words spoken by them. In this declaration, the
words must be spoken on a subject before the house, and either addressed to the chair,
or by one member to another by way of deliberation and advice on the same subject.
In either case the words must be spoken officially, although in the latter case they may
be spoken in a disorderly and irregular manner. The house has not therefore claimed
any privileges for its members, when prosecuted for slander, unless the words charged
were spoken officially in the character of a representative. This inference is inevitable,
unless it should be unreasonably concluded that one member could deliberate or
advise with another member, on a subject before the house, having abandoned his
official duty, and acting as a private citizen. Whether I do, or do not allow to the
resolution, thus passed, the force of law: I am satisfied that it claims no privileges, but
what are secured to the members by the constitution, of which, as far as it extends, it
is in affirmance. The resolution does not therefore, in my opinion, aid the defendant;
for it appears, from the facts in the case, that the defamatory words, charged on the
defendant, were not spoken by him on a subject before the house, either in an address
to the chair, or by way of deliberation or advice with another member.

It has been urged that a declaration of privileges made by the house, whether those
privileges do, or do not belong to it, has the force of law, and is obligatory, in all
cases, or the courts of justice. A declaration of that nature is not now before us; for I
am satisfied that the house has all the privileges claimed by its resolution. Whenever a
declaration shall be made by the house, claiming privileges not belonging to it in the
opinion of the judges of a court of law, let the judges then decide the question. The
merits of it must depend on a careful consideration of the constitution, with a due
regard to the privileges and prerogatives of the house resulting from it. On this subject
I give no opinion; but from the observations I have already made, it may not be
improper to declare, that if it had appeared to me that the words charged on the
defendant, had been officially spoken by him without the walls of the representatives'
chamber, either in a convention of the two houses holden in the senate chamber, or in
a committee, while executing the commission of the house then in session, as I am
now advised, I would have allowed him his privilege, although by the resolution
produced, the house seem to confine its privileges to words spoken within the walls of
the representatives' chamber.

But the danger of conflicting jurisdictions has been insisted on with much ability and
eloquence, if we should support the present action. I am sensible that where a conflict
of final jurisdictions exists in any state, there must be a defect in the laws of that state.
In my opinion, this state is not liable to the opprobrium: for I do not conceive that
final conflicting jurisdictions here are consistent either with our constitution or
statutes.

To introduce examples from the British house of commons, cannot much illustrate the
subject. The privileges of that house are not derived from any written constitution, but
have been acquired by the successful struggles of centuries, directed either against the
monarchy or an hereditary aristocracy. The exertions of the commons have generally
been popular, because the people were supposed to reap the fruits of them. In this
state we have a written constitution, formed by the people, in which they have
defined, not only the powers, but the privileges of the house, either by express words,
or by necessary implication. A struggle for privileges, in this state, would be a contest
against the people, to wrest from them what they have not chosen to grant. And it may
be added that the grant of privileges is a restraint on the rights of private citizens,
which cannot be further restrained but by some constitutional law. These principles
are perfectly consistent with the resolution of the house, which is not a claim of any
further privileges not granted by the constitution; but a description of some, and only
of some privileges there granted.
I consider the house of representatives, not only as an integral branch of the
legislature, and as an essential part of the two houses in convention, but also as a court
having final and exclusive cognizance of all matters within its jurisdiction, for the
purposes for which it was vested with jurisdiction. It has jurisdiction of the election of
its members; of the choice of its officers; of its rules of proceeding; and of all
contempts against the house, either in its presence, or by violating the constitutional
privileges of its members. When the house is proceeding as a court, it has, exclusively,
authority to decide whether the matter before it be, or be not within its jurisdiction,
without the legal controul of any other court. As to contempts, the house proceeds
against the offender to punish the contempt. Courts of law proceed to punish offences
against the state, and to redress private wrongs. The same act may be a contempt
against the house, an offence against the state, and an injury to an individual: and in
all these respects, proceedings may be had against the offender.

When the house decides in a question of election, it can conclusively decide on the
right of voting claimed by any elector, so far as is necessary to settle the election. But
an elector, illegally deprived of his right of voting, may demand redress for this wrong
against the selectmen by a suit at law. This was decided in the cases of Gardnerand
of Kilham against the selectmen of Salem: where the only defence set up was that the
plaintiffs had no right to vote. Upon this question the judgments of both courts,
however rendered, could be executed without any interference. Let me illustrate the
subject by supposing a case or two. A member is assaulted in the town, in which the
house is in session, and is cruelly beaten, for words spoken in the house in the
execution of his duty. The house may proceed against the assailant for a contempt:
and cannot the member prosecute him at law for damages? And may not the grand
jury indict him for a breach of the peace? And neither can the proceedings of a court
of law controul the proceedings of the house, nor can the proceedings of the house
controul the courts of law. The judgments of each court, whatever may be the result,
can be executed without any interference. Suppose a publick officer indicted for
extortion, and upon trial acquitted at law; cannot he afterwards be convicted by the
senate on an impeachment? Both judgments may be executed without interference.
The courts of law proceed to punish the offender, and he is acquitted. The power of
the senate is censorial, and exercised to preserve purity in office. If it should be
supposed that the senate cannot proceed after an acquittal at law, it should be
remembered that, by the express provision of the constitution, courts of law may
proceed after a conviction in senate; and in the proceedings at law the jury may
acquit: and it could not have been intended to place the senate as subordinate to a
court of law. The true design of that provision was a mere cautionary declaration that
the proceedings in the senate were not to punish offenders against the state, but for a
different end. And I would add that, in the present case, if the house, of which the
defendant was a member, had proceeded against the plaintiff for a contempt in suing
this action; whatever had been the result of its proceedings, this court could not have
interfered, or granted any relief, until the sentence had been performed. And as this
judgment could not have affected those proceedings, so neither could those
proceedings have controuled the authority of this court. The two courts are
independent and have each exclusive cognizance of the matters within its jurisdiction:
and although the transaction animadverted on may be the same, yet the proceedings
are for different purposes, and the judgments of both courts may be executed without
any interference. There cannot therefore be any conflict of jurisdictions.

Extreme cases of the abuse of power, either in the house of representatives, or in this
court, may be imagined; but they are not to be argued from, to influence legal
decisions.

Since the argument of this cause, I have examined the subject with as much attention
as I have been able to give to it, amidst all the business of the court pressing on us,
with a strong disposition to guard the privileges of the house, and of its members,
because their privileges are essential to the rights of the people, and ought to be
supported, by every good citizen, according to their true limits.

From this examination I am satisfied that, whatever may be our decision of the
question, it is within our jurisdiction thus brought before us; and that no breach of the
privileges of the house, or a conflict with its jurisdiction can result from our
determination.

I am convinced, after much consideration, that the facts presented by the case do not
entitle the defendant to the privilege, which he claims; and that, for this cause, the
verdict ought not to be set aside.

Under this impression, to give a different opinion would be a desertion of a solemn

duty, and a gross prevarication with my own conscience.

In this opinion of the chief justice, the other judges, viz. Sedgwick, Sewall,
Thacher and Parker severally declared their full and entire concurrence.
epublic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-15905 August 3, 1966

NICANOR T. JIMENEZ, ET AL., plaintiffs and appellants,
vs.
BARTOLOME CABANGBANG, defendant and appellee.

Liwag and Vivo and S. Artiaga, Jr. for plaintiffs and appellants.
Jose S. Zafra and Associates and V. M. Fortich Zerda for defendant and appellee.

CONCEPCION, C.J.:

This is an ordinary civil action, originally instituted in the Court of First Instance of Rizal, for the
recovery, by plaintiffs Nicanor T. Jimenez, Carlos J. Albert and Jose L. Lukban, of several sums of
money, by way of damages for the publication of an allegedly libelous letter of defendant Bartolome
Cabangbang. Upon being summoned, the latter moved to dismiss the complaint upon the ground
that the letter in question is not libelous, and that, even if were, said letter is a privileged
communication. This motion having been granted by the lower court, plaintiffs interposed the present
appeal from the corresponding order of dismissal.

The issues before us are: (1) whether the publication in question is a privileged communication; and,
if not, (2) whether it is libelous or not.

The first issue stems from the fact that, at the time of said publication, defendant was a member of
the House of Representatives and Chairman of its Committee on National Defense, and that
pursuant to the Constitution:

The Senators and Members of the House of Representatives shall in all cases except
treason, felony, and breach of the peace, be privileged from arrest during their attendance at
the sessions of the Congress, and in going to and returning from the same; and for any
speech or debate therein, they shall not be questioned in any other place. (Article VI, Section
15.)

The determination of the first issue depends on whether or not the aforementioned publication falls
within the purview of the phrase "speech or debate therein" that is to say, in Congress used in
this provision.

Said expression refers to utterances made by Congressmen in the performance of their official
functions, such as speeches delivered, statements made, or votes cast in the halls of Congress,
while the same is in session, as well as bills introduced in Congress, whether the same is in session
or not, and other acts performed by Congressmen, either in Congress or outside the premises
housing its offices, in the official discharge of their duties as members of Congress and of
Congressional Committees duly authorized to perform its functions as such, at the time of the
performance of the acts in question.1

The publication involved in this case does not belong to this category. According to the complaint
herein, it was an open letter to the President of the Philippines, dated November 14, 1958, when
Congress presumably was not in session, and defendant caused said letter to be published in
several newspapers of general circulation in the Philippines, on or about said date. It is obvious that,
in thus causing the communication to be so published, he was not performing his official duty, either
as a member of Congress or as officer or any Committee thereof. Hence, contrary to the finding
made by His Honor, the trial Judge, said communication is not absolutely privileged.

Was it libelous, insofar as the plaintiffs herein are concerned? Addressed to the President, the
communication began with the following paragraph:
 In the light of the recent developments which however unfortunate had nevertheless involved
the Armed Forces of the Philippines and the unfair attacks against the duly elected members
of Congress of engaging in intriguing and rumor-mongering, allow me, Your Excellency, to
address this open letter to focus public attention to certain vital information which, under the
present circumstances, I feel it my solemn duty to our people to expose. 1wph1.t

It has come to my attention that there have been allegedly three operational plans under
serious study by some ambitious AFP officers, with the aid of some civilian political
strategists.

Then, it describes the "allegedly three (3) operational plans" referred to in the second paragraph.
The first plan is said to be "an insidious plan or a massive political build-up" of then Secretary of
National Defense, Jesus Vargas, by propagandizing and glamorizing him in such a way as to "be
prepared to become a candidate for President in 1961". To this end, the "planners" are said to "have
adopted the sales-talk that Secretary Vargas is 'Communists' Public Enemy No. 1 in the Philippines."
Moreover, the P4,000,000.00 "intelligence and psychological warfare funds" of the Department of
National Defense, and the "Peace and Amelioration Fund" the letter says are "available to
adequately finance a political campaign". It further adds:

It is reported that the "Planners" have under their control the following: (1) Col. Nicanor
Jimenez of NICA, (2) Lt. Col. Jose Lukban of NBI, (3) Capt. Carlos Albert (PN) of G-2 AFP,
(4) Col. Fidel Llamas of MIS (5) Lt. Col. Jose Regala of the Psychological Warfare Office,
DND, and (6) Major Jose Reyna of the Public information Office, DND. To insure this control,
the "Planners" purportedly sent Lt. Col. Job Mayo, Chief of MIS to Europe to study and while
Mayo was in Europe, he was relieved by Col. Fidel Llamas. They also sent Lt. Col.
Deogracias Caballero, Chief of Psychological Warfare Office, DND, to USA to study and
while Caballero was in USA, he was relieved by Lt. Col. Jose Regala. The "Planners" wanted
to relieve Lt. Col. Ramon Galvezon, Chief of CIS (PC) but failed. Hence, Galvezon is
considered a missing link in the intelligence network. It is, of course, possible that the offices
mentioned above are unwitting tools of the plan of which they may have absolutely no
knowledge. (Emphasis ours.)

Among the means said to be used to carry out the plan the letter lists, under the heading "other
operational technique the following:

(a) Continuous speaking engagements all over the Philippines for Secretary Vargas to talk
on "Communism" and Apologetics on civilian supremacy over the military;

(b) Articles in magazines, news releases, and hundreds of letters "typed in two (2)
typewriters only" to Editors of magazines and newspapers, extolling Secretary Vargas as
the "hero of democracy in 1951, 1953, 1955 and 1957 elections";

(c) Radio announcements extolling Vargas and criticizing the administration;

(d) Virtual assumption by Vargas of the functions of the Chief of Staff and an attempt to pack
key positions in several branches of the Armed Forces with men belonging to his clique;

(e) Insidious propaganda and rumors spread in such a way as to give the impression that
they reflect the feeling of the people or the opposition parties, to undermine the
administration.
Plan No. II is said to be a "coup d'etat", in connection with which the "planners" had gone no further
than the planning stage, although the plan "seems to be held in abeyance and subject to future
developments".

Plan No. III is characterized as a modification of Plan No. I, by trying to assuage the President and
the public with a loyalty parade, in connection with which Gen. Arellano delivered a speech
challenging the authority and integrity of Congress, in an effort to rally the officers and men of the
AFP behind him, and gain popular and civilian support.

The letter in question recommended.: (1) that Secretary Vargas be asked to resign; (2) that the
Armed Forces be divorced absolutely from politics; (3) that the Secretary of National Defense be a
civilian, not a professional military man; (4) that no Congressman be appointed to said office; (5) that
Gen. Arellano be asked to resign or retire; (6) that the present chiefs of the various intelligence
agencies in the Armed Forces including the chiefs of the NICA, NBI, and other intelligence agencies
mentioned elsewhere in the letter, be reassigned, considering that "they were handpicked by
Secretary Vargas and Gen. Arellano", and that, "most probably, they belong to the Vargas-Arellano
clique"; (7) that all military personnel now serving civilian offices be returned to the AFP, except
those holding positions by provision of law; (8) that the Regular Division of the AFP stationed in
Laur, Nueva Ecija, be dispersed by batallion strength to the various stand-by or training divisions
throughout the country; and (9) that Vargas and Arellano should disqualify themselves from holding
or undertaking an investigation of the planned coup d'etat".

We are satisfied that the letter in question is not sufficient to support plaintiffs' action for damages.
Although the letter says that plaintiffs are under the control of the unnamed persons therein alluded
to as "planners", and that, having been handpicked by Secretary Vargas and Gen. Arellano, plaintiffs
"probably belong to the Vargas-Arellano clique", it should be noted that defendant, likewise, added
that "it is of course possible" that plaintiffs "are unwitting tools of the plan of which they may have
absolutely no knowledge". In other words, the very document upon which plaintiffs' action is based
explicitly indicates that they might be absolutely unaware of the alleged operational plans, and that
they may be merely unwitting tools of the planners. We do not think that this statement is derogatory
to the plaintiffs, to the point of entitling them to recover damages, considering that they are officers of
our Armed Forces, that as such they are by law, under the control of the Secretary of National
Defense and the Chief of Staff, and that the letter in question seems to suggest that the group
therein described as "planners" include these two (2) high ranking officers.

It is true that the complaint alleges that the open letter in question was written by the defendant,
knowing that it is false and with the intent to impeach plaintiffs' reputation, to expose them to public
hatred, contempt, dishonor and ridicule, and to alienate them from their associates, but these
allegations are mere conclusions which are inconsistent with the contents of said letter and can not
prevail over the same, it being the very basis of the complaint. Then too, when plaintiffs allege in
their complaint that said communication is false, they could not have possibly meant that they were
aware of the alleged plan to stage a coup d'etat or that they were knowingly tools of the "planners".
Again, the aforementioned passage in the defendant's letter clearly implies that plaintiffs were not
among the "planners" of said coup d'etat, for, otherwise, they could not be "tools", much less,
unwittingly on their part, of said "planners".

Wherefore, the order appealed from is hereby affirmed. It is so ordered.

Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ.,
concur.

Footnotes
 Vera vs. Avelino, 77 Phil. 192; Tenney vs. Brandhove, 341 U.S. 367; Coffin vs. Coffin, 4
1

Mass 1.

Bartolome Cabangbang was a member of the House of Representatives and Chairman of

its Committee on National Defense. In November 1958, Cabangbang caused the
publication of an open letter addressed to the Philippines. Said letter alleged that there have
been allegedly three operational plans under serious study by some ambitious AFP officers,
with the aid of some civilian political strategists. That such strategists have had collusions
with communists and that the Secretary of Defense, Jesus Vargas, was planning a coup
dtat to place him as the president. The planners allegedly have Nicanor Jimenez, among
others, under their guise and that Jimenez et al may or may not be aware that they are
being used as a tool to meet such an end. The letter was said to have been published in
newspapers of general circulation. Jimenez then filed a case against Cabangbang to collect
a sum of damages against Cabangbang alleging that Cabangbangs statement is libelous.
Cabangbang petitioned for the case to be dismissed because he said that as a member of
the lower house, he is immune from suit and that he is covered by the privileged
communication rule and that the said letter is not even libelous.
ISSUE: Whether or not the open letter is covered by privilege communication endowed to
members of Congress.
HELD: No. Article VI, Section 15 of the Constitution provides The Senators and Members
of the House of Representatives shall in all cases except treason, felony, and breach of the
peace. Be privileged from arrest during their attendance at the sessions of the Congress,
and in going to and returning from the same; and for any speech or debate therein, they
shall not be questioned in any other place.
The publication of the said letter is not covered by said expression which refers to
utterances made by Congressmen in the performance of their official functions, such as
speeches delivered, statements made, or votes cast in the halls of Congress, while the
same is in session as well as bills introduced in Congress, whether the same is in session
or not, and other acts performed by Congressmen, either in Congress or outside the
premises housing its offices, in the official discharge of their duties as members of
Congress and of Congressional Committees duly authorized to perform its functions as
such at the time of the performance of the acts in question. Congress was not in session
when the letter was published and at the same time he, himself, caused the publication of
the said letter. It is obvious that, in thus causing the communication to be so published, he
was not performing his official duty, either as a member of Congress or as officer of any
Committee thereof. Hence, contrary to the finding made by the lower court the said
communication is not absolutely privileged.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-68159 March 18, 1985

HOMOBONO ADAZA, petitioner,
vs.
FERNANDO PACANA, JR., respondent

ESCOLIN, J.:

The issues posed for determination in this petition for prohibition with prayer for a writ of preliminary
injunction and/or restraining order are: [1] whether or not a provincial governor who was elected and
had qualified as a Mambabatas Pambansa [MP] can exercise and discharge the functions of both
offices simultaneously; and [2] whether or not a vice-governor who ran for the position of
Mambabatas Pambansa, but lost, can continue serving as vice-governor and subsequently succeed
to the office of governor if the said office is vacated.

The factual background of the present controversy is as follows:

Petitioner Homobono A. Adaza was elected governor of the province of Misamis Oriental in the
January 30, 1980 elections. He took his oath of office and started discharging his duties as provincial
governor on March 3, 1980. Elected vice-governor for said province in the same elections was
respondent Fernando Pacana, Jr., who likewise qualified for and assumed said office on March 3,
1980. Under the law, their respective terms of office would expire on March 3, 1986.

On March 27, 1984, respondent Pacana filed his certificate of candidacy for the May 14, 1984
Batasan Pambansa elections; petitioner Adaza followed suit on April 27, 1984. In the ensuing
elections, petitioner won by placing first among the candidates, while respondent lost.

Petitioner took his oath of office as Mambabatas Pambansa on July 19, 1984 1 and since then he
has discharged the functions of said office.

On July 23, 1984, respondent took his oath of office as governor of Misamis Oriental before
President Ferdinand E. Marcos, 2 and started to perform the duties of governor on July 25, 1984.

Claiming to be the lawful occupant of the governor's office, petitioner has brought this petition to
exclude respondent therefrom. He argues that he was elected to said office for a term of six years,
that he remains to be the governor of the province until his term expires on March 3, 1986 as
provided by law, and that within the context of the parliamentary system, as in France, Great Britain
and New Zealand, a local elective official can hold the position to which he had been elected and
simultaneously be an elected member of Parliament.

Petitioner further contends that respondent Pacana should be considered to have abandoned or
resigned from the position of vice-governor when he filed his certificate of candidacy for the 1984
Batas Pambansa elections; and since respondent had reverted to the status of a mere private citizen
after he lost in the Batas Pambansa elections, he could no longer continue to serve as vice-
governor, much less assume the office of governor.

1. The constitutional prohibition against a member of the Batasan Pambansa from holding any other
office or employment in the government during his tenure is clear and unambiguous. Section 10,
Article VIII of the 1973 Constitution provides as follows:

Section 10 A member of the National Assembly [now Batasan Pambansa shall not
hold any other office or employment in the government or any subdivision, agency or
 instrumentality thereof, including government owned or controlled corporations,
during his tenure, except that of prime minister or member of the cabinet. ...

The language used in the above-cited section is plain, certain and free from ambiguity. The only
exceptions mentioned therein are the offices of prime minister and cabinet member. The wisdom or
expediency of the said provision is a matter which is not within the province of the Court to
determine.

A public office is a public trust. 3 It is created for the interest and the benefit of the people. As such, a
holder thereof "is subject to such regulations and conditions as the law may impose" and "he cannot
complain of any restrictions which public policy may dictate on his holding of more than one
office." 4 It is therefore of no avail to petitioner that the system of government in other states allows a
local elective official to act as an elected member of the parliament at the same time. The dictate of
the people in whom legal sovereignty lies is explicit. It provides no exceptions save the two offices
specifically cited in the above-quoted constitutional provision. Thus, while it may be said that within
the purely parliamentary system of government no incompatibility exists in the nature of the two
offices under consideration, as incompatibility is understood in common law, the incompatibility
herein present is one created by no less than the constitution itself. In the case at bar, there is no
question that petitioner has taken his oath of office as an elected Mambabatas Pambansa and has
been discharging his duties as such. In the light of the oft-mentioned constitutional provision, this
fact operated to vacate his former post and he cannot now continue to occupy the same, nor attempt
to discharge its functions.

2. The second proposition advanced by petitioner is that respondent Pacana, as a mere private
citizen, had no right to assume the governorship left vacant by petitioner's election to the Batasan
Pambansa. He maintains that respondent should be considered as having abandoned or resigned
from the vice-governorship when he filed his certificate of candidacy for the Batas Pambansa
elections. The point pressed runs afoul of Batas Pambansa Blg. 697, the law governing the election
of members of the Batasan Pambansa on May 14, 1984, Section 13[2] of which specifically provides
that "governors, mayors, members of the various sangguniang or barangay officials shall, upon filing
a certificate of candidacy, be considered on forced leave of absence from office." Indubitably,
respondent falls within the coverage of this provision, considering that at the time he filed his
certificate of candidacy for the 1984 Batasan Pambansa election he was a member of the
Sangguniang Panlalawigan as provided in Sections 204 and 205 of Batas Pambansa Blg.
337, 5 otherwise known as the Local Government Code. The reason the position of vice-governor
was not included in Section 13[2] of BP Blg. 697 is explained by the following interchange between
Assemblymen San Juan and Davide during the deliberations on said legislation:

MR. DAVIDE. If I was able to get correctly the proposed amendment it would cover
only governors and members of the different sanggunians? Mayor, governors?

MR. SAN JUAN. Governors, mayors, members of the various sanggunian or

barangay officials. A vice-governor is a member of the Sanggunian Panlalawigan.

MR. DAVIDE. All. Why don't we instead use the word, "Local officials?

MR. SAN JUAN. Well, Mr. Speaker, your humble representation ...

MR. DAVIDE. And, secondly, why don't we include the vice-governor, the vice-
mayors?
 MR. SAN JUAN. Because they are members of the Sanggunians, Mr. Speaker. They
are covered by the provision on members of sanggunian. [Record of Proceedings,
February 20, 1984, p. 92, Rollo]

Thus, when respondent reassumed the position of vice-governor after the Batas Pambansa
elections, he was acting within the law. His succession to the governorship was equally legal and
valid, the same being in accordance with Section 204[2] [a] of the same Local Government Code,
which reads as follows:

SECTION 204. Powers, Duties and Privileges:

1] x x x

2] He shall:

a] Assume the office of the governor for the unexpired term of the latter in the cases
provided for in Section 48, paragraph 16 of this Code;

WHEREFORE, the instant petition is hereby dismissed. No costs.

SO ORDERED.

Teehankee, Makasiar, Aquino, Concepcion Jr., Melencio-Herrera, Plana, Relova, Gutierrez, Jr., De
la Fuente, Cuevas and Alampay, JJ., concur.

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

Footnotes

Homobono Adaza was elected governor of the province of Misamis Oriental in the January
30, 1980 elections. He took his oath of office and started discharging his duties as provincial
governor on March 3, 1980. Fernando Pacana, Jr. was elected vice-governor for same
province in the same elections. Under the law, their respective terms of office would expire
on March 3, 1986. On March 27, 1984, Pacana filed his certificate of candidacy for the May
14, 1984 BP elections; petitioner Adaza followed suit on April 27, 1984. In the ensuing
elections, petitioner won by placing first among the candidates, while Pacana lost. Adaza
took his oath of office as Mambabatas Pambansa on July 19, 1984 and since then he has
discharged the functions of said office. On July 23, 1984, Pacana took his oath of office as
governor of Misamis Oriental before President Marcos, and started to perform the duties of
governor on July 25, 1984. Claiming to be the lawful occupant of the governors office,
Adaza has brought this petition to exclude Pacana therefrom. He argues that he was
elected to said office for a term of six years, that he remains to be the governor of the
province until his term expires on March 3, 1986 as provided by law, and that within the
context of the parliamentary system, as in France, Great Britain and New Zealand, a local
elective official can hold the position to which he had been elected and simultaneously be
an elected member of Parliament.
ISSUE: Whether or not Adaza can serve as a member of the Batasan and as a governor of
the province simultaneously. Whether or not a vice governor who ran for Congress and lost
can assume his original position and as such can, by virtue of succession, take the vacated
seat of the governor.
HELD: Section 10, Article VIII of the 1973 Constitution provides as follows:
Section 10. A member of the National Assembly [now Batasan Pambansa] shall not hold
any other office or employment in the government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations, during his
tenure, except that of prime minister or member of the cabinet . . .
The Philippine Constitution is clear and unambiguous. Hence Adaza cannot invoke common
law practices abroad. He cannot complain of any restrictions which public policy may dictate
on his holding of more than one office. Adaza further contends that when Pacana filed his
candidacy for the Batasan he became a private citizen because he vacated his office.
Pacana, as a mere private citizen, had no right to assume the governorship left vacant by
petitioners election to the BP. This is not tenable and it runs afoul against BP. 697, the law
governing the election of members of the BP on May 14, 1984, Section 13[2] of which
specifically provides that governors, mayors, members of the various sangguniang or
barangay officials shall, upon filing a certificate of candidacy, be considered on forced leave
of absence from office. Indubitably, respondent falls within the coverage of this provision,
considering that at the time he filed his certificate of candidacy for the 1984 BP election he
was a member of the Sangguniang Panlalawigan as provided in Sections 204 and 205 of
Batas Pambansa Blg. 337, otherwise known as the Local Government Code.

Republic of the Philippines

Supreme Court
Manila
EN BANC

DATU MICHAEL ABAS KIDA, G.R. No. 196271

in his personal capacity, and in
representation of MAGUINDANAO Present:
FEDERATION OF AUTONOMOUS
IRRIGATORS ASSOCIATION, CORONA, C.J.,
INC., HADJI MUHMINA J. CARPIO,
USMAN, JOHN ANTHONY L. LIM, VELASCO, JR.,
JAMILON T. ODIN, ASRIN LEONARDO-DE CASTRO,
TIMBOL JAIYARI, MUJIB M. BRION,
KALANG, ALIH AL-SAIDI J. SAPI- PERALTA,
E, KESSAR DAMSIE ABDIL, and BERSAMIN,
BASSAM ALUH SAUPI, DEL CASTILLO,
Petitioners, ABAD,
VILLARAMA, JR.,
PEREZ,
- versus - MENDOZA,
SERENO,
REYES, and
SENATE OF THE PHILIPPINES, PERLAS-BERNABE, JJ.
represented by its President JUAN
PONCE ENRILE, HOUSE OF Promulgated:
REPRESENTATIVES, thru
SPEAKER FELICIANO October 18, 2011
BELMONTE, COMMISSION ON
ELECTIONS, thru its Chairman,
SIXTO BRILLANTES, JR.,
PAQUITO OCHOA, JR., Office of
the President Executive Secretary,
FLORENCIO ABAD, JR., Secretary
of Budget, and ROBERTO TAN,
Treasurer of the Philippines,
Respondents.
x----------------------------------------------x
BASARI D. MAPUPUNO, G.R. No. 196305
Petitioner,

- versus -

SIXTO BRILLANTES, in his

capacity as Chairman of the
Commission on Elections,
FLORENCIO ABAD, JR. in his
capacity as Secretary of the
Department of Budget and
Management, PACQUITO OCHOA,
JR., in his capacity as Executive
Secretary, JUAN PONCE ENRILE,
in his capacity as Senate President,
and FELICIANO BELMONTE, in
his capacity as Speaker of the House
of Representatives,
Respondents.
x----------------------------------------------x

REP. EDCEL C. LAGMAN, G.R. No. 197221

Petitioner,

- versus -

PAQUITO N. OCHOA, JR., in his

capacity as the Executive Secretary,
and the COMMISSION ON
ELECTIONS,
Respondents.
x----------------------------------------------x

ALMARIM CENTI TILLAH, DATU G.R. No. 197280

CASAN CONDING CANA, and
PARTIDO DEMOKRATIKO
PILIPINO LAKAS NG BAYAN
(PDP-LABAN),
Petitioners,

- versus -

THE COMMISSION ON
ELECTIONS, through its Chairman,
SIXTO BRILLANTES, JR., HON.
PAQUITO N. OCHOA, JR., in his
capacity as Executive Secretary,
HON. FLORENCIO B. ABAD, JR.,
in his capacity as Secretary of the
Department of Budget and
Management, and HON. ROBERTO
B. TAN, in his capacity as Treasurer
of the Philippines,
Respondents.
x----------------------------------------------x

ATTY. ROMULO B. G.R. No. 197282

MACALINTAL,
Petitioner,

- versus -

COMMISSION ON ELECTIONS
and THE OFFICE OF THE
PRESIDENT, through EXECUTIVE
SECRETARY PAQUITO N.
OCHOA, JR.,
Respondents.
x----------------------------------------------x

LUIS BAROK BIRAOGO, G.R. No. 197392

Petitioner,

- versus -

THE COMMISSION ON
ELECTIONS and EXECUTIVE
SECRETARY PAQUITO N.
OCHOA, JR.,
Respondents.
x----------------------------------------------x

JACINTO V. PARAS, G.R. No. 197454

Petitioner,

- versus -

EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR., and the
COMMISSION ON ELECTIONS,
Respondents.
x--------------------------------------------x

MINORITY RIGHTS FORUM,

PHILIPPINES, INC.,
Respondents-Intervenor.

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

DECISION
BRION, J.:

On June 30, 2011, Republic Act (RA) No. 10153, entitled An Act Providing
for the Synchronization of the Elections in the Autonomous Region in Muslim
Mindanao (ARMM) with the National and Local Elections and for Other
Purposes was enacted. The law reset the ARMM elections from the 8th of August
2011, to the second Monday of May 2013 and every three (3) years thereafter, to
coincide with the countrys regular national and local elections. The law as well
granted the President the power to appoint officers-in-charge (OICs) for the Office
of the Regional Governor, the Regional Vice-Governor, and the Members of the
Regional Legislative Assembly, who shall perform the functions pertaining to the
said offices until the officials duly elected in the May 2013 elections shall have
qualified and assumed office.

Even before its formal passage, the bills that became RA No. 10153 already
spawned petitions against their validity; House Bill No. 4146 and Senate Bill No.
2756 were challenged in petitions filed with this Court. These petitions multiplied
after RA No. 10153 was passed.

Factual Antecedents

The State, through Sections 15 to 22, Article X of the 1987 Constitution,

mandated the creation of autonomous regions in Muslim Mindanao and
the Cordilleras. Section 15 states:

Section 15. There shall be created autonomous regions in Muslim Mindanao and
in the Cordilleras consisting of provinces, cities, municipalities, and geographical
areas sharing common and distinctive historical and cultural heritage, economic
and social structures, and other relevant characteristics within the framework of
this Constitution and the national sovereignty as well as territorial integrity of the
Republic of the Philippines.

Section 18 of the Article, on the other hand, directed Congress to enact an

organic act for these autonomous regions to concretely carry into effect the granted
autonomy.

Section 18. The Congress shall enact an organic act for each autonomous region
with the assistance and participation of the regional consultative commission
composed of representatives appointed by the President from a list of nominees
from multisectoral bodies. The organic act shall define the basic structure of
government for the region consisting of the executive department and legislative
assembly, both of which shall be elective and representative of the constituent
political units. The organic acts shall likewise provide for special courts with
personal, family and property law jurisdiction consistent with the provisions of
this Constitution and national laws.

The creation of the autonomous region shall be effective when approved

by a majority of the votes cast by the constituent units in a plebiscite called for the
purpose, provided that only provinces, cities, and geographic areas voting
favorably in such plebiscite shall be included in the autonomous region.
 On August 1, 1989 or two years after the effectivity of the 1987
Constitution, Congress acted through Republic Act (RA) No. 6734 entitled An Act
Providing for an Organic Act for the Autonomous Region in Muslim Mindanao. A
plebiscite was held on November 6, 1990 as required by Section 18(2), Article X
of RA No. 6734, thus fully establishing the Autonomous Region of Muslim
Mindanao (ARMM). The initially assenting provinces were Lanao del Sur,
Maguindanao, Sulu and Tawi-tawi. RA No. 6734 scheduled the first regular
elections for the regional officials of the ARMM on a date not earlier than 60 days
nor later than 90 days after its ratification.

RA No. 9054 (entitled An Act to Strengthen and Expand the Organic Act for the
Autonomous Region in Muslim Mindanao, Amending for the Purpose Republic Act
No. 6734, entitled An Act Providing for the Autonomous Region in Muslim
Mindanao, as Amended) was the next legislative act passed. This law provided
further refinement in the basic ARMM structure first defined in the original
organic act, and reset the regular elections for the ARMM regional officials to the
second Monday of September 2001.

Congress passed the next law affecting ARMM RA No. 9140[1] - on June 22,
2001. This law reset the first regular elections originally scheduled under RA No.
9054, to November 26, 2001. It likewise set the plebiscite to ratify RA No. 9054 to
not later than August 15, 2001.

RA No. 9054 was ratified in a plebiscite held on August 14, 2001.

The province of Basilan and Marawi Cityvoted to join ARMM on the same date.

RA No. 9333[2] was subsequently passed by Congress to reset the ARMM

regional elections to the 2nd Monday of August 2005, and on the same date every 3
years thereafter. Unlike RA No. 6734 and RA No. 9054, RA No. 9333 was not
ratified in a plebiscite.

Pursuant to RA No. 9333, the next ARMM regional elections should have
been held on August 8, 2011. COMELEC had begun preparations for these
elections and had accepted certificates of candidacies for the various regional
offices to be elected. But on June 30, 2011, RA No. 10153 was enacted, resetting
the ARMM elections to May 2013, to coincide with the regular national and local
elections of the country.
 RA No. 10153 originated in the House of Representatives as House Bill
(HB) No. 4146, seeking the postponement of the ARMM elections scheduled
on August 8, 2011. On March 22, 2011, the House of Representatives passed HB
No. 4146, with one hundred ninety one (191) Members voting in its favor.

After the Senate received HB No. 4146, it adopted its own version, Senate
Bill No. 2756 (SB No. 2756), on June 6, 2011. Thirteen (13) Senators voted
favorably for its passage. On June 7, 2011, the House of Representative concurred
with the Senate amendments, and on June 30, 2011, the President signed RA No.
10153 into law.

As mentioned, the early challenge to RA No. 10153 came through a petition

filed with this Court G.R. No. 196271[3] - assailing the constitutionality of both HB
No. 4146 and SB No. 2756, and challenging the validity of RA No. 9333 as well
for non-compliance with the constitutional plebiscite requirement. Thereafter,
petitioner Basari Mapupuno in G.R. No. 196305 filed another petition[4] also
assailing the validity of RA No. 9333.

With the enactment into law of RA No. 10153, the COMELEC stopped its
preparations for the ARMM elections.The law gave rise as well to the filing of the
following petitions against its constitutionality:

a) Petition for Certiorari and Prohibition[5] filed by Rep. Edcel Lagman as a

member of the House of Representatives against Paquito Ochoa, Jr. (in his
capacity as the Executive Secretary) and the COMELEC, docketed as G.R.
No. 197221;

b) Petition for Mandamus and Prohibition[6] filed by Atty. Romulo Macalintal

as a taxpayer against the COMELEC, docketed as G.R. No. 197282;

c) Petition for Certiorari and Mandamus, Injunction and Preliminary

Injunction[7] filed by Louis Barok Biraogo against the COMELEC and
Executive Secretary Paquito N. Ochoa, Jr., docketed as G.R. No. 197392;
and

d) Petition for Certiorari and Mandamus[8] filed by Jacinto Paras as a member

of the House of Representatives against Executive Secretary Paquito Ochoa,
Jr. and the COMELEC, docketed as G.R. No. 197454.
 Petitioners Alamarim Centi Tillah and Datu Casan Conding Cana as
registered voters from the ARMM, with the Partido Demokratiko Pilipino Lakas
ng Bayan (a political party with candidates in the ARMM regional elections
scheduled for August 8, 2011), also filed a Petition for Prohibition and
Mandamus[9] against the COMELEC, docketed as G.R. No. 197280, to assail the
constitutionality of RA No. 9140, RA No. 9333 and RA No. 10153.

Subsequently, Anak Mindanao Party-List, Minority Rights Forum Philippines, Inc.

and Bangsamoro Solidarity Movement filed their own Motion for Leave to Admit
their Motion for Intervention and Comment-in-Intervention dated July 18, 2011.
On July 26, 2011, the Court granted the motion. In the same Resolution, the Court
ordered the consolidation of all the petitions relating to the constitutionality of HB
No. 4146, SB No. 2756, RA No. 9333, and RA No. 10153.

Oral arguments were held on August 9, 2011 and August 16, 2011. Thereafter, the
parties were instructed to submit their respective memoranda within twenty (20)
days.

On September 13, 2011, the Court issued a temporary restraining order enjoining
the implementation of RA No. 10153 and ordering the incumbent elective officials
of ARMM to continue to perform their functions should these cases not be decided
by the end of their term on September 30, 2011.

The Arguments

The petitioners assailing RA No. 9140, RA No. 9333 and RA No. 10153 assert that
these laws amend RA No. 9054 and thus, have to comply with the supermajority
vote and plebiscite requirements prescribed under Sections 1 and 3, Article XVII
of RA No. 9094 in order to become effective.

The petitions assailing RA No. 10153 further maintain that it is unconstitutional for
its failure to comply with the three-reading requirement of Section 26(2), Article
VI of the Constitution. Also cited as grounds are the alleged violations of the right
of suffrage of the people of ARMM, as well as the failure to adhere to the elective
and representative character of the executive and legislative departments of the
ARMM. Lastly, the petitioners challenged the grant to the President of the power
to appoint OICs to undertake the functions of the elective ARMM officials until
the officials elected under the May 2013 regular elections shall have assumed
office. Corrolarily, they also argue that the power of appointment also gave the
President the power of control over the ARMM, in complete violation of Section
16, Article X of the Constitution.

The Issues

From the parties submissions, the following issues were recognized and argued by
the parties in the oral arguments of August 9 and 16, 2011:

I. Whether the 1987 Constitution mandates the synchronization of

elections

II. Whether the passage of RA No. 10153 violates Section 26(2),

Article VI of the 1987 Constitution

III. Whether the passage of RA No. 10153 requires a supermajority

vote and plebiscite

A. Does the postponement of the ARMM regular elections

constitute an amendment to Section 7, Article XVIII of RA
No. 9054?

B. Does the requirement of a supermajority vote for

amendments or revisions to RA No. 9054 violate Section 1
and Section 16(2), Article VI of the 1987 Constitution and
the corollary doctrine on irrepealable laws?

C. Does the requirement of a plebiscite apply only in the

creation of autonomous regions under paragraph 2, Section
18, Article X of the 1987 Constitution?

IV. Whether RA No. 10153 violates the autonomy granted to the

ARMM

V. Whether the grant of the power to appoint OICs violates:

 A. Section 15, Article X of the 1987 Constitution

B. Section 16, Article X of the 1987 Constitution

C. Section 18, Article X of the 1987 Constitution

VI. Whether the proposal to hold special elections is constitutional and legal.

We shall discuss these issues in the order they are presented above.

OUR RULING

We resolve to DISMISS the petitions and thereby UPHOLD the

constitutionality of RA No. 10153 in toto.

I. Synchronization as a recognized constitutional mandate

The respondent Office of the Solicitor General (OSG) argues that the Constitution
mandates synchronization, and in support of this position, cites Sections 1, 2 and 5,
Article XVIII (Transitory Provisions) of the 1987 Constitution, which provides:

Section 1. The first elections of Members of the Congress under this

Constitution shall be held on the second Monday of May, 1987.
The first local elections shall be held on a date to be determined by the
President, which may be simultaneous with the election of the Members
of the Congress. It shall include the election of all Members of the city
or municipal councils in the Metropolitan Manila area.
Section 2. The Senators, Members of the House of Representatives and
the local officials first elected under this Constitution shall serve
until noon of June 30, 1992.
Of the Senators elected in the election in 1992, the first twelve obtaining
the highest number of votes shall serve for six year and the remaining
twelve for three years.
xxx
 Section 5. The six-year term of the incumbent President and Vice
President elected in the February 7, 1986 election is, for purposes of
synchronization of elections, hereby extended to noon of June 30, 1992.
The first regular elections for President and Vice-President under this
Constitution shall be held on the second Monday of May, 1992.
We agree with this position.

While the Constitution does not expressly state that Congress has to
synchronize national and local elections, the clear intent towards this objective can
be gleaned from the Transitory Provisions (Article XVIII) of the
Constitution,[10] which show the extent to which the Constitutional Commission, by
deliberately making adjustments to the terms of the incumbent officials, sought to
attain synchronization of elections.[11]

The objective behind setting a common termination date for all elective
officials, done among others through the shortening the terms of the twelve
winning senators with the least number of votes, is to synchronize the holding of
all future elections whether national or local to once every three years. [12] This
intention finds full support in the discussions during the Constitutional
Commission deliberations.[13]
These Constitutional Commission exchanges, read with the provisions of the
Transitory Provisions of the Constitution, all serve as patent indicators of the
constitutional mandate to hold synchronized national and local elections, starting
the second Monday of May, 1992 and for all the following elections.

This Court was not left behind in recognizing the synchronization of the
national and local elections as a constitutional mandate. In Osmea v. Commission
on Elections,[14] we explained:

It is clear from the aforequoted provisions of the 1987

Constitution that the terms of office of Senators, Members of the House
of Representatives, the local officials, the President and the Vice-
President have been synchronized to end on the same hour, date and year
noon of June 30, 1992.
It is likewise evident from the wording of the above-mentioned
Sections that the term of synchronization is used synonymously as the
phrase holding simultaneously since this is the precise intent in
 terminating their Office Tenure on the same day or occasion. This
common termination date will synchronize future elections to once every
three years (Bernas, the Constitution of the Republic of the Philippines,
Vol. II, p. 605).
That the election for Senators, Members of the House of
Representatives and the local officials (under Sec. 2, Art. XVIII) will
have to be synchronized with the election for President and Vice
President (under Sec. 5, Art. XVIII) is likewise evident from the x x
x records of the proceedings in the Constitutional Commission.
[Emphasis supplied.]

Although called regional elections, the ARMM elections should be included

among the elections to be synchronized as it is a local election based on the
wording and structure of the Constitution.

A basic rule in constitutional construction is that the words used should be

understood in the sense that they have in common use and given their ordinary
meaning, except when technical terms are employed, in which case the
significance thus attached to them prevails.[15] As this Court explained in People v.
Derilo,[16] [a]s the Constitution is not primarily a lawyers document, its language
should be understood in the sense that it may have in common. Its words should be
given their ordinary meaning except where technical terms are employed.

Understood in its ordinary sense, the word local refers to something that primarily
serves the needs of a particular limited district, often a community or minor
political subdivision.[17] Regional elections in the ARMM for the positions of
governor, vice-governor and regional assembly representatives obviously fall
within this classification, since they pertain to the elected officials who will serve
within the limited region of ARMM.

From the perspective of the Constitution, autonomous regions are considered

one of the forms of local governments, as evident from Article X of the
Constitution entitled Local Government. Autonomous regions are established and
discussed under Sections 15 to 21 of this Article the article wholly devoted to
Local Government. That an autonomous region is considered a form of local
government is also reflected in Section 1, Article X of the Constitution, which
provides:
 Section 1. The territorial and political subdivisions of the Republic of
the Philippines are the provinces, cities, municipalities, and barangays. There
shall be autonomous regions in Muslim Mindanao, and the Cordilleras as
hereinafter provided.

Thus, we find the contention that the synchronization mandated by the

Constitution does not include the regional elections of the ARMM
unmeritorious. We shall refer to synchronization in the course of our discussions
below, as this concept permeates the consideration of the various issues posed in
this case and must be recalled time and again for its complete resolution.

II. The Presidents Certification on the Urgency of RA No. 10153

The petitioners in G.R. No. 197280 also challenge the validity of RA No.
10153 for its alleged failure to comply with Section 26(2), Article VI of the
Constitution[18] which provides that before bills passed by either the House or the
Senate can become laws, they must pass through three readings on separate days.
The exception is when the President certifies to the necessity of the bills immediate
enactment.

The Court, in Tolentino v. Secretary of Finance,[19] explained the effect of

the Presidents certification of necessity in the following manner:

The presidential certification dispensed with the requirement not only of

printing but also that of reading the bill on separate days. The phrase "except
when the President certifies to the necessity of its immediate enactment, etc." in
Art. VI, Section 26[2] qualifies the two stated conditions before a bill can become
a law: [i] the bill has passed three readings on separate days and [ii] it has been
printed in its final form and distributed three days before it is finally approved.

xxx
That upon the certification of a bill by the President, the
requirement of three readings on separate days and of printing and
distribution can be dispensed with is supported by the weight of
legislative practice. For example, the bill defining the certiorari
jurisdiction of this Court which, in consolidation with the Senate version,
became Republic Act No. 5440, was passed on second and third readings
in the House of Representatives on the same day [May 14, 1968] after
the bill had been certified by the President as urgent.
 In the present case, the records show that the President wrote to the Speaker
of the House of Representatives to certify the necessity of the immediate
enactment of a law synchronizing the ARMM elections with the national and local
elections.[20] Following our Tolentino ruling, the Presidents certification exempted
both the House and the Senate from having to comply with the three separate
readings requirement.

On the follow-up contention that no necessity existed for the immediate

enactment of these bills since there was no public calamity or emergency that had
to be met, again we hark back to our ruling in Tolentino:

The sufficiency of the factual basis of the suspension of the writ of habeas
corpus or declaration of martial law Art. VII, Section 18, or the existence of a
national emergency justifying the delegation of extraordinary powers to the
President under Art. VI, Section 23(2) is subject to judicial review because basic
rights of individuals may be of hazard. But the factual basis of presidential
certification of bills, which involves doing away with procedural
requirements designed to insure that bills are duly considered by members of
Congress, certainly should elicit a different standard of review. [Emphasis
supplied.]

The House of Representatives and the Senate in the exercise of their

legislative discretion gave full recognition to the Presidents certification and
promptly enacted RA No. 10153. Under the circumstances, nothing short of grave
abuse of discretion on the part of the two houses of Congress can justify our
intrusion under our power of judicial review.[21]

The petitioners, however, failed to provide us with any cause or justification

for this course of action. Hence, while the judicial department and this Court are
not bound by the acceptance of the President's certification by both the House of
Representatives and the Senate, prudent exercise of our powers and respect due our
co-equal branches of government in matters committed to them by the
Constitution, caution a stay of the judicial hand.[22]

In any case, despite the Presidents certification, the two-fold purpose that
underlies the requirement for three readings on separate days of every bill must
always be observed to enable our legislators and other parties interested in pending
bills to intelligently respond to them. Specifically, the purpose with respect to
Members of Congress is: (1) to inform the legislators of the matters they shall vote
on and (2) to give them notice that a measure is in progress through the enactment
process.[23]

We find, based on the records of the deliberations on the law, that both
advocates and the opponents of the proposed measure had sufficient opportunities
to present their views. In this light, no reason exists to nullify RA No. 10153 on the
cited ground.

III. A. RA No. 9333 and RA No. 10153 are not amendments to RA No. 9054
The effectivity of RA No. 9333 and RA No. 10153 has also been challenged
because they did not comply with Sections 1 and 3, Article XVII of RA No. 9054
in amending this law. These provisions require:

Section 1. Consistent with the provisions of the Constitution, this Organic Act
may be reamended or revised by the Congress of the Philippines upon a vote of
two-thirds (2/3) of the Members of the House of Representatives and of the
Senate voting separately.

Section 3. Any amendment to or revision of this Organic Act shall become

effective only when approved by a majority of the vote cast in a plebiscite called
for the purpose, which shall be held not earlier than sixty (60) days or later than
ninety (90) days after the approval of such amendment or revision.

We find no merit in this contention.

In the first place, neither RA No. 9333 nor RA No. 10153 amends RA No.
9054. As an examination of these laws will show, RA No. 9054 only provides for
the schedule of the first ARMM elections and does not fix the date of the regular
elections. A need therefore existed for the Congress to fix the date of
the subsequent ARMM regular elections, which it did by enacting RA No. 9333
and thereafter, RA No. 10153. Obviously, these subsequent laws RA No. 9333 and
RA No. 10153 cannot be considered amendments to RA No. 9054 as they did not
change or revise any provision in the latter law; they merely filled in a gap in RA
No. 9054 or supplemented the law by providing the date of the subsequent regular
elections.
 This view that Congress thought it best to leave the determination of the date
of succeeding ARMM elections to legislative discretion finds support in ARMMs
recent history.

To recall, RA No. 10153 is not the first law passed that rescheduled the
ARMM elections. The First Organic Act RA No. 6734 not only did not fix the date
of the subsequent elections; it did not even fix the specific date of the first ARMM
elections,[24] leaving the date to be fixed in another legislative enactment.
Consequently, RA No. 7647,[25]RA No. 8176,[26] RA No. 8746,[27] RA No.
8753,[28] and RA No. 9012[29] were all enacted by Congress to fix the dates of the
ARMM elections. Since these laws did not change or modify any part or provision
of RA No. 6734, they were not amendments to this latter law. Consequently, there
was no need to submit them to any plebiscite for ratification.

The Second Organic Act RA No. 9054 which lapsed into law on March 31,
2001, provided that the first elections would be held on the second Monday of
September 2001. Thereafter, Congress passed RA No. 9140[30] to reset the date of
the ARMM elections. Significantly, while RA No. 9140 also scheduled the
plebiscite for the ratification of the Second Organic Act (RA No. 9054), the new
date of the ARMM regional elections fixed in RA No. 9140 was not among the
provisions ratified in the plebiscite held to approve RA No. 9054. Thereafter,
Congress passed RA No. 9333,[31] which further reset the date of the ARMM
regional elections. Again, this law was not ratified through a plebiscite.

From these legislative actions, we see the clear intention of Congress to treat
the laws which fix the date of the subsequent ARMM elections as separate and
distinct from the Organic Acts. Congress only acted consistently with this intent
when it passed RA No. 10153 without requiring compliance with the amendment
prerequisites embodied in Section 1 and Section 3, Article XVII of RA No. 9054.

III. B. Supermajority voting requirement unconstitutional for giving RA No.

9054 the character of an irrepealable law

Even assuming that RA No. 9333 and RA No. 10153 did in fact amend RA
No. 9054, the supermajority (2/3) voting requirement required under Section 1,
Article XVII of RA No. 9054[32] has to be struck down for giving RA No. 9054 the
character of an irrepealable law by requiring more than what the Constitution
demands.
 Section 16(2), Article VI of the Constitution provides that a majority of each
House shall constitute a quorum to do business. In other words, as long as majority
of the members of the House of Representatives or the Senate are present, these
bodies have the quorum needed to conduct business and hold session. Within a
quorum, a vote of majority is generally sufficient to enact laws or approve acts.

In contrast, Section 1, Article XVII of RA No. 9054 requires a vote of no

less than two-thirds (2/3) of the Members of the House of Representatives and of
the Senate, voting separately, in order to effectively amend RA No. 9054. Clearly,
this 2/3 voting requirement is higher than what the Constitution requires for the
passage of bills, and served to restrain the plenary powers of Congress to amend,
revise or repeal the laws it had passed. The Courts pronouncement in City of
Davao v. GSIS[33] on this subject best explains the basis and reason for the
unconstitutionality:

Moreover, it would be noxious anathema to democratic principles for a

legislative body to have the ability to bind the actions of future legislative body,
considering that both assemblies are regarded with equal footing, exercising as they
do the same plenary powers. Perpetual infallibility is not one of the attributes
desired in a legislative body, and a legislature which attempts to forestall future
amendments or repeals of its enactments labors under delusions of
omniscience.

xxx

A state legislature has a plenary law-making power over all subjects, whether
pertaining to persons or things, within its territorial jurisdiction, either to introduce
new laws or repeal the old, unless prohibited expressly or by implication by the
federal constitution or limited or restrained by its own. It cannot bind itself or its
successors by enacting irrepealable laws except when so restrained. Every
legislative body may modify or abolish the acts passed by itself or its predecessors.
This power of repeal may be exercised at the same session at which the original act
was passed; and even while a bill is in its progress and before it becomes a law. This
legislature cannot bind a future legislature to a particular mode of repeal. It
cannot declare in advance the intent of subsequent legislatures or the effect of
subsequent legislation upon existing statutes.[34] (Emphasis ours.)

Thus, while a supermajority is not a total ban against a repeal, it is a

limitation in excess of what the Constitution requires on the passage of bills and is
constitutionally obnoxious because it significantly constricts the future legislators
room for action and flexibility.
III. C. Section 3, Article XVII of RA No. 9054 excessively enlarged the plebiscite
requirement found in Section 18, Article X of the Constitution

The requirements of RA No. 9054 not only required an unwarranted

supermajority, but enlarged as well the plebiscite requirement, as embodied in its
Section 3, Article XVII of that Act. As we did on the supermajority requirement,
we find the enlargement of the plebiscite requirement required under Section 18,
Article X of the Constitution to be excessive to point of absurdity and, hence, a
violation of the Constitution.

Section 18, Article X of the Constitution states that the plebiscite is required
only for the creation of autonomous regions and for determining which provinces,
cities and geographic areas will be included in the autonomous regions. While the
settled rule is that amendments to the Organic Act have to comply with the
plebiscite requirement in order to become effective,[35] questions on the extent of
the matters requiring ratification may unavoidably arise because of the seemingly
general terms of the Constitution and the obvious absurdity that would result if a
plebiscite were to be required for every statutory amendment.

Section 18, Article X of the Constitution plainly states that The creation of
the autonomous region shall be effective when approved by the majority of the
votes case by the constituent units in a plebiscite called for the purpose.With these
wordings as standard, we interpret the requirement to mean that only amendments
to, or revisions of, the Organic Act constitutionally-essential to the creation
of autonomous regions i.e., those aspects specifically mentioned in the Constitution
which Congress must provide for in the Organic Act require ratification through a
plebiscite. These amendments to the Organic Act are those that relate to: (a) the
basic structure of the regional government; (b) the regions judicial system, i.e.,
the special courts with personal, family, and property law jurisdiction; and, (c) the
grant and extent of the legislative powers constitutionally conceded to the regional
government under Section 20, Article X of the Constitution.[36]

The date of the ARMM elections does not fall under any of the matters that
the Constitution specifically mandated Congress to provide for in the Organic Act.
Therefore, even assuming that the supermajority votes and the plebiscite
requirements are valid, any change in the date of elections cannot be construed as a
substantial amendment of the Organic Act that would require compliance with
these requirements.

IV. The synchronization issue

As we discussed above, synchronization of national and local elections is a

constitutional mandate that Congress must provide for and this synchronization
must include the ARMM elections. On this point, an existing law in fact already
exists RA No. 7166 as the forerunner of the current RA No. 10153. RA No. 7166
already provides for the synchronization of local elections with the national and
congressional elections. Thus, what RA No. 10153 provides is an old matter for
local governments (with the exception
of barangay and Sanggunian Kabataan elections where the terms are not
constitutionally provided) and is technically a reiteration of what is already
reflected in the law, given that regional elections are in reality local elections by
express constitutional recognition.[37]

To achieve synchronization, Congress necessarily has to reconcile the

schedule of the ARMMs regular elections (which should have been held in August
2011 based on RA No. 9333) with the fixed schedule of the national and local
elections (fixed by RA No. 7166 to be held in May 2013).

During the oral arguments, the Court identified the three options open to
Congress in order to resolve this problem. These options are: (1) to allow the
elective officials in the ARMM to remain in office in a hold over capacity,
pursuant to Section 7(1), Article VII of RA No. 9054, until those elected in the
synchronized elections assume office;[38] (2) to hold special elections in the
ARMM, with the terms of those elected to expire when those elected in the
synchronized elections assume office; or (3) to authorize the President to appoint
OICs, pursuant to Section 3 of RA No. 10153, also until those elected in the
synchronized elections assume office.

As will be abundantly clear in the discussion below, Congress, in choosing

to grant the President the power to appoint OICs, chose the correct option and
passed RA No. 10153 as a completely valid law.

V. The Constitutionality of RA No. 10153

A. Basic Underlying Premises

 To fully appreciate the available options, certain underlying material
premises must be fully understood. The firstis the extent of the powers of Congress
to legislate; the second is the constitutional mandate for the synchronization of
elections; and the third is on the concept of autonomy as recognized and
established under the 1987 Constitution.

The grant of legislative power to Congress is broad, general and

comprehensive.[39] The legislative body possesses plenary power for all purposes of
civil government.[40] Any power, deemed to be legislative by usage and tradition, is
necessarily possessed by Congress, unless the Constitution has lodged it
elsewhere.[41] Except as limited by the Constitution, either expressly or impliedly,
legislative power embraces all subjects and extends to all matters of general
concern or common interest.[42]

The constitutional limitations on legislative power are either express or

implied. The express limitations are generally provided in some provisions of the
Declaration of Principles and State Policies (Article 2) and in the provisions Bill of
Rights (Article 3). Other constitutional provisions (such as the initiative and
referendum clause of Article 6, Sections 1 and 32, and the autonomy provisions of
Article X) provide their own express limitations. The implied limitations are found
in the evident purpose which was in view and the circumstances and historical
events which led to the enactment of the particular provision as a part of organic
law.[43]

The constitutional provisions on autonomy specifically, Sections 15 to 21 of

Article X of the Constitution constitute express limitations on legislative power as
they define autonomy, its requirements and its parameters, thus limiting what is
otherwise the unlimited power of Congress to legislate on the governance of the
autonomous region.

Of particular relevance to the issues of the present case are the limitations
posed by the prescribed basic structure of government i.e., that the government
must have an executive department and a legislative assembly, both of which must
be elective and representative of the constituent political units; national
government, too, must not encroach on the legislative powers granted under
Section 20, Article X. Conversely and as expressly reflected in Section 17, Article
X, all powers and functions not granted by this Constitution or by law to the
autonomous regions shall be vested in the National Government.
The totality of Sections 15 to 21 of Article X should likewise serve as a
standard that Congress must observe in dealing with legislation touching on the
affairs of the autonomous regions. The terms of these sections leave no doubt on
what the Constitution intends the idea of self-rule or self-government, in particular,
the power to legislate on a wide array of social, economic and administrative
matters. But equally clear under these provisions are the permeating principles of
national sovereignty and the territorial integrity of the Republic, as expressed in
the above-quoted Section 17 and in Section 15.[44] In other words, the Constitution
and the supporting jurisprudence, as they now stand, reject the notion of imperium
et imperio[45] in the relationship between the national and the regional
governments.

In relation with synchronization, both autonomy and the synchronization of

national and local elections are recognized and established constitutional mandates,
with one being as compelling as the other. If their compelling force differs at all,
the difference is in their coverage; synchronization operates on and affects the
whole country, while regional autonomy as the term suggests directly carries a
narrower regional effect although its national effect cannot be discounted.

These underlying basic concepts characterize the powers and limitations of

Congress when it acted on RA No. 10153. To succinctly describe the legal
situation that faced Congress then, its decision to synchronize the regional
elections with the national, congressional and all other local elections (save
for barangay and sangguniang kabataan elections) left it with the problem of how
to provide the ARMM with governance in the intervening period between the
expiration of the term of those elected in August 2008 and the assumption to office
twenty-one (21) months away of those who will win in the synchronized elections
on May 13, 2013.

The problem, in other words, was for interim measures for this period,
consistent with the terms of the Constitution and its established supporting
jurisprudence, and with the respect due to the concept of autonomy. Interim
measures, to be sure, is not a strange phenomenon in the Philippine legal
landscape. The Constitutions Transitory Provisions themselves collectively provide
measures for transition from the old constitution to the new [46] and for the
introduction of new concepts.[47] As previously mentioned, the adjustment of
elective terms and of elections towards the goal of synchronization first transpired
under the Transitory Provisions. The adjustments, however, failed to look far
enough or deeply enough, particularly into the problems that synchronizing
regional autonomous elections would entail; thus, the present problem is with us
today.

The creation of local government units also represents instances when

interim measures are required. In the creation of Quezon del Sur[48] and Dinagat
Islands,[49] the creating statutes authorized the President to appoint an interim
governor, vice-governor and members of the sangguniang panlalawigan although
these positions are essentially elective in character; the appointive officials were to
serve until a new set of provincial officials shall have been elected and
qualified.[50] A similar authority to appoint is provided in the transition of a local
government from a sub-province to a province.[51]

In all these, the need for interim measures is dictated by necessity; out-of-
the-way arrangements and approaches were adopted or used in order to adjust to
the goal or objective in sight in a manner that does not do violence to the
Constitution and to reasonably accepted norms. Under these limitations, the choice
of measures was a question of wisdom left to congressional discretion.

To return to the underlying basic concepts, these concepts shall serve as the
guideposts and markers in our discussion of the options available to Congress to
address the problems brought about by the synchronization of the ARMM
elections, properly understood as interim measures that Congress had to
provide. The proper understanding of the options as interim measures assume
prime materiality as it is under these terms that the passage of RA No. 10153
should be measured, i.e., given the constitutional objective of synchronization
that cannot legally be faulted, did Congress gravely abuse its discretion or violate
the Constitution when it addressed through RA No. 10153 the concomitant
problems that the adjustment of elections necessarily brought with it?

B. Holdover Option is Unconstitutional

 We rule out the first option holdover for those who were elected in executive
and legislative positions in the ARMM during the 2008-2011 term as an option that
Congress could have chosen because a holdover violates Section 8, Article X of
the Constitution. This provision states:

Section 8. The term of office of elective local officials, except barangay

officials, which shall be determined by law, shall be three years and no such
official shall serve for more than three consecutive terms. [emphases ours]

Since elective ARMM officials are local officials, they are covered and
bound by the three-year term limit prescribed by the Constitution; they cannot
extend their term through a holdover. As this Court put in Osmea v. COMELEC:[52]

It is not competent for the legislature to extend the term of officers by

providing that they shall hold over until their successors are elected and qualified
where the constitution has in effect or by clear implication prescribed the term
and when the Constitution fixes the day on which the official term shall begin,
there is no legislative authority to continue the office beyond that period, even
though the successors fail to qualify within the time.

In American Jurisprudence it has been stated as follows:

It has been broadly stated that the legislature cannot, by

an act postponing the election to fill an office the term of which
is limited by the Constitution, extend the term of the
incumbent beyond the period as limited by the Constitution.
[Emphasis ours.]

Independently of the Osmea ruling, the primacy of the Constitution as the

supreme law of the land dictates that where the Constitution has itself made a
determination or given its mandate, then the matters so determined or mandated
should be respected until the Constitution itself is changed by amendment or repeal
through the applicable constitutional process. A necessary corollary is that none of
the three branches of government can deviate from the constitutional mandate
except only as the Constitution itself may allow.[53] If at all, Congress may only
pass legislation filing in details to fully operationalize the constitutional command
or to implement it by legislation if it is non-self-executing; this Court, on the other
hand, may only interpret the mandate if an interpretation is appropriate and called
for.[54]
In the case of the terms of local officials, their term has been fixed clearly and
unequivocally, allowing no room for any implementing legislation with respect to
the fixed term itself and no vagueness that would allow an interpretation from this
Court. Thus, the term of three years for local officials should stay at three (3) years
as fixed by the Constitution and cannot be extended by holdover by Congress.

If it will be claimed that the holdover period is effectively another term mandated
by Congress, the net result is for Congress to create a new term and to appoint the
occupant for the new term. This view like the extension of the elective term is
constitutionally infirm because Congress cannot do indirectly what it cannot do
directly, i.e., to act in a way that would effectively extend the term of the
incumbents. Indeed, if acts that cannot be legally done directly can be done
indirectly, then all laws would be illusory.[55] Congress cannot also create a new
term and effectively appoint the occupant of the position for the new term. This is
effectively an act of appointment by Congress and an unconstitutional intrusion
into the constitutional appointment power of the President.[56] Hence, holdover
whichever way it is viewed is a constitutionally infirm option that Congress could
not have undertaken.

Jurisprudence, of course, is not without examples of cases where the question of

holdover was brought before, and given the imprimatur of approval by, this Court.
The present case though differs significantly from past cases with contrary rulings,
particularly from Sambarani v. COMELEC,[57] Adap v.
[58] [59]
Comelec, and Montesclaros v. Comelec, where the Court ruled that the
elective officials could hold on to their positions in a hold over capacity.

All these past cases refer to elective barangay or sangguniang

kabataan officials whose terms of office are not explicitly provided for
in the Constitution; the present case, on the other hand, refers to local elective
officials the ARMM Governor, the ARMM Vice-Governor, and the members of
the Regional Legislative Assembly whose terms fall within the three-year term
limit set by Section 8, Article X of the Constitution. Because of their
constitutionally limited term, Congress cannot legislate an extension beyond the
term for which they were originally elected.

Even assuming that holdover is constitutionally permissible, and there had

been statutory basis for it (namely Section 7, Article VII of RA No. 9054) in the
past,[60] we have to remember that the rule of holdover can only apply as an
available option where no express or implied legislative intent to the contrary
exists; it cannot apply where such contrary intent is evident.[61]

Congress, in passing RA No. 10153, made it explicitly clear that it had the
intention of suppressing the holdover rule that prevailed under RA No. 9054 by
completely removing this provision. The deletion is a policy decision that is wholly
within the discretion of Congress to make in the exercise of its plenary legislative
powers; this Court cannot pass upon questions of wisdom, justice or expediency of
legislation,[62] except where an attendant unconstitutionality or grave abuse of
discretion results.

C. The COMELEC has no authority to order special elections

Another option proposed by the petitioner in G.R. No. 197282 is for this
Court to compel COMELEC to immediately conduct special elections pursuant to
Section 5 and 6 of Batas Pambansa Bilang (BP) 881.
The power to fix the date of elections is essentially legislative in nature, as
evident from, and exemplified by, the following provisions of the Constitution:

Section 8, Article VI, applicable to the legislature, provides:

Section 8. Unless otherwise provided by law, the regular election of the

Senators and the Members of the House of Representatives shall be held on the
second Monday of May. [Emphasis ours]

Section 4(3), Article VII, with the same tenor but applicable solely to the President
and Vice-President, states:
xxxx

Section 4. xxx Unless otherwise provided by law, the regular election for
President and Vice-President shall be held on the second Monday of May.
[Emphasis ours]

while Section 3, Article X, on local government, provides:

 Section 3. The Congress shall enact a local government code which
shall provide for xxx the qualifications, election, appointment and removal, term,
salaries, powers and functions and duties of local officials[.] [Emphases ours]

These provisions support the conclusion that no elections may be held on

any other date for the positions of President, Vice President, Members of Congress
and local officials, except when so provided by another Act of Congress, or upon
orders of a body or officer to whom Congress may have delegated either the power
or the authority to ascertain or fill in the details in the execution of that power.[63]

Notably, Congress has acted on the ARMM elections by postponing the

scheduled August 2011 elections and setting another date May 13, 2011 for
regional elections synchronized with the presidential, congressional and other local
elections. By so doing, Congress itself has made a policy decision in the exercise
of its legislative wisdom that it shall not call special elections as an adjustment
measure in synchronizing the ARMM elections with the other elections.

After Congress has so acted, neither the Executive nor the Judiciary can act
to the contrary by ordering special elections instead at the call of the
COMELEC. This Court, particularly, cannot make this call without thereby
supplanting the legislative decision and effectively legislating. To be sure, the
Court is not without the power to declare an act of Congress null and void for
being unconstitutional or for having been exercised in grave abuse of
discretion.[64] But our power rests on very narrow ground and is merely to annul
a contravening act of Congress; it is not to supplant the decision of Congress nor
to mandate what Congress itself should have done in the exercise of its
legislative powers. Thus, contrary to what the petition in G.R. No. 197282 urges,
we cannot compel COMELEC to call for special elections.

Furthermore, we have to bear in mind that the constitutional power of the

COMELEC, in contrast with the power of Congress to call for, and to set the date
of, elections, is limited to enforcing and administering all laws and regulations
relative to the conduct of an election.[65] Statutorily, COMELEC has no power to
call for the holding of special elections unless pursuant to a specific statutory
grant. True, Congress did grant, via Sections 5 and 6 of BP 881, COMELEC with
the power to postpone elections to another date. However, this power is limited to,
and can only be exercised within, the specific terms and circumstances provided
for in the law. We quote:
 Section 5. Postponement of election. - When for any serious cause
such as violence, terrorism, loss or destruction of election
paraphernalia or records, force majeure, and other analogous
causes of such a nature that the holding of a free, orderly and honest
election should become impossible in any political subdivision, the
Commission, motu proprio or upon a verified petition by any interested
party, and after due notice and hearing, whereby all interested parties are
afforded equal opportunity to be heard, shall postpone the election
therein to a date which should be reasonably close to the date of the
election not held, suspended or which resulted in a failure to
elect but not later than thirty days after the cessation of the cause for
such postponement or suspension of the election or failure to elect.

Section 6. Failure of election. - If, on account of force

majeure, violence, terrorism, fraud, or other analogous causes the election in
any polling place has not been held on the date fixed, or had been
suspended before the hour fixed by law for the closing of the voting, or after the
voting and during the preparation and the transmission of the election returns or in
the custody or canvass thereof, such election results in a failure to elect, and in
any of such cases the failure or suspension of election would affect the result of
the election, the Commission shall, on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or
continuation of the election not held, suspended or which resulted in a failure to
elect on a date reasonably close to the date of the election not held, suspended or
which resulted in a failure to elect but not later than thirty days after the cessation
of the cause of such postponement or suspension of the election or failure to elect.
[Emphasis ours]

A close reading of Section 5 of BP 881 reveals that it is meant to address

instances where elections have already been scheduled to take place but have to
be postponed because of (a) violence, (b) terrorism, (c) loss or destruction of
election paraphernalia or records, (d) force majeure, and (e) other analogous
causes of such a nature that the holding of a free, orderly and honest election
should become impossible in any political subdivision. Under the principle
of ejusdem generis, the term analogous causes will be restricted to
those unforeseen or unexpected events that prevent the holding of the scheduled
elections. These analogous causes are further defined by the phrase of such nature
that the holding of a free, orderly and honest election should become impossible.

Similarly, Section 6 of BP 881 applies only to those situations where

elections have already been scheduled but do not take place because of (a) force
majeure, (b) violence, (c) terrorism, (d) fraud, or (e) other analogous causesthe
election in any polling place has not been held on the date fixed, or had been
suspended before the hour fixed by law for the closing of the voting, or after the
voting and during the preparation and the transmission of the election returns or in
the custody or canvass thereof, such election results in a failure to elect. As in
Section 5 of BP 881, Section 6 addresses instances where the elections do not
occur or had to be suspended because
of unexpected and unforeseen circumstances.

In the present case, the postponement of the ARMM elections is by

law i.e., by congressional policy and is pursuant to the constitutional mandate
of synchronization of national and local elections. By no stretch of the
imagination can these reasons be given the same character as the circumstances
contemplated by Section 5 or Section 6 of BP 881, which all pertain to extralegal
causes that obstruct the holding of elections. Courts, to be sure, cannot enlarge the
scope of a statute under the guise of interpretation, nor include situations not
provided nor intended by the lawmakers.[66] Clearly, neither Section 5 nor Section
6 of BP 881 can apply to the present case and this Court has absolutely no legal
basis to compel the COMELEC to hold special elections.

D. The Court has no power to shorten the terms of elective officials

Even assuming that it is legally permissible for the Court to compel the
COMELEC to hold special elections, no legal basis likewise exists to rule that the
newly elected ARMM officials shall hold office only until the ARMM officials
elected in the synchronized elections shall have assumed office.
In the first place, the Court is not empowered to adjust the terms of elective
officials. Based on the Constitution, the power to fix the term of office of elective
officials, which can be exercised only in the case of barangay officials,[67] is
specifically given to Congress. Even Congress itself may be denied such power, as
shown when the Constitution shortened the terms of twelve Senators obtaining the
least votes,[68] and extended the terms of the President and the Vice-President[69] in
order to synchronize elections; Congress was not granted this same power. The
settled rule is that terms fixed by the Constitution cannot be changed by mere
statute.[70] More particularly, not even Congress and certainly not this Court, has
the authority to fix the terms of elective local officials in the ARMM for less, or
more, than the constitutionally mandated three years[71] as this tinkering would
directly contravene Section 8, Article X of the Constitution as we ruled in Osmena.
 Thus, in the same way that the term of elective ARMM officials cannot be
extended through a holdover, the term cannot be shortened by putting an
expiration date earlier than the three (3) years that the Constitution itself
commands. This is what will happen a term of less than two years if a call for
special elections shall prevail. In sum, while synchronization is achieved, the
result is at the cost of a violation of an express provision of the Constitution.

Neither we nor Congress can opt to shorten the tenure of those officials to be
elected in the ARMM elections instead of acting on their term (where the term
means the time during which the officer may claim to hold office as of right and
fixes the interval after which the several incumbents shall succeed one another,
while the tenure represents the term during which the incumbent actually holds the
office).[72] As with the fixing of the elective term, neither Congress nor the Court
has any legal basis to shorten the tenure of elective ARMM officials. They would
commit an unconstitutional act and gravely abuse their discretion if they do so.

E. The Presidents Power to Appoint OICs

The above considerations leave only Congress chosen interim measure RA

No. 10153 and the appointment by the President of OICs to govern the ARMM
during the pre-synchronization period pursuant to Sections 3, 4 and 5 of this law as
the only measure that Congress can make. This choice itself, however, should be
examined for any attendant constitutional infirmity.

At the outset, the power to appoint is essentially executive in nature, and the
limitations on or qualifications to the exercise of this power should be strictly
construed; these limitations or qualifications must be clearly stated in order to be
recognized.[73] The appointing power is embodied in Section 16, Article VII of the
Constitution, which states:

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

This provision classifies into four groups the officers that the President can
appoint. These are:

First, the heads of the executive departments; ambassadors; other public

ministers and consuls; officers of the Armed Forces of the Philippines, from the
rank of colonel or naval captain; and other officers whose appointments are vested
in the President in this Constitution;

Second, all other officers of the government whose appointments are not
otherwise provided for by law;

Third, those whom the President may be authorized by law to appoint; and

Fourth, officers lower in rank whose appointments the Congress may by law
vest in the President alone.[74]

Since the Presidents authority to appoint OICs emanates from RA No.

10153, it falls under the third group of officials that the President can appoint
pursuant to Section 16, Article VII of the Constitution. Thus, the assailed
law facially rests on clear constitutional basis.

If at all, the gravest challenge posed by the petitions to the authority to

appoint OICs under Section 3 of RA No. 10153 is the assertion that the
Constitution requires that the ARMM executive and legislative officials to be
elective and representative of the constituent political units. This requirement
indeed is an express limitation whose non-observance in the assailed law leaves the
appointment of OICs constitutionally defective.

After fully examining the issue, we hold that this alleged constitutional
problem is more apparent than real and becomes very real only if RA No. 10153
were to be mistakenly read as a law that changes the elective and representative
character of ARMM positions. RA No. 10153, however, does not in any way
amend what the organic law of the ARMM (RA No. 9054) sets outs in terms of
structure of governance. What RA No. 10153 in fact only does is to appoint
officers-in-charge for the Office of the Regional Governor, Regional Vice
Governor and Members of the Regional Legislative Assembly who shall perform
the functions pertaining to the said offices until the officials duly elected in the
May 2013 elections shall have qualified and assumed office. This power is far
different from appointing elective ARMM officials for the abbreviated term ending
on the assumption to office of the officials elected in the May 2013 elections.

As we have already established in our discussion of the supermajority and

plebiscite requirements, the legal reality is that RA No. 10153 did not amend RA
No. 9054. RA No. 10153, in fact, provides only for synchronization of elections
and for the interim measures that must in the meanwhile prevail. And this is how
RA No. 10153 should be read in the manner it was written and based on its
unambiguous facial terms.[75] Aside from its order for synchronization, it is purely
and simply an interim measure responding to the adjustments that the
synchronization requires.

Thus, the appropriate question to ask is whether the interim measure is an

unreasonable move for Congress to adopt, given the legal situation that the
synchronization unavoidably brought with it. In more concrete terms and based on
the above considerations, given the plain unconstitutionality of providing for a
holdover and the unavailability of constitutional possibilities for lengthening or
shortening the term of the elected ARMM officials, is the choice of the
Presidents power to appoint for a fixed and specific period as an interim
measure, and as allowed under Section 16, Article VII of the Constitution an
unconstitutional or unreasonable choice for Congress to make?

Admittedly, the grant of the power to the President under other

situations or where the power of appointment would extend beyond the adjustment
period for synchronization would be to foster a government that is not democratic
and republican. For then, the peoples right to choose the leaders to govern them
may be said to be systemicallywithdrawn to the point of fostering an undemocratic
regime. This is the grant that would frontally breach the elective and representative
governance requirement of Section 18, Article X of the Constitution.

But this conclusion would not be true under the very limited circumstances
contemplated in RA No. 10153 where the period is fixed and, more importantly,
the terms of governance both under Section 18, Article X of the Constitution and
RA No. 9054 will not systemically be touched nor affected at all. To repeat what
has previously been said, RA No. 9054 will govern unchanged and continuously,
with full effect in accordance with the Constitution, save only for the interim and
temporary measures that synchronization of elections requires.

Viewed from another perspective, synchronization will temporarily disrupt

the election process in a local community, the ARMM, as well as the communitys
choice of leaders, but this will take place under a situation of necessity and as an
interim measure in the manner that interim measures have been adopted and used
in the creation of local government units[76] and the adjustments of sub-provinces
to the status of provinces.[77] These measures, too, are used in light of the wider
national demand for the synchronization of elections (considered vis--vis the
regional interests involved). The adoption of these measures, in other words, is no
different from the exercise by Congress of the inherent police power of the State,
where one of the essential tests is the reasonableness of the interim measure taken
in light of the given circumstances.

Furthermore, the representative character of the chosen leaders need not

necessarily be affected by the appointment of OICs as this requirement is really a
function of the appointment process; only the elective aspect shall be supplanted
by the appointment of OICs. In this regard, RA No. 10153 significantly seeks to
address concerns arising from the appointments by providing, under Sections 3, 4
and 5 of the assailed law, concrete terms in the Appointment of OIC, the Manner
and Procedure of Appointing OICs, and their Qualifications.

Based on these considerations, we hold that RA No. 10153 viewed in its

proper context is a law that is not violative of the Constitution (specifically, its
autonomy provisions), and one that is reasonable as well under the circumstances.

VI. Other Constitutional Concerns

Outside of the above concerns, it has been argued during the oral arguments
that upholding the constitutionality of RA No. 10153 would set a dangerous
precedent of giving the President the power to cancel elections anywhere in the
country, thus allowing him to replace elective officials with OICs.
This claim apparently misunderstands that an across-the-board cancellation
of elections is a matter for Congress, not for the President, to address. It is a power
that falls within the powers of Congress in the exercise of its legislative
powers. Even Congress, as discussed above, is limited in what it can legislatively
undertake with respect to elections.

If RA No. 10153 cancelled the regular August 2011 elections, it was for a
very specific and limited purpose the synchronization of elections. It was a
temporary means to a lasting end the synchronization of elections. Thus, RA No.
10153 and the support that the Court gives this legislation are likewise clear and
specific, and cannot be transferred or applied to any other cause for the
cancellation of elections. Any other localized cancellation of elections and call for
special elections can occur only in accordance with the power already delegated by
Congress to the COMELEC, as above discussed.

Given that the incumbent ARMM elective officials cannot continue to act in
a holdover capacity upon the expiration of their terms, and this Court cannot
compel the COMELEC to conduct special elections, the Court now has to deal
with the dilemma of a vacuum in governance in the ARMM.

To emphasize the dire situation a vacuum brings, it should not be forgotten

that a period of 21 months or close to 2 years intervenes from the time that the
incumbent ARMM elective officials terms expired and the time the new ARMM
elective officials begin their terms in 2013. As the lessons of our Mindanao history
past and current teach us, many developments, some of them critical and adverse,
can transpire in the countrys Muslim areas in this span of time in the way they
transpired in the past.[78] Thus, it would be reckless to assume that the presence of
an acting ARMM Governor, an acting Vice-Governor and a fully functioning
Regional Legislative Assembly can be done away with even temporarily. To our
mind, the appointment of OICs under the present circumstances is an absolute
necessity.

Significantly, the grant to the President of the power to appoint OICs to

undertake the functions of the elective members of the Regional Legislative
Assembly is neither novel nor innovative. We hark back to our earlier
pronouncement in Menzon v. Petilla, etc., et al.:[79]

It may be noted that under Commonwealth Act No. 588 and the Revised
Administrative Code of 1987, the President is empowered to make temporary
appointments in certain public offices, in case of any vacancy that may
occur. Albeit both laws deal only with the filling of vacancies in appointive
positions. However, in the absence of any contrary provision in the Local
Government Code and in the best interest of public service, we see no cogent
 reason why the procedure thus outlined by the two laws may not be similarly
applied in the present case. The respondents contend that the provincial board is
the correct appointing power. This argument has no merit. As between the
President who has supervision over local governments as provided by law and the
members of the board who are junior to the vice-governor, we have no problem
ruling in favor of the President, until the law provides otherwise.
A vacancy creates an anomalous situation and finds no approbation under
the law for it deprives the constituents of their right of representation and
governance in their own local government.

In a republican form of government, the majority rules through their

chosen few, and if one of them is incapacitated or absent, etc., the management of
governmental affairs is, to that extent, may be hampered. Necessarily, there will
be a consequent delay in the delivery of basic services to the people
of Leyte if the Governor or the Vice-Governor is missing.[80](Emphasis ours.)

As in Menzon, leaving the positions of ARMM Governor, Vice Governor,

and members of the Regional Legislative Assembly vacant for 21 months, or
almost 2 years, would clearly cause disruptions and delays in the delivery of basic
services to the people, in the proper management of the affairs of the regional
government, and in responding to critical developments that may arise. When
viewed in this context, allowing the President in the exercise of his
constitutionally-recognized appointment power to appoint OICs is, in our
judgment, a reasonable measure to take.

B. Autonomy in the ARMM

It is further argued that while synchronization may be constitutionally

mandated, it cannot be used to defeat or to impede the autonomy that the
Constitution granted to the ARMM. Phrased in this manner, one would presume
that there exists a conflict between two recognized Constitutional mandates
synchronization and regional autonomy such that it is necessary to choose one over
the other.

We find this to be an erroneous approach that violates a basic principle in

constitutional construction ut magis valeat quam pereat: that the Constitution is to
be interpreted as a whole,[81] and one mandate should not be given importance over
the other except where the primacy of one over the other is clear. [82] We refer to
the Courts declaration in Ang-Angco v. Castillo, et al.,[83] thus:
 A provision of the constitution should not be construed in isolation from
the rest. Rather, the constitution must be interpreted as a whole, and
apparently, conflicting provisions should be reconciled and harmonized in a
manner that may give to all of them full force and effect. [Emphasis supplied.]

Synchronization is an interest that is as constitutionally entrenched as regional

autonomy. They are interests that this Court should reconcile and give effect to, in
the way that Congress did in RA No. 10153 which provides the measure to transit
to synchronized regional elections with the least disturbance on the interests that
must be respected. Particularly, regional autonomy will be respected instead of
being sidelined, as the law does not in any way alter, change or modify its
governing features, except in a very temporary manner and only as necessitated by
the attendant circumstances.

Elsewhere, it has also been argued that the ARMM elections should not be
synchronized with the national and local elections in order to maintain the
autonomy of the ARMM and insulate its own electoral processes from the rough
and tumble of nationwide and local elections. This argument leaves us far from
convinced of its merits.

As heretofore mentioned and discussed, while autonomous regions are

granted political autonomy, the framers of the Constitution never equated
autonomy with independence. The ARMM as a regional entity thus continues to
operate within the larger framework of the State and is still subject to the national
policies set by the national government, save only for those specific areas reserved
by the Constitution for regional autonomous determination. As reflected during the
constitutional deliberations of the provisions on autonomous regions:

Mr. Bennagen. xxx We do not see here a complete separation from the
central government, but rather an efficient working relationship between the
autonomous region and the central government. We see this as an effective
partnership, not a separation.

Mr. Romulo. Therefore, complete autonomy is not really thought of as

complete independence.

Mr. Ople. We define it as a measure of self-government within the

larger political framework of the nation.[84][Emphasis supplied.]

This exchange of course is fully and expressly reflected in the above-quoted

Section 17, Article X of the Constitution, and by the express reservation under
Section 1 of the same Article that autonomy shall be within the framework of this
Constitution and the national sovereignty as well as the territorial integrity of the
Republic of the Philippines.

Interestingly, the framers of the Constitution initially proposed to remove

Section 17 of Article X, believing it to be unnecessary in light of the enumeration
of powers granted to autonomous regions in Section 20, Article X of the
Constitution. Upon further reflection, the framers decided to reinstate the provision
in order to make it clear, once and for all, that these are the limits of the powers of
the autonomous government. Those not enumerated are actually to be exercised
by the national government[.][85] Of note is the Courts pronouncement
in Pimentel, Jr. v. Hon. Aguirre[86] which we quote:

Under the Philippine concept of local autonomy, the national government

has not completely relinquished all its powers over local governments, including
autonomous regions. Only administrative powers over local affairs are delegated
to political subdivisions. The purpose of the delegation is to make governance
more directly responsive and effective at the local levels. In turn, economic,
political and social development at the smaller political units are expected to
propel social and economic growth and development. But to enable the country
to develop as a whole, the programs and policies effected locally must be
integrated and coordinated towards a common national goal. Thus, policy-
setting for the entire country still lies in the President and
Congress. [Emphasis ours.]

In other words, the autonomy granted to the ARMM cannot be invoked to

defeat national policies and concerns. Since the synchronization of elections is not
just a regional concern but a national one, the ARMM is subject to it; the regional
autonomy granted to the ARMM cannot be used to exempt the region from having
to act in accordance with a national policy mandated by no less than the
Constitution.

Conclusion

Congress acted within its powers and pursuant to a constitutional mandate

the synchronization of national and local elections when it enacted RA No.
10153. This Court cannot question the manner by which Congress undertook this
task; the Judiciary does not and cannot pass upon questions of wisdom, justice or
expediency of legislation.[87] As judges, we can only interpret and apply the law
and, despite our doubts about its wisdom, cannot repeal or amend it.[88]

Nor can the Court presume to dictate the means by which Congress should
address what is essentially a legislative problem. It is not within the Courts power
to enlarge or abridge laws; otherwise, the Court will be guilty of usurping the
exclusive prerogative of Congress.[89] The petitioners, in asking this Court to
compel COMELEC to hold special elections despite its lack of authority to do so,
are essentially asking us to venture into the realm of judicial legislation, which is
abhorrent to one of the most basic principles of a republican and democratic
government the separation of powers.

The petitioners allege, too, that we should act because Congress acted with
grave abuse of discretion in enacting RA No. 10153. Grave abuse of discretion is
such capricious and whimsical exercise of judgment that is patent and gross as to
amount to an evasion of a positive duty or to a virtual refusal to perform a duty
enjoined by law or to act at all in contemplation of the law as where the power is
exercised in an arbitrary and despotic manner by reason of passion and hostility.[90]

We find that Congress, in passing RA No. 10153, acted strictly within its
constitutional mandate. Given an array of choices, it acted within due
constitutional bounds and with marked reasonableness in light of the necessary
adjustments that synchronization demands. Congress, therefore, cannot be accused
of any evasion of a positive duty or of a refusal to perform its duty. We thus find
no reason to accord merit to the petitioners claims of grave abuse of discretion.

On the general claim that RA No. 10153 is unconstitutional, we can only

reiterate the established rule that every statute is presumed valid.[91] Congress, thus,
has in its favor the presumption of constitutionality of its acts, and the party
challenging the validity of a statute has the onerous task of rebutting this
presumption.[92] Any reasonable doubt about the validity of the law should be
resolved in favor of its constitutionality.[93] As this Court declared in Garcia v.
Executive Secretary:[94]

The policy of the courts is to avoid ruling on constitutional questions and

to presume that the acts of the political departments are valid in the absence of a
clear and unmistakable showing to the contrary. To doubt is to sustain. This
presumption is based on the doctrine of separation of powers which enjoins upon
each department a becoming respect for the acts of the other departments. The
theory is that as the joint act of Congress and the President of the Philippines,
 a law has been carefully studied and determined to be in accordance with the
fundamental law before it was finally enacted.[95] [Emphasis ours.]

Given the failure of the petitioners to rebut the presumption of

constitutionality in favor of RA No. 10153, we must support and confirm its
validity.
WHEREFORE, premises considered, we DISMISS the consolidated
petitions assailing the validity of RA No. 10153 for lack of merit,
and UPHOLD the constitutionality of this law. We likewise LIFT the temporary
restraining order we issued in our Resolution of September 13, 2011. No costs.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

I join the dissent of J. Velasco with respect to the appointment

of the OIC Governor and vote to hold the law as unconstitutional
RENATO C. CORONA
Chief Justice

See Dissenting Opinion I join the dissent of J. Carpio but

ANTONIO T. CARPIO disagree on the power of the Pres. to
Associate Justice appoint OIC-Governor of ARMM
PRESBITERO J. VELASCO, JR.
 Associate Justice

I join the dissent of Justice Velasco DIOSDADO M. PERALTA

TERESITA J. LEONARDO-DE CASTRO Associate Justice
Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

I join the dissent of J. Velasco MARTIN S. VILLARAMA, JR.

ROBERTO A. ABAD Associate Justice
Associate Justice

I join the dissent of J. Carpio JOSE CATRAL MENDOZA

JOSE PORTUGAL PEREZ Associate Justice
Associate Justice

I join the dissent of J. Carpio

MARIA LOURDES P. A. SERENO BIENVENIDO L. REYES
Associate Justice Associate Justice
 ESTELA M. PERLAS-BERNABE
Associate Justice

CERTIFICATION

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

RENATO C. CORONA
Chief Justice
Datu Michael Abas Kida v. Senate of the Philippines, et al., G.R. No.
196271, October 18, 2011
DECISION
BRION, J.:

I. THE FACTS

Several laws pertaining to the Autonomous Region in Muslim Mindanao (ARMM) were
enacted by Congress. Republic Act (RA) No. 6734 is the organic act that established the ARMM
and scheduled the first regular elections for the ARMM regional officials. RA No. 9054 amended the
ARMM Charter and reset the regular elections for the ARMM regional officials to the second Monday
of September 2001. RA No. 9140 further reset the first regular elections to November 26, 2001. RA
No. 9333 reset for the third time the ARMM regional elections to the 2nd Monday of August 2005 and
on the same date every 3 years thereafter.

Pursuant to RA No. 9333, the next ARMM regional elections should have been held
on August 8, 2011. COMELEC had begun preparations for these elections and had accepted
certificates of candidacies for the various regional offices to be elected. But on June 30, 2011, RA
No. 10153 was enacted, resetting the next ARMM regular elections to May 2013 to coincide with the
regular national and local elections of the country.

In these consolidated petitions filed directly with the Supreme Court, the petitioners assailed
the constitutionality of RA No. 10153.
II. THE ISSUES:

1. Does the 1987 Constitution mandate the synchronization of elections [including the ARMM
elections]?
2. Does the passage of RA No. 10153 violate the three-readings-on-separate-days rule under Section
26(2), Article VI of the 1987 Constitution?
3. Is the grant [to the President] of the power to appoint OICs constitutional?

III. THE RULING

[The Supreme Court] DISMISSED the petitions and UPHELD the constitutionality of RA No.
10153 in toto.]

1. YES, the 1987 Constitution mandates the synchronization of elections.

While the Constitution does not expressly state that Congress has to synchronize national
and local elections, the clear intent towards this objective can be gleaned from the Transitory
Provisions (Article XVIII) of the Constitution, which show the extent to which the Constitutional
Commission, by deliberately making adjustments to the terms of the incumbent officials, sought to
attain synchronization of elections. The Constitutional Commission exchanges, read with the
provisions of the Transitory Provisions of the Constitution, all serve as patent indicators of the
constitutional mandate to hold synchronized national and local elections, starting the second
Monday of May 1992 and for all the following elections.

In this case, the ARMM elections, although called regional elections, should be included
among the elections to be synchronized as it is a local election based on the wording and structure
of the Constitution.

Thus, it is clear from the foregoing that the 1987 Constitution mandates the synchronization
of elections, including the ARMM elections.

2. NO, the passage of RA No. 10153 DOES NOT violate the three-readings-on-separate-days
requirement in Section 26(2), Article VI of the 1987 Constitution.

The general rule that before bills passed by either the House or the Senate can become laws
they must pass through three readings on separate days, is subject to the EXCEPTION when the
President certifies to the necessity of the bills immediate enactment. The Court, in Tolentino v.
Secretary of Finance, explained the effect of the Presidents certification of necessity in the following
manner:

The presidential certification dispensed with the requirement not only of printing but also that of
reading the bill on separate days. The phrase "except when the President certifies to the necessity of its
immediate enactment, etc." in Art. VI, Section 26[2] qualifies the two stated conditions before a bill can
become a law: [i] the bill has passed three readings on separate days and [ii] it has been printed in its
final form and distributed three days before it is finally approved.

In the present case, the records show that the President wrote to the Speaker of the House
of Representatives to certify the necessity of the immediate enactment of a law synchronizing the
ARMM elections with the national and local elections. Following our Tolentino ruling, the Presidents
 certification exempted both the House and the Senate from having to comply with the three separate
readings requirement.

3. YES, the grant [to the President] of the power to appoint OICs in the ARMM is constitutional

[During the oral arguments, the Court identified the three options open to Congress in order
to resolve the problem on who should sit as ARMM officials in the interim [in order to achieve
synchronization in the 2013 elections]: (1) allow the [incumbent] elective officials in the ARMM to
remain in office in a hold over capacity until those elected in the synchronized elections assume
office; (2) hold special elections in the ARMM, with the terms of those elected to expire when those
elected in the [2013] synchronized elections assume office; or (3) authorize the President to appoint
OICs, [their respective terms to last also until those elected in the 2013 synchronized elections
assume office.]

3.1. 1st option: Holdover is unconstitutional since it would extend the terms of office of the
incumbent ARMM officials

We rule out the [hold over] option since it violates Section 8, Article X of the
Constitution. This provision states:

Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three consecutive
terms. [emphases ours]

Since elective ARMM officials are local officials, they are covered and bound by the three-
year term limit prescribed by the Constitution; they cannot extend their term through a holdover. xxx.

If it will be claimed that the holdover period is effectively another term mandated by
Congress, the net result is for Congress to create a new term and to appoint the occupant for the
new term. This view like the extension of the elective term is constitutionally infirm because
Congress cannot do indirectly what it cannot do directly, i.e., to act in a way that would effectively
extend the term of the incumbents. Indeed, if acts that cannot be legally done directly can be done
indirectly, then all laws would be illusory. Congress cannot also create a new term and effectively
appoint the occupant of the position for the new term. This is effectively an act of appointment by
Congress and an unconstitutional intrusion into the constitutional appointment power of the
President. Hence, holdover whichever way it is viewed is a constitutionally infirm option that
Congress could not have undertaken.

Even assuming that holdover is constitutionally permissible, and there had been statutory
basis for it (namely Section 7, Article VII of RA No. 9054) in the past, we have to remember that the
rule of holdover can only apply as an available option where no express or implied legislative intent
to the contrary exists; it cannot apply where such contrary intent is evident.

Congress, in passing RA No. 10153, made it explicitly clear that it had the intention of
suppressing the holdover rule that prevailed under RA No. 9054 by completely removing this
provision. The deletion is a policy decision that is wholly within the discretion of Congress to make in
the exercise of its plenary legislative powers; this Court cannot pass upon questions of wisdom,
justice or expediency of legislation, except where an attendant unconstitutionality or grave abuse of
discretion results.

3.2. 2nd option: Calling special elections is unconstitutional since COMELEC, on its own, has no
authority to order special elections.
 The power to fix the date of elections is essentially legislative in nature. [N]o elections may
be held on any other date for the positions of President, Vice President, Members of Congress and
local officials, except when so provided by another Act of Congress, or upon orders of a body or
officer to whom Congress may have delegated either the power or the authority to ascertain or fill in
the details in the execution of that power.

Notably, Congress has acted on the ARMM elections by postponing the scheduled August
2011 elections and setting another date May 13, 2011 for regional elections synchronized with
the presidential, congressional and other local elections. By so doing, Congress itself has made a
policy decision in the exercise of its legislative wisdom that it shall not call special elections as an
adjustment measure in synchronizing the ARMM elections with the other elections.

After Congress has so acted, neither the Executive nor the Judiciary can act to the contrary
by ordering special elections instead at the call of the COMELEC. This Court, particularly, cannot
make this call without thereby supplanting the legislative decision and effectively legislating. To be
sure, the Court is not without the power to declare an act of Congress null and void for being
unconstitutional or for having been exercised in grave abuse of discretion. But our power rests on
very narrow ground and is merely to annul a contravening act of Congress; it is not to supplant the
decision of Congress nor to mandate what Congress itself should have done in the exercise of its
legislative powers.

Thus, in the same way that the term of elective ARMM officials cannot be extended through
a holdover, the term cannot be shortened by putting an expiration date earlier than the three (3)
years that the Constitution itself commands. This is what will happen a term of less than two years
if a call for special elections shall prevail. In sum, while synchronization is achieved, the result is at
the cost of a violation of an express provision of the Constitution.

3.3. 3rd option: Grant to the President of the power to appoint ARMM OICs in the interim is valid.

The above considerations leave only Congress chosen interim measure RA No. 10153
and the appointment by the President of OICs to govern the ARMM during the pre-synchronization
period pursuant to Sections 3, 4 and 5 of this law as the only measure that Congress can
make. This choice itself, however, should be examined for any attendant constitutional infirmity.

At the outset, the power to appoint is essentially executive in nature, and the limitations on or
qualifications to the exercise of this power should be strictly construed; these limitations or
qualifications must be clearly stated in order to be recognized. The appointing power is embodied in
Section 16, Article VII of the Constitution, which states:

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

This provision classifies into four groups the officers that the President can appoint. These
are:

First, the heads of the executive departments; ambassadors; other public ministers and consuls;
officers of the Armed Forces of the Philippines, from the rank of colonel or naval captain; and other
officers whose appointments are vested in the President in this Constitution;
 Second, all other officers of the government whose appointments are not otherwise provided for by
law;
Third, those whom the President may be authorized by law to appoint; and
Fourth, officers lower in rank whose appointments the Congress may by law vest in the President
alone.

Since the Presidents authority to appoint OICs emanates from RA No. 10153, it falls under
the third group of officials that the President can appoint pursuant to Section 16, Article VII of the
Constitution. Thus, the assailed law facially rests on clear constitutional basis.

If at all, the gravest challenge posed by the petitions to the authority to appoint OICs under
Section 3 of RA No. 10153 is the assertion that the Constitution requires that the ARMM executive
and legislative officials to be elective and representative of the constituent political units. This
requirement indeed is an express limitation whose non-observance in the assailed law leaves the
appointment of OICs constitutionally defective.

After fully examining the issue, we hold that this alleged constitutional problem is more
apparent than real and becomes very real only if RA No. 10153 were to be mistakenly read as a law
that changes the elective and representative character of ARMM positions. RA No. 10153, however,
does not in any way amend what the organic law of the ARMM (RA No. 9054) sets outs in terms of
structure of governance. What RA No. 10153 in fact only does is to appoint officers-in-charge for
the Office of the Regional Governor, Regional Vice Governor and Members of the Regional
Legislative Assembly who shall perform the functions pertaining to the said offices until the officials
duly elected in the May 2013 elections shall have qualified and assumed office. This power is far
different from appointing elective ARMM officials for the abbreviated term ending on the assumption
to office of the officials elected in the May 2013 elections.

[T]he legal reality is that RA No. 10153 did not amend RA No. 9054. RA No. 10153, in fact,
provides only for synchronization of elections and for the interim measures that must in the
meanwhile prevail. And this is how RA No. 10153 should be read in the manner it was written and
based on its unambiguous facial terms. Aside from its order for synchronization, it is purely and
simply an interim measure responding to the adjustments that the synchronization requires.

[Read a more detailed discussion and summary of this case, please click here.]

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-1123 March 5, 1947

ALEJO MABANAG, ET AL., petitioners,

vs.
JOSE LOPEZ VITO, ET AL., respondents.

Alejo Mabanag, Jose O. Vera, Jesus G. Barrera, Felixberto Serrano, J. Antonio Araneta, Antonio
Barredo, and Jose W. Diokno for petitioners.
Secretary of Justice Ozaeta, Solicitor General Taada, and First Assistant Solicitor General Reyes
for respondents.
TUASON, J.:

This is a petition for prohibition to prevent the enforcement of a congressional resolution designated
"Resolution of both houses proposing an amendment to the Constitution of the Philippines to be
appended as an ordinance thereto." The members of the Commission on Elections, the Treasurer of
the Philippines, the Auditor General, and the Director of the Bureau of Printing are made defendants,
and the petitioners are eight senators, seventeen representatives, and the presidents of the
Democratic Alliance, the Popular Front and the Philippine Youth Party. The validity of the above-
mentioned resolution is attacked as contrary to the Constitution.

The case was heard on the pleadings and stipulation of facts. In our view of the case it is
unnecessary to go into the facts at length. We will mention only the facts essential for the proper
understanding of the issues. For this purpose it suffices to say that three of the plaintiff senators and
eight of the plaintiff representatives had been proclaimed by a majority vote of the Commission on
Elections as having been elected senators and representatives in the elections held on April 23,
1946. The three senators were suspended by the Senate shortly after the opening of the first
session of Congress following the elections, on account of alleged irregularities in their election. The
eight representatives since their election had not been allowed to sit in the lower House, except to
take part in the election of the Speaker, for the same reason, although they had not been formally
suspended. A resolution for their suspension had been introduced in the House of Representatives,
but that resolution had not been acted upon definitely by the House when the present petition was
filed.

As a consequence these three senators and eight representatives did not take part in the passage of
the questioned resolution, nor was their membership reckoned within the computation of the
necessary three-fourths vote which is required in proposing an amendment to the Constitution. If
these members of Congress had been counted, the affirmative votes in favor of the proposed
amendment would have been short of the necessary three-fourths vote in either branch of Congress.

At the threshold we are met with the question of the jurisdiction of this Court. The respondents deny
that this Court has jurisdiction, relying on the conclusiveness on the courts of an enrolled bill or
resolution. There is some merit in the petitioners' contention that this is confusing jurisdiction, which
is a matter of substantive law, with conclusiveness of an enactment or resolution, which is a matter
of evidence and practice. This objection, however, is purely academic. Whatever distinction there is
in the juridical sense between the two concepts, in practice and in their operation they boil down to
the same thing. Basically the two notions are synonymous in that both are founded on the regard
which the judiciary accords a co-equal coordinate, and independent departments of the Government.
If a political question conclusively binds the judges out of respect to the political departments, a duly
certified law or resolution also binds the judges under the "enrolled bill rule" born of that respect.

It is a doctrine too well established to need citation of authorities, that political questions are not
within the province of the judiciary, except to the extent that power to deal with such questions has
been conferred upon the courts by express constitutional or statutory provision. (16 C.J.S., 431.)
This doctrine is predicated on the principle of the separation of powers, a principle also too well
known to require elucidation or citation of authorities. The difficulty lies in determining what matters
fall within the meaning of political question. The term is not susceptible of exact definition, and
precedents and authorities are not always in full harmony as to the scope of the restrictions, on this
ground, on the courts to meddle with the actions of the political departments of the government.

But there is one case approaching this in its circumstances: Coleman vs. Miller, a relatively recent
decision of the United States Supreme Court reported and annotated in 122 A.L.R., 695. The case,
by a majority decision delivered by Mr. Chief Justice Hughes, is authority for the conclusion that the
efficacy of ratification by state legislature of a proposed amendment to the Federal Constitution is a
political question and hence not justiciable. The Court further held that the decision by Congress, in
its control of the Secretary of State, of the questions of whether an amendment has been adopted
within a reasonable time from the date of submission to the state legislature, is not subject to review
by the court.

If ratification of an amendment is a political question, a proposal which leads to ratification has to be

a political question. The two steps complement each other in a scheme intended to achieve a single
objective. It is to be noted that the amendatory process as provided in section 1 of Article XV of the
Philippine Constitution "consists of (only) two distinct parts: proposal and ratification." There is no
logic in attaching political character to one and withholding that character from the other. Proposal to
amend the Constitution is a highly political function performed by the Congress in its sovereign
legislative capacity and committed to its charge by the Constitution itself. The exercise of this power
is even independent of any intervention by the Chief Executive. If on grounds of expediency
scrupulous attention of the judiciary be needed to safeguard public interest, there is less reason for
judicial inquiry into the validity of a proposal than into that of a ratification. As the Mississippi
Supreme Court has once said:

There is nothing in the nature of the submission which should cause the free exercise of it to
be obstructed, or that could render it dangerous to the stability of the government; because
the measure derives all its vital force from the action of the people at the ballot box, and
there can never be danger in submitting in an established form, to a free people, the
proposition whether they will change their fundamental law. The means provided for the
exercise of their sovereign right of changing their constitution should receive such a
construction as not to trammel the exercise of the right. Difficulties and embarrassments in
its exercise are in derogation of the right of free government, which is inherent in the people;
and the best security against tumult and revolution is the free and unobstructed privilege to
the people of the State to change their constitution in the mode prescribed by the instrument.
(Green vs. Weller, 32 Miss., 650; note, 10 L.R.A., N.S., 150.)

Mr. Justice Black, in a concurring opinion joined in by Justices Roberts, Frankfurter and Douglas, in
Miller vs.Coleman, supra, finds no basis for discriminating between proposal and ratification. From
his forceful opinion we quote the following paragraphs:

The Constitution grant Congress exclusive power to control submission of constitutional

amendments. Final determination by Congress that ratification by three-fourths of the States
has taken place "is conclusive upon the courts." In the exercise of that power, Congress, of
course, is governed by the Constitution. However, whether submission, intervening
procedure or Congressional determination of ratification conforms to the commands of the
Constitution, call for decisions by a "political department" of questions of a type which this
Court has frequently designated "political." And decision of a "political question" by the
"political department" to which the Constitution has committed it "conclusively binds the
judges, as well as all other officers, citizens and subjects of . . . government." Proclamation
under authority of Congress that an amendment has been ratified will carry with it a solemn
assurance by the Congress that ratification has taken place as the Constitution commands.
Upon this assurance a proclaimed amendment must be accepted as a part of the
Constitution, leaving to the judiciary its traditional authority of interpretation. To the extent
that the Court's opinion in the present case even impliedly assumes a power to make judicial
interpretation of the exclusive constitutional authority of Congress over submission and
ratification of amendments, we are unable to agree.
 The State court below assumed jurisdiction to determine whether the proper procedure is
being followed between submission and final adoption. However, it is apparent that judicial
review of or pronouncements upon a supposed limitation of a "reasonable time" within which
Congress may accept ratification; as to whether duly authorized State officials have
proceeded properly in ratifying or voting for ratification; or whether a State may reverse its
action once taken upon a proposed amendment; and kindred questions, are all consistent
only with an intimate control over the amending process in the courts. And this must
inevitably embarrass the course of amendment by subjecting to judicial interference matters
that we believe were intrusted by the Constitution solely to the political branch of
government.

The Court here treats the amending process of the Constitution in some respects as subject
to judicial construction, in others as subject to the final authority of the Congress. There is no
disapproval of the conclusion arrived at in Dillon vs. Gloss, that the Constitution impliedly
requires that a properly submitted amendment must die unless ratified within a "reasonable
time." Nor does the Court now disapprove its prior assumption of power to make such a
pronouncement. And it is not made clear that only Congress has constitutional power to
determine if there is any such implication in Article 5 of the Constitution. On the other hand,
the Court's opinion declares that Congress has the exclusive power to decide the "political
questions" of whether as State whose legislature has once acted upon a proposed
amendment may subsequently reverse its position, and whether, in the circumstances of
such a case as this, an amendment is dead because an "unreasonable" time has elapsed.
No such division between the political and judicial branches of the government is made by
Article 5 which grants power over the amending of the Constitution to Congress alone.
Undivided control of that process has been given by the Article exclusively and completely to
Congress. The process itself is "political" in its entirely, from submission until an amendment
becomes part of the Constitution, and is not subject to judicial guidance, control or
interference at any point.

Mr. Justice Frankfurter, in another concurring opinion to which the other three justices subscribed,
arrives at the same conclusion. Though his thesis was the petitioner's lack of standing in court a
point which not having been raised by the parties herein we will not decide his reasoning
inevitably extends to a consideration of the nature of the legislative proceeding the legality of which
the petitioners in that case assailed. From a different angle he sees the matter as political, saying:

The right of the Kansas senators to be here is rested on recognition by Leser vs. Garnett,
258 U.S., 130; 66 Law. ed., 505; 42 S. Ct., 217, of a voter's right to protect his franchise. The
historic source of this doctrine and the reasons for it were explained in Nixon vs. Herndon,
273 U.S., 436, 540; 71 Law. ed., 759, 761; 47 S. Ct., 446. That was an action for $5,000
damages against the Judges of Elections for refusing to permit the plaintiff to vote at a
primary election in Texas. In disposing of the objection that the plaintiff had no cause of
action because the subject matter of the suit was political, Mr. Justice Homes thus spoke for
the Court: "Of course the petition concerns political action, but it alleges and seeks to
recover for private damage. That private damage may be caused by such political action and
may be recovered for in a suit at law hardly has been doubted for over two hundred years,
since Ashby vs. White, 2 Ld. Raym., 938; 92 Eng. Reprint, 126; 1 Eng. Rul. Cas., 521; 3 Ld.
Raym., 320; 92 Eng. Reprint, 710, and has been recognized by this Court." "Private
damage" is the clue to the famous ruling in Ashby vs. White, supra, and determines its scope
as well as that of cases in this Court of which it is the justification. The judgment of Lord Holt
is permeated with the conception that a voter's franchise is a personal right, assessable in
money damages, of which the exact amount "is peculiarly appropriate for the determination
of a jury," see Wiley vs. Sinkler, 179 U.S., 58, 65; 45 Law. ed., 84, 88; 21 S. Ct., 17, and for
which there is no remedy outside the law courts. "Although this matter relates to the
 parliament," said Lord Holt, "yet it is an injury precedaneous to the parliament, as my Lord
Hale said in the case of Bernardiston vs. Some, 2 Lev., 114, 116; 83 Eng. Reprint, 175. The
parliament cannot judge of this injury, nor give damage to the plaintiff for it: they cannot
make him a recompense." (2 Ld. Raym., 938, 958; 92 Eng. Reprint, 126; 1 Eng. Rul. Cas.,
521.)

The reasoning of Ashby vs. White and the practice which has followed it leave intra-
parliamentary controversies to parliaments and outside the scrutiny of law courts. The
procedures for voting in legislative assemblies who are members, how and when they
should vote, what is the requisite number of votes for different phases of legislative activity,
what votes were cast and how they were counted surely are matters that not merely
concern political action but are of the very essence of political action, if "political" has any
connotation at all. Marshall Field & Co. vs. Clark, 143 U.S., 649, 670, et seq.; 36 Law. ed.,
294, 302; 12 S. Ct., 495; Leser vs. Garnett, 258 U.S., 130, 137; 66 Law. ed., 505, 511; 42 S.
Ct., 217. In no sense are they matters of "private damage." They pertain to legislators not as
individuals but as political representatives executing the legislative process. To open the law
courts to such controversies is to have courts sit in judgment on the manifold disputes
engendered by procedures for voting in legislative assemblies. If the doctrine of
Ashby vs. White vindicating the private rights of a voting citizen has not been doubted for
over two hundred years, it is equally significant that for over two hundred years
Ashby vs. White has not been sought to be put to purposes like the present. In seeking
redress here these Kansas senators have wholly misconceived the functions of this Court.
The writ of certiorari to the Kansas Supreme Court should therefore be dismissed.

We share the foregoing views. In our judgment they accord with sound principles of political
jurisprudence and represent liberal and advanced thought on the working of constitutional and
popular government as conceived in the fundamental law. Taken as persuasive authorities, they
offer enlightening understanding of the spirit of the United States institutions after which ours are
patterned.

But these concurring opinions have more than persuasive value. As will be presently shown, they
are the opinions which should operate to adjudicate the questions raised by the pleadings. To make
the point clear, it is necessary, at the risk of unduly lengthening this decision, to make a statement
and an analysis of the Coleman vs. Miller case. Fortunately, the annotation on that case in the
American Law Reports, supra, comes to out aid and lightens our labor in this phase of the
controversy.

Coleman vs. Miller was an original proceeding in mandamus brought in the Supreme Court of
Kansas by twenty-one members of the Senate, including twenty senators who had voted against a
resolution ratifying the Child Labor Amendment, and by three members of the House of
Representatives, to compel the Secretary of the Senate to erase in indorsement on the resolution to
the effect that it had been adopted by the Senate and to indorse thereon the words "as not passed."
They sought to restrain the offices of the Senate and House of Representatives from signing the
resolution, and the Secretary of State of Kansas from authenticating it and delivering it to the
Governor.

The background of the petition appears to have been that the Child Labor Amendment was
proposed by Congress in June, 1924; that in January, 1925, the legislature of Kansad adopted a
resolution rejecting it and a copy of the resolution was sent to the Secretary of State of the United
States; that in January, 1927, a new resolution was introduced in the Senate of Kansas ratifying the
proposed amendment; that there were forty senators, twenty of whom voted for and twenty against
the resolution; and that as a result of the tie, the Lieutenant Governor cast his vote in favor of the
resolution.

The power of the Lieutenant Governor to vote was challenged, and the petition set forth prior
rejection of the proposed amendment and alleged that in the period from June 1924 to March 1927,
the proposed amendment had been rejected by both houses of the legislatures of twenty-six states
and had been ratified only in five states, and that by reason of that rejection and the failure of
ratification within a reasonable time, the proposed amendment had lost its vitality.

The Supreme Court of Kansas entertained jurisdiction of all the issues but dismissed the petition on
the merits. When the case reached the Supreme Court of the United States the questions were
framed substantially in the following manner:

First, whether the court had jurisdiction; that is, whether the petitioners had standing to seek to have
the judgment of the state court reversed; second, whether the Lieutenant Governor had the right to
vote in case of a tie, as he did, it being the contention of the petitioners that "in the light of the
powers and duties of the Lieutenant Governor and his relation to the Senate under the state
Constitution, as construed by the Supreme Court of the state, the Lieutenant Governor was not a
part of the 'legislature' so that under Article 5 of the Federal Constitution, he could be permitted to
have a deciding vote on the ratification of the proposed amendment, when the Senate was equally
divided"; and third, the effect of the previous rejection of the amendment and of the lapse of time
after its submission.

The first question was decided in the affirmative. The second question, regarding the authority of the
Lieutenant Governor to vote, the court avoided, stating: "Whether this contention presents a
justiciable controversy, or a question which is political in its nature and hence not justiciable, is a
question upon which the Court is equally divided and therefore the court expresses no opinion upon
that point." On the third question, the Court reached the conclusion before referred to, namely, (1)
that the efficacy of ratification by state legislature of a proposed amendment to the Federal
Constitution is a political question, within the ultimate power of Congress in the exercise of its control
and of the promulgation of the adoption of amendment, and (2) that the decision by Congress, in its
control of the action of the Secretary of State, of the questions whether an amendment to the
Federal Constitution has been adopted within a reasonable time, is not subject to review by the
court.

The net result was that the judgment of the Supreme Court of Kansas was affirmed but in the
grounds stated in the United States Supreme Court's decision. The nine justices were aligned in
three groups. Justices Roberts, Black, Frankfurter and Douglas opined that the petitioners had no
personality to bring the petition and that all the questions raised are political and non-justiciable
Justices Butler and McReynolds opined that all the questions were justiciable; that the Court had
jurisdiction of all such questions, and that the petition should have been granted and the decision of
the Supreme Court of Kansas reversed on the ground that the proposal to amend had died of old
age. The Chief Justice, Mr. Justice Stone and Mr. Justice Reed regarded some of the issues as
political and non-justiciable, passed by the question of the authority of the Lieutenant Governor to
case a deciding vote, on the ground that the Court was equally divided, and took jurisdiction of the
rest of the questions.

The sole common ground between Mr. Justice Butler and Mr. Justice McReynolds, on the one hand
and the Chief Justice, Mr. Justice Stone and Mr. Justice Reed, on the other, was on the question of
jurisdiction; on the result to be reached, these two groups were divided. The agreement between
Justices Roberts, Black, Frankfurter and Douglas, on the one hand, and the Chief Justice and
Justices Stone and Reed, on the other, was on the result and on that part of the decision which
declares certain questions political and non-justiciable.

As the annotator in American Law Reports observes, therefore going four opinions "show
interestingly divergent but confusing positions of the Justices on the issues discussed. "It cites an
article in 48 Yale Law Journal, 1455, amusingly entitled "Sawing a Justice in Half," which, in the light
of the divergencies in the opinions rendered, aptly queries" whether the proper procedure for the
Supreme Court would not have been to reverse the judgment below and direct dismissal of the suit
for want of jurisdiction." It says that these divergencies and line-ups of the justices "leave power to
dictate the result and the grounds upon which the decision should be rested with the four justices
who concurred in Mr. Justice Black's opinion." Referring to the failure of the Court to decide the
question of the right of the Lieutenant Governor to vote, the article points out that from the opinions
rendered the "equally divided" court would seem under any circumstances to bean equal division of
an odd number of justices, and asks "What really did happen? Did a justice refuse to vote on this
issue? And if he did, was it because he could not make up his mind, or is it possible to saw a justice
vertically in half during the conference and have him walk away whole?" But speaking in a more
serious vein, the commentator says that decision of the issue could not be avoided on grounds of
irrelevance, since if the court had jurisdiction of the case, decision of the issue in favor of the
petitioners would have required reversal of the judgment below regardless of the disposal of the
other issues.

From this analysis the conclusion is that the concurring opinions should be considered as laying
down the rule of the case.

The respondent's other chief reliance is on the contention that a duly authenticated bill or resolution
imports absolute verity and is binding on the courts. This is the rule prevailing in England. In the
United States, "In point of numbers, the jurisdictions are divided almost equally pro and con the
general principle (of these, two or three have changed from their original position), two or three
adopted a special variety of view (as in Illinois), three or four are not clear, and one or two have not
yet made their decisions." (IV Wigmore on Evidence, 3d Edition, 685, footnote.) It is important to
bear in mind, in this connection, that the United States Supreme Court is on the side of those which
favor the rule. (Harwood vs. Wentworth, 40 Law. ed., 1069; Lyon vs. Wood, 38 Law. ed., 854;
Field vs. Clark, 36 Law. ed., 294.)

If for no other reason than that it conforms to the expressed policy of our law making body, we
choose to follow the rule. Section 313 of the old Code of Civil Procedure, as amended by Act No.
2210, provides: "Official documents may be proved as follows: . . . (2) the proceedings of the
Philippine Commission, or of any legislative body that may be provided for in the Philippine Islands,
or of Congress, by the journals of those bodies or of either house thereof, or by published statutes or
resolutions, or by copies certified by the clerk or secretary, or printed by their order; Provided, That
in the case of Acts of the Philippine Commission or the Philippine Legislature, when there is an
existence of a copy signed by the presiding officers and secretaries of said bodies, it shall be
conclusive proof of the provisions of such Acts and of the due enactment thereof."

But there is more than statutory sanction for conclusiveness.

This topic has been the subject of a great number of decisions and commentaries written with
evident vehemence. Arguments for and against the rule have been extensive and exhaustive. It
would be presumptuous on our part to pretend to add more, even if we could, to what has already
been said. Which such vast mass of cases to guide our judgment and discretion, our labor is
reduced to an intelligent selection and borrowing of materials and arguments under the criterion of
adaptability to a sound public policy.
The reasons adduced in support of enrollment as contrasted with those which opposed it are, in our
opinion, almost decisive. Some of these reasons are summarized in 50 American Jurisprudence,
section 150 as follows:

SEC. 150. Reasons for Conclusiveness. It has been declared that the rule against going
behind the enrolled bill is required by the respect due to a coequal and independent
department of the government, and it would be an inquisition into the conduct of the
members of the legislature, a very delicate power, the frequent exercise of which must lead
to endless confusion in the administration of the law. The rule is also one of convenience,
because courts could not rely on the published session laws, but would be required to look
beyond these to the journals of the legislature and often to any printed bills and amendments
which might be found after the adjournment of the legislature. Otherwise, after relying on the
prima facie evidence of the enrolled bills, authenticated as exacted by the Constitution, for
years, it might be ascertained from the journals that an act theretofore enforced had never
become a law. In this respect, it has been declared that these is quite enough uncertainty as
to what the law is without saying that no one may be certain that an act of the legislature has
become such until the issue has been determined by some court whose decision might not
be regarded as conclusive in an action between the parties.

From other decisions, selected and quoted in IV Wigmore on Evidence, 696, 697, we extract these
passages:

I think the rule thus adopted accords with public policy. Indeed, in my estimation, few things
would be more mischievous than the introduction of the opposite rule. . . . The rule
contended for is that the Court should look at the journals of the Legislature to ascertain
whether the copy of the act attested and filed with the Secretary of State conforms in its
contents with the statements of such journals. This proposition means, if it has any legal
value whatever, that, in the event of a material discrepancy between the journal and the
enrolled copy, the former is to be taken as the standard of veracity and the act is to be
rejected. This is the test which is to be applied not only to the statutes now before the Court,
but to all statutes; not only to laws which have been recently passed, but to laws the most
ancient. To my mind, nothing can be more certain than that the acceptance of this doctrine
by the Court would unsettle the entire statute law of the State. We have before us some
evidence of the little reliability of these legislative journals. . . . Can any one deny that if the
laws of the State are to be tested by a comparison with these journals, so imperfect, so
unauthenticated, the stability of all written law will be shaken to its very foundations? . . . We
are to remember the danger, under the prevalence of such a doctrine, to be apprehended
from the intentional corruption of evidences of this character. It is scarcely too much to say
that the legal existence of almost every legislative act would be at the mercy of all persons
having access to these journals. . . . ([1866], Beasley, C.J., in Pangborn vs. Young, 32
N.J.L., 29, 34.)

But it is argued that if the authenticated roll is conclusive upon the Courts, then less than a
quorum of each House may be the aid of corrupt presiding officers imposed laws upon the
State in defiance of the inhibition of the Constitution. It must be admitted that the
consequence stated would be possible. Public authority and political power must of necessity
be confided to officers, who being human may violate the trusts reposed in them. This
perhaps cannot be avoided absolutely. But it applies also to all human agencies. It is not fit
that the Judiciary should claim for itself a purity beyond all others; nor has it been able at all
times with truth to say that its high places have not been disgraced. The framers of our
government have not constituted it with faculties to supervise coordinate departments and
correct or prevent abuses of their authority. It cannot authenticate a statute; that power does
 not belong to it; nor can it keep a legislative journal. (1869, Frazer, J., in Evans vs. Brownem
30 Ind., 514, 524.)

Professor Wigmore in his work on Evidence considered a classic, and described by one who
himself is a noted jurist, author, and scholar, as "a permanent contribution to American law" and
having "put the matured nineteenth-century law in form to be used in a new era of growth"
unequivocally identifies himself with those who believe in the soundness of the rule. The
distinguished professor, in answer to the argument of Constitutional necessity, i.e., the impossibility
of securing in any other way the enforcement of constitutional restrictions on legislative action, says:

(1) In the first place, note that it is impossible of consistent application. If, as it is urged, the
Judiciary are bound to enforce the constitutional requirements of three readings, a two-thirds
vote, and the like, and if therefore an act must be declared no law which in fact was not read
three times or voted upon by two-thirds, this duty is a duty to determine according to the
actual facts of the readings and the votes. Now the journals may not represent the actual
facts. That duty cannot allow us to stop with the journals, if it can be shown beyond doubt
that the facts were otherwise than therein represented. The duty to uphold a law which in fact
was constitutionally voted upon is quite as strong as the duty to repudiate an act
unconstitutionally voted upon. The Court will be going as far wrong in repudiating an act
based on proper votes falsified in the journal as it will be in upholding an act based on
improper votes falsified in the enrollment. This supposed duty, in short, is to see that the
constitutional facts did exist; and it cannot stop short with the journals. Yet, singularly
enough, it is unanimously conceded that an examination into facts as provable by the
testimony of members present is not allowable. If to support that it be said that such an
inquiry would be too uncertain and impracticable, then it is answered that this concedes the
supposed constitutional duty not to be inexorable, after all; for if the duty to get at the facts is
a real and inevitable one, it must be a duty to get at them at any cost; and if it is merely a
duty that is limited by policy and practical convenience, then the argument changes into the
second one above, namely, how far it is feasible to push the inquiry with regard to policy and
practical convenience; and from this point of view there can be but one answer.

(2) In the second place, the fact that the scruple of constitutional duty is treated thus
inconsistently and pushed only up to a certain point suggests that it perhaps is based on
some fallacious assumption whose defect is exposed only by carrying it to its logical
consequences. Such indeed seems to be the case. It rests on the fallacious motion that
every constitutional provision is "per se" capable of being enforced through the Judiciary and
must be safeguarded by the Judiciary because it can be in no other way. Yet there is
certainly a large field of constitutional provision which does not come before the Judiciary for
enforcement, and may remain unenforced without any possibility or judicial remedy. It is not
necessary to invoke in illustration such provisions as a clause requiring the Governor to
appoint a certain officer, or the Legislature to pass a law for a certain purpose; here the
Constitution may remain unexecuted by the failure of Governor or Legislature to act, and yet
the Judiciary cannot safeguard and enforce the constitutional duty. A clearer illustration may
be had by imagining the Constitution to require the Executive to appoint an officer or to call
out the militia whenever to the best of his belief a certain state of facts exists; suppose he
appoints or calls out when in truth he has no such belief; can the Judiciary attempt to enforce
the Constitution by inquiring into his belief? Or suppose the Constitution to enjoin on the
Legislators to pass a law upon a certain subject whenever in their belief certain conditions
exist; can the Judiciary declare the law void by inquiring and ascertaining that the
Legislature, or its majority, did not have such a belief? Or suppose the Constitution
commands the Judiciary to decide a case only after consulting a soothsayer, and in a given
case the Judiciary do not consult one; what is to be done?
 These instances illustrate a general situation in which the judicial function of applying and
enforcing the Constitution ceases to operate. That situation exists where the Constitution
enjoins duties which affect the motives and judgment of a particular independent department
of government, Legislature, Executive, and Judiciary. Such duties are simply beyond
enforcement by any other department if the one charged fails to perform them. The
Constitution may provide that no legislator shall take a bribe, but an act would not be treated
as void because the majority had been bribed. So far as the Constitution attempts to lay
injunctions in matters leading up to and motivating the action of a department, injunctions
must be left to the conscience of that department to obey or disobey. Now the act of the
Legislature as a whole is for this purpose of the same nature as the vote of a single
legislator. The Constitution may expressly enjoin each legislator not to vote until he has
carefully thought over the matter of legislation; so, too, it may expressly enjoin the whole
Legislature not to act finally until it has three times heard the proposition read aloud. It is for
the Legislature alone, in the latter case as well as in the former, to take notice of this
injunction; and it is no more the function of the Judiciary in the one case than in the other to
try to keep the Legislature to its duty:

xxx xxx xxx

The truth is that many have been carried away with the righteous desire to check at any cost
the misdoings of Legislatures. They have set such store by the Judiciary for this purpose that
they have almost made them a second and higher Legislature. But they aim in the wrong
direction. Instead of trusting a faithful Judiciary to check an inefficient Legislature, they
should turn to improve the legislature. The sensible solution is not to patch and mend casual
errors by asking the Judiciary to violate legal principle and to do impossibilities with the
Constitution; but to represent ourselves with competent, careful, and honest legislators, the
work of whose hands on the statute-roll may come to reflect credit upon the name of popular
government. (4 Wigmore on Evidence, 699-702.)

The petitioners contend that the enrolled bill rule has not found acceptance in this jurisdiction, citing
the case of United States vs. Pons (34 Phil., 729). It is argued that this Court examined the journal in
that case to find out whether or not the contention of the appellant was right. We think the petitioners
are in error.

It will be seen upon examination of section 313 of the Code of Civil Procedure, as amended by Act
No. 2210, that, roughly, it provides two methods of proving legislative proceedings: (1) by the
journals, or by published statutes or resolutions, or by copies certified by the clerk or secretary or
printed by their order; and (2) in case of acts of the Legislature, by a copy signed by the presiding
officers and secretaries thereof, which shall be conclusive proof of the provisions of such Acts and of
the due enactment thereof.

The Court looked into the journals in United States vs. Pons because, in all probability, those were
the documents offered in evidence. It does not appear that a duly authenticated copy of the Act was
in existence or was placed before the Court; and it has not been shown that if that had been done,
this Court would not have held the copyconclusive proof of the due enactment of the law. It is to be
remembered that the Court expressly stated that it "passed over the question" of whether the
enrolled bill was conclusive as to its contents and the mode of its passage.

Even if both the journals and an authenticated copy of the Act had been presented, the disposal of
the issue by the Court on the basis of the journals does not imply rejection of the enrollment theory,
for, as already stated, the due enactment of a law may be proved in either of the two ways specified
in section 313 of Act No. 190 as amended. This Court found in the journals no signs of irregularity in
the passage of the law and did not bother itself with considering the effects of an authenticated copy
if one had been introduced. It did not do what the opponents of the rule of conclusiveness advocate,
namely, look into the journals behind the enrolled copy in order to determine the correctness of the
latter, and rule such copy out if the two, the journals and the copy, be found in conflict with each
other. No discrepancy appears to have been noted between the two documents and the court did
not say or so much as give to understand that if discrepancy existed it would give greater weight to
the journals, disregarding the explicit provision that duly certified copies "shall be conclusive proof of
the provisions of such Acts and of the due enactment thereof."

In view of the foregoing consideration, we deem it unnecessary to decide the question of whether
the senators and representatives who were ignored in the computation of the necessary three-
fourths vote were members of Congress within the meaning of section 1 of Article XV of the
Philippine Constitution.

The petition is dismissed without costs.

Moran, C.J., Pablo, and Hontiveros, JJ., concur.

Separate Opinions

BENGZON, J., with whom concurs PADILLA, J., concurring:

Although I maintain that we have jurisdiction as petitioners contend, I can't vote for them, because
the enrolled copy of the resolution and the legislative journals are conclusive upon us.

A. The overwhelming majority of the state courts are of the opinion that the question whether an
amendment to the existing constitution has been duly proposed in the manner required by such
constitution properly belongs to the judiciary. That is the position taken by Alabama, Arkansas,
California, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New
Jersey, Ohio, Oregon, Rhode Island, Washington and Wisconsin. (See 12 C. J., 880 and 16C.J.S.,
437.) (See also 11 Am. Jur., 639.) Only North Dakota and Oklahoma have adopted a different view.
(16 C.J.S., 437, notes 41 and 43.)

"The authorities are thus practically uniform in holding that whether a constitutional
amendment has been properly adopted according to the requirements of an existing
constitution is a judicial question." (McConaughy vs. Secretary of State, 106 Minn., 392, 409;
119 N.W., 408.) (12 C.J., 880.)

"An examination of the decisions shows that the courts have almost uniformly exercised the
authority to determine the validity of the proposal, submission, or ratification of constitutional
amendments. It has been judicially determined whether a proposed amendment received the
constitutional majority of votes. (Knight vs.Shelton, 134 Fed., 423; Rice vs. Palmer, 78 Ark.,
432; 96 S. W. 396; Green vs. State Canvassers, 5 Ida., 130; 47 P., 259; 95 Am. S.R., 169; In
re Denny, 156 Ind., 104; 59 N.E., 359; 51 L. R. A., 722; Dayton vs. St. Paul, 22 Minn., 400;
Tecumseh Nat. Bank vs. Saunders, 51 Nebr., 801; 71 N.W., 779; Bott vs. Wurts, 63 N.J.L.,
 289; 43 A., 744, 881; 45 L.R.A., 251; State vs. Foraker, 46 Oh. St., 677; 23 N.E., 491; 6
L.R.A., 422.)" (12 C.J., 880.)

As our constitutional system ("limitation" of powers) is more analogous to state systems than to the
Federal theory of "grant" of powers, it is proper to assume that the members of our Constitutional
convention, composed mostly of lawyers, and even the members of the American Congress that
approved the Tydings-McDuffie enabling legislation, contemplated the adoption of such
constitutional practice in this portion of the world. Hence, my conclusion that in Philippine polity,
courts may and should take cognizance of the subject of this controversy.

B. The petitioners' grievance is that, contrary to the provisions of the Constitution (Article XV), the
proposed amendment was not approved "by a vote of three-fourths of all the members of the Senate
and of the House of Representatives." They complain that certain Senators and some members of
the House of Representatives were not allowed to participate and were not considered in
determining the required three fourths vote.

The respondents, besides denying our power to revised the counting, assert that the persons
mentioned, for all practical purposed did not belong to the Congress of the Philippines on the day the
amendment was debated and approved.

Central target of attack is Republic Act No. 73 "to submit to the Filipino people, for approval or
disapproval, the amendment to the Constitution of the Philippines to be appended as an Ordinance
thereto, proposed by the Congress of the Philippines in a Resolution of both Houses, etc."

Petitioners would have a declaration of invalidity of that piece of legislation. Its first section provides
that "the amendment to the Constitution of the Philippines to be appended as an Ordinance thereto,
proposed by the Congress of the Philippines in a Resolution of both Houses, adopted on September
eighteen, nineteen hundred and forty-six, shall be submitted to the people, for approval or
disapproval, at a general election which shall be held on March eleven, nineteen hundred and forty-
seven, in accordance with the provisions of this Act."

By this provision, the Legislative Department with the concurrence of the Executive, declares in the
most solemn manner that the resolution proposing the amendment was duly carried. Therefore, it
would be pertinent to inquire whether those petitioners who are members of the Congress that
approved Republic Act No. 73 are not precluded from questioning its validity or veracity, unless they
assert and prove that in Congress they opposed its enactment. In default of a contrary showing, it is
not reasonable to suppose that as members of Congress they endorsed-- or at least are bound by
the declarations of Republic Act No. 73? And if a private party is estopped from challenging the
constitutional efficacy of a law whose enactment he has procured (see 16 C.J.S., 198 and 11 Am.
Jur., 767) should not a member of Congress be estopped from impugning a statute he helped
(presumably) to pass? Parenthetically it should be added that the remaining petitioners, as mere
citizens, would probably have no suable claim. (Cf. 16 C.J.S., 169.)

C. But perhaps these points should be left to future study and decision, because the instant litigation
may be solved by the application of other well-established principles founded mainly on the
traditional respect which one department of the Government entertains for the actions of the others.

On account of the separation of powers, which I firmly believe, I agree to the applicability and
binding effect of section 313 of Act No. 190, as amended by Act No. 2210, which, in my opinion, has
not been abrogated by the Rules of Court. I likewise believe the soundness of the doctrine
expounded by the authoritative Wigmore on a question admittedly within the domain of the law on
evidence: conclusiveness of the enrolled bill of resolution upon the judicial authorities.
D. Withal, should that principle of conclusiveness be denied, the respondents could plausibly fall
back on the time-honored rule that the courts may not go behind the legislative journals to contradict
their veracity. (United States vs.Pons, 34 Phil., 729.)

According to the minutes of the joint session Exhibit 3, in the Senate sixteenth (16) senators
approved the resolution against five (5), with no absences; whereas in the house sixty-eight (68)
congressmen voted "yes", eighteen(18) voted "no", one abstained from voting and one was absent.
Therefore, 16 being three-fourths of the total membership of twenty-one of the Senate (16 plus 5),
and 68 being more than three-fourths of the total membership of eighty-eight (88) of the House of
Representatives (68 plus 18 plus 1 plus 1), it is crystal clear that the measure was upheld by the
number of votes prescribed by the Constitution.

True, there are in the said exhibit statements by two Senators and one congressman to the effect
that the votes did not constitute the majority required by the Constitution. However, in the fact of the
incontestable arithmetical computation above shown, those protests must be attributed to their
erroneous counting of votes; none of them having then asserted that "there were absent Senators or
Congressmen who had not been taken into account. "Ford although we might have judicial notice of
the number of proclaimed members of Congress, still we are no better qualified than the Legislature
to determine the number of its actual membership at any given moment, what with demises or
demissions, remotions or suspensions.

HILADO, J., concurring and dissenting:

I concur in the result of the majority opinion as well as in the grounds supporting the same in so far
as they are not inconsistent with the applicable reasons supporting my concurring opinion in Vera vs.
Avelino (77 Phil., 192). But I dissent from that part of the majority opinion (page 3, ante) wherein it is
stated that if the suspended members of the Senate and House of Representatives had been
counted "the affirmative votes in favor of the proposed amendment would have been short of the
necessary three-fourths of vote in either branch of Congress."

The basic theories underlying my aforesaid concurring opinion in Vera vs. Avelino, supra, are, first,
that the questions therein raised were political in nature within the exclusive province of the
legislature, and, second, that the judiciary does not possess jurisdiction over such questions. It is to
me evidence that the questions involved in the present proceeding are no less political than those
involved in that former Senate case. It is deemed unnecessary to dwell at more length upon the
grounds of my said concurring opinion.

The ground for my dissent from the above-quoted statement of the majority opinion in the instant
proceeding is that the suspension of the said members of the Senate and the House of
Representatives being a political question, the judiciary, being without jurisdiction to interfere with
the determination thereof by the proper political department of the government, has perforce to abide
by said determination if it were to go any further in the consideration of the case. In other words, any
further discussion of the case in this Court will have to start from the premise that said members
have been suspended by the respective Houses of Congress and that we, being powerless to
interfere with the matter of said suspension, must consider ourselves bound by the determination of
said political branches of the government. As said by the Supreme Court of the United States in
Philipps vs. Payne (2 Otto. [U.S.], 130; 23 Law. ed., 649), "in cases involving the action of the
political departments of the government, the judiciary is bound by such action."
(Williams vs. Insurance Co., 13 Pet., 420; Garcia vs. Lee, 12 Pet., 511; Kennel vs. Chambers, 14
How., 38; Foster vs. Neilson, 2 Pet., 209; Nabob of Carnatio vs. East Ind. Co., Ves., Jr., 60;
Lucer vs. Barbon, 7 How., 1; R.I. vs. Mass., 12 Pet., 714.)

If, then, we are to proceed, as I think we should, upon the premise that said members have been
thus suspended, there will be to my mind, absolutely no justification, ground nor reason for counting
them in the determination of whether or not the required three-fourths vote was attained. Their case
was entirely different from that of members who, not having been suspended nor otherwise
disqualified, had the right to vote upon the resolution. In the case of the latter, they had, like all other
members similarly situated, three alternatives, namely, to vote in favor of the resolution, to vote
against it, or to abstain from voting. If they voted in favor, of course, their votes had to be counted
amount those supporting the resolution. If they voted against, of course, their votes had to be
counted with those opposing. And if they abstained from voting, there would be sound justification
for counting them as not in favor of the resolution, because by their very abstention they impliedly
but necessarily would signify that they did not favor the resolution, for it is obvious that if they did,
they would have voted in favor of it. On the other hand, those suspended members who, by reason
of the suspension, whose validity or legality we are devoid of jurisdiction to inquire into, cannot be
similarly treated. In their case there would be no way of determining which way their votes would
have gone or whether or not they would have abstained from voting. In this connection, in
considering the hypothesis of their voting in case they had not been suspended, I must go upon the
assumption that while those suspended members may belong to the political party which, as a party,
was opposed to the resolution, still they would have voted independently and following their
individual convictions. In this connection, it might not be amiss to mention that there were quite a
number of minority members of the legislature who voted for the resolution. Hence, we are not in a
position to say that said suspended members, if they had not been suspended, would have voted
against the resolution, nor in favor of it either, nor that they would have abstained from voting. Why
then should they bed counted with the members who voted against the resolution or those who,
having the right to vote, abstained from doing so? Why should we count them as though
we knew that they would have voted against the resolution, or even that they would have abstained
from voting? Soundly construed, I submit that the Constitution does not, and could not, include
suspended members in the determination of the required three-fourths vote.

I take it, that the drafters in providing in Article XV, section 1, of the Constitution that "The Congress
in joint session assembled, by a vote of three-fourths of all the Members of the Senate and of the
House of Representatives voting (emphasis supplied) separately . . .", advisedly used the vital and
all-important word "voting" therein. I take it, that they meant to refer to the
members voting, undoubtedly expecting that all members not suspended or otherwise disqualified,
would cast their votes one way or the other. But I am here even making a concession in favor of the
opponents when I say that those who, with the right to vote, abstain from voting, may be counted
among those not in favor of the measure. But what I cannot bring myself to conceive is that the
quoted provision should have intended to count suspended or disqualified members as opposed to
the measure, or not being in favor of it, without it being possible to know which way they would have
voted or that they would have abstained from voting that they would never have voted in favor of
the measure. If I should ask why we should not count such suspended or disqualified members
among those in favor of the measure, I am sure those who opine differently would answer, because
we do not know that they would have voted in favor of it. By the same token, if they should ask me
why we should not count them among those against the measure, I would answer that we do not
know that they would have voted against it or that they would have abstained from voting. All this
inevitably leads to the conclusion the only one possible that such suspended or disqualified
members should not and cannot be counted due to that very impossibility of knowing which way they
would have voted or whether they would have abstained from voting. I stand for a sound and rational
construction of the constitutional precept.
PARAS, J.:

I fully concur in the foregoing opinion of Mr. Justice Hilado.

PERFECTO, J., dissenting:

To surrender or not to surrender, that is the question.

The last bastion of democracy is in danger.

Those who are manning it are summoned to give up without the least resistance, and the banner of
the Constitution is silently and meekly hauled down from its pole to be offered as a booty to the
haughty standard bearers of a new brand of Farcism. In t he words of Cicero, "recedere de statu
suae dignitatis."

Cardinal moral bearings have been lost in the psychological chaos suffered by those, throwing
overboard all ideals as burdensome and dangerous ballast, in desperate efforts to attain at all costs
individual survival, even in ignominy, could not stand the impact of initial defeats at the hands of
invading fearsome military hordes.

The present is liable to confusion. Our minds are subjected to determinate and indeterminate
ideological pressures. Very often man walks in the darkness of a blind alley obeying the pullings and
pushings of hidden and unhidden forces, or the arcane predeterminations of the genes of human
chromosomes. A rudderless ship floating in the middle of an ocean without any visible shoreline, is
bound to be wrecked at the advent of the first typhoon. From early youth we begin to hear and learn
about the true ideals. Since then we set them as the guiding stars in our actions and decisions, but
in the long travel of life, many times the clouds dim or completely darken those stars and then we
have only to rely on our faith in their existence and on habit, becoming unerring if long enough
followed, of adjusting our conduct to their guidance in calm and cloudless nights. We are sitting in
judgment to pass upon the conflicts, disputes and disagreements of our fellowmen. Let us not forget
that the day shall come that we will be judged on how are are judging. Posterity shall always have
the final say. When the time solvent has dissolved the human snag, then shall be rendered the final
verdict as to whether we have faced our task fearlessly or whether our hearts have shrunk upon the
magnitude of our duties and have chosen the most comfortable path of retreat. Then it will be
conclusively known whether did keep burning the tripod fire in the temples of old. Some of us will just
return into anonymity, covered by the cold mist of historical oblivion; others will have their names as
by words repeatedly pronounced with popular hate or general contempt; and still others will be
remembered with universal gratefulness, love and veneration, the guard on accorded to all those
who remained faithful to the fundamental tenets of justice. Winnowing time will sift the chaff from the
grain.

This is one of the cases upon which future generations will decide if this tribunal has the sturdy
courage to keep its responsibility in proper high level. It will need the passing of decades and
perhaps centuries before a conclusive verdict is rendered, whether we should merit the scorn of our
fellow citizens and our decision shall be cursed as the Dred Scot decision of Chief Justice Taney,
the one that plunged the United States into civil war, or whether in the heart of each future Filipino
citizen there will be a shrine in which our memory will be remembered with gratefulness, because we
have shown the far-reaching judicial statesmanship of Chief Justice Marshall, the legal genius who
fixed and held the rock bottom foundations which made of the American Constitution the veritable
supreme law of the land and established the role of the tribunals as the ultimate keepers of the
Constitution. But for sure it will be rendered, and it will be impartial and unbiased, exacting and
pitiless, with unappealable finality, and for the one condemned Dante wrote this lapidary line:
"lasciate ogni speranza."

Unless the vision of our mental eyes should be shut up by the opaque cornea of stubborn refusal to
see reality or should be impaired by the polaroid visors of prejudice, there is no question that at the
time when the resolution in question, proposing an amendment to the Constitution, was adopted, the
members of the Senate were 24 and the members of the House of Representatives were 96, and
that the 16 members of the Senate who voted in favor of the resolution, by undisputable
mathematical computation, do not constituted three-fourths of the 24 members thereof, and the 68
members of the House of Representatives who voted for the resolution, by equally simple
arithmetical operation, do not constitute three-fourths of the 96 members of the said chamber. The
official certifications made by the presiding officers of the two houses of Congress to the effect that
three-fourths of all the members of the Senate and three-fourths of all the members of the House of
Representatives voted for the resolution, being untrue, cannot change the facts. Nothing in existence
can. The certification, being a clear falsification of public document punished by article 171 of the
Revised Penal Code with prision mayor and a fine not to exceed P5,000, cannot give reality to a
fiction based in a narration of facts that is in conflict with the absolute metaphysical reality of the
events.

FACTS OF THE CASE

Petitioners are citizens of the Philippines, taxpayers and electors, and besides some of them are
members of the Senate, others are members of the House of Representatives, and still others are
presidents of political parties, duly registered, with considerable following in all parts of the
Philippines.

The first three respondents are chairman and members, respectively, of the Commission on
Elections and the remaining three are respectively the Treasurer of the Philippines, the Auditor
General and the Director of the Bureau of Printing.

Petitioners alleged that the Senate is actually composed of 24 Senators, 8 elected in 1941 and 16 in
April 23, 1946, and that the House of Representatives is composed of 98 members, elected on April
23, 1946, minus 2d who resigned to assume other positions in the Government.

On September 18, 1946, there was presented for adoption by the Congress of the Philippines a
resolution proposing an amendment to the Constitution of the Philippines to be appended as an
ordinance thereto, which reads as follows:

Resolved by the Senate and House of Representatives, of the Philippines in joint session
assembled, by a vote of not less than three-fourths of all the Members of each House voting
separately. To propose, as they do hereby propose, the following amendment to the
Constitution of the Philippines to be appended as an Ordinance thereto:

ORDINANCE APPENDED TO THE CONSTITUTION

 "Notwithstanding the provisions of section one, Article Thirteen, and section eight, Article
Fourteen, of the foregoing Constitution, during the effectivity of the Executive Agreement
entered into by the President of the Philippines with the President of the United States on the
fourth of July, nineteen hundred and forty-six, pursuant to the provisions of Commonwealth
Act Numbered seven hundred and thirty-three, but in no case to extend beyond the third of
July, nineteen hundred and seventy-four, the disposition, exploitation, development, and
utilization, of all agricultural, timber, and mineral lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces and sources of potential energy, and other
natural resources of the Philippines, and the operation of public utilities, shall, if open to any
person, be open to citizens of the United States and to all forms of business enterprise
owned or controlled, directly or indirectly, by citizens of the United States in the same
manner as to, and under the same conditions imposed upon, citizens of the Philippines or
corporations or associations owned or controlled by citizens of the Philippines."

This amendment shall be valid as a part of the Constitution when approved by a majority of
the votes cast in an election at which it is submitted to the people for the ratification pursuant
to Article XV of the Constitution.

Sixteen Senators voted in favor of the resolution and 5 against it, and 68 Representatives voted in
favor and 18 against.

Thereafter, Congress passed Republic Act No. 73 calling a plebiscite to be held on March 11, 1947,
for the purpose of submitting to the people the proposed amendment embodied in the resolution,
and appropriating P1,000,000 for said purpose.

Petitioners assail the validity of Republic Act No. 73 as unconstitutional because Congress may not,
by said act, submit to the people for approval or disapproval the proposed amendment to the
Constitution embodied in resolution Exhibit B inasmuch as, to comply with the express provisions of
Article XV of the Constitution, requiring the affirmative votes of three-fourths of all the members of
the Senate and of the House of Representatives voting separately, three-fourths of the 24 members
of the Senate is constituted by at least 18 Senators, 2 more than those who actually voted for the
resolution in question, and three-fourths of the 98 members of the House of Representatives should
at least be 72 Representatives, or 4 more than those who actually voted for the resolution.

Respondents deny that the Senate is composed of 24 Senators, by excluding from them petitioners
Jose O. Vera, Ramon Diokno and Jose E. Romero and allege that the House of Representatives is
not composed of 98 members but of only 90. They admit that at the joint session of Congress to
consider the resolution Exhibit B, in favor of the resolution 16 votes were cast in the Senate and in
the House of Representatives 68 and 5 in the Senate and 18 in the House of Representatives had
voted against. They admit the approval of Republic Act No. 73 and that necessary steps to hold the
plebiscite therein provided are being taken, but deny that said act is unconstitutional, and byway of
defense, allege that the resolution Exhibit B was adopted by three-fourths of all the qualified
members of the Senate and of the House of Representatives voting separately and, consequently,
Republic Act No. 73, ordering its submission to the people for approval or disapproval, fixing a date
for a general election, and appropriating public funds for said purpose, is valid and constitutional.

At the hearing of this case both parties submitted the following stipulation:

The parties through their undersigned counsel hereby stipulate the following facts:
1. That Messrs. Jose O. Vera, Ramon Diokno and Jose E. Romero were, by the majority
vote of the Commission on Elections, proclaimed elected senators in the election of April 23,
1946;

2. That when the Senate convened on May 25, 1946, the said senators-elect took part in the
election of the President of that body; but that before the senators-elect were sworn in by the
President of the Senate, a resolution was presented, and subsequently approved, to defer
the administration of oath and the seating of Messrs. Jose O. Vera, Ramon Diokno, and Jose
E. Romero, pending the hearing and decision of the protest lodged against their election;

3. That on the 25th of May, 1946, the said senators individually took their alleged oath of
office before notaries public, and not on the floor, and filed said oaths with the Secretary of
the Senate during the noon recess of the said date;

4. That Messrs. Vera and Romero filed with the Auditor of the Senate other oaths of office
accomplished by them outside of the floor before a notary public and the Secretary of the
Senate, on September 5 and August 31, 1946, respectively; and that their corresponding
salaries from April 23, 1946, were paid on August 31, 1946;

5. That Mr. Diokno, having left for the United States, his son Jose W. Diokno filed a copy of
Mr. Diokno's alleged oath of office dated May 25, 1946, with the Auditor of the Senate on
October 15,1946, and on said date his salary was paid corresponding to the period from April
23 to October 15, 1946;

6. That all three have subsequently received their salaries every fifteen days;

7. That since the approval of the resolution deferring their seating and oaths up to the
present time, the said Messrs. Vera, Diokno, and Romero have not been allowed to sit and
take part in the deliberations of the Senate and to vote therein, not do their names appear in
the roll of the Senate;

8. That before May 25, 1946, the corresponding provincial boards of canvassers certified as
having been elected in the election held on April 23, 1946, ninety-eight representatives,
among them Messrs. Alejo Santos and Jesus B. Lava for Bulacan, Jose Cando and
Constancio P. Padilla for Nueva Ecija, Amado M. Yuson and Luis Taruc for Pampanga,
Alejandro Simpauco for Tarlac, and Vicente F. Gustilo for Negros Occidental;

9. That the aforesaid eight members-elect of the House of Representatives took part in the
election of the Speaker of the House of Representatives held on May 25, 1946;

10. That before the members-elect of the House of Representatives were sworn in by the
Speaker, Mr. Topacio Nueno, representative for Manila, submitted a resolution to defer the
taking of oath and seating of Luis Taruc and Amado Yuson for Pampanga, Constancio P.
Padilla and Jose Cando for Nueva Ecija, Alejandro Simpauco for Tarlac, Alejo Santos and
Jesus Lava for Bulacan, and Vicente F. Gustilo for Negros Occidental "pending the hearing
and decision on the protests lodged against their election," copy of the resolution being
attached to and made part of this stipulation as Exhibit 1 thereof;

11. That the resolution Exhibit 1 was, upon motion of Representative Escareal and approved
by the House, referred for study to a committee of seven, which up to the present has not
reported, as shown by the Congressional Record for the House of Representatives;
12. That the eight representatives-elect included in the resolution were not shown in on the
floor and have not been so sworn in or allowed to sit up to the present time, nor have they
participated in any of the proceedings of the House of Representatives except during the
debate of the Escareal motion referred to in paragraph 11 hereof, nor cast any vote therein
since May 25, 1946, and their names do not appear in the roll of the members of the House
except as shown by the Congressional Record of the House of Representatives, nor in the
roll inserted in the official program for the inauguration of the Republic of the Philippines
hereto attached as Exhibit 2 hereof;

13. That the eight representatives-elect above mentioned took their alleged oaths of office on
the date set opposite their names, as follows:

Jose Cando May 25, 1946

Vicente Gustilo May 25, 1946
Constancio Padilla May 22, 1946
Alejo Santos May 23, 1946
Luis M. Taruc May 25, 1946
Amado M. Yuson May 25, 1946
Jesus B. Lava May 25, 1946
Alejandro Simpauco May 25, 1946

all of which oaths were taken before notaries public, with the exception of the first four who
took their oaths before Mr. Narciso Pimentel, Secretary of the House;

14. That said oaths were filed with the Auditor through the office of the Secretary of the
House of Representatives;

15. That the persons mentioned in paragraph 13 were paid salaries for the term beginning
April 23, 1946, up to the present, with the exception of Messrs. Luis Taruc and Jesus Lava,
to whom payment was suspended since August 16;

16. That Messrs. Alejo Santos and Vicente F. Gustilo took their oaths before the Speaker of
the House of Representatives and were allowed to sit on September 30, 1946, the last day of
the Special Sessions;

17. That in addition to the eight persons above mentioned, two members of the House,
Representatives Jose C. Zulueta and Narciso Ramos, had resigned before the resolution
proposing an amendment to the Constitution was discussed and passed on September
18,1946;

18. That the voting on the resolution proposing an amendment to the Constitution was made
by the Secretary calling the roll of each house and the votes cast were as shown in the
attached certificate of the Secretary of the House of Representatives hereto attached,
marked Exhibit 3 and made a part hereof; and

19. That the Congressional Records for the Senate and House of Representatives and the
alleged oaths of office are made a part of this Stipulation by reference thereto, respondents
reserving the right to question their materiality and admissibility.

Manila, Philippines, November 25, 1946.

 For the petitioners: For the respondents:

JOSE E. ROMERO ROMAN OZAETA

ANTONIO BARREDO Secretary of Justice

JOSE B.L. REYES

First Asst. Solicitor General

PETITIONER'S PERSONALITY

Whether petitioners have or have not the personality to file the petition in this case is the first
question we have to consider.

No party raised the question, but it having arisen in the course of the Court's deliberation, we should
not evade deciding it and giving what in law and justice should be the answer.

To our mind there is no doubt that petitioners have the personality to institute the present recourse of
prohibition. If petitioners should lack that personality, such legal defect would not certainly have
failed to be noticed by respondents themselves.

Respondents' failure to raise the question indicates their conviction that petitioners have the
necessary legal personality to file the petition, and we do not see any reason why such personality
should be put in doubt.

Petitioners are divided into three groups: the first is composed of senators; the second, of
representatives; and the third, of presidents of four political parties.

All of the individuals composing the first two groups, with the exception of Senators Jose O. Vera,
Ramon Diokno, and Jose E. Romero, are members of either of the two houses of Congress and took
part in the consideration of Resolution Exhibit B and of Republic Act No. 73, while the above three
excepted senators were the ones who were excluded in the consideration of said resolution and act
and were not counted for purposes of determining the three-fourths constitutional rule in the
adoption of the resolution.

In paragraph eight of the petition it is alleged that respondents have taken all the necessary steps for
the holding of the general election on March 11, 1947, and that the carrying out of said acts
"constitute an attempt to enforce the resolution and act aforementioned in open violation of the
Constitution," is without or in excess of respondents' jurisdiction and powers, "violative of the rights
of the petitioners who are members of the Congress, and will cause the illegal expenditure and
disbursement of public funds and end in an irreparable injury to the taxpayers and the citizens of the
Philippines, among whom are the petitioners and those represented by them in their capacities
mentioned above."

There should not be any question that the petitioners who are either senators or members of the
House of Representatives have direct interest in the legal issues involved in this case as members
of the Congress which adopted the resolution, in open violation of the Constitution, and passed the
act intended to make effective such unconstitutional resolution. Being members of Congress, they
are even duty bound to see that the latter act within the bounds of the Constitution which, as
representatives of the people, they should uphold, unless they are to commit a flagrant betrayal of
public trust. They are representatives of the sovereign people and it is their sacred duty to see to it
that the fundamental law embodying the will of the sovereign people is not trampled upon.
The four political parties represented by the third group of petitioners, represent large groups of our
population, perhaps nearly one-half of the latter, and the numerous persons they represent are
directly interested and will personally be affected by the question whether the Constitution should be
lightly taken and can easily be violated without any relief and whether it can be amended by a
process openly repugnant to the letter of the Constitution itself.

As a matter of fact, the vital questions raised in this case affect directly each and every one of the
citizens and inhabitants of this country. Whether our Constitution is, as it is supposed to be, a
paramount law or just a mere scrap of paper, only good to be thrown into a waste basket, is a matter
of far-reaching importance to the security, property, personal freedom, life, honor, and interests of
the citizens. That vital question will necessarily affect the way of life of the whole people and of its
most unimportant unit. Each and every one of the individuals inhabiting this land of ours shall have
to make plans for the future depending on how the question is finally decided. No one can remain
indifferent; otherwise, it will at his peril.

Our conclusion is that petitioners have full legal personality to institute the present action; and much
more, those who are members of Congress have the legal duty to institute it, lest they should betray
the trust reposed in them by the electorate.

24 SENATORS

The first question raised by respondents' answer refers to the actual number of the members of the
Senate. According to petitioners there are 24 of them while according to respondents there are only
21, excluding Senators Jose O. Vera, Ramon Diokno, and Jose E. Romero, because, according to
them, "they are not duly qualified and sworn in members of the Senate."

This allegation appears to be belied by the first seven paragraphs of the stipulation of facts
submitted by both parties.

No amount of sophism, of mental gymnastics or logo-daedaly may change the meanings and effects
of the words placed by respondents themselves in said seven paragraphs. No amount of argument
may delude anyone into believing that Senators Vera, Diokno, and Romero are not senators
notwithstanding their having been proclaimed as elected senators, their having taken part in the
election of the President of the Senate, their having taken their oaths of office, and their receiving
salaries as senators.

Such a paradoxical proposition could have been driven into acceptance in the undeveloped brains of
the pithecanthropus or gigantopithecus of five hundred millennia ago, but it would be unpardonably
insulting o the human mind of the twentieth century.

Our conclusion is that Senators Vera, Diokno, and Romero should be counted as members of the
Senate, without taking into consideration whatever legal effects the Pendatun resolution may have
produced, a question upon which we have already elaborated in our opinion in Vera vs. Avelino (77
Phil., 192). Suspended or not suspended, they are senators anyway, and there is no way of ignoring
a fact so clear and simple as the presence of the sun at day time. Therefore, counting said three
Senators, there are 24 Senators in all in the present Senate.

96 REPRESENTATIVES

The next question raised by respondents is their denial of petitioners' allegations to the effect that
the present House of Representatives is composed of 98 members and their own allegation to the
effect that at present "only 90 members have qualified, have been fully sworn in, and have taken
their seats as such."

Again respondents' allegations are belied by paragraphs eight to seventeen of the stipulation of
facts.

The disagreement between the parties is as to whether or not Representatives Cando, Gustilo,
Padilla, Santos, Taruc, Yuson, Lava and Simpauco, mentioned in paragraph 13 of the stipulation of
facts, are members of the House of Representatives.

The facts stipulated by the parties proved conclusively that said eight persons are actual members of
the House of Representatives. We may even add that the conclusiveness about said eight
representatives is even greater than in the case of Senators Vera, Diokno, and Romero, because no
resolution of suspension has ever been adopted by the House of Representatives against said eight
members, who are being deprived of the exercise of some of their official functions and privileges by
the unipersonal, groundless, dictatorial act of the Speaker.

That illegal deprivation, whose counterpart can only be found in countries where the insolence of
totalitarian rulers have replaced all constitutional guarantees and all concepts of decent government,
raises again a constitutional question: whether it is permissible for the Speaker of the House of
Representatives to exercise the arbitrary power of depriving representatives duly elected by the
people of their constitutional functions, privileges, and prerogatives. To allow the existence of such
an arbitrary power and to permit its exercise unchecked is to make of democracy a mockery.

The exercise of such an arbitrary power constitutes a want on onslaught against the sovereignty
itself of the people, an onslaught which may cause the people sooner or later to take justice in their
own hands. No system of representative government may subsist if those elected by the people may
so easily be silenced or obliterated from the exercise of their constitutional functions.

From the stipulation of facts, there should not be any question that at the last national election, 98
representatives were elected and at the time the resolution Exhibit B was adopted on September 18,
1946, 96 of them were actual members of the House, as two (Representatives Zulueta and Ramos)
has resigned.

Applying the three-fourth rule, if there were 24 senators at the time the resolution was adopted;
three-fourths of them should at least be 18 and not the 16 who only voted in favor of the resolution,
and if there were 96 representatives, three-fourths of them should certainly be more than the 68 who
voted for the resolution. The necessary consequence is that, since not three-fourths of the senators
and representatives voting separately have voted in favor of the resolution as required by Article XV
of the Constitution, there can be no question that the resolution has not been validly adopted.

We cannot but regret that our brethren, those who have signed or are in agreement with the majority
opinion, have skipped the questions as to the actual membership of the Senate and House of
Representatives, notwithstanding the fact that they are among the first important ones squarely
raised by the pleadings of both parties. If they had taken them into consideration, it would seem
clear that their sense of fairness will bring them to the same conclusion we now arrived at, at least,
with respect to the actual membership of the House of Representatives.

Upon our conclusions as to the membership of the Senate and House of Representatives, it appears
evident that the remedy sought for in the petition should be granted.

JURISDICTION OF THE SUPREME COURT

Without judging respondents' own estimate as to the strength of their own position concerning the
questions of the actual membership of the Senate and House of Representatives, it seems that
during the oral and in the written arguments they have retreated to the theory of conclusiveness of
the certification of authenticity made by the presiding officers and secretaries of both House of
Congress as their last redoubt.

The resolution in question begins as follows: "Resolved by the Senate and House of
Representatives of the Philippines in joint session assembled, by a vote of not less than three-
fourths of all the members of each House voting separately, . . .."

Just because the adoption of the resolution, with the above statement, appears to be certified over
the signatures of the President of the Senate and the House of Representatives and the Secretaries
of both Houses, respondents want us to accept blindly as a fact what is not. They want us to accept
unconditionally as a dogma, as absolute as a creed of faith, what, as we have shown, appears to be
a brazen official falsehood.

Our reason revolts against such an unethical proposition.

An intimation or suggestion that we, in the sacred temple of justice, throwing overboard all scruples,
in the administration of justice, could accept as true what we know is not and then perform our
official functions upon that voluntary self-delusion, is too shocking and absurb to be entertained even
for a moment. Anyone who keeps the minimum sense of justice will not fail to feel aghast at the
perversion or miscarriage of justice which necessarily will result from the suggestion.

But the theory is advanced as a basis to attack the jurisdiction of this Court to inquire behind the
false certification made by the presiding officers and the secretaries of the two Houses of Congress.

Respondents rely on the theory of, in the words of the majority opinion, "the conclusiveness on the
courts of an enrolled bill or resolution."

To avoid repeating the arguments advanced by the parties, we have made part of this opinion, as
Appendices A, B, and C,1 the memoranda presented by both petitioners and respondents, where
their attorneys appear to have amply and ably discussed the question. The perusal of the
memoranda will show petitioners' contentions to be standing on stronger ground and, therefore, we
generally agree with their arguments.

In what follows we will try to analyze the positions taken in the majority opinion.

POLITICAL QUESTIONS

The majority enunciates the proposition that "political questions are not within the province of the
judiciary," except "by express constitutional or statutory provision" to the contrary. Then argues that
"a duly certified law or resolution also binds the judges under the 'enrolled bill rule' out of respect to
the political departments."

The doctrine is predicated "on the principle of the separation of powers."

This question of separation of powers is the subject of discussion in the case of Vera vs.
Avelino, supra. We deem unnecessary to repeat what we have already said in our opinion in said
case, where we have elaborated on the question.
Although the majority maintains that what they call the doctrine that political questions are not within
the province of the judiciary is "too well-established to need citation of authorities," they recognize
the difficulty "in determining what matters fall under the meaning of political questions."

This alleged doctrine should not be accepted at its face value. We do not accept it even as a good
doctrine. It is a general proposition made without a full comprehension of its scope and
consequences. No judicial discernment lies behind it.

The confession that the "difficulty lies in determining what matters fall within the meaning of political
question" shows conclusively that the so-called doctrine has recklessly been advanced.

This allegedly "well-established" doctrine is no doctrine at all in view of the confessed difficulty in
determining what matters fall within the designation of political question. The majority itself admits
that the term "is not susceptible of exact definition, and precedents and authorities are not always in
full harmony as to the scope of the restrictions, on this ground, on the courts to meddle with the acts
of the political department of the government."

Doctrine is that "what is taught; what is held; put forth as true, and supported by a teacher, a school,
or a sect; a principle or position, or the body of principles, in any branch of knowledge; tenet; dogma;
principle of faith. "It is a synonym of principle, position, opinion, article, maxim, rule, and axiom. in its
general sense, doctrine applies to any speculative truth or working principle, especially as taught to
others or recommended to their acceptance. Therefore, to be true, it should be expressed on simple
and self-evident terms. A doctrine in which one of the elemental or nuclear terms is the subject of an
endless debate is a misnomer and paradox.

A doctrine is advanced and accepted as an established truth, as a starting point for developing new
propositions, as a guiding principle in the solution of many problems. It is a groundwork for the
building of an intellectual system. It is the basis of a more or less complex legal structure. If not the
cornerstone, it should at least be one of the main columns of an architectonic construction. If that
groundwork, cornerstone or column is supported by a thing whose existence still remains in dispute,
it is liable to fall.

We irrevocably refuse to accept and sanction such a pseudo-doctrine which is based on the
unsettled meaning of political question. The general proposition that "political questions are not
within the province of the judiciary" is just one of the many numerous general pronouncements made
as an excuse for apathetic, indifferent, lazy or uncourageous tribunals to refuse to decide hard or
ticklish legal issues submitted to them.

It belongs to the category of that much-vaunted principle of separation of powers, the handful of
sand with which judicial ostriches blind themselves, as if self-inflicted blindness may solve a problem
or may act as a conjuration to drive away a danger or an evil.

We agree with the majority that the proposal to amend the Constitution and the process to make it
effective, as provided in Article XV of the Constitution, are matters of political nature, but we cannot
agree with their conclusion that a litigation as to whether said article has been complied with a
violated is beyond the jurisdiction of the tribunals, because to arrive at this conclusion we must
accept as a major premise the pseudo-doctrine which we have precisely exposed as erroneous and
false.

Is there anything more political in nature than the Constitution? Shall all questions relating to it,
therefore, betaken away from the courts? Then, what about the constitutional provision conferring
the Supreme Court with the power to decide "all cases involving the constitutionality of a treaty or a
law?"

COLEMAN versus MILLER

The decision of the United States Supreme Court in Coleman vs. Miller (122 A. L. R., 625) is invoked
as the mainstay of the majority position.

No less than eight pages of the majority opinion are occupied by the exposition and analysis of the
decision of the Supreme Court.

The case is invoked as authority for the conclusion that "the efficacy of ratification by the State
legislature of a proposed amendment to the federal Constitution" and that "the decision by Congress,
in its control of the Secretary of State of the questions of whether an amendment has been adopted
within a reasonable time from the date of submission to the State legislature," are political questions
and not justiciable.

At the outset it must be noted that the two above mentioned questions have no similarity or analogy
with the constitutional questions herein discussed. The questions as to the efficacy of the ratification
by the Senate of Kansas of the Child Labor amendment proposed by the United States Congress in
June, 1924, and upon the decision of said Congress, "in its control of the Secretary of State,"
whether the amendment has been adopted "within a reasonable time from the date of submission to
the State legislature," either one of them does not raise a controversy of violation of specific
provisions of the Constitution as the ones raised in the present case.

No specific constitutional provision has been mentioned to have been violated because in January,
1925, the Legislature of Kansas rejected the amendment, a copy of the rejection having been sent to
the Secretary of State of the United States, and in January, 1927, a new resolution ratifying the
amendment was adopted by the Senate of Kansas on a 21-20 division, the Lieutenant Governor
casting the deciding vote. Neither was there such mention of constitutional violation as to the effect
of the previous rejection and of the lapse of time after submission of the amendment to the State
legislature.

No constitutional provision has been pointed out to have been violated because the Lieutenant
Governor had cast his vote or because by the lapse of time from June, 1924 to March, 1927, the
proposed amendment had allegedly lost its vitality.

It is only natural that, in the absence of a constitutional provision upon the efficacy of ratification by a
State legislature of a proposed amendment, it was within the ultimate power of the United States
Congress to decide the question, in its decision rendered in the exercise of its constitutional power,
to control the action of the Secretary of State, and the promulgation of the adoption of amendment
could not be controlled by the courts.

Evidently, the invoked authority has no bearing at all with the matters in controversy in the present
case.

We note, as observed in the majority opinion, that the four opinions in Coleman vs. Miller, according
to the American Law Reports, show "interestingly divergent but confusing positions of the justices,"
and are the subject of an amusing article in 48 Yale Law Journal, 1455, entitled "Sawing a Justice in
Half," asking how it happened that the nine-member United States Supreme Court could not reach a
decision on the question of the right of the Lieutenant Governor of Kansas to cast his vote, because
the odd number of justices was "equally divided."
How such a "confusing" and "amusing" four-opinion decision in Coleman vs. Miller could be an
authority is beyond our comprehension.

GREEN versus WELLER

One of the authorities upon which the majority relies is the decision of the Mississippi Supreme
Court in Green vs.Miller (32 Miss., 650), quoting one paragraph thereof.

Here again we have a case of inapplicable authority, unless taken in its reversed effect.

The Mississippi Supreme Court maintains that there is nothing in the nature of the submission to the
people of a proposal to amend the Constitution which should cause the free exercise of it to be
obstructed or that could render it dangerous to the stability of the government, but in making this
pronouncement, it assumes that the submission is made "in a established form," adding that the
means provided for the exercise by the people of their sovereign right of changing the fundamental
law should receive such a construction as not to trample upon the exercise of their right, and that the
best security against tumult and revolution is the free and unobstructed privilege to the people of the
state to change their Constitution "in the mode prescribed by the instrument."

So the authority, if clearly interpreted, will lead us to the conclusion that the majority position is
wrong because the Mississippi Supreme Court, in making the pronouncement, upon the assumption
that the submission to the people is made "in a established form" and "in the mode prescribed" by
the Constitution, namely, in accordance with the provisions of the instrument, the pronouncements
would be the opposite if, as in the present case, the submission of the proposal of amendment to the
people is made through a process flagrantly violative of the Constitution, aggravated by wanton
falsification of public records and tyrannical trampling of the constitutional prerogatives of duly
elected representatives of the people.

MR. JUSTICE BLACK

The concurring opinion of Mr. Justice Black, joined in by Mr. Justice Roberts, Mr. Justice Frankfurter
and Mr. Justice Douglas, in the "confusing" and "amusing" decision in Coleman vs. Miller, is also
invoked by the majority, but this other authority seems equally reluctant to offer its helping hand to a
helpless, desperate position.

The major premise of the concurring opinion is as follows: "The Constitution granted Congress
exclusive power to control submission of constitutional amendments."

Everybody ought to know that no such an unlimited, unchecked, omnipotent power is granted by our
fundamental law to the Congress of the Philippines. Our Congress may propose amendments or call
a convention to make the proposal, but that is all. Nowhere in the Constitution can be found any
word, any grammatical sign, not even the faintest hint that in submitting the proposed amendments
to the people, Congress shall have "exclusive power to control the submission." That submission
must be provided by law, and no law may be enacted and come into effect by the exclusive power of
Congress. It needs the concurring action of the President of the Philippines. And if the law happens
to violate the fundamental law, courts of justice may step in to nullify its effectiveness. After the law
is enacted, its execution devolves upon the Executive Department. As a matter of fact, it is the
Executive Department which actually submits to the people the proposed amendment. Congress
fixes the date of submission, but the President of the Philippines may refuse to submit it in the day
fixed by law if war, rebellion, or insurrection prevents a plebiscite from proceeding.
After showing that Mr. Justice Black started his argument from a major premise not obtainable in the
Philippines, his conclusions cannot help the majority in anyway.

MR. JUSTICE FRANKFURTER

The concurring opinion of Mr. Justice Frankfurter in the "confusing" and "amusing" case of
Coleman vs. Miller is the next authority invoked by the majority, but the opinion does not offered
much help. The justice maintains that the proceedings for voting in legislative assemblies "are
matters that concern not merely political actions but are also of the very essence of political action,"
and then advances the following argument: "To open the law-courts to such controversies is to have
courts sit in judgment on the manifold disputes engendered by procedures for voting in legislative
assemblies."

The argument has no weight at all. The argument merely displays an attitude, one of simple distaste
for the idea, but fails to give any sensible reason for the attitude. Ina totalitarian regime, where
decisions are rendered not in answer to the promptings of a sense of justice, but as expressions of
moods, caprices and whims of arbitrary rulers, Mr. Justice Frankfurter's attitude could be taken as
the law, but then it would be necessary to elevate him first to the category of a fuehrer.

In our jurisdiction personal attitudes are not the law. Here, justice must be founded on reason, but
never on passing unreasoned moods, judicial or otherwise.

We regret that we cannot agree with the majority's sharing Mr. Justice Frankfurter's views, which in
their judgment are in accord "with sound principles of political jurisprudence and represent liberal
and advanced thought on the workings of constitutional and popular government. "Our regret is not
for ourselves alone but for those who happen to accept as authority the unreasoned and
unexplained mental attitude of a judicial officer of a foreign country, praising it even with the much-
abused label as "liberal," notwithstanding the fact that it represents the whimsical rule of personal
attitudes and not the rule of well-matured reason.

THE ENROLLED BILL THEORY

This theory is amply discussed in the memoranda of the parties attached hereto as Appendices A, B,
and C. Although we consider it unnecessary to enlarge the discussion, we deem it convenient to
make a little analysis of what is stated in the majority opinion. Respondents contend, with the full
approval of the majority, that a duly authenticated bill or resolution imports absolute verity and is
binding on the courts.

The present case is a conclusive evidence of the absurdity of the theory. How can we accept the
absolute verity of the presiding officers' certification that the resolution in question has been adopted
by three-fourths of all the members of the Senate and of the House of Representatives, when as a
matter of undisputable fact the certification is false? How can we accept a theory which elevates a
false-hood to the category of truth?

The majority alleges that the rule is the one prevailing in England. Because the English have
committed the nonsense of accepting the theory, is that reason for Filipinos to follow suit? Why, in
the administration of justice, should our tribunals not think independently? Our temple of justice is
not presided by simians trained in the art of imitation but by human beings, and human beings must
act according to reason, never just to imitate what is wrong, although such mistakes may happen to
be consecrated as a judicial precedent. It would be inconceivable for our courts to commit such a
blunder.
Repeating what Wigmore has said (4 Wigmore on Evidence, 685, footnote), the majority states that
in the United States the jurisdictions are divided almost equally pro and con on the theory, although
in petitioners' memorandum Appendix A there appears more up-to-date evidence to the effect that
there is a great majority for the rejection. But to our mind, mere numbers as to pro and con seem to
us immaterial in the decision as to whether the theory is or is not correct. Numbers do not make
reason nor justice.

The majority contends that the theory conforms to the express policy of our law-making body,
invoking to said effect the now obsolete section 313 of the old Code of Civil Procedure, as amended
by Act No. 2210.

Even if we should follow the anachronistic practice of deciding issues upon the authority of laws
which have been repealed or abolished, still the evidence pointed out by the majority does not
support their contention. Section 313 alluded to enumerates the evidence that may prove the
procedures of the defunct Philippine Commission or of any legislative body that may be provided for
in the Philippines, with the proviso that the existence of a copy of acts of said commission or the
Philippine Legislature, signed by the presiding officers and secretaries of said bodies, is a conclusive
proof "of the provisions of such acts and of the due enactment thereof."

This proviso has been repealed by its non-inclusion in the Rules of Court. Sections 5 and 41 of Rule
123 show conclusively that this Supreme Court, in making the rules effective since July 1, 1940,
rejected the proviso as unreasonable and unjust. Section 5 provides that we may take judicial notice
of the official acts of Congress and section 41 provides what evidence can be used to prove said
official acts, but nowhere in the rules can a provision be found that would make conclusive a
certification by the presiding officers and secretaries of both House of Congress even if we know by
conclusive evidence that the certification is false.

The allegation that the theory in question conforms to the express policy of our lawmaking body,
upon the very evidence used in support thereof, after a little analysis, has to banish as a mid-
summer night's dream.

50 AMERICAN JURISDICTION, SECTION 150

In support of the theory of conclusiveness of the enrollment, the authority of 50 American

Jurisprudence, 150 is invoked as reasons for the theory.

We will analyze the reasons adduced:

1. Respect due to a coequal and independent department of the government. This must be the
strongest one, when it is first mentioned. It is so flimsy to require much discussion. Shall we sacrifice
truth and justice for the sake of a social courtesy, the mutual respect that must be shown between
different departments of the government? Has our sense of evaluation of spiritual values become so
perverted that we can make such a blunder in our choice? Since when have the social or official
amenities become of paramount value to the extent of overshadowing the principles of truth and
justice?

2. Because without the theory, courts would have to make "a n inquisition into the conduct of the
members of the legislature, a very delicate power." This second reason is premised not on a
democratic attitude, but rather on a Fascistic one. It is premised on the false belief that the members
of the majority are a king of emperos of Japan, to be worshipped but never to be discussed. The
ideology depicted by the second reason should be relegated to where it belongs: the archeological
museum.
3. "The rule is also one of convenience." This reason again shows a perverted evaluation of human
values. Is justice to be sacrificed for the sake of convenience?

4. "Otherwise after relying on the prima facie evidence of the enrolled bills authenticated as executed
by the Constitution, for years, it might be ascertained from the journals that an act heretofore
enforced had never become a law." This last reason personifies unreasonableness to the nth
degree. So we leave it as it is, as a perpetual evidence of the extent to which legal stupidity may
reach.

WIGMORE ON EVIDENCE

Now let us examine the arguments of the next authority invoked by the majority, Wigmore on
Evidence. We will also analyzed the arguments relied upon.

1. That to go beyond the enrolled bill "would unsettle the entire statute law of the State." This
argument, as it appears quoted in the majority decision, is premised on the unreliability of legislative
journals, and it seems to depict a mind poisoned by prejudice, as shown by the following: "We are to
remember the danger, under the prevalence of such a doctrine, to be apprehended from the
intentional corruption of evidences of this character. It is scarcely too much to say that the legal
existence of almost every legislative action would be at the mercy of all persons having access to
these journals. . . ."

The argument should be taken into consideration in connection with American experience, which
seems not to be too flattering to our former metropolis.

Our own personal experience of more than a decade in legislative processes convinces us that
Wigmore's assumption does not obtain in the Philippines. It is true that in the pre-constitution
legislative enactments we have seen few instances in which there had been disagreement between
what has actually been passed, as shown by the journal, and the authenticated enrolled bill. But the
instances were so few to justify entertaining here the same fears entertained by Wigmore in
America. Although those instances were few, we fought to correct the evil in the Constitutional
Convention, where we were able to introduce the following revolutionary provision in the
Constitution: "No bill shall be passed by either House unless it shall be printed and copies thereof in
their final from furnished each member at least three calendar days prior to its passage, except
when the President shall have certified to the necessity of its immediate enactment. Upon the last
reading of a bill no amendment thereof shall be allowed, and the question upon its passage shall be
taken immediately thereafter, and the yeas and nays entered in the journal." (Section 21 [2], Article
VI of the Constitution.)

This provision is an effective guarantee against the situation depicted by Wigmore's fears.

2. To the argument that if the authenticated roll is conclusive upon the courts, then less than a
quorum of each House may by the aid of presiding officers impose laws upon the State in defiance
of the inhibition of the Constitution, Wigmore answers: "This perhaps cannot be avoided absolutely.
But it applies also to all human agencies. It is not fit that the judiciary should claim for itself a purity
beyond all others; nor has it been able at all times with truth to say that its high places have not been
disgraced."

The answer is unconvincing. Because there can be and there have been blundering, disgraceful, or
corrupt judicial officers is no reason why arbitrary presiding officers and members of the legislature
should be allowed to have their way unchecked. Precisely the system of checks and balances
established by the Constitution presupposes the possibility of error and corruption in any department
of government and the system is established to put a check on them.

When the question of an unconstitutional, arbitrary or corrupt action by the legislature is placed at
the bar of justice, the judiciary must not shrink from its duty. If there is corruption in the judiciary, our
laws provide the proper remedy. Even we, the members of the highest tribunal, cannot with impunity
commit "culpable violation of the Constitution, treason, bribery, or other high crimes" without being
liable to be removed from office on impeachment, and we hope, if there is such a case, that the
House of Representatives and the Senate will do their duty in accordance with Article IX of the
Constitution, and not follow the uncourageous example which is given under the intellectual tutelage
of Wigmore.

THE CONSTITUTIONAL NUMERICAL RULES

The three-fourth rule has been provided in Article XV of the Constitution as a guarantee against the
adoption of amendments to the fundamental law by mere majorities.

The Constitution must be accorded more stability than ordinary laws and if any change is to be
introduced in it, it must be in answer to a pressing public need so powerful as to sway the will of
three-fourths of all the members of the Senate and of the House of Representatives. Said three-
fourth rule has been adopted by the Constitutional Convention, as all the other numerical rules, with
the purpose of avoiding any doubt that it must be complied with mathematical precision, with the
same certainty of all numbers and fractions expressed or expressible in arithmetical figures.

Where the Constitution says three-fourths of all the members of the Senate and of the House of
Representatives voting separately, it means an exact number, not susceptible of any more or less.
All the members means that no single member should be excluded in the counting. It means not
excluding three Senators and eight Representatives as respondents want us to do in order not to
cause any inconvenience to the presiding officers and secretaries of both Houses of Congress who
had the boldness of certifying that the three-fourth rule had been complied within the adoption of the
resolution in question, when such a certification is as false as any falsehood can be.

The three-fourth rule must not be left to the caprice of arbitrary majorities, otherwise it would be the
death knell of constitutionalism in our country. If a constitutional provision can be so trifled with, as
has happened in the adoption of the resolution in question, it would mean breaking faith with the
vitality of a government of laws, to enthrone in its stead a whimsical government of men.

The Constitution contains several numerical provisions. It requires that the Senate shall be
composed of 24 Senators (section 2, Article VI); that Congress shall by law make an apportionment
within three years after the return of every enumeration, and not otherwise (section 5, Article VI); that
each House may expel a member with the concurrence of two-third of all the members (section 10
[3], Article VI); that electoral tribunals shall each be composed of nine members, three Justices of
the Supreme Court and six legislature members (section 11, Article VI); that to overrun the veto of
the President, the concurrence of two-thirds of all the members of each House is necessary (section
20 [1], Article VI), and in certain cases the concurrence of three-fourths of all the members of each
House is necessary (section 20 [2], Article VI); that Congress shall, with the concurrence of two-
thirds of all the members of each House, have the sole power to declare war (section 25, Article VI);
that no treaty or law may be declared unconstitutional without the concurrence of two-thirds of all the
members of the Supreme Court (section 10, Article VIII); that the House of Representatives shall
have the sole power of impeachment by a vote of two-thirds of all its members (section 2, Article IX);
and that the Senate shall have the sole power to try all impeachments, but no person shall be
convicted without the concurrence of three-fourths of all the members of the Senate (section 3,
Article IX).

So it can be seen that the numerical rules inserted in the Constitution affect matters not of
momentary but of momentous importance. Each and every one of them should be given effect with
religious scruple, not only because our loyalty to the sovereign people so requires, but also because
by inserting them the Constitutional Convention had abided by the wise teachings of experience.

By denying the petition and allowing those responsible for the unconstitutional adoption of the
resolution in question to have their way is to set up a precedent that eventually may lead to the
supremacy of an empire of lawlessness. It will be tantamount to opening Pandora's box of evils and
disasters.

The power to declare was can only be exercised by Congress with the concurrence of two-thirds of
all the members of each House. From now on, by the simple expediency of certification by the
presiding officers and secretaries of both Houses that two-thirds had voted where a bare majority
had voted in fact, said majority may plunge our people into a maelstrome of war.

The Constitution provides that the power of impeachment needs the vote of two-thirds of all the
members of the House of Representatives. From now on, a mere plurality of one will be enough to
put impeachable high officials, including the President, on the carpet.

To convict an impeached officer the fundamental law requires the concurrence of three-fourths of all
the members of the Senate. From now on, that three-fourth rule may be dispensed with or
circumvented by not counting three actual Senators, as has been done in the resolution in question,
and thereby oust the President of the Philippines if he happens not to be in the good graces of a
senatorial majority.

Without entering into the merits of the proposed constitutional amendment, to submit which to the
people high-handed means have been resorted to, there can be no question that it is of vital
importance to the people and it will affect future generations to unimaginable extent. The
Constitutional Convention had thought it wise that before such a momentous proposal could be
submitted to the people the three-fourth rule should be adhered to by Congress.

QUOTATION FROM THE JALANDONI CASE

Months ago we stated: "It is high time to sound the clarion call that will summon all the forces of
liberalism to wage a crusade for human freedom. They should put on the armor of righteousness
and rally behind the banner for the vindication of the principles and guarantees embodied in the
Constitution and the high purposes of the Chapter of the United Nations." This, we said in our
dissenting opinion in People vs. Jalandoni, L-777. Concerning the judgment that the future may pass
upon the actuations of the Supreme Court, in that same opinion we ventured that the historian army,
under the heading of "Epoch of Great Reaction," write as follows:

At no epoch of its history has the Supreme Court shown to be most reactionary and
retrogressive. When the victims of a constitutional violation, perpetrated by a group of the
highest officials of the government, came to if for redress, it adopted a hands-off policy,
showing lack of the necessary vitality to grapple with the situation and finding refuge in a
comfortable retreat, completely disappointing those who have pinned their faith and hope in it
as the first pillar of the Constitution and the inexpugnable bulwark of human fundamental
rights. The issue of human freedom was disposed of by them most discouragingly by
nullifying the right of an accused to be free on bail on appeal, in flagrant violation of a
 constitutional guarantee and of one of the fundamental purposes and principles of the
Charter of the United Nations.

Upon touching the decision of this Court in the instant case, the same historian may record that the
highest tribunal of the new Republic of the Philippines has struck the hardest blow to the Philippine
constitutional system, by refusing to do its duty in giving redress in a clear case of violation of the
fundamental law, to the great disappointment, despair and apallment of millions of souls all over the
world who are pinning their hopes on constitutionalism for the survival of humanity.

The ideal of one world oftenly enunciated by progressive leaders in the deliberations of the several
organs of the United Nations is predicated in the adoption of a single standard of laws, compulsory
within all jurisdictions of our planet. The ethology of all mankind must be shaped under the pattern of
that single legal standard. But the whole system is liable to crash if it is not founded on the rock bed
of the elemental principle that the majesty of the law must always be held supreme.

To keep inviolate this primary principle it is necessary that some of the existing social organs, moral
attitudes and habits of thinking should undergo reforms and overhauling, and many fixed traditional
ideas should be discarded to be replaced with more progressive ones and inconsonance with truth
and reason. Among these ideas are the wrong ones which are used as premises for the majority
opinion in this case.

The role of innovators and reformers is hard and often thankless, but innovation and reform should
continuously be undertaken if death by stagnation is to be avoided. New truths must be discovered
and new ideas created. New formulas must be devised and invented, and those outworn discarded.
Good and useful traditions must be preserved, but those hampering the progressive evolution of
cultured should be stored in the museum of memory. The past and the present are just stepping
stones for the fulfilment of the promises of the future.

Since the last decade of the nineteenth century, physical science had progressed by leaps and
bounds. Polonium and radium were discovered by Madam Curie, Rontgen discovered the X-ray, and
Rutherford the alpha, beta and gamma particles. Atom ceased to be the smallest unit of matter to
become an under-microscopic planetarian system of neutrons, protons, and electrons.

Ion exchangers are utilized to make of electrons veritable lamps of Aladdin. Plants are grown in plain
water, without any soil, but only with anions and cations. Sawdust has ceased to be a waste matter,
and from it is produced wood sugar, weighing one-half of the sawdust processed. Inter-stellar space
vacuum, almost absolute, is being achieved to serve ends that contribute to human welfare. Bacteria
and other microbes are harnessed to serve useful human purposes. The aspergillus niger is made to
manufacture the acetic to produce vinegar for the asking. The penicillum notatum and the bacillus
brevis are made to produce penicillin and tyrothricin, two wonder drugs that are saving many lives
from formerly lethal infections. DDT decimates harmful insects, thus checking effectively malaria, an
illness that used to claim more than one million victims a year in the world. The creation of synthetics
had enriched the material treasures offered to man by nature. Means of transportation are
developed to achieve supersonic speeds. Many scientific dreams are fast becoming marvelous
realities. Thus, science marches on. There is no reason why the administration of justice should not
progress onward, synchronized with the rhythm of general human advancement towards a better
future.

The fact that the majorities of the two chambers of Congress have without any qualm violated Article
XV of the Constitution and the majority of this Court, instead of granting the proper relief provided by
law, preferred to adopt the comfortable attitude of indifferent by-standers, creates a situation that
seems to be ogling for more violations of the fundamental law. The final results no one is in a
position to foresee.

Our vote is for the granting of the petition.

BRIONES, M., con quien esta conforme FERIA, M., disidente:

Por segunda vez en menos de un ao nos Ilaman a decidiry arbitrar sobre una violacion de la
Constitucion elcodigo fundamental de nuestro pais. A media dos del ao pasado se trataba del
recurso interpuesto ante esta misma Corte Suprema por tres Senadores1 que se quejaban dehaber
sido privados injusta y arbitrariamente de su derecho a sentarse en el Senado de Filipinas y a
particular y votar en sus deliberaciones, con grave infraccion y detrimento de la Constitucion que
ampara tal derecho. Ahora esos mismos Senadores acuden de nuevo a esta Corte para quejarse de
otra violacion de la Constitucion, pero estavez no vienen solos: les acompaan otros cinco
miembros del Senado, diecisiete miembros de la Camarra de Representantes y tres jefes de
aagrupaciones o partidos politicos Democratic Alliance, Popular Front y Philippine Youth Party.
Jose O. Vera es recurrente en su doble capacidad de miembro del Senado y Presidente del Partido
Nacionalista. De modo que los recurrentes suman veintiocho: 8Senadores, 17 Representantes y 3
particulares.2 Tienenun comun denominador, a saber: que son todos ciudadanos de Filipinas, y,
ademas, contribuyentes y electores.

Los recurridos son el Presidente y miembros de la Comision de Elecciones, el Tesorero de Filipinas,

el Auditor General y el Director del Buro de Imprenta.3

El objeto del recurso es recabar de esta Corte un mandamiento de prohibicion dirigigo a los
recurridos para que estos, sus agentes, empleados, subordinados y otras personas que actuen bajo
su superintendencia o en su nombre "se abstengan y desistan de dar los pasos tendentes haciala
celebracion de un plebiscito e eleccion general el 11 de Marzo, 1947, y de imprimir la resolucion
(sobre reformade los articulos 13. y 14. de la Constitucion), las balotas y otros papeles necesarios
en relacion con dicho plebiscito,y de desembolsar o de autorizar el expendio de fondos publicos
para dicho proposito."

Para la mejor comprension del asunto estimo necesariopublicar integro a continuacion el texto de la
Resolucion conjunta que contiene la propuesta reforma a la Constitucion, resolucion que constituye
la materia u objeto de la consulta popular en el referido plebiscito de 11 de Marzo, y es la misma
que en el lexico corriente de la prensa y del publico se conoce por resolucion sobre paridad o
igualdad de derecdhos constitucionales a favor de los americanos, esdecir, que concede a estos
iguales derechos que a los filipinosen la propiedad y cultivo de terrenos publicos, en la explotacion
de nuestros recursos naturales como bosques,minas, pesca y fuerza hidraulica, y en la propiedad y
operacion de utilidades publicas. He aqui su texto:

RESOLUTION OF BOTH HOUSES PROPOSING AN AMENDMENT

TO THE CONSTITUTION OF THE PHILIPPINES
TO BE APPENDED AS AN ORDINANCE THERETO.

Resolved by the Senate and House of Representatives of the Philippines in joint session
assembled, by a vote of not less than three-fourths of all the Members of each House voting
separately, to propose, as they do hereby propose, the following amendment to the
Constitution of the Philippines to be appended as an Ordinance thereto;
 ORDINANCE APPENDED TO THE CONSTITUTION

Notwithstanding the provisions of section one, Article Thirteen, and section eight, Article
Fourteen, of the foregoing Constitution, during the effectivity of the Executive Agreement
entered into by the President of the Philippines with the President of the United States on the
Fourth of July, nineteen hundred and forth-six, pursuant to the provisions of Commonwealth
Act Numbered Seven hundred and thirty-three, but in no case to extend beyond the third of
July, nineteen hundred and seventy-four, the disposition, exploitation, development, and
utilization of all agricultural, timber, and mineral lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces and sources of potential energy, and other
natural resources of the Philippines, and the operation of public utilities, shall, if open to any
person, be open to citizens of the United States and to all forms of business enterprise
owned or controlled, directly or indirectly, by citizens of the United States in the same
manner as to, and under the same conditions imposed upon, citizens of the Philippines or
corporation or associations owned or controlled by citizens of the Philippines.

This amendment shall be valid as a part of the Constitution when approved by a majority of
the votes cast in an election at which it is submitted to the people for their ratification
pursuant to Article XV of the Constitution.

Adopted,

(Sgd.) JOSE AVELINO

President of the Senate

(Sgd.) EUGENIO PEREZ

Speaker of the House of Representatives

We hereby certify that the foregoing Resolution was adopted by both Houses in joint session
assembled in the Hall of the House of Representatives on September 18, 1946.

(Sgd.) ANTONIO ZACARIAS

Secretary of the Senate

(Sgd.) NARCISO PIMENTEL

Secretary of the House of Representatives

Para comprobar la voluntad popular sobre la reforma constitucional propuesta el Congreso de

Filipinas ha aprobadola Ley No. 73 de la Republica que dispone y ordena la celebracion de un
plebiscito para el 11 de Marzo de esteano, provee a la forma de celebrarlo y consigna el
presupuesto necesario para sufragar los gastos del mismo. Siuna mayoria de los electores votare
afirmativamente, la reformaquedara ratificada y estara en vigor por un periodo de 28 aos; en caso
contrario, quedara rechazada.

Los recurrentes alegan y sostiened que la resolucion conjuntade que se trate es ilegal y nula por no
haberse aprobadocon los votos de las tres cuartas-partes (3/4) del Congreso, conforme a lo provisto
en el Articulo XV de la Constitucion, a saber:

SECTION 1. The Congress in joint session assembled, by a vote of three-fourths of all the
Members of the Senate and of the House of Representatives voting separately, may propose
 amendments to this Constitution or call a convention for that purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority of the votes cast at an
election at which the amendments are submitted to the people for their ratification.

Se alega que cuando se considero y aprobo la citada Resolucion conjunta el Senado se componia
actualmente de 24 miembros, es decir, el numero exacto fijado en la Constitucion, y la Camara de
Representantes de 96 miembros, es decir, dos menos que el numero sealado en la Constitucion,
pues does dimitieron despues de las elecciones, uno para aceptar un cargo en el ramo ejecutivo del
gobierno y otro para aceptar un nombramiento en el servicio diplomatico. Sin embargo, segun la
demanda de los recurrentes, en el Senado solo se permitio votar a 21 miembros, excluyen dose de
las deliberaciones y votacionfina l de la Resolucion a tres miembros, a saber; los Senadores Vera,
Diokno y Romero. De los referidos 21 miembros, votaron a favor de la Resolucion 16 y en contra 5;
asi que arguyen los recurrentes la Resolucion no quedo aprobada, por parte del Senado, con
el numero constitucionalde tres cuartas-partes (3/4) de los miembros, elcual debia ser 18.

En la Camara de Representantes, segun los recurrentes, solo se permitio votar a 88 miembros,

excluyen dose de las deliberaciones y votacion final de la resolucion a 8 miembros, a saber:
Representantes Alejo Santos y Jesus B. Lava, de Bulacan; Reps. Jose Cando y Constancio P.
Padilla, de Nueva Ecija; Reps. Amado M. Yuson y Luis Taruc, de Pampanga; Rep. Alejandro
Simpauco, de Tarlac; y Rep. Vicente F. Gustilo, de Negros Occidental. De los referidos 88
miembros votaron a favor de la Resolucion solo 68; asi que arguyen los recurrentas la
Resolucion tampoco quedo aprobada, por parte de la Camara, con el numero constitucional de tres
cuartas-partes (3/4) partes de sus miembros, el cual debia ser 72, por lo menos, y no 68, aun dando
por descontados los dos miembros que despues de las elecciones aceptaron cargos en otros
ramosdel gobierno.

Siendo inconstitucional y nula la Resolucion basica deque se trata, consiguientemente los

recurrentes tachantambien de inconstitucional e invalida la referida Ley de la Republica No. 73 que
convoca una eleccion general o plebiscito para el 11 de Marzo de 1947 a fin de someter alpueblo
para su ratificacion o repudio la enmienda constitucional propuesta, y que consigna la suma de
P1,000,000 para los gastos en que se hubiere de incurrir con motivo dela celebracion de dicho
plebiscito, entre habilitacion deprecintos electorales, pago de dietas de los inspectores y costo de la
a impresion, publicacion, fijacion y distribucion gratuita de copias de la propuesta enmienda en
ingles, espaol y otros dialectos del pais.

Los recurridos, despues de admitir ciertas alegacioneses enciales de la demanda y negar otras,
plantean las siguientes defensas especiales:

Primera defensa especial: que una ley o resolucion impresa (enrolled Act or Resolution) de ambas
Camaras del Congreso, adverada o autenticada con las firmas de los Presidentes de dichas
Camaras, es prueba concluyente deque la misma fue aprobada por el Congreso; que, en virtud del
respeto que se debe a un ramo igual y coordinado del gobierno, no es permisible una investigacion
judicial desi la misma a fue o no aprobada debida y propiamente por el Congreso; y que, por tanto,
esta Corte Suprema carecede jurisdiccion para conocer y enjuiciar los puntos suscitados por los
recurrentes en relacion con la validez y constitucionalidad de la resolucion en cuestion.

Empero si la primera defensa especial no fuese sostenida, los recurridos alegan, por via
de segunda defensa especial, que la resolucion controvertida fue aprobada a conlos votos de tres
cuartas-partes (3/4) de todos los miembros cualificados del Senado y de la Camara de
Representantes votando separadamente, en consonancia con el Articulo XV, apartado 1, de la
Constitucion, y que consiguientementela ley de la Republica No. 73 que ordena suplanteamiento
ante el pueblo para su ratificacion o desaprobacion, senala una fecha para la celebracion de
estaconsulta plebiscitaria y consigna fondos publicos para talfin, es valida y constitucional.

Consta en autos una estipulacion de hechos concertadaentre las partes, pero no se extracta aqui
para no alargar innecesariamente esta disidencia, pero se hara particular referencia a ella mas
adelante a medida que las exigenciasde la argumentacion lo demanden.

Es preciso hacer constar que los abogados de ambas parteshan hecho cumplida justicia a la
tremenda importancia del asunto haciendo extensos estudios y pacientes investigaciones de la
jurisprudencia pertinente, en particular la americana, teniendo en cuenta la influencia profunda y
decisiva de aquel pais en nuestras ideas politicas y constitucionales en virtud de la historica y
estrecha convivenciade casi medio siglo.

Es que la cosa no era para menos. Puede decirse, sinexageracion, que excepto en cuatro
momentos culminantes de su historia el primer grito de rebelion contra Espaa en Agosto de
1896, la ruptura de hostilidades contra Americaen Febrero de 1899, la aceptacion de la Ley de
Independencia en el plebiscito nacional de 1935, y la guerra contra el Japon en 1941 en ningun
momento, en los ultimos 60 aos, ha sido Ilamado el pueblo filipino a rendiruna decision tan
importante, de trascendencia e implicacionestan graves, tan tremendas, como la que tiene que
hacer en el plebiscito de 11 de Marzo proximo con motivode la Resolucion congresional discutida en
el presente asunto.

Es una de esas decisiones que hacen historia; que parabien o para mal sacuden los cimientos de
un pais tal quesi fuese un fenomeno cosmico; que determinan el curso desu existencia y deytinos
nacionales; que deciden, en una palabra, de la suerte de generaciones ya existentes y
degeneraciones que no han nacido todaviaa. Es una de esas decisiones que para hacerla los
pueblos deben hincarse humildemente de rodillas, de cara al cielo, pidiendo al Dios de los pueblos y
naciones la gracia de una salvadora inspiracion de Su infinita sabiduria . . ..

II

Para los efector de una amplia perspectiva historica quepermita destacar en toda su plenitud los
contornos de losformidables "issues" o puntos constitucionales debatidos en el presente asunto,
parece conveniente que repasemos, siquiera brevemente (en las notas marginales lo que no
cabeen el mismo texto de esta disidencia),4 los preceptos basicos de la Constitucion que se trate de
reformar conla Resolucion congresional de que tantas veces se ha hechomerito. Helos aqui:

ARTICLE XIII. CONSERVATION AND UTILIZATION OF NATURAL RESOURCES.

SECTION 1. All agricultural, timber, and mineral lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all forces of potential energy, and other
natural resources of the Philippines belong to the State, and their disposition, exploitation,
development, or utilization shall be limited to citizens of the Philippines, or to corporations or
associations at least sixty per centum of the capital of which is owned by such citizens,
subject to any existing right, grant, lease, or concession at the time of the inauguration of the
Government established under this Constitution. Natural resources, with the exception of
public agricultural land, shall not be alienated, and no license, concession, or lease for the
exploitation, development, or utilization of any of the natural resources shall be granted for a
period exceeding twenty-five years, renewable for another twenty-five years, except as to
water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, in which cases beneficial use may be the measure and the limit
of the grant.
 ARTICLE XIV. GENERAL PROVISIONS

xxx xxx xxx

SEC. 8. No franchise, certificate, or any other form of authorization for the operation of a
public utility shall be granted except to citizens of the Philippines or to corporations or other
entities organized under the laws of the Philippines, sixty per centum of the capital of which
is owned by citizens of the Philippines, nor shall such franchise, certificate, or authorization
be exclusive in character or for a longer period than fifty years. No franchise or right shall be
granted to any individual, firm, or corporation, except under the condition that it shall be
subject to amendment, alteration, or repeal by the Congress when the public interest so
requires.

Como queda dicho, la reofrma propuesta es en el sentidode que, no obstante lo dispuesto en los
preceptos arribatranscritos, "durante la efectividad del Convencio Ejecutivo perfeccionado entre el
Presidente de Filipinas y el Presidente de los Estados Unidos el 4 de Julio de 1946, al tenorde las
disposiciones de la Ley del Commonwealth No. 733, pero que en ningun case se extendera mas
alla del 3 de Julio de 1974, la disposicion, explotacion, desar rollo y utilizacionde todos los terrenos
agricolas, forestales y minerales de dominio publico, de aguas, minerales, carbon, petroleo y otros
minerales petroliferos, de todas las fuerzasy fuentes de energia potencial, asi como de otros
recursos de Filipinas, y la operacion de utilidades publicas, si abiertos para cualguier persona,
quedan abiertos para los ciudadanos de los Estados Unidos y para todas las formas de negocio y
empresa de la propiedad o controladas, directao indirectamente, por ciudad aos de los Estados
Unidos, de la misma manera y bajo las mismas condiciones impuestasa los ciudadanos de Filipinas
o a las corporaciones o asociaciones de la propiedad o controladas por ciudadanos de Filipinas
(Resolucion conjunta del Congreso filipino, supra).

Podemos tomar conocimiento judicial pues, sobre ser historia contemporanea, se trata de las
labores y procesos deliberativos de la misma Asamblea Constituyente de quelos preceptos
capitales arriba transcritos constituyen la expresion acabada de toda la madurez de juicio, de toda
laprudencia y sabiduria de que eran capaces no solo los autores de la Constitucion y los Delegados
que la aprobaron, sino el pueblo filipino que la ratifico en el correspondiente plebiscito nacional
convocado al efecto. En pocas resoluciones ha habido tanta firmeza y tan fuerte unanimidadentre
nuestros partidos politicos y sus caudillos como enesa recia y constructiva afirmacion de
nacionalismo. Nadamejor, creo yo, que las siguientes palabras para definir elespiritu, la filosofia que
informa esas provisiones:

This provision of the Constitution has been criticized as establishing the outworn Regalian
doctrine which, it is suggested, may serve to retard the economic development of the
Philippines. The best encomium on this provision is probably the very criticism launched
against it. It is inconceivable that the Filipinos would liberalize the acquisition, disposition and
exploitation of our natural resources to the extent of permitting their alienation or of depriving
the people of this country of their heritage. The life of any nation depends upon its patrimony
and economic resources. Real freedom, if it is to be lasting, must go hand in hand with
economic security, if not economic prosperity. We are at most usufructuaries of ourdomains
and natural resources and have no power to alienate them even if we should want to do so.
They belong to the generations yet unborn and it would be the height of folly to even think of
opening the door for their untrammelled disposition, exploitation, development or utilization to
the detriment of the Filipinos people. With our natural resources in the hands of foreigners
what would be there left except the idealism of living in a country supposedly free, but where
freedom is, after all, an empty dream? We would be living in a sumptuous palace that it not
ours! We would be beggars in our own homes, strangers in our own land!
 Friendship and amity towards all nations are compatible with the protection of the legitimate
interests of the Filipino people. There is no antagonism or hostility towards foreigners but
sane nationalism and self-protection which every country of the world is practising today in
the interest of self-preservation. (The Three Powers of Government, by Laurel, pp. 117-118.)

Los criticos de la enmienda constitucional propuesta pueden discutir libremente, como cumple a los
ciudadanos de un pais democratico, los meritos y demeritos de lamisma. Pueden combatirla con
toda clase de razones morales, politicas, economicas, financieras, internacionales, y hasta de
decencia y naturalmente defenderla tambiensus partidarios desde todos los angulos. Podrian los
opositoreshacer una minuciosa diseccion de su fraseologia yacaso hallar en sus repliegues
peligrosas implicaciones, posibles riesgos, como en ese par de adverbios "directa o indirectamente",
a cuyo socaire podrian acogerse corporacioneso asociaciones extranjeras controladas solo
indirectamente por ciudadanos americanos para concurrir en la explotacion de nuestros terrenos
publicos y recursos naturales, y en la operacion de utilidades publicas. Todo estolo pueden hacer, y
algo mas. Pero es obvio, elemental quesemejante discusion no compete a esta Corte Suprema,
sinoen todo caso a otros poderes constituidos.

Nosotros no estamos para determinar y enjuiciar labondad o maldad de la enmienda propuesta. Lo

unico quenos incumbe hacer, ya que la cuestion se halla propiamente planteada ante nosotros, es
resolver si la enmienda ha sido aprobada por el Congreso de acuerdo con el mandato expreso de la
Constitucion en materia de enmiendas; si losrequisitos que la Constitucion seala para poder
enmendarla requisitos que son mandatorios, categorica menteimperativos y obligatorios se
han cumplido o se han violado. Como se dijo bien en el asunto de Gray vs.Childs ([1934], 156 So.,
274, 279), ". . . No podemos decir queel estricto requerimiento relativo a las enmiendas se puede
renunciar a favor de una buena enmienda e invocar encontra de otra mala. . . . No compete a los
tribunales el determinar cuando una enmienda propuesta es sabia y cuando no lo es. Los tribunales
nada tienen que ver conla sabiduria de la politica. Pero es deber de los tribunales, cuando se les
pide que lo hagan, el determinar si o no el procedimiento adoptado para la aprobacion de la
enmiendaes el sealado por los terminos de la ley organica.

Todo lo que se lha dicho hasta aqui para poner de relievela filosofia de nuestra Constitucion en
materia de recursos naturales y utilidades publicas, se ha dicho no como expresion de un criterio
propio, sino tan solo para subrayar todala gravedad, toda la densidad del asunto, y prevenir entodo
caso los peligros de una rutinaria y complacienteliviandad. Como tambien se dijo en el citado asunto
deGray vs. Childs, "la enmienda de la ley organica del Estado o nacion no es una cosa para ser
tomada ligeramente, ni para ser hecha de lance o al azar. Es una cosa seria. Cuando la enmienda
es aprobada, viene a ser parte de laley fundamental del pais y puede significar el bienestar
omaldicion de las generaciones de la nacion donde se haceparte del codigo fundamental."

Este pronunciamiento adquiere todo el valor y toda la resonancia de una consigna en el presente
caso en que lareforma propuesta afecta vitalisimamente al patrimonionacional del pueblo filipino.
No son los recursos naturalesy las utilidades publicas el tesoro de una nacion, labase que sustenta
su existencia, la espina dorsal de sueconomia? Por tanto, jamas se podra exagerar el celo, la
vigilancia que el pueblo y sus organos naturales ejercenpara que las salvaguardias impuestas por la
misma Constitucionen relacion con el proceso y tramitacion de todaenmienda constitucional se
cumplan y observen con el maximo rigor.

Aqui no caben excusas ni subterfugios. Ni siquiera cabeescudarse tras la doctrina de la separacion

de poderes quela mayoria de esta Corte invoca para justificar su inaccion, su pasividad, su politica
de "manos fuera", alegando que el presente asunto es coto vedado para nos otros, algo quecae
fuera de nuestra jurisdiccion, eso que en derecho politico y constitucional se llama materia politica
no-justiciable.
 III

La mayoria rehusa asumir jurisdiccion sobre el presente caso porque dice que versa sobre una
cuestion politica, ylas cuestiones politicas caen fuera de la competencia de los tribunales de justicia.
Creo que esto es un error, dicho seacon todos los respetos debidos a mis ilustres compaeros que
sostienen tal opinion. Hay acaso algun documento mas politico que la Constitucion? Si la opinion
de lamayoria fuese valida y acertada, practicamente ninguna violacion de la Constitucion podria ser
enjuiciada por los tribunales, pues cual mas, cual menos, casi todas las
transgresionesconstitucionales, sobre todo las que comete elpoder legislativo o el poder ejecutivo,
tienen caracter politico. Bajo esa opinion la Constitucion seria una letramuerta, un simple pedazo de
papel: los poderes constituidos, los individuos que los componen, podrian infringirim punemente la
Constitucion sin que ningun arbitro constitucional pudiera intervenir ordenadamente para restaurarla
suprema majestad de la ley fundamental violada. Esclaro que esto podria conducir facilmente al
caos, a la anarquia, a la revolucion, dependiendo solo el resultado de lamayor o menor docilidad del
pueblo, del grado de elasticidad politica de las masas. Y es claro que ninguno puedequerer este
triste destino para nuestro pais.

Creo sinceramente que una mejor y mas correcta evaluacion de nuestro sistema de gobierno que
esta esencial mentecalcado en el americano, es que bajo la teoria relativa de las eparacion de
poderes, ningun poder es superior al pueblo cuya voluntad esta encarnada en la Constitucion. Los
poderes no son mas que agentes, mandatarios, servidores: el pueblo es el amo, el mandante, el
soberano. Y el pueblo ordena y manda por medio de la Constitucion esta es suvoz el verbo
hecho carne politica y social, el soplo vital quetraduce y transmuts su espiritu en postulados
esenciales deregulacion y gobierno.

Todo eso esta bien, no puede haber seria objecion a ello,dicen los sostenedores absolutistas de la
teoria de la sedparacion de poderes. Pero se pregunta: quien seala lavoluntad del pueblo tal
como esta plasmada en la Constitucion? ?Quien es el profeta que desciende del Sinai para revelar
las tablas de la ley? Quien ha de arbitrar en los conflictos constitucionales, o quien ha de decidir
los litigios propiamente planteados en que se ventilan una infraccion de la Constitucion? Hay un
peligroso vacio en nuestro mecanismo constitucional, o por el contrario, los resorteestan todos bien
situados, capaces de operar y funcionarade cuada y eficientemente? Esto es precisamente
el busilis, la cuestion batallona.

No puede haber duda en la contestacion a tales preguntas. Bajo nuestro sistema de gobierno el
poder judiciales el llamado a sealar, a interpretar la ley; y en los conflictoso transgresiones
constitucionales esta Corte Suprematiene la ultima palabra, le compete el arbitraje supremoy final.
Bajo nuestra mecanica constitucional, igual quebajo la americana, se da la aparente paradoja de
que la superior facultad, el supremo negocio de interpretar la voluntad del pueblo tal como esta
expresada mas o menos permanentemente en la Constitucion, no corresponde propiamentea
ninguno d e los poderes electivos, los que se renuevanperiodicamente, sino al poder que si bien es
denombramiento en su origen, tiene, sin embargo, sentido deperpetuidad, quiero decir, es vitalicio
en la complexion y funcion de los individuos que los componen el poder judicial. La sabiduria
peculiar, la originalidad del sistemaconsiste precisamente en eso: en haber alojado el supremo
arbitraje con relacion a los conflictos y transgresiones constitucionales en un poder del Estado al
cual deliberadamentese le ha dotado de un clima psicologico y moral el maspropicio posible a la
objetividad y desasimiento de lasdisputas politicas y discordias civiles, situandosele por encimade
los vaivenes de la politica al uso y las veleida desde la suerte electora. "Esto es lo que va implicto
en la expresion supremacia judicial, que propiamente es la facultad de revision judicial bajo la
Constitucion" (Angara contra Comision Electoral, 63 Jur. Fil., 171).
 The very essence of the American conception of the separation of powers is its insistence
upon the inherent distinction between law-making and law-interpreting, and its assignment of
the latter to the judiciary, a notion which, when brought to bear upon the Constitution, yields
judicial review." (Corwin, The Twilight of the Supreme Court, p. 146.)

En el famoso asunto de Marbury vs. Madison, supra, el Tribunal Supremo de los Estados Unidos,
por boca de sugran Chief Justice John Marshall, en terminos inequivocos definio y explico las
facultades de la judicatura para poneren vigor la Constitucion como la suprema ley del pais, y
declaro que es terminantemente de la competencia y deberdel departamento judicial el decidir cual
es la ley querige.

The reasoning of Webster and Kent is substantially the same. Webster says: "The
Constitution being the supreme law, it follows of course, that every act of the Legislature
contrary to the law must be void. But who shall decide this question? Shall the legislature
itself decide it? If so, then the Constitution ceases to be legal and becomes only a moral
restraint for the legislature. If they, and they only, are to judge whether their acts be
conformable to the Constitution, then the Constitution is advisory and accessory only, not
legally binding; because, if the construction of it rest wholly with them, their discretion, in
particular cases, may be in favor of very erroneous constructions. Hence the courts of law,
necessarily, when the case arises, must decide upon the validity of particular acts." Webster,
Works, Vol. III, 30. (Willoughby on the Constitution of the United States, Vol. 1, 2d edition,
pp. 4, 5.)

En el citado asunto de Angara contra Comision Electoral dijimos tambien lo siguiente:

. . . Y la judicatura, a su vez, con el Tribunal Supremo por artbitro final, frena a con
efectividad a los demas departament of en elejercicio de su facultad de determinar la ley, y
de aqui que pueda declarar nulos los actos ejecutivos y legislativos que contravengan la
Constitucion.

Esta doctrina reafirmo en el asunto de Planas contra Gil (67 Phil., 62), a saaber:

. . . As far as the judiciary is concerned, which it holds' neither the sword nor the purse' it is
by constitutional placement the organ called upon to allocate constitutional boundaries, and
to the Supreme Court is entrusted expressly or by necessary implication the obligation of
determining in appropriate cases the constitutionality or validity of any treaty, law, ordinance,
or executive order or regulation. (Section 2 [1], Art. VIII, Constitution of the Philippines.) In
this sense and to this extent, the judiciary restrains the other departments of the government
and this result is one of the necessary corollaries of the "system of checks and balances" of
the government established.

No es que con esto el poder judicial assume un complejode superioridad sobre los otros poderes del
Estado, no. Setrate simplemente de que, dentro de las limitaciones de todacreacion humana,
alguien tiene que arbitrar y dirimir losconflictos y las transgresiones a gue puede dar lugar la
Constitucion, y se estima que el poder judicial, pro la razonde su ser y de sus funciones, es el mas
llamado a ser esearbitro. Se trate de una propia y graciosa inhibicion delos otros poderes en virtud
de una necesidad impuesta porunas teorias y practicas de gobiernio que han resistido la prueba del
tiempo y el choque con la realidad y la experiencia. En mi disidencia en el asunto de
Vera contra Avelino (77 Phil., 192), hablando sobre este particular dijelo siguiente y lo reitero ahora,
a saber:
 En parte, el argumento expuesto es correcto y acertado. No sepuede discutir que los tres
poderes del Estado son iguales e independientesentre si; que ninguno de ellos es superior
al otro, mucho menos el poder judicial que entre los tres es el menos fuerte y elmas precario
en medios e implementos materiales. Tampoco se puede discutir que bajo la Constitucion
cada poder tiene una zona, una esferade accion propia y privativa, y dentro de esa esfera un
cumulode facultades que le pertenecen exclusivamente; que dentro de esaesfera y en el uso
de esas facultades cada poder tiene absoluta discreciony ningun otro poder puede controlar
o revisar sus actos so pretexto de que alguien los cuestiona o tacha de arbitrarios, injustos,
imprudentes o insensatos. Pero la insularidad, la separacion llegasolo hasta aqui. Desde
Montesquieu que lo proclamo cientificamente hasta nuestros dias, el principio de la
separacion de poderes hasufrido tremendos modificaciones y limitaciones. El consenso
doctrinal hoy es que la teoria es solo relativa y que la separacionde poderes queda
condicionada por una mecanica constitucional lamecanica de los frenos y cortapisas.
(Willoughby, On the Constitution of the United States, tomo 3, pags. 1619, 1620, 2. edicion.)
Como queda dicho, cada poder es absoluto dentro de la esfera quele asigna la Constitucion;
alli el juego de sus facultades y funcionesno se puede coartar. Pero cuando se sale y
extravasa de esa esferainvadiendo otras esferas constitucionales, ejerciendo facultades
queno le pertenecen, la teoria de la separacion ya no le ampara, la Constitucion que es
superior a el le sale al encuentro, le restringe uy leachica dentro de sus fronteras,
impidiendo sus incursiones anti-constitucionales. La cuestion ahora a determinar es si bajo
nuestrosistema de gobierno hay un mecanismo que permite restablecer eljuego normal de la
Constitucion cuando surgen estos desbarajustes, estos conflictos que podriamos llamar de
fronteras constitucionales; tambien es cuestion a determinar si cuando surgen esos
conflictos, un ciudadano sale perjudicado en sus derechos, el mismo tiene algun remedio
expedito y adecuado bajo la Constitucion y las leyes, y quien puede concederle ese
remedio. Y con esto llegamos a la cuestion basica, cardinal en este asunto.

Nuestra opinion es que ese mecanismo y ese remedio existen son los tribunales de
justicia.

La mayoria no define en su decision lo que llama cuestion politica no-justiciable ni las maaterials o
casos que caen dentro de su significado. "The difficulty lies" dice la ponencia "in determining
what matters fall within the meaning of political question. The term is not susceptible of exact
definition, and precedents and authorities are not always in full harmony as to the scope of the
restrictions, on this ground, on the courts to meddle with the actions of the political departments of
the government." Pero razonando por analogia cita un precedente, una autoridad el caso de
Coleman vs. Miller decidido no hace muchos aos por la Corte Suprema Federal de los Estados
Unidos. La mayoria cree que este es el caso mas semejante al que nos ocupa. Creo que la mayoria
padece error: el caso de Coleman contra Miller es precisamente un buen argumento en favor del
recurso.

Compendiado el caso es como sigue: En Junio, 1924, el Congreso de los Estados Unidos propuso
una reforma ala Constitucion, conocida por "Child Labor Amendment" (enmienda sobre el trabajo
infantil). En Enero, 1925, la Legislatura del Estado de Kansas adopto una resolucion rechazandola
enmienda y una copia certificada de la resolucionse envio al Secretario de Estado de los Estados
Unidos. En Enero, 1937, o sea 12 aos despues, una resolucion conocida como "Resolucion
Concurrente del Senado No. 3" se presento en el Senado del Estado de Kansas pararatificar la
propuesta enmienda. Habia 40 Senadores. Alconsiderarse la resolucion 20 Senadores votaron en
favor y 20 Senadores en contra. El Teniente Gobernador, que era entonces el Presidente del
Senado en virtud de la Constitucion estatal, emitio su voto en favor de la resolucion, rompiendo asi
el empate. La resolucion fue posteriormente adoptada por la Camara de Representantes de Kandas
mediante una mayoria de los votos de sus miembros.
Fued entonces cuando se interpuso ante la Corte Suprema de Kansas un recurso
de mandamus por los 20 Senadores adversos a la resolucion y por otros 3 miembros de la
Camarade Representantes. El objeto del recurso era (a) compeler al Secretario del Senado a borrar
el endoso favorable de la resolucion y poner en su lugar las palabras "no ha sido aprobada"; (b)
recabar la expedicion de un interdicto contra los oficiales del Senado y Camara de Representantes
prohibiendo les que firmaran la resolucion y contra el Secretario de Estado de Kansad prohibiendole
que autentic aradicha resolucion y la entregara la Gobernador. La solicitud cuestionaba el derecho
del Teniente Gobernadora emitir su voto decisivo en el Senado. Tambien se planteabaen la solicitud
el hecho de que la resolucion habiasido rechazada originariamente y se alegaba, ademas,
quedurante el periodo de tiempo comprendido entre Junio,1924, y Mayo, 1927, la enmienda habia
sido rechazada porambas Camaras de las Legislaturas de 26 Estados y solose habia ratificado en 5
Estados, y que por razon de dicho rechazamiento y por no haberse ratificado dentro de untiempo
razonable la enmienda habia perdido su validez y vitalidad.

La Corte Suprema de Kansas hallo que no habia ninguna disputa sobre los hechos, asumio
competencia sobre el casoy sostuvo que el Teniente Gobernador tenia derecho a emitirvoto
decisivo, que la proyectada enmienda conservabasu vitalidad original a pesar del tiempo
transcurrido, y quela resolucion, "habiendo sido aprobada por la Camara de Representantes y por el
Senado, el acto de ratificacion dela propuesta enmienda por la Legislatura de Kansas erafinal y
complete." Consiguientemente el recurso de mandamus fue denegado.

Elevado el asunto en casacion para ante la Corte Suprema Federal, esta asumio jurisdiccion sobre
el caso, conla concurrencia y disidencia de algunos Magistrados que opinaban que el recurso debia
rechazarse de plano, sin masceremonias, por la razon, segun los disidentes, de que los recurrentes
no tenian personalidad ni derecho de accion para pedir la revision de la sentencia de la Corte
Supremade Kansas, y porque ademas se trataba de una cuestion puramente politica, por tanto no-
justiciable. Bajo la ponenciade su Presidente el Sr. Hughes, la Corte Suprema Federal conocio del
caso a fondo, discutiendo y resolviendo las cuestiones planteadas. He aqui sus palabras: "Our
authority to issue the writ of certiorari is challenged upon the ground that the petitioners have no
standing to seek to have the judgment of the state court reviewed and hence itis urged that the writ
of certiorarishould be dismissed.We are unable to accept that view." Esto viene a ser comouna
replica a las siguientes palabras de los disidentes: "It is the view of Mr. Justice Roberts, Mr. Justice
Black, Mr. Justice Douglas and myself (Mr. Justice Frankfurter) that the petitioners have no
standing in the Court." Delo dicho resulta evidente que la Corte Federal no adoptola actitud de
"manos fuera" (hands off), sino que actuo positivamente sobre el caso, encarandolo.

La decision consta de tres partes. La primera parte, que es bastante extensa, esta consagrada
enteramente adiscutir la cuestion de la jurisdiccion de la Corte. Ya hemosvisto que esta cuestion se
ha resuelto enteramente enfavor de la jurisdiction, en virtud de las razones luminosas que alli se
explanan y que no reproduzco por no ser necesario y para no alargar indebidamente esta
disidencia. La segunda parte es bien breve, apenas consta de dos parrafos. Se refiere a la cuestion
de si el voto del Teniente Gobernador, que rompio el empate, era o no valido. La Corte nolo
resuelve, por que dice que sus miembros se dividieron porigual sobre si era una cuestion politica y,
por tanto, nojusticiable. La tercera parte, tan extensa como la primera, esta dedicada a estudiar y
discutir las siguientes proposiciones :(a) Si habiendo sido rechazada originariamentela enmienda,
una ratificacion posterior podia validamente dejar sin efecto dicho rechazamiento y tomarse como
unaratificacion legal al tenor de la Constitucion; (b) si ellargo tiempo transcurrido entre el
rechazamiento y la ratificacion unos 13 aos no habia tenido el efecto de darcaracter final a la
repudiacion de la enmienda, causando estado juridico definitivo.

El analisis que hace el ilustrado ponente de las cuestiones planteadas es muy interesante y desde
luego acabado. Se estudian y comentan luminos amente los precedentes. Sobre la cuestion de si el
rechazamiento de unaenmienda propuesta impide que la misma sea ratificada posteriormente, se
puntualiza lo siguiente: que el articulo V de la Constitucion Federal sobre enmienda esta fraseadoen
terminos positivos, es decir, habla de ratificacion y node rechazamiento, y que por tanto "el poder
para ratificarlo confiera al Estado la Constitucion, y que, como poder ratificante, continua y persiste,
a pesar de un previo rechazamiento. "Luego la Corte dice, examinando los precedentes, que el
Congreso, en el ejercicio de su control sobrela promulgacion de las enmiendas a la Constitucion, ha
resuelto esta cuestion repetidas veces en el sentido indicado, esto es, considerando inefectivo el
previo rechazamientofrente a una positiva ratificacion; y la Corte concluye que esta accion del
Congreso es valida, constitucional; por consiguiente, los tribunales no estan autorizados para
revisarla. Es en este sentido, creo yo, como la Corte dice que se trate de una cuestion politica no-
justiciable, es decir una cuestion que cae dentro de la zona constitucional exclusion del Congreso;
por tanto, se trate deuna accion valida, constitucional. Pero no hay nada enesa decision que diga, o
permita inferir, que cuando el Congreso viola un mandato expreso de la Constitucion, como en el
caso que nos ocupa, los tribunales no pueden intervenir, bajo el principio de la supremacia
judicial entratandose de interpretar la Constitucion, para resolver el conflicto o enjuiciar la
transgresion, y conceder el remedio propiamente pedido. En otras palabras, en el caso de
Coleman contra Miller la Corte Suprema Federal hallo que el Congreso, al declarar valida la
ratificacion de la enmienda constitucional sobre trabajo infantil (Child labor), no habia infringibo el
articulo V de la Constitucion, sobre enmiendas, y la Corte lo razona diciendo, con la vista delos
precedentes, que el referido articulo V habla de ratificacion y no de rechazamiento, y que, por
tanto, "el poderpara ratificar continua y persiste a pesar de un previo rechazamiento." De suerte
que, en realidad de verdad, no escierto que la Corte Suprema Federal declaro injusticiablela
materia, pues que mejor prueba de justiciabilidad que ese dictum categorico, positivo y
terminante?

Sobre la proposicion de si el largo tiempo transcurrido entre el rechazamiento y la ratificacion

unos 136 aos no habia tenido el efecto de dar caracter final a la repudiacion de la enmienda,
causando estado juridico definitivo, la Corte Suprema Federal fallo que no, es decir, declarovalida la
ratificacion no obstante dicho lapso de tiempo, aduciendo razones muy atinadas, entre ellas la de
que las condiciones de caracter moral, medico, social y economico que aconsejaban la prohibicion
del trabajo infantil en las fabricas eran tan validas y existentes, si no mas, cuandose sometio la
enmienda por primera vez para su ratificacion como 13 aos despues. Y luego la Corte cita
autoridades y precedentes en apoyo de su conclusion, entre ellosel caso tipico y decisivo de
Dillon vs. Glass (256 U.S., 368; 65 Law.ed., 994; 41 Sup.Ct., 510). En este caso la Cortedeclaro que
el Congreso, al proponer una enmienda a la Constitucion, pueded fijar un tiempo razonable para su
ratificacion, y sostuvo la accion del Congreso al disponer enla proyectada 18. Enmienda que la
misma seria ineficaza menos que se ratificase dentro de siete aos.

Ahora bien, en el caso de Coleman contra Miller ocurre todo lo contrario: el Congreso no habia
fijado ningun plazopara la ratificacion. En vista de esto, los recurrentes pretendian que la Corte
supliera la omision del Congreso declarandolo que era tiempo razonable, teniendo en cuentalos
precedentes judiciales y el precedente congresional de 7 aos ya sostenido en el caso citado de
Dillon contra Glass; y que desde luego el periodo de 13 aos era demasiado largo para ser
razonable. La Corte Suprema dijo que no, queno eran los tribunales los que debian fijar ese tiempo
razonable; que en esta cuestion entraban muchos factores denaturaleza varia y compleja
politicos, economicos y sociales que solo el Congreso estaba en condiciones de determinar ya
mediante la correspondiente legislacion como enel caso de la 18. Enmienda, ya en cada caso
concreto deratificacion al ejercer su control sobre la promulgacion de las enmiendas. Ahora bien,
pregunto: no es esto un dictum judicial? no es esto justiciar? no esta aqui la Corte Suprema
Federal sentandose en estrados y emitiendo judicialmente su opinion sobre una materia juridica y
constitucional sometida a su consideracion? En realidad, puede decirse que la unica cuestion que la
Corte ha dejado de resolver es la validez o nulidad del voto decisivo del Teniente Gobernador, por
la razon de que sobre este punto, segun se dice en la misma decision, la opinion del Tribunal
estaba igualmente dividida. Todas las demas cuestiones han sido enjuiciadas, resueltes, y esta
accion dela mayoria, asumiendo plena jurisdiccion sobre el caso y las materias en el discutidas, es
lo que ha motivado la disidencia de 4 Magistrados los Sres. Black, Roberts, Frankfurter y Douglas.
En efecto, estos disidentes no disimulansu desagrado al ver que la Corte asume en el caso,
siquier implicitamente, el poder de interpretacion judicial, y aunvan mas alla expresan un notorio
desencanto al ver que la Corte "trata el proceso enmendatorio provisto por la Constitucion, como
sujeto a interpretacion judicial en algunos respectos, y en otros sujeto a la autoridad final del
Congreso", y al ver tambien que en la decision "no hay desaprobacion de la conclusion establecida
en el asunto de Dillon contra Glass, de que la Constitucion requiere tacitamente que una enmienda
propiamente sometida debe darsepor muerta, a menos que se ratifique dentro de un tiempo
razonable." Es decir, los Magistrados disidentes esperaban que la Corte revocase y abrogase lo
hecho por ella en elcitado asunto de Dillo contra Glass en donde la Corte, envez de abstenerse de
conocer del caso por tratarse en el, segun los disidentes, de materia politica no-justiciable, ejercio
plena jurisdiccion sobre el mismo asumiendo supoder tradicional de interpretar la Constitucion y
declarando valida la lay del Congreso que fijaba un plazo de7 aos para la ratificacion de la 18.
Enmienda. No puedo resistir a la tentacion de reproducir las mismas palabrasde la disidencia: ellas,
mejor que todo lo que yo pueda decir, demuestran de modo inconcuso las irreconciliables
diferencias de criterio entre la mayoria, representada porel ilustre ponente Sr. Hughes, y los
disidentes, pues mientraspor un lado el ponente justicia decididamente el caso considerando,
discutiendo y resolviendo todas las cuestionesplanteadas, menos la cuestion del voto del Teniente
Gobernador, citando profusamente autoridades y precedentes, los disidentes, en su opinion,
preconizan una actitudde absoluta abstencion, de "manos fuera" (hands off), portratarse, segun
ellos, de una materia politica no-justiciable que cae exclusivamente bajo el control del Congreso. He
aqui las palabras de los disidentes:

. . . To the extent that the Court's opinion in the present case even impliedly assumes a
power to make judicial interpretation of the exclusive constitutional authority of Congress
over submission and ratification of amendments, we are unable to agree.

The State court below assumed jurisdiction to determine whether the proper procedure is
being followed between submission and final adoption. However, it is apparent that judicial
review of or pronouncements upon a supposed limitation of a "reasonable time" within which
Congress may accept ratification; as to whether duly authorized State officials have
proceeded properly in ratifying or voting for ratification; or whether a State may reverse its
action once taken upon a proposed amendment; and kindred questions, are all consistent
only with an ultimate control over the amending process in the courts. And this must
inevitably embarrass the course of amendment by subjecting to judicial interference matters
that we believe were intrusted by the Constitution solely to the political branch of
government.

The Court here treats the amending process of the Constitution in some respects as subject
to judicial construction, in others as subject to the final authority of the Congress. There is no
disapproval of the conclusion arrived at in Dillon vs. Glass, that the Constitution impliedly
requires that a property submitted amendment must die unless ratified within a "reasonable
time." Nor does the Court now disapprove its prior assumption of power to make such a
pronouncement. And it is not made clear that only Congress has constitutional power to
determine if there is any such implication in article 5 of the Constitution. On the other hand,
the Court's opinion declares that Congress has the exclusive power to decide the political
questions of whether a State whose legislature has once acted upon a proposed amendment
may subsequently reverse its position, and whether in the circumstances of such a case as
this, an amendment is dead because an "unreasonable" time has elapsed. No such division
between the political and judicial branches of the government is made by article 5 which
grants power over the amending of the Constitution to Congress alone. Undivided control of
that process has been given by the article exclusively and completely to Congress. The
 process itself is "political" in its entirety, from submission until an amendment becomes part
of the Constitution and is not subject to judicial guidance, control or interference at any point.

Since Congress has sole and complete control over the amending process, subject to no
judicial review, the views of any court upon this process cannot be binding upon Congress,
and in so far as Dillon vs. Glass attempts judicially to imposed a limitation upon the right of
Congress to determine final adoption of an amendment, it should be disapproved. . . .
(Coleman vs. Miller, 122 A.L.R., 695, 708, 709.)

La distribucion de los votos con relacion a las cuestiones planteadas en el referido asundo de
Coleman vs. Miller esalgun tanto confusa, como han podido notar los mismos comentaristas; asi
que necesita de alguna explicacion. Escierto que no suscriben la ponencia mas que 3 Magistrados,
a saber: el ponente Sr. Hughes y los Sres. Stone y Reed, pero en cuanto a la jurisdiccion plena que
la Corte asumio sobre el caso y la materia hay que aadir los votos de los Sres. McReynolds y
Butler. Estos dos ultimos no soloconcurrian implicitamente en la accion de la Corte al enjuiciarel
caso, sino que inclusive opinaban que debia concederse el recurso, esto es, que debia anularse la
ratificacion tardia de la Enmienda sobre Trabajo Infantil (Child Labor) hecha por la Legislatura de
Kansas. De modo queen cuanto al "issue" de la jurisdiccion, la justiciabilidad del caso, la votacion
era de 5 contra 4 por la jurisdiccion,la justiciabilidad, el ponente Sr. Hughes, y los Magistrados
Sres. Stone, Reed, McReynolds y Butler; por la actitud de absoluta abstencion, de "manos fuera"
(hands off), los Magistrados Sres. Black, Frankfurter, Roberts y Douglas.

Repito lo dicho mas arriba: el caso de Coleman vs. Miller, en vez de ser una autoridad a favor de los
recurridos, juntamente con el caso de Dillon vs. Glass constituyen precedentes decisivos en la
jurisprudencia federal americana a favor de los recurrentes.

Pero si la jurisprudencia federal milita en favor de latesis de que tenemos jurisdiccion para enjuiciar
y decidirel presente caso, en el ejercicio de nuestras supremas funciones como interprete de la
Constitucion bajo el principio firmemente establecido de la supremacia judicial en asuntos
propiamente planteados sobre conflictos y transgresiones constitucionales, la jurisprudencia de los
Estados estodavia mas indubitable e inequivoca, mas terminante y decisiva. La importancia de esto
sube de punto si se tieneen cuenta que, mas que con el gobierno federal, nuestra analogia,
nuestros puntos de contacto en lo politico, constitucional y juridico es mas bien con los diferentes
Estados de la Union americana. Nuestro sistema de gobierna es unitario. Aqui nuestras provincias
no son Estados autonomos y semi-independientes como lo son los Estados americanos. Asi que la
cedula, la unidad politica mas semejante a la nuestra no es la federal, sino la estatal. Por eso si
bienes cierto que las constituciones de los Estados, como lanuestra, todas estan fundamentalmente
calcadas en el patron de la Constitucion federal, se vera que en ciertosrasgos caracteristicos del
sistema unitario nuestra Constitucionse aproxima evidentemente mas a las de los Estados que a la
federal. Esa semejanza es sobre todo notabilisimaen la parte que se refiere al proceso
enmendatorio de la Constitucion. Es que, en realidad, los Estados de la Union americana, para
todos los efectos de la vida interior, domestica, son practicamente naciones independientes; asi que
nuestra evolucion, nuestro transitode la condicion de Commonwealth a la de Republicas oberana e
independiente si bien nos distingue de ellos enel derecho internacional, ninguna diferencia, sin
embargo, ha operado en el campo constitucional, ora en la parte dogmatica de la Constitucion, ora
en la parte organica. Y la mejor prueba de esto es que con la independencia nohemos tenido
necesidad de cambiar de Constitucion: lamisma que nos servia cuando eramos simple
Commonwealth, es decir, cuando estabamos sujetos a la soberania americana, es la misma que
nos sirve hoy cuando ya somos Republic; y no cabe duda de que nos serviria perfectamente bien si
no la tuvieramos asendereada y malparada en nuestras pecaadoras manos con repetidas
violaciones, confrecuentes asaltos contra su integridad . . ..

Ahora bien; sin petulancia se puede retar a cualquieraa que seale un caso, un solo caso en la
jurisprudencia de los Estados de la Union americana en que los tribunales de justicia se hayan
negado a conocer y enjuiciaruna violacion constitucional semejante a la que nos ocupapor la razon
de que se trataba de una cuestion politica no-justiciable. No hay absolutamente ninguno; por
esoque los recurridos, a pesar de las pacientes y laboriosas investigaciones que denota su habil y
concienzudo alegato, no han podido citar ni un solo caso.

En cambio, los tomos de jurisprudencia de various Estados dan cuenta de casos indenticosd al que
nos ocupa y entodos ellos se ha declarado invariablemente que la violacion de la Constitucion en lo
que se refiere al precepto que regula el proceso de la enmiendas a la Ley organica esuna cuestion
judicial, y ninguna Corte Suprema de Estados e ha lavado jamas las manos bajo la teoria de la
separacion de poderes. Es mas: creo que in siquiera seha planteado seriamente la objecion
fundada en el argumentod e la injusticiabilidad.

Para no alargar demasiado esta disidencia no voy a citarmas que algunos casos los mas conocidos
y representativos, tomados de la jurisprudencia de algunos Estados, a saber: Florida, Minnesota,
Georgia e Indiana. De la Corte Suprema de Florida tenemos dos casos: el de Crawford vs .Gilchrist
y el de Gray vs. Childs.

En el asunto de Crawford vs. Gilchrist (64 Fla., 41; 59 So., 963l Ann. Cas., 1914B, 916), se trataba
de una accionde prohibicion interpuesta por el Gobernador del Estado, Albert W. Gilchrist, contra el
Secretario de Estado, H. Clay Crawford, para impedir que cierta propuesta enmiendaa la
Constitucion se publicara y se sometiera al electorado en un plebiscito para su ratificacion o
rechazamiento. Esdecir, lo mismo de que se trate en el case que tenemos antenosotros. La
enmienda habia sido aprobada por la Camarade Representantes de Florida con el voto necesario y
constitucional de tres quintas (3/5), y fue enviada al Senado para su concurrencia. El Senado
tambien la aprobo conel voto de tres quintos, pero esta votacion fue reconsiderada posteriormente.
Asi estaba el asunto, pendiente de reconsideracion cuando se clausuro la Legislatura. Despues, sin
embargo, diose por aprobada la propuesta enmienday el Secretario de Estado trato de dar los
pasos parasu publicacion y ratificacion plebiscitaria. De ahi la accionde interdicto prohibitorio,
fundada en la alegacion de quela enmienda no habia sido aprobada debidamente por la Legislatura
de acuerdo con los metodos prescritos en la Constitucion de Florida. Igual que en el presente
casetambien hubo alli una batalla forense colosal, con untremendo despliegue de habilidad y talento
por cada lado. El ponente no se recata en alabar el esfuerzo de las partesy dice: ". . . we think the
parties to this litigationare to be commended, both for taking the proceedings that have brought
these unsual questions before the court for determination and for the great ability with which their
counsel have presented them to this court."

Se lavo las manos la Corte Suprema de Florida declarandose incompetente para conocer del
asunto por la razonde que se trataba de una cuestion politica y, por tanto, nojusticiable? De ninguna
manera. La Corte asumio resueltamente su responsabilidad y poder tradicional de interpretarla
Constitucion y fallo el asunto en su fondo, declarando que la cuestion era propiamente judicial y que
laenmienda constitucional propuesta no se habia aprobada deconformidad con los requisitos
establecidos por la Constitucionpara el proceso y tramitacion de la enmiendas. Por tanto, se denego
la peticion de supersedeas interpuestapor el recurrido para enervar el recurso; es decir, al
recurrentegano su inusitado e historico pleito. Y las esferas politicas de Florida no se desorbitaron
por esta decisivaderrota de la teoria de la separacion de poderes. Vale la pena reproducir algunar
de las doctrinas sentadas en elasunto, a saber:
 Constitutional Law Power of Courts to Determine Validity of Action by Legislature in
Proposing Constitutional Amendment.

A determination of whether an amendment to the constitution has been validly proposed and
agreed to by the Legislature is to be had in a judicial forum where the constitution provides
no other means for such determination.

Injunction Subject of Relief Act of Secretary of State in Certifying Proposed

Amendments.

The act of the secretary of state in publishing and certifying to the country commissioners
proposed amendments to the constitution is in its nature ministerial, involving the exercise of
no discretion, and if the act is illegal it may be enjoined in appropriate proceedings by proper
parties, there being no other adequate remedy afforded by law.

Injunction Governor as Complainant, Secretary of State as Defendant.

The governor of the state, suing as such, and also as a citizen, taxpayer, and elector, is a
proper complainant in proceedings brought to enjoin the secretary of state from publishing at
public expense and certifying proposed amendments to the constitution upon the ground that
such proposed amendments are invalid because they have not been duly "agreed to by
three-fifths of all the members elected to each house" of the legislature.

Amendments to Constitution Effect of Ignoring Mandatory Provisions of Constitution.

If essential mandatory provisions of the organic law are ignored in amending the constitution,
it violates the right of all the people of the state to government regulated by law.

Duty of Court to Enforce Constitution.

It is the duty of the courts in authorized proceedings to give effect to the existing constitution.

Mandatory Provisions of Constitutions as to Manner of Amending Constitution.

The provision of the organic law requiring proposed amendments of the constitution to "be
agreed to by three-fifths of all the members elected to each house" of the legislature is
mandatory, and it clearly contemplates that such amendments shall be agreed to by the
deliberate, final, affirmative vote of the requisite number of the numbers of each house at a
regular session.

Construction of Constitution to Give Intended Effect Mandatory Character of Provisions.

Every word of a state constitution should be given its intended meaning and effect, and
essential provisions of a constitution are to be regarded as being mandatory. (Crawford vs.
Gilchrist, Ann. Cas., 1914 B, pp. 916, 917.)

El asunto de Crawford vs. Gilchrist se decidio en 1912. Enm 1934 otro asunto constitucional
importante, el de Gray contra Childs, se decidio en virtud de la autoridad y sentencia dictada en
dicho asunto de Crawford.
En el caso citado de Gray contra Childs (156 So. Rep., 274; Fla.), tambien se trataba de una
demanda de prohibicion para impedir la publicacion de una propuesta enmienda constitucional que
iba a ser sometida al electorado de Florida para su ratificacion o rechazamiento en una eleccion
general o plebiscito fijado para Noviembre, 1934. La enmienda habia sido aprobada por la Camara
de Representantes con el voto de tres quintos (3/5), pero en el Senado hubo cierta confusion acerca
del texto finalmente aprobado. La Legislatura, antes de clausurarse aprobo unafs resolucion
conjunta autotizando a ciertos oficiales de las Camaras para que despues de la clausura hiciesen
ciertas correciones enlas actas y en el diario de sesiones a fin de formar la verdaderahistoria de los
procedimientos y compulsar el textode la enmienda tal como habia sido aprobada. Se alegabaen la
demanda que esto era ilegal y anticonstitucional. Eltribunal de circuito estimo el recurso de
prohibicion. Elevado el asunto en apelacion para ante la Corte Suprema del Estado, la misma
confirmo la sentencia apelada concediendo el interdicto prohibitorio. Hed aqui los pronunciamientos
de la Corte que parecen estereotipados para el caso que nos ocupa, a saber:

(4,5) Section 1 of article 17 of our Constitution provides the method by which the Constitution
may be amended. It requires that a proposed amendment shall be entered upon the
respective Journals of the House of Representatives and of the Senate with the yeas and
nays showing a three-fifths vote in favor of such amendment by each House. The proposed
amendment here under consideration nowhere appears upon the Journals of the Senate,
and therefore it is unnecessary for us to consider any other questions presented or any
authorities cited.

The amendment of the organic law of the state or nation is not a thing to be lightly
undertaken not to be accomplished in a haphazard manner. It is a serious thing. When an
amendment is adopted, it becomes a part of the fundamental law of the land, and it may
mean the weal or woe of the future generations of the state wherein it becomes a part of the
fundamental law. We cannot say that the strict requirements pertaining to amendments may
be waived in favor of a good amendment and invoked as against a bad amendment. If the
Constitution may be amended in one respect without the amendment being spread upon the
Journals of one of the respective House of the Legislature, then it may be ameqnded in any
other respect in the same manner. It is not for the courts to determine what is a wise
proposed amendment or what is an unwise one. With the wisdom of the policy the courts
have nothing to do. But it is the duty of the courts, when called upon so to do, to determine
whether or not the procedure attempted to be adopted is that which is required by the terms
of the organic law.

Finding that the organic law has not been complied with, as above pointed out, the decree
appealed from should be, and the same is hereby, affirmed on authority of the opinion and
judgment in the case of Crawford vs. Gilchrist, 64 Fla., 41; 59 So., 953; Ann. Cas., 1914B,
9156. (Gray vs. Childs, 156 Southern Reporter, pp. 274, 279.)

Note se que la clausula sobre enmiendas en la Constitucion de Florida es semejante a la nuestra, a

saber: (1) la propuesta enmienda tiene que ser aprobada por la Legislatura, en Florida con el voto
de tres quintos (3/5) de los miembros, en Filipinas con el voto de tres cuartos (3/4); (2) los sies y los
nos tienen que hacersesd constar en el diario de sesiones (Articulo VI, seccion 10, inciso 4; seccion
20, inciso 1, Constitucion de Filipinas); (3) despues de aprobada la enmienda por la Legislatura se
somete al electorado en una eleccion o plebiscito, para su ratificacion orechazamiento.

El procedimiento sobre enmiendas prescrito en la Constitucion federal americana es diferente, a

saber: el Congreso puede proponer la enmienda bien (1) mediante la aprobacion de dos tercios
(2/3) de sus miembros; bien (2) mediante una convencion que se convocara al efecto apeticion de
las Legislaturas de dos tercios (2/3) de los diferentes Estados. En cualquiera de ambos casos la
enmiendasera valida para todos los efectos y fines comoparte de la Constitucion siempre que fuera
ratificada porlas Legislaturas de tres cuartos (3/4) de los Estados, o porconvenciones de tres
cuartas-partes de los mismos, segun que uno u otro modo de ratificacion hubiera sido propuestopor
el Congreso.

Esta diferencia de procedimientos es la que, segun digomas arriba, me inclina a sostener que la
jurisprudencia constitucional propiamente aplicable a Filipinas es la jurisprudencia de los Estados,
puesto que es con estos con los cuales tenemos analogia o paridad constitucional en lo que toca a
la forma y manera como se puede reformar la Constitucion.

Seguire ahora citando mas casos.

Tenemos un caso de Minnesota, identico a los ya citados de Florida. En el asunto de In

re McConaughy (106 Minn., 392; 119 N.W., 408), tambin se suscito la cuestion de si una propuesta
enmienda constitucional habia sido aprobada de acuerdo con los requisitos sealados en la
Constitucion de Minnesota. Alli como aqui tambien hubo disputa sobre si esto era una cuestion
judicial o una cuestion politica no justiciable. La Corte Suprema deaquel Estado declaro sin ambajes
que era una cuestion judicial. He aqui sus palabras que no tienen desperdicio:

The authorities are thus practically uniform in holding that whether a constitutional
amendment has been properly adopted according to the requirements of an existing
constitution is a judicial question. There can be little doubt that the consensus of judicial
opinion is to the effect that it is the absolute duty of the judiciary to determine whether the
constitution has been amended in the manner required by the constitution, unless a special
tribunal has been created to determine the question; and even then many of the courts hold
that the tribunal cannot be permitted to illegally amend the organic law. There is some
authority for the view that when the constitution itself creates a special tribunal, and confides
to it the exclusive power to canvass votes and declare the results, and makes the
amendment a part of the constitution as a result of such declaration by proclamation or
otherwise, the action of such tribunal is final and conclusive. It may be conceded that this is
true when it clearly appears that such was the intention of the people when they adopted the
constitution. The right to provide a special tribunal is not open to question; but it is very
certain that the people of Minnesota have not done so, and this fact alone eliminates such
cases as Worman vs. Hagan, 78 Md., 152; 27 Atl., 616; 21 L. R. A., 716, and
Miles vs. Badford, 22 Md., 170; 85 Am. Dec., 643, as authorities against the jurisdiction of
the courts. (In re McConaughy, 106 Minn., 392; 119 N. W., 408.)

Tambien tenemos un caso de Georgia. En el asunto de Hammond vs. Clark (136 Ga., 313; 71 S.E.,
479; 38 L.R.A.[N.S.], 77), se suscito igualmente una disputa sobre siuna enmienda habia sido
aprobada de acuerdo con los requisitos de la Constitucion era una cuestion judicial o no. La Corte
Suprema de aquel Estado declaro afirmativamente. He aqui su inequivoca pronunciamiento:

Counsel for plaintiff in error contended that the proclamation of the governor declaring that
the amendment was adopted was conclusive, and that the courts could not inquire into the
question. To this contention we cannot assent. The constitution is the supreme state law. It
provides how it may be amended. It makes no provision for exclusive determination by the
governor as to whether an amendment has been made in the constitutional method, and for
the issuance by him of a binding proclamation to that effect. Such a proclamation may be
both useful and proper, in order to inform the people whether or not a change has been
made in the fundamental law; but the constitution did not make it conclusive on that subject.
When the constitution was submitted for ratification as a whole, a provision was made for a
proclamation of the result by the governor. Const. art. 13, section 2, par. 2 (Civ. Code 1910,
 section 6613). But in reference to amendment there is no such provision. Const. article 13,
section 1, par. 1 (Civ. Code 1910, section 6610). In the absence of some other exclusive
method of determination provided by the constitution, the weight of authority is to the effect
that whether an amendment has been properly adopted according to the requirements of the
existing constitution is a judicial question. (Hammond vs. Clark, 136 Ga., 313; 71 S.E.,
479;38 L.R.A. [N.S.], 77.)

Tambien tenemos el siguiente case de Indiana:

(1) In the beginning we are confronted with the contention on the part of appellees that this
court has no jurisdiction to determine the questions in issue here. In the case of
Ellingham vs. Dye, 178 Ind., 336, 391; 99 N.E., 1, 21 (Ann. Cas. 1915C, 200), this court,
after reviewing many decisions as to the power of the courts to determine similar questions,
sums up the whole matter as follows:

"Whether legislative action is void for want of power in that body, or because the
constitutional forms of conditions have not been followed or have been violated (emphasis
supplied) may become a judicial question, and upon the courts the inevasible duty to
determine it falls. And so the power resides in the courts, and they have, with practical
uniformity, exercised the authority to determine the validity of the proposal, submission, or
ratification of change in the organic law. Such is the rule in this state" citing more than 40
decisions of this and other states.

(2) Appellees further contend that appellant has not made out a case entitling him to
equitable relief. The trial court found that the officers of the state, who were instructed with
the execution of the law, were about to expend more than $500,000 under the law, in
carrying out its provisions; indeed, it was suggested, in the course of the oral argument, that
the necessary expenditures would amount to more than $2,000,000. This court, in the case
of Ellingham vs. Dye, supra, involving the submission to the people of the Constitution
prepared by the Legislature, answered this same question contrary to the contention of
appellees. See pages 413 and 414 of that opinion. (186 Ind., 533; Bennett vs. Jackson,
North Eastern Reporter, Vol. 116, pp. 921, 922.)

Creo que la posicion de la jurisprudencia americana tanto federal como de Estado sobre este punto,
esto es, cuandoes judicial la cuestion y cuando no lo es, se halla bien definida en el tomo 12 del
Corpus Juris, en la parte que llevael encabezamiento de "Constitutional Law" y bajo el subepigrafe
que dice: "Adoption of Constitution and Amendments" (12 Corpus Juris, 880, 881). Es un
compendiocuidados amente elaborado en que se da un extracto de la doctrina con las citas sobre
autoridades al pie. Reproducire el compendio, pero omitiendo las citas para no alargar demasiado
esta disidencia: el que desee comprobarlas no tienemas que consultar el tomo. En realidad, leyendo
este extracto se ve que parece un resumen del extenso analisis que llevo hecho sobre la doctrina
tanto federal como estatal. Su meollo es, a saber: la cuestion de si o no una nueva constitucion se
ha adoptado la tienen que decidir los departamentos politicos del gobierno; pero la cuestion de si
una enmienda a una constitucion existente ha sido debidamente propuesta, adoptada y ratificada de
acuerdo con los requisitos provistos por la Constitucion, para que vengaa ser parte de la misma, es
una cuestion que los tribunales de justicia tienen que determinar y resolver, excepto cuandola
materia ha sido referida por la Constitucion a un tribunale special con poder para llegar una
conclusion final. He aqui el sinopsis:

SEC. 382. b. Adoption of Constitution and Amendments. Whether or not a new

constitution has been adopted is a question to be decided by the political departments of the
government. But whether an amendment to the existing constitution has been duly proposed,
 adopted, and ratified in the manner required by the constitution, as as to become part
thereof, is a question for the courts to determine, except where the matter has been
committed by the constitution to a special tribunal with power to make a conclusive
determination, as where the governor is vested with the sole right and duty of ascertaining
and declaring the result, in which case the courts have no jurisdiction to revise his decision.
But it must be made clearly to appear that the constitution has been violated before the court
is warranted in interfering. In any event, whether an entire constitution is involved, or merely
an amendment, the federal courts will not attempt to pass on the legality of such constitution
or amendment where its validity has been recognized by the political departments of the
state government, and acquiesced in by the state judiciary. (12 C.J., pp. 880, 881.)

VI

Otra razon que aduce la mayoria para desestimar el recusro es que la copia impresa de la
resolucion en cuestionaparece certificada por los presidentes de ambas Camaras del Congreso;
que en esa certificacion consta que dicha resolucion fue debidamente aprobada por el Congreso
conlos votos de las tres quintas-partes (3/5) de sus miembros; que, por tanto, la debida aprobacion
de dicha resolucion nose puede cuestionar, es una prueba concluyente para todoel mundo y para
los tribunales de justicia particularmente. Este argumento se funda en la doctrina inglesa llamada
"enrolled act doctrine," cuya traduccion mas aproximada al espaol es "doctrina de la ley impresa."
Esto, por unlado.

Por otro lado, la representacion de los recurrentes arguye que lo que rige y prevaleced en esta
jurisdiccion noes la doctrina inglesa o "enrolled act doctrine," sino ladoctrina americana que se
conoce con el nombre de "journalentry doctrine," en virtud de la cual la prueba de siuna ley o una
resolucion ha sido debidamente aprobadapor el Congreso debe buscarse en el diario de sesiones
mismo del Congreso. Lo que diga el diario de sesiones esconcluyente y final.

Los recurrentes tienen la razon de su parte. Este punto legal ya se resolvio por esta Corte en la
causa de los Estados Unidos contra Pons (34 Jur. Fil., 772), que ambaspartes discuten en sus
respectivos informes. Una de las defensas del acusado era que la Ley No. 2381 de la Legislatura
Filipina en virtud de la cual habia sido condenado era nula e ilegal porque so aprobo despues ya del
cierrede las sesiones especiales que tuvo lugar el 28 de Febrero de 1914, a las 12 de la noche; es
decir, que, en realidad de verdad, la aprobacion se efectuo el 1. de Marzo, puesla sesion sine
die del dia anterior se prolongo mediante una ficcion haciendose parar las manecillas del reloj a las
12 en punto de la noche. Esta Corte, sin necesidad deninguna otra prueba, examino el diario de
sesiones correspondientea la referida fecha 28 de Febrero, y habiendo hallado que alli constaba
inequivocamente haberse aprobadola mencionada ley en tal fecha, fallo que esta pruebaera final y
concluyente para las partes, para los tribunales y para todo el mundo. La Corte desatendio por
completoel "enrolled act," la copia impresa de la ley, pues dijo, asaber: "Pasando por alto la cuestion
relativa as si la Ley Impresa (Ley No. 2381), que fue aprobada por autorizacion legal, constituye
prueba concluyente sobre la fecha desu aprobacion, investigaremos si los Tribunales pueden
consultar otras fuestes de informacion, ademas de los diarios de las sesiones legislativas, para
determinar la fecha enque se cerraron las sesiones de la Legislatura, cuando talesdiarios son claros
y explicitos." Y la Corte dijo que nohabia necesidad de consultar otras fuestes, que el diario de
sesiones era terminante, definitivo; y asi fallo la causaen contra del apelante.

Y no era extrao que asi ocurriese: habia en la Corte una mayoria americana, familiarizada y
compenetrada naturalmente con la jurisprudencia pertinente de su pais Quede extrano habia, por
tanto, que aplicasen la doctrina americana, la doctrina del "journal entry," que es mas democratica,
mas republicana, en vez de la doctrina inglesa, el "enrolled act doctrine," que despues de todo tiene
ciertotinte monarquico, producto del caracter peculiar e influencia tradicionalista de las instituciones
inglesas? (Vease Rash vs. Allen, 76 Atl. Rep., 371; Del.) Firman, como se sabe, la decision el
ponente Sr. Trent, y los Magistrados Sres. Torres, Johnson, Moreland y Araullo, sin mingun
disidente.Y notese que cuando se promulgo esta sentencia todavia estaba en vigor el articulo 313
del Codigo de Procedimiento Civil, tal como estaba reformado por la Ley No. 2210. que entre otras
cosas proveia lo siguiente: ". . . Entendiendose, que en el caso de las Leyes de la Comisionde
Filipinas o de la Legislatura Filipina, cuando existeuna copia firmada por los Presidentes y los
secretarios de dichos cuerpos, sera prueba concluyente de las dispociones de la ley en cuestion y
de la debida aprobacion delas mismas." Que mejor prueba de la voluntad expresa, categorica, de
hacer prevalecer la doctrina americana sobrela doctrina inglesa? Lo mas comodo para esta
Cortehubiera sido aplicar el citado articulo 313 del Codigo de Procedimiento Civil. No lo hizo, paso
por alto sobreel mismo, yendo directamente al diario de sesiones dela Legislatura, tomando
conocimiento judicial del mismo. Si aqui hay algun respeto a la regla del stare decisis, estaes una
magnifica ocasion para demostrarlo. Una regla bien establecida no ha de abrogarse asi como asi;
sobretodo cuando de por medio anda la Constitucion como enel presente caso en que se ha
formulado ante nosotros la queja de que la ley fundamental ha sido violada en unrespecto muy
importante como es el capitulo sobre enmiendas, y la queja no solo no es temeraria sino que se
hallaapoyada en buenas y solidas razones.

Mas todavia: cuando se establecio la doctrina en lacitada causa de los Estados Unidos contra Pons
(1916, Agosto 12) adoptando en esta jurisdiccion la doctrina americana del "journal entry" en lugar
de la inglesa del "enrolled act," en nuestra Ley Organica que, por cierto, no era aun la Ley Jones
sino la Ley del Congreso de 1902, no habia ninguna disposicion que proveyera mandatoriamente
que en el diario de sesiones de la Legislatura sehiciesen constar los sies y los nos en la votacion de
cualquier proyecto de ley o resolucion, consignando especifica mentelos nombres de los miembros
que hayan votado enpro y en contra, ni tampoco habia ninguna disposicione statutoria a dicho
efecto. De modo que en aquella epoca el diario de sesiones de la Legislatura carecia aun de las
fuertes garantias de veracidad que ahora posee en virtud de esa disposicion que hace obligatoria la
constancia oconsignacion de los sies y nos, disposicion incorporada enla Constitucion del
Commonwealth, ahora de la Republica. (Vease Constitucion de Filipinas, Articulo VI, seccion 10,
inciso 4; seccion 20, incico 1; seccion 21, inciso 2.)

Sobre la derogacion del articulo 313 del Codigo de Procedimiento Civil no puede haber duda. Ese
articulo, que equivale a una regla de prueba, no se ha incorporado enel Reglamento de los
Tribunales. No tratandose de una regla fundada en un principio general y unanimemente
establecido, sino de algo peculiar aislado, acerca del cuallas autoridades estan divididas, con una
mayoria de los Estados de la Union americana decididamente en contra, suno inclusion en el
Reglamento de los Tribunales tiene queconsiderarse necesariamente como una derogacion.
Indudablemente esta Corte, al no incluir dicho articulo en el Reglamento de los Tribunales, ha
querido derogarlo en vistade los resuelto en la citada causa de Estados Unidos contraPons y de la
novisima disposicion insertada en la Constitucion del Commonwealth, ahora de la Republica, que
exige la consignacion en el diario de sesiones de los sies y nos en cada votacion final de proyecto
de ley o resolucion conjunta, con especificacion de los nombres de los que hasvotado.

Resulta evidente de lo expuesto que ahora existen masrazones para reafirmar en esta jurisdiccion
la doctrina americana del "journal entry" o "constancia en el diario desesiones" (1) porque el citado
seccion 313 del Codigo de Procedimiento Civil ya no rige con la vigencia del Reglamento de los
Tribunales; (2) porque esa disposicion denuestra Constitucion que hace obligatoria la consignacion
de los sies y nos en la votacion de cada bill o resolucion, con especificacion de los nombres de los
que hayan votado enfavor y en contra, hace del diario de sesiones la mejor prueba sobre
autenticidad de los actos legislativos y es, porconsiguiente, la ley sobre la materia en este pais, con
entera exclusion de la doctrina inglesa o "enrolled act doctrine."Las autoridades americanas son
contestes en que siempreque en un Estado de la Union Federal la Constitucioncontiene una
disposicion semejante a la nuestra sobre sies y nos la regla de prueba no es la copia impresa de la
leyo "enrolled act," sino el "journal entry" o constancia enel diario de sesiones.
(Vease Rash vs. Allen, supra.)

Aqui se podria dar por terminada toda discusion sobre este punto si no fuera porque los abogados
de los recurridos arguyen fuertemente en favor de la doctrina de la copia impresa o "enrolled act
doctrine," y la mayoria de esta Corte acepta sus argumentos. Se cita, sobre todo, el asunto federal
de Field vs. Clark en apoyo de la doctrina.

He examinado la jurisprudencia americana sobre este particular con toda la diligencia de que he
sido capaz y he llegado a la conclusion de que nuestros predecesores enesta Corte merecen todo
encomio por su indubitable aciertoal adoptar en esta jurisdiccion, en la causa de los Estados
Unidos contra Pons, supra, la doctrina americana del "journal entry" o constancia en el diario de
sesiones legislativas. No cabe duda de que esta doctrina es mas democratica, mas liberal, y
tambien mas humana y mas concorde con la realidad. La doctrina inglesa del "enrolled act" ocopia
impresa de la ley esta basada en el derecho comun y se adopto en Inglaterra donde, como se sabe,
no hay constitucion escrita y la forma de gobierno es monarquica,y se adopto en un tiempo en que
el poder del Parlamento que era tambien el mas alto tribunal de justicia, era absoluto y
transcendente y las restricciones sobre el mismo eran muy ligeras. Por eso un tribunal americano
ha dicho: "Because such a rule obtains as to the Parliament of Great Britain, under a monarchial
form of government, that cannot be regarded as a very potent reason for its application in this state,
where the will of the sovereign power hasbeen declared in the organic act."
(Vease Rash vs. Allen, supra, pag. 379; cito con frecuencia este asunto famoso de Delaware porque
es en el mismo donde he hallado una discusion mas acabada y comprensiva sobre ambas
doctrinas: la americana del "journal entry" y la inglesa del "enrolled act.")

Es indudable que el sesgo de la jurisprudencia americana hoy en dia es a favor de la doctrina del
"journal entry." Lo resuelto en el asunto federal de Field contra Clark, enque tanto enfasis ponen los
recurridos, no ha hecho mas que fortalecer ese giro, pues en dicho asunto va en vuelta lainferencia
de que cuando la Constitucion establece ciertos requisitos para la aprobacion de una ley o
resolucion, conla consignacion de los sies y nos y los nombres de los que han votado afirmativa y
negativamente, el diario de sesioneses el que rige y prevalece como modo e instrumento de
autenticacion. Por eso que en el asunto tipico y representativode Union Bank vs. Commissioners of
Oxford (199 N.C., 214; 25 S.E., 966; 34 L.R.A., 487), la Corte Supremade North Carolina ha
declarado lo siguiente.

According to the law it is well settled in nearly 100 well-adjudicated cases in the courts of last
resort in 30 states, and also by the Supreme Court of the United States, that when a state
Constitution prescribes such formalities in the enactment of laws as require a record of
the yeas and nays on the legislative journals, these journals are conclusive as against not
only a printed statute, published by authority of law, but also against a duly enrolled act. The
following is a list of the authorities, in number 93, sustaining this view either directly or by
very close analogy. . . . It is believed that no federal or state authority can be found in conflict
with them.

Decisions can be found, as, for instance, Carr. vs. Coke (116 N.C., 223; 22 S.E. 16; 28
L.R.A., 737; 47 Am. St. Rep., 801, supra, to the effect that, where the Constitution contains
no provision requiring entries on the journal of particular matters such, for example, as
calles of the yeas and nays on a measure in question the enrolled act cannot, in such
case, be impeached by the journals. That, however, is very different proposition from the one
involved here, and the distinction is adverted to in Field vs. Clark, 143 U.S., 671 (12 Sup. Ct.,
495; 36 Law. ed., 294. (Rash vs. Allen, 76 Atl. Rep., p. 377.)
Y en el asunto de Ottawa vs. Perkins la Corte Suprema de los Estados Unidos ha dicho lo siguiente:

But the Supreme Court of the United States, in the case of South Ottawa vs. Perkins, 94
U.S., 260; 24 Law., ed., 154, on appeal from the United States court for the Northern district
of Illinois (Mr. Justice Bradley delivering the opinion), said: "When once it became the settled
construction of the Constitution of Illinois that no act can be deemed a valid law, unless by
the journals of the Legislature it appears to have been regularly passed by both houses, it
became the duty of the courts to take judicial notice of the journal entries in that regard. The
courts of Illinois may decline to take that trouble, unless parties bring the matter to their
attention, but on general principles the question as to the existence of a law is a judicial one
and must be so regarded by the courts of the United States." (Rash vs. Allen, 76 Atl. Rep., p.
387.)

Se dice que el interest publico exige que el "enrolled act" o copia impresa de la ley firmada por los
Presidentes deambas Camaras del Congreso de declare concluyente y final, porque de otra manera
habria caos, confusion: cualquierase creeria con derecho a atacar la validez de una ley o resolucion,
impugnando la autenticidad de su aprobacion ode su texto. Pero esto pone en orden las siguientes
preguntas que se contestan por si mismas: ?no es el diariode sesiones un documento
constitucional, exigido por la Constitucion que se lleve por las dos camaras del Congreso,
controlado y supervisado por dichas camaras y por los oficiales de las mismas? que mejor garantia
de autenticidad, contra la falsificacion, que ese requerimiento constitucional de consignar
obligatoriamente en el diario, en la votacionde todo bill o resolucion, los sies y los nos, y
haciendoconstar los nombres tanto afirmativos como negativos? se ha producido por ventura caos
y confusion en los Estados americanos que han adoptado esta regla y que, segun admiten los
mismos recurridos, forman una decisiva mayoria? se acaso posible concebir que el sentido
americano, tan practico, tan utilitario, tan, realista, optase poruna regla que fuese origen de caos y
confusion? Prescindiendo ya de la jurisprudencia que, ya hemos visto, estadecididamente inclinada
a favor de la doctrina americana del "journal entry" ?que dicen los tratadistas mas autorizados, los
de nombradia bien establecida, y sobre todolos especialistas en derecho constitucional?

El Juez Cooley, en su celebrada obra sobre Constitutional Limitations, 7th ed., 193, dice lo siguiente
a favor del "journal entry rule":

Judge Cooley in his work on Constitutional Limitations (7th Ed., 193), says: "Each house
keeps a journal of its proceedings which is a public record, and of which the courts are at
liberty to take judicial notice. If it would appear from these journals that any act did not
receive the requisite majority, or that in respect to it the Legislature did not follow any
requirement of the Constitution or that in any other respect the act was not constitutionally
adopted, the courts may act upon this evidence, and adjudge the statute void. But whenever
it is acting in apparent performance of legal functions, every reasonable presumption is to be
made in favor of the action of a legislative body. It will not be presumed in any case, from the
mere silence of the journals, that either house has exceeded its authority, or disregarded a
constitutional requirement in the passage of legislative acts, unless when the Constitution
has expressly required the journals to show the action taken, as, for instance, where it
requires the yeas and nays to be entered."

Sutherland, en su tambien celebrada obra sobre Statutory Construction, seccion 46 y siguientes,

tambien sedeclara a favofr del "journal entry rule" con el siguiente pronunciamiento:

The presumption is that an act properly authenticated was regularly passed, unless there is
evidence of which the courts take judicial notice showing the contrary. The journals are
records, and, in all respects touching proceedings under the mandatory provisions of the
 Constitution, will be effected to impeach and avoid the acts recorded as laws and duly
authenticated, if the journals affirmatively show that these provisions have been disregarded.
. . . The journals by being required by the Constitution or laws, are record . . ..

When required, as is extensively the case in this country, by a paramount law, for the
obvious purpose of showing how the mandatory provisions of that law have been followed in
the methods and forms of legislation, they are thus made records in dignity, and are of great
importance. The legislative acts regularly authenticated are also records. The acts passed,
duly authenticated, and such journals are parallel records; but the latter are superior, when
explicit and conflicting with the other, for the acts authenticated speak decisively only when
the journals are silent, and not even then as to particulars required to be entered therein.
(Rash vs. Allen, 76 Atl. Rep., p. 378.)

Desde luego la opinion de Wigmore, en que se apoya la mayoria, merece toda clase de respetos.
Pero creo no seme tachara de parcial ni ligero si digo que sobre el punto constitucional que estamos
discutiendo, me inclino mas y doy mayor peso a la opinion del Juez Cooley y de Sutherland, por
razones obvias. Wigmore nunca pretendio serespecialista en derecho constitucional. Con mucho
tino elponente en el tantas veces citado asunto de Rash contra Allen dice lo siguiente de la opinion
del celebrado constitucionalista:

We have quoted Judge Cooley's language because of the great respect that his opinions
always command, and also because of the fact that it is upon the authority of his opinion
that many of the decisions in support of the American rule have been based. (Rash vs. Allen,
76 Atl. Rep., p. 378.)

Un detenido y minucioso examen de la jurisprudencia y de los tratados sobre el particular lleva a

uno al convencimiento de que la tendencia actual en America es a tomar la substancia, el fondo
mismo de las cosas en vez de la simpleforma, el caparazon, a prescindir del artificio, de la ficcion
legal, para ir a la realidad misma. Y no cabe duda deque el "enrolled act" se presta a veces a tener
mas apoyo en el artificio y ficcion legal, mientras que el diario desesiones, con las fuertes garantias
de autenticidad como las que se proveen en nuestra Constitucion y en Constituciones similares
americanas, reproduce y refleja la realidad de los hechos relativamente con mas exactitud y
fidelidad. Tomemos como ejemplo el presente caso. La copia impresade la resolucion cuestionada,
firmada por los Presidentes de ambas Camaras del Congreso, reza que la misma fueaprobada
debidamente con los votos de las tres cuartas-partes (3/4) del Congreso, pero esto no es mas que
unaopinion, una conclusion legal de los presidentes, pues noconsta en dicha copia impresa el
numero concreto de votos emitidos, ni el numero concreto de la totalidad de miembros actuales de
cada camara. Tampoco constan en dichacopia impresa, tal como manda la Constitucion, los sies y
nos de la votacion, con los nombres de los que votaron afirmativa y negativamente. Asi que, con
solo esa copiaimpresa a la vista, no podemos resolver la importantisima cuestion constitucional que
plantean los recurrentes, a saber: que la votacion fue anticonstitucional; que arbitrariamente fueron
excluidos de la votacion 11 miembros debidamente cualificados del Congreso 3 Senadores y 8
Representantes; que, por virtud de la exclusion ilegal y arbitraria de estos 11 miembros, el numero
de votos emitidosen cada camara a favor de la resolucion no llegani constituye las tres cuartas-
partes (3/4) que requiere la Constitucion; y que, por tanto, la resolucion es ilegal, anti-constitucional
y nula. Para resolver estas cuestiones, todastremendas, todas transcedentales, no hay mas
remedio queir al fondo, a las entraas de la realidad, y todo ello no sepuede hallar en el "enrolled
act," en la copia impresa dela ley, que es incolora, muda sobre el particular, sino enel diario de
sesiones donde con profusion se dan tales detalles. No es verdad que todo esto demuestra
graficamentela evidente, abrumadora superioridad del "journalentry" sobre el "enrolled act," como
medio de prueba?
Mi conclusion, pues, sobre este punto es que el giro dela legislacion jurisprudencia en los diferentes
Estados de la Union es decididamente en favor de la doctrina americana del "journal entry"; que en
Filipinas desde 1916 en que se promulgo la sentencia en la causa de Estados Unidos contra Pons
la regla es el "journal entry rule"; que esta regla se adopto por este Supremo Tribunal enun tiempo
en que estaba vigente el articulo 313 del Codigo de Procedimiento Civil y cuando el diario de
sesiones de la Legislatura no gozaba de los prestigios de que goza hoy, en virtud de las rigidas y
fuertes garantias sobre autenticidad de las votaciones legislativas provistas en nuestra Constitucion;
que ahora que el referido articulo 313 del Codigo de Procedimiento Civil ya ha sido derogado porel
Reglamento de los Tribunales y se hallan vigentes esasgarantias constitucionales que
son mandatorias, la reglaindiscutible y exclusiva sobre la materia es el "journal entry rule"' que la
regla americana es mas liberal y mas democratica que la regla inglesa, la cual tiene un evidente
sabormonarquico; que el puebo filipino jamas tolerara un sistemamonarquico o algo semejante; que
el cambiar de regla ahora es un paso muy desafortunado, un injustificado retroceso, un apoyo a la
reaccion y puede dar lugar a la impresionde que las instituciones de la Republica filipina tienden a
ser totalitarias; que la doctrina inglesa del "enrolled act" es un instrumento harto inadecuado,
ineficaz, para resolver conflictos constitucionales que se iran planteando ante los tribunales, e
inclusive puede fomentargroseros asaltos contra la Constitucion; que, por el contrario, la doctrina
americana del "journal entry" es amplia, eficaz, y permite que con toda libertad y desembarazose
puedan resolver los conflictos y transgresiones constitucionales, sin evasivas ni debilidades; y, por
ultimo, que nuestro deber, el deber de esta Corte, es optar por la doctrina que mejor asegure y
fomente los procesos ordenadosde la ley y de la Constitucion y evitef situaciones en que el
ciudadano se sienta como desamparado de la ley y dela Constitucion y busque la justicia por sus
propias manos.

VII

La mayoria, habiendo adoptado en este asunto una posicion inhibitoria, estima innecesario discutir
la cuestion de si los 3 Senadores y 8 Representantes que fueron excluidos de la votacion son o no
miembros del Congreso. Es decir, lo que debiera ser cuestion fundamental el leitmotiff, la
verdadera ratio decidendi en este caso se relegaa termino secundario, se deja sin discutir y sin
resolver. No puedo seguir a la mayoria en esta evasion: tengo que discutir este punto tan
plenamente como los otros puntos, si no mas, porque es precisamente lo principal el meollo del
caso.

Comencemos por el Senado. Los 3 Senadores excluido seran miembros actuales del Senado
cuando se voto la resolucion cuestionada, por las siguientes razones:

(a) Segun la estipulacion de hechos entre las partes y los ejemplares del diario de sesiones que
obran en autoscomo anexos, dichos Senadores fueron proclamados por la Comision de Elecciones
como electos juntamente con sus 21 compaeros. Despues de la proclamacion participaron en la
organizacion del Senado, votando en la eleccion del Presidente de dicho cuerpo. De hecho el
Senador Vera recibio 8 votos para Presidente contra el Senador Avelino que recibio 10. Tambien
participaron en algunos debates relativos a la organizacion.

(b) Tambien consta en la estipulacion de hechos y enel diario de sesiones que prestaron su
juramento de cargo ante Notarios particulares debidamente autorizados y calificados para
administrarlo, habiendose depositado dicho juramento en la secretaria del Senado. Se dice, sin
embargo, que ese juramento no era valido porque no se presto colectivamente, en union con los
otros Senadores. Esto es unerror. La Ley sobre la materia es el articulo 26 del Codigo
Administrativo Revisado, a saber:
 By whom oath of office may be administered. The oath of office may be administered by
any officer generally qualified to administer oath; but the oath of office of the members and
officers ofeither house of the legislature may also be administered by persons designated for
such purpose by the respective houses.

Este articulo es demasiado claro para necesitar mas comentarios. Es evidente que el Senador y
Representante puede calificarse prestando el juramento de su cargo antecualquier funcionario
autorizado para administrarlo; y la disposicion de que tambien pueden administrar ese juramento
personas designadas por cada camara es solo decaracter permisivo, opcional. Y la mejor prueba de
estoes que antes del advenimiento de la Republica el Senadodhabia reconocido la validez del
juramento de cargo prestadoante un Notario Publico por otros Senadores de la minoria los Sres.
Mabanag, Garcia, Confesor y Cabili. Amenos que estas cosas se tomen a broma, o la
arbitrariedadse erija en ley la ley de la selva, del mas fuerte no esconcebible que el juramento
ante Notario se declare validoen un caso y en otro se declared invalido, concurriendo lasmismas
circunstancias;

(c) Tambien consta, en virtud de la estipulacion de hechos y de los ejemplares del diario de
sesiones que obran en autos como anexos, que los Senadores Vera, Diokno y Romero han estado
cobrando todos sus sueldos y emolumentos como tales Senadores desde la inauguracion del
Senado hasta ahora, incluso naturalmente el tiempo en quese aprobo la resolucion cuestionada. Es
violentar demasiadola argucia el sostener que un miembro de una camara legislativa puede cobrar
todos sus haberes y emolumentos y, sin embargo, no ser legalmente miembro de la misma. El
vulgo, maestro en la ironia y en el sarcasmo, tiene unamanera cruda para pintar esta situacion
absurda: "Tiene, pero no hay". Como es posible que las camaras autoricen el desembolso de sus
fondos a favor de unos hombres que, segun se sostiene seriamente, no estan legalmente
cualificados para merecer y recibir tales fondos?

(d) Se arguye, sin embargo, que los Senadores Vera, Diokno y Romero no son miembros del
Senado porque, envirtud de la Resolucion Pendatun, se les suspendio el juramento y el derecho a
sus asientos. Respecto del juramento, ya hemos visto que era valido, segun la ley. Respecto dela
suspension del derecho al asiento, he discutido extensamente este punto en mi disidencia en el
asunto de Vera contra Avelino, supra, calificando de anticonstitucional ynula la suspension. Pero
aun suponiendo que la mismafuera valida, los recurrentes alegan y arguyen que no poreso han
dejado de ser miembros los suspendidos. La alegaciones acertada. La suspension no abate ni
anula lacalidad de miembro; solo la muerte, dimision o expulsion produce ese efecto
(vease Alejandrinocontra Quezon, 46 Jur. Fil., 100, 101; vease tambien United
States vs. Dietrich,126 Fed. Rep., 676). En el asunto de Alejandrino contra Quezon hemos
declarado lo siguiente:

Es cosa digna de observar que el Congreso de los Estados Unidos en toda su larga historia
no ha suspendido a ninguno de sus miembros.Y la razon es obvia. El castigo mediante
reprension o multavindica la dignidad ofendida de la Camara sin privar a los representados
de su representante; la expulsion cuando es permisiblevindica del mismo modo el honor del
Cuerpo Legislativo dando asi oportunidad a los representados de elegir a otro nuevo; pero la
suspension priva al distrito electoral de una representacion sin quese le de a ese distrito un
medio para llenar la vacante. Mediante la suspension el cargo continua ocupado, pero al
que lo ocupa se le ha impuesto silencio. (Alejandrino contra Quezon, 46 Jur. Fil.,100, 101.)

La posicion juridica y constitucional de los 8 Representantes excluidos de la votacion es todavia

mas firme.Consta igualmente, en virtud de la estipulacion de hechos y de los ejemplares del diario
de sesiones obrantes en autos, que dichos 8 Representantes tambien se calificaron, alinaugurarse
el Congreso, prestando el juramento de sucargo ante Notarios Publicos debidamente autorizados;
quesu juramento se deposito en la Secretaria de la Camara; que han estado cobrando desde la
inauguracion hasta ahoratodos sus sueldos y emolumentos, excepto dos los Representantes Taruc
y Lava que han dejado de cobrar desde hacealgun tiempo; que tambien han participado en algunas
deliberaciones, las relativas al proyecto de resolucion parasuspenderlos.

Pero entre su caso y el de los Senadores existe estadiferencia fundamental: mientras con respecto
a estos ultimosla Resolucion Pendatun sobre suspension llego aaprobarse adquiriendo estado
parlamentario, en la Camarade Representantes no ha habido tal cosa, pues la resolucionde
suspension se endoso a un comite especial para su estudioe investigacion, y hasta ahora la
Camara no ha tomadosobre ella ninguna accion, no favorable ni adversa. Demodo que en el caso
de los Representantes hasta ahora nohay suspension, porque de tal no puede calificarse la
acciondel Speaker y del macero privandoles del derecho detomar parte en las deliberaciones y
votaciones. Para queuna suspension produzca efectos legales y, sobre todo, constitucionales, tiene
que decret arla la Camara misma, pormedio de una resolucion debidamente aprobada, de
acuerdocon los requisitos provistos en la Constitucion. Nada deesto se ha hecho en la Camara.

El Articulo XV de nuestra Constitucion, sobre enmiendas, dice que "El Congreso, en sesion
conjunta, por el voto detres cuartas partes de todos los miembros del Senado y dela Camara de
Representantes votando separadamente, puede proponer enmiendas a esta Constitucion o
convocar unaconvencion para dicho efecto." Donde la ley no distingueno debemos distinguir. La
frase todos los miembros debeinterpretarse como que incluye todos los miembros elegidos, no
importa que esten ausentes o esten suspendidos; mas naturalmente cuando no estan suspendidos
como en el casode los ya citados 8 Representantes. El Juez Cooley, ensu ya citada
obra Constitutional Limitations, hace sobreeste particular los siguientes comentarios que son
terminantes para la resolucion de este punto constitucional, a saber:

For the votre required in the passage of any particular law the reader is referred to the
Constitution of his State. A simple majority of a quorum is sufficient, unless the Constitution
establishes some other rule; and where, by the Constitution, a two-thirds of three-fourths
vote is made essential to the passage of any particular class of bills, two-thids or three-
fourths of a quorum will be understood, unless the terms employed clearly indicate that this
proportion of all the members, or of all those elected, is intended. (A constitutional
requirement that the assent of two-thirds of the members elected to each house of the
legislature shall be requisite to every bill appropriating the public money or property for
localor private purposes, is mandatory, and cannot be evaded by calling a bill a "joint
resolution".)

(Footnote: "Such a requirement is too clear and too valuable to be thus frittered away."
Allen vs. Board of State Auditors, 122 Mich., 324; 47 L.R.A., 117.)

(Footnote: "By most of the constitutions either all the laws, or laws on some particular
subjects, are required to be adopted by a majority voted, or some other proportion of "all the
members elected," or of "the whole representation." These and similar phrases require all the
members to be taken into account whether present or not. Where a majority of all the
members elected is required in the passage of a law, an ineligible person is not on that
account to be excluded in the count. (Satterloo vs. San Francisco, 23 Cal.,314.)" (Cooley on
Constitutional Limitations, Vol. 1, p. 291.)

VIII

Los recurridos no cuestionan la personalidad o derecho de accion de los recurrentes para plantear
el presente litigio. Sin embargo, en nuestras deliberaciones algunos Magistrados han expresado
dudas sbore si los recurrentestien en interes legal suficiente y adecuado para demandar y, por
tanto, para invocar nuestra jurisdiccion en el presentecaso. La duda es si el interes que alegan los
recurrentesno es mas bien el general y abstracto que tiene cualquier otro ciudadano para defender
la integridad de la Constitucion, en cuyo caso seria insuficiente para demandarante los tribunales,
los cuales, segun el consenso de las autoridades, no estan establecidos para considerar y resolver
controversias academicas y doctrinales, sino conflictos positivos, reales, en que hay algun dano y
perjuicioo amago de dano y perjuicio.

Creo que la personalidad o derecho de accion de losrecurrentes es incuestionable. En primer lugar,

11 de ellosson miembros del Congreso, y alegan que se les privo delderecho de votar al
considerarse la resolucion cuestionaday que si se les hubiese permitido votar dicha resolucion no
hubiese obtenido la sancion de las tres cuartas-partes (3/4) que requiere la Constitucion. Que
mayor interes legalque este? Ellos dicen que sus votos hubieran sido decisivos, que con su
intervencion parlamentaria hubies en salvado alpaid de lo que consideran amago de una tremenda
calamidad publica la concesion de iguales derechos a los americanos para explotar nuestros
recursos naturales y utilidades publicas. No es este amago de dano, para ellos individualmente y
para el pais colectivamentem, adecuado y suficiente para crear un interes legal? En el asunto de
Coleman vs. Miller, supra, se suscito esta misma cuestion y se resolvio a favor de los recurrentes.
Como ya hemos visto, estos eran 20 Senadores del Estado de Kansas que alegaban que en la
propuesta ratificacion de la 18. Enmienda a la Constitucion Federal sus votos que daron abatidos
por elvoto decisivo del Teniente Gobernador. La Corte Federal declaro que esto constituia interes
legal suficiente y adecuado.

En segundo lugar, los recurrentes alegan ser ciudadanos, electores y contribuyentes de Filipinas.
Naturalmente, como tales tienen derecho a participar en la explotacion de nuestros recursos
naturales y operacion de utilidades publicas, con exclusion de los americanos y otros extranjeros.
De ello se sigue logicamente que cualguier actolegislativo que anule y abrogue esa exclusividad
afectarapersonalmente a sus derechos, amagandolos de un probable perjuicio. Esto, a mi juicio,
crea un interes legalade cuado u suficiente para litigar. Esto no es un interesmeramente academico,
abstracto. (Vease Hawke vs.Smith, 253 U.S., 221, 227; 64 Law. ed., 871, 875; 40 Sup.Ct., 495; 10
A. L. R., 1504; veanse tambien Leser vs.Garnett, 258 Ud.S., 130, 137; 66 Law. ed., 505, 571; 42
Sup.Ct., 217; Coleman vs. Miller, 122 A. L. R., 698.)

En el asunto de Hawke vs. Smith, supra, el demandante alegaba ser "ciudadano y elector del
Estado de Ohio, y comoelector y contribuyente del Condado de Hamilton, en sunombre y en el de
otros similarmente situados, presento una solicitud de prohibicion ante el tribunal del Estado para
que se prohibiera al Secretario de Estado a que gastara fondos publicos en la preparacion e
impresion de balotaspara la sumision al electorado de la 18. Enmienda a la Constitucion Federal
para su ratificacion. La Corte Suprema Federal fallo que el demandante tenia intereslegal y, por
tanto, personalidad y derecho de accion para demandar.

En el asunto de Leser vs. Garnett, supra, los demandantes alegaban ser electores cualificados de
Maryland y solicitaban la exclusion de ciertas mujeres del censo electoralpor el fundamento de que
la Constitucion de Maryland limitaba el sufragio a los varones y la 19. Enmiendaa la Constitucion
Federal no habia sido validamente ratificadaa. Lo Corte Suprema Federal fallo tambien que los
demandantes tenian interes legal suficiente y adecuado.

IX

Cuando se celebraron las audiencias en este asunto sele pregunto a uno de los abogados de los
recurridos, creo que el mismo Secretario de Justicia, cual seria el remedio legal para los
recurrentes, ya que se sostiene que en elpresente caso se trate de una materia no judicial,
injusticiable, y, que, por tanto, los tribunales nada tienen que hacer. El Secretario de Justicia
contesto: ninguno. Lounico que los recurrentes pueden hacer es esperar las elecciones y plantear el
caso directamente ante el pueblo, unico juez en las controversias de caracter politico. Esto mismose
dijo en el caso de Vera contra Aveino, supra, y reiterolo que alli he dicho sobre este argumento, a
saber:

Solo nos queda por considerar el argumento deprimente, desalentadorde que el caso que
nos ocupa no tiene remedio ni bajo la Constitucion ni bajo las leyes ordinarias. A los
recurrentes se lesdice que no tienen mas que un recurso: esperar laas elecciones y plantear
directamente la cuestion ante el pueblo elector. Si los recurrentes tienen razon, el pueblo les
reivindicara eligiendoles o elevandoa su partido al poder, repudiando, en cambio, a los
recurridoso a su partido. Algunas cosas se podrian decir acerca de este argumento. Se
podria decir, por ejemplo, que el remedio no es expeditoni adecuado porque la mayoria de
los recurridos han sido elegidos para un periodo de seis anos, asi que no se les podra exigir
ninguna responsabilidad por tan largo tiempo. Se podria decir tambien que en una eleccion
politica entran muchos factores, y es posible quela cuestion que se discute hoy, con ser tan
fervida y tan palpitante, quede, cuando llegue el caso, obscurecida por otros "issues"
maspresionantes y decisivos. Tambien se podria decir que, independientemente de la
justicia de su cuasa, un partido minoritario siemprelucha con desventaja contra el partido
mayoritario.

Pero, a nuestro juicio, la mejor contestacion al argumento esque no cabe concebir que los
redactores de la Constitucion filipina hayan dejado en medio de nuestro sistema de gobierno
un peligros ovacio en donde quedan paralizados los resortes de la Constituciony de la ley, y
el ciudadano queda inerme, impotente frente a lo que el considera flagrante transgresion de
sus derechos. Los redactoresde la Constitucion conocian muy bien nuestro sistema de
gobierno sistema presidencial. Sabian muy bien que este no tiene la flexibilidaddel tipo
ingles el parlamentario. En Inglaterra y en lospaises que siguen su sistema hay una
magnifica valvula de seguridad politica; cuando surge una grave crisis, de esas que
sacudenlos cimientos de la nacion, el parlamento se disuelve y se convocanelleciones
generales para que el pueblo decida los grandes "issues" del dia. Asi se consuman
verdaderas revoluciones, sin sangre, sin violencia. El sistema presidential no tiene esa
valvula. El periodo que media de eleccion a eleccion es inflexible. Entre nosotros,
porejemplo, el periodo es de seis aos para el Senado, y de cuatro aos para la Camara de
Representantes y los gobiernos provinciales y municipales. Solamente se celebran
elecciones especiales para cubrir vacantes que ocurran entre unas elecciones generalesy
otras. Se comprendera facilmente que bajo un sistema asi esharto peligroso, es jugar con
fuego el posibilitar situaciones dondeel individuo y el pueblo no puedan buscar el amparo de
la Constitucion y de las leyes, bajo procesos ordenados y expeditos, paraprotegar sus
derechos. (Vera contra Avelino, pags. 363, 364.)

Fued Jefferson quien dijo que como medida de higiene politicaera conveniente que el pueblo
americano tuviera una revolucion cada veinte aos. Parece que el gran democratadijo esto no por el
simple prurito de jugar con laparadoja, con la frase, sino convencido de que la revoluciones el mejor
antidoto para la tirania o los amagos de tirania.

Grande como es el respeto que merecen las opiniones delinmortal autor de la Decaraction de
Independencia, creoque la revolucion es siempre revolucion, la violencia es siempre violencia: caos,
confusion, desquiciamiento de los resortes politicos y sociales, derramamiento de sangre, perdidade
vidas y haciendas, etcetera, etcetera. Asi que normalmente ninguno puede desear para su pais la
violencia, aun en nombre de la vitalidad, de la salud publica.
Estoy convencido de que el mejor ideal politico es la revolucionsin sangre, esa que no pocas veces
se ha consumado v. gr. en la historia contemporanea de Inglaterra, yaun de America misma. Y ese
ideal es perfectamente realizable permitiendo el amplio juego de la Constitucion y delas leyes,
evitando pretextos a la violencia, y no posibilitando situaciones de desamparo y desesperacion.

Por eso creo sinceramente que la mejor politica, la mejordoctrina judicial es la que en todo tiempo
encauza y fomentalos procesos ordenados de la Constitucion y de la ley.

Footnotes

PERFECTO, J., dissenting:

1 Omitted.

BRIONES, M., con quien esta conforme FERIA, M., dissidente:

1 Jose O. Vera, Ramon Diokno y Jose E. Romero.

2Senadores: Alejo Mabanag, Carlos P. Garcia, Eulogio Rodriguez, Tomas Confesor, Tomas
Cabili, Jose O. Vera, Ramon Diokno, y Jose E. Romero.

Representantes: Juvenal Almendras, Paulino Alonzo, Apolinario Cabigon, Floro Crisologo,

Gabriel Dunuan, Cosme B. Garcia, Agustin Y. Kintanar, Vicente Logarta, Francisco A.
Perfecto, Cipriano P. Primicias, Nicolas Rafols, Jose V. Rodriguez, Juan de G. Rodriguez,
Felixberto M. Serrano, Conrado Singson, George K. Tait, y Leandro A. Tojong.

Presidentes de Partido: Jose O. Vera, Jesus G. Barrera, Emilio Javier y Sofronio Quimson,
Nacionalista Party, Democratic Alliance, Popular Front y Philippine Youth Party,
respectivamente.

3Comision de Elecciones: Jose Lopez Vito, Francisco Enage y Vicente de Vera,

respectivamente.

Marciano Guevara, Paciano Dizon y Pablo Lucas, Tesorero, Auditor y Director de Imprenta,
respectivamente.

4 La politica de nacionalizacion de la recursos naturales yutilidades publicas incorporada en

nuestra Constitucion no es unapolitica nueva, sino que trae su origen de nuestro pasado
remoto, dela historia colonial misma de Espaa en Filipinas. Los primeros conflictos de los
filipinos con los conquistado es tenian por causala propiedad de la tierra; los filipinos se
esforzaban por reivindicarel dominio del suelo que creian detentado por los colonizadores.
Estos conflictos fueron agravandose con el tiempo condensan dose enla formidable cuestion
agraria que en las postrimerias del siglo diecinueve fue enm gran parte la causa de la
revolucion contra Espaa. Lass campanas de Rizal y de los laborantes, y el Katipunan de
Bonifacio tomaron gran parte de su fuerza, de su valor combativo, delos agravios
provocados por la cuestion agraria. La Liga Filipinade Rizal estaba fundamentalmente
basada en un ideario economico nacionalista, de control y dominio sobre la riqueza y
recursos delpais.
"Cuando America establecio aqui su soberania su mayor acierto consistio en echar los
cimientos de su politica fundamental de 'Filipinas para los filipinos.' Primero el Presidente
McKinley, y despues los Presidentes Taft y Wilson, consolidaron esta politica. El
congresoaprobo leyes tendentes a la conservacion de terrenos publicos yrecursos naturales,
entre ellas la Ley de 1. de Julio de 1902 conocida por Ley Cooper. En estas leyes se
limitaba y restringia la adquisiciony uso de bienes de dominio publico por particulares.

"Una pruebaf palmaria del celo del Congreso americano por mantener rigidamente la politica
de conservacion del patrimonio delos filipinos fue la investigacion congresional provocada
por el Congresista Martin, de Colorado, en relacion con la venta de terrenos delos frailes en
Mindoro, a una compaia americana en exceso de las 1,024 hectareas fijadas en las leyes
de terrenos publicos. Esto diolugar a uno de los episodios mas famosos en la carrera del
Comisionado Residente Quezon. Este relata su campaa en su autobiografia 'The Good
Fight,' a saber:

"'My next address to Congress took place when a congressional investigation was being
urged by Congressman Martin of Colorado to determine how the Government of the
Philippines was carrying out the policy laid down by Congress, that limited to 1024 acres the
maximum area of government land that could be sold to corporations or individuals. This law
had been enacted soon after the United States has taken the Philippines to prevent the
exploitation of the Filipino people by capitalists, whether foreigners or natives. American
capital interested in the sugar industry has acquired two very large tracts of land which the
Philippine Government had bought from the friars with the funds bonds issued under the
security of the Philippine Government. The avowed purpose in buying these extensive
properties from the Spanish religious orders was to resell them in small lots to Filipino
farmers, and thus to do away with absentee landlordism which had been the most serious
cause of the Philippine rebellion against Spain. The reason given for the sale of these lands
to American capital by the American official in charge of the execution of the congressional
policy were two-fold: First, that the act of Congress referred only to lands of the public
domain not to lands acquired by the Government in some other way. And second, that the
sale of these lands was made in order to establish the sugar industry in the Philippines on a
truly grand scale under modern methods, as had been done in Cuba. It was further alleged
that such a method would bring great prosperity to the Philippines.

"'I spoke in support of the proposed investigation, contending that the establishment of the
sugar industry under those conditions would mean the debasement of the Filipinos into mere
peons. 'Moreover,' I argued, 'large investments of American capital in the Philippines will
inevitably result in the permanent retention of the Philippines by the United States.' At the
climax of ny speech I roared: If the preordained fate of my country is either to be a subject
people but rich, or free but poor, I am unqualifiedly for the latter.'

"'The investigation was ordered by the House of Representatives, and although the sales
already made were not annulled, no further sales were made in defiance of the
Congressional Act. (The Good Fight, by President Quezon, pp. 117-119.)'

"Para implementar la politica de nacionalizacion el gobierno filipino bajo la Ley Jones y la

Ley del Commonwealth fundo con una gruesa capitalizacion las corporaciones economicas
del Estado comoel Philippine National Bank, National Development Company, National
Cement Company, National Power Corporation, y otras.

"Para reglamentar y supervisar las utilidades y servicios publicos se creo la Comision de

Servicios Publicos."
 Mabanag vs Lopez Vito (G.R. NO. L-1123)
Posted: July 25, 2011 in Case Digests

0
Journal Adoption of the Enrolled Bill Theory

FACTS: Petitioners include 3 senators and 8 representatives. The three senators were suspended by senate due to election

irregularities. The 8 representatives were not allowed to take their seat in the lower House except in the election of the House

Speaker. They argued that some senators and House Reps were not considered in determining the required vote (of each house)

in order to pass the Resolution (proposing amendments to the Constitution) which has been considered as an enrolled bill by

then. At the same time, the votes were already entered into the Journals of the respective House. As a result, the Resolution was

passed but it could have been otherwise were they allowed to vote. If these members of Congress had been counted, the

affirmative votes in favor of the proposed amendment would have been short of the necessary three-fourths vote in either branch

of Congress. Petitioners filed or the prohibition of the furtherance of the said resolution amending the constitution. Respondents

argued that the SC cannot take cognizance of the case because the Court is bound by the conclusiveness of the enrolled bill or

resolution.

ISSUE: Whether or not the Court can take cognizance of the issue at bar. Whether or not the said resolution was duly enacted by

Congress.

HELD: As far as looking into the Journals is concerned, even if both the journals from each House and an authenticated copy of

the Act had been presented, the disposal of the issue by the Court on the basis of the journals does not imply rejection of the

enrollment theory, for, as already stated, the due enactment of a law may be proved in either of the two ways specified in section

313 of Act No. 190 as amended. The SC found in the journals no signs of irregularity in the passage of the law and did not bother

itself with considering the effects of an authenticated copy if one had been introduced. It did not do what the opponents of the

rule of conclusiveness advocate, namely, look into the journals behind the enrolled copy in order to determine the correctness of

the latter, and rule such copy out if the two, the journals and the copy, be found in conflict with each other. No discrepancy

appears to have been noted between the two documents and the court did not say or so much as give to understand that if

discrepancy existed it would give greater weight to the journals, disregarding the explicit provision that duly certified copies

shall be conclusive proof of the provisions of such Acts and of the due enactment thereof.
**Enrolled Bill that which has been duly introduced, finally passed by both houses, signed by the proper officers of each,

approved by the president and filed by the secretary of state.

Section 313 of the old Code of Civil Procedure (Act 190), as amended by Act No. 2210, provides: Official documents may be

proved as follows: . . . (2) the proceedings of the Philippine Commission, or of any legislatives body that may be provided for in

the Philippine Islands, or of Congress, by the journals of those bodies or of either house thereof, or by published statutes or

resolutions, or by copies certified by the clerk of secretary, or printed by their order; Provided, That in the case of Acts of the

Philippine Commission or the Philippine Legislature, when there is an existence of a copy signed by the presiding officers and

secretaries of said bodies, it shall be conclusive proof of the provisions of such Acts and of the due enactment thereof.

The SC is bound by the contents of a duly authenticated resolution (enrolled bill) by the legislature. In case of conflict, the

contents of an enrolled bill shall prevail over those of the journals.

epublic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-17931 February 28, 1963

CASCO PHILIPPINE CHEMICAL CO., INC., petitioner,

vs.
HON. PEDRO GIMENEZ, in his capacity as Auditor General of the Philippines,
and HON. ISMAEL MATHAY, in his capacity as Auditor of the Central Bank, respondents.

Jalandoni & Jamir for petitioner.

Officer of the Solicitor General for respondents.

CONCEPCION, J.:

This is a petition for review of a decision of the Auditor General denying a claim for refund of
petitioner Casco Philippine Chemical Co., Inc.

The main facts are not disputed. Pursuant to the provisions of Republic Act No. 2609, otherwise
known as the Foreign Exchange Margin Fee Law, the Central Bank of the Philippines issued on July
1, 1959, its Circular No. 95. fixing a uniform margin fee of 25% on foreign exchange transactions. To
supplement the circular, the Bank later promulgated a memorandum establishing the procedure for
applications for exemption from the payment of said fee, as provided in said Republic Act No. 2609.
Several times in November and December 1959, petitioner Casco Philippine Chemical Co., Inc.
which is engaged in the manufacture of synthetic resin glues, used in bonding lumber and veneer by
plywood and hardwood producers bought foreign exchange for the importation of urea and
formaldehyde which are the main raw materials in the production of said glues and paid
therefor the aforementioned margin fee aggregating P33,765.42. In May, 1960, petitioner made
another purchase of foreign exchange and paid the sum of P6,345.72 as margin fee therefor.

Prior thereto, petitioner had sought the refund of the first sum of P33,765.42, relying upon Resolution
No. 1529 of the Monetary Board of said Bank, dated November 3, 1959, declaring that the separate
importation of urea and formaldehyde is exempt from said fee. Soon after the last importation of
these products, petitioner made a similar request for refund of the sum of P6,345.72 paid as margin
fee therefor. Although the Central Bank issued the corresponding margin fee vouchers for the refund
of said amounts, the Auditor of the Bank refused to pass in audit and approve said vouchers, upon
the ground that the exemption granted by the Monetary Board for petitioner's separate importations
of urea and formaldehyde is not in accord with the provisions of section 2, paragraph XVIII of
Republic Act No. 2609. On appeal taken by petitioner, the Auditor General subsequently affirmed
said action of the Auditor of the Bank. Hence, this petition for review.

The only question for determination in this case is whether or not "urea" and "formaldehyde" are
exempt by law from the payment of the aforesaid margin fee. The pertinent portion of Section 2 of
Republic Act No. 2609 reads:

The margin established by the Monetary Board pursuant to the provision of section one
hereof shall not be imposed upon the sale of foreign exchange for the importation of the
following:.

xxx xxx xxx

XVIII. Urea formaldehyde for the manufacture of plywood and hardboard when imported by
and for the exclusive use of end-users.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted
and approved by this Honorable Court, without prejudice to the parties adducing other
evidence to prove their case not covered by this stipulation of facts.1w ph1.t

Petitioner maintains that the term "urea formaldehyde" appearing in this provision should be
construed as "urea andformaldehyde" (emphasis supplied) and that respondents herein, the Auditor
General and the Auditor of the Central Bank, have erred in holding otherwise. In this connection, it
should be noted that, whereas "urea" and "formaldehyde" are the principal raw materials in the
manufacture of synthetic resin glues, the National Institute of Science and Technology has
expressed, through its Commissioner, the view that:

Urea formaldehyde is not a chemical solution. It is the synthetic resin formed as a

condensation product from definite proportions of urea and formaldehyde under certain
conditions relating to temperature, acidity, and time of reaction. This produce when applied in
water solution and extended with inexpensive fillers constitutes a fairly low cost adhesive for
use in the manufacture of plywood.

Hence, "urea formaldehyde" is clearly a finished product, which is patently distinct and different from
urea" and "formaldehyde", as separate articles used in the manufacture of the synthetic resin known
as "urea formaldehyde". Petitioner contends, however, that the bill approved in Congress contained
the copulative conjunction "and" between the terms "urea" and "formaldehyde", and that the
members of Congress intended to exempt "urea" and "formaldehyde" separately as essential
elements in the manufacture of the synthetic resin glue called "urea" formaldehyde", not the latter as
a finished product, citing in support of this view the statements made on the floor of the Senate,
during the consideration of the bill before said House, by members thereof. But, said individual
statements do not necessarily reflect the view of the Senate. Much less do they indicate the intent of
the House of Representatives (see Song Kiat Chocolate Factory vs. Central Bank, 54 Off. Gaz., 615;
Mayon Motors Inc. vs. Acting Commissioner of Internal Revenue, L-15000 [March 29, 1961]; Manila
Jockey Club, Inc. vs. Games & Amusement Board, L-12727 [February 29, 1960]). Furthermore, it is
well settled that the enrolled bill which uses the term "urea formaldehyde" instead of "urea and
formaldehyde" is conclusive upon the courts as regards the tenor of the measure passed by
Congress and approved by the President (Primicias vs. Paredes, 61 Phil. 118, 120; Mabanag vs.
Lopez Vito, 78 Phil. 1; Macias vs. Comm. on Elections, L-18684, September 14, 1961). If there has
been any mistake in the printing ofthe bill before it was certified by the officers of Congress and
approved by the Executive on which we cannot speculate, without jeopardizing the principle of
separation of powers and undermining one of the cornerstones of our democratic system the
remedy is by amendment or curative legislation, not by judicial decree.

WHEREFORE, the decision appealed from is hereby affirmed, with costs against the petitioner. It is
so ordered.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala
and Makalintal, JJ., concur.

Casco Philippine Chemical Co.,

Inc. vs Pedro Gimenez
January 9, 2012

No comments

Facebook

Twitter

Pinterest

LinkedIn

Email

ADVERTISEMENTS
 7 SCRA 347 Political Law Journal Conclusiveness of the Enrolled Bill
Casco Philippine Chemical Co., Inc. (Casco) was engaged in the production of synthetic
resin glues used primarily in the production of plywood. The main components of the said
glue are urea and formaldehyde which are both being imported abroad. Pursuant to a
Central Bank circular, Casco paid the required margin fee for its imported urea and
formaldehyde. Casco however paid in protest as it maintained that urea and formaldehyde
are tax exempt transactions. The Central Bank agreed and it issued vouchers for refund.
The said vouchers were submitted to Pedro Gimenez, the then Auditor General, who denied
the tax refund. Gimenez maintained that urea and formaldehyde, as two separate and
distinct components are not tax exempt; that what is tax exempt is urea formaldehyde (the
synthetic resin formed by combining urea and formaldehyde). Gimenez cited the provision
of Sec. 2, par 18 of Republic Act No. 2609 which provides:
The margin established by the Monetary Board pursuant to the provision of section one
hereof shall not be imposed upon the sale of foreign exchange for the importation of the
following:
xxx xxx xxx
XVIII. Urea formaldehyde for the manufacture of plywood and hardboard when imported
by and for the exclusive use of end-users.
Casco however averred that the term urea formaldehyde appearing in this provision
should be construed as urea and formaldehyde. It further contends that the bill approved
in Congress contained the copulative conjunction and between the terms urea and,
formaldehyde, and that the members of Congress intended to exempt urea and
formaldehyde separately as essential elements in the manufacture of the synthetic resin
glue called urea formaldehyde, not the latter a finished product, citing in support of this
view the statements made on the floor of the Senate, during the consideration of the bill
before said House, by members thereof.
The enrolled bill however used the term urea formaldehyde
ISSUE: Whether or not the term urea formaldehyde should be construed as urea and
formaldehyde.
HELD: No. Urea formaldehyde is not a chemical solution. It is the synthetic resin formed as
a condensation product from definite proportions of urea and formaldehyde under certain
conditions relating to temperature, acidity, and time of reaction. Urea formaldehyde is
clearly a finished product, which is patently distinct and different from urea and
formaldehyde, as separate articles used in the manufacture of the synthetic resin known
as urea formaldehyde.
The opinions or statements of any member of Congress during the deliberation of the said
law/bill do not represent the entirety of the Congress itself. What is printed in the enrolled
bill would be conclusive upon the courts. The enrolled bill which uses the term urea
formaldehyde instead of urea and formaldehyde is conclusive upon the courts as
regards the tenor of the measure passed by Congress and approved by the President. If
there has been any mistake in the printing of the bill before it was certified by the officers of
Congress and approved by the Executive on which the SC cannot speculate, without
jeopardizing the principle of separation of powers and undermining one of the cornerstones
of our democratic system the remedy is by amendment or curative legislation, not by
judicial decree.