EN BANC

[G.R. No. 142801-802. July 10, 2001]

BUKLOD NG KAWANING EIIB, CESAR POSADA, REMEDIOS G. PRINCESA, BENJAMIN KHO, BENIGNO MANGA, LULU
MENDOZA, petitioners, vs. HON. EXECUTIVE SECRETARY RONALDO B. ZAMORA, HON. SECRETARY JOSE PARDO,
DEPARTMENT OF FINANCE, HON. SECRETARY BENJAMIN DIOKNO, DEPARTMENT OF BUDGET AND MANAGEMENT,
HON. SECRETARY ARTEMIO TUQUERO, DEPARTMENT OF JUSTICE, respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

In this petition for certiorari, prohibition and mandamus, petitioners Buklod Ng Kawaning EIIB, Cesar Posada, Remedios
Princesa, Benjamin Kho, Benigno Manga and Lulu Mendoza, for themselves and in behalf of others with whom they share a
common or general interest, seek the nullification of Executive Order No. 191i[1] and Executive Order No. 223ii[2] on the
ground that they were issued by the Office of the President with grave abuse of discretion and in violation of their constitutional
right to security of tenure.

The facts are undisputed:

On June 30, 1987, former President Corazon C. Aquino, issued Executive Order No. 127iii[3] establishing the Economic
Intelligence and Investigation Bureau (EIIB) as part of the structural organization of the Ministry of Finance.iv[4] The EIIB was
designated to perform the following functions:

(a) Receive, gather and evaluate intelligence reports and information and evidence on the nature, modes and extent of
illegal activities affecting the national economy, such as, but not limited to, economic sabotage, smuggling, tax evasion, and
dollar-salting, investigate the same and aid in the prosecution of cases;

(b) Coordinate with external agencies in monitoring the financial and economic activities of persons or entities, whether
domestic or foreign, which may adversely affect national financial interest with the goal of regulating, controlling or
preventing said activities;

(c) Provide all intelligence units of operating Bureaus or Offices under the Ministry with the general framework and
guidelines in the conduct of intelligence and investigating works;

(d) Supervise, monitor and coordinate all the intelligence and investigation operations of the operating Bureaus and Offices
under the Ministry;

(e) Investigate, hear and file, upon clearance by the Minister, anti-graft and corruption cases against personnel of the
Ministry and its constituents units;

(f) Perform such other appropriate functions as may be assigned by the Minister or his deputies.v[5]

In a desire to achieve harmony of efforts and to prevent possible conflicts among agencies in the course of their anti-smuggling
operations, President Aquino issued Memorandum Order No. 225 on March 17, 1989, providing, among others, that the EIIB
shall be the agency of primary responsibility for anti-smuggling operations in all land areas and inland waters and waterways
outside the areas of sole jurisdiction of the Bureau of Customs.vi[6]

Eleven years after, or on January 7, 2000, President Joseph Estrada issued Executive Order No. 191 entitled Deactivation of the
Economic Intelligence and Investigation Bureau.vii[7] Motivated by the fact that the designated functions of the EIIB are also
being performed by the other existing agencies of the government and that there is a need to constantly monitor the overlapping
of functions among these agencies, former President Estrada ordered the deactivation of EIIB and the transfer of its functions to
the Bureau of Customs and the National Bureau of Investigation.

Meanwhile, President Estrada issued Executive Order No. 196viii[8] creating the Presidential Anti-Smuggling Task Force
Aduana.ix[9]

Then the day feared by the EIIB employees came. On March 29, 2000, President Estrada issued Executive Order No. 223x[10]
providing that all EIIB personnel occupying positions specified therein shall be deemed separated from the service effective April
30, 2000, pursuant to a bona fide reorganization resulting to abolition, redundancy, merger, division, or consolidation of
positions.xi[11]

Agonizing over the loss of their employment, petitioners now come before this Court invoking our power of judicial review of
Executive Order Nos. 191 and 223. They anchor their petition on the following arguments:

Executive Order Nos. 191 and 223 should be annulled as they are unconstitutional for being violative of Section 2(3),
Article IX-B of the Philippine Constitution and/or for having been issued with grave abuse of discretion amounting to
lack or excess of jurisdiction.

B.

The abolition of the EIIB is a hoax. Similarly, if Executive Order Nos. 191 and 223 are considered to effect a
reorganization of the EIIB, such reorganization was made in bad faith.

C.

The President has no authority to abolish the EIIB.

Petitioners contend that the issuance of the afore-mentioned executive orders is: (a) a violation of their right to security of tenure;
(b) tainted with bad faith as they were not actually intended to make the bureaucracy more efficient but to give way to Task
Force Aduana, the functions of which are essentially and substantially the same as that of EIIB; and (c) a usurpation of the
power of Congress to decide whether or not to abolish the EIIB.

Arguing in behalf of respondents, the Solicitor General maintains that: (a) the President enjoys the totality of the executive power
provided under Sections 1 and 7, Article VII of the Constitution, thus, he has the authority to issue Executive Order Nos. 191 and
223; (b) the said executive orders were issued in the interest of national economy, to avoid duplicity of work and to streamline
the functions of the bureaucracy; and (c) the EIIB was not abolished, it was only deactivated.

The petition is bereft of merit.

Despite the presence of some procedural flaws in the instant petition, such as, petitioners disregard of the hierarchy of courts
and the non-exhaustion of administrative remedies, we deem it necessary to address the issues. It is in the interest of the State
that questions relating to the status and existence of a public office be settled without delay. We are not without precedent. In
Dario v. Mison,xii[12] we liberally decreed:

The Court disregards the questions raised as to procedure, failure to exhaust administrative remedies, the standing of certain
parties to sue, for two reasons, `[b]ecause of the demands of public interest, including the need for stability in the public
service,' and because of the serious implications of these cases on the administration of the Philippine civil service and the
rights of public servants.

At first glance, it seems that the resolution of this case hinges on the question - Does the deactivation of EIIB constitute abolition
of an office? However, after coming to terms with the prevailing law and jurisprudence, we are certain that the ultimate queries
should be a) Does the President have the authority to reorganize the executive department? and, b) How should the
reorganization be carried out?

Surely, there exists a distinction between the words deactivate and abolish. To deactivate means to render inactive or ineffective
or to break up by discharging or reassigning personnel,xiii[13] while to abolish means to do away with, to annul, abrogate or
destroy completely.xiv[14] In essence, abolition denotes an intention to do away with the office wholly and permanently.xv[15]
Thus, while in abolition, the office ceases to exist, the same is not true in deactivation where the office continues to exist, albeit
remaining dormant or inoperative. Be that as it may, deactivation and abolition are both reorganization measures.

The Solicitor General only invokes the above distinctions on the mistaken assumption that the President has no power to abolish
an office.

The general rule has always been that the power to abolish a public office is lodged with the legislature. This proceeds from the
legal precept that the power to create includes the power to destroy. A public office is either created by the Constitution, by
statute, or by authority of law. Thus, except where the office was created by the Constitution itself, it may be abolished by the
same legislature that brought it into existence.
The exception, however, is that as far as bureaus, agencies or offices in the executive department are concerned, the Presidents
power of control may justify him to inactivate the functions of a particular office,xvi[19] or certain laws may grant him the broad
authority to carry out reorganization measures.xvii[20] The case in point is Larin v. Executive Secretary.xviii[21] In this case, it
was argued that there is no law which empowers the President to reorganize the BIR. In decreeing otherwise, this Court
sustained the following legal basis, thus:

Initially, it is argued that there is no law yet which empowers the President to issue E.O. No. 132 or to reorganize the BIR.

We do not agree.

xxxxxx

Section 48 of R.A. 7645 provides that:

Sec. 48. Scaling Down and Phase Out of Activities of Agencies Within the Executive Branch. The heads of departments,
bureaus and offices and agencies are hereby directed to identify their respective activities which are no longer essential in the
delivery of public services and which may be scaled down, phased out or abolished, subject to civil service rules and regulations.
X x x. Actual scaling down, phasing out or abolition of the activities shall be effected pursuant to Circulars or Orders issued for
the purpose by the Office of the President.

Said provision clearly mentions the acts of scaling down, phasing out and abolition of offices only and does not cover the
creation of offices or transfer of functions. Nevertheless, the act of creating and decentralizing is included in the subsequent
provision of Section 62 which provides that:

Sec. 62. Unauthorized organizational charges.- Unless otherwise created by law or directed by the President of the Philippines,
no organizational unit or changes in key positions in any department or agency shall be authorized in their respective
organization structures and be funded from appropriations by this Act. (italics ours)

The foregoing provision evidently shows that the President is authorized to effect organizational changes including the
creation of offices in the department or agency concerned.

xxxxxx

Another legal basis of E.O. No. 132 is Section 20, Book III of E.O. No. 292 which states:

Sec. 20. Residual Powers. Unless Congress provides otherwise, the President shall exercise such other powers and functions
vested in the President which are provided for under the laws and which are not specifically enumerated above or which are not
delegated by the President in accordance with law. (italic ours)

This provision speaks of such other powers vested in the President under the law. What law then gives him the power
to reorganize? It is Presidential Decree No. 1772 which amended Presidential Decree No. 1416. These decrees
expressly grant the President of the Philippines the continuing authority to reorganize the national government, which
includes the power to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and
classify functions, services and activities and to standardize salaries and materials. The validity of these two decrees are
unquestionable. The 1987 Constitution clearly provides that all laws, decrees, executive orders, proclamations, letters of
instructions and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed
or revoked. So far, there is yet no law amending or repealing said decrees. (Emphasis supplied)

Now, let us take a look at the assailed executive order.

In the whereas clause of E.O. No. 191, former President Estrada anchored his authority to deactivate EIIB on Section 77 of
Republic Act 8745 (FY 1999 General Appropriations Act), a provision similar to Section 62 of R.A. 7645 quoted in Larin, thus;

Sec. 77. Organized Changes. Unless otherwise provided by law or directed by the President of the Philippines, no changes
in key positions or organizational units in any department or agency shall be authorized in their respective organizational
structures and funded from appropriations provided by this Act.

We adhere to the precedent or ruling in Larin that this provision recognizes the authority of the President to effect organizational
changes in the department or agency under the executive structure. Such a ruling further finds support in Section 78 of Republic
Act No. 8760.xix[22] Under this law, the heads of departments, bureaus, offices and agencies and other entities in the Executive
Branch are directed (a) to conduct a comprehensive review of their respective mandates, missions, objectives, functions,
programs, projects, activities and systems and procedures; (b) identify activities which are no longer essential in the delivery of
public services and which may be scaled down, phased-out or abolished; and (c) adopt measures that will result in the
streamlined organization and improved overall performance of their respective agencies.xx[23] Section 78 ends up with the
mandate that the actual streamlining and productivity improvement in agency organization and operation shall be effected
pursuant to Circulars or Orders issued for the purpose by the Office of the President.xxi[24] The law has spoken clearly.
We are left only with the duty to sustain.

But of course, the list of legal basis authorizing the President to reorganize any department or agency in the executive branch
does not have to end here. We must not lose sight of the very source of the power that which constitutes an express grant of
power. Under Section 31, Book III of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), the
President, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall
have the continuing authority to reorganize the administrative structure of the Office of the President. For this purpose,
he may transfer the functions of other Departments or Agencies to the Office of the President. In Canonizado v. Aguirre,xxii[25]
we ruled that reorganization involves the reduction of personnel, consolidation of offices, or abolition thereof by reason
of economy or redundancy of functions. It takes place when there is an alteration of the existing structure of government
offices or units therein, including the lines of control, authority and responsibility between them. The EIIB is a bureau attached to
the Department of Finance.xxiii[26] It falls under the Office of the President. Hence, it is subject to the Presidents continuing
authority to reorganize.

It having been duly established that the President has the authority to carry out reorganization in any branch or agency of the
executive department, what is then left for us to resolve is whether or not the reorganization is valid. In this jurisdiction,
reorganizations have been regarded as valid provided they are pursued in good faith. Reorganization is carried out in good faith
if it is for the purpose of economy or to make bureaucracy more efficient.xxiv[27] Pertinently, Republic Act No. 6656xxv[28]
provides for the circumstances which may be considered as evidence of bad faith in the removal of civil service employees made
as a result of reorganization, to wit: (a) where there is a significant increase in the number of positions in the new staffing pattern
of the department or agency concerned; (b) where an office is abolished and another performing substantially the same
functions is created; (c) where incumbents are replaced by those less qualified in terms of status of appointment, performance
and merit; (d) where there is a classification of offices in the department or agency concerned and the reclassified offices
perform substantially the same functions as the original offices, and (e) where the removal violates the order of
separation.xxvi[29]

Petitioners claim that the deactivation of EIIB was done in bad faith because four days after its deactivation, President Estrada
created the Task Force Aduana.

We are not convinced.

An examination of the pertinent Executive Ordersxxvii[30] shows that the deactivation of EIIB and the creation of Task Force
Aduana were done in good faith. It was not for the purpose of removing the EIIB employees, but to achieve the ultimate purpose
of E.O. No. 191, which is economy. While Task Force Aduana was created to take the place of EIIB, its creation does not entail
expense to the government.

Firstly, there is no employment of new personnel to man the Task Force. E.O. No. 196 provides that the technical,
administrative and special staffs of EIIB are to be composed of people who are already in the public service, they being
employees of other existing agencies. Their tenure with the Task Force would only be temporary, i.e., only when the
agency where they belong is called upon to assist the Task Force. Since their employment with the Task force is only
by way of detail or assignment, they retain their employment with the existing agencies. And should the need for them
cease, they would be sent back to the agency concerned.

Secondly, the thrust of E.O. No. 196 is to have a small group of military men under the direct control and supervision of the
President as base of the governments anti-smuggling campaign. Such a smaller base has the necessary powers 1) to enlist the
assistance of any department, bureau, or office and to use their respective personnel, facilities and resources; and 2) to select
and recruit personnel from within the PSG and ISAFP for assignment to the Task Force. Obviously, the idea is to encourage
the utilization of personnel, facilities and resources of the already existing departments, agencies, bureaus, etc.,
instead of maintaining an independent office with a whole set of personnel and facilities. The EIIB had proven itself
burdensome for the government because it maintained separate offices in every region in the Philippines.

And thirdly, it is evident from the yearly budget appropriation of the government that the creation of the Task Force Aduana was
especially intended to lessen EIIBs expenses. Tracing from the yearly General Appropriations Act, it appears that the allotted
amount for the EIIBs general administration, support, and operations for the year 1995, was P128,031,000;xxviii[31] for 1996,
P182,156,000;xxix[32] for 1998, P219,889,000;xxx[33] and, for 1999, P238,743,000.xxxi[34] These amounts were far above the
P50,000,000xxxii[35] allocation to the Task Force Aduana for the year 2000.
While basically, the functions of the EIIB have devolved upon the Task Force Aduana, we find the latter to have additional new
powers. The Task Force Aduana, being composed of elements from the Presidential Security Group (PSG) and Intelligence
Service Armed Forces of the Philippines (ISAFP),xxxiii[36] has the essential power to effect searches, seizures and arrests. The
EIIB did not have this power. The Task Force Aduana has the power to enlist the assistance of any department, bureau, office,
or instrumentality of the government, including government-owned or controlled corporations; and to use their personnel,
facilities and resources. Again, the EIIB did not have this power. And, the Task Force Aduana has the additional authority to
conduct investigation of cases involving ill-gotten wealth. This was not expressly granted to the EIIB.

Consequently, it cannot be said that there is a feigned reorganization. In Blaquera v. Civil Sevice Commission, xxxiv[37] we ruled
that a reorganization in good faith is one designed to trim the fat off the bureaucracy and institute economy and greater efficiency
in its operation.

Lastly, we hold that petitioners right to security of tenure is not violated. Nothing is better settled in our law than that the abolition
of an office within the competence of a legitimate body if done in good faith suffers from no infirmity. Valid abolition of offices is
neither removal nor separation of the incumbents.xxxv[38] In the instructive words laid down by this Court in Dario v.
Mison,xxxvi[39] through Justice Abraham F. Sarmiento:

Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. As a general rule, a
reorganization is carried out in good faith if it is for the purpose of economy or to make bureaucracy more efficient. In that event,
no dismissal (in case of dismissal) or separation actually occurs because the position itself ceases to exist. And in that
case, security of tenure would not be a Chinese wall. Be that as it may, if the abolition, which is nothing else but a separation
or removal, is done for political reasons or purposely to defeat security of tenure, otherwise not in good faith, no valid abolition
takes and whatever abolition is done, is void ab initio. There is an invalid abolition as where there is merely a change of
nomenclature of positions, or where claims of economy are belied by the existence of ample funds.

Indeed, there is no such thing as an absolute right to hold office. Except constitutional offices which provide for special immunity
as regards salary and tenure, no one can be said to have any vested right in an office or its salary.xxxvii[40]

While we cast a commiserating look upon the plight of all the EIIB employees whose lives perhaps are now torn with
uncertainties, we cannot ignore the unfortunate reality that our government is also battling the impact of a plummeting economy.
Unless the government is given the chance to recuperate by instituting economy and efficiency in its system, the EIIB will not be
the last agency to suffer the impact. We cannot frustrate valid measures which are designed to rebuild the executive department.

WHEREFORE, the petition is hereby DENIED. No costs.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Pardo, Buena,Ynares-Santiago, and De Leon, Jr., JJ.,
concur.

Panganiban and Quisumbing, JJ., in the result.

Gonzaga-Reyes, J., on leave.

 EN BANC

G.R. No. 79974 December 17, 1987

ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners,

vs.
SALVADOR MISON, in his capacity as COMMISSIONER OF THE BUREAU OF CUSTOMS, AND GUILLERMO CARAGUE,
in his capacity as SECRETARY OF THE DEPARTMENT OF BUDGET, respondents, COMMISSION ON APPOINTMENTS,
intervenor.

PADILLA, J.:

Once more the Court is called upon to delineate constitutional boundaries. In this petition for prohibition, the petitioners, who are
taxpayers, lawyers, members of the Integrated Bar of the Philippines and professors of Constitutional Law, seek to enjoin the
respondent Salvador Mison from performing the functions of the Office of Commissioner of the Bureau of Customs and the
respondent Guillermo Carague, as Secretary of the Department of Budget, from effecting disbursements in payment of Mison's
salaries and emoluments, on the ground that Mison's appointment as Commissioner of the Bureau of Customs is
unconstitutional by reason of its not having been confirmed by the Commission on Appointments. The respondents, on the other
hand, maintain the constitutionality of respondent Mison's appointment without the confirmation of the Commission on
Appointments.

Because of the demands of public interest, including the need for stability in the public service, the Court resolved to give due
course to the petition and decide, setting aside the finer procedural questions of whether prohibition is the proper remedy to test
respondent Mison's right to the Office of Commissioner of the Bureau of Customs and of whether the petitioners have a standing
to bring this suit.

By the same token, and for the same purpose, the Court allowed the Commission on Appointments to intervene and file a
petition in intervention. Comment was required of respondents on said petition. The comment was filed, followed by intervenor's
reply thereto. The parties were also heard in oral argument on 8 December 1987.

This case assumes added significance because, at bottom line, it involves a conflict between two (2) great departments of
government, the Executive and Legislative Departments. It also occurs early in the life of the 1987 Constitution.

The task of the Court is rendered lighter by the existence of relatively clear provisions in the Constitution. In cases like this, we
follow what the Court, speaking through Mr. Justice (later, Chief Justice) Jose Abad Santos stated in Gold Creek Mining Corp.
vs. Rodriguez, 1 that:

The fundamental principle of constitutional construction is to give effect to the intent of the framers of the organic
law and of the people adopting it. The intention to which force is to be given is that which is embodied and
expressed in the constitutional provisions themselves.

The Court will thus construe the applicable constitutional provisions, not in accordance with how the executive or the legislative
department may want them construed, but in accordance with what they say and provide.

Section 16, Article VII of the 1987 Constitution says:

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 the
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.

It is readily apparent that under the provisions of the 1987 Constitution, just quoted, there are four (4) groups of officers whom
the President shall appoint. These four (4) groups, to which we will hereafter refer from time to time, are:
 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; 2

Second, all other officers of the Government whose appointments are not otherwise provided for by law; 3

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

Fourth, officers lower in rank 4 whose appointments the Congress may by law vest in the President alone.

The first group of officers is clearly appointed with the consent of the Commission on Appointments. Appointments of such
officers are initiated by nomination and, if the nomination is confirmed by the Commission on Appointments, the President
appoints. 5

The second, third and fourth groups of officers are the present bone of contention. Should they be appointed by the President
with or without the consent (confirmation) of the Commission on Appointments? By following the accepted rule in constitutional
and statutory construction that an express enumeration of subjects excludes others not enumerated, it would follow that only
those appointments to positions expressly stated in the first group require the consent (confirmation) of the Commission on
Appointments. But we need not rely solely on this basic rule of constitutional construction. We can refer to historical background
as well as to the records of the 1986 Constitutional Commission to determine, with more accuracy, if not precision, the intention
of the framers of the 1987 Constitution and the people adopting it, on whether the appointments by the President, under the
second, third and fourth groups, require the consent (confirmation) of the Commission on Appointments. Again, in this task, the
following advice of Mr. Chief Justice J. Abad Santos in Gold Creek is apropos:

In deciding this point, it should be borne in mind that a constitutional provision must be presumed to have been
framed and adopted in the light and understanding of prior and existing laws and with reference to them. "Courts
are bound to presume that the people adopting a constitution are familiar with the previous and existing laws
upon the subjects to which its provisions relate, and upon which they express their judgment and opinion in its
adoption." (Barry vs. Truax 13 N.D., 131; 99 N.W., 769,65 L. R. A., 762.) 6

It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is provided that —

xxx xxx xxx

(3) The President shall nominate and with the consent of the Commission on Appointments, shall appoint the
heads of the executive departments and bureaus, officers of the army from the rank of colonel, of the Navy and
Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments
are not herein otherwise provided for, and those whom he may be authorized by law to appoint; but the
Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or in the
heads of departments.

(4) The President shall havethe power to make appointments during the recess of the Congress, but such
appointments shall be effective only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.

xxx xxx xxx

(7) ..., and with the consent of the Commission on Appointments, shall appoint ambassadors, other public
ministers and consuls ...

Upon the other hand, the 1973 Constitution provides that-

Section 10. The President shall appoint the heads of bureaus and offices, the officers of the Armed Forces of
the Philippines from the rank of Brigadier General or Commodore, and all other officers of The government
whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to
appoint. However, the Batasang Pambansa may by law vest in the Prime Minister, members of the Cabinet, the
Executive Committee, Courts, Heads of Agencies, Commissions, and Boards the power to appoint inferior
officers in their respective offices.
Thus, in the 1935 Constitution, almost all presidential appointments required the consent (confirmation) of the Commission on
Appointments. It is now a sad part of our political history that the power of confirmation by the Commission on Appointments,
under the 1935 Constitution, transformed that commission, many times, into a venue of "horse-trading" and similar malpractices.

On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in which it was molded and remolded by
successive amendments, placed the absolute power of appointment in the President with hardly any check on the part of the
legislature.

Given the above two (2) extremes, one, in the 1935 Constitution and the other, in the 1973 Constitution, it is not difficult for the
Court to state that the framers of the 1987 Constitution and the people adopting it, struck a "middle ground" by requiring the
consent (confirmation) of the Commission on Appointments for the first group of appointments and leaving to the President,
without such confirmation, the appointment of other officers, i.e., those in the second and third groups as well as those in the
fourth group, i.e., officers of lower rank.

The proceedings in the 1986 Constitutional Commission support this conclusion. The original text of Section 16, Article VII, as
proposed by the Committee on the Executive of the 1986 Constitutional Commission, read as follows:

Section 16. The president shall nominate and, with the consent of a Commission on Appointment, shall appoint
the heads of the executive departments and bureaus, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain and 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 inferior officers in the President alone, in the courts,
or in the heads of departments 7 [Emphasis supplied].

The above text is almost a verbatim copy of its counterpart provision in the 1935 Constitution. When the frames discussed on the
floor of the Commission the proposed text of Section 16, Article VII, a feeling was manifestly expressed to make the power of the
Commission on Appointments over presidential appointments more limited than that held by the Commission in the 1935
Constitution. Thus-

Mr. Rama: ... May I ask that Commissioner Monsod be recognized

The President: We will call Commissioner Davide later.

Mr. Monsod: With the Chair's indulgence, I just want to take a few minutes of our time to lay the
basis for some of the amendments that I would like to propose to the Committee this morning.

xxx xxx xxx

On Section 16, I would like to suggest that the power of the Commission on Appointments be limited to the
department heads, ambassadors, generals and so on but not to the levels of bureau heads and colonels.

xxx xxx xxx 8 (Emphasis supplied.)

In the course of the debates on the text of Section 16, there were two (2) major changes proposed and approved by the
Commission. These were (1) the exclusion of the appointments of heads of bureaus from the requirement of confirmation by the
Commission on Appointments; and (2) the exclusion of appointments made under the second sentence 9 of the section from the
same requirement. The records of the deliberations of the Constitutional Commission show the following:

MR. ROMULO: I ask that Commissioner Foz be recognized

THE PRESIDENT: Commissioner Foz is recognized

MR. FOZ: Madam President, my proposed amendment is on page 7, Section 16, line 26 which
is to delete the words "and bureaus," and on line 28 of the same page, to change the phrase
'colonel or naval captain to MAJOR GENERAL OR REAR ADMIRAL. This last amendment
which is co-authored by Commissioner de Castro is to put a period (.) after the word ADMIRAL,
and on line 29 of the same page, start a new sentence with: HE SHALL ALSO APPOINT, et
cetera.

MR. REGALADO: May we have the amendments one by one. The first proposed amendment is
to delete the words "and bureaus" on line 26.
 MR. FOZ: That is correct.

MR. REGALADO: For the benefit of the other Commissioners, what would be the justification of
the proponent for such a deletion?

MR. FOZ: The position of bureau director is actually quite low in the executive department, and
to require further confirmation of presidential appointment of heads of bureaus would subject
them to political influence.

MR. REGALADO: The Commissioner's proposed amendment by deletion also includes regional
directors as distinguished from merely staff directors, because the regional directors have quite
a plenitude of powers within the regions as distinguished from staff directors who only stay in
the office.

MR. FOZ: Yes, but the regional directors are under the supervisiopn of the staff bureau
directors.

xxx xxx xxx

MR. MAAMBONG: May I direct a question to Commissioner Foz? The Commissioner proposed
an amendment to delete 'and bureaus on Section 16. Who will then appoint the bureau directors
if it is not the President?

MR. FOZ: It is still the President who will appoint them but their appointment shall no longer be
subject to confirmation by the Commission on Appointments.

MR. MAAMBONG: In other words, it is in line with the same answer of Commissioner de
Castro?

MR. FOZ: Yes.

MR. MAAMBONG: Thank you.

THE PRESIDENT: Is this clear now? What is the reaction of the Committee?

xxx xxx xxx

MR. REGALADO: Madam President, the Committee feels that this matter should be submitted
to the body for a vote.

MR. DE CASTRO: Thank you.

MR. REGALADO: We will take the amendments one by one. We will first vote on the deletion of
the phrase 'and bureaus on line 26, such that appointments of bureau directors no longer need
confirmation by the Commission on Appointment.

Section 16, therefore, would read: 'The President shall nominate, and with the consent of a Commission on
Appointments, shall appoint the heads of the executive departments, ambassadors. . . .

THE PRESIDENT: Is there any objection to delete the phrase 'and bureaus' on page 7, line 26?
(Silence) The Chair hears none; the amendments is approved.

xxx xxx xxx

MR. ROMULO: Madam President.

THE PRESIDENT: The Acting Floor Leader is recognized.

THE PRESIDENT: Commissioner Foz is recognized

 MR. FOZ: Madam President, this is the third proposed amendment on page 7, line 28. 1
propose to put a period (.) after 'captain' and on line 29, delete 'and all' and substitute it with HE
SHALL ALSO APPOINT ANY.

MR. REGALADO: Madam President, the Committee accepts the proposed amendment
because it makes it clear that those other officers mentioned therein do not have to be
confirmed by the Commission on Appointments.

MR. DAVIDE: Madam President.

THE PRESIDENT: Commissioner Davide is recognized.

xxx xxx xxx

MR. DAVIDE: So would the proponent accept an amendment to his amendment, so that after
"captain" we insert the following words: AND OTHER OFFICERS WHOSE APPOINTMENTS
ARE VESTED IN HIM IN THIS CONSTITUTION?

FR. BERNAS: It is a little vague.

MR. DAVIDE: In other words, there are positions provided for in the Constitution whose
appointments are vested in the President, as a matter of fact like those of the different
constitutional commissions.

FR. BERNAS: That is correct. This list of officials found in Section 16 is not an exclusive list of
those appointments which constitutionally require confirmation of the Commission on
Appointments,

MR. DAVIDE: That is the reason I seek the incorporation of the words I proposed.

FR. BERNAS: Will Commissioner Davide restate his proposed amendment?

MR. DAVIDE: After 'captain,' add the following: AND OTHER OFFICERS WHOSE
APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION.

FR. BERNAS: How about:"AND OTHER OFFICERS WHOSE APPOINTMENTS REQUIRE

CONFIRMATION UNDER THIS CONSTITUTION"?

MR. DAVIDE: Yes, Madam President, that is modified by the Committee.

FR. BERNAS: That will clarify things.

THE PRESIDENT: Does the Committee accept?

MR. REGALADO: Just for the record, of course, that excludes those officers which the
Constitution does not require confirmation by the Commission on Appointments, like the
members of the judiciary and the Ombudsman.

MR. DAVIDE: That is correct. That is very clear from the modification made by Commissioner
Bernas.

THE PRESIDENT: So we have now this proposed amendment of Commissioners Foz and
Davide.

xxx xxx xxx

THE PRESIDENT: Is there any objection to this proposed amendment of Commissioners Foz
and Davide as accepted by the Committee? (Silence) The Chair hears none; the amendment,
as amended, is approved 10 (Emphasis supplied).
 It is, therefore, clear that appointments to the second and third groups of officers can be made by the President
without the consent (confirmation) of the Commission on Appointments.

It is contended by amicus curiae, Senator Neptali Gonzales, that the second sentence of Sec. 16, Article VII
reading-

He (the President) 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 . . . . (Emphasis supplied)

with particular reference to the word "also," implies that the President shall "in like manner" appoint the officers mentioned in said
second sentence. In other words, the President shall appoint the officers mentioned in said second sentence in the same
manner as he appoints officers mentioned in the first sentence, that is, by nomination and with the consent (confirmation) of the
Commission on Appointments.

Amicus curiae's reliance on the word "also" in said second sentence is not necessarily supportive of the conclusion he arrives at.
For, as the Solicitor General argues, the word "also" could mean "in addition; as well; besides, too" (Webster's International
Dictionary, p. 62, 1981 edition) which meanings could, on the contrary, stress that the word "also" in said second sentence
means that the President, in addition to nominating and, with the consent of the Commission on Appointments, appointing the
officers enumerated in the first sentence, can appoint (without such consent (confirmation) the officers mentioned in the second
sentence-

Rather than limit the area of consideration to the possible meanings of the word "also" as used in the context of said second
sentence, the Court has chosen to derive significance from the fact that the first sentence speaks of nomination by the President
and appointment by the President with the consent of the Commission on Appointments, whereas, the second sentence speaks
only of appointment by the President. And, this use of different language in two (2) sentences proximate to each other
underscores a difference in message conveyed and perceptions established, in line with Judge Learned Hand's observation that
"words are not pebbles in alien juxtaposition" but, more so, because the recorded proceedings of the 1986 Constitutional
Commission clearly and expressly justify such differences.

As a result of the innovations introduced in Sec. 16, Article VII of the 1987 Constitution, there are officers whose appointments
require no confirmation of the Commission on Appointments, even if such officers may be higher in rank, compared to some
officers whose appointments have to be confirmed by the Commission on Appointments under the first sentence of the same
Sec. 16, Art. VII. Thus, to illustrate, the appointment of the Central Bank Governor requires no confirmation by the Commission
on Appointments, even if he is higher in rank than a colonel in the Armed Forces of the Philippines or a consul in the Consular
Service.

But these contrasts, while initially impressive, merely underscore the purposive intention and deliberate judgment of the framers
of the 1987 Constitution that, except as to those officers whose appointments require the consent of the Commission on
Appointments by express mandate of the first sentence in Sec. 16, Art. VII, appointments of other officers are left to the
President without need of confirmation by the Commission on Appointments. This conclusion is inevitable, if we are to presume,
as we must, that the framers of the 1987 Constitution were knowledgeable of what they were doing and of the foreseable effects
thereof.

Besides, the power to appoint is fundamentally executive or presidential in character. Limitations on or qualifications of such
power should be strictly construed against them. Such limitations or qualifications must be clearly stated in order to be
recognized. But, it is only in the first sentence of Sec. 16, Art. VII where it is clearly stated that appointments by the President to
the positions therein enumerated require the consent of the Commission on Appointments.

As to the fourth group of officers whom the President can appoint, the intervenor Commission on Appointments underscores the
third sentence in Sec. 16, Article VII of the 1987 Constitution, which reads:

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 supplied].

and argues that, since a law is needed to vest the appointment of lower-ranked officers in the President alone, this implies that,
in the absence of such a law, lower-ranked officers have to be appointed by the President subject to confirmation by the
Commission on Appointments; and, if this is so, as to lower-ranked officers, it follows that higher-ranked officers should be
appointed by the President, subject also to confirmation by the Commission on Appointments.

The respondents, on the other hand, submit that the third sentence of Sec. 16, Article VII, abovequoted, merely declares that, as
to lower-ranked officers, the Congress may by law vest their appointment in the President, in the courts, or in the heads of the
various departments, agencies, commissions, or boards in the government. No reason however is submitted for the use of the
word "alone" in said third sentence.

The Court is not impressed by both arguments. It is of the considered opinion, after a careful study of the deliberations of the
1986 Constitutional Commission, that the use of the word alone" after the word "President" in said third sentence of Sec. 16,
Article VII is, more than anything else, a slip or lapsus in draftmanship. It will be recalled that, in the 1935 Constitution, the
following provision appears at the end of par. 3, section 1 0, Article VII thereof —

...; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or
in the heads of departments. [Emphasis supplied].

The above provision in the 1935 Constitution appears immediately after the provision which makes practically all presidential
appointments subject to confirmation by the Commission on Appointments, thus-

3. The President shall nominate and with the consent of the Commission on Appointments, shall appoint the
heads of the executive departments and bureaus, officers of the Army from the rank of colonel, of the Navy and
Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments
are not herein provided for, and those whom he may be authorized by law to appoint; ...

In other words, since the 1935 Constitution subjects, as a general rule, presidential appointments to confirmation by the
Commission on Appointments, the same 1935 Constitution saw fit, by way of an exception to such rule, to provide that Congress
may, however, by law vest the appointment of inferior officers (equivalent to 11 officers lower in rank" referred to in the 1987
Constitution) in the President alone, in the courts, or in the heads of departments,

In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of its framers was to exclude
presidential appointments from confirmation by the Commission on Appointments, except appointments to offices expressly
mentioned in the first sentence of Sec. 16, Article VII. Consequently, there was no reason to use in the third sentence of Sec. 16,
Article VII the word "alone" after the word "President" in providing that Congress may by law vest the appointment of lower-
ranked officers in the President alone, or in the courts, or in the heads of departments, because the power to appoint officers
whom he (the President) may be authorized by law to appoint is already vested in the President, without need of confirmation by
the Commission on Appointments, in the second sentence of the same Sec. 16, Article VII.

Therefore, the third sentence of Sec. 16, Article VII could have stated merely that, in the case of lower-ranked officers, the
Congress may by law vest their appointment in the President, in the courts, or in the heads of various departments of the
government. In short, the word "alone" in the third sentence of Sec. 16, Article VII of the 1987 Constitution, as a literal import
from the last part of par. 3, section 10, Article VII of the 1935 Constitution, appears to be redundant in the light of the second
sentence of Sec. 16, Article VII. And, this redundancy cannot prevail over the clear and positive intent of the framers of the 1987
Constitution that presidential appointments, except those mentioned in the first sentence of Sec. 16, Article VII, are not subject to
confirmation by the Commission on Appointments.

Coming now to the immediate question before the Court, it is evident that the position of Commissioner of the Bureau of
Customs (a bureau head) is not one of those within the first group of appointments where the consent of the Commission on
Appointments is required. As a matter of fact, as already pointed out, while the 1935 Constitution includes "heads of bureaus"
among those officers whose appointments need the consent of the Commission on Appointments, the 1987 Constitution on the
other hand, deliberately excluded the position of "heads of bureaus" from appointments that need the consent (confirmation) of
the Commission on Appointments.

Moreover, the President is expressly authorized by law to appoint the Commissioner of the Bureau of Customs. The original text
of Sec. 601 of Republic Act No. 1937, otherwise known as the Tariff and Customs Code of the Philippines, which was enacted
by the Congress of the Philippines on 22 June 1957, reads as follows:

601. Chief Officials of the Bureau.-The Bureau of Customs shall have one chief and one assistant chief, to be
known respectively as the Commissioner (hereinafter known as the 'Commissioner') and Assistant
Commissioner of Customs, who shall each receive an annual compensation in accordance with the rates
prescribed by existing laws. The Assistant Commissioner of Customs shall be appointed by the proper
department head.

Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972 by Presidential Decree No. 34, amending the Tariff and
Customs Code of the Philippines. Sec. 601, as thus amended, now reads as follows:

Sec. 601. Chief Officials of the Bureau of Customs.-The Bureau of Customs shall have one chief and one
assistant chief, to be known respectively as the Commissioner (hereinafter known as Commissioner) and
 Deputy Commissioner of Customs, who shall each receive an annual compensation in accordance with the rates
prescribed by existing law. The Commissioner and the Deputy Commissioner of Customs shall be appointed by
the President of the Philippines (Emphasis supplied.)

Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved during the effectivity of the 1935 Constitution, under
which the President may nominate and, with the consent of the Commission on Appointments, appoint the heads of bureaus, like
the Commissioner of the Bureau of Customs.

After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937 and PD No. 34 have to be read in harmony with Sec.
16, Art. VII, with the result that, while the appointment of the Commissioner of the Bureau of Customs is one that devolves on the
President, as an appointment he is authorizedby law to make, such appointment, however, no longer needs the confirmation of
the Commission on Appointments.

Consequently, we rule that the President of the Philippines acted within her constitutional authority and power in appointing
respondent Salvador Mison, Commissioner of the Bureau of Customs, without submitting his nomination to the Commission on
Appointments for confirmation. He is thus entitled to exercise the full authority and functions of the office and to receive all the
salaries and emoluments pertaining thereto.

WHEREFORE, the petition and petition in intervention should be, as they are, hereby DISMISSED. Without costs.

SO ORDERED.
G.R. No. 91636 April 23, 1992

PETER JOHN D. CALDERON, petitioner,

vs.
BARTOLOME CARALE, in his capacity as Chairman of the National Labor Relations Commission, EDNA BONTO
PEREZ, LOURDES C. JAVIER, ERNESTO G. LADRIDO III, MUSIB M. BUAT, DOMINGO H. ZAPANTA, VICENTE S.E.
VELOSO III, IRENEO B. BERNARDO, IRENEA E. CENIZA, LEON G. GONZAGA, JR., ROMEO B. PUTONG, ROGELIO I.
RAYALA, RUSTICO L. DIOKNO, BERNABE S. BATUHAN and OSCAR N. ABELLA, in their capacity as Commissioners of
the National Labor Relations Commission, and GUILLERMO CARAGUE, in his capacity as Secretary of Budget and
Management, respondents.

PADILLA, J.:

Controversy is focused anew on Sec. 16, Art. VII of the 1987 Constitution which provides:

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

The 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. 1

The power of the Commission on Appointments (CA for brevity) to confirm appointments, contained in the aforequoted
paragraph 1 of Sec. 16, Art. VII, was first construed in Sarmiento III vs. Mison 2 as follows:

. . . it is evident that the position of Commissioner of the Bureau of Customs (a bureau head) is not one of those
within the first group of appointments where the consent of the Commission on Appointments is required. As a
matter of fact, as already pointed out, while the 1935 Constitution includes "heads of bureaus" among those
officers whose appointments need the consent of the Commission on Appointments, the 1987 Constitution, on
the other hand, deliberately excluded the position of "heads of bureaus" from appointments that need the
consent (confirmation) of the Commission on Appointments.

. . . Consequently, we rule that the President of the Philippines acted within her constitutional authority and
power in appointing respondent Salvador Mison, Commissioner of the Bureau of Customs, without submitting
his nomination to the Commission on Appointments for confirmation. . . .

. . . In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of its framers was
to exclude presidential appointments from confirmation by the Commission on Appointments, except
appointments to offices expressly mentioned in the first sentence of Sec. 16, Art. VII. Consequently, there was
no reason to use in the third sentence of Sec. 16, Article VII the word "alone" after the word "President" in
providing that Congress may by law vest the appointment of lower-ranked officers in the President alone, or in
the courts, or in the heads of departments, because the power to appoint officers whom he (the president) may
be authorized by law to appoint is already vested in the President, without need of confirmation by the
Commission on Appointments, in the second sentence of the same Sec. 16, Article VII." (emphasis supplied)

Next came Mary Concepcion Bautista v. Salonga, 3 this time involving the appointment of the Chairman of the Commission on
Human Rights. Adhering to the doctrine in Mison, the Court explained:

. . . Since the position of Chairman of the Commission on Human Rights is not among the positions mentioned in
the first sentence of Sec. 16, Art. VII of the 1987 Constitution, appointments to which are to be made with the
confirmation of the Commission on Appointments, it follows that the appointment by the President of the
Chairman of the CHR is to be made without the review or participation of the Commission on Appointments. To
be more precise, the appointment of the Chairman and Members of the Commission on Human Rights is not
specifically provided for in the Constitution itself, unlike the Chairmen and Members of the Civil Service
Commission, the Commission on Elections and the Commission on Audit, whose appointments are expressly
vested by the Constitution in the president with the consent of the Commission on Appointments. The president
appoints the Chairman and Members of The Commission on Human Rights pursuant to the second sentence in
 Section 16, Art. VII, that is, without the confirmation of the Commission on Appointments because they are
among the officers of government "whom he (the President) may be authorized by law to appoint." And Section
2(c), Executive Order No. 163, 5 May 1987, authorizes the President to appoint the Chairman and Members of
the Commission on Human Rights.

Consistent with its rulings in Mison and Bautista, in Teresita Quintos Deles, et al. v. The Commission on Constitutional
Commissions, et al.,4 the power of confirmation of the Commission on Appointments over appointments by the President of
sectoral representatives in Congress was upheld because:

. . . Since the seats reserved for sectoral representatives in paragraph 2, Section 5, Art. VI may be filled by
appointment by the President by express provision of Section 7, Art. XVIII of the Constitution, it is indubitable
that sectoral representatives to the House of Representatives are among the "other officers whose appointments
are vested in the President in this Constitution," referred to in the first sentence of Section 16, Art. VII whose
appointments are subject to confirmation by the Commission on Appointments.

From the three (3) cases above-mentioned, these doctrines are deducible:

1. Confirmation by the Commission on Appointments is required only for presidential appointees mentioned in the first sentence
of Section 16, Article VII, including, those officers whose appointments are expressly vested by the Constitution itself in the
president (like sectoral representatives to Congress and members of the constitutional commissions of Audit, Civil Service and
Election).

2. Confirmation is not required when the President appoints other government officers whose appointments are not otherwise
provided for by law or those officers whom he may be authorized by law to appoint (like the Chairman and Members of the
Commission on Human Rights). Also, as observed in Mison, when Congress creates inferior offices but omits to provide for
appointment thereto, or provides in an unconstitutional manner for such appointments, the officers are considered as among
those whose appointments are not otherwise provided for by law.

Sometime in March 1989, RA 6715 (Herrera-Veloso Law), amending the Labor Code (PD 442) was approved. It provides in
Section 13 thereof as follows:

xxx xxx xxx

The Chairman, the Division Presiding Commissioners and other Commissioners shall all be appointed by the
President, subject to confirmation by the Commission on Appointments. Appointments to any vacancy shall
come from the nominees of the sector which nominated the predecessor. The Executive Labor Arbiters and
Labor Arbiters shall also be appointed by the President, upon recommendation of the Secretary of Labor and
Employment, and shall be subject to the Civil Service Law, rules and regulations. 5

Pursuant to said law (RA 6715), President Aquino appointed the Chairman and Commissioners of the NLRC representing the
public, workers and employers sectors. The appointments stated that the appointees may qualify and enter upon the
performance of the duties of the office. After said appointments, then Labor Secretary Franklin Drilon issued Administrative
Order No. 161, series of 1989, designating the places of assignment of the newly appointed commissioners.

This petition for prohibition questions the constitutionality and legality of the permanent appointments extended by the President
of the Philippines to the respondents Chairman and Members of the National Labor Relations Commission (NLRC), without
submitting the same to the Commission on Appointments for confirmation pursuant to Art. 215 of the Labor Code as amended by
said RA 6715.

Petitioner insists on a mandatory compliance with RA 6715 which has in its favor the presumption of validity. RA 6715 is not,
according to petitioner, an encroachment on the appointing power of the executive contained in Section 16, Art. VII, of the
Constitution, as Congress may, by law, require confirmation by the Commission on Appointments of other officers appointed by
the President additional to those mentioned in the first sentence of Section 16 of Article VII of the Constitution. Petitioner claims
that the Mison and Bautista rulings are not decisive of the issue in this case for in the case at bar, the President issued
permanent appointments to the respondents without submitting them to the CA for confirmation despite passage of a law (RA
6715) which requires the confirmation by the Commission on Appointments of such appointments.

The Solicitor General, on the other hand, contends that RA 6715 which amended the Labor Code transgresses Section 16,
Article VII by expanding the confirmation powers of the Commission on Appointments without constitutional basis. Mison and
Bautista laid the issue to rest, says the Solicitor General, with the following exposition:
 As interpreted by this Honorable Court in the Mison case, confirmation by the Commission on Appointments is
required exclusively for the heads of executive departments, ambassadors, public ministers, consuls, officers of
the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in
the President by the Constitution, such as the members of the various Constitutional Commissions. With respect
to the other officers whose appointments are not otherwise provided for by the law and to those whom the
President may be authorized by law to appoint, no confirmation by the Commission on Appointments is required.

Had it been the intention to allow Congress to expand the list of officers whose appointments must be confirmed
by the Commission on Appointments, the Constitution would have said so by adding the phrase "and other
officers required by law" at the end of the first sentence, or the phrase, "with the consent of the Commission on
Appointments" at the end of the second sentence. Evidently, our Constitution has significantly omitted to provide
for such additions.

The original text of Section 16 of Article VII of the present Constitution as embodied in Resolution No. 517 of the
Constitutional Commission reads as follows:

"The President shall nominate and, with the consent of the Commission on Appointments, shall
appoint the heads of the executive departments and bureaus, ambassadors, other public
ministers and consuls, or officers of the armed forces from the rank of captain or commander,
and all other officers of the Government whose appointments are not herein 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 inferior officers in the President alone, in the courts or in the heads of
the department."

Three points should be noted regarding sub-section 3 of Section 10 of Article VII of the 1935 Constitution and in
the original text of Section 16 of Article VII of the present Constitution as proposed in Resolution No. 517.

First, in both of them, the appointments of heads of bureaus were required to be confirmed by the Commission
on Appointments.

Second, in both of them, the appointments of other officers, "whose appointments are not otherwise provided for
by law to appoint" are expressly made subject to confirmation by the Commission on Appointments. However, in
the final version of Resolution No. 517, as embodied in Section 16 of Article VII of the present Constitution, the
appointment of the above mentioned officers (heads of bureaus; other officers whose appointments are not
provided for by law; and those whom he may be authorized by law to appoint) are excluded from the list of those
officers whose appointments are to be confirmed by the Commission on Appointments. This amendment,
reflected in Section 16 of Article VII of the Constitution, clearly shows the intent of the framers to exclude such
appointments from the requirement of confirmation by the Commission on Appointments.

Third, under the 1935 Constitution the word "nominate" qualifies the entire Subsection 3 of Section 10 of Article
VII thereof.

Respondent reiterates that if confirmation is required, the three (3) stage process of nomination, confirmation
and appointment operates. This is only true of the first group enumerated in Section 16, but the word nominate
does not any more appear in the 2nd and 3rd sentences. Therefore, the president's appointment pursuant to the
2nd and 3rd sentences needs no confirmation. 6

The only issue to be resolved by the Court in the present case is whether or not Congress may, by law, require confirmation by
the Commission on Appointments of appointments extended by the president to government officers additional to those
expressly mentioned in the first sentence of Sec. 16, Art. VII of the Constitution whose appointments require confirmation by the
Commission on Appointments.

To resolve the issue, we go back to Mison where the Court stated:

. . . there are four (4) groups of officers whom the President shall appoint. These four (4) groups, to which we will
hereafter refer from time to time, are:

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. 7

Mison also opined:

In the course of the debates on the text of Section 16, there were two (2) major changes proposed and
approved by the Commission. These were (1) the exclusion of the appointments of heads of bureaus from the
requirement of confirmation by the Commission on Appointments; and (2) the exclusion of appointments made
under the second sentence of the section from the same requirement. . . .

The second sentence of Sec. 16, Art. VII refers to all other officers of the government whose appointments are not otherwise
provided for by law and those whom the President may be authorized by law to appoint.

Indubitably, the NLRC Chairman and Commissioners fall within the second sentence of Section 16, Article VII of the
Constitution, more specifically under the "third groups" of appointees referred to in Mison, i.e. those whom the President may be
authorized by law to appoint. Undeniably, the Chairman and Members of the NLRC are not among the officers mentioned in the
first sentence of Section 16, Article VII whose appointments requires confirmation by the Commission on Appointments. To the
extent that RA 6715 requires confirmation by the Commission on Appointments of the appointments of respondents Chairman
and Members of the National Labor Relations Commission, it is unconstitutional because:

1) it amends by legislation, the first sentence of Sec. 16, Art. VII of the Constitution by adding thereto appointments requiring
confirmation by the Commission on Appointments; and

2) it amends by legislation the second sentence of Sec. 16, Art. VII of the Constitution, by imposing the confirmation of the
Commission on Appointments on appointments which are otherwise entrusted only with the President.

Deciding on what laws to pass is a legislative prerogative. Determining their constitutionality is a judicial function. The Court
respects the laudable intention of the legislature. Regretfully, however, the constitutional infirmity of Sec. 13 of RA 6715
amending Art. 215 of the Labor Code, insofar as it requires confirmation of the Commission on Appointments over appointments
of the Chairman and Member of the National Labor Relations Commission (NLRC) is, as we see it, beyond redemption if we are
to render fealty to the mandate of the Constitution in Sec. 16, Art. VII thereof.

Supreme Court decisions applying or interpreting the Constitution shall form part of the legal system of the Philippines.8 No
doctrine or principle of law laid down by the Court in a decision rendered en banc or in division may be modified or reversed
except by the Court sitting en banc.9

. . . The interpretation upon a law by this Court constitutes, in a way, a part of the law as of the date that law was
originally passed, since this Court's construction merely establishes the contemporaneous legislative intent that
the law thus construed intends to effectuate. The settled rule supported by numerous authorities is a
restatement of the legal maxim "legis interpretado legis vim obtinent" — the interpretation placed upon the
written law by a competent court has the force of law. 10

The rulings in Mison, Bautista and Quintos-Deles have interpreted Art. VII, Sec. 16 consistently in one manner. Can legislation
expand a constitutional provision after the Supreme Court has interpreted it?

In Endencia and Jugo vs. David, 11 the Court held:

By legislative fiat as enunciated in Section 13, Republic Act No. 590, Congress says that taxing the salary of a
judicial officer is not a decrease of compensation. This is a clear example of interpretation or ascertainment of
the meaning of the phrase "which shall not be diminished during their continuance in office," found in Section 9,
Article VIII of the Constitution, referring to the salaries of judicial officers.

xxx xxx xxx

The rule is recognized elsewhere that the legislature cannot pass any declaratory act, or act
declaratory of what the law was before its passage, so as to give it any binding weight with the
 courts. A legislative definition of a word as used in a statute is not conclusive of its meaning as
used elsewhere; otherwise, the legislature would be usurping a judicial function in defining a
term. (11 Am. Jur., 914, emphasis supplied).

The legislature cannot, upon passing law which violates a constitutional provision, validate it so
as to prevent an attack thereon in the courts, by a declaration that it shall be so construed as
not to violate the constitutional inhibition. (11 Am., Jur., 919, emphasis supplied).

We have already said that the Legislature under our form of government is assigned the task and the power to
make and enact laws, but not to interpret them. This is more true with regard to the interpretation of the basic
law, the Constitution, which is not within the sphere of the Legislative department. If the Legislature may declare
what a law means, or what a specific portion of the Constitution means, especially after the courts have in actual
case ascertained its meaning by interpretation and applied it in a decision, this would surely cause confusion
and instability in judicial processes and court decisions. Under such a system, a final court determination of a
case based on a judicial interpretation of the law or of the Constitution may be undermined or even annulled by
a subsequent and different interpretation of the law or of the Constitution by the Legislative department that
would be neither wise nor desirable, being clearly violative of the fundamental principles of our constitutional
system of government, particularly those governing the separation of powers. 14 (Emphasis supplied)

Congress, of course, must interpret the Constitution, must estimate the scope of its constitutional powers when it sets out to
enact legislation and it must take into account the relevant constitutional prohibitions. 15

. . . The Constitution did not change with public opinion.

It is not only the same words, but the same in meaning . . . and as long as it it speaks not only in the same
words, but with the same meaning and intent with which it spoke when it came from the hands of its framers,
and was voted and adopted by the people . . . 16

The function of the Court in passing upon an act of Congress is to "lay the article of the Constitution which is invoked beside the
statute which is challenged and to decide whether the latter squares with the former" and to "announce its considered judgment
upon the question." 17

It can not be overlooked that Sec. 16, Art. VII of the 1987 Constitution was deliberately, not unconsciously, intended by the
framers of the 1987 Constitution to be a departure from the system embodied in the 1935 Constitution where the Commission on
Appointments exercised the power of confirmation over almost all presidential appointments, leading to many cases of abuse of
such power of confirmation. Subsection 3, Section 10, Art. VII of the 1935 Constitution provided:

3. The President shall nominate and with the consent of the Commission on Appointments, shall appoint the
heads of the executive departments and bureaus, officers of the Army from the rank of colonel, of the Navy and
Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments
are not herein otherwise provided for, and those whom he may be authorized by law to appoint; . . .

The deliberate limitation on the power of confirmation of the Commission on Appointments over presidential appointments,
embodied in Sec. 16, Art. VII of the 1987 Constitution, has undoubtedly evoked the displeasure and disapproval of members of
Congress. The solution to the apparent problem, if indeed a problem, is not judicial or legislative but constitutional. A future
constitutional convention or Congress sitting as a constituent (constitutional) assembly may then consider either a return to the
1935 Constitutional provisions or the adoption of a hybrid system between the 1935 and 1987 constitutional provisions. Until
then, it is the duty of the Court to apply the 1987 Constitution in accordance with what it says and not in accordance with how the
legislature or the executive would want it interpreted.

WHEREFORE, the petition is DISMISSED. Art. 215 of the Labor Code as amended by RA 6715 insofar as it requires the
confirmation of the Commission on Appointments of appointments of the Chairman and Members of the National Labor
Relations Commission (NLRC) is hereby declared unconstitutional and of no legal force and effect.

SO ORDERED.
 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. i[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 Directori[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.i[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.i[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. Misoni[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.i[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. Misoni[7], and in the subsequent
cases of Bautista vs. Salongai[8], Quintos-Deles vs. Constitutional Commissioni[9], and Calderon vs. Caralei[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. Singsoni[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.i[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.
 [G.R. No. 153881. March 24, 2003]

ELPIDIO G. SORIANO III, petitioner, vs. REUBEN S. LISTA, DOMINGO T. ESTERA, ELPIDIO B. PADAMA, MIGUEL C.
TABARES, ARTHUR N. GOSINGAN, EFREN L. TADURAN, CESAR A. SARILE, DANILO M. VILDA and HONORABLE EMILIA
T. BONCODIN, in her capacity as Secretary of Budget and Management, respondents.

DECISION

CORONA, J.:

Before us is a Petition for Prohibition under Rule 65 of the Rules of Court questioning the constitutionality and legality of the
permanent appointments, made by President Gloria Macapagal-Arroyo, of public respondents to different positions in the
Philippine Coast Guard and their subsequent assumption of office without confirmation by the Commission on Appointments
under the 1987 Constitution.

The petition impleads Hon. Emilia T. Boncodin in her capacity as Secretary of the Department of Budget and Management
(DBM). Petitioner, Elpidio G. Soriano, filed the instant petition as member of the Integrated Bar of the Philippines and as a
taxpayer.

Public respondents were promoted to different ranks in the Philippine Coast Guard (PCG) on different dates as follows:

Reuben S. Lista Vice Admiral, Philippine Coast Guard

Domingo T. Estera Rear Admiral, Philippine Coast Guard

Miguel C. Tabares Commodore, Philippine Coast Guard

Arthur N. Gosingan Commodore, Philippine Coast Guard

Efren L. Taduran Naval Captain, Philippine Coast Guard

Cesar A. Sarile Naval Captain, Philippine Coast Guard

Danilo M. Vilda Naval Captain, Philippine Coast Guard

Elpidio B. Padama Commodore, Philippine Coast Guard

Petitioner bewails the fact that despite the non-submission of their names to the Commission on Appointments (CA) for
confirmation, all of the said respondent officers of the PCG had assumed their duties and functions. According to petitioner, their
respective appointments are illegal and unconstitutional for failure to undergo the confirmation process in the CA. Thus, they
should be prohibited from discharging their duties and functions as such officers of the PCG.

In the same vein, petitioner opines that there is no legal basis for the DBM to allow the disbursement of the salaries and
emoluments of respondent officers of the PCG. Accordingly, he prays that respondent Secretary Boncodin be ordered to desist
from allowing such disbursements until the confirmation of their respective appointments by the CA.

At the outset, the Court finds petitioner to be without any legal personality to file the instant petition. We have ruled that a private
citizen is allowed to raise constitutional questions only if he can show that he has personally suffered some actual or threatened
injury as a result of the allegedly illegal conduct of the government, the injury is fairly traceable to the challenged action and the
injury is likely to be redressed by a favorable action.i[1] In the case at bar, petitioner has failed to clearly demonstrate that he has
personally suffered actual or threatened injury. It should be emphasized that a party bringing a suit challenging the
constitutionality of an act or statute must show not only that the law or act is invalid, but also that he has sustained or is in
immediate, or imminent danger of sustaining some direct injury as a result of its enforcement and not merely that he suffers
thereby in some indefinite way.i[2]

The instant petition cannot even be classified as a taxpayers suit because petitioner has no interest as such and this case does
not involve the exercise by Congress of its taxing power.

Assuming arguendo that petitioner has the legal personality to question the subject appointments, the petition will nevertheless
fail. As aptly pointed out by the Solicitor General, the PCG used to be administered and maintained as a separate unit of the
Philippine Navy under Section 4 of RA 5173. It was subsequently placed under the direct supervision and control of the
Secretary of the Department of National Defense (DND) pursuant to Section 4 of PD 601. Eventually, it was integrated into the
Armed Forces of the Philippines (AFP) as a major subordinate unit of the Philippine Navy under Section 54 of Chapter 8, Sub-
title II, Title VIII, Book IV of EO 292, as amended.

However, on March 30, 1998, after the aforesaid changes in the charter of the PCG, then President Fidel V. Ramos, in the
exercise of his statutory authority to reorganize the Office of the President, issued EO 475 transferring the PCG from the DND to
the Office of the President. He later on again transferred the PCG from the Office of the President to the Department of
Transportation and Communications (DOTC).

Now that the PCG is under the DOTC and no longer part of the Philippine Navy or the Armed Forces of the Philippines, the
promotions and appointments of respondent officers of the PCG, or any PCG officer from the rank of captain and higher for that
matter, do not require confirmation by the CA.

Section 16, Article VII of the 1987 Constitution 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.

It is clear from the foregoing provision of the Constitution that only appointed officers from the rank of colonel or naval captain in
the armed forces require confirmation by the CA. The rule is that the plain, clear and unambiguous language of the Constitution
should be construed as such and should not be given a construction that changes its meaning.i[3]

The enumeration of appointments subject to confirmation by the CA under Section 16, Article VII of the 1987 Constitution is
exclusive. The clause officers of the armed forces from the rank of colonel or naval captain refers to military officers alone. This
is clear from the deliberations of the Constitutional Commission on the proposed text of said Section 16, Article VII of the
Constitution. Since the promotions and appointments of respondent officers are not covered by the above-cited provision of the
Constitution, the same need not be confirmed by the CA.i[4]

Accordingly, the Court declares that no grave abuse of discretion amounting to lack or excess of jurisdiction was committed by
respondent officers of the PCG. Their assumption to office as well as the disbursement of their respective salaries and other
emoluments by the respondent Secretary of the DBM are hereby declared valid and legal.

WHEREFORE, the petition is hereby DISMISSED.

SO ORDERED.
Macalintal v. Comelec GR. 157013

CONCURRING AND DISSENTING OPINION

PUNO, J.:

With all due respect, I would like to offer my humble views on the constitutional issues presented by the petitioner, viz:

A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who are immigrants or permanent
residents in other countries by their mere act of executing an affidavit expressing their intention to return to the
Philippines, violate the residency requirement in Section 1 of Article IV of the Constitution?

B. Does Section 18. 5 of the same law empowering the COMELEC to proclaim the winning candidates for national
offices and party-list representatives including the President and the Vice-President violate the constitutional
mandate under Section 4, Article VII of the Constitution that the winning candidates for President and Vice-
President shall be proclaimed as winners by Congress?

C. May Congress, through the Joint Congressional Oversight Committee created in Section 25 of Rep. Act No.
9189, exercise the power to review, revise, amend, and approve the Implementing Rules and Regulations that
the Commission on Elections shall promulgate without violating the independence of the COMELEC under
Section 1, Article IX-A of the Constitution?

To start off, let me stress the significance of the case at bar. Rep. Act No. 9189,i[1] otherwise known as The Overseas Absentee
Voting Act of 2003 is a historic attempt to translate to reality a long awaited dream: the enfranchisement of millions of overseas
Filipinos. Undoubtedly, the efforts of Congress to give flesh to section 2, Article V of the 1987 Constitution mandating it to devise
a system for absentee voting for qualified Filipinos abroad, deserves the highest commendation. However, Rep. Act No. 9189
poses far reaching constitutional issues that merit more than an invocation of abstract legal principles or a simplistic construction
of the Constitution. For one, the petition affects the value of the right of suffrage, a right that is the cornerstone of our democratic
government. It is the responsibility of this Court to strike a balance between the need to expand the right of suffrage in favor of
those who cannot exercise it and the need to prevent the dilution of the right of suffrage of those already exercising it. For
another, the petition compels this Court to define the extent and the limits of Congress oversight powers or legislative veto over
subordinate legislations or the rules and regulations promulgated by administrative agencies of government. Undoubtedly, this
oversight power is indispensable for Congress to discharge its broad power to legislate. Thus, it again behooves this Court to
draw the precise parameters of the oversight power sought to be exercised by Congress to preserve the delicate balance of
powers allocated to the different branches of our government in the Constitution.

Prescinding from these premises, let me discuss the issues in seriatim.

A.

Does section 5 (d) of Rep. Act No. 9189 violate section 1, Article V of the 1987 Constitution?

Petitioner submits that section 5, par. (d) of Rep. Act No. 9189 is unconstitutional for it allows immigrants or permanent
residents of foreign countries to vote for President, Vice-President, Senators, and party-list representatives by mere execution
of an affidavit stating that: (a) he shall resume actual, physical, permanent residence in the Philippines not later than three (3)
years from approval of his registration; and (b) that he has not applied for citizenship in another country, viz:

Sec. 5. Disqualifications.- The following shall be disqualified from voting under this Act.

(d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon
registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual
physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration
under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to
return shall be cause for the removal of the name of the immigrant or permanent resident from the National Registry of
Absentee Voters and his/her permanent disqualification to vote in absentia. (emphasis ours)

Petitioner also contends that section 2, Article V of the 1987 Constitutioni[2] limits the authority of Congress to provide a system
for absentee voting to those Filipinos who are temporarily absent in the Philippines but otherwise satisfy the requirements
under section 1 thereof, including the one year residence in the Philippines and six months residence in the place where they
propose to vote. i[3]
Citing our ruling in Caasi v. Court of Appeals,i[4] the petitioner avers that a Filipino who is an acknowledged immigrant or
permanent resident of a foreign country does not possess the necessary residence requirements as he is deemed to have
already abandoned his domicile in the Philippines. He alleges that the challenged provision amends or alters the residence
requirements by granting conditional residence qualification to an immigrant or permanent resident or through the execution of
an affidavit.i[5]

The majority, thru our esteemed colleague, Madam Justice Martinez, rules that section 2, Article V of the 1987 Constitution
mandating Congress to devise a system for overseas absentee voting operates as an exception to the residence requirements
as the members of the Constitutional Commission manifested a clear intent to enfranchise as much as possible all Filipino
citizens abroad who have not abandoned their domicile of origin, viz:i[6]

By the doctrine of necessary implication in statutory construction, which may be applied in construing constitutional provisions,
the strategic location of Section 2 indicates that the Constitutional Commission provided for an exception to the actual
residency requirement of Section 1 with respect to qualified Filipinos abroad. The same Commission has in effect declared that
qualified Filipinos who are not in the Philippines may be allowed to vote even though they do not satisfy residency requirement
in Section 1, Article V of the Constitution.i[7] (emphases ours)

The majority further holds that if actual physical residence in the Philippines is required, there is no sense for the framers of the
Constitution to mandate Congress to establish a system for absentee voting.i[8]

The majority affirms our ruling in Caasi v. Court of Appealsi[9] that an immigrant or permanent resident of a foreign country is
deemed to have relinquished his residence in his country of origin. However, it rules that this presumption is overturned by
the execution of the affidavit required under the challenged provision of Rep. Act No. 9189. Allegedly, the affidavit is an
explicit expression that an immigrant or permanent resident has not relinquished his domicile in the Philippines, to wit:

Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or enfranchising act. The affidavit
required in Section 5(d) is not only proof of the intention of the immigrant or permanent resident to go back and resume
residence in the Philippines, but more significantly, it serves as an explicit expression that he had not in fact abandoned his
domicile of origin. Thus, it is not correct to say that the execution of the affidavit under Section 5(d) violates the Constitution
that proscribes provisional registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise.

To repeat, the affidavit is required of immigrants and permanent residents abroad because by their status in their host countries,
they are presumed to have relinquished their intent to return to this country; thus, without the affidavit, the presumption of
abandonment of Philippine domicile shall remain.i[10] (emphases ours)

The majority further rules that the act of the immigrant or permanent resident in executing an affidavit pursuant to section 5(d)
may be considered as an express waiver of his status as an immigrant or permanent resident. Thus, the majority concludes
that section 5(d) of Rep. Act No. 9189 is not unconstitutional.

With all due respect, I disagree with the majority. But before discussing the reasons for my dissent, let me put the issue in its
proper historical perspective.

Suffrage is an attribute of citizenshipi[11] and is ancillary to the principle of republicanism enshrined in section 1, Article II of the
1987 Constitution.i[12] The right of suffrage, however, is not absolute. No political system in the whole world has literally
practiced universal suffrage, even among its citizens.i[13] The scarlet history of the right of suffrage shows that restrictions have
always been imposed on its exercise.

In England, for instance, suffrage originated as a political privilege granted to land owners by the monarchs.i[14] The grant arose
from the theory that in the formation of the state, the people agreed to surrender to the King all political sovereignty. In return, the
King extended suffrage to the freeholders as a vested right. The origin and character of suffrage in England is chronicled by
Chief Justice Holt in Ashby v. White, et al.,i[15] viz:

The election of knights belongs to the freeholders of the counties, and it is an original right vested in and inseparable from the
freehold, and can be no more severed from the freehold than the freehold itself can be taken away. Before the statute of 8 Hen.
6, ch. 7, any man that had a freehold, though never so small, had a right of voting; but by that statute the right of election is
confined to such persons as have lands or tenements to the yearly value of forty shillings at least, because, as the statute says,
of the tumults and disorders which happened at elections by the excessive and outrageous number of electors; but still the right
of election is an original incident to and inseparable from freehold. As for citizens and burgesses, they depend on the same
rights as the knights of shires differ only as to the tenure; but the right and manner of their election is on the same
foundation.i[16]
The economic theory of suffrage is also evident in the early history of the United States. The 1787 U.S. Constitution, as originally
adopted, did not expressly provide the right to vote.i[17] The States were left to determine who should have the right to vote in
national as well as local elections. Most States restricted the right of suffrage to white males over twenty-one years of age with a
certain amount of property.i[18] Other States also required religious,i[19] literacy, and moral qualifications.i[20]

Some legal scholars, however, contend that the right of suffrage is presumed from the provision of the Constitution guaranteeing
each state a republican form of government.i[21] Veering away from the economic theory of suffrage prevalent in England, these
scholars argue that in forming the state, the people did not give up all their sovereign powers but merely delegated the exercise
of these powers to some chosen representatives. The right of suffrage is one of these delegated powers, viz:

The people, in their original sovereign character are the fountainhead of governmental authority, and all the powers necessary to
be exercised in the continued administration of a representative government originated and are delegated by exertion of their
sovereign will. These propositions, founded on necessity, and illustrated by long continued practice, have become the received
doctrines of the American people The people, in clothing a citizen with the elective franchise for the purpose of securing a
consistent and perpetual administration of the government they ordain, charge him with the performance of a duty in the nature
of a public trust, and in that respect constitute him a representative of the whole people. This duty requires that the privilege thus
bestowed should be exercised, not exclusively for the benefit of the citizen or class of citizens professing it, but in good faith and
with an intelligent zeal for the general benefit and welfare of the Statei[22]

As a privilege delegated by the people, a citizen acquires no indefeasible right to the continuous exercise or enjoyment of the
right of suffrage. The people of the State, in the exercise of their sovereign power, may disqualify, suspend or entirely withdraw it
from any citizen or class of them, providing always that representation of the people, the essential characteristics of a republican
government, be not disregarded or abandoned.i[23]

Following the shift in its theoretical basis, the right of suffrage was extended to broader classes of citizens. In 1870, the Fifteenth
Amendment was enacted prohibiting the federal government and the states from discriminating on the basis of race, color or
previous conditions of servitude. In 1920, the Nineteenth Amendment was ratified providing that the right of citizens to vote shall
not be denied or abridged by the United States or by any State on account of sex. In 1964, the Twenty-fourth Amendment was
adopted providing that the right of any citizen to vote for President, Vice-President or members of Congress shall not be denied
or abridged by the United States or any State by reason of failure to pay any poll tax or other tax. In 1971, the Twenty-sixth
Amendment was passed providing that the right of any citizen eighteen years or older to vote shall not be denied or abridged by
the United States or by any State on account of age.

In our jurisdiction, the right of suffrage has evolved from a mere statutory right to a constitutional right. Our first election
law was Act No. 1582, which took effect on January 15, 1907. We had no elections during the Spanish occupation of the
country.

Like its foreign counterparts, the qualifications for the exercise of the right of suffrage set in section 14 of Act No. 1582 were
elitist and gender-biased. The right of suffrage was limited to male citizens twenty-three years of age or over with legal residence
for a period of six months immediately preceding the election in the municipality in which they exercise the right of suffrage.
Women were not allowed to vote for they were regarded as mere extensions of the personality of their husbands or fathers, and
that they were not fit to participate in the affairs of government.i[24] But even then, not all male citizens were deemed to possess
significant interests in election and the ability to make intelligent choices. Thus, only those falling under any of the following three
classes were allowed to vote: (a) those who, prior to the August 13, 1898, held office of municipal captain, governadorcillo,
alcalde, lieutenant, cabeza de barangay, or member of any ayuntamiento; (b) those who own real property with the value of five
hundred pesos or who annually pay thirty pesos or more of the established taxes; or (c) those who speak, read and write English
or Spanish.

But apart from possessing the necessary qualifications, a voter must not suffer from any disqualification. We elaborated the
reasons for setting disqualifications for the exercise of the right of suffrage in People v. Corral,i[25] viz:

The modern conception of suffrage is that voting is a function of government. The right to vote is not a natural right but it is a
right created by law. Suffrage is a privilege granted by the State to such persons or classes as are most likely to exercise it for
the public good. In the early stages of the evolution of the representative system of government, the exercise of the right of
suffrage was limited to a small portion of the inhabitants. But with the spread of democratic ideas, the enjoyment of the franchise
in the modern states has come to embrace the mass of the adult male population. For reasons of public policy, certain classes of
persons are excluded from the franchise. Among the generally excluded classes are minors, idiots, paupers, and convicts.

The right of the State to deprive persons of the right of suffrage by reason of their having been convicted of crime, is beyond
question. The manifest purpose of such restrictions upon this right is to preserve the purity of elections. The presumption is that
one rendered infamous by conviction of felony, or other base offenses indicative of moral turpitude, is unfit to exercise the
privilege of suffrage or to hold office. The exclusion must for this reason be adjudged a mere disqualification, imposed for
protection and not for punishment, the withholding of a privilege and not the denial of a personal right.i[26]
On November 9, 1933, the Philippine Legislature enacted Act No. 4122 extending the right of suffrage to Filipino women starting
January 1, 1935. However, before they could exercise their new right, the 1935 Constitution was adopted, once again, limiting
the right of suffrage to male citizens, viz:

Suffrage may be exercised by male citizens of the Philippines not otherwise disqualified by law, who are twenty-one years of age
or over and are able to read and write, and who shall have resided in the Philippines for one year and in the municipality wherein
they propose to vote for at least six months preceding the election. The National Assembly shall extend the right of suffrage to
women, if in a plebiscite which shall be held for that purpose within two years after the adoption of this Constitution, not less than
three hundred thousand women possessing the necessary qualifications shall vote affirmatively on the question.

During the deliberations of the Constitutional Convention, it was conceded that Filipino women were capable of exercising the
right of suffrage. Their right, however, was opposed on the following grounds: (1) there was no popular demand for suffrage by
Filipino women themselves; (2) woman suffrage would only disrupt family unity; and (3) it would plunge women into the quagmire
of politics, dragging them from the pedestal of honor in which they had theretofore been placed.i[27] Thus, in its report to the
President of the Convention on September 24, 1934, the Committee on Suffrage said:

The committee refrains from stating in this report the reasons on which it bases its decision to withdraw the right of suffrage from
the women and will merely say that the principal idea in the minds of the members not in favor of extending suffrage to women
was that the sweet womanliness of the Philippine women should be projected from political strife and passion in order that sweet
home may not lose any of its sweetness.i[28]

The proponents of woman suffrage in reply argued that it would be unfair to deprive Filipino women of the right of suffrage
already granted to them by the legislature without giving them the chance to prove whether they deserved it or not. They also
submitted that the right would make them more interested in the management of the affairs of government and that it was
necessary as a matter of justice to extend the frontiers of our democracy to our women who had labored hard side by side with
our men for the progress and development of the country.i[29] In a last ditch attempt to save the cause of woman suffrage,
women leaders distributed a petition to individual delegates that reads:

We, the undersigned, duly elected representatives of women who believe in the justice and wisdom of the enfranchisement of
the Filipino women, protest most solemnly against women being deprived of the vote in the Constitution of the Commonwealth
and against any change in the existent Law, No. 4112, passed by the Ninth Philippine Legislature on November ninth, 1933, and
signed by Governor-General Frank Murphy on December seventh, 1934.

We call the attention of the Constitutional Assembly and the Legislature to the plea for liberty made before the Congress and the
President of United States for thirty-seven years by the Filipinos; a plea based on the fact that we are a liberty-loving people
equipped and capable of self-government. Such government cannot exist half-slave and half-free. The women of this Christian
land, serene in the knowledge that in peace or war they have never failed their men or their country, in this crucial hour of the
realization of the sacrifice and devotion of the years, insist upon their political recognition and their share in the triumph of the
cause of liberty.

It is not a matter of plebiscite nor specific numbers. It is a right earned, deserved and therefore claimed. It is not a matter of sex.
In a democratic government all qualified citizens, men and women alike, can and should make their valuable contribution in
deciding what their community will undertake to do through its government, by what means, and through what officials.

Under the law women suffer penalties, are summoned before the courts by law- laws they have had no voice in making- and pay
taxes. Taxation without representation is tyranny and more so in 1934 than in 1776.

So confident of the unalterable righteousness of this cause, to you, gentlemen of the Constitutional Assembly, we appeal for
justice believing and knowing that our cause is a just one, and that our rights have been won thru years of sacrifice, devotion and
service to our common cause- the cause of men and women alike- the welfare and progress of our native land- the
Philippines.i[30]

In the end, a compromise was reached limiting the right of suffrage to male citizens and leaving the issue of women suffrage for
the women to decide. In the plebiscite held on April 30, 1937, more than three hundred thousand women voted for woman
suffrage. Thenceforth, Filipino women were allowed to vote, thus, paving the way for women participation in the government.

To broaden the mass base of voters, the 1935 Constitution lowered the age requirement from 23 years to 21 years. The
literacy requirement was also relaxed. It is to be noted that from the opening days of the Convention, there was a prevalent
sentiment among the delegates to bar illiterates from exercising the right of suffrage. It was proposed that only those who can
read and write English, Spanish, or other local dialects should be allowed to vote. This proposal was defeated for the drafters felt
that while the ability to read and write was necessary,i[31] the specification of any language or dialect would be discriminatory
against the Mohammedans:
It is discriminatory against a respectable minority of the population of the Philippines. It would serve to discriminate against the
Mohammedan population of the Philippines for which I am one of the humble representatives. It is the opinion of this Convention,
I think, to emancipate, to enfranchise our backward elements, especially the Mohammedan population. And you would like to
curtail that right and that privilege by inserting a provision that only those who can read and write either English, Spanish, or any
of the local dialects shall be allowed to vote. This amendment would preclude the Mohammedans because their Arabic writing is
not included under local dialects. Because when you say, local dialects, you refer to the dialect and not to the system of writing.
The system of writing is either Arabic or Roman. In view of this fact, Mr. President, I hope that you will be liberal and tolerant
enough to reject this proposed amendment because it is unnecessary and because it is discriminatory.i[32]

Furthermore, the 1935 Constitution removed the property qualifications under Act No. 1582. We explained the reason for this
removal in Maquera v. Borra,i[33] viz:

property qualifications are inconsistent with the nature and essence of the republican system ordained in our constitution and the
principle of social justice underlying the same, for said political system is premised upon the tenet that sovereignty resides in the
people and all government authority emanates from them, and this, in turn, implies necessarily that the right to vote and to be
voted for shall not be dependent upon the wealth of the individual concerned, whereas social justice presupposes equal
opportunity for all, rich and poor alike, and that, accordingly, no person shall by reason of poverty, be denied the chance to be
elected to the public office.i[34]

In sum, the 1935 Constitution gave a constitutional status to the right of suffrage. Thus, suffrage is not anymore a
privilege granted by the legislature, but a right granted by the sovereign people to a definite portion of the population possessing
certain qualifications. To be sure, the right of suffrage was still subject to regulation by the legislature but only in accordance with
the terms of the Constitution.

The march towards liberalization of the right of suffrage continued with the 1973 Constitution. The literacy requirement was
removed while the age bar was further lowered from 21 years to 18 years. Thus, section 1, Article VI of the 1973 Constitution
reads:

Section 1. Suffrage shall be exercised by citizens of the Philippines not otherwise disqualified by law, who are eighteen
years of age or over, and who shall have resided in the Philippines for at least one year and in the place wherein they
propose to vote for at least six months preceding the election. No literacy, property or other substantive requirement
shall be imposed on the exercise of suffrage. The National Assembly shall provide a system for the purpose of
securing the secrecy and sanctity of the vote. (emphasis ours)

The rationale for these changes was expressed in the Explanatory Note of Resolution No. 03 of the Committee on Suffrage and
Electoral Reforms, viz:

In keeping with the trend for the broadening of the electoral base already begun with the lowering of the voting age to 18 and in
keeping with the committees desire to continue the alienation and exclusion of millions of citizens from the political system and
from participation in the political life in the country, the requirement of literacy for voting has been eliminated. It is noted that
there are very few countries left in the world where literacy remains a condition for voting. There is no Southeast Asian country
that imposes this requirement. The United States Supreme Court only a few months ago declared unconstitutional any state law
that would continue to impose this requirement for voting.

Although there were more resolutions submitted proposing the increase of educational requirements for voting than those
advocating the elimination of the literacy requirement, the committee felt that favoring the elimination of the requirement would
be more in keeping with its objective and that of the Constitutional Convention encouraging popular participation and equalizing
the privileges and rights of the people

According to the Bureau of Census and Statistics, the projection for the population of the Philippines over 18 years old for 1970
is 17,659,000. Of this, 12,384,000 are considered literates. However, the same Bureau admitted that there is no real scientific
literacy test in counting literates. All that is done is to ask each member of the population the question whether he is able to read
and write and to take his answer at its face value.

These circumstances plus the well-known practice in all elections in which political leaders spend their time in the barrios
showing the prospective voters to write the name of the candidates instead of explaining the political issues to them,
strengthened the conviction of the committee that present literacy requirement is more of a joke, and worse, a deterrent to
intelligent discussions of the issues. Finally, the committee took note of the convincing argument that the requirement to read
and write was written into our constitution at a time when the only medium of information was the printed word and even the
public meetings were not as large and successful because of the absence of amplifying equipment. It is a fact that today the vast
majority of the population learn about national matters much more from the audio-visual media, namely, radio and television, and
public meetings have become much more effective since the advent of amplifying equipment.
In addition, the 1973 Constitution provided that no property or other substantive requirement shall be imposed on the exercise of
suffrage.

The 1987 Constitution further liberalized the right of suffrage. For the first time, it required Congress to provide a system for
absentee voting by qualified Filipinos abroad and to design a procedure for the disabled and the illiterates to vote without
assistance from other persons. Be that as it may, four qualifications existing since the 1935 Constitution were retained:
(1) Filipino citizenship; (2) age; (3) one year residence in the Philippines; and (4) six months residence in the place where the
voter proposes to vote. The wisdom of these four qualifications has not been questioned at any given time in the history
of our suffrage. It is easy to see the reason. Suffrage is a political right appertaining to citizenship. Each individual qualified
to vote is a particle of popular sovereignty, hence, the right of suffrage cannot be extended to non-citizens. As an attribute of
citizenship, suffrage is reserved exclusively to Filipinos whose allegiance to the country is undivided.i[35]

It is also conceded that the right of suffrage can be exercised only by persons of a certain age. Nobody could doubt the reason
for preventing minors from taking part in the political exercise. Voting is an act of choice and involves prescience. It requires not
only a familiarity of political realities but also the maturity to make reasoned choices out of these realities.i[36]

But citizenship and age requirements are not enough. For the vote to be more meaningful as an expression of sovereignty, the
voter must possess more than a passing acquaintance with the problems and prospects of the country. Thus, residence is
imposed as a qualification to exclude a stranger and a newcomer, unacquainted with the conditions and needs of the community
and not identified with the latter. i[37] The residence requirement is also necessary for administrative purposes such as the
preparation of accurate list of voters.i[38]

I now come to the case at bar. The first issue is whether section 5(d) of Rep. Act No. 9189 extending the right of suffrage to
Filipinos who are immigrants or permanent residents of foreign countries is unconstitutional. To resolve this issue, the following
need to be addressed: (1) whether section 2, Article V of the Constitution dispenses with the residence requirements prescribed
in section 1 thereof; (2) whether an immigrant or a permanent resident satisfies the residence requirements; (3) whether the
execution of an affidavit is sufficient proof of non-abandonment of residence in the Philippines; and (4) whether the system
provided in section 5(d) of Rep. Act No. 9189 will dilute the right of suffrage of other Filipino voters who possess the full
residence qualifications under section 1, Article VI of the Constitution.

(1) Whether section 2 of Article V dispenses with the residence requirements prescribed in section 1 of the
same Article.

Section 1, Article V of the 1987 Constitution prescribes two residence qualifications: (a) one year residence in the Philippines;
and (2) six months residence in the locality where the voter proposes to vote.

In its ordinary conception, residence connotes the actual relationship of an individual to a specific place. To be a resident,
physical presence of a person in a given area, community or country is required.i[39] Even before the adoption of the 1935
Constitution, jurisprudence has equated the first residence requirement (one year residence in the Philippines) with domicile
or legal residence.i[40] Domicile in turn has been defined as an individual's permanent home or the place to which, whenever
absent for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they
disclose intent."i[41] The domicile of a person is determined by the concurrence of the following elements: (1) the fact of residing
or physical presence in a fixed place; and (2) animus manendi, or the intention of returning there permanently.i[42] The mere
absence of an individual from his permanent residence without the intention to abandon it does not result in a loss or change of
domicile.i[43]

The second residence requirement (six months residence in the place the voter proposes to vote) refers to either the voters
domicile or to his temporary residence.i[44] A voter who is domiciled in a particular locality but has resided for six months in
another locality may register and vote in either locality, but not in both. To be sure, a person fulfilling the first residence
requirement also fulfills the second so long as the voter registers in his established domicile. The second residence
requirement is relevant for two purposes: (1) the determination of the place where the voter will register, and (2) the
determination of the place where the voter will vote. It ought to be noted that as a general rule, a person should register and vote
in the place where he has established his domicile or the place where he has resided for six months.

The intent of the members of the Constitutional Commission to apply the residence requirements to absentee voters is
evident from its deliberations. They precisely used the phrase QUALIFIED FILIPINOS ABROAD to stress that the absentee
voter must have all the qualifications in section 1, Article VI of the Constitution, viz:

MR. SUAREZ. May I just be recognized for a clarification. There are certain qualifications for the exercise of the right of suffrage
like having resided in the Philippines for at least one year and in the place where they propose to vote for at least six months
preceding the elections. What is the effect of these mandatory requirements on the matter of the exercise of the right of suffrage
by the absentee voters like Filipinos abroad?
THE PRESIDENT. Would Commissioner Monsod care to answer?

MR. MONSOD. I believe the answer was already given by Commissioner Bernas, that the domicile requirements as well as
the qualifications and disqualifications would be the same.

THE PRESIDENT. Are we leaving it to the legislature to devise the system?

FR. BERNAS. I think there is a very legitimate problem raised there.

THE PRESIDENT. Yes.

MR. BENGZON. I believe Commissioner Suarez is clarified.

FR. BERNAS. But I think it should be further clarified with regard to the residence requirement or the place where they vote in
practice; the understanding is that it is flexible. For instance, one might be a resident of Naga or domiciled therein, but he
satisfies the requirement of residence in Manila, so he is able to vote in Manila.

MR. TINGSON. Madam President, may I suggest to the Committee to change the word Filipinos to QUALIFIED FILIPINO
VOTERS. Instead of VOTING BY FILIPINOS ABROAD, it should be QUALFIED FILIPINO VOTERS. If the Committee wants
QUALIFIED VOTERS LIVING ABROAD, would that not satisfy the requirement?

THE PRESIDENT. What does Commissioner Monsod say?

MR. MONSOD. Madam President, I think I would accept the phrase QUALIFIED FILIPINOS ABROAD because QUALIFIED
would assume that he has the qualifications and none of the disqualifications to vote.

MR. TINGSON. That is right. So does the Committee accept?

FR. BERNAS. QUALIFIED FILIPINOS ABROAD?

THE PRESIDENT. Does the Committee accept the amendment?

MR. REGALADO. Madam President.

THE PRESIDENT. Commissioner Regalado is recognized.

MR. REGALADO. When Commissioner Bengzon asked me to read my proposed amendment, I specifically stated that the
National Assembly shall prescribe a system which will enable qualified citizens, temporarily absent from the Philippines, to
vote. According to Commissioner Monsod, the use of the phrase absentee voting already took into account as its meaning. That
is referring to qualified Filipino citizens temporarily abroad.

MR. MONSOD. Yes, we accepted that. I would like to say that with respect to registration we will leave it up to the legislative
assembly, for example, to require where the registration is. If it is, say, members of the diplomatic corps who may be
continuously abroad for a long time, perhaps, there can be a system of registration in the embassies. However, we do not like to
preempt the legislative assembly.

THE PRESIDENT. Just to clarify, Commissioner Monsods amendment is only to provide a system.

MR. MONSOD. Yes.

THE PRESIDENT. The Commissioner is not stating here that he wants new qualifications for these absentee voters.

MR. MONSOD. That is right. They must have the qualifications and none of the disqualifications.

THE PRESIDENT. It is just to devise a system by which they can vote.

MR. MONSOD. That is right, Madam President.i[45]

In the course of the deliberations, Fr. Bernas perceived a problem that may arise from the meaning of the second residence
requirement on the place of registration and voting. As noted, a qualified voter normally registers and votes in the place where
he is domiciled or has resided for six months. Fr. Bernas feared that the second residence requirement may pose a
constitutional obstacle to absentee voting unless the vote of the person who is absent is a vote which will be considered
as cast in the place of his domicile, viz:

MR. OPLE. With respect to Section 1, it is not clear whether the right of suffrage, which here has a residential restriction, is not
denied to citizens temporarily residing or working abroad. Based on the statistics of the government agencies, there ought to be
about two million such Filipinos at this time. Commissioner Bernas had earlier pointed out that these provisions are really lifted
from the two previous Constitutions of 1935 and 1973, with the exception of the last paragraph. They could not therefore have
foreseen at that time the phenomenon now described as the Filipino labor force explosion overseas.

According to government data, there are now about 600,000 contract workers and employees, and although the major portions
of these expatriate communities of workers are found in the Middle East, they are scattered in 177 countries in the world.

In previous hearings of the Committee on Constitutional Commissions and Agencies, the Chairman of the Commission on
Elections, Ramon Felipe, said that there was no insuperable obstacle to making effective the right of suffrage for Filipinos
overseas. Those who have adhered to their Filipino citizenship notwithstanding strong temptations are exposed to embrace a
more convenient foreign citizenship. And those who on their own or under pressure of economic necessity here, find that they
have detached themselves from their families to work in other countries with definite tenures of employment. Many of them are
on contract employment for one, two, or three years. They have no intention of changing their residence on a permanent basis,
but are technically disqualified from exercising the right of suffrage in their countries of destination by residential requirement in
Section 1

I, therefore, ask the Committee whether at the proper time, they might entertain an amendment that will make this exercise of the
right to vote abroad for Filipino citizens an effective, rather than merely a nominal right under this proposed Constitution.

FR. BERNAS. Certainly, the Committee will consider that. But more than just saying that, I would like to make a comment on the
meaning of residence in the Constitution because I think it is a concept that has been discussed in various decisions of the
Supreme Court, particularly in the case of Faypon vs. Quirino, a 1954 case which dealt precisely with the meaning of residence
in the Election Law

In other words, residence in this provision refers to two residence qualifications: residence in the Philippines and residence in the
place where he will vote. As far as the residence in the Philippines is concerned, the word residence means domicile, but as far
as residence where he will actually cast his ballot is concerned, the meaning seems to be different. He could have a domicile
somewhere else and yet he is allowed to vote there. So that there may be serious constitutional obstacles to absentee voting,
unless the vote of the person who is absent is a vote which will be considered as cast in the place of his domicile.i[46]
(emphasis supplied)

Following the observation of Father Bernas and to obviate the constitutional problem, the members of the Constitutional
Commission then discussed the system of registration of qualified Filipinos abroad who will be allowed to vote. It was agreed
that their registration abroad would be considered as registration in a particular locality in the Philippines where he is domiciled,
and the vote cast abroad would be considered cast in that particular locality, to wit:

MR. REGALADO. I just want to make a note on the statement of Commissioner Suarez that this envisions Filipinos residing
abroad. The understanding in the amendment is that the Filipino is temporarily abroad. He may or may not be actually
residing abroad; he may just be there on a business trip. It just so happens that the day before the elections he has to fly to the
United States, so that he could not cast his vote. He is temporarily abroad but not residing there. He stays in a hotel for two days
and comes back. This is not limited only to Filipinos temporarily residing abroad. But as long as he is temporarily abroad on the
date of the elections, then he can fall within the prescription of Congress in that situation.

MR. SUAREZ. I thank the Commissioner for his further clarification. Precisely, we need this clarification on record.

MR. MONSOD. Madam President, to clarify what we mean by temporarily abroad, it need not be on very short trips. One can be
abroad on a treaty traders visa. Therefore, when we talk about registration, it is possible that his residence is in Angeles and he
would be able to vote for the candidates in Angeles, but Congress or the Assembly may provide the procedure for
registration, like listing ones name, in a registry list in the embassy abroad. That is still possible under this system.

FR. BERNAS. Madam President, just one clarification if Commissioner Monsod agrees with this.

Suppose we have a situation of a child of a diplomatic officer who reaches the voting age while living abroad and he has never
registered here. Where will he register? Will he be a registered voter of a certain locality in the Philippines?
MR. MONSOD. Yes, it is possible that the system will enable that child to comply with the registration requirements in an
embassy in the United States and his name is then entered in the official registration book in Angeles City, for instance.

FR. BERNAS. In other words, he is not a registered voter of Los Angeles, but a registered voter of a locality here.

MR. MONSOD. That is right. He does not have to come home to the Philippines to comply with the registration procedure here.

FR. BERNAS. So, he does not have to come home.i[47] (emphases ours)

It is crystal clear from the foregoing deliberations, that the majority erred in ruling that section 2 of Article V of the Constitution
dispensed with the residence requirements provided under section 1 of the same Article.

(2) Whether an immigrant or a permanent resident of a foreign country has lost his domicile in the
Philippines.

The next question is whether an immigrant or a permanent resident of a foreign country has abandoned his domicile in
the Philippines. I respectfully submit that he has.

There are three classes of domicile, namely: domicile of origin, domicile of choice, and domicile by operation of law. At any
given point, a person can only have one domicile.

Domicile of origin is acquired by every person at birth and continues until replaced by the acquisition of another domicile. More
specifically, it is the domicile of the childs parents or of the persons upon whom the child is legally dependent at birth. Although
also referred to as domicile of birth, domicile of origin is actually the domicile of ones parents at the time of birth and may not
necessarily be the actual place of ones birth.i[48] Domicile of choice is a domicile chosen by a person to replace his or her
former domicile. An adult may change domicile at will. The choice involves an exercise of free will and presumes legal capacity
to make a choice. While intention is a principal feature of domicile of choice, a mere intention without the fact of actual presence
in the locality cannot bring about the acquisition of a new domicile. Domicile of choice generally consists of a bodily presence in
a particular locality and a concurrent intent to remain there permanently or at least indefinitely.i[49] Domicile by operation of
law is a domicile that the law attributes to a person independent of a persons residence or intention. It applies to infants,
incompetents, and other persons under disabilities that prevent them from acquiring a domicile of choice.i[50]

In Romualdez-Marcos v. COMELEC,i[51] we ruled that domicile of origin is not easily lost. To successfully effect a change
of domicile, one must demonstrate an actual removal or an actual change of domicile; a bona fide intention of abandoning the
former place of residence and establishing a new one; and acts which correspond with purpose.i[52] This change of domicile
is effected by a Filipino who becomes an immigrant or a permanent resident of a foreign country. Thus, we held in Caasi
v. Court of Appeals, i[53] viz:

Miguels application for immigrant status and permanent residence in the U.S. and his possession of a green card attesting to
such status are conclusive proof that he is a permanent resident of the U.S. despite his occasional visits to the Philippines. The
waiver of such immigrant status should be as indubitable as his application for it. Absent clear evidence that he made an
irrevocable waiver of that status or that he surrendered his green card to the appropriate U.S. authorities before he ran for mayor
i[54]

The doctrine in Caasi is by no means new. Our election laws have continuously regarded immigrants or permanent residents of
a foreign country to have lost their domiciles in the Philippines and hence are not qualified to run for public office.i[55] There is
no reason not to apply the Caasi ruling in disputes involving the qualification of voters. In essence, both cases concern
fulfillment of the residence requirements.

Section 5(d) of Rep. Act No. 9189 itself reinforces the applicability of the Caasi doctrine. As observed by the majority, Rep. Act
No. 9189 disqualifies an immigrant or a permanent resident who is recognized as such in another country because immigration
or permanent residence in another country implies renunciation of ones residence in his country of origin.i[56]

We now slide to the legal significance of the affidavit to be executed by immigrants or permanent residents to remove them from
the class of disqualified voters.

(3) Whether the execution by an immigrant or a permanent resident of the affidavit under section 5(d) of
Rep. Act No. 9189 is sufficient proof of non-abandonment of residence in the Philippines.

Again, with due respect, I submit that the majority ruling on the nature of the affidavit to be executed by an immigrant or a
permanent resident is inconsistent. On one hand, it theorizes that the act serves as an explicit expression that he had not in
fact abandoned his domicile of origin.i[57] This concedes that while an immigrant or a permanent resident has acquired a new
domicile in a foreign country by virtue of his status as such, Rep. Act No. 9189 would consider him not to have abandoned his
domicile in the Philippines. On the other hand, the majority also theorizes that the affidavit constitutes an express waiver of his
status as an immigrant or permanent resident, and upon fulfillment of the requirements of registration, he may still be considered
as a qualified citizen of the Philippines abroad for purposes of exercising his right of suffrage.i[58] This presupposes that the
immigrant or permanent resident abandoned his domicile in the Philippines, but seeks to reacquire this domicile by the execution
of the affidavit.

The first theory is untenable. Its inevitable result would be the establishment of two domiciles, i.e., domicile in the Philippines
and domicile in a foreign country where he is considered an immigrant or a permanent resident. This ruling will contravene the
principle in private international law that a person can be domiciled only in one place at a given time.i[59]

The second theory is equally untenable. A person who has abandoned his domicile of origin by establishing a domicile of
choice cannot just revert back to his domicile of origin.i[60] He must satisfy the same requisites for acquiring a new domicile, i.e.,
an actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence and
establishing a new one; and acts which correspond with the purpose. An existing domicile cannot be lost by abandonment alone,
even if there is an intent to acquire a new one; the existing domicile continues until a new one is in fact gained. To abandon
domicile, a person must choose a new domicile, actually reside in the place chosen, and intend that it be the principal and
permanent residence. That is, there can be no change of domicile without the concurrence of act and intent.i[61]

The doctrine established in England that the domicile of origin is revived upon the abandonment of a domicile of
choice has long been rejected in the United States.i[62] Even in England, the mobility of modern society has fostered both
criticism of the rule and recommendation for its change.i[63] Thus, the prevailing view at present is that if a domicile of choice is
abandoned without acquiring a new domicile of choice, the domicil[e] of origin is not thereby revived, but the last domicil[e] of
choice continues to be the domicil[e].i[64]

In his Separate Opinion, our esteemed colleague, Mr. Justice Azcuna, opines that the execution of the affidavit is the operative
act that revives the domicile of origin, and the requirement of resuming actual physical presence within three (3) years is only a
test of such intention. He further opines that if the affiant does not resume the residence physically within said period, then the
intent expressed in the affidavit is defective and the law will deem it inoperative.

With due respect, I submit that the affidavit merely proves the intent to return but not the other requisites for
reacquiring the domicile of origin. Intent, which is not coupled with actual physical transfer, is not sufficient either to abandon
the former domicile or to establish a new domicile.i[65] Thus, the view that domicile could be established as soon as the old is
abandoned even though the person has not yet arrived at the new domicile, has not been accepted. In his latest work on the
subject, Scoles, an acknowledged expert in Conflict of Laws stated as follows:

The element of physical presence is essential to confirm the requisite attitude of mind contemplated by the concept of
domicile. As a consequence, a person who is to acquire a domicile of choice at a place must actually be present at that place
during the time in which the intention to make it his home exists. For most people, intention is confirmed by the physical
presence of considerable duration looking toward an indefinite period of time. However, in light of the function that domicile
serves, i.e., to identify a settled relationship with a place for a particular legal purpose, it is sometimes necessary to make a
determination when the physical presence has been very brief. Consequently, no particular length of time is necessary in order
to satisfy the requirement of physical presence if that stay at a place verifies the intention to make it a home.

In the case of the individual who has clearly manifested an intention to change a new home and center of social activities, the
question sometimes arises why that persons domicile should not change as soon as the old is abandoned eventhough the
individual has not yet arrived at the new. Although this has sometimes been suggested as a possibility, it is contrary to the
clear weight of authority, probably because physical presence is ordinarily the principal confirming evidence of the
intention of the person.i[66] (emphases ours)

Beale, another acknowledged expert on the subject, shares the same view, viz:

One or two authorities under special circumstances have held that a domicil[e] might be acquired in a certain place while the
person is on his way toward the place with an intent to live there and during his journey toward that place, although he had not
yet actually reached that place. In two taxation cases in Massachusetts, where upon the taxing day the person in question was
actually on his journey from a former residence in the state to an intended second residence, whether in the same state or in
another state, he was held to be taxable in the second residence in the ground that under those peculiar circumstances his
domicil[e] would shift at the moment of abandoning the first residence. These, however, were disapproved and overruled. In one
other case, a similar intimation has been made. In Matter of Grant, it appeared that a decedent had left a United States
reservation in the State of New York with intention to go to the District of Columbia, and there establish his residence, but he had
died en route. Fowler, Surrogate, intimated that he was already domiciled in the District of Columbia. It is not too much to say,
however, that there is absolutely no good authority for the opinion thus expressed, and that it is legally impossible for a
man to acquire a domicil[e] before he is present at the place where the domicil[e] is established.i[67] (emphasis ours)

Beale also states that with the rejection of the English automatic reversion doctrine, physical presence is required before the
person can reacquire his domicile of origin, viz:

The doctrine in England is that the domicil[e] of origin revives upon the abandonment of a domicil[e] of choice Inspite of a few
English cases to the contrary, this has become thoroughly established as the doctrine of the English courts, the court being
especially emphatic in cases where a person has left his domicil[e] of choice without intent to return and has started to return to
his domicil[e] of origin. Here, evidence must of course be introduced to show a definitive abandonment of domicil[e] of choice by
actually leaving the country without intent to return. The English doctrine has been approved in this country in several cases, in
most of which the approval was a mere dictum, but in the United States, generally, the opposite view is held, and upon the
abandonment of a domicil[e] of choice there is no change of domicil[e] until a new domicil[e] is obtained

On the other hand, a few American cases follow the English decision in so far as to declare that a domicil[e] of origin revives
when a person having abandoned a domicil[e] of choice is on his way to make a home at his domicil[e] of origin, but the better
opinion in this country does not allow the reacquisition of the domicil[e] of origin until the fact of presence at the place
of domicil[e] of origin exists, as well as the intent to return there.i[68] (emphasis ours)

To stress, the burden of establishing a change in domicile is upon the party who asserts it.i[69] A persons declarations as to
what he considers his home, residence, or domicile are generally admissible as evidence of his attitude of mind.i[70] However,
whatever the context, their accuracy is suspect because of their self-serving nature, particularly when they are made to achieve
some legal objective.i[71]

In the case at bar, the burden rests on an immigrant or a permanent resident to prove that he has abandoned his domicile in the
foreign country and reestablished his domicile in the Philippines. A self-serving affidavit will not suffice, especially when what is
at stake is a very important privilege as the right of suffrage. I respectfully submit that what makes the intent expressed in the
affidavit effective and operative is the fulfillment of the promise to return to the Philippines. Physical presence is not a mere test
of intent but the principal confirming evidence of the intention of the person.i[72] Until such promise is fulfilled, he continues to
be a domiciliary of another country. Until then, he does not possess the necessary requisites and therefore, cannot be
considered a qualified voter.

(4) Whether counting the votes of immigrants or permanent residents who fail to return to the Philippines
will dilute the valid votes of our fully qualified electors.

The only consequence imposed by Rep. Act No. 9189 to an immigrant or a permanent resident who does not fulfill his promise
to return to the Philippines is the removal of his name from the National Registry of Absentee Voters and his permanent
disqualification to vote in absentia. But his vote would be counted and accorded the same weight as that cast by bona fide
qualified Filipino voters. I respectfully submit that this scheme diminishes the value of the right of suffrage as it dilutes
the right of qualified voters to the proportionate value of their votes. The one person, one vote principle is sacrosanct in a
republican form of government. The challenged provision which allows the value of the valid votes of qualified voters to be
diminished by the invalid votes of disqualified voters violates the sovereignty of our people. The validation by the majority of
this unconstitutional provision may result in the anomaly where the highest public officials of our land will owe their
election to immigrants or permanent residents who failed to fulfill their promise to return to our country or who
repudiated their domicile here.

The majority downplays the effect of the challenged provision on those who are already qualified prior to the enactment of Rep.
Act No. 9189. It is opined that the removal of an immigrant or a permanent resident from the list of the National Registry of
Absentee Voters and his permanent disqualification would suffice to serve as deterrence to non-compliance with his/her
undertaking under the affidavit. The majority misses the point. Without section 5(d) of Rep. Act No. 9189, an immigrant or a
permanent resident has no right to vote. Thus, even assuming that he becomes qualified after executing the affidavit, he does
not stand to lose anything when he is subsequently disqualified for his failure to comply with his undertaking under the affidavit.
He will just return to his original status.

B.

Is section 18.5 of Rep. Act No. 9189 in relation to section 4 of the same Act in contravention of section 4, Article VII of
the Constitution?

Petitioner contends that section 18.5 in relation to section 4 of Rep. Act No. 9189 violates section 4, Article VII of the 1987
Constitution giving Congress the power to canvass the votes and proclaim the winning candidates for President and Vice-
President, viz:
The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city,
shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the
President of the Senate shall, not later than thirty days after the day of the election, open all certificates in the presence of the
Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and
due execution thereof in the manner provided by law, canvass the votes.

The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and
highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Congress,
voting separately.

The Congress shall promulgate its rules for the canvassing of the certificates.

Section 4 of Rep. Act No. 9189 allows all qualified Filipinos overseas to vote for President, Vice-President, Senators and party-
list representatives while section 18.5 thereof empowers the COMELEC to order the proclamation of winning candidates, viz:

SEC. 18. On-Site Counting and Canvassing.-

18.5 The canvass of votes shall not cause the delay of the proclamation of a winning candidate if the outcome of the election will
not be affected by the results thereof. Notwithstanding the foregoing, the Commission is empowered to order the proclamation of
winning candidates despite the fact the scheduled election has not taken place in a particular country or countries, if the holding
of elections therein has been rendered impossible by events, factors and circumstances peculiar to such country or countries, in
which events, factors and circumstances are beyond the control or influence of the Commission.

On its face, section 18.5 of Rep. Act No. 9189 appears to be repugnant to section 4, Article VII of the 1987 Constitution. It gives
the impression that Congress abdicated to COMELEC its constitutional duty to canvass and proclaim the winning candidates for
President and Vice-President. I agree with the majority that the impugned provision should be given a reasonable interpretation
that would save it from a constitutional infirmity. To be sure, Congress could have not allowed the COMELEC to exercise a
power exclusively bestowed upon it by the Constitution. Thus, section 18.5 of Rep. Act No. 9189 empowering the COMELEC to
proclaim the winning candidates should be construed as limited to the positions of Senators and party-list representatives. In like
manner, I agree with the majority that section 18.4 of Rep. Act No. 9189 which provides:

18.4. Immediately upon the completion of the canvass, the chairman of the Special Board of Canvassers shall transmit via
facsimile, electronic mail, or any other means of transmission equally safe and reliable the Certificates of Canvass and the
Statements of Votes to the Commission,.(emphasis supplied)

should be construed in harmony with section 4, Article VII of the 1987 Constitution. Hence, with respect to the position of the
President and the Vice-President, the Certificates of Canvass and the Statements of Votes must be submitted to Congress and
directed to the Senate President.

C.

Does Congress, through the Joint Congressional Oversight Committee created in section 25 of Rep. Act No. 9189, have
the power to review, revise, amend and approve the Implementing Rules and Regulations that the Commission on
Elections shall promulgate without violating the independence of the COMELEC under section 1, Article IX-A of the
Constitution?

Both the Commission on Elections (COMELEC) and the Office of the Solicitor General (OSG) agree with the petitioner that
sections 19 and 25 of Rep. Act No. 9189 are unconstitutional on the ground that they violate the independence of the
COMELEC.i[73] The impugned provisions require the public respondent COMELEC to submit its Implementing Rules and
Regulations to the Joint Congressional Oversight Committee for review, revision, amendment, or approval, viz:

Sec. 19. Authority of the Commission to Promulgate Rules.- The Commission shall issue the necessary rules and
regulations to effectively implement the provisions of this Act within sixty (60) days from effectivity of this Act. The Implementing
Rules and Regulations shall be submitted to the Joint Oversight Committee created by virtue of this Act for prior
approval.

In the formulation of the rules and regulations, the Commission shall coordinate with the Department of Foreign Affairs,
Department of Labor and Employment, Philippine Overseas Employment Administration, Overseas Workers Welfare
Administration and the Commission on Filipino Overseas. Non-government organizations and accredited Filipino organizations
or associations abroad shall be consulted.
Sec. 25. Joint Congressional Oversight Committee.- A joint Congressional Oversight Committee is hereby created,
composed of the Chairman of the Senate Committee on Constitutional Amendments, Revision of Codes and Laws, and seven
(7) other Senators designated by the Senate President, and the Chairman of the House Committee on Suffrage and Electoral
Reforms, and seven (7) other members of the House of Representatives designated by the Speaker of the House of
Representatives: Provided, That, of the seven (7) members to be designated by each House of Congress, four (4) should come
from the majority and the remaining three (3) from the minority.

The Joint Congressional Oversight Committee shall have the power to monitor and evaluate the implementation of this Act. It
shall review, revise, amend and approve the Implementing Rules and Regulations promulgated by the Commission.
(emphases supplied)

Public respondents aver that as an independent constitutional body, the COMELEC is not under the control of the executive or
the legislativei[74] in the performance of its constitutional function to enforce and administer all laws and regulations relative to
the conduct of an election.i[75] Public respondent COMELEC asserts that its right to formulate rules and regulations flows from
its power to enforce and administer election laws and regulations.i[76] This power is exclusive and its exercise is not subject to
the review, revision, or approval of Congress.i[77] The Solicitor General shares the same view that the role of the legislature
ends with the finished task of legislation.i[78] He opines that nothing in Article VI of the 1987 Constitution suggests that
Congress is empowered to enforce and administer election laws concurrent with the COMELEC.i[79]

Along the same lines, public respondent COMELEC assails section 17.1 of Rep. Act No. 9189 subjecting the implementation of
voting by mail to prior review and approval of the Joint Oversight Committee. It maintains that the development of a system for
voting by mail involves the administration of election laws and falls squarely within its exclusive functions.i[80] Section 17.1 of
Rep. Act No. 9189 reads:

Sec. 17. Voting by mail.-

17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in not more than three (3) countries, subject to
the approval of the Congressional Oversight Committee. Voting by mail may be allowed in countries that satisfy the following
conditions:

(a) Where the mailing system is fairly well-developed and secure to prevent occasion of fraud;

(b) Where there exists a technically established identification system that would preclude multiple or proxy voting;
and

(c) Where the system of reception and custody of mailed ballots in the embassies, consulates and other foreign
service establishments concerned are adequate and well-secured.

Thereafter, voting by mail in any country shall be allowed only upon review and approval of the Joint Oversight
Committee. (emphases supplied)

The majority sustains the petitioner as it holds that [b]y vesting itself with the powers to approve, review, amend and revise the
IRR for The Overseas Voting Act of 2003, Congress went beyond the scope of its constitutional authority. Congress trampled
upon the constitutional mandate of independence of the COMELEC.

I agree with the majority but wish to add my humble thoughts on this all important constitutional issue--- the extent of
the exercise by Congress of its oversight powers in the implementation of Rep. Act No. 9189. The resolution of the issue
entails a two-tiered discussion of the following: (1) whether Congress has oversight functions over constitutional bodies like the
COMELEC; and (2) assuming that it has, whether Congress exceeded the permissible exercise of its oversight functions.

Before proceeding, we must focus on the exact place of the power of congressional oversight in our constitutional canvass. This
will involve an exposition of two principles basic to our constitutional democracy: separation of powers and checks and balances.

Separation of powers and checks and balances

The principle of separation of powers prevents the concentration of legislative, executive, and judicial powers to a single branch
of government by deftly allocating their exercise to the three branches of government. This principle dates back from the time of
Aristotlei[81] but the modern concept owes its origin in the seventeenth and eighteenth century writings of political philosophers
including Locke and Montesquieu. Their writings were mainly reactions to the ruinous struggle for power by the monarchs and
the parliaments in Western Europe.i[82]
In his Second Treatise of Civil Government,i[83] John Locke advocated the proper division of the legislative, executive and
federative powers of the commonwealth. He defined legislative power as that which has a right to direct how the force of the
commonwealth shall be employed for preserving the community and the members of it.i[84] He viewed executive power as
involving the execution of the municipal laws of the society within its self, [and] upon all that are parts of iti[85] and federative
power as concerned with the management of the security and interest of the public without including the power of war and
peace, leagues and alliances, and all the transactions, with all persons and communities without the commonwealth.i[86]

Locke expostulated that executive powers should not be placed in one person or group of persons exercising legislative power
because it may be too great a temptation to human frailty, apt to grasp at power, for the same persons, who have the power to
execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making,
and execution, to their own private advantage, and thereby come to have a distinct interest from the rest of the community,
contrary to the end of society and government.i[87] But while the executive and the federative are two distinct powers, Locke
conceded that they are intricately related and thus may be exercised by the same persons.i[88]

Locke mothered the modern idea of division of power but it was Montesquieu who refined the concept. In his famed treatise, The
Spirit of the Laws,i[89] Montesquieu authoritatively analyzed the nature of executive, legislative and judicial powers and with a
formidable foresight counselled that any combination of these powers would create a system with an inherent tendency towards
tyrannical actions, thus:

In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of
nations; and the executive in regard to matters that depend on the civil law. By virtue of the legislative power, the prince or
magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second,
he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the
third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary
power, and the other, simply the executive power of the state.

The political liberty of the subject is a tranquility of mind arising from the opinion each person has of his safety. In order to have
this liberty, it is requisite the government be so constituted as one man need not be afraid of another.

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no
liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a
tyrannical manner.

Again, there is no liberty, if the judiciary power be not separated from the legislative and the executive. Were it joined with the
legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator.
Were it joined to the executive power, the judge might behave with violence and oppression.

There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise
those three powers, that of enacting laws, that of executing the public resolutions, and that of trying the causes of
individuals.i[90]

At the time of the American Revolution, the more influential political leaders in the new states subscribed to Montesquieus
concept of separation of powers.i[91] Some constitutions of the early state governments even referred to the principle. But the
concept espoused at that particular time was a lot different. As then understood, separation of powers requires a watertight
compartmentalization of the executive, judicial, and legislative functions and permits no sharing of government powers between
and among the three branches of government. The Massachusetts Constitution of 1780, for instance, provides:

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or
either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never
exercise the legislative and executive powers, or either of them: to the end that it may be a government of laws and not of
men.i[92]

The 1787 U.S. Constitution did not contain a similar provision like that found in the Massachusetts Constitution or any principle
proclaiming the adherence of the Framers to the principle of separation of powers. But legal scholars are of the view that the
Framers essentially followed Montesquieus recommendation for the division of powers, noting that the U.S. Constitution vests all
legislative powers in the Congress of the United States,i[93] the executive power in the President,i[94] and the judicial power in
one Supreme Court and in such inferior courts as Congress may provide.i[95]

These legal scholars also note that the U.S. Constitution allows the sharing of the three great powers between and among the
three branches. The President, for instance, shares in the exercise of legislative power through his veto power, and the courts
through their power to make rules of judicial procedure and especially through their right to interpret laws and invalidate them as
unconstitutional. Congress shares in the exercise of executive power through its confirmation of appointments and assent to
treaties, and in the judicial power through its power to create inferior courts and regulate the number and pay of judges.i[96]
Thus, they postulate that the Framers established a government guided not by strict separation of powers but one of checks
and balances to prevent the separate branches from running wild and to avert deadlocks and breakdowns, viz:

The Framers expected the branches to battle each other to acquire and defend power. To prevent the supremacy of one branch
over any other in these battles, powers were mixed; each branch was granted important power over the same area of activity.
The British and Conference experience has led the Framers to avoid regarding controversy between the branches as a conflict
between good and evil or right or wrong, requiring definitive, institutionally permanent resolution. Rather, they viewed such
conflict as an expression of the aggressive and perverse part of human nature that demanded outlet but has to be kept from
finding lasting resolution so that liberty could be reserved.i[97]

Even then, some legal luminaries were of the view that the concept of checks and balances is diametrically opposed to the
principle of separation of powers. James Madison, however, explained that Montesquieus concept of separation of powers did
not require a strict division of functions among the three branches of government. Madison defended the Constitution as having
sufficient division of functions among the three branches of government to avoid the consolidation of power in any one branch
and also stressed that a rigid segregation of the three branches would undermine the purpose of the separation doctrine.i[98] He
noted that unless the three branches be so far connected and blended as to give to each a constitutional control over the others,
the degree of separation which the maxim requires as essential to a free government, can never in practice be duly
maintained.i[99] Madisons view has since then been the accepted interpretation of the concept of separation of powers under
the Constitution. Thus, in Youngstown Sheet & Tube Co. v. Sawyer,i[100] the U.S. Supreme Court held that [I]n designing the
structure of our Government and dividing and allocating the sovereign power among the three co-equal branches, the Framers
of the Constitution sought to provide a comprehensive system but the separate powers were not intended to operate with
absolute independence. In Buckley v. Valeo,i[101] the Court ruled that the Constitution by no means contemplates total
separation of each of these essential branches of government and the framers viewed the principle of separation of powers as a
vital check against tyranny. It likewise warned that the hermetic sealing off of the three branches of Government from one
another would preclude the establishment of a Nation capable of governing itself effectively.i[102] Thus, in Nixon v.
Administrator of General Services,i[103] the Court rejected the archaic view of separation of powers as requiring three airtight
departments of government. In determining whether an act disrupts the proper balance between the coordinate branches, the
Court suggested that the proper inquiry should focus on the extent to which it prevents the other branch from
accomplishing its constitutionally assigned functions.i[104]

In this jurisdiction, our adherence to the principle of separation powers was succinctly discussed by Justice Laurel in Angara
v. Electoral Commissioni[105] decided in 1936, less than a year after the effectivity of the 1935 Constitution. Justice Laurel
emphasized that [T]he separation of powers is a fundamental principle in our system of government. It obtains not through
express provision but by actual division in our Constitution.i[106] Thus:

Each department of the government has exclusive cognizance of the matters within its jurisdiction, and is supreme within its own
sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution
intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate
system of checks and balances to secure coordination in the workings of the various departments of the government. For
example, the Chief Executive under our Constitution is so far made a check on the legislative power that this assent is required
in the enactment of laws. This, however, is subject to the further check that a bill may become a law notwithstanding the refusal
of the President to approve it, by a vote of two-thirds or three-fourths, as the case may be, of the National Assembly. The
President has also the right to convene the Assembly in special session whenever he chooses. On the other hand, the National
Assembly operates as a check on the Executive in the sense that its consent through its Commission on Appointments is
necessary in the appointment of certain officers; and the concurrence of a majority of all its members is essential to the
conclusion of treaties. Furthermore, in its power to determine what courts other than the Supreme Court shall be established, to
define their jurisdiction and to appropriate funds for their support, the National Assembly controls the judicial department to a
certain extent. The Assembly also exercises the judicial power of trying impeachments. And the judiciary in turn, with the
Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law,
and hence to declare executive and legislative acts void if violative of the Constitution.i[107]

In Planas v. Gil,i[108] Justice Laurel further discussed the intricate interplay of the principle of separation of powers and checks
and balances, viz:

The classical separation of governmental powers, whether viewed in the light of political philosophy of Aristotle, Locke or
Montesquieu, or to the postulations of Mabini, Madison, or Jefferson, is a relative theory of government. There is more truism
and actuality in interdependence than in independence and separation of powers, for as observed by Justice Holmes in a case
of Philippine origin, we cannot lay down with mathematical precision and divide the branches in watertight compartments not
only because the ordinances of the Constitution do not establish and divide fields of black and white but also because even more
specific to them are found to terminate in a penumbra shading gradually from one extreme to the other.i[109]
It is now beyond debate that the principle of separation of powers (1) allows the blending of some of the executive, legislative,
or judicial powers in one body; (2) does not prevent one branch of government from inquiring into the affairs of the other
branches to maintain the balance of power; (3) but ensures that there is no encroachment on matters within the exclusive
jurisdiction of the other branches.

For its part, this Court checks the exercise of power of the other branches of government through judicial review. It is the final
arbiter of disputes involving the proper allocation and exercise of the different powers under the Constitution. Thus:

The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers?
The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or
invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights
which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy"
which properly is the power of judicial review under the Constitution. i[110]

The power of judicial review is, however, 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, for any attempt at
abstraction could only lead to dialectics and barren legal questions and to sterile conclusions of wisdom, justice or expediency of
legislation.i[111] Courts are also enjoined to accord the presumption of constitutionality to legislative enactments, not only
because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual
cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the
executive and legislative departments of the government.i[112]

The role of the judiciary in mapping the metes and bounds of powers of the different branches of government was redefined in
the 1987 Constitution which expanded the jurisdiction of this Court to include the determination of grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.i[113] The expansion
was made because of the dissatisfaction with the practice of this Court in frequently invoking the political questioni[114] doctrine
during the period of martial law to dodge its duty.i[115] Be that as it may, the expanded power definitely does not do away with
the political question doctrine itself.i[116]

Thus, in Marcos v. Manglapus,i[117] the Court held:

Under the Constitution, judicial power includes the duty 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. [Art. VIII, Sec. 1.]
Given this wording, we cannot agree with the Solicitor General that the issue constitutes a political question which is beyond the
jurisdiction of the Court to decide.

The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which
the Court, under previous constitutions, would have normally left to the political departments to decide. But nonetheless there
remain issues beyond the Court's jurisdiction the determination of which is exclusively for the President, for Congress or for the
people themselves through a plebiscite or referendum. We cannot, for example, question the President's recognition of a foreign
government, no matter how premature or improvident such action may appear. We cannot set aside a presidential pardon
though it may appear to us that the beneficiary is totally undeserving of the grant. Nor can we amend the Constitution under the
guise of resolving a dispute brought before us because the power is reserved to the people.i[118]

Since then, the Court has used its expanded power to check acts of the House of Representatives,i[119] the President,i[120] and
even of independent bodies such as the Electoral Tribunal,i[121] the Commission on Electionsi[122] and the Civil Service
Commission.i[123]

Congress checks the other branches of government primarily through its law making powers. Congress can create
administrative agencies, define their powers and duties, fix the terms of officers and their compensation.i[124] It can also create
courts, define their jurisdiction and reorganize the judiciary so long as it does not undermine the security of tenure of its
members.i[125] The power of Congress does not end with the finished task of legislation. Concomitant with its principal
power to legislate is the auxiliary power to ensure that the laws it enacts are faithfully executed. As well stressed by one
scholar, the legislature fixes the main lines of substantive policy and is entitled to see that administrative policy is in harmony
with it; it establishes the volume and purpose of public expenditures and ensures their legality and propriety; it must be satisfied
that internal administrative controls are operating to secure economy and efficiency; and it informs itself of the conditions of
administration of remedial measure.i[126]

Concept and bases of congressional oversight

Broadly defined, the power of oversight embraces all activities undertaken by Congress to enhance its understanding of and
influence over the implementation of legislation it has enacted.i[127] Clearly, oversight concerns post-enactment measures
undertaken by Congress: (a) to monitor bureaucratic compliance with program objectives, (b) to determine whether agencies are
properly administered, (c) to eliminate executive waste and dishonesty, (d) to prevent executive usurpation of legislative
authority, and (d) to assess executive conformity with the congressional perception of public interest.i[128]

The power of oversight has been held to be intrinsic in the grant of legislative power itself and integral to the checks
and balances inherent in a democratic system of government.i[129] Among the most quoted justifications for this power are
the writings of John Stuart Mill and Woodrow Wilson. In his Consideration of Representative Government,i[130] Mill wrote
that the duty of the legislature is to watch and control the government; to throw the light of publicity on its acts; to compel a full
exposition and justification of all of them which any one considers objectionable; and to censure them if found
condemnable.i[131] Wilson went one step farther and opined that the legislatures informing function should be preferred to its
legislative function. He emphasized that [E]ven more important than legislation is the instruction and guidance in political affairs
which the people might receive from a body which kept all national concerns suffused in a broad daylight of discussion.i[132]

Over the years, Congress has invoked its oversight power with increased frequency to check the perceived exponential
accumulation of power by the executive branch.i[133] By the beginning of the 20th century, Congress has delegated an
enormous amount of legislative authority to the executive branch and the administrative agencies. Congress, thus, uses its
oversight power to make sure that the administrative agencies perform their functions within the authority delegated to
them.i[134]

The oversight power has also been used to ensure the accountability of regulatory commissions like the Securities and
Exchange Commission and the Federal Reserve Board, often referred to as representing a headless fourth branch of
government.i[135] Unlike other ordinary administrative agencies, these bodies are independent from the executive branch and
are outside the executive department in the discharge of their functions.i[136]

Categories of congressional oversight functions

The acts done by Congress purportedly in the exercise of its oversight powers may be divided into three categories, namely:
scrutiny, investigation and supervision.i[137]

a. Scrutiny

Congressional scrutiny implies a lesser intensity and continuity of attention to administrative operations.i[138] Its primary
purpose is to determine economy and efficiency of the operation of government activities. In the exercise of legislative scrutiny,
Congress may request information and report from the other branches of government. It can give recommendations or pass
resolutions for consideration of the agency involved.

Legislative scrutiny is based primarily on the power of appropriation of Congress. Under the Constitution, the power of the
purse belongs to Congress.i[139] The President may propose the budget, but still, Congress has the final say on appropriations.
Consequently, administrative officials appear every year before the appropriation committees of Congress to report and submit a
budget estimate and a program of administration for the succeeding fiscal year. During budget hearings, administrative officials
defend their budget proposals.

The power of appropriation carries with it the power to specify the project or activity to be funded.i[140] Hence, the holding of
budget hearing has been the usual means of reviewing policy and of auditing the use of previous appropriation to ascertain
whether they have been disbursed for purposes authorized in an appropriation act. The consideration of the budget is also an
opportunity for the lawmakers to express their confidence in the performance of a Cabinet Secretary or to manifest their disgust
or disfavor of the continuance in office of a bureaucrat.i[141] Congress can even curtail the activities of the administrative
agencies by denial of funds.i[142] In the United States, for instance, Congress brought to end the existence of the Civilian
Conservation Corps, the National Youth Administration and the National Resources Planning Board, simply by denying them any
appropriation.i[143]

But legislative scrutiny does not end in budget hearings. Congress can ask the heads of departments to appear before
and be heard by either House of Congress on any matter pertaining to their departments. Section 22, Article VI of the
1987 Constitution provides:

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.

This provision originated from the Administrative Codei[144] and was later elevated to the level of a constitutional
provision due to its great value in the work of the legislature.i[145] In drafting the 1935 Constitution, some delegates
opposed the provision arguing that it is a feature of a parliamentary system and its adoption would make our government a
hybrid system.i[146] But mainly attacked was the provision authorizing the department secretaries on their own initiative to
appear before the legislature, with the right to be heard on any matter pertaining to their departments. It was pointed out that this
would give a chance to the department secretaries to lobby for items in the appropriation bill or for provisions of other bills in
which they had special interest, permitting them to bear influence and pressure upon Members of the law-making body, in
violation of the principle of separation of powers underlying the Constitution.i[147] Despite the objections, the provision was
adopted to prevent the raising of any question with respect to the constitutionality of the practice and to make open and public
the relations between the legislative and the executive departments.i[148] As incorporated in the 1935 Constitution, the
provision reads:

The heads of departments upon their own initiative or upon the request of the National Assembly on any matter pertaining to
their departments unless the public interest shall require otherwise and the President shall state so in writing.i[149]

The whole tenor of the provision was permissive: the department heads could appear but the legislative was not obliged to
entertain them; reciprocally, the legislature could request their appearance but could not oblige them especially if the President
objected.i[150] The rule radically changed, however, with the adoption of the 1973 Constitution, establishing a parliamentary
system of government. In a parliamentary system, the administration is responsible to the Parliament and hence, the Prime
Minister and the Cabinet Members may be required to appear and answer questions and interpellations to give an account of
their stewardship during a question hour, viz:

Sec. 12 (1) There shall be a question hour at least once a month or as often as the Rules of the Batasang Pambansa may
provide, which shall be included in its agenda, during which the Prime Minister, the Deputy Prime Minister or any Minister may
be required to appear and answer questions and interpellations by Members of the Batasang Pambansa. Written questions shall
be submitted to the Speaker at least three days before a scheduled question hour. Interpellations shall not be limited to the
written questions, but may cover matters related thereto. The agenda shall specify the subjects of the question hour. When the
security of the State so requires and the President so states in writing, the question hour shall be conducted in executive
session.

The question hour was retained despite the reversion to the presidential system in 1981. During the deliberations of the 1987
Constitution, the report of the legislative committee called for the adoption of the question hour for the following reasons:

Its purposes are to elicit concrete information from the administration, to request its intervention, and when necessary, to expose
abuses and seek redress. The procedure provides the opposition with a means of discovering the governments weak points and
because of the publicity it generates, it has a salutary influence on the administration. On the whole, because of the detailed
facts elicited during the interpellation or in the written answers, it will help members to understand the complicated subject matter
of bills and statutory measures laid before the Assembly. It may be added that the popularity of this procedure can be attributed
to the fact that in making use of his right to ask questions, the member is a completely free agent of the people. The only limits
on his actions are the rules governing the admissibility of questions concerned with matters of form and not with the merits of the
issue at hand. The fact that we also impose a time limit means that the government is obliged to furnish the information asked for
and this obligation is what gives the procedure its real strength.i[151]

This proposal was vigorously opposed on the ground of separation of powers. CONCOM Delegate Christian Monsod pointed out
that the provision was historically intended to apply to members of the legislature who are in the executive branch typical in a
parliamentary form of government. In fine, the question hour was conducted on a peer basis. But since the delegates decided to
adopt a presidential form of government, cabinet members are purely alter egos of the President and are no longer members of
the legislature. To require them to appear before the legislators and account for their actions puts them on unequal terms with
the legislators and would violate the separation of powers of the executive and the legislative branches.i[152] Delegate Monsod,
however, recognized that a mechanism should be adopted where Cabinet members may be summoned and may, even on their
own initiative, appear before the legislature. This, he said, would promote coordination without subordinating one body to
another. He thus suggested that the original tenor of the provision in the 1935 Constitution be retained.i[153]

After much deliberation, delegate Monsods suggestion prevailed. Thus, the President may or may not consent to the
appearance of the heads of departments; and even if he does, he may require that the appearance be in executive session.
Reciprocally, Congress may refuse the initiative taken by a department secretary.

Likewise, Congress exercises legislative scrutiny thru its power of confirmation. Section 18, Article VI of the 1987
Constitution provides for the organization of a Commission on Appointments consisting of the President of the Senate as ex
officio Chairman, twelve Senators and twelve members of the House of Representatives, elected by each House on the basis of
proportional representation from the political parties or organizations registered under the party-list system. Consent of the
Commission on Appointments is needed for the nominees of the President for the following positions: (a) heads of executive
departments, (b) ambassadors, other public ministers and consuls, (c) officers of the armed forces from the rank of colonel or
naval captain, and (d) other officers whose appointments are vested with the President under the Constitution.i[154]

Through the power of confirmation, Congress shares in the appointing power of the executive. Theoretically, it is intended to
lessen political considerations in the appointment of officials in sensitive positions in the government. It also provides Congress
an opportunity to find out whether the nominee possesses the necessary qualifications, integrity and probity required of all public
servants.

In the United States, apart from the appropriation and confirmation powers of the U.S. Congress, legislative scrutiny finds
expression in the Legislative Reorganization Act of 1946 charging all House and Senate Standing Committees with continuous
vigilance over the execution of any and all laws falling within their respective jurisdictions with a view to determining its economy
and efficiency.i[155] Pursuant to this law, each committee was authorized to hire a certain number of staff employees. All Senate
committees were likewise given the power to subpoena witnesses and documents.i[156]

b. Congressional investigation

While congressional scrutiny is regarded as a passive process of looking at the facts that are readily available, congressional
investigation involves a more intense digging of facts.i[157] The power of Congress to conduct investigation is recognized
by the 1987 Constitution under section 21, Article VI, viz:

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.

But even in the absence of an express provision in the Constitution, congressional investigation has been held to be an essential
and appropriate auxiliary to the legislative function. In the United States, the lack of a constitutional provision specifically
authorizing the conduct of legislative investigations did not deter its Congresses from holding investigation on suspected
corruption, mismanagement, or inefficiencies of government officials. Exercised first in the failed St. Clair expedition in 1792, the
power to conduct investigation has since been invoked in the Teapot Dome, Watergate, Iran-Contra, and Whitewater
controversies.i[158] Subsequently, in a series of decisions, the Court recognized the danger to effective and honest conduct of
the Government if the legislative power to probe corruption in the Executive branch were unduly unhampered.i[159]

In Eastland v. United States Servicemens Fund,i[160] the U.S. Supreme Court ruled that the scope of the congressional
power of inquiry is penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.i[161] It
encompasses everything that concerns the administration of existing laws as well as proposed or possibly needed statutes.i[162]
In the exercise of this power, congressional inquiries can reach all sources of information and in the absence of countervailing
constitutional privilege or self-imposed restrictions upon its authority, Congress and its committees, have virtually, plenary power
to compel information needed to discharge its legislative functions from executive agencies, private persons and organizations.
Within certain constraints, the information so obtained may be made public.i[163] In McGrain v. Daugherty,i[164] it held that a
legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation
is intended to effect change.i[165] But while the congressional power of inquiry is broad, it is not unlimited. No inquiry is an end
in itself; it must be related to, and in furtherance of, a legitimate task of Congress.i[166] Moreover, an investigating committee
has only the power to inquire into matters within the scope of the authority delegated to it by its parent body.i[167] But once its
jurisdiction and authority, and the pertinence of the matter under inquiry to its area of authority are established, a committees
investigative purview is substantial and wide-ranging.i[168]

American jurisprudence upholding the inherent power of Congress to conduct investigation has been adopted in our
jurisdiction in Arnault v. Nazareno,i[169] decided in 1950, when no provision yet existed granting Congress the power to
conduct investigation. In the said case, the Senate passed Resolution No.8 creating a special committee to investigate the
Buenavista and the Tambobong Estates Deal wherein the government was allegedly defrauded P5,000,000.00. The special
committee examined various witnesses, among whom was Jean L. Arnault. Due to the refusal of Arnault to answer a question
which he claimed to be self-incriminatory,i[170] the Senate passed a resolution citing Arnault in contempt. The Senate committed
him to the custody of the Sergeant-at-Arms and ordered his imprisonment until he shall have answered the question. Arnault
filed a petition before this Court contending that (a) the Senate has no power to punish him for contempt; (b) the information
sought to be obtained by the Senate is immaterial and will not serve any intended or purported legislation; and (c) the answer
required of him will incriminate him.

Upholding the power of the Senate to punish Arnault for contempt, the Court ruled as follows:

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 legislation is intended to affect or change; and where the legislative body
does not itself possess the requisite information which is not frequently 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 The fact
that the Constitution expressly gives the Congress the power to punish its Members for disorderly behaviour, does not by
necessary implication exclude the power to punish for contempt any other person.i[171]

The Court further ruled that the power of the Senate to punish a witness for contempt does not terminate upon the adjournment
of the session.i[172] It held that the investigation was within the power of the Senate since the transaction involved a
questionable and allegedly unnecessary and irregular expenditure of no less than P5,000,000.00 of public funds, of which the
Congress is the constitutional guardian.i[173] The investigation was also found to be in aid of legislation. As result of the yet
unfinished investigation, the Court noted that the investigating committee has recommended, and the Senate has approved
three bills.i[174]

The Court further held that once an inquiry is admitted or established to be within the jurisdiction of a legislative body to make,
the investigating committee has the power to require a witness to answer any question pertinent to that inquiry, subject to his
constitutional right against self-incrimination. The inquiry must be material or necessary to the exercise of a power in it vested by
the Constitution. Hence, a witness can not be coerced to answer a question that obviously has no relation to the subject of the
inquiry. But the Court explained that 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 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.i[175]

Finally, the Court ruled that the ground on which Arnault invoked the right against self-incrimination is too shaky, infirm, and
slippery to afford him safety.i[176] It noted that since Arnault himself said that the transaction was legal, and that he gave the
P440,000.00 to a representative of Burt in compliance with the latters verbal instruction, there is therefore no basis upon which
to sustain his claim that to reveal the name of that person would incriminate him.i[177] It held that it is not enough for the witness
to say that the answer will incriminate him for he is not the sole judge of his liability, thus:

[T]he 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 The fact that the testimony of the 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.i[178]

As now contained in the 1987 Constitution, the power of Congress to investigate is circumscribed by three limitations,
namely: (a) it must be in aid of its legislative functions, (b) it must be conducted in accordance with duly published rules of
procedure, and (c) the persons appearing therein are afforded their constitutional rights.

In Bengzon, Jr. v. Senate Blue Ribbon Committee,i[179] this Court held that the senate committee exceeded the permissible
exercise of legislative investigation. The case started with a speech by Senator Enrile suggesting the need to determine possible
violation of law in the alleged transfer of some properties of former Ambassador Benjamin Kokoy Romualdez to the Lopa Group
of Companies. The Senate Blue Ribbon Committee decided to investigate the transaction purportedly in aid of legislation.
When the Blue Ribbon Committee summoned the petitioners to appear, they asked this Court for a restraining order on the
ground, among others, that the investigation was not in aid of legislation and that their appearance before the investigating body
could prejudice their case before the Sandiganbayan. Ruling in favor of the petitioner, we held as follows:

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. In other
words, the purpose of the inquiry to be conducted by respondent Blue Ribbon Committee 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 Lopa Group. There appears to be, therefore, no intended
legislation involved.

The conduct of legislative investigation is also subject to the rules of each House. In the House of Representatives,i[180] an
inquiry may be initiated or conducted by a committee motu proprio on any matter within its jurisdiction upon a majority vote of all
its Membersi[181] or upon order of the House of Representativesi[182] through:

(1) the referral of a privilege speech containing or conveying a request or demand for the conduct of an inquiry, to
the appropriate committee, upon motion of the Majority Leader or his deputies; or
 (2) the adoption of a resolution directing a committee to conduct an inquiry reported out by the Committee on Rules
after making a determination on the necessity and propriety of the conduct of an inquiry by such committee:
Provided, That all resolutions directing any committee to conduct an inquiry shall be referred to the Committee
on Rules; or

(3) the referral by the Committee on Rules to the appropriate committee, after making a determination on the
necessity and propriety of the conduct of inquiry by such committee, of a petition filed or information given by a
Member of the House requesting such inquiry and endorsed by the Speaker: Provided, That such petition or
information shall be given under oath, stating the facts upon which it is based, and accompanied by supporting
affidavits.i[183]

The committee to which a privilege speech, resolution, petition or information requesting an inquiry is referred may constitute
and appoint sub-committees composed of at least one-third (1/3) of the committee for the purpose of performing any and all acts
which the committee as a whole is authorized to perform, except to punish for contempt. In case a privilege speech is referred to
two or more committees, a joint inquiry by the said committees shall be conducted. The inquiries are to be held in public except
when the committee or sub-committee deems that the examination of a witness in a public hearing may endanger national
security. In which case, it shall conduct the hearing in an executive session.i[184]

The Rules further provide that the filing or pendency of a case before any court, tribunal or quasi-judicial or administrative bodies
shall not stop or abate any inquiry conducted to carry out a specific legislative purpose.i[185] In exercise of congressional
inquiry, the committee has the power to issue subpoena and subpoena duces tecum to a witness in any part of the country,
signed by the chairperson or acting chairperson and the Speaker or acting Speaker.i[186] Furthermore, the committee may, by a
vote of two-thirds (2/3) of all its members constituting a quorum, punish for contempt any person who: (a) refuses, after being
duly summoned, to obey such summons without legal excuse; (b) refuses to be sworn or placed under affirmation; (c) refuses to
answer any relevant inquiry; (d) refuses to produce any books, papers, documents or records that are relevant to the inquiry and
are in his/her possession; (e) acts in a disrespectful manner towards any member of the Committee or commits misbehavior in
the presence of the committee; or (f) unduly interferes in the conduct of proceedings during meetings.i[187]

Nevertheless, any person called to be a witness may be represented by a counseli[188] and is entitled to all rights including the
right against self-incrimination.i[189]

c. Legislative supervision

The third and most encompassing form by which Congress exercises its oversight power is thru legislative supervision.
Supervision connotes a continuing and informed awareness on the part of a congressional committee regarding executive
operations in a given administrative area.i[190] While both congressional scrutiny and investigation involve inquiry into past
executive branch actions in order to influence future executive branch performance, congressional supervision allows
Congress to scrutinize the exercise of delegated law-making authority, and permits Congress to retain part of that
delegated authority.

Congress exercises supervision over the executive agencies through its veto power. It typically utilizes veto provisions
when granting the President or an executive agency the power to promulgate regulations with the force of law. These
provisions require the President or an agency to present the proposed regulations to Congress, which retains a right to
approve or disapprove any regulation before it takes effect. Such legislative veto provisions usually provide that a proposed
regulation will become a law after the expiration of a certain period of time, only if Congress does not affirmatively disapprove of
the regulation in the meantime. Less frequently, the statute provides that a proposed regulation will become law if Congress
affirmatively approves it.i[191]

The legislative veto was developed initially in response to the problems of reorganizing the U.S. Government structure during
the Great Depression in early 20th century. When U.S. President Hoover requested authority to reorganize the government in
1929, he coupled his request with a proposal for legislative review. He proposed that the Executive should act upon approval of
a joint Committee of Congress or with the reservation of power of revision by Congress within some limited period adequate for
its consideration.i[192] Congress followed President Hoovers suggestion and authorized reorganization subject to legislative
review.i[193] Although the reorganization authority reenacted in 1933 did not contain a legislative veto provision, the provision
returned during the Roosevelt administration and has since been renewed several times.i[194] Over the years, the provision was
used extensively. Various American Presidents submitted to Congress some 115 Reorganization Plans, 23 of which were
disapproved pursuant to legislative veto provisions.i[195]

During World War II, Congress and the President applied the legislative veto procedure to resolve the delegation problem
involving national security and foreign affairs. The legislative veto offered the means by which Congress could confer additional
authority to the President while preserving its own constitutional role. During this period, Congress enacted over 30 statutes
conferring powers on the Executive with legislative veto provisions.i[196]
After World War II, legislative veto provisions have been inserted in laws delegating authority in new areas of governmental
involvement including the space program, international agreements on nuclear energy, tariff arrangements, and adjustment of
federal pay rates.i[197] It has also figured prominently in resolving a series of major constitutional disputes between the
President and Congress over claims of the President to broad impoundment, war and national emergency powers.i[198] Overall,
295 congressional veto-type procedures have been inserted in 196 different statutes since 1932 when the first veto provision
was enacted into law.i[199]

Supporters of legislative veto stress that it is necessary to maintain the balance of power between the legislative and the
executive branches of government as it offers lawmakers a way to delegate vast power to the executive branch or to
independent agencies while retaining the option to cancel particular exercise of such power without having to pass new
legislation or to repeal existing law.i[200] They contend that this arrangement promotes democratic accountability as it provides
legislative check on the activities of unelected administrative agencies.i[201] One proponent thus explains:

It is too late to debate the merits of this delegation policy: the policy is too deeply embedded in our law and practice. It suffices to
say that the complexities of modern government have often led Congress-whether by actual or perceived necessity- to legislate
by declaring broad policy goals and general statutory standards, leaving the choice of policy options to the discretion of an
executive officer. Congress articulates legislative aims, but leaves their implementation to the judgment of parties who may or
may not have participated in or agreed with the development of those aims. Consequently, absent safeguards, in many
instances the reverse of our constitutional scheme could be effected: Congress proposes, the Executive disposes. One
safeguard, of course, is the legislative power to enact new legislation or to change existing law. But without some means of
overseeing post enactment activities of the executive branch, Congress would be unable to determine whether its policies have
been implemented in accordance with legislative intent and thus whether legislative intervention is appropriate.i[202]

Its opponents, however, criticize the legislative veto as undue encroachment upon the executive prerogatives. They urge that
any post-enactment measures undertaken by the legislative branch should be limited to scrutiny and investigation; any measure
beyond that would undermine the separation of powers guaranteed by the Constitution.i[203] They contend that legislative veto
constitutes an impermissible evasion of the Presidents veto authority and intrusion into the powers vested in the executive or
judicial branches of government.i[204] Proponents counter that legislative veto enhances separation of powers as it prevents the
executive branch and independent agencies from accumulating too much power.i[205] They submit that reporting requirements
and congressional committee investigations allow Congress to scrutinize only the exercise of delegated law-making authority.
They do not allow Congress to review executive proposals before they take effect and they do not afford the opportunity for
ongoing and binding expressions of congressional intent.i[206] In contrast, legislative veto permits Congress to participate
prospectively in the approval or disapproval of subordinate law or those enacted by the executive branch pursuant to a
delegation of authority by Congress. They further argue that legislative veto is a necessary response by Congress to the
accretion of policy control by forces outside its chambers. In an era of delegated authority, they point out that legislative veto is
the most efficient means Congress has yet devised to retain control over the evolution and implementation of its policy as
declared by statute.i[207]

In Immigration and Naturalization Service v. Chadha,i[208] the U.S. Supreme Court resolved the validity of legislative veto
provisions. The case arose from the order of the immigration judge suspending the deportation of Chadha pursuant to 244(c)(1)
of the Immigration and Nationality Act. The United States House of Representatives passed a resolution vetoing the suspension
pursuant to 244(c)(2) authorizing either House of Congress, by resolution, to invalidate the decision of the executive branch to
allow a particular deportable alien to remain in the United States. The immigration judge reopened the deportation proceedings
to implement the House order and the alien was ordered deported. The Board of Immigration Appeals dismissed the aliens
appeal, holding that it had no power to declare unconstitutional an act of Congress. The United States Court of Appeals for Ninth
Circuit held that the House was without constitutional authority to order the aliens deportation and that 244(c)(2) violated the
constitutional doctrine on separation of powers.

On appeal, the U.S. Supreme Court declared 244(c)(2) unconstitutional. But the Court shied away from the issue of separation
of powers and instead held that the provision violates the presentment clause and bicameralism. It held that the one-house veto
was essentially legislative in purpose and effect. As such, it is subject to the procedures set out in Article I of the Constitution
requiring the passage by a majority of both Houses and presentment to the President. Thus:

Examination of the action taken here by one House pursuant to 244(c)(2) reveals that it was essentially legislative in purpose
and effect. In purporting to exercise power defined in Art I, 8, cl 4, to establish a uniform Rule of Naturalization, the House took
action that had the purpose and effect of altering the legal rights, duties, and relations of persons, including the Attorney
General, Executive Branch officials and Chadha, all outside the Legislative Branch. Section 244(c)(2) purports to authorize one
House Congress to require the Attorney General to deport an individual alien whose deportation otherwise would be canceled
under 244. The one-House veto operated in these cases to overrule the Attorney General and mandate Chadhas deportation;
absent the House action, Chadha would remain in the United States. Congress has acted and its action altered Chadhas status.

The legislative character of the one-House veto in these cases is confirmed by the character of the congressional action it
supplants. Neither the House of Representatives nor the Senate contends that, absent the veto provision in 244(c)(2), either of
them, or both of them acting together, could effectively require the Attorney General, in exercise of legislatively delegated
authority, had determined the alien should remain in the United States. Without the challenged provision in 244(c)(2), this could
have been achieved, if at all, only by legislation requiring deportation. Similarly, a veto by one House of Congress under
244(c)(2) cannot be justified as an attempt at amending the standards set out in 244(a)(1), or as a repeal of 244 as applied to
Chadha. Amendment and repeal of statutes, no less than enactment, must conform with Art I.

The nature of the decision implemented by one-House veto in these cases further manifests its legislative character. After long
experience with the clumsy, time-consuming private bill procedure, Congress made a deliberate choice to delegate to the
Executive Branch, and specifically to the Attorney General, the authority to allow deportable aliens to remain in this country in
certain specified circumstances. It is not disputed that this choice to delegate authority is precisely the kind of decision that can
be implemented only in accordance with the procedures set out in Art I. Disagreement with the Attorney Generals decision on
Chadhas deportation- that is, Congress decision to deport Chadha- no less than Congress original choice to delegate to the
Attorney General the authority to make decision, involves determinations of policy that Congress can implement in only one way;
bicameral passage followed by presentment to the President. Congress must abide by its delegation of authority until that
delegation is legislatively altered or revoked.i[209]

Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two lower court decisions invalidating the
legislative veto provisions in the Natural Gas Policy Act of 1978i[210] and the Federal Trade Commission Improvement Act of
1980.i[211] Following this precedence, lower courts invalidated statutes containing legislative veto provisions although some of
these provisions required the approval of both Houses of Congress and thus met the bicameralism requirement of Article I.
Indeed, some of these veto provisions were not even exercised.i[212]

Given the concept and configuration of the power of congressional oversight, the next level of inquiry is whether congress
exceeded its permissible exercise in the case at bar. But before proceeding, a discussion of the nature and powers of the
Commission on Elections as provided in the 1987 Constitution is decisive to the issue.

Congressional Oversight and COMELEC

The Commission on Elections (COMELEC) is a constitutional body exclusively charged with the enforcement and
administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall,i[213]
and is invested with the power to decide all questions affecting elections save those involving the right to vote. i[214]

Given its important role in preserving the sanctity of the right of suffrage,i[215] the COMELEC was purposely constituted as a
body separate from the executive, legislative, and judicial branches of government.i[216] Originally, the power to enforce our
election laws was vested with the President and exercised through the Department of the Interior. According to Dean
Sinco,i[217] however, the view ultimately emerged that an independent body could better protect the right of suffrage of our
people. Hence, the enforcement of our election laws, while an executive power, was transferred to the COMELEC.

The shift to a modified parliamentary system with the adoption of the 1973 Constitution did not alter the character of
COMELEC as an independent body.i[218] Indeed, a definite tendency to enhance and invigorate the role of the Commission
on Elections as the independent constitutional body charged with the safeguarding of free, peaceful and honest elections has
been observed.i[219] The 1973 Constitution broadened the power of the COMELEC by making it the sole judge of all election
contests relating to the election, returns and qualifications of members of the national legislature and elective provincial and city
officials.i[220] Thus, the COMELEC was given judicial power aside from its traditional administrative and executive functions.

The trend towards strengthening the COMELEC continued with the 1987 Constitution. Today, the COMELEC enforces
and administers all laws and regulations relative to the conduct of elections, plebiscites, initiatives, referenda and recalls.
Election contests involving regional, provincial and city elective officials are under its exclusive original jurisdiction while all
contests involving elective municipal and barangay officials are under its appellate jurisdiction.i[221]

Several safeguards have been put in place to protect the independence of the COMELEC from unwarranted
encroachment by the other branches of government. While the President appoints the Commissioners with the concurrence
of the Commission on Appointments, the Commissioners are not accountable to the President in the discharge of their functions.
They have a fixed tenure and are removable only by impeachment.i[222] To ensure that not all Commissioners are appointed by
the same President at any one time, a staggered system of appointment was devised. Thus, of the Commissioners first
appointed, three shall hold office for seven years, three for five years, and the last three for three years.i[223] Reappointment
and temporary designation or appointment is prohibited.i[224] In case of vacancy, the appointee shall only serve the unexpired
term of the predecessor.i[225] The COMELEC is likewise granted the power to promulgate its own rules of procedure,i[226] and
to appoint its own officials and employees in accordance with Civil Service laws.i[227]

The COMELEC exercises quasi-judicial powers but it is not part of the judiciary. This Court has no general power of
supervision over the Commission on Elections except those specifically granted by the Constitution.i[228] As such, the Rules of
Court are not applicable to the Commission on Elections.i[229] In addition, the decisions of the COMELEC are reviewable only
by petition for certiorari on grounds of grave abuse of discretion,i[230] viz:

Conceived by the charter as the effective instrument to preserve the sanctity of popular suffrage, endowed with independence
and all the needed concomitant powers, it is but proper that the Court should accord the greatest measure of presumption of
regularity to its course of action and choice of means in performing its duties, to the end that it may achieve its designed place in
the democratic fabric of our government. Ideally, its members should be free from all suspicions of partisan inclinations, but the
fact that actually some of them have had stints in the arena of politics should not, unless the contrary is shown, serve as basis
for denying to its actuations the respect and consideration that the Constitution contemplates should be accorded to it, in the
same manner that the Supreme Court itself which from time to time may have members drawn from the political ranks or even
from the military is at all times deemed insulated from every degree or form of external pressure and influence as well as
improper internal motivations that could arise from such background or orientation.

We hold, therefore, that under the existing constitutional and statutory provisions, the certiorari jurisdiction of the Court over
orders, rulings and decisions of the Comelec is not as broad as it used to be and should be confined to instances of grave abuse
of discretion amounting to patent and substantial denial of due process.i[231]

The COMELEC is, however, subject to congressional scrutiny especially during budget hearings. But Congress cannot
abolish the COMELEC as it can in case of other agencies under the executive branch. The reason is obvious. The COMELEC is
not a mere creature of the legislature; it owes its origin from the Constitution. Furthermore, the salary of the Chairman and the
Commissioners cannot be decreased during their tenure.i[232] Enjoying fiscal autonomy, the COMELEC has a wider discretion
in the disbursement and allocation of approved appropriations. To safeguard the COMELEC from undue legislative interference,
the 1987 Constitution provides that its approved annual appropriations are to be automatically and regularly released.i[233] Also,
Congress has no power to call the commissioners of the COMELEC to a question hour. The Constitution provides that the
question hour is limited to heads of departments under the Executive branch, and the deliberations during the drafting of the
1987 Constitution clearly reflect this sentiment. Be that as it may, the COMELEC is mandated to submit to the President and the
Congress a comprehensive report on the conduct of each election, plebiscite, initiative, referendum and recall.i[234] This
provision allows Congress to review and assess the effectivity of election laws and if necessary, enact new laws or amend
existing statutes.

Be that as it may, I respectfully submit that the legislative veto power or congressional oversight power over the
authority of COMELEC to issue rules and regulations in order to enforce election laws is unconstitutional.

As aforediscussed, the Constitution divided the powers of our government into three categories, legislative, executive, and
judicial. Although not hermetically sealed from one another, the powers of the three branches are functionally identifiable. In this
respect, legislative power is generally exercised in the enactment of the law; executive power, in its execution; and judicial
power, in its interpretation. In the absence of specific provision in the Constitution, it is fundamental under the principle of
separation of powers that one branch cannot exercise or share the power of the other.

In addition, our Constitution created other offices aside from the executive, the legislative and the judiciary and defined their
powers and prerogatives. Among these bodies especially created by the Constitution itself is the COMELEC.

The COMELEC occupies a distinct place in our scheme of government. As the constitutional body charged with the
administration of our election laws, it is endowed with independence in the exercise of some of its powers and the discharge of
its responsibilities. The power to promulgate rules and regulations in order to administer our election laws belongs to
this category of powers as this has been vested exclusively by the 1987 Constitution to the COMELEC. It cannot be
trenched upon by Congress in the exercise of its oversight powers.

In Gallardo v. Tabamo, Jr.,i[235] this Court traced the origin of COMELECs power to promulgate rules and regulations. It was
initially a statutory grant. Both the 1935 and the 1973 Constitutions did not explicitly grant the COMELEC the power to
promulgate rules and regulations. The power was vested by Congress to the COMELEC in the Omnibus Election Code,i[236]
viz:

Sec. 52. Powers and functions of the Commission on Elections.- In addition to the powers and functions conferred upon it by
the Constitution, the Commission shall have the exclusive charge of the enforcement and administration of all laws relative to the
conduct of elections for the purpose of ensuring free, orderly and honest elections, and shall:

(c) Promulgate rules and regulations implementing the provisions of this Code or other laws which the Commission is required to
enforce and administer.

This statutory power was elevated to a constitutional status with the insertion of the word regulations in section 2(1) of
Article IX-C of the 1987 Constitution, viz:
While under the 1935 Constitution it had "exclusive charge of the enforcement and administration of all laws relative to the
conduct of elections," exercised "all other functions . . . conferred upon it by law" and had the power to deputize all law
enforcement agencies and instrumentalities of the Government for the purpose of insuring free, orderly and honest elections,
and under the 1973 Constitution it had, inter alia, the power to (a) "[E]nforce and administer all laws relative to the conduct of
elections" (b) "[D]eputize, with the consent or at the instance of the Prime Minister, law enforcement agencies and
instrumentalities of the Government, including the Armed Forces of the Philippines, for the purpose of ensuring free, orderly, and
honest elections," and (c) "[P]erform such other functions as may be provided by law," it was not expressly vested with the power
to promulgate regulations relative to the conduct of an election. That power could only originate from a special law enacted by
Congress; this is the necessary implication of the above constitutional provision authorizing the Commission to "[P]erform such
other functions as may be provided by law."

The present Constitution, however, implicitly grants the Commission the power to promulgate such rules and regulations. The
pertinent portion of Section 2 of Article IX-C thereof reads as follows:

"SEC. 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum,
and recall." (emphasis supplied)

The word regulations is not found in either the 1935 or 1973 Constitutions. It is thus clear that its incorporation into the present
Constitution took into account the Commission's power under the Omnibus Election Code (Batas Pambansa Blg. 881), which
was already in force when the said Constitution was drafted and ratified, to:

xxx xxx xxx

"Promulgate rules and regulations implementing the provisions of this Code or other laws which the Commission is required to
enforce and administer . . . ."

Hence, the present Constitution upgraded to a constitutional status the aforesaid statutory authority to grant the Commission
broader and more flexible powers to effectively perform its duties and to insulate it further from legislative intrusions. Doubtless, if
its rule-making power is made to depend on statutes, Congress may withdraw the same at any time. Indeed, the present
Constitution envisions a truly independent Commission on Elections committed to ensure free, orderly, honest, peaceful and
credible elections, and to serve as the guardian of the people's sacred right of suffrage the citizenry's vital weapon in effecting a
peaceful change of government and in achieving and promoting political stability.i[237]

The elevation of the COMELECs power to promulgate rules and regulations in the 1987 Constitution is suffused with
significance. Heretofore, it was Congress that granted COMELEC the power to promulgate rules and regulations, and hence,
Congress can withdraw or restrict it by the exercise of its veto or oversight power. Under the 1987 Constitution, the power to
promulgate rules and regulations has been directly granted by the Constitution and no longer by Congress. Undoubtedly, the
power was granted to COMELEC to strengthen its independence, hence, its exercise is beyond invasion by Congress. Under
any lens, sections 19 and 25 of Rep. Act No. 9189 constitute undue restrictions on the constitutional power of the COMELEC to
promulgate rules and regulations for such rules are made subject to the prior review and approval of Congress. The impugned
provisions can result in the denial of this constitutionally conferred power because Congress can veto the rules and regulations
the COMELEC has promulgated. Thus, I respectfully submit that sections 19 and 25 of Rep. Act No. 9189 granting Congress the
power to review, revise, amend and approve the implementing rules and regulations of the COMELEC, otherwise known as
subordinate legislations in other countries, are unconstitutional.

I now come to section 17.1 of Rep. Act No. 9189 which provides:

Sec. 17. Voting by mail.-

17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in not more than three (3) countries,
subject to the approval of the Congressional Oversight Committee. Voting by mail may be allowed in countries that satisfy
the following conditions:

(d) Where the mailing system is fairly well-developed and secure to prevent occasion of fraud;

(e) Where there exists a technically established identification system that would preclude multiple or proxy voting;
and

(f) Where the system of reception and custody of mailed ballots in the embassies, consulates and other foreign
service establishments concerned are adequate and well-secured.
Thereafter, voting by mail in any country shall be allowed only upon review and approval of the Joint Oversight
Committee. (emphases supplied)

From the law itself, it is clear that Congress has already set the necessary standards to guide the COMELEC in identifying the
countries where voting by mail may be allowed, viz: (1) the countries must have a mailing system which is fairly developed and
secure to prevent occasion of fraud; (2) there exists a technically established identification that would preclude multiple or proxy
voting; and (3) where the system of reception and custody of mailed ballots in the embassies, consulates and other foreign
service establishments concerned are adequate and well-secured.

Since the legislative standards have been defined, all that remains is their enforcement. Our Constitution has specifically
given the COMELEC the power to enforce and administer all laws and regulations relative to the conduct of an election. The
power is exclusive and it ought to be self-evident that it cannot be subject to review and revision or veto by Congress
in the exercise of its oversight power. Again, the reason for the exclusivity is to insulate COMELEC from the virus of partisan
politics. In the exercise of this exclusive power, the Commission must be accorded considerable latitude. Unless the means and
methods adopted by COMELEC are clearly illegal or constitute grave abuse of discretion, they should not be interfered
with.i[238] Thus:

There are no ready-made formulas for solving public problems. Time and experience are necessary to evolve patterns that will
serve the ends of good government. In the matter of the administration of the laws relative to the conduct of elections, as well as
in the appointment of election inspectors, we must not by any excessive zeal take away from the Commission on Elections the
initiative which by constitutional and legal mandates properly belongs to it. Due regard to the independent character of the
Commission, as ordained in the Constitution, requires that the power of this court to review the acts of that body should, as a
general proposition, be used sparingly, but firmly in appropriate cases. We are not satisfied that the present suit is one of such
cases.i[239]

I join the majority in holding that section 17.1 of Rep. Act No. 9189 is unconstitutional for it allows Congress to negate the
exclusive power of the COMELEC to administer and enforce election laws and regulations granted by the Constitution itself.

This is not to maintain that the Implementing Rules and Regulations promulgated by the COMELEC, or the system it devised to
implement voting by mail cannot be challenged. If they are illegal or constitute grave abuse of discretion, the courts can strike
them down in an appropriate case. This power is vested to the courts under section 1, Article VIII of the Constitution defining the
scope of judicial power, and more specifically under section 5, Article VIII empowering this Court to review, revise, reverse,
modify or affirm on appeal or certiorari, all cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. Again, this power is
exclusive and is not meant to be shared by any other branch or agency of the government.

In sum, it is my humble view that in the case at bar, Congress exceeded the permissible exercise of its oversight powers for the
following reasons: (1) it restricts the COMELECs constitutional grant of power to promulgate rules and regulations; and (2) it
invades COMELECs exclusive constitutional domain to enforce and administer all laws and regulations relative to the conduct of
an election, plebiscite, initiative, referendum, and recall.

I wish to stress, however, that granting the petition will not invalidate the entire Rep. Act No. 9189. It does not also mean
that all overseas Filipinos cannot vote. The law affects two classes of overseas Filipinos: (1) those who remain a domiciliary of
the Philippines but were absent at the time of the elections either briefly or for a long time; and (2) those who are now considered
domiciled in foreign countries. To the first class of overseas Filipinos belong the contract workers, students, members of the
diplomatic corps and their families, businessmen, and the like. To the second class belong Filipinos who are considered
immigrants or permanent residents of foreign countries. The constitutional challenge in the case at bar appertains only to the
inclusion of the second category of overseas Filipinos in the coverage of Rep. Act No. 9189. Likewise, the challenge on the
exercise of Congressional oversight power over the COMELEC does not taint the core of the law. It merely affects the procedure
in adopting the mechanisms to implement the law. It cannot void the whole law.

IN VIEW OF THE FOREGOING, I dissent from the majoritys ruling upholding the constitutionality of section 5(d) of Rep. Act No.
9189, which allows an immigrant or a permanent resident of a foreign country to vote for President, Vice-President, Senators
and Party-List Representatives after executing the required affidavit. I concur, however, with the majoritys ruling upholding the
constitutionality of section 18.5 of Rep. Act No. 9189 with respect to the authority given to the COMELEC to proclaim the winning
candidates for Senators and Party-List Representatives but not as to the power to canvass the votes and proclaim the winning
candidates for President and Vice-President. I also concur with the majority with respect to the unconstitutionality of sections
17.1, 19 and 25 of Rep. Act No. 9189 subjecting the implementation of voting by mail, and the Implementing Rules and
Regulations of Rep. Act No. 9189 to be promulgated by COMELEC, to prior review and approval by Congress.

I so vote.
 EN BANC

[G.R. Nos. 105965-70. March 20, 2001]

GEORGE UY, petitioner, vs. THE HON. SANDIGANBAYAN, THE HON. OMBUDSMAN AND THE HON. ROGER C. BERBANO,
SR., SPECIAL PROSECUTION OFFICER III, OFFICE OF THE SPECIAL PROSECUTOR, respondents.

RESOLUTION

PUNO, J.:

Before the Court is the Motion for Further Clarification filed by Ombudsman Aniano A. Desierto of the Court's ruling in its
decision dated August 9, 1999 and resolution dated February 22, 2000 that the prosecutory power of the Ombudsman extends
only to cases cognizable by the Sandiganbayan and that the Ombudsman has no authority to prosecute cases falling within the
jurisdiction of regular courts.

The Court stated in its decision dated August 9, 1999:

In this connection, it is the prosecutor, not the Ombudsman, who has the authority to file the corresponding information/s against
petitioner in the regional trial court. The Ombudsman exercises prosecutorial powers only in cases cognizable by the
Sandiganbayan.

It explained in the resolution of February 22, 2000 that:

(t)he clear import of such pronouncement is to recognize the authority of the State and regular provincial and city prosecutors
under the Department of Justice to have control over prosecution of cases falling within the jurisdiction of the regular courts. The
investigation and prosecutorial powers of the Ombudsman relate to cases rightfully falling within the jurisdiction of the
Sandiganbayan under Section 15 (1) of R.A. 6770 ("An Act Providing for the Functional and Structural Organization of the Office
of the Ombudsman, and for other purposes") which vests upon the Ombudsman "primary jurisdiction over cases cognizable by
the Sandiganbayan" And this is further buttressed by Section 11 (4a) of R.A. 6770 which emphasizes that the Office of the
Special Prosecutor shall have the power to "conduct preliminary investigation and prosecute criminal cases within the jurisdiction
of the Sandiganbayan." Thus, repeated references to the Sandiganbayan's jurisdiction clearly serve to limit the Ombudsman's
and Special Prosecutor's authority to cases cognizable by the Sandiganbayan.

Seeking clarification of the foregoing ruling, respondent Ombudsman raises the following points:

(1) The jurisdiction of the Honorable Sandiganbayan is not parallel to or equated with the broader jurisdiction of the Office of the
Ombudsman;

(2) The phrase "primary jurisdiction of the Office of the Ombudsman over cases cognizable by the Sandiganbayan" is not a
delimitation of its jurisdiction solely to Sandiganbayan cases; and

(3) The authority of the Office of the Special Prosecutor to prosecute cases before the Sandiganbayan cannot be confused
with the broader investigatory and prosecutorial powers of the Office of the Ombudsman.

Thus, the matter that needs to be discussed herein is the scope of the power of the Ombudsman to conduct preliminary
investigation and the subsequent prosecution of criminal offenses in the light of the provisions of the Ombudsman Act of 1989
(Republic Act [RA] 6770).

We held that the Ombudsman is clothed with authority to conduct preliminary investigation and to prosecute all criminal cases
involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but those within the
jurisdiction of the regular courts as well.

The authority of the Ombudsman to investigate and prosecute offenses committed by public officers and employees is founded
in Section 15 and Section 11 of RA 6770. Section 15 vests the Ombudsman with the power to investigate and prosecute any act
or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper
or inefficient, thus:

Sec. 15. Powers, Functions and Duties.--The Office of the Ombudsman shall have the following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or
employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has
primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take
over, at any stage, from any investigatory agency of Government, the investigation of such cases;

xxx

Section 11 grants the Office of the Special Prosecutor, an organic component of the Office of the Ombudsman under the latters
supervision and control, the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the
Sandiganbayan. It states:

Sec. 11. Structural Organization. x x x

xxx

(3) The Office of the Special Prosecutor shall be composed of the Special Prosecutor and his prosecution staff. The Office
of the Special Prosecutor shall be an organic component of the Office of the Ombudsman and shall be under the supervision
and control of the Ombudsman.

(4) The Office of the Special Prosecutor shall, under the supervision and control and upon authority of the Ombudsman,
have the following powers:

(a) To conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan;

(b) To enter into plea bargaining agreements; and

(c) To perform such other duties assigned to it by the Ombudsman.

The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or
omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or
inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by
regular courts. It has been held that the clause any illegal act or omission of any public official is broad enough to embrace any
crime committed by a public officer or employee.i[1]

The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15 (1) giving the
Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11 (4) granting the Special
Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the
Sandiganbayan, should not be construed as confining the scope of the investigatory and prosecutory power of the Ombudsman
to such cases.

Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines
such primary jurisdiction as authorizing the Ombudsman "to take over, at any stage, from any investigatory agency of the
government, the investigation of such cases." The grant of this authority does not necessarily imply the exclusion from its
jurisdiction of cases involving public officers and employees cognizable by other courts. The exercise by the Ombudsman of his
primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate
and prosecute other offenses committed by public officers and employees. Indeed, it must be stressed that the powers granted
by the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and non-feasance
committed by public officers and employees during their tenure of office.i[2]

Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special
Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component of the Office of the
Ombudsman and may only act under the supervision and control and upon authority of the Ombudsman.i[3] Its power to conduct
preliminary investigation and to prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan.
Certainly, the lawmakers did not intend to confine the investigatory and prosecutory power of the Ombudsman to these types of
cases. The Ombudsman is mandated by law to act on all complaints against officers and employees of the government and to
enforce their administrative, civil and criminal liability in every case where the evidence warrants.i[4] To carry out this duty, the
law allows him to utilize the personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the government
service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those
designated or deputized to assist him work under his supervision and control.i[5] The law likewise allows him to direct the
Special Prosecutor to prosecute cases outside the Sandiganbayan's jurisdiction in accordance with Section 11 (4c) of RA 6770.
The prosecution of offenses committed by public officers and employees is one of the most important functions of the
Ombudsman. In passing RA 6770, the Congress deliberately endowed the Ombudsman with such power to make him a more
active and effective agent of the people in ensuring accountability in public office.i[6] A review of the development of our
Ombudsman laws reveals this intent.

The concept of Ombudsman originated in Sweden in the early 19th century, referring to an officer appointed by the legislature to
handle the peoples grievances against administrative and judicial actions. He was primarily tasked with receiving complaints
from persons aggrieved by administrative action or inaction, conducting investigation thereon, and making recommendations to
the appropriate administrative agency based on his findings. He relied mainly on the power of persuasion and the high prestige
of the office to effect his recommendations.i[7]

In this jurisdiction, several Ombudsman-like agencies were established by past Presidents to serve as the peoples medium for
airing grievances and seeking redress against abuses and misconduct in the government. These offices were conceived with the
view of raising the standard in public service and ensuring integrity and efficiency in the government. In May 1950, President
Elpidio Quirino created the Integrity Board charged with receiving complaints against public officials for acts of corruption,
dereliction of duty and irregularity in office, and conducting a thorough investigation of these complaints. The Integrity Board was
succeeded by several other agencies which performed basically the same functions of complaints-handling and investigation.
These were the Presidential Complaints and Action Commission under President Ramon Magsaysay, the Presidential
Committee on Administration Performance Efficiency under President Carlos Garcia, the Presidential Anti-Graft Committee
under President Diosdado Macapagal, and the Presidential Agency on Reform and Government Operations and the Office of the
Citizens Counselor, both under President Ferdinand Marcos. It was observed, however, that these agencies failed to realize their
objective for they did not enjoy the political independence necessary for the effective performance of their function as
government critic. Furthermore, their powers extended to no more than fact-finding and recommending.i[8]

Thus, in the advent of the 1973 Constitution, the members of the Constitutional Convention saw the need to constitutionalize the
office of an Ombudsman, to give it political independence and adequate powers to enforce its recommendations.i[9] The 1973
Constitution mandated the legislature to create an office of the Ombudsman to be known as Tanodbayan. Its powers shall not be
limited to receiving complaints and making recommendations, but shall also include the filing and prosecution of criminal, civil or
administrative case before the appropriate body in case of failure of justice. Section 6, Article XIII of the 1973 Constitution read:

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.

Implementing this constitutional provision, President Marcos, on June 11, 1978, exercising his power under Proclamation 1081,
enacted Presidential Decree (PD) 1487 creating the Office of the Ombudsman to be known as Tanodbayan. Its principal task
was to investigate, on complaint, any administrative acti[10] of any administrative agencyi[11] including any government-owned
or controlled corporation.i[12] The Tanodbayan also had the duty to file and prosecute the corresponding criminal, civil, or
administrative case before the Sandiganbayan or the proper court or body if he has reason to believe that any public official,
employee, or other person has acted in a manner resulting in a failure of justice.i[13] It should be noted, however, that the
prosecution of cases falling within the jurisdiction of the Sandiganbayan was to be done by the Tanodbayan through the Special
Prosecutor who, according to PD 1486,i[14] had the exclusive authority to conduct preliminary investigation, file information for
and prosecute cases within the jurisdiction of said court. The Special Prosecutor was then under the control and supervision of
the Secretary of Justice.i[15]

Shortly after its enactment, PD 1487 was amended by PD 1607 which took effect on December 10, 1978. The amendatory law
broadened the authority of the Tanodbayan to investigate administrative acts of administrative agencies by authorizing it to
conduct an investigation on its own motion or initiative, even without a complaint from any person.i[16] The new law also
expanded the prosecutory function of the Tanodbayan by creating the Office of the Chief Special Prosecutor in the Office of the
Tanodbayan and placing under his direction and control the Special Prosecutor who had the exclusive authority to conduct
preliminary investigation of all cases cognizable by the Sandiganbayan; to file informations therefor and to direct and control the
prosecution of said cases therein.i[17] Thus, the law provided that if the Tanodbayan has reason to believe that any public
official, employee, or other person has acted in a manner warranting criminal or disciplinary action or proceedings, he shall
cause him to be investigated by the Office of the Chief Special Prosecutor who shall file and prosecute the corresponding
criminal or administrative case before the Sandiganbayan or the proper court or before the proper administrative agency.i[18]

On July 18, 1979, PD 1630 was enacted further amending PD 1487 and PD 1607. PD 1630 reorganized the Office of the
Tanodbayan and transferred the powers previously vested in the Special Prosecutor to the Tanodbayan himself. Thus, the
Tanodbayan was empowered to directly conduct preliminary investigation, file information and prosecute cases within the
jurisdiction of the Sandiganbayan and other courts. The amendment gave the Tanodbayan the exclusive authority to conduct
preliminary investigation of all cases cognizable by the Sandiganbayan; to file information therefor and to direct and control the
prosecution of said cases.i[19] Section 10 of PD 1630 provided:
Sec. 10. Powers.--The Tanodbayan shall have the following powers:

(a) He may investigate, on complaint by any person or on his own motion or initiative, any administrative act whether amounting
to any criminal offense or not of any administrative agency including any government-owned or controlled corporation;

xxx

(e) If after preliminary investigation he finds a prima facie case, he may file the necessary information or complaint with the
Sandiganbayan or any proper court or administrative agency and prosecute the same.

Section 18 further stated:

Sec. 18. Prosecution of Public Personnel or Other Person.--If the Tanodbayan has reason to believe that any public official,
employee or other person has acted in a manner warranting criminal or disciplinary action or proceedings, he shall conduct the
necessary investigation and shall file and prosecute the corresponding criminal or administrative case before the Sandiganbayan
or the proper court or before the proper administrative agency.

With the ratification of the 1987 Constitution, a new Office of the Ombudsman was created. The present Ombudsman, as
protector of the people, is mandated to act promptly on complaints filed in any form or manner against public officials or
employees of the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled
corporations, and to notify the complainants of the action taken and the result thereof.i[20] He possesses the following powers,
functions and duties:

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

2. Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision,
agency or instrumentality thereof, as well as of any government-owned 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.i[21]

As a new Office of the Ombudsman was established, the then existing Tanodbayan became the Office of the Special Prosecutor
which continued to function and exercise its powers as provided by law, except those conferred on the Office of the Ombudsman
created under the 1987 Constitution.i[22]

The frameworks for the Office of the Ombudsman and the Office of the Special Prosecutor were laid down by President Corazon
Aquino in Executive Order (EO) 243 and EO 244, both passed on July 24, 1987.

In September 1989, Congress passed RA 6770 providing for the functional and structural organization of the Office of the
Ombudsman. As in the previous laws on the Ombudsman, RA 6770 gave the present Ombudsman not only the duty to receive
and relay the people's grievances, but also the duty to investigate and prosecute for and in their behalf, civil, criminal and
administrative offenses committed by government officers and employees as embodied in Sections 15 and 11 of the law.
Clearly, the Philippine Ombudsman departs from the classical Ombudsman model whose function is merely to receive and
process the people's complaints against corrupt and abusive government personnel. The Philippine Ombudsman, as protector of
the people, is armed with the power to prosecute erring public officers and employees, giving him an active role in the
enforcement of laws on anti-graft and corrupt practices and such other offenses that may be committed by such officers and
employees. The legislature has vested him with broad powers to enable him to implement his own actions. Recognizing the
importance of this power, the Court cannot derogate the same by limiting it only to cases cognizable by the Sandiganbayan. It is
apparent from the history and the language of the present law that the legislature intended such power to apply not only to cases
within the jurisdiction of the Sandiganbayan but also those within the jurisdiction of regular courts. The Court observed in the
case of Republic vs. Sandiganbayan:i[23]

A perusal of the law originally creating the Office of the Ombudsman then (to be known as the Tanodbayan), and the
amendatory laws issued subsequent thereto will show that, at its inception, the Office of the Ombudsman was already vested
with the power to investigate and prosecute civil and criminal cases before the Sandiganbayan and even the regular courts.

xxx

Presidential Decree No. 1630 was the existing law governing the then Tanodbayan when Republic Act No. 6770 was enacted
providing for the functional and structural organization of the present Office of the Ombudsman. This later law retained in the
Ombudsman the power of the former Tanodbayan to investigate and prosecute on its own or on complaint by any person, any
act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust,
improper or inefficient. x x x.

Finally, it must be clarified that the authority of the Ombudsman to prosecute cases involving public officers and employees
before the regular courts does not conflict with the power of the regular prosecutors under the Department of Justice to control
and direct the prosecution of all criminal actions under Rule 110 of the Revised Rules of Criminal Procedure. The Rules of Court
must be read in conjunction with RA 6770 which charged the Ombudsman with the duty to investigate and prosecute all illegal
acts and omissions of public officers and employees. The Court held in the case of Sanchez vs. Demetrioui[24] that the power
of the Ombudsman under Section 15 (1) of RA 6770 is not an exclusive authority but rather a shared or concurrent authority in
respect of the offense charged. Thus, Administrative Order No. 8 issued by the Office of the Ombudsman provides:

The prosecution of case cognizable by the Sandiganbayan shall be under the direct exclusive control and supervision of the
Office of the Ombudsman. In cases cognizable by regular Courts, the control and supervision by the Office of the Ombudsman is
only in Ombudsman cases in the sense defined (therein).i[25] The law recognizes a concurrence of jurisdiction between the
Office of the Ombudsman and other investigative agencies of government in the prosecution of cases cognizable by regular
courts.

IN VIEW WHEREOF, the Court's ruling in its decision dated August 9, 1999 and its resolution dated February 20, 2000 that the
Ombudsman exercises prosecutorial powers only in cases cognizable by the Sandiganbayan is SET ASIDE.

SO ORDERED.
G.R. No. 159747 April 13, 2004

GREGORIO B. HONASAN II, petitioner,

vs.
THE PANEL OF INVESTIGATING PROSECUTORS OF THE DEPARTMENT OF JUSTICE (LEO DACERA, SUSAN F.
DACANAY, EDNA A. VALENZUELA AND SEBASTIAN F. CAPONONG, JR.), CIDG-PNP- P/DIRECTOR EDUARDO
MATILLANO, and HON. OMBUDSMAN SIMEON V. MARCELO, respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

On August 4, 2003, an affidavit-complaint was filed with the Department of Justice (DOJ) by respondent CIDG-PNP/P Director
Eduardo Matillano. It reads in part:

2. After a thorough investigation, I found that a crime of coup d'etat was indeed committed by military personnel who
occupied Oakwood on the 27th day of July 2003 and Senator Gregorio "Gringo"Honasan, II …

3. …

4. The said crime was committed as follows:

4.1 On June 4, 2003, at on or about 11 p.m., in a house located in San Juan, Metro Manila, a meeting was held and
presided by Senator Honasan. Attached as Annex "B" is the affidavit of Perfecto Ragil and made an integral part
of this complaint.…

4.8 In the early morning of July 27, 2003, Capt. Gerardo Gambala, for and in behalf of the military rebels
occupying Oakwood, made a public statement aired on nation television, stating their withdrawal of support to
the chain of command of the AFP and the Government of President Gloria Macapagal Arroyo and they are
willing to risk their lives in order to achieve the National Recovery Agenda of Sen. Honasan, which they believe
is the only program that would solve the ills of society. . . . (Emphasis supplied).

The Sworn Statement of AFP Major Perfecto Ragil referred to by PNP/P Director Matillano is quoted verbatim, to wit:

1. That I am a member of the Communication –Electronics and Information Systems Services, Armed Forces of the
Philippines with the rank of Major;

2. That I met a certain Captain Gary Alejano of the Presidential Security Guard (PSG) during our Very Important Person
(VIP) Protection Course sometime in last week of March 2003;

3. That sometime in May 2003, Captain Alejano gave me a copy of the pamphlet of the National Recovery Program
(NRP) and told me that: "Kailangan ng Bansa ng taong kagaya mo na walang bahid ng corruption kaya basahin mo ito
(referring to NRP) pamphlet. I took the pamphlet but never had the time to read it;

4. That sometime in the afternoon of June 4, 2003, Captain Alejano invited me to join him in a meeting where the NRP
would be discussed and that there would be a special guest;

5. That Capt. Alejano and I arrived at the meeting at past 9 o'clock in the evening of June 4, 2003 in a house located
somewhere in San Juan, Metro Manila;

6. That upon arrival we were given a document consisting of about 3-4 pages containing discussion of issues and
concerns within the framework of NRP and we were likewise served with dinner;

7. That while we were still having dinner at about past 11 o'clock in the evening, Sen. Gregorio "Gringo" Honasan arrived
together with another fellow who was later introduced as Capt. Turingan;

8. That after Sen. Honasan had taken his dinner, the meeting proper started presided by Sen. Honasan;
 9. That Sen. Honasan discussed the NRP, the graft and corruption in the government including the military institution,
the judiciary, the executive branch and the like;

10. That the discussion concluded that we must use force, violence and armed struggle to achieve the vision of NRP. At
this point, I raised the argument that it is my belief that reforms will be achieved through the democratic processes and
not thru force and violence and/or armed struggle. Sen. Honasan countered that "we will never achieve reforms through
the democratic processes because the people who are in power will not give up their positions as they have their vested
interests to protect." After a few more exchanges of views, Sen. Honasan appeared irritated and asked me directly three
(3) times: "In ka ba o out?" I then asked whether all those present numbering 30 people, more or less, are really
committed, Sen. Honasan replied: "Kung kaya nating pumatay sa ating mga kalaban, kaya din nating pumatay sa mga
kasamahang magtataksil." I decided not to pursue further questions;

11. That in the course of the meeting, he presented the plan of action to achieve the goals of NRP, i.e., overthrow of the
government under the present leadership thru armed revolution and after which, a junta will be constituted and that junta
will run the new government. He further said that some of us will resign from the military service and occupy civilian
positions in the new government. He also said that there is urgency that we implement this plan and that we would be
notified of the next activities.

12. That after the discussion and his presentation, he explained the rites that we were to undergo-some sort of "blood
compact". He read a prayer that sounded more like a pledge and we all recited it with raised arms and clenched fists. He
then took a knife and demonstrated how to make a cut on the left upper inner arm until it bleeds. The cut was in form of
the letter "I" in the old alphabet but was done in a way that it actually looked like letter "H". Then, he pressed his right
thumb against the blood and pressed the thumb on the lower middle portion of the copy of the Prayer. He then covered
his thumb mark in blood with tape. He then pressed the cut on his left arm against the NRP flag and left mark of letter "I"
on it. Everybody else followed;

13. That when my turn came, I slightly made a cut on my upper inner arm and pricked a portion of it to let it bleed and I
followed what Senator HONASAN did;

14. That I did not like to participate in the rites but I had the fear for my life with what Senator HONASAN said that
"…kaya nating pumatay ng kasamahan";

15. That after the rites, the meeting was adjourned and we left the place;

16. That I avoided Captain Alejano after that meeting but I was extra cautious that he would not notice it for fear of my
life due to the threat made by Senator HONASAN during the meeting on June 4, 2003 and the information relayed to me
by Captain Alejano that their group had already deeply established their network inside the intelligence community;

17. That sometime in the first week of July 2003, Captain Alejano came to see me to return the rifle that he borrowed
and told me that when the group arrives at the Malacañang Compound for "D-DAY", my task is to switch off the
telephone PABX that serves the Malacañang complex. I told him that I could not do it. No further conversation ensued
and he left;

18. That on Sunday, July 27, 2003, while watching the television, I saw flashed on the screen Lieutenant Antonio
Trillanes, Captain Gerardo Gambala, Captain Alejano and some others who were present during the June 4 th meeting
that I attended, having a press conference about their occupation of the Oakwood Hotel. I also saw that the letter "I" on
the arm bands and the banner is the same letter "I" in the banner which was displayed and on which we pressed our
wound to leave the imprint of the letter "I";

19. That this Affidavit is being executed in order to attest the veracity of the foregoing and in order to charge SENATOR
GREGORIO "GRINGO" HONASAN, Capt. FELIX TURINGAN, Capt. GARY ALEJANO, Lt. ANTONIO TRILLANES, Capt.
GERARDO GAMBALA and others for violation of Article 134-A of the Revised Penal Code for the offense of "coup
d'etat". (Emphasis supplied)

The affidavit-complaint is docketed as I.S. No. 2003-1120 and the Panel of Investigating Prosecutors of the Department of
Justice (DOJ Panel for brevity) sent a subpoena to petitioner for preliminary investigation.

On August 27, 2003, petitioner, together with his counsel, appeared at the DOJ. He filed a Motion for Clarification questioning
DOJ's jurisdiction over the case, asserting that since the imputed acts were committed in relation to his public office, it is the
Office of the Ombudsman, not the DOJ, that has the jurisdiction to conduct the corresponding preliminary investigation; that
should the charge be filed in court, it is the Sandiganbayan, not the regular courts, that can legally take cognizance of the case
considering that he belongs to the group of public officials with Salary Grade 31; and praying that the proceedings be suspended
until final resolution of his motion.

Respondent Matillano submitted his comment/opposition thereto and petitioner filed a reply.

On September 10, 2003, the DOJ Panel issued an Order, to wit:

On August 27, 2003, Senator Gregorio B. Honasan II filed through counsel a "Motion to Clarify Jurisdiction". On
September 1, 2003, complainant filed a Comment/Opposition to the said motion.

The motion and comment/opposition are hereby duly noted and shall be passed upon in the resolution of this case.

In the meantime, in view of the submission by complainant of additional affidavits/evidence and to afford respondents
ample opportunity to controvert the same, respondents, thru counsel are hereby directed to file their respective counter-
affidavits and controverting evidence on or before September 23, 2003.1

Hence, Senator Gregorio B. Honasan II filed the herein petition for certiorari under Rule 65 of the Rules of Court against the DOJ
Panel and its members, CIDG-PNP-P/Director Eduardo Matillano and Ombudsman Simeon V. Marcelo, attributing grave abuse
of discretion on the part of the DOJ Panel in issuing the aforequoted Order of September 10, 2003 on the ground that the DOJ
has no jurisdiction to conduct the preliminary investigation.

Respondent Ombudsman, the Office of Solicitor General in representation of respondents DOJ Panel, and Director Matillano
submitted their respective comments.

The Court heard the parties in oral arguments on the following issues:

1) Whether respondent Department of Justice Panel of Investigators has jurisdiction to conduct preliminary investigation
over the charge of coup d'etat against petitioner;

2) Whether Ombudsman-DOJ Circular No. 95-001 violates the Constitution and Republic Act No. 6770 or Ombudsman
Act of 1989; and

3) Whether respondent DOJ Panel of Investigators committed grave abuse of discretion in deferring the resolution of the
petitioner's motion to clarify jurisdiction considering the claim of the petitioner that the DOJ Panel has no jurisdiction to
conduct preliminary investigation.

After the oral arguments, the parties submitted their respective memoranda. The arguments of petitioner are:

1. The Office of the Ombudsman has jurisdiction to conduct the preliminary investigation over all public officials,
including petitioner.

2. Respondent DOJ Panel is neither authorized nor deputized under OMB-DOJ Joint Circular No. 95-001 to conduct the
preliminary investigation involving Honasan.

3. Even if deputized, the respondent DOJ Panel is still without authority since OMB-DOJ Joint Circular No. 95-001 is
ultra vires for being violative of the Constitution, beyond the powers granted to the Ombudsman by R.A. 6770 and
inoperative due to lack of publication, hence null and void.

4. Since petitioner is charged with coup de 'etat in relation to his office, it is the Office of the Ombudsman which has the
jurisdiction to conduct the preliminary investigation.

5. The respondent DOJ Panel gravely erred in deferring the resolution of petitioner's Motion to Clarify Jurisdiction since
the issue involved therein is determinative of the validity of the preliminary investigation.

6. Respondent DOJ Panel gravely erred when it resolved petitioner's Motion in the guise of directing him to submit
Counter-Affidavit and yet refused and/or failed to perform its duties to resolve petitioner's Motion stating its legal and
factual bases.

The arguments of respondent DOJ Panel are:

 1. The DOJ has jurisdiction to conduct the preliminary investigation on petitioner pursuant to Section 3, Chapter I, Title
III, Book IV of the Revised Administrative Code of 1987 in relation to P.D. No. 1275, as amended by P.D. No. 1513.

2. Petitioner is charged with a crime that is not directly nor intimately related to his public office as a Senator. The factual
allegations in the complaint and the supporting affidavits are bereft of the requisite nexus between petitioner's office and
the acts complained of.

3. The challenge against the constitutionality of the OMB-DOJ Joint Circular, as a ground to question the jurisdiction of
the DOJ over the complaint below, is misplaced. The jurisdiction of the DOJ is a statutory grant under the Revised
Administrative Code. It is not derived from any provision of the joint circular which embodies the guidelines governing
the authority of both the DOJ and the Office of the Ombudsman to conduct preliminary investigation on offenses charged
in relation to public office.

4. Instead of filing his counter-affidavit, petitioner opted to file a motion to clarify jurisdiction which, for all intents and
purposes, is actually a motion to dismiss that is a prohibited pleading under Section 3, Rule 112 of the Revised Rules of
Criminal Procedure. The DOJ Panel is not required to act or even recognize it since a preliminary investigation is
required solely for the purpose of determining whether there is a sufficient ground to engender a well founded belief that
a crime has been committed and the respondent is probably guilty thereof and should be held for trial. The DOJ panel
did not outrightly reject the motion of petitioner but ruled to pass upon the same in the determination of the probable
cause; thus, it has not violated any law or rule or any norm of discretion.

The arguments of respondent Ombudsman are:

1. The DOJ Panel has full authority and jurisdiction to conduct preliminary investigation over the petitioner for the reason
that the crime of coup d'etat under Article No. 134-A of the Revised Penal Code (RPC) may fall under the jurisdiction of
the Sandiganbayan only if the same is committed "in relation to office" of petitioner, pursuant to Section 4, P.D. No.
1606, as amended by R.A. No. 7975 and R.A. No. 8249.

2. Petitioner's premise that the DOJ Panel derives its authority to conduct preliminary investigation over cases involving
public officers solely from the OMB-DOJ Joint Circular No. 95-001 is misplaced because the DOJ's concurrent authority
with the OMB to conduct preliminary investigation of cases involving public officials has been recognized in Sanchez vs.
Demetriou (227 SCRA 627 [1993]) and incorporated in Section 4, Rule 112 of the Revised Rules of Criminal Procedure.

3. Petitioner's assertion that the Joint Circular is ultra vires and the DOJ cannot be deputized by the Ombudsman en
masse but must be given in reference to specific cases has no factual or legal basis. There is no rule or law which
requires the Ombudsman to write out individualized authorities to deputize prosecutors on a per case basis. The power
of the Ombudsman to deputize DOJ prosecutors proceeds from the Constitutional grant of power to request assistance
from any government agency necessary to discharge its functions, as well as from the statutory authority to so deputize
said DOJ prosecutors under Sec. 31 of RA 6770.

4. The Joint Circular which is an internal arrangement between the DOJ and the Office of the Ombudsman need not be
published since it neither contains a penal provision nor does it prescribe a mandatory act or prohibit any under pain or
penalty. It does not regulate the conduct of persons or the public, in general.

The Court finds the petition without merit.

The authority of respondent DOJ Panel is based not on the assailed OMB-DOJ Circular No. 95-001 but on the provisions of the
1987 Administrative Code under Chapter I, Title III, Book IV, governing the DOJ, which provides:

Sec. 1. Declaration of policy - It is the declared policy of the State to provide the government with a principal law agency
which shall be both its legal counsel and prosecution arm; administer the criminal justice system in accordance with
the accepted processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration
of the correctional system; …

Sec. 3. Powers and Functions - To accomplish its mandate, the Department shall have the following powers and
functions:

(2) Investigate the commission of crimes, prosecute offenders and administer the probation and correction
system; (Emphasis supplied)
and Section 1 of P.D. 1275, effective April 11, 1978, to wit:

SECTION 1. Creation of the National Prosecution Service; Supervision and Control of the Secretary of Justice. – There
is hereby created and established a National Prosecution Service under the supervision and control of the Secretary of
Justice, to be composed of the Prosecution Staff in the Office of the Secretary of Justice and such number of Regional
State Prosecution Offices, and Provincial and City Fiscal's Offices as are hereinafter provided, which shall be primarily
responsible for the investigation and prosecution of all cases involving violations of penal laws. (Emphasis
supplied)

Petitioner claims that it is the Ombudsman, not the DOJ, that has the jurisdiction to conduct the preliminary investigation under
paragraph (1), Section 13, Article XI of the 1987 Constitution, which confers upon the Office of the Ombudsman the power to
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. Petitioner rationalizes that the 1987
Administrative Code and the Ombudsman Act of 1989 cannot prevail over the Constitution, pursuant to Article 7 of the Civil
Code, which provides:

Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by
disuse, or custom or practice to the contrary.

When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall
govern.

Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the
Constitution.

and Mabanag vs. Lopez Vito.2

The Court is not convinced. Paragraph (1) of Section 13, Article XI of the Constitution, viz:

SEC. 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

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

does not exclude other government agencies tasked by law to investigate and prosecute cases involving public officials. If it
were the intention of the framers of the 1987 Constitution, they would have expressly declared the exclusive conferment of the
power to the Ombudsman. Instead, paragraph (8) of the same Section 13 of the Constitution provides:

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

Accordingly, Congress enacted R.A. 6770, otherwise known as "The Ombudsman Act of 1989." Section 15 thereof provides:

Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers, functions and
duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or
employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has
primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary
jurisdiction, it may take over, at any stage, from any investigatory agency of the government, the investigation
of such cases.

…. (Emphasis supplied)

Pursuant to the authority given to the Ombudsman by the Constitution and the Ombudsman Act of 1989 to lay down its own
rules and procedure, the Office of the Ombudsman promulgated Administrative Order No. 8, dated November 8, 1990, entitled,
Clarifying and Modifying Certain Rules of Procedure of the Ombudsman, to wit:

A complaint filed in or taken cognizance of by the Office of the Ombudsman charging any public officer or employee
including those in government-owned or controlled corporations, with an act or omission alleged to be illegal, unjust,
 improper or inefficient is an Ombudsman case. Such a complaint may be the subject of criminal or administrative
proceedings, or both.

For purposes of investigation and prosecution, Ombudsman cases involving criminal offenses may be
subdivided into two classes, to wit: (1) those cognizable by the Sandiganbayan, and (2) those falling under the
jurisdiction of the regular courts. The difference between the two, aside from the category of the courts wherein
they are filed, is on the authority to investigate as distinguished from the authority to prosecute, such cases.

The power to investigate or conduct a preliminary investigation on any Ombudsman case may be exercised by
an investigator or prosecutor of the Office of the Ombudsman, or by any Provincial or City Prosecutor or their
assistance, either in their regular capacities or as deputized Ombudsman prosecutors.

The prosecution of cases cognizable by the Sandiganbayan shall be under the direct exclusive control and
supervision of the Office of the Ombudsman. In cases cognizable by the regular Courts, the control and
supervision by the Office of the Ombudsman is only in Ombudsman cases in the sense defined above. The law
recognizes a concurrence of jurisdiction between the Office of the Ombudsman and other investigative
agencies of the government in the prosecution of cases cognizable by regular courts. (Emphasis supplied)

It is noteworthy that as early as 1990, the Ombudsman had properly differentiated the authority to investigate cases from the
authority to prosecute cases. It is on this note that the Court will first dwell on the nature or extent of the authority of the
Ombudsman to investigate cases. Whence, focus is directed to the second sentence of paragraph (1), Section 15 of the
Ombudsman Act which specifically provides that the Ombudsman has primary jurisdiction over cases cognizable by the
Sandiganbayan, and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigating agency of
the government, the investigation of such cases.

That the power of the Ombudsman to investigate offenses involving public officers or employees is not exclusive but is
concurrent with other similarly authorized agencies of the government such as the provincial, city and state prosecutors has long
been settled in several decisions of the Court.

In Cojuangco, Jr. vs. Presidential Commission on Good Government, decided in 1990, the Court expressly declared:

A reading of the foregoing provision of the Constitution does not show that the power of investigation including
preliminary investigation vested on the Ombudsman is exclusive.3

Interpreting the primary jurisdiction of the Ombudsman under Section 15 (1) of the Ombudsman Act, the Court held in said case:

Under Section 15 (1) of Republic Act No. 6770 aforecited, the Ombudsman has primary jurisdiction over cases
cognizable by the Sandiganbayan so that it may take over at any stage from any investigatory agency of the
government, the investigation of such cases. The authority of the Ombudsman to investigate offenses involving
public officers or employees is not exclusive but is concurrent with other similarly authorized agencies of the
government. Such investigatory agencies referred to include the PCGG and the provincial and city prosecutors
and their assistants, the state prosecutors and the judges of the municipal trial courts and municipal circuit trial
court.

In other words the provision of the law has opened up the authority to conduct preliminary investigation of
offenses cognizable by the Sandiganbayan to all investigatory agencies of the government duly authorized to
conduct a preliminary investigation under Section 2, Rule 112 of the 1985 Rules of Criminal Procedure with the
only qualification that the Ombudsman may take over at any stage of such investigation in the exercise of his
primary jurisdiction.4 (Emphasis supplied)

A little over a month later, the Court, in Deloso vs. Domingo,5 pronounced that the Ombudsman, under the authority of Section
13 (1) of the 1987 Constitution, has jurisdiction to investigate any crime committed by a public official, elucidating thus:

As protector of the people, the office of the Ombudsman has the power, function and duty to "act promptly on complaints
filed in any form or manner against public officials" (Sec. 12) and to "investigate x x x any act or omission of any public
official x x x when such act or omission appears to be illegal, unjust, improper or inefficient." (Sec. 13[1].) The
Ombudsman is also empowered to "direct the officer concerned," in this case the Special Prosecutor, "to take
appropriate action against a public official x x x and to recommend his prosecution" (Sec. 13[3]).

The clause "any [illegal] act or omission of any public official" is broad enough to embrace any crime committed by a
public official. The law does not qualify the nature of the illegal act or omission of the public official or employee that the
 Ombudsman may investigate. It does not require that the act or omission be related to or be connected with or arise
from, the performance of official duty. Since the law does not distinguish, neither should we.

The reason for the creation of the Ombudsman in the 1987 Constitution and for the grant to it of broad investigative
authority, is to insulate said office from the long tentacles of officialdom that are able to penetrate judges' and fiscals'
offices, and others involved in the prosecution of erring public officials, and through the exertion of official pressure and
influence, quash, delay, or dismiss investigations into malfeasances and misfeasances committed by public officers. It
was deemed necessary, therefore, to create a special office to investigate all criminal complaints against public officers
regardless of whether or not the acts or omissions complained of are related to or arise from the performance of the
duties of their office. The Ombudsman Act makes perfectly clear that the jurisdiction of the Ombudsman encompasses
"all kinds of malfeasance, misfeasance, and non-feasance that have been committed by any officer or employee as
mentioned in Section 13 hereof, during his tenure of office" (Sec. 16, R.A. 6770).

.........

Indeed, the labors of the constitutional commission that created the Ombudsman as a special body to investigate erring
public officials would be wasted if its jurisdiction were confined to the investigation of minor and less grave offenses
arising from, or related to, the duties of public office, but would exclude those grave and terrible crimes that spring from
abuses of official powers and prerogatives, for it is the investigation of the latter where the need for an independent,
fearless, and honest investigative body, like the Ombudsman, is greatest.6

At first blush, there appears to be conflicting views in the rulings of the Court in the Cojuangco, Jr. case and the Deloso case.
However, the contrariety is more apparent than real. In subsequent cases, the Court elucidated on the nature of the powers of
the Ombudsman to investigate.

In 1993, the Court held in Sanchez vs. Demetriou,7 that while it may be true that the Ombudsman has jurisdiction to investigate
and prosecute any illegal act or omission of any public official, the authority of the Ombudsman to investigate is merely a primary
and not an exclusive authority, thus:

The Ombudsman is indeed empowered under Section 15, paragraph (1) of RA 6770 to investigate and prosecute any
illegal act or omission of any public official. However as we held only two years ago in the case of Aguinaldo vs.
Domagas,8 this authority "is not an exclusive authority but rather a shared or concurrent authority in respect of the
offense charged."

Petitioners finally assert that the information and amended information filed in this case needed the approval of the
Ombudsman. It is not disputed that the information and amended information here did not have the approval of the
Ombudsman. However, we do not believe that such approval was necessary at all. In Deloso v. Domingo, 191 SCRA
545 (1990), the Court held that the Ombudsman has authority to investigate charges of illegal acts or omissions on the
part of any public official, i.e., any crime imputed to a public official. It must, however, be pointed out that the
authority of the Ombudsman to investigate "any [illegal] act or omission of any public official" (191 SCRA 550)
is not an exclusive authority but rather a shared or concurrent authority in respect of the offense charged, i.e.,
the crime of sedition. Thus, the non-involvement of the office of the Ombudsman in the present case does not have any
adverse legal consequence upon the authority of the panel of prosecutors to file and prosecute the information or
amended information.

In fact, other investigatory agencies of the government such as the Department of Justice in connection with
the charge of sedition, and the Presidential Commission on Good Government, in ill gotten wealth cases, may
conduct the investigation.9 (Emphasis supplied)

In Natividad vs. Felix,10 a 1994 case, where the petitioner municipal mayor contended that it is the Ombudsman and not the
provincial fiscal who has the authority to conduct a preliminary investigation over his case for alleged Murder, the Court held:

The Deloso case has already been re-examined in two cases, namely Aguinaldo vs. Domagas and Sanchez vs.
Demetriou. However, by way of amplification, we feel the need for tracing the history of the legislation relative to the
jurisdiction of Sandiganbayan since the Ombudsman's primary jurisdiction is dependent on the cases cognizable by the
former.

In the process, we shall observe how the policy of the law, with reference to the subject matter, has been in a state of
flux.
 These laws, in chronological order, are the following: (a) Pres. Decree No. 1486, -- the first law on the Sandiganbayan;
(b) Pres. Decree No. 1606 which expressly repealed Pres. Decree No. 1486; (c) Section 20 of Batas Pambansa Blg.
129; (d) Pres. Decree No. 1860; and (e) Pres. Decree No. 1861.

The latest law on the Sandiganbayan, Sec. 1 of Pres. Decree No. 1861 reads as follows:

"SECTION 1. Section 4 of Presidential Decree No. 1606 is hereby amended to read as follows:

'SEC. 4. Jurisdiction. – The Sandiganbayan shall exercise:

'(a) Exclusive original jurisdiction in all cases involving:

...

(2) Other offenses or felonies committed by public officers and employees in relation to their office,
including those employed in government-owned or controlled corporation, whether simple or complexed
with other crimes, where the penalty prescribed by law is higher that prision correccional or
imprisonment for six (6) years, or a fine of P6,000: PROVIDED, HOWEVER, that offenses or felonies
mentioned in this paragraph where the penalty prescribed by law does not exceed prision correccional
or imprisonment for six (6) years or a fine of P6,000 shall be tried by the proper Regional Trial Court,
Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial Court."

A perusal of the aforecited law shows that two requirements must concur under Sec. 4 (a) (2) for an offense to fall under
the Sandiganbayan's jurisdiction, namely: the offense committed by the public officer must be in relation to his office and
the penalty prescribed be higher then prision correccional or imprisonment for six (6) years, or a fine of P6,000.00.11

Applying the law to the case at bench, we find that although the second requirement has been met, the first requirement
is wanting. A review of these Presidential Decrees, except Batas Pambansa Blg. 129, would reveal that the crime
committed by public officers or employees must be "in relation to their office" if it is to fall within the jurisdiction of the
Sandiganbayan. This phrase which is traceable to Pres. Decree No. 1468, has been retained by Pres. Decree No. 1861
as a requirement before the Ombudsman can acquire primary jurisdiction on its power to investigate.

It cannot be denied that Pres. Decree No. 1861 is in pari materia to Article XI, Sections 12 and 13 of the 1987
Constitution and the Ombudsman Act of 1989 because, as earlier mentioned, the Ombudsman's power to
investigate is dependent on the cases cognizable by the Sandiganbayan. Statutes are in pari materia when they
relate to the same person or thing or to the same class of persons or things, or object, or cover the same
specific or particular subject matter.

It is axiomatic in statutory construction that a statute must be interpreted, not only to be consistent with itself,
but also to harmonize with other laws on the same subject matter, as to form a complete, coherent and
intelligible system. The rule is expressed in the maxim, "interpretare et concordare legibus est optimus
interpretandi," or every statute must be so construed and harmonized with other statutes as to form a uniform
system of jurisprudence. Thus, in the application and interpretation of Article XI, Sections 12 and 13 of the 1987
Constitution and the Ombudsman Act of 1989, Pres. Decree No. 1861 must be taken into consideration. It must
be assumed that when the 1987 Constitution was written, its framers had in mind previous statutes relating to
the same subject matter. In the absence of any express repeal or amendment, the 1987 Constitution and the
Ombudsman Act of 1989 are deemed in accord with existing statute, specifically, Pres. Decree No. 1861.12
(Emphasis supplied)

R.A. No. 8249 which amended Section 4, paragraph (b) of the Sandiganbayan Law (P.D. 1861) likewise provides that for other
offenses, aside from those enumerated under paragraphs (a) and (c), to fall under the exclusive jurisdiction of the
Sandiganbayan, they must have been committed by public officers or employees in relation to their office.

In summation, the Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the Sandiganbayan Law, as
amended, do not give to the Ombudsman exclusive jurisdiction to investigate offenses committed by public officers or
employees. The authority of the Ombudsman to investigate offenses involving public officers or employees is concurrent with
other government investigating agencies such as provincial, city and state prosecutors. However, the Ombudsman, in the
exercise of its primary jurisdiction over cases cognizable by the Sandiganbayan, may take over, at any stage, from any
investigating agency of the government, the investigation of such cases.
In other words, respondent DOJ Panel is not precluded from conducting any investigation of cases against public officers
involving violations of penal laws but if the cases fall under the exclusive jurisdiction of the Sandiganbayan, then respondent
Ombudsman may, in the exercise of its primary jurisdiction take over at any stage.

Thus, with the jurisprudential declarations that the Ombudsman and the DOJ have concurrent jurisdiction to conduct preliminary
investigation, the respective heads of said offices came up with OMB-DOJ Joint Circular No. 95-001 for the proper guidelines of
their respective prosecutors in the conduct of their investigations, to wit:

OMB-DOJ JOINT CIRCULAR NO. 95-001

Series of 1995

TO: ALL GRAFT INVESTIGATION/SPECIAL PROSECUTION OFFICERS OF THE OFFICE OF THE OMBUDSMAN

ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS, PROVINCIAL/CITY PROSECUTORS AND
THEIR ASSISTANTS, STATE PROSECUTORS AND PROSECUTING ATTORNEYS OF THE DEPARTMENT OF
JUSTICE.

SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLIC OFFICERS AND EMPLOYEES, THE CONDUCT OF
PRELIMINARY INVESTIGATION, PREPARATION OF RESOLUTIONS AND INFORMATIONS AND PROSECUTION
OF CASES BY PROVINCIAL AND CITY PROSECUTORS AND THEIR ASSISTANTS.

In a recent dialogue between the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF JUSTICE, discussion
centered around the latest pronouncement of the supreme court on the extent to which the ombudsman may call upon
the government prosecutors for assistance in the investigation and prosecution of criminal cases cognizable by his office
and the conditions under which he may do so. Also discussed was Republic Act No. 7975 otherwise known as "an act to
strengthen the functional and structural organization of the sandiganbayan, amending for the purpose presidential
decree no. 1606, as amended" and its implications on the jurisdiction of the office of the Ombudsman on criminal
offenses committed by public officers and employees.

Concerns were expressed on unnecessary delays that could be caused by discussions on jurisdiction between the
OFFICE OF THE OMBUDSMAN and the department of justice, and by procedural conflicts in the filing of complaints
against public officers and employees, the conduct of preliminary investigations, the preparation of resolutions and
informations, and the prosecution of cases by provincial and city prosecutors and their assistants as deputized
prosecutors of the ombudsman.

Recognizing the concerns, the office of the ombudsman and the department of justice, in a series of consultations, have
agreed on the following guidelines to be observed in the investigation and prosecution of cases against public officers
and employees:

1. Preliminary investigation and prosecution of offenses committed by public officers and employees in relation to office
whether cognizable by the sandiganbayan or the regular courts, and whether filed with the office of the ombudsman or
with the office of the provincial/city prosecutor shall be under the control and supervision of the office of the ombudsman.

2. Unless the Ombudsman under its Constitutional mandate finds reason to believe otherwise, offenses not in relation to
office and cognizable by the regular courts shall be investigated and prosecuted by the office of the provincial/city
prosecutor, which shall rule thereon with finality.

3. Preparation of criminal information shall be the responsibility of the investigating officer who conducted the preliminary
investigation. Resolutions recommending prosecution together with the duly accomplished criminal informations shall be
forwarded to the appropriate approving authority.

4. Considering that the office of the ombudsman has jurisdiction over public officers and employees and for effective
monitoring of all investigations and prosecutions of cases involving public officers and employees, the office of the
provincial/city prosecutor shall submit to the office of the ombudsman a monthly list of complaints filed with their
respective offices against public officers and employees.

Manila, Philippines, October 5, 1995.

 (signed) (signed)

TEOFISTO T. GUINGONA, JR. ANIANO A. DESIERTO

Secretary Ombudsman
Department of Justice Office of the Ombudsman

A close examination of the circular supports the view of the respondent Ombudsman that it is just an internal agreement
between the Ombudsman and the DOJ.

Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on Preliminary Investigation, effective December 1,
2000, to wit:

SEC. 2. Officers authorized to conduct preliminary investigations-

The following may conduct preliminary investigations:

(a) Provincial or City Prosecutors and their assistants;

(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;

(c) National and Regional State Prosecutors; and

(d) Other officers as may be authorized by law.

Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in
their respective territorial jurisdictions.

SEC. 4. Resolution of investigating prosecutor and its review. - If the investigating prosecutor finds cause to hold the
respondent for trial, he shall prepare the resolution and information, He shall certify under oath in the information that he,
or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there
is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the
accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity
to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief
state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in
the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof
and shall immediately inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written
authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his
deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved
by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a
probable cause exists, the latter may, by himself file the information against the respondent, or direct another assistant
prosecutor or state prosecutor to do so without conducting another preliminary investigation.

If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the
Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he
shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary
investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same
Rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman. (Emphasis
supplied)

confirm the authority of the DOJ prosecutors to conduct preliminary investigation of criminal complaints filed with them for
offenses cognizable by the proper court within their respective territorial jurisdictions, including those offenses which come within
the original jurisdiction of the Sandiganbayan; but with the qualification that in offenses falling within the original jurisdiction of the
Sandiganbayan, the prosecutor shall, after their investigation, transmit the records and their resolutions to the
Ombudsman or his deputy for appropriate action. Also, the prosecutor cannot dismiss the complaint without the prior written
authority of the Ombudsman or his deputy, nor can the prosecutor file an Information with the Sandiganbayan without being
deputized by, and without prior written authority of the Ombudsman or his deputy.

Next, petitioner contends that under OMB-Joint Circular No. 95-001, there is no showing that the Office of the Ombudsman has
deputized the prosecutors of the DOJ to conduct the preliminary investigation of the charge filed against him.

We find no merit in this argument. As we have lengthily discussed, the Constitution, the Ombudsman Act of 1989, Administrative
Order No. 8 of the Office of the Ombudsman, the prevailing jurisprudence and under the Revised Rules on Criminal Procedure,
all recognize and uphold the concurrent jurisdiction of the Ombudsman and the DOJ to conduct preliminary investigation on
charges filed against public officers and employees.

To reiterate for emphasis, the power to investigate or conduct preliminary investigation on charges against any public officers or
employees may be exercised by an investigator or by any provincial or city prosecutor or their assistants, either in their regular
capacities or as deputized Ombudsman prosecutors. The fact that all prosecutors are in effect deputized Ombudsman
prosecutors under the OMB-DOJ Circular is a mere superfluity. The DOJ Panel need not be authorized nor deputized by the
Ombudsman to conduct the preliminary investigation for complaints filed with it because the DOJ's authority to act as the
principal law agency of the government and investigate the commission of crimes under the Revised Penal Code is derived from
the Revised Administrative Code which had been held in the Natividad case13 as not being contrary to the Constitution. Thus,
there is not even a need to delegate the conduct of the preliminary investigation to an agency which has the jurisdiction to do so
in the first place. However, the Ombudsman may assert its primary jurisdiction at any stage of the investigation.

Petitioner's contention that OMB-DOJ Joint Circular No. 95-001 is ineffective on the ground that it was not published is not
plausible. We agree with and adopt the Ombudsman's dissertation on the matter, to wit:

Petitioner appears to be of the belief, although NOT founded on a proper reading and application of jurisprudence, that
OMB-DOJ Joint Circular No. 95-001, an internal arrangement between the DOJ and the Office of the Ombudsman, has
to be published.

As early as 1954, the Honorable Court has already laid down the rule in the case of People vs. Que Po Lay, 94 Phil.
640 (1954) that only circulars and regulations which prescribe a penalty for its violation should be published before
becoming effective, this, on the general principle and theory that before the public is bound by its contents, especially its
penal provision, a law, regulation or circular must first be published and the people officially and specifically informed of
said contents and its penalties: said precedent, to date, has not yet been modified or reversed. OMB-DOJ Joint Circular
No. 95-001 DOES NOT contain any penal provision or prescribe a mandatory act or prohibit any, under pain or penalty.

What is more, in the case of Tanada v. Tuvera, 146 SCRA 453 (1986), the Honorable Court ruled that:

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative
agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions
issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the
performance of their duties. (at page 454. emphasis supplied)

OMB-DOJ Joint Circular No. 95-001 is merely an internal circular between the DOJ and the Office of the Ombudsman,
outlining authority and responsibilities among prosecutors of the DOJ and of the Office of the Ombudsman in the
conduct of preliminary investigation. OMB-DOJ Joint Circular No. 95-001 DOES NOT regulate the conduct of persons or
the public, in general.

Accordingly, there is no merit to petitioner's submission that OMB-DOJ Joint Circular No. 95-001 has to be published.14

Petitioner insists that the Ombudsman has jurisdiction to conduct the preliminary investigation because petitioner is a public
officer with salary Grade 31 so that the case against him falls exclusively within the jurisdiction of the Sandiganbayan.
Considering the Court's finding that the DOJ has concurrent jurisdiction to investigate charges against public officers, the fact
that petitioner holds a Salary Grade 31 position does not by itself remove from the DOJ Panel the authority to investigate the
charge of coup d'etat against him.

The question whether or not the offense allegedly committed by petitioner is one of those enumerated in the Sandiganbayan
Law that fall within the exclusive jurisdiction of the Sandiganbayan will not be resolved in the present petition so as not to pre-
empt the result of the investigation being conducted by the DOJ Panel as to the questions whether or not probable cause exists
to warrant the filing of the information against the petitioner; and to which court should the information be filed considering the
presence of other respondents in the subject complaint.

WHEREFORE, the petition for certiorari is DISMISSED for lack of merit. SO ORDERED.
 ATTY. RONALDO P. LEDESMA, G.R. No. 161629
Petitioner,
Present:
Davide, Jr., C.J. (Chairman),
- versus - Quisumbing,
Ynares-Santiago,
Carpio, and
Azcuna, JJ.
HON. COURT OF APPEALS, HON.
ANIANO A. DESIERTO, in his
capacity as Ombudsman, HON.
ABELARDO L. APORTADERA, in
his capacity as Assistant Ombudsman,
and Ombudsmans Fact Finding and
Intelligence Bureau, represented by Promulgated:
Director AGAPITO ROSALES,
Respondents. July 29, 2005
x ---------------------------------------------------------------------------------------- x

DECISION

YNARES-SANTIAGO, J.:

This petition for review on certiorari seeks to reverse and set aside the decision[1] dated August 28, 2003 and the resolution[2]
dated January 15, 2004 of the Court of Appeals[3] in CA-G.R. SP No. 58264 which affirmed with modification public respondents
(1) Joint Resolution dated January 22, 1999, which ordered, among other things, petitioners suspension for one (1) year for
conduct prejudicial to the service; and (2) Order dated February 8, 2000, as reiterated in a Memorandum dated March 17, 2000,
which denied petitioners motion for reconsideration but reduced his suspension to nine (9) months without pay. The Court of
Appeals modified the above issuances by further reducing petitioners suspension from nine (9) months to six (6) months and
one (1) day without pay.[4]

Petitioner Atty. Ronaldo P. Ledesma is the Chairman of the First Division of the Board of Special Inquiry (BSI) of the Bureau of
Immigration and Deportation (BID). In a letter-complaint filed by Augusto Somalio with the Fact Finding and Intelligence Bureau
(FIIB) of the Office of the Ombudsman, an investigation was requested on alleged anomalies surrounding the extension of the
Temporary Resident Visas (TRVs) of two (2) foreign nationals. The FIIB investigation revealed seven (7) other cases of TRV
extensions tainted with similar irregularities.

As a result, the FIIB, as nominal complainant, filed before the Administrative Adjudication Bureau (AAB) of the Office of the
Ombudsman a formal complaint against herein petitioner. Also charged administratively were Atty. Arthel Caronongan and Ma.
Elena P. Ang, Board Member and Executive Assistant, respectively, in petitioners division. With respect to petitioner, the complaint
was treated as both a criminal and an administrative charge and docketed as OMB-0-98-0214 (criminal aspect), for nine (9) counts
of violation of the Anti-Graft and Corrupt Practices Act and for falsification of public documents, and OMB-ADM-0-98-0038
(administrative aspect), for nine (9) counts of Dishonesty, Grave Misconduct, Falsification of Public Documents and Gross Neglect
of Duty.

The complaint against petitioner, Caronongan and Ang alleged the following illegal acts: (a) irregularly granting TRVs beyond the
prescribed period; and (b) using recycled or photocopied applications for a TRV extension without the applicants affixing their
signatures anew to validate the correctness and truthfulness of the information previously stated therein. Specifically, petitioner
and Caronongan allegedly signed the Memorandum of Transmittal to the Board of Commission (BOC) of the BID, forwarding the
applications for TRV extension of several aliens whose papers were questionable.
In a Joint Resolution[5] dated January 22, 1999, Graft Investigation Officer Marlyn M. Reyes resolved the administrative cases
filed against petitioner, Caronongan and Ang, as follows:

WHEREFORE, foregoing considered, it is respectfully recommended that:

1. Respondent ATTY. RONALDO P. LEDESMA be SUSPENDED from the service for one (1) year for
Conduct Prejudicial to the Interest of the Service;
2. The instant case against ATTY. ARTHEL B. CARONONGAN be DISMISSED, the same having been
rendered moot and academic; and
3. The instant case against respondent MA. ELENA P. ANG be DISMISSED for lack of sufficient evidence.

SO RESOLVED.[6]

Respondent Assistant Ombudsman Abelardo L. Aportadera, Jr. reviewed the Joint Resolution which was approved by respondent
Ombudsman Desierto on December 29, 1999.[7]

In the meantime, on July 9, 1999, respondent Ombudsman approved a Resolution[8] dated June 22, 1999 of Graft
Investigation Officer Marilou B. Ancheta-Mejica, dismissing the criminal charges against petitioner for insufficiency of evidence.[9]

Petitioner filed a motion for reconsideration[10] in the administrative case alleging that the BOC which reviews all applications for
TRVs extension, approved the TRVs in question, hence, petitioner argued that it effectively declared the applications for extension
regular and in order and waived any infirmity thereon.

In an Order[11] dated February 8, 2000, Graft Officer Reyes recommended the denial of the motion for reconsideration which was
approved by respondent Ombudsman on March 24, 2000 but reduced the period of suspension from one (1) year to nine (9)
months without pay.

On April 13, 2000, petitioner filed a petition for review with the Court of Appeals, which included a prayer for the issuance of a writ
of preliminary prohibitory mandatory injunction and/or temporary restraining order to enjoin public respondents from implementing
the order of suspension. The Court of Appeals issued the TRO on April 19, 2000.

In its Decision dated August 28, 2003, the Court of Appeals affirmed petitioners suspension but reduced the period from nine (9)
months to six (6) months and one (1) day without pay.[12]

With the denial of his motion for reconsideration, petitioner filed the instant petition for review on the following grounds:

I.
IN PROMULGATING ITS ASSAILED DECISION, RESPONDENT COURT OF APPEALS MANIFESTLY
OVERLOOKED THE FOLLOWING RELEVANT FACTS AND MATTERS WHICH, IF PROPERLY CONSIDERED,
WOULD HAVE JUSTIFIED A DIFFERENT CONCLUSION IN FAVOR OF PETITIONER:

II.
THE PRONOUNCEMENT OF RESPONDENT COURT OF APPEALS THAT THE FINDING OF THE
OMBUDSMAN IS NOT MERELY ADVISORY ON THE BUREAU OF IMMIGRATION (BI) IS CONTRARY TO THE
PERTINENT PROVISION OF THE 1987 CONSTITUTION AND APPLICABLE DECISIONS OF THE
HONORABLE COURT.
III.
RESPONDENT COURT OF APPEALS ALSO FAILED TO CONSIDER THAT THE OMBUDSMANS
RESOLUTION FINDING PETITIONER ADMINISTRATIVELY LIABLE CONSTITUTES AN INDIRECT
ENCROACHMENT INTO THE POWER OF THE BUREAU OF IMMIGRATION OVER IMMIGRATION
MATTERS.[13]
The petition lacks merit.

Petitioner insists that it was the BOC which approved the questioned applications for the extension of the TRVs. He denies that
he misled or deceived the BOC into approving these applications and argues that the BOC effectively ratified his actions and
sanctioned his conduct when it approved the subject applications. Petitioner adds that he acted in good faith and the government
did not suffer any damage as a result of his alleged administrative lapse.

We are not persuaded. In his attempt to escape liability, petitioner undermines his position in the BID and his role in the processing
of the subject applications. But by his own admission,[14] it appears that the BSI not only transmits the applications for TRV
extension and its supporting documents, but more importantly, it interviews the applicants and evaluates their papers before
making a recommendation to the BOC. The BSI reviews the applications and when it finds them in order, it executes a
Memorandum of Transmittal to the BOC certifying to the regularity and propriety of the applications.

In Arias v. Sandiganbayan,[15] we stated that all heads of offices have to rely to a reasonable extent on their subordinates.
Practicality and efficiency in the conduct of government business dictate that the gritty details be sifted and reviewed by the time
it reaches the final approving authority. In the case at bar, it is not unreasonable for the BOC to rely on the evaluation and
recommendation of the BSI as it cannot be expected to review every detail of each application transmitted for its approval.
Petitioner being the Chairman of the First Division of the BSI has direct supervision over its proceedings. Thus, he cannot feign
ignorance or good faith when the irregularities in the TRV extension applications are so patently clear on its face. He is principally
accountable for certifying the regularity and propriety of the applications which he knew were defective.

Petitioner could not validly claim that he was singled out for prosecution. It is of record that administrative cases were also
filed against Caronongan and Ang, but extraneous circumstances rendered the case against Caronongan moot while the case
against Ang was dismissed because it was proven that she merely implemented the approved decision of the BOC.

Equally untenable is the contention that the BOCs approval of the defective applications for TRV extension cured any infirmities
therein and effectively absolved petitioners administrative lapse. The instant administrative case pertains to the acts of petitioner
as Chairman of the First Division of the BSI in processing nine (9) defective applications, independent of and without regard to the
action taken by the BOC. It does not impugn the validity of the TRV extensions as to encroach upon the authority of the BID on
immigration matters. The main thrust of the case is to determine whether petitioner committed any misconduct, nonfeasance,
misfeasance or malfeasance in the performance of his duties.

Anent the second and third grounds, petitioner essentially puts in issue the import of the Ombudsmans findings. Petitioner
questions the Court of Appeals pronouncement that the findings of the Ombudsman may not be said to be merely recommendatory
upon the Immigration Commissioner. He argues that to uphold the appellate courts ruling expands the authority granted by the
Constitution to the Office of the Ombudsman and runs counter to prevailing jurisprudence on the matter, particularly Tapiador v.
Office of the Ombudsman.[16] Petitioner submits that the Ombudsmans findings that the TRV applications were illegal constitutes
an indirect interference by the Ombudsman into the powers of the BOC over immigration matters.

We do not agree. The creation of the Office of the Ombudsman is a unique feature of the 1987 Constitution.[17] The Ombudsman
and his deputies, as protectors of the people, are mandated to act promptly on complaints filed in any form or manner against
officers or employees of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations.[18] Foremost among its powers is the authority to investigate and prosecute cases involving public officers
and employees, thus:
 Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

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

Republic Act No. 6770, otherwise known as The Ombudsman Act of 1989, was passed into law on November 17, 1989 and
provided for the structural and functional organization of the Office of the Ombudsman. RA 6770 mandated the Ombudsman and
his deputies not only to act promptly on complaints but also to enforce the administrative, civil and criminal liability of government
officers and employees in every case where the evidence warrants to promote efficient service by the Government to the
people.[19]

The authority of the Ombudsman to conduct administrative investigations as in the present case is settled.[20] Section
19 of RA 6770 provides:

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

(1) Are contrary to law or regulation;

(2) Are unreasonable, unfair, oppressive or discriminatory;
(3) Are inconsistent with the general course of an agencys functions, though in accordance with
law;
(4) Proceed from a mistake of law or an arbitrary ascertainment of facts;
(5) Are in the exercise of discretionary powers but for an improper purpose; or
(6) Are otherwise irregular, immoral or devoid of justification.

The point of contention is the binding power of any decision or order that emanates from the Office of the Ombudsman
after it has conducted its investigation. Under Section 13(3) of Article XI of the 1987 Constitution, it is provided:

Section 13. The Office of the Ombudsman shall have the following powers, functions, and 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. (Emphasis supplied)

Petitioner insists that the word recommend be given its literal meaning; that is, that the Ombudsmans action is only
advisory in nature rather than one having any binding effect, citing Tapiador v. Office of the Ombudsman,[21] thus:

... Besides, assuming arguendo, that petitioner were administratively liable, the Ombudsman has no authority to
directly dismiss the petitioner from the government service, more particularly from his position in the BID. Under
Section 13, subparagraph (3), of Article XI of the 1987 Constitution, the Ombudsman can only recommend the
removal of the public official or employee found to be at fault, to the public official concerned.[22]

For their part, the Solicitor General and the Office of the Ombudsman argue that the word recommend must be taken in
conjunction with the phrase and ensure compliance therewith. The proper interpretation of the Courts statement in Tapiador
should be that the Ombudsman has the authority to determine the administrative liability of a public official or employee at fault,
and direct and compel the head of the office or agency concerned to implement the penalty imposed. In other words, it merely
concerns the procedural aspect of the Ombudsmans functions and not its jurisdiction.
 We agree with the ratiocination of public respondents. Several reasons militate against a literal interpretation of the
subject constitutional provision. Firstly, a cursory reading of Tapiador reveals that the main point of the case was the failure of
the complainant therein to present substantial evidence to prove the charges of the administrative case. The statement that
made reference to the power of the Ombudsman is, at best, merely an obiter dictum and, as it is unsupported by sufficient
explanation, is susceptible to varying interpretations, as what precisely is before us in this case. Hence, it cannot be cited as a
doctrinal declaration of this Court nor is it safe from judicial examination.

The provisions of RA 6770 support public respondents theory. Section 15 is substantially the same as Section 13, Article
XI of the Constitution which provides for the powers, functions and duties of the Ombudsman. We draw attention to
subparagraph 3, to wit:

SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers,
functions and duties:

(3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or
who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension,
demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as
provided in Section 21 of this Act: Provided, That the refusal by any officer without just cause to comply with an
order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is
at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary
action against said officer; (Emphasis supplied)

We note that the proviso above qualifies the order to remove, suspend, demote, fine, censure, or prosecute an officer or
employee akin to the questioned issuances in the case at bar. That the refusal, without just cause, of any officer to comply with
such an order of the Ombudsman to penalize an erring officer or employee is a ground for disciplinary action, is a strong
indication that the Ombudsmans recommendation is not merely advisory in nature but is actually mandatory within the bounds of
law. This should not be interpreted as usurpation by the Ombudsman of the authority of the head of office or any officer
concerned. It has long been settled that the power of the Ombudsman to investigate and prosecute any illegal act or omission of
any public official is not an exclusive authority but a shared or concurrent authority in respect of the offense charged.[23] By
stating therefore that the Ombudsman recommends the action to be taken against an erring officer or employee, the provisions
in the Constitution and in RA 6770 intended that the implementation of the order be coursed through the proper officer, which in
this case would be the head of the BID.

It is likewise apparent that under RA 6770, the lawmakers intended to provide the Office of the Ombudsman with
sufficient muscle to ensure that it can effectively carry out its mandate as protector of the people against inept and corrupt
government officers and employees. The Office was granted the power to punish for contempt in accordance with the Rules of
Court.[24] It was given disciplinary authority over all elective and appointive officials of the government and its subdivisions,
instrumentalities and agencies (with the exception only of impeachable officers, members of Congress and the Judiciary).[25]
Also, it can preventively suspend any officer under its authority pending an investigation when the case so warrants.[26]

The foregoing interpretation is consistent with the wisdom and spirit behind the creation of the Office of the Ombudsman.
The records of the deliberations of the Constitutional Commission[27] reveal the following:

MR. MONSOD:

Madam President, perhaps it might be helpful if we give the spirit and intendment of the Committee. What we
wanted to avoid is the situation where it deteriorates into a prosecution arm. We wanted to give the idea
of the Ombudsman a chance, with prestige and persuasive powers, and also a chance to really function
as a champion of the citizen.
 However, we do not want to foreclose the possibility that in the future, The Assembly, as it may see fit, may have
to give additional powers to the Ombudsman; we want to give the concept of a pure Ombudsman a
chance under the Constitution.

MR. RODRIGO:

Madam President, what I am worried about is if we create a constitutional body which has neither
punitive nor prosecutory powers but only persuasive powers, we might be raising the hopes of our
people too much and then disappoint them.

MR. MONSOD:

I agree with the Commissioner.

MR. RODRIGO:

Anyway, since we state that the powers of the Ombudsman can later on be implemented by the
legislature, why not leave this to the legislature?[28]

MR. MONSOD:

Yes, because we want to avoid what happened in 1973. I read the committee report which
recommended the approval of the 27 resolutions for the creation of the office of the Ombudsman, but
notwithstanding the explicit purpose enunciated in that report, the implementing law the last one, P.D.
No. 1630did not follow the main thrust; instead it created the Tanodbayan, ...

MR. MONSOD: (reacting to statements of Commissioner Blas Ople):

May we just state that perhaps the honorable Commissioner has looked at it in too much of an absolutist
position, The Ombudsman is seen as a civil advocate or a champion of the citizens against the
bureaucracy, not against the President. On one hand, we are told he has no teeth and he lacks other
things. On the other hand, there is the interpretation that he is a competitor to the President, as if he is
being brought up to the same level as the President.

With respect to the argument that he is a toothless animal, we would like to say that we are promoting
the concept in its form at the present, but we are also saying that he can exercise such powers and
functions as may be provided by law in accordance with the direction of the thinking of Commissioner
Rodrigo. We did not think that at this time we should prescribe this, but we leave it up to Congress at
some future time if it feels that it may need to designate what powers the Ombudsman need in order
that he be more effective. This is not foreclosed.

So, his is a reversible disability, unlike that of a eunuch; it is not an irreversible disability. (Emphasis
supplied)[29]

It is thus clear that the framers of our Constitution intended to create a stronger and more effective Ombudsman, independent
and beyond the reach of political influences and vested with powers that are not merely persuasive in character. The
Constitutional Commission left to Congress to empower the Ombudsman with prosecutorial functions which it did when RA 6770
was enacted. In the case of Uy v. Sandiganbayan,[30] it was held:
Clearly, the Philippine Ombudsman departs from the classical Ombudsman model whose function is
merely to receive and process the peoples complaints against corrupt and abusive government personnel. The
Philippine Ombudsman, as protector of the people, is armed with the power to prosecute erring public officers
and employees, giving him an active role in the enforcement of laws on anti-graft and corrupt practices and such
other offenses that may be committed by such officers and employees. The legislature has vested him with
broad powers to enable him to implement his own actions. ...[31]

In light of the foregoing, we hold that the Court of Appeals did not commit any error in finding the petitioner guilty of
conduct prejudicial to the interest of the service and reducing petitioners period of suspension to six (6) months and one
(1) day without pay, taking into account the education and length of service of petitioner.
WHEREFORE, the instant petition is DENIED. The Decision dated August 28, 2003 and the Resolution dated January 15, 2004
of the Court of Appeals in CA-G.R. SP No. 58264 are AFFIRMED.
SO ORDERED.
 THIRD DIVISION

G.R. No. 96283 February 25, 1992

CHUNG FU INDUSTRIES (PHILIPPINES) INC., its Directors and Officers namely: HUANG KUO-CHANG, HUANG AN-
CHUNG, JAMES J.R. CHEN, TRISTAN A. CATINDIG, VICENTE B. AMADOR, ROCK A.C. HUANG, JEM S.C. HUANG,
MARIA TERESA SOLIVEN and VIRGILIO M. DEL ROSARIO, petitioners,

vs.

COURT OF APPEALS, HON. FRANCISCO X. VELEZ (Presiding Judge, Regional Trail Court of Makati [Branch 57]) and
ROBLECOR PHILIPPINES, INC., respondents.

ROMERO, J.:

This is a special civil action for certiorari seeking to annul the Resolutions of the Court of Appeals* dated October 22, 1990 and
December 3, 1990 upholding the Orders of July 31, 1990 and August 23, 1990 of the Regional Trial Court of Makati, Branch 57,
in Civil Case No. 90-1335. Respondent Court of Appeals affirmed the ruling of the trial court that herein petitioners, after
submitting themselves for arbitration and agreeing to the terms and conditions thereof, providing that the arbitration award shall
be final and unappealable, are precluded from seeking judicial review of subject arbitration award.

It appears that on May 17, 1989, petitioner Chung Fu Industries (Philippines) (Chung Fu for brevity) and private respondent
Roblecor Philippines, Inc. (Roblecor for short) forged a construction agreement 1 whereby respondent contractor committed to
construct and finish on December 31, 1989, petitioner corporation's industrial/factory complex in Tanawan, Tanza, Cavite for and
in consideration of P42,000,000.00. In the event of disputes arising from the performance of subject contract, it was stipulated
therein that the issue(s) shall be submitted for resolution before a single arbitrator chosen by both parties.

Apart from the aforesaid construction agreement, Chung Fu and Roblecor entered into two (2) other ancillary contracts, to wit:
one dated June 23, 1989, for the construction of a dormitory and support facilities with a contract price of P3,875,285.00, to be
completed on or before October 31, 1989; 2 and the other dated August 12, 1989, for the installation of electrical, water and
hydrant systems at the plant site, commanding a price of P12.1 million and requiring completion thereof one month after civil
works have been finished. 3

However, respondent Roblecor failed to complete the work despite the extension of time allowed it by Chung Fu. Subsequently,
the latter had to take over the construction when it had become evident that Roblecor was not in a position to fulfill its obligation.

Claiming an unsatisfied account of P10,500,000.00 and unpaid progress billings of P2,370,179.23, Roblecor on May 18, 1990,
filed a petition for Compulsory Arbitration with prayer for Temporary Restraining Order before respondent Regional Trial Court,
pursuant to the arbitration clause in the construction agreement. Chung Fu moved to dismiss the petition and further prayed for
the quashing of the restraining order.

Subsequent negotiations between the parties eventually led to the formulation of an arbitration agreement which, among others,
provides:

2. The parties mutually agree that the arbitration shall proceed in accordance with the following terms and
conditions: —

xxx xxx xxx

d. The parties mutually agree that they will abide by the decision of the arbitrator including any
amount that may be awarded to either party as compensation, consequential damage and/or
interest thereon;

e. The parties mutually agree that the decision of the arbitrator shall be final and unappealable.
Therefore, there shall be no further judicial recourse if either party disagrees with the whole or
any part of the arbitrator's award.

f. As an exception to sub-paragraph (e) above, the parties mutually agree that either party is
entitled to seek judicial assistance for purposes of enforcing the arbitrator's award;

xxx xxx xxx 4

 (Emphasis supplied)

Respondent Regional Trial Court approved the arbitration agreement thru its Order of May 30, 1990. Thereafter, Engr. Willardo
Asuncion was appointed as the sole arbitrator.

On June 30, 1990, Arbitrator Asuncion ordered petitioners to immediately pay respondent contractor, the sum of
P16,108,801.00. He further declared the award as final and unappealable, pursuant to the Arbitration Agreement precluding
judicial review of the award.

Consequently, Roblecor moved for the confirmation of said award. On the other hand, Chung Fu moved to remand the case for
further hearing and asked for a reconsideration of the judgment award claiming that Arbitrator Asuncion committed twelve (12)
instances of grave error by disregarding the provisions of the parties' contract.

Respondent lower court denied Chung Fu's Motion to Remand thus compelling it to seek reconsideration therefrom but to no
avail. The trial court granted Roblecor's Motion for Confirmation of Award and accordingly, entered judgment in conformity
therewith. Moreover, it granted the motion for the issuance of a writ of execution filed by respondent.

Chung Fu elevated the case via a petition for certiorari to respondent Court of Appeals. On October 22,1990 the assailed
resolution was issued. The respondent appellate court concurred with the findings and conclusions of respondent trial court
resolving that Chung Fu and its officers, as signatories to the Arbitration Agreement are bound to observe the stipulations thereof
providing for the finality of the award and precluding any appeal therefrom.

A motion for reconsideration of said resolution was filed by petitioner, but it was similarly denied by respondent Court of Appeals
thru its questioned resolution of December 3, 1990.

Hence, the instant petition anchored on the following grounds:

First

Respondents Court of Appeals and trial Judge gravely abused their discretion and/or exceeded their jurisdiction,
as well as denied due process and substantial justice to petitioners, — (a) by refusing to exercise their judicial
authority and legal duty to review the arbitration award, and (b) by declaring that petitioners are estopped from
questioning the arbitration award allegedly in view of the stipulations in the parties' arbitration agreement that
"the decision of the arbitrator shall be final and unappealable" and that "there shall be no further judicial
recourse if either party disagrees with the whole or any part of the arbitrator's award."

Second

Respondent Court of Appeals and trial Judge gravely abused their discretion and/or exceeded their jurisdiction,
as well as denied due process and substantial justice to petitioner, by not vacating and annulling the award
dated 30 June 1990 of the Arbitrator, on the ground that the Arbitrator grossly departed from the terms of the
parties' contracts and misapplied the law, and thereby exceeded the authority and power delegated to him.
(Rollo, p. 17)

Allow us to take a leaf from history and briefly trace the evolution of arbitration as a mode of dispute settlement.

Because conflict is inherent in human society, much effort has been expended by men and institutions in devising ways of
resolving the same. With the progress of civilization, physical combat has been ruled out and instead, more specific means have
been evolved, such as recourse to the good offices of a disinterested third party, whether this be a court or a private individual or
individuals.

Legal history discloses that "the early judges called upon to solve private conflicts were primarily the arbiters, persons not
specially trained but in whose morality, probity and good sense the parties in conflict reposed full trust. Thus, in Republican
Rome, arbiter and judge (judex) were synonymous. The magistrate or praetor, after noting down the conflicting claims of
litigants, and clarifying the issues, referred them for decision to a private person designated by the parties, by common
agreement, or selected by them from an apposite listing (the album judicium) or else by having the arbiter chosen by lot. The
judges proper, as specially trained state officials endowed with own power and jurisdiction, and taking cognizance of litigations
from beginning to end, only appeared under the Empire, by the so-called cognitio extra ordinem." 5

Such means of referring a dispute to a third party has also long been an accepted alternative to litigation at common law. 6
Sparse though the law and jurisprudence may be on the subject of arbitration in the Philippines, it was nonetheless recognized in
the Spanish Civil Code; specifically, the provisions on compromises made applicable to arbitrations under Articles 1820 and
1821.7 Although said provisions were repealed by implication with the repeal of the Spanish Law of Civil Procedure, 8 these and
additional ones were reinstated in the present Civil Code. 9

Arbitration found a fertile field in the resolution of labor-management disputes in the Philippines. Although early on,
Commonwealth Act 103 (1936) provided for compulsory arbitration as the state policy to be administered by the Court of
Industrial Relations, in time such a modality gave way to voluntary arbitration. While not completely supplanting compulsory
arbitration which until today is practiced by government officials, the Industrial Peace Act which was passed in 1953 as Republic
Act No. 875, favored the policy of free collective bargaining, in general, and resort to grievance procedure, in particular, as the
preferred mode of settling disputes in industry. It was accepted and enunciated more explicitly in the Labor Code, which was
passed on November 1, 1974 as Presidential Decree No. 442, with the amendments later introduced by Republic Act No. 6715
(1989).

Whether utilized in business transactions or in employer-employee relations, arbitration was gaining wide acceptance. A
consensual process, it was preferred to orders imposed by government upon the disputants. Moreover, court litigations tended to
be time-consuming, costly, and inflexible due to their scrupulous observance of the due process of law doctrine and their strict
adherence to rules of evidence.

As early as the 1920's, this Court declared:

In the Philippines fortunately, the attitude of the courts toward arbitration agreements is slowly crystallizing into
definite and workable form. . . . The rule now is that unless the agreement is such as absolutely to close the
doors of the courts against the parties, which agreement would be void, the courts will look with favor upon such
amicable arrangements and will only with great reluctance interfere to anticipate or nullify the action of the
arbitrator. 10

That there was a growing need for a law regulating arbitration in general was acknowledged when Republic Act No. 876 (1953),
otherwise known as the Arbitration Law, was passed. "Said Act was obviously adopted to
supplement — not to supplant — the New Civil Code on arbitration. It expressly declares that "the provisions of chapters one
and two, Title XIV, Book IV of the Civil Code shall remain in force." 11

In recognition of the pressing need for an arbitral machinery for the early and expeditious settlement of disputes in the
construction industry, a Construction Industry Arbitration Commission (CIAC) was created by Executive Order No. 1008, enacted
on February 4, 1985.

In practice nowadays, absent an agreement of the parties to resolve their disputes via a particular mode, it is the regular courts
that remain the fora to resolve such matters. However, the parties may opt for recourse to third parties, exercising their basic
freedom to "establish such stipulation, clauses, terms and conditions as they may deem convenient, provided they are not
contrary to law, morals, good customs, public order or public policy." 12 In such a case, resort to the arbitration process may be
spelled out by them in a contract in anticipation of disputes that may arise between them. Or this may be stipulated in a
submission agreement when they are actually confronted by a dispute. Whatever be the case, such recourse to an extrajudicial
means of settlement is not intended to completely deprive the courts of jurisdiction. In fact, the early cases on arbitration
carefully spelled out the prevailing doctrine at the time, thus: ". . . a clause in a contract providing that all matters in dispute
between the parties shall be referred to arbitrators and to them alone is contrary to public policy and cannot oust the courts of
Jurisdiction." 13

But certainly, the stipulation to refer all future disputes to an arbitrator or to submit an ongoing dispute to one is valid. Being part
of a contract between the parties, it is binding and enforceable in court in case one of them neglects, fails or refuses to arbitrate.
Going a step further, in the event that they declare their intention to refer their differences to arbitration first before taking court
action, this constitutes a condition precedent, such that where a suit has been instituted prematurely, the court shall suspend the
same and the parties shall be directed forthwith to proceed to arbitration. 14

A court action may likewise be proven where the arbitrator has not been selected by the parties. 15

Under present law, may the parties who agree to submit their disputes to arbitration further provide that the arbitrators' award
shall be final, unappealable and executory?

Article 2044 of the Civil Code recognizes the validity of such stipulation, thus:

Any stipulation that the arbitrators' award or decision shall be final is valid, without prejudice to Articles 2038,
2039 and 2040.
Similarly, the Construction Industry Arbitration Law provides that the arbitral award "shall be final and inappealable except on
questions of law which shall be appealable to the Supreme Court." 16

Under the original Labor Code, voluntary arbitration awards or decisions were final, unappealable and executory. "However,
voluntary arbitration awards or decisions on money claims, involving an amount exceeding One Hundred Thousand Pesos
(P100,000.00) or forty-percent (40%) of the paid-up capital of the respondent employer, whichever is lower, maybe appealed to
the National Labor Relations Commission on any of the following grounds: (a) abuse of discretion; and (b) gross incompetence."
17 It is to be noted that the appeal in the instances cited were to be made to the National Labor Relations Commission and not
to the courts.

With the subsequent deletion of the above-cited provision from the Labor Code, the voluntary arbitrator is now mandated to
render an award or decision within twenty (20) calendar days from the date of submission of the dispute and such decision shall
be final and executory after ten (10) calendar days from receipt of the copy of the award or decision by the parties. 18

Where the parties agree that the decision of the arbitrator shall be final and unappealable as in the instant case, the pivotal
inquiry is whether subject arbitration award is indeed beyond the ambit of the court's power of judicial review.

We rule in the negative. It is stated explicitly under Art. 2044 of the Civil Code that the finality of the arbitrators' award is not
absolute and without exceptions. Where the conditions described in Articles 2038, 2039 and 2040 applicable to both
compromises and arbitrations are obtaining, the arbitrators' award may be annulled or rescinded. 19 Additionally, under Sections
24 and 25 of the Arbitration Law, there are grounds for vacating, modifying or rescinding an arbitrator's award. 20 Thus, if and
when the factual circumstances referred to in the above-cited provisions are present, judicial review of the award is properly
warranted.

What if courts refuse or neglect to inquire into the factual milieu of an arbitrator's award to determine whether it is in accordance
with law or within the scope of his authority? How may the power of judicial review be invoked?

This is where the proper remedy is certiorari under Rule 65 of the Revised Rules of Court. It is to be borne in mind, however, that
this action will lie only where a grave abuse of discretion or an act without or in excess of jurisdiction on the part of the voluntary
arbitrator is clearly shown. For "the writ of certiorari is an extra-ordinary remedy and that certiorari jurisdiction is not to be
equated with appellate jurisdiction. In a special civil action of certiorari, the Court will not engage in a review of the facts found
nor even of the law as interpreted or applied by the arbitrator unless the supposed errors of fact or of law are so patent and
gross and prejudicial as to amount to a grave abuse of discretion or an exces de pouvoir on the part of the arbitrator." 21

Even decisions of administrative agencies which are declared "final" by law are not exempt from judicial review when so
warranted. Thus, in the case of Oceanic Bic Division (FFW), et al. v. Flerida Ruth P. Romero, et al., 22 this Court had occasion
to rule that:

. . . Inspite of statutory provisions making "final" the decisions of certain administrative agencies, we have taken
cognizance of petitions questioning these decisions where want of jurisdiction, grave abuse of discretion,
violation of due process, denial of substantial justice or erroneous interpretation of the law were brought to our
attention . . . 23 (Emphasis ours).

It should be stressed, too, that voluntary arbitrators, by the nature of their functions, act in a quasi-judicial capacity. 24 It stands
to reason, therefore, that their decisions should not be beyond the scope of the power of judicial review of this Court.

In the case at bar, petitioners assailed the arbitral award on the following grounds, most of which allege error on the part of the
arbitrator in granting compensation for various items which apparently are disputed by said petitioners:

1. The Honorable Arbitrator committed grave error in failing to apply the terms and conditions of the Construction
Agreement, Dormitory Contract and Electrical Contract, and in using instead the "practices" in the construction
industry;

2. The Honorable Arbitrator committed grave error in granting extra compensation to Roblecor for loss of
productivity due to adverse weather conditions;

3. The Honorable Arbitrator committed grave error in granting extra compensation to Roblecor for loss due to
delayed payment of progress billings;

4. The Honorable Arbitrator committed grave error in granting extra compensation to Roblecor for loss of
productivity due to the cement crisis;
 5. The Honorable Arbitrator committed grave error in granting extra compensation to Roblecor for losses
allegedly sustained on account of the failed coup d'état;

6. The Honorable Arbitrator committed grave error in granting to Roblecor the amount representing the alleged
unpaid billings of Chung Fu;

7. The Honorable Arbitrator committed grave error in granting to Roblecor the amount representing the alleged
extended overhead expenses;

8. The Honorable Arbitrator committed grave error in granting to Roblecor the amount representing expenses for
change order for site development outside the area of responsibility of Roblecor;

9. The Honorable Arbitrator committed grave error in granting to Roblecor the cost of warehouse No. 2;

10. The Honorable Arbitrator committed grave error in granting to Roblecor extra compensation for airduct
change in dimension;

11. The Honorable Arbitrator committed grave error in granting to Roblecor extra compensation for airduct
plastering; and

12. The Honorable Arbitrator committed grave error in awarding to Roblecor attorney's fees.

After closely studying the list of errors, as well as petitioners' discussion of the same in their Motion to Remand Case For Further
Hearing and Reconsideration and Opposition to Motion for Confirmation of Award, we find that petitioners have amply made out
a case where the voluntary arbitrator failed to apply the terms and provisions of the Construction Agreement which forms part of
the law applicable as between the parties, thus committing a grave abuse of discretion. Furthermore, in granting unjustified extra
compensation to respondent for several items, he exceeded his powers — all of which would have constituted ground for
vacating the award under Section 24 (d) of the Arbitration Law.

But the respondent trial court's refusal to look into the merits of the case, despite prima facie showing of the existence of grounds
warranting judicial review, effectively deprived petitioners of their opportunity to prove or substantiate their allegations. In so
doing, the trial court itself committed grave abuse of discretion. Likewise, the appellate court, in not giving due course to the
petition, committed grave abuse of discretion. Respondent courts should not shirk from exercising their power to review, where
under the applicable laws and jurisprudence, such power may be rightfully exercised; more so where the objections raised
against an arbitration award may properly constitute grounds for annulling, vacating or modifying said award under the laws on
arbitration.

WHEREFORE, the petition is GRANTED. The Resolutions of the Court of Appeals dated October 22, 1990 and December 3,
1990 as well as the Orders of respondent Regional Trial Court dated July 31, 1990 and August 23, 1990, including the writ of
execution issued pursuant thereto, are hereby SET ASIDE. Accordingly, this case is REMANDED to the court of origin for further
hearing on this matter. All incidents arising therefrom are reverted to the status quo ante until such time as the trial court shall
have passed upon the merits of this case. No costs.

SO ORDERED.
G.R. No. 75501 September 15, 1987

ATLAS CONSOLIDATED MINING AND DEVELOPMENT CORPORATION, petitioner,

vs.
Hon. FULGENCIO S. FACTORAN, JR., in his capacity as Deputy Executive Secretary, and ASTERIO BUQUERON,
respondents.

PARAS, J:

This is a petition for review on certiorari, seeking to set aside the decision rendered by public respondent Deputy Executive
Secretary Fulgencio S. Factoran, Jr., by authority of the President, reinstating and confirming the decision dated April 17, 1978
of the Director of Mines and Geo Sciences, and setting aside the decision of the Minister of Natural Resources.

The undisputed facts of this case are as follows:

On February 9, 1972, Atlas Consolidated Mining and Development Corporation registered the location of its "Master VII Fr."
mining claim with the Mining Recorder of Toledo City. On September 10, 1973, private respondent Asterio Buqueron registered
the declarations of location of his "St. Mary Fr." and "St. Joseph Fr." mining claims with the same Mining Recorder. On October
15, 1973, Atlas registered the declarations of location of its "Carmen I Fr." to "Carmen V. Fr. " with the same Mining Recorder.

Buqueron's "St. Mary Fr." and "St. Joseph Fr." were surveyed and the survey plans thereof were duly approved by the Director
of Mines and Geo Sciences. Notice of Buqueron's lease application was published in the February 22 and 28, 1977 issues of the
Evening Post.

During the said period of publication, petitioner filed an adverse claim against private respondent's mining claims on the ground
that they allegedly overlapped its own mining claims.

After hearing, the Director of Mines rendered a decision, dated April 17, 1978, the dispositive portion of which reads:

VIEWED IN THE LIGHT OF THE FOREGOING, respondent (Buqueron) is hereby given the preferential right to
possess, lease, explore, exploit and operate the areas covered by his "St. Mary Fr." and "St. Joseph Fr." mining
claims, except the area covered thereby which is in conflict with adverse claimant's (Atlas) "Master VII Fr."
Adverse claimant (Atlas) on the other hand, is given the preferential right to possess, lease, explore, exploit and
operate the area covered by its "Master VII Fr." case.

Atlas appealed to the Minister of Natural Resources who rendered a decision dated November 10, 1978, the dispositive portion
of which reads as follows:

PREMISES CONSIDERED, the derision of the Director of Mines dated April 17, 1978, should be, as hereby it is,
set aside. In lieu thereof, it is hereby decision that the "St. Mary Fr." and "St. Joseph Fr." mining claims of
Asterio Buqueron are null and void, that the "Carmen I Fr. " to "Carmen V. Fr. " mining claims of Atlas
Consolidated Mining and Development Corporation are valid, and that it be given the preferential right to
possesses, explore, exploit, lease and operate the areas covered thereby. (Decision, Office of the President;
Rollo, pp. 52-57; Decision of the Minister of Natural Resources, Rollo, pp. 47-51; Comment of Public
Respondent, Rollo, pp. 88-90; Decision, Director of Mines, Rollo, pp. 157-160).

As aforestated, on further appeal, the Deputy Executive Secretary, Office of the President, reversed the decision of the Minister
of Natural Resources and reinstated the decision of the Director of Mines and Geo Sciences.

Hence, this petition.

Briefly stated, petitioner's assignment of errors may be combined into the following issues:
 (1) Whether or not private respondent's appeal to the Office of the President was time-barred;

(2) Whether or not there was a valid location and discovery of the disputed mining claims.

The Second Division of this Court without giving due course to the petition, required respondents to comment in the resolution of
October 6, 1986 (Rollo, p. 76). Both private respondent and public respondent filed their respective comments on November 17,
1986 (Rollo, pp. 81-86; pp. 88-95).

On December 8, 1986 (Rollo, p. 104) this Court required the respondents to file a rejoinder to the consolidated reply filed by
counsel for petitioner dated November 4, 1986 (Rollo, pp. 97-102). Said rejoinder was filed on February 6, 1987 (Rollo, pp. 108-
111), by the Solicitor General for public respondent, after which petitioner filed a sur-rejoinder thereto on March 13, 1987 (Rollo,
pp. 113-116). Thereafter the Court in the resolution of March 30, 1987 gave due course to the petition and required both parties
to file their respective memoranda.

Counsel for public respondent filed a Manifestation/Motion praying to be allowed to adopt its comment dated November 2, 1986
and Rejoinder dated February 4, 1987 as the memorandum for public respondent. Petitioner filed its memorandum on May
25,1987 (Rollo, p. 136).

The petition is devoid of merit.

I.

It is not disputed that private respondent received a copy of the decision of the Minister of Natural Resources dated November
10, 1978 on November 27, 1978 and that under Section 50 of Presidential Decree No. 463, the decision of the Minister is
appealable to the Office of the President within five (5) days from receipt thereof. In the case at bar, the 5-day period expired on
December 2, 1978, a Saturday, private respondent filed his appeal on December 4, 1978, a Monday.

Petitioner contends that the appeal was filed out of time and therefore, the Office of the President did not acquire jurisdiction
over the case and should have dismissed the same outright (Rollo, pp. 20-21).

This contention is untenable.

Petitioner and private respondent are in accord on the fact that at the time of the filing of the questioned appeal, Saturday was
observed as a legal holiday in the Office of the President pursuant to Section 29 of the Revised Administrative Code as
amended.

The same law provides:

Section 31. Pretermission of holiday. — Where the day, or the last day, for doing any act required or permitted
by law falls on a holiday, the act may be done on the next succeeding business day.

Apart from the fact that the law is clear and needs no interpretation, this Court in accordance therewith has invariably held that in
case the last day for doing an act is a legal holiday, it does not have the effect of making the preceding day, the last day for
doing the same; the act may be done on the next succeeding business day (Gonzaga vs. Ce David, 110 Phil. 463-464 [1960];
Calano vs. Cruz, 91 Phil. 247 [1952]; Austria, et al. vs. The Solicitor General, et al., 71 Phil. 288 [1941]).

Coming back to the case at bar, as the next working day after December 2,1978 was December 4, 1978 — a Monday, it is
evident that private respondent's appeal was filed on time.

II.

It is apparent that the second issue as to whether or not there was a valid location and discovery of the disputed mining claims is
a question of fact best left to the determination of the administrative bodies charged with the implementation of the law they are
entrusted to enforce. As uniformly held by the Court, it is sufficient that administrative findings of fact are supported by evidence,
or negatively stated, it is sufficient that findings of fact are not shown to be unsupported by evidence. Substantial evidence is all
that is needed to support an administrative finding of fact, and substantial evidence is "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." (Ang Tibay vs. Court of Industrial Relations, 69 Phil. 635, 642; Police
Commission vs. Lood, 127 SCRA 762 [1984]).

In the case at bar, the record amply shows that the Director of Mines' decision was supported by substantial evidence.
Petitioner claimed that it is a registered surface land owner and locator of six (6) lode claims duly registered with the Office of the
Mining Recorder as above stated and that in derogation of its permission, caused the "table" location and survey and applied for
the lease of his alleged mining claims known as "St. Mary Fr." and "St. Joseph Fr. " lode claims.

In his answer, private respondent denied the material allegations of the adverse claim and by way of affirmative defense alleged
that all of petitioner's claims including a portion of Master VII Fr. are null and void for having been located in areas which were
closed to mining location in open and gross violation of paragraph 1 (d) of Section 28 and of Section 60 of the Mining Act as
amended.

The main thrust of petitioner's claim is that all of the mining claims of both petitioner and private respondent are located inside
the premises or properties of the former, so that it is hardly possible for private respondent to have conducted the requisite
location and survey without having been seen or noticed by petitioner and its personnel.

The Director of Mines established that there is in fact an overlapping of mining claims of petitioner and private respondent and
that as a matter of record petitioner's mining claims were registered subsequent to those of private respondent with the
exception of Master VII Fr. which was registered on February 9, 1972 or prior to the registration of the mining claims of private
respondent.

In ruling as to who, between the parties shall be given preferential right to lease the area in question, the Director of Mines'
findings are as follows:

Adverse claimant in its attempt to impugn the validity of the mining claims of respondent alleged that said mining
claims were the result of table locations and survey and in support thereof submitted the sworn statements of its
Chief Geologist and Chief Security.

On the other hand, respondent asserted that he, through his authorized representative actually and validly
performed all the acts of discovery and location required by law and the field survey of his mining claims was
actually conducted by Geodetic Engineer Salvador Aligaen from December 16 to 18, 1974. In support of this
assertion, respondent submitted in evidence affidavit of the authorized agent (Annex "D" of the answer) and
another affidavit of Geodetic Engineer Salvador Aligaen (Annex "F" of the answer). Respondent also submitted
in evidence Bureau of Forestry map and Bureau of Coast and Geodetic Survey map of the total area (Exhs. "9"
to "10") which embraces the area in question. These maps tend to prove that the Atlas main gate is not the only
point of ingress and egress such that one can enter the area in question for the purpose of mining location and
survey without being noticed by any of the personnel of Atlas.

After a careful appraisal of the evidence submitted, and cognizance as we are of the provisions of Presidential
Decree No. 99-A, we are of the view that adverse claimant failed to adduce sufficient evidence to nullify the prior
claims of respondent. Stated differently, the evidence submitted are not sufficient to destroy the prima facie
character of the sworn declarations of location of respondent's mining claims which were duly registered on the
date herein before stated. Thus "A location notice certificate or statement when re-examine accorded is prima
facie evidence of all the facts the statute requires it to contain and which were sufficiently set forth" (40 C.J. pp.
811-812) and constitute notice to all persons and to the whole world of the contents of the same (Sec. 56 of the
Mining Act, as amended).

It is, therefore, pertinent to quote hereunder Sections 28(d) and 60 of the Mining Act, as amended, as well as
Section 1 of Presidential Decree No. 99-A:

SEC. 28 — No Prospecting shall be allowed:

(d)-In lands which have been located for mining leases by other prospectors
under the provisions of this Act.

SEC. 60. — No valid mining claim or any part thereof, may be located by others
until the original locator or his successors in interest abandons the claim or
forfeits his rights on the same under the provisions of this Act.

SEC. 1 — Whenever there is any conflict between claim owners over any
mining claims whether mineral or non-mineral, the locator of the claim who first
registered his claim with the proper mining registrar, notwithstanding any defect
in form or technicality, shall have the exclusive right to possess, exploit,
explore, develop and operate such mining claims. ...
 In the light of the aforequoted provisions of law applicable on the matter, and in view of our
findings, earlier discussed, the subsequent mining claims of adverse claimant insofar as they
conflict the prior claims of respondent are hereby declared nun and void.

On the other hand, it is also our view that respondent failed to adduce sufficient evidence to
prove that the prior claim of adverse claimant (Master VII Fr.) is null and void. Considering that
this mining claim is prior in point of location and registration, it follows that this claim will have to
prevail over that of respondent. For the same reason, therefore, that the subsequent claims of
adverse claimant were declared null and void insofar as they conflict with the prior claims of
respondent, the mining claims of respondent insofar as they conflict with "Master VII Fr." claim
of adverse claimant are likewise declared null and void. (Decision, Director of Mines; rollo pp.
157-160).

As earlier stated the above findings, although reversed by the Minister of Natural Resources, were affirmed by the Office of the
President.

However, petitioner would have this Court look into the said findings because of the open divergence of views and findings by
the adjudicating authorities in this mining conflict involving highly contentious issues which warrant appellate review (Rollo, p.
18).

This Court has repeatedly ruled that judicial review of the decision of an administrative official is of course subject to certain
guide posts laid down in many decided cases. Thus, for instance, findings of fact in such decision should not be disturbed if
supported by substantial evidence, but review is justified when there has been a denial of due process, or mistake of law or
fraud, collusion or arbitrary action in the administrative proceeding (L-21588-Atlas Development and Acceptance Corp. vs.
Gozon, etc. et al., 64 O.G. 11511 [1967]), where the procedure which led to factual findings is irregular; when palpable errors are
committed; or when a grave abuse of discretion, arbitrariness, or capriciousness is manifest (Ateneo de Manila University vs.
CA, 145 SCRA 100-101 [1986]; International Hardwood and Veneer Co., of the Philippines vs. Leogardo, 117 SCRA 967;
Baguio Country Club Corporation vs. National Labor Relations Commission, 118 SCRA 557; Sichangco vs. Commissioner of
Immigration, 94 SCRA 61; and Eusebio vs. Sociedad Agricola de Balarin, 16 SCRA 569).

A careful study of the records shows that none of the above circumstances is present in the case at bar, which would justify the
overturning of the findings of fact of the Director of Mines which were affirmed by the Office of the President. On the contrary, in
accordance with the prevailing principle that "in reviewing administrative decisions, the reviewing Court cannot re-examine the
sufficiency of the evidence as if originally instituted therein, and receive additional evidence, that was not submitted to the
administrative agency concerned," the findings of fact in this case must be respected. As ruled by the Court, they will not be
disturbed so long as they are supported by substantial evidence, even if not overwhelming or preponderant (Police Commission
vs. Lood, supra).

PREMISES CONSIDERED, this petition is hereby DENIED and the assailed decision of the Office of the President, is hereby
AFFIRMED.

SO ORDERED.
 [G.R. No. 139300. March 14, 2001]

AMIGO MANUFACTURING, Inc., petitioner, vs. CLUETT PEABODY CO., INC., respondent.

DECISION

PANGANIBAN, J.:

The findings of the Bureau of Patents that two trademarks are confusingly and deceptively similar to each other are binding upon
the courts, absent any sufficient evidence to the contrary. In the present case, the Bureau considered the totality of the
similarities between the two sets of marks and found that they were of such degree, number and quality as to give the overall
impression that the two products are confusingly if not deceptively the same.

Statement of the Case

Petitioner Amigo Manufacturing Inc. challenges, under Rule 45 of the Rules of Court, the January 14, 1999 Resolutionxxi[1] of
the Court of Appeals (CA) in CA-GR SP No. 22792, which reversed, on reconsideration, its own September 29, 1998
Decision.xxi[2] The dispositive portion of the assailed Resolution reads as follows:

WHEREFORE, the Motion for Reconsideration is GRANTED, and the Decision dated September 29, 1998 REVERSED.
Consequently, the decision rendered by the Director of Patents dated September 3, 1990 is hereby AFFIRMED.

The Decision of the Director of Patents, referred to by the CA, disposed as follows:

WHEREFORE, the Petition is GRANTED. Consequently, Certificate of Registration No. SR-2206 issued to Respondent-
Registrant [herein petitioner] is hereby cancelled.

Let the records of this case be remanded to the Patent/Trademark Registry and EDP Division for appropriate action in
accordance with this Decision.

Petitioner also seeks the reversal of the June 30, 1999 CA Resolutionxxi[3] denying its own Motion for Reconsideration.

The Facts
The facts, which are undisputed, are summarized by the Court of Appeals in its original Decision, as follows:

The source of the controversy that precipitated the filing by [herein Respondent] Cluett Peabody Co., Inc. (a New York
corporation) of the present case against [herein Petitioner] Amigo Manufacturing Inc. (a Philippine corporation) for cancellation of
trademark is [respondents] claim of exclusive ownership (as successor in interest of Great American Knitting Mills, Inc.) of the
following trademark and devices, as used on mens socks:

a) GOLD TOE, under Certificate of Registration No. 6797 dated September 22, 1958;

b) DEVICE, representation of a sock and magnifying glass on the toe of a sock, under Certificate of Registration No. 13465
dated January 25, 1968;

c) DEVICE, consisting of a plurality of gold colored lines arranged in parallel relation within a triangular area of toe of the
stocking and spread from each other by lines of contrasting color of the major part of the stocking under Certificate of
Registration No. 13887 dated May 9, 1968; and

d) LINENIZED, under Certificate of Registration No. 15440 dated April 13, 1970.

On the other hand, [petitioners] trademark and device GOLD TOP, Linenized for Extra Wear has the dominant color white at the
center and a blackish brown background with a magnified design of the socks garter, and is labeled Amigo Manufacturing Inc.,
Mandaluyong, Metro Manila, Made in the Philippines.

In the Patent Office, this case was heard by no less than six Hearing Officers: Attys. Rodolfo Gilbang, Rustico Casia, M. Yadao,
Fabian Rufina, Neptali Bulilan and Pausi Sapak. The last named officer drafted the decision under appeal which was in due
court signed and issued by the Director of Patents (who never presided over any hearing) adversely against the respondent
Amigo Manufacturing, Inc. as heretofore mentioned (supra, p.1).

The decision pivots on two point: the application of the rule of idem sonans and the existence of a confusing similarity in
appearance between two trademarks (Rollo, p. 33).xxi[4]

Ruling of the Court of Appeals

In its assailed Resolution, the CA held as follows:

After a careful consideration of [respondents] arguments and a re-appreciation of the records of this case. [w]e find
[respondents] motion for reconsideration meritorious. As shown by the records, and as correctly held by the Director of Patents,
there is hardly any variance in the appearance of the marks GOLD TOP and GOLD TOE since both show a representation of a
mans foot wearing a sock, and the marks are printed in identical lettering. Section 4(d) of R.A. No. 166 declares to be
unregistrable, a mark which consists o[r] comprises a mark or trademark which so resembles a mark or tradename registered in
the Philippines of tradename previously used in the Philippines by another and not abandoned, as to be likely, when applied to
or used in connection with the goods, business or services of the applicant, to cause confusion or mistake or to deceive the
purchasers. [Petitioner]s mark is a combination of the different registered marks owned by [respondent]. As held in Del Monte
Corporation v. Court of Appeals, 181 SCRA 410 (1990), the question is not whether the two articles are distinguishable by their
label when set aside but whether the general confusion made by the article upon the eye of the casual purchaser who is
unsuspicious and off his guard, is such as to likely result in confounding it with the original. As held by the Court in the same
decision[,] The most successful form of copying is to employ enough points of similarity to confuse the public with enough points
of difference to confuse the courts. Furthermore, [petitioner]s mark is only registered with the Supplemental Registry which gives
no right of exclusivity to the owner and cannot overturn the presumption of validity and exclusiv[ity] given to a registered mark.

Finally, the Philippines and the United States are parties to the Union Convention for the Protection of Industrial Property
adopted in Paris on March 20, 1883, otherwise known as the Paris Convention. (Puma Sportschuhfabriken Rudolf Dassler K.G.
v. Intermediate Appellate Court, 158 SCRA 233). [Respondent] is domiciled in the United States of America and is the lawful
owner of several trademark registrations in the United States for the mark GOLD TOE.

xxx xxx xxx

By virtue of the Philippines membership to the Paris Union, trademark rights in favor of the [respondent] were created. The
object of the Convention is to accord a national of a member nation extensive protection against infringement and other types of
unfair competition. (Puma Sportschuhfabriken Rudolf Dassler K.G. v. Intermediate Appellate Court, 158 SCRA 233; La Chemise
Lacoste, S.A. v. Fernandez, 129 SCRA 373)xxi[5]

Hence, this Petition.xxi[6]

Issues

In its Memorandum,xxi[7] petitioner raises the following issues for the consideration of this Court:

I. Whether or not the Court of Appeals overlooked that petitioners trademark was used in commerce in the Philippines
earlier than respondents actual use of its trademarks, hence the Court of Appeals erred in affirming the Decision of
the Director of Patents dated September 3, 1990.
II. Since the petitioners actual use of its trademark was ahead of the respondent, whether or not the Court of Appeals
erred in canceling the registration of petitioners trademark instead of canceling the trademark of the respondent.
III. Whether or not the Court of Appeals erred in affirming the findings of the Director of Patents that petitioners
trademark [was] confusingly similar to respondents trademarks.
IV. Whether or not the Court of Appeals erred in applying the Paris Convention in holding that respondent ha[d] an
exclusive right to the trademark gold toe without taking into consideration the absence of actual use in the
Philippines.xxi[8]

In the main, the Court will resolve three issues: (1) the date of actual use of the two trademarks; (2) their confusing similarities,
and (3) the applicability of the Paris Convention.

The Courts Ruling

The Petition has no merit.

First Issue:
Dates of First Use of Trademark and Devices

Petitioner claims that it started the actual use of the trademark Gold Top and Device in September 1956, while respondent
began using the trademark Gold Toe only on May 15, 1962. It contends that the claim of respondent that it had been using the
Gold Toe trademark at an earlier date was not substantiated. The latters witnesses supposedly contradicted themselves as to
the date of first actual use of their trademark, coming up with different dates such as 1952, 1947 and 1938.

We do not agree. Based on the evidence presented, this Court concurs in the findings of the Bureau of Patents that respondent
had actually used the trademark and the devices in question prior to petitioners use of its own. During the hearing at the Bureau
of Patents, respondent presented Bureau registrations indicating the dates of first use in the Philippines of the trademark and the
devices as follows: a) March 16, 1954, Gold Toe; b) February 1, 1952, the Representation of a Sock and a Magnifying Glass; c)
January 30, 1932, the Gold Toe Representation; and d) February 28, 1952, Linenized.

The registration of the above marks in favor of respondent constitutes prima facie evidence, which petitioner failed to overturn
satisfactorily, of respondents ownership of those marks, the dates of appropriation and the validity of other pertinent facts stated
therein. Indeed, Section 20 of Republic Act 166 provides as follows:

Sec. 20. Certificate of registration prima facie evidence of validity. - A certificate of registration of a mark or trade-name shall be
prima facie evidence of the validity of the registration, the registrant's ownership of the mark or trade-name, and of the
registrant's exclusive right to use the same in connection with the goods, business or services specified in the certificate, subject
to any conditions and limitations stated therein.xxi[9]

Moreover, the validity of the Certificates of Registration was not questioned. Neither did petitioner present any evidence to
indicate that they were fraudulently issued. Consequently, the claimed dates of respondents first use of the marks are presumed
valid. Clearly, they were ahead of petitioners claimed date of first use of Gold Top and Device in 1958.

Section 5-A of Republic Act No. 166xxi[10] states that an applicant for a trademark or trade name shall, among others, state the
date of first use. The fact that the marks were indeed registered by respondent shows that it did use them on the date indicated
in the Certificate of Registration.

On the other hand, petitioner failed to present proof of the date of alleged first use of the trademark Gold Top and Device. Thus,
even assuming that respondent started using it only on May 15, 1962, we can make no finding that petitioner had started using it
ahead of respondent.

Furthermore, petitioner registered its trademark only with the supplemental register. In La Chemise Lacoste v. Fernandez,xxi[11]
the Court held that registration with the supplemental register gives no presumption of ownership of the trademark. Said the
Court:
The registration of a mark upon the supplemental register is not, as in the case of the principal register, prima facie evidence of
(1) the validity of registration; (2) registrants ownership of the mark; and (3) registrants exclusive right to use the mark. It is not
subject to opposition, although it may be cancelled after its issuance. Neither may it be the subject of interference proceedings.
Registration [i]n the supplemental register is not constructive notice of registrants claim of ownership. A supplemental register is
provided for the registration because of some defects (conversely, defects which make a mark unregistrable on the principal
register, yet do not bar them from the supplemental register.) (Agbayani, II Commercial Laws of the Philippines, 1978, p. 514,
citing Uy Hong Mo v. Titay & Co., et al., Dec. No. 254 of Director of Patents, Apr. 30, 1968.

As to the actual date of first use by respondent of the four marks it registered, the seeming confusion may have stemmed from
the fact that the marks have different dates of first use. Clearly, however, these dates are indicated in the Certificates of
Registration.

In any case, absent any clear showing to the contrary, this Court accepts the finding of the Bureau of Patents that it was
respondent which had prior use of its trademark, as shown in the various Certificates of Registration issued in its favor. Verily,
administrative agencies findings of fact in matters falling under their jurisdiction are generally accorded great respect, if not
finality. Thus, the Court has held:

x x x. By reason of the special knowledge and expertise of said administrative agencies over matters falling under their
jurisdiction, they are in a better position to pass judgment thereon; thus, their findings of fact in that regard are generally
accorded great respect, if not finality, by the courts. The findings of fact of an administrative agency must be respected as long
as they are supported by substantial evidence, even if such evidence might not be overwhelming or even preponderant. It is not
the task of an appellate court to weigh once more the evidence submitted before the administrative body and to substitute its
own judgment for that of the administrative agency in respect of sufficiency of evidence.xxi[12]

Second Issue:
Similarity of Trademarks

Citing various differences between the two sets of marks, petitioner assails the finding of the director of patents that its
trademark is confusingly similar to that of respondent. Petitioner points out that the director of patents erred in its application of
the idem sonans rule, claiming that the two trademarks Gold Toe and Gold Top do not sound alike and are pronounced
differently. It avers that since the words gold and toe are generic, respondent has no right to their exclusive use.

The arguments of petitioner are incorrect. True, it would not be guilty of infringement on the basis alone of the similarity in the
sound of petitioners Gold Top with that of respondents Gold Toe. Admittedly, the pronunciations of the two do not, by
themselves, create confusion.

The Bureau of Patents, however, did not rely on the idem sonans test alone in arriving at its conclusion. This fact is shown in the
following portion of its Decision:

As shown by the drawings and labels on file, the mark registered by Respondent-Registrant under Registration No. SR-2206 is a
combination of the abovementioned trademarks registered separately by the petitioner in the Philippines and the United States.

With respect to the issue of confusing similarity between the marks of the petitioner and that of the respondent-registrant
applying the tests of idem sonans, the mark GOLD TOP & DEVICE is confusingly similar with the mark GOLD TOE. The
difference in sound occurs only in the final letter at the end of the marks. For the same reason, hardly is there any variance in
their appearance. GOLD TOE and GOLD TOP are printed in identical lettering. Both show [a] representation of a mans foot
wearing a sock. GOLD TOP blatantly incorporates petitioners LINENIZED which by itself is a registered mark.xxi[13]

The Bureau considered the drawings and the labels, the appearance of the labels, the lettering, and the representation of a
mans foot wearing a sock. Obviously, its conclusion is based on the totality of the similarities between the parties trademarks
and not on their sounds alone.

In Emerald Garment Manufacturing Corporation v. Court of Appeals,xxi[14] this Court stated that in determining whether
trademarks are confusingly similar, jurisprudence has developed two kinds of tests, the Dominancy Testxxi[15] and the Holistic
Test.xxi[16] In its words:

In determining whether colorable imitation exists, jurisprudence has developed two kinds of tests the Dominancy Test applied in
Asia Brewery, Inc. v. Court of Appeals and other cases and the Holistic Test developed in Del Monte Corporation v. Court of
Appeals and its proponent cases.

As its title implies, the test of dominancy focuses on the similarity of the prevalent features of the competing trademarks which
might cause confusion or deception and thus constitutes infringement.
xxx xxx xxx

. . . . If the competing trademark contains the main or essential or dominant features of another, and confusion and deception is
likely to result, infringement takes place. Duplication or imitation is not necessary; nor is it necessary that the infringing label
should suggest an effort to imitate. [C. Neilman Brewing Co. v. Independent Brewing Co., 191 F., 489, 495, citing Eagle White
Lead Co., vs. Pflugh (CC) 180 Fed. 579]. The question at issue in cases of infringement of trademarks is whether the use of the
marks involved would be likely to cause confusion or mistakes in the mind of the public or deceive purchasers. (Auburn Rubber
Corporation vs. Hanover Rubber Co., 107 F. 2d 588; x x x.)

xxx xxx xxx

On the other side of the spectrum, the holistic test mandates that the entirety of the marks in question must be considered in
determining confusing similarity.

In the present case, a resort to either the Dominancy Test or the Holistic Test shows that colorable imitation exists between
respondents Gold Toe and petitioners Gold Top. A glance at petitioners mark shows that it definitely has a lot of similarities and
in fact looks like a combination of the trademark and devices that respondent has already registered; namely, Gold Toe, the
representation of a sock with a magnifying glass, the Gold Toe representation and linenized.

Admittedly, there are some minor differences between the two sets of marks. The similarities, however, are of such degree,
number and quality that the overall impression given is that the two brands of socks are deceptively the same, or at least very
similar to each another. An examination of the products in question shows that their dominant features are gold checkered lines
against a predominantly black background and a representation of a sock with a magnifying glass. In addition, both products use
the same type of lettering. Both also include a representation of a mans foot wearing a sock and the word linenized with arrows
printed on the label. Lastly, the names of the brands are similar -- Gold Top and Gold Toe. Moreover, it must also be considered
that petitioner and respondent are engaged in the same line of business.

Petitioner cannot therefore ignore the fact that, when compared, most of the features of its trademark are strikingly similar to
those of respondent. In addition, these representations are at the same location, either in the sock itself or on the label.
Petitioner presents no explanation why it chose those representations, considering that these were the exact symbols used in
respondents marks. Thus, the overall impression created is that the two products are deceptively and confusingly similar to each
other. Clearly, petitioner violated the applicable trademark provisions during that time.

Let it be remembered that duly registered trademarks are protected by law as intellectual properties and cannot be appropriated
by others without violating the due process clause. An infringement of intellectual rights is no less vicious and condemnable as
theft of material property, whether personal or real.

Third Issue:
The Paris Convention

Petitioner claims that the Court of Appeals erred in applying the Paris Convention. Although respondent registered its trademark
ahead, petitioner argues that the actual use of the said mark is necessary in order to be entitled to the protection of the rights
acquired through registration.

As already discussed, respondent registered its trademarks under the principal register, which means that the requirement of
prior use had already been fulfilled. To emphasize, Section 5-A of Republic Act 166 requires the date of first use to be specified
in the application for registration. Since the trademark was successfully registered, there exists a prima facie presumption of the
correctness of the contents thereof, including the date of first use. Petitioner has failed to rebut this presumption.

Thus, applicable is the Union Convention for the Protection of Industrial Property adopted in Paris on March 20, 1883, otherwise
known as the Paris Convention, of which the Philippines and the United States are members. Respondent is domiciled in the
United States and is the registered owner of the Gold Toe trademark. Hence, it is entitled to the protection of the Convention. A
foreign-based trademark owner, whose country of domicile is a party to an international convention relating to protection of
trademarks,xxi[17] is accorded protection against infringement or any unfair competition as provided in Section 37 of Republic
Act 166, the Trademark Law which was the law in force at the time this case was instituted.

In sum, petitioner has failed to show any reversible error on the part of the Court of Appeals. Hence, its Petition must fail.

WHEREFORE, the Petition is hereby DENIED and the assailed Resolution AFFIRMED. Costs against petitioner.

SO ORDERED.
Melo (Chairman), Vitug, Gonzaga-Reyes, and Sandoval-Gutierrez JJ., concur.

[G.R. No. 113079. April 20, 2001]

ENERGY REGULATORY BOARD, petitioner, vs. COURT OF APPEALS and PETROLEUM DISTRIBUTORS AND SERVICES
CORPORATION, respondents.

[G.R. No. 114923. April 20, 2001]

PILIPINAS SHELL PETROLEUM CORPORATION, petitioner, vs. COURT OF APPEALS and PETROLEUM DISTRIBUTORS
AND SERVICES CORPORATION, respondents.

DECISION

YNARES-SANTIAGO, J.:

The propriety of building a state-of-the-art gasoline service station along Benigno Aquino, Jr. Avenue in Paraaque, Metro Manila
is the bone of contention in these consolidated petitions for certiorari under Rule 45 of the Rules of Court. Petitioners assert that
the construction of such a modern edifice is a necessity dictated by the emerging economic landscapes. Respondents say
otherwise.

The factual antecedents of the case are matters of record or are otherwise uncontroverted.

Petitioner Pilipinas Shell Petroleum Corporation (Shell) is engaged in the business of importing crude oil, refining the same and
selling various petroleum products through a network of service stations throughout the country.

Private respondent Petroleum Distributors and Service Corporation (PDSC) owns and operates a Caltex service station at the
corner of the MIA and Domestic Roads in Pasay City.

On June 30,1983, Shell filed with the quondam Bureau of Energy Utilization (BEU) an application for authority to relocate its
Shell Service Station at Tambo, Paraaque, Metro Manila, to Imelda Marcos Avenue of the same municipality. The application,
which was docketed as BEU Case No. 83-09-1319, was initially rejected by the BEU because Shells old site had been closed for
five (5) years such that the relocation of the same to a new site would amount to a new construction of a gasoline outlet, which
construction was then the subject of a moratorium. Subsequently, however, BEU relaxed its position and gave due course to the
application.

PDSC filed an opposition to the application on the grounds that: 1.] there are adequate service stations attending to the motorists
requirements in the trading area covered by the application; 2.] ruinous competition will result from the establishment of the
proposed new service station; and 3.] there is a decline not an increase in the volume of sales in the area. Two other companies,
namely Petrophil and Caltex, also opposed the application on the ground that Shell failed to comply with the jurisdictional
requirements.

In a Resolution dated March 6, 1984, the BEU dismissed the application on jurisdictional grounds and for lack of full title of the
lessor over the proposed site. However, on May 7, 1984, the BEU reinstated the same application and thereafter conducted a
hearing thereon.

On June 3, 1986, the BEU rendered a decision denying Shells application on a finding that there was no necessity for an
additional petroleum products retail outlet in Imelda Marcos Avenue, Paraaque. Dissatisfied, Shell appealed to the Office of
Energy Affairs (OEA).

Meanwhile, on May 8, 1987, Executive Order No. 172 was issued creating the Energy Regulatory Board (ERB) and transferring
to it the regulatory and adjudicatory functions of the BEU.

On May 9, 1988, the OEA rendered a decision denying the appeal of Shell and affirming the BEU decision. Shell moved for
reconsideration and prayed for a new hearing or the remand of the case for further proceedings. In a supplement to said motion,
Shell submitted a new feasibility study to justify its application.

The OEA issued an order on July 11, 1988, remanding the case to the ERB for further evaluation and consideration, noting
therein that the updated survey conducted by Shell cited new developments such as the accessibility of Imelda Marcos Avenue,
now Benigno Aquino, Jr. Avenue, to Paraaque residents along Sucat Road and the population growth in the trading area.
After the records of BEU Case No. 83-09-1319 was remanded to the ERB, Shell filed on March 3, 1989 an amended application,
intended for the same purpose as its original application, which was docketed as ERB Case No. 89-57. This amended
application was likewise opposed by PDSC.

On September 17, 1991, the ERB rendered a Decision allowing Shell to establish the service station in Benigno Aquino, Jr.
Avenue. The dispositive portion of the Decision reads:

WHEREFORE, premises considered, the application for authority to relocate a Shell service station from Tambo to Benigno
Aquino Avenue, Paraaque, Metro Manila is hereby approved.

Applicant is hereby directed to:

1. Start the construction and operation of the retail outlet at the actual approved site appearing in the vicinity map
previously submitted to the Board within one (1) year, from the finality of this Decision and thereafter submit a sworn document
of compliance therewith;

2. Submit photographs showing the left side, right side and front view of the retail outlet within fifteen (15) days from
completion of the construction work;

3. Submit to the Board a report on the total volume of petroleum products sold each month during the first six (6) months of
the operation of the station. The report shall be submitted in the form of an affidavit within ten (10) days after the end of the six-
month period;

4. Inform the Board in writing and the general public through a notice posted conspicuously within the premises of the
station of the (a) intention of applicant or its dealer to stop operation of the retail outlet for a period longer than ninety (90) days;
or (b) notice of shutdown of operation of the retail outlet that will likely extend beyond thirty (30) days. Such notice must be given
fifteen (15) days before the actual cessation of operations in the case of (a) and in the case of (b) within the first five (5) days of
an unplanned stoppage of operations.

SO ORDERED.

PDSC filed a motion for reconsideration of the foregoing Decision. The motion was, however, denied by ERB in an Order dated
February 14, 1992.

Aggrieved, PDSC elevated its cause on April 1, 1992 to the Court of Appeals, where the same was docketed as CA-G.R. SP No.
27661.

Thereafter, in a Decision dated November 8, 1993,xxi[1] the appellate courts Tenth Division reversed the ERB judgment thus:

WHEREFORE, the challenged Decision dated September 17, 1991, as well as the Order dated February 14, 1992, both of the
respondent Energy Regulatory Board in ERB Case No. 89-57, are hereby REVERSED and SET ASIDE. Correspondingly, the
application of respondent Pilipinas Shell Petroleum Corporation to construct and operate the petroleum retail outlet in question is
DENIED.

SO ORDERED.

A motion for reconsideration was denied by the Court of Appeals in a Resolution dated 6 April 1994.xxi[2] Dissatisfied, both Shell
and ERB elevated the matter to this Court by way of these petitions, which were ordered consolidated by the Court in a
Resolution dated July 25,1994.xxi[3]

It appears, however, from the record that even as the proceedings in CA-G.R. SP No. 27661 were pending in the appellate
court, Caltex filed on January 24, 1992 a similar application for the construction of a service station in the same area with the
ERB, docketed as ERB Case No. 87-393. This application was likewise opposed by respondent PDSC, citing the same grounds
it raised in opposing Shells application in ERB Case No. 89-57.

In the aforesaid case, petitioner ERB thereafter rendered a Decision dated June 19, 1992 approving the application of Caltex.
This ERB Decision was challenged by PDSC, again on the same grounds it raised in CA-G.R. SP No. 27661, in a petition for
review filed with the Court of Appeals, where the same was docketed as CA-G.R. SP No. 29099.

Subsequently, the appellate courts Sixteenth Division dismissed PDSCs petition in a Decision dated May 14, 1993.xxi[4]
As grounds for the petition in the instant case, ERB asserts that

(1) THE EVIDENCE UPON WHICH THE ERB BASED ITS DECISION IS NEITHER STALE NOR IRRELEVANT AND THE
SAME JUSTIFIES THE ESTABLISHMENT OF THE PROPOSED PETROLEUM OUTLET.

(2) THE EVIDENCE PRESENTED BY APPLICANT SHELL REGARDING VEHICLE VOLUME AND FUEL DEMAND
SUPPORTS THE CONSTRUCTION OF THE PROPOSED OUTLET.

(3) THE ESTABLISHMENT OF THE SERVICE STATION WILL NOT LEAD TO RUINOUS COMPETITION.

For its part, Shell avers that

I.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN MAKING FINDINGS OF FACTS CONTRARY TO THOSE OF
THE ENERGY REGULATORY BOARD WHOSE FINDINGS WERE BASED ON SUBSTANTIAL EVIDENCE.

II.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE FEASIBILITY STUDY SUPPORTING
PETITIONERS APPLICATION TO CONSTRUCT A SERVICE STATION BEFORE THE ENERGY REGULATORY BOARD HAS
BECOME IRRELEVANT FOR HAVING BEEN PRESENTED IN EVIDENCE ABOUT TWO (2) YEARS AFTER IT WAS
PREPARED.

III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN PASSING JUDGMENT AND MAKING PRONOUNCEMENTS
ON PURELY ECONOMIC AND POLICY ISSUES ON PETROLEUM BUSINESS WHICH ARE WITHIN THE REALM OF THE
ENERGY REGULATORY BOARD WHICH HAS A RECOGNIZED EXPERTISE IN OIL ECONOMICS.

IV.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE PROPOSED SERVICE STATION OF
PETITIONER WOULD POSE RUINOUS COMPETITION TO PRIVATE RESPONDENTS SERVICE STATION BASED MAINLY
ON EVIDENCE SUBMITTED FOR THE FIRST TIME WITH THE SAID COURT AND WITHOUT CONDUCTING A HEARING
THEREON.

V.

ASSUMING THE HONORABLE COURT OF APPEALS HAS THE POWER TO CONSIDER NEW EVIDENCE PRESENTED
FOR THE FIRST TIME BEFORE SAID COURT, IT SHOULD HAVE REFERRED SUCH MATTER TO THE ENERGY
REGULATORY BOARD UNDER THE DOCTRINE OF PRIOR RESORT OR PRIMARY JURISDICTION.

The issues raised by the parties in these consolidated cases bring to the fore the necessity of rationalizing or reconciling two
apparently conflicting decisions of the appellate court on the propriety of building gasoline service stations along Benigno
Aquino, Jr. Avenue in Paraaque, Metro Manila. Considering that the questions raised concern within the oil industry, whose
impact on the nations economy is pervasive and far-reaching, the Court is constrained to look into the policy and purposes of its
governing statutes to resolve this dilemma.

The policy of the government in this regard has been to allow a free interplay of market forces with minimal government
supervision. The purpose of governing legislation is to liberalize the downstream oil industry in order to ensure a truly
competitive market under a regime of fair prices, adequate and continuous supply, environmentally clean and high-quality
petroleum products.xxi[5] Indeed, exclusivity of any franchise has not been favored by the Court,xxi[6] which is keen on
promoting free competition and the development of a free market consistent with the legislative policy of deregulation as an
answer to the problems of the oil industry.xxi[7]

The Court finds the petitions impressed with merit.

The interpretation of an administrative government agency like the ERB, which is tasked to implement a statute, is accorded
great respect and ordinarily controls the construction of the courts.xxi[8] A long line of cases establish the basic rule that the
courts will not interfere in matters which are addressed to the sound discretion of government agencies entrusted with the
regulation of activities coming under the special technical knowledge and training of such agencies.xxi[9] More explicitly

Generally, the interpretation of an administrative government agency, which is tasked to implement a statute, is accorded great
respect and ordinarily controls the construction of the courts.xxi[10] The reason behind this rule was explained in Nestle
Philippines, Inc. vs. Court of Appeals,xxi[11] in this wise:

The rationale for this rule relates not only to the emergence of the multifarious needs of a modern or modernizing society and the
establishment of diverse administrative agencies for addressing and satisfying those needs; it also relates to the accumulation of
experience and growth of specialized capabilities by the administrative agency charged with implementing a particular statute. In
Asturias Sugar Central, Inc. v. Commissioner of Customs,xxi[12] the Court stressed that executive officials are presumed to
have familiarized themselves with all the considerations pertinent to the meaning and purpose of the law, and to have formed an
independent, conscientious and competent expert opinion thereon. The courts give much weight to the government agency or
officials charged with the implementation of the law, their competence, expertness, experience and informed judgment, and the
fact that they frequently are drafters of the law they interpret.

As a general rule, contemporaneous construction is resorted to for certainty and predictability in the laws,xxi[13] especially those
involving specific terms having technical meanings.

However, courts will not hesitate to set aside such executive interpretation when it is clearly erroneous, or when there is no
ambiguity in the rule,xxi[14] or when the language or words used are clear and plain or readily understandable to any ordinary
reader.xxi[15]

Stated differently, when an administrative agency renders an opinion or issues a statement of policy, it merely interprets a pre-
existing law and the administrative interpretation is at best advisory for it is the courts that finally determine what the law
means.xxi[16] Thus, an action by an administrative agency may be set aside by the judicial department if there is an error of law,
abuse of power, lack of jurisdiction or grave abuse of discretion clearly conflicting with the letter and spirit of the law.xxi[17]

However, there is no cogent reason to depart from the general rule because the findings of the ERB conform to, rather than
conflict with, the governing statutes and controlling case law on the matter.

Prior to Republic Act No. 8479, the downstream oil industry was regulated by the ERB and from 1993 onwards, the Energy
Industry Regulation Board. These regulatory bodies were empowered, among others, to entertain and act on applications for the
establishment of gasoline stations in the Philippines. The ERB, which used to be the Board of Energy (BOE), is tasked with the
following powers and functions by Executive Order No. 172, which took effect immediately after its issuance on May 8, 1987:

SEC. 3. Jurisdiction, Powers and Functions of the Board. When warranted and only when public necessity requires, the
Board may regulate the business of importing, exporting, re-exporting, shipping, transporting, processing, refining, marketing and
distributing energy resources. xxx

The Board shall, upon prior notice and hearing, exercise the following, among other powers and functions:

(a) Fix and regulate the prices of petroleum products;

(b) Fix and regulate the rate schedule or prices of piped gas to be charged by duly franchised gas companies which
distribute gas by means of underground pipe systems;

(c) Fix and regulate the rates of pipeline concessionaires under the provisions of Republic Act No. 387, as amended,
otherwise know as the Petroleum Act of 1949, as amended by Presidential Decree No. 1700;

(d) Regulate the capacities of new refineries or additional capacities of existing refineries and license refineries that may be
organized after the issuance of this Executive Order, under such terms and conditions as are consistent with the national
interest;

(e) Whenever the Board has determined that there is a shortage of any petroleum product, or when public interest so
requires, it may take such steps as it may consider necessary, including the temporary adjustment of the levels of prices of
petroleum products and the payment to the Oil Price Stabilization Fund created under Presidential Decree No. 1956 by persons
or entities engaged in the petroleum industry of such amounts as may be determined by the Board, which will enable the
importer to recover its costs of importation.xxi[18]
A distinct worldwide trend towards economic deregulation has been evident in the past decade. Both developed and developing
countries have seriously considered and extensively adopted various measures for this purpose. The country has been no
exception. Indeed, the buzzwords of the third millenium are deregulation, globalization and liberalization.xxi[19] It need not be
overemphasized that this trend is reflected in our policy considerations, statutes and jurisprudence. Thus, in Garcia v.
Corona,xxi[20] the Court said:

R.A. 8479, the present deregulation law, was enacted to implement Article XII, Section 19 of the Constitution which provides:

The State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or
unfair competition shall be allowed.

This is so because the Government believes that deregulation will eventually prevent monopoly. The simplest form of monopoly
exists when there is only one seller or producer of a product or service for which there are no substitutes. In its more complex
form, monopoly is defined as the joint acquisition or maintenance by members of a conspiracy, formed for that purpose, of the
power to control and dominate trade and commerce in a commodity to such an extent that they are able, as a group, to exclude
actual or potential competitors from the field, accompanied with the intention and purpose to exercise such power.xxi[21]

xxx xxx xxx xxx

It bears reiterating at the outset that deregulation of the oil industry is policy determination of the highest order. It is
unquestionably a priority program of Government. The Department of Energy Act of 1992xxi[22] expressly mandates that the
development and updating of the existing Philippine energy program shall include a policy direction towards deregulation of the
power and energy industry.

xxx xxx xxx xxx

Our ruling in Tatadxxi[23] is categorical that the Constitutions Article XII, Section 19, is anti-trust in history and spirit. It espouses
competition. We have stated that only competition which is fair can release the creative forces of the market. We ruled
that the principle which underlies the constitutional provision is competition. Thus:

Section 19, Article XII of our Constitution is anti-trust in history and spirit. It espouses competition. The desirability of competition
is the reason for the prohibition against restraint of trade, the reason for the interdiction of unfair competition, and the reason for
regulation of unmitigated monopolies. Competition is thus the underlying principle of Section 19, Article XII of our Constitution
which cannot be violated by R.A. No. 8180. We subscribe to the observation of Prof. Gellhorn that the objective of anti-trust law
is to assure a competitive economy based upon the belief that through competition producers will strive to satisfy consumer
wants at the lowest price with the sacrifice of the fewest resources. Competition among producers allows consumers to bid for
goods and services and, thus matches their desires with societys opportunity costs. He adds with appropriateness that there is a
reliance upon the operation of the market system (free enterprise) to decide what shall be produced, how resources shall be
allocated in the production process, and to whom various products will be distributed. The market system relies on the consumer
to decide what and how much shall be produced, and on competition, among producers who will manufacture it.xxi[24]

Tested against the foregoing legal yardsticks, it becomes readily apparent that the reasons relied upon by the appellate court in
rejecting petitioners application to set up a gasoline service station becomes tenuous. This is especially clear in the face of such
recent developments in the oil industry, in relation to controlling case law on the matter recently promulgated to address the legal
issues spawned by these events. In other words, recent developments in the oil industry as well as legislative enactments and
jurisprudential pronouncements have overtaken and rendered stale the view espoused by the appellate court in denying Shells
application to put up the gasoline station.

In reversing the ERB, the Court of Appeals first avers in sum that there is no substantial evidence to support ERBs finding of
public necessity to warrant approval of Shells application.

The Court disagrees.

On the contrary, the record discloses that the ERB Decision approving Shells application in ERB Case No. 89-57 was based on
hard economic data on developmental projects, residential subdivision listings, population count, public conveyances,
commercial establishments, traffic count, fuel demand, growth of private cars, public utility vehicles and commercial vehicles,
etc.,xxi[25] rather than empirical evidence to support its conclusions. In approving Shells application, the ERB made the
following factual findings and, on the basis thereof, justified its ruling thus:

In evaluating the merits of the application, the first question that comes to mind is whether there is indeed an increase in market
potential from the time this very same application was disapproved by the then Bureau of Energy Utilization up to the present
time that would warrant a reversal of the former decision. The history of this case serves to justify applicant Shells position on
the matter. After a little over a year from vigorously opposing the original application, Caltex and Petron filed their respective
applications to construct their own service station within the same vicinity.

The figures in the applicants feasibility study projects a scenario of growth well up to the year 1994. Where the applicant listed
only thirty-five commercial establishments, oppositor is servicing sixty-five. The development of subdivisions along the area
provides for a buffer of market potential that could readily be tapped by the applicant service.

Although the applicants witness could have done better in accentuating this fact, the oppositor did not do well either in
downplaying the potentials of the area. The main gist of PDSCs contention is premised on the rising overhead cost of (increase
in salaries and rent) in relation to the establishment of new competition. The proposed station expects to target a total volume of
460,151 liters per month with a projected increase of 2.6% per annum and presumably expects to make a corresponding profit
thereof. Oppositor PDSC, on the other hand, with its lone Caltex Service Station, expects to suffer income loss even with a
projected volume of 600,000 to 800,000 liters per month (Exhibit 5).

Considering this premise, it should be noted that the Board is tasked to protect existing petroleum stations from ruinous
competition and not to protect existing establishments from its own ghost. The Board does not exist for the benefit of any
individual station but for the interest of the public and the industry as a whole.

In its first application, the applicants projection was to realize only 255,000 liters per month or some 20 percent of the total
potential demand. With its amended application, the 460,151 liters it hopes to realize is almost twice the former volume
representing a smaller percentage of the present overall potential demand.

With further growth and development of the businesses in the area, the fuel potential will tremendously increase and the
presence of strategically located service stations will greatly benefit the local community as well as the transient motoring public.

The Board believes that the construction and operation of the Shell Station will not lead to ruinous competition since [the]
additional retail outlet is necessary.

Time and again this Court has ruled that in reviewing administrative decisions, the findings of fact made therein must be
respected as long as they are supported by substantial evidence, even if not overwhelming or preponderant; that it is not for the
reviewing court to weigh the conflicting evidence, determine the credibility of the witnesses or otherwise substitute its own
judgment for that of the administrative agency on the sufficiency of evidence; that the administrative decision in matters within
the executive jurisdiction can only be set aside on proof of grave abuse of discretion, fraud or error of law.xxi[26] Petitioner ERB
is in a better position to resolve petitioner Shells application, being primarily the agency possessing the necessary expertise on
the matter. The power to determine whether the building of a gasoline retail outlet in a trading area would benefit public interest
and the oil industry lies with the ERB not the appellate courts.

In the hierarchy of evidentiary values, proof beyond reasonable doubt is at the highest level, followed by clear and convincing
evidence, preponderance of evidence and substantial evidence, in that order.xxi[27] A litany of cases has consistently held that
substantial evidence is all that is needed to support an administrative finding of fact.xxi[28] It means such relevant evidence as a
reasonable mind might accept to support a conclusion.xxi[29]

Suffice it to state in this regard that the factual landscape, measured within the context of such an evidentiary matrix, is strewn
with well-nigh overwhelming proof of the necessity to build such a gasoline retail outlet in the vicinity subject of the application.

In denying Shells application, the Court of Appeals next pointed to the alleged staleness of Shells feasibility study because it was
submitted in evidence about two (2) years after it was prepared in early 1988.xxi[30]

Again, this Court is not persuaded.

The record shows that the feasibility studyxxi[31] is accompanied by the following data, namely: 1.] Annual Projection of
Estimated Fuel Demand, Base Area; 2.] Projected Volume of the Proposed Shell Station; 3.] Projected Fuel Volume Derived
From Base Area; 4.] Estimated Fuel Demand Base Projection 1993; 5.] Estimated Fuel Demand Base Projection 1994; 6.]
Annual Projection of Population; 7.] Annual Projection Growth of Private Cars in the Area; 8.] Annual Projection Growth of Public
Utilities in the Area; and 9] Annual Projected Growth of Commercial Vehicles in the Areaxxi[32] projects a market scenario from
1989 to 1994.

While the Court of Appeals was initially unconvinced that Shells feasibility study was up-to-date and proceeded to render the
assailed judgment, its attention was subsequently called, in Shells motion for reconsideration, to the ERBs Decision dated June
19, 1992xxi[33] approving a similar application by Caltex to build a gasoline retail outlet in the same vicinity. Said decision was
appealed by PDSC to the Court of Appeals (CA-G.R. SP No. 29099), and was affirmed by the latter in a Decision dated May 14,
1993.xxi[34] The Decision in Caltexs application, where PDSC was the lone oppositor, was challenged before the appellate court
on the very same grounds it proffered in opposing Shells application.xxi[35] In rejecting PDSCs contentions in CA-G.R. SP No.
29099, the Court of Appeals Sixteenth Division ruled:

As to the first ground

xxx xxx xxx xxx

The petitioner had assumed that the entire Sucat Road (starting from as far away as its intersection with the South Expressway
going towards Alabang and further South), Quirino Avenue, Domestic Road (which passes in front of the Domestic Terminal),
MIA Road, and Ninoy Aquino Avenue, constitute what it refers to as the trading area. Thus, the herein petitioner invites attention
to the fact that in Sucat Road there are five existing gasoline stations; two along Quirino Avenue (from Sucat Road); four along
Domestic Road; and two along MIA Road, one of which is the Caltex-Nayong Pilipino station at the corner of MIA Road and
Benigno Aquino Avenue. Except for the gas station at one end of Benigno Aquino Avenue (located in front of the Nayong
Filipino), the petitioner admits that there has been as yet no gasoline station existing along the entire stretch of the said
Benigno Aquino Avenue, although the ERB had recently approved Shells application to put up one therein.

This court is of the view that the aforementioned assumption adopted by petitioner is fallacious or incorrect considering the
conclusion of ERBs Manuel Alvarez in his Ocular Inspection Report and In-Depth Analysis of Feasibility Study that no outlet
presently exists along the whole stretch of the Ninoy Aquino Avenue (Rollo, p. 126) and that the outlets along Sucat
Road are far from the proposed site, a distant several kilometers away along Dr. A. Santos Avenue in Sucat which can
already be considered a different trading area (ibid., - underscoring supplied)

Assuming in gratia argumenti that the entirety of the above-specified road/avenues may be considered as a single trading area,
the petitioner had failed to show why Caltexs 9.7% share of the total market potential, as found in Alvarezs Market
Study, is not attainable or that it would result in ruinous competition. As pointed by the respondents (citing MD Transit &
Taxi Co., Inc. v. Pepito, 6 SCRA 140 and Raymundo Trans. Co. v. Cervo, 91 Phil. 313), even if a new station would bring
about a decline in the sales of the existing outlets, it need not necessarily result in ruinous competition, absent
adequate proof to that effect.

As to the second and third grounds

Concerning the averment that the evidence of Caltex is stale, this Court notes that the said evidence refers principally to a
revalidation study conducted by ERBs Alvarez who undertook an ocular inspection of the proposed site on November 23 to 27,
1987. The hearings of the instant case continued up to early 1992 (ERB Decision, p. 4). The Decision was rendered on June 19,
1992 (Rollo, p. 36). It may be conceded that substantial time had elapsed since the time of the aforementioned revalidation
study. However, it is this courts view that unless the petitioner is able to prove by competent evidence that significant
changes have occurred sufficient to invalidate the afore-stated study, the presumption is that the said study remains
valid, as found by the ERB in its decision. Bare and self-serving manifestations cannot be accepted by Us as proof;
especially if We take into account that hearings (as in the case at bar) would take time and it would be quite absurd if
what was once applicable and acceptable evidence would be ipso facto rendered stale through mere lapse of time
absent any controverting evidence. Sound procedural policy requires that the burden of proof relative to the present
invalidity of the Alvarez report rests not with Caltex but on the herein petitioner.

The petitioner had attempted to make comparisons between the figures specified in the 1987 study and those of the Bureau of
Energy Utilization or BEU (which were given earlier in 1986). Thus, the petitioner points out that while the BEUs decision
indicated that 9,034 cars on the average passed by going in both directions along Ninoy Aquino Avenue, the Alvarez revalidation
study gave an average car traffic of only 8,395 resulting in a decline of 639 cars. The petitioner, however, conveniently ignored
or failed to note that the 9,034 figure was that given by applicant Shell and not be the government agency itself. The BEU refers
to the said figure as the applicants estimated potential demand. It is natural to expect that an applicant would try to give up as
high an estimated potential demand as possible to support its application.

The contention of the petitioner that the Alvarez study/report is hearsay on the ground inter alia that Alvarez was not presented
as a witness deserves scant consideration by this Court. In the first place, the ERB is not bound by technical rules of procedure
as contained in the Rules of Court, the latter being made applicable to ERB only in a suppletory character (Rule 16 of the Rules
of Practice and Procedure Governing Hearings Before the ERB). More importantly, Section 2, paragraph 2 and Section 7,
paragraph 2 of the above-mentioned ERB Rules provides as follows:

The Board may, in the disposition of cases, before it, take judicial notice of any data or information existing in its judicial records,
that may be relevant, pertinent or material to the issues involved, x x x x
The Board may also, on its own initiative or upon a motion of a party, conduct such investigation or studies on any matter
pertinent, related or material to the issues involved in a case the results of which may be sued by the Board as bases for the
proper evaluation of the said issues. (Rollo, pp. 205-207 underscoring supplied)

The petitioner asserts that the island divider along Benigno Aquino Avenue in front of the proposed site was not taken into
consideration in the 1987 survey. It could not be denied that the construction of such divider could have an effect on the matter
of potential demand. Neither can it be denied however that the gas station that would be affected would be Caltex itself. It is not
alleged that there exists a divider along the whole of Sucat Road for example. Hence, the existing outlets have no reason to
complain about the divider.

The contention that when construction is completed (connecting Sucat Road to the coastal road), a good number of vehicles
would pass through the coastal road instead of along Benigno Aquino [Avenue] appears to Us as speculative. There is no need
for the petitioner, which it failed to do, to show qualitatively and convincingly that the effect would be such as to make the sales
level go down to such an extent that the viability of the existing outlets would be seriously endangered or threatened.

The foregoing pronouncement of the Court of Appeals Sixteenth Division is more in keeping with the policy of the State and the
rationale of the statutes enacted to govern the industry.

In denying Shells application, the Court of Appeals finally states that the proposed service station would cause ruinous
competition to respondent PDSCs outlet in the subject vicinity.

We remain unconvinced.

It must be pointed out that in determining the allowance or disallowance of an application for the construction of a service station,
the appellate court confined the factors thereof within the rigid standards governing public utilility regulation, where exclusivity,
upon the satisfaction of certain requirements, is allowed. However, exclusivity is more the exception rather than the rule in the
gasoline service station business. Thus, Rule V, Section 1, of the Rules and Regulations Governing the Establishment,
Construction, Operation, Remodelling and/or Refurbishing of Petroleum Products Retail Outlets issued by the Oil Industry
Commission,xxi[36] and adopted by the ERB, enumerates the following factors determining the allowance or disallowance of an
application for outlet construction, to wit:

(a). The operation of the proposed petroleum products retail outlet will promote public interest in a proper and suitable
manner considering the need and convenience of the end-users.

(b) Reasonable expectation of a commercially viable operation.

(c) The establishment and operation thereof will not result in a monopoly, combination in restraint of trade and ruinous
competition.

(d) The requirements of public safety and sanitation are properly observed.

(e) Generally, the establishment and operation thereof will help promote and achieve the purposes of Republic Act No.
6173.xxi[37]

While it is probable that the operation of the proposed Shell outlet may, to a certain extent, affect PDSCs business, private
respondent nevertheless failed to show that its business would not have sufficient profit to have a fair return of its investment.
The mere possibility of reduction in the earnings of a business is not sufficient to prove ruinous competition.xxi[38] Indeed

In order that the opposition based on ruinous competition may prosper, it must be shown that the opponent would be deprived of
fair profits on the capital invested in its business. The mere possibility of reduction in the earnings of a business is not
sufficient to prove ruinous competition. It must be shown that the business would not have sufficient gains to pay a fair
rate of interest on its capital investment.xxi[39] Mere allegations by the oppositor that its business would be ruined by the
establishment of the ice plants proposed by the applicants are not sufficient to warrant this Court to revoke the order of the
Public Service Commission.xxi[40]

It would not be remiss to point out that Caltex, PDSCs principal, whose products are being retailed by private respondent in the
service outlet it operates along the MIA/Domestic Road in Pasay City, never filed any opposition to Shells application. All told, a
climate of fear and pessimism generated by unsubstantiated claims of ruinous competition already rejected in the past should
not be made to retard free competition, consistently with legislative policy of deregulating and liberalizing the oil industry to
ensure a truly competitive market under a regime of fair prices, adequate and continuous supply, environmentally clean and
high-quality petroleum products.
WHEREFORE, in view of all the foregoing, the challenged Decision of the Court of Appeals dated November 8, 1993, as well as
the subsequent Resolution dated April 6, 1994, in CA-G.R. SP No. 27661, is REVERSED and SET ASIDE, and another one
rendered REINSTATING the Order dated September 17, 1991 of the Energy Regulatory Board in ERB Case No. 89-57, granting
the amended application of Pilipinas Shell Petroleum Corporation to relocate its service station to Benigno Aquino Jr., Avenue,
Paranaque, Metro Manila.

SO ORDERED.