Republic of the Philippines brilliant and dedicated counsel, all interests involved should be duly
SUPREME COURT and amply represented and protected. At any rate, notwithstanding
Manila
EN BANC
G.R. No. L-34150 October 16, 1971
ARTURO M. TOLENTINO, petitioner,
vs.
COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE
AUDITOR, and THE DISBURSING OFFICER OF THE 1971
CONSTITUTIONAL CONVENTION, respondents, RAUL S. MANGLAPUS,
JESUS G. BARRERA, PABLO S. TRILLANA III, VICTOR DE LA SERNA,
MARCELO B. FERNAN, JOSE Y. FERIA, LEONARDO SIGUION REYNA,
VICTOR F. ORTEGA, and JUAN V. BORRA, Intervenors.
Arturo M. Tolentino in his own behalf.
Ramon A. Gonzales for respondents Chief Accountant and Auditor of
the 1971 Constitutional Convention.
Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for
respondent Disbursing Officer of the 1971 Constitutional Convention.
Intervenors in their own behalf.
BARREDO, J.:
Petition for prohibition principally to restrain the respondent
Commission on Elections "from undertaking to hold a plebiscite on
November 8, 1971," at which the proposed constitutional
amendment "reducing the voting age" in Section 1 of Article V of the
Constitution of the Philippines to eighteen years "shall be,
submitted" for ratification by the people pursuant to Organic
Resolution No. 1 of the Constitutional Convention of 1971, and the
subsequent implementing resolutions, by declaring said resolutions
to be without the force and effect of law in so far as they direct the
holding of such plebiscite and by also declaring the acts of the
respondent Commission (COMELEC) performed and to be done by it
in obedience to the aforesaid Convention resolutions to be null and
void, for being violative of the Constitution of the Philippines.
As a preliminary step, since the petition named as respondent only
the COMELEC, the Count required that copies thereof be served on
the Solicitor General and the Constitutional Convention, through its
President, for such action as they may deem proper to take. In due
time, respondent COMELEC filed its answer joining issues with
petitioner. To further put things in proper order, and considering
that the fiscal officers of the Convention are indispensable parties in
a proceeding of this nature, since the acts sought to be enjoined
involve the expenditure of funds appropriated by law for the
Convention, the Court also ordered that the Disbursing Officer, Chief
Accountant and Auditor of the Convention be made respondents.
After the petition was so amended, the first appeared thru Senator
Emmanuel Pelaez and the last two thru Delegate Ramon Gonzales.
All said respondents, thru counsel, resist petitioner's action.
For reasons of orderliness and to avoid unnecessary duplication of
arguments and even possible confusion, and considering that with
the principal parties being duly represented by able counsel, their
interests would be adequately protected already, the Court had to
limit the number of intervenors from the ranks of the delegates to
the Convention who, more or less, have legal interest in the success
of the respondents, and so, only Delegates Raul S. Manglapus, Jesus
G. Barrera, Pablo S. Trillana III, Victor de la Serna, Marcelo B. Fernan,
Jose Y. Feria, Leonardo Siguion Reyna, Victor Ortega and Juan B.
Borra, all distinguished lawyers in their own right, have been allowed
to intervene jointly. The Court feels that with such an array of
that their corresponding motions for leave to intervene or to appear
as amicus curiae 1 have been denied, the pleadings filed by the
other delegates and some private parties, the latter in
representation of their minor children allegedly to be affected by the
result of this case with the records and the Court acknowledges that
they have not been without value as materials in the extensive study
that has been undertaken in this case.
The background facts are beyond dispute. The Constitutional
Convention of 1971 came into being by virtue of two resolutions of
the Congress of the Philippines approved in its capacity as a
constituent assembly convened for the purpose of calling a
convention to propose amendments to the Constitution namely,
Resolutions 2 and 4 of the joint sessions of Congress held on March
16, 1967 and June 17, 1969 respectively. The delegates to the said
Convention were all elected under and by virtue of said resolutions
and the implementing legislation thereof, Republic Act 6132. The
pertinent portions of Resolution No 2 read as follows:
SECTION 1. There is hereby called a convention
to propose amendments to the Constitution of
the Philippines, to be composed of two elective
Delegates from each representative district who
shall have the same qualifications as those
required of Members of the House of
Representatives.
xxx xxx xxx
SECTION 7. The amendments proposed by the
Convention shall be valid and considered part of
the Constitution when approved by a majority of
the votes cast in an election at which they are
submitted to the people for their ratification
pursuant to Article XV of the Constitution.
Resolution No. 4 merely modified the number of delegates to
represent the different cities and provinces fixed originally in
Resolution No 2.
After the election of the delegates held on November 10, 1970, the
Convention held its inaugural session on June 1, 1971. Its preliminary
labors of election of officers, organization of committees and other
preparatory works over, as its first formal proposal to amend the
Constitution, its session which began on September 27, 1971, or
more accurately, at about 3:30 in the morning of September 28,
1971, the Convention approved Organic Resolution No. 1 reading
thus: .
CC ORGANIC RESOLUTION NO. 1
A RESOLUTION AMENDING SECTION ONE OF
ARTICLE V OF THE CONSTITUTION OF THE
PHILIPPINES SO AS TO LOWER THE VOTING AGE
TO 18
BE IT RESOLVED as it is hereby resolved by the
1971 Constitutional Convention:
Section 1. Section One of Article V of the
Constitution of the Philippines is amended to as
follows:
Section 1. Suffrage may be
exercised by (male) citizens
of the Philippines not
otherwise disqualified by
law, who are (twenty-one)
EIGHTEEN years or over and
are able to read and write,
and who shall have resided in
1
 the Philippines for one year
and in the municipality
wherein they propose to
vote for at least six months
preceding the election.
Section 2. This amendment shall be valid as part
of the Constitution of the Philippines when
approved by a majority of the votes cast in a
plebiscite to coincide with the local elections in
November 1971.
Section 3. This partial amendment, which refers
only to the age qualification for the exercise of
suffrage shall be without prejudice to other
amendments that will be proposed in the future
by the 1971 Constitutional Convention on other
portions of the amended Section or on other
portions of the entire Constitution.
Section 4. The Convention hereby authorizes the
use of the sum of P75,000.00 from its savings or
from its unexpended funds for the expense of
the advanced plebiscite; provided, however that
should there be no savings or unexpended sums,
the Delegates waive P250.00 each or the
equivalent of 2-1/2 days per diem.
By a letter dated September 28, 1971, President Diosdado
Macapagal, called upon respondent Comelec "to help the
Convention implement (the above) resolution." The said letter
reads:
September 28, 1971
The Commission on Elections Manila
Thru the Chairman
Gentlemen:
Last night the Constitutional Convention passed
Resolution No. 1 quoted as follows:
xxx xxx xxx
(see above)
Pursuant to the provision of Section 14, Republic
Act No. 6132 otherwise known as the
Constitutional Convention Act of 1971, may we
call upon you to help the Convention implement
this resolution:
Sincerely,
(Sgd.) DIOSDADO P. MACAPAGAL
DIOSDADO P. MACAPAGAL
President
On September 30, 1971, COMELEC "RESOLVED to inform the
Constitutional Convention that it will hold the plebiscite on condition
that:
(a) The Constitutional Convention will undertake
the printing of separate official ballots, election
returns and tally sheets for the use of said
plebiscite at its expense;
(b) The Constitutional Convention will adopt its
own security measures for the printing and
shipment of said ballots and election forms; and
(c) Said official ballots and election forms will be
delivered to the Commission in time so that they
could be distributed at the same time that the
Commission will distribute its official and sample
ballots to be used in the elections on November
8, 1971.
What happened afterwards may best be stated by quoting from
intervenors' Governors' statement of the genesis of the above
proposal:
The President of the Convention also issued an
order forming an Ad Hoc Committee to
implement the Resolution.
This Committee issued implementing guidelines
which were approved by the President who then
transmitted them to the Commission on
Elections.
The Committee on Plebiscite and Ratification
filed a report on the progress of the
implementation of the plebiscite in the
afternoon of October 7,1971, enclosing copies of
the order, resolution and letters of transmittal
above referred to (Copy of the report is hereto
attached as Annex 8-Memorandum).
RECESS RESOLUTION
In its plenary session in the evening of October 7,
1971, the Convention approved a resolution
authored by Delegate Antonio Olmedo of Davao
Oriental, calling for a recess of the Convention
from November 1, 1971 to November 9, 1971 to
permit the delegates to campaign for the
ratification of Organic Resolution No. 1. (Copies
of the resolution and the transcript of debate
thereon are hereto attached as Annexes 9 and 9-
A Memorandum, respectively).
RESOLUTION CONFIRMING IMPLEMENTATION
On October 12, 1971, the Convention passed
Resolution No. 24 submitted by Delegate Jose
Ozamiz confirming the authority of the President
of the Convention to implement Organic
Resolution No. 1, including the creation of the Ad
Hoc Committee ratifying all acts performed in
connection with said implementation.
Upon these facts, the main thrust of the petition is that Organic
Resolution No. 1 and the other implementing resolutions thereof
subsequently approved by the Convention have no force and effect
as laws in so far as they provide for the holding of a plebiscite co-
incident with the elections of eight senators and all city, provincial
and municipal officials to be held on November 8, 1971, hence all of
Comelec's acts in obedience thereof and tending to carry out the
holding of the plebiscite directed by said resolutions are null and
void, on the ground that the calling and holding of such a plebiscite
is, by the Constitution, a power lodged exclusively in Congress, as a
legislative body, and may not be exercised by the Convention, and
that, under Section 1, Article XV of the Constitution, the proposed
amendment in question cannot be presented to the people for
ratification separately from each and all of the other amendments to
be drafted and proposed by the Convention. On the other hand,
respondents and intervenors posit that the power to provide for, fix
the date and lay down the details of the plebiscite for the ratification
of any amendment the Convention may deem proper to propose is
within the authority of the Convention as a necessary consequence
and part of its power to propose amendments and that this power
includes that of submitting such amendments either individually or
jointly at such time and manner as the Convention may direct in
discretion. The Court's delicate task now is to decide which of these
2
two poses is really in accord with the letter and spirit of the
Constitution.
As a preliminary and prejudicial matter, the intervenors raise the
question of jurisdiction. They contend that the issue before Us is a
political question and that the Convention being legislative body of
the highest order is sovereign, and as such, its acts impugned by
petitioner are beyond the control of the Congress and the courts. In
this connection, it is to be noted that none of the respondent has
joined intervenors in this posture. In fact, respondents Chief
Accountant and Auditor of the convention expressly concede the
jurisdiction of this Court in their answer acknowledging that the
issue herein is a justifiable one.
Strangely, intervenors cite in support of this contention portions of
the decision of this Court in the case of Gonzales v. Comelec, 21
SCRA 774, wherein the members of the Court, despite their being
divided in their opinions as to the other matters therein involved,
were precisely unanimous in upholding its jurisdiction. Obviously,
distinguished counsel have either failed to grasp the full impact of
the portions of Our decision they have quoted or would misapply
them by taking them out of context.
There should be no more doubt as to the position of this Court
regarding its jurisdiction vis-a-vis the constitutionality of the acts of
the Congress, acting as a constituent assembly, and, for that matter,
those of a constitutional convention called for the purpose of
proposing amendments to the Constitution, which concededly is at
par with the former. A simple reading of Our ruling in that very case
of Gonzales relied upon by intervenors should dispel any lingering
misgivings as regards that point. Succinctly but comprehensively,
Chief Justice Concepcion held for the Court thus: .
As early as Angara vs. Electoral Commission (63
Phil. 139, 157), this Court — speaking through
one of the leading members of the
Constitutional Convention and a respected
professor of Constitutional Law, Dr. Jose P.
Laurel — declared that "the judicial department
is the only constitutional organ which can be
called upon to determine the proper allocation
of powers between the several departments and
among the integral or constituent units thereof."
It is true that in Mabanag v. Lopez Vito (supra),
this Court characterizing the issue submitted
thereto as a political one declined to pass upon
the question whether or not a given number of
votes cast in Congress in favor of a proposed
amendment to the Constitution — which was
being submitted to the people for ratification —
satisfied the three-fourths vote requirement of
the fundamental law. The force of this precedent
has been weakened, however, by Suanes v. Chief
Accountant of the Senate (81 Phil. 818), Avelino
v. Cuenco, (L-2851, March 4 & 14, 1949), Tañada
v. Cuenco, (L-10520, Feb. 28, 1957) and Macias v.
Commission on Elections, (L-18684, Sept. 14,
1961). In the first we held that the officers and
employees of the Senate Electoral Tribunal are
under its supervision and control, not of that of
the Senate President, as claimed by the latter; in
the second, this Court proceeded to determine
the number of Senators necessary for quorum in
the Senate; in the third, we nullified the election,
by Senators belonging to the party having the
largest number of votes in said chamber,
purporting to act, on behalf of the party having
the second largest number of votes therein of
two (2) Senators belonging to the first party, as
members, for the second party, of the Senate
Electoral Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to
apportion the representatives districts for the
House of Representatives, upon the ground that
the apportionment had not been made as may
be possible according to the number of
inhabitants of each province. Thus we rejected
the theory, advanced in these four (4) cases that
the issues therein raised were political questions
the determination of which is beyond judicial
review.
Indeed, the power to amend the Constitution or
to propose amendments thereto is not included
in the general grant of legislative powers to
Congress (Section 1, Art. VI, Constitution of the
Philippines). It is part of the inherent powers of
the people — as the repository sovereignty in a
republican state, such as ours (Section 1, Art. 11,
Constitution of the Philippines) — to make, and,
hence, to amend their own Fundamental Law.
Congress may propose amendments to the
Constitution merely because the same explicitly
grants such power. (Section 1, Art. XV,
Constitution of the Philippines) Hence, when
exercising the same, it is said that Senators and
members of the House of Representatives
act, not as members of Congress, but as
component elements of a constituent assembly.
When acting as such, the members of Congress
derive their authority from the Constitution,
unlike the people, when performing the same
function, (Of amending the Constitution) for
their authority does not emanate from the
Constitution — they are the very source of all
powers of government including the Constitution
itself.
Since, when proposing, as a constituent
assembly, amendments to the Constitution, the
members of Congress derive their authority from
the Fundamental Law, it follows, necessarily,
that they do not have the final say on whether or
not their acts are within or beyond constitutional
limits. Otherwise, they could brush aside and set
the same at naught, contrary to the basic tenet
that ours is a government of laws, not of men,
and to the rigid nature of our Constitution. Such
rigidity is stressed by the fact that the
Constitution expressly confers upon the
Supreme Court, (And, inferentially, to lower
courts.) the power to declare a treaty
unconstitutional. (Sec. 2(1), Art. VIII of the
Constitution), despite the eminently political
character of treaty-making power.
In short, the issue whether or not a Resolution of
Congress — acting as a constituent assembly —
violates the Constitution is essentially justiciable
not political, and, hence, subject to judicial
review, and, to the extent that this view may be
inconsistent with the stand taken in Mabanag v.
Lopez Vito, (supra) the latter should be deemed
modified accordingly. The Members of the Court
are unanimous on this point.
No one can rightly claim that within the domain of its legitimate
authority, the Convention is not supreme. Nowhere in his petition
and in his oral argument and memoranda does petitioner point
otherwise. Actually, what respondents and intervenors are
seemingly reluctant to admit is that the Constitutional Convention of
1971, as any other convention of the same nature, owes its
existence and derives all its authority and power from the existing
Constitution of the Philippines. This Convention has not been called
by the people directly as in the case of a revolutionary convention
which drafts the first Constitution of an entirely new government
born of either a war of liberation from a mother country or of a
revolution against an existing government or of a bloodless seizure
of power a la coup d'etat. As to such kind of conventions, it is
3
absolutely true that the convention is completely without restrain
and omnipotent all wise, and it is as to such conventions that the
remarks of Delegate Manuel Roxas of the Constitutional Convention
of 1934 quoted by Senator Pelaez refer. No amount of
rationalization can belie the fact that the current convention came
into being only because it was called by a resolution of a joint
session of Congress acting as a constituent assembly by authority of
Section 1, Article XV of the present Constitution which provides:
ARTICLE XV — AMENDMENTS
SECTION 1. The Congress in joint session
assembled, by a vote of three-fourths of all the
Members of the Senate and of the House of
Representatives voting separately, may propose
amendments to this Constitution or call a
convention for the purpose. Such amendments
shall be valid as part of this Constitution when
approved by a majority of the votes cast at an
election at which the amendments are
submitted to the people for their ratification.
True it is that once convened, this Convention became endowed
with extra ordinary powers generally beyond the control of any
department of the existing government, but the compass of such
powers can be co-extensive only with the purpose for which the
convention was called and as it may propose cannot have any effect
as part of the Constitution until the same are duly ratified by the
people, it necessarily follows that the acts of convention, its officers
and members are not immune from attack on constitutional
grounds. The present Constitution is in full force and effect in its
entirety and in everyone of its parts the existence of the Convention
notwithstanding, and operates even within the walls of that
assembly. While it is indubitable that in its internal operation and
the performance of its task to propose amendments to the
Constitution it is not subject to any degree of restraint or control by
any other authority than itself, it is equally beyond cavil that neither
the Convention nor any of its officers or members can rightfully
deprive any person of life, liberty or property without due process of
law, deny to anyone in this country the equal protection of the laws
or the freedom of speech and of the press in disregard of the Bill of
Rights of the existing Constitution. Nor, for that matter, can such
Convention validly pass any resolution providing for the taking of
private property without just compensation or for the imposition or
exacting of any tax, impost or assessment, or declare war or call the
Congress to a special session, suspend the privilege of the writ of
habeas corpus, pardon a convict or render judgment in a
controversy between private individuals or between such individuals
and the state, in violation of the distribution of powers in the
Constitution.
It being manifest that there are powers which the Convention may
not and cannot validly assert, much less exercise, in the light of the
existing Constitution, the simple question arises, should an act of the
Convention be assailed by a citizen as being among those not
granted to or inherent in it, according to the existing Constitution,
who can decide whether such a contention is correct or not? It is of
the very essence of the rule of law that somehow somewhere the
Power and duty to resolve such a grave constitutional question must
be lodged on some authority, or we would have to confess that the
integrated system of government established by our founding
fathers contains a wide vacuum no intelligent man could ignore,
which is naturally unworthy of their learning, experience and
craftsmanship in constitution-making.
We need not go far in search for the answer to the query We have
posed. The very decision of Chief Justice Concepcion in Gonzales, so
much invoked by intervenors, reiterates and reinforces the
irrefutable logic and wealth of principle in the opinion written for a
unanimous Court by Justice Laurel in Angara vs. Electoral
Commission, 63 Phil., 134, reading:
... (I)n the main, the Constitution has blocked out
with deft strokes and in bold lines, allotment of
power to the executive, the legislative and the
judicial departments of the government. The
overlapping and interlacing of functions and
duties between the several departments,
however, sometimes makes it hard to say where
the one leaves off and the other begins. In times
of social disquietude or political excitement, the
great landmark of the Constitution are apt to be
forgotten or marred, if not entirely obliterated.
In cases of conflict, the judicial department is the
only constitutional organ which can be called
upon to determine the proper allocation of
powers between the several departments and
among the integral or constituent units thereof.
As any human production our Constitution is of
course lacking perfection and perfectibility, but
as much as it was within the power of our
people, acting through their delegates to so
provide, that instrument which is the expression
of their sovereignty however limited, has
established a republican government intended
to operate and function as a harmonious whole,
under a system of check and balances and
subject to specific limitations and restrictions
provided in the said instrument. The Constitution
sets forth in no uncertain language the
restrictions and limitations upon governmental
powers and agencies. If these restrictions and
limitations are transcended it would be
inconceivable if the Constitution had not
provided for a mechanism by which to direct the
course of government along constitutional
channels, for then the distribution of powers
would be mere verbiage, the bill of rights mere
expressions of sentiment and the principles of
good government mere political apothegms.
Certainly the limitations and restrictions
embodied in our Constitution are real as they
should be in any living Constitution. In the
United States where no express constitutional
grant is found in their constitution, the
possession of this moderating power of the
courts, not to speak of its historical origin and
development there, has been set at rest by
popular acquiescence for a period of more than
one and half centuries. In our case, this
moderating power is granted, if not expressly, by
clear implication from section 2 of Article VIII of
our Constitution.
The Constitution is a definition of the powers or
government. Who is to determine the nature,
scope and extent of such powers? The
Constitution itself has provided for the
instrumentality of the judiciary as the rational
way. And when the judiciary mediates to allocate
constitutional boundaries, it does not assert any
superiority over the other departments; it does
not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and
sacred obligation assigned to it by the
Constitution to determine conflicting claims of
authority under the Constitution and to establish
for the parties in an actual controversy the rights
which that instrument secures and guarantees to
them. This is in truth all that is involved in what
is termed "judicial supremacy" which properly is
the power of judicial review under the
Constitution. Even then, this power of judicial
review is limited to actual cases and
controversies to be exercised after full
opportunity of argument by the parties, and
limited further to the constitutional question
raised or the very lis mota presented. Any
attempt at abstraction could only lead to
dialectics and barren legal questions and to
4
strike conclusions unrelated to actualities.
Narrowed as its functions is in this manner the
judiciary does not pass upon questions of
wisdom, justice or expediency of legislation.
More than that, courts accord the presumption
of constitutionality to legislative enactments, not
only because the legislature is presumed to
abide by the Constitution but also because the
judiciary in the determination of actual cases and
controversies must reflect the wisdom and
justice of the people as expressed through their
representatives in the executive and legislative
departments of the government.
But much as we might postulate on the internal
checks of power provided in our Constitution, it
ought not the less to be remembered that, in the
language of James Madison, the system itself is
not "the chief palladium of constitutional liberty
... the people who are authors of this blessing
must also be its guardians ... their eyes must be
ever ready to mark, their voices to pronounce ...
aggression on the authority of their
Constitution." In the last and ultimate analysis
then, must the success of our government in the
unfolding years to come be tested in the crucible
of Filipino minds and hearts than in consultation
rooms and court chambers.
In the case at bar, the National Assembly has by
resolution (No. 8) of December 3, 1935,
confirmed the election of the herein petitioner
to the said body. On the other hand, the
Electoral Commission has by resolution adopted
on December 9, 1935, fixed said date as the last
day for the filing of protests against the election,
returns and qualifications of members of the
National Assembly; notwithstanding the previous
confirmations made by the National Assembly as
aforesaid. If, as contended by the petitioner, the
resolution of the National Assembly has the
effect of cutting off the power of the Electoral
Commission to entertain protests against the
election, returns and qualifications of members
of the National Assembly, submitted after
December 3, 1935 then the resolution of the
Electoral Commission of December 9, 1935, is
mere surplusage and had no effect. But, if, as
contended by the respondents, the Electoral
Commission has the sole power of regulating its
proceedings to the exclusion of the National
Assembly, then the resolution of December 9,
1935, by which the Electoral Commission fixed
said date as the last day for filing protests
against the election, returns and qualifications of
members of the National Assembly, should be
upheld.
Here is then presented an actual controversy
involving as it does a conflict of a grave
constitutional nature between the National
Assembly on the one hand and the Electoral
Commission on the other. From the very nature
of the republican government established in our
country in the light of American experience and
of our own, upon the judicial department is
thrown the solemn and inescapable obligation of
interpreting the Constitution and defining
constitutional boundaries. The Electoral
Commission as we shall have occasion to refer
hereafter, is a constitutional organ, created for a
specific purpose, namely, to determine all
contests relating to the election, returns and
qualifications of the members of the National
Assembly. Although the Electoral Commission
may not be interfered with, when and while
acting within the limits of its authority, it does
not follow that it is beyond the reach of the
constitutional mechanism adopted by the people
and that it is not subject to constitutional
restriction. The Electoral Commission is not a
separate department of the government, and
even if it were, conflicting claims of authority
under the fundamental law between
departmental powers and agencies of the
government are necessarily determined by the
judiciary in justiciable and appropriate cases.
Discarding the English type and other European
types of constitutional government, the framers
of our Constitution adopted the American type
where the written constitution is interpreted and
given effect by the judicial department. In some
countries which have declined to follow the
American example, provisions have been
inserted in their constitutions prohibiting the
courts from exercising the power to interpret the
fundamental law. This is taken as a recognition
of what otherwise would be the rule that in the
absence of direct prohibition, courts are bound
to assume what is logically their function. For
instance, the Constitution of Poland of 1921
expressly provides that courts shall have no
power to examine the validity of statutes (art.
81, Chap. IV). The former Austrian Constitution
contained a similar declaration. In countries
whose constitution are silent in this respect,
courts have assumed this power. This is true in
Norway, Greece, Australia and South Africa.
Whereas, in Czechoslovakia (arts. 2 and 3,
Preliminary Law to Constitutional Charter of the
Czechoslavak, Republic, February 29, 1920) and
Spain (arts. 121-123, Title IX, Constitution of the
Republic of 1931) especial constitutional courts
are established to pass upon the validity of
ordinary laws. In our case, the nature of the
present controversy shows the necessity of a
final constitutional arbiter to determine the
conflict of authority between two agencies
created by the Constitution. Were we to decline
to take cognizance of the controversy, who will
determine the conflict? And if the conflict were
left undecided and undetermined, would not a
void be thus created in our constitutional system
which may in the long run prove destructive of
the entire framework? To ask these questions is
to answer them. Natura vacuum abhorret, so
must we avoid exhaustion in our constitutional
system. Upon principle, reason, and authority,
we are clearly of the opinion that upon the
admitted facts of the present case, this court has
jurisdiction over the Electoral Commission and
the subject matter of the present controversy for
the purpose of determining the character, scope
and extent of the constitutional grant to the
Electoral Commission as "the sole judge of all
contests relating to the election, returns and
qualifications of the members of the National
Assembly."
Digest:
In the elections of Sept 17, 1935, Angara, and the respondents, Pedro
Ynsua et al. were candidates voted for the position of member of the
National Assembly for the first district of the Province of Tayabas. On
Oct 7, 1935, Angara was proclaimed as member-elect of the NA for
the said district. On November 15, 1935, he took his oath of office.
On Dec 3, 1935, the NA in session assembled, passed Resolution No.
8 confirming the election of the members of the National Assembly
against whom no protest had thus far been filed. On Dec 8, 1935,
Ynsua, filed before the Electoral Commission a “Motion of Protest”
5
against the election of Angara. On Dec 9, 1935, the EC adopted a
resolution, par. 6 of which fixed said date as the last day for the filing
of protests against the election, returns and qualifications of
members of the NA, notwithstanding the previous confirmation
made by the NA. Angara filed a Motion to Dismiss arguing that by
virtue of the NA proclamation, Ynsua can no longer protest. Ynsua
argued back by claiming that EC proclamation governs and that the
EC can take cognizance of the election protest and that the EC
cannot be subject to a writ of prohibition from the SC.
ISSUES: Whether or not the SC has jurisdiction over such matter.
Whether or not EC acted without or in excess of jurisdiction in taking
cognizance of the election protest.
HELD: The SC ruled in favor of Angara. The SC emphasized that in
cases of conflict between the several departments and among the
agencies thereof, the judiciary, with the SC as the final arbiter, is the
only constitutional mechanism devised finally to resolve the conflict
and allocate constitutional boundaries.
That judicial supremacy is but the power of judicial review in actual
and appropriate cases and controversies, and is the power and duty
to see that no one branch or agency of the government transcends
the Constitution, which is the source of all authority.
That the Electoral Commission is an independent constitutional
creation with specific powers and functions to execute and perform,
closer for purposes of classification to the legislative than to any of
the other two departments of the government.
That the Electoral Commission is the sole judge of all contests
relating to the election, returns and qualifications of members of the
National Assembly.
. people for their approval or rejection.
As the Chief Justice has made it clear in Gonzales, like Justice Laurel
did in Angara, these postulates just quoted do not apply only to
conflicts of authority between the three existing regular
departments of the government but to all such conflicts between
and among these departments, or, between any of them, on the one
hand, and any other constitutionally created independent body, like
the electoral tribunals in Congress, the Comelec and the Constituent
assemblies constituted by the House of Congress, on the other. We
see no reason of logic or principle whatsoever, and none has been
convincingly shown to Us by any of the respondents and intervenors,
why the same ruling should not apply to the present Convention,
even if it is an assembly of delegate elected directly by the people,
since at best, as already demonstrated, it has been convened by
authority of and under the terms of the present Constitution..
Accordingly, We are left with no alternative but to uphold the
jurisdiction of the Court over the present case. It goes without saying
that We do this not because the Court is superior to the Convention
or that the Convention is subject to the control of the Court, but
simply because both the Convention and the Court are subject to
the Constitution and the rule of law, and "upon principle, reason and
authority," per Justice Laurel, supra, it is within the power as it is the
solemn duty of the Court, under the existing Constitution to resolve
the issues in which petitioner, respondents and intervenors have
joined in this case.
II
The issue of jurisdiction thus resolved, We come to the crux of the
petition. Is it within the powers of the Constitutional Convention of
1971 to order, on its own fiat, the holding of a plebiscite for the
ratification of the proposed amendment reducing to eighteen years
the age for the exercise of suffrage under Section 1 of Article V of
the Constitution proposed in the Convention's Organic Resolution
No. 1 in the manner and form provided for in said resolution and the
subsequent implementing acts and resolution of the Convention?
At the threshold, the environmental circumstances of this case
demand the most accurate and unequivocal statement of the real
issue which the Court is called upon to resolve. Petitioner has very
clearly stated that he is not against the constitutional extension of
the right of suffrage to the eighteen-year-olds, as a matter of fact, he
has advocated or sponsored in Congress such a proposal, and that,
in truth, the herein petition is not intended by him to prevent that
the proposed amendment here involved be submitted to the people
for ratification, his only purpose in filing the petition being to comply
with his sworn duty to prevent, Whenever he can, any violation of
the Constitution of the Philippines even if it is committed in the
course of or in connection with the most laudable undertaking.
Indeed, as the Court sees it, the specific question raised in this case
is limited solely and only to the point of whether or not it is within
the power of the Convention to call for a plebiscite for the
ratification by the people of the constitutional amendment
proposed in the abovequoted Organic Resolution No. 1, in the
manner and form provided in said resolution as well as in the subject
question implementing actions and resolution of the Convention and
its officers, at this juncture of its proceedings, when as it is a matter
of common knowledge and judicial notice, it is not set to
adjourn sine die, and is, in fact, still in the preliminary stages of
considering other reforms or amendments affecting other parts of
the existing Constitution; and, indeed, Organic Resolution No. 1 itself
expressly provides, that the amendment therein proposed "shall be
without prejudice to other amendments that will be proposed in the
future by the 1971 Constitutional Convention on other portions of
the amended section or on other portions of the entire
Constitution." In other words, nothing that the Court may say or do,
in this case should be understood as reflecting, in any degree or
means the individual or collective stand of the members of the Court
on the fundamental issue of whether or not the eighteen-year-olds
should be allowed to vote, simply because that issue is not before Us
now. There should be no doubt in the mind of anyone that, once the
Court finds it constitutionally permissible, it will not hesitate to do its
part so that the said proposed amendment may be presented to the
Withal, the Court rests securely in the conviction that the fire and
enthusiasm of the youth have not blinded them to the absolute
necessity, under the fundamental principles of democracy to which
the Filipino people is committed, of adhering always to the rule of
law. Surely, their idealism, sincerity and purity of purpose cannot
permit any other line of conduct or approach in respect of the
problem before Us. The Constitutional Convention of 1971 itself was
born, in a great measure, because of the pressure brought to bear
upon the Congress of the Philippines by various elements of the
people, the youth in particular, in their incessant search for a
peaceful and orderly means of bringing about meaningful changes in
the structure and bases of the existing social and governmental
institutions, including the provisions of the fundamental law related
to the well-being and economic security of the underprivileged
classes of our people as well as those concerning the preservation
and protection of our natural resources and the national patrimony,
as an alternative to violent and chaotic ways of achieving such lofty
ideals. In brief, leaving aside the excesses of enthusiasm which at
times have justifiably or unjustifiably marred the demonstrations in
the streets, plazas and campuses, the youth of the Philippines, in
general, like the rest of the people, do not want confusion and
disorder, anarchy and violence; what they really want are law and
order, peace and orderliness, even in the pursuit of what they
strongly and urgently feel must be done to change the present order
of things in this Republic of ours. It would be tragic and contrary to
the plain compulsion of these perspectives, if the Court were to
allow itself in deciding this case to be carried astray by
considerations other than the imperatives of the rule of law and of
the applicable provisions of the Constitution. Needless to say, in a
larger measure than when it binds other departments of the
government or any other official or entity, the Constitution imposes
upon the Court the sacred duty to give meaning and vigor to the
Constitution, by interpreting and construing its provisions in
appropriate cases with the proper parties, and by striking down any
act violative thereof. Here, as in all other cases, We are resolved to
discharge that duty.
6
During these twice when most anyone feels very strongly the urgent
need for constitutional reforms, to the point of being convinced that
meaningful change is the only alternative to a violent revolution, this
Court would be the last to put any obstruction or impediment to the
work of the Constitutional Convention. If there are respectable
sectors opining that it has not been called to supplant the existing
Constitution in its entirety, since its enabling provision, Article XV,
from which the Convention itself draws life expressly speaks only of
amendments which shall form part of it, which opinion is not
without persuasive force both in principle and in logic, the seemingly
prevailing view is that only the collective judgment of its members as
to what is warranted by the present condition of things, as they see
it, can limit the extent of the constitutional innovations the
Convention may propose, hence the complete substitution of the
existing constitution is not beyond the ambit of the Convention's
authority. Desirable as it may be to resolve, this grave divergence of
views, the Court does not consider this case to be properly the one
in which it should discharge its constitutional duty in such premises.
The issues raised by petitioner, even those among them in which
respondents and intervenors have joined in an apparent wish to
have them squarely passed upon by the Court do not necessarily
impose upon Us the imperative obligation to express Our views
thereon. The Court considers it to be of the utmost importance that
the Convention should be untrammelled and unrestrained in the
performance of its constitutionally as signed mission in the manner
and form it may conceive best, and so the Court may step in to clear
up doubts as to the boundaries set down by the Constitution only
when and to the specific extent only that it would be necessary to
do so to avoid a constitutional crisis or a clearly demonstrable
violation of the existing Charter. Withal, it is a very familiar principle
of constitutional law that constitutional questions are to be resolved
by the Supreme Court only when there is no alternative but to do it,
and this rule is founded precisely on the principle of respect that the
Court must accord to the acts of the other coordinate departments
of the government, and certainly, the Constitutional Convention
stands almost in a unique footing in that regard.
In our discussion of the issue of jurisdiction, We have already made
it clear that the Convention came into being by a call of a joint
session of Congress pursuant to Section I of Article XV of the
Constitution, already quoted earlier in this opinion. We reiterate
also that as to matters not related to its internal operation and the
performance of its assigned mission to propose amendments to the
Constitution, the Convention and its officers and members are all
subject to all the provisions of the existing Constitution. Now We
hold that even as to its latter task of proposing amendments to the
Constitution, it is subject to the provisions of Section I of Article XV.
This must be so, because it is plain to Us that the framers of the
Constitution took care that the process of amending the same
should not be undertaken with the same ease and facility in
changing an ordinary legislation. Constitution making is the most
valued power, second to none, of the people in a constitutional
democracy such as the one our founding fathers have chosen for this
nation, and which we of the succeeding generations generally
cherish. And because the Constitution affects the lives, fortunes,
future and every other conceivable aspect of the lives of all the
people within the country and those subject to its sovereignty, every
degree of care is taken in preparing and drafting it. A constitution
worthy of the people for which it is intended must not be prepared
in haste without adequate deliberation and study. It is obvious that
correspondingly, any amendment of the Constitution is of no less
importance than the whole Constitution itself, and perforce must be
conceived and prepared with as much care and deliberation. From
the very nature of things, the drafters of an original constitution, as
already observed earlier, operate without any limitations, restraints
or inhibitions save those that they may impose upon themselves.
This is not necessarily true of subsequent conventions called to
amend the original constitution. Generally, the framers of the latter
see to it that their handiwork is not lightly treated and as easily
mutilated or changed, not only for reasons purely personal but more
importantly, because written constitutions are supposed to be
designed so as to last for some time, if not for ages, or for, at least,
as long as they can be adopted to the needs and exigencies of the
people, hence, they must be insulated against precipitate and hasty
actions motivated by more or less passing political moods or fancies.
Thus, as a rule, the original constitutions carry with them limitations
and conditions, more or less stringent, made so by the people
themselves, in regard to the process of their amendment. And when
such limitations or conditions are so incorporated in the original
constitution, it does not lie in the delegates of any subsequent
convention to claim that they may ignore and disregard such
conditions because they are as powerful and omnipotent as their
original counterparts.
Nothing of what is here said is to be understood as curtailing in any
degree the number and nature and the scope and extent of the
amendments the Convention may deem proper to propose. Nor
does the Court propose to pass on the issue extensively and
brilliantly discussed by the parties as to whether or not the power or
duty to call a plebiscite for the ratification of the amendments to be
proposed by the Convention is exclusively legislative and as such
may be exercised only by the Congress or whether the said power
can be exercised concurrently by the Convention with the Congress.
In the view the Court takes of present case, it does not perceive
absolute necessity to resolve that question, grave and important as
it may be. Truth to tell, the lack of unanimity or even of a consensus
among the members of the Court in respect to this issue creates the
need for more study and deliberation, and as time is of the essence
in this case, for obvious reasons, November 8, 1971, the date set by
the Convention for the plebiscite it is calling, being nigh, We will
refrain from making any pronouncement or expressing Our views on
this question until a more appropriate case comes to Us. After all,
the basis of this decision is as important and decisive as any can be.
The ultimate question, therefore boils down to this: Is there any
limitation or condition in Section 1 of Article XV of the Constitution
which is violated by the act of the Convention of calling for a
plebiscite on the sole amendment contained in Organic Resolution
No. 1? The Court holds that there is, and it is the condition and
limitation that all the amendments to be proposed by the same
Convention must be submitted to the people in a single "election" or
plebiscite. It being indisputable that the amendment now proposed
to be submitted to a plebiscite is only the first amendment the
Convention propose We hold that the plebiscite being called for the
purpose of submitting the same for ratification of the people on
November 8, 1971 is not authorized by Section 1 of Article XV of the
Constitution, hence all acts of the Convention and the respondent
Comelec in that direction are null and void.
We have arrived at this conclusion for the following reasons:
1. The language of the constitutional provision aforequoted is
sufficiently clear. lt says distinctly that either Congress sitting as a
constituent assembly or a convention called for the purpose "may
propose amendments to this Constitution," thus placing no limit as
to the number of amendments that Congress or the Convention may
propose. The same provision also as definitely provides that
"such amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at which
the amendments are submitted to the people for their ratification,"
thus leaving no room for doubt as to how many "elections" or
plebiscites may be held to ratify any amendment or amendments
proposed by the same constituent assembly of Congress or
convention, and the provision unequivocably says "an election"
which means only one.
(2) Very little reflection is needed for anyone to realize the wisdom
and appropriateness of this provision. As already stated, amending
the Constitution is as serious and important an undertaking as
constitution making itself. Indeed, any amendment of the
Constitution is as important as the whole of it if only because the
Constitution has to be an integrated and harmonious instrument, if
it is to be viable as the framework of the government it establishes,
on the one hand, and adequately formidable and reliable as the
succinct but comprehensive articulation of the rights, liberties,
ideology, social ideals, and national and nationalistic policies and
aspirations of the people, on the other. lt is inconceivable how a
constitution worthy of any country or people can have any part
which is out of tune with its other parts..
7
A constitution is the work of the people thru its drafters assembled
by them for the purpose. Once the original constitution is approved,
the part that the people play in its amendment becomes harder, for
when a whole constitution is submitted to them, more or less they
can assumed its harmony as an integrated whole, and they can
either accept or reject it in its entirety. At the very least, they can
examine it before casting their vote and determine for themselves
from a study of the whole document the merits and demerits of all
or any of its parts and of the document as a whole. And so also,
when an amendment is submitted to them that is to form part of the
existing constitution, in like fashion they can study with deliberation
the proposed amendment in relation to the whole existing
constitution and or any of its parts and thereby arrive at an
intelligent judgment as to its acceptability.
This cannot happen in the case of the amendment in question.
Prescinding already from the fact that under Section 3 of the
questioned resolution, it is evident that no fixed frame of reference
is provided the voter, as to what finally will be concomitant
qualifications that will be required by the final draft of the
constitution to be formulated by the Convention of a voter to be
able to enjoy the right of suffrage, there are other considerations
which make it impossible to vote intelligently on the proposed
amendment, although it may already be observed that under
Section 3, if a voter would favor the reduction of the voting age to
eighteen under conditions he feels are needed under the
circumstances, and he does not see those conditions in the ballot
nor is there any possible indication whether they will ever be or not,
because Congress has reserved those for future action, what kind of
judgment can he render on the proposal?
But the situation actually before Us is even worse. No one knows
what changes in the fundamental principles of the constitution the
Convention will be minded to approve. To be more specific, we do
not have any means of foreseeing whether the right to vote would
be of any significant value at all. Who can say whether or not later
on the Convention may decide to provide for varying types of voters
for each level of the political units it may divide the country into. The
root of the difficulty in other words, lies in that the Convention is
precisely on the verge of introducing substantial changes, if not
radical ones, in almost every part and aspect of the existing social
and political order enshrined in the present Constitution. How can a
voter in the proposed plebiscite intelligently determine the effect of
the reduction of the voting age upon the different institutions which
the Convention may establish and of which presently he is not given
any idea?
We are certain no one can deny that in order that a plebiscite for the
ratification of an amendment to the Constitution may be validly
held, it must provide the voter not only sufficient time but ample
basis for an intelligent appraisal of the nature of the amendment per
se as well as its relation to the other parts of the Constitution with
which it has to form a harmonious whole. In the context of the
present state of things, where the Convention has hardly started
considering the merits of hundreds, if not thousands, of proposals to
amend the existing Constitution, to present to the people any single
proposal or a few of them cannot comply with this requirement. We
are of the opinion that the present Constitution does not
contemplate in Section 1 of Article XV a plebiscite or "election"
wherein the people are in the dark as to frame of reference they can
base their judgment on. We reject the rationalization that the
present Constitution is a possible frame of reference, for the simple
reason that intervenors themselves are stating that the sole purpose
of the proposed amendment is to enable the eighteen year olds to
take part in the election for the ratification of the Constitution to be
drafted by the Convention. In brief, under the proposed plebiscite,
there can be, in the language of Justice Sanchez, speaking for the six
members of the Court in Gonzales, supra, "no proper submission".
III
The Court has no desire at all to hamper and hamstring the noble
work of the Constitutional Convention. Much less does the Court
want to pass judgment on the merits of the proposal to allow these
eighteen years old to vote. But like the Convention, the Court has its
own duties to the people under the Constitution which is to decide
in appropriate cases with appropriate parties Whether or not the
mandates of the fundamental law are being complied with. In the
best light God has given Us, we are of the conviction that in
providing for the questioned plebiscite before it has finished, and
separately from, the whole draft of the constitution it has been
called to formulate, the Convention's Organic Resolution No. 1 and
all subsequent acts of the Convention implementing the same
violate the condition in Section 1, Article XV that there should only
be one "election" or plebiscite for the ratification of all the
amendments the Convention may propose. We are not denying any
right of the people to vote on the proposed amendment; We are
only holding that under Section 1, Article XV of the Constitution, the
same should be submitted to them not separately from but together
with all the other amendments to be proposed by this present
Convention.
IN VIEW OF ALL THE FOREGOING, the petition herein is granted.
Organic Resolution No. 1 of the Constitutional Convention of 1971
and the implementing acts and resolutions of the Convention,
insofar as they provide for the holding of a plebiscite on November
8, 1971, as well as the resolution of the respondent Comelec
complying therewith (RR Resolution No. 695) are hereby declared
null and void. The respondents Comelec, Disbursing Officer, Chief
Accountant and Auditor of the Constitutional Convention are hereby
enjoined from taking any action in compliance with the said organic
resolution. In view of the peculiar circumstances of this case, the
Court declares this decision immediately executory. No costs.
Concepcion, C.J., Teehankee, Villamor and Makasiar, JJ., concur.
CASE DIGEST
Political Law – Amendment to the Constitution
The Constitutional Convention of 1971 scheduled an advance
plebiscite on the proposal to lower the voting age from 21 to 18,
before the rest of the draft of the Constitution (then under revision)
had been approved. Tolentino et al filed a motion to prohibit such
plebiscite and the same was granted by the SC.
ISSUE: Whether or not the petition will prosper.
HELD: The propose amendments shall be approved by a majority of
the votes cast at an election at which the amendments are
submitted to the people for ratification. Election here is singular
which meant that the entire constitution must be submitted for
ratification at one plebiscite only. Furthermore, the people were not
given a proper “frame of reference” in arriving at their decision
because they had at the time no idea yet of what the rest of the
revised Constitution would ultimately be and therefore would be
unable to assess the proposed amendment in the light of the entire
document. This is the “Doctrine of Submission” which means that all
the proposed amendments to the Constitution shall be presented to
the people for the ratification or rejection at the same time, NOT
piecemeal.
Separate Opinios
MAKALINTAL, J., reserves his vote —
I reserve my vote. The resolution in question is voted down by a
sufficient majority of the Court on just one ground, which to be sure
achieves the result from the legal and constitutional viewpoint. I
entertain grave doubts as to the validity of the premises postulated
and conclusions reached in support of the dispositive portion of the
decision. However, considering the urgent nature of this case, the
lack of time to set down at length my opinion on the particular issue
upon which the decision is made to rest, and the fact that a dissent
on the said issue would necessarily be inconclusive unless the other
issues raised in the petition are also considered and ruled upon — a
task that would be premature and pointless at this time — I limit
myself to this reservation.
8
REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring:
We concur in the main opinion penned by Mr. Justice Barredo in his
usual inimitable, forthright and vigorous style. Like him, we do not
express our individual views on the wisdom of the proposed
constitutional amendment, which is not in issue here because it is a
matter that properly and exclusively addresses itself to the collective
judgment of the people.
We must, however, articulate two additional objections of
constitutional dimension which, although they would seem to be
superfluous because of the reach of the basic constitutional infirmity
discussed in extenso in the main opinion, nevertheless appear to us
to be just as fundamental in character and scope.
Assuming that the Constitutional Convention has power to propose
piecemeal amendments and submit each separately to the people
for ratification, we are nonetheless persuaded that (1) that there is
no proper submissionof title proposed amendment in question
within the meaning and intendment of Section 1 of Article XV of the
Constitution, and (2) that the forthcoming election is not the proper
election envisioned by the same provision of the Constitution.
Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs. Commission
on
Elections 1 and Philippine Constitution Association vs. Commission on
Elections, 2 expounded his view, with which we essentially agree, on
the minimum requirements that must be met in order that there can
be a proper submission to the people of a proposed constitutional
amendment. This is what he said:
... amendments must be fairly laid before the
people for their blessing or spurning. The people
are not to be mere rubber stamps. They are not
to vote blindly. They must be afforded ample
opportunity to mull over the original provisions,
compare them with the proposed amendments,
and try to reach a conclusion as the dictates of
their conscience suggest, free from the incubus
of extraneous or possibly insidious influences.
We believe the word "submitted" can only mean
that the government, within its maximum
capabilities, should strain every effort to inform
citizen of the provisions to be amended, and the
proposed amendments and the meaning, nature
and effects thereof. By this, we are not to be
understood as saying that, if one citizen or 100
citizens or 1,000 citizens cannot be reached,
then there is no submission within the meaning
of the word as intended by the framers of the
Constitution. What the Constitution in effect
directs is that the government, in submitting an
amendment for ratification, should put every
instrumentality or agency within its structural
framework to enlighten the people, educate
them with respect to their act of ratification or
rejection. For we have earlier stated, one thing
is submission and another is ratification. There
must be fair submission, intelligent consent or
rejection." .
The second constitutional objection was given expression by one of
the writers of this concurring opinion, in the following words:
I find it impossible to believe that it was ever
intended by its framers that such amendment
should be submitted and ratified by just "a
majority of the votes cast at an election at which
the amendments are submitted to the people for
their ratification", if the concentration of the
people's attention thereon is to be diverted by
other extraneous issues, such as the choice of
local and national officials. The framers of the
Constitution, aware of the fundamental
character thereof, and of the need of giving it as
much stability as is practicable, could have only
meant that any amendments thereto should be
debated, considered and voted upon an election
wherein the people could devote undivided
attention to the subject. 4
True it is that the question posed by the proposed amendment, "Do
you or do you not want the 18-year old to be allowed to vote?,"
would seem to be uncomplicated and innocuous. But it is one of
life's verities that things which appear to be simple may turn out not
to be so simple after all.
A number of doubts or misgivings could conceivably and logically
assail the average voter. Why should the voting age be lowered at
all, in the first place? Why should the new voting age be precisely 18
years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the
18-year old as mature as the 21-year old so that there is no need of
an educational qualification to entitle him to vote? In this age of
permissiveness and dissent, can the 18-year old be relied upon to
vote with judiciousness when the 21-year old, in the past elections,
has not performed so well? If the proposed amendment is voted
down by the people, will the Constitutional Convention insist on the
said amendment? Why is there an unseemly haste on the part of the
Constitutional Convention in having this particular proposed
amendment ratified at this particular time? Do some of the
members of the Convention have future political plans which they
want to begin to subserve by the approval this year of this
amendment? If this amendment is approved, does it thereby mean
that the 18-year old should now also shoulder the moral and legal
responsibilities of the 21-year old? Will he be required to render
compulsory military service under the colors? Will the age of
contractual consent be reduced to 18 years? If I vote against this
amendment, will I not be unfair to my own child who will be 18
years old, come 1973? .
The above are just samplings from here, there and everywhere —
from a domain (of searching questions) the bounds of which are not
immediately ascertainable. Surely, many more questions can be
added to the already long litany. And the answers cannot be had
except as the questions are debated fully, pondered upon
purposefully, and accorded undivided attention.
Scanning the contemporary scene, we say that the people are not,
and by election time will not be, sufficiently informed of the
meaning, nature and effects of the proposed constitutional
amendment. They have not been afforded ample time to deliberate
thereon conscientiously. They have been and are effectively
distracted from a full and dispassionate consideration of the merits
and demerits of the proposed amendment by their traditional
pervasive involvement in local elections and politics. They cannot
thus weigh in tranquility the need for and the wisdom of the
proposed amendment.
Upon the above disquisition, it is our considered view that the
intendment of the words, "at an election at which the amendments
are submitted to the people for their ratification," embodied in
Section 1 of Article XV of the Constitution, has not been met.
FERNANDO, J., concurring and dissenting:
There is much to be said for the opinion of the Court penned by
Justice Barredo, characterized by clarity and vigor, its manifestation
of fealty to the rule of law couched in eloquent language, that
commands assent. As the Constitution occupies the topmost rank in
the hierarchy of legal norms, Congress and Constitutional
Convention alike, no less than this Court, must bow to its
supremacy. Thereby constitutionalism asserts itself. With the view I
entertain of what is allowable, if not indeed required by the
Constitution, my conformity does not extend as far as the
acceptance of the conclusion reached. The question presented is
indeed novel, not being controlled by constitutional prescription,
definite and certain. Under the circumstances, with the express
recognition in the Constitution of the powers of the Constitutional
Convention to propose amendments, I cannot discern any objection
to the validity of its action there being no legal impediment that
9
would call for its nullification. Such an approach all the more
commends itself to me considering that what was sought to be done
is to refer the matter to the people in whom, according to our
Constitution, sovereignty resides. It is in that sense that, with due
respect, I find myself unable to join my brethren.
I. It is understandable then why the decisive issue posed could not
be resolved by reliance on, implicit in the petition and the answer of
intervenors, such concepts as legislative control of the constitutional
convention referred to by petitioner on the one hand or, on the
other, the theory of conventional sovereignty favored by
intervenors. It is gratifying to note that during the oral argument of
petitioner and counsel for respondents and intervenors, there
apparently was a retreat from such extreme position, all parties, as
should be the case, expressly avowing the primacy of the
Constitution, the applicable provision of which as interpreted by this
Court, should be controlling on both Congress and the Convention. It
cannot be denied though that in at least one American state, that is
Pennsylvania, there were decisions announcing the doctrine that the
powers to be exercised by a constitutional convention are
dependent on a legislative grant, in the absence of any authority
conferred directly by the fundamental law. The result is a
convention that is subordinate to the lawmaking body. Its field of
competence is circumscribed. It has to look to the latter for the
delimitation of its permissible scope of activity. It is thus made
subordinate to the legislature. Nowhere has such a view been more
vigorously expressed than in the Pennsylvania case of Wood's
Appeal. 1 Its holding though finds no support under our
constitutional provision.
It does not thereby follow that while free from legislative control, a
constitutional convention may lay claim to an attribute sovereign in
character. The Constitution is quite explicit that it is to the people,
and to the people alone, in whom sovereignty resides. 2 Such a
prerogative is therefore withheld from a convention. It is an agency
entrusted with the responsibility of high import and significance it is
true; it is denied unlimited legal competence though. That is what
sovereignty connotes. It has to yield to the superior force of the
Constitution. There can then be no basis for the exaggerated
pretension that it is an alter ego of the people. It is to be admitted
that there are some American state decisions, the most notable of
which is Sproule v. Fredericks, 3 a Mississippi case, that dates back to
1892, that yield a different conclusion. The doctrine therein
announced cannot bind us. Our Constitution makes clear that the
power of a constitutional convention is not sovereign. It is
appropriately termed constituent, limited as it is to the purpose of
drafting a constitution or proposing revision or amendments to one
in existence, subject in either case to popular approval.
The view that commends itself for acceptance is that legislature and
constitutional convention, alike recognized by the Constitution, are
coordinate, there being no superiority of one over the other. Insofar
as the constituent power of proposing amendments to the
Constitution is concerned, a constitutional convention enjoys a wide
sphere of autonomy consistently with the Constitution which can be
the only source of valid restriction on its competence. It is true it is
to the legislative body that the call to a convention must proceed,
but once convened, it cannot in any wise be interfered with, much
less controlled by Congress. A contrary conclusion would impair its
usefulness for the delicate, and paramount task assigned to it. A
convention then is to be looked upon as if it were one of the three
coordinate departments which under the principle of separation of
powers is supreme within its field and has exclusive cognizance of
matters properly subject to its jurisdiction. A succinct statement of
the appropriate principle that should govern the relationship
between a constitutional convention and a legislative body under
American law is that found in Orfield's work. Thus: "The earliest view
seems to have been that a convention was absolute. The convention
was sovereign and subject to no restraint. On the other hand,
Jameson, whose views have been most frequently cited in decisions,
viewed a convention as a body with strictly limited powers, and
subject to the restrictions imposed on it by the legislative call. A
third and intermediate view is that urged by Dodd — that a
convention, though not sovereign, is a body independent of the
legislature; it is bound by the existing constitution, but not by the
acts of the legislature, as to the extent of its constituent power. This
view has become increasingly prevalent in the state decisions." 4
2. It is to the Constitution, and to the Constitution alone then, as so
vigorously stressed in the opinion of the Court, that any limitation on
the power the Constitutional, Convention must find its source. I turn
to its Article XV. It reads: "The Congress in joint session assembled,
by a vote of three fourths of all the Members of the Senate and of
the House of Representatives voting separately, may propose
amendments to this Constitution or call a convention for that
purpose. Such amendments shall be valid as part of this Constitution
when approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for their
ratification."
Clearly, insofar as amendments, including revision, are concerned,
there are two steps, proposal and thereafter ratification. Thus as to
the former, two constituent bodies are provided for, the Congress of
the Philippines in the mode therein provided, and a constitutional
convention that may be called into being. Once assembled, a
constitutional convention, like the Congress of the Philippines,
possesses in all its plenitude the constituent power. Inasmuch as
Congress may determine what amendments it would have the
people ratify and thereafter take all the steps necessary so that the
approval or disapproval of the electorate may be obtained, the
convention likewise, to my mind, should be deemed possessed of all
the necessary authority to assure that whatever amendments it
seeks to introduce would be submitted to the people at an election
called for that purpose. It would appear to me that to view the
convention as being denied a prerogative which is not withheld from
Congress as a constituent body would be to place it in an inferior
category. Such a proposition I do not find acceptable. Congress and
constitutional convention are agencies for submitting proposals
under the fundamental law. A power granted to one should not be
denied the other. No justification for such a drastic differentiation
either in theory or practice exists.
Such a conclusion has for me the added reinforcement that to
require ordinary legislation before the convention could be enabled
to have its proposals voted on by the people would be to place a
power in the legislative and executive branches that could, whether
by act or omission, result in the frustration of the amending process.
I am the first to admit that such likelihood is remote, but if such a
risk even if minimal could be avoided, it should be, unless the
compelling force of an applicable constitutional provision requires
otherwise. Considering that a constitutional convention is not
precluded from imposing additional restrictions on the powers of
either the executive or legislative branches, or, for that matter, the
judiciary, it would appear to be the better policy to interpret Article
XV in such a way that would not sanction such restraint on the
authority that must be recognized as vested in a constitutional
convention. There is nothing in such a view that to my mind would
collide with a reasonable interpretation of Article XV. It certainly is
one way by which freed from pernicious abstractions, it would be
easier to accommodate a constitution to the needs of an unfolding
future. That is to facilitate its being responsive to the challenge that
time inevitably brings in its wake.
From such an approach then, I am irresistibly led to the conclusion
that the challenged resolution was well within the power of the
convention. That would be to brush aside the web of unreality spun
from a too-restrictive mode of appraising the legitimate scope of its
competence. That would be, for me, to give added vigor and life to
the conferment of authority vested in it, attended by such grave and
awesome responsibility.
3. It becomes pertinent to inquire then whether the last sentence of
Article XV providing that such amendment shall be valid when
submitted and thereafter approved by the majority of the votes cast
by the people at an election is a bar to the proposed submission. It is
the conclusion arrived at by my brethren that there is to be only one
election and that therefore the petition must be sustained as only
when the convention has finished its work should all amendments
proposed be submitted for ratification. That is not for me, and I say
this with respect, the appropriate interpretation. It is true that the
10
Constitution uses the word "election" in the singular, but that is not
decisive. No undue reliance should be accorded rules of grammar;
they do not exert a compelling force in constitutional interpretation.
Meaning is to be sought not from specific language in the singular
but from the mosaic of significance derived from the total context. It
could be, if it were not thus, self-defeating. Such a mode of
construction does not commend itself. The words used in the
Constitution are not inert; they derive vitality from the obvious
purposes at which they are aimed. Petitioner's stress on linguistic
refinement, while not implausible does not, for me, carry the day.
It was likewise argued by petitioner that the proposed amendment
is provisional and therefore is not such as was contemplated in this
article. I do not find such contention convincing. The fact that the
Constitutional Convention did seek to consult the wishes of the
people by the proposed submission of a tentative amendatory
provision is an argument for its validity. It might be said of course
that until impressed with finality, an amendment is not to be passed
upon by the electorate. There is plausibility in such a view. A literal
reading of the Constitution would support it. The spirit that informs
it though would not, for me, be satisfied. From its silence I deduce
the inference that there is no repugnancy to the fundamental law
when the Constitutional Convention ascertains the popular will. In
that sense, the Constitution, to follow the phraseology of Thomas
Reed Powel, is not silently silent but silently vocal. What I deem the
more important consideration is that while a public official, as an
agent, has to locate his source of authority in either Constitution or
statute, the people, as the principal, can only be limited in the
exercise of their sovereign powers by the express terms of the
Constitution. A concept to the contrary would to my way of thinking
be inconsistent with the fundamental principle that it is in the
people, and the people alone, that sovereignty resides.
4. The constitutional Convention having acted within the scope of its
authority, an action to restrain or prohibit respondent Commission
on Elections from conducting the plebiscite does not lie. It should
not be lost sight of that the Commission on Elections in thus being
charged with such a duty does not act in its capacity as the
constitutional agency to take charge of all laws relative to the
conduct of election. That is a purely executive function vested in it
under Article X of the Constitution. 5 It is not precluded from
assisting the Constitutional Convention if pursuant to its
competence to amend the fundamental law it seeks, as in this case,
to submit a proposal, even if admittedly tentative, to the electorate
to ascertain its verdict. At any rate, it may be implied that under the
1971 Constitutional Convention Act, it is not to turn a deaf ear to a
summons from the Convention to aid it in the legitimate discharge
of its functions. 6
The aforesaid considerations, such as they are, but which for me
have a force that I mind myself unable to overcome, leave me no
alternative but to dissent from my brethren, with due
acknowledgement of course that from their basic premises, the
conclusion arrived at by them cannot be characterized as in any wise
bereft of a persuasive quality of a high order.
Case Digest
Separate Opinions
MAKALINTAL, J., reserves his vote —
I reserve my vote. The resolution in question is voted down by a
sufficient majority of the Court on just one ground, which to be sure
achieves the result from the legal and constitutional viewpoint. I
entertain grave doubts as to the validity of the premises postulated
and conclusions reached in support of the dispositive portion of the
decision. However, considering the urgent nature of this case, the
lack of time to set down at length my opinion on the particular issue
upon which the decision is made to rest, and the fact that a dissent
on the said issue would necessarily be inconclusive unless the other
issues raised in the petition are also considered and ruled upon — a
task that would be premature and pointless at this time — I limit
myself to this reservation.
REYES, J.B.L., ZALDIVAR, CASTRO and MAKASIAR, JJ., concurring:
We concur in the main opinion penned by Mr. Justice Barredo in his
usual inimitable, forthright and vigorous style. Like him, we do not
express our individual views on the wisdom of the proposed
constitutional amendment, which is not in issue here because it is a
matter that properly and exclusively addresses itself to the collective
judgment of the people.
We must, however, articulate two additional objections of
constitutional dimension which, although they would seem to be
superfluous because of the reach of the basic constitutional infirmity
discussed in extenso in the main opinion, nevertheless appear to us
to be just as fundamental in character and scope.
Assuming that the Constitutional Convention has power to propose
piecemeal amendments and submit each separately to the people
for ratification, we are nonetheless persuaded that (1) that there is
no proper submissionof title proposed amendment in question
within the meaning and intendment of Section 1 of Article XV of the
Constitution, and (2) that the forthcoming election is not the proper
election envisioned by the same provision of the Constitution.
Mr. Justice C. V. Sanchez, in his dissent in Gonzales vs. Commission
on
Elections 1 and Philippine Constitution Association vs. Commission on
Elections, 2 expounded his view, with which we essentially agree, on
the minimum requirements that must be met in order that there can
be a proper submission to the people of a proposed constitutional
amendment. This is what he said:
... amendments must be fairly laid before the
people for their blessing or spurning. The people
are not to be mere rubber stamps. They are not
to vote blindly. They must be afforded ample
opportunity to mull over the original provisions,
compare them with the proposed amendments,
and try to reach a conclusion as the dictates of
their conscience suggest, free from the incubus
of extraneous or possibly insidious influences.
We believe the word "submitted" can only mean
that the government, within its maximum
capabilities, should strain every effort to inform
citizen of the provisions to be amended, and the
proposed amendments and the meaning, nature
and effects thereof. By this, we are not to be
understood as saying that, if one citizen or 100
citizens or 1,000 citizens cannot be reached,
then there is no submission within the meaning
of the word as intended by the framers of the
Constitution. What the Constitution in effect
directs is that the government, in submitting an
amendment for ratification, should put every
instrumentality or agency within its structural
framework to enlighten the people, educate
them with respect to their act of ratification or
rejection. For we have earlier stated, one thing
is submission and another is ratification. There
must be fair submission, intelligent consent or
rejection." .
The second constitutional objection was given expression by one of
the writers of this concurring opinion, in the following words:
I find it impossible to believe that it was ever
intended by its framers that such amendment
should be submitted and ratified by just "a
majority of the votes cast at an election at which
the amendments are submitted to the people for
their ratification", if the concentration of the
people's attention thereon is to be diverted by
11
 other extraneous issues, such as the choice of
local and national officials. The framers of the
Constitution, aware of the fundamental
character thereof, and of the need of giving it as
much stability as is practicable, could have only
meant that any amendments thereto should be
debated, considered and voted upon an election
wherein the people could devote undivided
attention to the subject. 4
True it is that the question posed by the proposed amendment, "Do
you or do you not want the 18-year old to be allowed to vote?,"
would seem to be uncomplicated and innocuous. But it is one of
life's verities that things which appear to be simple may turn out not
to be so simple after all.
A number of doubts or misgivings could conceivably and logically
assail the average voter. Why should the voting age be lowered at
all, in the first place? Why should the new voting age be precisely 18
years, and not 19 or 20? And why not 17? Or even 16 or 15? Is the
18-year old as mature as the 21-year old so that there is no need of
an educational qualification to entitle him to vote? In this age of
permissiveness and dissent, can the 18-year old be relied upon to
vote with judiciousness when the 21-year old, in the past elections,
has not performed so well? If the proposed amendment is voted
down by the people, will the Constitutional Convention insist on the
said amendment? Why is there an unseemly haste on the part of the
Constitutional Convention in having this particular proposed
amendment ratified at this particular time? Do some of the
members of the Convention have future political plans which they
want to begin to subserve by the approval this year of this
amendment? If this amendment is approved, does it thereby mean
that the 18-year old should now also shoulder the moral and legal
responsibilities of the 21-year old? Will he be required to render
compulsory military service under the colors? Will the age of
contractual consent be reduced to 18 years? If I vote against this
amendment, will I not be unfair to my own child who will be 18
years old, come 1973? .
The above are just samplings from here, there and everywhere —
from a domain (of searching questions) the bounds of which are not
immediately ascertainable. Surely, many more questions can be
added to the already long litany. And the answers cannot be had
except as the questions are debated fully, pondered upon
purposefully, and accorded undivided attention.
Scanning the contemporary scene, we say that the people are not,
and by election time will not be, sufficiently informed of the
meaning, nature and effects of the proposed constitutional
amendment. They have not been afforded ample time to deliberate
thereon conscientiously. They have been and are effectively
distracted from a full and dispassionate consideration of the merits
and demerits of the proposed amendment by their traditional
pervasive involvement in local elections and politics. They cannot
thus weigh in tranquility the need for and the wisdom of the
proposed amendment.
Upon the above disquisition, it is our considered view that the
intendment of the words, "at an election at which the amendments
are submitted to the people for their ratification," embodied in
Section 1 of Article XV of the Constitution, has not been met.
FERNANDO, J., concurring and dissenting:
There is much to be said for the opinion of the Court penned by
Justice Barredo, characterized by clarity and vigor, its manifestation
of fealty to the rule of law couched in eloquent language, that
commands assent. As the Constitution occupies the topmost rank in
the hierarchy of legal norms, Congress and Constitutional
Convention alike, no less than this Court, must bow to its
supremacy. Thereby constitutionalism asserts itself. With the view I
entertain of what is allowable, if not indeed required by the
Constitution, my conformity does not extend as far as the
acceptance of the conclusion reached. The question presented is
indeed novel, not being controlled by constitutional prescription,
definite and certain. Under the circumstances, with the express
recognition in the Constitution of the powers of the Constitutional
Convention to propose amendments, I cannot discern any objection
to the validity of its action there being no legal impediment that
would call for its nullification. Such an approach all the more
commends itself to me considering that what was sought to be done
is to refer the matter to the people in whom, according to our
Constitution, sovereignty resides. It is in that sense that, with due
respect, I find myself unable to join my brethren.
I. It is understandable then why the decisive issue posed could not
be resolved by reliance on, implicit in the petition and the answer of
intervenors, such concepts as legislative control of the constitutional
convention referred to by petitioner on the one hand or, on the
other, the theory of conventional sovereignty favored by
intervenors. It is gratifying to note that during the oral argument of
petitioner and counsel for respondents and intervenors, there
apparently was a retreat from such extreme position, all parties, as
should be the case, expressly avowing the primacy of the
Constitution, the applicable provision of which as interpreted by this
Court, should be controlling on both Congress and the Convention. It
cannot be denied though that in at least one American state, that is
Pennsylvania, there were decisions announcing the doctrine that the
powers to be exercised by a constitutional convention are
dependent on a legislative grant, in the absence of any authority
conferred directly by the fundamental law. The result is a
convention that is subordinate to the lawmaking body. Its field of
competence is circumscribed. It has to look to the latter for the
delimitation of its permissible scope of activity. It is thus made
subordinate to the legislature. Nowhere has such a view been more
vigorously expressed than in the Pennsylvania case of Wood's
Appeal. 1 Its holding though finds no support under our
constitutional provision.
It does not thereby follow that while free from legislative control, a
constitutional convention may lay claim to an attribute sovereign in
character. The Constitution is quite explicit that it is to the people,
and to the people alone, in whom sovereignty resides. 2 Such a
prerogative is therefore withheld from a convention. It is an agency
entrusted with the responsibility of high import and significance it is
true; it is denied unlimited legal competence though. That is what
sovereignty connotes. It has to yield to the superior force of the
Constitution. There can then be no basis for the exaggerated
pretension that it is an alter ego of the people. It is to be admitted
that there are some American state decisions, the most notable of
which is Sproule v. Fredericks, 3 a Mississippi case, that dates back to
1892, that yield a different conclusion. The doctrine therein
announced cannot bind us. Our Constitution makes clear that the
power of a constitutional convention is not sovereign. It is
appropriately termed constituent, limited as it is to the purpose of
drafting a constitution or proposing revision or amendments to one
in existence, subject in either case to popular approval.
The view that commends itself for acceptance is that legislature and
constitutional convention, alike recognized by the Constitution, are
coordinate, there being no superiority of one over the other. Insofar
as the constituent power of proposing amendments to the
Constitution is concerned, a constitutional convention enjoys a wide
sphere of autonomy consistently with the Constitution which can be
the only source of valid restriction on its competence. It is true it is
to the legislative body that the call to a convention must proceed,
but once convened, it cannot in any wise be interfered with, much
less controlled by Congress. A contrary conclusion would impair its
usefulness for the delicate, and paramount task assigned to it. A
convention then is to be looked upon as if it were one of the three
coordinate departments which under the principle of separation of
powers is supreme within its field and has exclusive cognizance of
matters properly subject to its jurisdiction. A succinct statement of
the appropriate principle that should govern the relationship
between a constitutional convention and a legislative body under
American law is that found in Orfield's work. Thus: "The earliest view
seems to have been that a convention was absolute. The convention
was sovereign and subject to no restraint. On the other hand,
Jameson, whose views have been most frequently cited in decisions,
viewed a convention as a body with strictly limited powers, and
subject to the restrictions imposed on it by the legislative call. A
12
third and intermediate view is that urged by Dodd — that a
convention, though not sovereign, is a body independent of the
legislature; it is bound by the existing constitution, but not by the
acts of the legislature, as to the extent of its constituent power. This
view has become increasingly prevalent in the state decisions." 4
2. It is to the Constitution, and to the Constitution alone then, as so
vigorously stressed in the opinion of the Court, that any limitation on
the power the Constitutional, Convention must find its source. I turn
to its Article XV. It reads: "The Congress in joint session assembled,
by a vote of three fourths of all the Members of the Senate and of
the House of Representatives voting separately, may propose
amendments to this Constitution or call a convention for that
purpose. Such amendments shall be valid as part of this Constitution
when approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for their
ratification."
Clearly, insofar as amendments, including revision, are concerned,
there are two steps, proposal and thereafter ratification. Thus as to
the former, two constituent bodies are provided for, the Congress of
the Philippines in the mode therein provided, and a constitutional
convention that may be called into being. Once assembled, a
constitutional convention, like the Congress of the Philippines,
possesses in all its plenitude the constituent power. Inasmuch as
Congress may determine what amendments it would have the
people ratify and thereafter take all the steps necessary so that the
approval or disapproval of the electorate may be obtained, the
convention likewise, to my mind, should be deemed possessed of all
the necessary authority to assure that whatever amendments it
seeks to introduce would be submitted to the people at an election
called for that purpose. It would appear to me that to view the
convention as being denied a prerogative which is not withheld from
Congress as a constituent body would be to place it in an inferior
category. Such a proposition I do not find acceptable. Congress and
constitutional convention are agencies for submitting proposals
under the fundamental law. A power granted to one should not be
denied the other. No justification for such a drastic differentiation
either in theory or practice exists.
Such a conclusion has for me the added reinforcement that to
require ordinary legislation before the convention could be enabled
to have its proposals voted on by the people would be to place a
power in the legislative and executive branches that could, whether
by act or omission, result in the frustration of the amending process.
I am the first to admit that such likelihood is remote, but if such a
risk even if minimal could be avoided, it should be, unless the
compelling force of an applicable constitutional provision requires
otherwise. Considering that a constitutional convention is not
precluded from imposing additional restrictions on the powers of
either the executive or legislative branches, or, for that matter, the
judiciary, it would appear to be the better policy to interpret Article
XV in such a way that would not sanction such restraint on the
authority that must be recognized as vested in a constitutional
convention. There is nothing in such a view that to my mind would
collide with a reasonable interpretation of Article XV. It certainly is
one way by which freed from pernicious abstractions, it would be
easier to accommodate a constitution to the needs of an unfolding
future. That is to facilitate its being responsive to the challenge that
time inevitably brings in its wake.
From such an approach then, I am irresistibly led to the conclusion
that the challenged resolution was well within the power of the
convention. That would be to brush aside the web of unreality spun
from a too-restrictive mode of appraising the legitimate scope of its
competence. That would be, for me, to give added vigor and life to
the conferment of authority vested in it, attended by such grave and
awesome responsibility.
3. It becomes pertinent to inquire then whether the last sentence of
Article XV providing that such amendment shall be valid when
submitted and thereafter approved by the majority of the votes cast
by the people at an election is a bar to the proposed submission. It is
the conclusion arrived at by my brethren that there is to be only one
election and that therefore the petition must be sustained as only
when the convention has finished its work should all amendments
proposed be submitted for ratification. That is not for me, and I say
this with respect, the appropriate interpretation. It is true that the
Constitution uses the word "election" in the singular, but that is not
decisive. No undue reliance should be accorded rules of grammar;
they do not exert a compelling force in constitutional interpretation.
Meaning is to be sought not from specific language in the singular
but from the mosaic of significance derived from the total context. It
could be, if it were not thus, self-defeating. Such a mode of
construction does not commend itself. The words used in the
Constitution are not inert; they derive vitality from the obvious
purposes at which they are aimed. Petitioner's stress on linguistic
refinement, while not implausible does not, for me, carry the day.
It was likewise argued by petitioner that the proposed amendment
is provisional and therefore is not such as was contemplated in this
article. I do not find such contention convincing. The fact that the
Constitutional Convention did seek to consult the wishes of the
people by the proposed submission of a tentative amendatory
provision is an argument for its validity. It might be said of course
that until impressed with finality, an amendment is not to be passed
upon by the electorate. There is plausibility in such a view. A literal
reading of the Constitution would support it. The spirit that informs
it though would not, for me, be satisfied. From its silence I deduce
the inference that there is no repugnancy to the fundamental law
when the Constitutional Convention ascertains the popular will. In
that sense, the Constitution, to follow the phraseology of Thomas
Reed Powel, is not silently silent but silently vocal. What I deem the
more important consideration is that while a public official, as an
agent, has to locate his source of authority in either Constitution or
statute, the people, as the principal, can only be limited in the
exercise of their sovereign powers by the express terms of the
Constitution. A concept to the contrary would to my way of thinking
be inconsistent with the fundamental principle that it is in the
people, and the people alone, that sovereignty resides.
4. The constitutional Convention having acted within the scope of its
authority, an action to restrain or prohibit respondent Commission
on Elections from conducting the plebiscite does not lie. It should
not be lost sight of that the Commission on Elections in thus being
charged with such a duty does not act in its capacity as the
constitutional agency to take charge of all laws relative to the
conduct of election. That is a purely executive function vested in it
under Article X of the Constitution. 5 It is not precluded from
assisting the Constitutional Convention if pursuant to its
competence to amend the fundamental law it seeks, as in this case,
to submit a proposal, even if admittedly tentative, to the electorate
to ascertain its verdict. At any rate, it may be implied that under the
1971 Constitutional Convention Act, it is not to turn a deaf ear to a
summons from the Convention to aid it in the legitimate discharge
of its functions. 6
The aforesaid considerations, such as they are, but which for me
have a force that I mind myself unable to overcome, leave me no
alternative but to dissent from my brethren, with due
acknowledgement of course that from their basic premises, the
conclusion arrived at by them cannot be characterized as in any wise
bereft of a persuasive quality of a high order.
13
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-28196 November 9, 1967
RAMON A. GONZALES, petitioner,
vs.
COMMISSION ON ELECTIONS, DIRECTOR OF PRINTING and AUDITOR
GENERAL, respondents.
G.R. No. L-28224 November 9, 1967
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
No. 28196:
Ramon A. Gonzales for and in his own behalf as petitioner.
Juan T. David as amicus curiae
Office of the Solicitor General for respondents.
No. 28224:
Salvador Araneta for petitioner.
Office of the Solicitor General for respondent.
CONCEPCION, C.J.:
G. R. No. L-28196 is an original action for prohibition, with
preliminary injunction.
Petitioner therein prays for judgment:
1) Restraining: (a) the Commission on Elections from enforcing
Republic Act No. 4913, or from performing any act that will result in
the holding of the plebiscite for the ratification of the constitutional
amendments proposed in Joint Resolutions Nos. 1 and 3 of the two
Houses of Congress of the Philippines, approved on March 16, 1967;
(b) the Director of Printing from printing ballots, pursuant to said Act
and Resolutions; and (c) the Auditor General from passing in audit
any disbursement from the appropriation of funds made in said
Republic Act No. 4913; and
2) declaring said Act unconstitutional and void.
The main facts are not disputed. On March 16, 1967, the Senate and
the House of Representatives passed the following resolutions:
1. R. B. H. (Resolution of Both Houses) No. 1, proposing that Section
5, Article VI, of the Constitution of the Philippines, be amended so as
to increase the membership of the House of Representatives from a
maximum of 120, as provided in the present Constitution, to a
maximum of 180, to be apportioned among the several provinces as
nearly as may be according to the number of their respective
inhabitants, although each province shall have, at least, one (1)
member;
2. R. B. H. No. 2, calling a convention to propose amendments to
said Constitution, the convention to be composed of two (2) elective
delegates from each representative district, to be "elected in the
general elections to be held on the second Tuesday of November,
1971;" and
3. R. B. H. No. 3, proposing that Section 16, Article VI, of the same
Constitution, be amended so as to authorize Senators and members
of the House of Representatives to become delegates to the
aforementioned constitutional convention, without forfeiting their
respective seats in Congress.
Subsequently, Congress passed a bill, which, upon approval by the
President, on June 17, 1967, became Republic Act No. 4913,
providing that the amendments to the Constitution proposed in the
aforementioned Resolutions No. 1 and 3 be submitted, for approval
by the people, at the general elections which shall be held on
November 14, 1967.
The petition in L-28196 was filed on October 21, 1967. At the
hearing thereof, on October 28, 1967, the Solicitor General
appeared on behalf of respondents. Moreover, Atty. Juan T. David
and counsel for the Philippine Constitution Association —
hereinafter referred to as the PHILCONSA — were allowed to argue
as amici curiae. Said counsel for the PHILCONSA, Dr. Salvador
Araneta, likewise prayed that the decision in this case be deferred
until after a substantially identical case brought by said organization
before the Commission on Elections,1 which was expected to decide
it any time, and whose decision would, in all probability, be
appealed to this Court — had been submitted thereto for final
determination, for a joint decision on the identical issues raised in
both cases. In fact, on October 31, 1967, the PHILCONSA filed with
this Court the petition in G. R. No. L-28224, for review
by certiorari of the resolution of the Commission on
Elections2 dismissing the petition therein. The two (2) cases were
deemed submitted for decision on November 8, 1967, upon the
filing of the answer of respondent, the memorandum of the
petitioner and the reply memorandum of respondent in L-28224.
Ramon A. Gonzales, the petitioner in L-28196, is admittedly a Filipino
citizen, a taxpayer, and a voter. He claims to have instituted case L-
28196 as a class unit, for and in behalf of all citizens, taxpayers, and
voters similarly situated. Although respondents and the Solicitor
General have filed an answer denying the truth of this allegation,
upon the ground that they have no knowledge or information to
form a belief as to the truth thereof, such denial would appear to be
a perfunctory one. In fact, at the hearing of case L-28196, the
Solicitor General expressed himself in favor of a judicial
determination of the merits of the issued raised in said case.
The PHILCONSA, petitioner in L-28224, is admittedly a corporation
duly organized and existing under the laws of the Philippines, and a
civic, non-profit and non-partisan organization the objective of
which is to uphold the rule of law in the Philippines and to defend its
Constitution against erosions or onslaughts from whatever source.
Despite his aforementioned statement in L-28196, in his answer in L-
28224 the Solicitor General maintains that this Court has no
jurisdiction over the subject-matter of L-28224, upon the ground
that the same is "merely political" as held in Mabanag vs. Lopez
Vito.3 Senator Arturo M. Tolentino, who appeared before the
Commission on Elections and filed an opposition to the PHILCONSA
petition therein, was allowed to appear before this Court and
objected to said petition upon the ground: a) that the Court has no
jurisdiction either to grant the relief sought in the petition, or to pass
upon the legality of the composition of the House of
Representatives; b) that the petition, if granted, would, in effect,
render in operational the legislative department; and c) that "the
failure of Congress to enact a valid reapportionment law . . . does
not have the legal effect of rendering illegal the House of
Representatives elected thereafter, nor of rendering its acts null and
void."
JURISDICTION
As early as Angara vs. Electoral Commission,4 this Court — speaking
through one of the leading members of the Constitutional
Convention and a respected professor of Constitutional Law, Dr. Jose
P. Laurel — declared that "the judicial department is the only
constitutional organ which can be called upon to determine the
proper allocation of powers between the several departments and
among the integral or constituent units thereof." It is true that
in Mabanag vs. Lopez Vito,5 this Court characterizing the issue
submitted thereto as a political one, declined to pass upon the
question whether or not a given number of votes cast in Congress in
favor of a proposed amendment to the Constitution — which was
being submitted to the people for ratification — satisfied the three-
fourths vote requirement of the fundamental law. The force of this
14
precedent has been weakened, however, by Suanes vs. Chief
Accountant of the Senate,6 Avelino vs. Cuenco,7 Tañada vs.
Cuenco,8 and Macias vs. Commission on Elections.9 In the first, we
held that the officers and employees of the Senate Electoral Tribunal
are under its supervision and control, not of that of the Senate
President, as claimed by the latter; in the second, this Court
proceeded to determine the number of Senators necessary for
a quorum in the Senate; in the third, we nullified the election, by
Senators belonging to the party having the largest number of votes
in said chamber, purporting to act on behalf of the party having the
second largest number of votes therein, of two (2) Senators
belonging to the first party, as members, for the second party, of
the, Senate Electoral Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to apportion the
representative districts for the House of Representatives, upon the
ground that the apportionment had not been made as may be
possible according to the number of inhabitants of each province.
Thus we rejected the theory, advanced in these four (4) cases, that
the issues therein raised were political questions the determination
of which is beyond judicial review.
Indeed, the power to amend the Constitution or to propose
amendments thereto is not included in the general grant of
legislative powers to Congress.10 It is part of the inherent powers of
the people — as the repository of sovereignty in a republican state,
such as ours11 — to make, and, hence, to amend their own
Fundamental Law. Congress may propose amendments to the
Constitution merely because the same explicitly grants such
power.12Hence, when exercising the same, it is said that Senators
and Members of the House of Representatives act, not as members
of Congress, but as component elements of a constituent assembly.
When acting as such, the members of Congress derive their
authority from the Constitution, unlike the people, when performing
the same function,13 for their authority does not emanate from the
Constitution — they are the very source of all powers of
government, including the Constitution itself .
Since, when proposing, as a constituent assembly, amendments to
the Constitution, the members of Congress derive their authority
from the Fundamental Law, it follows, necessarily, that they do not
have the final say on whether or not their acts are within or beyond
constitutional limits. Otherwise, they could brush aside and set the
same at naught, contrary to the basic tenet that ours is a
government of laws, not of men, and to the rigid nature of our
Constitution. Such rigidity is stressed by the fact that, the
Constitution expressly confers upon the Supreme Court,14 the power
to declare a treaty unconstitutional,15 despite the eminently political
character of treaty-making power.
In short, the issue whether or not a Resolution of Congress — acting
as a constituent assembly — violates the Constitution essentially
justiciable, not political, and, hence, subject to judicial review, and,
to the extent that this view may be inconsistent with the stand taken
in Mabanag vs. Lopez Vito,16 the latter should be deemed modified
accordingly. The Members of the Court are unanimous on this point.
THE MERITS
Section 1 of Article XV of the Constitution, as amended, reads:
The Congress in joint session assembled by a vote of three-
fourths of all the Members of the Senate and of the House
of Representatives voting separately, may propose
amendments to this Constitution or call a convention for
that purpose. Such amendments shall be valid as part of
this Constitution when approved by a majority of the votes
cast at an election at which the amendments are
submitted to the people for their ratification.
Pursuant to this provision, amendments to the Constitution may be
proposed, either by Congress, or by a convention called by Congress
for that purpose. In either case, the vote of "three-fourths of all the
members of the Senate and of the House of Representatives voting
separately" is necessary. And, "such amendments shall be valid as
part of" the "Constitution when approved by a majority of the votes
cast at an election at which the amendments are submitted to the
people for their ratification."
In the cases at bar, it is conceded that the R. B. H. Nos. 1 and 3 have
been approved by a vote of three-fourths of all the members of the
Senate and of the House of Representatives voting separately. This,
notwithstanding, it is urged that said resolutions are null and void
because:
1. The Members of Congress, which approved the proposed
amendments, as well as the resolution calling a convention to
propose amendments, are, at best, de facto Congressmen;
2. Congress may adopt either one of two alternatives propose —
amendments or call a convention therefore but may not avail of
both — that is to say, propose amendment and call a convention —
at the same time;
3. The election, in which proposals for amendment to the
Constitution shall be submitted for ratification, must be
a special election, not a general election, in which officers of the
national and local governments — such as the elections scheduled to
be held on November 14, 1967 — will be chosen; and
4. The spirit of the Constitution demands that the election, in which
proposals for amendment shall be submitted to the people for
ratification, must be held under such conditions — which, allegedly,
do not exist — as to give the people a reasonable opportunity to
have a fair grasp of the nature and implications of said amendments.
Legality of Congress and Legal Status of the Congressmen
The first objection is based upon Section 5, Article VI, of the
Constitution, which provides:
The House of Representatives shall be composed of not
more than one hundred and twenty Members who shall
be apportioned among the several provinces as nearly as
may be according to the number of their respective
inhabitants, but each province shall have at least one
Member. The Congress shall by law make an
apportionment within three years after the return of every
enumeration, and not otherwise. Until such
apportionment shall have been made, the House of
Representatives shall have the same number of Members
as that fixed by law for the National Assembly, who shall
be elected by the qualified electors from the present
Assembly districts. Each representative district shall
comprise, as far as practicable, contiguous and compact
territory.
It is urged that the last enumeration or census took place in 1960;
that, no apportionment having been made within three (3) years
thereafter, the Congress of the Philippines and/or the election of its
Members became illegal; that Congress and its Members, likewise,
became a de facto Congress and/or de facto congressmen,
respectively; and that, consequently, the disputed Resolutions,
proposing amendments to the Constitution, as well as Republic Act
No. 4913, are null and void.
It is not true, however, that Congress has not made an
apportionment within three years after the enumeration or census
made in 1960. It did actually pass a bill, which became Republic Act
No. 3040,17 purporting to make said apportionment. This Act was,
however, declared unconstitutional, upon the ground that the
apportionment therein undertaken had not been made according to
the number of inhabitants of the different provinces of the
Philippines.18
Moreover, we are unable to agree with the theory that, in view of
the failure of Congress to make a valid apportionment within the
period stated in the Constitution, Congress became an
"unconstitutional Congress" and that, in consequence thereof, the
15
Members of its House of Representatives are de facto officers. The
major premise of this process of reasoning is that the constitutional
provision on "apportionment within three years after the return of
every enumeration, and not otherwise," is mandatory. The fact that
Congress is under legal obligation to make said apportionment does
not justify, however, the conclusion that failure to comply with such
obligation rendered Congress illegal or unconstitutional, or that its
Members have become de facto officers.
It is conceded that, since the adoption of the Constitution in 1935,
Congress has not made a valid apportionment as required in said
fundamental law. The effect of this omission has been envisioned in
the Constitution, pursuant to which:
. . . Until such apportionment shall have been made, the
House of Representatives shall have the same number of
Members as that fixed by law for the National Assembly,
who shall be elected by the qualified electors from the
present Assembly districts. . . . .
The provision does not support the view that, upon the expiration of
the period to make the apportionment, a Congress which fails to
make it is dissolved or becomes illegal. On the contrary, it implies
necessarily that Congress shall continue to function with the
representative districts existing at the time of the expiration of said
period.
It is argued that the above-quoted provision refers only to the
elections held in 1935. This theory assumes that an apportionment
had to be made necessarily before the first elections to be held after
the inauguration of the Commonwealth of the Philippines, or in
1938.19 The assumption, is, however, unwarranted, for there had
been no enumeration in 1935, and nobody could foretell when it
would be made. Those who drafted and adopted the Constitution in
1935 could be certain, therefore, that the three-year period, after
the earliest possible enumeration, would expire after the elections
in 1938.
What is more, considering that several provisions of the
Constitution, particularly those on the legislative department, were
amended in 1940, by establishing a bicameral Congress, those who
drafted and adopted said amendment, incorporating therein the
provision of the original Constitution regarding the apportionment of
the districts for representatives, must have known that the three-
year period therefor would expire after the elections scheduled to be
held and actually held in 1941.
Thus, the events contemporaneous with the framing and ratification
of the original Constitution in 1935 and of the amendment thereof in
1940 strongly indicate that the provision concerning said
apportionment and the effect of the failure to make it were
expected to be applied to conditions obtaining after the elections in
1935 and 1938, and even after subsequent elections.
Then again, since the report of the Director of the Census on the last
enumeration was submitted to the President on November 30,
1960, it follows that the three-year period to make the
apportionment did not expire until 1963, or after the Presidential
elections in 1961. There can be no question, therefore, that the
Senate and the House of Representatives organized or constituted
on December 30, 1961, were de jure bodies, and that the Members
thereof were de jure officers. Pursuant to the theory of petitioners
herein, upon expiration of said period of three years, or late in 1963,
Congress became illegal and its Members, or at least, those of the
House of Representatives, became illegal holder of their respective
offices, and were de facto officers.
Petitioners do not allege that the expiration of said three-year
period without a reapportionment, had the effect of abrogating or
repealing the legal provision creating Congress, or, at least, the
House of Representatives, and are not aware of any rule or principle
of law that would warrant such conclusion. Neither do they allege
that the term of office of the members of said House automatically
expired or that they ipso facto forfeited their seats in Congress, upon
the lapse of said period for reapportionment. In fact, neither our
political law, nor our law on public officers, in particular, supports
the view that failure to discharge a mandatory duty, whatever it may
be, would automatically result in the forfeiture of an office, in the
absence of a statute to this effect.
Similarly, it would seem obvious that the provision of our Election
Law relative to the election of Members of Congress in 1965 were
not repealed in consequence of the failure of said body to make an
apportionment within three (3) years after the census of 1960.
Inasmuch as the general elections in 1965 were presumably held in
conformity with said Election Law, and the legal provisions creating
Congress — with a House of Representatives composed of members
elected by qualified voters of representative districts as they existed
at the time of said elections — remained in force, we can not see
how said Members of the House of Representatives can be regarded
as de facto officers owing to the failure of their predecessors in
office to make a reapportionment within the period
aforementioned.
Upon the other hand, the Constitution authorizes the impeachment
of the President, the Vice-President, the Justices of the Supreme
Court and the Auditor General for, inter alia, culpable violation of
the Constitution,20 the enforcement of which is, not only their
mandatory duty, but also, their main function. This provision
indicates that, despite the violation of such mandatory duty, the title
to their respective offices remains unimpaired, until dismissal or
ouster pursuant to a judgment of conviction rendered in accordance
with Article IX of the Constitution. In short, the loss of office or the
extinction of title thereto is not automatic.
Even if we assumed, however, that the present Members of
Congress are merely de facto officers, it would not follow that the
contested resolutions and Republic Act No. 4913 are null and void. In
fact, the main reasons for the existence of the de facto doctrine is
that public interest demands that acts of persons holding, under
color of title, an office created by a valid statute be, likewise,
deemed valid insofar as the public — as distinguished from the
officer in question — is concerned.21 Indeed, otherwise, those
dealing with officers and employees of the Government would be
entitled to demand from them satisfactory proof of their title to the
positions they hold, before dealing with them, or before recognizing
their authority or obeying their commands, even if they should act
within the limits of the authority vested in their respective offices,
positions or employments.22 One can imagine this great
inconvenience, hardships and evils that would result in the absence
of the de facto doctrine.
As a consequence, the title of a de facto officer cannot be assailed
collaterally.23 It may not be contested except directly, by quo
warranto proceedings. Neither may the validity of his acts be
questioned upon the ground that he is merely a de
facto officer.24 And the reasons are obvious: (1) it would be an
indirect inquiry into the title to the office; and (2) the acts of a de
facto officer, if within the competence of his office, are valid, insofar
as the public is concerned.
It is argued that the foregoing rules do not apply to the cases at bar
because the acts therein involved have not been completed and
petitioners herein are not third parties. This pretense is untenable. It
is inconsistent with Tayko vs. Capistrano.25 In that case, one of the
parties to a suit being heard before Judge Capistrano objected to his
continuing to hear the case, for the reason that, meanwhile, he had
reached the age of retirement. This Court held that the objection
could not be entertained, because the Judge was at least, a de
facto Judge, whose title can not be assailed collaterally. It should be
noted that Tayko was not a third party insofar as the Judge was
concerned. Tayko was one of the parties in the aforementioned suit.
Moreover, Judge Capistrano had not, as yet, finished hearing the
case, much less rendered decision therein. No rights had vested in
favor of the parties, in consequence of the acts of said Judge. Yet,
Tayko's objection was overruled. Needless to say, insofar as
Congress is concerned, its acts, as regards the Resolutions herein
contested and Republic Act No. 4913, are complete. Congress has
nothing else to do in connection therewith.
16
The Court is, also, unanimous in holding that the objection under
consideration is untenable.
Available Alternatives to Congress
Atty. Juan T. David, as amicus curiae, maintains that Congress may
either propose amendments to the Constitution or call a convention
for that purpose, but it can not do both, at the same time. This
theory is based upon the fact that the two (2) alternatives are
connected in the Constitution by the disjunctive "or." Such basis is,
however, a weak one, in the absence of other circumstances — and
none has brought to our attention — supporting the conclusion
drawn by the amicus curiae. In fact, the term "or" has, oftentimes,
been held to mean "and," or vice-versa, when the spirit or context of
the law warrants it.26
It is, also, noteworthy that R. B. H. Nos. 1 and 3 propose
amendments to the constitutional provision on Congress, to be
submitted to the people for ratification on November 14, 1967,
whereas R. B. H. No. 2 calls for a convention in 1971, to consider
proposals for amendment to the Constitution, in general. In other
words, the subject-matter of R. B. H. No. 2 is different from that of R
B. H. Nos. 1 and 3. Moreover, the amendments proposed under R. B.
H. Nos. 1 and 3, will be submitted for ratification several
years before those that may be proposed by the constitutional
convention called in R. B. H. No. 2. Again, although the three (3)
resolutions were passed on the same date, they were taken up and
put to a vote separately, or one after the other. In other words, they
were not passed at the same time.
In any event, we do not find, either in the Constitution, or in the
history thereof anything that would negate the authority of different
Congresses to approve the contested Resolutions, or of the same
Congress to pass the same in, different sessions or different days of
the same congressional session. And, neither has any plausible
reason been advanced to justify the denial of authority to adopt said
resolutions on the same day.
Counsel ask: Since Congress has decided to call a constitutional
convention to propose amendments, why not let the whole thing be
submitted to said convention, instead of, likewise, proposing some
specific amendments, to be submitted for ratification before said
convention is held? The force of this argument must be conceded.
but the same impugns the wisdom of the action taken by Congress,
not its authority to take it. One seeming purpose thereof to permit
Members of Congress to run for election as delegates to the
constitutional convention and participate in the proceedings therein,
without forfeiting their seats in Congress. Whether or not this should
be done is a political question, not subject to review by the courts of
justice.
On this question there is no disagreement among the members of
the Court.
May Constitutional Amendments Be Submitted for
Ratification in a General Election?
Article XV of the Constitution provides:
. . . The Congress in joint session assembled, by a vote of
three-fourths of all the Members of the Senate and of the
House of Representatives voting separately, may propose
amendments to this Constitution or call a contention for
that purpose. Such amendments shall be valid as part of
this Constitution when approved by a majority of the votes
cast at an election at which the amendments are
submitted to the people for their ratification.
There is in this provision nothing to indicate that the "election"
therein referred to is a "special," not a general, election. The
circumstance that three previous amendments to the Constitution
had been submitted to the people for ratification in special elections
merely shows that Congress deemed it best to do so under the
circumstances then obtaining. It does not negate its authority to
submit proposed amendments for ratification in general elections.
It would be better, from the viewpoint of a thorough discussion of
the proposed amendments, that the same be submitted to the
people's approval independently of the election of public officials.
And there is no denying the fact that an adequate appraisal of the
merits and demerits proposed amendments is likely to be
overshadowed by the great attention usually commanded by the
choice of personalities involved in general elections, particularly
when provincial and municipal officials are to be chosen. But, then,
these considerations are addressed to the wisdom of holding a
plebiscite simultaneously with the election of public officer. They do
not deny the authority of Congress to choose either alternative, as
implied in the term "election" used, without qualification, in the
abovequoted provision of the Constitution. Such authority becomes
even more patent when we consider: (1) that the term "election,"
normally refers to the choice or selection of candidates to public
office by popular vote; and (2) that the word used in Article V of the
Constitution, concerning the grant of suffrage to women is, not
"election," but "plebiscite."
Petitioners maintain that the term "election," as used in Section 1 of
Art. XV of the Constitution, should be construed as meaning a
special election. Some members of the Court even feel that said
term ("election") refers to a "plebiscite," without any "election,"
general or special, of public officers. They opine that constitutional
amendments are, in general, if not always, of such important, if not
transcendental and vital nature as to demand that the attention of
the people be focused exclusively on the subject-matter thereof, so
that their votes thereon may reflect no more than their intelligent,
impartial and considered view on the merits of the proposed
amendments, unimpaired, or, at least, undiluted by extraneous, if
not insidious factors, let alone the partisan political considerations
that are likely to affect the selection of elective officials.
This, certainly, is a situation to be hoped for. It is a goal the
attainment of which should be promoted. The ideal conditions are,
however, one thing. The question whether the
Constitution forbids the submission of proposals for amendment to
the people except under such conditions, is another thing. Much as
the writer and those who concur in this opinion admire the contrary
view, they find themselves unable to subscribe thereto without, in
effect, reading into the Constitution what they believe is not written
thereon and can not fairly be deduced from the letter thereof, since
the spirit of the law should not be a matter of sheer speculation.
The majority view — although the votes in favor thereof are
insufficient to declare Republic Act No. 4913 unconstitutional — as
ably set forth in the opinion penned by Mr. Justice Sanchez, is,
however, otherwise.
Would the Submission now of the Contested Amendments to the
People Violate the Spirit of the Constitution?
It should be noted that the contested Resolutions were approved on
March 16, 1967, so that, by November 14, 1967, our citizenry shall
have had practically eight (8) months to be informed on the
amendments in question. Then again, Section 2 of Republic Act No.
4913 provides:
(1) that "the amendments shall be published in three consecutive
issues of the Official Gazette, at least twenty days prior to the
election;"
(2) that "a printed copy of the proposed amendments shall be
posted in a conspicuous place in every municipality, city and
provincial office building and in every polling place not later than
October 14, 1967," and that said copy "shall remain posted therein
until after the election;"
(3) that "at least five copies of said amendment shall be kept in each
polling place, to be made available for examination by the qualified
electors during election day;"
17
(4) that "when practicable, copies in the principal native languages,
as may be determined by the Commission on Elections, shall be kept
in each polling place;"
(5) that "the Commission on Elections shall make available copies of
said amendments in English, Spanish and, whenever practicable, in
the principal native languages, for free distributing:" and
(6) that the contested Resolutions "shall be printed in full" on the
back of the ballots which shall be used on November 14, 1967.
We are not prepared to say that the foregoing measures are
palpably inadequate to comply with the constitutional requirement
that proposals for amendment be "submitted to the people for their
ratification," and that said measures are manifestly insufficient, from
a constitutional viewpoint, to inform the people of the amendment
sought to be made.
These were substantially the same means availed of to inform the
people of the subject submitted to them for ratification, from the
original Constitution down to the Parity Amendment. Thus, referring
to the original Constitution, Section 1 of Act No. 4200, provides:
Said Constitution, with the Ordinance appended thereto,
shall be published in the Official Gazette, in English and in
Spanish, for three consecutive issues at least fifteen days
prior to said election, and a printed copy of said
Constitution, with the Ordinance appended thereto, shall
be posted in a conspicuous place in each municipal and
provincial government office building and in each polling
place not later than the twenty-second day of April,
nineteen hundred and thirty-five, and shall remain posted
therein continually until after the termination of the
election. At least ten copies of the Constitution with the
Ordinance appended thereto, in English and in Spanish,
shall be kept at each polling place available for
examination by the qualified electors during election day.
Whenever practicable, copies in the principal local dialects
as may be determined by the Secretary of the Interior shall
also be kept in each polling place.
The provision concerning woman's suffrage is Section 1 of
Commonwealth Act No. 34, reading:
Said Article V of the Constitution shall be published in the
Official Gazette, in English and in Spanish, for three
consecutive issues at least fifteen days prior to said
election, and the said Article V shall be posted in a
conspicuous place in each municipal and provincial office
building and in each polling place not later than the
twenty-second day of April, nineteen and thirty-seven, and
shall remain posted therein continually until after the
termination of the plebiscite. At least ten copies of said
Article V of the Constitution, in English and in Spanish,
shall be kept at each polling place available for
examination by the qualified electors during the plebiscite.
Whenever practicable, copies in the principal native
languages, as may be determined by the Secretary of the
Interior, shall also be kept in each polling place.
Similarly, Section 2, Commonwealth Act No. 517, referring to the
1940 amendments, is of the following tenor:
The said amendments shall be published in English and
Spanish in three consecutive issues of the Official Gazette
at least twenty days prior to the election. A printed copy
thereof shall be posted in a conspicuous place in every
municipal, city, and provincial government office building
and in every polling place not later than May eighteen,
nineteen hundred and forty, and shall remain posted
therein until after the election. At least ten copies of said
amendments shall be kept in each polling place to be
made available for examination by the qualified electors
during election day. When practicable, copies in the
principal native languages, as may be determined by the
Secretary of the Interior, shall also be kept therein.
As regards the Parity Amendment, Section 2 of Republic Act No. 73 is
to the effect that:
The said amendment shall be published in English and
Spanish in three consecutive issues of the Official Gazette
at least twenty days prior to the election. A printed copy
thereof shall be posted in a conspicuous place in every
municipal, city, and provincial government office building
and in every polling place not later than February eleven,
nineteen hundred and forty-seven, and shall remain
posted therein until after the election. At least, ten copies
of the said amendment shall be kept in each polling place
to be made available for examination by the qualified
electors during election day. When practicable, copies in
the principal native languages, as may be determined by
the Commission on Elections, shall also be kept in each
polling place.
The main difference between the present situation and that
obtaining in connection with the former proposals does not arise
from the law enacted therefor. The difference springs from the
circumstance that the major political parties had taken sides on
previous amendments to the Constitution — except, perhaps, the
woman's suffrage — and, consequently, debated thereon at some
length before the plebiscite took place. Upon the other hand, said
political parties have not seemingly made an issue on the
amendments now being contested and have, accordingly, refrained
from discussing the same in the current political campaign. Such
debates or polemics as may have taken place — on a rather limited
scale — on the latest proposals for amendment, have been due
principally to the initiative of a few civic organizations and some
militant members of our citizenry who have voiced their opinion
thereon. A legislation cannot, however, be nullified by reason of the
failure of certain sectors of the community to discuss it sufficiently.
Its constitutionality or unconstitutionality depends upon no other
factors than those existing at the time of the enactment thereof,
unaffected by the acts or omissions of law enforcing agencies,
particularly those that take place subsequently to the passage or
approval of the law.
Referring particularly to the contested proposals for amendment,
the sufficiency or insufficiency, from a constitutional angle, of the
submission thereof for ratification to the people on November 14,
1967, depends — in the view of those who concur in this opinion,
and who, insofar as this phase of the case, constitute the minority —
upon whether the provisions of Republic Act No. 4913 are such as to
fairly apprise the people of the gist, the main idea or the substance
of said proposals, which is — under R. B. H. No. 1 — the increase of
the maximum number of seats in the House of Representatives,
from 120 to 180, and — under R. B. H. No. 3 — the authority given
to the members of Congress to run for delegates to the
Constitutional Convention and, if elected thereto, to discharge the
duties of such delegates, without forfeiting their seats in Congress.
We — who constitute the minority — believe that Republic Act No.
4913 satisfies such requirement and that said Act is, accordingly,
constitutional.
A considerable portion of the people may not know how over 160 of
the proposed maximum of representative districts are actually
apportioned by R. B. H. No. 1 among the provinces in the Philippines.
It is not improbable, however, that they are not interested in the
details of the apportionment, or that a careful reading thereof may
tend in their simple minds, to impair a clear vision thereof. Upon the
other hand, those who are more sophisticated, may enlighten
themselves sufficiently by reading the copies of the proposed
amendments posted in public places, the copies kept in the polling
places and the text of contested resolutions, as printed in full on the
back of the ballots they will use.
It is, likewise, conceivable that as many people, if not more, may fail
to realize or envisage the effect of R. B. H. No. 3 upon the work of
the Constitutional Convention or upon the future of our Republic.
18
But, then, nobody can foretell such effect with certainty. From our
viewpoint, the provisions of Article XV of the Constitution are
satisfied so long as the electorate knows that R. B. H. No. 3 permits
Congressmen to retain their seats as legislators, even if they should
run for and assume the functions of delegates to the Convention.
We are impressed by the factors considered by our distinguished
and esteemed brethren, who opine otherwise, but, we feel that such
factors affect the wisdom of Republic Act No. 4913 and that of R. B.
H. Nos. 1 and 3, not the authority of Congress to approve the same.
The system of checks and balances underlying the judicial power to
strike down acts of the Executive or of Congress transcending the
confines set forth in the fundamental laws is not in derogation of the
principle of separation of powers, pursuant to which each
department is supreme within its own sphere. The determination of
the conditions under which the proposed amendments shall be
submitted to the people is concededly a matter which falls within
the legislative sphere. We do not believe it has been satisfactorily
shown that Congress has exceeded the limits thereof in enacting
Republic Act No. 4913. Presumably, it could have done something
better to enlighten the people on the subject-matter thereof. But,
then, no law is perfect. No product of human endeavor is beyond
improvement. Otherwise, no legislation would be constitutional and
valid. Six (6) Members of this Court believe, however, said Act and R.
B. H. Nos. 1 and 3 violate the spirit of the Constitution.
Inasmuch as there are less than eight (8) votes in favor of declaring
Republic Act 4913 and R. B. H. Nos. 1 and 3 unconstitutional and
invalid, the petitions in these two (2) cases must be, as they are
hereby, dismiss and the writs therein prayed for denied, without
special pronouncement as to costs. It is so ordered.
Makalintal and Bengzon, J.P., JJ., concur.
Fernando, J., concurs fully with the above opinion, adding a few
words on the question of jurisdiction.
Separate Opinions
MAKALINTAL, J., concurring:
I concur in the foregoing opinion of the Chief Justice. I would make
some additional observations in connection with my concurrence.
Sections 2 and 4 of Republic Act No. 4913 provide:
Sec. 2. The amendments shall be published in three
consecutive issues of the Official Gazette at least twenty
days prior to the election. A printed copy thereof shall be
posted in a conspicuous place in every municipality, city
and provincial office building and in every polling place not
later than October fourteen, nineteen hundred and sixty-
seven, and shall remain posted therein until after the
election. At least five copies of the said amendments shall
be kept in each polling place to be made available for
examination by the qualified electors during election day.
When practicable, copies in the principal native languages,
as may be determined by the Commission on Elections,
shall be kept in each polling place. The Commission on
Elections shall make available copies of each amendments
in English, Spanish and, whenever practicable, in the
principal native languages, for free distribution.
xxx xxx xxx
Sec. 4. The ballots which shall be used in the election for
the approval of said amendments shall be printed in
English and Pilipino and shall be in the size and form
prescribed by the Commission on Elections: Provided,
however, That at the back of said ballot there shall be
printed in full Resolutions of both Houses of Congress
Numbered One and Three, both adopted on March
sixteen, nineteen hundred and sixty-seven, proposing the
amendments: Provided, further, That the questionnaire
appearing on the face of the ballot shall be as follows:
Are you in favor of the proposed amendment to Section
five of Article VI of our Constitution printed at the back of
this ballot?
Are you in favor of the proposed amendment to section
sixteen of Article VI of our Constitution printed at the back
of this ballot?
To vote for the approval of the proposed amendments, the
voter shall write the word "yes" or its equivalent in Pilipino
or in the local dialect in the blank space after each
question; to vote for the rejection thereof, he shall write
the word "No" or its equivalent in Pilipino or in the local
dialect.
I believe that intrinsically, that is, considered in itself and without
reference to extraneous factors and circumstances, the manner
prescribed in the aforesaid provisions is sufficient for the purpose of
having the proposed amendments submitted to the people for their
ratification, as enjoined in Section 1, Article XV of the Constitution. I
am at a loss to say what else should have been required by the Act
to make it adhere more closely to the constitutional requirement.
Certainly it would have been out of place to provide, for instance,
that government officials and employees should go out and explain
the amendments to the people, or that they should be the subject of
any particular means or form of public discussion.
The objection of some members of the Court to Republic Act No.
4913 seems to me predicated on the fact that there are so many
other issues at stake in the coming general election that the
attention of the electorate, cannot be entirely focused on the
proposed amendments, such that there is a failure to properly
submit them for ratification within the intendment of the
Constitution. If that is so, then the defect is not intrinsic in the law
but in its implementation. The same manner of submitting the
proposed amendments to the people for ratification may, in a
different setting, be sufficient for the purpose. Yet I cannot conceive
that the constitutionality or unconstitutionality of a law may be
made to depend willy-nilly on factors not inherent in its provisions.
For a law to be struck down as unconstitutional it must be so by
reason of some irreconcilable conflict between it and the
Constitution. Otherwise a law may be either valid or invalid,
according to circumstances not found in its provisions, such as the
zeal with which they are carried out. To such a thesis I cannot agree.
The criterion would be too broad and relative, and dependent upon
individual opinions that at best are subjective. What one may regard
as sufficient compliance with the requirement of submission to the
people, within the context of the same law, may not be so to
another. The question is susceptible of as many views as there are
viewers; and I do not think this Court would be justified in saying
that its own view on the matter is the correct one, to the exclusion
of the opinions of others.
On the other hand, I reject the argument that the ratification must
necessarily be in a special election or plebiscite called for that
purpose alone. While such procedure is highly to be preferred, the
Constitution speaks simply of "an election at which the amendments
are submitted to the people for their ratification," and I do not
subscribe to the restrictive interpretation that the petitioners would
place on this provision, namely, that it means only a special election.
BENGZON, J.P., J., concurring:
It is the glory of our institutions that they are founded upon law, that
no one can exercise any authority over the rights and interests of
others except pursuant to and in the manner authorized by
law.1 Based upon this principle, petitioners Ramon A. Gonzales and
Philippine Constitution Association (PHILCONSA) come to this Court
in separate petitions.
19
Petitioner Gonzales, as taxpayer, voter and citizen, and allegedly in
representation thru class suit of all citizens of this country, filed this
suit for prohibition with preliminary injunction to restrain the
Commission on Elections, Director of Printing and Auditor General
from implementing and/or complying with Republic Act 4913,
assailing said law as unconstitutional.
Petitioner PHILCONSA, as a civic, non-profit and non-partisan
corporation, assails the constitutionality not only of Republic Act
4913 but also of Resolutions of Both Houses Nos. 1 and 3 of March
16, 1967.
Republic Act 4913, effective June 17, 1967, is an Act submitting to
the Filipino people for approval the amendments to the Constitution
of the Philippines proposed by the Congress of the Philippines in
Resolutions of Both Houses Numbered 1 and 3, adopted on March
16, 1967. Said Republic Act fixes the date and manner of the election
at which the aforesaid proposed amendments shall be voted upon
by the people, and appropriates funds for said election. Resolutions
of Both Houses Nos. 1 and 3 propose two amendments to the
Constitution: the first, to amend Sec. 5, Art. VI, by increasing the
maximum membership of the House of Representatives from 120 to
180, apportioning 160 of said 180 seats and eliminating the
provision that Congress shall by law make an apportionment within
three years after the return of every enumeration; the second, to
amend Sec. 16, Art. VI, by allowing Senators and Representatives to
be delegates to a constitutional convention without forfeiting their
seats.
Since both petitions relate to the proposed amendments, they are
considered together herein.
Specifically and briefly, petitioner Gonzales' objections are as
follows: (1) Republic Act 4913 violates Sec. 1, Art. XV of the
Constitution, in submitting the proposed amendments to the
Constitution, to the people for approval, at the general election of
1967 instead of at a special election solely for that purpose; (2)
Republic Act 4913 violates Sec. 1, Art. XV of the Constitution, since it
was not passed with the 3/4 vote in joint session required when
Congress proposes amendments to the Constitution, said Republic
Act being a step in or part of the process of proposing amendments
to the Constitution; and (3) Republic Act 4913 violates the due
process clause of the Constitution (Sec. 1, Subsec. 1, Art. III), in not
requiring that the substance of the proposed amendments be stated
on the face of the ballot or otherwise rendering clear the import of
the proposed amendments, such as by stating the provisions before
and after said amendments, instead of printing at the back of the
ballot only the proposed amendments.
Since observance of Constitutional provisions on the procedure for
amending the Constitution is concerned, the issue is cognizable by
this Court under its powers to review an Act of Congress to
determine its conformity to the fundamental law. For though the
Constitution leaves Congress free to propose whatever
Constitutional amendment it deems fit, so that
the substance or content of said proposed amendment is a matter of
policy and wisdom and thus a political question, the Constitution
nevertheless imposes requisites as to the manner or procedure of
proposing such amendments, e.g., the three-fourths vote
requirement. Said procedure or manner, therefore, from being left
to the discretion of Congress, as a matter of policy and wisdom, is
fixed by the Constitution. And to that extent, all questions bearing
on whether Congress in proposing amendments followed the
procedure required by the Constitution, is perforce justiciable, it not
being a matter of policy or wisdom.
Turning then to petitioner Gonzales' first objection, Sec. 1, Art. XV
clearly does not bear him on the point. It nowhere requires that the
ratification be thru an election solely for that purpose. It only
requires that it be at "an election at which the amendments are
submitted to the people for their ratification." To join it with an
election for candidates to public office, that is, to make it concurrent
with such election, does not render it any less an election at which
the proposed amendments are submitted to the people for their
ratification. To prohibition being found in the plain terms of the
Constitution, none should be inferred. Had the framers of requiring
Constitution thought of requiring a special election for the purpose
only of the proposed amendments, they could have said so, by
qualifying the phrase with some word such as "special" or "solely" or
"exclusively". They did not.
It is not herein decided that such concurrence of election is wise, or
that it would not have been better to provide for a separate election
exclusively for the ratification of the proposed amendments. The
point however is that such separate and exclusive election, even if it
may be better or wiser, which again, is not for this Court to decide, is
not included in the procedure required by the Constitution to amend
the same. The function of the Judiciary is "not to pass upon
questions of wisdom, justice or expediency of legislation". 2 It is
limited to determining whether the action taken by the Legislative
Department has violated the Constitution or not. On this score, I am
of the opinion that it has not.
Petitioner Gonzales' second point is that Republic Act 4913 is
deficient for not having been passed by Congress in joint session by
3/4 vote.
Sec. 1, Art. XV of the Constitution provides:
Sec. 1. The Congress in joint session assembled, by a vote
of three-fourths of all the members of the Senate and of
the House of Representatives voting separately, may
propose amendments to this Constitution or call a
convention for that purpose. Such amendments shall be
valid as part of this Constitution when approved by a
majority of the votes cast at an election to which the
amendments are submitted to the people for their
ratification.
Does Republic Act 4913 propose amendments to the Constitution? If
by the term "propose amendment" is meant to determine WHAT
said amendment shall be, then Republic Act 4913 does not;
Resolutions of Both Houses 1 and 3 already did that. If, on the other
hand, it means, or also means, to provide for how, when, and by
what means the amendments shall be submitted to the people for
approval, then it does.
A careful reading of Sec. 1, Art. XV shows that the first sense. is the
one intended. Said Section has two sentences: in the first, it requires
the 3/4 voting in joint session, for Congress to "propose
amendments". And then in the second sentence, it provides that
"such amendments . . . shall be submitted to the people for their
ratification". This clearly indicates that by the term "propose
amendments" in the first sentence is meant to frame the substance
or the content or the WHAT-element of the amendments; for it is
this and this alone that is submitted to the people for their
ratification. The details of when the election shall be held for
approval or rejection of the proposed amendments, or the manner
of holding it, are not submitted for ratification to form part of the
Constitution. Stated differently, the plain language of Section 1, Art.
XV, shows that the act of proposing amendments is distinct from —
albeit related to — that of submitting the amendments to the
people for their ratification; and that the 3/4 voting requirement
applies only to the first step, not to the second one.
It follows that the submission of proposed amendments can be done
thru an ordinary statute passed by Congress. The Constitution does
not expressly state by whom the submission shall be undertaken;
the rule is that a power not lodged elsewhere under the Constitution
is deemed to reside with the legislative body, under the doctrine of
residuary powers. Congress therefore validly enacted Republic Act
4913 to fix the details of the date and manner of submitting the
proposed amendments to the people for their ratification. Since it
does not "propose amendments" in the sense referred to by Sec. 1,
Art. XV of the Constitution, but merely provides for how and when
the amendments, already proposed, are going to be voted upon, the
same does not need the 3/4 vote in joint session required in Sec. 1,
Art. XV of the Constitution. Furthermore, Republic Act 4913 is an
appropriation measure. Sec. 6 thereof appropriates P1,000,000 for
carrying out its provisions. Sec. 18, Art. VI of the Constitution states
20
that "All appropriation . . . bills shall originate exclusively in the
House of Representatives". Republic Act 4913, therefore, could not
have been validly adopted in a joint session, reinforcing the view
that Sec. 1, Art. XV does not apply to such a measure providing for
the holding of the election to ratify the proposed amendments,
which must perforce appropriate funds for its purpose.
Petitioner Gonzales contends, thirdly, that Republic Act 4913 offends
against substantive due process. An examination of the provisions of
the law shows no violation of the due process clause of the
Constitution. The publication in the Official Gazette at least 20 days
before the election, the posting of notices in public buildings not
later than October 14, 1967, to remain posted until after the
elections, the placing of copies of the proposed amendments in the
polling places, aside from printing the same at the back of the ballot,
provide sufficient opportunity to the voters to cast an intelligent
vote on the proposal. Due process refers only to providing fair
opportunity; it does not guarantee that the opportunity given will in
fact be availed of; that is the look-out of the voter and the
responsibility of the citizen. As long as fair and reasonable
opportunity to be informed is given, and it is, the due process clause
is not infringed.
Non-printing of the provisions to be amended as they now stand,
and the printing of the full proposed amendments at the back of the
ballot instead of the substance thereof at the face of the ballot, do
not deprive the voter of fair opportunity to be informed. The
present wording of the Constitution is not being veiled or
suppressed from him; he is conclusively presumed to know them
and they are available should he want to check on what he is
conclusively presumed to know. Should the voters choose to remain
ignorant of the present Constitution, the fault does not lie with
Congress. For opportunity to familiarize oneself with the
Constitution as it stands has been available thru all these years.
Perhaps it would have been more convenient for the voters if the
present wording of the provisions were also to be printed on the
ballot. The same however is a matter of policy. As long as the
method adopted provides sufficiently reasonable chance to
intelligently vote on the amendments, and I think it does in this case,
it is not constitutionally defective.
Petitioner Gonzales' other arguments touch on the merits or wisdom
of the proposed amendments. These are for the people in their
sovereign capacity to decide, not for this Court.
Two arguments were further advanced: first, that Congress cannot
both call a convention and propose amendments; second, that the
present Congress is a de facto one, since no apportionment law was
adopted within three years from the last census of 1960, so that the
Representatives elected in 1961 are de facto officers only. Not
being de jure, they cannot propose amendments, it is argued.
As to the first point, Sec. 1 of Art. XV states that Congress "may
propose amendments or call a convention for that purpose". The
term "or", however, is frequently used as having the same meaning
as "and" particularly in permissive, affirmative sentences so that the
interpretation of the word "or" as "and" in the Constitution in such
use will not change its meaning (Vicksburg S. & P. R. Co. v.
Goodenough, 32 So. 404, 411, 108 La, 442). And it should be pointed
out that the resolutions proposing amendments (R.B.H. Nos. 1 and
3) are different from that calling for a convention (R.B.H. No. 2).
Surely, if Congress deems it better or wise to amend the
Constitution before a convention called for is elected, it should not
be fettered from doing so. For our purposes in this case, suffice it to
note that the Constitution does not prohibit it from doing so.
As to the second argument, it is also true that Sec. 5 of Art. VI of the
Constitution provides in part that "The Congress shall by law make
an apportionment within three years after the return of every
enumeration, and not otherwise". It however further states in the
next sentence: "Until such apportionment shall have been made, the
House of Representatives shall have the same number of Members
as that fixed by law for the National Assembly, who shall be elected
by the qualified electors from the present assembly districts." The
failure of Congress, therefore, to pass a valid redistricting law since
the time the above provision was adopted, does not render the
present districting illegal or unconstitutional. For the Constitution
itself provides for its continuance in such case, rendering legal
and de jure the status quo.
For the above reasons, I vote to uphold the constitutionality of
Republic Act 4913, and fully concur with the opinion of the Chief
Justice.
FERNANDO, J., concurring:
At the outset, we are faced with a question of jurisdiction. The
opinion prepared by the Chief Justice discusses the matter with a
fullness that erases doubts and misgivings and clarifies the
applicable principles. A few words may however be added.
We start from the premise that only where it can be shown that the
question is to be solved by public opinion or where the matter has
been left by the Constitution to the sole discretion of any of the
political branches, as was so clearly stated by the then Justice
Concepcion in Tañada v. Cuenco,1 may this Court avoid passing on
the issue before it. Whatever may be said about the present
question, it is hard to speak with certitude considering Article XV,
that Congress may be entrusted with the full and uncontrolled
discretion on the procedure leading to proposals for an amendment
of the Constitution.
It may be said however that in Mabanag v. Lopez Vito,2 this Court
through Justice Tuason followed Coleman v. Miller,3 in its holding
that certain aspects of the amending process may be considered
political. His opinion quoted with approval the view of Justice Black,
to which three other members of the United States Supreme Court
agreed, that the process itself is political in its entirety, "from
submission until an amendment becomes part of the Constitution,
and is not subject to judicial guidance, control or interference at any
point." In a sense that would solve the matter neatly. The judiciary
would be spared the at times arduous and in every case soul-
searching process of determining whether the procedure for
amendments required by the Constitution has been followed.
At the same time, without impugning the motives of Congress,
which cannot be judicially inquired into at any rate, it is not beyond
the realm of possibility that a failure to observe the requirements of
Article XV would occur. In the event that judicial intervention is
sought, to rely automatically on the theory of political question to
avoid passing on such a matter of delicacy might under certain
circumstances be considered, and rightly so, as nothing less than
judicial abdication or surrender.
What appears regrettable is that a major opinion of an esteemed
jurist, the late Justice Tuason, would no longer be controlling. There
is comfort in the thought that the view that then prevailed was itself
a product of the times. It could very well be that considering the
circumstances existing in 1947 as well as the particular amendment
sought to be incorporated in the Constitution, the parity rights
ordinance, the better part of wisdom in view of the grave economic
situation then confronting the country would be to avoid the
existence of any obstacle to its being submitted for ratification.
Moreover, the Republic being less than a year old, American
Supreme Court opinions on constitutional questions were-invariably
accorded uncritical acceptance. Thus the approach followed by
Justice Tuason is not difficult to understand. It may be said that
there is less propensity now, which is all to the good, for this Court
to accord that much deference to constitutional views coming from
the quarter.
Nor is this mode of viewing the opinion of Justice Tuason to do
injustice to his memory. For as he stated in another major opinion
in Araneta v. Dinglasan,4 in ascertaining the meaning to be given the
Emergency Powers Act,5 one should not ignore what would ensue if
a particular mode of construction were followed. As he so
emphatically stated, "We test a rule by its results."
21
The consequences of a judicial veto on the then proposed
amendment on the economic survival of the country, an erroneous
appraisal it turned out later, constituted an effective argument for
its submission. Why not then consider the question political and let
the people decide? That assumption could have been indulged in. It
could very well be the inarticulate major premise. For many it did
bear the stamp of judicial statesmanship.

The opinion of Chief Justice Concepcion renders crystal-clear why as

of this date and in the foreseeable future judicial inquiry to assure
the utmost compliance with the constitutional requirement would
be a more appropriate response.

SANCHEZ, J., in separate opinion:

Right at the outset, the writer expresses his deep appreciation to

Mr. Justice Calixto O. Zaldivar and Mr. Justice Fred Ruiz Castro for
their invaluable contribution to the substance and form of the
opinion which follows.

Directly under attack in this, a petition for prohibition, is the

constitutionality of Republic Act 4913, approved on June 17, 1967.
This Act seeks to implement

22
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-44640 October 12, 1976
PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,
vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE
NATIONAL TREASURER, respondents.
G.R. No. L-44684. October 12,1976
VICENTE M. GUZMAN, petitioner,
vs.
COMMISSION ELECTIONS, respondent.
G.R. No. L-44714. October 12,1976
RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO
SALAPANTAN, petitioners,
vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE
NATIONAL TREASURER, respondents.
MARTIN, J,:
The capital question raised in these prohibition suits with
preliminary injunction relates to the power of the incumbent
President of the Philippines to propose amendments to the present
Constitution in the absence of the interim National Assembly which
has not been convened.
On September 2, 1976, President Ferdinand E. Marcos issued
Presidential Decree No. 991 calling for a national referendum on
October 16, 1976 for the Citizens Assemblies ("barangays") to
resolve, among other things, the issues of martial law, the I .
assembly, its replacement, the powers of such replacement, the
period of its existence, the length of the period for tile exercise by
the President of his present powers.1
Twenty days after or on September 22, 1976, the President issued
another related decree, Presidential Decree No. 1031, amending the
previous Presidential Decree No. 991, by declaring the provisions of
presidential Decree No. 229 providing for the manner of voting and
canvass of votes in "barangays" (Citizens Assemblies) applicable to
the national referendum-plebiscite of October 16, 1976. Quite
relevantly, Presidential Decree No. 1031 repealed Section 4, of
Presidential Decree No. 991, the full text of which (Section 4) is
quoted in the footnote below. 2
On the same date of September 22, 1976, the President issued
Presidential Decree No. 1033, stating the questions to be submitted
to the people in the referendum-plebiscite on October 16, 1976. The
Decree recites in its "whereas" clauses that the people's continued
opposition to the convening of the National Assembly evinces their
desire to have such body abolished and replaced thru a
constitutional amendment, providing for a legislative body, which
will be submitted directly to the people in the referendum-plebiscite
of October 16.
The questions ask, to wit:
(1) Do you want martial law to be continued?
(2) Whether or not you want martial law to be continued, do you
approve the following amendments to the Constitution? For the
purpose of the second question, the referendum shall have the
effect of a plebiscite within the contemplation of Section 2 of Article
XVI of the Constitution.
PROPOSED AMENDMENTS:
1. There shall be, in lieu of the interim National Assembly, an interim
Batasang Pambansa. Members of the interim Batasang Pambansa
which shall not be more than 120, unless otherwise provided by law,
shall include the incumbent President of the Philippines,
representatives elected from the different regions of the nation,
those who shall not be less than eighteen years of age elected by
their respective sectors, and those chosen by the incumbent
President from the members of the Cabinet. Regional
representatives shall be apportioned among the regions in
accordance with the number of their respective inhabitants and on
the basis of a uniform and progressive ratio while the sectors shall
be determined by law. The number of representatives from each
region or sector and the, manner of their election shall be prescribed
and regulated by law.
2. The interim Batasang Pambansa shall have the same powers and
its members shall have the same functions, responsibilities, rights,
privileges, and disqualifications as the interim National Assembly
and the regular National Assembly and the members thereof.
However, it shall not exercise the power provided in Article VIII,
Section 14(l) of the Constitution.
3. The incumbent President of the Philippines shall, within 30 days
from the election and selection of the members, convene the
interim Batasang Pambansa and preside over its sessions until the
Speaker shall have been elected. The incumbent President of the
Philippines shall be the Prime Minister and he shall continue to
exercise all his powers even after the interim Batasang Pambansa is
organized and ready to discharge its functions and likewise he shall
continue to exercise his powers and prerogatives under the nineteen
hundred and thirty five. Constitution and the powers vested in the
President and the Prime Minister under this Constitution.
4. The President (Prime Minister) and his Cabinet shall exercise all
the powers and functions, and discharge the responsibilities of the
regular President (Prime Minister) and his Cabinet, and shall be
subject only to such disqualifications as the President (Prime
Minister) may prescribe. The President (Prime Minister) if he so
desires may appoint a Deputy Prime Minister or as many Deputy
Prime Ministers as he may deem necessary.
5. The incumbent President shall continue to exercise legislative
powers until martial law shall have been lifted.
6. Whenever in the judgment of the President (Prime Minister),
there exists a grave emergency or a threat or imminence thereof, or
whenever the interim Batasang Pambansa or the regular National
Assembly fails or is unable to act adequately on any matter for any
reason that in his judgment requires immediate action, he may, in
order to meet the exigency, issue the necessary decrees, orders or
letters of instructions, which shall form part of the law of the land.
7. The barangays and sanggunians shall continue as presently
constituted but their functions, powers, and composition may be
altered by law.
Referenda conducted thru the barangays and under the Supervision
of the Commission on Elections may be called at any time the
government deems it necessary to ascertain the will of the people
regarding any important matter whether of national or local
interest.
8. All provisions of this Constitution not inconsistent with any of
these amendments shall continue in full force and effect.
9. These amendments shall take effect after the incumbent
President shall have proclaimed that they have been ratified by I
majority of the votes cast in the referendum-plebiscite."
23
The Commission on Elections was vested with the exclusive
supervision and control of the October 1976 National Referendum-
Plebiscite.
On September 27, 1976, PABLO C. SANIDAD and PABLITO V.
SANIDAD, father and son, commenced L-44640 for Prohibition with
Preliminary Injunction seeking to enjoin the Commission on
Elections from holding and conducting the Referendum Plebiscite on
October 16; to declare without force and effect Presidential Decree
Nos. 991 and 1033, insofar as they propose amendments to the
Constitution, as well as Presidential Decree No. 1031, insofar as it
directs the Commission on Elections to supervise, control, hold, and
conduct the Referendum-Plebiscite scheduled on October 16, 1976.
Petitioners contend that under the 1935 and 1973 Constitutions
there is no grant to the incumbent President to exercise the
constituent power to propose amendments to the new Constitution.
As a consequence, the Referendum-Plebiscite on October 16 has no
constitutional or legal basis.
On October 5, 1976, the Solicitor General filed the comment for
respondent Commission on Elections, The Solicitor General
principally maintains that petitioners have no standing to sue; the
issue raised is political in nature, beyond judicial cognizance of this
Court; at this state of the transition period, only the incumbent
President has the authority to exercise constituent power; the
referendum-plebiscite is a step towards normalization.
On September 30, 1976, another action for Prohibition with
Preliminary Injunction, docketed as L-44684, was instituted by
VICENTE M. GUZMAN, a delegate to the 1971 Constitutional
Convention, asserting that the power to propose amendments to, or
revision of the Constitution during the transition period is expressly
conferred on the interim National Assembly under Section 16,
Article XVII of the Constitution.3
Still another petition for Prohibition with Preliminary Injunction was
filed on October 5, 1976 by RAUL M. GONZALES, his son RAUL, JR.,
and ALFREDO SALAPANTAN, docketed as L- 44714, to restrain the
implementation of Presidential Decrees relative to the forthcoming
Referendum-Plebiscite of October 16.
These last petitioners argue that even granting him legislative
powers under Martial Law, the incumbent President cannot act as a
constituent assembly to propose amendments to the Constitution; a
referendum-plebiscite is untenable under the Constitutions of 1935
and 1973; the submission of the proposed amendments in such a
short period of time for deliberation renders the plebiscite a nullity;
to lift Martial Law, the President need not consult the people via
referendum; and allowing 15-.year olds to vote would amount to an
amendment of the Constitution, which confines the right of suffrage
to those citizens of the Philippines 18 years of age and above.
We find the petitions in the three entitled cases to be devoid of
merit.
I followed or the authority assumed was valid or not. 10
Justiciability of question raised.
1. As a preliminary resolution, We rule that the petitioners in L-
44640 (Pablo C. Sanidad and Pablito V. Sanidad) possess locus
standi to challenge the constitutional premise of Presidential Decree
Nos. 991, 1031, and 1033. It is now an ancient rule that the valid
source of a stature Presidential Decrees are of such nature-may be
contested by one who will sustain a direct injuries as a in result of its
enforcement. At the instance of taxpayers, laws providing for the
disbursement of public funds may be enjoined, upon the theory that
the expenditure of public funds by an officer of the State for the
purpose of executing an unconstitutional act constitutes a
misapplication of such funds. 4 The breadth of Presidential Decree
No. 991 carries all appropriation of Five Million Pesos for the
effective implementation of its purposes. 5 Presidential Decree No.
1031 appropriates the sum of Eight Million Pesos to carry out its
provisions. 6 The interest of the aforenamed petitioners as taxpayers
in the lawful expenditure of these amounts of public money
sufficiently clothes them with that personality to litigate the validity
of the Decrees appropriating said funds. Moreover, as regards
taxpayer's suits, this Court enjoys that open discretion to entertain
the same or not. 7 For the present case, We deem it sound to
exercise that discretion affirmatively so that the authority upon
which the disputed Decrees are predicated may be inquired into.
2. The Solicitor General would consider the question at bar as a pure
political one, lying outside the domain of judicial review. We
disagree. The amending process both as to proposal and ratification,
raises a judicial question. 8 This is especially true in cases where the
power of the Presidency to initiate the of normally exercised by the
legislature, is seriously doubted. Under the terms of the 1973
Constitution, the power to propose amendments o the constitution
resides in the interim National Assembly in the period of transition
(See. 15, Transitory provisions). After that period, and the regular
National Assembly in its active session, the power to propose
amendments becomes ipso facto the prerogative of the regular
National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973
constitution). The normal course has not been followed. Rather than
calling the National Assembly to constitute itself into a constituent
assembly the incumbent President undertook the proposal of
amendments and submitted the proposed amendments thru
Presidential Decree 1033 to the people in a Referendum-Plebiscite
on October 16. Unavoidably, the regularity regularity of the
procedure for amendments, written in lambent words in the very
Constitution sought to be amended, raises a contestable issue. The
implementing Presidential Decree Nos. 991, 1031, and 1033, which
commonly purport to have the force and effect of legislation are
assailed as invalid, thus the issue of the validity of said Decrees is
plainly a justiciable one, within the competence of this Court to pass
upon. Section 2 (2), Article X of the new Constitution provides: "All
cases involving the constitutionality of a treaty, executive
agreement, or law may shall be heard and decided by the Supreme
Court en banc and no treaty, executive agreement, or law may be
declared unconstitutional without the concurrence of at least ten
Members. ..." The Supreme Court has the last word in the
construction not only of treaties and statutes, but also of the
Constitution itself The amending, like all other powers organized in
the Constitution, is in form a delegated and hence a limited power,
so that the Supreme Court is vested with that authorities to
determine whether that power has been discharged within its limits.
Political questions are neatly associated with the wisdom, of the
legality of a particular act. Where the vortex of the controversy
refers to the legality or validity of the contested act, that matter is
definitely justiciable or non-political. What is in the heels of the
Court is not the wisdom of the act of the incumbent President in
proposing amendments to the Constitution, but his constitutional
authority to perform such act or to assume the power of a
constituent assembly. Whether the amending process confers on the
President that power to propose amendments is therefore a
downright justiciable question. Should the contrary be found, the
actuation of the President would merely be a brutum fulmen. If the
Constitution provides how it may be amended, the judiciary as the
interpreter of that Constitution, can declare whether the procedure
We cannot accept the view of the Solicitor General, in pursuing his
theory of non-justiciability, that the question of the President's
authority to propose amendments and the regularity of the
procedure adopted for submission of the proposal to the people
ultimately lie in the judgment of the A clear Descartes fallacy
of vicious circle. Is it not that the people themselves, by their
sovereign act, provided for the authority and procedure for the
amending process when they ratified the present Constitution in
1973? Whether, therefore, the constitutional provision has been
followed or not is the proper subject of inquiry, not by the people
themselves of course who exercise no power of judicial but by the
Supreme Court in whom the people themselves vested that power, a
power which includes the competence to determine whether the
constitutional norms for amendments have been observed or not.
And, this inquiry must be done a prior not a posterior i.e., before the
submission to and ratification by the people.
24
Indeed, the precedents evolved by the Court or, prior constitutional
cases underline the preference of the Court's majority to treat such
issue of Presidential role in the amending process as one of non-
political impression. In the Plebiscite Cases, 11 the contention of the
Solicitor General that the issue on the legality of Presidential Decree
No. 73 "submitting to the Pilipino people (on January 15, 1973) for
ratification or rejection the Constitution of the Republic of the
Philippines proposed by the 1971 Constitutional Convention and
appropriating fund s therefore "is a political one, was rejected and
the Court unanimously considered the issue as justiciable in nature.
Subsequently in the Ratification Cases 12involving the issue of
whether or not the validity of Presidential Proclamation No. 1102.
announcing the Ratification by the Filipino people of the constitution
proposed by the 1971 Constitutional Convention," partakes of the
nature of a political question, the affirmative stand of' the Solicitor
General was dismissed, the Court ruled that the question raised is
justiciable. Chief Justice Concepcion, expressing the majority view,
said, Thus, in the aforementioned plebiscite cases, We rejected the
theory of the respondents therein that the question whether
Presidential Decree No. 73 calling a plebiscite to be held on January
15, 1973, for the ratification or rejection of the proposed new
Constitution, was valid or not, was not a proper subject of judicial
inquiry because, they claimed, it partook of a political nature, and
We unanimously declared that the issue was a justiciable one. With
Identical unanimity. We overruled the respondent's contention in
the 1971 habeas corpus cases, questioning Our authority to
determine the constitutional sufficiency of the factual bases of the
Presidential proclamation suspending the privilege of the writ of
habeas corpus on August 21, 1971, despite the opposite view taken
by this Court in Barcelon vs. Baker and Montenegro vs. Castaneda,
insofar as it adhered to the former case, which view We,
accordingly, abandoned and refused to apply. For the same reason,
We did not apply and expressly modified, in Gonzales vs.
Commission on Elections, the political-question theory adopted in
Mabanag vs. Lopez Vito." 13 The return to Barcelon vs. Baker and
Mabanag vs. Lopez Vito, urged by the Solicitor General, was
decisively refused by the Court. Chief Justice Concepcion continued:
"The reasons adduced in support thereof are, however, substantially
the same as those given in support on the political question theory
advanced in said habeas corpus and plebiscite cases, which were
carefully considered by this Court and found by it to be legally
unsound and constitutionally untenable. As a consequence. Our
decisions in the aforementioned habeas corpus cases partakes of the
nature and effect of a stare decisis which gained added weight by its
virtual reiteration."
II
The amending process as laid out
in the new Constitution.
1. Article XVI of the 1973 Constitution on Amendments ordains:
SECTION 1. (1) Any amendment to, or revision of,
this Constitution may be proposed by the
National Assembly upon a vote of three-fourths
of all its Members, or by a constitutional
convention. (2) The National Assembly may, by a
vote of two-thirds of all its Members, call a
constitutional convention or, by a majority vote
of all its Members, submit the question of calling
such a convention to the electorate in an
election.
SECTION 2. Any amendment to, or revision of,
this Constitution shall be valid when ratified by a
majority of the votes cast in a plebiscite which
shall be held not later than three months after
the approval of such amendment or revision.
In the present period of transition, the interim National Assembly
instituted in the Transitory Provisions is conferred with that
amending power. Section 15 of the Transitory Provisions reads:
SECTION 15. The interim National Assembly,
upon special call by the interim Prime Minister,
may, by a majority vote of all its Members,
propose amendments to this Constitution. Such
amendments shall take effect when ratified in
accordance with Article Sixteen hereof.
There are, therefore, two periods contemplated in the constitutional
life of the nation, i.e., period of normalcy and period of transition. In
times of normally, the amending process may be initiated by the
proposals of the (1) regular National Assembly upon a vote of three-
fourths of all its members; or (2) by a Constitutional Convention
called by a vote of two-thirds of all the Members of the National
Assembly. However the calling of a Constitutional Convention may
be submitted to the electorate in an election voted upon by a
majority vote of all the members of the National Assembly. In times
of transition, amendments may be proposed by a majority vote of all
the Members of the National Assembly upon special call by the
interim Prime Minister,.
2. This Court in Aquino v. COMELEC," had already settled that the
incumbent President is vested with that prerogative of discretion as
to when he shall initially convene the interim National Assembly.
Speaking for the majority opinion in that case, Justice Makasiar said:
"The Constitutional Convention intended to leave to the President
the determination of the time when he shall initially convene the
interim National Assembly, consistent with the prevailing conditions
of peace and order in the country." Concurring, Justice Fernandez,
himself a member of that Constitutional Convention, revealed:
"(W)hen the Delegates to the Constitutional Convention voted on
the Transitory Provisions, they were aware of the fact that under the
same, the incumbent President was given the discretion as to when
he could convene the interim National Assembly; it was so stated
plainly by the sponsor, Delegate Yaneza; as a matter of fact, the
proposal that it be convened 'immediately', made by Delegate
Pimentel (V) was rejected. The President's decision to defer the
convening of the interim National Assembly soon found support
from the people themselves. In the plebiscite of January 10-15,
1973, at which the ratification of the 1973 Constitution was
submitted, the people voted against the convening of the interim
National Assembly. In the referendum of July 24, 1973, the Citizens
Assemblies ("bagangays") reiterated their sovereign will to withhold
the convening of the interim National Assembly. Again, in the
referendum of February 27, 1975, the proposed question of whether
the interim National Assembly shall be initially convened was
eliminated, because some of the members of Congress and
delegates of the Constitutional Convention, who were deemed
automatically members of the I interim National Assembly, were
against its inclusion since in that referendum of January, 1973, the
people had already resolved against it.
3. In sensu strictiore, when the legislative arm of the state
undertakes the proposals of amendment to a Constitution, that
body is not in the usual function of lawmaking. lt is not legislating
when engaged in the amending process.16 Rather, it is exercising a
peculiar power bestowed upon it by the fundamental charter itself.
In the Philippines, that power is provided for in Article XVI of the
1973 Constitution (for the regular National Assembly) or in Section
15 of the Transitory Provisions (for the National Assembly). While
ordinarily it is the business of the legislating body to legislate for the
nation by virtue of constitutional conferment amending of the
Constitution is not legislative in character. In political science a
distinction is made between constitutional content of an organic
character and that of a legislative character'. The distinction,
however, is one of policy, not of law. 17Such being the case, approval
of the President of any proposed amendment is a misnomer 18 The
prerogative of the President to approve or disapprove applies only
to the ordinary cases of legislation. The President has nothing to do
with proposition or adoption of amendments to the Constitution. 19
III
Concentration of Powers in the President during crisis government.
25
1. In general, the governmental powers in crisis government the
Philippines is a crisis government today are more or less
concentrated in the President. 20 According to Rossiter, "(t)he
concentration of government power in a democracy faced by an
emergency is a corrective to the crisis inefficiencies inherent in the
doctrine of the separation of powers. In most free states it has
generally been regarded as imperative that the total power of the
government be parceled out among three mutually independent
branches executive, legislature, and judiciary. It is believed to be
destructive of constitutionalism if any one branch should exercise
any two or more types of power, and certainly a total disregard of
the separation of powers is, as Madison wrote in the Federalist, No.
47, 'the very definition of tyranny.' In normal times the separation of
powers forms a distinct obstruction to arbitrary governmental
action. By this same token, in abnormal times it may form an
insurmountable barrier to a decisive emergency action in behalf of
the state and its independent existence. There are moments in the
life of any government when all powers must work together in
unanimity of purpose and action, even if this means the temporary
union of executive, legislative, and judicial power in the hands of
one man. The more complete the separation of powers in a
constitutional system, the more difficult and yet the more necessary
will be their fusion in time of crisis. This is evident in a comparison of
the crisis potentialities of the cabinet and presidential systems of
government. In the former the all-important harmony of legislature
and executive is taken for granted; in the latter it is neither
guaranteed nor to be to confidently expected. As a result, cabinet is
more easily established and more trustworthy than presidential
dictatorship. The power of the state in crisis must not only be
concentrated and expanded; it must also be freed from the normal
system of constitutional and legal limitations. 21 John Locke, on the
other hand, claims for the executive in its own right a broad
discretion capable even of setting aside the ordinary laws in the
meeting of special exigencies for which the legislative power had not
provided. 22 The rationale behind such broad emergency powers of
the Executive is the release of the government from "the paralysis of
constitutional restrains" so that the crisis may be ended and normal
times restored.
2. The presidential exercise of legislative powers in time of martial
law is now a conceded valid at. That sun clear authority of the
President is saddled on Section 3 (pars. 1 and 2) of the Transitory
Provisions, thus: 23
The incumbent President of the Philippines shall
initially convene the interim National Assembly
and shall preside over its sessions until the
interim Speaker shall have been elected. He shall
continue to exercise his powers and prerogatives
under the nineteen hundred and thirty-five
Constitution and the powers vested in the
President and the Prime Minister under this
Constitution until the calls upon the interim
National Assembly to elect the interim President
and the interim Prime Minister, who shall then
exercise their respective powers vested by this
Constitution.
All proclamations, orders, decrees, instructions,
and acts promulgated, issued, or done by the
incumbent President shall be part of the law of
the land, and shall remain valid, binding, and
effective even after lifting of martial law or the
ratification of this Constitution, unless modified,
revoked, or superseded by subsequent
proclamations, orders, decrees, instructions, or
other acts of the incumbent President, or unless
expressly and explicitly modified or repealed by
the regular National Assembly.
"It is unthinkable," said Justice Fernandez, a 1971 Constitutional
Convention delegate, "that the Constitutional Convention, while
giving to the President the discretion when to call the interim
National Assembly to session, and knowing that it may not be
convened soon, would create a vacuum in the exercise of legislative
powers. Otherwise, with no one to exercise the lawmaking powers,
there would be paralyzation of the entire governmental
machinery." 24 Paraphrasing Rossiter, this is an extremely important
factor in any constitutional dictatorship which extends over a period
of time. The separation of executive and legislature ordained in the
Constitution presents a distinct obstruction to efficient crisis
government. The steady increase in executive power is not too much
a cause for as the steady increase in the magnitude and complexity
of the problems the President has been called upon by the Filipino
people to solve in their behalf, which involve rebellion, subversion,
secession, recession, inflation, and economic crisis-a crisis greater
than war. In short, while conventional constitutional law just
confines the President's power as Commander-in-Chief to the
direction of the operation of the national forces, yet the facts of our
political, social, and economic disturbances had convincingly shown
that in meeting the same, indefinite power should be attributed to
tile President to take emergency measures 25
IV
Authority of the incumbent President t to propose amendments to
the Constitution.
1. As earlier pointed out, the power to legislate is constitutionally
consigned to the interim National Assembly during the transition
period. However, the initial convening of that Assembly is a matter
fully addressed to the judgment of the incumbent President. And, in
the exercise of that judgment, the President opted to defer
convening of that body in utter recognition of the people's
preference. Likewise, in the period of transition, the power to
propose amendments to the Constitution lies in the interim National
Assembly upon special call by the President (See. 15 of the
Transitory Provisions). Again, harking to the dictates of the sovereign
will, the President decided not to call the interim National Assembly.
Would it then be within the bounds of the Constitution and of law
for the President to assume that constituent power of the interim
Assembly vis-a-vis his assumption of that body's legislative
functions? The answer is yes. If the President has been legitimately
discharging the legislative functions of the interim Assembly, there is
no reason why he cannot validly discharge the function of that
Assembly to propose amendments to the Constitution, which is but
adjunct, although peculiar, to its gross legislative power. This, of
course, is not to say that the President has converted his office into
a constituent assembly of that nature normally constituted by the
legislature. Rather, with the interim National Assembly not
convened and only the Presidency and the Supreme Court in
operation, the urges of absolute necessity render it imperative upon
the President to act as agent for and in behalf of the people to
propose amendments to the Constitution. Parenthetically, by its
very constitution, the Supreme Court possesses no capacity to
propose amendments without constitutional infractions. For the
President to shy away from that actuality and decline to undertake
the amending process would leave the governmental machineries at
a stalemate or create in the powers of the State a destructive
vacuum, thereby impeding the objective of a crisis government "to
end the crisis and restore normal times." In these parlous times, that
Presidential initiative to reduce into concrete forms the constant
voices of the people reigns supreme. After all, constituent
assemblies or constitutional conventions, like the President now, are
mere agents of the people .26
2. The President's action is not a unilateral move. As early as the
referendums of January 1973 and February 1975, the people had
already rejected the calling of the interim National Assembly. The
Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, the
Pambansang Katipunan ng mga Barangay, and the Pambansang
Katipunan ng mga Barangay, representing 42,000 barangays, about
the same number of Kabataang Barangay organizations, Sanggunians
in 1,458 municipalities, 72 provinces, 3 sub-provinces, and 60 cities
had informed the President that the prevailing sentiment of the
people is for the abolition of the interim National Assembly. Other
issues concerned the lifting of martial law and amendments to the
Constitution .27 The national organizations of Sangguniang Bayan
presently proposed to settle the issues of martial law, the interim
Assembly, its replacement, the period of its existence, the length of
26
the period for the exercise by the President of its present powers in
a referendum to be held on October 16 . 28 The Batasang Bayan
(legislative council) created under Presidential Decree 995 of
September 10, 1976, composed of 19 cabinet members, 9 officials
with cabinet rank, 91 members of the Lupong Tagapagpaganap
(executive committee) of the Katipunan ng mga Sangguniang Bayan
voted in session to submit directly to the people in a plebiscite on
October 16, the previously quoted proposed amendments to the
Constitution, including the issue of martial law .29 Similarly, the
"barangays" and the "sanggunians" endorsed to the President the
submission of the proposed amendments to the people on October
16. All the foregoing led the President to initiate the proposal of
amendments to the Constitution and the subsequent issuance of
Presidential Decree No, 1033 on September 22, 1976 submitting the
questions (proposed amendments) to the people in the National
Referendum-Plebiscite on October 16.
V constituent act of those "citizens of the Philippines not otherwise
The People is Sovereign
1. Unlike in a federal state, the location of sovereignty in a unitary
state is easily seen. In the Philippines, a republican and unitary state,
sovereignty "resides in the people and all government authority
emanates from them .30 In its fourth meaning, Savigny would treat
people as "that particular organized assembly of individuals in
which, according to the Constitution, the highest power
exists." 31 This is the concept of popular sovereignty. It means that
the constitutional legislator, namely the people, is sovereign 32 In
consequence, the people may thus write into the Constitution their
convictions on any subject they choose in the absence of express
constitutional prohibition. 33 This is because, as Holmes said, the
Constitution "is an experiment, as all life is all experiment." 34 "The
necessities of orderly government," wrote Rottschaefer, "do not
require that one generation should be permitted to permanently
fetter all future generations." A constitution is based, therefore,
upon a self-limiting decision of the people when they adopt it. 35
2. The October 16 referendum-plebiscite is a resounding call to the
people to exercise their sovereign power as constitutional legislator.
The proposed amendments, as earlier discussed, proceed not from
the thinking of a single man. Rather, they are the collated thoughts
of the sovereign will reduced only into enabling forms by the
authority who can presently exercise the powers of the government.
In equal vein, the submission of those proposed amendments and
the question of martial law in a referendum-plebiscite expresses but
the option of the people themselves implemented only by the
authority of the President. Indeed, it may well be said that the
amending process is a sovereign act, although the authority to
initiate the same and the procedure to be followed reside somehow
in a particular body.
VI
Referendum-Plebiscite not rendered nugatory by the participation of
the 15-year olds.
1. October 16 is in parts a referendum and a plebiscite. The question
- (1) Do you want martial law to be continued? - is a referendum
question, wherein the 15-year olds may participate. This was
prompted by the desire of the Government to reach the larger mas
of the people so that their true pulse may be felt to guide the
President in pursuing his program for a New Order. For the
succeeding question on the proposed amendments, only those of
voting age of 18 years may participate. This is the plebiscite aspect,
as contemplated in Section 2, Article XVI of the new
Constitution. 36 On this second question, it would only be the votes
of those 18 years old and above which will have valid bearing on the
results. The fact that the voting populace are simultaneously asked
to answer the referendum question and the plebiscite question does
not infirm the referendum-plebiscite. There is nothing objectionable
in consulting the people on a given issue, which is of current one and
submitting to them for ratification of proposed constitutional
amendments. The fear of commingled votes (15-year olds and 18-
year olds above) is readily dispelled by the provision of two ballot
boxes for every barangay center, one containing the ballots of voters
fifteen years of age and under eighteen, and another containing the
ballots of voters eighteen years of age and above. 37 The ballots in
the ballot box for voters fifteen years of age and under eighteen
shall be counted ahead of the ballots of voters eighteen years and
above contained in another ballot box. And, the results of the
referendum-plebiscite shall be separately prepared for the age
groupings, i.e., ballots contained in each of the two boxes. 38
2. It is apt to distinguish here between a "referendum" and a
"plebiscite." A "referendum" is merely consultative in character. It is
simply a means of assessing public reaction to the given issues
submitted to the people foe their consideration, the calling of which
is derived from or within the totality of the executive power of the
President. 39It is participated in by all citizens from the age of fifteen,
regardless of whether or not they are illiterates, feeble-minded, or
ex- convicts . 40 A "plebiscite," on the other hand, involves the
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 Literacy, property or any other substantive requirement
is not imposed. It is generally associated with the amending process
of the Constitution, more particularly, the ratification aspect.
VII
1. There appeals to be no valid basis for the claim that the regime of
martial law stultifies in main the freedom to dissent. That speaks of a
bygone fear. The martial law regime which, in the observation of
Justice Fernando, 41 is impressed with a mild character recorded no
State imposition for a muffled voice. To be sure, there are restraints
of the individual liberty, but on certain grounds no total suppression
of that liberty is aimed at. The for the referendum-plebiscite on
October 16 recognizes all the embracing freedoms of expression and
assembly The President himself had announced that he would not
countenance any suppression of dissenting views on the issues, as
he is not interested in winning a "yes" or "no" vote, but on the
genuine sentiment of the people on the issues at hand. 42 Thus, the
dissenters soon found their way to the public forums, voicing out
loud and clear their adverse views on the proposed amendments
and even (in the valid ratification of the 1973 Constitution, which is
already a settled matter. 43 Even government employees have been
held by the Civil Service Commission free to participate in public
discussion and even campaign for their stand on the referendum-
plebiscite issues. 44
VIII
Time for deliberation is not short.
1. The period from September 21 to October 16 or a period of 3
weeks is not too short for free debates or discussions on the
referendum-plebiscite issues. The questions are not new. They are
the issues of the day. The people have been living with them since
the proclamation of martial law four years ago. The referendums of
1973 and 1975 carried the same issue of martial law. That
notwithstanding, the contested brief period for discussion is not
without counterparts in previous plebiscites for constitutional
amendments. Justice Makasiar, in the Referendum Case, recalls:
"Under the old Society, 15 days were allotted for the publication in
three consecutive issues of the Official Gazette of the women's
suffrage amendment to the Constitution before the scheduled
plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional
amendment to append as ordinance the complicated Tydings-
Kocialskowski was published in only three consecutive issues of the
Official Gazette for 10 days prior to the scheduled plebiscite (Com.
Act 492). For the 1940 Constitutional amendments providing for the
bicameral Congress, the reelection of the President and Vice
President, and the creation of the Commission on Elections, 20 days
of publication in three consecutive issues of the Official Gazette was
fixed (Com Act No. 517). And the Parity Amendment, an involved
constitutional amendment affecting the economy as well as the
independence of the Republic was publicized in three consecutive
27
issues of the Official Gazette for 20 days prior to the plebiscite (Rep.
Act No. 73)." 45
2. It is worthy to note that Article XVI of the Constitution makes no
provision as to the specific date when the plebiscite shall be held,
but simply states that it "shall be held not later than three months
after the approval of such amendment or revision." In Coleman v.
Miller, 46 the United States Supreme court held that this matter of
submission involves "an appraisal of a great variety of relevant
conditions, political, social and economic," which "are essentially
political and not justiciable." The constituent body or in the instant
cases, the President, may fix the time within which the people may
act. This is because proposal and ratification are not treated as
unrelated acts, but as succeeding steps in a single endeavor, the
natural inference being that they are not to be widely separated in
time; second, it is only when there is deemed to be a necessity
therefor that amendments are to be proposed, the reasonable
implication being that when proposed, they are to be considered
and disposed of presently, and third, ratification is but the
expression of the approbation of the people, hence, it must be done
contemporaneously. 47 In the words of Jameson, "(a)n alteration of
the Constitution proposed today has relation to the sentiment and
the felt needs of today, and that, if not ratified early while that
sentiment may fairly be supposed to exist. it ought to be regarded as
waived, and not again to be voted upon, unless a second time
proposed by proper body
IN RESUME
The three issues are
1. Is the question of the constitutionality of Presidential Decrees
Nos. 991, 1031 and 1033 political or justiciable?
2. During the present stage of the transition period, and under, the
environmental circumstances now obtaining, does the President
possess power to propose amendments to the Constitution as well
as set up the required machinery and prescribe the procedure for
the ratification of his proposals by the people?
3. Is the submission to the people of the proposed amendments
within the time frame allowed therefor a sufficient and proper
submission?
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate
Justices Enrique M. Fernando, Claudio Teehankee, Antonio P.
Barredo, Cecilia Munoz Palma, Hermogenes Concepcion Jr. and
Ruperto G. Martin are of the view that the question posed is
justiciable, while Associate Justices Felix V. Makasiar, Felix Q.
Antonio and Ramon C. Aquino hold the view that the question is
political.
Upon the second issue, Chief Justice Castro and Associate Justices
Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin
voted in the affirmative, while Associate Justices Teehankee and
Munoz Palma voted in the negative. Associate Justice Fernando,
conformably to his concurring and dissenting opinion in Aquino vs.
Enrile (59 SCRA 183), specifically dissents from the proposition that
there is concentration of powers in the Executive during periods of
crisis, thus raising serious doubts as to the power of the President to
propose amendments.
Upon the third issue, Chief Justice Castro and Associate Justices
Barredo, Makasiar, Aquino, Concepcion Jr. and Martin are of the
view that there is a sufficient and proper submission of the proposed
amendments for ratification by the people. Associate Justices
Barredo and Makasiar expressed the hope, however that the period
of time may be extended. Associate Justices Fernando, Makasiar and
Antonio are of the view that the question is political and therefore
beyond the competence and cognizance of this Court, Associate
Justice Fernando adheres to his concurrence in the opinion of Chief
Justice Concepcion in Gonzales vs. COMELEC (21 SCRA
774).Associate Justices Teehankee and MUNOZ Palma hold that
prescinding from the President's lack of authority to exercise the
constituent power to propose the amendments, etc., as above
stated, there is no fair and proper submission with sufficient
information and time to assure intelligent consent or rejection under
the standards set by this Court in the controlling cases of Gonzales,
supra, and Tolentino vs. COMELEC (41 SCRA 702).
Chief Justice Castro and Associate Justices Barredo, Makasiar,
Antonio, Aquino, Concepcion Jr. and Martin voted to dismiss the
three petitions at bar. For reasons as expressed in his separate
opinion, Associate Justice Fernando concurs in the result. Associate
Justices Teehankee and Munoz Palma voted to grant the petitions.
ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions
are hereby dismissed. This decision is immediately executory.
SO ORDERED.
Aquino, J, in the result.
Separate Opinions
CASTRO, C.J.:, concurring:
From the challenge as formulated in the three petitions at bar and
the grounds advanced be the Solicitor General in opposition thereto,
as well as the arguments adduced by the counsels of the parties at
the hearing had on October 7 and 8, 1976, three vital issues readily
project themselves as the centers of controversy, namely:
(1) Is the question of the constitutionality of Presidential Decrees
Nos. 991, 1031 and 1033 political or justiciable?
(2) During the present stage of the transition period, and under the
environmental circumstances now obtaining, does the President
possess power to propose amendments to the Constitution as well
as set up the required machineries and prescribe the procedure for
the ratification of his proposals by the people?
(3) Is the submission to the people of the proposed amendments
within the time frame allowed therefor a sufficient and proper,
submission"
I
First Issue
The threshold question is not at all one of first impression
Specifically on the matter of proposals to amend the Constitution,
this Court, in Mabanag vs. Lopez Vito (78 Phil. 1), inceptively
announced the dictum that-
Proposal to amend the Constitution is a highly
political function performed by the Congress in
its sovereign legislative capacity and committed
to its charges by the Constitution itself. The
exercise of this power is even independent of
any intervention by the Chief Executive. If on
grounds of expediency scrupulous attention of
the judiciary be needed to safeguard public
interest, there is less reason for judicial inquiry
into the validity of a proposal than into that of a
ratification.
In time, however, the validity of the said pronouncement was
eroded. In the assessment of the Court itself-
The force of this precedent has been weakened, however, by Suanes
vs. Chief Accountant of the Senate (81 Phil. 818), Avelino vs. Cuenco
(L-2581, March 4 and 14, 1949), Tanada vs. Cuenco (L-10520,
February 28, 1957), and Macias vs. Commission on Elections (L-
18684, September 14, 1961).
28
 xxx xxx xxx
In short, the issue whether or not a Resolution of Congress-acting as
a constituent assembly-violates the Constitution is essentially
justiciable, not political, and, hence, subject to judicial review, and,
to the extent this view may be inconsistent with the stand taken in
Mabanag vs. Lopez Vito the latter should be deemed modified
accordingly. The Members of the Court are unanimous on this
point." (Gonzales vs. Commission on Elections, et al, L-28196,
November 9, 1967, 21 SCRA 774, 786-787).
The abandonment of the Mabanag vs. Lopez Vito doctrine appears
to have been completed when, in Javellana vs. Secretary, et al. (L-
36142, March 3l, 1973, 50 SCRA 30), six members of the Court
concurred in the view that the question of whether the 1973
Constitution was ratified in accordance with the provisions of Article
XV (Amendments) of the 1935 Constitution is inherently and
essentially justiciable.
As elucidated therein, with extensive quotations from Tanada vs.
Cuenco (103 Phil. 1051)-
... the term 'political question' connotes, in legal
parlance, what it means in ordinarily parlance,
namely, a question of policy in matters
concerning the government of a State, as a body
politic. In other words, in the language of Corpus
Juris Secundum (supra), it refers to 'those
questions which, under the Constitution, are to
be decided by the people in their sovereign
capacity, or in regard to which full discretionary
authority has been delegated to the Legislature
or executive branch of the government.' It is
concerned with issues dependent upon the
wisdom, not legality, of a particular measure.'
Accordingly, when the grant of power is qualified, conditional or
subject to limitations, the issue on whether or not the prescribed
qualifications or conditions have been met, or the limitations
respected, is justiciable or non-political, the crux of the problem
being one of legality or validity of the contested act, not its wisdom.
Otherwise, said qualifications, conditions or limitations - particularly
those prescribed or imposed by the Constitution - would be set at
naught." (Javellana vs. Executive Secretary, supra).
So it is in the situation here presented. The basic issue is the
constitutional validity of the presidential acts of proposing
amendments to the Constitution and of calling a referendum-
plebiscite for the ratification of the proposals made. Evidently, the
question does not concern itself with the wisdom of the exercise of
the authority claimed or of the specific amendments proposed.
Instead the inquiry vel non is focused solely on the existence of the
said power in the President - a question purely of legality
determinable thru interpretation and construction of the letter and
spirit of the Constitution by the Court as the final arbiter in the
delineation of constitutional boundaries and the allocation of
constitutional powers.
For the Court to shun cognizance of the challenge herein presented,
especially in these parlous years, would be to abdicate its
constitutional powers, shirk its constitutional responsibility, and
deny the people their ultimate recourse for judicial determination.
I have thus no hesitancy in concluding that the question here
presented is well within the periphery of judicial inquiry.
II
Second Issue
The main question stands on a different footing; it appears
unprecedented both here and elsewhere. Its solution, I believe, can
be found and unraveled only by a critical assessment of the existing
legal order in the light of the prevailing political and factual milieu.
To be sure, there is an impressive array of consistent jurisprudence
on the proposition that, normally or under normal conditions, a
Constitution may be amended only in accord with the procedure set
forth therein. Hence, if there be any such prescription for the
amendatory process as invariable there is because one of the
essential parts of a Constitution is the so-called "constitution of
sovereignty" which comprises the provision or provisions on the
modes in accordance with which formal changes in the fundamental
law may be effected the same would ordinarily be the controlling
criterion for the validity of the amendments sought.
Unfortunately, however, during the present transition period of our
political development, no express provision is extant in the
Constitution regarding the agency or agent by whom and the
procedure by which amendments thereto may be proposed and
ratified fact overlooked by those who challenge the validity of the
presidential acts in the premises. This is so because there are at least
two distinctly in the transition from the old system of government
under the 1935 Constitution to the new one established by the 1973
Constitution.
The first stage comprises the period from the effectivity of the
Constitution on January 17, 1973 to the time the National Assembly
is convened by the incumbent President and the interim President
and the interim Prime Minister are chosen Article XVII, Sections 1
and 3[1]. The existence of this stage as an obvious fact of the
nation's political life was recognized by the Court in Aquino vs.
Commission on Elections, et al. (L-40004, January 31, 1975, 62 SCRA
275), when it rejected the claim that, under the 1973 Constitution,
the President was in duty bound to convene the interim National
Assembly soon after the Constitution took effect.
The second stage embraces the period from the date the interim
National Assembly is convened to the date the Government
described in Articles VII to IX of the Constitution is inaugurated,
following the election of the members of the regular National
Assembly (Article XVII, Section 1) and the election of the regular
President and Prime Minister,. This is as it should be because it is
recognized that the President has been accorded the discretion to
determine when he shall initially convene the interim National
Assembly, and his decision to defer the convocation thereof has
found overwhelming support by the sovereign people in two
previous referenda, therein giving reality to an interregnum
between the effectivity of the Constitution and the initial
convocation of the interim National Assembly, which interregnum,
as aforesaid, constitutes the first stage in the transition period.
Against this factual backdrop, it is readily discernible that neither of
the two sets of provisions embodied in the Constitution on the
amendatory process applied during the said first stage. Thus, Section
15, Article XVII (Transitory Provisions) provides-
"Sec. 15. The interim National Assembly, upon special call by the
interim Prime Minister, may, by a majority vote of all its Members,
propose amendments to this Constitution. Such amendments shall
take effect when ratified in accordance with Article Sixteen hereof."
Patently, the reference to the "interim National Assembly" and the
"interim Prime Minister" limits the application thereof to the second
stage of the transition period, i.e.,., after the interim? National
Assembly shall have been convened and the interim Prime Minister
shall have been chosen.
Upon the other hand, the provisions of Article XVI (Amendments), to
wit-
SECTION 1. (1) Any amendment to, or revision of,
this Constitution may be proposed by the
National Assembly upon a vote of three-fourths
of all its Members, or by a constitutional
convention.
29
 (2) The National Assembly may, by a vote of two-
thirds of all its Members, call a constitutional
convention or, by a majority vote of all its
Members, submit the question of ceiling such a
convention to the electorate in an election.
SEC. 2. Any amendment to, or revision of, this
Constitution shall be valid when ratified by a
majority of the votes cast in a plebiscite which
shall be held not later than three months after
the approval of such amendment or revision.
unequivocally contemplate amendments after the regular
Government shall have become fully operative, referring as they do
to the National Assembly which will come into being only at that
time.
In the face of this constitutional hiatus, we are confronted with the
dilemma whether amendments to the Constitution may be effected
during the aforesaid first stage and, if in the affirmative, by whom
and in what manner such amendments may be proposed and
ratified.
Susceptibility to change is one of the hallmarks of an Ideal
Constitution. Not being a mere declaration of the traditions of a
nation but more the embodiment of a people's hopes and
aspirations, its strictures are not unalterable. They are, instead,
dynamic precepts intended to keep in stride with and attuned to the
living social organism they seek to fashion and govern. If it is
conceded that "the political or philosophical aphorism of one
generation is doubted by the next and entirely discarded by the
third," then a Constitution must be able to adjust to the changing
needs and demands of society so that the latter may survive,
progress and endure. On these verities, there can be no debate.
During the first stage of the transition period in which the
Government is at present - which is understandably the most critical
- the need for change may be most pressing and imperative, and to
disavow the existence of the right to amend the Constitution would
be sheer political heresy. Such view would deny the people a
mechanism for effecting peaceful change, and belie the organic
conception of the Constitution by depriving it of its means of
growth. Such a result obviously could not have been intended by the
framers of the fundamental law.
It seems, however, that the happenstance that the first period
would come to pass before the convocation of the interim National
Assembly was not anticipated, hence, the omission of an express
mandate to govern the said situation in so far as amendments are
concerned. But such omission through inadvertence should not,
because it cannot, negate the sovereign power of the people to
amend the fundamental charter that governs their lives and their
future and perhaps even the very survival of the nation.
Upon the other hand, it is clear from the afore-quoted provisions on
the amendatory process that the intent was, instead, to provide a
simpler and more expeditious mode of amending the Constitution
during the transition period. For, while under Article XVI thereof,
proposals for amendment may be made directly by the regular
National Assembly by a vote of at least three-fourths of all its
members, under Section 15 of Article XVII, a bare majority vote of all
the members of the National Assembly would suffice for the
purpose. The relaxation and the disparity in the vote requirement
are revealing. The can only signify a recognition of the need to
facilitate the adoption of amendments during the second stage of
the transition period so that the interim National Assembly will be
able, in a manner of speaking, to iron out the kinks in the new
Constitution, remove imperfections therein, and provide for
changed or changing circumstances before the establishment of the
regular Government. In this contest, therefore, it is inutile
speculation to assume that the Constitution was intended to render
impotent or ar the effectuation of needful change at an even more
critical period - the first stage. With greater reason, therefore, must
the right and power to amend the Constitution during the first stage
of te transition period be upheld, albeit within its express and
implied constraints.
Neither can it be successfully argued, in the same context and in the
present posture, that the Constitution may be amended during the
said first stage only by convening the interim National Assembly.
That is to say and require that he said stage must first be brought to
an end before any amendment may be proposed and ratified.
Settled jurisprudence does not square with such a proposition. As
aptly noted in Aquino vs. Commission on Elections, et al., supra, the
framers of the Constitution set no deadline for the convening of the
interim National Assembly because they could not have foreseen
how long the crises which impelled the proclamation and justify the
continued state of martial law would last. Indeed, the framers
committed to the sound judgment is not subject to judicial review,
save possibly to determine whether arbitrariness has infected such
exercise; absent such a taint, the matter is solely in the keeping of
the President. To thus content that only by convening the interim
National Assembly may the Constitution be amended at this time
would effectively override the judgement vested in the President,
even in default of any he has acted arbitrarily or gravely abuse his
discretion. Furthermore, to sustain such a contention would not only
negate the mandate so resoundingly expressed by the people in two
national referenda against the immediate convening of the interim
National Assembly, but as well deride their overwhelming approval
of the manner in which the President has exercised the legislative
power to issue proclamations, orders, decrees and instructions
having the stature and force of law.
Given the constitutional stalemate or impasse spawned by these
supervening developments, the logical query that compels itself for
resolution is: By whom, then, may proposals for the amendment of
the Constitution be made and in what manner may said proposals be
ratified by the people?
It is conventional wisdom that, conceptually, the constituent power
is not to be confuse with legislative power in general because the
prerogative to propose amendments to the Constitution is not in any
sense embraced within the ambit of ordinary law-making. Hence,
there is much to recommend the proposition that, in default of an
express grant thereof, the legislature - traditionally the delegated
repository thereof - may not claim it under a general grant of
legislative authority. In the same vein, neither would it be altogether
unassailable to say that because by constitutional tradition and
express allocation the constituent power under the Constitution is
locate in the law-making agency and at this stage of the transition
period the law-making authority is firmly recognized as being lodged
in the President, the said constituent power should now logically be
in the hands of te President who may thus exercise it in place of the
interim National Assembly. Instead,, as pointed out in Gonzales vs.
Commission on Elections, et al., supra, the power to amend the
Constitution or to propose amendments thereto
... is part of the inherent powers of the people -
as the repository of sovereignty in a republican
state, such as ours - t o make, and, hence, to
amend their own Fundamental Law.
As such, it is undoubtedly a power that only the sovereign people,
either directly by themselves or through their chosen delegate, can
wield. Since it has been shown that the people, inadvertently or
otherwise, have not delegated that power to inadvertently or
otherwise, have not delegated that power to any instrumentality
during the current stage of our hegira from crisis to normalcy, it
follows of necessity that the same remains with them for them to
exercise in the manner they see fit and through the agency they
choose. And, even if it were conceded that - as it is reputedly the
rule in some jurisdictions - a delegation of the constituent authority
amounts to a complete divestiture from the people of the power
delegated which they may not thereafter unilaterally reclaim from
the delegate, there would be no violence donde to such rule,
assuming it to be applicable here, inasmuch as that power, under
the environmental circumstance adverted to, has not been
delegated to anyone in the first place. The constituent power during
the first stage of the transition period belongs to and remains with
30
the people, and accordingly may be exercised by them - how and
when - at their pleasure.
At this juncture, a flashback to the recent and contemporary political
ferment in the country proves revelatory. The people, shocked and
revolted by the "obvious immorality" of the unabashed manner by
which the delegates to the Constitutional Convention virtually
legislated themselves into office as ipso facto members of the
interim National Assembly by the mere fiat of voting for the
transitory provisions of the Constitution. and the stark reality that
the unwieldy political monstrosity that the interim Assembly
portended to be would have proven to be a veritable drain on the
meager financial resources of a nation struggling for survival, have
unequivocally put their foot down, as it were, on the convocation
thereof. But this patently salutary decision of the people proved to
be double-edged. It likewise bound the political machinery of the
Government in a virtual straight-jacket and consigned the political
evolution of the nation into a state of suspended animation. Faced
with the ensuing dilemma, the people understandably agitated for a
solution. Through consultations in the barangays and sanggunian
assemblies, the instrumentalities through which the people's voice is
articulated in the unique system of participatory democracy in the
country today, the underpinnings for the hastening of the return to
constitutional normalcy quickly evolved into an overwhelming
sentiment to amend the Constitution in order to replace the
discredited interim National Assembly with what the people believe
will be an appropriate agency to eventually take over the law-
making power and thus pave the way for the early lifting of martial
rule. In pursuit of this sentiment, and to translate its constraints into
concrete action, the Pambansang Katipunan ng Barangay, the
Pambansang Katipunan ng mga Kabataang Barangay, the Lupong
Tagapagpaganap of the Katipunan ng mga Barangay, the
Pambansang Katipunan ng mga Kabataang Barangay the Lupong
Tagapagpaganap of the Katipunan ng mga Sanggunian, and finally
the Batasang Bayan, to a man and as one voice, have come forward
with definitive proposals for the amendment of the Constitution,
and, choosing the President the only political arm of the State at this
time through which that decision could be implemented and the end
in view attained as their spokesman, proposed the amendments
under challenge in the cases at bar.
In the light of this milieu and its imperatives, one thing is
inescapable: the proposals now submitted to the people for their
ratification in the forthcoming referendum-plebiscite are factually
not of the President; they are directly those of the people
themselves speaking thru their authorized instrumentalities. The
President merely formalized the said proposals in Presidential
Decree No. 1033. It being conceded in all quarters that sovereignty
resides in the people and it having been demonstrated that their
constituent power to amend the Constitution has not been
delegated by them to any instrumentality of the Government during
the present stage of the transition period of our political
development, the conclusion is ineluctable that their exertion of that
residuary power cannot be vulnerable to any constitutional
challenge as being ultra vires. Accordingly, without venturing to rule
on whether or not the President is vested with constituent power as
it does not appear necessary to do so in the premises the proposals
here challenged, being acts of the sovereign people no less, cannot
be said to be afflicted with unconstitutionality. A fortiori, the
concomitant authority to call a plebiscite and to appropriate funds
therefor is even less vulnerable not only because the President, in
exercising said authority has acted as a mere alter ego of the people
who made the proposals, but likewise because the said authority is
legislative in nature rather than constituent.
III
Third Issue
Little need be said of the claimed insufficiency and impropriety of
the submission of the proposed amendments for ratification from
the standpoint of time. The thesis cannot be disputed that a fair
submission presupposes an adequate time lapse to enable the
people to be sufficiently enlightened on the merits or demerits of
the amendments presented for their ratification or rejection.
However, circumstances there are which unmistakably
demonstrated that the is met. Even if the proposal appear to have
been formalized only upon the promulgation of Presidential Decree
No. 1033 on September 22, 1976, they are actually the
crystallization of sentiments that for so long have preoccupied the
minds of the people and their authorized representatives, from the
very lowest level of the political hierarchy. Hence, unlike proposals
emanating from a legislative body, the same cannot but be said to
have been mulled over, pondered upon, debated, discussed and
sufficiently understood by the great masses of the nation long
before they ripened into formal proposals.
Besides. it is a fact of which judicial notice may well be taken that in
the not so distant past when the 1973 Constitution was submitted to
the people for ratification, an all-out campaign, in which all the
delegates of the Constitutional Convention reportedly participated,
was launched to acquaint the people with the ramifications and
working of the new system of government sought to be inaugurated
thereunder. It may thus well be assumed that the people in general
have since acquired, in the least, a working knowledge of the
entirety of the Constitution. The changes now proposed the most
substantial of which being merely the replacement of the interim
National assembly with another legislative arm for the Government
during the transition period until the regular National Assembly shall
have been constituted do not appear to be of such complexity as to
require considerable time to be brought home to the full
understanding of the people. And, in fact, the massive and wide-
ranging informational and educational campaign to this end has
been and still is in full swing, with all the media the barangay, the
civic and sectoral groups, and even the religious all over the land in
acting and often enthusiastic if not frenetic involvement.
Indeed, when the people cast their votes on October 16, a negative
vote could very well mean an understanding of the proposals which
they reject; while an affirmative vote could equally be indicative Of
such understanding and/or an abiding credence in the fidelity with
which the President has kept the trust they have confided to him as
President and administrator of martial rule
IV
Conclusion
It is thus my considered view that no question viable for this court to
pass judgment upon is posed. Accordingly, I vote for the outright
dismissal of the three petitions at bar.
FERNANDO, J., concurring and dissenting:
These three petitions, the latest in a series of cases starting from
Planas v. Commission on Elections continuing with the epochal
resolution in Javellana v. Executive Secretary and followed
successively in three crucial decisions, Aquino v. Ponce Enrile Aquino
v. Commission on Elections, and Aquino v Military
Commission, 5manifest to the same degree the delicate and
awesome character of the function of judicial review. While previous
rulings supply guidance and enlightenment, care is to be taken to
avoid doctrinaire rigidity unmindful of altered circumstances and the
urgencies of the times. It is inappropriate to resolve the complex
problems of a critical period without full awareness of the
consequences that flow from whatever decision is reached. Jural
norms must be read in the context of social facts, There is need
therefore of adjusting inherited principles to new needs. For law,
much more so constitutional law, is simultaneously a reflection of
and a force in the society that it controls. No quality then can be
more desirable in constitutional adjudication than that intellectual
and imaginative insight which goes into the heart of the matter. The
judiciary must survey things as they are in the light of what they
must become It must inquire into the specific problem posed not
only in terms of the teaching of the past but also of the emerging
political and legal theory, especially so under a leadership notable
for its innovative approach to social problems and the vigor of its
implementation. This, on the one side. It must equally be borne in
mind through that this Court must be conscious of the risk inherent
in its being considered as a mere subservient instrument of
31
government policy however admittedly salutary or desirable. There
is still the need to demonstrate that the conclusion reached by it in
cases appropriate for its determination has support in the law that
must be applied. To my mind that was the norm followed, the
conclusion reached being that the three petitions be dismissed. I am
in agreement. It is with regret however that based on my reading of
past decisions, both Philippine and American, and more specifically
my concurring opinion in Aquino v. Ponce Enrile, I must dissent from
the proposition set forth in the able and scholarly opinion of Justice
Martin that there is concentration of power in the President during a
crisis government. Consequently, I cannot see my way clear to
accepting the view that the authority to propose amendments is not
open to question. At the very least, serious doubts could be
entertained on the matter.
1. With due respect then, I have to dissociate myself from my
brethren who would rule that governmental powers in a crisis
government, following Rossiter, "are more or less concentrated in
the President." Adherence to my concurring and dissenting opinion
in Aquino v. Ponce Enrile leaves me no choice.
It must be stated at the outset that with the sufficiency of doctrines
supplied by our past decisions to point the way to what I did
consider the appropriate response to the basic issue raised in the
Aquino and the other habeas corpus petitions resolved jointly, it was
only in the latter portion of my opinion that reference was made to
United States Supreme Court pronouncements on martial law, at the
most persuasive in character and rather few in number "due no
doubt to the, absence in the American Constitution of any provision
concerning it." 7 It was understandable then that it was only after
the landmark Ex parte Milligan case, that commentators like Cooley
in 1868 and Watson in 1910 paid attention, minimal by that, to the
subject." It was next set forth that in the works on American
constitutional law published in this century specially after the
leading cases of cases Sterling v. Constant in and Duncan v.
Kahanamoku, "there was a fuller treatment of the question of
martial law While it is the formulation of Willoughby that for me is
most acceptable, my opinion did take note that another
commentator, Burdick, came out earlier with a similar
appraisal. 10 Thus: "So called martial law, except in occupied territory
of an enemy is merely the calling in of the aid of military forces by
the executive, who is charged with the enforcement of the law, with
or without special authorization by the legislature. Such declaration
of martial law does not suspend the civil law, though it may interfere
with the exercise of one's ordinary rights. The right to call out the
military forces to maintain order and enforce the law is simply part
of the Police power, It is only justified when it reasonably appears
necessary, and only justifies such acts as reasonably appear
necessarily to meet the exigency, including the arrest, or in extreme
cases the. killing of those who create the disorder or oppose the
authorities. When the exigency is over the members of the military
forces are criminally and civilly habit for acts done beyond the scope
of reasonable necessity. When honestly and reasonably coping with
a situation of insurrection or riot a member of the military forces
cannot be made liable for his acts, and persons reasonably arrested
under such circumstances will not, during the insurrection or riot, be
free by writ of habeas corpus." 11 When the opinion cited
Willoughby's concept of martial law, stress was laid on his being
"Partial to the claims of liberty."12 This is evident in the explicit
statement from his work quoted by me: "There is, then, strictly
speaking, no such thing in American law as a declaration of martial
law whereby military law is substituted for civil law. So-called
declarations of martial law are, indeed, often made but their legal
effect goes no further than to warn citizens that the military powers
have been called upon by the executive to assist him in the
maintenance of law and order, and that, while the emergency lasts,
they must, upon pain of arrest and punishment not commit any acts
which will in any way render more difficult the restoration of order
and the enforcement of law. Some of the authorities stating
substantially this doctrine are quoted in the footnote below Nor did I
stop there. The words of Willis were likewise cited: "Martial law
proper, that is, military law in case of insurrection, riots, and
invasions, is not a substitute for the civil law, but is rather an aid to
the execution of civil law. Declarations of martial law go no further
than to warn citizens that the executive has called upon the military
power to assist him in the maintenance of law and order. While
martial law is in force, no new powers are given to the executive and
no civil rights of the individual, other than the writ of habeas corpus,
are suspended. The relations between the citizen and his stature
unchanged." 14
The conclusion reached by me as to the state of American federal
law on the question of martial law was expressed thus: 4'1 It is
readily evident that even when Milligan supplied the only
authoritative doctrine, Burdick and Willoughby did not ignore the
primacy of civil liberties. Willis wrote after Sterling. It would indeed
be surprising if his opinion were otherwise. After Duncan, such an
approach becomes even more strongly fortified. Schwartz, whose
treatise is the latest to be published, has this summary of what he
considers the present state of American law: 'The Milligan and
Duncan cases show plainly that martial law is the public law of
necessity. Necessities alone calls it forth, necessity justifies its
exercise; and necessities measures the extended degree to which it
may be It is, the high Court has affirmed, an unbending rule of law
that the exercise of military power, where the rights of the citizen
are concerned, may, never be pushed beyond what the exigency
requires. If martial law rule survive the necessities on which alone it
rests, for even a single minute it becomes a mere exercise of lawless
violence.' Further: Sterling v. Constantin is of basic importance.
Before it, a number of decisions, including one the highest Court,
went or on the theory that the executive had a free hand in taking
martial law measures. Under them, it has been widely supposed that
in proclamation was so far conclusive that any action taken under it
was immune from judicial scrutiny. Sterling v. Constantin definitely
discredits these earlier decisions and the doctrine of conclusiveness
derived from them. Under Sterling v. Constantin, where martial law
measures impinge upon personal or property rights-normally
beyond the scope of military power, whose intervention is lawful
only because an abnormal Actuation has made it necessary the
executive's ipse dixit is not of itself conclusive of the necessity.'" 15
There was likewise an effort on my part to show what for me is the
legal effect of martial law being expressly provided for in the
Constitution rather than being solely predicated on the common law
power based on the urgent need for it because of compelling
circumstances incident to the state of actual clash of arms: "It is not
to be lost sight of that the basis for the declaration of martial law in
the Philippines is not mere necessity but an explicit constitutional
provision. On the other hand, Milligan, which furnished the
foundation for Sterling and Duncan had its roots in the English
common law. There is pertinence therefore in ascertaining its
significance under that system. According to the noted English
author, Dicey: 'Martial law,' in the proper sense of that term, , in
which - it means the suspension of ordinary law and the temporary
government of a country or parts of it be military tribunals, is
unknown to the law of England. We have nothing equivalent to what
is called in France the "Declaration of the State of Siege," under
which the authority ordinarily vested in the civil power for the
maintenance of order and police passes entirely to the army
(autorite militaire). This is an unmistakable proof of the permanent
supremacy of the law under our constitution. There was this
qualification: 'Martial law is sometimes employed as a name for the
common law right of the Crown and its servants to repel force by
force in the case of invasion, insurrection, riot, or generally of any
violent resistance to the law. This right, or power, is essential to the
very existence of orderly government, and is most assuredly
recognized in the most ample manner by the law of England. It is a
power which has in itself no special connection with the existence of
an armed force. The Crown has the right to put down breaches of
the peace. Every subject, whether a civilian or a soldier, whether
what is called a servant of the government,' such for example as a
policeman, or a person in no way connected with the administration,
not only has the right, but is, as a matter of legal duty, bound to
assist in putting down breaches of the peace. No doubt policemen or
soldiers are the persons who, as being specially employed in the
maintenance of order, are most generally called upon to suppress a
riot, but it is clear that all loyal subjects are bound to take their part
in the suppression of riots." 16
Commitment to such an approach results in my inability to subscribe
to the belief that martial law in terms of what is provided both in the
1935 and the present Constitution, affords sufficient justification for
32
the concentration of powers in the Executive during periods of crisis.
The better view, considering the juristic theory on which our
fundamental law rests is that expressed by Justice Black in Duncan v.
Kahanamoku: "Legislatures and courts are not merely cherished
American institutions; they are indispensable to our
government. 17 If there has been no observance of such a cardinal
concept at the present, it is due to the fact that before the former
Congress could meet in regular session anew, the present
Constitution was adopted, abolishing it and providing for an interim
National Assembly, which has not been convened. 18 So I did view
the matter.
2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion.
Reference was made to the first chapter on his work on
Constitutional Dictatorship where he spoke of martial rule as "a
device designed for use in the crisis of invasion or rebellion. It may
be most precisely defined as an extension of military government to
the civilian population, the substitution of the will of a military
commander for the will of the people's elected
government." 19Since, for me at least, the Rossiter characterization
of martial law has in it more of the common law connotation, less
than duly mindful of the jural effects of its inclusion in the
Constitution itself as a legitimate device for coping with emergency
conditions in times of grave danger, but always subject to attendant
limitations in accordance with the fundamental postulate of a
charter's supremacy, I felt justified in concluding: "Happily for the
Philippines, the declaration of martial law lends itself to the
interpretation that the Burdick, Willoughby, Willis, Schwartz
formulations paying due regard to the primacy of liberty possess
relevance. lt cannot be said that the martial rule concept of Rossiter,
latitudinarian in scope, has been adopted, even on the assumption
that it can be reconciled with our Constitution. What is undeniable is
that President Marcos has repeatedly maintained that Proclamation
No. 1081 was precisely based on the Constitution and that the
validity of acts taken there under could be passed upon by the
Supreme court. For me that is quite reassuring, persuaded as I am
likewise that the week- of Rossiter is opposed to the fundamental
concept of our polity, which puts a premium on freedom."20
3. Candor and accuracy compel the admission that such a conclusion
his to be qualified. For in the opinion of the Court in the aforecited
Aquino v. Commission on Elections, penned by Justice Makasiar, the
proposition was expressly affirmed "that as Commander-in-Chief
and enforcer or administrator of martial law, the incumbent
President of the Philippines can reclamations, orders and decrees
during the period Martial Law essential to the security and
preservation of the Republic, to the defense of the political and
social liberties of the people and to the institution of reforms to
prevent the resurgence of rebellion or insurrection or secession or
the threat thereof as well as to meet the impact of a worldwide
recession, inflation or economic crisis which presently threatens all
nations including highly developed countries." 21 To that extent,
Rossiter's view mainly relied upon, now possesses Juristic significant
in this jurisdiction. What, for me at least, gives caused for concern is
that with the opinion of the Court this intrusion of what I would
consider an alien element in the limited concept of martial law as set
forth in the Constitution would be allowed further incursion into the
corpus of the law, with the invocation of the view expressed in the
last chapter of his work approving tile "concentration of
governmental power in a democracy [as] a corrective to the crisis
inefficiencies inherent in the doctrine of the separation of
powers." 22 It is to the credit of the late Professor Rossiter as an
objective scholar that in the very same last chapter, just three pages
later, he touched explicitly on the undesirable aspect of a
constitutional dictatorship. Thus: "Constitutional Dictatorship is a
dangerous thing. A declaration of martial law or the passage of an
enabling act is a step which must always be feared and sometimes
bitterly resisted, for it is at once an admission of the incapacity of
democratic institutions to defend the order within which they
function and a too conscious employment of powers and methods
long ago outlawed as destructive of constitutional government.
Executive legislation, state control of popular liberties, military
courts, and arbitrary executive action were governmental features
attacked by the men who fought for freedom not because they were
inefficient or unsuccessful, but because they were dangerous and
oppressive. The reinstitution of any of these features is a perilous
matter, a step to be taken only when the dangers to a free state will
be greater if the dictatorial institution is not adopted." 23
4. It is by virtue of such considerations that I find myself unable to
share the view of those of my brethren who would accord
recognition to the Rossiter concept of concentration of
governmental power in the Executive during periods of crisis. This is
not to lose sight of the undeniable fact that in this country through
the zeal, vigor, and energy lavished on projects conducive to the
general welfare, considerable progress has been achieved under
martial rule. A fair summary may be found in a recent address of the
First Lady before the delegates to the 1976 international Monetary
Fund-World Bank Joint Annual Meeting: "The wonder is that so
much has been done in so brief a time. Since September 1972, when
President Marcos established the crisis government, peace and
order have been restored in a country once avoided as one of the
most unsafe in the world. We have liberated millions of Filipino
farmers from the bondage of tenancy, in the most vigorous and
extensive implementation of agrarian reform." 24 Further, she said:
"A dynamic economy has replaced a stagnant order, and its rewards
are distributed among the many, not hoarded by a few. Our foreign
policy, once confined by fear and suspicion to a narrow alley of self-
imposed isolation, now travels the broad expressways of friendship
and constructive interaction with the whole world, these in a new
spirit of confidence and self-reliance. And finally, forced to work out
our own salvation, the Filipino has re-discovered the well-springs of
his strength and resilience As Filipinos, we have found our true
Identity. And having broken our crisis of Identity, we are no longer
apologetic and afraid. "25 The very Idea of a crisis, however, signifies
a transitory, certainly not a permanent, state of things. President
Marcos accordingly has not been hesitant in giving utterance to his
conviction that full implementation of the modified parliamentary
system under the present Constitution should not be further
delayed. The full restoration of civilian rule can thus be expected.
That is more in accord with the imperatives of a constitutional order.
It should not go unnoticed either that the President has referred to
the present regime as one of "constitutional authoritarianism." That
has a less objectionable ring, authority being more Identified with
the Idea of law, as based on right, the very antithesis of naked force,
which to the popular mind is associated with dictatorship, even if
referred to as "constitutional."
For me likewise, that equally eminent scholar Corwin, also invoked
in the opinion of the Court, while no doubt a partisan of d strong
Presidency, was not averse to constitutional restraints even during
periods of crisis. So I would interpret this excerpt from the fourth
edition of his classic treatise on the Presidency: "A regime of martial
law may be compendiously, if not altogether accurately, defined as
one in which the ordinary law, as administered by the ordinary
courts, is superseded for the time being by the will of a military
commander. It follows that, when martial law is instituted under
national authority, it rests ultimately on the will of the President of
the United States in his capacity as Commander-in-Chief. It should
be added at once, nevertheless, that the subject is one in which the
record of actual practice fails often to support the niceties of theory.
Thus, the employment of the military arm in the enforcement of the
civil law does not invariably, or even usually, involve martial law in
the strict sense, for, as was noted in the preceding section, soldiers
are often placed simply at the disposal and direction of the civil
authorities as a kind of supplementary police, or posse comitatus on
the other hand be reason of the discretion that the civil authorities
themselves are apt to vest in the military in any emergency requiring
its assistance, the line between such an employment of the military
and a regime of martial law is frequently any but a hard and fast
one. And partly because of these ambiguities the conception itself of
martial law today bifurcates into two conceptions, one of which
shades off into military government and the other into the situation
just described, in which the civil authority remains theoretically in
control although dependent on military aid. Finally, there is the
situation that obtained throughout the North during the Civil War,
when the privilege of the writ of habeas corpus was suspended as to
certain classes of suspects, although other characteristics of martial
law were generally absent." 26
It is by virtue of the above considerations that, with due respect to
the opinion of my brethren, I cannot yield assent to the Rossiter
33
view of concentration of governmental powers in the Executive
during martial law.
5 There is necessity then, for me at least, that the specific question
raised in all three petitions be squarely faced. It is to the credit of
the opinion of the Court that it did so. The basic issue posed
concerns the boundaries of the power of the President during this
period of martial law, more precisely whether it covers proposing
amendments to the Constitution. There is the further qualification if
the stand of respondents be taken into account that the interim
National Assembly has not been convened and is not likely to be
called into session in deference to the wishes of the people as
expressed in three previous referenda. It is the ruling of the majority
that the answer be in the affirmative, such authority being well
within the area of presidential competence. Again I find myself
unable to join readily in that conviction. It does seem to me that the
metes and bounds of the executive domain, while still recognizable,
do appear blurred. This is not to assert that there is absolutely no
basis for such a conclusion, sustained as it is by a liberal construction
of the principle that underlies Aquino v. Commission on Elections as
to the validity of the exercise of the legislative prerogative by the
President as long as the interim National Assembly is not For me, the
stage of certitude has not been reached. I cannot simply ignore the
vigorous plea of petitioners that there is a constitutional deficiency
consisting in the absence of any constituent power on the part of
the President, the express provision of the Constitution conferring it
on the by team National Assembly. 27 The learned advocacy reflected
in the pleadings as well as the oral discourse of Solicitor General
Estelito P. Mendoza 21 failed to erase the grave doubts in my mind
that the Aquino doctrine as to the possession of legislative
competence by the President during this period of transition with
the interim lawmaking body not called into session be thus
expanded. The majority of my brethren took that step. I am not
prepared to go that far. I will explain why.
The way for me, is beset with obstacles. In the first place, such an
approach would lose sight of the distinction between matters
legislative and constituent. That is implicit in the treatise on the
1935 Constitution by Justices Malcolm and Laurel In their casebook
published the same year, one of the four decisions on the subject of
constitutional amendments is Ellingham v. Dye 31 which
categorically distinguished between constituent and legislative
powers. Dean Sinco, a well-known authority on the subject, was
quite explicit. Thus: "If there had been no express provision in the
Constitution granting Congress the power to propose amendments,
it would be outside its authority to assume that power. Congress
may not claim it under the general grant of legislative power for
such grant does not carry with it the right 'to erect the state,
institute the form of its government,' which is considered a function
inherent in the people. Congressional law- making authority is
limited to the power of approving the laws 'of civil conduct relating
to the details and particulars of the government instituted,' the
government established by the people."12 If that distinction be
preserved, then for me the aforecited Aquino decision does not
reach the heart of the matter. Nor is this all. In the main opinion of
Justice Makasiar as well as that of the then Justice, now Chief
Justice, Castro, support for the ruling that the President cannot be
deemed as devoid of legislative power during this transition stage is
supplied by implications from explicit constitutional
provisions. 13 That is not the case with the power to propose
amendments. It is solely the interim National Assembly that is
mentioned. That is the barrier that for me is well-nigh
insurmountable. If I limit myself to entertaining doubts rather than
registering a dissent on this point, it is solely because of the
consideration, possessed of weight and significance, that there may
be indeed in this far-from-quiescent and static period a need for al.
amendments. I do not feel confident therefore that a negative vote
on my part would be warranted. What would justify the step taken
by the President, even if no complete acceptance be accorded to the
view that he was a mere conduit of the barangays on this matter, is
that as noted in both qualified concurrences by Justices Teehankee
and Munoz Palma in Aquino, as far as the legislative and
appropriately powers are concerned, is the necessity that unless
such authority be recognized, there may be paralyzation of
governmental activities, While not squarely applicable, such an
approach has, to my mind, a persuasive quality as far as the power
to propose amendments is concerned.
Thus I would confine myself to the expression of serious doubts on
the question rather than a dissent.
6. The constitutional issue posed as thus viewed leaves me free to
concur in the result that the petitions be dismissed. That is to accord
respect to the principle that judicial review goes no further than to
checking clear infractions of the fundamental law, except in the field
of human rights where a much greater vigilance is required, That is
to make of the Constitution a pathway to rather than a barrier
against a desirable objective. -As shown by my concurring and
dissenting opinion in Tolentino Commission on Elections '34 a pre-
martial law decision, the fundamental postulate that sovereignty
resides in the people exerts a compelling force requiring the
judiciary to refrain as much as possible from denying the people the
opportunity to make known their wishes on matters of the utmost
import for the life of the nation, Constitutional amendments fall in
that category. I am fortified in that conviction by the teaching of
persuasive American decisions There is reinforcement to such a
conclusion from retired Chief Justice Concepcion's concurring and
dissenting opinion in Aytona v. Castillo,17 Which I consider
applicable to the present situation. These are his words: "It is well
settled that the granting of writs of prohibition and mandamus is
ordinarily within the sound discretion of the courts, to be exercised
on equitable principles, and that said writs should be issued when
the right to the relief is clear * * by As he noted in his ponencia in
the later case of Gonzales v. Hechanova,19 an action for prohibition,
while petitioner was sustained in his stand, no injunction was issued.
This was evident in the dispositive portion where judgment was
rendered "declaring that respondent Executive Secretary had and
has no power to authorize the importation in question; that he
exceeded his jurisdiction in granting said authority; that said
importation is not sanctioned by law and is contrary to its provisions;
and that, for lack of the requisite majority, the injunction prayed for
must be and is, accordingly, denied." 40 With the illumination thus
supplied, it does not necessarily follow that even a dissent on my
part would necessarily compel that I vote for the relief prayed for.
Certainly this is not to belittle in any way the action taken by
petitioners in filing these suits. That, for me, is commendable. It
attests to their belief in the rule of law. Even if their contention as to
lack of presidential power be accepted in their entirety, however,
there is still discretion that may be exercised on the matter,
prohibition being an equitable remedy. There are, for me, potent
considerations that argue against acceding to the plea. With the
prospect of the interim National Assembly being convened being
dim, if not non- existent, if only because of the results in three
previous referenda, there would be no constitutional agency other
than the Executive who could propose amendments, which, as
noted. may urgently press for adoption. Of even greater weight, to
my mind, is the pronouncement by the President that the plebiscite
is intended not only to solve a constitutional anomaly with the
country devoid of a legislative body but also to provide. the
machinery be which the termination of martial law could be
hastened. That is a consummation devoutly to be wished. That does
militate strongly against the stand of petitioners. The obstruction
they would pose may be fraught with pernicious consequences. It
may not be amiss to refer anew to what I deem the cardinal
character of the jural postulate explicitly affirmed in both the 1935
and the present Constitutions that sovereignty resides in the people.
So I made clear in Tolentino v. Commission on Elections and
thereafter in my dissent in Javellana v. The Executive Secretary" and
my concurrence in Aquino v. Commission on Elections. 42 The
destiny of the country lies in their keeping. The role of leadership is
not to be minimized. It is crucial it is of the essence. Nonetheless, it
is their will, if given expression in a manner sanctioned by law and
with due care that there be no mistake in its appraisal, that should
be controlling. There is all the more reason then to encourage their
participation in the power process. That is to make the regime truly
democratic. Constitutional orthodoxy requires, however, that the
fundamental law be followed. So I would interpret
Laski, 43 Corwin, 44 Lerner, 45, Bryn-Jones, 46 and McIver.47
7. There is reassurance in the thought that this Court has affirmed its
commitment to the principle that the amending process gives rise to
34
a justiciable rather than a political question. So, it has been since the
leading case of Gonzales v. Commission on Election S. 48 It has since
then been followed in Tolentino v. Commission on Elections 49Planas
v. Commission on Elections," and lastly, in Javellana v. The Executive
Secretary This Court did not heed the vigorous plea of the Solicitor
General to resurrect the political question doctrine announced in
Mabanag v. Lopez Vito. 52This is not to deny that the federal rule in
the United States as set forth in the leading case of Coleman v.
Miller , 53 a 1939 decision, and relatively recent State court
decisions, supply ammunition to such a contention., 51 That may be
the case in the United States, but certainly not in this jurisdiction.
Philippine constitutional tradition is to the contrary. It can trace its
origin to these words in the valedictory address before the 1934-35
Constitutional Convention by the illustrious Claro M. Recto: "It is one
of the paradoxes a democracy that the people of times place more
confidence in instrumentalities of the State other than those directly
chosen by them for the exercise of their sovereignty It can be said
with truth, therefore, that there has invariably been a judicial
predisposition to activism rather than self-restraint. The thinking all
these years has been that it goes to the heart of constitutionalism. It
may be said that this Court has shunned the role of a mere
interpreter; it did exercise at times creative power. It has to that
extent participated in the molding of policy, It has always recognized
that in the large and undefined field of constitutional law,
adjudication partakes of the quality of statecraft. The assumption
has been that just because it cannot by itself guarantee the
formation, much less the perpetuation of democratic values or,
realistically, it cannot prevail against the pressure of political forces
if they are bent in other directions. it does not follow that it should
not contribute its thinking to the extent that it can. It has been
asked, it will continue to be asked, to decide momentous questions
at each critical stage of this nation's life.
There must be, however, this caveat. Judicial activism gives rise to
difficulties in an era of transformation and change. A society in flux
calls for dynamism in "he law, which must be responsive to the
social forces at work. It cannot remain static. It must be sensitive to
life. This Court then must avoid the rigidity of legal Ideas. It must
resist the temptation of allowing in the wasteland of meaningless
abstractions. It must face stubborn reality. It has to have a feel for
the complexities of the times. This is not to discount the risk that it
may be swept too far and too fast in the surge of novel concepts.
The past too is entitled to a hearing; it cannot just be summarily
ignored. History still has its uses. It is not for this Court to renounce
the virtue of systematic jural consistency. It cannot simply yield to
the sovereign sway of the accomplished fact. It must be deaf to the
dissonant dialectic of what appears to be a splintered society. It
should strive to be a factor for unity under a rule of law. There must
be, on its part, awareness of the truth that a new juridical age born
before its appointed time may be the cause of unprecedented travail
that may not end at birth. It is by virtue of such considerations that I
did strive for a confluence of principle and practicality. I must
confess that I did approach the matter with some misgivings and
certainly without any illusion of omniscience. I am comforted by the
thought that immortality does not inhere in judicial opinions. 8. 1 am
thus led by my studies on the subject of constitutional law and,
much more so, by previous judicial opinions to concur in the
dismissal of the petitions. If I gave expression to byes not currently
fashionable, it is solely due to deeply-ingrained beliefs. Certainly, I
am the first to recognize the worth of' the social and economic
reforms so needed by the troubled present that have been
introduced and implemented. There is no thought then of
minimizing, much less of refusing to concede, the considerable
progress that has been made and the benefits that have been
achieved under this Administration. Again, to reiterate one of my
cherished convictions, I certainly approve of the adherence to the
fundamental principle of popular sovereignty which, to be
meaningful however, requires both freedom in its manifestation and
accuracy in ascertaining what it wills. Then, too, it is fitting and
proper that a distinction was made between two aspects of the
coming poll, the referendum and the plebiscite. It is only the latter
that is impressed with authoritative force. So the Constitution
requires. Lastly, there should be, as I did mention in my concurrence
in Aquino v. Commission on Elections,56 full respect for free speech
and press, free assembly and free association. There should be no
thought of branding the opposition as the enemy and the expression
of its views as anathema, Dissent, it is fortunate to note, has been
encouraged. It has not been Identified with disloyalty. That ought to
be the case, and not solely due to presidential decrees. Constructive
criticism is to be welcomed not so much because of the right to be
heard but because there may be something worth hearing. That is to
ensure a true ferment of Ideas, an interplay of knowledgeable
minds. There are though well- defined limits, One may not advocate
disorder in the name of protest, much less preach rebellion under
the cloak of dissent.. What I mean to stress is that except on a
showing of clear and present danger, there must be respect for the
traditional liberties that make a society truly free.
TEEHANKEE, J., dissenting:
1. On the merits: I dissent from the majority's dismissal of the
petitions for lack of merit and vote to grant the petitions for the
following reasons and considerations: 1. It is undisputed that neither
the 1935 Constitution nor the 1973 Constitution grants to the
incumbent President the constituent power to propose and approve
amendments to the Constitution to be submitted to the people for
ratification in a plebiscite. The 1935 Constitution expressly vests the
constituent power in Congress, be a three-fourths vote of all its
members, to propose amendments or call a constitutional
convention for the purpose The 1973 Constitution expressly vests
the constituent power in the regular National Assembly to propose
amendments (by a three-fourths vote of all its members) or "call a
constitutional convention" (by a two-thirds vote of all its members)
or "submit the question of calling such convention to the electorate
in an election" (by a majority vote of all its members ) .2
The transitory provisions of the 1973 Constitution expressing vest
the constituent power during the period of transition in the interim
National Assembly "upon special call be the Prime Minister (the
incumbent President 3)... by a majority ore of all its members (to)
propose amendments."
Since the Constitution provides for the organization of the essential
departments of government, defines and delimits the powers of
each and prescribes the manner of the exercise of such powers, and
the constituent power has not been granted to but has been
withheld from the President or Prime Minister, it follows that the
President's questioned decrease proposing and submitting
constitutional amendments directly to the people (without the
intervention of the interim National Assembly in whom the power is
expressly vested) are devoid of constitutional and legal basis.
2. The doctrine in the leading case of Tolentino vs. Comelec is
controlling in the case at bar In therein declaring null and void the
acts of the 1971 Constitutional Convention and of the Comelec in
calling a plebiscite with the general elections scheduled for
November 8, 1971 for the purpose of submitting for the people's
ratification an advance amendment reducing the voting age from 21
years to 18 years, and issuing writs of prohibition and injunction
against the holding of the plebiscite, this Court speaking through Mr.
Justice Barredo ruled that --The Constitutional provisions on
amendments "dealing with the procedure or manner of amending
the fundamental law are binding upon the Convention and the other
departments of the government, (land) are no less binding upon the
people
As long as an amendment is formulated and
submitted under the aegis of the present
Charter, any proposal for such amendment
which is not in conformity with the letter, spirit
and intent of the Charter for effecting
amendments, cannot receive the sanction of this
Court ; 8
The real issue here cannot be whether or not the amending process
delineated by the present Constitution may be disregarded in favor
of allowing the sovereign people to express their decision on the
proposed amendments, if only because it is evident that the very
Idea of departing from the fundamental law is anachronistic in the
realm of constitutionalism and repugnant to the essence of the rule
of law,"; 9 and
35
-Accordingly barred the plebiscite as improper and premature, since
"the provisional nature of the proposed amendments and the
manner of its submission to the people for ratification or rejection"
did not "conform with the mandate of the people themselves in
such regard, as expressed in the Constitution itself', 10 i.e. the
mandatory requirements of the amending process as set forth in the
Article on Amendments.
3. Applying the above rulings of Tolentino to the case at bar,
mutatis, mutandis, it is clear that where the proposed amendments
are violative of the Constitutional mandate on the amending process
not merely for being a "partial amendment" of a "temporary or
provisional character" (as in Tolentino) but more so for not being
proposed and approved by the department vested by the
Constitution with the constituent power to do so, and hence
transgressing the substantive provision that it is only the interim
National Assembly, upon special call of the interim Prime Minister,
bu a majority vote of all its members that may propose the
amendments, the Court must declare the amendments proposals
null and void.
4. This is so because the Constitution is a "superior paramount law,
unchangeable by ordinary means" 11 but only by the particular
mode and manner prescribed therein by the people. As stressed by
Cooley, "by the Constitution which they establish, (the people) not
only tie up the hands of their official agencies but their own hands as
well; and neither the officers of the State, nor the whole people as
an aggregate body, are at liberty to take action in opposition to this
fundamental law." 12
The vesting of the constituent power to propose amendments in the
legislative body (the regular National Assembly) or the interim
National Assembly during the transition period) or in a constitutional
convention called for the purpose is in accordance with universal
practice. "From the very necessity of the case" Cooley points out
"amendments to an existing constitution, or entire revisions of it,
must be prepared and matured by some body of representatives
chosen for the purpose. It is obviously impossible for the whole
people to meet, prepare, and discuss the proposed alterations, and
there seems to be no feasible mode by which an expression of their
will can be obtained, except by asking it upon the single point of
assent or disapproval." This body of representatives vested with the
constituent - power "submits the result of their deliberations" and
"puts in proper form the questions of amendment upon which the
people are to pass"-for ratification or rejection. 13
5. The Court in Tolentino thus rejected the argument "that the end
sought to be achieved is to be desired" and in denying
reconsideration in paraphrase of the late Claro M. Recto declared
that "let those who would put aside, invoking grounds at best
controversial, any mandate of the fundamental purportedly in order
to attain some laudable objective bear in mind that someday
somehow others with purportedly more laudable objectives may
take advantage of the precedent and continue the destruction of the
Constitution, making those who laid down the precedent of
justifying deviations from the requirements of the Constitution the
victims of their own folly."
This same apprehension was echoed by now retired Justice Calixto
O. Zaldivar in his dissenting opinion in the Ratification cases 14 that
"we will be opening the gates for a similar disregard to the
Constitution in the future. What I mean is that if this Court now
declares that a new Constitution is now in force because the
members of the citizens assemblies had approved said new
Constitution, although that approval was not in accordance with the
procedure and the requirements prescribed in the 1935
Constitution, it can happen again in some future time that some
amendments to the Constitution may be adopted, even in a manner
contrary to the existing Constitution and the law, and then said
proposed amendments is submitted to the people in any manner
and what will matter is that a basis is claimed that there was
approval by the people. There will not be stability in our
constitutional system, and necessarily no stability in our
government."
6. It is not legally tenable for the majority, without overruling the
controlling precedent of Tolentino (and without mustering the
required majority vote to so overrule) to accept the proposed;
amendments as valid notwithstanding their being "not in conformity
with the letter, spirit and intent of the provision of the Charter for
effecting amendments" on the reasoning that "If the President has
been legitimately discharging the legislative functions of the interim
National Assembly, there is no reason why he cannot validly
discharge the functions."15
In the earlier leading case of Gonzales vs. Comelec 16, this Court
speaking through now retired Chief Justice Roberto Concepcion,
pointer out that "Indeed, the power to Congress" 17 or to the
National Assembly.18 Where it not for the express grant in the
Transitory Provisions of the constituent power to the interim
National Assembly, the interim National Assembly could not claim
the power under the general grant of legislative power during the
transition period.
The majority's ruling in the Referendum cases 19 that the Transitory
Provision in section 3(2) recognized the existence of the authority to
legislate in favor of the incumbent President during the period of
martial law manifestly cannot be stretched to encompass the
constituent power as expressly vested in the interim National
Assembly in derogation of the allotment of powers defined in the
Constitution.
Paraphrasing Cooley on the non-delegation of legislative power as
one of the settled maxims of constitutional law, 20 the contituent
power has been lodged by the sovereign power of the people with
the interim National Assembly during the transition period and there
it must remain as the sole constitutional agency until the
Constitution itself is changed.
As was aptly stated by Justice Jose P. Laurel in the 1936 landmak
case of Angara vs. Electoral Commissioner 21, "(T)he Constitution sets
forth in no uncertain language and restrictions and limitations upon
governmental powers and agencies. If these restrictions and
limitations are transcended it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct
the course of government along constitutional channels, for then the
distribution of powers sentiment, and the principles of good
government mere political apothegms. Certainly, the limitations and
restrictions embodied in our Constitution are real as they should be
in any living Constitution".
7. Neither is the justification of "constitutional impasses" tenable.
The sentiment of the people against the convening of the interim
National Assembly and to have no elections for "at least seven (7)
years" Concededly could not ament the Constitution insofar as the
interim National Assembly is concerned (since it admittendly came
into existence "immediately" upon the proclamation of ratification
of the 1973 Constitution), much less remove the constituent power
from said interim National Assembly.
As stressed in the writer's separate opinion in the Referendum
cases 22, "(W)hile it has been advanced that the decision to defer the
initial convocation of the interim National Assembly was supported
by the results of the referendum in January, 1973 when the people
voted against the convening of the interim National Assembly for at
least seven years, such sentiment cannot be given any legal force
and effect in the light of the State's admission at the hearing that
such referendums are merely consultative and cannot amend the
Constitution or Provisions which call for the 'immediate existence'
and 'initial convening of the interim National Assembly to 'give
priority to measures for the orderly transition from the presidential
to the parliamentary system' and the other urgent measures
enumerated in section 5 thereof".
While the people reportedly expressed their mandate against the
convening of the interim National Assembly to dischange its
legislative tasks during the period of transition under martial law,
they certainly had no opportunity and did not express themselves
against convening the interim National Assembly to discharge the
36
constituent power to propose amendments likewise vested in it by
the people's mandate in the Constitution.
In point of fact, when the holding of the October 16, 1976
referendum was first announced, the newspapers reported that
among the seven questions proposed by the sanggunian and
barangay national executive committies for the referendum was the
convening of the interim National Assembly. 23
It was further reported that the proposals which were termed
tentative "will be discussed and studied by (the President), the
members of the cabinet, and the security council" and that the
barangays felt, notwithstanding the previous referenda on the
convening of the interim National Assembly that "it is time to again
ask the people's opinion of this matter " 24
8. If proposals for constitutional amendments are now deemed
necessary to be discussed and adopted for submittal to the people,
strict adherence with the mandatory requirements of the amending
process as provided in the Constitution must be complied with. This
means, under the teaching of Tolentino that the proposed
amendments must validly come from the constitutional agency
vested with the constituent power to do so, namely, the interim
National Assembly, and not from the executive power as vested in
the Prime Minister (the incumbent President) with the assistance of
the Cabinet 25 from whom such power has been withheld.
It will not do to contend that these proposals represent the voice of
the people for as was aptly stated by Cooley "Me voice of the
people, acting in their sovereign capacity, can be of legal force only
when expressed at the times and under the conditions which they
themselves have prescribed and pointed out by the Constitution. ...
."26
The same argument was put forward and rejected by this Court in
Tolentino which rejected the contention that the "Convention being
a legislative body of the highest order (and directly elected by the
people to speak their voice) is sovereign, in as such, its acts
impugned by petitioner are beyond the control of Congress and the
Courts" and ruled that the constitutional article on the amending
process" is nothing more than a part of the Constitution thus
ordained by the people. Hence, in continuing said section, We must
read it as if the people said, "The Constitution may be amended, but
it is our will that the amendment must be proposed and submitted
to Us for ratification only in the manner herein provided'". 27
This Court therein stressed that "This must be so, because it is plain
to Us that the framers of the Constitution took care that the process
of amending the same should not be undertaken with the same ease
and facility in changing an ordinary legislation. Constitution making
is the most valued power, second to none, of the people in a
constitutional democracy such as the one our founding fathers have
chosen for this nation, and which we of the succeeding generations
generally cherish. And because the Constitution affects the lives,
fortunes, future and every other conceivable aspect of the lives of all
the people within the country and those subject to its sovereignity,
ever constitution worthy of the people for which it is intended must
not be prepared in haste without adequate deliberation and study. It
is obvious that correspondingly, any amendment of the Constitution
is of no less importance than the whole Constitution itself, and
perforce must be conceived and prepared with as much care and
deliberation;" and that "written constitutions are supposed to be
designed so as to last for some time, if not for ages, or for, at least,
as long as they can be adopted to the needs and exigencies of the
people, hence, they must be insulated against precipitate and hasty
actions motivated by more or less passing political moods or fancies.
Thus, as a rule, the original constitutions carry with them limitations
and conditions, more or less stringent, made so by the people
themselves, in regard to the process of their amendment." 28
9. The convening of the interim National Assembly to exercise the
constituent power to proposed amendments is the only way to fulfill
the express mandate of the Constitution.
As Mr. Justice Fernando emphasized for this Court in Mutuc vs.
Comelec 29 in the setting as in of a Comelec resolution banning the
use of political taped jingles by candidates for Constitutional
Convention delegates int he special 1970 elections, "the concept of
the Constitution as the fundamental law, setting forth the criterion
for the validity of any public act whether proceeding from the
highest official or the lowest functionary, is a postulate of our
system of government. That is to amnifst fealty to the rule of law,
with priority accorded to that which occupies the topmost rung in
the legal heirarchy. The three departments of government in the
discharge of the functions with which it is entrusted have no choice
but to yield obedience to its commands. Whatever limits it imposes
must be observed. Congress in the enactment of statutes must ever
be on guart lest the restrictions on its authority, whether substantive
or formal, be transcended. The Presidency in the execution of the
laws cannot ignore of disregard what it ordains. In its task of
applying the law to the facts as found in deciding cases, the judiciary
is called upon the maintain inviolate what is decreed by the
fundamental law."
This is but to give meaning to the plan and clear mandate of section
15 of the Transitory Provisions (which allows of no other
interpretation) that during the stage of transition the interim
National Assembly alone exercises the constituent power to propose
amendments, upon special call therefor. This is reinforced by the
fact that the cited section does not grant to the regular National
Assembly of calling a constitutional convention, thus expressing the
will of the Convention (and presumably of the people upon
ratification) that if ever the need to propose amendments arose
during the limited period of transition, the interim National
Assembly alone would discharge the task and no constitutional
convention could be call for the purpose.
As to the alleged costs involved in convening the interim National
Assembly to propose amendments, among them its own abolition,
(P24 million annually in salaries alone for its 400 members at
P600,000.00 per annum per member, assuming that its deliberations
could last for one year), suffice it to recall this Court's
pronouncement in Tolentino (in reflecting a similar argument on the
costs of holding a plebiscite separately from the general elections for
elective officials) that "it is a matter of public knowledge that bigger
amounts have been spent or thrown to waste for many lesser
objectives. ... Surely, the amount of seventeen million pesos or even
more is not too much a price to pay for fealty and loyalty to the
Constitution ... " 30 and that "while the financial costs of a separate
plebiscite may be high, it can never be as much as the dangers
involved in disregarding clear mandate of the Constitution, no
matter how laudable the objective" and "no consideration of
financial costs shall deter Us from adherence to the requirements of
the Constitution".11
10. The imposition of martial law (and "the problems of rebellion,
subversion, secession, recession, inflation and economic crisis a
crisis greater than war") 32 cited by the majority opinion as justifying
the concentration of powers in the President, and the recognition
now of his exercising the constituent power to propose amendments
to the Fundamental Law "as agent for and in behalf of the
people" 33 has no constitutional basis.
In the post-war Emergency Powers 33*, former Chief Justice Ricardo
Paras reaffirmed for the Court the principle that emergency in itself
cannot and should not create power. In our democracy the hope and
survival of the nation lie in the wisdom and unselfish patriotism of all
officials and in their faithful 'Adherence to the Constitution".
The martial law clause of the 1973 Constitution found in Article IX,
section 12 , as stressed by the writer in his separate opinion in the
Referendum Cases,14 "is a verbatim reproduction of Article VII,
section 10 (2) of the 1935 Constitution and provides for the
imposition of martial law only 'in case of invasion, resurrection or
rebellion, or imminent danger thereof, when the public safety
requires it and hence the use of the legislative power or more
accurately 'military power' under martial rule is limited to such
necessary measures as will safeguard the Republic and suppress the
rebellion (or invasion)". 35
37
11. Article XVII, section 3 (2) of the 1973 Constitution which has
been held by the majority in the Referendum Cases to be the
recognition or warrant for the exercise of legislative power by the
President during the period of martial law is but a transitory
provision. Together with the martial law clause, they constitute but
two provisions which are not to be considered in isolation from the
Constitution but as mere integral parts thereof which must be
harmonized consistently with the entire Constitution.
As Cooley restated the rule: "effect is to be given, if possible, to the
whole instrument, and to every section and clause. If different
portions seem to conflict, the courts must harmonize them, if
practicable, and must lean in favor of a construction which will
render every word operative, rather than one which may make
some words Idle and nugatory.
This rule is applicable with special force to
written constitutions, in which the people will be
presumed to have expressed themselves in
careful and measured terms, corresponding with
the immense importance of the powers
delegated, leaving as little as possible to
implication. It is scarcelly conceivable that a case
can arise where a court would bye justified in
declaring any portion of a written constitution
nugatory because of ambiguity. One part may
qualify another so as to restrict its operation, or
apply it otherwise than the natural construction
would require if it stood by itself; but one part is
not to be allowed to defeat another, if by any
reasonable construction the two can be made to
stand together. 36
The transcendental constituent power to propose and approve
amendments to the Constitution as well as set up the machinery and
prescribe the procedure for the ratification of his proposals has been
withheld from the President (Prime Minister) as sole repository of
the Executive Power, presumably in view of the immense powers
already vested in him by the Constitution but just as importantly,
because by the very nature of the constituent power, such
amendments proposals have to be prepared, deliberated and
matured by a deliberative assembly of representatives such as the
interim National Assembly and hence may not be antithetically
entrusted to one man.
Former Chief Justice Roberto Concepcion had observed before the
elevation of the l971 Constitutional Convention that the records of
past plebiscites show that the constitutional agency vested with the
exercise of the constituent power (Congress or the Constitutional
Convention) really determined the amendments to the Constitution
since the proposals were invariably ratified by the people 37 thus:
"although the people have the reserved power to ratify or reject the
action taken by the Convention, such power is not, in view of the
circumstances attending its exercise, as effective as one might
otherwise think: that, despite the requisite ratification by the
people, the actual contents of our fundamental law will really be
determined by the Convention; that, accordingly the people should
exercise the greatest possible degree of circumspection in the
election of delegates thereto ... " 38
12. Martial law concededly does not abrogate the Constitution nor
obliterate its constitutional boundaries and allocation of powers
among the Executive, Legislative and Judicial Departments. 39
It has thus been aptly observed that "Martial law is an emergency
regime, authorized by and subject to the Constitution. Its basic
premise is to preserve and to maintain the Republic against the
dangers that threaten it. Such premise imposes constraints and
limitations. For the martial law regime fulfills the constitutional
purpose only if, by reason of martial law measures, the Republic is
preserved. If by reason of such measures the Republic is so
transformed that it is changed in its nature and becomes a State
other than republican, then martial law is a failure; worse, martial
law would have become the enemy of the Republic rather than its
defender and preserver."40
II. On the question of the Court's jurisdiction to pass upon the
constitutionality of the questioned presidential decrees: let it be
underscored that the Court has long set at rest the question.
The trail was blazed for the Court since the benchmark case of
Angara vs. Electoral Commission when Justice Jose P. Laurel echoed
U.S. Chief Justice Marshall's "climactic phrase" that "we must never
forget that it is a Constitution we are expounding" and declared the
Court's "solemn and sacred" constitutional obligation of judicial
review and laid down the doctrine that the Philippine Constitution as
"a definition of the powers of government" placed upon the
judiciary the great burden of "determining the nature, scope and
extent of such powers" and stressed that "when the judiciary
mediates to allocate constitutional boundaries, it does not assert
any superiority over the other departments . . . but only asserts the
solemn and sacred obliteration entrusted to it by the Constitution to
determine conflicting claims of authority under the Constitution and
to establish for the parties in an actual controversy the rights which
the instrument secures and guarantees to them".
At the same time, the Court likewise adhered to the constitutional
tenet that political questions, i.e. questions which are intended by
the Constitutional and relevant laws to be conclusively determined
by the "political", i.e. branches of government (namely, the
Executive and the Legislative) are outside the Court's jurisdiction. 41
Thus, in Gonzales, 42 (by a unanimous Court) and in Tolentino 43 (by
the required constitutional majority), the Court has since
consistently ruled that when proposing and approving amendments
to the Constitution, the members of Congress. acting as a
constituent assembly or the members of the Constitutional
Convention elected directly for the purpose by not have the final say
on whether or not their acts are within or beyond constitutional
limits. Otherwise, they could brush aside and set the same at
naught, contrary to the basic tenet that outs is it government of
lawsom not of men, and to the rigid nature of our Constitution. Such
rigidity is stressed by the fact that, the Constitution expressly
confers upon the Supreme Court, the power to declare a treaty
unconstitutional, despite the eminently political character of treaty-
making power". 44
As amplified by former Chief Justice Concepcion in Javellana vs
Executive Secretary 45 (by a majority vote), "when the grant of
power is qualified, conditional or subject to limitations. the issue on
whether or not the prescribed qualifications or conditions have been
met, or the limitations by expected, is justiciable or non-political, the
crux of the problem being one of legality or validity of the contested
act, not its wisdom Otherwise, said qualifications, conditions and
limitations-particularly those prescribed or imposed by the
Constitution would be set at naught".
The fact that the proposed amendments are to be submitted to the
people for ratification by no means makes the question political and
non- justiciable since as stressed even in Javellana the issue of
validity of the President's proclamation of ratification of the
Constitution presented a justiciable and non-political question
Stated otherwise, the question of whether the Legislative acting as a
constituent assembly or the Constitutional Convention called fol- the
purpose, in proposing amendments to the people for ratification
followed the constitutional procedure and on the amending process
is perforce a justiciable question and does not raise a political
question of police or wisdom of the proposed amendments, which if
Submitted, are reserved for the people's decision.
The substantive question presented in the case at bar of whether
the President may legally exercise the constituent power vested in
the interim National Assembly (which has not been granted to his
office) and propose constitutional amendments is preeminently a
justiciable issue.
Justice Laurel in Angara had duly enjoined that "in times of social
disquietude or political excitement, the great landmarks of the
Constitution are apt to be forgotten or marred, if not entirely
38
obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the
proper allocation of powers between the several departments and
among the integral or constituent units thereof".
To follow the easy way out by disclaiming jurisdiction over the issue
as a political question would be judicial abdication.
III. On the question of whether there is a sufficient and proper
submittal of the proposed amendments to the people: Prescinding
from the writer's view of the nullity of the questioned decree of lack
of authority on the President's part to excercise the constituent
power, I hold that the doctrine of fair and proper submission first
enunciated by a simple majority of by Justices in Gonzales and
subsequently officially adopted by the required constitutional two-
thirds majority of the Court in is controlling in the case at bar.
1. There cannot be said to be fair and proper submission of the
proposed amendments. As ruled by this Court in Tolentino where
"the proposed amendment in question is expressly saddled with
reservations which naturally impair, in great measures, its very
essence as a proposed constitutional amendment" and where "the
way the proposal is worded, read together with the reservations
tacked to it by the Convention thru Section 3 of the questioned
resolution, it is too much of a speculation to assume what exactly
the amendment would really amount lo in the end. All in all, as
already pointed out in our discussion of movants' first ground, if this
kind of amendment is allowed, the Philippines will appear before the
world to be in the absurd position of being the only country with a
constitution containing a provision so ephemeral no one knows until
when it will bet actually in force", there can be no proper
submission.
In Tolentino a solitary amendment reducing the voting age to 18
years was struck down by this Court which ruled that "in order that a
plebiscite for the ratification of an amendment to the Constitution
may be validly held, it must provide the voter not only sufficient
time but ample basis for an intelligent appraisal of the nature of the
amendment per se as well as its relation to the other parts of the
Constitution with which it has to form a harmonious whole," and
that there was no proper Submission wherein the people are in the
dark as to frame of reference they can base their judgment on
2. The now Chief Justice and Mr. Justice Makasiar with two other
members 46 graphically pointed out in their joint separate opinion
that the solitary question "would seem to be uncomplicated and
innocuous. But it is one of life's verities that things which appear to
be simple may turn out not to be so simple after all". 47
They further expressed "essential agreement" with Mr. Justice
Conrado V. Sanchez' separate opinion in Gonzales "on the minimum
requirements that must be met in order that there can be a proper
submission to the people of a proposed constitutional amendment"
which reads thus:
... we take the view that the words 'submitted to
the people for their ratification', if construed in
the light of the nature of the Constitution a
fundamental charter that is legislation direct
from the people, an expression of their
sovereign will - is that it can only be amended by
the people expressing themselves according to
the procedure ordained by the Constitution.
Therefore, amendments must be fairly laid
before the people for their blessing or spurning.
The people are not to be mere rubber stamps.
They are not to vote blindly. They must be
afforded ample opportunity to mull over the
original provisions, compare them with the
proposed amendments, and try to reach a
conclusion as the dictates of their conscience
suggest, free from the incubus of extraneous or
possibly insidious influences. We believe the
word submitted' can only mean that the
government, within its maximum capabilities,
should strain every effort to inform every citizen
of the provisions to be amended, and the
proposed amendments and the meaning, nature
and effects thereof. By this, we are not to be
understood as saying that, if one citizen or 100
citizens or 1,000 citizens cannot be reached,
then there is no submission within the meaning
of the word as intended by the framers of the
Constitution. What the Constitution in effect
directs is that the government, in submitting an
amendment for ratification, should put every
instrumentality or agency within its structural
framework to enlighten the people, educate
them with respect to their act of ratification or
rejection. For, as we have earlier stated, one
thing is submission and another is ratification.
There must be fair submission, intelligent.
consent or rejection. If with all these safeguards
the people still approve the amendment no
matter how prejudicial it is to them, then so be
it. For the people decree their own fate. 48
Justice Sanchez therein ended the passage with an apt citation that "
... " The great men who builded the structure of our state in this
respect had the mental vision of a good Constitution voiced by Judge
Cooley, who has said 'A good Constitution should be beyond the
reach of temporary excitement and. popular caprice or passion. It is
needed for stability and steadiness; it must yield to the thought of
the people; not to the whim of the people, or the thought evolved in
excitement or hot blood, but the sober second thought, which alone,
if the government is to be safe, can be allowed efficiency. xxx xxx xxx
Changes in government are to be feared unless the benefit is
certain. As Montaign says: All great mutations shake and disorder
state. Good does not necessarily succeed evil ;another evil may
succeed and a worse'." 49
Justice Sanchez thus stated the rule that has been adopted by the
Court in Tolentino that there is no proper submission "if the people
are not sufficiently affirmed of the amendments to be voted upon,
to conscientiously deliberate thereon, to express their will in a
genuine manner. ... .." 50
3. From the complex and complicated proposed amendments set
forth in the challenged decree and the plethora of confused and
confusing clarifications reported in the daily newspapers, it is
manifest that there is no proper submission of the proposed
amendments. Nine (9) proposed constitutional amendments were
officially proposed and made known as per Presidential Decree No.
1033 dated, September 22, 1976 for submittal at the "referendum-
plebiscite" called for this coming Saturday, October 16, 1976
wherein the 15-year and under 18-year- olds are enjoined to vote
notwithstanding their lack of qualification under Article VI of the
Constitution. Former Senator Arturo Tolentino, an acknowledged
parliamentarian of the highest order, was reported by the
newspapers last October 3 to have observed that "there is no
urgency in approving the proposed amendments to the Constitution
and suggested that the question regarding charter changes be
modified instead of asking the people to vote on hurriedly prepared
amendments". He further pointed out that "apart from lacking the
parliamentary style in the body of the Constitution, they do not
indicate what particular provisions are being repealed or
amended". 52
As of this writing, October 11, 1976, the paper today reported his
seven-page analysis questioning among others the proposed
granting of dual legislative powers to both the President and the
Batasang Pambansa and remarking that "This dual legislative
authority can give rise to confusion and serious constitutional
questions". 53
Aside from the inadequacy of the limited time given for the people's
consideration of the proposed amendments, there can be no proper
submission because the proposed amendments are not in proper
form and violate the cardinal rule of amendments of written
constitutions that the specific provisions of the Constitution being
39
repealed or amended as well as how the specific provisions as
amended would read, should be clearly stated in careful and
measured terms. There can be no proper submission because the
vagueness and ambiguity of the proposals do not sufficiently inform
the people of the amendments for, conscientious deliberation and
intelligent consent or rejection.
4. While the press and the Solicitor General at the hearing have
stated that the principal thrust of the proposals is to substitute the
interim National Assembly with an interim Batasang Pambansa, a
serious study thereof in detail would lead to the conclusion that the
whole context of the 1973 Constitution proper would be affected
and grave amendments and modifications thereof -would
apparently be made, among others, as follows:
Under Amendment No. 1, the qualification age of members of the
interim Batasang Pambansa is reduced to 18 years;
Under Amendment No. 2, the treaty-concurring power of the
Legislature is withheld from the interim Batasang Pambansa;
Under Amendment No 3, not withstanding the convening of the
interim Batasang Pambansa within 30 days from the election and
selection of the members (for which there is no fixed date) the
incumbent President apparently becomes a regular President and
Prime Minister (not ad interim);
Under Amendment No. 4, the disqualifications imposed on members
of the Cabinet in the Constitution such as the prohibition against the
holding of more than one office in the government including
government-owned or -controlled corporations would appear to be
eliminated, if not prescribed by the President;
Under Amendment No. 5, the President shall continue to exercise
legislative powers until martial law is lifted;
Under Amendment No. 6, there is a duality of legislative authority
given the President and the interim Batasang Pambansa as well as
the regular National Assembly, as pointed out by Senator Tolentino,
with the President continuing to exercise legislative powers in case
of "grave emergency or a threat or imminence thereof" (without
definition of terms) or when said Assemblies "fail or are unable to
act adequately on any matter for any reason that in his judgment
requires immediate action", thus radically affecting provisions of the
Constitution governing the said departments;
Under Amendment No. 7, the barangays and Sanggunians would
apparently be constitutionalized, although their functions, power
and composition may be altered by law. Referendums (which are
not authorized in the present 1973 Constitution) would also be
constitutionalized, giving rise to the possibility fraught with grave
consequences, as acknowledged at the hearing, that amendments to
the Constitution may thereafter be effected by referendum, rather
than by the rigid and strict amending process provided presently in
Article XVI of the Constitution;
Under Amendment No. 8, there is a general statement in general
that the unspecified provisions of the Constitution "not inconsistent
with any of these amendments" shall continue in full force and
effect; and Under Amendment No. 9. the incumbent President is
authorized to proclaim the ratification of the amendments by the
majority of votes cast. It has likewise been stressed by the officials
concerned that the proposed amendments come in a package and
may not be voted upon separately but on an "all or nothing" basis.
5. Whether the people can normally express their will in a genuine
manner and with due circumspection on the proposed amendments
amidst the constraints of martial law is yet another question. That a
period of free debate and discussion has to be declared of itself
shows the limitations on free debate and discussion. The facilities for
free debate and discussion over the mass media, print and
otherwise are wanting. The President himself is reported to have
observed the timidity of the media under martial law and to have
directed the press to air the views of the opposition. 54
Indeed, the voice of the studentry as reflected in the editorial of the
Philippine Collegian issue of September 23, 1976 comes as a
welcome and refreshing model of conscientious deliberation, as our
youth analyzes the issues "which will affect generations yet to
come" and urge the people to mull over the pros and cons very
carefully", as follows:
THE REFERENDUM ISSUES
On October 16, the people may be asked to
decide on two important national issues - the
creation of a new legislative body and the lifting
of martial law.
On the first issue, it is almost sure that the
interim National Assembly will not be convened,
primarily because of its membership. Majority of
the members of the defunct Congress, who are
mandated by the Constitution to become
members of the interim National Assembly, have
gained so widespread a notoriety that the mere
mention of Congress conjures the image of a den
of thieves who are out to fool the people most of
the time. Among the three branches of
government, it was the most discredited. In fact,
upon the declaration of martial law, some
people were heard to mutter that a 'regime that
has finally put an end to such congressional
shenanigans could not be all that bad'.
A substitute legislative body is contemplated to
help the President in promulgating laws, and
perhaps minimize the issuance of ill-drafted
decrees which necessitate constant
amendments. But care should be taken that this
new legislative body would not become a mere
rubber stamp akin to those of other totalitarian
countries. It should be given real powers,
otherwise we will just have another nebulous
creation having the form but lacking the
substance. Already the President has expressed
the desire that among the powers he would like
to have with regard to the proposed legislative
body is that of abolishing it in case 'there is a
need to do so'. As to what would occasion such a
need, only the President himself can determine.
This would afford the Chief Executive almost
total power over the legislature, for he could
always offer the members thereof a carrot and a
stick.
On the matter of lifting martial law the people
have expressed ambivalent attitudes. Some of
them, remembering the turmoil that prevailed
before the declaration of martial law, have
expressed the fear that its lifting might
precipitate the revival of the abuses of the past,
and provide an occasion for evil elements to
resurface with their usual tricks. Others say that
it is about time martial law was lifted since the
peace and order situation has already stabilized
and the economy seems to have been parked up.
The regime of martial law has been with us for
four years now. No doubt, martial law has
initially secured some reforms for the country
The people were quite willing to participate in
the new experiment, thrilled by the novelty of it
all. After the euphoria, however, the people
seem to have gone back to the old ways, with
the exception that some of our freedoms were
taken away, and an authoritarian regime
established.
40
 We must bear in mind that martial law was
envisioned only to cope with an existing national
crisis, It was not meant to be availed of for a long
period of time, otherwise it would undermine
our adherence to a democratic form of
government. In the words of the Constitution.
martial law shall only be declared in times of
'rebellion, insurrection,. invasion, or imminent
danger thereof, when the public safety requires
it'. Since we no longer suffer from internal
disturbances of a gargantuan scale, it is about
time we seriously rethink the 'necessity' of
prolonging the martial law regime. If we justify
the continuance of martial by economic or other
reasons other than the foregoing constitutional
grounds, then our faith in the Constitution might
be questioned. Even without martial law,. the
incumbent Chief Executive still holds vast powers
under the constitution. After all, the gains of the
New Society can be secured without sacrificing
the freedom of our people. If the converse is
true, then we might have to conclude that the
Filipinos deserve a dictatorial form of
government. The referendum results will show
whether the people themselves have adopted
this sad conclusion.
The response of the people to the foregoing
issues will affect generations yet to come, so
they should mull over the pros and cons very
carefully."
6. This opinion by written in the same spirit as the President's
exhortations on the first anniversary of proclamation of the 1973
Constitution that we "let the Constitution remain firm and stable" so
that it may "guide the people", and that we "remain steadfast on the
rule of law and the Constitution" as he recalled his rejection of the
"exercise (of) power that can be Identified merely with a
revolutionary government" that makes its own law, thus:
. . . Whoever he may be and whatever position
he may happen to have, whether in government
or outside government, it is absolutely necessary
now that we look solemnly and perceptively into
the Constitution and try to discover for ourselves
what our role is in the successful implementation
of that Constitution. With this thought,
therefore, we can agree on one thing and that is:
Let all of us age, let all of us then pass away as a
pace in the development of our country. but let
the Constitution remain firm and stable and let
institutions grow in strength from day to day,
from achievement to achievement, and so long
as that Constitution stands, whoever may the
man in power be, whatever may his purpose be,
that Constitution will guide the people and no
man, however, powerful he may be, will dare to
destroy and wreck the foundation of such a
Constitution.
These are the reasons why I personally, having
proclaimed martial law, having been often
induced to exercise power that can be Identified
merely with a revolutionary government, have
remained steadfast or the rule of law and the
Constitution. 54*
IV. A final word on the Court's resolution of October 5, 1976 which in
reply to the Comelec query allowed by a vote of 7 to 3, judges of all
courts, after office hours, "to accept invitations to act as resource
speakers under Section 5 of Presidential Decree No. 991, as
amended, as well as to take sides in discussions and debates on the
referendum-plebiscite questions under Section 7 of the same
Decree." 55
The writer with Mr. Justice Makasiar and Madame Justice Munoz
Palma had dissented from the majority resolution, with all due
respect, on the ground that the non-participation of judges in such
public discussions and debates on the referendum-plebiscite
questions would preserve the traditional non-involvement of the
judiciary in public discussions of controversial issues. This is essential
for the maintenance and enhancement of the people's faith and
confidence in the judiciary. The questions of the validity of the
scheduled referendum- plebiscite and of whether there is proper
submission of the proposed amendments were precisely subjudice
by virtue of the cases at bar.
The lifting of the traditional inhibition of judges from public
discussion and debate might blemish the image and independence
of the judiciary. Aside from the fact that the fixing of a time limit for
the acceptance of their courtesy resignations to avoid an indefinite
state of insecurity of their tenure in office still spends litigants and
their relatives and friends as well as a good sector of the public
would be hesitant to air views contrary to that of the.
Judge. Justices Makasiar and Munoz Palma who share these views
have agreed that we make them of record here, since we
understand that the permission given in the resolution is
nevertheless addressed to the personal decision and conscience of
each judge, and these views may he of some guidance to them.
BARREDO, J.,: concurring:
While I am in full agreement with the majority of my brethren that
the herein petitions should be dismissed, as in fact I vote for their
dismissal, I deem it imperative that I should state separately the
considerations that have impelled me to do so.
Perhaps, it is best that I should start by trying to disabuse the minds
of those who have doubts as to whether or not I should have taken
part in the consideration and resolution of these cases. Indeed, it
would not be befitting my position in this Highest Tribunal of the
land for me to leave unmentioned the circumstances which have
given cause, I presume, for others to feel apprehensive that my
participation in these proceedings might detract from that degree of
faith in the impartiality that the Court's judgment herein should
ordinarily command. In a way, it can be said, of course, that I am the
one most responsible for such a rather problematical situation, and
it is precisely for this reason that I have decided to begin this opinion
with a discussion of why I have not inhibited myself, trusting most
confidently that what I have to say will be taken in the same spirit of
good faith, sincerity and purity of purpose in which I am resolved to
offer the same.
Plain honesty dictates that I should make of record here the
pertinent contents of the official report of the Executive Committee
of the Katipunan ng mga Sanggunian submitted to the Katipunan
itself about the proceedings held on August 14, 1976. It is stated in
that public document that:
THE ISSUE WITH REGARDS To THE CONVENING
OF A LEGISLATIVE body came out when the
President express his desire to share his powers
with other people.
Aware of this, a five-man Committee members of the Philippine
Constitution Association (PHILCONSA) headed by Supreme Court
Justice Antonio Barredo proposed on July 28, the establishment of
'Sangguniang Pambansa' or 'Batasang Pambansa' which would help
the President in the performance of his legislative functions. The
proposed new body will take the place of the interim National
Assembly which is considered not practical to convene at this time
considering the constitution of its membership.
Upon learning the proposal of Justice Barredo, the country's 42,000
barangay assemblies on August 1 suggested that the people be
consulted on a proposal to create a new legislative body to replace
the interim assembly provided for by the Constitution. The
suggestion of the barangay units was made through their national
41
association, Pambansang Katipunan ng mga Barangay headed by
Mrs. Nora Z. Patines. She said that the people have shown in at least
six instances including in the two past referenda that they are
against the convening of the interim National Assembly. She also
said that since the people had ruled out the calling of such assembly
and that they have once proposed that the President create instead
the Sangguniang Pambansa or a legislative advisory body, then the
proposal to create a new legislative must necessarily be referred to
the people.
The federation of Kabataang Barangay, also numbering 42,000 units
like their elder counterparts in the Katipunan ng mga Barangay also
asserted their own right to be heard on whatever plans are afoot to
convene a new legislative body.
On August 6, a meeting of the national directorate of PKB was held
to discuss matters pertaining to the stand of the PKB with regards to
the convening of a new legislative body. The stand of the PKB is to
create a legislative advisory council in place of the old assembly. Two
days after, August 8, the Kabataang Barangay held a symposium and
made a stand which is the creation of a body with full legislative
powers.
A nationwide clamor for the holding of meeting in their respective
localities to discuss more intellegently the proposal to create a new
legislative body was made by various urban and rural Sangguniang
Bayans.
Numerous requests made by some members coming from 75
provincial and 61 city SB assemblies, were forwarded to the
Department of Local Government and Community Development
(DLGCD).
On August 7, Local Government Secretary, Jose A. Rono granted the
request by convening the 91 member National Executive Committee
of the Pambansang Katipunan ng mga Sanggunian on August 14
which was held at Session Hall, Quezon City. Invited also to
participate were 13 Regional Federation Presidents each coming
from the PKB and the PKKB
Actually, the extent of my active participation in the events and
deliberations that have culminated in the holding of the proposed
referendum- plebiscite on October 16, 1976, which petitioners are
here seeking to enjoin, has been more substantial and meaningful
than the above report imparts. Most importantly, aside from being
probably the first person to publicly articulate the need for the
creation of an interim legislative body to take the place of. the
interim National Assembly provided for in the Transitory Provisions
of the Constitution, as suggested in the above report, I might say
that I was the one most vehement and persistent in publicly
advocating and urging the authorities concerned to directly submit
to the people in a plebiscite whatever amendments of the
Constitution might be considered necessary for the establishment of
such substitute interim legislature. In the aforementioned session of
the Executive Committee of the Katipunan, I discourse on the
indispensability of a new interim legislative body as the initial step
towards the early lifting of martial law and on the fundamental
considerations why in our present situation a constitutional
convention would be superfluous in amending the Constitution.
Moreover, it is a matter of public knowledge that in a speech I
delivered at the Coral Ballroom of the Hilton Hotel in the evening of
August 17, 1976, I denounced in no uncertain terms the plan to call a
constitutional convention. I reiterated the same views on September
7, 1976 at the initial conference called by the Comelec in the course
of the information and educational campaign it was enjoined to
conduct on the subject. And looking back at the subsequent
developments up to September 22, 1976, when the Batasang Bayan
approved and the President signed the now impugned Presidential
Decree No. 1033, it is but human for me to want to believe that to a
certain extent my strong criticisms and resolute stand against any
other alternative procedure of amending the Constitution for the
purpose intended had borne fruit.
I must hasten to add at this point, however, that in a larger sense,
the initiative for all I have done, was not altogether mine alone. The
truth of the matter is that throughout the four years of this martial
law government, it has always been my faith, as a result of casual
and occasional exchanges of thought with President Marcos, that
when the appropriate time does come, the President would
somehow make it known that in his judgment, the situation has
already so improved as to permit the implementation, if gradual, of
the constitutionally envisioned evolution of our government from its
present state to a parliamentary one. Naturally, this would inevitably
involve the establishment of a legislative body to replace the
abortive interim National Assembly. I have kept tract of all the public
and private pronouncements of the President, and it was the result
of my reading thereof that furnished the immediate basis for my
virtually precipitating, in one way or another, the materialization of
the forthcoming referendum-plebiscite. In other words, in the final
analysis, it was the President's own attitude on the matter that
made it opportune for me to articulate my own feelings and Ideas as
to how the nation can move meaningfully towards normalization
and to publicly raise the issues that have been ventilated by the
parties in the instant cases.
I would not be human, if I did not consider myself privileged in
having been afforded by Divine Providence the opportunity to
contribute a modest share in the formulation of the steps that
should lead ultimately to the lifting of martial law in our country.
Indeed, I am certain every true Filipino is anxiously looking forward
to that eventuality. And if for having voiced the sentiments of our
people, where others would have preferred to be comfortably silent,
and if for having made public what every Filipino must have been
feeling in his heart all these years, I should be singled out as
entertaining such preconceived opinions regarding the issues before
the Court in the cases at bar as to preclude me from taking part in
their disposition, I can only say that I do not believe there is any
other Filipino in and out of the Court today who is not equally
situated as I am .
The matters that concern the Court in the instant petitions do not
involve merely the individual interests of any single person or group
of persons. Besides, the stakes in these cases affect everyone
commonly, not individually. The current of history that has passed
through the whole country in the wake of martial law has swept all
of us, sparing none, and the problem of national survival and of
restoring democratic institutions and Ideals is seeking solution in the
minds of all of us. That I have preferred to discuss publicly my own
thoughts on the matter cannot mean that my colleagues in the Court
have been indifferent and apathetic about it, for they too are
Filipinos. Articulated or not, all of us must have our own
preconceived Ideas and notions in respect to the situation that
confronts the country. To be sure, our votes and opinions in the-
major political cases in the recent past should more or less indicate
our respective basic positions relevant to the issues now before Us.
Certainly, contending counsels cannot be entirely in the dark in this
regard. I feel that it must have been precisely because of such
awareness that despite my known public participation in the
discussion of the questions herein involved, none of the parties have
sought my inhibition or disqualification.
Actually, although it may be difficult for others to believe it, I have
never allowed my preconceptions and personal inclinations to affect
the objectivity needed in the resolution of any judicial question
before the Court. I feel I have always been able to appreciate, fully
consider and duly weigh arguments and points raised by all counsels,
even when they conflict with my previous views. I am never beyond
being convinced by good and substantial ratiocination. Nothing has
delighted me more than to discover that somebody else has thought
of more weighty arguments refuting my own, regardless of what or
whose interests are at stake. I would not have accepted my position
in the Court had I felt I would not be able to be above my personal
prejudices. To my mind, it is not that a judge has preconceptions
that counts, it is his capacity and readiness to absorb contrary views
that are indispensable for justice to prevail. That suspicions of
prejudgment may likely arise is unavoidable; but I have always
maintained that whatever improper factors might influence a judge
will unavoidably always appear on the face of the decision. In any
42
event, is there better guarantee of justice when the preconceptions
of a judge are concealed?
Withal, in point of law, I belong to the school of thought that regards
members of the Supreme Court as not covered by the general rules
relative to disqualification and inhibition of judges in cases before
them. If I have in practice actually refrained from participating in
some cases, it has not been because of any legal ground founded on
said rules, but for purely personal reasons, specially because,
anyway, my vote would not have altered the results therein.
It is my considered opinion that unlike in the cases of judges in the
lower courts, the Constitution does not envisage compulsory
disqualification or inhibition in any case by any member of the
Supreme Court. The Charter establishes a Supreme Court
"composed of a Chief Justice and fourteen Associate Justices", with
the particular qualifications therein set forth and to be appointed in
the manner therein provided. Nowhere in the Constitution is there
any indication that the legislature may designate by law instances
wherein any of the justices should not or may not take part in the
resolution of any case, much less who should take his place.
Members of the Supreme Court are definite constitutional officers; it
is not within the power of the lawmaking body to replace them even
temporarily for any reason. To put it the other way, nobody who has
not been duly appointed as a member of the Supreme Court can sit
in it at any time or for any reason. The Judicial power is vested in the
Supreme Court composed as the Constitution ordains - that power
cannot be exercised by a Supreme Court constituted otherwise. And
so, when as in the instant where, if any of the member of Court is to
abstain from taking part, there would be no quorum - and no court
to render the decision - it is the includible duty of all the incumbent
justices to participate in the proceedings and to cast their votes,
considering that for the reasons stated above, the provisions of
Section 9 of the Judiciary Act do not appear to conform with the
concept of the office of Justice of the Supreme Court contemplated
in the Constitution.
The very nature of the office of Justice of the Supreme Court as the
tribunal of last resort and bulwark of the rights and liberties of all
the people demands that only one of dependable and trustworthy
probity should occupy the same. Absolute integrity, mental and
otherwise, must be by everyone who is appointed thereto. The
moral character of every member of the Court must be assumed to
be such that in no case whatsoever. regardless of the issues and the
parties involved, may it be feared that anyone's life, liberty or
property, much less the national interests, would ever be in jeopardy
of being unjustly and improperly subjected to any kind of judicial
sanction. In sum, every Justice of the Supreme Court is expected to
be capable of rising above himself in every case and of having full
control of his emotions and prejudices, such that with the legal
training and experience he must of necessity be adequately
equipped with, it would be indubitable that his judgment cannot be
but objectively impartial, Indeed, even the appointing power, to
whom the Justices owe their positions, should never hope to be
unduly favored by any action of the Supreme Court. All
appointments to the Court are based on these considerations, hence
the ordinary rules on inhibition and disqualification do not have to
be applied to its members.
With the preliminary matter of my individual circumstances out of
the way, I shall now address myself to the grave issues submitted for
Our resolution.
-I-
In regard to the first issue as to whether the questions posed in the
petitions herein are political or justiciable, suffice it for me to
reiterate the fundamental position I took in the Martial Law
cases, 1 thus
As We enter the extremely delicate task of
resolving the grave issues thus thrust upon Us.
We are immediately encountered by absolute
verities to guide Us all the way. The first and
most important of them is that the Constitution
(Unless expressly stated otherwise, all references
to the Constitution in this discussion are to both
the 1935 and 1973 charters, since, after all, the
pertinent provisions are practically Identical in
both is the supreme law of the land. This means
among other things that all the powers of the
government and of all its officials from the
President down to the lowest emanate from it.
None of them may exercise any power unless it
can be traced thereto either textually or by
natural and logical implication. "The second is
that it is settled that the Judiciary provisions of
the Constitution point to the Supreme Court as
the ultimate arbiter of all conflicts as to what the
Constitution or any part thereof means. While
the other Departments may adopt their own
construction thereof, when such construction is
challenged by the proper party in an appropriate
case wherein a decision would be impossible
without determining the correct construction,
the Supreme Court's word on the matter
controls.
xxx xxx xxx
xxx xxx xxx
The fifth is that in the same manner that the
Executive power conferred upon the Executive
by the Constitution is complete, total and
unlimited, so also, the judicial power vested in
the Supreme Court and the inferior courts, is the
very whole of that power, without any limitation
or qualification.
xxx xxx xxx
xxx xxx xxx
From these incontrovertible postulates, it
results, first of all, that the main question before
Us is not in reality one of jurisdiction, for there
can be no conceivable controversy, especially
one involving a conflict as to the correct
construction of the Constitution, that is not
contemplated to be within the judicial authority
of the courts to hear and decide. The judicial
power of the courts being unlimited and
unqualified, it extends over all situations that call
for the as certainment and protection of the
rights of any party allegedly violated, even when
the alleged violator is the highest official of the
land or the government itself. It is, therefore,
evidence that the Court's jurisdiction to take
cognizance of and to decide the instant petitions
on their merits is beyond challenge.
In this connection, however, it must be borne in
mind that in the form of government envisaged
by the framers of the Constitution and adopted
by our people, the Court's indisputable and
plenary authority to decide does not necessarily
impose upon it the duty to interpose its fiat as
the only means of settling the conflicting claims
of the parties before it. It is ingrained in the
distribution of powers in the fundamental law
that hand in hand with the vesting of the judicial
power upon the Court, the Constitution has
coevally conferred upon it the discretion to
determine, in consideration of the constitutional
prerogatives granted to the other Departments,
when to refrain from imposing judicial solutions
and instead defer to the judgment of the latter.
It is in the very nature of republican
governments that certain matters are left in the
43
 residual power of the people themselves to
resolve, either directly at the polls or thru their
elected representatives in the political
Departments of the government. And these
reserved matters are easily distinguishable by
their very nature, when one studiously considers
the basic functions and responsibilities entrusted
by the charter to each of the great Departments
of the government. To cite an obvious example,
the protection, defense and preservation of the
state against internal or external aggression
threatening its very existence is far from being
within the ambit of judicial responsibility. The
distinct role then of the Supreme Court of being
the final arbiter in the determination of
constitutional controversies does not have to be
asserted in such contemplated situations,
thereby to give way to the ultimate prerogative
of the people articulated thru suffrage or thru
the acts of their political representatives they
have elected for the purpose.
Indeed, these fundamental considerations are the ones that lie at
the base of what is known in American constitutional law as the
political question doctrine, which in that jurisdiction is
unquestionably deemed to be part and parcel of the rule of law,
exactly like its apparently more attractive or popular opposite,
judicial activism, which is the fullest exertion of judicial power, upon
the theory that unless the courts intervene injustice might prevail. It
has been invoked and applied by this Court in varied forms and
mode of projection in several momentous instances in the past,
(Barcelona vs. Baker, 5 Phil. 87; Severino vs. Governor-General, 16
Phil. 366; Abueva vs. Wood, 45 Phil. 612; Alejandrino vs. Quezon, 46
Phil. 85; Vera vs. Avelino, 77 Phil. 192; Mabanag vs. Lopez Vito, 78
Phil. 1; Cabin vs. Francisco, 88 Phil. 654; Montenegro vs. Castaneda,
91 Phil. 882, Santos vs. Yatco, 55 O.G. 8641 [Minute Resolution of
Nov. 6, 19591 Osmena vs. Pendatun, Oct. 28, 1960.) and it is the
main support of the stand of the Solicitor General on the issue of
jurisdiction in the cases at bar. It is also referred to as the doctrine of
judicial self-restraint or abstention. But as the nomenclatures
themselves imply, activism and self- restraint are both subjective
attitudes, not inherent imperatives. The choice of alternatives in any
particular eventuality is naturally dictated by what in the Court's
considered opinion is what the Constitution envisions should be by
in order to accomplish the objectives of government and of
nationhood. And perhaps it may be added here to avoid confusion of
concepts, that We are not losing sight of the traditional approach
based on the doctrine of separation of powers. In truth, We perceive
that even under such mode of rationalization, the existence of
power is secondary, respect for the acts of a co-ordinate, co-equal
and independent Department being the general rule, particularly
when the issue is not encroachment of delimited areas of functions
but alleged abuse of a Department's own basic prerogatives. (59
SCRA, pp. 379-383.)
Applying the foregoing considerations to the cases at bar, I hold that
the Court has jurisdiction to pass on the merits of the various claims
of petitioners. At the same time, however, I maintain that the basic
nature of the issues herein raised requires that the Court should
exercise its constitutionally endowed prerogative to refrain from
exerting its judicial authority in the premises.
Stripped of incidental aspects, the constitutional problem that
confronts Us stems from the absence of any clear and definite
express provision in the Charter applicable to the factual milieu
herein involved. The primary issue is, to whom, under the
circumstances, does the authority to propose amendments to the
Constitution property belong? To say, in the light of Section 15 of
Article XVII of the Charter, that that faculty lies in the interim
National Assembly is to beg the main question. Indeed, there could
be no occasion for doubt or debate, if it could ' only be assumed that
the interim National Assembly envisaged in Sections 1 and 2 of the
same Article XVII may be convoked. But precisely, the fundamental
issue We are called upon to decide is whether or not it is still
constitutionally possible to convene that body. And relative to that
question, the inquiry centers on whether or not the political
developments since the ratification of the Constitution indicate that
the people have in effect enjoined the convening of the interim
National Assembly altogether. On this score, it is my assessment that
the results of the referenda of January 10-15, 1973, July 27-28, 1973
and February 27, 1975 clearly show that the great majority of our
people, for reasons plainly obvious to anyone who would consider
the composition of that Assembly, what with its more than 400
members automatically voted into it by the Constitutional
Convention together with its own members, are against its being
convoked at all.
Whether or not such a manifest determination of the sentiments of
the people should be given effect without a formal amendment of
the Constitution is something that constitutional scholars may
endlessly debate on. What cannot be disputed, however, is that the
government and the nation have acquiesced to, it and have actually
operated on the basis thereof. Proclamation 1103 which, on the
predicate that the overwhelming majority of the people desire that
the interim Assembly be not convened, has ordained the suspension
of its convocation, has not been assailed either judicially or
otherwise since the date of its promulgation on January 17, 1973.
In these premises, it is consequently the task of the Court to
determine what, under these circumstances, is the constitutional
relevance of the interim National Assembly to any proposal to
amend the Constitution at this time. It is my considered opinion that
in resolving that question, the Court must have to grapple with the
problem of what to do with the will of the people, which although
manifested in a manner not explicitly provided for in the
Constitution, was nevertheless official, and reliable, and what is
more important clear and unmistakable, despite the known
existence of well-meaning, if insufficiently substantial dissent. Such
being the situation, I hold that it is not proper for the Court to
interpose its judicial authority against the evident decision of the
people and should leave it to the political department of the
government to devise the ways and means of resolving the resulting
problem of how to amend the Constitution, so long as in choosing
the same, the ultimate constituent power is left to be exercised by
the people themselves in a well- ordered plebiscite as required by
the fundamental law.
-2-
Assuming We have to inquire into the merits of the issue relative to
the constitutional authority behind the projected amendment of the
Charter in the manner provided in Presidential Decree 1033, I hold
that in the peculiar situation in which the government is today, it is
not incompatible with the Constitution for the President to propose
the subject amendments for ratification by the people in a formal
plebiscite under the supervision of the Commission on Elections. On
the contrary, in the absence of any express prohibition in the letter
of the Charter, the Presidential Decree in question is entirely
consistent with the spirit and the principles underlying the
Constitution. The correctness of this conclusion should become even
more patent, when one considers the political developments that
the people have brought about since the ratification of the
Constitution on January 17,1973.
I consider it apropos at this juncture to repeat my own words in a
speech I delivered on the occasion of the celebration of Law Day on
September 18, 1975 before the members of the Philippine
Constitution Association and their guests:
To fully comprehend the constitutional situation
in the Philippines today, one has to bear in mind
that, as I have mentioned earlier, the martial law
proclaimed under the 1935 Constitution
overtook the drafting of the new charter by the
Constitutional Convention of 1971. It was
inevitable, therefore, that the delegates had to
take into account not only the developments
under it but, most of all, its declared objectives
and what the President, as its administrator, was
doing to achieve them. In this connection, it is
worthy of mention that an attempt to adjourn
44
 the convention was roundly voted down to
signify the determination of the delegates to
finish earliest their work, thereby to accomplish
the mission entrusted to them by the people to
introduce meaningful reforms in our government
and society. Indeed, the constituent labors
gained rapid tempo, but in the process, the
delegates were to realize that the reforms they
were formulating could be best implemented if
the martial law powers of the President were to
be allowed to subsist even after the ratification
of the Constitution they were approving. This
denouement was unusual. Ordinarily, a
constitution born out of a crisis is supposed to
provide all the needed cures and can, therefore,
be immediately in full force and effect after
ratification. Not so, with our 1973 Constitution,
Yes, according to the Supreme Court, 'there is no
more judicial obstacle to the new Constitution
being considered in force and effect', but in
truth, it is not yet so in full. Let me explain.
To begin with, in analyzing the new Constitution, we must be careful
to distinguish between the body or main part thereof and its
transitory provisions. It is imperative to do so because the transitory
provisions of our Constitution are extraordinary in the sense that
obviously they have been designed to provide not only for the
transition of our government from the presidential form under the
past charter to a parliamentary one as envisaged in the new
fundamental law, but also to institutionalize, according to the
President, the reforms introduced thru the exercise of his martial
law powers. Stated differently, the transitory provisions, as it has
turned out, has in effect established a transition government, not, I
am sure, perceived by many. It is a government that is neither
presidential nor parliamentary. It is headed, of course, by President
Marcos who not on retains all his powers under the 1935
Constitution but enjoys as well those of the President and the Prime
Minister under the new Constitution. Most importantly, he can and
does legislate alone. But to be more accurate, I should say that he
legislates alone in spite of the existence of the interim National
Assembly unequivocally ordained by the Constitution, for the simple
reason that he has suspended the convening of said assembly by
issuing Proclamation No. 1103 purportedly 'in deference to the
sovereign will of the Filipino people' expressed in the January 10-15,
1973 referendum.
Thus, we have here the unique case of a qualified ratification. The
whole Constitution was submitted for approval or disapproval of the
people, and after the votes were counted and the affirmative
majority known, we were told that the resulting ratification was
subject to the condition that the interim National Assembly
evidently established in the Constitution as the distinctive and
indispensable element of a parliamentary form of government
should nevertheless be not convened and that no elections should
be held for about seven years, with the consequence that we have
now a parliamentary government without a parliament and a
republic without any regular election of its officials. And as you can
see, this phenomenon came into being not by virtue of the
Constitution but of the direct mandate of the sovereign people
expressed in a referendum. In other words, in an unprecedented
extra-constitutional way, we have established, wittingly or
unwittingly, a direct democracy through the Citizens Assemblies
created by Presidential Decree No. 86, which later on have been
transformed into barangays, a system of government proclaimed by
the President as 'a real achievement in participatory democracy.'
What I am trying to say, my friends, is that as I perceive it, what is
now known as constitutional authoritarianism means, in the final
analysis, that the fundamental source of authority of our existing
government may not be necessarily found within the four corners of
the Constitution but rather in the results of periodic referendums
conducted by the Commission on Elections in a manner well known
to all of us This, as I see it, is perhaps what the President means by
saying that under the new Constitution he has extra-ordinary
powers independently of martial law - powers sanctioned directly by
the people which may not even be read in the language of the
Constitution. in brief, when we talk of the rule of law nowadays, our
frame of reference should not necessarily be the Constitution but
the outcome of referendums called from time to time by the
President. The sooner we imbibe this vital concept the more
intelligent will our perspective be in giving our support and loyalty to
the existing government. What is more, the clearer will it be that
except for the fact that all the powers of government are being
exercised by the President, we - do not in reality have a dictatorship
but an experimental type of direct democracy."
In the foregoing disquisition, I purposely made no mention of the
referendum of February 27, 1975. It is important to note, relative to
the main issue now before Us, that it was originally planned to ask
the people in that referendum whether or not they would like the
interim National Assembly to convene, but the Comelec to whom
the task of preparing the questions was assigned was prevailed upon
not to include any -such question anymore, precisely because it was
the prevalent view even among the delegates to the Convention as
well as the members of the old Congress concerned that that matter
had already been finally resolved in the previous referenda of
January and July 1973 in the sense that. the Assembly should not be
convened comparable to res adjudicata.
It is my position that as a result of the political developments since
January 17, 1973 the transitory provisions envisioning the convening
of the interim National Assembly have been rendered legally
inoperative. There is no doubt in my mind that for the President to
convoke the interim National Assembly as such would be to
disregard the will of the people - something no head of a democratic
republican state like ours should do. And I find it simply logical that
the reasons that motivated the people to enjoin the convening of
the Assembly - the unusually large and unmanageable number of its
members and the controversial morality of its automatic
composition consisting of all the incumbent elective national
executive and legislative officials under the Old Constitution who
would agree to join it and the delegates themselves to the
Convention who had voted in favor of the Transitory Provisions -
apply not only to the Assembly as an ordinary legislature but
perhaps more to its being a constituent body. And to be more
realistic, it is but natural to conclude that since the people are
against politicians in the old order having anything to do with the
formulation of national policies, there must be more reasons for
them to frown on said politicians taking part in amendment of the
fundamental law, specially because the particular amendment
herein involved calls for the abolition of the interim National
Assembly to which they belong and its substitution by the Batasang
Pambansa.
It is argued that in law, the qualified or conditional ratification of a
constitution is not contemplated. I disagree. It is inconsistent with
the plenary power of the people to give or withhold their assent to a
proposed Constitution to maintain that they can do so only wholly. I
cannot imagine any sound principle that can be invoked to support
the theory that the proposing authority can limit the power of
ratification of the people. As long as there are reliable means by
which only partial approval can be manifested, no cogent reason
exists why the sovereign people may not do so. True it is that no
proposed Constitution can be perfect and it may therefore be taken
with the good and the bad in it, but when there are feasible ways by
which it can be determined which portions of it, the people
disapprove. it would be stretching technicality beyond its purported
office to render the final authority - the people impotent to act
according to what they deem best suitable to their interests.
In any event, I feel it would be of no consequence to debate at
length regarding the legal feasibility of qualified ratification.
Proclamation 1103 categorically declares that:
WHEREAS, fourteen million nine hundred
seventy six thousand five hundred sixty-one
(14,976.561) members of all the Barangays voted
for the adoption of the proposed Constitution, as
against seven hundred forty-three thousand
eight hundred sixty-nine (743,869) who voted for
its rejection; but a majority of those who
approved the new Constitution conditioned their
45
 votes on the demand that the interim National
Assembly provided in its Transitory Provisions
should not be convened.
and in consequence, the President has acted accordingly by not
convening the Assembly. The above factual premises of
Proclamation 1103 is not disputed by petitioners. Actually, it is
binding on the Court, the same being a political act of a coordinate
department of the government not properly assailed as arbitrary or
whimsical. At this point, it must be emphasized in relation to the
contention that a referendum is only consultative, that Proclamation
1103, taken together with Proclamation 1102 which proclaimed the
ratification of the Constitution, must be accorded the same legal
significance as the latter proclamation, as indeed it is part and parcel
if the Act of ratification of the Constitution, hence not only
persuasive but mandatory. In the face of the incontrovertible fact
that the sovereign people have voted against the convening of the
interim National Assembly, and faced with the problem of amending
the Constitution in order precisely to implement the people's
rejection of that Assembly, the problem of constitutional dimension
that confronts Us, is how can any such amendment be proposed for
ratification by the people?
To start with, it may not be supposed that just because the office or
body designed by the constitutional convention to perform the
constituent function of formulating proposed amendments has been
rendered inoperative by the people themselves, the people have
thereby foreclosed the possibility of amending the Constitution no
matter how desirable or necessary this might be. In this connection,
I submit that by the very nature of the office of the Presidency in the
prevailing scheme of government we have - it being the only political
department of the government in existence - it is consistent with
basic principles of constitutionalism to acknowledge the President's
authority to perform the constituent function, there being no other
entity or body lodged with the prerogative to exercise such function.
There is another consideration that leads to the same conclusion. It
is conceded by petitioners that with the non-convening of the
interim Assembly, the legislative authority has perforce fallen into
the hands of the President, if only to avoid a complete paralysis of
law-making and resulting anarchy and chaos. It is likewise conceded
that the provisions of Section 3 (2) of Article XVII invest the
President with legislative power for the duration of the transition
period. From these premises, it is safe to conclude that in effect the
President has been substituted by the people themselves in place of
the interim Assembly. Such being the case, the President should be
deemed as having been granted also the cognate prerogative of
proposing amendments to the Constitution. In other words, the
force of necessity and the cognate nature of the act justify that the
department exercising the legislative faculty be the one to likewise
perform the constituent function that was attached to the body
rendered impotent by the people's mandate. Incidentally, I reject
most vehemently the proposition that the President may propose
amendments to the Constitution in the exercise of his martial law
powers. Under any standards, such a suggestion cannot be
reconciled with the Ideal that a Constitution is the free act of the
people.
It was suggested during the oral, argument that instead of extending
his legislative powers by proposing the amendment to create a new
legislative body, the President should issue a decree providing for
the necessary apportionment of the seats in the Regular National
Assembly and call for an election of the members thereof and thus
effect the immediate normalization of the parliamentary
government envisaged in the Constitution. While indeed
procedurally feasible, the suggestion overlooks the imperative need
recognized by the constitutional convention as may be inferred from
the obvious purpose of the transitory provisions, for a period of
preparation and acquaintance by all concerned with the unfamiliar
distinctive features and practices of the parliamentary system.
Accustomed as we are to the presidential system, the Convention
has seen to it that there should be an interim parliament under the
present leadership, which will take the corresponding measures to
effectuate the efficient and smooth transition from the present
system to the new one. I do not believe this pattern set by the
convention should be abandoned.
The alternative of calling a constitutional convention has also been
mentioned. But, in the first place, when it is considered that
whereas, under Section 1 (1) and (2) of Article XVI, the regular
National Assembly may call a Constitutional Convention or submit
such a call for approval of the people, Section 15 of Article XVII, in
reference to interim National Assembly, does not grant said body
the prerogative of calling a convention, one can readily appreciate
that the spirit of the Constitution does not countenance or favor the
calling of a convention during the transition, if only because such a
procedure would be time consuming, cumbersome and expensive.
And when it is further noted that the requirement as to the number
of votes needed for a proposal is only a majority, whereas it is three-
fourths in respect to regular Assembly, and, relating this point to the
provision of Section 2 of Article XVI to the effect that all ratification
plebiscites must be held "not later than three months after the
approval" of the proposed amendment by the proposing authority,
the adoption of the most simple manner of amending the charter, as
that provided for in the assailed Presidential Decree 1033 suggests
itself as the one most in accord with the intent of the fundamental
law.
There is nothing strange in adopting steps not directly based on the
letter of the Constitution for the purpose of amending or changing
the same. To cite but one important precedent, as explained by Mr.
Justice Makasiar in his concurring opinion in Javellana 2, the present
Constitution of the United States was neither proposed nor ratified
in the manner ordained by the original charter of that country, the
Articles of Confederation and Perpetual Union.
In brief. if the convening and operation of the interim National
Assembly has been effectuated through a referendum-plebiscite in
January, 1973, and ratified expressly and impliedly in two
subsequent referenda, those of July, 1973 and February, 1975, why
may not a duly held plebiscite suffice for the purpose of creating a
substitute for that Assembly? It should be borne in mind that after
all, as indicated in the whereas of the impugned Presidential Decree,
actually, the proposed amendments were initiated by the barangays
and sanggunian members. In other words, in submitting the
amendments for ratification, the President is merely acting as the
conduit thru whom a substantial portion of the people, represented
in the Katipunan ng Mga Sanggunian, Barangay at Kabataang
Barangay, seek the approval of the people as a whole of the
amendments in question. If all these mean that the sovereign people
have arrogated unto themselves the functions relative to the
amendment to the Constitution, I would regard myself as totally
devoid of legal standing to question it, having in mind that the most
fundamental tenet on which our whole political structure rests is
that "sovereignty resides in the people and all government authority
emanates from them."
In the light of the foregoing considerations, I hold that Presidential
Decree No. 1033 does not infringe the Constitution, if only because
the specific provision it is supposed to infringe does not exist in legal
contemplation since it was coevally made inoperative when the
people ratified the Constitution on January 17, 1973. I am fully
convinced that there is nothing in the procedure of amendment
contained in said decree that is inconsistent with the fundamental
principles of constitutionalism. On the contrary, I find that the
Decree, in issue conforms admirably with the underlying tenet of our
government - the sovereignty and plenary power of the people.
On the issue of whether or not October 16, 1976 is too proximate to
enable the people to sufficiently comprehend the issues and
intelligently vote in the referendum and plebiscite set by Presidential
Decree 1033, all I can say is that while perhaps my other colleagues
are right in holding that the period given to the people is adequate, I
would leave it to the President to consider whether or not it would
be wiser to extend the same. Just to avoid adverse comments later I
wish the President orders a postponement. But whether such
postponement is ordered or not, date of the referendum- plebiscite
anywhere from October 16, 1976 to any other later date, would be
of no vital import.
46
In conclusion, I vote to dismiss all the three petitions before Us.
MAKASIAR, J., concurring and dissenting:
Since the validity or effectivity of the proposed amendments is to be
decided ultimately by the people in their sovereign capacity, the
question is political as the term is defined in Tanada, et al. vs.
Cuenco, et al. (103 Phil. 1051), which is a bar to any judicial inquiry,
for the reasons stated in Our opinion in Javellana, et al. vs. Executive
Secretary, et al. (L-36142); Tan, et al. vs. Executive Secretary, et al.
(L,36164); Roxas, et al. vs Executive Secretary, et al. (L-36165);
Monteclaro, etc., et al. vs' Executive Secretary, et al. (@36236); and
Ditag et al. vs. Executive Secretary, et al. (L-W283, March 31, 1973,
50 SCRA 30, 204-283). The procedure for amendment is not
important Ratification by the people is all that is indispensable to
validate an amendment. Once ratified, the method of making the
proposal and the period for submission become relevant.
The contrary view negates the very essence of a republican
democracy - that the people are sovereign - and renders
meaningless the emphatic declaration in the very first provision of
Article II of the 1973 Constitution that the Philippines is a republican
state, sovereignty resides in the people and all government
authority emanates from them. It is axiomatic that sovereignty is
illimitable The representatives cannot dictate to the sovereign
people. They may guide them; but they cannot supplant their
judgment, Such an opposite view likewise distrusts the wisdom of
the people as much as it despises their intelligence. It evinces a
presumptuous pretension to intellectual superiority. There are
thousands upon thousands among the citizenry, who are not in the
public service, who are more learned and better skilled than many of
their elected representatives.
Moreover, WE already ruled in Aquino, et al. vs- Comelec, et al. (L
40004, Jan. 31, 1975, 62 SCRA 275, 298-302) that the President as
enforcer or administrator of martial rule during the period of martial
law can legislate; and that he has the discretion as to when the
convene the interim National Assembly depending on prevailing
conditions of peace and order. In view of the fact that the interim
National Assembly has not been convoked in obedience to the
desire of the people clearly expressed in the 1973 referenda, the
President therefore remains the lone law-making authority while
martial law subsists. Consequently, he can also exercise the power of
the interim National Assembly to propose amendments to the New
Constitution (Sec. 15,,Art. XVII If, as conceded by petitioner Vicente
Guzman (L-44684), former delegate to the 1971 Constitutional
Convention which drafted the 1973 Constitution. the President,
during the period of martial law, can call a constitutional convention
for the purpose, admittedly a constituent power, it stands to reason
that the President can likewise legally propose amendments to the
fundamental law.
ANTONIO, J., concurring:
I
At the threshold, it is necessary to clarify what is a "political
question". It must be noted that this device has been utilized by the
judiciary "to avoid determining questions it is ill equipped to
determine or that could be settled in any event only with the
effective support of the political branches." 1 According to Weston,
judges, whether "personal representatives of a truly sovereign king,
or taking their seats as the creatures of a largely popular sovereignty
speaking through a written constitution, derive their power by a
delegation, which clearly or obscurely as the case may be,
deliminates and delimits their delegated jurisdiction.* * * Judicial
questions * * * are those which the sovereign has set to be decided
in the courts. Political questions, similarly, are those which the
sovereign has entrusted to the so-called political departments of
government or has reserved to be settled by its own extra-
government or has reserved to be settled by its own extra-
governmental action." 2 Reflecting a similar concept, this Court has
defined a "political question" as a "matter which is to be exercised
by the people in their primary political capacity or that has been
specifically delegated to some other department or particular officer
of the government, with discretionary power to act." 3 In other
words, it refers to those questions which, under the Constitution,
are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to
the legislative or executive branch of government. 4
In determining whether an issue falls within the political question
category, the absence of satisfactory creterion for a judicial
determination or the appropriateness of attributing finality to the
action of the political departments of government is a dominant
consideration. This was explained by Justice Brennan in Baker v.
Carr, 5 thus :
Prominent on the surface of any case held to
involve political question is found a textually
demonstrable constitutional lack of judicially
discoverrable and manageable standards for
resolving it; or the impossibility of deciding
without an initial policy determination of a kind
clearly for non-judicial discretion; or the
impossibility of a court's undertaking
independent resolution without expressing lack
of the respect due coordinate branches of
government; or an unusual need for
unquestioning adherence to a political decision
already made; or the potentiality of
embarrassment from from multifarious
pronouncements by various departments on one
question. . . .
To decide whether a matter has in a measure been committed by
the Constitution to another branch of government or retained be
the people to be decided by them in their sovereign capacity, or
whether that branch exceeds whatever authority has been
committed, is indeed a delicate exercise in constitutional
interpretation.
In Coleman v. Miller, 6 the United States Supreme Court held that
the efficacy of the ratification by state legislatures of a constitutional
amendment is a political question. On the question of whether the
State Legislature could constitutionally relative an amendment, after
the same had been previously rejected by it, it was held that the
ultimate authority over the question was in Congress in the exercise
of its control over the promulgation of the adoption of the
amendment. And in connection with the second question of
whether the amendment has lost its, vitality through the lapse of
time, the Court held that the question was likewise political,
involving "as it does ... an appraisal of a great variety of relevant
conditions, political, social and economic, which can hardly be said
to be within the appropriate range of evidence receivable in a court
of justice and as to which it would be an extravagant extension of
juridical authority to assert judicial notice as the basis of deciding a
controversy with respect to the validity of an amendment actually
ratified. On the other hand, these conditions are appropriate for the
consideration of the political departments of the Government. The
questions they involve are essentially political and not justiciable." '
In their concurring opinions, Justices Black, Roberts, Frankfurter and
Douglas stressed that:
The Constitution grants Congress exclusive
power to control submission off constitutional
amendments. Final determination by Congress
their ratification by three-fourths of the States
has taken place 'is conclusive upon the courts.' In
the exercise of that power, Congress, of course,
is governed by the Constitution. However, A
whether submission, intervening procedure for
Congressional determination of ratification
conforms to the commands of the Constitution,
call for decisions by apolitical department of
questions of a t@ which this Court has
frequently designated 'political.' And decision of
a 'political question' by the political department'
to which the Constitution has committed it
47
 'conclusively binds the judges, as well as all other
officers, citizens and subjects of ... government.
Proclamation under authority of Congress that
an amendment has been ratified will carry with it
a solemn assurance by the Congress that
ratification has taken place as the Constitution
commands. Upon this assurance a proclaimed
amendment must be accepted as a part of the
Constitution, learning to the judiciary its
traditional authority of interpretation. To the
extent that the Court's opinion in the present
case even by implieding assumes a power to
make judicial interpretation of the exclusive
constitutional authority of Congress over
submission and by ratification of amendments,
we are unable to agree.
Relying on this doctrine enunciated in Coleman v. Miller supra this
Court, in Mabanag v. Lopez Vitol, 7 speaking through Mr. Justice
Pedro Tuason, ruled that the process of constitutional amendment,
involving proposal and ratification, is a political question. In the
Mabang case, the petitioners sought to prevent the enforcement of
a resolution of Congress proposing the "Parity Amendment" to the
Philippine Constitution on the ground that it had not been approved
by the three-fourths vote of all the members of each house as
required be Article XV of the 1935 Constitution. It was claimed that
three (3) Senators and eight (8) members of the House of
Representatives had been suspended and that their membership
was not considered in the determination of the three- fourths %- ore
In dismissing the petition on the ground that the question of the
validity of the proposal was political, the Court stated:
"If ratification of an amendment is a political question, a proposal
which leads to ratification has to be a political question. The
question to steps complement each other in a scheme intended to
achieve a single objective. It is to be noted that amendatory process
as provided in Section I of Article XV of the Philippine Constitution
'consists of (only) two distinct parts: proposal and ratification.' There
is no logic in attaching political character to one and withholding
that character from the other. Proposal to amend the Constitution is
a highly political function performed by the Congress in its sovereign
legislative capacity and committed to its charge by the Constitution
itself. ..." (At pages 4-5, Italics supplied.)
It is true that in Gonzales v. Comelec, 8 this Court held that "the issue
whether or not a Resolution of Congress, acting as a constituent
assembly - violates the Constitution is essentially justiciable, not
political, and hence, subject to judicial review." What was involved
in Gonzales, however, was not a proposed What was involved in
Gonzales, however, was not a proposed amendment to the
Constitution but an act of Congress, 9 submitting proposed
amendments to the Constitution. Similarly, in Tolentino v.
Commission an Elections, 10 what was involved was not the validity
of the proposal to lower the voting age but rather that of the
resolution of the Constitutional Convention submitting the proposal
for ratification. The question was whether piecemeal amendments
to the Constitution could submitted to the people for approval or
rejection.
II
Here, the point has been stressed that the President is acting as
agent for and in behalf of the people in proposing the amendment.
there can be no question that in the referendums of January, 1973
and in the subsequent referendums the people had clearly and
categorically rejected the calling of the interim National Assembly.
As stated in the main opinion, the Lupang Tagapagpaganap of the
Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga
Barangay, representing 42,000 barangays, the Kabataang Barangay
organizations and the various sectoral groups had proposed the
replacement of the interim National Assembly. These barangays and
the Sanggunian assemblies are effective instrumentalities through
which the desires of the people are articulated and expressed. The
Batasang Bayan (Legislative Council), composed of nineteen (19)
cabinet members and nine (9) officials with cabinet rank, and ninety-
one (91) members of the Lupang Tagapagpaganap (Executive
Committee) of the Katipunan ng mga Sangguniang Bayani voted in
their special session to submit directly to the people in a plebiscite
on October 16, 1976 the afore-mentioned constitutional
amendments. Through the Pambansang Katipunan by Barangay and
the Pampurok ng Katipunan Sangguniang Bayan, the people have
expressed their desire not only to abolish the interim National
Assembly, but to replace it with a more representative body
acceptable to them in order to effect the desirable constitutional
changes necessary to hasten the political evolution of the
government towards the parliamentary system, while at the same
time ensuring that the gains of the New Society, which are vital to
the welfare of the people, shall be safeguarded. The proposed
constitutional amendments, therefore, represent a consensus of the
people.
It would be futile to insist that the intemi National Assembly should
have been convened to propose those amendments pursuant to
Section 15 of Article XVII of the Constitution. This Court, in the case
of Aquino v. Commission or Elections, 11 took judicial notice of the
fact that in the referendum of January, 1973, a majority of those
who approved the new Constitution conditioned their votes on the
demand that the interim National Assembly provided in the
Transitory Provisions should not be and the President "in deference
to the sovereign will of the Filipino people" declared that the
convening of said body shall be suspended. 12 As this Court observed
in the Aquino case:
His decision to defer the initial convocation of
the byiitttit National Assembly was supported by
the sovereign people at the by referendum in
January, 1973 when the people voted to
postpone the convening of the interim National
Assembly until after at least seven (7) years from
the approval of the new Constitution. And the
reason why the same question was eliminated
from the questions to be submitted at the
referendum on February 27, 1975, is that even
some members of the Congress and delegates of
the Constitutional Convention, who are already
byjso ofitto members of the intetini National
Assembly are against such inclusion; because the
issue was already bycciled in the January, 1973
referendum by the sovereign people indicating
thereby their disenchantment with any Assembly
as the former Congress failed to institutionalize
the reforms they demanded and wasted public
funds through endless debates without relieving
the suffering of the general mass of citizenry (p.
302.) The action of the President in suspending
the convening of the interim National Assembly
has met the overwhelming approval of the
people in subsequent referenda.
Since it was the action by the people that gave binding force and
effect to the new Constitution, then it must be accepted as a
necessary consequence that their objection against the immediate
convening of the interim National Assembly must be respected as a
positive mandate of the sovereign.
In the Philippines, which is a unitary state, sovereignty "resides in
the people and all government authority emanates from them."13
The term "People" as sovereign is comprehensive in its context. The
people, as sovereign creator of all political reality, is not merely the
enfranchised citizens but the political unity of the people. 14 It
connotes, therefore, a people which exists not only in the urgent
present but in the continuum of history. The assumption that the
opinion of The People as voters can be treated as the expression of
the interests of the People as a historic community was, to the
distinguished American journalist and public philosopher, Walter
Lipunan, unwarranted.
Because of the discrepancy between The People
as Voters and the People as the corporate
nation, the voters have no title to consider
48
 themselves the proprietors of the
commonwealth and to claim that their interests
are Identical to the public interest. A prevailing
plurality of the voters are not The People. The
claim that they are is a bogus title invoked to
justify the usurpation of the executive power by
representative assemblies and the intimidation
of public men by demagogue politicians. In fact
demagoguery can be described as the sleight of
hand by which a faction of The People as voters
are invested with the authority of The People.
That is why so many crimes are committed in the
People's name 15
In Gonzales v. Comelec, supra, the Court clearly emphasized that the
power to propose amendments or to amend the Constitution is part
of the inherent power of the people as the repository of sovereignty
in a republican state. While Congress may propose amendments to
the Constitution, it acts pursuant to authority granted to it by the
people through the Constitution. Both the power to propose and the
authority to approve, therefore, inhere in the people as the bearer
of the Constitution making power.
Absent an interim National Assembly upon whom the people,
through the Constitution, have delegated the authority to exercise
constituent powers, it follows from necessity that either the people
should exercise that power themselves or through any other
instrumentality they may choose. For Law, like Nature, abhors a
vacuum (natural vacuum abhorret).
The question then is whether the President has authority to act for
the people in submitting such proposals for ratification at the
plebiscite of October 16. The political character of the question is,
therefore, particularly manifest, considering that ultimately it is the
people who will decide whether the President has such authority. It
certainly involves a matter which is to be exercised by the people in
their sovereign capacity, hence, it is essentially political, not judicial.
While it is true that the constituent power is not to be confuse with
legislative power in general because the prerogative to propose
amendments is not embraced within the context of ordinary
lawmaking, it must be noted that the proposals to be submitted for
ratification in the forthcoming referendum are, in the final analysis,
actually not of the President but directly of the people themselves,
speaking through their authorized instrumentalities.
As the Chief Justice aptly stated in his concurring opinion in this
case:
... The President merely formalized the said
proposals in Presidential Decree No. 1033. It
being conceded in all quarters that sovereignty
resides in the people and it having been
demonstrated that their constituent power to
amend the Constitution has not been delegated
by them to any instrumentality of the
Government during the present stage of the
transition period of our political development,
the conclusion is ineluctable that their exertion
of that residuary power cannot be vulnerable to
any constitutional challenge as beingultravires.
Accordingly, without venturing to rule on
whether or not the President is vested with
constituent power - as it does not appear
necessary to do so in the premises - the
proposals here challenged, being acts of the
sovereign people no less, cannot be said to be
afflicted with unconstitutionality. A fortiori, the
concomitant authority to call a plebiscite and to
appropriate funds therefor is even less
vulnerable not only because the President, in
exercising said authority, has acted as a mere
ofiffet byf of the people who made the
proposals, but likewise because the said
authority is legislative in nature rather than
constituent.
This is but a recognition that the People of the
Philippines have the inherent, sole and exclusive
right of regulating their own government, and of
altering or abolishing their Constitution
whenever it may be necessary to their safety or
happiness. There appears to be no justification,
under the existing, circumstances, for a Court to
create by implication a limitation on - the
sovereign power of the people. As has been
clearly explained in a previous case:
There is nothing in the nature of the submission
which should cause the free exercise of it to be
obstructed, or that could render it dangerous to
the stability of the government; because the
measure derives all its vital force from the action
of the people at the ballot box, and there can
never be danger in submitting in an established
form to a free people, the proposition whether
they will change their fundamental law The
means provided for the exercise of their
Sovereign right of changing their constitution
should receive such a construction as not to
trammel the exercise of the right. Difficulties and
embarrassments in its exercise are in derogation
of the right of free government, which is
inherent in the people; and the best security
against tumult and revolution is the free and
unobstructed privilege to the people of the State
to change their constitution in the mode
prescribed by the instrument.
III
The paramount consideration that impelled Us to arrive at the
foregoing opinion is the necessity of ensuring popular control over
the constituent power. "If the people are to control the constituent
power - the power to make and change the fundamental law of the
State," observed Wheeler," "the process of Constitutional change
must not be based too heavily upon existing agencies of
government." Indeed, the basic premise of republicanism is that the
ordinary citizen, the common man. can be trusted to determine his
political destiny. Therefore, it is time that the people should be
accorded the fullest opportunity to decide the laws that shall
provide for their governance. For in the ultimate analysis, the
success of the national endeavor shall depend on the vision,
discipline and I by ininess of the moqqqtai will of every Filipino.
IN VIEW OF THE FOREGOING CONSIDERATIONS, We vote to dismiss
the petitions.
Aquino, J., concur.
MUNOZ PALMA, J., dissenting:
I concur fully with the remarkably frank (so characteristic of him)
dissenting opinion of my distinguished colleague, Justice Claudio
Teehankee. If I am writing this brief statement it is only to unburden
myself of some thoughts which trouble my mind and leave my
conscience with no rest nor peace.
Generally, one who dissents from a majority view of the Court takes
a lonely and at times precarious road, the burden byeing lightened
only by the thought that in this grave task of administering justice,
when matters of conscience are at issue, one must be prepared to
espouse and embrace a rightful cause however unpopular it may be.
49
1. That sovereignty resides in the people and all government
authority emanates from them is a fundamental, basic principle of
government which cannot be disputed, but when the people have
opted to govern themselves under the mantle of a written
Constitution, each and every citizen, from the highest to the
lowliest, has the sacred duty to respect and obey the Character they
have so ordained.
By the Constitution which they establish, they
not only tie up he hands of their official agencies,
but their own hands as well; and neither the
officers of the state, nor the whole people as an
aggregate body, are at liberty to take action in
opposition to this fundamental law. (Cooley's
Constitutional Limitations, 7th Ed. p. 56, Italics
Our).
The afore-quoted passage from the eminent jurist and author Judge
Cooley although based on declarations of law of more than a
century ago, lays down a principle which to my mind is one of the
enduring cornerstones of the Rule of Law. it is a principle with which
I have been familiar as a student of law under the tutelage of
revered Professors, Dr. Vicente G. Sinco and Justice Jose P. Laurel,
and which I pray will prevail at all times to ensure the existence of a
free, stable, and civilized society.
The Filipino people,. wanting to ensure to themselves a democratic
republican form of government, have promulgated a Constitution
whereby the power to govern themselves has been entrusted to and
distributed among three branches of government; they have also
mandated in clear and unmistakable terms the method by which
provisions in their fundamental Charter may be amended or revised.
Having done so, the people are bound by these constitutional
limitations. For while there is no surrender or abdication of the
people's ultimate authority to amend, revise, or adopt a new
Constitution, sound reason demands that they keep themselves
within the procedural bounds of the existing fundamental law. The
right of the people to amend or change their Constitution if and
when the need arises is not to be denied, but we assert that absent
a revolutionary state or condition in the country the change must be
accomplished through the ordinary, regular and legitimate processes
provided for in the Constitution.'
I cannot subscribe therefore to the view taken by the Solicitor
General that the people, being sovereign, have the authority to
amend the Constitution even in a manner different from and
contrary to that expressly provided for in that instrument, and that
the amendatory process is intended more as a limitation of a power
rather than a grant of power to a particular agency and it should not
be construed as limiting the ultimate sovereign will of the people to
decide on amendments to the Constitution .2 Such a view will
seriously undermine the very existence of a constitutional
government and will permit anarchy and/or mob rule to set afoot
and prevail. Was it the Greek philosopher Plato who warned that the
rule of the mob is a prelude to the rule of the tyrant?
I would use the following excerpt from Bernas, S.J. 'The 1973
Philippine Constitution, Notes and Cases" as relevant to my point:
. . . the amendatory provisions are called a
'constitution of sovereighty' because they define
the constitutional meaning of 'sovereignty of the
people.' Popular sovereignty, as embodied in the
Philippine Constitution, is not extreme popular
sovereignty. As one American writer put it:
A constitution like the American one serves as a
basic check upon the popular will at any given
time. It is the distinctive function of such written
document to classify certain things as legal
fundamentals; these fundamentals may not be
changed except by the slow and cumbersome
process of amendment. The people themselves
have decided, in constitutional convention
assembled, to limit themselves ana future
generations in the exercise of the sovereign
power which they would otherwise possess. And
it is precisely such limitation that enables those
subject to governmental authority to appeal
from the people drunk to the people sober in
time of excitement and hysteria. The
Constitution, in the neat phrase of the Iowa
court, is the protector of the people against
injury by the .people. *
Truly, what need is there for providing in the Constitution a process
by which the fundamental law may be amended if, after all, the
people by themselves can set the same at naught even in times of
peace when civil authority reigns supreme? To go along with the
respondents' theory in this regard is to render written Constitutions
useless or mere "ropes of sand allowing for a government of men
instead of one of laws. For it cannot be discounted that a situation
may arise where the people are heralded to action at a point of a
gun or by the fiery eloquence of a demagogue, and where passion
overpowers reason, and mass action overthrows legal processes.
History has recorded such instances, and I can think of no better
example than that of Jesus Christ of Judea who was followed and
loved by the people while curing the sick, making the lame walk and
the blind see, but shortly was condemned by the same people
turned into fanatic rabble crying out "Crucify Him, Crucify Him" upon
being incited into action by chief priests and elders of Jerusalem.
Yes, to quote once more from Judge Cooley:
A good Constitution should be beyond the
reason of temporary excitement and popular
caprice or passion. It is needed for stability and
steadiness; it must yield to the thought of the
people; not to the whim of the people, or the
thought evolved in excitement or hot blood, but
the sober second thought, which alone, if the
government is to be sale can be allowed
efficiency. .... Changes in government are to be
feared unless the benefit is certain." (quoted in
Ellingham v. Dye, 99 N.E. 1, 15,) 3
Crawford v. Gilchrist 64 Fla. 41., 59., So. 963, Ann. Cas. 1914B, 916;
State v. Hall, 159 N.W., 281; Opinion of Marshall, J. in State ex. rel.
Poster v. Marcus, 152 N.W., 419;
From Kochier v. Hill, Vol. 15, N.W., 609, we quote:
xxx xxx xxx
It has been said that changes in the constitution
may be introduced in disregard of its provisions;
that if the majority of the people desire a change
the majority must be respected, no matter how
the change may be effected; and that the
change, if revolution, is peaceful resolution. ...
We fear that the advocates of this new doctrine,
in a zeal to accomplish an end which the majority
of the people desire, have looked at but one
phase of the question, and have not fully
considered the terrible consequences which
would almost certainly follow a recognition of
the doctrine for which they contend. It may be
that the incorporation of this amendment in the
constitution, even if the constitution has to be
broken to accomplish it, would not of itself
produce any serious results. But if it should be
done by sanctioning the doctrine contended for,
a precedent would be set which would plague
the state for all future time. A Banquo's ghost
would arise at our incantation which would not
down at our bidding.
xxx xxx xxx
50
 We ought to ponder long before we adopt a
doctrine so fraught with danger to republican
institutions. ...
xxx xxx xxx
Appellants' counsel cite and rely upon section 2, art. 1, of the
constitution of the staff This section is a portion of the bill of rights,
and is as follows: 'All political power is inherent in the people.
Government is instituted for the protection, security, and benefit of
of the people; and they have the right at all times to alter or reform
the same, whenever the public good may require.' Abstractly
considered, there can bye no doubt of the correctness of the
propositions embraced in this suction. These principles are older
than constitutions and older than governments. The people did not
derive the rights referred to by on the constitution. and, in their
nature, thee are such that the people cannot surrender them ... .
2. Presidential Decrees Nos. 991 and 1033 which call for a national
referendum-plebiscite on October 16, 1976 for the purpose, among
other things, of amending certain provisions of the 1973
Constitution are null and void as they contravene the express
provisions on the amending process of the 1973 Constitution laid
down in Article XVI, Section 1 (1) and Article XVII, Section 15, more
particularly the latter which applies during the present transition
period. The Opinion of Justice Teehankee discusses in detail this
particular matter.
I would just wish to stress the point that although at present there is
no by tterint National Assembly which may propose amendments to
the Constitution, the existence of a so-called "vacuum" or "hiatus"
does not justify a transgression of the constitutional provisions on
the manner of amending the fundamental law. We cannot cure one
infirmity - the existence of a "vacuum" caused by the non-convening
of the interim National Assembly - with another infirmity, that is,
doing violence to the Charter.
All great mutations shake and disorder a state.
Good does not necessarily succeed evil; another
evil may succeed and a worse. (Am. Law Rev.
1889, p. 311., quoted in Ellingham v. Dye, supra,
p. 15)
Respondents contend that the calling of the referendum-plebiscite
for the purpose indicated is a step necessary to restore the state of
normalcy in the country. To my mind, the only possible measure that
will lead our country and people to a condition of normalcy is the
lifting or ending of the state of martial law. If I am constrained to
make this statement it is because so much stress was given during
the hearings of these cases on this particular point, leaving one with
the impression that for petitioners to contest the holding of the
October 16 referendum-plebiscite is for them to assume a position
of blocking or installing the lifting of martial law, which I believe is
unfair to the petitioners. Frankly, I cannot see the connection
between the two. My esteemed colleagues should pardon me
therefore if I had ventured to state that the simple solution to the
simple solution to the present dilemma is the lifting of martial law
and the implementation of the constitutional provisions which will
usher in the parliamentary form of government ordained in the
Constitution, which, as proclaimed in Proclamation 1102, the people
themselves have ratified.
If the people have indeed ratified the 1973 Constitution, then they
are bound by their act and cannot escape from the pretended
unfavorable consequences thereof, the only y being to set in motion
the constitutional machinery by which the supposed desired
amendments may properly be adopted and submitted to the
electorate for ratification. Constitutional processes are to be
observed strictly, if we have to maintain and preserve the system of
government decreed under the fundamental Charter. As said by
Justice Enrique Fernando in Mutuc vs. Commission on Elections
... The concept of the Constitution as the
fundamental law, setting forth the criterion for
the validity of any public act whether proceeding
from the highest official or the lowest
funcitonary, is a postulate of our system of
government. That is to manifest fealty to the rule
of law, with priority accorded to that which
occupies the topmost rung in the legal hierarchy.
... (36 SCRA, 228, 234, italics Ours)
A contrary view would lead to disastrous consequences for, in the
words of Chief Justice Cox of the Supreme Court of Indiana in
Ellingham v. Dye, (supra, p. 7) liberty and popular sovereignty are
not meant to give rein to passion or thoughtless impulse but to allow
the exercise of power by the people for the general good by
tistlercoitaitt restraints of law. 3 . The true question before Us is is
one of power. Does the incumbent President of the Philippines
possess constituent powers? Again, the negative answer is explained
in detail in the dissenting opinion of Justice Teehankee.
Respondents would justify the incumbent President's exercise of
constituent powers on theory that he is vested with legislative
powers as held by this Court in Benigno S. Aquino, Jr., et al. vs.
Commission on Elections, et al., L-40004, January 31, 1975. 1 wish to
stress that although in my separate opinion in said case I agreed that
Section 3 (2) of the Transitory provisions grants to the incumbent
President legislative powers, I qualified my statement as follows:
.... As to, whether, or not, this unlimited
legislative qqqjwwel of the President continues
by exist even after the ratification of the
Constitution is a matter which I am not ready to
concede at the moment, and which at any rate I
believe is not essential in resolving this Petition
for reasons to be given later. Nonetheless, I hold
the view that the President is empowered to
issue proclamations, orders, decrees, etc. to
carry out and implement the objectives of the
proclamation of martial law be it under the 1935
or 1973 Constitution, and for the orderly and
efficient functioning of the government, its
instrumentalities, and agencies. This grant of
legislative power is necessary to fill up a vacuum
during the transition period when the interim
National Assembly is not yet convened and
functioning, for otherwise, there will be a
disruption of official functions resulting in a
collapse of the government and of the existing
social order. (62 SCRA, pp. 275,347)
I believe it is not disputed that legislative power is essentially
different from constituent power; one does not encompass the
other unless so specified in the Charter, and the 1973 Constitution
contains provisions in this regard. This is well-explained in Justice
Teehankee's Opinion. The state of necessity brought about by the
current political situation, invoked by the respondents, provides no
source of power to propose amendments to the existing
Constitution. Must we "bend the Constitution to suit the law of the
hour or cure its defects "by inflicting upon it a wound which nothing
can heal commit one assault after the other "until all respect for the
fundamental law is lost and the powers of government are just what
those in authority please to call them?'" 5 Or can we now ignore
what this Court, speaking through Justice Barredo, said in Tolentino
vs. Comelec:
... let those who would put aside, invoking
grounds at best controversial, any mandate of
the fundamental law purportedly by order to
attain some laudable objective bear in mind that
someday somehow others with purportedly
more laudable objectives may take advantages
of the precedent in continue the destruction of
the Constitution, making those who laid down
the precedent of justifying deviations from the
requirements of the Constitution the victims of
their own folly. 6
51
Respondents emphatically assert that the final word is the people's
word and that ultimately it is in the hands of the people where the
final decision rests. (Comment, pp. 18, 19, 22) Granting in gratia
argument that it is so, let it be an expression of the will of the people
a normal political situation and not under the aegis of martial rule
for as I have stated in Aquino vs. Comelec, et al., supra, a
referendum (and now a plebiscite) held under a regime of martial
law can be of no far reaching significance because it is being
accomplished under an atmosphere or climate of fear as it entails a
wide area of curtailment and infringement of individual rights, such
as, human liberty, property rights, rights of free expression and
assembly, protection against unreasonable searches and seizures,
liberty of abode and of travel, and so on.
4. The other issues such as the sufficiency and proper submission of
the proposed amendments for ratification by the people are
expounded in Justice Teehankee's Opinion. I wish to stress indeed
that it is incorrect to state that the thrust of the proposed
amendments is the abolition of the interim National Assembly and
its substitution with an "interim Batasang Pambansa their in by in
Proposed amendment No. 6 will permit or allow the concentration
of power in one man - the Executive - Prime Minister or President or
whatever you may call him - for it gives him expressly (which the
1973 Constitution or the 1935 Constitution does not) legislative
powers even during the existence of the appropriate legislative
body, dependent solely on the executive's judgment on the
existence of a grave emergency or a threat or imminence thereof **
I must be forgiven if, not concerned with the present, I am haunted
however by what can happen in the future, when we shall all be
gone. Verily, this is a matter of grave concern which necessitates full,
mature, sober deliberation of the people but which they can do only
in a climate of freedom without the restraints of martial law. I close,
remembering what Claro M. Recto, President of the Constitutional
Convention which drafted the 1935 Philippine Constitution, once
said: .
... Nor is it enough that our people possess a
written constitution in order that their
government may be called constitutional. To be
deserving of this name, and to drive away all
lanirer of anarchy as well as of dictatorship
whether by one man or a few, it is necessary that
both the government authorities and the people
faithfully observe and obey the constitution, and
that the citizens be duly conversant not only
with their rights but also with their duties... 7
Jose P. Laurel who served his people as Justice of the Supreme Court
of this country gave this reminder; the grave and perilous task of
halting transgressions and vindicating cherished rights is reposed
mainly oil the Judiciary and therefore let the Courts be the vestal
keepers of the purity and sanctity of our Constitution.' On the basis
of the foregoing, I vote to declare Presidential Decrees Nos. 991 and
1033 unconstitutional and enjoin the implementation thereof.
CONCEPCION JR., J., concurring:
I vote for the dismissal of the petitions.
1. The issue is not political and therefore justiciable.
The term "political question", as this Court has previously defined,
refers to those questions which, under the constitution, are to be
decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the
Legislature or executive branch of the Government. It is concerned
with the issues dependent upon the wisdom, not legality, of a
particular measure. 1
Here, the question raised is whether the President has authority to
propose to the people amendments to the Constitution which the
petitioners claim is vested solely upon the National Assembly, the
constitutional convention called for the purpose, and the by the
National Assembly. This is not a political question since it involves
the determination of conflicting claims of authority under the
constitution.
In Gonzales vs. Comelec, 2 this Court, resolving the issue of whether
or not a Resolution of Congress, acting as a constituent assembly,
violates the Constitution, ruled that the question is essentially
justiciable, not political, and hence, subject to judicial review.
In Tolentino vs. Comelec 3 this Court finally dispelled all doubts as to
its position regarding its jurisdiction vis-a-vis the constitutionality of
the acts of Congress, acting as a constituent assembly, as well as
those of a constitutional convention called for the purpose of
proposing amendments to the constitution. Insofar as observance of
constitutional provisions on the procedure for amending the
constitution is concerned, the issue is cognizable by this Court under
its powers of judicial review.
2. As to the merits, a brief backdrop of the decision to hold the
referendum-plebiscite will help resolve the issue. It is to be noted
that under the 1973 Constitution, an interim National Assembly was
organized to bring about an orderly transition from the presidential
to the parliamentary system of government.' The people, however,
probably distrustful of the members who are old time politicians and
constitutional delegates who had voted themselves by to
membership in the interim National Assembly, voted against the
convening of the said interim assembly for at least seven years thus
creating a political stalemate and a consequent delay' in the
transformation of the government into the parliamentary system. To
resolve the impasse, the President, at the instance of the barangays
and sanggunian assemblies through their duly authorized
instrumentalities who recommended a study of the feasibility of
abolishing and replacing the by interim National Assembly with
another interim body truly representative of the people in a
reformed society, issued Presidential Decree No. 991, on September
2, 1976, calling for a national referendum on October -16, 1976 to
ascertain the wishes of the people as to the ways and means that
may be available to attain the objective; providing for a period of
educational and information campaign on the issues; and
establishing the mechanics and manner for holding thereof. But the
people, through their barangays, addressed resolutions to the
Batasang Bayan, expressing their desire to have the constitution
amended, thus prompting the President to issue Presidential Decree
No. 1033, stating the questions to @ submitted to the people in the
referendum-plebiscite on October 16,1976.
As will be seen, the authority to amend the Constitution was
removed from the interim National Assembly and transferred to the
seat of sovereignty itself. Since the Constitution emanates from the
people who are the repository of all political powers, their authority
to amend the Constitution through the means they have adopted,
aside from those mentioned in the Constitution, cannot be gainsaid.
Not much reflection is also needed to show that the President did
not exercise his martial law legislative powers when he proposed the
amendments to the Constitution. He was merely acting as an
instrument to carry out the will of the people. Neither could he
convene the interim National Assembly, as suggested by the
petitioners, without doing violence to the people's will expressed
overwhelmingly when they decided against convening the interim
assembly for at least seven years.
3. The period granted to the people to consider the proposed
amendments is reasonably long and enough to afford intelligent
discussion of the issues to be voted upon. PD 991 has required the
barangays to hold assemblies or meetings to discuss and debate on
the referendum questions, which in fact they have been doing.
Considering that the proposed amendments came from the
representatives of the people themselves, the people must have
already formed a decision by this time on what stand to take on the
proposed amendments come the day for the plebiscite. Besides, the
Constitution itself requires the holding of a plebiscite for the
ratification of an amendment not later than three (3) months after
the approval of such amendment or revision but without setting a
definite period within which such plebiscite shall not be held. From
this I can only conclude that the framers of the Constitution desired
52
that only a short period shall elapse from the approval of such
amendment or resolution to its ratification by the people.

53
 EN BANC
[G.R. No. 160261. November 10, 2003.]
ERNESTO B. FRANCISCO,
JR., petitioner, NAGMAMALASAKIT NA MGA
MANANANGGOL NG MGA MANGGAGAWANG
PILIPINO, INC., ITS OFFICERS AND
MEMBERS, petitioner-in-intervention, WORLD
WAR II VETERANS LEGIONARIES OF THE
PHILIPPINES, INC., petitioner-in-
intervention, vs. THE HOUSE OF
REPRESENTATIVES, REPRESENTED BY SPEAKER
JOSE G. DE VENECIA, THE SENATE,
REPRESENTED BY SENATE PRESIDENT
FRANKLIN M. DRILON, REPRESENTATIVE
GILBERTO C. TEODORO, JR. AND
REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, respondents, 1 JAIME N.
SORIANO, respondent-in-
intervention, SENATOR AQUILINO Q.
PIMENTEL, respondent-in-intervention.
[G.R. No. 160262. November 10, 2003.]
SEDFREY M. CANDELARIA, CARLOS P. MEDINA,
JR. AND HENEDINA RAZON-
ABAD, petitioners,ATTYS. ROMULO B.
MACALINTAL AND PETE QUIRINO
QUADRA, petitioners-in-intervention,WORLD
WAR II VETERANS LEGIONARIES OF THE
PHILIPPINES, INC., petitioner-in-
intervention,vs. THE HOUSE OF
REPRESENTATIVES, THROUGH THE SPEAKER
OR ACTING SPEAKER OR PRESIDING OFFICER,
SPEAKER JOSE G. DE VENECIA,
REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, THE SENATE OF THE
PHILIPPINES, THROUGH ITS PRESIDENT,
SENATE PRESIDENT FRANKLIN M.
DRILON,respondents, JAIME N.
SORIANO, respondent-in-
intervention, SENATOR AQUILINO Q.
PIMENTEL,respondent-in-intervention.
[G.R. No. 160263. November 10, 2003.]
ARTURO M. DE CASTRO AND SOLEDAD M.
CAGAMPANG, petitioners, WORLD WAR II
VETERANS LEGIONARIES OF THE PHILIPPINES,
INC., petitioner-in-intervention, vs. FRANKLIN
M. DRILON, IN HIS CAPACITY AS SENATE
PRESIDENT, AND JOSE G. DE VENECIA, JR., IN
HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, respondents, JAIME N.
SORIANO, respondent-in-
intervention, SENATOR AQUILINO Q.
PIMENTEL, respondent-in-intervention.
[G.R. No. 160277. November 10, 2003.]
FRANCISCO I. CHAVEZ, petitioner, WORLD
WAR II VETERANS LEGIONARIES OF THE
PHILIPPINES, INC., petitioner-in-
intervention, vs. JOSE G. DE VENECIA, IN HIS
CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, FRANKLIN M. DRILON, IN
HIS CAPACITY AS PRESIDENT OF THE SENATE
OF THE REPUBLIC OF THE PHILIPPINES,
GILBERT TEODORO, JR., FELIX WILLIAM
FUENTEBELLA, JULIO LEDESMA IV, HENRY
LANOT, KIM BERNARDO-LOKIN, MARCELINO
LIBANAN, EMMYLOU TALIÑO-SANTOS,
DOUGLAS CAGAS, SHERWIN GATCHALIAN,
LUIS BERSAMIN, JR., NERISSA SOON-RUIZ,
ERNESTO NIEVA, EDGAR ERICE, ISMAEL
MATHAY, SAMUEL DANGWA, ALFREDO
MARAÑON, JR., CECILIA CARREON-JALOSJOS,
AGAPITO AQUINO, FAUSTO SEACHON, JR.,
GEORGILU YUMUL-HERMIDA, JOSE CARLOS
LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN,
SORAYA JAAFAR, WILHELMINO SY-ALVARADO,
CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA
CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO
DY III, AUGUSTO SYJUCO, ROZZANO RUFINO
BIAZON, LEOVIGILDO BANAAG, ERIC SINGSON,
JACINTO PARAS, JOSE SOLIS, RENATO
MATUBO, HERMINO TEVES, AMADO ESPINO,
JR., EMILIO MACIAS, ARTHUR PINGOY, JR.,
FRANCIS NEPOMUCENO, CONRADO ESTRELLA
III, ELIAS BULUT, JR., JURDIN ROMUALDO,
JUAN PABLO BONDOC, GENEROSO TULAGAN,
PERPETUO YLAGAN, MICHAEL DUAVIT,
JOSEPH DURANO, JESLI LAPUS, CARLOS
COJUANGCO, GIORGIDI AGGABAO, FRANCIS
ESCUDERRO, RENE VELARDE, CELSO
LOBREGAT, ALIPIO BADELLES, DIDAGEN
DILANGALEN, ABRAHAM MITRA, JOSEPH
SANTIAGO, DARLENE ANTONIO-CUSTODIO,
ALETA SUAREZ, RODOLFO PLAZA, JV
BAUTISTA, GREGORIO IPONG, GILBERT
REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN
MIGUEL ZUBIRI, BENASING MACARAMBON,
JR., JOSEFINA JOSON, MARK COJUANGCO,
MAURICIO DOMOGAN, RONALDO ZAMORA,
ANGELO MONTILLA, ROSELLER BARINAGA,
JESNAR FALCON, REYLINA NICOLAS, RODOLFO
ALBANO, JOAQUIN CHIPECO, JR., AND RUY
ELIAS LOPEZ, respondents, JAIME N.
SORIANO, respondent-in-
intervention, SENATOR AQUILINO Q.
PIMENTEL, respondent-in-intervention.
[G.R. No. 160292. November 10, 2003.]
HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ
BUTUYAN, MA. CECILIA PAPA, NAPOLEON C.
REYES, ANTONIO H. ABAD, JR., ALFREDO C.
LIGON, JOAN P. SERRANO AND GARY S.
MALLARI, petitioners, WORLD WAR II
VETERANS LEGIONARIES OF THE PHILIPPINES,
INC.,petitioner-in-intervention, vs. HON.
SPEAKER JOSE G. DE VENECIA, JR. AND
ROBERTO P. NAZARENO, IN HIS CAPACITY AS
SECRETARY GENERAL OF THE HOUSE OF
REPRESENTATIVES, AND THE HOUSE OF
REPRESENTATIVES, respondents, JAIME N.
SORIANO,respondent-in-
intervention, SENATOR AQUILINO Q.
PIMENTEL, respondent-in-intervention.
[G.R. No. 160295. November 10, 2003.]
SALACNIB F. BATERINA AND DEPUTY SPEAKER
RAUL M. GONZALES, petitioners, WORLD WAR
II VETERANS LEGIONARIES OF THE
PHILIPPINES, INC., petitioner-in-
intervention, vs. THE HOUSE OF
REPRESENTATIVES, THROUGH THE SPEAKER
OR ACTING SPEAKER OR PRESIDING OFFICER,
SPEAKER JOSE G. DE VENECIA,
REPRESENTATIVE GILBERTO G. TEODORO, JR.,
54
REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, THE SENATE OF THE
PHILIPPINES, THROUGH ITS PRESIDENT,
SENATE PRESIDENT FRANKLIN M.
DRILON,respondents, JAIME N.
SORIANO, respondent-in-
intervention, SENATOR AQUILINO Q.
PIMENTEL,respondent-in-intervention.
[G.R. No. 160310. November 10, 2003.]
LEONILO R. ALFONSO, PETER ALVAREZ,
SAMUEL DOCTOR, MELVIN MATIBAG, RAMON
MIQUIBAS, RODOLFO MAGSINO, EDUARDO
MALASAGA, EDUARDO SARMIENTO,
EDGARDO NAOE, LEONARDO GARCIA,
EDGARD SMITH, EMETERIO MENDIOLA,
MARIO TOREJA, GUILLERMO CASTASUS,
NELSON A. LOYOLA, WILFREDO BELLO, JR.,
RONNIE TOQUILLO, KATE ANN VITAL,
ANGELITA Q. GUZMAN, MONICO PABLES, JR.,
JAIME BOAQUINA, LITA A. AQUINO, MILA P.
GABITO, JANETTE ARROYO, RIZALDY EMPIG,
ERNA LAHUZ, HOMER CALIBAG, DR. BING
ARCE, SIMEON ARCE, JR., EL DELLE ARCE,
WILLIE RIVERO, DANTE DIAZ, ALBERTO
BUENAVISTA, FAUSTO BUENAVISTA, EMILY
SENERIS, ANNA CLARISSA LOYOLA, SALVACION
LOYOLA, RAINIER QUIROLGICO, JOSEPH
LEANDRO LOYOLA, ANTONIO LIBREA,
FILEMON SIBULO, MANUEL D. COMIA, JULITO
U. SOON, VIRGILIO LUSTRE, AND NOEL
ISORENA, MAU RESTRIVERA, MAX VILLAESTER,
AND EDILBERTO GALLOR, petitioners,WORLD
WAR II VETERANS LEGIONARIES OF THE
PHILIPPINES, INC., petitioner-in-
intervention,vs. THE HOUSE OF
REPRESENTATIVES, REPRESENTED BY HON.
SPEAKER JOSE C. DE VENECIA, JR., THE
SENATE, REPRESENTED BY HON. SENATE
PRESIDENT FRANKLIN DRILON, HON. FELIX
FUENTEBELLA, ET AL., respondents.
[G.R. No. 160318. November 10, 2003.]
PUBLIC INTEREST CENTER, INC., CRISPIN T.
REYES, petitioners, vs. HON. SPEAKER JOSE G.
DE VENECIA, ALL MEMBERS, HOUSE OF
REPRESENTATIVES, HON. SENATE PRESIDENT
FRANKLIN M. DRILON, AND ALL MEMBERS,
PHILIPPINE SENATE, respondents.
[G.R. No. 160342. November 10, 2003.]
ATTY. FERNANDO P.R. PERITO, IN HIS
CAPACITY AS A MEMBER OF THE INTEGRATED
BAR OF THE PHILIPPINES, MANILA III, AND
ENGR. MAXIMO N. MENEZ JR., IN HIS
CAPACITY AS A TAXPAYER AND MEMBER OF
THE ENGINEERING
PROFESSION, petitioners, vs. THE HOUSE OF
REPRESENTATIVES REPRESENTED BY THE 83
HONORABLE MEMBERS OF THE HOUSE LED BY
HON. REPRESENTATIVE WILLIAM
FUENTEBELLA, respondents.
[G.R. No. 160343. November 10, 2003.]
INTEGRATED BAR OF THE
PHILIPPINES, petitioner, vs. THE HOUSE OF
REPRESENTATIVES, THROUGH THE SPEAKER
OR ACTING SPEAKER OR PRESIDING OFFICER,
SPEAKER JOSE G. DE VENECIA,
REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, THE SENATE OF THE
PHILIPPINES THROUGH ITS PRESIDENT,
SENATE PRESIDENT FRANKLIN M.
DRILON, respondents.
[G.R. No. 160360. November 10, 2003.]
CLARO B. FLORES, petitioner, vs. THE HOUSE
OF REPRESENTATIVES THROUGH THE
SPEAKER, AND THE SENATE OF THE
PHILIPPINES, THROUGH THE SENATE
PRESIDENT, respondents.
[G.R. No. 160365. November 10, 2003.]
U.P. LAW ALUMNI CEBU FOUNDATION, INC.,
GOERING G.C. PADERANGA, DANILO V. ORTIZ,
GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO,
LUIS V. DIORES, SR., BENJAMIN S. RALLON,
ROLANDO P. NONATO, DANTE T. RAMOS, ELSA
R. DIVINAGRACIA, KAREN B. CAPARROS-
ARQUILLANO, SYLVA G. AGUIRRE-
PADERANGA, FOR THEMSELVES AND IN
BEHALF OF OTHER CITIZENS OF THE REPUBLIC
OF THE PHILIPPINES, petitioners, vs. THE
HOUSE OF REPRESENTATIVES, SPEAKER JOSE
G. DE VENECIA, THE SENATE OF THE
PHILIPPINES, SENATE PRESIDENT FRANKLIN
DRILON, HOUSE REPRESENTATIVES FELIX
FUENTEBELLA AND GILBERTO TEODORO, BY
THEMSELVES AND AS REPRESENTATIVES OF
THE GROUP OF MORE THAN 80 HOUSE
REPRESENTATIVES WHO SIGNED AND FILED
THE IMPEACHMENT COMPLAINT AGAINST
SUPREME COURT CHIEF JUSTICE HILARIO G.
DAVIDE, JR.,respondents.
[G.R. No. 160370. November 10, 2003.]
FR. RANHILIO CALLANGAN
AQUINO, petitioner, vs. THE HONORABLE
PRESIDENT OF THE SENATE, THE HONORABLE
SPEAKER OF THE HOUSE OF
REPRESENTATIVES, respondents.
[G.R. No. 160376. November 10, 2003.]
NILO A. MALANYAON, petitioner, vs. HON.
FELIX WILLIAM FUENTEBELLA AND GILBERT
TEODORO, IN REPRESENTATION OF THE 86
SIGNATORIES OF THE ARTICLES OF
IMPEACHMENT AGAINST CHIEF JUSTICE
HILARIO G. DAVIDE, JR. AND THE HOUSE OF
REPRESENTATIVES, CONGRESS OF THE
PHILIPPINES, REPRESENTED BY ITS SPEAKER,
HON. JOSE G. DE VENECIA, respondents.
[G.R. No. 160392. November 10, 2003.]
VENICIO S. FLORES AND HECTOR L.
HOFILEÑA, petitioners, vs. THE HOUSE OF
REPRESENTATIVES, THROUGH SPEAKER JOSE
G. DE VENECIA, AND THE SENATE OF THE
55
 PHILIPPINES, THROUGH SENATE PRESIDENT
FRANKLIN DRILON, respondents.
[G.R. No. 160397. November 10, 2003.]
IN THE MATTER OF THE IMPEACHMENT
COMPLAINT AGAINST CHIEF JUSTICE HILARIO
G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS,
JR., petitioner.
[G.R. No. 160403. November 10, 2003.]
PHILIPPINE BAR
ASSOCIATION, petitioner, vs. THE HOUSE OF
REPRESENTATIVES, THROUGH THE SPEAKER
OR PRESIDING OFFICER, HON. JOSE G. DE
VENECIA, REPRESENTATIVE GILBERTO G.
TEODORO, JR., REPRESENTATIVE FELIX
WILLIAM B. FUENTEBELLA, THE SENATE OF
THE PHILIPPINES, THROUGH SENATE
PRESIDENT, HON. FRANKLIN
DRILON,respondents.
[G.R. No. 160405. November 10, 2003.]
DEMOCRITO C. BARCENAS, PRESIDENT OF IBP,
CEBU CITY CHAPTER, MANUEL M. MONZON,
PRESIDING OF IBP, CEBU PROVINCE, VICTOR A.
MAAMBONG, PROVINCIAL BOARD MEMBER,
ADELINO B. SITOY, DEAN OF THE COLLEGE OF
LAW, UNIVERSITY OF CEBU, YOUNG LAWYERS
ASSOCIATION OF CEBU, INC. [YLAC],
REPRESENTED BY ATTY. MANUEL LEGASPI,
CONFEDERATION OF ACCREDITED MEDIATORS
OF THE PHILIPPINES, INC. [CAMP, INC.],
REPRESENTED BY RODERIC R. POCA,
MANDAUE LAWYERS ASSOCIATION,
[MANLAW], REPRESENTED BY FELIPE
VELASQUEZ, FEDERACION INTERNACIONAL DE
ABOGADAS [FIDA], REPRESENTED BY THELMA
L. JORDAN, CARLOS G. CO, PRESIDENT OF
CEBU CHAMBER OF COMMERCE AND
INDUSTRY AND CEBU LADY LAWYERS
ASSOCIATION, INC. [CELLA, INC.], MARIBELLE
NAVARRO AND BERNARDITO FLORIDO, PAST
PRESIDENT CEBU CHAMBER OF COMMERCE
AND INTEGRATED BAR OF THE PHILIPPINES,
CEBU CHAPTER,petitioners, vs. THE HOUSE OF
REPRESENTATIVES, REPRESENTED BY REP.
JOSE G. DE VENECIA, AS HOUSE SPEAKER AND
THE SENATE, REPRESENTED BY SENATOR
FRANKLIN DRILON, AS SENATE
PRESIDENT, respondents.
SYNOPSIS
On June 2, 2003, former President Joseph E. Estrada filed with the
Office of the Secretary General of the House of Representatives, a
verified impeachment complaint against Chief Justice Hilario G.
Davide, Jr. and seven (7) other Associate Justices of the Court for
violation of the Constitution, betrayal of public trust and,
committing high crimes. The House Committee on Justice
subsequently dismissed said complaint on October 22, 2003 for
insufficiency of substance.
The next day, or on October 23, 2003, Representatives Gilberto C.
Teodoro, Jr., First District, Tarlac and Felix William B. Fuentebella,
Third District, Camarines Sur, filed another verified impeachment
complaint with the Office of the Secretary General of the House
against Chief Justice Hilario G. Davide, Jr., alleging underpayment of
the COLA of the members and personnel of the judiciary from the
JDF and unlawful disbursement of said fund for various
infrastructure projects and acquisition of service vehicles and other
equipment. Attached to the second impeachment complaint was a
Resolution of Endorsement/Impeachment signed by at least one-
third (1/3) of all the members of the House of Representatives. The
complaint was set to be transmitted to the Senate for appropriate
action.
Subsequently, several petitions were filed with this Court by
members of the bar, members of the House of Representatives and
private individuals, asserting their rights, among others, as
taxpayers, to stop the illegal spending of public funds for the
impeachment proceedings against the Chief Justice. Petitioners
contended that the filing of second impeachment complaint against
the Chief Justice was barred under Article XI, Sec. 3 (5) of the 1987
Constitution which states that "no impeachment proceedings shall
be initiated against the same official more than once within a period
of one year."
The Supreme Court held that the second impeachment complaint
filed against Chief Justice Hilario G. Davide, Jr. was unconstitutional
or barred under Article XI, Sec. 3 (5) of the 1987 Constitution.
Petitioners, as taxpayers, had sufficient standing to file the petitions
to prevent disbursement of public funds amounting to millions of
pesos for an illegal act. The petitions were justiciable or ripe for
adjudication because there was an actual controversy involving
rights that are legally demandable. Whether the issues present a
political question, the Supreme Court held that only questions that
are truly political questions are beyond judicial review. The Supreme
Court has the exclusive power to resolve with definitiveness the
issues of constitutionality. It is duty bound to take cognizance of the
petitions to exercise the power of judicial review as the guardian of
the Constitution.
SYLLABUS
1.POLITICAL LAW; POWER OF JUDICIAL REVIEW; INCLUDES THE
DUTY TO CURB GRAVE ABUSE OF DISCRETION BY "ANY BRANCH OR
INSTRUMENTALITY OF GOVERNMENT." — This Court's power of
judicial review is conferred on the judicial branch of the government
in Section l, Article VIII of our present 1987 Constitution. . . As
pointed out by Justice Laurel, this "moderating power" to
"determine the proper allocation of powers" of the different
branches of government and "to direct the course of government
along constitutional channels" is inherent in all courts as a necessary
consequence of the judicial power itself, which is "the power of the
court to settle actual controversies involving rights which are legally
demandable and enforceable.". . In the scholarly estimation of
former Supreme Court Justice Florentino Feliciano, ". . . judicial
review is essential for the maintenance and enforcement of the
separation of powers and the balancing of powers among the three
great departments of government through the definition and
maintenance of the boundaries of authority and control between
them." To him,"[j]udicial review is the chief, indeed the only,
medium of participation — or instrument of intervention — of the
judiciary in that balancing operation." To ensure the potency of the
power of judicial review to curb grave abuse of discretion by "any
branch or instrumentalities of government." the afore-quoted
Section 1, Article VIII of the Constitution engraves, for the first time
into its history, into block letter law the so-called
"expanded certiorari jurisdiction" of this court.
2.ID.; ID.; ID.; AMERICAN JURISPRUDENCE AND AUTHORITIES
CONFERRING UPON THE LEGISLATURE THE DETERMINATION OF ALL
ISSUES PERTAINING TO IMPEACHMENT TO THE TOTAL EXCLUSION
OF THE POWER OF JUDICIAL REVIEW ARE OF DUBIOUS APPLICATION
WITHIN OUR JURISDICTION; CASE AT BAR. — Respondents' and
intervenors' reliance upon American jurisprudence, the American
Constitution and American authorities cannot be credited to support
the proposition that the Senate's "sole power to try and decide
impeachment cases," as provided for under Art. XI, Sec. 3(6) of the
Constitution, is a textually demonstrable constitutional commitment
56
of all issues pertaining to impeachment to the legislature, to the
total exclusion of the power of judicial review to check and restrain
any grave abuse of the impeachment process. Nor can it reasonably
support the interpretation that it necessarily confers upon the
Senate the inherently judicial power to determine constitutional
questions incident to impeachment proceedings. Said American
jurisprudence and authorities, much less the American Constitution,
are of dubious application for these are no longer controlling within
our jurisdiction and have only limited persuasive merit insofar as
Philippine constitutional law is concerned. As held in the case
of Garcia vs. COMELEC, "[i]n resolving constitutional disputes, [this
Court] should not be beguiled by foreign jurisprudence some of
which are hardly applicable because they have been dictated by
different constitutional settings and needs." Indeed, although the
Philippine Constitution can trace its origins to that of the United
States, their paths of development have long since diverged. In the
colorful words of amicius curiae Father Bernas, "[w]e have cut the
umbilical cord."
3.ID.; ID.; ID.; DIFFERENCE BETWEEN THE JUDICIAL POWER OF THE
PHILIPPINE SUPREME COURT AND THAT OF THE U.S. SUPREME
COURT AND DISTINCTIONS BETWEEN THE PHILIPPINE AND U.S.
CONSTITUTIONS. — The major difference between the judicial
power of the Philippine Supreme Court and that of the U.S. Supreme
Court is that while the power of judicial review is
only impliedly granted to the U.S. Supreme Court and is
discretionary in nature, that granted to the Philippine Supreme
Court and lower courts, as expressly provided for in the Constitution,
is not just a power but also a duty, and it was given an expanded
definition to include the power to correct any grave abuse of
discretion on the part of any government branch or instrumentality.
There are also glaring distinctions between the U.S. Constitution and
the Philippine Constitution with respect to the power of the House
of Representatives over impeachment proceedings. While the U.S.
Constitution bestows sole power of impeachment to the House of
Representatives without limitation, our Constitution, though vesting
in the House of Representatives the exclusive power to initiate
impeachment cases, provides for several limitations to the exercise
of such power as embodied in Section 3(2), (3). (4) and (5), Article XI
thereof. These limitations include the manner of filing, required vote
to impeach, and the one year bar on the impeachment of one and
the same official.
4.ID.; ID.; POWER EXCLUSIVELY VESTED IN THE JUDICIARY;
CONGRESS HAS NO POWER TO RULE ON THE ISSUE OF
CONSTITUTIONALITY. — The futility of seeking remedies from either
or both Houses of Congress before coming to this Court is shown by
the fact that, as previously discussed, neither the House of
Representatives nor the Senate is clothed with the power to rule
with definitiveness on the issue of constitutionality, whether
concerning impeachment proceedings or otherwise, as said power is
exclusively vested in the judiciary by the earlier quoted Section 1,
Article VIII of the Constitution. Remedy cannot be sought from a
body which is bereft of power to grant it.
5.ID.; ID.; JUDICIAL POWER IS NOT ONLY A POWER BUT ALSO A
DUTY; ONLY "TRULY POLITICAL QUESTIONS" ARE BEYOND JUDICIAL
REVIEW. — From the foregoing record of the proceedings of the
1986 Constitutional Commission, it is clear that judicial power is not
only a power; it is also a duty, a duty which cannot be abdicated by
the mere specter of this creature called the political question
doctrine. Chief Justice Concepcion hastened to clarify, however, that
Section 1, Article VIII was not intended to do away with "truly
political questions." From this clarification it is gathered that there
are two species of political questions: (1) "truly political questions"
and (2) those which "are not truly political questions." Truly political
questions are thus beyond judicial review, the reason being that
respect for the doctrine of separation of powers must be
maintained. On the other hand. by virtue of Section 1, Article VIII of
the Constitution, courts can review questions which are not truly
political in nature.
6.ID.; ID.; EXERCISE OF JUDICIAL RESTRAINT OVER JUSTICIABLE
ISSUES IS NOT AN OPTION; COURT IS DUTY BOUND TO TAKE
COGNIZANCE OF PETITIONS IN CASE AT BAR. — The exercise of
judicial restraint over justiciable issues is not an option before this
Court. Adjudication may not be declined, because this Court is not
legally disqualified. Nor can jurisdiction be renounced as there is no
other tribunal to which the controversy may be referred."Otherwise,
this Court would be shirking from its duty vested under Art. VIII, Sec.
1(2) of the Constitution. More than being clothed with authority
thus, this Court is duty-bound to take cognizance of the instant
petitions. In the august words of amicus curiaeFather Bernas
"jurisdiction is not just a power; it is a solemn duty which may not be
renounced. To renounce it, even if it is vexatious, would be a
dereliction of duty." Even in cases where it is an interested party, the
Court under our system of government cannot inhibit itself and must
rule upon the challenge because no other office has the authority to
do so. On the occasion when this Court had been an interested party
to the controversy before it, it had acted upon the matter "not with
officiousness but in the discharge of an unavoidable duty and, as
always, with detachment and fairness." After all, "by [his]
appointment to the office, the public has laid on [a member of the
judiciary] their confidence that [he] is mentally and morally fit to
pass upon the merits of their varied contentions. For this reason,
they expect [him] to be fearless in [his] pursuit to render justice, toi
be unafraid to displease any person, interest or power and to
equipped with a moral fiber strong enough to resist the temptation
lurking in [his] office."
7.POLITICAL LAW; LEGISLATIVE DEPARTMENT; IMPEACHMENT
POWER; ONE-YEAR BAN PROHIBITING THE INITIATION OF
IMPEACHMENT PROCEEDINGS AGAINST THE SAME OFFICIALS
UNDER SECTION 3(5) OF THE CONSTITUTION; MEANING OF TIE
TERM "INITIATE"; CASE AT BAR. — From the records of the
Constitutional Commission, to the amicus curiae briefs of two
former Constitutional Commissioners, it is without a doubt that the
term "to initiate" refers to the filing of the impeachment complaint
coupled with Congress' taking initial action on said complaint.
Having concluded that the initiation takes place by the act of filing
and referral or endorsement of the impeachment complaint to the
House Committee on Justice or, by the filing by at least one-third of
the members of the House of Representatives with the Secretary
General of the House, the meaning of Section 3(5) of Article XI
becomes clear. Once an impeachment complaint has been initiated,
another impeachment complaint may not be filed against the same
official within a one year period.
8.ID.; ID.; ID.; POWER OF CONGRESS TO MAKE AND INTERPRET ITS
RULES ON IMPEACHMENT IS NOT ABSOLUTE; IMPEACHMENT RULES
MUST EFFECTIVELY CARRY OUT THE PURPOSE OF THE
CONSTITUTION. — Respondent House of Representatives counters
that under Section 3 (8) of Article XI, it is clear and unequivocal that
it and only it has the power to make and interpret its rules governing
impeachment. Its argument is premised on the assumption that
Congress has absolute power to promulgate its rules. This
assumption, however, is misplaced. Section 3(8) of Article XI
provides that "The Congress shall promulgate its rules on
impeachment to effectively carry out the purpose of this section."
Clearly, its power to promulgate its rules on impeachment is limited
by the phrase "to effectively carry out the purpose of this section."
Hence, these rules cannot contravene the very purpose of the
Constitution which said rules were intended to effectively carry out.
Moreover, Section 3 of Article XI clearly provides for other specific
limitations on its power to make rules.
VITUG, J., separate opinion:
1.POLITICAL LAW; SUPREME COURT; POWER OF JUDICIAL REVIEW;
NOT FORECLOSED BY THE ISSUE OF "POLITICAL QUESTION" ON AN
ASSAILED ACT OF A BRANCH OF GOVERNMENT WHERE DISCRETION
HAS NOT, IN FACT BEEN VESTED, YET ASSUMED AND EXERCISED. —
The Court should not consider the issue of "political question" as
foreclosing judicial review on an assailed act of a branch of
government in instances where discretion has not, in fact, been
vested, yet assumed and exercised. Where, upon the other hand,
such discretion is given, the "political question doctrine" may be
ignored only if the Court sees such review as necessary to void an
57
action committed with grave abuse of discretion amounting to lack
or excess of jurisdiction. In the latter case, the constitutional grant of
the power of judicial review vested by the Philippine Constitution on
the Supreme Court is rather clear and positive, certainly and
textually broader and more potent than where it has been
borrowed.
2.ID.; ID.; SCOPE OF POWER UNDER THE 1987 CONSTITUTION,
EXPANDED; VIOLATIONS OF CONSTITUTIONAL MANDATES ARE
SUBJECT TO JUDICIAL INQUIRY; SUPREME COURT AS THE ULTIMATE
ARBITER ON, AND THE ADJUDGED SENTINEL OF THE CONSTITUTION.
— The 1987 Constitution has, in good measure, "narrowed the reach
of the `political question doctrine' by expanding the power of judicial
review of the Supreme Court not only to settle actual controversies
involving rights which are legally demandable and enforceable but
also to determine whether or not grave abuse of discretion has
attended an act of any branch or instrumentality of government.
When constitutional limits or proscriptions are expressed, discretion
is effectively withheld. Thus, issues pertaining to who are
impeachable officers, the number of votes necessary to impeach and
the prohibition against initiation of impeachment proceeding twice
against the same official in a single year, provided for in Sections 2,
3, and 4, and 5 of Article XI of the Constitution, verily are subject to
judicial inquiry, and any violation or disregard of these explicit
Constitutional mandates can be struck down by the Court in the
exercise of judicial power. In so doing, the Court does not thereby
arrogate unto itself, let alone assume superiority over, nor undue
interference into the domain of, a co-equal branch of government,
but merely fulfills its constitutional duty to uphold the supremacy of
the Constitution. The judiciary may be the weakest among the three
branches of government but it concededly and rightly occupies the
post of being the ultimate arbiter on, and the adjudged sentinel of,
the Constitution.
3.ID.; LEGISLATIVE DEPARTMENT; IMPEACHMENT PROCEEDINGS;
ONE-YEAR BAN PROHIBITING THE INITIATION OF A SECOND
IMPEACHMENT COMPLAINT AGAINST THE SAME OFFICIALS UNDER
SECTION 3(5) OF THE CONSTITUTION; MEANING OF THE TERM,
"INITIATE"; CASE AT BAR. — I would second the view that the term
"initiate" should be construed as the physical act of filing the
complaint, coupled with an action by the House taking cognizance of
it, i.e., referring the complaint to the proper Committee. Evidently,
the House of Representatives had taken cognizance of the first
complaint and acted on it — 1) The complaint was filed on 02 June
2003 by former President Joseph Estrada along with the resolutions
of endorsement signed by three members of the House of
Representatives; 2) on 01 August 2003, the Speaker of the House
directed the chairman of the House Committee on Rules, to include
in the Order of Business the complaint; 3) on 13 October 2003, the
House Committee on Justice included the complaint in its Order of
Business and ruled that the complaint was sufficient in form; and 4)
on 22 October 2003, the House Committee on Justice dismissed the
complaint for impeachment against the eight justices, including
Chief Justice Hilario Davide, Jr., of the Supreme Court, for being
insufficient in substance. The following day, on 23 October 2003, the
second impeachment complaint was filed by two members of the
House of Representatives, accompanied by an endorsement signed
by at least one-third of its membership, against the Chief Justice.
PANGANIBAN, J. separate concurring opinion:
POLITICAL LAW; SUPREME COURT; POWER OF JUDICIAL REVIEW;
HAS THE DUTY TO DETERMINE WHETHER ANY INCIDENT OF THE
IMPEACHMENT PROCEEDING VIOLATES ANY CONSTITUTIONAL
PROHIBITION; CASE AT BAR. — The constitution imposes on the
Supreme court the duty to rule on unconstitutional acts of "any"
branch or instrumentality of government. Such duty is plenary,
extensive and admits of no exceptions. While the Court is not
authorized to pass upon the wisdom of an impeachment, it is
nonetheless obligated to determine whether any incident of the
impeachment proceedings violates any constitutional prohibition,
condition or limitation imposed on its exercise. Thus, normally, the
Court may not inquire into how and why the house initiates an
impeachment complaint. But if in initiating one, it violates a
constitutional prohibition, condition or limitation on the exercise
thereof, then the Court as the protector and interpreter of the
Constitution is duty-bound to intervene and "to settle" the issue. . .
In the present cases, the main issue is whether, in initiating the
second Impeachment Complaint, the House of Representatives
violated Article XI, Section 3(5), which provides that "[n]o
impeachment proceedings shall be initiated against the same official
more than once within a period of one year." The interpretation of
this constitutional prohibition or condition as it applies to the second
Impeachment Complaint clearly involves the "legality, not the
wisdom" of the acts of the House of Representatives. Thus, the
Court must "settle it."
SANDOVAL-GUTIERREZ, J., separate concurring opinion:
1.POLITICAL LAW; SUPREME COURT; POWER OF JUDICIAL REVIEW;
COURT SHOULD DO ITS DUTY TO INTERPRET THE LAW EVEN IF
THERE IS A DANGER OF EXPOSING THE COURT'S INABILITY IN GIVING
EFFICACY TO ITS JUDGMENT. — Confronted with an issue involving
constitutional infringement, should this Court shackle its hands under
the principle of judicial self restraint? The polarized opinions of
the amici curiae is that by asserting its power of judicial review, this
Court can maintain the supremacy of the Constitution but at the
same time invites a disastrous confrontation with the House of
Representatives. A question repeated almost to satiety is — what if
the House holds its ground and refuses to respect the Decision of this
Court? It is argued that there will be a Constitutional crisis.
Nonetheless, despite such impending scenario, I believe this Court
should do its duty mandated by the Constitution, seeing to it that it
acts within the bounds of its authority. The 1987 Constitution speaks
of judicial prerogative not only in terms of power but also of duty. As
the last guardian of the Constitution, the Court's duty is to uphold
and defend it at all times and for all persons. It is a duty this Court
cannot abdicate. It is a mandatory and inescapable obligation —
made particularly more exacting and peremptory by the oath of
each member of this Court. Judicial reluctance on the face of a clear
constitutional transgression may bring about the death of the rule of
law in this country. Yes, there is indeed a danger of exposing the
Court's inability in giving efficacy to its judgment. But is it not the
way in our present system of government? The Legislature enacts
the law, the Judiciary interprets it and the Executive implements it. It
is not for the Court to withhold its judgment just because it would
be a futile exercise of authority. It should do its duty to interpret the
law.
2.ID.; ID.; ID.; IMPEACHMENT PROCEEDINGS; SUPREME COURT HAS
POWER TO DECLARE HOUSE RULES OR ACT UNCONSTITUTIONAL IF
FORBIDDEN BY THE CONSTITUTION. — While the power to initiate
all cases of impeachment is regarded as a matter of "exclusive"
concern only of the House of Representatives, over which the other
departments may not exercise jurisdiction by virtue of the
separation of powers established by the fundamental law, it does
not follow that the House of Representatives may not overstep its
own powers defined and limited by the Constitution. Indeed, it
cannot, under the guise of implementing its Rules, transgress the
Constitution, for when it does, its act immediately ceases to be a
mere internal concern. Surely, by imposing limitations on specific
powers of the House of Representatives, a fortiori, the Constitution
has prescribed a diminution of its "exclusive power." I am sure that
the honorable Members of the House who took part in the
promulgation and adoption of its internal rules on impeachment did
not intend to disregard or disobey the clear mandate of the
Constitution — the law of the people. And I confidently believe that
they recognize, as fully as this Court does, that the Constitution is
the supreme law of the land, equally binding upon every branch or
department of the government and upon every citizen, high or low.
It need not be stressed that under our present form of government,
the executive, legislative and judicial departments are coequal and
co-important. But it does not follow that this Court, whose
Constitutional primary duty is to interpret the supreme law of the
land, has not the power to declare the House Rules unconstitutional.
Of course, this Court will not attempt to require the House of
Representatives to adopt a particular action, but it is authorized and
empowered to pronounce an action null and void if found to be
contrary to the provisions of the Constitution.
58
3.ID.; ID.; ID.; IMPEACHMENT CASES; PETITIONERS, AS TAXPAYERS,
HAVE LOCUS STANDI TO QUESTION VALIDITY OF THE SECOND
IMPEACHMENT COMPLAINT AGAINST THE CHIEF JUSTICE. — Indeed,
the present suits involve matters of first impression and of immense
importance to the public considering that, as previously stated, this
is the first time a Chief Justice of the Supreme Court is being
subjected to an impeachment proceeding which, according to
petitioners, is prohibited by the Constitution. Obviously, if such
proceeding is not prevented and nullified, public funds amounting to
millions of pesos will be disbursed for an illegal act. Undoubtedly,
this is a grave national concern involving paramount public interest.
The petitions are properly instituted to avert such a situation.
CORONA, J., separate opinion:
1.POLITICAL LAW; LEGISLATIVE DEPARTMENT; IMPEACHMENT;
PURPOSE; INTENDED TO BE AN INSTRUMENT OF LAST RESORT. —
Impeachment has been described as sui generis and an "exceptional
method of removing exceptional public officials (that must be)
exercised by the Congress with exceptional caution." Thus, it is
directed only at an exclusive list of officials, providing for complex
procedures, exclusive grounds and every stringent limitations. The
implied constitutional caveat on impeachment is that Congress
should use that awesome power only for protecting the welfare of
the state and the people, and not merely the personal interests of a
few. There exists no doubt in my mind that the framers of the
Constitution intended impeachment to be an instrument of last
resort, a draconian measure to be exercised only when there are no
other alternatives available. It was never meant to be a bargaining
chip, much less a weapon for political leverage. Unsubstantiated
allegations, mere suspicions of wrongdoing and other less than
serious grounds, needless to state, preclude its invocation or
exercise.
2.POLITICAL LAW; SUPREME COURT; POWER OF JUDICIAL REVIEW;
SUPREME COURT HAS THE DUTY TO DECIDE PENDING PETITIONS TO
MAINTAIN THE SUPREMACY OF THE CONSTITUTION IN CASE AT BAR.
— The Court has the obligation to decide on the issues before us to
preserve the hierarchy of laws and to maintain the supremacy of the
rule of the Constitution over the rule of men, . . .The Court should
not evade its duty to decide the pending petitions because of its
sworn responsibility as the guardian of the Constitution. To refuse
cognizance of the present petitions merely because they indirectly
concern the Chief Justice of this Court is to skirt the duty of
dispensing fair and impartial justice. Furthermore, refusing to
assume jurisdiction under these circumstances will run afoul of the
great traditions of our democratic way of life and the very reason
why this Court exists in the first place.
3.ID.; ID.; ID.; ID.; SCOPE OF POWER UNDER THE 1987
CONSTITUTION EXPANDED. — Under the new definition of judicial
power embodied in Article VIII, Section 1, courts of justice have not
only the authority but also the duty to "settle actual controversies
involving rights which are legally demandable and enforceable" and
"to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the government." The Court can
therefore, in certain situations provided in the Constitution itself,
inquire into the acts of Congress and the President, though with
great hesitation and prudence owing to mutual respect and comity.
Among these situations, in so far as the pending petitions are
concerned, are (1) issues involving constitutionality and (2) grave
abuse of discretion amounting to lack of or excess of jurisdiction on
the part of any branch of the government. These are the strongest
reasons for the Court to exercise its jurisdiction over the pending
cases before us.
CALLEJO, SR., J., separate opinion:
POLITICAL LAW; SUPREME COURT; POWER OF JUDICIAL REVIEW;
IMPEACHMENT CASES; SUPREME COURT HAS THE DUTY TO
CONSIDER WHETHER THE PROCEEDINGS IN CONGRESS ARE IN
CONFORMITY WITH THE CONSTITUTION. — Under Section 1, Article
VIII of the Constitution, "judicial power is vested in the Supreme
Court and in such lower courts as may be established by law. The
judicial power of the Court includes the power to settle
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of the branch or instrumentality of the Government."
InEstrada v. Desierto, this Court held that with the new provision in
the Constitution, courts are given a greater prerogative to determine
what it can do to prevent grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or
instrumentality of government. The constitution is the supreme law
on all governmental agencies, including the House of
Representatives and the Senate. Under Section 4(2), Article VIII of
the Constitution, the Supreme Court is vested with jurisdiction over
cases involving the constitutionality, application and operation of
government rules and regulations, including the constitutionality,
application and operation of rules of the House of Representatives,
as well as the Senate. It is competent and proper for the Court to
consider whether the proceedings in Congress are in conformity
with the Constitution and the law because living under the
Constitution, no branch or department of the government is
supreme; and it is the duty of the judiciary to determine cases
regularly brought before them, whether the powers of any branch of
the government and even those of the legislative enactment of laws
and rules have been exercised in conformity with the Constitution;
and if they have not, to treat their acts as null and void. Under
Section 5, Article VIII of the Constitution, the Court has exclusive
jurisdiction over petitions for certiorari and prohibition. The House
of Representatives may have the sole power to initiate
impeachment cases, and the Senate the sole power to try and
decide the said cases, but the exercise of such powers must be in
conformity with and not in derogation of the Constitution.
AZCUNA, J., separate opinion:
1.POLITICAL LAW; SUPREME COURT; POWER OF JUDICIAL REVIEW;
PETITIONERS, AS TAXPAYERS, HAVE LOCUS STANDI TO QUESTION
VALIDITY OF THE SECOND IMPEACHMENT COMPLAINT AGAINST THE
CHIEF JUSTICE; JUSTICIABILITY OF PETITIONS IN CASE AT BAR. —
There can be no serious challenge as to petitioners' locus standi.
Eight are Members of the House of Representatives, with direct
interest in the integrity of its proceedings. Furthermore, petitioners
as taxpayers have sufficient standing, in view of the transcendental
importance of the issue at hand. It goes beyond the fate of Chief
Justice Davide, as it shakes the very foundations of our system of
government and poses a question as to our survival as a democratic
polity. There is, moreover, an actual controversy involving rights that
are legally demandable, thereby leaving no doubt as to the
justiciability of the petitions.
2.ID.; ID.; ID.; IMPEACHMENT CASES; SUPREME COURT HAS THE
DUTY TO CONSIDER WHETHER THE PROCEEDINGS THEREIN
CONFORM WITH THE CONSTITUTION. — Unlike the Constitutions of
other countries, that of the Philippines, our Constitution, has opted
textually to commit the sole power and the exclusive power to this
and to that Department or branch of government, but in doing so it
has further provided specific procedures and equally textually
identifiable limits to the exercise of those powers. Thus, the filing of
the complaint for impeachment is provided for in detail as to who
may file and as to what shall be done to the complaint after it is
filed, the referral to the proper Committee, its hearing, its voting, its
report to the House, and the action of the House thereon, and the
timeframes for every step (Subsection 2). Similarly, the required
number of votes to affirm or override a favorable or contrary
resolution is stated (Subsection 3). So, also, what is needed for a
complaint or resolution of impeachment to constitute the Articles of
Impeachment, so that trial by the Senate shall forthwith proceed, is
specifically laid down, i.e., a verified complaint or resolution of
impeachment filed by at least one-third of all the Members of the
House (Subsection 4). It is my view that when the Constitution not
only gives or allocates the power to one Department or branch of
government, be it solely or exclusively, but also, at the same time, or
together with the grant or allocation, specifically provides certain
limits to its exercise, then this Court, belonging to the Department
called upon under the Constitution to interpret its provisions, has
the jurisdiction to do so. And, in fact, this jurisdiction of the Court is
59
not so much a power as a duty, as clearly set forth in Article VIII,
Section 1 of the Constitution.
3.ID.; LEGISLATION DEPARTMENT; IMPEACHMENT; ONE-YEAR BAN
PROHIBITING THE INITIATION THEREOF AGAINST THE SAME
OFFICIALS UNDER ARTICLE XI, SECTION 3(5) OF THE CONSTITUTION;
MEANING OF THE TERM "INITIATE." — It is also contended that the
provision of Article XI, Sec. 3 (5) refers to impeachment
proceedings in the Senate, not in the House of Representatives. This
is premised on the wording of Article XI, Sec. 3 (1) which states that
"The House of Representatives shall have the exclusive power to
initiate all cases of impeachment." Thus, it is argued, cases of
impeachment are initiated only by the filing thereof by the House of
Representatives with the Senate, so that impeachment proceedings
are those that follow said filing. This interpretation does violence to
the carefully allocated division of power found in Article XI, Sec. 3.
Precisely, the first part of the power is lodged with the House, that
of initiating impeachment, so that a respondent hailed by the House
before the Senate is a fact and in law already impeached. What the
House initiates in the Senate is an impeachment CASE, not
PROCEEDINGS. The proceedings for impeachment preceded that and
took place exclusively in the House (in fact, non-members of the
House cannot initiate it and there is a need for a House member to
endorse the complaint). And what takes place in the Senate is the
trial and the decision. For this reason, Subsections (1) to (5) of
Article XI, Section 3 apply to the House whereas Subsections (6) and
(7) apply to the Senate, and Subsection (8) applies to both, or to
"Congress." There is therefore a sequence or order in these
subsections, and the contrary view disregards the same.
TINGA, J., separate opinion:
1.POLITICAL LAW; LEGISLATIVE DEPARTMENT; IMPEACHMENT,
NATURE OF. — On the question of whether it is proper for this Court
to decide the petitions, it would be useless for us to pretend that the
official being impeached is not a member of this Court, much less
the primus inter pares. Simplistic notions of rectitude will cause a
furor over the decision of this Court, even if it is the right decision.
Yet we must decide this case because the Constitution dictates that
we do so. The most fatal charge that can be levied against this Court
is that it did not obey the Constitution. The Supreme Court cannot
afford, as it did in the Javellana case, to abdicate its duty and refuse
to address a constitutional violation of a co-equal branch of
government just because it feared the political repercussions. And it
is comforting that this Court need not rest merely on rhetoric in
deciding that it is proper for it to decide the petitions, despite the
fact that the fate of the Chief Justice rests in the balance.
Jurisprudence is replete with instances when this Court was called
upon to exercise judicial duty, notwithstanding the fact that the
application of the same could benefit one or all members of the
Court. Nevertheless, this does not mean that the second
impeachment complaint is forever barred; only that it should be
dismissed without prejudice to its re-filing after one year from the
filing of the first impeachment complaint. Indeed, this Court cannot
deprive the House of the exclusive power of impeachment lodged in
the House by the Constitution. In taking cognizance of this case, the
Court does not do so out of empathy or loyalty for one of our
Brethren. Nor does it do so out of enmity or loathing toward the
Members of a co-equal branch, whom I still call and regard as my
Brethren. The Court, in assuming jurisdiction over this case, to
repeat, does so only out of duty, a duty reposed no less by the
fundamental law.
2.ID.; ID.; ID.; SENATE HAS NO AUTHORITY TO PASS UPON THE
HOUSE RULES ON IMPEACHMENT. — Despite suggestions to the
contrary, I maintain that the Senate does not have the jurisdiction to
determine whether or not the House Rules of Impeachment violate
the Constitution. As I earlier stated, impeachment is not an inherent
legislative function, although it is traditionally conferred on the
legislature. It requires the mandate of a constitutional provision
before the legislature can assume impeachment functions. The grant
of power should be explicit in the Constitution. It cannot be readily
carved out of the shade of a presumed penumbra. In this case, there
is a looming prospect that an invalid impeachment complaint
emanating from an unconstitutional set of House rules would be
presented to the Senate for action. The proper recourse would be to
dismiss the complaint on constitutional grounds. Yet, from the
Constitutional and practical perspectives, only this Court may grant
that relief. The Senate cannot be expected to declare void
theArticles of Impeachment, as well as the offending Rules of the
House based on which the House completed the impeachment
process. The Senate cannot look beyond the Articles of
Impeachment. Under the Constitution, the Senate's mandate is
solely to try and decide the impeachment complaint. While the
Senate acts as an impeachment court for the purpose of trying and
deciding impeachment cases, such "transformation" does not vest
unto the Senate any of the powers inherent in the Judiciary, because
impeachment powers are not residual with the Senate. Whatever
powers the Senate may acquire as an impeachment court are limited
to what the Constitution provides, if any, and they cannot extend to
judicial-like review of the acts of co-equal components of
government, including those of the House. Pursuing the concept of
the Senate as an impeachment court, its jurisdiction, like that of the
regular courts,' has to be conferred by law and it cannot be
presumed. This is the principle that binds and guides all courts of the
land, and it should likewise govern the impeachment court, limited
as its functions may be. There must be an express grant of authority
in the Constitution empowering the Senate to pass upon the
House Rules on Impeachment.
3.ID.; ID.; INTER-CHAMBER COURTESY; ANY ATTEMPT OF THE
SENATE TO INVALIDATE THE HOUSE RULES OF IMPEACHMENT IS
OBNOXIOUS TO INTER-CHAMBER COURTESY. — Ought to be
recognized too is the tradition of comity observed by members of
Congress commonly referred to as "inter-chamber courtesy." It is
simply the mutual deference accorded by the chambers of Congress
to each other. Thus, "the opinion of each House should be
independent and not influenced by the proceedings of the other."
While inter-chamber courtesy is not a principle which has attained
the level of a statutory command, it enjoys a high degree of
obeisance among the members of the legislature, ensuring as it does
the smooth flow of the legislative process. It is my belief that any
attempt on the part of the Senate to invalidate the House Rules of
Impeachment is obnoxious to inter-chamber courtesy. If the Senate
were to render these House Rules unconstitutional, it would set an
unfortunate precedent that might engender a wrong-headed
assertion that one chamber of Congress may invalidate the rules and
regulations promulgated by the other chamber. Verily, the duty to
pass upon the validity of the House Rules of Impeachment is
imposed by the Constitution not upon the Senate but upon this
Court.
4.ID.; SUPREME COURT; POWER OF JUDICIAL REVIEW; SUPREME
COURT HAS THE DUTY TO ADDRESS CONSTITUTIONAL VIOLATION OF
A CO-EQUAL BRANCH OF GOVERNMENT, EVEN IF IT WOULD
REDOUND TO THE BENEFIT OF ONE, SOME OR EVEN ALL MEMBERS
OF THE COURT. — On the question of whether it is proper for this
Court to decide the petitions, it would be useless for us to pretend
that the official being impeached is not a member of this Court,
much less the primus inter pares. Simplistic notions of rectitude will
cause a furor over the decision of this Court, even if it is the right
decision. Yet we must decide this case because the Constitution
dictates that we do so. The most fatal charge that can be levied
against this Court is that it did not obey the Constitution. The
Supreme Court cannot afford, as it did in the Javellana case, to
abdicate its duty and refuse to address a constitutional violation of a
co-equal branch of government just because it feared the political
repercussions. And it is comforting that this Court need not rest
merely on rhetoric in deciding that it is proper for it to decide the
petitions, despite the fact that the fate of the Chief Justice rests in
the balance. Jurisprudence is replete with instances when this Court
responded to the call of judicial duty, notwithstanding the fact that
the performance of the duty would ultimately redound to the
benefit of one, some or even all members of the Court. . . Indeed,
this Court cannot deprive the House of the exclusive power of
impeachment lodged in the House by the Constitution. In taking
cognizance of this case, the Court does not do so out of empathy or
loyalty for one of our Brethren. Nor does it do so out of enmity or
loathing toward the Members of a coequal branch, whom I still call
60
and regard as my Brethren. The Court, in assuming jurisdiction over
this case, to repeat, does so only out of duty, a duty reposed no less
by the fundamental law.
PUNO, J., concurring and dissenting:
1.POLITICAL LAW; IMPEACHMENT PROCEEDINGS; HISTORIOGRAPHY
OF OUR IMPEACHMENT PROVISIONS SHOW INHERENT NATURE OF
IMPEACHMENT AS POLITICAL. — The historiography of our
impeachment provisions will show that they were liberally lifted
from the US Constitution. Following an originalist interpretation,
there is much to commend to the thought that they are political in
nature and character. The political character of impeachment hardly
changed in our 1935, 1973 and 1987 Constitutions. Thus, among the
grounds of impeachment are "other high crimes or betrayal of public
trust." They hardly have any judicially ascertainable content. The
power of impeachment is textually committed to Congress, a
political branch of government. The right to accuse
is exclusively given to the House of Representatives. The right to try
and decide is given solely to the Senate and not to the Supreme
Court. The Chief Justice has a limited part in the process . . . to
preside but without the right to vote when the President is under
impeachment. Likewise, the President cannot exercise his pardoning
power in cases of impeachment. All these provisions confirm the
inherent nature of impeachment as political.
2.ID.; ID.; ID.; REENGINEERED CONCEPT OF OUR IMPEACHMENT IS
NOW A COMMIXTURE OF POLITICAL AND JUDICIAL COMPONENTS;
RIGHT OF CHIEF JUSTICE AGAINST THE INITIATION OF A SECOND
IMPEACHMENT WITHIN ONE YEAR IS A JUSTICIABLE ISSUE. — Be
that as it may, the purity of the political nature of impeachment has
been lost. Some legal scholars characterize impeachment
proceedings as akin to criminal proceedings. Thus, they point to
some of the grounds of impeachment like treason, bribery, graft and
corruption as well defined criminal offenses. They stress that the
impeached official undergoes trial in the Senate sitting as an
impeachment court. If found guilty, the impeached official suffers
a penalty "which shall not be further than removal from office and
disqualification to hold any office under the Republic of the
Philippines." I therefore respectfully submit that there is now a
commixture of political and judicial components in our reengineered
concept of impeachment. It is for this reason and more that
impeachment proceedings A classified as sui generis. To be sure, our
impeachment proceedings are indigenous, a kind of its own. They
have been shaped by our distinct political experience especially in
the last fifty years. EDSA People Power I resulted in the radical
rearrangement of the powers of government in the 1987
Constitution.
3.ID.; ID.; INITIATION THEREOF AND ITS DECISION ARE INITIALLY
BEST LEFT TO CONGRESS; COORDINACY THEORY OF
CONSTITUTIONAL INTERPRETATION AND PRUDENTIAL
CONSIDERATIONS DEMAND DEFERMENT OF COURT'S EXERCISE OF
JURISDICTION OVER PETITIONS; CASE AT BAR. — I most respectfully
submit, that the 1987 Constitution adopted neither judicial restraint
nor judicial activism as a political philosophy to the exclusion of each
other. The expanded definition of judicial power gives the Court
enough elbow room to be more activist in dealing with political
questions but did not necessarily junk restraint in resolving them.
Political questions are not undifferentiated questions. They are of
different variety. The antagonism between judicial restraint and
judicial activism is avoided by thecoordinacy theory of constitutional
interpretation. This coordinacy theory gives room for judicial
restraint without allowing the judiciary to abdicate its
constitutionally mandated duty to interpret the constitution.
Coordinacy theory rests on the premise that within the
constitutional system, each branch of government has an
independent obligation to interpret the Constitution. This obligation
is rooted on the system of separation of powers. The oath to
"support this Constitution" — which the constitution mandates
judges, legislators and executives to take — proves this independent
obligation. Thus, the coordinacy theory accommodates judicial
restraint because it recognizes that the President and Congress also
have an obligation to interpret the constitution. In fine, the Court,
under the coordinacy theory, considers the preceding constitutional
judgments made by other branches of government. By no means
however, does it signify complete judicial deference. Coordinacy
means courts listen to the voice of the President and Congress but
their voice does not silence the judiciary. The doctrine in Marbury v.
Madison that courts are not bound by the constitutional
interpretation of other branches of government still rings true. As
well stated, "the coordinacy thesis is quite compatible with a judicial
deference that accommodates the views of other branches, while
not amounting to an abdication of judicial review." With due respect,
I cannot take the extreme position of judicial restraint that always
defers on the one hand, or judicial activism that never defers on the
other. I prefer to take the contextual approach of the coordinacy
theory which considers the constitution's allocation of decision-
making authority, the constitution's judgments as to the relative
risks of action and inaction by each branch of government, and the
fears and aspirations embodies in the different provisions of the
constitution. The contextual approach better attends to the specific
character of particular constitutional provisions and calibrates
deference or restraint accordingly on a case to case basis. In doing
so, it allows the legislature adequate leeway to carry out their
constitutional duties while at the same time ensuring that any abuse
does not undermine important constitutional principles. . . Their
correct calibration will compel the conclusion that this Court should
defer the exercise of its ultimate jurisdiction over the petitions at bar
out of prudence and respect to the initial exercise by the legislature
of its jurisdiction over impeachment proceedings.
YNARES-SANTIAGO, J., concurring and dissenting:
1.POLITICAL LAW; SUPREME COURT; POWER OF JUDICIAL REVIEW ;
IMPEACHMENT PROCEEDINGS; SUPREME COURT HAS THE DUTY TO
REVIEW THE CONSTITUTIONALITY OF THE ACTS OF CONGRESS. — I
also concur with theponente that the Court has the power of judicial
review: This power of the Court has been expanded by the
Constitution not only to settle actual controversies involving rights
which are legally demandable and enforceable but also to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of an branch
or instrumentality of government. The court is under mandate to
assume jurisdiction over, and to undertake judicial inquiry into, what
may even be deemed to be political questions provided, however,
that grave abuse of discretion — the sole test of justiciability on
purely political issues — is shown to have attended the contested
act. The Court checks the exercise of power of the other branches of
government through judicial review. It is the final arbiter of the
disputes involving the proper allocation and exercise of the different
powers under the Constitution. When the Supreme Court reviews
the Constitutionality of the acts of Congress, it does not thereby
assert its superiority over a co-equal branch of government. It
merely asserts its solemn and sacred obligation under the
Constitution and affirms constitutional supremacy. Indeed, in the
resolution of the principal issue in these petitions, a distinction has
to be drawn between the power of the members of the House of
Representatives to initiate impeachment proceedings, on the one
hand, and the manner in which they have exercised that power.
While it is clear that the House has the exclusive power to initiate
impeachment cases, and the Senate has the sole power to try and
decide these cases, the Court, upon a proper finding that either
chamber committed, grave abuse of discretion or violated any
constitutional provision, may invoke its corrective power of judicial
review.
2.ID.; LEGISLATIVE DEPARTMENT; IMPEACHMENT PROCEEDINGS;
ONE-YEAR BAN PROHIBITING THE INITIATION OF IMPEACHMENT
CASE AGAINST THE SAME — OFFICIALS UNDER SECTION 3(5) OF THE
CONSTITUTION; MEANING OF THE TERM "INITIATE. — The meaning
of the word "initiate" in relation to impeachment is at the center of
much debate. The confusion as to the meaning of this term was
aggravated by the amendment of the House of Representatives'
Rules of Procedure in Impeachment Proceedings. The first set of
Rules adopted on May 31, 1988, specifically Rule V, Section 14 and
Rule 11, Section 2 thereof, provides that impeachment shall be
initiated when a verified complaint for impeachment is filed by any
Member of the House of Representatives or by any citizen upon a
61
resolution of endorsement by any Member thereof, or when a
verified complaint or resolution of impeachment is filed by at least
one-third (1/3) of all the Members of the House. This provision was
later amended on November 28, 2001: Rule V, Section 16 of the
amendatory Rules states that impeachment proceedings under any
of the three methods above-stated are deemed initiated on the day
that the Committee on Justice finds that the verified complaint
and/or resolution against such official is sufficient in substance or on
the date the House votes to overturn or affirm the finding of the said
Committee that the verified complaint and/or resolution is not
sufficient in substance. The adoption of the 2001 Rules, at least
insofar as initiation of impeachment proceedings is concerned,
unduly expanded the power of the House by restricting the
constitutional time-bar only to complaints that have been
"approved" by the House Committee on Justice. As stated above,
the one-year bar is a limitation set by the Constitution which
Congress cannot overstep. Indeed, the Records of the Constitutional
Commission clearly show that, as defined in Article XI, Section 3 (5),
impeachment proceedings begin not on the floor of the House but
with the filing of the complaint by any member of the House of any
citizen upon a resolution of endorsement by any Member thereof.
This is the plain sense in which the word "Initiate" must be
understood, i.e., to begin or commence the action.
3.ID.; ID.; ID.; HOW COMPLAINT FOR IMPEACHMENT IS "FILED";
CASE AT BAR. — Moreover, the second impeachment complaint was
filed by only two complainants, namely Representatives Gilberto G.
Teodoro, Jr. and Felix William B. Fuentebella. The rest of the
members of the House whose names appear on the attachments
thereto merely signed endorsements to the Complaint. Article XI,
Section 3 (3) of the Constitution is explicit: In case the verified
complaint or resolution of impeachment is filed by at least one-third
of all the Members of the House, the same shall constitute the
Articles of Impeachment, and trial by the Senate shall forthwith
proceed. (Emphasis provided.) The mere endorsement of the
members of the House, albeit embodied in a verified resolution, did
not suffice for it did not constitute filing of the impeachment
complaint, as this term is plainly understood. In order that the
verified complaint may be said to have been filed by at least 1/3 of
the Members, all of them must be named as complainants therein.
All of them must sign the main complaint. This was not done in the
case of the assailed second impeachment complaint against the
Chief Justice. The complaint was not filed by at least one-third of the
Members of the House, and therefore did not constitute the Article
of Impeachment. I am constrained to disagree with the majority
decision to discard the above issue for being unnecessary for the
determination of the instant cases. On the contrary, the foregoing
defect in the complaint is a vital issue in the determination of
whether or not the House should transmit the complaint to the
Senate, and if it does, whether the Senate should entertain it. The
Constitution is clear that the complaint for impeachment shall
constitute the Articles of Impeachment, without need of referral to
the Committee on Justice, when the complaint is filed by at least
one-third of all the Members of the House. Being the exception to
the general procedure outlined in the Constitution, its formal
requisites must be strictly construed.
4.ID.; ID.; ID.; SIGNING OF IMPEACHMENT COMPLAINT DONE
WITHOUT DUE PROCESS IN CASE AT BAR. — The impeachment
complaint suffers from yet another serious flaw. As one of the amici
curiae, former Senate President Jovito Salonga, pointed out, the
signing of the impeachment complaint by the purported 1/3 of the
Congressmen was done without due process. The Chief Justice,
against whom the complaint was brought, was not served notice of
the proceedings against him. No rule is better established under the
due process clause of the constitution, than that which requires
notice and opportunity to be heard before any person can be
lawfully deprived of his rights. Indeed, when the Constitution says
that no person shall be deprived of life, liberty or property without
due process of law, it means that every person shall be afforded the
essential element of notice in any proceeding. Any act committed in
violation of due process may be declared null and void.
5.ID.; ID.; ID.; JUDICIAL SELF-RESTRAINT SHOULD BE EXERCISED IN
IMPEACHMENT PROCEEDINGS. — Notwithstanding the
constitutional and procedural defects in the impeachment
complaint, I dissent from the majority when it decided to resolve the
issues at this premature stage. I submit that the process of
impeachment should first be allowed to run its course. The power of
this Court as the final arbiter of all justiciable questions should come
into play only when the procedure as outlined in the Constitution
has been exhausted. The complaint should be referred back to the
House Committee on Justice, where its constitutionality may be
threshed out. Thereafter, if the Committee so decides, the complaint
will have to be deliberated by the House on plenary session,
preparatory to its possible transmittal to the Senate. The questions
on the sufficiency of the complaint in form may again be brought to
the Senate by way of proper motion, and the Senate may deny the
motion or dismiss the complaint depending on the merits of the
grounds raised. After the Senate shall have acted in due course, its
disposition of the case may be elevated to this Court pursuant to its
judicial power of review. . . The Court should recognize the extent
and practical limitations of its judicial prerogatives, and identify
those areas where it should carefully tread instead of rush in and act
accordingly. Considering that power of impeachment was intended
to be the legislature's lone check on the judiciary, exercising our
power of judicial review over impeachment would place the final
reviewing authority with respect to impeachments in the hands of
the same body that the impeachment process is meant to regulate.
In fact, judicial involvement in impeachment proceedings, even if
only for purposes of judicial review is counter-intuitive because it
eviscerates the improper constitutional check to the judiciary. A
becoming sense of propriety and justice dictates that judicial self-
restraint should be exercised; that the impeachment power should
remain at all times and under all circumstances with the legislature,
where the Constitution has placed it. The common-law principle of
judicial restraint serves the public interest by allowing the political
processes to operate without undue interference.
DECISION
CARPIO MORALES, J p:
There can be no constitutional crisis arising from a conflict, no
matter how passionate and seemingly irreconcilable it may appear
to be, over the determination by the independent branches of
government of the nature, scope and extent of their respective
constitutional powers where the Constitution itself provides for the
means and bases for its resolution.
Our nation's history is replete with vivid illustrations of the often
frictional, at times turbulent, dynamics of the relationship among
these co-equal branches. This Court is confronted with one such
today involving the legislature and the judiciary which has drawn
legal luminaries to chart antipodal courses and not a few of our
countrymen to vent cacophonous sentiments thereon.
There may indeed be some legitimacy to the characterization that
the present controversy subject of the instant petitions — whether
the filing of the second impeachment complaint against Chief Justice
Hilario G. Davide, Jr. with the House of Representatives falls within
the one year bar provided in the Constitution, and whether the
resolution thereof is a political question — has resulted in a political
crisis. Perhaps even more truth to the view that it was brought upon
by a political crisis of conscience.
In any event, it is with the absolute certainty that our Constitution is
sufficient to address all the issues which this controversy spawns
that this Court unequivocally pronounces, at the first instance, that
the feared resort to extra-constitutional methods of resolving it is
neither necessary nor legally permissible. Both its resolution and
protection of the public interest lie in adherence to, not departure
from, the Constitution.
62
In passing over the complex issues arising from the controversy, this
Court is ever mindful of the essential truth that the inviolate
doctrine of separation of powers among the legislative, executive or
judicial branches of government by no means prescribes for absolute
autonomy in the discharge by each of that part of the governmental
power assigned to it by the sovereign people.
(4)In case the verified complaint or resolution
of impeachment is filed by at least one-third
of all the Members of the House, the same
shall constitute the Articles of Impeachment,
and trial by the Senate shall forthwith
proceed.

At the same time, the corollary doctrine of checks and balances
which has been carefully calibrated by the Constitution to temper
the official acts of each of these three branches must be given effect
without destroying their indispensable co-equality.
Taken together, these two fundamental doctrines of republican
government, intended as they are to insure that governmental
power is wielded only for the good of the people, mandate a
relationship of interdependence and coordination among these
branches where the delicate functions of enacting, interpreting and
enforcing laws are harmonized to achieve a unity of governance,
guided only by what is in the greater interest and well-being of the
people. Verily, salus populi est suprema lex.
(5)No impeachment proceedings shall be
initiated against the same official more than
once within a period of one year.
(6)The Senate shall have the sole power to try
and decide all cases of impeachment. When
sitting for that purpose, the Senators shall be
on oath or affirmation. When the President of
the Philippines is on trial, the Chief Justice of
the Supreme Court shall preside, but shall not
vote. No person shall be convicted without the
concurrence of two-thirds of all the Members
of the Senate.

Article XI of our present 1987 Constitution provides:
ARTICLE XI
Accountability of Public Officers
SECTION 1. Public office is a public trust. Public
officers and employees must at all times be
accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and
lead modest lives.
(7)Judgment in cases of impeachment shall
not extend further than removal from office
and disqualification to hold any office under
the Republic of the Philippines, but the party
convicted shall nevertheless be liable and
subject to prosecution, trial, and punishment
according to law.
(8)The Congress shall promulgate its rules on
impeachment to effectively carry out the
purpose of this section. (Emphasis and italics
supplied)

Following the above-quoted Section 8 of Article XI of the

SECTION 2. The President, the Vice-President,
Constitution, the 12th Congress of the House of Representatives
the Members of the Supreme Court, the
adopted and approved the Rules of Procedure in Impeachment
Members of the Constitutional Commissions,
Proceedings (House Impeachment Rules) on November 28, 2001,
and the Ombudsman may be removed from
superseding the previous House Impeachment Rules 1 approved by
office, on impeachment for, and conviction of,
the 11th Congress. The relevant distinctions between these two
culpable violation of the Constitution, treason,
Congresses' House Impeachment Rules are shown in the following
bribery, graft and corruption, other high
tabulation:
crimes, or betrayal of public trust. All other
public officers and employees may be
removed from office as provided by law, but 11TH CONGRESS RULES 12TH CONGRESS NEW RULES
not by impeachment. cEDIAa

SECTION 3.(1)The House of Representatives

shall have the exclusive power to initiate all RULE IIRULE V
cases of impeachment.
INITIATING IMPEACHMENTBAR AGAINST INITIATION
(2)A verified complaint for impeachment may OF IMPEACHMENT
be filed by any Member of the House of
Representatives or by any citizen upon a PROCEEDINGS AGAINST
resolution of endorsement by any Member THE SAME OFFICIAL
thereof, which shall be included in the Order
of Business within ten session days, and
referred to the proper Committee within three
session days thereafter. The Committee, after
hearing, and by a majority vote of all its Section 2. Mode of InitiatingSection 16. Impeachment
Members, shall submit its report to the House Proceedings
within sixty session days from such referral,
together with the corresponding resolution. Impeachment. — ImpeachmentDeemed Initiated. —
The resolution shall be calendared for In cases where a
consideration by the House within ten session
days from receipt thereof. shall be initiated only by a verifiedMember of the
House files a verified
(3)A vote of at least one-third of all the
Members of the House shall be necessary complaint for impeachment filed bycomplaint of
either to affirm a favorable resolution with the impeachment or a citizen
Articles of Impeachment of the Committee, or
override its contrary resolution. The vote of
each Member shall be recorded. any Member of the House offiles a verified complaint
that is endorsed

63
Representatives or by any citizen uponby a Member
of the House through a
a resolution of endorsement by anyresolution of
endorsement against an
Member thereof or by a verifiedimpeachable officer,
impeachment
complaint or resolution of impeachmentproceedings
against such official are
filed by at least one-third (1/3) of alldeemed initiated
on the day the
the Members of the House.Committee on Justice finds
that the
verified complaint and/or resolution
against such official, as the case may
be, is sufficient in substance, or on the
date the House votes to overturn or
affirm the finding of the said
Committee that the verified complaint
and/or resolution, as the case may
be, is not sufficient in substance.
In cases where a verified complaint or a
resolution of impeachment is filed or
endorsed, as the case may be, by at least one-
third (1/3) of the Members of the House,
impeachment proceedings are deemed
initiated at the time of the filing of such
verified complaint or resolution
impeachment with the Secretary General.
RULE V
BAR AGAINST IMPEACHMENT
Section 14. Scope of Bar. — NoSection 17. Bar Against
Initiation Of
impeachment proceedings shall beImpeachment
Proceedings. — Within a
initiated against the same official moreperiod of one
(1) year from the date
than once within the period of oneimpeachment
proceedings are deemed
(1) year.initiated as provided in Section 16 hereof,
no impeachment proceedings, as such,
can be initiated against the same official.
(Italics in the original; emphasis and
italics supplied)
On July 22, 2002, the House of Representatives adopted a
Resolution, 2 sponsored by Representative Felix William D.
Fuentebella, which directed the Committee on Justice "to conduct
an investigation, in aid of legislation, on the manner of
disbursements and expenditures by the Chief Justice of the Supreme
Court of the Judiciary Development Fund (JDF)." 3
On June 2, 2003, former President Joseph E. Estrada filed an
impeachment complaint 4 (first impeachment complaint) against
Chief Justice Hilario G. Davide Jr. and seven Associate Justices 5 of
this Court for "culpable violation of the Constitution, betrayal of the
public trust and other high crimes." 6 The complaint was endorsed
by Representatives Rolex T. Suplico, Ronaldo B. Zamora and Didagen
Piang Dilangalen, 7 and was referred to the House Committee on
Justice on August 5, 2003 8 in accordance with Section 3(2) of Article
XI of the Constitution which reads: HSTCcD
Section 3(2) A verified complaint for
impeachment may be filed by any Member of
the House of Representatives or by any citizen
upon a resolution of endorsement by any
Member thereof, which shall be included in
the Order of Business within ten session days,
and referred to the proper Committee within
three session days thereafter. The Committee,
after hearing, and by a majority vote of all its
Members, shall submit its report to the House
within sixty session days from such referral,
together with the corresponding resolution.
The resolution shall be calendared for
consideration by the House within ten session
days from receipt thereof.
The House Committee on Justice ruled on October 13, 2003
that the first impeachment complaint was "sufficient in
form," 9 but voted to dismiss the same on October 22, 2003 for
being insufficient in substance. 10 To date, the Committee
Report to this effect has not yet been sent to the House in
plenary in accordance with the said Section 3(2) of Article XI of
the Constitution.
of
Four months and three weeks since the filing on June 2, 2003 of the
first complaint or on October 23, 2003, a day after the House
Committee on Justice voted to dismiss it, the second impeachment
complaint 11 was filed with the Secretary General of the
House 12 by Representatives Gilberto C. Teodoro, Jr. (First District,
Tarlac) and Felix William B. Fuentebella (Third District, Camarines
Sur) against Chief Justice Hilario G. Davide, Jr., founded on the
alleged results of the legislative inquiry initiated by above-
mentioned House Resolution. This second impeachment complaint
was accompanied by a "Resolution of Endorsement/Impeachment"
signed by at least one-third (1/3) of all the Members of the House of
Representatives. 13
Thus arose the instant petitions against the House of
Representatives, et al., most of which petitions contend that the
filing of the second impeachment complaint is unconstitutional as it
violates the provision of Section 5 of Article XI of the Constitution
that "[n]o impeachment proceedings shall be initiated against the
same official more than once within a period of one year."
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging
that he has a duty as a member of the Integrated Bar of the
Philippines to use all available legal remedies to stop an
unconstitutional impeachment, that the issues raised in his petition
for Certiorari, Prohibition and Mandamus are of transcendental
64
importance, and that he "himself was a victim of the capricious and
arbitrary changes in the Rules of Procedure in Impeachment
Proceedings introduced by the 12th Congress," 14 posits that his
right to bring an impeachment complaint against then Ombudsman
Aniano Desierto had been violated due to the capricious and
arbitrary changes in the House Impeachment Rules adopted and
approved on November 28, 2001 by the House of Representatives
and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5,
6, 7, 8, and 9 thereof be declared unconstitutional; (2) this Court
issue a writ of mandamus directing respondents House of
Representatives et al. to comply with Article IX, Section 3 (2), (3) and
(5) of the Constitution, to return the second impeachment complaint
and/or strike it off the records of the House of Representatives, and
to promulgate rules which are consistent with the Constitution; and
(3) this Court permanently enjoin respondent House of
Representatives from proceeding with the second impeachment
complaint.
In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et al., as
citizens and taxpayers, alleging that the issues of the case are of
transcendental importance, pray, in their petition for
Certiorari/Prohibition, the issuance of a writ "perpetually"
prohibiting respondent House of Representatives from filing any
Articles of Impeachment against the Chief Justice with the Senate;
and for the issuance of a writ "perpetually" prohibiting respondents
Senate and Senate President Franklin Drilon from accepting any
Articles of Impeachment against the Chief Justice or, in the event
that the Senate has accepted the same, from proceeding with the
impeachment trial.
In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad
Cagampang, as citizens, taxpayers, lawyers and members of the
Integrated Bar of the Philippines, alleging that their petition for
Prohibition involves public interest as it involves the use of public
funds necessary to conduct the impeachment trial on the second
impeachment complaint, pray for the issuance of a writ of
prohibition enjoining Congress from conducting further proceedings
on said second impeachment complaint.
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this
Court has recognized that he has locus standi to bring petitions of
this nature in the cases of Chavez v. PCGG 15 and Chavez v. PEA-
Amari Coastal Bay Development Corporation, 16 prays in his petition
for Injunction that the second impeachment complaint be declared
unconstitutional.
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et al., as
taxpayers and members of the legal profession, pray in their petition
for Prohibition for an order prohibiting respondent House of
Representatives from drafting, adopting, approving and transmitting
to the Senate the second impeachment complaint, and respondents
De Venecia and Nazareno from transmitting the Articles of
Impeachment to the Senate. ESCTaA
In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina
and Deputy Speaker Raul M. Gonzalez, alleging that, as members of
the House of Representatives, they have a legal interest in ensuring
that only constitutional impeachment proceedings are initiated, pray
in their petition for Certiorari/Prohibition that the second
impeachment complaint and any act proceeding therefrom be
declared null and void.
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al., claiming
that they have a right to be protected against all forms of senseless
spending of taxpayers’ money and that they have an obligation to
protect the Supreme Court, the Chief Justice, and the integrity of the
Judiciary, allege in their petition for Certiorari and Prohibition that it
is instituted as "a class suit" and pray that (1) the House Resolution
endorsing the second impeachment complaint as well as all
issuances emanating therefrom be declared null and void; and (2)
this Court enjoin the Senate and the Senate President from taking
cognizance of, hearing, trying and deciding the second impeachment
complaint, and issue a writ of prohibition commanding the Senate,
its prosecutors and agents to desist from conducting any
proceedings or to act on the impeachment complaint.
In G.R. No. 160318, petitioner Public Interest Center, Inc., whose
members are citizens and taxpayers, and its co-petitioner Crispin T.
Reyes, a citizen, taxpayer and a member of the Philippine Bar, both
allege in their petition, which does not state what its nature is, that
the filing of the second impeachment complaint involves paramount
public interest and pray that Sections 16 and 17 of the House
Impeachment Rules and the second impeachment
complaint/Articles of Impeachment be declared null and void.
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen
and a member of the Philippine Bar Association and of the
Integrated Bar of the Philippines, and petitioner Engr. Maximo N.
Menez, Jr., as a taxpayer, pray in their petition for the issuance of a
Temporary Restraining Order and Permanent Injunction to enjoin
the House of Representatives from proceeding with the second
impeachment complaint.
In G.R. No. 160343, petitioner Integrated Bar of the Philippines,
alleging that it is mandated by the Code of Professional
Responsibility to uphold the Constitution, prays in its petition for
Certiorari and Prohibition that Sections 16 and 17 of Rule V and
Sections 5, 6, 7, 8, 9 of Rule III of the House Impeachment Rules be
declared unconstitutional and that the House of Representatives be
permanently enjoined from proceeding with the second
impeachment complaint. CTAIHc
In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his
petition for Certiorari and Prohibition that the House Impeachment
Rules be declared unconstitutional.
In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation
Inc., et al., in their petition for Prohibition and Injunction which they
claim is a class suit filed in behalf of all citizens, citing Oposa
v. Factoran 17 which was filed in behalf of succeeding generations of
Filipinos, pray for the issuance of a writ prohibiting respondents
House of Representatives and the Senate from conducting further
proceedings on the second impeachment complaint and that this
Court declare as unconstitutional the second impeachment
complaint and the acts of respondent House of Representatives in
interfering with the fiscal matters of the Judiciary.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan
Aquino, alleging that the issues in his petition for Prohibition are of
national and transcendental significance and that as an official of the
Philippine Judicial Academy, he has a direct and substantial interest
in the unhampered operation of the Supreme Court and its officials
in discharging their duties in accordance with the Constitution, prays
for the issuance of a writ prohibiting the House of Representatives
from transmitting the Articles of Impeachment to the Senate and the
Senate from receiving the same or giving the impeachment
complaint due course.
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer,
alleges in his petition for Prohibition that respondents Fuentebella
and Teodoro at the time they filed the second impeachment
complaint, were "absolutely without any legal power to do so, as
they acted without jurisdiction as far as the Articles of Impeachment
assail the alleged abuse of powers of the Chief Justice to disburse
the (JDF)."
In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and
Hector L. Hofileña, alleging that as professors of law they have an
abiding interest in the subject matter of their petition for Certiorari
and Prohibition as it pertains to a constitutional issue "which they
are trying to inculcate in the minds of their students," pray that the
House of Representatives be enjoined from endorsing and the
Senate from trying the Articles of Impeachment and that the second
impeachment complaint be declared null and void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without
alleging his locus standi, but alleging that the second impeachment
complaint is founded on the issue of whether or not the Judicial
65
Development Fund (JDF) was spent in accordance with law and that
the House of Representatives does not have exclusive jurisdiction in
the examination and audit thereof, prays in his petition "To Declare
Complaint Null and Void for Lack of Cause of Action and Jurisdiction"
that the second impeachment complaint be declared null and void.
In G.R. No. 160403, petitioner Philippine Bar Association, alleging
that the issues raised in the filing of the second impeachment
complaint involve matters of transcendental importance, prays in its
petition for Certiorari/Prohibition that (1) the second impeachment
complaint and all proceedings arising therefrom be declared null and
void; (2) respondent House of Representatives be prohibited from
transmitting the Articles of Impeachment to the Senate; and (3)
respondent Senate be prohibited from accepting the Articles of
Impeachment and from conducting any proceedings thereon.
In G.R. No. 160405, petitioners Democrit C. Barcenas, et al., as
citizens and taxpayers, pray in their petition for
Certiorari/Prohibition that (1) the second impeachment complaint as
well as the resolution of endorsement and impeachment by the
respondent House of Representatives be declared null and void and
(2) respondents Senate and Senate President Franklin Drilon be
prohibited from accepting any Articles of Impeachment against the
Chief Justice or, in the event that they have accepted the same, that
they be prohibited from proceeding with the impeachment trial.
Petitions bearing docket numbers G.R. Nos. 160261, 160262 and
160263, the first three of the eighteen which were filed before this
Court, 18 prayed for the issuance of a Temporary Restraining Order
and/or preliminary injunction to prevent the House of
Representatives from transmitting the Articles of Impeachment
arising from the second impeachment complaint to the Senate.
Petition bearing docket number G.R. No. 160261 likewise prayed for
the declaration of the November 28, 2001 House Impeachment
Rules as null and void for being unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and
160295, which were filed on October 28, 2003, sought similar relief.
In addition, petition bearing docket number G.R. No. 160292 alleged
that House Resolution No. 260 (calling for a legislative inquiry into
the administration by the Chief Justice of the JDF) infringes on the
constitutional doctrine of separation of powers and is a direct
violation of the constitutional principle of fiscal autonomy of the
judiciary.
On October 28, 2003, during the plenary session of the House of
Representatives, a motion was put forth that the second
impeachment complaint be formally transmitted to the Senate, but
it was not carried because the House of Representatives adjourned
for lack of quorum, 19 and as reflected above, to date, the Articles of
Impeachment have yet to be forwarded to the Senate. TEHDIA
Before acting on the petitions with prayers for temporary restraining
order and/or writ of preliminary injunction which were filed on or
before October 28, 2003, Justices Puno and Vitug offered to recuse
themselves, but the Court rejected their offer. Justice Panganiban
inhibited himself, but the Court directed him to participate.
Without necessarily giving the petitions due course, this Court in its
Resolution of October 28, 2003, resolved to (a) consolidate the
petitions; (b) require respondent House of Representatives and the
Senate, as well as the Solicitor General, to comment on the petitions
not later than 4:30 p.m. of November 3, 2003; (c) set the petitions
for oral arguments on November 5, 2003, at 10:00 a.m.; and (d)
appointed distinguished legal experts as amici curiae. 20 In addition,
this Court called on petitioners and respondents to maintain
the status quo, enjoining all the parties and others acting for and in
their behalf to refrain from committing acts that would render the
petitions moot.
Also on October 28, 2003, when respondent House of
Representatives through Speaker Jose C. De Venecia, Jr. and/or its
co-respondents, by way of special appearance, submitted a
Manifestation asserting that this Court has no jurisdiction to hear,
much less prohibit or enjoin the House of Representatives, which is
an independent and co-equal branch of government under the
Constitution, from the performance of its constitutionally mandated
duty to initiate impeachment cases. On even date, Senator Aquilino
Q. Pimentel, Jr., in his own behalf, filed a Motion to Intervene (Ex
Abudante Cautela) 21 and Comment, praying that "the consolidated
petitions be dismissed for lack of jurisdiction of the Court over the
issues affecting the impeachment proceedings and that the sole
power, authority and jurisdiction of the Senate as the impeachment
court to try and decide impeachment cases, including the one where
the Chief Justice is the respondent, be recognized and upheld
pursuant to the provisions of Article XI of the Constitution." 22
Acting on the other petitions which were subsequently filed, this
Court resolved to (a) consolidate them with the earlier consolidated
petitions; (b) require respondents to file their comment not later
than 4:30 p.m. of November 3, 2003; and (c) include them for oral
arguments on November 5, 2003.
On October 29, 2003, the Senate of the Philippines, through Senate
President Franklin M. Drilon, filed a Manifestation stating that
insofar as it is concerned, the petitions are plainly premature and
have no basis in law or in fact, adding that as of the time of the filing
of the petitions, no justiciable issue was presented before it since (1)
its constitutional duty to constitute itself as an impeachment court
commences only upon its receipt of the Articles of Impeachment,
which it had not, and (2) the principal issues raised by the petitions
pertain exclusively to the proceedings in the House of
Representatives.
On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave
to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292,
and 160295, questioning the status quo Resolution issued by this
Court on October 28, 2003 on the ground that it would unnecessarily
put Congress and this Court in a "constitutional deadlock" and
praying for the dismissal of all the petitions as the matter in question
is not yet ripe for judicial determination.
On November 3, 2003, Attorneys Romulo B. Macalintal and Pete
Quirino Quadra filed in G.R. No. 160262 a "Motion for Leave of Court
to Intervene and to Admit the Herein Incorporated Petition in
Intervention."
On November 4, 2003, Nagmamalasakit na mga Manananggol ng
mga Manggagawang Pilipino, Inc. filed a Motion for Intervention in
G.R. No. 160261. On November 5, 2003, World War II Veterans
Legionnaires of the Philippines, Inc. also filed a "Petition-in-
Intervention with Leave to Intervene" in G.R. Nos. 160261, 160262,
160263, 160277, 160292, 160295, and 160310.
The motions for intervention were granted and both Senator
Pimentel's Comment and Attorneys Macalintal and Quadra's Petition
in Intervention were admitted.
On November 5-6, 2003, this Court heard the views of the amici
curiae and the arguments of petitioners, intervenors Senator
Pimentel and Attorney Makalintal, and Solicitor General Alfredo
Benipayo on the principal issues outlined in an Advisory issued by
this Court on November 3, 2003, to wit:
Whether the certiorari jurisdiction of the
Supreme Court may be invoked; who can
invoke it; on what issues and at what time;
and whether it should be exercised by this
Court at this time.
In discussing these issues, the following may
be taken up:
a)locus standi of petitioners;
b)ripeness (prematurity; mootness);
66
 c)political question/justiciability;
d)House's "exclusive" power to
initiate all cases of
impeachment;
e)Senate's "sole" power to try and
decide all cases of
impeachment; aTADCE
f)constitutionality of the House
Rules on Impeachment vis-
a-vis Section 3(5) of Article
XI of the Constitution; and
g)judicial restraint (Italics in the
original)
In resolving the intricate conflux of preliminary and substantive
issues arising from the instant petitions as well as the myriad
arguments and opinions presented for and against the grant of the
reliefs prayed for, this Court has sifted and determined them to be
as follows: (1) the threshold and novel issue of whether or not the
power of judicial review extends to those arising from impeachment
proceedings; (2) whether or not the essential pre-requisites for the
exercise of the power of judicial review have been fulfilled; and (3)
the substantive issues yet remaining. These matters shall now be
discussed in seriatim.
Judicial Review
As reflected above, petitioners plead for this Court to exercise the
power of judicial review to determine the validity of the second
impeachment complaint.
This Court's power of judicial review is conferred on the judicial
branch of the government in Section 1, Article VIII of our present
1987 Constitution:
SECTION 1. The judicial power shall be vested
in one Supreme Court and in such lower
courts as may be established by law.
Judicial power includes the duty of the courts
of justice to settle actual controversies
involving rights which are legally demandable
and enforceable, and to determine whether or
not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of
the government. (Emphasis supplied)
Such power of judicial review was early on exhaustively expounded
upon by Justice Jose P. Laurel in the definitive 1936 case of Angara
v. Electoral Commission 23 after the effectivity of the 1935
Constitution whose provisions, unlike the present Constitution, did
not contain the present provision in Article VIII, Section 1, par. 2 on
what judicial power includes. Thus, Justice Laurel discoursed:
. . . In times of social disquietude or political
excitement, the great landmarks of the
Constitution are apt to be forgotten or
marred, if not entirely obliterated. In cases of
conflict, the judicial department is the only
constitutional organ which can be called upon
to determine the proper allocation of powers
between the several departments and among
the integral or constituent units thereof .
As any human production, our Constitution is
of course lacking perfection and perfectibility,
but as much as it was within the power of our
people, acting through their delegates to so
provide, that instrument which is the
expression of their sovereignty however
limited, has established a republican
government intended to operate and function
as a harmonious whole, under a system of
checks and balances, and subject to specific
limitations and restrictions provided in the
said instrument. The Constitution sets forth in
no uncertain language the restrictions and
limitations upon governmental powers and
agencies. If these restrictions and limitations
are transcended it would be inconceivable if
the Constitution had not provided for a
mechanism by which to direct the course of
government along constitutional channels, for
then the distribution of powers would be
mere verbiage, the bill of rights mere
expressions of sentiment, and the principles of
good government mere political apothegms.
Certainly, the limitations and restrictions
embodied in our Constitution are real as they
should be in any living constitution. In the
United States where no express constitutional
grant is found in their constitution, the
possession of this moderating power of the
courts, not to speak of its historical origin and
development there, has been set at rest by
popular acquiescence for a period of more
than one and a half centuries. In our case, this
moderating power is granted, if not expressly,
by clear implication from section 2 of article
VIII of our Constitution. IAETDc
The Constitution is a definition of the powers
of government. Who is to determine the
nature, scope and extent of such powers? The
Constitution itself has provided for the
instrumentality of the judiciary as the rational
way.And when the judiciary mediates to
allocate constitutional boundaries, it does not
assert any superiority over the other
departments; it does not in reality nullify or
invalidate an act of the legislature, but only
asserts the solemn and sacred obligation
assigned to it by the Constitution to determine
conflicting claims of authority under the
Constitution and to establish for the parties in
an actual controversy the rights which that
instrument secures and guarantees to
them. This is in truth all that is involved
in what is termed "judicial supremacy" which
properly is the power of judicial review under
the Constitution. Even then, this power of
judicial review is limited to actual cases and
controversies to be exercised after full
opportunity of argument by the parties, and
limited further to the constitutional question
raised or the very lis mota presented. Any
attempt at abstraction could only lead to
dialectics and barren legal questions and to
sterile conclusions unrelated to actualities.
Narrowed as its function is in this manner, the
judiciary does not pass upon questions of
wisdom, justice or expediency of legislation.
More than that, courts accord the
presumption of constitutionality to legislative
enactments, not only because the legislature
is presumed to abide by the Constitution but
also because the judiciary in the
determination of actual cases and
controversies must reflect the wisdom and
justice of the people as expressed through
their representatives in the executive and
legislative departments of the
67
 government. 24 (Italics in the original;
emphasis and italics supplied)
As pointed out by Justice Laurel, this "moderating power" to
"determine the proper allocation of powers" of the different
branches of government and "to direct the course of government
along constitutional channels" is inherent in all courts25 as a
necessary consequence of the judicial power itself, which is "the
power of the court to settle actual controversies involving rights
which are legally demandable and enforceable." 26
Thus, even in the United States where the power of judicial review is
not explicitly conferred upon the courts by its Constitution, such
power has "been set at rest by popular acquiescence for a period of
more than one and a half centuries." To be sure, it was in the 1803
leading case of Marbury v. Madison 27 that the power of judicial
review was first articulated by Chief Justice Marshall, to wit:
It is also not entirely unworthy of observation,
that in declaring what shall be
the supreme law of the land,
theconstitution itself is first mentioned; and
not the laws of the United States generally,
but those only which shall be made
in pursuance of the constitution, have that
rank.
Thus, the particular phraseology of the
constitution of the United States confirms and
strengthens the principle, supposed to be
essential to all written constitutions, that a
law repugnant to the constitution is void; and
that courts, as well as other departments, are
bound by that instrument. 28 (Italics in the
original; emphasis supplied)
In our own jurisdiction, as early as 1902, decades before its express
grant in the 1935 Constitution, the power of judicial review was
exercised by our courts to invalidate constitutionally infirm
acts. 29 And as pointed out by noted political law professor and
former Supreme Court Justice Vicente V. Mendoza, 30 the executive
and legislative branches of our government in fact effectively
acknowledged this power of judicial review in Article 7 of the Civil
Code, to wit:
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.
(Emphasis supplied)
As indicated in Angara v. Electoral Commission, 31 judicial review is
indeed an integral component of the delicate system of checks and
balances which, together with the corollary principle of separation
of powers, forms the bedrock of our republican form of government
and insures that its vast powers are utilized only for the benefit of
the people for which it serves.
The separation of powers is a fundamental
principle in our system of government. It
obtains not through express provision but by
actual division in our Constitution. Each
department of the government has exclusive
cognizance of matters within its jurisdiction,
and is supreme within its own sphere. But it
does not follow from the fact that the three
powers are to be kept separate and distinct
that the Constitution intended them to be
absolutely unrestrained and independent of
each other. The Constitution has provided for
an elaborate system of checks and balances to
secure coordination in the workings of the
various departments of the government. . .
. 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. 32 (Emphasis and italics
supplied) THaAEC
In the scholarly estimation of former Supreme Court Justice
Florentino Feliciano, ". . . judicial review is essential for the
maintenance and enforcement of the separation of powers and the
balancing of powers among the three great departments of
government through the definition and maintenance of the
boundaries of authority and control between them." 33 To him,
"[j]udicial review is the chief, indeed the only, medium of
participation — or instrument of intervention — of the judiciary in
that balancing operation." 34
To ensure the potency of the power of judicial review to curb grave
abuse of discretion by "any branch or instrumentalities of
government," the afore-quoted Section 1, Article VIII of the
Constitution engraves, for the first time into its history, into block
letter law the so-called "expanded certiorari jurisdiction" of this
Court, the nature of and rationale for which are mirrored in the
following excerpt from the sponsorship speech of its proponent,
former Chief Justice Constitutional Commissioner Roberto
Concepcion:
xxx xxx xxx
The first section starts with a sentence copied
from former Constitutions. It says:
The judicial power shall be vested in
one Supreme Court and in such
lower courts as may be established
by law.
I suppose nobody can question it.
The next provision is new in our constitutional
law. I will read it first and explain.
Judicial power includes the duty of
courts of justice to settle actual
controversies involving rights which
are legally demandable and
enforceable and to determine
whether or not there has been a
grave abuse of discretion amounting
to lack or excess of jurisdiction on
the part or instrumentality of the
government.
Fellow Members of this Commission, this is
actually a product of our experience during
martial law. As a matter of fact, it has some
antecedents in the past, but the role of the
judiciary during the deposed regime was
marred considerably by the circumstance that
in a number of cases against the government,
which then had no legal defense at all, the
solicitor general set up the defense of political
questions and got away with it. As a
consequence, certain principles concerning
68
 particularly the writ of habeas corpus, that is,
the authority of courts to order the release of
political detainees, and other matters related
to the operation and effect of martial law
failed because the government set up the
defense of political question. And the
Supreme Court said: "Well, since it is political,
we have no authority to pass upon it." The
Committee on the Judiciary feels that this was
not a proper solution of the questions
involved. It did not merely request an
encroachment upon the rights of the people,
but it, in effect, encouraged further violations
thereof during the martial law regime. . . .
xxx xxx xxx
Briefly stated, courts of justice determine the
limits of power of the agencies and offices of
the government as well as those of its
officers. In other words, the judiciary is the
final arbiter on the question whether or not a
branch of government or any of its officials has
acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute
an abuse of discretion amounting to excess of
jurisdiction or lack of jurisdiction.This is not
only a judicial power but a duty to pass
judgment on matters of this nature.
This is the background of paragraph 2 of
Section 1, which means that the courts cannot
hereafter evade the duty to settle matters of
this nature, by claiming that such matters
constitute a political question. 35 (Italics in the
original; emphasis and italics supplied)
To determine the merits of the issues raised in the instant petitions,
this Court must necessarily turn to the Constitution itself which
employs the well-settled principles of constitutional construction.
First, verba legis, that is, wherever possible, the words used in the
Constitution must be given their ordinary meaningexcept where
technical terms are employed. Thus, in J.M. Tuason & Co.,
Inc. v. Land Tenure Administration, 36 this Court, speaking through
Chief Justice Enrique Fernando, declared:
We look to the language of the document
itself in our search for its meaning. We do not
of course stop there, but that is where we
begin. It is to be assumed that the words in
which constitutional provisions are couched
express the objective sought to be
attained. They are to be given their ordinary
meaning except where technical terms are
employed in which case the significance thus
attached to them prevails. As the Constitution
is not primarily a lawyer's document, it being
essential for the rule of law to obtain that it
should ever be present in the people's
consciousness, its language as much as
possible should be understood in the sense
they have in common use. What it says
according to the text of the provision to be
construed compels acceptanceand negates the
power of the courts to alter it, based on the
postulate that the framers and the people
mean what they say. Thus these are the cases
where the need for construction is reduced to
a minimum. 37(Emphasis and italics supplied)
Second, where there is ambiguity, ratio legis est anima. The words
of the Constitution should be interpreted in accordance with the
intent of its framers. And so did this Court apply this principle in Civil
Liberties Union v. Executive Secretary 38 in this wise: SHTaID
A foolproof yardstick in constitutional
construction is the intention underlying the
provision under consideration. Thus, it has
been held that the Court in construing a
Constitution should bear in mind the object
sought to be accomplished by its adoption,
and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be
examined in the light of the history of the
times, and the condition and circumstances
under which the Constitution was framed. The
object is to ascertain the reason which induced
the framers of the Constitution to enact the
particular provision and the purpose sought to
be accomplished thereby, in order to construe
the whole as to make the words consonant to
that reason and calculated to effect that
purpose. 39(Emphasis and italics supplied)
As it did in Nitafan v. Commissioner on Internal
Revenue 40 where, speaking through Madame Justice
Amuerfina A. Melencio-Herrera, it declared:
. . . The ascertainment of that intent is but in
keeping with the fundamental principle of
constitutional construction that the intent of
the framers of the organic law and of the
people adopting it should be given effect. The
primary task in constitutional construction is
to ascertain and thereafter assure the
realization of the purpose of the framers and
of the people in the adoption of the
Constitution. It may also be safely assumed
that the people in ratifying the Constitution
were guided mainly by the explanation offered
by the framers. 41(Emphasis and italics
supplied)
Finally, ut magis valeat quam pereat. The Constitution is to be
interpreted as a whole. Thus, in Chiongbian v. De Leon,42 this Court,
through Chief Justice Manuel Moran declared:
. . . [T]he members of the Constitutional
Convention could not have dedicated a
provision of our Constitution merely for the
benefit of one person without considering that
it could also affect others. When they adopted
subsection 2, they permitted, if not willed, that
said provision should function to the full extent
of its substance and its terms, not by itself
alone, but in conjunction with all other
provisions of that great
document. 43(Emphasis and italics supplied)
Likewise, still in Civil Liberties Union v. Executive
Secretary, 44 this Court affirmed that:
It is a well-established rule in constitutional
construction that no one provision of the
Constitution is to be separated from all the
others, to be considered alone, but that all the
provisions bearing upon a particular subject
are to be brought into view and to be so
interpreted as to effectuate the great purposes
of the instrument. Sections bearing on a
particular subject should be considered and
interpreted together as to effectuate the
whole purpose of the Constitution and one
section is not to be allowed to defeat another,
if by any reasonable construction, the two can
be made to stand together.
In other words, the court must harmonize
them, if practicable, and must lean in favor of
a construction which will render every word
69
 operative, rather than one which may make
the words idle and nugatory. 45 (Emphasis
supplied)
If, however, the plain meaning of the word is not found to be clear,
resort to other aids is available. In still the same case of Civil Liberties
Union v. Executive Secretary, this Court expounded:
While it is permissible in this jurisdiction to
consult the debates and proceedings of the
constitutional convention in order to arrive at
the reason and purpose of the resulting
Constitution, resort thereto may be had only
when other guides fail as said proceedings are
powerless to vary the terms of the Constitution
when the meaning is clear. Debates in the
constitutional convention "are of value as
showing the views of the individual members,
and as indicating the reasons for their votes,
but they give us no light as to the views of the
large majority who did not talk, much less of
the mass of our fellow citizens whose votes at
the polls gave that instrument the force of
fundamental law. We think it safer to construe
the constitution from what appears upon its
face." The proper interpretation therefore
depends more on how it was understood by
the people adopting it than in the framers's
understanding thereof . 46 (Emphasis and
italics supplied)
It is in the context of the foregoing backdrop of constitutional
refinement and jurisprudential application of the power of judicial
review that respondents Speaker De Venecia, et al. and intervenor
Senator Pimentel raise the novel argument that the Constitution has
excluded impeachment proceedings from the coverage of judicial
review.
Briefly stated, it is the position of respondents Speaker De
Venecia, et al. that impeachment is a political action which cannot
assume a judicial character. Hence, any question, issue or incident
arising at any stage of the impeachment proceeding is beyond the
reach of judicial review. 47
For his part, intervenor Senator Pimentel contends that the
Senate's "sole power to try" impeachment cases 48 (1) entirely
excludes the application of judicial review over it; and (2) necessarily
includes the Senate’s power to determine constitutional questions
relative to impeachment proceedings. 49
In furthering their arguments on the proposition that impeachment
proceedings are outside the scope of judicial review, respondents
Speaker De Venecia, et al. and intervenor Senator Pimentel rely
heavily on American authorities, principally the majority opinion in
the case of Nixon v. United States. 50 Thus, they contend that the
exercise of judicial review over impeachment proceedings is
inappropriate since it runs counter to the framers' decision to
allocate to different fora the powers to try impeachments and to try
crimes; it disturbs the system of checks and balances, under which
impeachment is the only legislative check on the judiciary; and it
would create a lack of finality and difficulty in fashioning
relief. 51Respondents likewise point to deliberations on the US
Constitution to show the intent to isolate judicial power of review in
cases of impeachment.
Respondents' and intervenors' reliance upon American
jurisprudence, the American Constitution and American
authorities cannot be credited to support the proposition that the
Senate's "sole power to try and decide impeachment cases," as
provided for under Art. XI, Sec. 3(6) of the Constitution, is a textually
demonstrable constitutional commitment of all issues pertaining to
impeachment to the legislature, to the total exclusion of the power
of judicial review to check and restrain any grave abuse of the
impeachment process. Nor can it reasonably support the
interpretation that it necessarily confers upon the Senate the
inherently judicial power to determine constitutional questions
incident to impeachment proceedings. TEcAHI
Said American jurisprudence and authorities, much less the
American Constitution, are of dubious application for these are no
longer controlling within our jurisdiction and have only limited
persuasive merit insofar as Philippine constitutional law is
concerned. As held in the case of Garcia vs. COMELEC , 52 "[i]n
resolving constitutional disputes, [this Court] should not be beguiled
by foreign jurisprudence some of which are hardly applicable
because they have been dictated by different constitutional settings
and needs." 53 Indeed, although the Philippine Constitution can
trace its origins to that of the United States, their paths of
development have long since diverged. In the colorful words of
Father Bernas, "[w]e have cut the umbilical cord." DHacTC
The major difference between the judicial power of the Philippine
Supreme Court and that of the U.S. Supreme Court is that while the
power of judicial review is only impliedly granted to the U.S.
Supreme Court and is discretionary in nature, that granted to the
Philippine Supreme Court and lower courts, as expressly provided for
in the Constitution, is not just a power but also a duty, and it
was given an expanded definition to include the power to correct
any grave abuse of discretion on the part of any government branch
or instrumentality.
There are also glaring distinctions between the U.S. Constitution and
the Philippine Constitution with respect to the power of the House
of Representatives over impeachment proceedings. While the U.S.
Constitution bestows sole power of impeachment to the House of
Representatives without limitation, 54 our Constitution, though
vesting in the House of Representatives the exclusive power to
initiate impeachment cases, 55 provides for several limitations to
the exercise of such power as embodied in Section 3(2), (3), (4) and
(5), Article XI thereof. These limitations include the manner of filing,
required vote to impeach, and the one year bar on the impeachment
of one and the same official.
Respondents are also of the view that judicial review of
impeachments undermines their finality and may also lead to
conflicts between Congress and the judiciary. Thus, they call upon
this Court to exercise judicial statesmanship on the principle that
"whenever possible, the Court should defer to the judgment of the
people expressed legislatively, recognizing full well the perils of
judicial willfulness and pride." 56
But did not the people also express their will when they instituted
the above-mentioned safeguards in the Constitution? This shows
that the Constitution did not intend to leave the matter of
impeachment to the sole discretion of Congress. Instead, it provided
for certain well-defined limits, or in the language of Baker
v. Carr, 57 "judicially discoverable standards" for determining the
validity of the exercise of such discretion, through the power of
judicial review.
The cases of Romulo v. Yniguez 58 and Alejandrino
v. Quezon, 59 cited by respondents in support of the argument that
the impeachment power is beyond the scope of judicial review, are
not in point. These cases concern the denial of petitions for writs of
mandamus to compel the legislature to perform non-ministerial
acts, and do not concern the exercise of the power of judicial review.
There is indeed a plethora of cases in which this Court exercised the
power of judicial review over congressional action. Thus, in Santiago
v. Guingona, Jr., 60 this Court ruled that it is well within the power
and jurisdiction of the Court to inquire whether the Senate or its
officials committed a violation of the Constitution or grave abuse of
discretion in the exercise of their functions and prerogatives.
In Tañada v. Angara, 61 in seeking to nullify an act of the Philippine
Senate on the ground that it contravened the Constitution, it held
that the petition raises a justiciable controversy and that when an
action of the legislative branch is seriously alleged to have infringed
70
the Constitution, it becomes not only the right but in fact the duty of presentation of issues upon which the court depends for
the judiciary to settle the dispute. In Bondoc v. Pineda, 62 this Court illumination of difficult constitutional questions. 69
declared null and void a resolution of the House of Representatives
withdrawing the nomination, and rescinding the election, of a Intervenor Soriano, in praying for the dismissal of the petitions,
congressman as a member of the House Electoral Tribunal for being contends that petitioners do not have standing since only the Chief
violative of Section 17, Article VI of the Constitution. In Coseteng Justice has sustained and will sustain direct personal injury. Amicus
v. Mitra, 63 it held that the resolution of whether the House curiae former Justice Minister and Solicitor General Estelito
representation in the Commission on Appointments was based on Mendoza similarly contends.
proportional representation of the political parties as provided
in Section 18, Article VI of the Constitution is subject to judicial
Upon the other hand, the Solicitor General asserts that petitioners
review. In Daza v. Singson, 64 it held that the act of the House of
have standing since this Court had, in the past, accorded standing to
Representatives in removing the petitioner from the Commission on
taxpayers, voters, concerned citizens, legislators in cases involving
Appointments is subject to judicial review. In Tañada v. Cuenco, 65 it
paramount public interest 70and transcendental importance, 71 and
held that although under the Constitution, the legislative power is
that procedural matters are subordinate to the need to determine
vested exclusively in Congress, this does not detract from the power
whether or not the other branches of the government have kept
of the courts to pass upon the constitutionality of acts of Congress.
themselves within the limits of the Constitution and the laws and
In Angara v. Electoral Commission, 66 it ruled that confirmation by
that they have not abused the discretion given to them. 72 Amicus
the National Assembly of the election of any member, irrespective of
curiae Dean Raul Pangalangan of the U.P. College of Law is of the
whether his election is contested, is not essential before such
same opinion, citing transcendental importance and the well-
member-elect may discharge the duties and enjoy the privileges of a
entrenched rule exception that, when the real party in interest is
member of the National Assembly.
unable to vindicate his rights by seeking the same remedies, as in
the case of the Chief Justice who, for ethical reasons, cannot himself
Finally, there exists no constitutional basis for the contention that invoke the jurisdiction of this Court, the courts will grant petitioners
the exercise of judicial review over impeachment proceedings would standing.
upset the system of checks and balances. Verily, the Constitution is
to be interpreted as a whole and "one section is not to be allowed to
defeat another." 67 Both are integral components of the calibrated
system of independence and interdependence that insures that no
branch of government act beyond the powers assigned to it by the There is, however, a difference between the rule on real-party-in-
Constitution. ATHCDa interest and the rule on standing, for the former is a concept of civil
procedure 73 while the latter has constitutional underpinnings. 74 In
view of the arguments set forth regarding standing, it behooves the
Essential Requisites for Judicial Review
Court to reiterate the ruling in Kilosbayan, Inc.v. Morato 75 to clarify
what is meant by locus standi and to distinguish it from real party-in-
As clearly stated in Angara v. Electoral Commission, the courts' interest.
power of judicial review, like almost all powers conferred by the
Constitution, is subject to several limitations, namely: (1) an actual
The difference between the rule on standing
case or controversy calling for the exercise of judicial power; (2) the
and real party in interest has been noted by
person challenging the act must have "standing" to challenge; he
authorities thus: "It is important to note . . .
must have a personal and substantial interest in the case such that
that standing because of its constitutional and
he has sustained, or will sustain, direct injury as a result of its
public policy underpinnings, is very different
enforcement; (3) the question of constitutionality must be raised at
from questions relating to whether a
the earliest possible opportunity; and (4) the issue of
particular plaintiff is the real party in interest
constitutionality must be the very lis mota of the case.
or has capacity to sue. Although all three
requirements are directed towards ensuring
. . . Even then, this power of judicial review is that only certain parties can maintain an
limited to actual cases and controversies to be action, standing restrictions require a partial
exercised after full opportunity of argument consideration of the merits, as well as broader
by the parties, and limited further to the policy concerns relating to the proper role of
constitutional question raised or the very lis the judiciary in certain areas.
mota presented. Any attempt at abstraction
could only lead to dialectics and barren legal
Standing is a special concern in constitutional
questions and to sterile conclusions unrelated
law because in some cases suits are brought
to actualities. Narrowed as its function is in
not by parties who have been personally
this manner, the judiciary does not pass upon
injured by the operation of a law or by official
questions of wisdom, justice or expediency of
action taken, but by concerned citizens,
legislation. More than that, courts accord the
taxpayers or voters who actually sue in the
presumption of constitutionality to legislative
public interest. Hence the question in standing
enactments, not only because the legislature
is whether such parties have "alleged such a
is presumed to abide by the Constitution but
personal stake in the outcome of the
also because the judiciary in the
controversy as to assure that concrete
determination of actual cases and
adverseness which sharpens the presentation
controversies must reflect the wisdom and
of issues upon which the court so largely
justice of the people as expressed through
depends for illumination of difficult
their representatives in the executive and
constitutional questions." DTAcIa
legislative departments of the
government. 68 (Italics in the original)
xxx xxx xxx
Standing
On the other hand, the question as to "real
party in interest" is whether he is "the party
Locus standi or legal standing or has been defined as a personal and
who would be benefited or injured by the
substantial interest in the case such that the party has sustained or
judgment, or the 'party entitled to the avails
will sustain direct injury as a result of the governmental act that is
of the suit.'" 76 (Citations omitted)
being challenged. The gist of the question of standing is whether a
party alleges such personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the
71
While rights personal to the Chief Justice may have been injured by
the alleged unconstitutional acts of the House of Representatives,
none of the petitioners asserts a violation of the personal rights of
the Chief Justice. On the contrary, they invariably invoke the
vindication of their own rights — as taxpayers; members of
Congress; citizens, individually or in a class suit; and members of the
bar and of the legal profession — which were supposedly violated by
the alleged unconstitutional acts of the House of Representatives.
In a long line of cases, however, concerned citizens, taxpayers and
legislators when specific requirements have been met have been
given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the
constitutionality of a statute must be direct and personal. He must
be able to show, not only that the law or any government act is
invalid, but also that he sustained or is in imminent danger of
sustaining some direct injury as a result of its enforcement, and not
merely that he suffers thereby in some indefinite way. It must
appear that the person complaining has been or is about to be
denied some right or privilege to which he is lawfully entitled or that
he is about to be subjected to some burdens or penalties by reason
of the statute or act complained of. 77 In fine, when the proceeding
involves the assertion of a public right, 78 the mere fact that he is a
citizen satisfies the requirement of personal interest.
In the case of a taxpayer, he is allowed to sue where there is a claim
that public funds are illegally disbursed, or that public money is
being deflected to any improper purpose, or that there is a wastage
of public funds through the enforcement of an invalid or
unconstitutional law. 79 Before he can invoke the power of judicial
review, however, he must specifically prove that he has sufficient
interest in preventing the illegal expenditure of money raised by
taxation and that he would sustain a direct injury as a result of the
enforcement of the questioned statute or contract. It is not
sufficient that he has merely a general interest common to all
members of the public. 80
At all events, courts are vested with discretion as to whether or not
a taxpayer's suit should be entertained. 81 This Court opted to grant
standing to most of the petitioners, given their allegation that any
impending transmittal to the Senate of the Articles of Impeachment
and the ensuing trial of the Chief Justice will necessarily involve the
expenditure of public funds.
As for a legislator, he is allowed to sue to question the validity of any
official action which he claims infringes his prerogatives as a
legislator. 82 Indeed, a member of the House of Representatives has
standing to maintain inviolate the prerogatives, powers and
privileges vested by the Constitution in his office. 83
While an associationhas legal personality to represent its
members, 84 especially when it is composed of substantial taxpayers
and the outcome will affect their vital interests, 85 the mere
invocation by the Integrated Bar of the Philippinesor any member of
the legal profession of the duty to preserve the rule of law and
nothing more, although undoubtedly true, does not suffice to clothe
it with standing. Its interest is too general. It is shared by other
groups and the whole citizenry. However, a reading of the petition
shows that it has advanced constitutional issues which deserve the
attention of this Court in view of their seriousness, novelty and
weight as precedents. 86 It, therefore, behooves this Court to relax
the rules on standing and to resolve the issues presented by it.
In the same vein, when dealing with class suits filed in behalf of all
citizens, persons intervening must be sufficiently numerous to fully
protect the interests of all concerned 87 to enable the court to deal
properly with all interests involved in the suit, 88 for a judgment in a
class suit, whether favorable or unfavorable to the class, is, under
the res judicataprinciple, binding on all members of the class
whether or not they were before the court. 89 Where it clearly
appears that not all interests can be sufficiently represented as
shown by the divergent issues raised in the numerous petitions
before this Court, G.R. No. 160365 as a class suit ought to fail. Since
petitioners additionally allege standing as citizens and taxpayers,
however, their petition will stand.
The Philippine Bar Association, in G.R. No. 160403, invokes the sole
ground of transcendental importance, while Atty. Dioscoro U.
Vallejos, in G.R. No. 160397, is mum on his standing.
There being no doctrinal definition of transcendental importance,
the following determinants formulated by former Supreme Court
Justice Florentino P. Feliciano are instructive: (1) the character of the
funds or other assets involved in the case; (2) the presence of a clear
case of disregard of a constitutional or statutory prohibition by the
public respondent agency or instrumentality of the government; and
(3) the lack of any other party with a more direct and specific
interest in raising the questions being raised. 90 Applying these
determinants, this Court is satisfied that the issues raised herein are
indeed of transcendental importance.
In not a few cases, this Court has in fact adopted a liberal attitude on
the locus standi of a petitioner where the petitioner is able to craft
an issue of transcendental significance to the people, as when the
issues raised are of paramount importance to the public. 91 Such
liberality does not, however, mean that the requirement that a party
should have an interest in the matter is totally eliminated. A party
must, at the very least, still plead the existence of such interest, it
not being one of which courts can take judicial notice. In petitioner
Vallejos' case, he failed to allege any interest in the case. He does
not thus have standing.
With respect to the motions for intervention, Rule 19, Section 2 of
the Rules of Court requires an intervenor to possess a legal interest
in the matter in litigation, or in the success of either of the parties,
or an interest against both, or is so situated as to be adversely
affected by a distribution or other disposition of property in the
custody of the court or of an officer thereof. While intervention is
not a matter of right, it may be permitted by the courts when the
applicant shows facts which satisfy the requirements of the law
authorizing intervention. 92
In Intervenors Attorneys Romulo Macalintal and Pete Quirino
Quadra’s case, they seek to join petitioners Candelaria, et al. in G.R.
No. 160262. Since, save for one additional issue, they raise the same
issues and the same standing, and no objection on the part of
petitioners Candelaria, et al. has been interposed, this Court as
earlier stated, granted their Motion for Leave of Court to Intervene
and Petition-in-Intervention.
Nagmamalasakit na mga Manananggol ng mga Manggagawang
Pilipino, Inc., et al. sought to join petitioner Francisco in G.R.
No. 160261. Invoking their right as citizens to intervene, alleging that
"they will suffer if this insidious scheme of the minority members of
the House of Representatives is successful," this Court found the
requisites for intervention had been complied with.
Alleging that the issues raised in the petitions in G.R. Nos. 160261,
160262, 160263, 160277, 160292, 160295, and 160310 are of
transcendental importance, World War II Veterans Legionnaires of
the Philippines, Inc. filed a "Petition-in-Intervention with Leave to
Intervene" to raise the additional issue of whether or not the second
impeachment complaint against the Chief Justice is valid and based
on any of the grounds prescribed by the Constitution.
Finding that Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc., et al. and World War II Veterans
Legionnaires of the Philippines, Inc. possess a legal interest in the
matter in litigation the respective motions to intervene were
granted.
Senator Aquilino Pimentel, on the other hand, sought to intervene
for the limited purpose of making of record and arguing a point of
view that differs with Senate President Drilon's. He alleges that
submitting to this Court's jurisdiction as the Senate President does
72
will undermine the independence of the Senate which will sit as an
impeachment court once the Articles of Impeachment are
transmitted to it from the House of Representatives. Clearly, Senator
Pimentel possesses a legal interest in the matter in litigation, he
being a member of Congress against which the herein petitions are
directed. For this reason, and to fully ventilate all substantial issues
relating to the matter at hand, his Motion to Intervene was granted
and he was, as earlier stated, allowed to argue. IEcDCa
Lastly, as to Jaime N. Soriano's motion to intervene, the same must
be denied for, while he asserts an interest as a taxpayer, he failed to
meet the standing requirement for bringing taxpayer's suits as set
forth in Dumlao v. COMELEC, 93to wit:
. . . While, concededly, the elections to be held
involve the expenditure of public moneys,
nowhere in their Petition do said petitioners
allege that their tax money is "being extracted
and spent in violation of specific constitutional
protection against abuses of legislative
power," or that there is a misapplication of
such funds by respondent COMELEC, or that
public money is being deflected to any
improper purpose. Neither do petitioners seek
to restrain respondent from wasting public
funds through the enforcement of an invalid
or unconstitutional law. 94 (Citations omitted)
In praying for the dismissal of the petitions, Soriano failed even
to allege that the act of petitioners will result in illegal
disbursement of public funds or in public money being
deflected to any improper purpose. Additionally, his mere
interest as a member of the Bar does not suffice to clothe him
with standing.
Ripeness and Prematurity
In Tan v. Macapagal, 95 this Court, through Chief Justice Fernando,
held that for a case to be considered ripe for adjudication, "it is a
prerequisite that something had by then been accomplished or
performed by either branch before a court may come into the
picture." 96 Only then may the courts pass on the validity of what
was done, if and when the matter is challenged in an appropriate
legal proceeding.
The instant petitions raise in the main the issue of the validity of the
filing of the second impeachment complaint against the Chief Justice
in accordance with the House Impeachment Rules adopted by the
12th Congress, the constitutionality of which is questioned. The
questioned acts having been carried out, i.e., the second
impeachment complaint had been filed with the House of
Representatives and the 2001 Rules have already been already
promulgated and enforced, the prerequisite that the alleged
unconstitutional act should be accomplished and performed before
suit, as Tan v.Macapagal holds, has been complied with.
Related to the issue of ripeness is the question of whether the
instant petitions are premature. Amicus curiae former Senate
President Jovito R. Salonga opines that there may be no urgent need
for this Court to render a decision at this time, it being the final
arbiter on questions of constitutionality anyway. He thus
recommends that all remedies in the House and Senate should first
be exhausted.
Taking a similar stand is Dean Raul Pangalangan of the U.P. College
of Law who suggests to this Court to take judicial notice of on-going
attempts to encourage signatories to the second impeachment
complaint to withdraw their signatures and opines that the House
Impeachment Rules provide for an opportunity for members to raise
constitutional questions themselves when the Articles of
Impeachment are presented on a motion to transmit to the same to
the Senate. The dean maintains that even assuming that the Articles
are transmitted to the Senate, the Chief Justice can raise the issue of
their constitutional infirmity by way of a motion to dismiss.
The dean's position does not persuade. First, the withdrawal by the
Representatives of their signatures would not, by itself, cure the
House Impeachment Rules of their constitutional infirmity. Neither
would such a withdrawal, by itself, obliterate the questioned second
impeachment complaint since it would only place it under the ambit
of Sections 3(2) and (3) of Article XI of the Constitution 97 and,
therefore, petitioners would continue to suffer their injuries.
Second and most importantly, the futility of seeking remedies from
either or both Houses of Congress before coming to this Court is
shown by the fact that, as previously discussed, neither the House of
Representatives nor the Senate is clothed with the power to rule
with definitiveness on the issue of constitutionality, whether
concerning impeachment proceedings or otherwise, as said power is
exclusively vested in the judiciary by the earlier quoted Section I,
Article VIII of the Constitution. Remedy cannot be sought from a
body which is bereft of power to grant it.
Justiciability
In the leading case of Tañada v. Cuenco, 98 Chief Justice Roberto
Concepcion defined the term "political question," viz:
[T]he term "political question" connotes, in
legal parlance, what it means in ordinary
parlance, namely, a question of policy. In
other words, in the language of Corpus Juris
Secundum, it refers to "those questions which,
under the Constitution, are to be decided by
the people in their sovereign capacity, or in
regard to which full discretionary authority has
been delegated to the Legislature or executive
branch of the Government." It is concerned
with issues dependent upon the wisdom, not
legality, of a particular measure. 99(Italics in
the original)
Prior to the 1973 Constitution, without consistency and seemingly
without any rhyme or reason, this Court vacillated on its stance of
taking cognizance of cases which involved political questions. In
some cases, this Court hid behind the cover of the political question
doctrine and refused to exercise its power of judicial review. 100 In
other cases, however, despite the seeming political nature of the
therein issues involved, this Court assumed jurisdiction whenever it
found constitutionally imposed limits on powers or functions
conferred upon political bodies. 101 Even in the landmark case
ofJavellana v. Executive Secretary 102 which raised the issue of
whether the 1973 Constitution was ratified, hence, in force, this
Court shunted the political question doctrine and took cognizance
thereof. Ratification by the people of a Constitution is a political
question, it being a question decided by the people in their
sovereign capacity.
The frequency with which this Court invoked the political question
doctrine to refuse to take jurisdiction over certain cases during the
Marcos regime motivated Chief Justice Concepcion, when he
became a Constitutional Commissioner, to clarify this Court's power
of judicial review and its application on issues involving political
questions, viz:
MR. CONCEPCION. Thank you, Mr. Presiding
Officer.
I will speak on the judiciary. Practically,
everybody has made, I suppose, the usual
comment that the judiciary is the weakest
among the three major branches of the
service. Since the legislature holds the purse
and the executive the sword, the judiciary has
nothing with which to enforce its decisions or
commands except the power of reason and
appeal to conscience which, after all, reflects
the will of God, and is the most powerful of all
other powers without exception. . . . And so,
73
with the body’s indulgence, I will proceed to
read the provisions drafted by the Committee
on the Judiciary.
The first section starts with a sentence copied
from former Constitutions. It says:
The judicial power shall be vested in
one Supreme Court and in such
lower courts as may be established
by law.
I suppose nobody can question it.
The next provision is new in our constitutional
law. I will read it first and explain.
Judicial power includes the duty of
courts of justice to settle actual
controversies involving rights which
are legally demandable and
enforceable and to determine
whether or not there has been a
grave abuse of discretion amounting
to lack or excess of jurisdiction on
the part or instrumentality of the
government.
Fellow Members of this Commission, this is
actually a product of our experience during
martial law. As a matter of fact, it has some
antecedents in the past, but the role of the
judiciary during the deposed regime was
marred considerably by the circumstance that
in a number of cases against the government,
which then had no legal defense at all, the
solicitor general set up the defense of political
questions and got away with it. As a
consequence, certain principles concerning
particularly the writ of habeas corpus, that is,
the authority of courts to order the release of
political detainees, and other matters related
to the operation and effect of martial law
failed because the government set up the
defense of political question. And the Supreme
Court said: "Well, since it is political, we have
no authority to pass upon it." The Committee
on the Judiciary feels that this was not a
proper solution of the questions involved. It did
not merely request an encroachment upon the
rights of the people, but it, in effect,
encouraged further violations thereof during
the martial law regime. I am sure the
members of the Bar are familiar with this
situation. But for the benefit of the Members
of the Commission who are not lawyers, allow
me to explain. I will start with a decision of the
Supreme Court in 1973 on the case
ofJavellana vs. the Secretary of Justice, if I am
not mistaken. Martial law was announced on
September 22, although the proclamation was
dated September 21. The obvious reason for
the delay in its publication was that the
administration had apprehended and detained
prominent newsmen on September 21. So
that when martial law was announced on
September 22, the media hardly published
anything about it. In fact, the media could not
publish any story not only because our main
writers were already incarcerated, but also
because those who succeeded them in their
jobs were under mortal threat of being the
object of wrath of the ruling party. The 1971
Constitutional Convention had begun on June
1, 1971 and by September 21 or 22 had not
finished the Constitution; it had barely agreed
in the fundamentals of the Constitution. I
forgot to say that upon the proclamation of
martial law, some delegates to that 1971
Constitutional Convention, dozens of them,
were picked up. One of them was our very
own colleague, Commissioner Calderon. So,
the unfinished draft of the Constitution was
taken over by representatives of Malacañang.
In 17 days, they finished what the delegates to
the 1971 Constitutional Convention had been
unable to accomplish for about 14 months.
The draft of the 1973 Constitution was
presented to the President around December
1, 1972, whereupon the President issued a
decree calling a plebiscite which suspended
the operation of some provisions in the
martial law decree which prohibited
discussions, much less public discussions of
certain matters of public concern. The
purpose was presumably to allow a free
discussion on the draft of the Constitution on
which a plebiscite was to be held sometime in
January 1973. If I may use a word famous by
our colleague, Commissioner Ople, during the
interregnum, however, the draft of the
Constitution was analyzed and criticized with
such a telling effect that Malacañang felt the
danger of its approval. So, the President
suspended indefinitely the holding of the
plebiscite and announced that he would
consult the people in a referendum to be held
from January 10 to January 15. But the
questions to be submitted in the referendum
were not announced until the eve of its
scheduled beginning, under the supposed
supervision not of the Commission on
Elections, but of what was then designated as
"citizens assemblies or barangays." Thus the
barangays came into existence. The questions
to be propounded were released with
proposed answers thereto, suggesting that it
was unnecessary to hold a plebiscite because
the answers given in the referendum should
be regarded as the votes cast in the plebiscite.
Thereupon, a motion was filed with the
Supreme Court praying that the holding of the
referendum be suspended. When the motion
was being heard before the Supreme Court,
the Minister of Justice delivered to the Court a
proclamation of the President declaring that
the new Constitution was already in force
because the overwhelming majority of the
votes cast in the referendum favored the
Constitution. Immediately after the departure
of the Minister of Justice, I proceeded to the
session room where the case was being heard.
I then informed the Court and the parties the
presidential proclamation declaring that the
1973 Constitution had been ratified by the
people and is now in force.
A number of other cases were filed to declare
the presidential proclamation null and
void. The main defense put up by the
government was that the issue was a political
question and that the court had no jurisdiction
to entertain the case.
xxx xxx xxx
The government said that in a referendum
held from January 10 to January 15, the vast
74
 majority ratified the draft of the Constitution.
Note that all members of the Supreme Court
were residents of Manila, but none of them
had been notified of any referendum in their
respective places of residence, much less did
they participate in the alleged referendum.
None of them saw any referendum
proceeding.
In the Philippines, even local gossips spread
like wild fire. So, a majority of the members of
the Court felt that there had been no
referendum.
Second, a referendum cannot substitute for a
plebiscite. There is a big difference between a
referendum and a plebiscite. But another
group of justices upheld the defense that the
issue was a political question. Whereupon,
they dismissed the case. This is not the only
major case in which the plea of "political
question" was set up.There have been a
number of other cases in the past.
. . . The defense of the political question was
rejected because the issue was clearly
justiciable.
xxx xxx xxx
. . . When your Committee on the Judiciary
began to perform its functions, it faced the
following questions: What is judicial power?
What is a political question?
The Supreme Court, like all other courts, has
one main function: to settle actual
controversies involving conflicts of rights
which are demandable and enforceable. There
are rights which are guaranteed by law but
cannot be enforced by a judiciary party. In a
decided case, a husband complained that his
wife was unwilling to perform her duties as a
wife. The Court said: "We can tell your wife
what her duties as such are and that she is
bound to comply with them, but we cannot
force her physically to discharge her main
marital duty to her husband. There are some
rights guaranteed by law, but they are so
personal that to enforce them by actual
compulsion would be highly derogatory to
human dignity."
This is why the first part of the second
paragraph of Section I provides that:
Judicial power includes the duty of
courts to settle actual controversies
involving rights which are legally
demandable or enforceable . . .
The courts, therefore, cannot entertain, much
less decide, hypothetical questions. In a
presidential system of government, the
Supreme Court has, also another important
function. The powers of government are
generally considered divided into three
branches: the Legislative, the Executive and
the Judiciary. Each one is supreme within its
own sphere and independent of the
others. Because of that supremacy power to
determine whether a given law is valid or not
is vested in courts of justice.
Briefly stated, courts of justice determine the
limits of power of the agencies and offices of
the government as well as those of its
officers. In other words, the judiciary is the
final arbiter on the question whether or not a
branch of government or any of its officials has
acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute
an abuse of discretion amounting to excess of
jurisdiction or lack of jurisdiction.This is not
only a judicial power but a duty to pass
judgment on matters of this nature.
This is the background of paragraph 2 of
Section 1, which means that the courts cannot
hereafter evade the duty to settle matters of
this nature, by claiming that such matters
constitute a political question.
I have made these extended remarks to the
end that the Commissioners may have an
initial food for thought on the subject of the
judiciary. 103 (Italics in the original; emphasis
supplied)
During the deliberations of the Constitutional Commission, Chief
Justice Concepcion further clarified the concept of judicial power,
thus:
MR. NOLLEDO. The Gentleman used the term
"judicial power" but judicial power is not
vested in the Supreme Court alone but also in
other lower courts as may be created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an
example?
MR. CONCEPCION. No, I know this is not. The
Gentleman seems to identify political
questions with jurisdictional questions. But
there is a difference.
MR. NOLLEDO. Because of the expression
"judicial power"?
MR. CONCEPCION. No. Judicial power, as I
said, refers to ordinary cases but where there
is a question as to whether the government
had authority or had abused its authority to
the extent of lacking jurisdiction or excess of
jurisdiction, that is not a political
question. Therefore, the court has the duty to
decide.
xxx xxx xxx
FR. BERNAS. Ultimately, therefore, it will
always have to be decided by the Supreme
Court according to the new numerical need
for votes.
On another point, is it the intention of Section
1 to do away with the political question
doctrine?
MR. CONCEPCION. No.
FR. BERNAS. It is not.
75
 MR. CONCEPCION. No, because whenever
there is an abuse of discretion, amounting to a
lack of jurisdiction . . .
FR. BERNAS. So, I am satisfied with the answer
that it is not intended to do away with the
political question doctrine.
MR. CONCEPCION. No, certainly not.
When this provision was originally drafted, it
sought to define what is judicial power. But
the Gentleman will notice it says, "judicial
power includes" and the reason being that the
definition that we might make may not cover
all possible areas.
FR. BERNAS. So, this is not an attempt to solve
the problems arising from the political
question doctrine.
MR. CONCEPCION. It definitely does not
eliminate the fact that truly political questions
are beyond the pale of judicial
power. 104 (Emphasis supplied)
From the foregoing record of the proceedings of the 1986
Constitutional Commission, it is clear that judicial power is not only a
power; it is also a duty, a duty which cannot be abdicated by the
mere specter of this creature called the political question doctrine.
Chief Justice Concepcion hastened to clarify, however, that Section
1, Article VIII was not intended to do away with "truly political
questions." From this clarification it is gathered that there are two
species of political questions: (1) "truly political questions" and (2)
those which "are not truly political questions."
Truly political questions are thus beyond judicial review, the reason
being that respect for the doctrine of separation of powers must be
maintained. On the other hand, by virtue of Section 1, Article VIII of
the Constitution, courts can review questions which are not truly
political in nature.
As pointed out by amicus curiae former dean Pacifico Agabin of the
UP College of Law, this Court has in fact in a number of cases taken
jurisdiction over questions which are not truly political following the
effectivity of the present Constitution.
In Marcos v. Manglapus, 105 this Court, speaking through Madame
Justice Irene Cortes, held:
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. 106 . . .
In Bengzon v. Senate Blue Ribbon Committee, 107 through Justice
Teodoro Padilla, this Court declared:
The "allocation of constitutional boundaries"
is a task that this Court must perform under
the Constitution. Moreover, as held in a recent
case, "(t)he political question doctrine neither
interposes an obstacle to judicial
determination of the rival claims. The
jurisdiction to delimit constitutional
boundaries has been given to this Court. It
cannot abdicate that obligation mandated by
the 1987 Constitution, although said provision
by no means does away with the applicability
of the principle in appropriate
cases." 108 (Emphasis and italics supplied)
And in Daza v. Singson, 109 speaking through Justice Isagani Cruz,
this Court ruled:
In the case now before us, the jurisdictional
objection becomes even less tenable and
decisive. The reason is that, even if we were to
assume that the issue presented before us was
political in nature, we would still not be
precluded from resolving it under the
expanded jurisdiction conferred upon us that
now covers, in proper cases, even the political
question. 110 . . . (Emphasis and italics
supplied.)
Section 1, Article VIII, of the Court does not define what are
justiciable political questions and non-justiciable political questions,
however. Identification of these two species of political questions
may be problematic. There has been no clear standard. The
American case of Baker v. Carr 111 attempts to provide some:
. . . Prominent on the surface of any case held
to involve a political question is found
a textually demonstrable constitutional
commitment of the issue to a coordinate
political department; or a lack of judicially
discoverable and manageable standards for
resolving it; or the impossibility of deciding
without an initial policy determination of a
kind clearly for non-judicial discretion; or
the impossibility of a court’s undertaking
independent resolution without expressing
lack of the respect due coordinate branches of
government; or anunusual need for
questioning adherence to a political decision
already made; or the potentiality of
embarrassment from multifarious
pronouncements by various departments on
one question. 112 (emphasis supplied)
Of these standards, the more reliable have been the first three:
(1) a textually demonstrable constitutional commitment of the
issue to a coordinate political department; (2) the lack of
judicially discoverable and manageable standards for resolving
it; and (3) the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion. These
standards are not separate and distinct concepts but are
interrelated to each in that the presence of one strengthens the
conclusion that the others are also present.
The problem in applying the foregoing standards is that the
American concept of judicial review is radically different from our
current concept, for Section 1, Article VIII of the Constitution
provides our courts with far less discretion in determining whether
they should pass upon a constitutional issue.
In our jurisdiction, the determination of a truly political question
from a non-justiciable political question lies in the answer to the
question of whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies. If there are,
then our courts are duty-bound to examine whether the branch or
instrumentality of the government properly acted within such limits.
This Court shall thus now apply this standard to the present
controversy.
These petitions raise five substantial issues:
I.Whether the offenses alleged in the Second
impeachment complaint constitute
valid impeachable offenses under
the Constitution.
II.Whether the second impeachment
complaint was filed in accordance
76
 with Section 3(4), Article XI of the
Constitution.
III.Whether the legislative inquiry by the
House Committee on Justice into the
Judicial Development Fund is an
unconstitutional infringement of the
constitutionally mandated fiscal
autonomy of the judiciary.
IV.Whether Sections 15 and 16 of Rule V of
the Rules on Impeachment adopted
by the 12th Congress are
unconstitutional for violating the
provisions of Section 3, Article XI of
the Constitution.
V.Whether the second impeachment
complaint is barred under Section
3(5) of Article XI of the Constitution.
The first issue goes into the merits of the second impeachment
complaint over which this Court has no jurisdiction. More
importantly, any discussion of this issue would require this Court to
make a determination of what constitutes an impeachable offense.
Such a determination is a purely political question which the
Constitution has left to the sound discretion of the legislation. Such
an intent is clear from the deliberations of the Constitutional
Commission. 113
Although Section 2 of Article XI of the Constitution enumerates six
grounds for impeachment, two of these, namely, other high crimes
and betrayal of public trust, elude a precise definition. In fact, an
examination of the records of the 1986 Constitutional Commission
shows that the framers could find no better way to approximate the
boundaries of betrayal of public trust and other high crimes than by
alluding to both positive and negative examples of both, without
arriving at their clear cut definition or even a standard
therefor. 114 Clearly, the issue calls upon this court to decide a non-
justiciable political question which is beyond the scope of its judicial
power under Section 1, Article VIII.
Lis Mota
It is a well-settled maxim of adjudication that an issue assailing the
constitutionality of a governmental act should be avoided whenever
possible. Thus, in the case of Sotto v. Commission on
Elections, 115 this Court held:
. . . It is a well-established rule that a court
should not pass upon a constitutional question
and decide a law to be unconstitutional or
invalid, unless such question is raised by the
parties and that when it is raised, if the record
also presents some other ground upon which
the court may rest its judgment, that course
will be adopted and the constitutional
question will be left for consideration until a
case arises in which a decision upon such
question will be unavoidable. 116 [Emphasis
and italics supplied]
The same principle was applied in Luz Farms v. Secretary of
Agrarian Reform, 117 where this Court invalidatedSections 13
and 32 of Republic Act No. 6657 for being confiscatory and
violative of due process, to wit:
It has been established that this Court will
assume jurisdiction over a constitutional
question only if it is shown that the essential
requisites of a judicial inquiry into such a
question are first satisfied. Thus, there must
be an actual case or controversy involving a
conflict of legal rights susceptible of judicial
determination, the constitutional question
must have been opportunely raised by the
proper party, and the resolution of the
question is unavoidably necessary to the
decision of the case itself . 118 [Emphasis
supplied]
Succinctly put, courts will not touch the issue of constitutionality
unless it is truly unavoidable and is the very lis mota orcrux of the
controversy.
As noted earlier, the instant consolidated petitions, while all seeking
the invalidity of the second impeachment complaint, collectively
raise several constitutional issues upon which the outcome of this
controversy could possibly be made to rest. In determining whether
one, some or all of the remaining substantial issues should be passed
upon, this Court is guided by the related cannon of adjudication that
"the court should not form a rule of constitutional law broader than
is required by the precise facts to which it is applied." 119
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that,
among other reasons, the second impeachment complaint is invalid
since it directly resulted from a Resolution 120 calling for a
legislative inquiry into the JDF, which Resolution and legislative
inquiry petitioners claim to likewise be unconstitutional for being:
(a) a violation of the rules and jurisprudence on investigations in aid
of legislation; (b) an open breach of the doctrine of separation of
powers; (c) a violation of the constitutionally mandated fiscal
autonomy of the judiciary; and (d) an assault on the independence
of the judiciary. 121
Without going into the merits of petitioners Alfonso, et al.'s claims,
it is the studied opinion of this Court that the issue of the
constitutionality of the said Resolution and resulting legislative
inquiry is too far removed from the issue of the validity of the
second impeachment complaint. Moreover, the resolution of said
issue would, in the Court's opinion, require it to form a rule of
constitutional law touching on the separate and distinct matter of
legislative inquiries in general, which would thus be broader than is
required by the facts of these consolidated cases. This opinion is
further strengthened by the fact that said petitioners have raised
other grounds in support of their petition which would not be
adversely affected by the Court's ruling.
En passant, this Court notes that a standard for the conduct of
legislative inquiries has already been enunciated by this Court
in Bengzon, Jr. v. Senate Blue Ribbon Committee, 122 viz:
The 1987 Constitution expressly recognizes
the power of both houses of Congress to
conduct inquiries in aid of legislation. Thus,
Section 21, Article VI thereof provides:
The Senate or the House of
Representatives or any of its
respective committees may conduct
inquiries in aid of legislation in
accordance with its duly published
rules of procedure. The rights of
persons appearing in or affected by
such inquiries shall be respected.
The power of both houses of Congress to
conduct inquiries in aid of legislation is not,
therefore absolute or unlimited. Its exercise is
circumscribed by the afore-quoted provision
of the Constitution. Thus, as provided therein,
the investigation must be "in aid of legislation
in accordance with its duly published rules of
procedure" and that "the rights of persons
appearing in or affected by such inquiries shall
be respected." It follows then that the rights
of persons under the Bill of Rights must be
respected, including the right to due process
77
 and the right not be compelled to testify
against one's self. 123
In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete
Quirino Quadra, while joining the original petition of petitioners
Candelaria, et al., introduce the new argument that since the second
impeachment complaint was verified and filed only by
Representatives Gilberto Teodoro, Jr. and Felix William Fuentebella,
the same does not fall under the provision of Section 3 (4), Article XI
of the Constitution which reads:
Section 3(4) In case the verified complaint or
resolution of impeachment is filed by at least
one-third of all the Members of the House, the
same shall constitute the Articles of
Impeachment, and trial by the Senate shall
forthwith proceed.
They assert that while at least 81 members of the House of
Representatives signed a Resolution of Endorsement/Impeachment,
the same did not satisfy the requisites for the application of the
afore-mentioned section in that the "verified complaint or resolution
of impeachment" was not filed "by at least one-third of all the
Members of the House." With the exception of Representatives
Teodoro and Fuentebella, the signatories to said Resolution are
alleged to have verified the same merely as a "Resolution of
Endorsement." Intervenors point to the "Verification" of the
Resolution of Endorsement which states that:
"We are the proponents/sponsors of the
Resolution of Endorsement of the
abovementioned Complaint of
Representatives Gilberto Teodoro and Felix
William B. Fuentebella . . .” 124
Intervenors Macalintal and Quadra further claim that what the
Constitution requires in order for said second impeachment
complaint to automatically become the Articles of Impeachment and
for trial in the Senate to begin "forthwith," is that
the verified complaint be "filed," not merely endorsed, by at least
one-third of the Members of the House of Representatives. Not
having complied with this requirement, they concede that the
second impeachment complaint should have been calendared and
referred to the House Committee on Justice under Section 3(2),
Article XI of the Constitution, viz:
Section 3(2) A verified complaint for
impeachment may be filed by any Member of
the House of Representatives or by any citizen
upon a resolution of endorsement by any
Member thereof, which shall be included in
the Order of Business within ten session days,
and referred to the proper Committee within
three session days thereafter. The Committee,
after hearing, and by a majority vote of all its
Members, shall submit its report to the House
within sixty session days from such referral,
together with the corresponding resolution.
The resolution shall be calendared for
consideration by the House within ten session
days from receipt thereof.
Intervenors' foregoing position is echoed by Justice Maambong who
opined that for Section 3 (4), Article XI of the Constitution to apply,
there should be 76 or more representatives who signed and
verified the second impeachment complaint as complainants, signed
and verified the signatories to a resolution of impeachment. Justice
Maambong likewise asserted that the Resolution of
Endorsement/Impeachment signed by at least one-third of the
members of the House of Representatives as endorsers is not the
resolution of impeachment contemplated by the Constitution, such
resolution of endorsement being necessary only from at least one
Member whenever a citizen files a verified impeachment complaint.
While the foregoing issue, as argued by intervenors Macalintal and
Quadra, does indeed limit the scope of the constitutional issues to
the provisions on impeachment, more compelling considerations
militate against its adoption as the lis mota or crux of the present
controversy. Chief among this is the fact that only Attorneys
Macalintal and Quadra, intervenors in G.R. No. 160262, have raised
this issue as a ground for invalidating the second impeachment
complaint. Thus, to adopt this additional ground as the basis for
deciding the instant consolidated petitions would not only render for
naught the efforts of the original petitioners in G.R. No. 160262, but
the efforts presented by the other petitioners as well.
Again, the decision to discard the resolution of this issue as
unnecessary for the determination of the instant cases is made
easier by the fact that said intervenors Macalintal and Quadra have
joined in the petition of Candelaria, et al., adopting the latter's
arguments and issues as their own. Consequently, they are not
unduly prejudiced by this Court's decision.
In sum, this Court holds that the two remaining issues, inextricably
linked as they are, constitute the very lis mota of the instant
controversy: (1) whether Sections 15 and 16 of Rule V of the House
Impeachment Rules adopted by the 12th Congress are
unconstitutional for violating the provisions of Section 3, Article XI of
the Constitution; and (2) whether, as a result thereof, the second
impeachment complaint is barred under Section 3(5) of Article XI of
the Constitution.
Judicial Restraint
Senator Pimentel urges this Court to exercise judicial restraint on the
ground that the Senate, sitting as an impeachment court, has the
sole power to try and decide all cases of impeachment. Again, this
Court reiterates that the power of judicial review includes the power
of review over justiciable issues in impeachment proceedings.
On the other hand, respondents Speaker De Venecia et al. argue
that "[t]here is a moral compulsion for the Court to not assume
jurisdiction over the impeachment because all the Members thereof
are subject to impeachment." 125 But this argument is very much
like saying the Legislature has a moral compulsion not to pass laws
with penalty clauses because Members of the House of
Representatives are subject to them.
The exercise of judicial restraint over justiciable issues is not an
option before this Court. Adjudication may not be declined, because
this Court is not legally disqualified. Nor can jurisdiction be
renounced as there is no other tribunal to which the controversy
may be referred." 126 Otherwise, this Court would be shirking from
its duty vested under Art. VIII, Sec. 1(2) of the Constitution. More
than being clothed with authority thus, this Court is duty-bound to
take cognizance of the instant petitions. 127 In the august words
of amicus curiae Father Bernas, "jurisdiction is not just a power; it is
a solemn duty which may not be renounced. To renounce it, even if
it is vexatious, would be a dereliction of duty."
Even in cases where it is an interested party, the Court under our
system of government cannot inhibit itself and must rule upon the
challenge because no other office has the authority to do so. 128 On
the occasion that this Court had been an interested party to the
controversy before it, it has acted upon the matter "not with
officiousness but in the discharge of an unavoidable duty and, as
always, with detachment and fairness." 129 After all, "by [his]
appointment to the office, the public has laid on [a member of the
judiciary] their confidence that [he] is mentally and morally fit to
pass upon the merits of their varied contentions. For this reason,
they expect [him] to be fearless in [his] pursuit to render justice, to
be unafraid to displease any person, interest or power and to be
equipped with a moral fiber strong enough to resist the temptations
lurking in [his] office." 130
78
The duty to exercise the power of adjudication regardless of interest
had already been settled in the case of Abbas v.Senate Electoral
Tribunal. 131 In that case, the petitioners filed with the respondent
Senate Electoral Tribunal a Motion for Disqualification or Inhibition
of the Senators-Members thereof from the hearing and resolution of
SET Case No. 002-87 on the ground that all of them were interested
parties to said case as respondents therein. This would have reduced
the Tribunal's membership to only its three Justices-Members whose
disqualification was not sought, leaving them to decide the matter.
This Court held:
Where, as here, a situation is created which
precludes the substitution of any Senator
sitting in the Tribunal by any of his other
colleagues in the Senate without inviting the
same objections to the substitute's
competence, the proposed mass
disqualification, if sanctioned and ordered,
would leave the Tribunal no alternative but to
abandon a duty that no other court or body
can perform, but which it cannot lawfully
discharge if shorn of the participation of its
entire membership of Senators.
To our mind, this is the overriding
consideration — that the Tribunal be not
prevented from discharging a duty which it
alone has the power to perform, the
performance of which is in the highest public
interest as evidenced by its being expressly
imposed by no less than the fundamental law.
It is aptly noted in the first of the questioned
Resolutions that the framers of the
Constitution could not have been unaware of
the possibility of an election contest that
would involve all Senators — elect, six of
whom would inevitably have to sit in
judgment thereon. Indeed, such possibility
might surface again in the wake of the 1992
elections when once more, but for the last
time, all 24 seats in the Senate will be at stake.
Yet the Constitution provides no scheme or
mode for settling such unusual situations or
for the substitution of Senators designated to
the Tribunal whose disqualification may be
sought. Litigants in such situations must
simply place their trust and hopes of
vindication in the fairness and sense of justice
of the Members of the Tribunal. Justices and
Senators, singly and collectively.
Let us not be misunderstood as saying that no
Senator-Member of the Senate Electoral
Tribunal may inhibit or disqualify himself from
sitting in judgment on any case before said
Tribunal. Every Member of the Tribunal may,
as his conscience dictates, refrain from
participating in the resolution of a case where
he sincerely feels that his personal interests or
biases would stand in the way of an objective
and impartial judgment. What we are merely
saying is that in the light of the Constitution,
the Senate Electoral Tribunal cannot legally
function as such, absent its entire membership
of Senators and that no amendment of its
Rules can confer on the three Justices-
Members alone the power of valid
adjudication of a senatorial election contest.
More recently in the case of Estrada v. Desierto, 132 it was held that:
Moreover, to disqualify any of the members of
the Court, particularly a majority of them, is
nothing short ofpro tanto depriving the Court
itself of its jurisdiction as established by the
fundamental law. Disqualification of a judge is
a deprivation of his judicial power. And if that
judge is the one designated by the
Constitution to exercise the jurisdiction of his
court, as is the case with the Justices of this
Court, the deprivation of his or their judicial
power is equivalent to the deprivation of the
judicial power of the court itself. It affects the
very heart of judicial independence. The
proposed mass disqualification, if sanctioned
and ordered, would leave the Courtno
alternative but to abandon a duty which it
cannot lawfully discharge if shorn of the
participation of its entire membership of
Justices. 133 (Italics in the original; emphasis
supplied)
Besides, there are specific safeguards already laid down by the Court
when it exercises its power of judicial review.
In Demetria v. Alba, 134 this Court, through Justice Marcelo Fernan
cited the "seven pillars" of limitations of the power of judicial
review, enunciated by US Supreme Court Justice Brandeis
in Ashwander v. TVA 135 as follows:
1.The Court will not pass upon the
constitutionality of legislation in a
friendly, non-adversary proceeding,
declining because to decide such
questions 'is legitimate only in the
last resort, and as a necessity in the
determination of real, earnest and
vital controversy between
individuals. It never was the thought
that, by means of a friendly suit, a
party beaten in the legislature could
transfer to the courts an inquiry as
to the constitutionality of the
legislative act.'
2.The Court will not 'anticipate a question of
constitutional law in advance of the
necessity of deciding it.' . . . 'It is not
the habit of the Court to decide
questions of a constitutional nature
unless absolutely necessary to a
decision of the case.'
3.The Court will not 'formulate a rule of
constitutional law broader than is
required by the precise facts to
which it is to be applied.'
4.The Court will not pass upon a constitutional
question although properly
presented by the record, if there is
also present some other ground
upon which the case may be
disposed of. This rule has found
most varied application. Thus, if a
case can be decided on either of two
grounds, one involving a
constitutional question, the other a
question of statutory construction or
general law, the Court will decide
only the latter. Appeals from the
highest court of a state challenging
its decision of a question under the
Federal Constitution are frequently
dismissed because the judgment can
be sustained on an independent
state ground.
79
 5.The Court will not pass upon the validity of a
statute upon complaint of one who
fails to show that he is injured by its
operation. Among the many
applications of this rule, none is
more striking than the denial of the
right of challenge to one who lacks a
personal or property right. Thus, the
challenge by a public official
interested only in the performance
of his official duty will not be
entertained . . . In Fairchild
v.Hughes, the Court affirmed the
dismissal of a suit brought by a
citizen who sought to have the
Nineteenth Amendment declared
unconstitutional. In Massachusetts
v. Mellon, the challenge of the
federal Maternity Act was not
entertained although made by the
Commonwealth on behalf of all its
citizens.
6.The Court will not pass upon the
constitutionality of a statute at the
instance of one who has availed
himself of its benefits.
7.When the validity of an act of the Congress
is drawn in question, and even if a
serious doubt of constitutionality is
raised, it is a cardinal principle that
this Court will first ascertain
whether a construction of the
statute is fairly possible by which the
question may be avoided (citations
omitted).
The foregoing "pillars" of limitation of judicial review, summarized
in Ashwander v. TVA from different decisions of the United States
Supreme Court, can be encapsulated into the following categories:
1.that there be absolute necessity of deciding
a case
2.that rules of constitutional law shall be
formulated only as required by the
facts of the case
3.that judgment may not be sustained on
some other ground
4.that there be actual injury sustained by the
party by reason of the operation of
the statute
5.that the parties are not in estoppel
6.that the Court upholds the presumption of
constitutionality.
As stated previously, parallel guidelines have been adopted by this
Court in the exercise of judicial review:
1.actual case or controversy calling for the
exercise of judicial power
2.the person challenging the act must have
"standing" to challenge; he must
have a personal and substantial
interest in the case such that he has
sustained, or will sustain, direct
injury as a result of its enforcement
3.the question of constitutionality must be
raised at the earliest possible
opportunity
4.the issue of constitutionality must be the
very lis mota of the case. 136
Respondents Speaker de Venecia, et al. raise another argument for
judicial restraint the possibility that "judicial review of
impeachments might also lead to embarrassing conflicts between
the Congress and the [J]udiciary." They stress the need to avoid the
appearance of impropriety or conflicts of interest in judicial
hearings, and the scenario that it would be confusing and
humiliating and risk serious political instability at home and abroad if
the judiciary countermanded the vote of Congress to remove an
impeachable official. 137 Intervenor Soriano echoes this argument
by alleging that failure of this Court to enforce its Resolution against
Congress would result in the diminution of its judicial authority and
erode public confidence and faith in the judiciary.
Such an argument, however, is specious, to say the least. As
correctly stated by the Solicitor General, the possibility of the
occurrence of a constitutional crisis is not a reason for this Court to
refrain from upholding the Constitution in all impeachment cases.
Justices cannot abandon their constitutional duties just because
their action may start, if not precipitate, a crisis.
Justice Feliciano warned against the dangers when this Court refuses
to act.
. . . Frequently, the fight over a controversial
legislative or executive act is not regarded as
settled until the Supreme Court has passed
upon the constitutionality of the act involved,
the judgment has not only juridical effects but
also political consequences. Those political
consequences may follow even where the
Court fails to grant the petitioner's prayer to
nullify an act for lack of the necessary number
of votes. Frequently, failure to act explicitly,
one way or the other, itself constitutes a
decision for the respondent and validation, or
at least quasi-validation, follows." 138
Thus, in Javellana v. Executive Secretary 139 where this Court was
split and "in the end there were not enough votes either to grant the
petitions, or to sustain respondent's claims," 140 the pre-existing
constitutional order was disrupted which paved the way for the
establishment of the martial law regime.
Such an argument by respondents and intervenor also presumes
that the coordinate branches of the government would behave in a
lawless manner and not do their duty under the law to uphold the
Constitution and obey the laws of the land. Yet there is no reason to
believe that any of the branches of government will behave in a
precipitate manner and risk social upheaval, violence, chaos and
anarchy by encouraging disrespect for the fundamental law of the
land.
Substituting the word public officers for judges, this Court is well
guided by the doctrine in People v. Veneracion, to wit:141
Obedience to the rule of law forms the
bedrock of our system of justice. If [public
officers], under the guise of religious or
political beliefs were allowed to roam
unrestricted beyond boundaries within which
they are required by law to exercise the duties
of their office, then law becomes meaningless.
A government of laws, not of men excludes
the exercise of broad discretionary powers by
those acting under its authority. Under this
system, [public officers] are guided by the Rule
of Law, and ought "to protect and enforce it
80
 without fear or favor," resist encroachments
by governments, political parties, or even the
interference of their own personal beliefs. 142
Constitutionality of the Rules of Procedure for Impeachment
Proceedings adopted by the 12th Congress
Respondent House of Representatives, through Speaker De Venecia,
argues that Sections 16 and 17 of Rule V of the House Impeachment
Rules do not violate Section 3 (5) of Article XI of our present
Constitution, contending that the term "initiate" does not mean "to
file;" that Section 3 (1) is clear in that it is the House of
Representatives, as a collective body, which has the exclusive power
to initiate all cases of impeachment; that initiate could not possibly
mean "to file" because filing can, as Section 3 (2), Article XI of the
Constitution provides, only be accomplished in 3 ways, to wit: (1) by
a verified complaint for impeachment by any member of the House
of Representatives; or (2) by any citizen upon a resolution of
endorsement by any member; or (3) by at least 1/3 of all the
members of the House. Respondent House of Representatives
concludes that the one year bar prohibiting the initiation of
impeachment proceedings against the same officials could not have
been violated as the impeachment complaint against Chief Justice
Davide and seven Associate Justices had not been initiated as the
House of Representatives, acting as the collective body, has yet to
act on it.
The resolution of this issue thus hinges on the interpretation of the
term "initiate." Resort to statutory construction is, therefore, in
order.
That the sponsor of the provision of Section 3(5) of the Constitution,
Commissioner Florenz Regalado, who eventually became an
Associate Justice of this Court, agreed on the meaning of "initiate" as
"to file," as proffered and explained by Constitutional Commissioner
Maambong during the Constitutional Commission proceedings,
which he (Commissioner Regalado) as amicus curiae affirmed during
the oral arguments on the instant petitions held on November 5,
2003 at which he added that the act of "initiating" included the act
of taking initial action on the complaint, dissipates any doubt that
indeed the word "initiate" as it twice appears in Article XI (3) and (5)
of the Constitution means to file the complaint and take initial action
on it.
"Initiate" of course is understood by ordinary men to mean, as
dictionaries do, to begin, to commence, or set going. As Webster's
Third New International Dictionary of the English Language concisely
puts it, it means "to perform or facilitate the first action," which jibes
with Justice Regalado's position, and that of Father Bernas, who
elucidated during the oral arguments of the instant petitions on
November 5, 2003 in this wise:
Briefly then, an impeachment proceeding is
not a single act. It is a complexus of acts
consisting of a beginning, a middle and an end.
The end is the transmittal of the articles of
impeachment to the Senate. The middle
consists of those deliberative moments
leading to the formulation of the articles of
impeachment. The beginning or the initiation
is the filing of the complaint and its referral to
the Committee on Justice.
Finally, it should be noted that the House Rule
relied upon by Representatives Cojuangco and
Fuentebella says that impeachment is
"deemed initiated" when the Justice
Committee votes in favor of impeachment or
when the House reverses a contrary vote of
the Committee. Note that the Rule does not
say "impeachment proceedings" are
initiated but rather are "deemed initiated.”
The language is recognition that initiation
happened earlier, but by legal fiction there is
an attempt to postpone it to a time after
actual initiation. (Emphasis and italics
supplied)
As stated earlier, one of the means of interpreting the Constitution is
looking into the intent of the law. Fortunately, the intent of the
framers of the 1987 Constitution can be pried from its records:
MR. MAAMBONG. With reference to Section
3, regarding the procedure and the
substantive provisions on impeachment, I
understand there have been many proposals
and, I think, these would need some time for
Committee action.
However, I would just like to indicate that I
submitted to the Committee a resolution on
impeachment proceedings, copies of which
have been furnished the Members of this
body. This is borne out of my experience as a
member of the Committee on Justice, Human
Rights and Good Government which took
charge of the last impeachment resolution
filed before the First Batasang Pambansa. For
the information of the Committee, the
resolution covers several steps in the
impeachment proceedings starting with
initiation, action of the Speaker committee
action, calendaring of report, voting on the
report, transmittal referral to the Senate, trial
and judgment by the Senate.
xxx xxx xxx
MR. MAAMBONG. Mr. Presiding Officer, I am
not moving for a reconsideration of the
approval of the amendment submitted by
Commissioner Regalado, but I will just make of
record my thinking that we do not really
initiate the filing of the Articles of
Impeachment on the floor. The procedure, as I
have pointed out earlier, was that the
initiation starts with the filing of the
complaint. And what is actually done on the
floor is that the committee resolution
containing the Articles of Impeachment is the
one approved by the body.
As the phraseology now runs, which may be
corrected by the Committee on Style, it
appears that the initiation starts on the floor.
If we only have time, I could cite examples in
the case of the impeachment proceedings of
President Richard Nixon wherein the
Committee on the Judiciary submitted the
recommendation, the resolution, and the
Articles of Impeachment to the body, and it
was the body who approved the resolution. It
is not the body which initiates it. It only
approves or disapproves the resolution. So, on
that score, probably the Committee on Style
could help in rearranging these words because
we have to be very technical about this. I have
been bringing with me The Rules of the House
of Representatives of the U.S. Congress. The
Senate Rules are with me. The proceedings on
the case of Richard Nixon are with me. I have
submitted my proposal, but the Committee
has already decided. Nevertheless, I just want
to indicate this on record.
xxx xxx xxx
81
 MR. MAAMBONG. I would just like to move
for a reconsideration of the approval of
Section 3 (3). My reconsideration will not at all
affect the substance, but it is only in keeping
with the exact formulation of the Rules of the
House of Representatives of the United States
regarding impeachment.
I am proposing, Madam President, without
doing damage to any of this provision, that on
page 2, Section 3 (3), from lines 17 to 18, we
delete the words which read: "to initiate
impeachment proceedings" and the comma (,)
and insert on line 19 after the word
"resolution" the phrase WITH THE ARTICLES,
and then capitalize the letter "i" in
"impeachment" and replace the word "by"
with OF, so that the whole section will now
read: "A vote of at least one-third of all the
Members of the House shall be necessary
either to affirm a resolution WITH THE
ARTICLES of Impeachment OF the Committee
or to override its contrary resolution. The vote
of each Member shall be recorded."
I already mentioned earlier yesterday that the
initiation, as far as the House of
Representatives of the United States is
concerned, really starts from the filing of the
verified complaint and every resolution to
impeach always carries with it the Articles of
Impeachment. As a matter of fact, the words
"Articles of Impeachment" are mentioned on
line 25 in the case of the direct filing of a
verified complaint of one-third of all the
Members of the House. I will mention again,
Madam President, that my amendment will
not vary the substance in any way. It is only in
keeping with the uniform procedure of the
House of Representatives of the United States
Congress. Thank you, Madam
President. 143 (Italics in the original; emphasis
and italics supplied)
This amendment proposed by Commissioner Maambong was
clarified and accepted by the Committee on the Accountability of
Public Officers. 144
It is thus clear that the framers intended "initiation" to start with the
filing of the complaint. In his amicus curiae brief, Commissioner
Maambong explained that "the obvious reason in deleting the
phrase "to initiate impeachment proceedings" as contained in the
text of the provision of Section 3 (3) was to settle and make it
understood once and for all that the initiation of impeachment
proceedings starts with the filing of the complaint, and the vote of
one-third of the House in a resolution of impeachment does not
initiate the impeachment proceedings which was already initiated by
the filing of a verified complaint under Section 3, paragraph (2),
Article XI of the Constitution." 145
Amicus curiae Constitutional Commissioner Regalado is of the same
view as is Father Bernas, who was also a member of the 1986
Constitutional Commission, that the word "initiate" as used in Article
XI, Section 3(5) means to file, both adding, however, that the filing
must be accompanied by an action to set the complaint moving.
During the oral arguments before this Court, Father Bernas clarified
that the word "initiate," appearing in the constitutional provision on
impeachment, viz:
Section 3 (1).The House of Representatives
shall have the exclusive power to initiate
all cases of impeachment.
xxx xxx xxx
(5)No impeachment proceedings shall be
initiated against the same official more than
once within a period of one year, (Emphasis
supplied)
refers to two objects, "impeachment case" and "impeachment
proceeding."
Father Bernas explains that in these two provisions, the common
verb is "to initiate." The object in the first sentence is "impeachment
case." The object in the second sentence is "impeachment
proceeding." Following the principle ofreddendo singuala sinuilis,
the term "cases" must be distinguished from the term
"proceedings." An impeachment case is the legal controversy that
must be decided by the Senate. Above-quoted first provision
provides that the House, by a vote of one-third of all its members,
can bring a case to the Senate. It is in that sense that the House has
"exclusive power" to initiate all cases of impeachment. No other
body can do it. However, before a decision is made to initiate a case
in the Senate, a "proceeding" must be followed to arrive at a
conclusion. A proceeding must be "initiated." To initiate, which
comes from the Latin word initium, means to begin. On the other
hand, proceeding is a progressive noun. It has a beginning, a middle,
and an end. It takes place not in the Senate but in the House and
consists of several steps: (1) there is the filing of a verified complaint
either by a Member of the House of Representatives or by a private
citizen endorsed by a Member of the House of the Representatives;
(2) there is the processing of this complaint by the proper
Committee which may either reject the complaint or uphold it; (3)
whether the resolution of the Committee rejects or upholds the
complaint, the resolution must be forwarded to the House for
further processing; and (4) there is the processing of the same
complaint by the House of Representatives which either affirms a
favorable resolution of the Committee or overrides a contrary
resolution by a vote of one-third of all the members. If at least one
third of all the Members upholds the complaint, Articles of
Impeachment are prepared and transmitted to the Senate. It is at
this point that the House "initiates an impeachment case." It is at
this point that an impeachable public official is successfully
impeached. That is, he or she is successfully charged with an
impeachment "case" before the Senate as impeachment court.
Father Bernas further explains: The "impeachment proceeding" is
not initiated when the complaint is transmitted to the Senate for
trial because that is the end of the House proceeding and the
beginning of another proceeding, namely the trial. Neither is the
"impeachment proceeding" initiated when the House deliberates on
the resolution passed on to it by the Committee, because something
prior to that has already been done. The action of the House is
already a further step in the proceeding, not its initiation or
beginning. Rather, the proceeding is initiated or begins, when a
verified complaint is filed and referred to the Committee on Justice
for action. This is the initiating step which triggers the series of steps
that follow.
The framers of the Constitution also understood initiation in its
ordinary meaning. Thus when a proposal reached the floor
proposing that "A vote of at least one-third of all the Members of
the House shall be necessary . . . to initiate
impeachment proceedings," this was met by a proposal to delete the
line on the ground that the vote of the House does not initiate
impeachment proceeding but rather the filing of a complaint
does. 146 Thus the line was deleted and is not found in the present
Constitution.
Father Bernas concludes that when Section 3 (5) says, "No
impeachment proceeding shall be initiated against the same official
more than once within a period of one year," it means that no
second verified complaint may be accepted and referred to the
Committee on Justice for action. By his explanation, this
interpretation is founded on the common understanding of the
meaning of "to initiate" which means to begin. He reminds that the
Constitution is ratified by the people, both ordinary and
82
sophisticated, as they understand it; and that ordinary people read
ordinary meaning into ordinary words and not abstruse meaning,
they ratify words as they understand it and not as sophisticated
lawyers confuse it.
To the argument that only the House of Representatives as a body
can initiate impeachment proceedings because Section 3 (1) says
"The House of Representatives shall have the exclusive power to
initiate all cases of impeachment," this is a misreading of said
provision and is contrary to the principle of reddendo singula
singulis by equating "impeachment cases" with "impeachment
proceeding."
From the records of the Constitutional Commission, to the amicus
curiae briefs of two former Constitutional Commissioners, it is
without a doubt that the term "to initiate" refers to the filing of the
impeachment complaint coupled with Congress' taking initial action
of said complaint.
Having concluded that the initiation takes place by the act of filing
and referral or endorsement of the impeachment complaint to the
House Committee on Justice or, by the filing by at least one-third of
the members of the House of Representatives with the Secretary
General of the House, the meaning of Section 3 (5) of Article XI
becomes clear. Once an impeachment complaint has been initiated,
another impeachment complaint may not be filed against the same
official within a one year period.
Under Sections 16 and 17 of Rule V of the House Impeachment
Rules, impeachment proceedings are deemed initiated(1) if there is a
finding by the House Committee on Justice that the verified
complaint and/or resolution is sufficient in substance, or (2) once
the House itself affirms or overturns the finding of the Committee
on Justice that the verified complaint and/or resolution is not
sufficient in substance or (3) by the filing or endorsement before the
Secretary-General of the House of Representatives of a verified
complaint or a resolution of impeachment by at least 1/3 of the
members of the House. These rules clearly contravene Section 3 (5)
of Article XI since the rules give the term "initiate" a meaning
different meaning from filing and referral.
In his amicus curiaebrief, Justice Hugo Gutierrez posits that this
Court could not use contemporaneous construction as an aid in the
interpretation of Sec. 3 (5) of Article XI, citing Vera
v. Avelino 147 wherein this Court stated that "their personal
opinions (referring to Justices who were delegates to the
Constitution Convention) on the matter at issue expressed during
this Court's our deliberations stand on a different footing from the
properly recorded utterances of debates and proceedings." Further
citing said case, he states that this Court likened the former
members of the Constitutional Convention to actors who are so
absorbed in their emotional roles that intelligent spectators may
know more about the real meaning because of the latter's balanced
perspectives and disinterestedness. 148
Justice Gutierrez's statements have no application in the present
petitions. There are at present only two members of this Court who
participated in the 1986 Constitutional Commission — Chief Justice
Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken
part in these proceedings for obvious reasons. Moreover, this Court
has not simply relied on the personal opinions now given by
members of the Constitutional Commission, but has examined the
records of the deliberations and proceedings thereof.
Respondent House of Representatives counters that under Section 3
(8) of Article XI, it is clear and unequivocal that it and only it has the
power to make and interpret its rules governing impeachment. Its
argument is premised on the assumption that Congress
has absolute power to promulgate its rules. This assumption,
however, is misplaced.
Section 3 (8) of Article XI provides that "The Congress shall
promulgate its rules on impeachment to effectively carry out the
purpose of this section." Clearly, its power to promulgate its rules on
impeachment is limited by the phrase "to effectively carry out the
purpose of this section." Hence, these rules cannot contravene the
very purpose of the Constitution which said rules were intended to
effectively carry out. Moreover, Section 3 of Article XI clearly
provides for other specific limitations on its power to make rules, viz:
Section 3.(1). . .
(2)A verified complaint for impeachment may
be filed by any Member of the House of
Representatives or by any citizen upon a
resolution of endorsement by any Member
thereof, which shall be included in the Order
of Business within ten session days, and
referred to the proper Committee within three
session days thereafter. The Committee, after
hearing, and by a majority vote of all its
Members, shall submit its report to the House
within sixty session days from such referral,
together with the corresponding resolution.
The resolution shall be calendared for
consideration by the House within ten session
days from receipt thereof.
(3)A vote of at least one-third of all the
Members of the House shall be necessary to
either affirm a favorable resolution with the
Articles of Impeachment of the Committee, or
override its contrary resolution. The vote of
each Member shall be recorded.
(4)In case the verified complaint or resolution
of impeachment is filed by at least one-third
of all the Members of the House, the same
shall constitute the Articles of Impeachment,
and trial by the Senate shall forthwith
proceed.
(5)No impeachment proceedings shall be
initiated against the same official more than
once within a period of one year.
It is basic that all rules must not contravene the Constitution which is
the fundamental law. If as alleged Congress hadabsolute rule making
power, then it would by necessary implication have the power to
alter or amend the meaning of the Constitution without need of
referendum.
In Osmeña v. Pendatun, 149 this Court held that it is within the
province of either House of Congress to interpret its rules and that it
was the best judge of what constituted "disorderly behavior" of its
members. However, in Paceta v. Secretary of the Commission on
Appointments, 150 Justice (later Chief Justice) Enrique Fernando,
speaking for this Court and quoting Justice Brandeis in United States
v. Smith, 151 declared that where the construction to be given to a
rule affectspersons other than members of the Legislature, the
question becomes judicial in nature. In Arroyo v. De
Venecia, 152quoting United States v. Ballin, Joseph & Co., 153 Justice
Vicente Mendoza, speaking for this Court, held that while the
Constitution empowers each house to determine its rules of
proceedings, it may not by its rules ignore constitutional restraints or
violate fundamental rights, and further that there should be a
reasonable relation between the mode or method of proceeding
established by the rule and the result which is sought to be attained.
It is only within these limitations that all matters of method are open
to the determination of the Legislature. In the same case of Arroyo
v. De Venecia, Justice Reynato S. Puno, in his Concurring and
Dissenting Opinion, was even more emphatic as he stressed that in
the Philippine setting there is even more reason for courts to inquire
into the validity of the Rules of Congress,viz:
83
With due respect, I do not agree that the
issues posed by the petitioner are non-
justiciable. Nor do I agree that we will trivialize
the principle of separation of power if we
assume jurisdiction over the case at bar. Even
in the United States, the principle of
separation of power is no longer an
impregnable impediment against the
interposition of judicial power on cases
involving breach of rules of procedure by
legislators.
Rightly, the ponencia uses the 1891 case of US
v. Ballin (144 US 1) as a window to view the
issues before the Court. It is in Ballin where
the US Supreme Court first defined the
boundaries of the power of the judiciary to
review congressional rules. It held:
"xxx xxx xxx
"The Constitution, in the same
section, provides, that each house
may determine the rules of its
proceedings." It appears that in
pursuance of this authority the
House had, prior to that day, passed
this as one of its rules:
Rule XV
3.On the demand of any member, or
at the suggestion of the Speaker, the
names of members sufficient to
make a quorum in the hall of the
House who do not vote shall be
noted by the clerk and recorded in
the journal, and reported to the
Speaker with the names of the
members voting, and be counted
and announced in determining the
presence of a quorum to do
business. (House Journal, 230, Feb.
14, 1890)
The action taken was in direct
compliance with this rule. The
question, therefore, is as to the
validity of this rule, and not what
methods the Speaker may of his
own motion resort to for
determining the presence of a
quorum, nor what matters the
Speaker or clerk may of their own
volition place upon the journal.
Neither do the advantages or
disadvantages, the wisdom or folly,
of such a rule present any matters
for judicial consideration. With the
courts the question is only one of
power. The Constitution empowers
each house to determine its rules of
proceedings. It may not by its rules
ignore constitutional restraints or
violate fundamental rights, and
there should be a reasonable
relation between the mode or
method of proceedings established
by the rule and the result which is
sought to be attained. But within
these limitations all matters of
method are open to the
determination of the House, and it is
no impeachment of the rule to say
that some other way would be
better, more accurate, or even more
just. It is no objection to the validity
of a rule that a different one has
been prescribed and in force for a
length of time. The power to make
rules is not one which once
exercised is exhausted. It is a
continuous power, always subject to
be exercised by the House, and
within the limitations suggested,
absolute and beyond the challenge
of any other body or tribunal."
Ballin, clearly confirmed the jurisdiction of
courts to pass upon the validity of
congressional rules, i.e., whether they are
constitutional. Rule XV was examined by the
Court and it was found to satisfy the test: (1)
that it did not ignore any constitutional
restraint; (2) it did not violate any
fundamental right; and (3) its method had a
reasonable relationship with the result sought
to be attained. By examining Rule XV, the
Court did not allow its jurisdiction to be
defeated by the mere invocation of the
principle of separation of powers. 154
xxx xxx xxx
In the Philippine setting, there is a more
compelling reason for courts to categorically
reject the political question defense when its
interposition will cover up abuse of power. For
section 1, Article VIII of our Constitution was
intentionally cobbled to empower courts ". .
. 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." This
power is new and was not granted to our
courts in the 1935 and 1972 Constitutions. It
was not also xeroxed from the US Constitution
or any foreign state constitution. The
CONCOM granted this enormous power to our
courts in view of our experience under martial
law where abusive exercises of state power
were shielded from judicial scrutiny by the
misuse of the political question doctrine. Led
by the eminent former Chief Justice Roberto
Concepcion, the CONCOM expanded and
sharpened the checking powers of the
judiciary vis-à-vis the Executive and the
Legislative departments of government. 155
xxx xxx xxx
The Constitution cannot be any clearer. What
it granted to this Court is not a mere power
which it can decline to exercise. Precisely to
deter this disinclination, the Constitution
imposed it as a duty of this Court to strike
down any act of a branch or instrumentality of
government or any of its officials done with
grave abuse of discretion amounting to lack or
excess of jurisdiction. Rightly or wrongly, the
Constitution has elongated the checking
powers of this Court against the other
branches of government despite their more
democratic character, the President and the
legislators being elected by the people. 156
xxx xxx xxx
84
 The provision defining judicial power as
including the 'duty of the courts of justice . . .
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'
constitutes the capstone of the efforts of the
Constitutional Commission to upgrade the
powers of this court vis-à-vis the other
branches of government. This provision was
dictated by our experience under martial law
which taught us that a stronger and more
independent judiciary is needed to abort
abuses in government. . . .
xxx xxx xxx
In sum, I submit that in imposing to this Court
the duty to annul acts of government
committed with grave abuse of discretion, the
new Constitution transformed this Court from
passivity to activism. This transformation,
dictated by our distinct experience as nation,
is not merely evolutionary but
revolutionary.Under the 1935 and the 1973
Constitutions, this Court approached
constitutional violations by initially
determining what it cannot do; under the 1987
Constitution, there is a shift in stress — this
Court is mandated to approach constitutional
violations not by finding out what it should not
do but what it must do. The Court must
discharge this solemn duty by not
resuscitating a past that petrifies the present.
I urge my brethren in the Court to give due
and serious consideration to this new
constitutional provision as the case at bar
once more calls us to define the parameters of
our power to review violations of the rules of
the House. We will not be true to our trust as
the last bulwark against government abuses if
we refuse to exercise this new power or if we
wield it with timidity. To be sure, it is this
exceeding timidity to unsheathe the judicial
sword that has increasingly emboldened other
branches of government to denigrate, if not
defy, orders of our courts. In Tolentino, I
endorsed the view of former Senator Salonga
that this novel provision stretching the
latitude of judicial power is distinctly Filipino
and its interpretation should not be
depreciated by undue reliance on inapplicable
foreign jurisprudence. In resolving the case at
bar, the lessons of our own history should
provide us the light and not the experience of
foreigners. 157 (Italics in the original;
emphasis and italics supplied)
Thus, the ruling in Osmeña v. Pendatun is not applicable to the
instant petitions. Here, the third parties alleging the violation of
private rights and the Constitution are involved.
Neither may respondent House of Representatives' rely on Nixon
v. US 158 as basis for arguing that this Court may not decide on the
constitutionality of Sections 16 and 17 of the House Impeachment
Rules. As already observed, the U.S. Federal Constitution simply
provides that "the House of Representatives shall have the sole
power of impeachment." It adds nothing more. It gives no clue
whatsoever as to how this "sole power" is to be exercised. No
limitation whatsoever is given. Thus, the US Supreme Court
concluded that there was a textually demonstrable constitutional
commitment of a constitutional power to the House of
Representatives. This reasoning does not hold with regard to
impeachment power of the Philippine House of Representatives
since our Constitution, as earlier enumerated, furnishes several
provisions articulating how that "exclusive power" is to be exercised.
The provisions of Sections 16 and 17 of Rule V of the House
Impeachment Rules which state that impeachment proceedings are
deemed initiated (1) if there is a finding by the House Committee on
Justice that the verified complaint and/or resolution is sufficient in
substance, or (2) once the House itself affirms or overturns the
finding of the Committee on Justice that the verified complaint
and/or resolution is not sufficient in substance or (3) by the filing or
endorsement before the Secretary-General of the House of
Representatives of a verified complaint or a resolution of
impeachment by at least 1/3 of the members of the House thus
clearly contravene Section 3 (5) of Article XI as they give the term
"initiate" a meaning different from "filing."
Validity of the Second Impeachment Complaint
Having concluded that the initiation takes place by the act of filing of
the impeachment complaint and referral to the House Committee
on Justice, the initial action taken thereon, the meaning of Section 3
(5) of Article XI becomes clear. Once an impeachment complaint has
been initiated in the foregoing manner, another may not be filed
against the same official within a one year period following Article
XI, Section 3 (5) of the Constitution.
In fine, considering that the first impeachment complaint, was filed
by former President Estrada against Chief Justice Hilario G. Davide,
Jr., along with seven associate justices of this Court, on June 2, 2003
and referred to the House Committee on Justice on August 5, 2003,
the second impeachment complaint filed by Representatives
Gilberto C. Teodoro, Jr. and Felix William Fuentebella against the
Chief Justice on October 23, 2003 violates the constitutional
prohibition against the initiation of impeachment proceedings
against the same impeachable officer within a one-year period.
Conclusion
If there is anything constant about this country, it is that there is
always a phenomenon that takes the center stage of our individual
and collective consciousness as a people with our characteristic flair
for human drama, conflict or tragedy. Of course this is not to
demean the seriousness of the controversy over the Davide
impeachment. For many of us, the past two weeks have proven to
be an exasperating, mentally and emotionally exhausting
experience. Both sides have fought bitterly a dialectical struggle to
articulate what they respectively believe to be the correct position
or view on the issues involved. Passions had ran high as
demonstrators, whether for or against the impeachment of the Chief
Justice, took to the streets armed with their familiar slogans and
chants to air their voice on the matter. Various sectors of society —
from the business, retired military, to the academe and
denominations of faith — offered suggestions for a return to a state
of normalcy in the official relations of the governmental branches
affected to obviate any perceived resulting instability upon areas of
national life.
Through all these and as early as the time when the Articles of
Impeachment had been constituted, this Court was specifically
asked, told, urged and argued to take no action of any kind and form
with respect to the prosecution by the House of Representatives of
the impeachment complaint against the subject respondent public
official. When the present petitions were knocking so to speak at the
doorsteps of this Court, the same clamor for non-interference was
made through what are now the arguments of "lack of jurisdiction,"
"non-justiciability," and "judicial self-restraint" aimed at halting the
Court from any move that may have a bearing on the impeachment
proceedings.
This Court did not heed the call to adopt a hands-off stance as far as
the question of the constitutionality of initiating the impeachment
complaint against Chief Justice Davide is concerned. To reiterate
what has been already explained, the Court found the existence in
full of all the requisite conditions for its exercise of its
85
constitutionally vested power and duty of judicial review over an
issue whose resolution precisely called for the construction or
interpretation of a provision of the fundamental law of the land.
What lies in here is an issue of a genuine constitutional material
which only this Court can properly and competently address and
adjudicate in accordance with the clear-cut allocation of powers
under our system of government. Face-to-face thus with a matter or
problem that squarely falls under the Court's jurisdiction, no other
course of action can be had but for it to pass upon that problem
head on.
The claim, therefore, that this Court by judicially entangling itself
with the process of impeachment has effectively set up a regime of
judicial supremacy, is patently without basis in fact and in law.
This Court in the present petitions subjected to judicial scrutiny and
resolved on the merits only the main issue of whether the
impeachment proceedings initiated against the Chief Justice
transgressed the constitutionally imposed one-year time bar rule.
Beyond this, it did not go about assuming jurisdiction where it had
none, nor indiscriminately turn justiciable issues out of decidedly
political questions. Because it is not at all the business of this Court
to assert judicial dominance over the other two great branches of
the government. Rather, the raison d'etre of the judiciary is to
complement the discharge by the executive and legislative of their
own powers to bring about ultimately the beneficent effects of
having founded and ordered our society upon the rule of law.
It is suggested that by our taking cognizance of the issue of
constitutionality of the impeachment proceedings against the Chief
Justice, the members of this Court have actually closed ranks to
protect one of their brethren. That the members' interests in ruling
on said issue is as much at stake as is that of the Chief Justice.
Nothing could be farther from the truth.
The institution that is the Supreme Court together with all other
courts has long held and been entrusted with the judicial power to
resolve conflicting legal rights regardless of the personalities
involved in the suits or actions. This Court has dispensed justice over
the course of time, unaffected by whomsoever stood to benefit or
suffer therefrom, unafraid by whatever imputations or speculations
could be made to it, so long as it rendered judgment according to
the law and the facts. Why can it not now be trusted to wield judicial
power in these petitions just because it is the highest ranking
magistrate who is involved when it is an incontrovertible fact that
the fundamental issue is not him but the validity of a government
branch's official act as tested by the limits set by the Constitution?
Of course, there are rules on the inhibition of any member of the
judiciary from taking part in a case in specified instances. But to
disqualify this entire institution now from the suits at bar is to regard
the Supreme Court as likely incapable of impartiality when one of its
members is a party to a case, which is simply a non sequitur.
No one is above the law or the Constitution. This is a basic precept in
any legal system which recognizes equality of all men before the law
as essential to the law's moral authority and that of its agents to
secure respect for and obedience to its commands. Perhaps, there is
no other government branch or instrumentality that is most zealous
in protecting that principle of legal equality other than the Supreme
Court which has discerned its real meaning and ramifications
through its application to numerous cases especially of the high-
profile kind in the annals of jurisprudence. The Chief Justice is not
above the law and neither is any other member of this Court. But
just because he is the Chief Justice does not imply that he gets to
have less in law than anybody else. The law is solicitous of every
individual's rights irrespective of his station in life.
The Filipino nation and its democratic institutions have no doubt
been put to test once again by this impeachment case against Chief
Justice Hilario Davide. Accordingly, this Court has resorted to no
other than the Constitution in search for a solution to what many
feared would ripen to a crisis in government. But though it is indeed
immensely a blessing for this Court to have found answers in our
bedrock of legal principles, it is equally important that it went
through this crucible of a democratic process, if only to discover that
it can resolve differences without the use of force and aggression
upon each other.
WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure
in Impeachment Proceedings which were approved by the House of
Representatives on November 28, 2001 are unconstitutional.
Consequently, the second impeachment complaint against Chief
Justice Hilario G. Davide, Jr. which was filed by Representatives
Gilberto C. Teodoro, Jr. and Felix William B. Fuentebella with the
Office of the Secretary General of the House of Representatives on
October 23, 2003 is barred under paragraph 5, section 3 of Article XI
of the Constitution.
SO ORDERED.
Carpio, J ., concurs.
Davide, Jr., C .J ., took no part.
Quisumbing, J ., concurring separate opinion received.
Austria-Martinez, J ., I concur in the majority opinion and in the
separate opinion of J. Vitug.
Corona, J ., I will write a separate concurring opinion.
FACTS:
On July 22, 2002, the House of Representatives adopted a
Resolution, sponsored by Representative Felix William D.
Fuentebella, which directed the Committee on Justice "to conduct
an investigation, in aid of legislation, on the manner of
disbursements and expenditures by the Chief Justice of the Supreme
Court of the Judiciary Development Fund (JDF)." On June 2, 2003,
former President Joseph E. Estrada filed an impeachment complaint
against Chief Justice Hilario G. Davide Jr. and seven Associate
Justices of this Court for "culpable violation of the Constitution,
betrayal of the public trust and other high crimes." The complaint
was endorsed by Representatives Rolex T. Suplico, Ronaldo B.
Zamora and Didagen Piang Dilangalen, and was referred to the
House Committee. The House Committee on Justice ruled on
October 13, 2003 that the first impeachment complaint was
"sufficient in form," but voted to dismiss the same on October 22,
2003 for being insufficient in substance. To date, the Committee
Report to this effect has not yet been sent to the House in plenary in
accordance with the said Section 3(2) of Article XI of the
Constitution. Four months and three weeks since the filing on June
2, 2003 of the first complaint or on October 23, 2003, a day after the
House Committee on Justice voted to dismiss it, the second
impeachment complaint was filed with the Secretary General of the
House by Representatives Gilberto C. Teodoro, Jr. and Felix William
B. Fuentebella against Chief Justice Hilario G. Davide, Jr., founded on
the alleged results of the legislative inquiry initiated by above-
mentioned House Resolution. This second impeachment complaint
was accompanied by a "Resolution of Endorsement/Impeachment"
signed by at least one-third (1/3) of all the Members of the House of
Representatives.
ISSUES:
1. Whether or not the filing of the second impeachment complaint
against Chief Justice Hilario G. Davide, Jr. with the House of
86
Representatives falls within the one year bar provided in the
Constitution.
2. Whether the resolution thereof is a political question – has
resulted in a political crisis.
HELD:
1. Having concluded that the initiation takes place by the act of filing
of the impeachment complaint and referral to the House Committee
on Justice, the initial action taken thereon, the meaning of Section 3
(5) of Article XI becomes clear. Once an impeachment complaint has
been initiated in the foregoing manner, another may not be filed
against the same official within a one year period following Article
XI, Section 3(5) of the Constitution. In fine, considering that the first
impeachment complaint, was filed by former President Estrada
against Chief Justice Hilario G. Davide, Jr., along with seven associate
justices of this Court, on June 2, 2003 and referred to the House
Committee on Justice on August 5, 2003, the second impeachment
complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix
William Fuentebella against the Chief Justice on October 23, 2003
violates the constitutional prohibition against the initiation of
impeachment proceedings against the same impeachable officer
within a one-year period.
2.From the foregoing record of the proceedings of the 1986
Constitutional Commission, it is clear that judicial power is not only a
power; it is also a duty, a duty which cannot be abdicated by the
mere specter of this creature called the political question doctrine.
Chief Justice Concepcion hastened to clarify, however, that Section
1, Article VIII was not intended to do away with "truly political
questions." From this clarification it is gathered that there are two
species of political questions: (1) "truly political questions" and (2)
those which "are not truly political questions." Truly political
questions are thus beyond judicial review, the reason for respect of
the doctrine of separation of powers to be maintained. On the other
hand, by virtue of Section 1, Article VIII of the Constitution, courts
can review questions which are not truly political in nature.
Separate Opinions
BELLOSILLO, J .:
. . . In times of social disquietude or political
excitement, the great landmarks of the
Constitution are apt to be forgotten or
marred, if not entirely obliterated.
— Justice Jose P. Laurel
A pall of gloom hovers ominously in the horizon. Looming in its midst
is the specter of conflict the thunderous echoes of which we listened
to intently for the past few days; two great departments of
government locked in a virtual impasse, sending them closer to the
precipice of constitutional confrontation. Emerging from the
shadows of unrest is the national inquest on the conduct of no less
than the Chief Justice of this Court. Impeachment, described by
Alexis Tocqueville as "the most formidable weapon that has ever
been placed in the grasp of the majority," has taken center stage in
the national consciousness in view of its far-reaching implications on
the life of our nation. Unless the issues involved in the controversial
cases are dealt with exceptional sensitivity and sobriety, the tempest
of anarchy may fulminate and tear apart the very foundations of our
political existence. It will be an unfortunate throwback to the dark
days of savagery and brutishness where the hungry mob screaming
for blood and a pound of flesh must be fed to be pacified and
satiated.
On 2 June 2003 former President Joseph Estrada through counsel
filed a verified impeachment complaint before the House of
Representatives charging Chief Justice Hilario G. Davide, Jr. and
seven (7) Associate Justices of this Court with culpable violation of
the Constitution, betrayal of public trust and other high crimes. The
complaint was endorsed by Reps. Rolex T. Suplico of Iloilo, Ronaldo
B. Zamora of San Juan and Didagen P. Dilangalen of Maguindanao
and Cotabato City.
On 13 October 2003, the House Committee on Justice included the
impeachment complaint in its Order of Business and ruled that the
complaint was "sufficient in form." Subsequently however, on 22
October 2003, the House Committee on Justice recommended the
dismissal of the complaint for being "insufficient in substance."
On 23 October 2003, four (4) months after the filing of the first
impeachment complaint, a second verified impeachment complaint
was filed by Reps. Gilberto C. Teodoro of Tarlac and William Felix D.
Fuentebella of Camarines Sur, this time against Chief Justice Hilario
G. Davide, Jr. alone. The complaint accused the Chief Justice mainly
of misusing the Judiciary Development Fund (JDF). Thereafter, more
than eighty (80) members of the Lower House, constituting more
than 1/3 of its total membership, signed the resolution endorsing
the second impeachment complaint.
Several petitions for certiorari and prohibition questioning the
constitutionality of the second impeachment complaint were filed
before this Court. Oral arguments were set for hearing on 5
November 2003 which had to be extended to 6 November 2003 to
accommodate the parties and their respective counsel. During the
hearings, eight (8) amici curiaeappeared to expound their views on
the contentious issues relevant to the impeachment.
This Court must hearken to the dictates of judicial restraint and
reasoned hesitance. I find no urgency for judicial intervention at this
time. I am conscious of the transcendental implications and
importance of the issues that confront us, not in the instant cases
alone but on future ones as well; but to me, this is not the proper
hour nor the appropriate circumstance to perform our duty. True,
this Court is vested with the power to annul the acts of the
legislature when tainted with grave abuse of discretion. Even so, this
power is not lightly assumed or readily exercised. The doctrine of
separation of powers imposes upon the courts proper restraint born
of the nature of their functions and of their respect for the other
departments, in striking down the acts of the legislature as
unconstitutional. Verily, the policy is a harmonious blend of courtesy
and caution. 1
All avenues of redress in the instant cases must perforce be
conscientiously explored and exhausted, not within the hallowed
domain of this Court, but within the august confines of the
Legislature, particularly the Senate. As Alexander Hamilton, delegate
to the 1787 American Constitutional Convention, once wrote: "The
Senate is the most fit depositary of this important trust." 2 We must
choose not to rule upon the merits of these petitions at this time
simply because, I believe, this is the prudent course of action to take
under the circumstances; and, it should certainly not to be equated
with a total abdication of our bounden duty to uphold the
Constitution.
For considerations of law and judicial comity, we should refrain from
adjudicating the issues one way or the other, except to express our
views as we see proper and appropriate.
First. The matter of impeachment is a political question that must
rightfully be addressed to a political branch of government, which is
the Congress of the Philippines. As enunciated in Integrated Bar of
the Philippines v. Zamora, 3 we do not automatically assume
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jurisdiction over actual constitutional cases brought before us even
in instances that are ripe for resolution —
One class of cases wherein the Court hesitates
to rule on are "political questions." The reason
is that political questions are concerned with
issues dependent upon the wisdom, not the
legality, of a particular act or measure being
assailed. Moreover, the political question
being the function of the separation of
powers, the courts will not normally interfere
with the workings of another co-equal branch
unless the case shows a clear need for the
courts to step in to uphold the law and the
Constitution.
Clearly, the constitutional power of impeachment rightfully belongs
to Congress in a two-fold character: (a) The power to initiate
impeachment cases against impeachable officers is lodged in the
House of Representatives; and, (b) The power to try and decide
impeachment cases belongs solely to the Senate.
In Baker v. Carr 4 repeatedly mentioned during the oral arguments,
the United States Supreme Court held that political questions chiefly
relate to separation of powers issues, the Judiciary being a co-equal
branch of government together with the Legislature and the
Executive branch, thus calling for judicial deference. A controversy is
non-justiciable where there is a "textually demonstrable
constitutional commitment of the issue to a coordinate political
department, or a lack of judicially discoverable and manageable
standards for resolving it." 5
But perhaps it is Nixon v. United States 6 which provides the
authority on the "political question" doctrine as applied in
impeachment cases. In that case the U.S. Supreme Court applied
the Baker ruling to reinforce the "political question" doctrine in
impeachment cases. Unless it can therefore be shown that the
exercise of such discretion was gravely abused, the Congressional
exercise of judgment must be recognized by this Court. The burden
to show that the House or the Senate gravely abused its discretion in
impeaching a public officer belongs exclusively to the impeachable
officer concerned.
Second. At all times, the three (3) departments of government must
accord mutual respect to each other under the principle of
separation of powers. As a co-equal, coordinate and co-extensive
branch, the Judiciary must defer to the wisdom of the Congress in
the exercise of the latter's power under the Impeachment Clause of
the Constitution as a measure of judicial comity on issues properly
within the sphere of the Legislature.
Third. It is incumbent upon the Court to exercise judicial restraint in
rendering a ruling in this particular case to preserve the principle of
separation of powers and restore faith and stability in our system of
government. Dred Scott v. Sandford7 is a grim illustration of how
catastrophic improvident judicial incursions into the legislative
domain could be. It is one of the most denounced cases in the
history of U.S. Supreme Court decision-making. Penned by Chief
Justice Taney, the U.S. Supreme Court, by a vote of 7-2, denied that
a Negro was a citizen of the United States even though he happened
to live in a "free" state. The U.S. High Court likewise declared
unconstitutional the law forbidding slavery in certain federal
territories. Dred Scott undermined the integrity of the U.S. High
Court at a moment in history when it should have been a powerful
stabilizing force. More significantly, it inflamed the passions of the
Northern and Southern states over the slavery issue thus
precipitating the American Civil War. This we do not wish to happen
in the Philippines!
It must be clarified, lest I be misconstrued, this is not to say that this
Court is absolutely precluded from inquiring into the
constitutionality of the impeachment process. The present
Constitution, specifically under Art. VIII, Sec. 1, introduced the
expanded concept of the power of judicial review that now explicitly
allows the determination of whether 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. This is evidently
in response to the unedifying experience of the past in frequently
resorting to the "political question" doctrine that in no mean
measure has emasculated the Court's authority to strike down
abuses of power by the government or any of its instrumentalities.
While the impeachment mechanism is by constitutional design a sui
generis political process, it is not impervious to judicial interference
in case of arbitrary or capricious exercise of the power to impeach
by Congress. It becomes the duty of the Court to step in, not for the
purpose of questioning the wisdom or motive behind the legislative
exercise of impeachment powers, but merely to check against
infringement of constitutional standards. In such circumstance,
legislative actions "might be so far beyond the scope of its
constitutional authority, and the consequent impact on the Republic
so great, as to merit a judicial response despite prudential concerns
that would ordinarily counsel silence." 8 I must, of course, hasten to
add by way of a finale the nature of the power of judicial review as
elucidated in Angara v.Electoral Commission 9 —
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 (emphasis supplied).
By way of obiter dictum, I find the second impeachment complaint
filed against the Chief Justice on 23 October 2003 to be
constitutionally infirm. Precisely, Art. 11, Sec. 3, par. (5), of the 1987
Constitution explicitly ordains that "no impeachment proceedings
shall be initiated against the same official more than once within a
period of one year." The fundamental contention that the first
impeachment complaint is not an "initiated" complaint, hence
should not be counted, since the House Committee on Justice found
it to be insufficient in substance, is specious, to say the least. It
seems plain to me that the term initiation must be understood in its
ordinary legal acceptation, which
means inceptionor commencement; hence, an impeachment is
initiated upon the filing of a verified complaint, similar to an
ordinary action which is initiated by the filing of the complaint in the
proper tribunal. This conclusion finds support in the deliberations of
the Constitutional Commission, which was quoted extensively in the
hearings of 5 and 6 November 2003 —
THE PRESIDING OFFICER (Mr. Trenas).
Commissioner Maambong is recognized.
MR. MAAMBONG. Mr. Presiding Officer, I am
not moving for a reconsideration of the
approval of the amendment submitted by
Commissioner Regalado, but I will just make of
record my thinking that we do not really
initiate the filing of the Articles of
Impeachment on the floor. The procedure, as I
have pointed out earlier, was that the
initiation starts with the filing of the
88
 complaint. And what is actually done on the
floor is that the committee resolution
containing the Articles of Impeachment is the
one approved by the body.
As the phraseology now runs, which may be
corrected by the Committee on Style, it
appears that the initiation starts on the floor.
If we only have time, I could cite examples in
the case of the impeachment proceedings of
President Richard Nixon wherein the
Committee on the Judiciary submitted the
recommendation, the resolution and the
Articles of Impeachment to the body, and it
was the body that approved the resolution. It
is not the body which initiates it. It only
approves or disapproves the resolution. So, on
that score, probably the Committee on Style
could help in rearranging these words because
we have to be very technical about this. I have
been bringing with me The Rules of the House
of Representatives of the U.S. Congress. The
Senate Rules are with me. The proceedings of
the case of Richard Nixon are with me. I have
submitted my proposal, but the Committee
has already decided. Nevertheless, I just want
to indicate this on record . . . (italics supplied
for emphasis). 10
As aptly observed by Fr. Joaquin C. Bernas, S.J., "an impeachment
proceeding is not a single act; it is a complexus of acts consisting of a
beginning, a middle and an end. The end is the transmittal of the
articles of impeachment to the Senate. The middle consists of those
deliberative moments leading to the formulation of the articles of
impeachment.The beginning or the initiation is the filing of the
complaint and its referral to the Committee on Justice." 11
To recapitulate: (a) Impeachment is a political question that is
rightfully within the sphere of Congressional prerogatives; (b) As co-
equal, coordinate and co-extensive branches of the government, the
Legislature and the Judiciary must respect the doctrine of separation
of powers at all times; (c) Judicial restraint must be exercised by this
Court in the instant cases, as a matter of judicial courtesy; and, (d)
While impeachment is essentially a political exercise, judicial
interference is allowed in case of arbitrary or capricious exercise of
that power as to amount to grave abuse of discretion.
It is lamentable indeed that the life of our nation has been marked
by turbulent periods of pain, anxieties and doubt. The instant cases
come at a time when scandals of corruption, obscene profligacy and
venality in public office appear to be stalking the entire system of
government. It is a period of stress with visible signs of creeping
hopelessness, and public disenchantment continues to sap the vim
and vitality of our institutions. The challenge at present is how to
preserve the majesty of the Constitution and protect the ideals of
our republican government by averting a complete meltdown of
governmental civility and respect for the separation of powers. It is
my abiding conviction that the Senate will wield its powers in a fair
and objective fashion and in faithful obeisance to their sacred trust
to achieve this end.
"The highest proof of virtue," intoned Lord Macaulay, "is to possess
boundless power without abusing it." And so it must be that we yield
to the authority of the House of Representatives and the Senate on
the matter of the impeachment of one of our Brethren, and unless
the exercise of that authority is tainted with grave abuse of
discretion amounting to lack or excess of jurisdiction we should
refrain from interfering with the prerogatives of Congress. That, I
believe, is judicial statesmanship of the highest order which will
preserve the harmony among the three separate but co-equal
branches of government under our constitutional democracy.
IN VIEW OF THE FOREGOING, I maintain that in disposing of this case
we should exercise judicial restraint and leave the matter to the
Senate unless such exercise is fraught with grave abuse of discretion.
Hence, I find no legal obstacle to dismissing the instant petitions.
PUNO, J ., concurring and dissenting:
Over a century ago, Lord Bryce described the power of impeachment
as the "heaviest piece of artillery in the congressional arsenal."
Alexander Hamilton warned that any impeachment proceeding "will
seldom fail to agitate the passions of the whole community." His
word is prophetic for today we are in the edge of a crisis because of
the alleged unconstitutional exercise of the power of impeachment
by the House of Representatives.
Before the Court are separate petitions for certiorari, prohibition
and mandamus filed by different groups seeking to prevent the
House of Representatives from transmitting to the Senate the
Articles of Impeachment against Chief Justice Hilario G. Davide, Jr.,
alleging improper use of the Judiciary Development Fund (JDF), and
to enjoin the Senate from trying and deciding the case.
Let us first leapfrog the facts. On October 23, 2003, Representatives
Gilberto C. Teodoro, Jr., First District, Tarlac, and Felix William B.
Fuentebella, Third District, Camarines Sur, filed with the House of
Representatives a Complaint for Impeachment against Chief Justice
Hilario G. Davide, Jr. The complaint alleged the underpayment of the
cost of living allowance of the members and personnel of the
judiciary from the JDF, and unlawful disbursement of said fund for
various infrastructure projects and acquisition of service vehicles
and other equipment. The complaint was endorsed by one-third
(1/3) of all the members of the House of Representatives. It is set to
be transmitted to the Senate for appropriate action.
In the succeeding days, several petitions were filed with this Court
by members of the bar, members of the House of Representatives,
as well as private individuals, all asserting their rights, among others,
as taxpayers to stop the illegal spending of public funds for the
impeachment proceedings against the Chief Justice. The petitioners
contend that the filing of the present impeachment complaint
against the Chief Justice is barred under Article XI, Section 3 (5) of
the 1987 Constitution which states that "(n)o impeachment
proceedings shall be initiated against the same official more than
once within a period of one year." They cite the prior Impeachment
Complaint filed by Former President Joseph Ejercito Estrada against
the Chief Justice and seven associate justices of this Court on June 2,
2003 for allegedly conspiring to deprive him of his mandate as
President, swearing in then Vice President Gloria Macapagal-Arroyo
to the Presidency, and declaring him permanently disabled to hold
office. Said complaint was dismissed by the Committee on Justice of
the House of Representatives on October 23, 2003 for being
insufficient in substance. The recommendation has still to be
approved or disapproved by the House of Representatives in plenary
session.
On October 28, 2003, this Court issued a resolution requiring the
respondents and the Solicitor General to comment on the petitions
and setting the cases for oral argument on November 5, 2003. The
Court also appointed the following asamici curiae: Former Senate
President Jovito R. Salonga, former Constitutional Commissioner
Joaquin G. Bernas, retired Justice Hugo E. Gutierrez, Jr. of the
Supreme Court, retired Justice Florenz D. Regalado of the Supreme
Court, former Minister of Justice and Solicitor General Estelito P.
Mendoza, former Constitutional Commissioner and now Associate
Justice of the Court of Appeals, Regalado E. Maambong, Dean Raul
C. Pangalangan and former Dean Pacifico A. Agabin of the UP College
of Law. The Court further called on the petitioners and the
respondents to maintain the status quo and enjoined them to
refrain from committing acts that would render the petitions moot.
Both the Senate and the House of Representatives took the position
that this Court lacks jurisdiction to entertain the petitions at bar. The
Senate, thru its President, the Honorable Franklin Drilon further
manifested that the petitions are premature for the Articles of
89
Impeachment have not been transmitted to them. In its Special
Appearance, the House alleged that the petitions pose political
questions which are non-justiciable.
We then look at the profiles of the problems. On November 5 and 6,
2003, the Court heard the petitions on oral argument. It received
arguments on the following issues:
Whether the certiorari jurisdiction of the
Supreme Court may be invoked; who can
invoke it; on what issues and at what time;
and whether it should be exercised by this
Court at this time.
a)locus standi of petitioners;
b)ripeness (prematurity; mootness);
c)political question/justiciability;
d)House's "exclusive" power to initiate all
cases of impeachment;
e)Senate's "sole" power to try and decide all
cases of impeachment;
f)constitutionality of the House Rules on
Impeachment vis a vis Section 3 (5)
of Article XI of the Constitution; and
g)judicial restraint.
Due to the constraints of time, I shall limit my Opinion to the hot-
button issues of justiciability, jurisdiction and judicial restraint. For a
start, let us look to the history of thought on impeachment for its
comprehensive understanding.
A. The Origin and Nature of Impeachment:
The British Legacy
The historical roots of impeachment appear to have been lost in the
mist of time. Some trace them to the Athenian Constitution. 1 It is
written that Athenian public officials were hailed to law courts
known as "heliaea" upon leaving office. The citizens were then given
the right to charge the said officials before they were allowed to
bow out of office. 2
Undoubtedly, however, the modern concept of impeachment is part
of the British legal legacy to the world, especially to the United
States. 3 It was originally conceived as a checking mechanism on
executive excuses. 4 It was then the only way to hold royal officials
accountable. 5 The records reveal that the first English
impeachments took place in the reign of Edward III (1327-1377). 6 It
was during his kingship that the two houses of Lords and Commons
acquired some legislative powers. 7 But it was during the reign of
Henry IV (1399-1413) that the procedure was firmly established
whereby the House of Commons initiated impeachment proceedings
while the House of Lords tried the impeachment
cases. 8 Impeachment in England covered not only public officials
but private individuals as well. There was hardly any limitation in the
imposable punishment. 9
Impeachment in England skyrocketed during periods of institutional
strifes and was most intense prior to the Protestant Revolution. Its
use declined when political reforms were instituted. 10 Legal
scholars are united in the view that English impeachment partakes
of a political proceeding and impeachable offenses are political
crimes. 11
B. Impeachment in the United States:
Its political character
The history of impeachment in colonial America is scant and hardly
instructive. In the royal colonies, governors were appointed by the
Crown while in the proprietary colonies, they were named by the
proprietor. 12 Their tenure was uncertain. They were dismissed for
disobedience or inefficiency or political patronage. 13 Judges were
either commissioned in England or in some instances appointed by
the governor. They enjoyed no security of office. 14
The first state constitutions relied heavily on common law traditions
and the experience of colonial government. 15 In each state, the
Constitution provided for a Chief Executive, a legislature and a
judiciary. 16 Almost all of the Constitutions provided for
impeachment. 17 There were differences in the impeachment
process in the various states. 18 Even the grounds for impeachment
and their penalties were dissimilar. In most states, the lower house
of the legislature was empowered to initiate the impeachment
proceedings. 19 In some states, the trial of impeachment cases was
given to the upper house of the legislature; in others, it was
entrusted to a combination of these fora. 20 At the national level,
the 1781 Articles of Confederation did not contain any provision on
impeachment. 21
Then came the Philadelphia Constitutional Convention of 1787. In
crafting the provisions on impeachment, the delegates were again
guided by their colonial heritage, the early state constitutions, and
common law traditions, especially the British legacy. 22
The records show that Edmund Randolph of the State of Virginia
presented to the Convention what came to be known as the Virginia
Plan of structure of government. It was largely the handiwork of
James Madison, Father of the American Constitution. It called for a
strong national government composed of an executive, a bicameral
legislature and a judiciary. 23 The Virginia Plan vested jurisdiction in
the judiciary over impeachment of national officers. 24 Charles
Pinkney of South Carolina offered a different plan. He lodged the
power of impeachment in the lower house of the legislature but the
right to try was given to the federal judiciary. 25 Much of the
impeachment debates, however, centered on the accountability of
the President and how he should be impeached. A Committee called
Committee on Detail 26recommended that the House of
Representatives be given the sole power of impeachment. It also
suggested that the Supreme Court should be granted original
jurisdiction to try cases of impeachment. The matter was further
referred to a Committee of Eleven chaired by David Brearley of New
Hampshire. 27 It suggested that the Senate should have the power
to try all impeachments, with a 2/3 vote to convict. The Vice
President was to be ex-officio President of the Senate, except when
the President was tried, in which event the Chief Justice was to
preside. 28 Gouverneur Morris explained that "a conclusive reason
for making the Senate instead of the Supreme Court the Judge of
impeachments, was that the latter was to try the President after the
trial of the impeachment." 29 James Madison insisted on the
Supreme Court and not the Senate as the impeachment court for it
would make the President "improperly dependent.”30 Madison's
stand was decisively rejected. 31 The draft on the impeachment
provisions was submitted to a Committee on Style which finalized
them without effecting substantive changes. 32
Prof. Gerhardt points out that there are eight differences between
the impeachment power provided in the US Constitution and the
British practice: 33
First, the Founders limited impeachment only
to "[t]he President, Vice President and all civil
Officers of the United States." Whereas at the
time of the founding of the Republic, anyone
(except for a member of the royal family)
could be impeached in England. Second, the
delegates to the Constitutional Convention
narrowed the range of impeachable offenses
for public officeholders to "Treason, Bribery,
or other high Crimes and Misdemeanors,"
although the English Parliament always had
90
 refused to constrain its jurisdiction over
impeachments by restrictively defining
impeachable offenses. Third, whereas the
English House of Lords could convict upon a
bare majority, the delegates to the
Constitutional Convention agreed that in an
impeachment trial held in the Senate, "no
Person shall be convicted [and removed from
office] without the concurrence of two thirds
of the Members present." Fourth, the House
of Lords could order any punishment upon
conviction, but the delegates limited the
punishments in the federal impeachment
process "to removal from Office, and
disqualification to hold and enjoy any Office of
Honor, Trust, or Profit under the United
States." Fifth, the King could pardon any
person after an impeachment conviction, but
the delegates expressly prohibited the
President from exercising such power in the
Constitution. Sixth, the Founders provided
that the President could be impeached,
whereas the King of England could not be
impeached. Seventh, impeachment
proceedings in England were considered to be
criminal, but the Constitution separates
criminal and impeachment proceedings.
Lastly, the British provided for the removal of
their judges by several means, whereas the
Constitution provides impeachment as the
sole political means of judicial removal.
It is beyond doubt that the metamorphosis which the British
concept of impeachment underwent in the Philadelphia
Constitutional Convention of 1789 did not change its political
nature. In the Federalist No. 65, Alexander Hamilton observed:
The subject of the Senate jurisdiction [in an
impeachment trial] are those offenses which
proceed from the misconduct of public man or
in other words, from the abuse or violation of
some public trust. They are of a political
nature which may with peculiar propriety be
denominated political, as they relate chiefly to
injuries done immediately to the society itself .
Justice James Wilson characterized impeachments as
proceedings of a political nature "confined to political
characters, to political crimes and misdemeanors, and to
political punishments." 34 Another constitutionalist, McDowell
emphasized: "To underscore the inherently political nature of
impeachment, the Founders went further and provided that the
right to a jury trial was to be secured for 'all crimes except in
cases of impeachment.' When it came to the President, unlike
his powers to interfere with ordinary crimes, the Founders
sought to limit his power to interfere with impeachments. His
power to grant reprieves and pardons for offenses against the
United States was granted broadly 'except in cases of
impeachment.'" 35
A painstaking study of state court decisions in the United States will
reveal that almost invariably state courts have declined to review
decisions of the legislature involving impeachment cases consistent
with their character as political.36 In the federal level, no less than
the US Supreme Court, thru Chief Justice Rehnquist, held in the 1993
case of Nixon v.United States 37 that the claim that the US Senate
rule which allows a mere committee of senators to hear evidence of
the impeached person violates the Constitution is non-justiciable. I
quote the ruling in extenso:
xxx xxx xxx
The history and contemporary understanding
of the impeachment provisions support our
reading of the constitutional language. The
parties do not offer evidence of a single word
in the history of the Constitutional Convention
or in contemporary commentary that even
alludes to the possibility of judicial review in
the context of the impeachment powers. See
290 US App DC, at 424, 938 F2d, at 243; R.
Berger, Impeachment: The Constitutional
Problems 116 (1973). This silence is quite
meaningful in light of the several explicit
references to the availability of judicial review
as a check on the Legislature's power with
respect to bills of attainder, ex post facto laws,
and statutes. See the Federalist No. 78 p 524
(J. Cooke ed 1961) ("Limitations . . . can be
preserved in practice no other way than
through the medium of the courts of justice").
The Framers labored over the question of
where the impeachment power should lie.
Significantly, in at least two considered
scenarios the power was placed with the
Federal Judiciary. See 1 Farrand 21-22 (Virginia
Plan);id., at 244 (New Jersey Plan). Indeed,
Madison and the Committee of Detail
proposed that the Supreme Court should have
the power to determine impeachments. See
2 id., at 551 (Madison); id., at 178-179, 186
(Committee of Detail). Despite these
proposals, the Convention ultimately decided
that the Senate would have "the sole Power to
Try all Impeachments." Art I, § 3, cl 6.
According to Alexander Hamilton, the Senate
was the "most fit depositary of this important
trust" because its members are
representatives of the people. See The
Federalist No. 65, p. 440 (J. Cooke ed 1961).
The Supreme Court was not the proper body
because the Framers "doubted whether the
members of that tribunal would, at all times,
be endowed with so eminent a portion of
fortitude as would be called for in the
execution of so difficult a task" or whether the
Court "would possess the degree of credit and
authority" to carry out its judgment if it
conflicted with the accusation brought by the
Legislature — the people's representative. See
id., at 441. In addition, the Framers believed
the Court was too small in number: "The
lawful discretion, which a court of
impeachments must necessarily have, to
doom to honor or to infamy the most
confidential and the most distinguished
characters of the community, forbids the
commitment of the trust to a small number of
persons." Id., at 441-442.
There are two additional reasons why the
Judiciary, and the Supreme Court in particular,
were not chosen to have any role in
impeachments. First, the Framers recognized
that most likely there would be two sets of
proceedings for individuals who commit
impeachable offenses — the impeachment
trial and a separate criminal trial. In fact, the
Constitution explicitly provides for two
separate proceedings. See Art I, § 3, cl 7. The
Framers deliberately separated the two
forums to avoid raising the specter of bias and
to ensure independent judgments:
Would it be proper that the persons,
who had disposed of his fame and
his most valuable rights as a citizen
in one trial, should in another trial,
for the same offense, be also the
disposers of his life and his fortune?
91
 Would there not be the greatest
reason to apprehend, that error in
the first sentence would be the
parent of error in the second
sentence? That the strong bias of
one decision would be apt to
overrule the influence of any new
lights, which might be brought to
vary the complexion of another
decision? The Federalist No. 65, p
442 (J. Cooke ed 1961)
Certainly judicial review of the Senate's "trial"
would introduce the same risk of bias as
would participation in the trial itself.
Second, judicial review would be inconsistent
with the Framers' insistence that our system
be one of checks and balances. In our
constitutional system, impeachment was
designed to be the only check on the Judicial
Branch by the Legislature. On the topic of
judicial accountability, Hamilton wrote:
The precautions for their
responsibility are comprised in the
article respecting impeachments.
They are liable to be impeached for
mal-conduct by the house of
representatives, and tried by the
senate, and if convicted, may be
dismissed from office and
disqualified for holding any
other. This is the only provision on
the point, which is consistent with
the necessary independence of the
judicial character, and is the only
one which we find in our own
constitution in respect to our own
judges. Id., No. 79, pp. 532-533
(emphasis added)
Judicial involvement in impeachment
proceedings, even if only for purposes of
judicial review, is counterintuitive because it
would eviscerate the "important
constitutional check" placed on the Judiciary
by the Framers. See id., No. 81, p 545.
In fine, impeachment is dominantly political in character both in
England and in the United States.
C. The Nature of Impeachment in the Philippine Setting
Given its history, let us now consider the nature of impeachment in
the Philippine setting, i.e., whether it is likewise political in nature. A
revisit of the political question doctrine will not shock us with the
unfamiliar. In Tañada v. Cuenco,38 we held that the term political
question connotes what it means in ordinary parlance, namely, a
question of policy. It refers to "those questions which under the
Constitution, are to be decided by the people in their sovereign
capacity; or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of government. It is
concerned with issues dependent upon the wisdom, not legality of a
particular measure." In Sanidad v. COMELEC, 39 we further held that
"political questions are not the legality of a particular act. Where the
vortex of the controversy refers to the legality or validity of the
contested act, the matter is definitely justiciable or non-political."
Over the years, the core concept of political question and its
contours underwent further refinement both here and abroad. In
the 1962 landmark case of Baker v. Carr, 40 Mr. Justice Brennan, a
leading light in the Warren Court known for its judicial
activism, 41 delineated the shadowy umbras and penumbras of a
political question. He held:
. . . Prominent on the surface of any case held
to involve a political question is found a
textually demonstrable constitutional
commitment of the issue to a coordinate
political department; or a lack of judicially
discoverable and manageable standards for
resolving it; or the impossibility of deciding
without an initial policy determination of a
kind clearly for non-judicial discretion; or the
impossibility of a court's undertaking
independent resolution without expressing
lack of the respect due coordinate branches of
government; or an unusual need for
unquestioning adherence to a political
decision already made; or the potentiality of
embarrassment from multifarious
pronouncements by various departments on
one question.
The political question problem raises the issue of justiciability of the
petitions at bar. Parenthetically, the issue of justiciability is different
from the issue of jurisdiction. Justiciability refers to the suitability of
a dispute for judicial resolution. 42 Mr. Justice Frankfurter considers
political question unfit for adjudication for it compels courts to
intrude into the "political thicket." In contrast, jurisdiction refers to
the power of a court to entertain, try and decide a case.
C.1. The issues at bar are justiciable
Prescinding from these premises, I shall now grapple with
the threshold issue of whether the petitions at bar pose political
questions which are non-justiciable or whether they present legal
and constitutional issues over which this Court has jurisdiction. The
resolution of the issue demands a study that goes beyond the depth
of the epidermis. We give the impeachment provisions of our
Constitution a historical, textual, legal and philosophical lookover.
The historiography of our impeachment provisions will show that
they were liberally lifted from the US Constitution. Following an
originalist interpretation, there is much to commend to the thought
that they are political in nature and character. The political character
of impeachment hardly changed in our 1935, 1973 and 1987
Constitutions. Thus, among the grounds of impeachment are "other
high crimes or betrayal of public trust." 43 They hardly have any
judicially ascertainable content. The power of impeachment is
textually committed to Congress, a political branch of government.
The right to accuse is exclusively given to the House of
Representatives. 44 The right to try and decide is given solely to the
Senate 45 and not to the Supreme Court. The Chief Justice has a
limited part in the process — to preside but without the right to vote
when the President is under impeachment. 46 Likewise, the
President cannot exercise his pardoning power in cases of
impeachment. 47 All these provisions confirm the inherent nature of
impeachment as political.
Be that as it may, the purity of the political nature of impeachment
has been lost. Some legal scholars characterize impeachment
proceedings as akin to criminal proceedings. Thus, they point to
some of the grounds of impeachment like treason, bribery, graft and
corruption as well defined criminal offenses. 48 They stress that the
impeached official undergoes trial in the Senate sitting as an
impeachment court. 49 If found guilty, the impeached official suffers
a penalty"which shall not be further than removal from office and
disqualification to hold any office under the Republic of the
Philippines." 50
I therefore respectfully submit that there is now a commixture of
political and judicial components in our reengineered concept of
impeachment. It is for this reason and more that impeachment
proceedings are classified as sui generis. To be sure, our
impeachment proceedings are indigenous, a kind of its own. They
have been shaped by our distinct political experience especially in
the last fifty years. EDSA People Power I resulted in the radical
92
rearrangement of the powers of government in the 1987 to determine the proper allocation of powers
Constitution. Among others, the powers of the President were between the several departments and among
diminished. Substantive and procedural restrictions were placed in the integral or constituent units thereof.
the President's most potent power — his power as Commander-in-
Chief. Thus, he can suspend the privilege of the writ of habeas xxx xxx xxx
corpus or place the Philippines or any part thereof under martial law
but only for a period not exceeding sixty days. 51 Within forty-eight
The Constitution is a definition of the powers
hours from such suspension or proclamation, he is required to
of government. Who is to determine the
submit a report to Congress. 52 The sufficiency of the factual basis of
nature, scope and extent of such powers? The
the suspension of habeas corpus or the proclamation of martial law
Constitution itself has provided for the
may be reviewed by the Supreme Court. 53 Similarly, the powers of
instrumentality of the judiciary as the rational
the legislature were pruned down. 54 Its power of impeachment was
way. And when the judiciary mediates to
reconfigured to prevent abuses in its exercise. Even while Article XI of
allocate constitutional boundaries, it does not
the Constitution lodged the exercise of the power of impeachment
assert any superiority over the other
solely with Congress, nonetheless it defined how the procedure shall
departments; it does not in reality nullify or
be conducted from the first to the last step. Among the new features
invalidate an act of the legislature, but only
of the proceedings is Section 3 (5) which explicitly provides that "no
asserts the solemn and sacred obligation
impeachment proceedings shall be initiated against the same official
assigned to it by the Constitution to determine
more than once within a period of one year." In contrast, the 1987
conflicting claims of authority under the
Constitution gave the Judiciary more powers. Among others, it
Constitution and to establish for the parties in
expanded the reach and range of judicial power by defining it as
an actual controversy the rights which that
including ". . . the duty of the courts of justice to settle actual
instrument secures and guarantees to them.
controversies involving rights which are legally demandable and
This is in truth all that is involved in what is
enforceable, and to determine whether or not there has been
termed "judiciary supremacy" which properly
a grave abuse of discretion amounting to lack or excess of
is the power of judicial review under the
jurisdiction on the part of any branch or instrumentality of the
Constitution.
government." 55 Likewise, it expanded the rule making power of the
Court. It was given the power to promulgate rules concerning the
protection and enforcement of constitutional rights. 56 To be sure, the force to impugn the jurisdiction of this Court
becomes more feeble in light of the new Constitution which
expanded the definition of judicial power as including "the duty
In light of our 1987 constitutional canvass, the question is whether
of the courts of justice to settle actual controversies involving
this Court can assume jurisdiction over the petitions at bar. As
rights which are legally demandable and enforceable, and to
aforediscussed, the power of impeachment has both political and
determine whether or not there has been a grave abuse of
non-political aspects. I respectfully submit that the petitions at bar
discretion amounting to lack or excess of jurisdiction on the
concern its non-political aspect, the issue of whether the
part of any branch or instrumentality of the Government." As
impeachment complaint against Chief Justice Davide involving the
well observed by retired Justice Isagani Cruz, this expanded
JDF is already barred by the 1-year rule under Article XI, Section 3(5)
definition of judicial power considerably constricted the scope
of the Constitution. By any standard, this is a justiciable issue. As
of political question. 59 He opined that the language luminously
held in Casibang v. Aquino, 57 a justiciable question implies a given
suggests that this duty (and power) is available even against the
right, legally demandable, and enforceable, an act or omission
executive and legislative departments including the President
violative of such right, and a remedy granted and sanctioned by law,
and the Congress, in the exercise of
for said breach of right." The petitions at bar involve the right of the
their discretionary powers. 60
Chief Justice against the initiation of a second impeachment within
one year after a first impeachment complaint. The right is
guaranteed by no less than the Constitution. It is demandable. It is a
right that can be vindicated in our courts. We shall not be breaking grounds in striking down an act of a co-
equal branch of government or an act of an independent agency of
The contention that Congress, acting in its constitutional capacity as government done in grave abuse of discretion. Article VI, Section 17
an impeachment body, has jurisdiction over the issues posed by the of the 1987 Constitution provides, inter alia, that the House of
petitions at bar has no merit in light of our long standing Representatives Electoral Tribunal (HRET) shall be the "sole judge" of
jurisprudence. The petitions at bar call on the Court to define the all contests relating to the election, returns, and qualifications of the
powers that divide the jurisdiction of this Court as the highest court members of the House. In Bondoc v. Pineda, et al. 61 this Court
of the land and Congress as an impeachment court. In the seminal declared null and void the Resolution of the House of
case of Angara v. Electoral Commission, 58 we held that ". . . Representatives withdrawing the nomination, and rescinding the
the onlyconstitutional organ which can be called upon to determine election of Congressman Camasura as a member of the HRET. His
the proper allocation of powers between the several departments expulsion from the HRET by the House of Representatives was held
and among the integral or constituents thereof is the judicial not to be for a lawful and valid cause, but to unjustly interfere with
department." So ruled Mr. Justice Laurel as ponente: the tribunal's disposition of the Bondoc case and deprive Bondoc of
the fruits of the HRET's decision in his favor. This Court found that
xxx xxx xxx the House of Representatives acted with grave abuse of discretion in
removing Congressman Camasura. Its action was adjudged to be
violative of the constitutional mandate which created the HRET to be
But in the main, the Constitution has blocked
the "sole judge" of the election contest between Bondoc and Pineda.
out with deft strokes and in bold lines,
We held that a showing that plenary power is granted either
allotment of power to the executive, the
department of government is not an obstacle to judicial inquiry, for
legislative and the judicial departments of the
the improvident exercise or the abuse thereof may give rise to a
government. The overlapping and interlacing
justiciable controversy. Since "a constitutional grant of authority is
of functions and duties between the several
not unusually unrestricted, limitations being provided for as to what
departments, however, sometimes makes it
may be done and how it is to be accomplished, necessarily then, it
hard to say just where the one leaves off and
becomes the responsibility of the courts to ascertain whether the
the other begins. In times of social disquietude
two coordinate branches have adhered to the mandate of the
or political excitement, the great landmarks of
fundamental law. The question thus posed is judicial rather than
the Constitution are apt to be forgotten or
political."
marred, if not entirely obliterated. In cases of
conflict, the judicial department is the only
constitutional organ which can be called upon We further explained that the power and duty of courts to nullify, in
appropriate cases, the actions of the executive and legislative
93
branches does not mean that the courts are superior to the
President and the Legislature. It does mean though that the judiciary
may not shirk "the irksome task" of inquiring into the
constitutionality and legality of legislative or executive action when a
justiciable controversy is brought before the courts by someone who
has been aggrieved or prejudiced by such action. It is "a plain
exercise of judicial power, the power vested in courts to enable
them to administer justice according to law. . . . It is simply a
necessary concomitant of the power to hear and dispose of a case or
controversy properly before the court, to the determination of
which must be brought the test and measure of the law." 62
In Angara v. Electoral Commission, 63 we also ruled that the
Electoral Commission, a constitutional organ created for the specific
purpose of determining contests relating to election returns and
qualifications of members of the National Assembly may not be
interfered with by the judiciary when and while acting within the
limits of authority, but this Court has jurisdiction over the Electoral
Commission for the purpose of determining the character, scope and
extent of the constitutional grant to the commission as sole judge of
all contests relating to the election and qualifications of the
members of the National Assembly.
Similarly, in Arroyo v. House of Representatives Electoral Tribunal
(HRET) and Augusto Syjuco, 64 we nullified the HRET's decision
declaring private respondent Syjuco as the duly elected
Congressman of Makati for having been rendered in persistent and
deliberate violation of the Tribunal's own governing rules and the
rules of evidence.
To be sure, this Court has reviewed not just acts of the HRET but also
of the House of Representatives itself . We passed upon the issue of
whether the procedure for passing a law provided by the
Constitution was followed by the House of Representatives and the
Senate in Tolentino v. Secretary of Finance, et al. 65 involving R.A.
No. 7716 or the VAT law. We ruled that the VAT law satisfied the
constitutional provision requiring that all appropriation, revenue and
tariff bills originate from the House of Representatives under Article
VI, Section 24 of the 1987 Constitution. We also interpreted the
constitutional provision requiring the reading of a bill on three
separate days "except when the President certifies to the necessity
of its immediate enactment, etc." and held that this requirement
was satisfied when the bill which became R.A. No. 7716 underwent
three readings on the same day as the President certified the bill as
urgent. Finally, we interpreted the Rules of the Senate and the
House of Representatives and held that there was nothing irregular
about the conference committee including in its report an entirely
new provision not found either in the House bill or in the Senate bill
as this was in accordance with the said Rules.
The recent case of Macalintal v. COMELEC 66 on absentee voting
affirmed the jurisdiction of this Court to review the acts of the
legislature. In said case, the Court settled the question of propriety
of the petition which appeared to be visited by the vice of
prematurity as there were no ongoing proceedings in any tribunal,
board or before a government official exercising judicial, quasi-
judicial or ministerial functions as required by Rule 65 of the Rules of
Court. The Court considered the importance of the constitutional
issues raised by the petitioner, and quoted Tañada
v. Angara 67 stating that "where an action of the legislative branch is
seriously alleged to have infringed the Constitution, it becomes not
only the right but in fact the duty of the judiciary to settle the
dispute."
I therefore concur with the majority that the issues posed by the
petitions at bar are justiciable and this Court has jurisdiction over
them.
D. The Exercise of Jurisdiction: Theory and Limits of Judicial
Restraint, Judicial Activism and the Coordinacy Theory of
Constitutional Interpretation
The next crucial question is whether the Court should now exercise its
jurisdiction. Former Senate President Salonga says not yet and
counsels restraint. So do Deans Agabin and Pangalangan of the UP
College of Law. To be sure, there is much to commend in judicial
restraint. Judicial restraint in constitutional litigation is not merely a
practical approach to decision-making. With humility, I wish to
discuss its philosophical underpinnings. As a judicial stance, it is
anchored on a heightened regard for democracy. It accords intrinsic
value to democracy based on the belief that democracy is an
extension of liberty into the realm of social decision-
making. 68 Deference to the majority rule constitutes the flagship
argument of judicial restraint 69 which emphasizes that in
democratic governance, majority rule is a necessary principle.70
Judicial restraint assumes a setting of a government that is
democratic and republican in character. Within this democratic and
republican framework, both the apostles of judicial restraint and the
disciples of judicial activism agree that government cannot act
beyond the outer limits demarcated by constitutional boundaries
without becoming subject to judicial intervention. The issue that
splits them is the location of those limits. They are divided in
delineating the territory within which government can function free
of judicial intervention. Cases raising the question of whether an act
by Congress falls within the permissible parameters of its discretion
provide the litmus test on the correctness of judicial restraint as a
school of thought. The democratic value assists the judicial
restraintist in arriving at an answer. It nudges the judge who
considers democracy as an intrinsic and fundamental value to grant
that the discretion of the legislature is large and that he cannot
correct any act or enactment that comes before the court solely
because it is believed to be unwise. The judge will give to the
legislature the leeway to develop social policy and apart from what
the Constitution proscribes, concede that the legislature has a "right
to be wrong" and will be answerable alone to the people for the
exercise of that unique privilege. It is better for the majority to make
a mistaken policy decision, within broad limits, than for a judge to
make a correct one. 71 As an unelected official, bereft of a
constituency and without any political accountability, the judge
considers that respect for majoritarian government compels him to
be circumspect in invalidating, on constitutional grounds, the
considered judgments of legislative or executive officials, whose
decisions are more likely to reflect popular sentiments. 72
Judicial restraint thus gives due deference to the judiciary's co-equal
political branches of government comprised of democratically
elected officials and lawmakers, and encourages separation of
powers. 73 It is consistent and congruent with the concept of
balance of power among the three independent branches of
government. It does not only recognize the equality of the other two
branches with the judiciary, but fosters that equality by minimizing
inter-branch interference by the judiciary. It may also be
called judicial respect, that is, respect by the judiciary for other co-
equal branches. In one of the earliest scholarly treatments of judicial
review, "The Origin and Scope of the American Doctrine of
Constitutional Law", published in 1893, Prof. James Bradley Thayer
of Harvard established strong support for the rule that courts should
invalidate legislative acts only when their unconstitutionality is
established with great certainty. 74Many commentators agree that
early notions of judicial review adhered to a "clear-error" rule that
courts should not strike down legislation if its constitutionality were
merely subject to doubt. 75 For Thayer, full and free play must be
allowed to "that wide margin of considerations which address
themselves only to the practical judgment of a legislative body."
Thayer's thesis of judicial deference had a significant influence on
Justices Holmes, Brandeis, and Frankfurter. 76Justice Frankfurter is
the philosopher of the school of thought trumpeting judicial
restraint. As he observed "if judges want to be preachers, they
should dedicate themselves to the pulpit; if judges want to be
primary shapers of policy the legislature is their place. 77 He opined
that there is more need for justices of the Supreme Court to learn
the virtue of restraint for the cases they consider "leave more scope
for insight, imagination and prophetic responsibility." 78
Adherents of judicial restraint warn that under certain
circumstances, the active use of judicial review has a detrimental
effect on the capacity of the democratic system to function
94
effectively. Restraintists hold that large-scale reliance upon the
courts for resolution of public problems could lead in the long run to
atrophy of popular government and collapse of the "broad-based
political coalitions and popular accountability that are the lifeblood
of the democratic system." 79 They allege that aggressive judicial
review saps the vitality from constitutional debate in the
legislature. 80 It leads to democratic debilitation where the
legislature and the people lose the ability to engage in informed
discourse about constitutional norms. 81
Judicial restraint, however, is not without criticisms. Its unbelievers
insist that the concept of democracy must include recognition of
those rights that make it possible for minorities to become
majorities. They charge that restraintists forget that minority rights
are just as important a component of the democratic equation as
majority rule is. They submit that if the Court uses its power of
judicial review to guarantee rights fundamental to the democratic
process — freedoms of speech, press, assembly, association and the
right to suffrage — so that citizens can form political coalitions and
influence the making of public policy, then the Court would be just
as "democratic" as Congress.
Critics of judicial restraint further stress that under this theory, the
minority has little influence, if at all it can participate, in the political
process. Laws will reflect the beliefs and preferences of the majority,
i.e., the mainstream or median groups. 82 The restraintist's position
that abridgments of free speech, press, and association and other
basic constitutional rights should be given the same deference as is
accorded legislation affecting property rights, will perpetuate
suppression of political grievances. Judicial restraint fails to
recognize that in the very act of adopting and accepting a
constitution and the limits it specifies, the majority imposes upon
itself a self-denying ordinance. It promises not to do what it
otherwise could do: to ride roughshod over the dissenting
minorities. 83 Thus, judicial activists hold that the Court's
indispensable role in a system of government founded on doctrines
of separation of powers and checks and balances is a legitimator of
political claims and a catalyst for the aggrieved to coalesce and
assert themselves in the democratic process. 84
I most respectfully submit, however, that the 1987 Constitution
adopted neither judicial restraint nor judicial activism as a political
philosophy to the exclusion of each other. The expanded definition of
judicial power gives the Court enough elbow room to be more
activist in dealing with political questions but did not necessarily
junk restraint in resolving them. Political questions are not
undifferentiated questions. They are of different variety.
The antagonism between judicial restraint and judicial activism is
avoided by the coordinacy theory of constitutional interpretation.
This coordinacy theory gives room for judicial restraint without
allowing the judiciary to abdicate its constitutionally mandated duty
to interpret the constitution. Coordinacy theory rests on the premise
that within the constitutional system, each branch of government
has an independent obligation to interpret the Constitution. This
obligation is rooted on the system of separation of powers. 85 The
oath to "support this Constitution," — which the constitution
mandates judges, legislators and executives to take — proves this
independent obligation. Thus, the coordinacy theory accommodates
judicial restraint because it recognizes that the President and
Congress also have an obligation to interpret the constitution. In
fine, the Court, under the coordinacy theory, considers the
preceding constitutional judgments made by other branches of
government. By no means however, does it signify complete judicial
deference. Coordinacy means courts listen to the voice of the
President and Congress but their voice does not silence the judiciary.
The doctrine in Marbury v. Madison 86 that courts are not bound by
the constitutional interpretation of other branches of government
still rings true. As well stated, "the coordinacy thesis is quite
compatible with a judicial deference that accommodates the views
of other branches, while not amounting to an abdication of judicial
review." 87
With due respect, I cannot take the extreme position of judicial
restraint that always defers on the one hand, or judicial activism that
never defers on the other. I prefer to take the contextual approach of
the coordinacy theory which considers the constitution's allocation
of decision-making authority, the constitution's judgments as to the
relative risks of action and inaction by each branch of government,
and the fears and aspirations embodied in the different provisions of
the constitution. The contextual approach better attends to the
specific character of particular constitutional provisions and
calibrates deference or restraint accordingly on a case to case basis.
In doing so, it allows the legislature adequate leeway to carry out
their constitutional duties while at the same time ensuring that any
abuse does not undermine important constitutional principles. 88
I shall now proceed to balance these constitutional values. Their
correct calibration will compel the conclusion that this Court should
defer the exercise of its ultimate jurisdiction over the petitions at bar
out of prudence and respect to the initial exercise by the legislature
of its jurisdiction over impeachment proceedings. First, judicial
deferment of judgment gives due recognition to the unalterable fact
that the Constitution expressly grants to the House of
Representatives the "exclusive" power to initiate impeachment
proceedings and gives to the Senate the "sole" power to try and
decide said cases. The grant of this power — the right to accuse on
the part of the House and the right to try on the part of the Senate
— to Congress is not a happenstance. At its core, impeachment is
political in nature and hence its initiation and decision are best left,
at least initially, to Congress, a political organ of government. The
political components of impeachment are dominant and their
appreciation are not fit for judicial resolution. Indeed, they are
beyond the loop of judicial review. Second, judicial deferment will, at
the very least, stop our descent to a constitutional crisis. Only those
with the armor of invincible ignorance will cling to the fantasy that a
stand-off between this Court and Congress at this time will not tear
asunder our tenuous unity. There can be no debate on the
proposition that impeachment is designed to protect the principles
of separation of powers and checks and balances, the glue that holds
together our government. If we weaken the glue, we shall be flirting
with the flame of disaster. An approach that will bring this Court to
an irreversible collision with Congress, a collision where there will be
no victors but victims alone, is indefensible. The 1924 case
of Alejandrino v. Quezon 89 teaches us that the system of checks
and balances should not disturb or harm the harmony in
government. This theme resonates in the 1936 case of Angara
v. Electoral Commission, where Justice Laurel brightlined the
desideratum that the principle of checks and balances is meant "to
secure coordination in the workings of the various departments of
the government." Our government has three branches but it has but
one purpose — to preserve our democratic republican form of
government — and I refuse to adopt an approach that refuses to
reconcile the powers of government. Third, the Court should strive
to work out a constitutional equilibrium where each branch of
government cannot dominate each other, an equilibrium where
each branch in the exercise of its distinct power should be left alone
yet bereft of a license to abuse. It is our hands that will cobble the
components of this delicate constitutional equilibrium. In the
discharge of this duty, Justice Frankfurter requires judges to exhibit
that "rare disinterestedness of mind and purpose, a freedom from
intellectual and social parochialism." The call for that quality of "rare
disinterestedness" should counsel us to resist the temptation of
unduly inflating judicial power and deflating the executive and
legislative powers. The 1987 Constitution expanded the parameters
of judicial power, but that by no means is a justification for the
errant thought that the Constitution created an imperial judiciary. An
imperial judiciary composed of the unelected, whose sole
constituency is the blindfolded lady without the right to vote, is
counter-majoritarian, hence, inherently inimical to the central ideal
of democracy. We cannot pretend to be an imperial judiciary for in a
government whose cornerstone rests on the doctrine of separation
of powers, we cannot be the repository of all remedies. It is true that
this Court has been called the conscience of the Constitution and the
last bulwark of constitutional government. 90 But that does not
diminish the role of the legislature as co-guardian of the
Constitution. In the words of Justice Cardozo, the "legislatures are
ultimate guardians of the liberties and welfare of the people in quite
as great a degree as courts." 91 Indeed, judges take an oath to
preserve and protect the Constitution but so do our
legislators. Fourth, we have the jurisdiction to strike down
95
impermissible violations of constitutional standards and procedure
in the exercise of the power of impeachment by Congress but
the timing when the Court must wield its corrective certiorari power
rests on prudential considerations. I agree that judicial review is no
longer a matter of power for if it were power alone we can refuse to
exercise it and yet be right. As well put by Justice Brandeis, "the
most important thing we decide is what not to decide." Indeed,
judicial review is now a matter of duty, and it is now wrong to
abdicate its exercise. Be that as it may, the timing of its exercise
depends on the sense of the situation by the Court and its sense
depends on the exigencies created by the motion and movement of
the impeachment proceedings and its impact on the interest of our
people. We are right in ruling we have jurisdiction but the wrong
timing of the exercise of our jurisdiction can negate the existence of
our very jurisdiction and with catastrophic consequence. The words
of former Senate President Jovito Salonga, an amicus curiae, ought
to bridle our rush to judgment — this Court will eventually have
jurisdiction but not yet. I quote his disquisition, viz:
Assuming the question of propriety can be
surmounted, should the Supreme Court
render a decision at this time?
This brings us back to the realities of the 2nd
Impeachment Complaint and the question of
propriety posed earlier.
1.There are moves going on to get enough
members of Congress to withdraw
their signatures down to 75 or less,
even before the resumption of the
sessions on November 10, 2003, so
as to render this whole controversy
moot and academic. Malacañang is
also pushing for a Covenant which
may or may not succeed in ending
the controversy.
2.Assuming the desired number of
withdrawals is not achieved and the
Covenant does not gain enough
support among the NPC
congressmen, there are still a
number of steps to be taken in the
House in connection with the First
Impeachment Complaint — before
the Second Impeachment Complaint
can be transmitted to the Senate.
Moreover, if it is true that the House
Committee on Justice has not yet
finished its inquiry into the
administration of the Judicial
Development Fund, the Committee
may be persuaded to call the
officials of the Commission on Audit
to explain the COA Special Audit
Report of September 5, 2003 and
help the Committee Chair and
members to carry out and complete
their work, so the Committee can
submit its Report to the entire
House for its information and
approval.
I understand a number of congressmen may
also raise the question of
compliance with the due process
clause in handling the Impeachment
Complaint against Chief Justice
Davide, particularly the twin
requirements of notice and hearing.
It may be too early to predict
whether the House session on
November 10, 2003 (and perhaps in
the succeeding days), will be smooth
and easy or rough and protracted.
Much will depend on developments
after this hearing in this Court (on
November 5). In politics, it has been
said, one day — especially in
Congress — can be a long, long time.
3.Whatever happens in the House, a lot of
things can happen outside — in the
streets, in the stock market, in
media, in Government and in public
assemblies throughout the country.
All these will have a great bearing on
what happens in the House and in
the Senate.
4.If the 2nd Impeachment Complaint finally
reaches the Senate, a number of
things can be done before the
Senate is convened as an
Impeachment Court. For example,
the Senate, which has the primary
jurisdiction over the case, can decide
the question of whether the one-
year ban has been violated or not.
Likewise, the Senate can decide
whether the Complaint, on its face,
has any legal basis. Considering,
among other things, that only two
congressmen filed the 2nd
Impeachment Complaint — the
other congressmen were mere
endorsers — the Complaint cannot
qualify for Senate Impeachment trial
as pointed out by Attys. Macalintal
and Quadra. Dismissal of the 2nd
Impeachment Complaint can be
done by the Senate motu proprio or
through a Motion to Quash filed on
behalf of Chief Justice Davide. If the
Senate decides that the one-year
ban has been violated or that the
Complaint on its face has no leg to
stand on, this could be the end of
the whole controversy.
My point is that there may be no urgent need
for this august tribunal to render a decision at
this point. The Supreme Court, which has final
jurisdiction on questions of constitutionality,
should be the final arbiter; it should be the
authoritative court of last resort in our system
of democratic governance. In my view, all the
remedies in the House and in the Senate
should be exhausted first. Only when this case
is ripe for judicial determination can the
Supreme Court speak with great moral
authority and command the respect and
loyalty of our people.
Few will dispute that former Senate President Salonga has the
power of a piercing insight.
CONCLUSION
In summary, I vote as follows:
1.grant the locus standi of the petitioners
considering the transcendental
constitutional issues presented;
96
 2.hold that it is within the power of this Court
to define the division of powers of
the branches of government;
3.hold that the alleged violation of Article XI,
Section 3 (5) of the Constitution
which provides that "no
impeachment proceedings shall be
initiated against the same official
more than once within a period of
one year" is a justiciable issue and
hence within the competence of this
Court to decide; and
4.hold that the coordinacy theory of
constitutional interpretation and
prudential considerations demand
that this Court defer the exercise of
its certiorari jurisdiction on the issue
of alleged violation of Article XI,
Section 3 (5) of the Constitution until
after the remedies against
impeachment still available in both
the House of Representatives and
the Senate shall have been
exhausted.
In light of the above, I vote to dismiss the petitions at bar.
VITUG, J .:
"THE PHILIPPINES IS A DEMOCRATIC AND
REPUBLICAN STATE. SOVEREIGNTY RESIDES IN
THE PEOPLE AND ALL GOVERNMENT
AUTHORITY EMANATES FROM THEM." 1
A Republican form of government rests on the conviction that
sovereignty should reside in the people and that all government
authority must emanate from them. It abhors the concentration of
power on one or a few, cognizant that power, when absolute, can
lead to abuse, but it also shuns a direct and unbridled rule by the
people, a veritable kindling to the passionate fires of anarchy. Our
people have accepted this notion and decided to delegate the basic
state authority to principally three branches of government — the
Executive, the Legislative, and the Judiciary — each branch being
supreme in its own sphere but with constitutional limits and a firm
tripod of checks and balances. The Constitution is the written
manifestation of the sovereign will of the people. It is the yardstick
upon which every act of governance is tested and measured.
Today, regrettably, a looming threat of an overreaching arm of a
"co-equal" branch of government would appear to be perceived by
many. On 02 June 2003, a complaint for impeachment was filed
before the House of Representatives against the Chief Justice of the
Philippines and seven associate justices of the Supreme Court. On 23
October 2003, a second complaint for impeachment was filed by
two members of the House, endorsed by at least one-third of its
membership, but this time, only against the Chief Justice.
People took to the streets; media reported what it termed to be an
inevitable constitutional crisis; the business sector became
restive; and various other sectors expressed alarm. The Court itself
was swarmed with petitions asking the declaration by it of the total
nullity of the second impeachment complaint against the Chief
Justice for being violative of the constitutional proscription against
the filing of more than one impeachment complaint against the
same impeachable officer within a single year.
Thus, once again, yet perhaps one of the toughest test in its more
than one hundred years of existence, the Court, has been called upon
to act. Involved are no longer just hypothetical principles best left as
fodder for academic debate; this time, the core values of separation
of powers among the co-equal branches of the government, the
principle of checks and balances, and explicit constitutional
mandates and concepts come into sharp focus and serious scrutiny.
Must the Supreme Court come into grips and face the matter
squarely? Or must it tarry from its duty to act swiftly and decisively
under the umbrella of judicial restraint?
The circumstances might demand that the Court must act
dispassionately and seasonably.
Nothing in our history suggests that impeachment was existent in
the Philippines prior to the 1935 Constitution. Section 21 of the
Jones Law only mentions of an executive officer whose official title
shall be "the Governor General of the Philippine Islands" and
provides that he holds office at the pleasure of the President and
until his successor is chosen and qualified. 2 The impeachment
provision, which appeared for the first time in the 1935 Constitution
was obviously a transplant, among many, of an American precept
into the Philippine landscape.
The earliest system of impeachment existed in ancient Greece, in a
process called eisangelia. 3 In its modern form, the proceeding first
made its appearance in 14th century England in an attempt by the
fledgling parliament to gain authority over the advisers, ministers
and judges of the monarch who was then considered incapable of
any wrongdoing. 4 The first recorded case was in 1376, when Lords
Latimer and Neville, together with four commoners, were charged
with crimes, i.e., for removing the staple from Calais, for lending the
King's money at usurious interest, and for buying Crown debts for
small sums and paying themselves in full out of the Treasury. 5 Since
the accession of James I in 1603, the process was heavily
utilized, 6 its application only declining and eventually becoming lost
to obsolescence during the 19th century when, with the rise of the
doctrine of ministerial responsibility, the parliament, by mere vote
of censure or "no confidence", could expeditiously remove an erring
official. 7 It was last used in England in 1806, in an unsuccessful
attempt to remove Lord Melville. 8
While the procedure was dying out in England, the framers of the
United States Constitution embraced it as a "method of national
inquest into the conduct of public men." 9 The provision in the
American Federal Constitution on impeachment simply read —
"The President, Vice-President, and all civil
Officers of the United States, shall be removed
from Office on Impeachment for, and
Conviction of, Treason, Bribery, or other High
Crimes and Misdemeanors." 10
While the American impeachment procedure was shaped in no
small part by the English experience, 11 records of the US
Constitutional Convention would reveal that the Framers took
pains to distinguish American impeachment from British
practice. 12 Some notable differences included the fact that in
the United States, the proceedings might be directed against
civil officials such as the chief of state, members of the cabinet
and those in the judiciary. In England, it could be applied
against private citizens, or commoners, for treason and other
high crimes and misdemeanors; and to peers, for any
crime. 13 While the British parliament had always refused to
contain its jurisdiction by restrictively defining impeachable
offenses, the US Constitution narrowed impeachable offenses
to treason, bribery, or other high crimes and misdemeanors.
English impeachments partook the nature of a criminal
proceeding; while the US Constitution treated impeachment
rather differently. 14 Variations of the process could be found
in other jurisdictions. In Belgium, France, India, Italy, and in
some states in the United States, it had been the courts, which
conducted trial. 15 In Republic of China (Taiwan) and Cuba, it
would be an executive body which could initiate impeachment
proceedings against erring civil officials. 16
97
The 1987 Constitution provides, under its Sections 2 and 3, Article XI,
the skeletal constitutional framework of the impeachment process
in the Philippines —
Section 2.The President, the Vice-President,
the Members of the Supreme Court, the
Members of the Constitutional Commissions,
and the Ombudsman may be removed from
office, on impeachment for, and conviction of,
culpable violation of the Constitution, treason,
bribery, graft and corruption, other high
crimes, or betrayal of public trust. All other
public officers and employees may be
removed from office as provided by law, but
not by impeachment.
Section 3.(1)The House of Representatives
shall have the exclusive power to initiate all
cases of impeachment.
(2)A verified complaint for impeachment may
be filed by any Member of the House of
Representatives or by any citizen upon a
resolution of endorsement by any Member
thereof, which shall be included in the Order
of Business within ten session days, and
referred to the proper Committee within three
session days thereafter. The Committee, after
hearing, and by a majority vote of all its
members, shall submit its report to the House
within sixty session days from such referral,
together with the corresponding resolution.
The resolution shall be calendared for
consideration by the House within ten session
days from receipt thereof.
(3)A vote of at least one-third of all the
Members of the House shall be necessary
either to affirm a favorable resolution with the
Articles of Impeachment of the Committee or
override its contrary resolution. The vote of
each Member shall be recorded.
(4)In case the verified complaint or resolution
of impeachment is filed by at least one-third
of all the Members of the House, the same
shall constitute the Articles of Impeachment,
and trial by the Senate shall forthwith
proceed.
(5)No impeachment proceedings shall be
initiated against the same official more than
once within a period of one year.
(6)The Senate shall have the sole power to try
and decide all cases of impeachment. When
sitting for that purpose, the Senators shall be
on oath or affirmation. When the President of
the Philippines is on trial, the Chief Justice of
the Supreme Court shall preside, but shall not
vote. No person shall be convicted without the
concurrence of two-thirds of all the Members
of the Senate.
(7)Judgment in cases of impeachment shall
not extend further than removal from office
and disqualification to hold any office under
the Republic of the Philippines, but the party
convicted shall nevertheless be liable and
subject to prosecution, trial and punishment
according to law.
(8)The Congress shall promulgate its rules on
impeachment to effectively carry out the
purpose of this section.
As a proceeding, impeachment might be so described thusly — First,
it is legal and political in nature and, second, it issui generis neither a
criminal or administrative proceeding, but partaking a hybrid
characteristic of both and retaining the requirement of due
process basic to all proceedings. 17 Its political nature is apparent
from its function as being a constitutional measure designed to
protect the State from official delinquencies and malfeasance, the
punishment of the offender being merely incidental. 18 Although
impeachment is intended to be non-partisan, the power to impeach
is nevertheless lodged in the House of Representatives, whose
members are highly responsive to political and partisan influences.
The trial by the Senate is thought to reduce the likelihood of an
impeachment case being decided solely along political lines. With its
character of being part criminal and part administrative, carrying the
punitive sanction not only of removal and disqualification from
office but likewise the stigmatization of the offender, 19 an
impeachment proceeding does not exactly do away with basic
evidentiary rules and rudimentary due process requirements of
notice and hearing.
The House of Representatives is the repository of the power to
indict; it has the "exclusive power to initiate all cases of
impeachment." But, unlike the American rule 20 from which ours
has been patterned, this power is subject to explicit Constitutional
guidelines and proscriptions. Its political
discretion extends, albeit within constitutional parameters, to the
formulation of its rules of impeachment and the determination of
what could constitute impeachable offenses. The impeachable
offenses of "bribery," "graft and corruption" and "treason" are
clearly defined in criminal statute books. The terms "high crimes",
"betrayal of public trust", and "culpable violation of the
Constitution," however, elude exact definition, and by their nature,
cannot be decided simply by reliance on parsing criminal law
books 21 but, although nebulous, all three obviously pertain to
'fitness for public office,' the determination of which allows the
exercise of discretion. Excluding any definite checklist of
impeachable offenses in the Constitution is a wise measure meant to
ensure that the House is not unduly impeded by unwise restrictive
measures, which may be rendered obsolete with a changed
milieu; 22 otherwise, it would have made more sense to give the
power to the judiciary, which is the designated arbiter of cases
under traditionally determinate or readily determinable rules. 23 A
broad grant of powers, nonetheless, can lead to apprehensions that
Congress may extend impeachment to any kind of misuse of office
that it may find intolerable. 24 At one point, Gerald Ford has
commented that "an impeachable offense is whatever the House of
Representatives considers it to be at a given moment." 25
The discretion, broad enough to be sure, should still be held bound by
the dictates of the Constitution that bestowed it. Thus, not all
offenses, statutory or perceived, are impeachable offenses. While
some particular misconduct might reveal a shortcoming in the
integrity of the official, the same may not necessarily interfere with
the performance of his official duties or constitute an unacceptable
risk to the public so as to constitute an impeachable offense. Other
experts suggest the rule of ejusdem generis, i.e., that "other high
crimes," "culpable violation of the constitution" and "betrayal of
public trust" should be construed to be on the same level and of the
same quality as treason or bribery. George Mason has dubbed them
to be "great crimes," "great and dangerous offenses," and "great
attempts to subvert the Constitution," 26which must, according to
Alexander Hamilton, be also offenses that proceed from abuse or
violation of some public trust, and must "relate chiefly to injuries
done immediately to society itself." 27 These political offenses
should be of a nature, which, with peculiar propriety, would cause
harm to the social structure. 28 Otherwise, opines James Madison,
any unbridled power to define may make impeachment too easy
and would effectively make an official's term subject to the pleasure
of Congress, thereby greatly undermining the separation of
powers. Thus, where the House of Representatives, through its
conduct or through the rules it promulgates, transgresses, in any
way, the detailed procedure prescribed in the Constitution, the issue
98
is far removed from the sphere of a "political question," which arises
with the exercise of a conferred discretion, and transformed into a
constitutional issue falling squarely within the jurisdictional ambit of
the Supreme Court as being the interpreter of the fundamental law.
The issue of "political question" is traditionally seen as an effective
bar against the exercise of judicial review. The term connotes what it
means, a question of policy, i.e., those issues which, under the
Constitution, are to be decided by the people in their sovereign
capacity in regard to which full discretionary authority has been
delegated to either the Legislature or Executive branch of the
government. It is concerned with the wisdom, not with the legality,
of a particular act or measure. 29
The Court should not consider the issue of "political question" as
foreclosing judicial review on an assailed act of a branch of
government in instances where discretion has not, in fact, been
vested, yet assumed and exercised. Where, upon the other hand,
such discretion is given, the "political question doctrine" may be
ignored only if the Court sees such review as necessary to void an
action committed with grave abuse of discretion amounting to lack
or excess of jurisdiction. In the latter case, the constitutional grant of
the power of judicial review vested by the Philippine Constitution on
the Supreme Court is rather clear and positive, certainly and
textually broader and more potent than where it has been
borrowed. The Philippine Constitution states 30 —
"Judicial power shall be vested in one
Supreme Court and in such lower courts as
may be established by law.
"Judicial power includes the duty of the courts
of justice to settle actual controversies
involving rights which are legally demandable
and enforceable, and to determine whether or
not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of
the Government." 31
Even before it emerged in the 1987 Constitution, early
jurisprudence, more than once, supported the principle. In Avelino
vs. Cuenco, 32 the Court passed upon the internal rules of the
Senate to determine whether the election of Senator Cuenco to the
Senate Presidency was attended by a quorum. In Macias
vs. COMELEC, 33 the Court rejected American precedents and held
the apportionment of representative districts as not being a political
question. In Tañada vs.Macapagal, 34 the Supreme Court took
cognizance of the dispute involving the formation of the Senate
Electoral Tribunal. In Cunanan vs. Tan, 35 the Court pronounced
judgment on whether the Court had formed the Commission on
Appointments in accordance with the directive of the Constitution.
In Lansing vs. Garcia 36 , the Court held that the suspension of the
privilege of the writ of habeas corpus was not a political
question because the Constitution had set limits to executive
discretion.
To be sure, the 1987 Constitution has, in good measure, "narrowed
the reach of the 'political question doctrine' by expanding the power
of judicial review of the Supreme Court not only to settle actual
controversies involving rights which are legally demandable and
enforceable but also to determine whether or not grave abuse of
discretion has attended an act of any branch or instrumentality of
government. 37
When constitutional limits or proscriptions are expressed, discretion
is effectively withheld. Thus, issues pertaining to who are
impeachable officers, the number of votes necessary to impeach and
the prohibition against initiation of impeachment proceeding twice
against the same official in a single year, provided for in Sections 2,
3, 4, and 5 of Article XI of the Constitution, verily are subject to
judicial inquiry, and any violation or disregard of these explicit
Constitutional mandates can be struck down by the Court in the
exercise of judicial power. In so doing, the Court does not thereby
arrogate unto itself, let alone assume superiority over, nor undue
interference into the domain of, a co-equal branch of government,
but merely fulfills its constitutional duty to uphold the supremacy of
the Constitution. 38 The Judiciary may be the weakest among the
three branches of government but it concededly and rightly occupies
the post of being the ultimate arbiter on, and the adjudged sentinel
of, the Constitution.
Recent developments in American jurisprudence, steeped only in
cautious traditions, would allow recourse to the judiciary in areas
primarily seen as being left to the domain of the discretionary
powers of the other two branches of government. In Nixon
vs. United States 39 , Walter L. Nixon, Jr., an impeached federal
court judge, assailed the impeachment procedure of the Senate
before the Supreme Court. Speaking for the Court, Chief Justice
Rehnquist acknowledged that courts defer to the Senate as to the
conduct of trial but he, nevertheless, held —
"In the case before us, there is no separate
provision of the Constitution which could be
defeated by allowing the Senate final
authority to determine the meaning of the
word "try" in the Impeachment Trial Clause.
We agree with Nixon that courts possess
power to review either legislative or executive
action that transgresses identifiable textual
limits. As we have made clear, "whether the
action (of either Legislative or Executive
Branch) exceeds whatever authority has been
committed, is itself a delicate exercise in
constitutional interpretation, and is the
responsibility of this Court as the ultimate
interpreter of the Constitution."
In his separate opinion, Justice Souter also considered the legal
possibility of judicial interference if the Senate trial were to
ignore fundamental principles of fairness so as to put to grave
doubt the integrity of the trial itself 40 —
"If the Senate were to act in a manner
seriously threatening the integrity of its
results, convicting, say, upon a coin toss or
upon a summary determination that an officer
of the United States was simply "a bad guy"
judicial interference might well be
appropriate. In such circumstances, the
Senate's action might be so far beyond the
scope of its constitutional authority and the
consequent impact on the Republic so great,
as to merit a judicial response despite the
prudential concerns that would ordinarily
counsel silence."
In the earlier case of Powell vs. McCormick, 41 the US Supreme
Court has ruled that while Congress possesses the power to exclude
and expel its members, judicial review would be proper to
determine whether Congress has followed the proper procedure for
making the political decision committed to it by the
Constitution. Powell has clarified that while the Court cannot
interfere with the decision of the House to exclude its members, it
nonetheless is within its powers to ensure that Congress follows the
constitutional standards for expulsion. 42 Powell demonstrates, first,
that whether a matter is a political question depends on the fit
between the actual legal procedure chosen by Congress and the
circumstances to which Congress attempts to apply the procedure
and, second, that the choice and application of a procedure by
Congress are reviewable by the federal courts to ensure that
Congress has done no more than the Constitution allows. 43
Summing up, a Constitutional expert, Jonathan Turley observes
that there may be judicial review of static constitutional provisions
on impeachment while leaving actual decisions of either house
unreviewable, 44 and any departure from the constitutionally
99
mandated process would be subject to corrective ruling by the
courts. 45
Petitioners contend that respondents committed grave abuse of
discretion when they considered the second complaint for
impeachment in defiance of the constitutional prohibition against
initiating more than one complaint for impeachment against the
same official within a single year. Indeed, Article XI, Section 3 (5) of
the 1987 Constitution is explicit. "No impeachment proceedings shall
be initiated against the same official more than once within a period
of one year." But respondents, citing House Rules of Procedure in
Impeachment Proceedings, argue that a complaint is deemed
initiated only in three instances: 1) when there is a finding by the
Committee on Justice that the verified complaint or resolution is
sufficient in substance, 2) when the House votes to overturn or
affirm the finding of the said Committee, and 3), upon filing of the
verified complaint or resolution of impeachment with the Secretary
general after a verified complaint or resolution of impeachment is
filed or endorsed by at least 1/3 of the members of the
House. 46 Thus, respondents assert that the first complaint against
the Chief Justice could not qualify as an "initiated complaint" as to
effectively bar the second complaint. Petitioners, however, insist
that "initiation," as so used in the Constitution, should be
understood in its simple sense, that is, when the complaint for
impeachment is filed before the House and the latter starts to act
thereon.
I would second the view 47 that the term "initiate" should be
construed as the physical act of filing the complaint, coupled with an
action by the House taking cognizance of it, i.e., referring the
complaint to the proper Committee. Evidently, the House of
Representatives had taken cognizance of the first complaint and
acted on it — 1) The complaint was filed on 02 June 2003 by former
President Joseph Estrada along with the resolutions of endorsement
signed by three members of the House of Representatives; 2) on 01
August 2003, the Speaker of the House directed the chairman of the
House Committee on Rules, to include in the Order of Business the
complaint; 3) on 13 October 2003, the House Committee on Justice
included the complaint in its Order of Business and ruled that the
complaint was sufficient in form; and 4) on 22 October 2003, the
House Committee on Justice dismissed the complaint for
impeachment against the eight justices, including Chief Justice
Hilario Davide, Jr., of the Supreme Court, for being insufficient in
substance. The following day, on 23 October 2003, the second
impeachment complaint was filed by two members of the House of
Representatives, accompanied by an endorsement signed by at least
one-third of its membership, against the Chief Justice.
Some final thoughts. The provisions expressed in the Constitution are
mandatory. The highly political nature of the power to impeach can
make the proceeding easily fraught with grave danger. Hamilton
uncannily foresaw in the impeachment process a potential cause of
great divide — "In many cases, it will connect itself with the pre-
existing factions, and will enlist all their animosities, partialities,
influence, and interest on one side or on the other; and in such cases,
there will be the greatest danger that the decision will be regulated
more by the comparative strength of the parties than by the real
demonstrations of innocence or guilt." 48 This forewarning should
emphasize that impeachment is a remedy and a tool for justice and
public good and never intended to be used for personal or party gain.
Despite having conceded the locus standi of petitioners and the
jurisdiction of the Court, some would call for judicial restraint. I
entertain no doubt that the advice is well-meant and
understandable. But the social unrest and division that the
controversy has generated and the possibility of a worsening political
and constitutional crisis, when there should be none, do not appear
to sustain that idea; indeed, the circumstances could well be
compelling reasons for the Court to put a lid on an impending
simmering foment before it erupts. In my view, the Court must do its
task now if it is to maintain its credibility, its dependability, and its
independence. It may be weak, but it need not be a weakling. The
keeper of the fundamental law cannot afford to be a bystander,
passively watching from the sidelines, lest events overtake it, make it
impotent, and seriously endanger the Constitution and what it
stands for. In the words of US Chief Justice Marshall —
"It is most true that this Court will not take
jurisdiction if it should not; but it is equally
true, that it must take jurisdiction if it
should. The judiciary cannot, as the legislature
may, avoid a measure because it approaches
the confines of the constitution. We cannot
pass it by because it is doubtful. With
whatever doubts, with whatever difficulties, a
case may be attended, we must decide it, if it
be brought before us. We have no more right
to decline the exercise of a jurisdiction which is
given, than to usurp that which is not
given. The one or the other would be treason
to the Constitution." 49
The issues have polarized the nation, the Court’s action will be
viewed with criticism, whichever way it goes, but to remain stoic
in the face of extant necessity is a greater risk. The Supreme
Court is the chosen guardian of the Constitution. Circumspection
and good judgment dictate that the holder of the lamp must
quickly protect it from the gusts of wind so that the flame can
continue to burn.
I vote to grant the petitions on the foregoing basic issue hereinbefore
expressed.
Austria-Martinez, J ., concurs.
PANGANIBAN, J ., concurring:
I agree with the incisive ponencia of Mme. Justice Conchita Carpio
Morales that the Court has jurisdiction over the Petitions, and that
the second Impeachment Complaint is unconstitutional. However, I
write to explain a few matters, some of which are uniquely relevant
to my participation and vote in these consolidated cases.
Reasons for My Initial Inhibition
It will be recalled that when these consolidated Petitions were first
taken up by this Court on October 28, 2003, I immediately inhibited
myself, because one of herein petitioners, 1 Dean Antonio H. Abad
Jr., was one of my partners when I was still practicing law. In all past
litigations before the Court in which he was a party or a counsel, I
had always inhibited myself.
Furthermore, one of our eight invited amici curiae was former
Senate President Jovito R. Salonga. I had always recused myself from
all the cases before the Court in which he was involved. For instance,
I did not take part in Bayan v. Zamora2 because of my "close
personal and former professional relations with a petitioner, Sen.
J.R. Salonga." In Love God Serve Man, — a book I wrote in 1994,
prior to my appointment to the Supreme Court — I explained my
deeply rooted personal and professional relationship with Senator
Salonga, which for brevity I will just quote in a footnote below. 3
There is also the lingering thought that the judgment I may make in
these consolidated cases may present a conflict of interest because
of the following considerations:
1.It may personally benefit me, considering that I am one of the
eight justices who were charged by former President Joseph Ejercito
Estrada in the first Impeachment Complaint; thus, a ruling barring
the initiation of the second Impeachment Complaint within one year
from that of the first would also proscribe any future indictment
against me within the same period.
2.As a member of the Court, I used some facilities purchased or
constructed with the Judiciary Development Fund (JDF).
100
3.I voted in favor of several unanimous en banc Resolutions of the
Court affirming JDF expenditures recommended by some of its
committees. 4
Despite my desired inhibition, however, the Court, in its Resolution
dated October 28, 2003, "directed [me] to participate" in these
cases. My colleagues believed that these Petitions presented novel
and transcendental constitutional questions that necessitated the
participation of all justices. Indeed, if the divergent views of
several amici curiae, including retired SC members, had been sought,
why not relax the stringent requirements of recusation and require
the participation of all incumbent associate justices?
And so, by reason of that Resolution, I had joined my colleagues in
interacting with the "friends of the Court," the parties and their
counsel in the lengthy but enlightening Oral Argument — which
lasted from morning to evening on November 5 and 6, 2003 — and
in the deliberations with my colleagues every day since then,
including November 8 (Saturday) and November 9 (Sunday), 2003.
Of course, I also meticulously pored over the written submissions of
the parties and carefully referred to relevant laws and jurisprudence.
I will no longer argue for or against the thought-provoking historical,
philosophical, jurisprudential and prudential reasonings excellently
put forward in the ponencia of Justice Conchita Carpio Morales and
in the various Separate Opinions of my colleagues. I will just point
out a few items that I believe are markedly relevant to my situation.
Consolations vis-à-vis My Desired Inhibition
First, although I have been given no choice by the Court except to
participate, I still constantly kept in mind the grounds I had initially
raised in regard to my recusation. Now, I take the consolation that
although Dean Abad is a petitioner here, he however does not have
a personal or direct interest in the controversy. Hence, any ruling I
make or any vote I cast will not adversely affect him or redound to
his direct or pecuniary benefit. On the other hand, Senator Salonga
participated in this case neither as a party nor as a counsel, but as
an amicus curiae. Thus, he is someone who was invited by the Court
to present views to enlighten it in resolving the difficult issues in
these cases, and not necessarily to advocate the cause of either
petitioners or respondents. In fact, as will be shown later, I am
taking a position not identical to his.
During the Oral Argument on November 5, 2003, Amicus Joaquin G.
Bernas shed some light on my question regarding the conflict of
interest problem I have herein referred to earlier. He explained that
in Perfecto v. Meer, 5 the Court had issued a judgment that, like in
the present case, benefited its members because, inter alia,
"jurisdiction may not be declined"; and the issue "involved the right
of other constitutional officers . . . equally protected by the
Constitution."
In addition, Atty. Jose Bernas, counsel for Petitioners Baterina et
al., 6 also cited Nitafan v. Commissioner of Internal Revenue, 7 in
which the Court — in upholding the intent behind Article VIII,
Section 10 of the Constitution — had in fact ruled in a manner
adverse to the interest of its members. This fact shows that in taking
action over matters affecting them, justices are capable of ruling
against their own interest when impelled by law and jurisprudence.
Furthermore, in Abbas v. Senate Electoral Tribunal 8 (SET), the
petitioners therein had sought to disqualify the senators who were
members thereof from an election contest before the SET, on the
ground that they were interested parties. The Court held that "the
proposed mass disqualification, if sanctioned and ordered, would
leave the Tribunal no alternative but to abandon a duty that no
other court or body can perform, but which it cannot lawfully
discharge if shorn of the participation of its entire membership of
Senators." The Court further explained: 9
"To our mind, this is the overriding
consideration — that the Tribunal be not
prevented from discharging a duty which it
alone has the power to perform, the
performance of which is in the highest public
interest as evidenced by its being expressly
imposed by no less than the fundamental
law."
Moreover, the Court had the occasion to hold recently in Estrada
v. Desierto 10 that "to disqualify any of the members of the Court,
particularly a majority of them, is nothing short of pro tanto
depriving the Court itself of its jurisdiction as established by the
fundamental law. . . . It affects the very heart of judicial
independence."
Indeed, in the instant cases, the judgment will affect not just
Supreme Court justices but also other high officials like the
President, the Vice President and the members of the various
constitutional commissions. Besides, the Petitions are asking for the
resolution of transcendental questions, a duty which the
Constitution mandates the Court to do. And if the six 11 other
justices — who, like me, were named respondents in the first
Impeachment Complaint — were also to inhibit themselves due to
possible conflict of interest, the Court would be left without a
majority (only seven would remain), and thus deprived of its
jurisdiction. In a similar vein, the Court had opined in Perfecto that
"judges would indeed be hapless guardians of the Constitution if
they did not perceive and block encroachments upon their
prerogatives in whatever form." 12
The Court's Assumption of Jurisdiction Mandated by the 1987
Constitution
Second, in regard to the merits of the Petitions, unlike the 1973 and
the 1935 Constitutions, the 1987 Constitution 13 — in Article VIII,
Section 1 thereof — imposes upon the Supreme Court the duty to
strike down the acts of "any branch or instrumentality of the
government" whenever these are performed "with grave abuse of
discretion amounting to lack or excess of jurisdiction."
During the Oral Argument on November 5, 2003 when the Court
interacted with Justice Florenz D. Regalado, an amicus curiae, I
pointed out that this unique provision of our 1987 Constitution
differentiated the Philippine concept of judicial review from that
held in the United States (US). Unlike the US Constitution, Article
VIII, Section 1 of our present Constitution, is very specific as to what
our courts must do: not only to settle actual controversies involving
legally demandable and enforceable rights, but also to determine
whether there has been grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality
of the government."
Article VIII, Section 1, was crafted, precisely to remedy the judicial
cop-outs that characterized the Martial Law era, during which the
Court had invariably found its hands tied (or had conveniently
avoided involvement) when faced with questions that were allegedly
political in nature. 14 As a result, the Court at the time was unable to
check all the constitutional excesses of the executive and the
legislative branches of government.
Thus, during the crafting of the 1987 Constitution, one of the
eminent members of the Constitutional Commission, former Chief
Justice Roberto Concepcion, actively sought to expand the scope of
judicial review in definitive terms. The former Chief Justice, who
authored Article VIII, Section 1, explained that the Supreme Court
may not under any circumstance evade its duty to settle disputes
involving grave abuse of discretion: 15
". . . [T]he powers of government are generally
considered divided into three branches: the
Legislative, the Executive and the Judiciary.
Each one is supreme within its own sphere
and independent of the others. Because of
that supremacy[, the] power to determine
whether a given law is valid or not is vested in
courts of justice.
101

"Briefly stated, courts of justice determine the
limits of power of the agencies and offices of
the government as well as those of its officers.
In other words, the judiciary is the final arbiter
on the question whether or not a branch of
government or any of its officials has acted
without jurisdiction or in excess of jurisdiction,
or so capriciously as to constitute an abuse of
discretion amounting to excess of jurisdiction
or lack of jurisdiction. This is not only a judicial
power but a duty to pass judgment on matters
of this nature.
"This is the background of paragraph 2 of
Section 1 [of Article VIII of the 1987
Constitution], which means that the courts
cannot hereafter evade the duty to settle
matters of this nature, by claiming that such
matters constitute a political question."
(Emphasis supplied.)
In effect, even if the question posed before the Court appears to be
political in nature — meaning, one that involves a subject over which
the Constitution grants exclusive and/or sole authority either to the
executive or to the legislative branch of the government — the
Court may still resolve the question if it entails a determination of
grave abuse of discretion or unconstitutionality. The question
becomes justiciable when the Constitution provides conditions,
limitations or restrictions in the exercise of a power vested upon a
specific branch or instrumentality. When the Court resolves the
question, it is not judging the wisdom of an act of a coequal
department, but is merely ensuring that the Constitution is upheld.
The US Constitution does not impose upon its judiciary a similar duty
to strike down grave abuse of discretion on the part of any
government agency. It thus gives its magistrates the luxury of
choosing between being passivists or activists when confronted with
"political questions." As I explained during my discourse
with Amicus Pacifico Agabin during the Oral Argument on November
6, 2003, many legal scholars characterize the US Supreme Court
under Chief Justice Earl Warren as activist, and its present Court
under Chief Justice William Rehnquist as generally conservative or
passivist.
Further explaining, I said that the Warren Court is widely known for
having actively intervened in political, social and economic matters.
It issued decisions favoring the poor and the underprivileged; and
overhauled jurisprudence on the Bill of Rights to protect ethnic
minorities, eliminate racial segregations, and uphold the civil
liberties of the people. In contrast, the Rehnquist Court has taken
mostly a hands-off stance on these issues and largely deferred to the
discretion of the political branches of government in most political
issues brought before it. 16
On the other hand, our Constitution has not given the same luxury
of choice to jurists as that given in the US. By imposing upon our
judges a duty to intervene and to settle issues of grave abuse of
discretion, our Constitution has thereby mandated them to be
activists. A duty cannot be evaded. The Supreme Court must uphold
the Constitution at all times. Otherwise, it will be guilty of
dereliction, of abandonment, of its solemn duty. Otherwise, it will
repeat the judicial cop-outs that our 1987 Constitution abhors.
Thus, in Tañada v. Angara, 17 the Court clearly and unequivocally
ruled that "[w]here an action of the legislative branch is seriously
alleged to have infringed the Constitution, it becomes not only the
right but in fact the duty of the judiciary to settle the dispute. The
question thus posed is judicial rather than political. The duty (to
adjudicate) remains, to assure that the supremacy of the
Constitution is upheld. Once a controversy as to the application or
the interpretation of a constitutional provision is raised before the
Court, it becomes a legal issue which the Court is bound by
constitutional mandate to decide."
The Court's Duty to Intervene in Impeachment Cases That
Infringe the Constitution
Third, Sen. Aquilino Pimentel Jr., an intervenor, argues that Article XI
of the Constitution grants the House of Representatives the
"exclusive" power to initiate all cases of impeachment; and the
Senate, the "sole" prerogative to try and decide them. He thus
concludes that the Supreme Court has no jurisdiction whatsoever to
intervene in such proceedings. With due respect, I disagree for the
following reasons:
1.The Constitution imposes on the Supreme Court the duty to rule
on unconstitutional acts of "any" branch or instrumentality of
government. Such duty is plenary, extensive and admits of no
exceptions. While the Court is not authorized to pass upon the
wisdom of an impeachment, it is nonetheless obligated to determine
whether any incident of the impeachment proceedings violates any
constitutional prohibition, condition or limitation imposed on its
exercise. Thus, normally, the Court may not inquire into how and
why the House initiates an impeachment complaint. But if in
initiating one, it violates a constitutional prohibition, condition or
limitation on the exercise thereof, then the Court as the protector
and interpreter of the Constitution is duty-bound to intervene and
"to settle" the issue. This point was clearly explained by Chief Justice
Concepcion in Javellana v. Executive Secretary 18 as follows:
"Accordingly, when the grant of power is
qualified, conditional or subject to
limitations, the issue on whether or not the
prescribed qualifications or conditions have
been met, or the limitations respected, it
justiciable or non-political, the crux of the
problem being one of legality or validity of the
contested act, not its wisdom. Otherwise, said
qualifications, conditions or limitations —
particularly those prescribed or imposed by
the Constitution — would be set at naught.
What is more, the judicial inquiry into such
issue and the settlement thereof are the main
functions of courts of justice under the
Presidential form of government adopted in
our 1935 Constitution, and the system of
checks and balances, one of its basic
predicates. As a consequence, We have
neither the authority nor the discretion to
decline passing upon said issue, but are under
the ineluctable obligation — made particularly
more exacting and peremptory by our oath, as
members of the highest Court of the land, to
support and defend the Constitution — to
settle it." (Emphasis supplied.)
2.The Constitution likewise grants the electoral tribunals of both
Houses of Congress the authority to be the "sole" judges of all
contests relating to the election, the returns and the qualifications of
their respective members. Still, the Supreme Court reviews the
decisions of these tribunals on certiorari. 19 Its certiorari power, so
exercised, has never been seriously questioned.
3.The Constitution has granted many powers and prerogatives
exclusively to Congress. However, when these are exercised in
violation of the Constitution or with grave abuse of discretion, the
jurisdiction of the Court has been invoked; and its decisions thereon,
respected by the legislative branch. Thus, in Avelino
v. Cuenco, 20 the Court ruled on the issue of who was the duly
elected President of the Senate, a question normally left to the sole
discretion of that chamber; inSantiago v. Guingona, 21 on who was
the minority floor leader of the Senate; in Daza
v. Singson 22 and Coseteng v. Mitra Jr., 23 on who were the duly
designated members of the Commission on Appointments
representing the House of Representatives. It was held in the latter
two cases that the Court could intervene because the question
involved was "the legality, not the wisdom, of the manner of filling
the Commission on Appointment as prescribed by the
Constitution." DEScaT
102
In the present cases, the main issue is whether, in initiating the
second Impeachment Complaint, the House of Representatives
violated Article XI, Section 3(5), which provides that "[n]o
impeachment proceedings shall be initiated against the same official
more than once within a period of one year." The interpretation of
this constitutional prohibition or condition as it applies to the second
Impeachment Complaint clearly involves the "legality, not the
wisdom" of the acts of the House of Representatives. Thus, the
Court must "settle it."
Observance of Due Process During the Initiation of
Impeachment
Fourth, during the Oral Argument, Senator Salonga and Petitioner
Francisco Chavez denounced the second Impeachment Complaint as
violative of due process. They argued that by virtue merely of the
endorsement of more than one third of the members of the House
of Representatives, the Chief Justice was immediately impeached
without being afforded the twin requirements of notice and hearing.
The proceedings were therefore null and void ab initio. I must agree.
The due process clause, 24 enshrined in our fundamental law, is
a conditio sine qua non that cannot be ignored in anyproceeding —
administrative, judicial or otherwise. 25 It is deemed written into
every law, rule or contract, even though not expressly stated
therein. Hence, the House rules on impeachment, insofar as they do
not provide the charged official with (1) notice and (2) opportunity
to be heard prior to being impeached, are also unconstitutional.
Constitutional Supremacy — the Bedrock of the Rule of Law
Fifth, I shall no longer belabor the other legal arguments (especially
the meaning of the word "initiate") on why the second
Impeachment Complaint is null and void for being violative of the
one-year bar. Suffice it to say that I concur with Justice Morales. Let
me just stress that in taking jurisdiction over this case and in
exercising its power of judicial review, the Court is not pretending to
be superior to Congress or to the President. It is merely upholding
the supremacy of the Constitution and the rule of law. 26
To stress this important point, I now quote from Justice Jose P.
Laurel in the landmark case Angara v. Electoral
Commission, 27 which was decided in 1936:
"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." (Italics supplied.)
Epilogue
Having firmed up the foregoing position, I must admit that I was
initially tempted to adopt the view of Amici Jovito R. Salonga and
Raul C. Pangalangan. They maintain that although the Court had
jurisdiction over the subject matter and although the second
Impeachment Complaint was unconstitutional, the Court should
nonetheless "use its power with care and only as a last resort" and
allow the House to correct its constitutional errors; or, failing in that,
give the Senate the opportunity to invalidate the second Complaint.
This Salonga-Pangalangan thesis, which is being espoused by some
of my colleagues in their Separate Opinions, has some advantages.
While it preserves the availability of judicial review as a "last resort"
to prevent or cure constitutional abuse, it observes, at the same
time, interdepartmental courtesy by allowing the seamless exercise
of the congressional power of impeachment. In this sense, it also
enriches the doctrine of primary jurisdiction by enabling Congress to
exercise fully its "exclusive" authority to initiate, try and decide
impeachment cases. In short, it gives Congress the primary
jurisdiction; and the Court, "appellate" certiorari power, over the
case.
Furthermore, the proponents of this deferential position add that
the Senate may eventually rule that the second Impeachment
Complaint is unconstitutional, and that the matter may thus be
settled definitively. Indeed, the parties may be satisfied with the
judgment of the Senate and, thus, obviate the need for this Court to
rule on the matter. In this way, the latter would not need to grapple
with the conflict of interest problem I have referred to earlier.
With due respect, I believe that this stance of "passing the buck" —
even if made under the guise of deference to a coequal department
— is not consistent with the activist duty imposed by the
Constitution upon this Court.
In normal times, the Salonga-Pangalangan formula would, perhaps,
be ideal. However, the present situation is not ideal. Far from it. The
past several weeks have seen the deep polarization of our country.
Our national leaders — from the President, the Senate President and
the Speaker of the House — down to the last judicial employee have
been preoccupied with this problem. There have been reported
rumblings of military destabilization and civil unrest, capped by an
aborted siege of the control tower of the Ninoy Aquino International
Airport on November 8, 2003.
Furthermore, any delay in the resolution of the dispute would
adversely affect the economy as well as the socio-political life of the
nation. A transmittal of the second Impeachment Complaint to the
Senate would disrupt that chamber's normal legislative work. The
focus would shift to an unsettling impeachment trial that may
precipitously divide the nation, as happened during the
impeachment of former President Joseph Ejercito Estrada.
A needless trial in the Senate would not only dislocate that
chamber's legislative calendar and divide the nation's focus; but also
unnecessarily bring anxiety, loss of time and irreparable injury on
the part of the Chief Justice, who would not be able to attend to his
normal judicial duties. The transmittal of the second Impeachment
Complaint to the Senate would unfairly brand him as the first
Supreme Court justice to be impeached!
Moreover, President Gloria Macapagal Arroyo and Senate President
Franklin M. Drilon have issued public statements 28that they will
abide by the decision of the Court as the ultimate arbiter and
interpreter of the Constitution. Now, therefore, is the ripe time for
the Court to decide, and to decide forthrightly and firmly. Merely
deferring its decision to a later time is not an assurance of better
times for our country and people.
To be sure, the matters raised in the second Impeachment
Complaint can be expeditiously taken up by the House of
Representatives through an investigation in aid of legislation. The
House can then dispassionately look into alleged irregular
expenditures of JDF funds, without the rigors, difficulties, tensions
and disruptive consequences of an impeachment trial in the Senate.
The ultimate aim of discovering how the JDF was used and of
crafting legislation to allocate more benefits to judicial employees
may be achieved in a more judicious, peaceful and cordial manner.
103
I close this Opinion with the truism that the judiciary is the
"weakest" branch of government. Nonetheless, when ranged against
the more powerful branches, it should never cower in silence.
Indeed, if the Supreme Court cannot take courage and wade into
"grave abuse" disputes involving the purse-disbursing legislative
department, how much more deferential will it be when faced with
constitutional abuses perpetrated by the even more powerful,
sword-wielding executive department?
I respectfully submit that the very same weakness of the Court
becomes its strength when it dares speak through decisions that
rightfully uphold the supremacy of the Constitution and the rule of
law. The strength of the judiciary lies not in its lack of brute power,
but in its moral courage to perform its constitutional duty at all
times against all odds. Its might is in its being right.
WHEREFORE, I vote to declare the second Impeachment Complaint
to be unconstitutional and time-barred by Article XI, Section 3,
paragraph 5 of the Constitution.
YNARES-SANTIAGO, J ., concurring and dissenting:
The power of impeachment is essentially lodged by the Constitution
in Congress. It is the process by which officials of the Government,
not removable by other means, may be made to answer for certain
offenses. These offenses are specifically enumerated as: culpable
violation of the Constitution, treason, bribery, graft and corruption,
other high crimes, and betrayal of public trust. In the exercise of this
power, Congress must observe the minimum requirements set by
the Constitution. However, in the event that Congress oversteps
these limitations, who can review its acts? Can the Supreme Court,
under its power of judicial review enshrined in the Constitution,
review the acts of a co-equal body? These are the novel issues raised
in these petitions.
The petitions before this Court assail the constitutionality of the
impeachment complaint against Chief Justice Hilario G. Davide, Jr.,
contending that, being a second complaint, the same is expressly
prohibited under Article XI, Section 3 (5) of the 1987 Constitution,
which provides:
No impeachment proceedings shall be
initiated against the same official more than
once within a period of one year.
Respondents House of Representative and the Senate filed separate
Manifestations both stating that they are not submitting to the
jurisdiction of the Court. The House of Representatives invoked its
territorial integrity which this Court, as a co-equal body, cannot
encroach upon. For its part, the Senate pointed out that the petition
as against it was premature inasmuch as it has not received any
articles of impeachment.
The Court set the petitions for oral arguments and invited the
following as amici curiae:
1.Florenz D. Regalado, retired Justice of this
Court;
2.Regalado E. Maambong, Justice of the Court
of Appeals,
3.Fr. Joaquin C. Bernas, Dean of the Ateneo
School of Law;
4.Hugo E. Gutierrez, Jr., retired Justice of this
Court;
5.Estelito P. Mendoza, former Minister of
Justice and Solicitor General;
6.Pacifico A. Agabin, former Dean of the
University of the Philippines College
of Law;
7.Raul C. Pangalangan, Dean of the University
of the Philippines College of Law;
and
8.Jovito R. Salonga, former Senate President.
During the oral arguments, the principal issue and sub-issues
involved in the several petitions were defined by the Court as
follows:
Whether the certiorari jurisdiction of the
Supreme Court may be invoked; who can
invoke it; on what issues and at what time;
and whether it should be exercised by this
Court at this time.
a)Locus standi of petitioners;
b)Ripeness (prematurity; mootness)
c)Political question/justiciability;
d)House's exclusive power to initiate all cases
of impeachment;
e)Senate's sole power to try and decide all
cases of impeachment;
f)Constitutionality of the House Rules of
Impeachment vis-à-vis Section 3 (5)
of Article XI of the Constitution; and
g)Judicial restraint.
In the appreciation of legal standing, 1 a developing trend appears to
be towards a narrow and exacting approach, requiring that a logical
nexus be shown between the status asserted and the claim sought
to be adjudicated in order to ensure that one is the proper and
appropriate party to invoke judicial power. 2 Nevertheless, it is still
within the wide discretion of the Court to waive the requirement
and remove the impediment to its addressing and resolving serious
constitutional questions raised. 3
In the case at bar, petitioners allege that they dutifully pay their
taxes for the support of the government and to finance its
operations, including the payment of salaries and other emoluments
of the respondents. They assert their right to be protected against all
forms of needless spending of taxpayers' money including the
commission of an unconstitutional act, i.e., the filing of two
impeachment cases within a period of one year against the Chief
Justice of this Court, one of the three independent branches of the
government. Considering these serious legal questions which affect
public interest, I concur with the ponente that the petitioners,
except Atty. Dioscoro U. Vallejos, Jr. in G.R. No. 160397, have
satisfactorily established locus standi to file the instant petitions.
I also concur with the ponente that the Court has the power of
judicial review. This power of the Court has been expanded by the
Constitution not only to settle actual controversies involving rights
which are legally demandable and enforceable but also to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of government. 4 The Court is under mandate to
assume jurisdiction over, and to undertake judicial inquiry into, what
may even be deemed to be political questions provided, however,
that grave abuse of discretion — the sole test of justiciability on
104
purely political issues — is shown to have attended the contested
act. 5
The Court checks the exercise of power of the other branches of
government through judicial review. It is the final arbiter of the
disputes involving the proper allocation and exercise of the different
powers under the Constitution. When the Supreme Court reviews
the constitutionality of the acts of Congress, it does not thereby
assert its superiority over a co-equal branch of government. It
merely asserts its solemn and sacred obligation under the
Constitution and affirms constitutional supremacy. 6
Indeed, in the resolution of the principal issue in these petitions, a
distinction has to be drawn between the power of the members of
the House of Representatives to initiate impeachment proceedings,
on the one hand, and the manner in which they have exercised that
power. While it is clear that the House has the exclusive power to
initiate impeachment cases, and the Senate has the sole power to
try and decide these cases, the Court, upon a proper finding that
either chamber committed grave abuse of discretion or violated any
constitutional provision, may invoke its corrective power of judicial
review.
The meaning of the word "initiate" in relation to impeachment is at
the center of much debate. The confusion as to the meaning of this
term was aggravated by the amendment of the House of
Representatives' Rules of Procedure in Impeachment Proceedings.
The first set of Rules adopted on May 31, 1988, specifically Rule V,
Section 14 and Rule II, Section 2 thereof, provides that impeachment
shall be initiated when a verified complaint for impeachment is filed
by any Member of the House of Representatives or by any citizen
upon a resolution of endorsement by any Member thereof, or when
a verified complaint or resolution of impeachment is filed by at least
one-third (1/3) of all the Members of the House. This provision was
later amended on November 28, 2001. Rule V, Section 16 of the
amendatory Rules states that impeachment proceedings under any
of the three methods above-stated are deemed initiated on the day
that the Committee on Justice finds that the verified complaint
and/or resolution against such official is sufficient in substance or on
the date the House votes to overturn or affirm the finding of the said
Committee that the verified complaint and/or resolution is not
sufficient in substance.
The adoption of the 2001 Rules, at least insofar as initiation of
impeachment proceedings is concerned, unduly expanded the
power of the House by restricting the constitutional time-bar only to
complaints that have been "approved" by the House Committee on
Justice. As stated above, the one-year bar is a limitation set by the
Constitution which Congress cannot overstep. Indeed, the Records
of the Constitutional Commission clearly show that, as defined in
Article XI, Section 3 (5), impeachment proceedings begin not on the
floor of the House but with the filing of the complaint by any
member of the House of any citizen upon a resolution of
endorsement by any Member thereof. This is the plain sense in
which the word "initiate" must be understood, i.e., to begin or
commence the action.
Moreover, the second impeachment complaint was filed by only two
complainants, namely Representatives Gilberto G. Teodoro, Jr. and
Felix William B. Fuentebella. The rest of the members of the House
whose names appear on the attachments thereto merely signed
endorsements to the Complaint.
Article XI, Section 3 (3) of the Constitution is explicit:
In case the verified complaint or resolution of
impeachment is filed by at least one-third of
all the Members of the House, the same shall
constitute the Articles of Impeachment, and
trial by the Senate shall forthwith proceed.
(Emphasis provided.)
The mere endorsement of the members of the House, albeit
embodied in a verified resolution, did not suffice for it did not
constitute filing of the impeachment complaint, as this term is
plainly understood. In order that the verified complaint may be said
to have been filed by at least 1/3 of the Members, all of them must
be named as complainants therein. All of them must sign the main
complaint. This was not done in the case of the assailed second
impeachment complaint against the Chief Justice. The complaint was
not filed by at least one-third of the Members of the House, and
therefore did not constitute the Article of Impeachment.
I am constrained to disagree with the majority decision to discard
the above issue for being unnecessary for the determination of the
instant cases. On the contrary, the foregoing defect in the complaint
is a vital issue in the determination of whether or not the House
should transmit the complaint to the Senate, and if it does, whether
the Senate should entertain it. The Constitution is clear that the
complaint for impeachment shall constitute the Articles of
Impeachment, without need of referral to the Committee on Justice,
when the complaint is filed by at least one-third of all the Members
of the House. Being the exception to the general procedure outlined
in the Constitution, its formal requisites must be strictly construed.
Furthermore, the mere fact that this issue was raised by intervenors
Romulo Macalintal and Pete Quirino-Quadra, and not by the
petitioners in G.R. No. 160262, is of no moment. The Court is
empowered to decide issues even though they are not raised in the
pleadings. 7 In the case at bar, the question is already before this
Court and may therefore be resolved.
The impeachment complaint suffers from yet another serious flaw.
As one of the amici curiae, former Senate President Jovito Salonga,
pointed out, the signing of the impeachment complaint by the
purported 1/3 of the Congressmen was done without due process.
The Chief Justice, against whom the complaint was brought, was not
served notice of the proceedings against him.
No rule is better established, under the due process clause of the
constitution, than that which requires notice and opportunity to be
heard before any person can be lawfully deprived of his
rights. 8 Indeed, when the Constitution says that no person shall be
deprived of life, liberty, or property without due process of law, 9 it
means that every person shall be afforded the essential element of
notice in any proceeding. Any act committed in violation of due
process may be declared null and void. 10
However, notwithstanding the constitutional and procedural defects
in the impeachment complaint, I dissent from the majority when it
decided to resolve the issues at this premature stage. I submit that
the process of impeachment should first be allowed to run its
course. The power of this Court as the final arbiter of all justiciable
questions should come into play only when the procedure as
outlined in the Constitution has been exhausted. The complaint
should be referred back to the House Committee on Justice, where
its constitutionality may be threshed out. Thereafter, if the
Committee so decides, the complaint will have to be deliberated by
the House on plenary session, preparatory to its possible transmittal
to the Senate. The questions on the sufficiency of the complaint in
form may again be brought to the Senate by way of proper motion,
and the Senate may deny the motion or dismiss the complaint
depending on the merits of the grounds raised. After the Senate
shall have acted in due course, its disposition of the case may be
elevated to this Court pursuant to its judicial power of review.
In addition, there are several other remedies that may be availed of
or events that may occur that may render the present petitions
moot and, in the process, effectively avert this controversy. Dean
Raul Pangalangan of the University of the Philippines College of Law,
one of the amici curiae, stressed that among the internal measures
that the members of Congress could make to address the situation
are: (1) attempts to encourage the signatories of the impeachment
complaint to withdraw their signatures; (2) the raising by the
members of Congress themselves of the Constitutional questions
when the Articles of Impeachment are presented in plenary session
on a motion to transmit them to the Senate, as required by Section
15, paragraph 2 of the House Rules; and (3) assuming the Articles of
Impeachment are transmitted to the Senate, Chief Justice Davide
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could conceivably raise the same Constitutional issues by way of a
motion to dismiss or motion to quash. 11
Clearly, the unfinished business and loose ends at the House of
Representatives and in the Senate, as well as the simmering forces
outside of the halls of government could all preempt any decision of
this Court at the present time. Senate President Salonga said it best
when he commented that the Supreme Court, which has final
jurisdiction on questions of constitutionality, should be the final
arbiter; it should be the authoritative court of last resort in our
system of democratic governance; but all remedies in the House of
Representatives and in the Senate should be exhausted first. He
goes on to say that only when this case is ripe for judicial
determination can this Court speak with great moral authority and
command the respect and loyalty of our people. 12
With these considerations in mind, the Court should recognize the
extent and practical limitations of its judicial prerogatives, and
identify those areas where it should carefully tread instead of rush in
and act accordingly. Considering that power of impeachment was
intended to be the legislature's lone check on the judiciary,
exercising our power of judicial review over impeachment would
place the final reviewing authority with respect to impeachments in
the hands of the same body that the impeachment process is meant
to regulate. 13 In fact, judicial involvement in impeachment
proceedings, even if only for purposes of judicial review is counter-
intuitive because it eviscerates the important constitutional check
on the judiciary. 14
A becoming sense of propriety and justice dictates that judicial self-
restraint should be exercised; that the impeachment power should
remain at all times and under all circumstances with the legislature,
where the Constitution has placed it. The common-law principle of
judicial restraint serves the public interest by allowing the political
processes to operate without undue interference. 15
The doctrine of separation of powers calls for each branch of
government to be left alone to discharge its duties as it sees fit.
Being one such branch, the judiciary will neither direct nor restrain
executive or legislative action. 16 The legislative and the executive
branches are not allowed to seek its advice on what to do or not to
do; thus, judicial inquiry has to be postponed in the meantime.
Before a court may enter the picture, a prerequisite is that
something has been accomplished or performed by either branch.
Then it may pass on the validity of what has been done but, then
again, only when properly challenged in an appropriate legal
proceeding. 17 Hence, any resolution that this Court might make in
this case may amount to nothing more than an attempt at
abstraction that can only lead to barren legal dialectics and sterile
conclusions, depending on what transpires next at the House of
Representatives and the Senate. 18
IN VIEW WHEREOF, I CONCUR with the majority decision insofar as it
held that —
(a)Petitioners in all the above-captioned cases, except Atty. Dioscoro
U. Vallejos, Jr. in G.R. No. 160397, have legal standing to institute
these petitions; and
(b)The constitutionality of the second impeachment complaint filed
by Representatives Gilberto C. Teodoro, Jr. and Felix William B.
Fuentebella against Chief Justice Hilario G. Davide, Jr. is a justiciable
issue which this Court may take cognizance of.
However, I vote that this Court must observe judicial self-restraint at
this time and DISMISS the instant petitions.
SANDOVAL-GUTIERREZ, J., concurring:
Never before in the 102-year existence of the Supreme Court has
there been an issue as transcendental as the one before us. For the
first time, a Chief Justice is subjected to an impeachment
proceeding. The controversy caused people, for and against him, to
organize and join rallies and demonstrations in various parts of the
country. Indeed, the nation is divided which led Justice Jose C. Vitug
to declare during the oral arguments in these cases, "God save our
country!"
The common thread that draws together the several petitions
before this Court is the issue of whether the second impeachment
complaint against Chief Justice Hilario G. Davide, Jr. contravenes
Section 3 (5), Article XI of the 1987 Constitution, providing that "no
impeachment proceedings shall be initiated against the same official
more than once within a period of one year."
The antecedents are simple. On June 2, 2003, deposed President
Joseph E. Estrada filed with the House of Representatives an
impeachment complaint against Chief Justice Davide and seven (7)
other Justices of this Court, alleging inter alia that they conspired to
deprive him of his mandate as President. On October 22, 2003, the
House Committee on Justice dismissed the complaint for
insufficiency of substance. Pursuant to the Constitution, the House
of Representatives in plenary session has still to approve or
disapprove the Committee's action.
The next day, on October 23, 2003, Congressmen Gilberto C.
Teodoro, Jr. and Felix William B. Fuentebella filed another
impeachment complaint, this time against Chief Justice Davide
alone, charging him with violations of the Anti-Graft and Corrupt
Practices Act and betrayal of public trust with regard to the
disposition of the Judicial Development Fund (JDF). At least one-
third (1/3) of all the members of the House signed a Resolution
endorsing this second impeachment complaint.
Subsequently, the instant petitions were filed with this Court
alleging that the filing of the second impeachment complaint against
Chief Justice Davide violates Section 3(5), Article XI of the
Constitution which provides:
"No impeachment proceedings shall be
initiated against the same official more than
once within a period of one year."
Both the Senate and the House of Representatives claimed that this
Court lacks jurisdiction over the petitions. Senate President Franklin
Drilon manifested that the petitions are premature since the Articles
of Impeachment have not been transmitted to the Senate.
Moreover, the petitions pose political questions which are non-
justiciable.
On November 5 and 6, 2003, this Court heard the petitions on oral
argument: Present were the amici curiae appointed by this Court
earlier, namely: Former Senate President Jovito R. Salonga, former
Constitutional Commissioner Joaquin G. Bernas, Justice Hugo E.
Gutierrez, Jr., former member of this Court, former Minister of
Justice and Solicitor General Estelito P. Mendoza, Court of Appeals
Justice Regalado E. Maambong, former Constitutional
Commissioner, Dean Raul C. Pangalangan, and former Dean Pacifico
A. Agabin of the UP College of Law.
Crucial to the determination of the constitutionality of the second
impeachment complaint against Chief Justice Davide are three (3)
fundamental issues indicated and discussed below:
I — Whether this Court has jurisdiction over the petitions.
One cornerstone of judicial supremacy is the two-century old case
of Marbury vs. Madison. 1 There, Chief Justice John Marshall
effectively carried the task of justifying the judiciary's power of
judicial review. Cast in eloquent language, he stressed that it is "the
province and duty of the judicial department to say what the law is."
In applying the rule to particular cases, the judiciary "must of
necessity expound and interpret that rule." If two laws conflict with
each other, "the courts must decide on the operation of each." It
further stressed that "if a law be in opposition to the Constitution, if
106
both the law and the Constitution apply to a particular case, the
court must decide the case conformably to the Constitution
disregarding the law. This is of the very essence of judicial duty."
In our shore, the 1987 Constitution is explicit in defining the scope of
judicial power. Section 1, Article VIII provides:
"Section 1.The judicial power shall be vested
in one Supreme Court and in such lower
courts as may be established by law.
"Judicial power includes the duty of the courts
of justice to settle actual controversies
involving rights which are legally demandable
and enforceable, and to determine whether or
not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of
Government."
The above provision fortifies the authority of the courts to
determine in an appropriate action the validity of the acts of the
political departments. Under the new definition of judicial power,
the courts are authorized not only "to settle actual controversies
involving rights which are legally demandable and enforceable," but
also "to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the government." The latter part of
the authority represents a broadening of judicial power to enable
the courts to review what was before a forbidden territory — the
discretion of the political departments of the government. 2 It
speaks of judicial prerogative not only in terms of power but also
of duty. 3
The petitions at bar present a conflict between Sections 16 and 17 of
the Rules of Procedure in Impeachment Proceedings, promulgated
by the present Congress of the Philippines, and Section 3(5), Article
XI of the Constitution. Is this conflict a justiciable issue?
Justiciability, is different from jurisdiction. Justiciability refers to the
suitability of a dispute for a judicial resolution, while jurisdiction
refers to the power of a court to try and decide a case. As earlier
mentioned, the basic issue posed by the instant petitions is whether
the second impeachment complaint against Chief Justice Hilario G.
Davide violates the Constitutional provision that "no impeachment
proceedings shall be initiated against the same official more than
once within the period of one year." Obviously, this is a justiciable
issue. Chief Justice Davide, under the Constitution, should not be
subjected to a second impeachment proceedings. Thus, on the face
of the petitions, he has a right to be protected by the courts.
May this Court assume jurisdiction over this justiciable issue? Justice
Isagani A. Cruz aptly wrote that "A judgment of the Congress in an
impeachment proceeding is normally not subject to judicial review
because of the vesture in the Senate of the "sole power to try and
decide all cases of impeachment." . . . But the courts may annul the
proceedings if there is a showing of a grave abuse of discretion
committed by the Congress or of non-compliance with the procedural
requirements of the Constitution, as where the charges are instituted
without a verified complaint, or by less than one-third of all the
members of the House of Representatives, or where the judgment of
conviction is supported by less than a two-thirds vote in the
Senate." 4 He further wrote that the power to impeach is essentially
a non-legislative prerogative and can be exercised by the
Congress only within the limits of the authority conferred upon it by
the Constitution. 5
The case of Romulo vs. Yñiguez, 6 supports such a view. In this case,
this Court initially took cognizance of the petition filed by Alberto G.
Romulo, et al., in view of the latter's claim that the Rules of
Procedure in Impeachment Proceedings are unconstitutional,
implying that the Batasan, in the exercise of its powers, transgressed
the Constitution. This, according to the Court is "certainly a
justiciable question."
Corollarily, in Santiago vs. Guingona, Jr., 7 this Court assumed
jurisdiction over a petition alleging that the Constitution has not
been observed in the selection of the Senate Minority Leader. This
Court held that "jurisdiction over the subject matter of a case is
determined by the allegations of the complaint or petition,
regardless of whether the plaintiff or petitioner is entitled to the
relief asserted. In light of the allegation of petitioners, it is clear that
this Court has jurisdiction over the petition. It is well within the
power and jurisdiction of the Court to inquire whether indeed the
Senate or its officials committed a violation of the Constitution or
gravely abused their discretion in the exercise of their functions and
prerogatives." In Montesclaros vs. Commission on Elections, 8 this
Court ruled that "absent a clear violation of specific constitutional
limitations or of constitutional rights of private parties, the Court
cannot exercise its power of judicial review over the internal
processes or procedures of Congress." Stated in converso, the Court
can exercise its power of judicial review over the internal processes
or procedures of Congress when there exists a clear violation of the
Constitution. Also, in Arroyo vs. De Venecia, 9 this Court,
through Justice Vicente V . Mendoza (now retired), declared that we
have no more power to look into the internal proceedings of a
House than Members of that House have to look over our
shoulders, as long as no violation of constitutional provisions is
shown.
In fine, while our assumption of jurisdiction over the present
petitions may, at first view, be considered by some as an attempt to
intrude into the legislature and to intermeddle with its prerogatives,
however, the correct view is that when this Court mediates to
allocate constitutional boundaries or invalidates the acts of a
coordinate body, what it is upholding is not its own supremacy but
the supremacy of the Constitution. 10 If the branches are
interdependent, each must have a place where there is finality, an
end to discussion, a conclusion. If all three branches are faced with
the same question, and if they differ, all three cannot prevail — one
must be given way to. Otherwise there will be unresolved conflict
and confusion. This may be intolerable in situations where there has
to be action. Owing to the nature of the conflict, the duty necessarily
redounds to the judiciary.
II — Should this Court exercise self-restraint?
Confronted with an issue involving constitutional infringement,
should this Court shackle its hands under the principle of judicial self-
restraint? The polarized opinions of the amici curiae is that by
asserting its power of judicial review, this Court can maintain the
supremacy of the Constitution but at the same time invites a
disastrous confrontation with the House of Representatives. A
question repeated almost to satiety is — what if the House holds its
ground and refuses to respect the Decision of this Court? It is argued
that there will be a Constitutional crisis. Nonetheless, despite such
impending scenario, I believe this Court should do its duty mandated
by the Constitution, seeing to it that it acts within the bounds of its
authority.
The 1987 Constitution speaks of judicial prerogative not only in
terms of power but also of duty. 11 As the last guardian of the
Constitution, the Court's duty is to uphold and defend it at all times
and for all persons. It is a duty this Court cannot abdicate. It is
a mandatory and inescapable obligation — made particularly more
exacting and peremptory by the oath of each member of this
Court. 12 Judicial reluctance on the face of a clear constitutional
transgression may bring about the death of the rule of law in this
country.
Yes, there is indeed a danger of exposing the Court's inability in
giving efficacy to its judgment. But is it not the way in our present
system of government? The Legislature enacts the law, the Judiciary
interprets it and the Executive implements it. It is not for the Court to
withhold its judgment just because it would be a futile exercise of
authority. It should do its duty to interpret the law. Alexander
Hamilton, in impressing on the perceived weakness of the judiciary,
observed in Federalist No. 78 that "the judiciary [unlike the
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executive and the legislature] has no influence over either the sword
or the purse, no direction either of the strength or of the wealth of
society, and can take no active resolution whatever. It may truly be
said to have neither Force nor Will, but merely judgment; and must
ultimately depend upon the aid of the executive arm even for the
efficacy of its judgments." Nonetheless, under the unusual
circumstances associated with the issues raised, this Court should
not shirk from its duty.
One final note on jurisdiction and self-restraint.
There being a clear constitutional infringement, today is an
appropriate occasion for judicial activism. To allow this
transcendental issue to pass into legal limbo would be a clear case of
misguided judicial self-restraint. This Court has assiduously taken
every opportunity to maintain the constitutional order, the
distribution of public power, and the limitations of that power.
Certainly, this is no time for a display of judicial weakness.
While the power to initiate all cases of impeachment is regarded as a
matter of "exclusive" concern only of the House of Representatives,
over which the other departments may not exercise jurisdiction by
virtue of the separation of powers established by the fundamental
law, it does not follow that the House of Representatives may not
overstep its own powers defined and limited by the Constitution.
Indeed, it cannot, under the guise of implementing its Rules,
transgress the Constitution, for when it does, its act immediately
ceases to be a mere internal concern.
Surely, by imposing limitations on specific powers of the House of
Representatives, a fortiori, the Constitution has prescribed a
diminution of its "exclusive power." I am sure that the honorable
Members of the House who took part in the promulgation and
adoption of its internal rules on impeachment did not intend to
disregard or disobey the clear mandate of the Constitution — the
law of the people. And I confidently believe that they recognize, as
fully as this Court does, that the Constitution is the supreme law of
the land, equally binding upon every branch or department of the
government and upon every citizen, high or low.
It need not be stressed that under our present form of government,
the executive, legislative and judicial departments are coequal and
co-important. But it does not follow that this Court, whose
Constitutional primary duty is to interpret the supreme law of the
land, has not the power to declare the House Rules unconstitutional.
Of course, this Court will not attempt to require the House of
Representatives to adopt a particular action, but it is authorized and
empowered to pronounce an action null and void if found to be
contrary to the provisions of the Constitution.
This Court will not even measure its opinion with the opinion of the
House, as expressed in its internal rules. But the question of the
wisdom, justice and advisability of its particular act must be tested
by the provisions of the Constitution.And if its act is then held illegal
by this Court, it is not because it has any control over Congress,
particularly the House of Representatives, but because the act is
forbidden by the fundamental law of the land and the will of the
people, declared in such fundamental law, which is paramount and
must be obeyed by every citizen, even by Congress.
At this point, I must emphasize that the jurisdiction of this Court is
over the alleged unconstitutional Rules of the House, not over the
impeachment proceedings.
III — Whether the filing of the second impeachment is
unconstitutional.
Section 3 (5), Article XI of the 1987 Constitution provides:
"No impeachment proceeding shall
be initiated against the same official more
than once within a period of one year."
Petitioners contend that the filing of the second impeachment
complaint against Chief Justice Davide contravenes the above
provision because it was initiated within one (1) year from the filing
of the first impeachment complaint against him and seven (7)
Associate Justices. Several of the amici curiae support petitioners'
contention. However, the others argue otherwise, saying that the
first impeachment complaint cannot be considered as having been
"initiated" because it failed to obtain the endorsement of at least
one-third (1/3) of all the Members of the House. This brings us to
the vital question, when are impeachment proceedings considered
initiated?
The House Rules of Procedure in Impeachment Proceedings provide
the instances when impeachment proceedings aredeemed initiated,
thus:
"BAR AGAINST INITIATION OF IMPEACHMENT
PROCEEDINGS AGAINST THE SAME OFFICIAL
"SEC. 16.Impeachment Proceedings Deemed
Initiated. — In cases where a Member of the
House files a verified complaint of
impeachment or a citizen files a verified
complaint that is endorsed by a Member of
the House through a resolution of
endorsement against an impeachable
officer, impeachment proceedings against
such official are deemed initiated on the day
the Committee on Justice finds that the
verified complaint and/or resolution against
such official, as the case may be, is sufficient in
substance or on the date the House votes to
overturn or affirm the finding of the said
Committee that the verified complaint and/or
resolution, as the case may be, is not sufficient
in substance.
"In cases where a verified complaint or a
resolution of impeachment is filed or endorsed,
as the case may be, by at least one-third (1/3)
of the Member of the House, impeachment
proceedings are deemed initiated at the time
of the filing of such verified complaint or
resolution of impeachment with the Secretary
General.
"SEC. 17.Bar against Initiation of Impeachment
Proceedings. — Within a period of one (1) year
from the date impeachment proceedings are
deemed initiated as provided in Section 16
hereof, no impeachment proceedings, as such,
can be initiated against the same official."
Under the above Rules, when the verified impeachment complaint is
filed by a Member of the House or by a citizen (through a resolution
of endorsement by a Member of the House), impeachment
proceedings are deemed initiated either(a) on the day the
Committee on Justice finds that the verified complaint and/or
resolution is sufficient in substance; or(b) on the date the House,
through a vote of one-third (1/3), 13 overturns or affirms the finding
of the Committee on Justice that the verified complaint and/or
resolution is not sufficient in substance. However, when the verified
impeachment complaint or resolution is filed or endorsed by at least
one-third (1/3) of all the Members of the House,impeachment
proceedings are deemed initiated at the time of the filing of the
verified complaint or resolution with the Secretary General.
The House Rules deviate from the clear language of the Constitution
and the intent of its Framers. The Rules infuse upon the term
"initiate" a meaning more than what it actually connotes.
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The ascertainment of the meaning of the provision of the
Constitution begins with the language of the document itself .14 The
words of the Constitution should as much as possible be understood
in the sense they have in common use and given their ordinary
meaning. 15 In other words, the plain, clear and unambiguous
language of the Constitution should be understood in the sense it
has in common use. 16 The reason for this is because the
Constitution is not primarily a lawyer's document but essentially that
of the people, in whose consciousness it should ever be present as an
important condition for the rule of law to prevail. 17 Black's Law
Dictionary defines "initiate" as "commence," "start," "originate" or
"introduce," 18 while Webster's Dictionary 19 defines it as "to do
the first act;" "to perform the first rite;" "beginning;" or
"commence." It came from the Latin word "initium," meaning "a
beginning." Using these definitions, I am convinced that the filing of
the verified complaint and its referral to the Committee on Justice
constitute the initial step. It is the first act that starts the
impeachment proceeding. Fr. Joaquin G. Bernas, S.J., an amicus
curiae, explains convincingly that the term "proceeding," which is
the object of the term "initiated" in Section 3 (5), Article XI, is a
progressive noun that has a beginning, a middle, and an end, thus:
"It [proceeding] consists of several steps.
"First, there is the filing of a verified complaint
either by a Member of the House or by a
private citizen endorsed by a Member of the
House.
"Second, there is the processing of this
complaint by the proper Committee. In this
step, the Committee either rejects the
complaint or upholds it.
"Third, whether the resolution of the
Committee rejects or upholds the complaint,
the resolution must be forwarded to the
House for further processing.
"Fourth, there is the processing of the same
complaint by the House of Representatives.
The House either affirms a favorable
resolution of the Committee or overrides a
contrary resolution by a vote of one third of all
the members.
"Now we ask, at what stage is the
'impeachment proceeding' initiated?
"Not when the complaint is transmitted to the
Senate for trial, because that is the end of the
House proceeding and the beginning of
another proceeding, namely the trial.
"Not when the House deliberates on the
resolution passed on to it by the Committee,
because something prior to that has already
been done. The action of the House is already
a further step in the proceeding, not the
initiation or beginning.
"Rather, the proceeding is initiated or begins,
when a verified complaint is filed and referred
to the Committee on Justice for action. This is
the initiating step which triggers the series of
steps that follow."
The Records of the 1986 Constitutional Commission support the
foregoing theory. The term "initiate" pertains to the initial act of
filing the verified complaint and not to the finding of the Committee
on Justice that the complaint and/or resolution is sufficient in
substance or to the obtention of the one-third (1/3) vote of all the
Members of the House as provided by the House Rules. Justice
Maambong, then a member of the 1986 Constitutional Commission,
explained that "initiation starts with the filing of the complaint." As
early as the deliberation stage in the Constitutional Commission, the
meaning of the term "initiate" was discussed. Then Commissioner
Maambong sought the deletion of the phrase "to initiate
impeachment proceedings" in Section 3 (3) of Article XI 20 to avoid
any misconception that the obtention of one-third (1/3) of all the
Members of the House is necessary to "initiate" impeachment
proceedings.
Apparently, Commissioner Maambong was very careful not to give
the impression that "initiation" is equivalent to "impeachment"
proper. He stressed that it was the latter which requires the
approval of one-third (1/3) of all the Members of the House.
According to him, as the phraseology of Section 3 (3) runs, it seems
that the initiation starts only on the floor. This prompted him to
utter: ". . . I will just make of record my thinking that we do not really
initiate the filing of the Articles of Impeachment on the floor. The
procedure, as I have pointed out earlier, was that the initiation starts
with the filing of the complaint. And what is actually done on the
floor is that the committee resolution containing the Articles of
Impeachment is the one approved by the body." That Commissioner
Maambong gained the concurrence of the Framers of the 1987
Constitution with regard to the rationale of his proposed
amendment is shown by the fact that nobody objected to his
proposal and it is his amended version which now forms part of the
Constitution. We quote the pertinent portions of the deliberation,
thus:
"MR. NATIVIDAD. May we have the
amendment stated again, so we can
understand it. Will the proponent please state
the amendment before we vote?
MR. REGALADO. The amendment is on Section
3 (3) which shall read as follows:
'A VOTE OF AT LEAST ONE-THIRD OF
ALL THE MEMBERS OF THE HOUSE
SHALL BE NECESSARY TO INITIATE
IMPEACHMENT PROCEEDINGS,
EITHER TO AFFIRM A RESOLUTION
OF IMPEACHMENT BY THE
COMMITTEE OR TO OVERRIDE ITS
CONTRARY RESOLUTION. THE VOTES
OF EACH MEMBER SHALL BE
RECORDED.'
MR. NATIVIDAD. How many votes are needed
to initiate?
MR. BENGZON. One-third.
MR. NATIVIDAD. To initiate is different from to
impeach; to impeach is different from to
convict. To impeach means to file the case
before the Senate.
MR. REGALADO. When we speak of 'initiative,'
we refer here to the Articles of Impeachment.
MR. NATIVIDAD. So, that is the impeachment
itself, because when we impeach, we are
charging him with the Articles of
Impeachment. That is my understanding.
xxx xxx xxx
MR. BENGZON. Mr. Presiding Officer, may we
request that Commissioner Maambong be
recognized.
109
 THE PRESIDING OFFICER (Mr.
Treñas). Commissioner Maambong is
recognized.
MR. MAAMBONG. Mr. Presiding Officer, I am
not moving for a reconsideration of the
approval of the amendment submitted by
Commissioner Regalado, but I will just make of
record my thinking that we do not really
initiate the filing of the Articles of
Impeachment on the floor. The procedure, as I
have pointed out earlier, was that the
initiation starts with the filing of the
complaint. And what is actually done on the
floor is that the committee resolution
containing the Articles of Impeachment is the
one approved by the body.
As the phraseology now runs, which may be
corrected by the Committee on Style, it
appears that the initiation starts on the floor.
If we only have time, I could cite examples in
the case of the impeachment proceedings of
president Richard Nixon wherein the
Committee on the Judiciary submitted the
recommendation, the resolution, and the
Articles of Impeachment to the body, and it
was the body who approved the resolution. It
is not the body which initiates it. It only
approves or disapproves the resolution. So, on
that score, probably the Committee on Style
could help rearranging these words because
we have to be very technical about this. I have
been bringing with me The Rules of the House
of Representatives of the U.S. Congress. The
Senate Rules are with me. The proceedings on
the case of Richard Nixon are with me. I have
submitted my proposal, but the Committee
has already decided. Nevertheless, I just want
to indicate this on record.
Thank you, Mr. Presiding Officer.
xxx xxx xxx
MR. MAAMBONG. I would just like to move
for a reconsideration of the approval of
Section 3 (3). My reconsideration will not at all
affect the substance, but it is only in keeping
with the exact formulation of the Rules of the
House of Representatives of the United States
regarding impeachment.
I am proposing, Madam President, without
doing damage to any of this provision, that on
page 2, Section 3 (3), from lines 17 to 18, we
delete the words which read: 'to initiate
impeachment proceedings' and the comma (,)
and insert on line 19 after the word
'resolution' the phrase WITH THE ARTICLES,
and then capitalize the letter 'i' in
'impeachment' and replace the word 'by' with
OF, so that the whole section will now read: 'A
vote of at least one-third of all the Members
of the House shall be necessary either to
affirm a resolution WITH THE ARTICLES of
Impeachment OF the Committee or to
override its contrary resolution. The vote of
each member shall be recorded.'
I already mentioned earlier yesterday that the
initiation, as far as the House of
Representatives of the United States is
concerned, really starts from the filing of the
verified complaint and every resolution to
impeach always carries with it the Articles of
Impeachment. As a matter of fact, the words,
'Articles of Impeachment' are mentioned on
line 25 in the case of the direct filing of a
verified complaint of one-third of all the
members of the House. I will mention again,
Madame President, that my amendment will
not vary the substance in any way. It is only in
keeping with the uniform procedure of the
House of Representatives of the United States
Congress.
Thank you, Madam President.
xxx xxx xxx
THE PRESIDENT. Let us first submit to the body
the motion of Commissioner Maambong to
reconsider the approval of Section 3 (3).
Is there any objection? (silence) The chair
hears none; the motion is approved.
The proposed amendment which has been
submitted by Commissioner Maambong was
clarified and has been accepted by the
Committee on Accountability of Public
Officers.
MR. MAAMBONG. Madam President, May I
read again the whole section?
THE PRESIDENT. Please proceed.
MR. MAAMBONG. As amended, the whole
Section 3 (3) will read: 'A vote of at least one-
third of all the Members of the House shall be
necessary either to affirm a resolution WITH
THE ARTICLES OF Impeachment OF the
Committee or to override its contrary
resolution. The vote of each member shall be
recorded.'
THE PRESIDENT. Is there any objection to this
proposed amendment? (Silence) The Chair
hear none, the amendment is
approved." 21 (Emphasis supplied)
The clear intent of the Framers of our Constitution should be given
weight. The primary task in constitutional construction is to
ascertain and thereafter assure the realization of the purpose of the
Framers and of the people in the adoption of the Constitution. It
may be safely assumed that the people, in ratifying the Constitution,
were guided mainly by the explanation offered by the
Framers. 22 In Gold Creek Mining Corp. vs. Rodriguez, 23 the Court,
speaking through Mr. Justice (later, Chief Justice) Jose Abad Santos
ruled:
"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 thus construes 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.
110
It has also been said that a provision of the Constitution should be
construed in light of the objectives it sought to achieve. Section 3
(5), Article XI, also referred as the "anti-harassment clause," was
enshrined in the Constitution for the dual objectives of allowing the
legislative body to concentrate on its function which is lawmaking
and protecting public officials from harassment, thus:
"MR. VILLACORTA. Madam President, I would
just like to ask the Committee three questions.
"On Section 3, page 2, lines 12 to 14, the last
paragraph reads as follows: 'No impeachment
proceedings shall be initiated against the same
official more than once within a period of one
year.' Does this mean that even if an evidence
is discovered to support another charge or
ground for impeachment, a second or
subsequent proceeding cannot be initiated
against the same official within a period of
one year? In other words, one year has to
elapse before a second or subsequent charge
or proceeding can be initiated. The intention
may be to protect the public official from
undue harassment. On the other hand, is this
not undue limitation on the accountability of
public officers? Anyway, when a person
accepts a public trust, does he not consider
taking the risk of accounting for his acts or
misfeasance in office?
"MR. ROMULO. Yes, the intention here really is
to limit. This is not only to protect public
officials who, in this case, are of the highest
category from harassment but also to allow
the legislative body to do its work which is
lawmaking. Impeachment proceedings take a
lot of time. And if we allow multiple
impeachment charges on the same individual
to take place, the legislature will do nothing
else but that."
For one, if we construe the term "initiate" as referring to the
obtention of one-third (1/3) votes of all the Members of the House
or to the date when the Committee on Justice rules that the
complaint is sufficient in substance, are we not losing sight of the
fact that much time has already been wasted by the House? The
getting hold of the one-third (1/3) vote is almost the last step
necessary for the accused officer to be considered successfully
impeached. The process is almost complete insofar as the House is
concerned. The same is true with respect to the proceedings in the
Committee on Justice. The hearing, voting and reporting of its
resolution to the House definitely take away much of the Members'
precious time. Now, if impeachment complaints are only deemed
"initiated" during those phases, then the object of allowing the
legislature to concentrate on its functions cannot really be achieved.
Obviously, impeachment is a long process. To be sure, instead of
acting as a legislative body, the House will be spending more time as
a prosecutorial body.
For another, to let the accused official go through the above phases
is to subject him to additional harassment. As the process
progresses, the greater is the harassment caused to the official. One
glaring illustration is the present case. It may be recalled that the
first impeachment complaint against Chief Justice Davide was
referred to the Committee on Justice. On October 22, 2003, the
Committee dismissed the complaint for being insufficient in form
and substance. The very next day and while the Committee was yet
to make a report to the House, Congressmen Teodoro and
Fuentebella immediately filed the second impeachment complaint
against the Chief Justice. In short, while the first impeachment
complaint was not yet fully disposed of, the Chief Justice was being
charged again in another complaint. This is the very situation
proscribed by the Constitution. Verily, it inflicts undue strain and
harassment upon officials who are saddled with other pressing
responsibilities.
Another constitutional objection to the second impeachment
complaint raised by petitioners is the fact that only Congressmen
Teodoro and Fuentebella signed it. According to them, this violates
Section 3 (4), Article XI of the Constitution which provides:
"(4)In case the verified complaint or resolution
of impeachment is filed by at least one-third
(1/3) of all the Members of the House, the
same shall constitute the Articles of
Impeachment, and trial by the Senate shall
forthwith proceed."
Following the above provision, what should have been filed by at
least one-third (1/3) of all the Members of the House is a verified
complaint or resolution of impeachment. Even Section 15 of the
House Rules reechoes the above Constitutional mandate, thus:
"SEC. 15.Endorsement of the
Complaint/Resolution to the Senate. — A
verified complaint or a resolution of
impeachment signed by at least one-third
(1/3) of all the Members of the House shall
constitute the Articles of Impeachment and
shall be filed with the Secretary General. The
complaint/resolution must, at the time of
filing, be verified and sworn to before the
Secretary General by each of the Members
who constitute at least one-third (1/3) of all
the Members of the House. The contents of
the verification shall be as follows:
"We, after being sworn in accordance with
law, depose and state: That we are the
complainants/signatories in the above-entitled
complaint/resolution of impeachment; that we
have caused the said complaint/resolution to
be prepared and have read the contents
thereof; and that the allegations therein are
true of our own knowledge and belief on the
basis of our reading and appreciation of
documents and other records pertinent
thereto."
Clearly, the requirement is that the complaint or resolution must at
the time of filing be verified and sworn to before the Secretary
General of the House by each of the members who constitute at least
one-third (1/3) of all the Members of the House.
A reading of the second impeachment complaint shows that of the
eighty-one (81) Congressmen, only two, Teodoro and Fuentebella,
actually signed and verified it. What the rest verified is the
Resolution of Endorsement. The verification signed by the majority
of the Congressmen states: "We are the proponents/sponsors of the
Resolution of Endorsement of the abovementioned Complaint of
Representatives Gilberto C. Teodoro, Jr. and Felix William B.
Fuentebella . . ." 24However, this defect is not for this Court to
correct considering that it is an incident of the impeachment process
solely cognizable by the legislature.
IV — Whether petitioners have locus standi to bring the present
suits.
It is contended that petitioners have no legal standing to institute
the instant petitions because they do not have personal and
substantial interest in these cases. In fact, they have not sustained or
will suffer direct injury as a result of the act of the House of
Representatives being challenged. It is further argued that only Chief
Justice Davide has such interest in these cases. But he has not
challenged the second impeachment complaint against him.
It would be an unseemly act for the Chief Justice to file a petition
with this Court where he is primus inter pares."Delicadeza" and the
Rules require him not only to inhibit himself from participating in the
deliberations but also from filing his own petition. Fortunately, there
111
are persons equally interested in the cause for which he is fighting. I
believe that the locus standi doctrine is not impaired in these
petitions.
The petitioners have the legal standing to file the present petitions.
No less than two members of the House of Representatives, namely,
Deputy Speaker Raul M. Gonzales and Congressman Salacnib F.
Baterina are among the petitioners in these cases. They alleged in
their petition that the Constitution reserves to their Chamber,
whether acting as a whole or through its members or Committees,
the authority to initiate impeachment proceedings. As members of
the House, "they have the legal interest in ensuring that only
impeachment proceedings that are in accord with the Constitution
are initiated. Any illegal act of the House or its members or
Committees pertaining to an impeachment will reflect adversely on
them because such act will be deemed an act of the House. Thus
they have the right to question the constitutionality of the second
impeachment complaint against the Chief Justice, an event of
transcendental national concern." 25 They further alleged that it
would be futile for them to seek relief in their Chamber prior to the
filing of their petition because the Articles of Impeachment, based
on the constitutionally infirm second impeachment complaint, will
be transmitted to the Senate at their next session.Necessarily, the
House will disburse public funds amounting to millions of pesos for
the prosecution, as in the case of the impeachment of former
President Joseph Ejercito Estrada. Consequently, they stressed they
have the standing to file a petition "to stop the illegal disbursement
of public funds for an illegal act." 26
The rest of the petitioners, most of whom are members of the
Integrated Bar of the Philippines, similarly contend that as citizens
and taxpayers they have the legal standing to bring these suits. They
assert that it is their right and duty to see to it that the acts of their
public officials should be in accordance with what the Constitution
says and that public funds are not spent for an unconstitutional act.
Indeed, the present suits involve matters of first impression and of
immense importance to the public considering that, as previously
stated, this is the first time a Chief Justice of the Supreme Court is
being subjected to an impeachment proceeding which, according to
petitioners, is prohibited by the Constitution. Obviously, if such
proceeding is not prevented and nullified, public funds amounting to
millions of pesos will be disbursed for an illegal act. Undoubtedly,
this is a grave national concern involving paramount public interest.
The petitions are properly instituted to avert such a situation.
In Chavez vs. Public Estates Authority, 27 citing Chavez
vs. PCGG, 28 we upheld the right of a citizen to bring a taxpayer's
suit where, as here, the issues raised are of transcendental
importance to the public, thus:
This Court has adopted a liberal stance on the locus standi of a
"Besides, petitioner emphasizes, the matter or
petitioner where he is able to craft an issue of transcendental
recovering the ill-gotten wealth of the
significance to the people. In Tatad vs. Secretary of the Department
Marcoses is an issue of 'transcendental
of Energy, 32 Justice Reynato S. Puno aptly emphasized:
importance to the public.' He asserts that
ordinary taxpayers have a right to initiate and
prosecute actions questioning the validity of
acts or orders of government agencies or
instrumentalities, if the issues raised are of
'paramount public interest,' and if they
'immediately affect the social, economic and
moral well being of the people.
Moreover, the mere fact that he is a citizen
satisfies the requirement of personal interest,
when the proceeding involves the assertion of
a public right, such as in this case. He invokes
several decisions of this Court which have set
aside the procedural matter of locus standi,
when the subject of the case involved public
interest.
xxx xxx xxx
Indeed, the arguments cited by petitioners
constitute the controlling decisional rule as
regards his legal standing to institute the
instant petition. . . .
In Tañada vs. Tuvera, 29 the Court asserted
that when the issue concerns a public right
and the object of mandamus is to obtain the
enforcement of a public duty, the people are
regarded as the real parties in interest; and
because it is sufficient that petitioner is a
citizen and as such is interested in the
execution of the laws, he need not show that
he has any legal or special interest in the
result of the action. In the aforesaid case, the
petitioners sought to enforce their right to be
informed on matters of public concern, a right
then recognized in Section 6, Article IV of the
1973 Constitution, in connection with the rule
that laws in order to be valid and enforceable
must be published in the Official Gazette or
otherwise effectively promulgated. In ruling
for the petitioners' legal standing, the Court
declared that the right they sought to be
enforced 'is a public right recognized by no
less than the fundamental law of the land.'
Legaspi vs. Civil Service Commission, 30 while
reiterating Tañada, further declared that
'when a mandamus proceeding involves the
assertion of a public right, the requirement of
personal interest is satisfied by the mere fact
that petitioner is a citizen and, therefore, part
of the general 'public' which possesses the
right.
Further, in Albano vs. Reyes, 31 we said that
while expenditure of public funds may not
have been involved under the questioned
contract for the development, management
and operation of the Manila International
Container Terminal, 'public interest [was]
definitely involved considering the important
role [of the subject contract] . . . in the
economic development of the country and the
magnitude of the financial consideration
involved.' We concluded that, as a
consequence, the disclosure provision in the
Constitution would constitute sufficient
authority for upholding the petitioner's
standing."
". . . Respondents further aver that petitioners
have no locus standi as they did not sustain
nor will they sustain direct injury as a result of
the implementation of R.A. No. 8180.
xxx xxx xxx
The effort of respondents to question
the locus standi of petitioners must also fall on
barren ground. In language too lucid to be
misunderstood, this Court has brightlined its
liberal stance on a petitioner's locus
standi where the petitioner is able to craft an
issue of transcendental significance to the
people. In Kapatiran ng mga Naglilingkod sa
112
 Pamahalaan ng Pilipinas, Inc. vs. Tan (163
SCRA 371 [1988]), we stressed:
'xxx xxx xxx
Objections to taxpayers' suit for lack
of sufficient personality, standing or
interest are, however, in the main
procedural matters. Considering the
importance to the public of the
cases at bar, and in keeping with the
Court's duty, under the 1987
Constitution, to determine whether
or not the other branches of
government have kept themselves
within the limits of the Constitution
and the laws and that they have not
abused the discretion given to them,
the Court has brushed aside
technicalities of procedure and has
taken cognizance of these
petitions.'"
WHEREFORE, I vote to GRANT the petitions and to declare Sections
16 and 17 of the House Rules of Procedure in Impeachment
Proceedings UNCONSTITUTIONAL.
CORONA, J.:
On July 4, 1946, the flag of the United States fluttered for the last
time in our skies. That day ushered in a new period for the Philippine
judiciary because, for the first time since 1521, judicial decisions in
our country became entirely our own, free finally of the heavy
influence of a colonial master and relieved of the "preferable" use of
precedents set by US courts. Nevertheless, the vestiges of 50 years
of American rule were not about to disappear so soon, nor so easily.
The 1935 Constitution then in force carried many provisions lifted
from the US Constitution. Today we face the prospects of a
constitutional crisis at whose vortex lies the interpretation of certain
provisions of that American-influenced Constitution.
A defining moment in history is upon us. The Court has to speak in
response to that moment and in defense of the Constitution.
I humbly contribute this separate opinion as a chronicle of my
thoughts during our deliberations on the petitions before us. Let it
be a living testament, in the immortal words of the great Jesuit
historian Horacio de la Costa, that in this particular quest for truth
and justice, we in this Court "not only played in tune but managed
here and there a brief but brilliant phrase."
The Extraordinary Remedy of Impeachment
is Intended to be Only a Final Option
Incorporated in the 1987 Constitution are devices meant to prevent
abuse by the three branches of government. One is the House of
Representatives' exclusive power of impeachment for the removal of
impeachable officers 1 from their positions for violating the mandate
that public office is a public trust.
Impeachment under the Philippine Constitution, as a remedy for
serious political offenses against the people, runs parallel to that of
the U.S. Constitution whose framers regarded it as a political
weapon against executive tyranny. It was meant "to fend against the
incapacity, negligence or perfidy of the Chief Magistrate." 2 Even if
an impeachable official enjoys immunity, he can still be removed in
extreme cases to protect the public. 3 Because of its peculiar
structure and purpose, impeachment proceedings are neither civil
nor criminal:
James Wilson described impeachment as
"confined to political characters, to political
crimes and misdemeanors, and to political
punishment." According to Justice Joseph
Story, in his Commentaries on the
Constitution, in 1833, impeachment applied to
offenses of a political character:
Not but (sic) that crimes of a strictly legal
character fall within the scope of the power;
but that it has a more enlarged operation, and
reaches what are aptly termed political
offenses, growing out of personal misconduct
or gross neglect, or usurpation, or habitual
disregard of the public interests, various in
their character, and so indefinable in their
actual involutions, that it is almost impossible
to provide systematically for them by positive
law. They must be examined upon very broad
and comprehensive principles of public policy
and duty. They must be judged by the habits
and rules and principles of diplomacy, or
departmental operations and arrangements,
of parliamentary practice, of executive
customs and negotiations, of foreign as well as
domestic political movements; and in short, by
a great variety of circumstances, as well as
those which aggravate as those which
extenuate or justify the offensive acts which
do not properly belong to the judicial
character in the ordinary administration of
justice, and are far removed from the reach of
municipal jurisprudence. cEITCA
The design of impeachment is to remove the
impeachable officer from office, not to punish
him. An impeachable act need not be criminal.
That explains why the Constitution states that
the officer removed shall nevertheless be
subject to prosecution in an ordinary criminal
case. 4
Impeachment has been described as sui generis and an "exceptional
method of removing exceptional public officials (that must be)
exercised by the Congress with exceptional caution." 5 Thus, it is
directed only at an exclusive list of officials, providing for complex
procedures, exclusive grounds and very stringent limitations. The
implied constitutionalcaveat on impeachment is that Congress
should use that awesome power only for protecting the welfare of
the state and the people, and not merely the personal interests of a
few.
There exists no doubt in my mind that the framers of the
Constitution intended impeachment to be an instrument of last
resort, a draconian measure to be exercised only when there are no
other alternatives available. It was never meant to be a bargaining
chip, much less a weapon for political leverage. Unsubstantiated
allegations, mere suspicions of wrongdoing and other less than
serious grounds, needless to state, preclude its invocation or
exercise. According to constitutionalist Joaquin Bernas, S.J.:
for 'graft and corruption' and 'betrayal of
public trust' to be grounds for impeachment,
their concrete manner of commission must be
of the same severity as 'treason' and 'bribery,'
offenses that strike at the very heart of the life
of the nation. 6
A great deal of prudence should therefore be exercised not only to
initiate but also to proceed with impeachment. Otherwise, the time
intended for legislative work (the reason why the Senators and the
Congressmen have been elected to the legislature in the first place)
is shifted to the impeachment effort. Furthermore, since the
impeachable officer accused is among the highest officials of the
land, it is not only his reputation which is at stake but also the
efficient performance of his governmental functions. There is no
113
denying that the economy suffered a serious blow during the
impeachment trial of former Joseph Estrada in 2001. Impeachment
must therefore be gravely reflected upon on account of its
potentially destructive impact and repercussions on the life of the
nation.
Jurisdiction and Justiciability vs.
The Political Question Doctrine
The Court is vested power by the Constitution to rule on the
constitutionality or legality of an act, even of a co-equal branch.
Article VIII, Section 4(2) of the Constitution states:
(2)All cases involving the constitutionality of a
treaty, international or executive
agreement, or law, which shall be
heard by the Supreme Court en
banc, and all other cases which
under the Rules of Court are
required to be heard en banc,
including those involving the
constitutionality, application, or
operation of presidential decrees,
proclamations, orders, instructions,
ordinances, and other regulations,
shall be decided with the
concurrence of a majority of the
Members who actually took part in
the deliberations on the issues in the
case and voted thereon.
The Constitution is the basic and paramount law to which all laws,
rules and regulations must conform and to which all persons,
including the highest officials of the land, must defer. Any act
conflicting with the Constitution must be stricken down as all must
bow to the mandate of this law. Expediency is not allowed to sap its
strength nor greed for power permitted to debase its rectitude.
Right or wrong, the Constitution must be upheld as long as it has not
been changed by the sovereign people lest its disregard result in the
usurpation of the majesty of law by the pretenders to illegitimate
power. 7
While it is the judiciary which sees to it that the constitutional
distribution of powers among the three departments of the
government is respected and observed, by no means does this mean
that it is superior to the other departments. The correct view is that,
when the Court mediates to allocate constitutional boundaries or
invalidates the acts of a coordinate body, what it is upholding is not
its own supremacy but the supremacy of the Constitution. 8
The concept of the Constitution as the fundamental law, setting
forth the criterion for the validity of any public act, whether of the
highest official or the lowest functionary, is a cornerstone of our
democratic system. This is the rule of law. The three departments of
government, each discharging the specific functions with which it
has been entrusted, have no choice but to comply completely with
it. Whatever limitations are imposed must be observed to the letter.
Congress, whether the enactment of statutes or its internal rules of
procedure, is not exempt from the restrictions on its authority. And
the Court should be ready — not to overpower or subdue — but
simply to remind the legislative or even the executive branch about
what it can or cannot do under the Constitution. The power of
judicial review is a logical corollary of the supremacy of the
Constitution. It overrides any government measure that fails to live
up to its mandate. Thereby there is a recognition of its being the
supreme law. 9
Article VIII, Section 1 of the Constitution provides:
The judicial power shall be vested in one
Supreme Court and in such lower courts as
may be established by law. DcSTaC
Judicial power includes the duty of the courts
of justice to settle actual controversies
involving rights which are legally demandable
and enforceable, and to determine whether or
not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of
the government.
Both the 1935 and the 1973 Constitutions did not have a similar
provision with this unique character and magnitude of application.
This expanded provision was introduced by Chief Justice Roberto C.
Concepcion in the 1986 Constitutional Commission to preclude the
Court from using the political question doctrine as a means to avoid
having to make decisions simply because they may be too
controversial, displeasing to the President or Congress, or
inordinately unpopular. The framers of the 1987 Constitution
believed that the unrestricted use of the political question doctrine
allowed the Court during the Marcos years to conveniently steer
clear of issues involving conflicts of governmental power or even
cases where it could have been forced to examine and strike down
the exercise of authoritarian control.
Accordingly, with the needed amendment, the Court is now
enjoined by its mandate from refusing to invalidate an unauthorized
assumption of power by invoking the political question doctrine.
Judicial inquiry today covers matters which the Court, under
previous Constitutions, would have normally left to the political
departments to decide. In the case ofBondoc vs. Pineda, 10 the
Court stressed:
But where the political departments exceed
the parameters of their authority, then the
Judiciary cannot simply bury its head ostrich-
like in the sands of political question doctrine.
In fact, even political questions do not prohibit the exercise of the
power of judicial review for we have already ruled that our
responsibility to interpret the Constitution takes primacy over the
political question doctrine. In this connection, we held in Coseteng
vs. Mitra 11 that:
Even if the question were political in nature, it
would still come within our powers of review
under the expanded jurisdiction conferred
upon us by Article VIII, Section 1, of the
Constitution, which includes the authority to
determine whether grave abuse of discretion
amounting to excess or lack of jurisdiction has
been committed by any branch or
instrumentality of the government.
The Court is never concerned with policy matters which, without
doubt, are within the exclusive province of the political arms of
government. The Court settles no policy issues and declares only
what the law is and not what the law ought to be. Under our system
of government, policy belongs to the domain of the political
branches of government and of the people themselves as the
repository of all state power. 12
In the landmark case of Marbury vs. Madison, 13 penned by Chief
Justice John Marshall, the U.S. Supreme Court explained the concept
of judicial power and justiciable issues:
So if a law be in opposition to the
Constitution; if both the law and the
Constitution apply to a particular case, so that
the Court must either decide the case
conformably to the law, disregarding the
Constitution; or conformably to the
Constitution, disregarding the law; the court
must determine which of these conflicting
rules governs the case. This is of the very
essence of judicial duty.
114
And on the importance of our duty to interpret the
Constitution, Marbury was emphatic:
Those, then, who controvert the principle that
the constitution is to be considered, in court,
as a paramount law, are reduced to the
necessity of maintaining that the court must
close their eyes on the constitution, and see
only the law. This doctrine would subvert the
very foundation of all written constitutions. It
would declare that an act which, according to
the principles and theory of our government,
is entirely void, is yet, in practice, completely
obligatory. It would declare that if the
legislature shall do what is expressly
forbidden, such act, notwithstanding the
express prohibition, is in reality effectual. It
would be giving to the legislature a practical
and real omnipotence, with the same breath
which professes to restrict their powers within
narrow limits. It is prescribing limits and
declaring that those limits may be passed at
pleasure. 14
The Court has the obligation to decide on the issues before us to
preserve the hierarchy of laws and to maintain the supremacy of the
rule of the Constitution over the rule of men. DHcSIT
In Calderon vs. Carale, 15 we held:
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,
besides being clearly violative of the
fundamental principles of our constitutional
system of government, particularly those
governing the separation of powers.
Under the new definition of judicial power embodied in Article VIII,
Section 1, courts of justice have not only the authority but also
the duty to "settle actual controversies involving rights which are
legally demandable and enforceable" and "to determine whether or
not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of
the government."
The Court can therefore, in certain situations provided in the
Constitution itself, inquire into the acts of Congress and the
President, though with great hesitation and prudence owing to
mutual respect and comity. Among these situations, in so far as the
pending petitions are concerned, are (1) issues involving
constitutionality and (2) grave abuse of discretion amounting to lack
of or excess of jurisdiction on the part of any branch of the
government. These are the strongest reasons for the Court to
exercise its jurisdiction over the pending cases before us.
Judicial Restraint or
Dereliction of Duty?
A side issue that has arisen with respect to this duty to resolve
constitutional issues is the propriety of assuming jurisdiction
because "one of our own is involved." Some quarters have opined
that this Court ought to exercise judicial restraint for a host of
reasons, delicadeza included. According to them, since the Court's
own Chief Justice is involved, the Associate Justices should inhibit
themselves to avoid any questions regarding their impartiality and
neutrality.
I disagree. The Court should not evade its duty to decide the pending
petitions because of its sworn responsibility as the guardian of the
Constitution. To refuse cognizance of the present petitions merely
because they indirectly concern the Chief Justice of this Court is to
skirt the duty of dispensing fair and impartial justice. Furthermore,
refusing to assume jurisdiction under these circumstances will run
afoul of the great traditions of our democratic way of life and the
very reason why this Court exists in the first place.
This is actually not the first time the Court will decide an issue
involving itself. In the 1993 case of Philippine Judges Association vs.
Prado, 16 we decided the constitutionality of Section 35 of RA 7354
which withdrew the franking privilege of the Supreme Court, the
Court of Appeals, the Regional Trial Courts, the Metropolitan Trial
Courts, the Municipal Trial Courts and the Land Registration
Commission and its Registers of Deeds, along with certain other
government offices. The Court ruled on the issue and found that the
withdrawal was unconstitutional because it violated the equal
protection clause. The Court said:
The Supreme Court is itself affected by these
measures and is thus an interested party that
should ordinarily not also be a judge at the
same time. Under our system of
government, however, it cannot inhibit itself
and must rule upon the challenge, because no
other office has the authority to do so. We
shall therefore act upon this matter not with
officiousness but in the discharge of an
unavoidable duty and, as always, with
detachment and fairness.
xxx xxx xxx
We arrive at these conclusions with a full
awareness of the criticism it is certain to
provoke. While ruling against the
discrimination in this case, we may ourselves
be accused of similar discrimination through
the exercise of our ultimate power in our own
favor. This is inevitable. Criticism of judicial
conduct, however undeserved, is a fact of life
in the political system that we are prepared to
accept. As judges, we cannot even debate
with our detractors. We can only decide the
cases before us as the law imposes on us the
duty to be fair and our own conscience gives
us the light to be right (emphasis ours).
This Court has also ruled on the constitutionality of taxing the
income of the Supreme Court Justices. 17 The Court recognized that
it was faced by a "vexing challenge" since the issue affected all the
members of the Court, including those who were sitting there at
that time. Yet it still decided the issue, reasoning that "adjudication
may not be declined because (a) [we] are not legally disqualified; (b)
jurisdiction may not be renounced." Also, this Court had the
occasion to rule on the constitutionality of the presidential veto
involving certain provisions of the General Appropriations Act of
1992 on the payment of adjusted pension of retired Supreme Court
justices. 18
Thus, vexing or not, as long as the issues involved are constitutional,
the Court must resolve them for it to remain faithful to its role as the
staunch champion and vanguard of the Constitution. At the center
stage in the present petitions is the constitutionality of Rule V,
Sections 16 and 17 of the Rules on Impeachment Proceedings of the
House of Representatives and, by implication, the second
impeachment complaint against Chief Justice Hilario G. Davide Jr.
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We have the legal and moral obligation to resolve these
constitutional issues, regardless of who is involved. As pointed out
by the eminent constitutionalist, Joaquin Bernas, S.J., jurisdiction is
not mere power; it is a duty which, though vexatious, may not be
renounced. DEICHc
Constitutionality of Rule V Sections 16
and 17, and the Second Impeachment
Complaint/the Time-Bar Issue
Rule V, Section 16 of the Rules on Impeachment Proceedings of the
House of Representatives reads:
In cases where a Member of the House files a
verified complaint of impeachment or a citizen
files a verified complaint that is endorsed
against an impeachable officer, impeachment
proceedings against such official are deemed
initiated on the day the Committee on Justice
finds that the verified complaint and/or
resolution against such official, as the case
may be, is sufficient in substance or on the
date the House votes to overturn or affirm the
finding of the said Committee that the verified
complaint and/or resolution, as the case may
be, is not sufficient in substance.
In cases where a verified complaint or a
resolution of impeachment is filed or
endorsed, as the case may be, by at least one-
third (1/3) of the Members of the House,
impeachment proceedings are deemed
initiated at the time of the filing of such
verified complaint or resolution of
impeachment with the Secretary General.
Section 17 of the same impeachment rules provides:
Within a period of one (1) year from the date
impeachment proceedings are deemed
initiated as provided in Section 16 hereof, no
impeachment proceedings, as such, can be
initiated against the same official.
On the other hand, Article XI, Section 3(5) of the Constitution states:
No impeachment proceedings should be
initiated against the same official more than
once within a period of one year.
Simply stated, according to the rules of the House of
Representatives, impeachment proceedings are deemed initiated if
there is a finding by the House Committee on Justice that the
verified complaint is sufficient in substance; or once the House itself
affirms or overturns the finding of the Committee on Justice; or by
the filing or endorsement before the Secretary General of the House
of Representatives of a verified complaint or a resolution of
impeachment by at least one-third of the Members of the House.
The aforesaid rules of impeachment of the House of Representatives
proceed from its rule-making power on impeachment granted by the
Constitution:
The Congress shall promulgate its rules on
impeachment to effectively carry out the
purpose of this section. 19
The foregoing provision was provided for in the Constitution in the
light of the exclusive power of the House of Representatives to
initiate all cases of impeachment pursuant to Article XI, Section 3(1)
of the said Constitution. But this exclusive power pertaining to the
House of Representatives is subject to the limitations that no
impeachment proceedings shall be initiated against the same official
more than once within a period of one year under Section 3(5) of the
same Article XI.
In the light of these provisions, were there two impeachment
complaints 20 lodged against the Chief Justice within a period of one
year? Considering the House of Representatives' own interpretation
of Article XI, Section 3(5) of the Constitution and the diametrically
opposite stand of petitioners thereon, it becomes imperative for us
to interpret these constitutional provisions, even to the extent of
declaring the legislative act as invalid if it contravenes the
fundamental law.
Article XI, Section 3(5) is explicit that no impeachment proceedings
shall be initiated against the same official more than once within a
period of one year. The question is: when are impeachment
proceedings deemed initiated? TEacSA
In Gold Greek Mining Corporation vs. Rodriguez 21, the Court ruled
that the intent of the framers of the organic law and the people
adopting it is a basic premise. Intent is the vital part, the heart, the
soul and essence of the law and the guiding star in the interpretation
thereof. 22 What it says, according to the text of the provision to be
construed, compels acceptance and negates the power of the Court
to alter it, based on the postulate that the framers and the people
mean what they say. 23
The initial proposal in the 1986 Constitutional Commission read:
A vote of at least one-third of all the Members
of the House shall be necessary either to
initiate impeachment proceedings, or to
affirm a resolution of impeachment
proceedings, or to affirm a resolution of
impeachment by the committee or override its
contrary resolution. The vote of each Member
shall be recorded.
However, Commissioner Regalado Maambong 24 proposed the
amendment which is now the existing provision:
A vote of at least one-third of all the Members
of the House shall be necessary either to
affirm a resolution of the articles of
impeachment of the committee or to override
its contrary resolution. The vote of each
member shall be recorded.
Notably, Commissioner Maambong's proposal eliminated the clause
"[a vote of at least one-third of all the Members of the House shall
be necessary either] to initiate impeachment proceedings." His point
was that, pursuant to the rules and practice of the House of
Representatives of the United States, impeachment is not "initiated"
by the vote of the House but by the filing of the complaint.
Commissioner Maambong's amendment and explanation were
approved by the Constitutional Commission without objection. No
clearer authority exists on the meaning and intention of the framers
of the Constitution.
The issuance of an interpretative rule, embodied in Rule V, Section
16 of the Rules on Impeachment Proceedings of the House of
Representatives, vis-à-vis a self-executing provision of the
Constitution, has therefore no basis, at least with respect to the
term "initiate." A careful reading of Article XI, Section 3(5) of the
Constitution shows absolutely no necessity for an interpretative
rule. The wording of the constitutional provision is so unequivocal
and crystal-clear that it only calls for application and not
interpretation.
I acknowledge that Article XI, Section 3(8) of the Constitution
provides that the Congress shall promulgate its rules on
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impeachment. This is correct — provided such rules do not violate
the Constitution.
Judicial Review of Congress'
Power to Make its Rules
Article XI, Section 3(1) of the Constitution provides:
The House of Representatives shall have the
exclusive power to initiate all cases of
impeachment.
It is argued that because the Constitution uses the word "exclusive,"
such power of Congress is beyond the scope of judicial inquiry.
Impeachment proceedings are supposedly matters particularly and
undividedly assigned to a co-equal and coordinate branch of
government.
It must be recalled, however, that the President of the Republic of
the Philippines under Article VII, Section 18 of the Constitution has
the sole and exclusive power to declare martial law. Yet such power
is still subject to judicial review:
The President shall be the Commander-in-
Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call
out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. In case
of invasion or rebellion, when the public
safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of
the writ of habeas corpus or place the
Philippines or any part thereof under martial
law. Within forty-eight hours from the
proclamation of martial law or the suspension
of the privilege of the writ of habeas corpus,
the President shall submit a report in person
or in writing to the Congress. The Congress,
voting jointly, by a vote of at least a majority
of all its Members in regular or special session,
may revoke such proclamation or suspension,
which revocation shall not be set aside by the
President. Upon the initiative of the President,
the Congress may, in the same manner,
extend such proclamation or suspension for a
period to be determined by the Congress, if
the invasion or rebellion shall persist and
public safety requires it. IEAacS
The Supreme Court may review, in an
appropriate proceeding filed by any citizen,
the sufficiency of the factual bases of the
proclamation of martial law or the suspension
of the privilege of the writ or the extension
thereof, and must promulgate its decision
hereon within thirty days from its filing.
Furthermore, in Bondoc vs. Pineda, we assumed jurisdiction despite
the fact that the electoral tribunal concerned was the "sole" judge of
contests relating to elections, returns and qualifications of its
members:
Since "a constitutional grant of authority is not
usually unrestricted, limitations being
provided for as to what may be done and how
it is to be accomplished, necessarily then, it
becomes the responsibility of the courts to
ascertain whether the two coordinate
branches have adhered to the mandate of the
fundamental law. The question thus posed is
judicial rather than political. The duty remains
to assure that the supremacy of the
Constitution is upheld." That duty is a part of
the judicial power vested in the courts by an
express grant under Section 1, Article VIII of
the 1987 Constitution of the Philippines which
defines judicial power as both authority and
duty of the courts "to settle actual
controversies involving rights which are legally
demandable and enforceable, and to
determine whether or not there has been a
grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch
or instrumentalities of the Government.
The power and duty of the courts to nullify, in
appropriate cases, the actions of the executive
and legislative branches of the Government
does not mean that the courts are superior to
the President and the Legislature. It does
mean though that the judiciary may not shirk
"the irksome task" of inquiring into the
constitutionality and legality of legislative or
executive action when a justiciable
controversy is brought before the courts by
someone who has been aggrieved or
prejudiced by such person, as in this case. It is
— "a plain exercise of the judicial power, that
power vested in courts to enable them to
administer justice according to the law . . . It is
simply a necessary concomitant of the power
to hear and dispose of a case or controversy
properly before the court, to the
determination of which must be brought the
test and measure of the law. 25
Thus, in the words of author Bernas, the words "exclusive" or "sole"
in the Constitution should not be interpreted as "driving away the
Supreme Court," that is, prohibiting it from exercising its power of
judicial review when necessary.
The House of Representatives may thus have the "exclusive" power
to initiate impeachment cases but it has no exclusive power to
expand the scope and meaning of the law in contravention of the
Constitution.
While this Court cannot substitute its judgment for that of the House
of Representatives, it may look into the question of whether such
exercise has been made with grave abuse of discretion. A showing
that plenary power is granted either department of government may
not be an obstacle to judicial inquiry for the improvident exercise or
abuse thereof may give rise to a justiciable controversy. 26
The judiciary is deemed by most legal scholars as the weakest of the
three departments of government. It is its power of judicial review
that restores the equilibrium. In other words, while the executive
and the legislative departments may have been wittingly or
unwittingly made more powerful than the judiciary, the latter has,
however, been given the power to check or rein in the unauthorized
exercise of power by the other two.
Congress' Impeachment Power and
Power of the Purse vis-à-vis the
Powers of the Commission on Audit (COA)
and the Judiciary's Fiscal Autonomy
One of the issues against the Chief Justice in the second
impeachment complaint is the wisdom and legality of the allocation
and utilization of the Judiciary Development Fund (JDF). We take
judicial notice of the deluge of public discussions on this matter.
The second impeachment complaint charges the Chief Justice with
alleged unlawful underpayment of the cost of living allowances of
members and personnel of the judiciary and the unlawful
disbursement of the JDF for certain infrastructure projects and
acquisition of motor vehicles. DCSTAH
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The JDF was established by PD 1949 in 1984. As stated in its
preliminary clause, it was enacted to maintain the independence of
the judiciary, review and upgrade the economic conditions of the
members and personnel thereof, preserve and enhance its
independence at all times and safeguard the integrity of its
members, and authorize it, in the discharge of its functions and
duties, to generate its own funds and resources to help augment its
budgetary requirements and ensure the uplift of its members and
personnel.
It is of public record that, while the judiciary is one of the three co-
equal branches of government, it has consistently received less than
1% of the total annual appropriation of the entire bureaucracy.
As authorized by PD 1949, the judiciary augments its budgetary
requirements through the JDF, which is in turn derived from, among
others, the marginal increases in legal fees since 1984.
Section 1 of PD 1949 imposes the following percentage limits on the
use of the JDF:
"That at least eighty percent (80%) of the Fund
shall be used for cost of living allowances, and
not more than twenty percent (20%) of the
said Fund shall be used for office equipment
and facilities of the Courts located where the
legal fees are collected; Provided, further,
That said allowances of the members and
personnel of the Judiciary shall be distributed
in proportion of their basic salaries; and,
Provided, finally, That bigger allowances may
be granted to those receiving a basic salary of
less than P1,000.00 a month.
Section 2 thereof grants to the Chief Justice the sole and exclusive
power to authorize disbursements and expenditures of the JDF:
SECTION 2.The Chief Justice of the Supreme
Court shall administer and allocate the Fund
and shall have the sole exclusive power and
duty to approve and authorize disbursements
and expenditures of the Fund in accordance
with the guidelines set in this Decree and its
implementing rules and regulations. (Emphasis
supplied).
Section 3 of the same law empowers the Commission on Audit (COA)
to make a quarterly audit of the JDF:
SECTION 3.The amounts accruing to the Fund
shall be deposited by the Chief Justice or his
duly authorized representative in an
authorized government depository bank or
private bank owned or controlled by the
Government, and the income or interest
earned shall likewise form part of the
Fund. The Commission on Audit through the
Auditor of the Supreme Court or his duly
authorized representative shall quarterly audit
the receipts, revenues, uses, disbursements
and expenditures of the Fund, and shall submit
the appropriate report in writing to the
Chairman of the Commission on Audit and to
the Chief Justice of the Supreme Court, copy
furnished the Presiding Appellate Justice of
the Intermediate Appellate Court and all
Executive Judges. (Emphasis supplied).
It is clear from PD 1949 that it is the COA, not Congress, that has the
power to audit the disbursements of the JDF and determine if the
same comply with the 80-20 ratio set by the law.
In the course of the House Committee on Justice's investigation on
the first impeachment complaint, the COA submitted to the said
body a copy of its audit report, together with pertinent supporting
documents, that the JDF was used and allocated strictly in
accordance with PD 1949.
Because some congressmen disagreed with the COA report clearing
the Chief Justice of any illegality or irregularity in the use and
disbursement of the JDF, a second impeachment complaint was filed
charging him with alleged "misuse of the JDF." At this point, the
question foremost in my mind is: what would be the basis of such
charges if the COA itself already cleared the Chief Justice?
Aside from its statutory power under PD 1949 to audit the JDF, the
COA alone has the constitutional power to audit and investigate all
financial accounts of the government, including the JDF. aTHASC
Article IX (D), Section 2 (1) and (2) of the Constitution empowers and
obligates the COA as follows:
Sec. 2.(1) The Commission on Audit shall have
the power, authority, and duty to examine,
audit, and settle all accounts pertaining to the
revenue and receipts of, and expenditures or
uses of funds and property, owned or held in
trust by, or pertaining to, the Government, or
any of its subdivisions, agencies, or
instrumentalities, including government-
owned and controlled corporations with
original charters, and on a post-audit basis: (a)
constitutional bodies, commissions and offices
that have been granted fiscal autonomy under
this Constitution; (b) autonomous state
colleges and universities; (c) other
government-owned or controlled corporations
and their subsidiaries; and (d) such non-
governmental entities receiving subsidy or
equity, directly or indirectly, from or through
the Government, which are required by law or
the granting institution to submit such audit as
a condition of subsidy or equity. However,
where the internal control system of the
audited agencies is inadequate, the
Commission may adopt such measures,
including temporary or special pre-audit, as
are necessary and appropriate to correct the
deficiencies. Preserve the vouchers and other
supporting papers pertaining thereto.
(2)The Commission shall have exclusive
authority, subject to the limitations in this
Article to define the scope of its audit
examination, establish the techniques and
methods required therefore, and promulgate
accounting and auditing rules and regulations,
including those for the prevention and
disallowance of irregular, unnecessary,
excessive, extravagant, or unconscionable
expenditures, or uses of government funds
and properties.
Under the foregoing provisions, the COA alone has broad powers to
examine and audit all forms of government revenues, examine and
audit all forms of government expenditures, settle government
accounts, define the scope and techniques for its own auditing
procedures, promulgate accounting and auditing rules "including
those for the prevention and disallowance of irregular, unnecessary,
excessive, extravagant, or unconscionable expenditures," decide
administrative cases involving expenditure of public funds, and to
conduct post-audit authority over "constitutional bodies,
commissions and offices that have been granted fiscal autonomy
under this Constitution." The provision on post-audit recognizes that
there are certain government institutions whose operations might
be hampered by pre-audit requirements.
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Admittedly, Congress is vested with the tremendous power of the
purse, traditionally recognized in the constitutional provision that
"no money shall be paid out of the Treasury except in pursuance of
an appropriation made by law." 27 It comprehends both the power
to generate money by taxation (the power to tax) and the power to
spend it (the power to appropriate). The power to appropriate
carries with it the power to specify the amount that may be spent
and the purpose for which it may be spent. 28
Congress' power of the purse, however, can neither traverse on nor
diminish the constitutional power of the COA to audit government
revenues and expenditures.
Notably, even the expenditures of Congress itself are subject to
review by the COA under Article VI, Section 20 of the Constitution:
Sec. 20.The records and books of accounts of
the Congress shall be preserved and be open
to the public in accordance with law, and such
books shall be audited by the Commission on
Audit which shall publish annually an itemized
list of amounts paid to and expense incurred
for each member. (Emphasis supplied).
The COA's exclusive and comprehensive audit power cannot be
impaired even by legislation because of the constitutional provision
that no law shall be passed exempting any entity of the government
or its subsidiary or any investment of public funds from COA
jurisdiction. 29
Neither can Congress dictate on the audit procedures to be followed
by the COA under Article IX (D), Section 2 (2).
In sum, after Congress exercises its power to raise revenues and
appropriate funds, the power to determine whether the money has
been spent for the purpose for which it is allocated now belongs to
the COA. Stated otherwise, it is only through the COA that the
people can verify whether their money has been properly spent or
not. 30
As it is a basic postulate that no one is above the law, Congress,
despite its tremendous power of the purse, should respect and
uphold the judiciary's fiscal autonomy and the COA's exclusive
power to audit it under the Constitution. DcHSEa
Not only is Congress precluded from usurping the COA's power to
audit the JDF, Congress is also bound to respect the wisdom of the
judiciary in disbursing it. It is for this precise reason that, to
strengthen the doctrine of separation of powers and judicial
independence, Article VIII, Section 3 of the Constitution accords
fiscal autonomy to the judiciary:
Sec. 3.The Judiciary shall enjoy fiscal
autonomy. Appropriations for the Judiciary
may not be reduced by the legislature below
the amount appropriated for the previous
year and, after approval, shall be
automatically and regularly released.
In Bengzon vs. Drilon, 31 we explained the constitutional concept of
fiscal autonomy:
As envisioned in the Constitution, the fiscal
autonomy enjoyed by the Judiciary,. . .
contemplates a guarantee of full flexibility to
allocate and utilize [its] resources with the
wisdom and dispatch that [its] needs require.
It recognizes the power and authority to levy,
assess and collect fees, fix rates of
compensation not exceeding the highest rates
authorized by law for compensation and pay
plans of the government and allocate and
disburse such sums as may be provided by law
or prescribed by them in the course of the
discharge of their function.
Fiscal autonomy means freedom from outside
control. If the Supreme Court says it needs
100 typewriters but DBM rules we need only
10 typewriters and sends its recommendation
to Congress without even informing us, the
autonomy given by the Constitution becomes
an empty and illusory platitude.
The Judiciary. . . must have the independence
and flexibility needed in the discharge of [its]
constitutional duties. The imposition of
restrictions and constraints on the manner the
independent constitutional offices allocate
and utilize the funds appropriated for their
operations is anathema to fiscal autonomy
and violative not only of the express mandate
of the Constitution but especially as regards
the Supreme Court, of the independence and
separation of powers upon which the entire
fabric of our constitutional system is based. In
the interest of comity and cooperation, the
Supreme Court, Constitutional Commissions
and the Ombudsman have so far limited their
objections to constant reminders. We now
agree with the petitioners that this grant of
autonomy should cease to be a meaningless
provision.
In the case at bar, the veto of these specific
provisions in the General Appropriations Act is
tantamount to dictating to the Judiciary how
its funds should be utilized, which is clearly
repugnant to fiscal autonomy. The freedom of
the Chief Justice to make adjustments in the
utilization of the funds appropriated for the
expenditures of the judiciary, including the use
of any savings from any particular item to
cover deficits or shortages in other items of
the judiciary is withheld. Pursuant to the
Constitutional mandate, the judiciary must
enjoy freedom in the disposition of the funds
allocated to it in the appropriation law.
In essence, fiscal autonomy entails freedom from outside control
and limitations, other than those provided by law. It is the freedom
to allocate and utilize funds granted by law, in accordance with law
and pursuant to the wisdom and dispatch its needs may require
from time to time.
Wherefore, I vote to grant the petitions (1) for this Court to exercise
its jurisdiction and power of judicial review immediately; (2) to
declare Rule V, Sections 16 and 17 of the Rules on Impeachment
Proceedings of the House of Representatives unconstitutional and
(3) to declare the second impeachment complaint filed pursuant to
such rules to be likewise unconstitutional.
CALLEJO, SR., J .:
I concur with modifications with the encompassing ponencia of
Justice Conchita Carpio-Morales. However, I find it imperative to
submit this separate opinion to set forth some postulates on some
of the cogent issues.
Briefly, the factual antecedents are as follows:
On June 2, 2003, a verified impeachment complaint was filed with
the Office of the Secretary General of the House of Representatives
by former President Joseph E. Estrada against Chief Justice Hilario G.
Davide, Jr. and seven (7) other associate justices of the Court for
violation of the Constitution, betrayal of public trust and committing
high crimes. The complaint was referred to the Speaker of the
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House, who had the same included in the Order of Business.
Thereafter, the complaint was referred to the Committee on Justice
and Human Rights.
On October 13, 2003, the House Committee on Justice included the
first impeachment complaint in its order of business. The Committee
voted that the complaint was sufficient in form. However, on
October 22, 2003, the said House Committee dismissed the first
impeachment complaint for insufficiency of substance. The same
Committee has not yet transmitted its report to the plenary.
The following day, or on October 23, 2003, a verified impeachment
complaint was filed with the Office of the Secretary General of the
House by the complainants, Representatives Gilberto C. Teodoro,
First District, Tarlac, and Felix William D. Fuentebella, Third District,
Camarines Sur, against Chief Justice Hilario G. Davide, Jr., for graft
and corruption, betrayal of public trust, culpable violation of the
Constitution and failure to maintain good behavior while in office.
Attached to the second impeachment complaint was a Resolution of
Endorsement/Impeachment signed by at least one-third (1/3) of all
the members of the House of Representatives.
On October 24, 2003, the Majority and Minority Leaders of the
House of Representatives transmitted to the Executive Director,
Plenary Affairs Division of the House of Representatives, the
aforesaid Verified Impeachment Complaint and Resolution of
Endorsement for its inclusion in the Order of Business, and for the
endorsement of the House to the Senate within three days from its
inclusion pursuant to Section 15, Rule IV of the 2001 Rules of
Procedure on Impeachment Proceedings. The Impeachment
Complaint and Resolution of Endorsement were included in the
business of the House of Representatives at 2:00 p.m. of October 28,
2003. However, the matter of the transmittal of the Complaint of
Impeachment was not resolved because the session was adjourned,
to resume at 4:00 p.m. on November 10, 2003.
On October 27, 2003, Ernesto B. Francisco, Jr. filed his petition for
certiorari and prohibition for the nullification of the October 23,
2003 Impeachment Complaint with a plea for injunctive relief. The
Integrated Bar of the Philippines filed a similar petition for the
nullification of Sections 16 and 17 of Rule V of the 2001 House Rules
of Procedure in Impeachment Proceedings. The petitioners
Congressmen in G.R. No. 160295 also manifested to the Court and
prayed during the hearing on November 6, 2003 that Rule V of the
2001 Rules of Procedure on Impeachment Proceedings be declared
unconstitutional. Similar petitions were also filed with the Court by
other parties against the same Respondents with the Court.
In their Manifestation, Respondents Speaker of the House, et al.,
urged the Court to dismiss the petitions on the ground that the
Court has no jurisdiction over the subject matter of the petition and
the issues raised therein. They assert that the Court cannot prohibit
or enjoin the House of Representatives, an independent and co-
equal branch of the government, from performing its
constitutionally mandated duty to initiate impeachment cases. They
submit that the impeachment proceedings in the House is
"nonjusticiable," falling within the category of "political questions,"
and, therefore, beyond the reach of this Court to rule upon. They
counter that the October 23, 2003 Complaint was the first complaint
for Impeachment filed against Chief Justice Hilario G. Davide, Jr., the
complaint for Impeachment filed by former President Joseph
Ejercito Estrada having been deemed uninitiated. In its
Manifestation to the Court, the respondent Senate of the Philippines
asserts that: (a) the petitions are premature because the Articles of
Impeachment have yet to be transmitted to the Senate by the House
of Representatives; and (b) the issues raised in the petition pertain
exclusively to the proceedings in the House of Representatives.
In his Comment on the petitions, Respondent-Intervenor Senator
Aquilino Q. Pimentel, Jr. contends that the Court has no jurisdiction
to resolve the legality of the October 23, 2003 Complaint/Articles of
Impeachment, as the said issue involves a political question, the
resolution of which is beyond the jurisdiction of the Court. It is the
Senate, sitting as an Impeachment Court, that is competent to
resolve the issue of whether the Complaint of Impeachment filed on
October 23, 2003 was filed within the one year time-bar. The
Senate, sitting as an impeachment tribunal as sole power to try and
decide an impeachment case, is according to the Senator, beyond
the reach of the Court to decide.
The threshold issues raised by the parties may be synthesized, thus:
(a) whether the Petitioners have locus standi; (b) whether the Court
has jurisdiction over the subject matter of the petitions and of the
issues; (c) if in the affirmative, whether the petitions are premature;
(d) whether judicial restraint should be exercised by the Court; (e)
whether Sections 16 and 17 of Rule V of the House Rules of
Procedure in Impeachment Cases are unconstitutional; and (f)
whether the October 23, 2003 Complaint of Impeachment against
the Chief Justice is time-barred.
On the Issue of Locus Standi of the Petitioners
I am in full accord with the ratiocinations of the ponente.
The Court Has Jurisdiction over The Respondents and the
Subject Matter of the Petitions
In their Special Appearance and/or Manifestation, Respondents
Speaker Jose de Venecia, et al. assert that the Court has no
jurisdiction over the subject matter of the petitions and that it has
no jurisdiction to bar, enjoin and prohibit the Respondent House of
Representatives at any time from performing its constitutional
mandate to initiate impeachment cases and to enjoin the Senate
from trying the same. The Respondents contend that under Section
3 (1), Article VI of the Constitution, the House of Representatives
shall have the exclusive power to initiate all cases of impeachment.
For his part, the Respondent Intervenor Senator Aquilino Q.
Pimentel, Jr. avers that under Section 6, Article XI of the
Constitution, the Senate shall have the sole power to try and decide
all cases of impeachment and the Court is bereft of jurisdiction to
interfere in the trial and decision of the complaint against the Chief
Justice. The Respondents cite the ruling of the United States
Supreme Court in Walter Nixon v. United States. 2 The Respondent
Speaker Jose de Venecia,et al., also cited the Commentary of
Michael Gerhart on the said ruling of the United States Supreme
Court that even in a case involving a violation of explicit
constitutional restraint, judicial intervention would undermine
impeachment effectiveness as a check on the executive, and would
constitute judicial abuse of power; and that the judicial involvement
in impeachment proceedings even if only for purposes of judicial
review is counterintuitive because it would eviscerate the important
constitutional check placed on the judiciary by the Framers. It is also
contended that opening the door of judicial review to the
procedures used by the Senate in trying impeachments would
expose the political life of the country to months, or perhaps years
of chaos. Furthermore, it is averred that judicial review of the
Senate's trial would introduce the same risks of bias as would
participation in the trial itself.
I find the contentions of the Respondents to be without merit.
By the jurisdiction of the Court over the subject matter is meant the
nature of the cause of action and of the relief sought. This is
conferred by the sovereign authority which organizes the court, and
is to be sought for in the general nature of its powers, or in authority
specially conferred. 3 It is axiomatic that jurisdiction is conferred by
the Constitution and by the laws in force at the time of the
commencement of the action. 4
In the petitions at bar, as can be gleaned from the averments
therein, the petitioners sought the issuance of the writs of certiorari,
prohibition and injunction against the Respondents, on their claim
that the Respondent House of Representatives violated Section 3(5),
Article XI of the Constitution when it approved and promulgated on
November 28, 2001 Sections 16 and 17, Rule V of the 2001 House
Rules of Procedure in Impeachment Proceedings.
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The Petitioners also averred in their petitions that the initiation by
the Respondents Congressmen Gilbert C. Teodoro and Felix William
D. Fuentebella of the impeachment case against Chief Justice Hilario
G. Davide, Jr. on October 23, 2003 via a complaint for impeachment
filed is barred by the one-year time line under Section 3(5), Article XI
of the Constitution.
They further assert that the Respondent House of Representatives
committed a grave abuse of its discretion amounting to lack or
excess of jurisdiction in giving due course to the October 23, 2003
Complaint of Impeachment and in insisting on transmitting the same
to the Respondent Senate.
Under Section 1, Article VIII of the Constitution, "judicial power is
vested in the Supreme Court and in such lower courts as may be
established by law. The judicial power of the Court includes the
power to settle controversies involving rights which are legally
demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of
the Government." InEstrada v. Desierto, 5 this Court held that with
the new provision in the Constitution, courts are given a greater
prerogative to determine what it can do to prevent grave abuse of
discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of government. The Constitution is
the supreme law on all governmental agencies, including the House
of Representatives and the Senate.
Under Section 4(2), Article VIII of the Constitution, the Supreme
Court is vested with jurisdiction over cases involving the
constitutionality, application and operation of government rules and
regulations, including the constitutionality, application and
operation of rules of the House of Representatives, as well as the
Senate. 6 It is competent and proper for the Court to consider
whether the proceedings in Congress are in conformity with the
Constitution and the law because living under the Constitution, no
branch or department of the government is supreme; and it is the
duty of the judiciary to determine cases regularly brought before
them, whether the powers of any branch of the government and
even those of the legislative enactment of laws and rules have been
exercised in conformity with the Constitution; and if they have not,
to treat their acts as null and void. 7 Under Section 5, Article VIII of
the Constitution, the Court has exclusive jurisdiction over petitions
for certiorari and prohibition. The House of Representatives may
have the sole power to initiate impeachment cases, and the Senate
the sole power to try and decide the said cases, but the exercise of
such powers must be in conformity with and not in derogation of the
Constitution.
The Respondents cannot find refuge in the ruling of the United
States Supreme Court in Walter Nixon v. United States 8because the
United States Constitution does not contain any provision akin to
that in Paragraph 1, Article VIII of the Constitution. The Nixon case
involved the issue of whether Senate Rule XI violated Impeachment
Trial Clause Articles 1, 3, cl. 6, which provides that the Senate shall
have the power to try all impeachment cases. The subject matter in
the instant petitions involve the constitutionality of Sections 16 and
17, Rule V of the 2001 House Rules of Procedures in Impeachment
Proceedings and the issue of whether the October 23, 2003
Complaint of Impeachment is time-barred under Section 3(5), Article
XI of the Constitution. Besides, unlike in the instant petitions, the
U.S. Supreme Court ruled inNixon that "there is no separate
provision of the Constitution that could be defeated by allowing the
Senate final authority to determine the meaning of the word 'try' in
the Impeachment Trial Clause." The Court went on to emphasize
that:
We agree with Nixon that [506 U.S. 224, 238]
courts possess power to review either
legislative or executive action that
transgresses identifiable textual limits. As we
have made clear, "whether the action of
[either the Legislative or Executive Branch]
exceeds whatever authority has been
committed is itself a delicate exercise in
constitutional interpretation, and is a
responsibility of this Court as ultimate
interpreter of the Constitution."
The Court has jurisdiction over the issues
The issue of whether or not this Court has jurisdiction over the
issues has reference to the question of whether the issues are
justiciable, more specifically whether the issues involve political
questions. The resolution of the issues involves the construction of
the word "initiate." This, in turn, involves an interpretation of
Section 3(5), Article XI of the Constitution, in relation to Sections 3(1)
and 3(2) thereof, which read:
Sec. 3.(1)The House of Representatives shall
have the exclusive power to initiate all cases
of impeachment.
(2)A verified complaint for impeachment may
be filed by any Member of the House of
Representatives or by any citizen upon a
resolution of endorsement by any Member
thereof, which shall be included in the Order
of Business within ten session days, and
referred to the proper Committee within three
session days thereafter. The Committee, after
hearing and by a majority vote of all its
Members, shall submit its report to the House
within sixty session days from such referral,
together with the corresponding resolution.
The resolution shall be calendared for
consideration by the House within ten session
days from receipt thereof.
(3)A vote of at least one-third of all the
Members of the House shall be necessary
either to affirm a favorable resolution with the
Articles of Impeachment of the Committee, or
override its contrary resolution. The vote of
each Member shall be recorded.
(4)In case the verified complaint or resolution
of impeachment is filed by at least one-third
of all Members of the House, the same shall
constitute the Articles of Impeachment, and
trial by the Senate shall forthwith proceed.
(5)No impeachment proceedings shall be
initiated against the same official more than
once within a period of one year.
The construction of the word "initiate" is determinative of the
resolution of the issues of whether Sections 16 and 17, Rule V of the
2001 House Rules of Procedure in Impeachment Proceedings
violated Section 3(5), Article XI of the Constitution or not; and
whether the October 23, 2003 Complaint of Impeachment is a
violation of the proscription in Section 3(5), Article XI of the
Constitution against impeachment proceedings being initiated
against the same Respondent more than once within a period of one
year. The issue as to the construction of Rule V of the 2001 House
Rules of Procedure affects a person other than the Members of the
House of Representatives, namely, Chief Justice Hilario G. Davide, Jr.
These questions are of necessity within the jurisdiction of the Court
to resolve. As Justice Brandeis said in United States v. George Otis
Smith, 9 as to the construction to be given to the rules affecting
persons other than members of the Senate, the question presented
is of necessity a judicial one. In Santiago v. Sandiganbayan, 10 this
Court held that it is an impairment or a clear disregard of a specific
constitutional precept or provision that can unbolt the steel door for
judicial intervention. In Integrated Bar of the Philippines
v. Zamora, 11 this Court held that when the grant of power is
qualified, conditional or are subject to limitations, the issue of
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whether the proscribed limitations have been met or the limitations
respected, is justiciable — the problem being one of legality or
validity, not its wisdom. Moreover, the jurisdiction to determine
constitutional boundaries has been given to this Court. Even in Nixon
v. Unites States, 12the Supreme Court of the Unites States held that
whether the action of the Legislative exceeds whatever authority
has been committed is itself a delicate exercise in constitutional
interpretation, and is the responsibility of the Supreme Court as the
ultimate interpreter of the Constitution.
On the prematurity of the petition and the need for Judicial
Restraint
There is no doubt that the petitions at bar were seasonably filed
against the respondents Speaker Jose de Venecia and his co-
respondents. In Aquilino Pimentel Jr. v. Aguirre, 13 this Court ruled
that upon the mere enactment of the questioned law or the
approval of the challenged action, the dispute is said to have ripened
into a judicial controversy even without any other overt act. Indeed,
even a singular violation of the Constitution and/or the law is
enough to awaken judicial duty. In this case, the respondents had
approved and implemented Sections 16 and 17, Rule V of the 2001
of the Rules of Procedure, etc. and had taken cognizance of and
acted on the October 23, 2003 complaint of impeachment; the
respondents are bent on transmitting the same to the respondent
Senate. Inscrutably, therefore, the petitions at bar were seasonably
filed against said respondents. However, I agree with the respondent
Senate that the petitions were premature, the issues before the
Court being those that relate solely to the proceedings in the House
of Representatives before the complaint of impeachment is
transmitted by the House of Representatives to the Senate.
On the issue of judicial self-restraint, Amici Curiae Dean Raul
Pangalangan and Dean Pacifico Agabin presented two variant
aspects: Dean Raul Pangalangan suggests that the Court orders a
suspension of the proceedings in this Court and allow the
complainants to withdraw their complaints and the House of
Representatives to rectify Rule V of the 2001 House Rules of
Procedure. Dean Pacifico Agabin suggests that the Court deny due
course and dismiss the petitions to enable the Senate to resolve the
issues in the instant cases. Their proposals prescind from the duty of
the Court under Section 1, Article VIII of the Constitution to resolve
the issues in these cases. The suggestions of the amici curiae relate
to the principles of exhaustion of administrative remedies and the
doctrine of primary jurisdiction.
I find the suggestions of the amici curiae unacceptable.
First. The complainants and the endorsers of their complaint and
even the House of Representatives through the Respondent Speaker
Jose de Venecia are bent on transmitting the impeachment
complaint to the Senate without delay.
Second. The courts should take cognizance of and resolve an action
involving issues within the competence of a tribunal of special
competence without the need of the latter having to resolve such
issue where, as in this case, Respondent Speaker Jose de Venecia
and his co-respondents acted with grave abuse of discretion,
arbitrariness and capriciousness is manifest. 14
Third. The issue of whether or not the October 23, 2003 complaint
of impeachment is time-barred is not the only issue raised in the
petitions at bar. As important, if not more important than the said
issue, is the constitutionality of Sections 16 and 17, Rule V of the
2001 House Rules of Procedure. In fact, the resolution of the
question of whether or not the October 23, 2003 complaint for
impeachment is time-barred is anchored on and is inextricably
interrelated to the resolution of this issue. Furthermore, the
construction by the Court of the word "initiate" in Sections 3(1) and
(5) in relation to Section 3(3), Article XI of the Constitution is decisive
of both issues.
Fourth. The Senate has no jurisdiction to resolve the issue of the
constitutionality of Sections 16 and 17, Rule V of the 2001 House
Rules of Procedure, in the same manner that the House of
Representatives has no jurisdiction to rule on the constitutionality of
the Impeachment Rules of the Senate. The Senate and the House of
Representatives are co-equal. I share the view of Justice Isagani Cruz
in his concurring opinion in Fernandez v. Torres 15 that an
unconstitutional measure should be slain on sight. An illegal act
should not be reprieved by procedural impediments to delay its
inevitable annulment. If the Court resolves the constitutionality of
Rule V of the 2001 Rules of Procedure, and leaves the issue of
whether the October 23, 2003 Complaint of Impeachment to be
resolved by the Senate, this will promote multiplicity of suits and
may give rise to the possibility that the Court and the Senate would
reach conflicting decisions. Besides, inDaza v. Singson 16 this Court
held that the transcendental importance to the public, strong
reasons of public policy, as well as the character of the situation that
confronts the nation and polarizes the people are exceptional
circumstances demanding the prompt and definite resolution of the
issues raised before the Court.
Fifth. The doctrine of primary jurisdiction comes into play in the
Senate only upon the transmittal of the impeachment complaint to
it.
Sixth. The resolution of whether the October 23, 2003 Complaint of
Impeachment is time-barred does not require the application of a
special skill or technical expertise on the part of the Senate.
Sections 16 and 17, Rule V of the 2001 Rules of Procedure, etc. is
unconstitutional
The October 23, 2003 Complaint of impeachment is time-barred
The petitioners contend that Sections 16 and 17, Rule V of the 2001
House Rules of Procedure construing Section 3(5), Article XI is
unconstitutional. Respondent Speaker Jose G. de Venecia and his co-
respondents contend that the June 2, 2003 Complaint for
Impeachment filed by former President Joseph E. Estrada against
Chief Justice Hilario Davide, Jr., and seven other Justices of the
Supreme Court "did not reach first base and was never initiated by
the House of Representatives, and, in fact, the committee report has
yet to be filed and acted upon by the House of Representatives." The
respondents further assert that the only complaint for impeachment
officially initiated by the House of Representatives is the October 23,
2003 Complaint filed by Congressmen Gilberto Teodoro and Felix
William Fuentebella. The respondents finally contend that their
interpretation of Rule V of the 2001 Rules of Procedure in relation to
Sections 3(4) and 3(5), Article XI of the Constitution is the only
rational and reasonable interpretation that can be given, otherwise,
the extraordinary remedy of impeachment will never be effectively
carried out because impeachable officials can conveniently allow or
manipulate the filing of bogus complaints against them every year to
foreclose this remedy. The respondents cite the commentary of Fr.
Joaquin Bernas, one of the amici curiae of the Court in his book,
"The 1987 Constitution of the Republic of the Philippines, A
Commentary, 1996 ed., p. 1989."
The submissions of the respondents do not hold water.
Section 3, Article XI of the Constitution reads:
SECTION 3.(1)The House of Representatives
shall have the exclusive power to initiate all
cases of impeachment.
(2)A verified complaint for impeachment may
be filed by any Member of the House of
Representatives or by any citizen upon a
resolution of endorsement by any Member
thereof, which shall be included in the Order
of Business within ten session days, and
referred to the proper Committee within three
session days thereafter. The Committee, after
hearing, and by a majority vote of all its
Members, shall submit its report to the House
within sixty session days from such referral,
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 together with the corresponding resolution.
The resolution shall be calendared for
consideration by the House within ten session
days from receipt thereof.
(3)A vote of at least one-third of all the
Members of the House shall be necessary
either to affirm a favorable resolution with the
Articles of Impeachment of the Committee, or
override its contrary resolution. The vote of
each Member shall be recorded.
(4)In case the verified complaint or resolution
of impeachment is filed by at least one-third
of all the Members of the House, the same
shall constitute the Articles of Impeachment,
and trial by the Senate shall forthwith
proceed.
(5)No impeachment proceedings shall be
initiated against the same official more than
once within a period of one year.
(6)The Senate shall have the sole power to try
and decide all cases of impeachment. When
sitting for that purpose, the Senators shall be
on oath or affirmation. When the President of
the Philippines is on trial, the Chief Justice of
the Supreme Court shall preside, but shall not
vote. No person shall be convicted without the
concurrence of two-thirds of all the Members
of the Senate.
(7)Judgment in cases of impeachment shall
not extend further than removal from office
and disqualification to hold any office under
the Republic of the Philippines, but the party
convicted shall nevertheless be liable and
subject to prosecution, trial, and punishment
according to law.
(8)The Congress shall promulgate its rules on
impeachment to effectively carry out the
purpose of this section.
There are two separate and distinct proceedings undertaken in
impeachment cases. The first is that undertaken in the House of
Representatives, which by express provision of the Constitution, is
given the authority to determine the sufficiency in form and
substance of the complaint for impeachment, the existence of
probable cause, and to initiate the articles of impeachment in the
Senate. The second is the trial undertaken in the Senate. The
authority to initiate an impeachment case is lodged solely in the
House of Representatives, while the authority to try and decide an
impeachment case is lodged solely in the Senate. The two
proceedings are independent of and separate from the other. This
split authority avoids the inconvenience of making the same persons
both accusers and judges; and guards against the danger of
persecution from the prevalency of a factious spirit in either of those
branches. 17
It must be noted that the word "initiate" is twice used in Section 3;
first in paragraph 1, and again in paragraph 5. The verb "initiate" in
paragraph 1 is followed by the phrase "all cases of impeachment,"
while the word "initiated" in paragraph 5 of the Section is preceded
by the words "no impeachment proceedings shall be." On the other
hand, the word "file" or "filed" is used in paragraphs 2 and 4 of
Section 3.
There is a clear distinction between the words "file" and the word
"initiate." Under the Rules of Civil Procedure, complaints are filed
when the same are delivered into the custody of the clerk of court or
the judge either by personal delivery or registered mail and the
payment of the docket and other fees therefor. In criminal cases, the
information or criminal complaint is considered filed when it is
delivered with the court whether for purposes of preliminary
investigation or for trial as the case may be.
Distinction must be made between the phrase "the case" in Section
3(1) from the word "proceedings" in Section 3(5). "The case" refers
to an action commenced or initiated in the Senate by the transmittal
of the articles of impeachment or the complaint of impeachment by
the House of Representatives for trial. The word "proceeding"
means "the regular and orderly progression of a lawsuit including all
acts and events between the time of commencement and the entry
of judgment; an act or step that is part of a larger action; an act
done by the authority or direction of the court, express or implied; it
is more comprehensive than the word "action" but it may include in
its general sense all the steps taken or measures adopted in the
prosecution or defense of an action including the pleadings and
judgment. 18 The word "initiate" means "to begin with or get going;
make a beginning; perform or facilitate the first action." 19
Based on the foregoing definitions, the phrase "initiate all cases of
impeachment" in Section 3(1) refers to the commencement of
impeachment cases by the House of Representatives through
the transmittal of the complaint for impeachment or articles of
impeachment to the Senate for trial and decision. The word
"initiated" in Section 3(5), on the other hand, refers to the filing of
the complaint for impeachment with the office of the Secretary
General of the House of Representatives, either by a verified
complaint by any member of the House of Representatives or by any
citizen upon a resolution of endorsement by any member thereof,
and referred to the committee of justice and human rights for
action, or by the filing of a verified complaint or resolution of
impeachment by at least one-third of all members of the House,
which complaint shall constitute the Article of Impeachment. This is
the equivalent of a complaint in civil procedure or criminal
complaint or information in criminal procedure.
According to amicus curiae Fr. Joaquin Bernas, the referral by the
House of Representatives is the initiating step which triggers the
series of steps that follow in the House of Representatives. The
submission of Fr. Joaquin Bernas is shared by amicus curiae Justice
Florenz D. Regalado, who, aside from being an eminent authority on
Remedial Law, was also a member of the Constitutional Commission.
During the hearing of this petition on November 5, 2003, he stated:
RET. JUSTICE REGALADO:
The point of filing does not mean that physical
act of filing. If the petition/complaint
is filed and no further action was
taken on it then it dies a natural
death. When we say initiation of
impeachment proceedings where in
the Court or the House of
Representatives has taken judicial
cognizance by the referral to the
corresponding committees should be
understood as part of the filing and
that is why it was then. The problem
here arose in that based on the
wordings of Article 11, this House of
Representatives is, promulgated
pursuant to the power granted to
them, the rules, Rule 2, Sections 2
and 3, on December 15, 1998
following the wording of the
Constitution. But then, on
November 28, 2001 they
promulgated Rule 5, Section 16 and
17, this time requiring the vote of
1/3 for the purpose of initiating the
proceeding obliviously possibly of
the fact that the Constitution as
worded and amended by the
Maambong suggestion or advice was
that it was it is initiated from the
123
 moment of filing. The reason given
and the justification given for that
change was that it would enable the,
somebody in collusion with the one
who is going to be impeached to file
what they call, what one petitioner
calls here a "bogus" complaint for
impeachment and thereby give the
party there in effect immunity for
one year from the filing of an
impeachment case, which is
meritorious. Now, number 1, I do
not agree with that explanation
because that is against the
Constitution. Strictly against the
Constitution, that was a grave abuse
of discretion to change it. And
further more, Second, that so-called
problem about somebody coming in
to file a "bogus" impeachment
complaint just to save the
respondent for one year from
another complaint is not beyond
solution. The mere fact that a
"bogus" or insufficient or
meritorious complaint was
deliberately resorted to in order to
illegally avail of the one year period
is the filing of a sham pleading which
has not produce any effect even in
the Rules of Court we have
proceedings, we have provisions
about sham pleadings, and for that
matter the Court can even motu
proprio dismiss that initiatory
pleading and here the House of
Representatives I am sure could also
dismiss a sham bogus or sham
complaint for impeachment. Now,
on the matter of a problem therein
because the rules must always
comply with the Constitution and it
must be subject to Constitutional
sufficiency. The political, the
question of the sole power of the
Senate to try and decide, will lie as
obvious the matter of prematurity.
Well, as I said this is not premature,
although I understand that Senate
President Drilon pointed out that it
was premature to sent him a copy or
resolution inviting them to observe
to avoid any act which would render
academic wherein in the first place
we are only on the first stage here.
This Court has not yet acquired
jurisdiction to try the case on the
merits, precisely the Court stated
that the petition are not yet being
given due course, so they might, but
at any rate, it is not premature. . . .
the inevitable result is not if the
complaint with the votes are
submitted to the Senate, the Senate
has no other recourse but to actually
try the case. 20
The Rules of Procedure adverted to by the Justice Florenz D.
Regalado is Sections 16 and 17, Rule V which reads:
Sec. 16.Impeachment Proceedings Deemed
Initiated. — In cases where a Member of the
House files a verified complaint of
impeachment or a citizen files a verified
complaint that is endorsed by a Member of
the House through a resolution or
endorsement against an impeachable officer,
impeachment proceedings against such official
are deemed initiated on the day the
Committee on Justice finds that the verified
complaint and/or resolution against such
official, as the case may be, is sufficient in
substance or on the date the house votes to
overturn or affirm the finding of the said
committee that the verified complaint and/or
resolution, as the case may be, is not sufficient
in substance.
In cases where a verified complaint or a
resolution of impeachment if filed or
endorsed, as the case may be, by at least one-
third (1/3) of the Members of the House,
impeachment proceedings are deemed
initiated at the time of the filing of such
verified complaint or resolution of
impeachment with the Secretary General.
Sec. 17.Bar Against Initiation of Impeachment
Proceedings. — Within a period of one (1) year
from the date of impeachment proceedings
are deemed initiated as provided in Section 16
hereof, no impeachment proceedings, as such,
can be initiated against the same official.
The House of Representatives distorted and ignored the plain words
of Section 3(1), Article XI of the Constitution when it provided in
Section 16, Rule V that a complaint of impeachment is "deemed
initiated" in the House of Representatives "on the day the
committee of justice finds that the said verified complaint and/or
resolution against such official, as the case may be, is sufficient in
substance or on the date the House votes to overturn or affirm the
finding of the said committee that the verified complaint and/or
resolution, as the case may, be is not sufficient in substance."
Consequently, it also distorted the computation of the one year
period time bar under Section 3(5), Article XI of the Constitution to
begin only "on the day this committee on justice finds that the
verified complaint and/or resolution against such official is sufficient
in substance or on the date the house votes to overturn or affirm
the finding of the said committee that the verified complaint and/or
resolution, as the case may be, is not sufficient in substance." Since
Rule V of the 2001 Rules of Procedure is contrary to the
Constitution, the said rule is void. Resultantly, the complaint for
impeachment against seven Justices of this Court filed by former
President Joseph Ejercito Estrada with the office of the Secretary
General of the House of Representatives was initiated within the
context of Section 3(5), Article XI of the Constitution. The complaint
was filed on June 2, 2003 and referred to the House Committee on
Justice and Human Rights shortly thereafter. However, Congressmen
Gilberto Teodoro and Felix William Fuentebella initiated
impeachment proceedings against Chief Justice Hilario G. Davide, Jr.,
with the Resolution of Endorsement of the Complaint for
Impeachment by more than one-third of the members of the House
of Representatives on October 23, 2003 well within one year from
the initiation of the June 2, 2003 of former President Joseph E.
Estrada. Irrefragably then, the October 23, 2003 complaint for
impeachment filed by Congressmen Gilberto C. Teodoro, Jr. and
Felix William D. Fuentebella is a second complaint for impeachment,
which, under Section 3(5), Article XI of the Constitution, is
proscribed.
IN THE LIGHT OF ALL THE FOREGOING, I vote to DENY DUE COURSE
and to DISMISS all the petitions against the respondent Senate of
the Philippines; and to DENY DUE COURSE and DISMISS the petition
in G.R. No. 160397; and to give due course and grant the rest of the
petitions against the respondent Speaker Jose G. de Venecia and his
co-respondents.
Accordingly, Rule V of the 2001 House Rules of Procedure in
Impeachment Proceedings which was approved by the respondent
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House of Representatives on November 28, 2001 is
UNCONSTITUTIONAL. The complaint of impeachment filed by the
respondents Representatives Gilberto C. Teodoro, Jr. and Felix
William G. Fuentebella on October 22, 2003 is barred under Article
XI, Section 3(5) of the Constitution.
AZCUNA, J .:
On June 2, 2003 a complaint for impeachment was filed in the House
of Representatives against Chief Justice Hilario G. Davide, Jr. and
seven Associate Justices of the Supreme Court. Filed by former
President Joseph E. Estrada, the complaint accused the respondents
of conspiring to remove him from power in violation of the
Constitution.
After referral to the Committee on Justice, and after several hearings
thereon, the Committee voted that the complaint was sufficient in
form. Subsequently, however, on October 22, 2003, said Committee
voted to dismiss the complaint for being insufficient in substance.
The next day, on October 23, 2003, another complaint for
impeachment was filed in the House of Representatives, this time
only against Chief Justice Hilario G. Davide, Jr.. It was filed by two
Members of the House, namely, Representative Felix William D.
Fuentebella and Representative Gilberto C. Teodoro, Jr., and
charged the respondent with violating the law on the use of the
Judiciary Development Fund (JDF).
Subsequently, and before the complaint could be referred to the
Committee on Justice, more than seventy three other
Representatives signed "resolutions of endorsement/impeachment,"
in relation to said complaint.
As the total number of those who filed and those who signed the
"resolutions of endorsement/impeachment" reached at least one-
third of the members of the House, the complainants and their
supporters were poised to move for the transmittal of the
complaint, as constituting the Articles of Impeachment, to the
Senate.
At this point, six of the petitions, which now total seventeen, seeking
to declare the second complaint unconstitutional were filed with this
Court. The petitioners include two Members of the House of
Representatives (Representative Salacnib F. Baterina and Deputy
Speaker Raul M. Gonzales), later joined by six other Members
thereof. The Integrated Bar of the Philippines also filed a petition,
while the others were Former Solicitor General Francisco I. Chavez,
other prominent lawyers, civic, labor and public-interest
organizations, private individuals and plain taxpayers.
On October 28, 2003, the House of Representatives adjourned its
session until November 10, 2003, for lack of quorum, which left the
proponents of the impeachment unable to move to transmit their
complaint to the Senate. Also, on that date, this Court, acting on the
petitions, without granting the same due course, issued a status
quo resolution.
The Senate President, the Honorable Franklin M. Drilon, on behalf of
the Senate, filed a Manifestation stating that the matter of the
impeachment is not yet with the Senate as it has not received the
complaint or Articles of Impeachment from the House.
The House of Representatives, through the Speaker, the Honorable
Jose de Venecia, Jr., as well as the other Members of the House who
support the complaint of impeachment, for their part, through the
legal counsel of the House, filed a Manifestation essentially
questioning the jurisdiction of the Court on the ground that the
matter involves a political question that is, under the Constitution,
the sole prerogative of the House.
Senator Aquilino Q. Pimentel, Jr. was allowed to intervene and filed
a Manifestation stating that the Court has no jurisdiction over the
matter, as it is a political question that is addressed solely and
exclusively to the Senate and the House of Representatives, and thus
not justiciable.
The Solicitor General filed a Manifestation taking the position that
the Court has jurisdiction, that the matter is justiciable, and that the
filing of the second impeachment complaint subject of the petition is
in violation of the Constitution.
On November 5 and 6, 2003, the Court en banc heard the eight amici
curiae, as well as the representatives and counsel of the parties. The
Speaker and the House of Representatives and proponent-Members
thereof, made no appearance at said hearing.
First, the preliminary or threshold issues, locus standi, justiciability,
jurisdiction, ripeness and propriety.
There can be no serious challenge as to petitioners' locus standi.
Eight are Members of the House of Representatives, with direct
interest in the integrity of its proceedings. Furthermore, petitioners
as taxpayers have sufficient standing, in view of the transcendental
importance of the issue at hand. It goes beyond the fate of Chief
Justice Davide, as it shakes the very foundations of our system of
government and poses a question as to our survival as a democratic
polity.
There is, moreover, an actual controversy involving rights that are
legally demandable, thereby leaving no doubt as to the justiciability
of the petitions.
As to the jurisdiction of this Court, and whether the issue presents a
political question that may not be delved into by the Court, it is
necessary to look into the structure and essence of our system of
government under the Constitution.
The starting principle is that the Philippines is a democratic and
republican State and that sovereignty resides in the people and all
governed authority emanates from them (Art. II, Sec. 1).
As a republican State, the sovereign powers of the people are for the
most part exercised through representatives and not directly, except
in the cases of suffrage, referenda and initiatives.
Furthermore, the form of government we chose is that of a tripartite
Presidential system, whereby the great powers of government are
divided among three separate, co-equal and co-ordinate
Departments. Accordingly, Articles VI, VII and VIII of the Constitution
provide for the Legislative Department, the Executive Department
and the Judicial Department, with the corresponding powers to
make, to enforce and to interpret the laws.
The idea is to prevent absolutism that arises from a monopoly of
power. Abuse is to be prevented by dividing power, and providing
for a system of checks and balances.
Historically, one such method of checks and balances is the
institution of impeachment, or the procedure of removing high
officials on grounds spelled out in the Constitution. It was designed
as a check by the Legislative Department on the Executive and
Judicial Departments.
It is worth noting, however, that the Constitution places the
provision on impeachment, not in Articles VI, VII and VIII on
governmental powers, but in Article XI on Accountability of Public
Officers.
This placement is clearly intentional and meant to signal the
importance of the accountability of public officers, and that
impeachment is an instrument of enforcing or securing that
accountability, and not simply a method of checks and balances by
one power over another.
125
Now, how does Article XI provide for this power of impeachment?
Again, it divides the power — the first part, or the power to
"initiate," is given exclusively to the House of Representatives. The
second part, the power to try and decide, is given solely to the
Senate.
The provisions in full are, as follows:
Article XI
Accountability of Public Officers
xxx xxx xxx
Section 3(1)The House of Representatives
shall have the exclusive power to initiate all
cases of impeachment.
(2)A verified complaint for impeachment may
be filed by any Member of the House of
Representatives or by any citizen upon a
resolution of endorsement by any Member
thereof, which shall be included in the Order
of Business within ten session days, and
referred to the proper Committee within three
session days thereafter. The Committee, after
hearing, and by a majority vote of all its
Members, shall submit its report to the House
within sixty session days from such referral,
together within the corresponding resolution.
The resolution shall be calendared for
consideration by the House within ten session
days from receipt thereof.
(3)A vote of at least one-third of all the
Members of the House shall be necessary
either to affirm a favorable resolution with the
Articles of Impeachment of the Committee, or
override its contrary resolution. The vote of
each Member shall be recorded.
(4)In case the verified complaint or resolution
of impeachment is filed by at least one-third
of all the Members of the House, the same
shall constitute the Articles of Impeachment,
and trial by the Senate shall forthwith
proceed.
(5)No impeachment proceedings shall be
initiated against the same official more than
once within a period of one year.
(6)The Senate shall have the sole power to try
and decide all cases of impeachment. When
sitting for that purpose, the Senators shall be
on oath or affirmation. When the President of
the Philippines is on trial, the Chief Justice of
the Supreme Court shall preside, but shall not
vote. No person shall be convicted without the
concurrence of two-thirds of all the Members
of the Senate.
(7)Judgment in cases of impeachment shall
not extend further than removal from office
and disqualification to hold any office under
the Republic of the Philippines, but the party
convicted shall nevertheless be liable and
subject to prosecution, trial and punishment
according to law.
(8)The Congress shall promulgate its rules on
impeachment to effectively carry out the
purpose of this section.
It is clear, therefore, that unlike the Constitutions of other countries,
that of the Philippines, our Constitution, has opted textually to
commit the sole power and the exclusive power to this and to that
Department or branch of government, but in doing so it has further
provided specific procedures and equally textually identifiable limits
to the exercise of those powers. Thus, the filing of the complaint for
impeachment is provided for in detail as to who may file and as to
what shall be done to the complaint after it is filed, the referral to
the proper Committee, its hearing, its voting, its report to the House,
and the action of the House thereon, and the timeframes for every
step (Subsection 2).
Similarly, the required number of votes to affirm or override a
favorable or contrary resolution is stated (Subsection 3).
So, also, what is needed for a complaint or resolution of
impeachment to constitute the Articles of Impeachment, so that trial
by the Senate shall forthwith proceed, is specifically laid down, i.e., a
verified complaint or resolution of impeachment filed by at least
one-third of all the Members of the House (Subsection 4).
It is my view that when the Constitution not only gives or allocates
the power to one Department or branch of government, be it solely
or exclusively, but also, at the same time, or together with the grant
or allocation, specifically provides certain limits to its exercise, then
this Court, belonging to the Department called upon under the
Constitution to interpret its provisions, has the jurisdiction to do so.
And, in fact, this jurisdiction of the Court is not so much a power as a
duty, as clearly set forth in Article VIII, Section 1 of the Constitution:
Section 1.The judicial power shall be vested in
one Supreme Court and in such lower courts
as may be established by law.
Judicial power includes THE DUTY of the
courts of justice to settle actual controversies
involving rights which are legally demandable
and enforceable, and to determine whether or
not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of
the Government. (Emphasis ours)
This function of the Court is a necessary element not only of the
system of checks and balances, but also of a workable and living
Constitution. For absent an agency or organ that can rule, with
finality, as to what the terms of the Constitution mean, there will be
uncertainty if not chaos in governance, i.e., no governance at all.
This is what the noted writer on legal systems, Prof. H.L.A. Hart, calls
the need for a Rule of Recognition in any legal system, without
which that system cannot survive and dies (HART, THE CONCEPT OF
LAW, 92, 118).
From as far back as Angara v. Electoral Commission, 63 Phil. 139
(1936), it has been recognized that this is not the supremacy of the
Court. It is the supremacy of the Constitution and of the sovereign
Filipino people who ordained and promulgated it.
Proceeding, then, to do our duty of construing the Constitution in a
matter of profound necessity, we are called upon to rule whether
the second complaint of impeachment is in accord with Article XI,
Sec. 3(5) of the Constitution, which states:
No impeachment proceedings shall be
initiated against the same official more than
once within a period of one year.
I say it is not.
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The purpose of this provision is two-fold: to prevent undue or too
frequent harassment; and (2) to allow the legislature to do its
principal task, legislation.
As aptly put by the Association of Retired Justices of the Supreme
Court:
"The debate as to the sense of the provision
starts with the 1986 Constitutional
Commission. Commissioner Villacorta,
Commissioner of the 1986 Constitutional
Commission, posited this query:
MR. VILLACORTA. Madam President,
I would just like to ask the
Committee three questions:
On Section 3, page 2, lines 12 to 14,
the last paragraph reads as follows:
'No impeachment proceedings shall
be initiated against the same official
more than once within a period of
one year.' Does this mean that even
if an evidence is discovered to
support another charge or ground
for impeachment, a second or
subsequent proceeding cannot be
initiated against the same official
within a period of one year? In other
words, one year has to elapse before
a second or subsequent charge or
proceeding can be initiated. The
intention may be to protect the
public official from undue
harassment. On the other hand, is
this not undue limitation on the
accountability of public officers?
Anyway, when a person accepts a
public trust, does he not consider
taking the risk of accounting for his
acts or misfeasance in office?
The query produced this answer:
MR. ROMULO. Yes, the intention
here really is to limit. This is not only
to protect public officials who, in this
case, are of the highest category
from harassment but also to allow
the legislative body to do its work
which is lawmaking. Impeachment
proceedings take a lot of time. And if
we allow multiple impeachment
charges on the same individual to
take place, the legislature will do
nothing else but that. (Emphasis
ours.)
"Madame Justice Cecilia Muñoz-Palma
[President of the Constitutional Commission],
in her article "We should remain steadfast
with rule of law," Manila Bulletin, October 28,
2003, wrote:
The Foundation makes of record its
considered view, based on the
RECORD OF THE CONSTITUTIONAL
COMMISSION OF 1986, at pages 373
to 376, and at 382 that:"
1.'Initiation' refers to the filing of
any verified complaint by a
Member of the House or
by a citizen, with the
endorsement of a Member
of the House, as provided
in Section 3 (2) of Article XI
of the Constitution, and
initiation could not
therefore refer to the filing
of the Articles of
Impeachment in the
Senate.
2.The one-year prohibition was
intended by the framers of
the Constitution to allow
Congress to continue with
its main task (emphasis in
the original)
"It is noted that in the Commissioner Villacorta
query and the Commissioner Romulo reply,
the following values were considered: 'to
protect the public official from undue
harassment,' '(not to impose an) undue
limitation on the accountability of public
officers,' 'acceptance of public trust' and 'to
allow the legislative body to do its work which
is lawmaking.' In the end, Commissioner
Romulo struck this balance: '[T]his is not only
to protect public officials who, in this case, are
of the highest category from harassment but
also to allow the legislative body to do its work
which is lawmaking.'" (Emphasis ours.)
The contention is advanced that the second complaint is not covered
by the provision because under the Rules of Procedure in
Impeachment Proceedings, adopted by the House on November 28,
2001, the first complaint filed in June, four months earlier, is not yet
"deemed initiated," since it has not been reported to the floor of the
House of Representatives. To my mind, this position is not tenable.
This would stretch the meaning of "initiate" and defeat the purpose
of the provision of the Constitution. It would allow considerable
harassment from multiple complaints filed within one year against
the same official. And, what is even more telling, it would tie up the
Legislature, particularly the House of Representatives, in too
frequent and too many complaints of impeachment filed before it,
leaving it little time to attend to its principal task of legislation, as is
in fact happening now.
Therefore, the Rules referred to cannot be so interpreted as to
defeat the objectives of Art. XI, Section 3 (5). For the very grant of
the power to adopt Rules on Impeachment, Article XI, Section 3 (8),
provides, too, a limit or qualification, thus:
(8)The Congress shall promulgate its rules on
impeachment to effectively carry out the
purpose of this section. (Emphasis ours)
And, besides, as pointed out by amicus curiae former Constitutional
Commissioner, Joaquin G. Bernas, S.J., said Rules refer to what are
instances when a complaint for impeachment is "deemed initiated,"
a matter of legal fiction, presumably for internal purposes of the
House, as to the timing of some of its internal action on certain
relevant matters. The Constitutional provision, on the other hand,
states that "No impeachment proceedings shall be initiated," not
"deemed initiated," and, therefore, refers to actual initiation, not
constructive initiation by legal fiction.
It is also contended that the provision of Article XI, Sec. 3 (5) refers
to impeachment proceedings in the Senate, not in the House of
Representatives.
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This is premised on the wording of Article XI, Sec. 3 (1) which states
that "The House of Representatives shall have the exclusive power
to initiate all cases of impeachment." Thus, it is argued, cases of
impeachment are initiated only by the filing thereof by the House of
Representatives with the Senate, so that impeachment proceedings
are those that follow said filing.
This interpretation does violence to the carefully allocated division
of power found in Article XI, Sec. 3. Precisely, the first part of the
power is lodged with the House, that of initiating impeachment, so
that a respondent hailed by the House before the Senate is a fact
and in law already impeached. What the House initiates in the
Senate is an impeachment CASE, not PROCEEDINGS. The
proceedings for impeachment preceded that and took
place exclusively in the House (in fact, non-members of the
House cannot initiate it and there is a need for a House member to
endorse the complaint). And what takes place in the Senate is the
trial and the decision.
For this reason, Subsections (1) to (5) of Article XI, Section 3 apply to
the House whereas Subsections (6) and (7) apply to the Senate, and
Subsection (8) applies to both, or to "Congress." There is therefore a
sequence or order in these subsections, and the contrary view
disregards the same.
Also, as aforestated, the very rules of the House are entitled "Rules
of Procedure in Impeachment Proceedings," and relate to every step
of the impeachment proceedings, from the filing of the complaint
with the House up to the formation of a Prosecution panel.
I earlier adverted to the placement of the power of impeachment,
not in the Articles on governmental powers, but in the Article on
accountability. This indicates that such power is not essentially
legislative in character, and is not primarily intended as a check by
the Legislative Department on the other branches. Its main purpose,
at least under our Constitution, is to achieve accountability, but this
is to be done without detriment to the governmental power of
legislation under Article VI.
A second complaint is not forever barred, but only temporarily so, or
until June of 2004, to forestall disruption of the principal task of
legislative work. As it is, without casting aspersions on co-equal
Departments but stressing only the fact that all the Departments
have so much to do and so little time to do it, the national budget is
yet to be approved. The rationale of the Constitutional provision is,
thus, evident.
Finally, prudential considerations are urged to allow the political
Departments to correct any mistake themselves, rather than for the
Court to intervene.
It is not certain, however, whether the Senate is called upon to
review what the House has done in the exercise of its exclusive
power to initiate all cases of impeachment, any more that the House
is wont to interfere with the sole power of the Senate to try and
decide all such cases. Besides, the Senate action would itself be part
of what is sought to be avoided by Subsection 5, namely, disruption
of legislative work.
For all these reasons, I vote to grant the petitions by declaring the
second complaint of impeachment as one that, for now, runs
counter to Article XI, Section 3 (5) of the Constitution.
TINGA, J .:
"May you live in interesting times," say the Chinese. Whether as a
curse or a blessing, the Filipinos' lot, it seems, is to live in
"interesting" times. In our recent past, we saw the imposition of
martial law, 1 the ratification of a new Constitution, 2 the
installation of a revolutionary government, 3 the promulgation of a
provisional Constitution 4 the ratification of the present one, 5 as
well as attempted power-grabs by military elements resulting in the
arrest of the then Defense Minister. 6 We saw the fall from grace of
a once popular president, and the ascension to office of a new
president. 7
To all these profound events, the Court bore witness — not silent
but, possibly, muted. In all these profound events, the Court took
part — mostly passive and, sometimes, so it is said, active — by
upholding or revoking State action.
Today, the Court is again asked to bear witness and take part in
another unparalleled event in Philippine history: the impeachment
of the Chief Justice. Perhaps not since Javellana and the martial law
cases has the Supreme Court, even the entire judiciary, come under
greater scrutiny.
The consequences of this latest episode in our colorful saga are
palpable. The economy has plunged to unprecedented depths. The
nation, divided and still reeling from the last impeachment trial, has
again been exposed to a similar spectacle. Threats of "military
adventurists" seizing power have surfaced.
Punctuating the great impact of the controversy on the polity is the
astounding fast clip by which the factual milieu has evolved into the
current conundrum of far-reaching proportions. Departing from the
tradition of restraint of the House of Representatives, if not acute
hesitancy in the exercise of its impeachment powers, we saw more
than one-third of the House membership flexed their muscles in the
past fortnight with no less than the Chief Justice as the target.
On June 2, 2003, former President Estrada filed a complaint for
impeachment before the House of Representatives against six
incumbent members of the Supreme Court who participated in
authorizing the administration of the oath to President Macapagal-
Arroyo and declaring the former president resigned in Estrada
v. Desierto. 8 Chief among the respondents is Chief Justice Hilario G.
Davide, Jr. 9 himself, the same person who co-presided the
impeachment trial of Estrada and personally swore in Macapagal-
Arroyo as President. Also impleaded in the complaint are two other
justices10 for their alleged role, prior to their appointment to this
Court, in the events that led to the oath-taking. Nothing substantial
happened until the House Committee on Justice included the
complaint in its Order of Business on October 13, 2003, and ruled
that the same was "sufficient in form." However, the Committee
dismissed the complaint on October 22, 2003 for being insufficient
in substance. But the Committee deferred the preparation of the
formal Committee Report that had to be filed with the Rules
Committee. As it turned out, there was a purpose behind the delay.
The next day, on October 23, 2003, another complaint was filed by
respondent Representatives Gilberto Teodoro, Jr. and Felix William
Fuentebella against the Chief Justice alone, alleging irregularities in
the administration of the Judiciary Development Fund.
Several petitions, eighteen in all, were filed before this Court, most
of them assailing specific provisions of the House of
Representatives' Rules on Impeachment, as well as the second
impeachment complaint against the Chief Justice, for being contrary
to Section 3 (5), Article XI of the Constitution on Accountability of
Public Officers. Sections 2 and 3 of said Article read in full:
SEC. 2.The President, the Vice-President, the
Members of the Supreme Court, the Members
of the Constitutional Commissions, and the
Ombudsman may be removed from office, on
impeachment for, and conviction of, culpable
violation of the Constitution, treason, bribery,
graft and corruption, other high crimes, or
betrayal of public trust. All other public
officers and employees may be removed from
office as provided by law, but not by
impeachment.
SEC. 3.(1)The House of Representatives shall
have the exclusive power to initiate all cases
of impeachment.
128
 (2)A verified complaint for impeachment may
be filed by any member of the House of
Representatives or by any citizen upon a
resolution of endorsement by any Member
thereof, which shall be included in the Order
of Business within ten session days, and
referred to the proper Committee within three
session days thereafter. The Committee, after
hearing, and by a majority vote of all its
Members, shall submit its report to the House
within sixty session days from such referral,
together with the corresponding resolution.
The resolution shall be calendared for
consideration by the House within ten session
days from receipt thereof.
(3)A vote of at least one-third of all the
Members of the House shall be necessary
either to affirm a favorable resolution with the
Articles of Impeachment of the Committee, or
override its contrary resolution. The vote of
each Member shall be recorded.
(4)In case the verified complaint or resolution
of impeachment is filed by at least one-third
of all the Members of the House, the same
shall constitute the Articles of Impeachment,
and trial by the Senate shall forthwith
proceed.
(5)No impeachment proceedings shall be
initiated against the same official more than
once within a period of one year.
(6)The Senate shall have the sole power to try
and decide all cases of impeachment. When
sitting for that purpose, the Senators shall be
on oath or affirmation. When the President of
the Philippines is on trial, the Chief Justice of
the Supreme Court shall preside, but shall not
vote. No person shall be convicted without the
concurrence of two-thirds of all the Members
of the Senate.
(7)Judgment in cases of impeachment shall
not extend further than removal from office
and disqualification to hold any office under
the Republic of the Philippines, but the party
convicted shall nevertheless be liable and
subject to prosecution, trial and punishment
according to law.
(8)The Congress shall promulgate its rules on
impeachment to effectively carry out the
purpose of this section. [Emphasis supplied.]
The impugned House of Representatives Rules on Impeachment,
specifically, Sections 16 and 17, Rule V (Bar against Initiation of
Impeachment Proceedings against the same Official), provide:
Sec. 16.Impeachment Proceedings Deemed
Initiated. — In cases where a Member of the
House files a verified complaint of
impeachment or a citizen files a verified
complaint that is endorsed by a Member of
the House through a resolution of
endorsement against an impeachable officer,
impeachment proceedings against such official
are deemed initiated on the day the
Committee on Justice finds that the verified
complaint and/or resolution against such
official, as the case may be is sufficient in
substance or on the date the House votes to
overturn or affirm the finding of said
Committee that the verified complaint and/or
resolution, as the case may be, is not sufficient
in substance.
In cases where a verified complaint or
resolution of impeachment is filed or
endorsed, as the case may be, by at least one-
third (1/3) of the Members of the House,
impeachment proceedings are deemed
initiated at the time of the filing of such
verified complaint or resolution of
impeachment with the Secretary General.
Sec. 17.Bar Against Initiation of Impeachment
Proceedings. — Within a period of one (1) year
from the date impeachment proceedings are
initiated as provided in Section 16 hereof, no
impeachment proceedings, as such, can be
initiated against the same official.
In light of these contentions, petitioners — indeed, the whole
Filipino nation — ask: What is the Court going to do? To this, the
Court answers: We do our duty.
The Constitution lodges on the House of Representatives "the
exclusive power to initiate all cases of impeachment," 11and on the
Senate, "the sole power to try and decide all cases of
impeachment." 12 But the power of impeachment is not inherently
legislative; it is executive in character. Neither is the power to try
and decide impeachment cases; it is judicial by nature. Thus, having
emanated from the Constitution, the power of impeachment is
circumscribed by constitutional limitations. Even if impeachment as
a legal concept is sui generis, it is not supra legem.
An examination of the various constitutions which held sway in this
jurisdiction reveals structural changes in the legislature's role in the
impeachment process. The 1935 Constitution, as amended, was
stark in its assignation of the impeachment authority. Therein, the
House of Representatives was vested "the sole power of
impeachment," 13 while the Senate had "the sole power to try all
impeachments," 14 No other qualifications were imposed upon
either chamber in the exercise of their respective functions other
than prescribing the votes required for either chambers exercise of
their powers, listing the public officials who are impeachable, and
enumerating the grounds for impeachment. The 1935 Constitution
was silent on the procedure. It was similar in this regard to the
United States Constitution. 15
The 1973 Constitution provided a different system. As it ordained a
unicameral legislature, the power to impeach, try and decide
impeachment cases was lodged on a single body, the Batasang
Pambansa. 16 The new structure would necessitate a change in
constitutional terminology regarding impeachment, the significance
of which I shall discuss later. But despite the change, the
Constitution did not impose any new limitation that would
hamstring the Batasang Pambansa in the discharge of its
impeachment powers other than the required majorities.
Now comes the 1987 Constitution. It introduces conditionalities and
limitations theretofore unheard of. An impeachment complaint must
now be verified. 17 If filed by any member of the House of
Representatives or any citizen with the endorsement of a House
Member, it shall be included in the order of business within ten
session days, and referred to the proper committee within three
session days thereafter. 18 Within sixty days after the referral, and
after hearing and upon majority vote of all its members, the proper
committee shall submit its report to the House, together with the
corresponding resolution, and the House shall calendar the same for
consideration within ten days from receipt. 19 No impeachment
proceedings shall be initiated against the same official more than
once within a period of one year. 20
129
While these limitations are intrusive on rules of parliamentary
practice, they cannot take on a merely procedural character because
they are mandatory impositions made by the highest law of the land,
and therefore cannot be dispensed with upon whim of the legislative
body. 21 Today, it must be settled once and for all which entity shall
determine whether impeachment powers have been exercised in
accordance with law. This question is answered definitively by our
Constitution.
Judicial power includes the duty of the courts
of justice to settle actual controversies
involving rights which are legally demandable
and enforceable, and to determine whether or
not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of
the Government.

Section 1, Article VIII of the Constitution provides: Former Chief Justice Roberto R. Concepcion,
the sponsor of this provision in the
The judicial power shall be vested in one Constitutional Commission explained the sense
Supreme Court and in such lower courts as and the reach of judicial power as follows:
may be established by law.
xxx xxx xxx
Judicial power includes the duty of the courts
of justice to settle actual controversies . . . In other words, the judiciary is the final
involving rights which are legally demandable arbiter on the question of whether or not a
and enforceable, and to determine whether or branch of government or any of its officials has
not there has been a grave abuse of discretion acted without jurisdiction, or so capriciously as
amounting to lack or excess of jurisdiction on to constitute an abuse of discretion amounting
the part of any branch or instrumentality of to excess of jurisdiction. This is not only a
the Government. judicial power but a duty to pass judgment on
matters of this nature.
Article VIII, Section 1 is a rule of jurisdiction, 22 one that expands the
Supreme Court's authority to take cognizance of and decide cases. This is the background of paragraph 2 of
No longer was the exercise of judicial review a matter of discretion Section 1, which means that the courts cannot
on the part of the courts bound by perceived notions of wisdom. No hereafter evade the duty to settle matters of
longer could this Court shirk from the "irksome task of inquiring into this nature, by claiming that such matters
the constitutionality and legality of legislative or executive action constitute political question.
when a justiciable controversy is brought before the courts by
someone who has been aggrieved or prejudiced by such
action." 23 An eminent member of the present Court, Justice Puno,
described the scope of judicial power in this wise:
The Constitution cannot be any clearer. What
it granted to this Court is not a mere power
In the Philippine setting, there is a which it can decline to exercise. Precisely to
more compelling reason for courts to deter this disinclination, the Constitution
categorically reject the political question imposed it as a duty of this Court to strike
defense when its interposition will cover up down any act of a branch or instrumentality of
abuse of power. For section 1, Article VIII of government or any of its officials done with
our Constitution was intentionally cobbled to grave abuse of discretion amounting to lack or
empower courts ". . . to determine whether or excess of jurisdiction. Rightly or wrongly, the
not there has been a grave abuse of discretion Constitution has elongated the checking
amounting to lack or excess of jurisdiction on powers of this Court against the other
the part of any branch or instrumentality of branches of government despite their more
the government." This power is new and was democratic character, the President and the
not granted to our courts in the 1935 and legislators being elected by the people. 24
1972 Constitutions. It was not also Xeroxed
from the US Constitution or any foreign state
Thus, in the case of the House and Senate Electoral Tribunals, this
constitution. The CONCOM granted this
Court has assumed jurisdiction to review the acts of these tribunals,
enormous power to our courts in view of our
notwithstanding the Constitutional mandate that they shall act as
experience under martial law where abusive
"sole judges" of all contests relating to the election, returns, and
exercises of state power were shielded from
qualifications of the members of Congress. The Court asserted this
judicial scrutiny by the misuse of the political
authority as far back as 1936, in the landmark case of Angara
question doctrine. Led by the eminent former
v. Electoral Commission. 25 More recently, this Court, speaking
Chief Justice Roberto Concepcion, the
through Justice Puno, expounded on the history of the Court's
CONCOM expanded and sharpened the
jurisdiction over these tribunals:
checking powers of the judiciary vis-a-vis the
Executive and the Legislative departments of
government. In cases involving the In sum, our constitutional history clearly
proclamation of martial law and suspension of demonstrates that it has been our consistent
the privilege of habeas corpus, it is now ruling that this Court
beyond dubiety that the government can no hascertiorari jurisdiction to review decisions
longer invoke the political question defense. and orders of Electoral Tribunals on a showing
of grave abuse of discretion. We made this
ruling although the Jones Law described the
In Tolentino v. Secretary of Finance, I posited
Senate and the House of Representatives as
the following postulates:
the 'sole judges' of the election, returns, and
qualifications of their elective members. It
xxx xxx xxx cannot be overstressed that the 1935
Constitution also provided that the Electoral
Section 1.The judicial power shall be vested in Tribunals of the Senate and the House shall be
one Supreme Court and in such lower courts the 'sole judge' of all contests relating to the
as may be established by law. election, returns, and qualifications of their
respective Members. Similarly, the 1973

130
 Constitution transferred to the COMELEC the
power be the 'sole judge' of all contests
relating to the election, returns, and
qualifications of all members of the Batasang
Pambansa. We can not lose sight of the
significance of the fact that
the certiorari jurisdiction of this Court has not
been altered in our 1935, 1973 and 1987
Constitutions.
. . . In the first place, our 1987 Constitution
reiterated the certiorari jurisdiction of this
Court on the basis of which it has consistently
assumed jurisdiction over decisions of our
Electoral Tribunals. In the second place, it
even expanded the certiorari jurisdiction of
this Court on the basis of which it has
consistently assumed jurisdiction over decision
of our Electoral Tribunals. In the second place,
it even expanded the certiorarijurisdiction of
this Court by defining judicial power as ". . .
the duty of the courts of justice to settle
actual controversies involving rights which are
legally demandable and enforceable, and to
determine whether or not there has been a
grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch
or instrumentality of the Government. In the
third place, it similarly reiterated the power of
the Electoral Tribunals of the Senate and of
the House to act as the 'sole judge' of all
contests relating to the election, returns, and
qualifications of their respective
members. 26 (citations omitted, emphasis
supplied)
What circumscribes the Court's review of an act of Congress or a
Presidential issuance are the limits imposed by the Constitution itself
or the notion of justiciability. 27 An issue is justiciable rather than
political where it involves the legality and not the wisdom of the act
complained of, 28 or if it pertains to issues which are inherently
susceptible of being decided on grounds recognized by law. 29 As
this Court held in Tatad v. Secretary of Finance: 30
In seeking to nullify an act of the Philippine
Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a
justiciable controversy. Where an action of the
legislative branch is seriously alleged to have
infringed the Constitution, it becomes not only
the right but in fact the duty of the judiciary to
settle the dispute. The question thus posed is
judicial rather than political. The duty to
adjudicate remains to assure that the
supremacy of the Constitution is upheld. Once
a controversy as to the application or
interpretation of a constitutional provision is
raised before this Court, it becomes a legal
issue which the Court is bound by
constitutional mandate to decide. 31
The petitions before us raise the question of whether the House of
Representatives, in promulgating and implementing the present
House Rules on Impeachment, had acted in accordance with the
Constitution. 32 Some insist that the issues before us are not
justiciable because they raise a "political question." 33 This view
runs contrary to established authority.
While the Court dismissed per its Resolution of September 3, 1985,
the petition in G.R. No. 71688 (Arturo M. de Castro, et al. v.
Committee on Justice, et al.) seeking to annul the resolution of the
Committee on Justice of the then Batasang Pambansa a verified
complaint for the impeachment of then President Marcos signed by
more than one-fifth (1/5) of all the members of the Batasang
Pambansa, which was the requisite number under the 1973
Constitution, and to give due course to the impeachment complaint,
the Court clearly conceded that had the procedure for impeachment
been provided in the 1973 Constitution itself, the outcome of the
petition would have been different. Wrote the Court:
. . . Beyond saying that the Batasan may
initiate impeachment by a vote of at least one-
fifth of all its members and that no official
shall be convicted without the concurrence of
at least two-thirds of all the members thereof,
the Constitution says no more. It does not lay
down the procedure in said impeachment
proceedings, which it had already done. The
interpretation and application of said rules are
beyond the powers of the Court to review . .
. 34
Forty-six years ago, this Court in Tañada v. Cuenco 35 was
confronted with the question of whether the procedure laid down in
the 1935 Constitution for the selection of members of the Electoral
Tribunals was mandatory. After ruling that it was not a political
question, the Court proceeded to affirm the mandatory character of
the procedure in these words:
The procedure prescribed in Section 11 of
Article VI of the Constitution for the selection
of members of the Electoral Tribunals is vital
to the role they are called upon to play. It
constitutes the essence of said Tribunals.
Hence, compliance with said procedure is
mandatory and acts performed in violation
thereof are null and void.36
The footnote of authorities corresponding to the above-quoted
pronouncement reads:
The need of adopting this view is demanded,
not only by the factors already adverted to,
but, also, by the fact that constitutional
provisions, unlike statutory enactments, are
presumed to be mandatory, 'unless the
contrary is unmistakably manifest.' The
pertinent rule of statutory construction is set
forth in the American Jurisprudence as
follows:
In the interpretation of Constitutions,
questions frequently arise as to whether
particular sections are mandatory or directory.
The courts usually hesitate to declare that a
constitutional provision is directory merely in
view of the tendency of the legislature to
disregard provisions which are not said to be
mandatory. Accordingly, it is the general rule
to regard constitutional provisions as
mandatory, and not to leave any discretion to
the will of a legislature to obey or to disregard
them. This presumption as to mandatory
quality is usually followed unless it is
unmistakably manifest that the provisions are
intended to be merely directory. The
analogous rules distinguishing mandatory and
directory statutes are of little value in this
connection and arerarely applied in passing
upon the provisions of a Constitution.
So strong is the inclination in favor of giving
obligatory force to the terms of the organic
law that it has even been said that neither by
the courts nor by any other department of the
government may any provision of the
Constitution be regarded as merely directory,
but that each and every one of its provisions
should be treated as imperative and
mandatory, without reference to the rules and
131
 distinguishing between the directory and the
mandatory statutes. (II Am. Jur 686-687;
emphasis supplied)
Ten years later, the Court in Gonzales v. Commission on
Elections 37 resolved the issue of whether a resolution of Congress
proposing amendments to the Constitution is a political question. It
held that it is not and is therefore subject to judicial review.
Indeed, the power to amend the Constitution
or to propose amendments thereto is not
included in the general grant of legislative
powers to Congress. It is part of the inherent
powers of the people — as the repository of
sovereignty in a republican state, such as ours
— to make, and, hence, to amend their own
Fundamental Law. Congress may propose
amendments to the Constitution merely
because the same explicitly grants such
power. Hence, when exercising the same, it is
said that Senators and Members of the House
of Representatives act, notas members
of Congress, but as component elements of
a constituent assembly. When acting as such,
the members of Congress derive their
authority from the Constitution, unlike the
people, when performing the same function
for their authority does not emanate from the
Constitution — they are the very source of all
powers of government, including the
Constitution itself .
Since, when proposing, as a constituent
assembly, amendments to the Constitution,
the members of Congress derive their
authority from the Fundamental Law, it
follows, necessarily, that they do not have the
final say on whether or not their acts are
within or beyond constitutional limits.
Otherwise, they could brush aside and set the
same at naught, contrary to the basic tenet
that ours is a government of laws, not of men,
and to the rigid nature of our Constitution.
Such rigidity is stressed by the fact that, the
Constitution expressly confers upon the
Supreme Court, the power to declare a treaty
unconstitutional, despite the eminently
political character of treaty-making power.
In short, the issue whether or not a Resolution
of Congress — acting as a constituent
assembly — violates the Constitution
essentially justiciable, not political, and,
hence, subject to judicial review, and, to the
extent that this view may be inconsistent with
the stand taken in Mabanag v. Lopez Vito, the
latter should be deemed modified accordingly.
The Members of the Court are unanimous on
this point. 38
In Sanidad v. Commission on Elections 39 questioned was the power
of the President to propose amendments to the Constitution on the
ground that it was exercised beyond the limits prescribed by the
Constitution. Holding that it was a justiciable controversy, this Court
made the following disquisition:
The amending process both as to proposal and
ratification, raises a judicial question. This is
especially true in cases where the power of
the Presidency to initiate the amending
process by proposals of amendments, a
function normally exercised by the legislature,
is seriously doubted. Under the terms of the
1973 Constitution, the power to propose
amendments to the Constitution resides in
the interim National Assembly during the
period of transition (Sec. 15, Transitory
Provisions). After that period, and the regular
National Assembly in its active session, the
power to propose amendments becomes ipso
facto the prerogative of the regular National
Assembly (Sec. 1, pars. 1 and 2 of Art. XVI,
1973 Constitution). The normal course has not
been followed. Rather than calling
the interim National Assembly to constitute
itself into a constituent assembly, the
incumbent President undertook the proposal
of amendments and submitted the proposed
amendments thru Presidential Decree 1033 to
the people in a Referendum-Plebiscite on
October 16. Unavoidably, the regularity of the
procedure for amendments, written in
lambent words in the very Constitution sought
to be amended, raises a contestable issue. The
implementing Presidential Decree Nos. 991,
1031, and 1033, which commonly purport to
have the force and effect of legislation are
assailed as invalid, thus the issue of the
validity of said Decrees is plainly a justiciable
one, within the competence of this Court to
pass upon. Section 2(2), Article X of the new
Constitution provides: All cases involving the
constitutionality of a treaty, executive
agreement, or law shall be heard and decided
by the Supreme Court en banc, and no treaty,
executive agreement, or law may be declared
unconstitutional without the concurrence of
at least ten Members . . . The Supreme Court
has the last word in the construction not only
of treaties and statutes, but also of the
Constitution itself. The amending, like all other
powers organized in the Constitution, is in
form a delegated and hence a limited power,
so that the Supreme Court is vested with that
authority to determine whether that power
has been discharged within its limits.
Political questions are neatly associated with
the wisdom, not the legality of a particular act.
Where the vortexof the controversy refers to
the legality or validity of the contested act,
that matter is definitely justiciable or non-
political. What is in the heels of the Court is
not the wisdom of the act of the incumbent
President in proposing amendments to the
Constitution, but his constitutional authority
to perform such act or to assume the power of
a constituent assembly. Whether the
amending process confers on the President
that power to propose amendments is
therefore a downright justiciable question.
Should the contrary be found, the actuation of
the President would merely be a brutum
fulmen. If the Constitution provides how it
may be amended, the judiciary as the
interpreter of that Constitution, can declare
whether the procedure followed or the
authority assumed was valid or not.
We cannot accept the view of the Solicitor
General, in pursuing his theory of non-
justiciability, that the question of the
President's authority to propose amendments
and the regularity of the procedure adopted
for submission of the proposals to the people
ultimately lie in the judgment of the latter. A
clear Descartes fallacy of vicious circle. Is it not
that the people themselves, by their sovereign
act, provided for the authority and procedure
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 for the amending act, provided for the
authority and procedure for the amending
process when they ratified the present
Constitution in 1973? Whether, therefore,
that constitutional provision has been
followed or not is indisputably a proper
subject of inquiry, not by the people
themselves — of course — who exercise no
power of judicial review, but by the Supreme
Court in whom the people themselves vested
that power, a power which includes the
competence to determine whether the
constitutional norms for amendments have
been observed or not. And, this inquiry must
be done a priori not a posteriori, i.e., before
the submission to and ratification by the
people. 40
The doctrine that may be drawn from the cited decisions is
clear. The determination of compliance with a rule, requirement or
limitation prescribed by the Constitution on the exercise of a power
delegated by the Constitution itself on a body or official is invariably
a justiciable controversy.
Contrary to what respondent Speaker Jose G. De Venecia and
intervenor Senator Aquilino Pimentel have posited, the ruling
in Nixon v. United States 41 is not applicable to the present
petitions. There, the U.S. Supreme Court held that the constitutional
challenge to the hearing of the impeachment case by a committee
created by the Senate is nonjusticiable. As pointed out earlier, the
provisions of the 1987 Constitution on impeachment at the House
level explicitly lay out the procedure, requirements and limitations.
In contrast, the provision for the Senate level, like in the U.S.
Constitution, is quite sparse. So, if at all, Nixon would be persuasive
only with respect to the Senate proceedings. Besides, Nixon leaves
open the question of whether all challenges to impeachment are
nonjusticiable. 42
The term "judicial supremacy" was previously used in relation to the
Supreme Court's power of judicial review, 43 yet the phrase wrongly
connotes the bugaboo of a judiciary supreme to all other branches
of the government. When the Supreme Court mediates to allocate
constitutional boundaries or invalidates the acts of a coordinate
body, what it is upholding is not its own supremacy, but the
supremacy of the Constitution. 44 When this supremacy is invoked,
it compels the errant branches of government to obey not the
Supreme Court, but the Constitution.
There are other requisites for justiciability of a constitutional
question which we have traditionally recognized — namely: the
presence of an actual case or controversy; the matter of standing, or
when the question is raised by a proper party; the constitutional
question must be raised at the earliest possible opportunity; and
that the decision on the constitutional question must be necessary
to the determination of the case itself. 45 Justice Carpio-Morales, in
her scholarly opinion, has addressed these issues as applied to this
case definitively. I just would like to add a few thoughts on the
questions of standing and ripeness.
It is argued that this Court cannot take cognizance of the petitions
because petitioners do not have the standing to bring the cases
before us. Indeed, the numerous petitioners have brought their
cases under multifarious capacities, but not one of them is the
subject of the impeachment complaint. However, there is a wealth
of jurisprudence that would allow us to grant the petitioners the
requisite standing in this case, and any lengthy disquisition on this
matter would no longer be remarkable. But worthy of note is that
the petitioners in G.R. No. 160295 46 are suing in their capacities as
members of the House of Representatives. Considering that they are
seeking to invalidate acts made by the House of Representatives,
their standing to sue deserves a brief remark.
The injury that petitioners-congressmen can assert in this case is
arguably more demonstrable than that of the other petitioners.
Relevant in this regard is our ruling in Philippine Constitution
Association v. Enriquez, 47 wherein taxpayers and Senators sought
to declare unconstitutional portions of the General Appropriations
Act of 1994. We upheld the standing of the legislators to bring suit
to question the validity of any official action which they claim
infringes their prerogatives as legislators, more particularly, the
validity of a condition imposed on an item in an appropriation bill.
Citing American jurisprudence, we held:
[T]o the extent to the powers of Congress are
impaired, so is the power of each member
thereof, since his office confers arrive to
participate in the exercise of the powers of
that institution (Coleman v. Miller, 307 U.S.
433 [1939]; Holtzman v. Schlesinger, 484 F. 2d
1307 [1973]).
An act of the Executive which injuries the
institution of Congress causes a derivative but
nonetheless substantial injury, which can be
questioned by a member of Congress
(Kennedy v. Jones, 412 F. Supp. 353 [1976]). In
such a case, any member of Congress can have
a resort to the courts. 48
There is another unique, albeit uneasy, issue on standing that should
be discussed. The party who can most palpably demonstrate injury
and whose rights have been most affected by the actions of the
respondents is the Chief Justice of this Court. Precisely because of
that consideration, we can assume that he is unable to file the
petition for himself and therefore standing should be accorded the
petitioners who manifest that they have filed their petitions on his
behalf. In a situation wherein it would be difficult for the person
whose rights are asserted to present his grievance before any court,
the U.S. Supreme Court held in Barrows v. Jackson 49 that the rules
on standing are outweighed by the need to protect these
fundamental rights and standing may be granted. 50 There is no
reason why this doctrine may not be invoked in this jurisdiction.
Another point. Despite suggestions to the contrary, I maintain that
the Senate does not have the jurisdiction to determine whether or
not the House Rules of Impeachment violate the Constitution. As I
earlier stated, impeachment is not an inherent legislative function,
although it is traditionally conferred on the legislature. It requires
the mandate of a constitutional provision before the legislature can
assume impeachment functions. The grant of power should be
explicit in the Constitution. It cannot be readily carved out of the
shade of a presumed penumbra. 51 In this case, there is a looming
prospect that an invalid impeachment complaint emanating from an
unconstitutional set of House rules would be presented to the
Senate for action. The proper recourse would be to dismiss the
complaint on constitutional grounds. Yet, from the Constitutional
and practical perspectives, only this Court may grant that relief .
The Senate cannot be expected to declare void the Articles of
Impeachment, as well as the offending Rules of the Housebased on
which the House completed the impeachment process. The Senate
cannot look beyond the Articles of Impeachment. Under the
Constitution, the Senate's mandate is solely to try and decide the
impeachment complaint. 52While the Senate acts as an
impeachment court for the purpose of trying and deciding
impeachment cases, such "transformation" does not vest unto the
Senate any of the powers inherent in the Judiciary, because
impeachment powers are not residual with the Senate. Whatever
powers the Senate may acquire as an impeachment court are limited
to what the Constitution provides, if any, and they cannot extend to
judicial-like review of the acts of co-equal components of
government, including those of the House.
Pursuing the concept of the Senate as an impeachment court, its
jurisdiction, like that of the regular courts', has to be conferred by
law and it cannot be presumed. 53 This is the principle that binds
and guides all courts of the land, and it should likewise govern the
impeachment court, limited as its functions may be. There must be
133
an express grant of authority in the Constitution empowering the
Senate to pass upon the House Rules on Impeachment.
Ought to be recognized too is the tradition of comity observed by
members of Congress commonly referred to as "inter-chamber
courtesy." It is simply the mutual deference accorded by the
chambers of Congress to each other. Thus, "the opinion of each
House should be independent and not influenced by the
proceedings of the other." 54
While inter-chamber courtesy is not a principle which has attained
the level of a statutory command, it enjoys a high degree of
obeisance among the members of the legislature, ensuring as it does
the smooth flow of the legislative process. Thus, inter-chamber
courtesy was invoked by the House in urging the Senate to
terminate all proceedings in relation to the jueteng controversy at
the onset on the call for the impeachment of President Estrada,
given the reality that the power of impeachment solely lodged in the
House could be infringed by hearings then ongoing in the upper
chamber. 55 On another occasion, Senator Joker Arroyo invoked
inter-chamber courtesy in refusing to compel the attendance of two
congressmen as witnesses at an investigation before the Senate Blue
Ribbon Committee. 56
More telling would be the Senate's disposition as a Court of
Impeachment of the Motion to Quash filed by the lawyers of
President Estrada during the latter's impeachment trial. The Motion
to Quash was premised on purported defects in the impeachment
complaint which originated from the House of Representatives. Had
the Senate granted the Motion to Quash, it would have, by
implication, ruled on whether the House of Representatives had
properly exercised its prerogative in impeaching the President. The
Senate refused to grant the Motion to Quash, affirming the validity
of the procedure adopted by the House of Representatives and
expressing its conformity to the House Rules of Procedure on
Impeachment Proceedings. 57
It is my belief that any attempt on the part of the Senate to
invalidate the House Rules of Impeachment is obnoxious to inter-
chamber courtesy. If the Senate were to render these
House Rules unconstitutional, it would set an unfortunate precedent
that might engender a wrong-headed assertion that one chamber of
Congress may invalidate the rules and regulations promulgated by
the other chamber. Verily, the duty to pass upon the validity of the
House Rules of Impeachment is imposed by the Constitution not
upon the Senate but upon this Court.
On the question of whether it is proper for this Court to decide the
petitions, it would be useless for us to pretend that the official being
impeached is not a member of this Court, much less the primus inter
pares. Simplistic notions of rectitude will cause a furor over the
decision of this Court, even if it is the right decision. Yet we must
decide this case because the Constitution dictates that we do so. The
most fatal charge that can be levied against this Court is that it did
not obey the Constitution. The Supreme Court cannot afford, as it
did in the Javellana case, to abdicate its duty and refuse to address a
constitutional violation of a co-equal branch of government just
because it feared the political repercussions.
And it is comforting that this Court need not rest merely on rhetoric
in deciding that it is proper for it to decide the petitions, despite the
fact that the fate of the Chief Justice rests in the balance.
Jurisprudence is replete with instances when this Court was called
upon to exercise judicial duty, notwithstanding the fact that the
application of the same could benefit one or all members of the
Court.
In Perfecto vs. Meer, 58 the Court passed upon the claim for a tax
refund posed by Justice Gregorio Perfecto. It was noted therein that:
. . . [a]s the outcome indirectly affects all the
members of the Court, consideration of the
matter is not without its vexing feature. Yet
adjudication may not be declined, because (a)
we are not legally disqualified; (b) jurisdiction
may not be renounced, as it is the defendant
who appeals to this Court, and there is no
other tribunal to which the controversy may
be referred; (c) supreme courts in the United
States have decided similar disputes relating
to themselves; (d) the question touches all the
members of the judiciary from top to bottom;
and (e) the issue involves the right of other
constitutional officers whose compensation is
equally protected by the Constitution, for
instance, the President, the Auditor-General
and the members of the Commission on
Elections. Anyway the subject has been
thoroughly discussed in many American
lawsuits and opinions, and we shall hardly do
nothing more than to borrow therefrom and
to compare their conclusions to local
conditions. There shall be little occasion to
formulate new propositions, for the situation
is not unprecedented. 59
Again, in Endencia v. David, 60 the Court was called upon to resolve
a claim for an income tax refund made by a justice of this Court. This
time, the Court had the duty to rule upon the constitutionality of a
law that subjected the income of Supreme Court Justices to taxation.
The Court did not hesitate to tackle the matter. It held:
Under our system of constitutional
government, the Legislative department is
assigned the power to make and enact laws.
The Executive department is charged with the
execution or carrying out of the provisions of
said laws. But the interpretation and
application of said laws belong exclusively to
the Judicial department. And this authority to
interpret and apply the laws extends to the
Constitution. Before the courts can determine
whether a law is constitutional or not, it will
have to interpret and ascertain the meaning
not only of said law, but also of the pertinent
portion of the Constitution in order to decide
whether there is a conflict between the two,
because if there is, then the law will have to
give way and has to be declared invalid and
unconstitutional. 61
In Radiowealth Inc. v. Agregado, 62 this Court was constrained to
rule on the authority of the Property Requisition Committee
appointed by the President to pass upon the Court's requisitions for
supplies. There, this Court was compelled to assert its own financial
independence.
. . . the prerogatives of this Court which the
Constitution secures against interference
includes not only the powers to adjudicate
causes but all things that are reasonably
necessary for administration of justice. It is
within its power, free from encroachment by
the executive, to acquire books and other
office equipment reasonably needed to the
convenient transaction of its business. These
implied, inherent, or incidental powers are as
essential to the existence of the court as the
powers specifically granted. Without the
power to provide itself with appropriate
instruments for the performance of its duties,
the express powers with which the
Constitution endows it would become useless.
The court could not maintain its independence
and dignity as the Constitution intends if the
executive personally or through subordinate
officials could determine for the court what it
should have or use in the discharge of its
134
 functions, and when and how it should obtain
them. 63
Thus, in the cited cases the Court deviated from its self-imposed
policy of prudence and restraint, expressed in pronouncements of its
distaste of cases which apparently cater to the ostensibly self-
serving concerns of the Court or its individual members, and
proceeded to resolve issues involving the interpretation of the
Constitution and the independence of the judiciary. We can do no
less in the present petitions. As was declared in Sanidad, 64 this
Court in view of the paramount interests at stake and the need for
immediate resolution of the controversy has to act a priori, not a
posteriori, as it does now.
Having established the jurisdiction of this Court to decide the
petitions, the justiciability of the issues raised, and the propriety of
Court action on the petition, I proceed now to discuss the
constitutionality of the House Rules on Impeachment.
It is suggested that the term "initiate" in Sections 3 (1) and 3 (5),
Article XI is used in the same sense, that is, the filing of the Articles
of Impeachment by the House of Representatives to the Senate:
SEC. 3.(1)The House of Representatives shall
have the exclusive power to initiate all cases
of impeachment.
xxx xxx xxx
(5)No impeachment proceedings shall
be initiated against the same official more
than once within a period of one year.
[Emphasis supplied.]
A review of the history of Section 3 (1) shows that this is not
so.
The Constitution of the United States, after which the 1935 and
subsequent Constitutions, as well as our system of government,
were patterned, simply states:
5.The House of Representatives shall choose
their speaker and other officers; and shall
have the sole power of impeachment. [Sec. 3,
Art. I.]
Note that the phrase "power to initiate all cases of impeachment"
does not appear in the above provision. Rather, it uses the shorter
clause "power of impeachment." Webster's Third New International
Dictionary defines "impeach" as, "to bring an accusation (as of
wrongdoing or impropriety) against" or to "charge with a crime or
misdemeanor." Specifically, it means, to "charge (a public official)
before a competent tribunal with misbehavior in office" or to
"arraign or cite for official misconduct." "Initiate," on the other
hand, is defined primarily as, "to begin or set going," or to "make a
beginning of," or to "perform or facilitate the first actions, steps, or
stages of."
Contrast this with the merely slight difference between Section 3 (6),
Article XI of the 1987 Philippine Constitution ("The Senate shall have
the sole power to try and decide all cases of impeachment.") and
Section 3.6, Article I of the U.S. Constitution ("The Senate shall have
the sole power to try all impeachments."), the former adding only
the word "decide."
The original 1935 Constitution contemplated a unicameral
legislature called National Assembly but, nevertheless, employed a
two-tiered impeachment process. The "sole power of impeachment"
was reposed on the Commission on Impeachment of the National
Assembly, composed of twenty-one members of the
Assembly, 65 and the "sole power to try all impeachments," on the
National Assembly as a body, less those who belong to the
Commission on Impeachment. The pertinent provisions of Article IX
(Impeachment) of the original 1935 Constitution read:
SEC. 2.The Commission on Impeachment of
the National Assembly, by a vote of two-thirds
of its Members, shall have the sole power of
impeachment.
SEC. 3.The National Assembly shall have the
sole power to try all impeachments. When
sitting for that purpose the Members shall be
on oath or affirmation. When the President of
the Philippines is on trial, the Chief Justice of
the Supreme Court shall preside. No person
shall be convicted without the concurrence of
three-fourths of all the Members who do not
belong to the Commission on Impeachment.
The 1935 Constitution was amended in 1940. The 1940 amendment
transformed the legislature from a unicameral to a bicameral body
composed of a Senate and a House of Representatives. Like the U.S.
Constitution, the 1935 Constitution, as amended, lodged the "power
of impeachment" in the House of Representatives. This was a simple
but complete grant of power. Just as simple and complete was the
power to "try and decide" which rested in the Senate.
If the impeachment process is juxtaposed against a criminal case
setting, the structural change made the House the investigator and
the proceeding before it akin to a preliminary investigation, while
the Senate was transformed into a court and the proceedings before
it a trial. This is the same structure under the 1987 Constitution.
Under the 1973 Constitution, the country reverted to a unicameral
legislature; hence, the need to spell out the specific phases of
impeachment, i.e., "to initiate, try and decide," all of which were
vested in the Batasang Pambansa. This was the first time that the
term "initiate" appeared in constitutional provisions governing
impeachment. Section 3, Article XIII thereof states:
The Batasang Pambansa shall have the
exclusive power to initiate, try, and decide all
cases of impeachment. Upon the filing of a
verified complaint, the Batasang Pambansa
may initiate impeachment by a vote of at least
one-fifth of all its Members. No official shall be
convicted without the concurrence of at least
two-thirds of all the Members thereof. When
the Batasang Pambansa sits in impeachment
cases, its Members shall be on oath or
affirmation.
Unfortunately, it seems that the 1987 Constitution has retained the
same term, "initiate," used in the 1973 Constitution. The use of the
term is improper and unnecessary. It is the source of the present
confusion. Nevertheless, the intent is clear to vest the power to
"impeach" in the House of Representatives. This is a much broader
power that necessarily and inherently includes not only the power to
"initiate" impeachment cases before the Senate, but to investigate
complaints filed by any Member or any citizen, endorsed by any
Member, against an impeachable official. The term "initiate" in
Section 3 (1), Article XI should, therefore, be read as "impeach" and
the manner in which it is used therein should be distinguished from
its usage in Section 3(5) of the same Article.
This conclusion is supported by the object to which the term relates
in the different paragraphs of the same Section 3. Thus, Section 3 (1)
speaks of initiating "cases of impeachment" while Section 3 (5)
pertains to the initiation of "impeachment proceedings." "Cases," no
doubt, refers to those filed before the Senate. Its use and its sense
are consistent throughout Section 3. Thus, Section 3 (6) states, "The
Senate shall have the sole power to decide all cases[not
"proceedings"] of impeachment." Section 3(7) provides, "Judgment
in cases [not "proceedings"] of impeachment shall not extend
135
further than removal from office and disqualification to hold any
office . . ."
It may be argued, albeit unsuccessfully, that Sections 16 and 17, Rule
V of the House of Representatives Rules on Impeachment constitute
its interpretation of the Constitution and is, therefore, entitled to
great weight. A comparison of these Rules, which, incidentally were
promulgated only recently by the Twelfth Congress, with the
previous Rulesadopted by the Eighth, Ninth, Tenth and Eleventh
Congress demonstrates how little regard should be given to this
most recent "interpretation." The old Rules simply reproduced
Section 3 (5), Article XI of the Constitution, which is to say, that they
employed a literal interpretation of the same provision, thus:
RULE V
SEC. 14.Scope of Bar. — No impeachment
proceedings shall be initiated against the same
official more than once within the period of
one year.
The interpretation of the Twelfth Congress, however, is such a
radical departure from previous interpretations that it cannot be
accorded the same great weight normally due it. Depending on the
mode of the filing of the complaint, the impeachment proceedings
are "deemed" initiated only:
(1)on the day the Committee on Justice finds
that the verified complaint and/or resolution
against such official, as the case may be is
sufficient in substance; or
(2)on the date the House votes to overturn or
affirm the finding of said Committee that the
verified complaint and/or resolution, as the
case may be, is not sufficient in substance; or
(3)at the time of the filing of such verified
complaint or resolution of impeachment with
the Secretary General.
It is true that each Congress is not bound by the interpretation of
the previous Congress, that it has the power to disregard the Rules
of its predecessor and to adopt its own Rules to conform to what it
may deem as the proper interpretation of the Constitution. Thus,
in Osmeña v. Pendatun, 66 the Court held that "the rules adopted by
deliberative bodies are subject to revocation[,] modification or
waiver at the pleasure of the body adopting them." The Court
concedes the congressional power to interpret the Constitution in
the promulgation of its Rules, but certainly not, as stated earlier, the
congressional interpretation, which, in this case, is so dreadfully
contrary, not only to the language of the provision, but also to the
intent of the framers of the Constitution and to the provision's very
philosophy.
Many of the petitions refer to the Records of the Constitutional
Commission, stressing statements of Commissioner Regalado
Maambong that "the initiation starts from the filing of the
complaint," and that it "is not the [House] body which initiates [the
complaint]." The Court, having heard from Commissioner
Maambong himself, acting as amicus curiae, is persuaded by the
argument and the point need not be belabored. Plainly, the mere
filing of the complaint (or a resolution of impeachment) under
Section 3(2) (or Section 3[4]) precludes the initiation of another
impeachment proceeding against the same official within one year.
The rationale behind the so-called time-bar rule cannot be
overemphasized, however. The obvious philosophy of the bar is two-
fold. The first is to prevent the harassment of the impeachable
official, who shall be constrained to defend himself in such
proceedings and, as a consequence, is detracted from his official
functions. The second is to prevent Congress from being
overwhelmed by its non-legislative chores to the detriment of its
legislative duties. 67
The impugned House Rules on Impeachment defeats the very
purpose of the time-bar rule because they allow the filing of an
infinite number of complaints against a single impeachable official
within a given year. Not until:
(1). . . the day the Committee on Justice finds
that the verified complaint and/or resolution
against such official, as the case may be, is
sufficient in substance; or
(2). . . the date the House votes to overturn or
affirm the finding of said Committee that the
verified complaint and/or resolution, as the
case may be, is not sufficient in substance; or
(3). . . the time of the filing of such verified
complaint or resolution of impeachment with
the Secretary General.
are the impeachment proceedings deemed initiated. Until then,
the right of the impeachable official against harassment does
not attach and is exposed to harassment by subsequent
complaints. Until then, the House would be swamped with the
task of resolving these complaints. Clearly, the Rules do not
"effectively carry out the purpose of" Section 3, Article XI and,
in fact, quite creatively killed not only the language but the
spirit behind the constitutional proscription. Clearly, Sections
16 and 17, Rule V of the House Rules on
Impeachment contravene Section 3(5), Article XI of the
Constitution. They must be struck down. Consequently, the
second impeachment complaint is barred pursuant to Section
3(4), Article XI of the Constitution.
It is noteworthy that the above conclusion has been
reached simply by taking into account the ordinary meaning of
the words used in the constitutional provisions in point, as well
as their rationale. Resort to the rule that the impeachment
provisions should be given a narrow interpretation in relation
to the goal of an independent judiciary need not be made
even. 68
Nevertheless, this does not mean that the second impeachment
complaint is forever barred; only that it should be dismissed without
prejudice to its re-filing after one year from the filing of the first
impeachment complaint. Indeed, this Court cannot deprive the
House of the exclusive power of impeachment lodged in the House
by the Constitution.
In taking cognizance of this case, the Court does not do so out of
empathy or loyalty for one of our Brethren. Nor does it do so out of
enmity or loathing toward the Members of a co-equal branch, whom
I still call and regard as my Brethren. The Court, in assuming
jurisdiction over this case, to repeat, does so only out of duty, a duty
reposed no less by the fundamental law.
Fears that the Court's conclusion today would yield a constitutional
crisis, that the present controversy would shake the judicial
institution to its very foundations, I am confident, would not come
to pass. Through one seemingly endless martial rule, two bloodless
uprisings, three Constitutions and countless mini-revolts, no
constitutional crisis erupted; the foundations of the Court did not
shake. This is not because, in the clashes between the great, perhaps
greater, Branches of Government, the Court is "Supreme" for it
holds neither sword nor purse, and wields only a pen. Had the other
Branches failed to do the Court's bidding, the Court would have
been powerless to enforce it. The Court stands firm only because its
foundations are grounded on law and logic and its moorings on
justice and equity. It is a testament to the Filipino's respect for the
rule of law that in the face of these "clashes," this Court's
pronouncements have been heeded, however grudgingly at times.
Should there be more "interesting" times ahead for the Filipino, I
pray that they prove to be more of a blessing than a curse.
136
ACCORDINGLY, concurring in the comprehensive and well-reasoned
opinion of Justice Carpio-Morales, I vote to GRANT the petitions
insofar as they seek the declaration of the unconstitutionality of the
challenged provisions of the HouseRules on Impeachment and the
pronouncement that the second impeachment complaint is time-
barred on the basis of Section 3(5), Article XI of the
Constitution. aATHES

137
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 118910 November 16, 1995
KILOSBAYAN, INCORPORATED, JOVITO R. SALONGA, CIRILO A. RIGOS,
ERME CAMBA, EMILIO C. CAPULONG, JR., JOSE T. APOLO, EPHRAIM
TENDERO, FERNANDO SANTIAGO, JOSE ABCEDE, CHRISTINE TAN,
RAFAEL G. FERNANDO, RAOUL V. VICTORINO, JOSE CUNANAN,
QUINTIN S. DOROMAL, SEN. FREDDIE WEBB, SEN. WIGBERTO
TAÑADA, REP. JOKER P. ARROYO, petitioners,
vs.
MANUEL L. MORATO, in his capacity as Chairman of the Philippine
Charity Sweepstakes Office, and the PHILIPPINE GAMING
MANAGEMENT CORPORATION, respondents.
RESOLUTION
MENDOZA, J.:
Petitioners seek reconsideration of our decision in this case. They
insist that the decision in the first case has already settled (1)
whether petitioner Kilosbayan, Inc. has a standing to sue and (2)
whether under its charter (R.A. No. 1169, as amended) the
Philippine Charity Sweepstakes Office can enter into any form of
association or collaboration with any party in operating an on-line
lottery. Consequently, petitioners contend, these questions can no
longer be reopened.
Because two members of the Court did not consider themselves
bound by the decision in the first case, petitioners suggest that the
two, in joining the dissenters in the first case in reexamining the
questions in the present case, acted otherwise than according to
law. They cite the following statement in the opinion of the Court:
The voting on petitioners' standing in the
previous case was a narrow one, with seven (7)
members sustaining petitioners' standing and six
(6) denying petitioners' right to bring the suit.
The majority was thus a tenuous one that is not
likely to be maintained in any subsequent
litigation. In addition, there have been changes
in the membership of the Court, with the
retirement of Justices Cruz and Bidin and the
appointment of the writer of this opinion and
Justice Francisco. Given this fact it is hardly
tenable to insist on the maintenance of the
ruling as to petitioners' standing.
Petitioners claim that this statement "conveys a none too
subtle suggestion, perhaps a Freudian slip, that the two
new appointees, regardless of the merit of the Decision in
the first Kilosbayan case against the lotto (Kilosbayan, et
al. v. Guingona, 232 SCRA 110 (1994)) must of necessity
align themselves with all the Ramos appointees who were
dissenters in the first case and constitute the new majority
in the second lotto case." And petitioners ask, "why should
it be so?"
Petitioners ask a question to which they have made up an answer.
Their attempt at psychoanalysis, detecting a Freudian slip where
none exists, may be more revealing of their own unexpressed wish
to find motives where there are none which they can impute to
some members of the Court.
For the truth is that the statement is no more than an effort
to explain — rather than to justify — the majority's decision to
overrule the ruling in the previous case. It is simply meant to explain
that because the five members of the Court who dissented in the
first case (Melo, Quiason, Puno, Vitug and Kapunan, JJ.) and the two
new members (Mendoza and Francisco, JJ.) thought the previous
ruling to be erroneous and its reexamination not to be barred
by stare decisis, res judicata or conclusiveness of judgment, or law of
the case, it was hardly tenable for petitioners to insist on the first
ruling.
Consequently to petitioners' question "What is the glue that holds
them together," implying some ulterior motives on the part of the
new majority in reexamining the two questions, the answer is: None,
except a conviction on the part of the five, who had been members
of the Court at the time they dissented in the first case, and the two
new members that the previous ruling was erroneous. The eighth
Justice (Padilla, J.) on the other hand agrees with the seven Justices
that the ELA is in a real sense a lease agreement and therefore does
not violate R.A. No. 1169.
The decision in the first case was a split decision: 7-6. With the
retirement of one of the original majority (Cruz, J.) and one of the
dissenters (Bidin, J.) it was not surprising that the first decision in the
first case was later reversed.
It is argued that, in any case, a reexamination of the two questions is
barred because the PCSO and the Philippine Gaming Management
Corporation made a " formal commitment not to ask for a
reconsideration of the Decision in the first lotto case and instead
submit a new agreement that would be in conformity with the PCSO
Charter (R.A. No. 1169, as amended) and with the Decision of the
Supreme Court in the first Kilosbayan case against on-line, hi-tech
lotto."
To be sure, a new contract was entered into which the majority of
the Court finds has been purged of the features which made the first
contract objectionable. Moreover, what the PCSO said in its
manifestation in the first case was the following:
1. They are no longer filing a motion for
reconsideration of the Decision of this Honorable
Court dated May 5, 1994, a copy of which was
received on May 6, 1994.
2. Respondents PCSO and PGMC are presently
negotiating a new lease agreement consistent
with the authority of PCSO under its charter (R.A.
No. 1169, as amended by B.P. Blg. 42) and
conformable with the pronouncements of this
Honorable Court in its Decision of May 5, 1995.
The PGMC made substantially the same manifestation as
the PCSO.
There was thus no "formal commitment" — but only a
manifestation — that the parties were not filing a motion for
reconsideration. Even if the parties made a "formal commitment,"
the six (6) dissenting Justices certainly could not be bound thereby
not to insist on their contrary view on the question of standing.
Much less were the two new members bound by any "formal
commitment" made by the parties. They believed that the ruling in
the first case was erroneous. Since in their view reexamination was
not barred by the doctrine of stare decisis, res judicata or
conclusiveness of judgment or law of the case, they voted the way
they did with the remaining five (5) dissenters in the first case to
form a new majority of eight.
Petitioners ask, "Why should this be so?" Because, as explained in
the decision, the first decision was erroneous and no legal doctrine
stood in the way of its reexamination. It can, therefore, be asked
"with equal candor": "Why should this not be so?"
138
Nor is this the first time a split decision was tested, if not reversed,
in a subsequent case because of change in the membership of a
court. In 1957, this Court, voting 6-5, held in Feliciano v. Aquinas,
G.R. No. L-10201, Sept. 23, 1957 that the phrase "at the time of the
election" in §2174 of the Revised Administrative Code of 1917
meant that a candidate for municipal elective position must be at
least 23 years of age on the date of the election. On the other hand,
the dissenters argued that it was enough if he attained that age on
the day he assumed office.
Less than three years later, the same question was before the Court
again, as a candidate for municipal councilor stated under oath in
her certificate of candidacy that she was eligible for that position
although she attained the requisite age (23 years) only when she
assumed office. The question was whether she could be prosecuted
for falsification. In People v. Yang, 107 Phi. 888 (1960), the Court
ruled she could not. Justice, later Chief Justice, Benison, who
dissented in the first case, Feliciano v. Aquinas, supra, wrote the
opinion of the Court, holding that while the statement that the
accused was eligible was "inexact or erroneous, according to the
majority in the Feliciano case," the accused could not be held liable
for falsification, because
the question [whether the law really required
candidates to have the required age on the day
of the election or whether it was sufficient that
they attained it at the beginning of the term of
office] has not been discussed anew, despite the
presence of new members; we simply assume for
the purpose of this decision that the doctrine
stands.
Thus because in the meantime there had been a change in the
membership of the Court with the retirement of two members
(Recess and Flex, JJ.) who had taken part in the decision in the first
case and their replacement by new members (Barrera and Gutierrez-
David, JJ.) and the fact that the vote in the first case was a narrow
one (6 to 5), the Court allowed that the continuing validity of its
ruling in the first case might well be doubted. For this reason it gave
the accused the benefit of the doubt that she had acted in the good
faith belief that it was sufficient that she was 23 years of age when
she assumed office.
In that case, the change in the membership of the Court and the
possibility of change in the ruling were noted without anyone —
much less would-be psychoanalysts — finding in the statement of
the Court any Freudian slip. The possibility of change in the rule as a
result of change in membership was accepted as a sufficient reason
for finding good faith and lack of criminal intent on the part of the
accused.
Indeed, a change in the composition of the Court could prove the
means of undoing an erroneous decision. This was the lesson
of Knox v. Lee, 12 Wall. 457 (1871). The Legal Tender Acts, which
were passed during the Civil War, made U.S. notes (greenbacks)
legal tender for the payment of debts, public or private, with certain
exceptions. The validity of the acts, as applied to preexisting debts,
was challenged in Hepburn v. Griswold, 8 Wall. 603 (1869). The Court
was then composed of only eight (8) Justices because of
Congressional effort to limit the appointing power of President
Johnson. Voting 5-3, the Court declared the acts void. Chief Justice
Chase wrote the opinion of the Court in which four others, including
Justice Grier, concurred. Justices Miller, Swayne and Davis dissented.
A private memorandum left by the dissenting Justices described how
an effort was made "to convince an aged and infirm member of the
court [Justice Grier] that he had not understood the question on
which he voted," with the result that what was originally a 4-4 vote
was converted into a majority (5-3) for holding the acts invalid.
On the day the decision was announced, President Grant nominated
to the Court William Strong and Joseph P. Bradley to fill the vacancy
caused by the resignation of Justice Grier and to restore the
membership of the Court to nine. In 1871, Hepburn v. Griswold was
overruled in the Legal Tender Cases, as Knox v. Lee came to be
known, in an opinion by Justice Strong, with a dissenting opinion by
Chief Justice Chase and the three other surviving members of the
former majority. There were allegations that the new Justices were
appointed for their known views on the validity of the Legal Tender
Acts, just as there were others who defended the character and
independence of the new Justices. History has vindicated the
overruling of the Hepburn case by the new majority. The Legal
Tender Cases proved to be the Court's means of salvation from what
Chief Justice Hughes later described as one of the Court's "self-
inflicted wounds." 1
We now consider the specific grounds for petitioners' motion for
reconsideration.
I. We have held that because there are no genuine issues of
constitutionality in this case, the rule concerning real party in
interest, applicable to private litigation rather than the more liberal
rule on standing, applies to petitioners. Two objections are made
against that ruling: (1) that the constitutional policies and principles
invoked by petitioners, while not supplying the basis for affirmative
relief from the courts, may nonetheless be resorted to for striking
down laws or official actions which are inconsistent with them and
(2) that the Constitution, by guaranteeing to independent people's
organizations "effective and reasonable participation at all levels of
social, political and economic decision-making" (Art. XIII, §16), grants
them standing to sue on constitutional grounds.
The policies and principles of the Constitution invoked by petitioner
read:
Art. II, §5. The maintenance of peace and order,
the protection life, liberty, and property, and
the promotion of the general welfare are
essential for the enjoyment by all the people of
the blessings of democracy.
Id., §12. The natural and primary right and duty
of parents in the rearing of the youth for civic
efficiency and the development of moral
character shall receive the support of the
Government.
Id., §13. The State recognizes the vital role of the
youth in nation-building and shall promote and
protect their physical, moral, spiritual,
intellectual, and social well-being. It shall
inculcate in the youth patriotism and
nationalism, and encourage their involvement in
public and civic affairs.
Id., §17. The State shall give priority to
education, science and technology, arts, culture,
and sports to foster patriotism and nationalism,
accelerate social progress, and promote total
human liberation and development.
As already stated, however, these provisions are not self-executing.
They do not confer rights which can be enforced in the courts but
only provide guidelines for legislative or executive action. By
authorizing the holding of lottery for charity, Congress has in effect
determined that consistently with these policies and principles of
the Constitution, the PCSO may be given this authority. That is why
we said with respect to the opening by the PAGCOR of a casino in
Cagayan de Oro, "the morality of gambling is not a justiciable issue.
Gambling is not illegal per se. . . . It is left to Congress to deal with
the activity as it sees fit." (Magtajas v. Pryce Properties Corp., Inc.,
234 SCRA 255, 268 [1994]).
It is noteworthy that petitioners do not question the validity of the
law allowing lotteries. It is the contract entered into by the PCSO and
the PGMC which they are assailing. This case, therefore, does not
raise issues of constitutionality but only of contract law, which
petitioners, not being privies to the agreement, cannot raise.
139
Nor does Kilosbayan's status as a people's organization give it the
requisite personality to question the validity of the contract in this
case. The Constitution provides that "the State shall respect the role
of independent people's organizations to enable the people to
pursue and protect, within the democratic framework, their
legitimate and collective interests and aspirations through peaceful
and lawful means," that their right to "effective and reasonable
participation at all levels of social, political, and economic decision-
making shall not be abridged." (Art. XIII, §§ 15-16)
These provisions have not changed the traditional rule that only real
parties in interest or those with standing, as the case may be, may
invoke the judicial power. The jurisdiction of this Court, even in
cases involving constitutional questions, is limited by the "case and
controversy" requirement of Art. VIII, §5. This requirement lies at
the very heart of the judicial function. It is what differentiates
decision-making in the courts from decision-making in the political
departments of the government and bars the bringing of suits by
just any party.
Petitioners quote extensively from the speech of Commissioner
Garcia before the Constitutional Commission, explaining the
provisions on independent people's organizations. There is nothing
in the speech, however, which supports their claim of standing. On
the contrary, the speech points the way to the legislative and
executive branches of the government, rather than to the courts, as
the appropriate fora for the advocacy of petitioners' views. 2 Indeed,
the provisions on independent people's organizations may most
usefully be read in connection with the provision on initiative and
referendum as a means whereby the people may propose or enact
laws or reject any of those passed by Congress. For the fact is that
petitioners' opposition to the contract in question is nothing more
than an opposition to the government policy on lotteries.
It is nevertheless insisted that this Court has in the past accorded
standing to taxpayers and concerned citizens in cases involving
"paramount public interest." Taxpayers, voters, concerned citizens
and legislators have indeed been allowed to sue but then only (1) in
cases involving constitutional issues and
(2) under certain conditions. Petitioners do not meet these
requirements on standing.
Taxpayers are allowed to sue, for example, where there is a claim of
illegal disbursement of public funds. (Pascual v. Secretary of Public
Works, 110 Phi. 331 (1960); Sanidad v. Comelec, 73 SCRA 333
(1976); Bugnay Const. & Dev. v. Laron, 176 SCRA 240 (1989); City
Council of Cebu v. Cuizon, 47 SCRA 325 [1972]) or where a tax
measure is assailed as unconstitutional. (VAT Cases [Tolentino v.
Secretary of Finance], 235 SCRA 630 [1994]) Voters are allowed to
question the validity of election laws because of their obvious
interest in the validity of such laws. (Gonzales v. Comelec, 21 SCRA
774 [1967]) Concerned citizens can bring suits if the constitutional
question they raise is of "transcendental importance" which must be
settled early. (Emergency Powers Cases [Araneta v. Dinglasan], 84
Phi. 368 (1949); Iloilo Palay and Corn Planters Ass'n v. Feliciano, 121
Phi. 358 (1965); Philconsa v. Gimenez, 122 Phi. 894 (1965); CLU v.
Executive Secretary, 194 SCRA 317 [1991]) Legislators are allowed to
sue to question the validity of any official action which they claim
infringes their prerogatives qua legislators. (Philconsa v. Enriquez,
235 506 (1994); Guingona v. PCGG, 207 SCRA 659 (1992); Gonzales
v. Macaraig, 191 SCRA 452 (1990); Tolentino v. Comelec, 41 SCRA
702 (1971); Tatad v. Garcia, G.R. No. 114222, April 16, 1995
(Mendoza, J., concurring))
Petitioners do not have the same kind of interest that these various
litigants have. Petitioners assert an interest as taxpayers, but they
do not meet the standing requirement for bringing taxpayer's suits
as set forth in Dumlao v. Comelec, 95 SCRA 392, 403 (1980), to wit:
While, concededly, the elections to be held
involve the expenditure of public
moneys, nowhere in their Petition do said
petitioners allege that their tax money is "being
extracted and spent in violation of specific
constitutional protections against abuses of
legislative power" (Flast v. Cohen, 392 U.S., 83
[1960]), or that there is a misapplication of such
funds by respondent COMELEC (see Pascual vs.
Secretary of Public Works, 110 Phil. 331 [1960]),
or that public money is being deflected to any
improper purpose. Neither do petitioners seek to
restrain respondent from wasting public funds
through the enforcement of an invalid or
unconstitutional law. (Philippine Constitution
Association vs. Mathay, 18 SCRA 300
[1966]), citing Philippine Constitution Association
vs. Gimenez, 15 SCRA 479 [1965]). Besides, the
institution of a taxpayer's suit, per se, is no
assurance of judicial review. As held by this Court
in Tan vs. Macapagal (43 SCRA 677 [1972]),
speaking through our present Chief Justice, this
Court is vested with discretion as to whether or
not a taxpayer's suit should be entertained.
(Emphasis added)
Petitioners' suit does not fall under any of these categories
of taxpayers' suits.
Neither do the other cases cited by petitioners support their
contention that taxpayers have standing to question government
contracts regardless of whether public funds are involved or not.
In Gonzales v. National Housing, Corp., 94 SCRA 786 (1979),
petitioner filed a taxpayer's suit seeking the annulment of a contract
between the NHC and a foreign corporation. The case was dismissed
by the trial court. The dismissal was affirmed by this Court on the
grounds of res judicata and pendency of a prejudicial question, thus
avoiding the question of petitioner's standing.
On the other hand, in Gonzales v. Raquiza, 180 SCRA 254 (1989),
petitioner sought the annulment of a contract made by the
government with a foreign corporation for the purchase of road
construction equipment. The question of standing was not
discussed, but even if it was, petitioner's standing could be sustained
because he was a minority stockholder of the Philippine National
Bank, which was one of the defendants in the case.
In the other case cited by petitioners, City Council of Cebu v. Cuizon,
47 SCRA 325 (1972), members of the city council were allowed to
sue to question the validity of a contract entered into by the city
government for the purchase of road construction equipment
because their contention was that the contract had been made
without their authority. In addition, as taxpayers they had an
interest in seeing to it that public funds were spent pursuant to an
appropriation made by law.
But, in the case at bar, there is an allegation that public funds are
being misapplied or misappropriated. The controlling doctrine is that
of Gonzales v. Marcos, 65 SCRA 624 (1975) where it was held that
funds raised from contributions for the benefit of the Cultural Center
of the Philippines were not public funds and petitioner had no
standing to bring a taxpayer's suit to question their disbursement by
the President of the Philippines.
Thus, petitioners' right to sue as taxpayers cannot be sustained.
Nor as concerned citizens can they bring this suit because no specific
injury suffered by them is alleged. As for the petitioners, who are
members of Congress, their right to sue as legislators cannot be
invoked because they do not complain of any infringement of their
rights as legislators.
Finally, in Valmonte v. PCSO, G.R. No. 78716, September 22, 1987,
we threw out a petition questioning another form of lottery
conducted by the PCSO on the ground that petitioner, who claimed
to be a "citizen, lawyer, taxpayer and father of three minor
children," had no direct and personal interest in the lottery. We said:
"He must be able to show, not only that the law is invalid, but also
that he has sustained or is in immediate danger of sustaining some
direct injury as a result of its enforcement, and not merely that he
suffers thereby in some indefinite way. It must appear that the
person complaining has been or is about to be denied some right or
140
privilege to which he is lawfully entitled or that he is about to be
subjected to some burdens or penalties by reason of the statute
complained of." In the case at bar, petitioners have not shown why,
unlike petitioner in the Valmonte case, they should be accorded
standing to bring this suit.
The case of Oposa v. Factoran, Jr. 224 SCRA 792 (1993) is different.
Citizens' standing to bring a suit seeking the cancellation of timber
licenses was sustained in that case because the Court considered
Art. II, §16 a right-conferring provision which can be enforced in the
courts. That provision states:
The State shall protect and advance the right of
the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature.
(Emphasis)
In contrast, the policies and principles invoked by
petitioners in this case do not permit of such
categorization.
Indeed, as already stated, petitioners' opposition is not really to the
validity of the ELA but to lotteries which they regard to be immoral.
This is not, however, a legal issue, but a policy matter for Congress
to decide and Congress has permitted lotteries for charity.
Nevertheless, although we have concluded that petitioners do not
have standing, we have not stopped there and dismissed their case.
For in the view we take, whether a party has a cause of action and,
therefore, is a real party in interest or one with standing to raise a
constitutional question must turn on whether he has a right which
has been violated. For this reason the Court has not ducked the
substantive issues raised by petitioners.
II. R.A. No. 1169, as amended by B.P No . 42, states:
§1. The Philippine Charity Sweepstakes Office. —
The Philippine Charity Sweepstakes Office,
hereinafter designated the Office, shall be the
principal government agency for raising and
providing for funds for health programs, medical
assistance and services and charities of national
character, and as such shall have the general
powers conferred in section thirteen of Act
Numbered One Thousand Four Hundred Fifty-
Nine, as amended, and shall have the authority:
A. To hold and conduct charity sweepstakes
races, lotteries and other similar activities, in
such frequency and manner, as shall be
determined, and subject to such rules and
regulations as shall be promulgated by the Board
of Directors.
B. Subject to the approval of the Minister of
Human Settlements, to engage in health and
welfare-related investments, programs, projects
and activities which may be profit-oriented, by
itself or in collaboration, association or joint
venture with any person, association, company
or entity, whether domestic or foreign, except
for the activities mentioned in the preceding
paragraph (A), for the purpose of providing for
permanent and continuing sources of funds for
health programs, including the expansion of
existing ones, medical assistance and services,
and/or charitable grants: Provided, That such
investments will not compete with the private
sector in areas where investments are adequate
as may be determined by the National Economic
and Development Authority.
Petitioners insist on the ruling in the previous case that the PCSO
cannot hold and conduct charity sweepstakes, lotteries and other
similar activities in collaboration, association or joint venture with
any other party because of the clause "except for the activities
mentioned in the preceding paragraph (A)" in paragraph (B) of §1.
Petitioners contend that the ruling is the law of this case because
the parties are the same and the case involves the same issue, i.e.,
the meaning of this statutory provision.
The "law of the case" doctrine is inapplicable, because this case is
not a continuation of the first one. Petitioners also say that inquiry
into the same question as to the meaning of the statutory provision
is barred by the doctrine of res judicata. The general rule on the
"conclusiveness of judgment," however, is subject to the exception
that a question may be reopened if it is a legal question and the two
actions involve substantially different claims. This is generally
accepted in American law from which our Rules of Court was
adopted. (Montana v. United States, 440 U.S. 59 L.Ed.2d 147, 210
(1979); RESTATEMENT OF THE LAW 2d, ON JUDGMENTS, §28; P.
BATOR, D. MELTZER, P. MISHKIN AND D. SHAPIRO, THE FEDERAL
COURTS AND THE FEDERAL SYSTEM 1058, n.2 [3rd Ed., 1988]) There
is nothing in the record of this case to suggest that this exception is
inapplicable in this jurisdiction.
Indeed, the questions raised in this case are legal questions and the
claims involved are substantially different from those involved in the
prior case between the parties. As already stated, the ELA is
substantially different from the Contract of Lease declared void in
the first case.
Borrowing from the dissenting opinion of Justice Feliciano,
petitioners argue that the phrase "by itself or in collaboration,
association or joint venture with any other party" qualifies not only
§1 (B) but also §1 (A), because the exception clause ("except for the
activities mentioned in the preceding paragraph [A]") "operates, as it
were, as a renvoi clause which refers back to Section 1(A) and in this
manner avoids the necessity of simultaneously amending the text of
Section 1(A)."
This interpretation, however, fails to take into account not only the
location of the phrase in paragraph (B), when it should be in
paragraph (A) had that been the intention of the lawmaking
authority, but also the phrase "by itself." In other words, under
paragraph (B), the PCSO is prohibited from "engag[ing] in . . .
investments, programs, projects and activities" if these involve
sweepstakes races, lotteries and other similar activities not only "in
collaboration, association or joint venture" with any other party but
also "by itself." Obviously, this prohibition cannot apply when the
PCSO conducts these activities itself. Otherwise, what paragraph (A)
authorizes the PCSO to do, paragraph (B) would prohibit.
The fact is that the phrase in question does not qualify the authority
of the PCSO under paragraph (A), but rather the authority granted to
it by paragraph (B). The amendment of paragraph (B) by B.P. Blg. 42
was intended to enable the PCSO to engage in certain investments,
programs, projects and activities for the purpose of raising funds for
health programs and charity. That is why the law provides that such
investments by the PCSO should "not compete with the private
sector in areas where investments are adequate as may be
determined by the National Economic and Development Authority."
Justice Davide, then an Assemblyman, made a proposal which was
accepted, reflecting the understanding that the bill they were
discussing concerned the authority of the PCSO to invest in the
business of others. The following excerpt from the Record of the
Batasan Pambansa shows this to be the subject of the discussion:
MR. DAVIDE. May I introduce an amendment
after "adequate". The intention of the
amendment is not to leave the determination of
whether it is adequate or not to anybody. And
my amendment is to add after "adequate" the
words AS MAY BE DETERMINED BY THE
NATIONAL ECONOMIC AND DEVELOPMENT
AUTHORITY. As a mater of fact, it will strengthen
the authority to invest in these areas, provided
that the determination of whether the private
sector's activity is already adequate must be
141
 determined by the National Economic and
Development Authority.
Mr. ZAMORA. Mr. Speaker, the committee
accepts the proposed amendment.
MR. DAVIDE. Thank you, Mr. Speaker.
(2 RECORD OF THE BATASAN PAMBANSA, Sept.
6, 1979,
p. 1007)
Thus what the PCSO is prohibited from doing is from investing in a
business engaged in sweepstakes races, lotteries and other similar
activities. It is prohibited from doing so whether "in collaboration,
association or joint venture" with others or "by itself." This seems to
be the only possible interpretation of §1 (A) and (B) in light of its text
and its legislative history. That there is today no other entity
engaged in sweepstakes races, lotteries and the like does not detract
from the validity of this interpretation.
III. The Court noted in its decision that the provisions of the first
contract, which were considered to be features of a joint venture
agreement, had been removed in the new contract. For instance, §5
of the ELA provides that in the operation of the on-line lottery, the
PCSO must employ "its own competent and qualified personnel."
Petitioners claim, however, that the "contemporaneous
interpretation" of PGMC officials of this provision is otherwise. They
cite the testimony of Glen Barroga of the PGMC before a Senate
committee to the effect that under the ELA the PGMC would be
operating the lottery system "side by side" with PCSO personnel as
part of the transfer of technology.
Whether the transfer of technology would result in a violation of
PCSO's franchise should be determined by facts and not by what
some officials of the PGMC state by way of opinion. In the absence
of proof to the contrary, it must be presumed that §5 reflects the
true intention of the parties. Thus, Art. 1370 of the Civil Code says
that "If the terms of a contract are clear and leave no doubt upon
the intention of the contracting parties, the literal meaning of its
stipulations shall control." The intention of the parties must be
ascertained from their "contemporaneous and subsequent acts."
(Art. 1371; Atlantic Gulf Co. v. Insular Government, 10 Phil. 166
[1908]) It cannot simply be judged from what one of them says. On
the other hand, the claim of third parties, like petitioners, that the
clause on upgrading of equipment would enable the parties after a
while to change the contract and enter into something else in
violation of the law is mere speculation and cannot be a basis for
judging the validity of the contract.
IV. It is contended that §1 of E.O. No. 301 covers all types of
"contract[s] for public services or for furnishing of supplies, materials
and equipment to the government or to any of its branches,
agencies or instrumentalities" and not only contracts of purchase
and sale. Consequently, a lease of equipment, like the ELA, must be
submitted to public bidding in order to be valid. This contention is
based on two premises: (1) that §1 of E.O. No. 301 applies to any
contract whereby the government acquires title to or the use of the
equipment and (2) that the words "supplies," "materials," and
"equipment" are distinct from each other so that when an exception
in §1 speaks of "supplies," it cannot be construed to mean
"equipment."
Petitioners' contention will not bear analysis. For example, the term
"supplies" is used in paragraph (a), which provides that a contract
for the furnishing of "supplies" in order to meet an emergency is
exempt from public bidding. Unless "supplies" is construed to
include "equipment," however, the lease of heavy equipment
needed for rescue operations in case of a calamity will have to be
submitted to public bidding before it can be entered into by the
government.
In dissent Justice Feliciano says that in such a situation the
government can simply resort to expropriation, paying
compensation afterward. This is just like purchasing the equipment
through negotiation when the question is whether the purchase
should be by public bidding, not to mention the fact that the power
to expropriate may not be exercised when the government can very
well negotiate with private owners.
Indeed, there are fundamental difficulties in simultaneously
contending (1) that E.O. No. 301, §1 covers both contracts of sale
and lease agreements and (2) that the words "supplies,"
"materials" and "equipment" can not be interchanged. Thus, under
paragraph (b) of §1, public bidding is not required "whenever the
supplies are to be used in connection with a project or activity which
cannot be delayed without causing detriment to the public service."
Following petitioners' theory, there should be a public bidding
before the government can enter into a contract for the lease of
bulldozers and dredging equipment even if these are urgently
needed in areas ravaged by lahar because, first, lease contracts are
covered by the general rule and, second, the exception to public
bidding in paragraph (b) covers only "supplies" but not equipment.
To take still another example. Paragraph (d), which does away with
the requirement of public bidding "whenever the supplies under
procurement have been unsuccessfully placed on bid for at least two
consecutive times, either due to lack of bidders or the offers
received in each instance were exorbitant or nonconforming to
specifications." Again, following the theory of the petitioners, a
contract for the lease of equipment cannot be entered into even if
there are no bids because, first, lease contracts are governed by the
general rule on public bidding and, second, the exception to public
bidding in paragraph (d) applies only to contracts for the furnishing
of "supplies."
Other examples can be given to show the absurdity of interpreting
§1 as applicable to any contract for the furnishing of supplies,
materials and equipment and of considering the words "supplies,"
"materials" and "equipment" to be not interchangeable. Our ruling
that §1 of E.O. No. 301 does not cover the lease of equipment avoids
these fundamental difficulties and is supported by the text of §1,
which is entitled "Guidelines for Negotiated Contracts" and by the
fact that the only provisions of E.O. No. 301 on leases, namely, §§6
and 7, concern the lease of buildings by or to the government. Thus
the text of §1 reads:
§1. Guidelines for Negotiated Contracts. — Any
provision of law, decree, executive order or
other issuances to the contrary notwithstanding,
no contract for public services or for furnishing
supplies, materials and equipment to the
government or any of its branches, agencies or
instrumentalities shall be renewed or entered
into without public bidding, except under any of
the following situations:
a. Whenever the supplies are
urgently needed to meet an
emergency which may
involve the loss of, or danger
to, life and/or property;
b. Whenever the supplies are
to be used in connection
with a project or activity
which cannot be delayed
without causing detriment to
the public service;
c. Whenever the materials
are sold by an exclusive
distributor or manufacturer
who does not have
subdealers selling at lower
prices and for which no
suitable substitute can be
obtained elsewhere at more
142
 advantageous terms to the
government;
d. Whenever the supplies
under procurement have
been unsuccessfully placed
on bid for at least two
consecutive times, either due
to lack of bidders or the
offers received in each
instance were exhorbitant or
non-conforming to
specifications;
e. In cases where it is
apparent that the requisition
of the needed
supplies through negotiated
purchase is most
advantageous to the
government to be
determined by the
Department Head
concerned; and
f. Whenever the purchase is
made from an agency of the
government.
Indeed, the purpose for promulgating E.O. No. 301 was merely to
decentralize the system of reviewing negotiated contracts of
purchase for the furnishing of supplies, materials and equipment as
well as lease contracts of buildings. Theretofore, E.O. No. 298,
promulgated on August 12, 1940, required consultation with the
Secretary of Justice and the Department Head concerned and the
approval of the President of the Philippines before contracts for the
furnishing of supplies, materials and equipment could be made on a
negotiated basis, without public bidding. E.O. No. 301 changed this
by providing as follows:
§2. Jurisdiction over Negotiated Contracts. — In
line with the principles of decentralization and
accountability, negotiated contracts for public
services or for furnishing supplies, materials or
equipment may be entered into by the
department or agency head or the governing
board of the government-owned or controlled
corporation concerned, without need of prior
approval by higher authorities, subject to
availability of funds, compliance with the
standards or guidelines prescribed in Section 1
hereof, and to the audit jurisdiction of the
commission on Audit in accordance with existing
rules and regulations.
Negotiated contracts involving P2,000,000 up to
P10,000,000 shall be signed by the Secretary and
two other Undersecretaries.
xxx xxx xxx
§7. Jurisdiction Over Lease Contracts. — The
heads of agency intending to rent privately-
owned buildings or spaces for their use, or to
lease out government-owned buildings or spaces
for private use, shall have authority to determine
the reasonableness of the terms of the lease and
the rental rates thereof, and to enter into such
lease contracts without need of prior approval
by higher authorities, subject to compliance with
the uniform standards or guidelines established
pursuant to Section 6 hereof by the DPWH and
to the audit jurisdiction of COA or its duly
authorized representative in accordance with
existing rules and regulations.
In sum, E.O. No. 301 applies only to contracts for the purchase of
supplies, materials and equipment, and it was merely to change the
system of administrative review of emergency purchases, as
theretofore prescribed by E.O. No. 298, that E.O. No. 301 was issued
on July 26, 1987. Part B of this Executive Order applies to leases of
buildings, not of equipment, and therefore does not govern the
lease contract in this case. Even if it applies, it does not require
public bidding for entering into it.
Our holding that E.O. No. 301, §1 applies only to contracts of
purchase and sale is conformable to P.D. No. 526, promulgated on
August 2, 1974, which is in pari materia. P.D. No. 526 requires local
governments to hold public bidding in the "procurement of
supplies." By specifying "procurement of supplies" and excepting
from the general rule "purchases" when made under certain
circumstances, P.D. No. 526, §12 indicates quite clearly that it
applies only to contracts of purchase and sale. This provision reads:
§12. Procurement without public bidding. —
Procurement of supplies may be made without
the benefit of public bidding in the following
modes:
(1) Personal canvass of responsible merchants;
(2) Emergency purchases;
(3) Direct purchases from manufacturers or
exclusive distributors;
(4) Thru the Bureau of Supply Coordination; and
(5) Purchase from other government entities or
foreign governments.
Sec. 3 broadly defines the term "supplies" as including —
everything except real
estate, which may be needed
in the transaction of public
business, or in the pursuit of
any undertaking, project, or
activity, whether of the
nature of equipment,
furniture, stationery,
materials for construction, or
personal property of any
sort, including non-personal
or contractual services such
as the repair and
maintenance of equipment
and furniture, as well as
trucking, hauling, janitorial,
security, and related or
analogous services.
Thus, the texts of both E.O. No. 301, §1 and of P.D. No. 526, §§1 and
12, make it clear that only contracts for the purchase and sale of
supplies, materials and equipment are contemplated by the rule
concerning public biddings.
Finally, it is contended that equipment leases are attractive and
commonly used in place of contracts of purchase and sale because
of "multifarious credit and tax constraints" and therefore could not
have been left out from the requirement of public bidding.
Obviously these credit and tax constraints can have no attraction to
the government when considering the advantages of sale over lease
of equipment. The fact that lease contracts are in common use is not
a reason for implying that the rule on public bidding applies not only
to government purchases but also to lease contracts. For the fact
143
also is that the government leases equipment, such as copying
machines, personal computers and the like, without going through
public bidding.

FOR THE FOREGOING REASONS, the motion for reconsideration of

petitioners is DENIED with finality.

SO ORDERED.

144
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 131124 March 29, 1999
OSMUNDO G. UMALI, petitioner,
vs.
EXECUTIVE SECRETARY TEOFISTO T. GUINGONA JR., CHAIRMAN,
PRESIDENTIAL COMMISSION AGAINST GRAFT AND CORRUPTION,
THE SECRETARY OF FINANCE, AND THE COMMISSIONER OF
INTERNAL REVENUE, respondents.
RESOLUTION
PURISIMA, J.:
At bar is a petition for review under Rule 45 of the Revised Rules of
Court assailing the decision of the Court of Appeals dated April 8,
1997, which set aside the Amended Decision dated December 13,
1995 of the Regional Trial Court of Makati in Civil Case No. 94-3078,
and dismissed the petition for Certiorari, Prohibition and Injunction
brought by petitioner against the respondents.
The antecedent facts leading to the filing of the present are as
follows:
On October 27, 1993, petitioner Osmundo Umali was appointed
Regional Director of the Bureau of Internal Revenue by the then
President Fidel V. Ramos. He was assigned in Manila, from
November 29, 1993 to March 15, 1994, and in Makati, from March
16, 1994 to August 4, 1994.
On August 1, 1994, President Ramos received a confidential
memorandum against the petitioner for alleged violations of internal
revenue laws, rules and regulations during his incumbency as
Regional Director, more particularly the following malfeasance,
misfeasance and nonfeasance, to wit:
A. Issuance of Letters of
Authority (LA's) to
investigate taxpayers despite
the ban on investigations as
ordered in Revenue
Memorandum Order No. 31-
93. In numerous cases,
revenue officers whose
names appeared in the LA's
as investigating officers were
unaware that such LA's were
issued to them. He issued
LA's to favored revenue
examiners such as his
Secretary, Natividad
Feliciano;
B. Termination of tax cases
without the submission of
the required investigation
reports, thus exempting the
same from examination and
review;
C. Terminated cases with
reports were submitted
directly to and approved by
respondent Umali without
being reviewed by the
Assistant Division, thus
eliminating the check and
balance mechanism designed
to guard against abuses or
errors;
D. Unlawful issuance of LA's
to taxpayers who were
thereafter convinced to avail
of the BIR's compromise and
abatement program under
RMO's 45093 and 54-93, for
which the taxpayers were
made, for a monetary
consideration, to pay smaller
amounts in lieu of being
investigated;
E. Despite the devolution of
the authority to issue LA's
from Regional Directors to
the Revenue District Officers
under RMO 26-94, dated
April 14, 1994, respondent
Umali continued to issue
antedated LA's in absolute
defiance of the aforesaid
issuance, using old LA's
requisitioned by him when
still Regional Director of San
Pablo Region. In one
instance, he issued a
termination letter bearing
the San Pablo Region
letterhead even when he was
already Makati Regional
Director; and
F. In his attempt to cover up
his tracks and to muddle the
real issue of his violations of
the ban in the issuance of
LA's and basic revenue rules
and regulations, respondent
enlisted the support of other
regional directors for the
purposes of questioning
particularly the
devolution/centralization of
the functions of the Bureau. 1
On August 2, 1994, upon receipt of the said confidential
memorandum, former President Ramos authorized the issuance of
an Order for the preventive suspension of Umali and immediately
referred the Complaint against the latter to the Presidential
Commission on Anti-Graft and Corruption (PCAGC), for investigation.
Petitioner was duly informed of the charges against him. In its Order,
dated August 9, 1994, the PCAGC directed him to send in his answer,
copies of his Statement of Assets, and Liabilities for the past three
years (3), and Personal Data Sheet. Initial hearing was set on August
25, 1994, at 2:00 p.m., at the PCAGC Office. On August 23, the
petitioner filed his required Answer.
On August 25, 1994, petitioner appeared with his lawyer. Atty.
Bienvenido Santiago before the PCAGC. Counsel for the
Commissioner of Internal Revenue submitted a Progress Report,
dated August 24, 1994, on the audit conducted on the petitioner. As
prayed for, petitioner and his lawyer were granted five (5) days to
file a supplemental answer.
The hearing was reset to August 30, 1994, during which the parties
were given a chance to ask clarificatory questions. Petitioner and his
counsel did not ask any question on the genuineness and
145
authenticity of the documents attached as annexes to the
Complaint. Thereafter, the parties agreed to submit the case for
resolution upon the presentation of their respective memoranda.
Petitioner filed his Memorandum on September 6, 1994 while the
BIR sent in its Memorandum on the following day.
After evaluating the evidence on record, the PCAGC issued its
Resolution of September 23, 1994, finding a prima facie evidence to
support six (6) of the twelve (12) charges against petitioner, to wit:
1. On the First Charge —
Respondent issued 176
Letters of Authority in gross
disobedience to and in
violation of RMOs 31-93 and
27-94.
xxx xxx xxx
3. On the Third Charge —
There is sufficient evidence
of a prima facie case of
falsification of official
documents as defined in Art.
171, par. 2 and 4 of the
Revised Penal Code, against
the respondent for the
issuance of 9 LA's and who
did not investigate the tax
cases, each LA being a
separate offense.
xxx xxx xxx
7. On the Seventh Charge —
There is sufficient evidence
of a prima facie case of
falsification of official
documents against
respondent for antedating
the four LA's cited in the
charge, each LA constituting
a separate offense, under
Art. 171 (4) of the Revised
Penal Code.
8. On the Ninth (sic) Charge
— There is sufficient
evidence to support a prima
facie case of falsification of
an official document under
Art. 171 (4) of the Revised
Penal Code against the
respondent in the tax case of
Richfield International Corp.,
Inc. for indicating a false date
on the letter of termination
he issued to the company.
There is, however,
insufficient evidence against
respondent in the other tax
case of Jayson Auto Supply
Co.
9. On the Ninth Charge —
There is sufficient evidence
of a prima facie case of
falsification of official
documents in each of the
two cases cited in his charge,
under the provisions of Art.
171 (4) of the Revised Penal
Code, as the dates of
Termination Letters were
false.
10. On the Tenth Charge —
Respondent, by his own
admission, violated RMO 36-
87 requiring turn over of all
properties and forms to his
successor upon transfer as
head of office, and RMO 27-
94 requiring the surrender of
all unused old forms of
Letters of Authority. The
Commission noted the
defiant attitude of
respondent, as expressed in
his admission, towards valid
and legal orders of the BIR,
and his propensity to defy
and ignore such orders and
regulations. 2
xxx xxx xxx
On October 6, 1994, acting upon the recommendation of the PCAGC,
then President Ramos issued Administrative Order No. 152
dismissing petitioner from the service, with forfeiture of retirement
and all benefits under the law.
On October 24, 1994, the petitioner moved for reconsideration of
his dismissal but the Office of the President denied the motion for
reconsideration on November 28, 1994.
On December 1, 1994, petitioner brought a Petition for Certiorari,
Prohibition and Injunction, docketed as Civil Case No. 94-3079
before the Regional Trial Court of Makati, alleging, among others:
I. That the petitioner was
suspended and dismissed
from the service in violation
of his constitutional right to
due process of law; and
II. That the constitutional
right of the petitioner to
security of tenure was
violated by the respondents.
The case was raffled off to Branch 133 of the Regional Trial Court in
Makati, which issued on December 2, 1994, a Temporary Restraining
Order, enjoining the respondents and/or their representatives from
enforcing Administrative Order No. 152, and directing the parties to
observe the status quo until further orders from the said Court.
On December 23, 1994, the said Regional Trial Court dismissed the
petition. On January 10, 1995, the petitioner presented a motion for
reconsideration, this time, theorizing that the Presidential
Commission on Anti-Graft and Corruption is an unconstitutional
office without jurisdiction to conduct the investigation against him.
Respondents submitted their Opposition/Comment to the Motion
for Reconsideration. Then, the petitioner filed a Motion to Inhibit
Judge Inoturan on the ground that the latter was formerly a Solicitor
in the Office of the Solicitor General and could not be expected to
decide the case with utmost impartiality.
The case was then re-raffled to Hon. Teofilo L. Guadiz, Jr. who, on
December 13, 1995, handed down an Amended Decision, granting
the petition and practically reversing the original Decision.
Not satisfied with the Amended Decision of Judge Guadiz, Jr., the
respondents appealed therefrom to the Court of Appeals.
146
On April 8, 1997, the Ninth Division of the Court of
Appeals 3 promulgated its decision, reversing the Amended Decision
of the trial court of origin, and dismissing Civil Case No. 94-3079.
Petitioner's motion for reconsideration met the same fate. It was
denied on October 28, 1997.
Undaunted, petitioner found his way to this Court via the petition
under scrutiny.
In the interim that the administrative and civil cases against the
petitioner were pending, the criminal aspect of such cases was
referred to the Office of the Ombudsman for investigation.
On July 25, 1995, after conducting the investigation, Ombudsman
Investigators Merba Waga and Arnulfo Pelagio issued a Resolution
finding a probable cause and recommending the institution in the
courts of proper jurisdiction criminal cases for Falsification of Public
Documents (13 counts) and Open Disobedience (2 counts) against
the petitioner.
However, acting upon petitioner's motion for reconsideration
Special Prosecution Officer II Lemuel M. De Guzman set aside the
said Resolution of July 25, 1995, and in lieu thereof, dismissed the
charges against petitioner, in the Order dated November 5, 1996,
which was approved by Ombudsman Aniano Desierto. Accordingly,
all the Informations against the petitioner previously sent to the
Office of the City Prosecutor, were recalled.
On August 10, 1998, Commissioner Beethoven L. Rualo of the
Bureau of Internal Revenue sent a letter to the Solicitor General
informing the latter that "the Bureau of Internal Revenue is no
longer interested in pursuing the case against Atty. Osmundo Umali"
on the basis of the comment and recommendation submitted by the
Legal Department of the BIR. 4
Petitioner raised the issues:
1. WHETHER
ADMINISTRATIVE ORDER NO.
152 VIOLATED PETITIONER'S
RIGHT TO SECURITY OF
TENURE;
2. WHETHER PETITIONER
WAS DENIED DUE PROCESS
IN THE ISSUANCE OF
ADMINISTRATIVE ORDER NO.
152;
3. WHETHER THE PCAGC IS A
VALIDLY CONSTITUTED
GOVERNMENT AGENCY AND
WHETHER PETITIONER CAN
RAISE THE ISSUE OF ITS
CONSTITUTIONALITY
BELATEDLY IN ITS MOTION
FOR RECONSIDERATION OF
THE TRIAL COURT'S
DECISION; AND
5. WHETHER IN THE LIGHT
OF THE OMBUDSMAN
RESOLUTION DISMISSING
THE CHARGES AGAINST
PETITIONER, THERE IS STILL
BASIS FOR PETITIONER'S
DISMISSAL WITH
FORFEITURE OF BENEFITS AS
RULED IN ADMINISTRATIVE
ORDER NO. 152.
Petitioner contends that as Regional Director of the Bureau of
Internal Revenue he belongs to the Career Executive Service.
Although a Presidential appointee under the direct authority of the
President to discipline, he is a career executive service officer (CESO)
with tenurial protection, who can only be removed for cause. In
support of this theory, petitioner cited the case of Larin vs. Executive
Secretary 5 where the Court held:
. . . petitioner is a presidential appointee who
belongs to the career service of the Civil Service.
Being a presidential appointee, he comes under
the direct disciplining authority of the President.
This is in line with the settled principle that the
"power to remove is inherent in the power to
appoint" conferred to the President by Section
16, Article VII of the Constitution. . . . This power
of removal, however, is not an absolute one
which accepts no reservation. It must be pointed
out that petitioner is a career service officer. . . .
Specifically, Section 36 of P.D. No. 807, as
amended, otherwise known as Civil Service
Decree of the Philippines, is emphatic that career
service officers and employees who enjoy
security of tenure may be removed only for any
of the causes enumerated in said law. In other
words, the fact that petitioner is a presidential
appointee does not give the appointing authority
the license to remove him at will or at his
pleasure for it is an admitted fact that he is
likewise a career service officer who under the
law is the recipient of tenurial protection, thus,
may only removed for cause and in accordance
with procedural due process.
Petitioner maintains that as a career executive service officer, he can
only be removed for cause and under the Administrative Code of
1987, 6 loss of confidence is not one of the legal causes or grounds
for removal. Consequently, his dismissal from office on the ground
of loss confidence violated his right to security of tenure, petitioner
theorized.
After a careful study, we are of the irresistible conclusion that the
Court of Appeals ruled correctly on the first three issues. To be sure,
petitioner was not denied the right to due process before the
PCAGC. Records show that the petitioner filed his answer and other
pleadings with respect to his alleged violation of internal revenue
laws and regulations, and he attended the hearings before the
investigatory body. It is thus decisively clear that his protestation of
non-observance of due process is devoid of any factual or legal basis.
Neither can it be said that there was a violation of what petitioner
asserts as his security of tenure. According to petitioner, as a
Regional Director of Bureau of Internal Revenue, he is CESO eligible
entitled to security of tenure. However, petitioner's claim of CESO
eligibility is anemic of evidentiary support. It was incumbent upon
him to prove that he is a CESO eligible but unfortunately, he failed to
adduce sufficient evidence on the matter. His failure to do so is fatal.
As regards the issue of constitutionality of the PCAGC, it was only
posed by petitioner in his motion for reconsideration before the
Regional Trial Court of Makati. It was certainly too late to raise for
the first time at such late stage of the proceedings below.
How about the fourth issue, whether in view of the Resolution of the
Ombudsman dismissing the charges against petitioner, there still
remains a basis for the latter's dismissal with forfeiture of benefits,
as directed in Administrative Order No. 152?
It is worthy to note that in the case under consideration, the
administrative action against the petitioner was taken prior to the
institution of the criminal case. The charges included in
Administrative Order No. 152 were based on the results of
investigation conducted by the PCAGC and not on the criminal
charges before the Ombudsman.
147
In sum, the petition is dismissable on the ground that the issues
posited by the petitioner do not constitute a valid legal basis for
overturning the finding and conclusion arrived at by the Court of
Appeals. However, taking into account the antecedent facts and
circumstances aforementioned, the Court, in the exercise of its
equity powers, has decided to consider the dismissal of the charges
against petitioner before the Ombudsman, the succinct and
unmistakable manifestation by the Commissioner of the Bureau of
Internal Revenue that his office is no longer interested in pursuing
the case, and the position taken by the Solicitor General, 7 that there
is no more basis for Administrative Order No. 152, as effective and
substantive supervening events that cannot be overlooked.

WHEREFORE, in light of the foregoing effective and substantive

supervening events, and in the exercise of its equity powers, the
Court hereby GRANTS the petition. Accordingly, Administrative
Order No. 152 is considered LIFTED, and petitioner can be allowed to
retire with full benefits. No pronouncement as to costs.

SO ORDERED.

148
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 108399 July 31, 1997
RAFAEL M. ALUNAN III, in his capacity as Secretary of the
Department of Interior and Local Government (DILG), the BOARD OF
ELECTION SUPERVISORS composed of Atty. RUBEN M. RAMIREZ,
Atty. RAFAELITO GARAYBLAS, and Atty. ENRIQUE C. ROA,
GUILLERMINA RUSTIA, in her capacity as Director of the Barangay
Bureau, City Treasurer Atty. ANTONIO ACEBEDO, Budget Officer
EUFEMIA DOMINGUEZ, all of the City Government of
Manila, petitioners,
vs.
ROBERT MIRASOL, NORMAN NOEL T. SANGUYA, ROBERT DE JOYA,
ARNEL R. LORENZO, MARY GRACE ARIAS, RAQUEL L. DOMINGUEZ,
LOURDES ASENCIO, FERDINAND ROXAS, MA. ALBERTINA RICAFORT,
and BALAIS M. LOURICH, and the HONORABLE WILFREDO D. REYES,
Presiding Judge of the Regional Trial Court, Branch 36, Metro
Manila, respondents.
MENDOZA, J.:
This is a petition for review on certiorari of the decision dated
January 19, 1993 of the Regional Trial Court of Manila (Branch
36), 1 nullifying an order of the Department of Interior and Local
Government (DILG), which in effect cancelled the general elections
for the Sangguniang Kabataan (SK) slated on December 4, 1992 in
the City of Manila, on the ground that the elections previously held
on May 26, 1990 served the purpose of the first elections for the SK
under the Local Government Code of 1991 (R.A. No. 7160).
Section 423 of the Code provides for a SK in every barangay, to be
composed of a chairman, seven (7) members, a secretary, and a
treasurer. Section 532(a) provides that the first elections for the SK
shall be held thirty (30) days after the next local elections. The Code
took effect on January 1, 1992.
The first local elections under the Code were held on May 11, 1992.
Accordingly, on August 27, 1992, the Commission on Elections issued
Resolution No. 2499, providing guidelines for the holding of the
general elections for the SK on September 30, 1992 The guidelines
placed the SK elections under the direct control and supervision of
the DILG, with the technical assistance of the COMELEC. 2 After two
postponements, the elections were finally scheduled on December
4, 1992.
Accordingly, registration in the six districts of Manila was conducted.
A total of 152,363 youngsters, aged 15 to 21 years old, registered,
15,749 of them filing certificates of candidacies. The City Council
passed the necessary appropriations for the elections.
On September 18, 1992, however, the DILG, through then Secretary
Rafael M. Alunan III, issued a letter-resolution "exemption" the City
of Manila from holding elections for the SK on the ground that the
elections previously held on May 26, 1990 were to be considered the
first under the newly-enacted Local Government Code. The DILG
acted on a letter of Joshue R. Santiago, acting president of the KB
City Federation of Manila and a member of City Council of Manila,
which called attention to the fact that in the City of Manila elections
for the Kabataang Barangay (the precursor of the Sangguniang
Kabataan) had previously been held on May 26, 1990. In its
resolution, the DILG stated:
[A] close examination of . . . RA 7160 would readily reveal
the intention of the legislature to exempt from the
forthcoming Sangguniang Kabataan elections those
kabataang barangay chapters which may have conducted
their elections within the period of January 1, 1988 and
January 1, 1992 under BP 337. Manifestly the term of
office of those elected KB officials have been
correspondingly extended to coincide with the term of
office of those who may be elected under RA 7160.
On November 27, 1992 private respondents, claiming to represent
the 24,000 members of the Katipunan ng Kabataan, filed a petition
for certiorari and mandamus in the RTC of Manila to set aside the
resolution of the DILG. They argued that petitioner Secretary of
Interior and Local Government had no power to amend the
resolutions of the COMELEC calling for general elections for SKs and
that the DILG resolution in question denied them the equal
protection of the laws.
On November 27, 1992, the trial court, through Executive Judge,
now COMELEC Chairman, Bernardo P. Pardo, issued an injunction,
ordering petitioners "to desist from implementing the order of the
respondent Secretary dated September 18, 1992, . . . until further
orders of the Court." On the same day, he ordered petitioners "to
perform the specified pre-election activities in order to implement
Resolution No. 2499 dated August 27, 1992 of the Commission on
Elections providing for the holding of a general election of the
Sangguniang Kabataan on December 4, 1992 simultaneously in every
barangay throughout the country."
The case was subsequently reraffled to Branch 36 of the same court.
On January 19, 1993, the new judge, Hon. Wilfredo D. Reyes,
rendered a decision, holding that (1) the DILG had no power to
"exempt" the City of Manila from holding SK elections on December
4, 1992 because under Art. IX, C, §2(1) of the Constitution the power
to enforce and administer "all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum, and recall"
is vested solely in the COMELEC; (2) the COMELEC had already in
effect determined that there had been no previous elections for KB
by calling for general elections for SK officers in every barangay
without exception; and (3) the "exemption" of the City of Manila
was violative of the equal protection clause of the Constitution
because, according to the DILG's records, in 5,000 barangays KB
elections were held between January 1, 1988 and January 1, 1992
but only in the City of Manila, where there were 897 barangays, was
there no elections held on December 4, 1992.
Petitioners sought this review on certiorari. They insist that the City
of Manila, having already conducted elections for the KB on May 26,
1990, was exempted from holding elections on December 4, 1992. In
support of their contention, they cite §532(d) of the Local
Government Code of 1991, which provides that:
All seats reserved for the pederasyon ng mga sangguniang
kabataan in the different sangguniang shall be deemed
vacant until such time that the sangguniang kabataan
chairmen shall have been elected and the respective
pederasyon presidents have been selected: Provided, That,
elections for the kabataang barangay conducted under
Batas Pambansa Blg. 337 at any time between January 1,
1988 and January 1, 1992 shall be considered as the first
elections provided for in this Code. The term of office of the
kabataang barangay officials elected within the said period
shall be extended correspondingly to coincide with the
term of office of those elected under this Code. (emphasis
added)
They maintain that the Secretary of the DILG has authority to
determine whether the City of Manila came within the exception
clause of §532(d) so as to be exempt from holding the elections on
December 4, 1992.
The preliminary question is whether the holding of the second
elections on May 13, 1996 3 rendered this case moot and academic.
There are two questions raised in this case. The first is whether the
Secretary of Interior and Local Government can "exempt" a local
government unit from holding elections for SK officers on December
149
4, 1992 and the second is whether the COMELEC can provide that
"the Department of Interior and Local Government shall have direct
control and supervision over the election of sangguniang kabataan
with the technical assistance by the Commission on Elections."
We hold that this case is not moot and that it is in fact necessary to
decide the issues raised by the parties. For one thing, doubt may be
cast on the validity of the acts of those elected in the May 26, 1990
KB elections in Manila because this Court enjoined the enforcement
of the decision of the trial court and these officers continued in
office until May 13, 1996. For another, this case comes within the
rule that courts will decide a question otherwise moot and academic
if it is "capable of repetition, yet evading review." 4 For the question
whether the COMELEC can validly vest in the DILG the control and
supervision of SK elections is likely to arise in connection with every
SK election and yet the question may not be decided before the date
of such elections.
In the Southern Pacific Terminal case, where the rule was first
articulated, appellants were ordered by the Interstate Commerce
Commission to cease and desist from granting a shipper what the
ICC perceived to be preferences and advantages with respect to
wharfage charges. The cease and desist order was for a period of
about two years, from September 1, 1908 (subsequently extended
to November 15), but the U.S. Supreme Court had not been able to
hand down its decision by the time the cease and desist order
expired. The case was decided only on February 20, 1911, more than
two years after the order had expired. Hence, it was contended that
the case had thereby become moot and the appeal should be
dismissed. In rejecting this contention, the Court held:
The question involved in the orders of the Interstate
Commerce Commission are usually continuing (as are
manifestly those in the case at bar), and these
considerations ought not to be, as they might be,
defeated, by short-term orders, capable of repetition, yet
evading review, and at one time the government, and at
another time the carriers, have their rights determined by
the Commission without a chance of redress. 5
In Roe v. Wade, 6 petitioner, a pregnant woman, brought suit in 1970
challenging anti-abortion statutes of Texas and Georgia on the
ground that she had a constitutional right to terminate her
pregnancy at least within the first trimester. The case was not
decided until 1973 when she was no longer pregnant. But the U.S.
Supreme Court refused to dismiss the case as moot. It was
explained: "[W]hen, as here, pregnancy is a significant fact the
litigation, the normal 266-day human gestation period is so short
that the pregnancy will come to term before the usual appellate
process is complete. If that termination makes a case moot,
pregnancy litigation seldom will survive. Our laws should not be that
rigid. Pregnancy provides a classic justification for a conclusion of
nonmootness. It truly could be 'capable of repetition, yet evading
review.'" 7
We thus reach the merits of the questions raised in this case. The
first question is whether then DILG Secretary Rafael M. Alunan III
had authority to determine whether under §532(d) of the Local
Government Code, the City of Manila was required to hold its first
elections for SK. As already stated, petitioners sustain the affirmative
side of the proposition. On the other hand, respondents argue that
this is a power which Art. IX, C, §2(1) of the Constitution vests in the
COMELEC. Respondents further argue that, by mandating that
elections for the SK be held on December 4, 1992 "in every
barangay," the COMELEC in effect determined that there had been
no elections for the KB previously held in the City of Manila.
We find the petition to be meritorious.
First. As already stated, by §4 of Resolution No. 2499, the COMELEC
placed the SK elections under the direct control and supervision of
the DILG. Contrary to respondents' contention, this did not
contravene Art. IX, C, §2(1) of the Constitution which provides that
the COMELEC shall have the power to "enforce and administer all
laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall." Elections for SK
officers are not subject to the supervision of the COMELEC in the
same way that, as we have recently held, contests involving
elections of SK officials do not fall within the jurisdiction of the
COMELEC. In Mercado v. Board of Election Supervisors, 8 it was
contended that
COMELEC Resolution No. 2499 is null and void because: (a)
it prescribes a separate set of rules for the election of the
SK Chairman different from and inconsistent with that set
forth in the Omnibus Election Code, thereby contravening
Section 2, Article 1 of the said Code which explicitly
provides that "it shall govern all elections of public
officers", and, (b) it constitutes a total, absolute, and
complete abdication by the COMELEC of its
constitutionally and statutorily mandated duty to enforce
and administer all election laws as provided for in Section
2(1), Article IX-C of the Constitution; Section 52, Article VIII
of the Omnibus Election Code; and Section 2, Chapter 1,
Subtitle C, Title 1, Book V of the 1987 Administrative
Code. 9
Rejecting this contention, this Court, through Justice Davide, held:
Section 252 of the Omnibus Election Code and that portion
of paragraph (2), Section 2, Article IX-C of the Constitution
on the COMELEC's exclusive appellate jurisdiction over
contest involving elective barangay officials refer to the
elective barangay officials under the pertinent laws in
force at the time the Omnibus Election Code was enacted
and upon the ratification of the Constitution. That law was
B.P. Blg. 337, otherwise known as the Local Government
Code, and the elective barangay officials referred to were
the punong barangay and the six sangguniang bayan
members. They were to be elected by those qualified to
exercise the right of suffrage. They are also the same
officers referred to by the provisions of the Omnibus
Election Code of the Philippines on election of barangay
officials. Metropolitan and municipal trial courts had
exclusive original jurisdiction over contests relating to their
election. The decisions of these courts were appealable to
the Regional Trial Courts.
xxx xxx xxx
In the light of the foregoing, it is indisputable that contests
involving elections of SK (formerly KB) officials do not fall
within Section 252 of the Omnibus Election Code and
paragraph 2, Section 2, Article IX-C of the Constitution and
that no law in effect prior to the ratification of the
Constitution had made the SK chairman an elective
barangay officials. His being an ex-officio member of the
sangguniang barangay does not make him one for the law
specifically provides who are its elective members, viz., the
punong barangay and the seven regular sangguniang
barangay members who are elected at large by those who
are qualified to exercise the right of suffrage under Article
V of the Constitution and who are duly registered voters of
the barangay. 10
The choice of the DILG for the task in question was appropriate and
was in line with the legislative policy evident in several statutes.
Thus, P.D. No. 684 (April 15, 1975), in creating Kabataang Barangays
in every barangay throughout the country, provided in §6 that the
"Secretary of Local Government and Community Development shall
promulgate such rules and regulations as may be deemed necessary
to effectively implement the provisions of this Decree." Again, in
1985 Proclamation No. 2421 of the President of the Philippines, in
calling for the general elections of the Kabataang Barangay on July
13-14, 1985, tasked the then Ministry of Local Government, the
Ministry of Education, Culture and Sports, and the Commission on
Elections to assist the Kabataang Barangay in the conduct of the
elections. On the other hand, in a Memorandum Circular dated
March 7, 1988, President Corazon C. Aquino directed the Secretary
of Local Government to issue the necessary rules and regulations for
150
effecting the representation of the Kabataang Barangay, among
other sectors, in the legislative bodies of the local government units.
The role of the COMELEC in the 1992 elections for SK officers was by
no means inconsequential. DILG supervision was to be exercised
within the framework of detailed and comprehensive rules
embodied in Resolution No. 2499 of the COMELEC. What was left to
the DILG to perform was the enforcement of the rules.
Second. It is contended that, in its resolution in question, the
COMELEC did not name the barangays which, because they had
conducted kabataang barangay elections between January 1, 1988
and January 1, 1992, were not included in the SK elections to be held
on December 4, 1992. That these barangays were precisely to be
determined by the DILG is, however, fairly inferable from the
authority given to the DILG to supervise the conduct of the elections.
Since §532(d) provided for kabataang barangay officials whose term
of office was extended beyond 1992, the authority to supervise the
conduct of elections in that year must necessarily be deemed to
include the authority to determine which kabataang barangay would
not be included in the 1992 elections.
The authority granted was nothing more than the ascertainment of a
fact, namely, whether between January 1, 1988 and January 1, 1992
elections had been held in a given kabataang barangay. If elections
had been conducted, then no new elections had to be held on
December 4, 1992 since by virtue of §532(d) the term of office of the
kabataang barangay officials so elected was "extended
correspondingly to coincide with the term of office of those elected
under [the Local Government Code of 1991]." In doing this, the
Secretary of Interior and Local Government was to act merely as the
agent of the legislative department, to determine and declare the
event upon which its expressed will was to take effect. 11 There was
no undue delegation of legislative power but only of the discretion
as to the execution of a law. That this is constitutionally permissible
is the teaching of our cases. 12
Third. Respondents claim, however, that the May 26, 1990 KB
elections in Manila were void because (a) they were called at the
instance of then Mayor Gemiliano C. Lopez who did not have
authority to do so and (b) it was not held under COMELEC
supervision.
The 1990 elections for the Kabataang Barangay were called by then
Manila Mayor Gemiliano C. Lopez, Jr., who in his Executive Order No.
21 dated April 25, 1990 stated:
WHEREAS, the Kabataang Barangay as an organization
provided for under Batas Pambansa Bilang 337, has been
practically dormant since the advent of the present
national administration;
WHEREAS, there is an urgent need to involve the youth in
the affairs and undertaking of the government to ensure
the participation of all sectors of our population in the task
of nation building;
WHEREAS, the last elections for the Kabataang Barangay
officers were held in November 1985 yet, which is over
their three years term of office;
WHEREAS, most of the present crop of KB officers are way
past the age limit provided for under the law;
xxx xxx xxx
The elections were actually held on May 26, 1990 in the 897
barangays of Manila. Later, on June 30, 1990, KB City Federation
elections were conducted.
It was precisely to foreclose any question regarding the validity of KB
elections held in the aftermath of the EDSA revolution and upon the
effectivity of the new Local Government Code that the exception
clause of §532(d) was inserted. The proceedings of the Bicameral
Conference Committee which drafted the Code show the
following: 13
CHAIRMAN DE PEDRO: Isa-cite na lang ko ano iyong title o
chapter o section, ha!
HON. LINA: . . .
Page 436, lines 13 to 14 delete within eighteen months
prior to December 31, 1990, and in lieu thereof, insert
from 1988 up to the effectivity of the Code. The rationale. .
..
CHAIRMAN DE PEDRO: How should it be read?
HON. LINA: It will read as follows: "Provided however, that
the Local Government Units which have conducted
elections for the Kabataang Barangay as provided for, in
Batas Pambansa Bilang 337, up to the effectivity. . . ."
CHAIRMAN DE PEDRO: So, any deletion from the word
"within," ha, up to. . . .
HON. LINA: Remove the words, the phrase, "within
eighteen months prior to December 31, 1990, and insert
from 1988 up to the effectivity of this Code."
CHAIRMAN DE PEDRO: From?
HON. LINA: From 1988 up to the effectivity of this Code.
Kasi meron nang mga election, eh, na ginawa, eh.There are
five thousand barangays, based on the record of the DILG,
out of forty thousand, imaging that, na nag-conduct na ng
election nila based on the KB Constitution and By-Laws,
and they're sitting already, now if we do not recognize
that, mag[ka]karoon sila ng question.
CHAIRMAN DE PEDRO: Accepted, Mr. Chairman.
Section §532(d) may thus be deemed to be a curative law. Curative
laws, which in essence are retrospective in effect, are enacted to
validate acts done which otherwise would be invalid under existing
laws, by considering them as having complied with the existing laws.
Such laws are recognized in this jurisdiction. 14
Fourth. It is finally contended that the exemption of the barangays of
the City of Manila from the requirement to hold elections for SK
officers on December 4, 1992 would deny the youth voters in those
barangays of the equal protection of laws. Respondent claim that
only in barangays in the City of Manila, which then numbered 897,
were elections for SK not held in 1992 on the ground that between
January 1, 1988 and January 1, 1992 there had already been SK
elections held, when, according to petitioners' own evidence, during
that period, SK elections had actually been conducted in 5,000
barangays.
Whether this claim is true cannot be ascertained from the records of
this case. Merely showing that there were 5,000 barangays which
similarly held KB elections between January 1, 1988 and January 1,
1992 does not prove that despite that fact these same barangays
were permitted to hold elections on December 4, 1992. For one
thing, according to the Manila Bulletin issue of November 18, 1992
(p. 9), 568 barangays in the Province of Bulacan did not have SK
elections on December 4, 1992 either, because they already had
elections between January 1, 1988 and January 1, 1992. For another,
even assuming that only barangays in Manila were not permitted to
hold SK elections on December 4, 1992 while the rest of the 5,000
barangays were allowed even if KB elections had already been held
there before, this fact does not give the youth voters in the 897
Manila barangays ground for complaint because what the other
barangays did was contrary to law. There is no discrimination here.
151
In People v. Vera 15 this Court struck down the Probation Law
because it permitted unequal application of its benefits by making
its applicability depend on the decision of provincial governments to
appropriate or not to appropriate funds for the salaries of probation
officers, with the result that those not disposed to allow the benefits
of probations to be enjoyed by their inhabitants could simply omit to
provide for the salaries of probation officers. The difference
between that case and the one at bar lies in the fact that what youth
voters in the other barangays might have been allowed was not a
right which was denied to youth voters in Manila. If those barangays
were not entitled to have SK elections on December 4, 1992 but
nevertheless were allowed to have such elections, that fact did not
mean those in Manila should similarly have been allowed to conduct
elections on December 4, 1992 because the fact was that they
already had their own, just two years before on May 26, 1990.
Respondents' equal protection argument violates the dictum that
one wrong does not make another wrong right.

WHEREFORE, the decision of the Regional Trial Court of Manila,

Branch 36 is REVERSED and the case filed against petitioner by
private respondents is DISMISSED.

SO ORDERED.

Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,

Kapunan, Francisco, Hermosisima, Jr. and Panganiban, JJ., concur.

Narvasa, C.J. and Torres, Jr., J., are on leave.

Footnotes

1 Per Judge Wilfredo D. Reyes, Rollo, pp. 72-80.

2 Resolution No. 2499, §§2 and 4.

3 The second elections were held pursuant to

R.A. No. 7808, approved on September 2, 1994
which provided that "the regular elections for
the sangguniang kabataan shall be held on the
first Monday of May 1996: Provided, further.
That the succeeding regular elections for the
sangguniang kabataan shall be held every three
(3) years thereafter: Provided, finally, that the
national, special metropolitan, provincial, city,
and municipal federations of the sangguniang
kabataan shall conduct the election of their
respective officers thirty (30) days after the May
1996 sangguniang kabataan elections on dates to
be scheduled by the Commission on Elections."

4 Southern Pac. Terminal Co. v. ICC, 219 U.S. 498,

55 L.Ed. 310 (1911): Moore v. Ogilvie, 394 U.S.
814, 23 L.Ed.2d 1 (1969) (challenge to signature
requirement on nominating petitions, election
had been held before the U.S. Supreme Court
could decide case); Dunn v. Blumstein, 405 U.S.
330, 31 L.Ed.2d 274 (1972) (U.S. Supreme Court
decided merits of a challenge to

152
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 120193 March 6, 1996
LUIS MALALUAN, petitioner,
vs.
COMMISSION ON ELECTIONS and JOSEPH
EVANGELISTA, respondents.
HERMOSISIMA, JR., J.:p
Novel is the situation created by the decision of the Commission on
Elections which declared the winner in an election contest and
awarded damages, consisting of attorney's fees, actual expenses for
xerox copies, unearned salary and other emoluments for the period,
from March, 1994 to April, 1995, en masse denominated as actual
damages, notwithstanding the fact that the electoral controversy
had become moot and academic on account of the expiration of the
term of office of the Municipal Mayor of Kidapawan, North
Cotabato.
Before us is a petition for certiorari and prohibition, with a prayer for
the issuance of a temporary restraining order and writ of preliminary
injunction, seeking the review of the decision en banc 1 of the
Commission of Elections (COMELEC) denying the motion for
reconsideration of the decision 2 of its First Division, 3 which reversed
the decision 4 of the Regional Trial Court 5 in bthe election
case 6 involving the herein parties. While the Regional Trial Court had
found petitioner Luis Malaluan to be the winner of the elections for
the position of Municipal Mayor of Kidapawan, North Cotabato, the
COMELEC, on the contrary, found private respondent Joseph
Evangelista to be the rightful winner in said elections.
Petitioner Luis Malaluan and private respondent Joseph Evangelista
were both mayoralty candidates in the Municipality of Kidapawan,
North Cotabato, in the Synchronized National and Local Elections
held on May 11, 1992. Private respondent Joseph Evangelista was
proclaimed by the Municipal Board of Canvassers as the duly elected
Mayor for having garnered 10,498 votes as against petitioner's 9,792
votes. Evangelista was, thus, said to have a winning margin of 706
votes. But, on May 22, 1992, petitioner filed an election protest with
the Regional Trial Court contesting 64 out of the total 181 precincts
of the said municipality. The trial court declared petitioner as the
duly elected municipal mayor of Kidapawan, North Cotabato with a
plurality of 154 votes. Acting without precedent, the court found
private respondent liable not only for Malaluan's protest expenses
but also for moral and exemplary damages and attorney's fees. On
February 3, 1994, private respondent appealed the trial court
decision to the COMELEC.
Just a day thereafter that is, on February 4, 1994, petitioner filed a
motion for execution pending appeal. The motion was granted by
the trial court, in an order, dated March 8, 1994, after petitioner
posted a bond in the amount of P500,000.00. By virtue of said order,
petitioner assumed the office of Municipal Mayor of Kidapawan,
North Cotabato, and exercised the powers and functions of said
office. Such exercise was not for long, though. In the herein assailed
decision adverse to Malaluan's continued governance of the
Municipality of Kidapawan, North Cotabato, the First Division of the
Commission on Elections (COMELEC) ordered Malaluan to vacate the
office, said division having found and so declared private respondent
to be the duly elected Municipal Mayor of said municipality. The
COMELEC en banc affirmed said decision.
Malaluan filed this petition before us on May 31, 1995 as a
consequence.
It is significant to note that the term of office of the local officials
elected in the May, 1992 elections expired on June 30, 1995. This
petition, thus, has become moot and academic insofar as it concerns
petitioner's right to the mayoralty seat in his municipality 7 because
expiration of the term of office contested in the election protest has
the effect of rendering the same moot and academic. 8
When the appeal from a decision in an election case has already
become moot, the case being an election protest involving the office
of mayor the term of which had expired, the appeal is dismissible on
that ground, unless the rendering of a decision on the merits would
be of practical value. 9 This rule we established in the case of Yorac
vs.Magalona 10 which we dismissed because it had been mooted by
the expiration of the term of office of the Municipal Mayor of
Saravia, Negros Occidental. This was the object of contention
between the parties therein. The recent case of Atienza
vs.Commission on Elections, 11 however, squarely presented the
situation that is the exception to that rule.
Comparing the scenarios in those two cases, we explained:
Second, petitioner's citation of Yorac
vs. Magalona as authority for his main
proposition is grossly inappropriate and misses
the point in issue. The sole question in that case
centered on an election protest involving the
mayoralty post in Saravia, Negros Occidental in
the general elections of 1955, which was
rendered moot and academic by the expiration
of the term of office in December, 1959. It did
not involve a monetary award for damages and
other expenses incurred as a result of the
election protest. In response to the petitioner's
contention that the issues presented before the
court were novel and important and that the
appeal should not be dismissed, the Court held
— citing the same provision of the Rules of Court
upon which petitioner staunchly places reliance
— that a decision on the merits in the case
would have no practical value at all, and
forthwith dismissed the case for being moot.
That is not the case here. In contradistinction to
Yorac, a decision on the merits in the case at
bench would clearly have the practical value of
either sustaining the monetary award for
damages or relieving the private respondent
from having to pay the amount thus awarded. 12
Indeed, this petition appears now to be moot and academic because
the herein parties are contesting an elective post to which their right
to the office no longer exists. However, the question as to damages
remains ripe for adjudication. The COMELEC found petitioner liable
for attorney's fees, actual expenses for xerox copies, and unearned
salary and other emoluments from March, 1994 to April, 1995, en
masse denominated as actual damages, default in payment by
petitioner of which shall result in the collection of said amount from
the bond posted by petitioner on the occasion of the grant of his
motion for execution pending appeal in the trial court. Petitioner
naturally contests the propriety and legality of this award upon
private respondent on the ground that said damages have not been
alleged and proved during trial.
What looms large as the issue in this case is whether or not the
COMELEC gravely abused its discretion in awarding the aforecited
damages in favor of private respondent.
The Omnibus Election Code provides that "actual or compensatory
damages may be granted in all election contests or in quo
warranto proceedings in accordance with law." 13 COMELEC Rules of
Procedure provide that "in all election contests the Court may
adjudicate damages and attorney's fees as it may deem just and as
established by the evidence if the aggrieved party has included such
153
claims in his pleadings." 14 This appears to require only that the
judicial award of damages be just and that the same be borne out by
the pleadings and evidence The overriding requirement for a valid
and proper award of damages, it must be remembered, is that the
same is in accordance with law, specifically, the provisions of the
Civil Code pertinent to damages.
Article 2199 of the Civil Code mandates that "except as provided by
law or by stipulation, one is entitled to an adequate compensation
only for such pecuniary loss suffered by him as he has duly proved.
Such compensation is referred to as actual or compensatory
damages." The Civil Code further prescribes the proper setting for
allowance of actual or compensatory damages in the following
provisions:
Art. 2201. In contracts and quasi-contracts, the
damages for which the obligor who acted in
good faith is liable shall be those that are the
natural and probable consequences of the
breach of the obligation, and which the parties
have foreseen or could have reasonably foreseen
at the time the obligation was constituted.
In case of fraud, bad faith, malice or wanton
attitude, the obliger shall be responsible for all
damages which may be reasonably attributed to
the non-performance of the obligation.
Art. 2202. In crimes and quasi-delicts, the
defendant shall be liable for all damages which
are the natural and probable consequences of
the act or omission complained of. It is not
necessary that such damages have been
foreseen or could have reasonably been
foreseen by the defendant.
Considering that actual or compensatory damages are appropriate
only in breaches of obligations in cases of contracts and quasi-
contracts and on the occasion of crimes and quasi-delicts where the
defendant may be held liable for all damages the proximate cause of
which is the act or omission complained of, the monetary claim of a
party in an election case must necessarily be hinged on either a
contract or a quasi-contract or a tortious act or omission or a crime,
in order to effectively recover actual or compensatory damages. 15 In
the absence of any or all of these, "the claimant must be able to
point out a specific provision of law authorizing a money claim for
election protest expenses against the losing party" 16. For instance,
the claimant may cite any of the following provisions of the Civil
Code under the chapter on human relations, which provisions create
obligations not by contract, crime or negligence, but directly by law:
Art. 19. Every person must in the exercise of his
rights and in the performance of his duties, act
with justice, give everyone his due, and observe
honesty and good faith.
Art. 20. Every person who, contrary to law,
wilfully or negligently causes damage to another,
shall indemnify the latter for the same.
xxx xxx xxx
Art. 32. Any public officer or employee, or any
private individual, who directly or indirectly
obstructs, defeats, violates or in any manner
impedes or impairs any of the following rights
and liberties of another person shall be liable to
the latter for damages:
xxx xxx xxx
(5) Freedom of suffrage;
In any of the cases referred to in this article,
whether or not the defendant's act or omission
constitutes a criminal offense, the aggrieved
party has a right to commence an entirely
separate and distinct civil action for damages,
and for other relief. . . . 17
Claimed as part of the damages to which private respondent is
allegedly entitled to, is P169,456.00 constituting salary and other
emoluments from March, 1994 to April, 1995 that would have
accrued to him had there not been an execution of the trial court's
decision pending appeal therefrom in the COMELEC.
The long-standing rule in this jurisdiction is that notwithstanding his
subsequent ouster as a result of an election protest, an elective
official who has been proclaimed by the COMELEC as winner in an
electoral contest and who assumed office and entered into the
performance of the duties of that office, is entitled to the
compensation, emoluments and allowances legally provided for the
position. 18 We ratiocinated in the case of Rodriguez vs. Tan that:
This is as it should be. This is in keeping with the
ordinary course of events. This is simple justice.
The emolument must go to the person who
rendered the service unless the contrary is
provided. There is no averment in the complaint
that he is linked with any irregularity vitiating his
election. This is the policy and the rule that has
been followed consistently in this jurisdiction in
connection with positions held by persons who
had been elected thereto but were later ousted
as a result of an election protest. The right of the
persons elected to compensation during their
incumbency has always been recognized. We
cannot recall of any precedent wherein the
contrary rule has been upheld. 19
In his concurring opinion in the same case, however,
Justice Padilla equally stressed that, while the general rule
is that the ousted elective official is not obliged to
reimburse the emoluments of office that he had received
before his ouster, he would be liable for damages in case
he would be found responsible for any unlawful or tortious
acts in relation to his proclamation. We quote the
pertinent portion of that opinion for emphasis:
Nevertheless, if the defendant, directly or
indirectly, had committed unlawful or tortious
acts which led to and resulted in his
proclamation as senator-elect, when in truth and
in fact he was not so elected, he would be
answerable for damages. In that event the
salary, fees and emoluments received by or paid
to him during his illegal incumbency would be a
proper item of recoverable damage. 20
The criterion for a justifiable award of election protest
expenses and salaries and emoluments, thus, remains to
be the existence of a pertinent breach of obligations
arising from contracts or quasi-contracts, tortious acts,
crimes or a specific legal provision authorizing the money
claim in the context of election cases. Absent any of these,
we could not even begin to contemplate liability for
damages in election cases, except insofar as attorney's
fees are concerned, since the Civil Code enumerates the
specific instances when the same may be awarded by the
court.
Art. 2208. In the absence of stipulation,
attorney's fees and expenses of litigation, other
than judicial costs, cannot be recovered, except:
(1) When exemplary damages are awarded;
154
 (2) When the defendant's act or omission has
compelled the plaintiff to litigate with third
persons or to incur expenses to protect his
interest;
(3) In criminal cases of malicious prosecution
against the plaintiff;
(4) In case of a clearly unfounded civil action or
proceeding against the plaintiff;
(5) Where the defendant acted in gross and
evident bad faith in refusing to satisfy the
plaintiffs plainly valid, just and demandable
claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of
household helpers, laborers and skilled workers;
(8) In actions for indemnity under workmen's
compensation and employer's liability laws;
(9) In a separate civil action to recover civil
liability arising from a crime;
(10) When at least double judicial costs are
awarded;
(11) In any other case where the court deems it
just and equitable that attorney's fees and
expenses of litigation should be recovered. 21
Given the aforecited laws, and jurisprudence on the matter at issue,
let us now look into the basis of respondent COMELEC for awarding
actual damages to private respondent in the form of reimbursement
for attorney's fees, actual expenses for xerox copies, and salary and
other emoluments that should have accrued to him from March,
1994 to April, 1995 had the RTC not issued an order for execution
pending appeal.
The First Division of the COMELEC ruled on private respondent's
claim for actual or compensatory damages in this wise:
. . . under the present legal setting, it is more
difficult than in the past to secure an award of
actual or compensatory damages either against
the protestant or the protestee because of the
requirerments of the law.
In the instant case, however, We are disposed to
conclude that the election protest filed by the
protestant is clearly unfounded. As borne out by
the results of the appreciation of ballots
conducted by this Commission, apparently the
protest was filed in bad faith without sufficient
cause or has been filed for the sole purpose of
molesting the protestee-appellant for which he
incurred expenses. The erroneous ruling of the
Court which invalidated ballots which were
clearly valid added more injury to the protestee-
appellant. This would have been bearable since
he was able to perfect his appeal to this
Commission. The final blow, however, came
when the Court ordered the execution of
judgment pending appeal which, from all
indications, did not comply with the
requirements of Section 2, Rule 39 of the Rules
of Court. There was no good and special reason
at all to justify the execution of judgment
pending appeal because the protestee's winning
margin was 149 votes while that of the
protestant — after the Court declared him a
winner — was only a margin of 154 votes.
Clearly, the order of execution of judgment
pending appeal was issued with grave abuse of
discretion.
For these reasons, protestee-appellant seeks to recover the
following:
1. Actual damages representing attorney's fees
for the new counsel who handled the Appeal and
the Petition for Certiorari before the Court of
Appeals . . . P372,500.00
2. Actual expenses for xerox copying of
Appellants Brief and the annexes (14 copies at
P1.50 . . . P11,235.00
3. Actual expenses for xerox copying of ballots . .
. P3,919.20
4. Actual damages for loss of salary and other
emoluments since March 1994 as per attached
Certification issued by the Municipal Account of
Kidapawan . . . P96,832.00 (up to October 1994
only)
Under Article 2208 of the New Civil Code
attorney's fees and expenses of litigation can be
recovered (as actual damages) in the case of
clearly unfounded civil action or proceeding.
And, while the case of Eulogio Rodriguez,
Sr. vs. Carlos Tan (91 Phil. 724) disallowed
recovery of salaries and allowances (as damages)
from elected officials who were later ousted,
under the theory that persons elected has (sic) a
right to compensation during their incumbency,
the instant case is different. The protestee-
appellant was the one elected. He was ousted
not by final judgment bur by an order of
execution pending appeal which was groundless
and issued with grave abuse of discretion.
Protestant-appellee occupied the position in an
illegal manner as a usurper and, not having been
elected to the office, but merely installed
through a baseless court order, he certainly had
no right to the salaries and emoluments of the
office.
Actual damages in the form of reimbursement
for attorney's fees (P372,500.00), actual
expenses for xerox copies (P15,154.00),
unearned salary and other emoluments from
March 1994 to April 1995 or 14 months at
P12,104.00 a month (P169,456.00), totalled
P557,110.00. To (sic) this amount, however,
P300,000.00 representing that portion of
attorney's fees denominated as success fee'
must be deducted this being premised on a
contingent event the happening of which was
uncertain from the beginning. Moral damages
and exemplary damages claimed are, of course,
disallowed not falling within the purview of
Section 259 of the Omnibus Election Code.
It goes without saying that if the protestant-
appellee fails to pay the actual damages of
P257,110.00, the amount will be assessed, levied
and collected from the bond of P500,000.00
which he put up before the Court as
a condition for the issuance of the order of
execution of judgment pending appeal. 22
155
Petitioner filed a motion for reconsideration of the aforecited
decision on March 29, 1995. The COMELEC en banc, however, did
not find any new matter substantial in nature, persuasive in
character or sufficiently provocative to compel reconsideration of
said decision and accordingly affirmed in toto the said decision.
Hence, this petition raises, among others, the issue now solely
remaining and in need of final adjudication in view of the mootness
of the other issues anent petitioner's right to the contested office
the term for which has already expired.
We have painstakingly gone over the records of this case and we can
attribute to petitioner no breach of contract or quasi-contract; or
tortious act nor crime that may make him liable for actual damages.
Neither has private respondent been "able to point out to a specific
provision of law authorizing a money claim for election protest
expenses against the losing party." 23
We find respondent COMELEC's reasoning in awarding the damages
in question to be fatally flawed. The COMELEC found the election
protest filed by the petitioner to be clearly unfounded because its
own appreciation of the contested ballots yielded results contrary to
those of the trial court. Assuming, ex gratia argumentis, that this is a
reasonable observation not without basis, it is nonetheless fallacious
to conclude a malicious intention on the part of petitioner to molest
private respondent on the basis of what respondent COMELEC
perceived as an erroneous ruling of the trial court. In other words,
the actuations of the trial court, after the filing of a case before it,
are its own, and any alleged error on its part does not, in the
absence of clear proof, make the suit "clearly unfounded" for which
the complainant ought to be penalized. Insofar as the award of
protest expenses and attorney's fees are concerned, therefore we
find them to have been awarded by respondent COMELEC without
basis, the election protest not having been a clearly unfounded one
under the aforementioned circumstances.
Respondent COMELEC also found the order granting execution of
judgment pending appeal to be defective because of alleged non-
compliance with the requirement that there be a good and special
reason 24 to justify execution pending appeal. We, however, find that
the trial court acted judiciously in the exercise of its prerogatives
under the law in issuing the order granting execution pending
appeal. First, it should be noted that the applicability of the
provisions of the Rules of Court, relating to execution pending
appeal, has ceased to be debatable after we definitively ruled
in Garcia vs.de Jesus 25 that "Section 2, Rule 39 of the Rules of Court,
which allows Regional Trial Courts to order executions pending
appeal upon good reasons stated in a special order, may be made to
apply by analogy or suppletorily to election contests decided by
them." 26 It is not disputed that petitioner filed a bond in the amount
of P500,000.00 as required under the Rules of Court.
It is also now a settled rule that "as much recognition should be
given to the value of the decision of a judicial body as a basis for the
right to assume office as that given by law to the proclamation made
by the Board of Canvassers." 27
. . . Why should the proclamation by the board of
canvassers suffice as basis of the right to assume
office, subject to future contingencies attendant
to a protest, and not the decision of a court of
justice? Indeed . . . the board of canvassers is
composed of persons who are less technically
prepared to make an accurate appreciation of
the ballots, apart from their being more apt to
yield extraneous considerations . . . the board
must act summarily, practically raising (sic)
against time, while, on the other hand, the judge
has the benefit of all the evidence the parties
can offer and of admittedly better technical
preparation and background, apart from his
being allowed ample time for conscientious
study and mature deliberation before rendering
judgment . . . . 28
Without evaluating the merits of the trial court's actual
appreciation of the ballots contested in the election
protest, we note on the face of its decision that the trial
court relied on the findings of the National Bureau of
Investigation (NBI) handwriting experts which findings
private respondent did not even bother to rebut. We thus
see no reason to disregard the presumption of regularity in
the performance of official duty on the part of the trial
court judge. Capping this combination of circumstances
which impel the grant of immediate execution is the
undeniable urgency involved in the political situation in
the Municipality of Kidapawan, North Cotabato. The
appeal before the COMELEC would undoubtedly cause the
political vacuum in said municipality to persist, and so the
trial court reasonably perceived execution pending appeal
to be warranted and justified. Anyway, the bond posted by
petitioner could cover any damages suffered by any
aggrieved party. It is true that mere posting of a bond is
not enough reason to justify execution pending appeal,
but the nexus of circumstances aforechronicled considered
together and in relation to one another, is the dominant
consideration for the execution pending appeal. 29
Finally, we deem the award of salaries and other emoluments to be
improper and lacking legal sanction. Respondent COMELEC ruled
that inapplicable in the instant case is the ruling in Rodriguez
vs. Tan 30 because while in that case the official ousted was the one
proclaimed by the COMELEC, in the instant case, petitioner was
proclaimed winner only by the trial court and assumed office by
virtue of an order granting execution pending appeal. Again,
respondent COMELEC sweepingly concluded, in justifying the award
of damages, that since petitioner was adjudged the winner in the
elections only by the trial court and assumed the functions of the
office on the strength merely of an order granting execution pending
appeal, the petitioner occupied the position in an illegal manner as a
usurper.
We hold that petitioner was not a usurper because, while a usurper
is one who undertakes to act officially without any color of
right, 31 the petitioner exercised the duties of an elective office
under color of election thereto. 32 It matters not that it was the trial
court and not the COMELEC that declared petitioner as the winner,
because both, at different stages of the electoral process, have the
power to so proclaim winners in electoral contests. At the risk of
sounding repetitive, if only to emphasize this point, we must
reiterate that the decision of a judicial body is no less a basis than
the proclamation made by the COMELEC-convened Board of
Canvassers for a winning candidate's right to assume office, for both
are undisputedly legally sanctioned. We deem petitioner, therefore,
to be a "de facto officer who, in good faith, has had possession of
the office and had discharged the duties pertaining thereto" 33 and is
thus "legally entitled to the emoluments of the office." 34
To recapitulate, Section 259 of the Omnibus Election Code only
provides for the granting in election cases of actual and
compensatory damages in accordance with law. The victorious party
in an election case cannot be indemnified for expenses which he has
incurred in an electoral contest in the absence of a wrongful act or
omission or breach of obligation clearly attributable to the losing
party. Evidently, if any damage had been suffered by private
respondent due to the execution of judgment pending appeal, that
damage may be said to be equivalent to damnum absque injuria,
which is, damage without injury, or damage or injury inflicted
without injustice, or loss or damage without violation of a legal right,
or a wrong done to a man for which the law provides no remedy. 35
WHEREFORE, the petition for certiorari is GRANTED. While we
uphold the COMELEC decision dated May 5, 1995 that private
respondent Joseph Evangelista is the winner in the election for
mayor of the Municipality of Kidapawan, North Cotabato, that
portion of the decision is deemed moot and academic because the
term of office for mayor has long expired. That portion of the
decision awarding actual damages to private respondent Joseph
Evangelista is hereby declared null and void for having been issued
in grave abuse of discretion and in excess of jurisdiction.
156
SO ORDERED.
Narvasa, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Puno, Vitug, Kapunan, Mendoza, Francisco and Panganiban, JJ.,
concur.
29 Roxas v. Court of Appeals, 157 SCRA 370.
30 91 Phil. 724.
31 Tayco v. Capistrano, 53 Phil. 866.
32 Ibid.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 140835 August 14, 2000
RAMON A. GONZALES, petitioner,
vs.
HON. ANDRES R. NARVASA, as Chairman, PREPARATORY
COMMISSION ON CONSTITUTIONAL REFORMS; HON. RONALDO B.
ZAMORA, as Executive Secretary; COMMISSION ON AUDIT;
ROBERTO AVENTAJADO, as Presidential Consultant on Council of
Economic Advisers/Economic Affairs; ANGELITO C. BANAYO, as
Presidential Adviser for/on Political Affairs; VERONICA IGNACIO-
JONES, as Presidential Assistant/ Appointment Secretary (In charge
of appointments), respondents.
DECISION
GONZAGA-REYES, J.:
In this petition for prohibition and mandamus filed on December 9,
1999, petitioner Ramon A. Gonzales, in his capacity as a citizen and
taxpayer, assails the constitutionality of the creation of the
Preparatory Commission on Constitutional Reform (PCCR) and of the
positions of presidential consultants, advisers and assistants.
Petitioner asks this Court to enjoin the PCCR and the presidential
consultants, advisers and assistants from acting as such, and to
enjoin Executive Secretary Ronaldo B. Zamora from enforcing their
advice and recommendations. In addition, petitioner seeks to enjoin
the Commission on Audit from passing in audit expenditures for the
PCCR and the presidential consultants, advisers and assistants.
Finally, petitioner prays for an order compelling respondent Zamora
to furnish petitioner with information on certain matters.
On January 28, 2000, respondent Hon. Andres R. Narvasa, impleaded
in his capacity as Chairman of the PCCR, filed his Comment to the
Petition. The rest of the respondents, who are being represented in
this case by the Solicitor General, filed their Comment with this
Court on March 7, 2000. Petitioner then filed a Consolidated Reply
on April 24, 2000, whereupon this case was considered submitted
for decision.
I. Preparatory Commission on Constitutional Reform
The Preparatory Commission on Constitutional Reform (PCCR) was
created by President Estrada on November 26, 1998 by virtue of
Executive Order No. 43 (E.O. No. 43) in order "to study and
recommend proposed amendments and/or revisions to the 1987
Constitution, and the manner of implementing the
same."1 Petitioner disputes the constitutionality of the PCCR on two
grounds. First, he contends that it is a public office which only the
legislature can create by way of a law.2 Secondly, petitioner asserts
that by creating such a body the President is intervening in a process
from which he is totally excluded by the Constitution – the
amendment of the fundamental charter.3
It is alleged by respondents that, with respect to the PCCR, this case
has become moot and academic. We agree.
An action is considered "moot" when it no longer presents a
justiciable controversy because the issues involved have become
academic or dead.4 Under E.O. No. 43, the PCCR was instructed to
complete its task on or before June 30, 1999.5 However, on February
19, 1999, the President issued Executive Order No. 70 (E.O. No. 70),
which extended the time frame for the completion of the
commission’s work, viz –
SECTION 6. Section 8 is hereby amended to read as follows:
Time Frame. The Commission shall commence its work on 01
January 1999 and complete the same on or before 31 December
1999. The Commission shall submit its report and recommendations
to the President within fifteen (15) working days from 31 December
1999.
The PCCR submitted its recommendations to the President on
December 20, 1999 and was dissolved by the President on the same
day. It had likewise spent the funds allotted to it. 6 Thus, the PCCR
has ceased to exist, having lost its raison d’etre. Subsequent events
have overtaken the petition and the Court has nothing left to
resolve.
The staleness of the issue before us is made more manifest by the
impossibility of granting the relief prayed for by petitioner. Basically,
petitioner asks this Court to enjoin the PCCR from acting as
such.7 Clearly, prohibition is an inappropriate remedy since the body
sought to be enjoined no longer exists. It is well established that
prohibition is a preventive remedy and does not lie to restrain an act
that is already fait accompli.8 At this point, any ruling regarding the
PCCR would simply be in the nature of an advisory opinion, which is
definitely beyond the permissible scope of judicial power.
In addition to the mootness of the issue, petitioner’s lack of standing
constitutes another obstacle to the successful invocation of judicial
power insofar as the PCCR is concerned.
The question in standing is whether a party has "alleged such a
personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult
constitutional questions."9 In assailing the constitutionality of E.O.
Nos. 43 and 70, petitioner asserts his interest as a citizen and
taxpayer.10 A citizen acquires standing only if he can establish that
he has suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government; the injury is fairly
traceable to the challenged action; and the injury is likely to be
redressed by a favorable action.11 In Kilosbayan, Incorporated v.
Morato,12 we denied standing to petitioners who were assailing a
lease agreement between the Philippine Charity Sweepstakes Office
and the Philippine Gaming Management Corporation, stating that,
… in Valmonte v. Philippine Charity Sweepstakes Office, G.R. No.
78716, Sept. 22, 1987, standing was denied to a petitioner who
sought to declare a form of lottery known as Instant Sweepstakes
invalid because, as the Court held,
Valmonte brings the suit as a citizen, lawyer, taxpayer and father of
three (3) minor children. But nowhere in his petition does petitioner
claim that his rights and privileges as a lawyer or citizen have been
directly and personally injured by the operation of the Instant
Sweepstakes. The interest of the person assailing the
constitutionality of a statute must be direct and personal. He must
be able to show, not only that the law is invalid, but also that he has
sustained or in immediate danger of sustaining some direct injury as
a result of its enforcement, and not merely that he suffers thereby in
some indefinite way. It must appear that the person complaining has
been or is about to be denied some right or privilege to which he is
157
lawfully entitled or that he is about to be subjected to some burdens
or penalties by reason of the statute complained of.
We apprehend no difference between the petitioner
in Valmonte and the present petitioners. Petitioners do not in fact
show what particularized interest they have for bringing this suit. It
does not detract from the high regard for petitioners as civic leaders
to say that their interest falls short of that required to maintain an
action under Rule 3, d 2.
Coming now to the instant case, petitioner has not shown that he
has sustained or is in danger of sustaining any personal injury
attributable to the creation of the PCCR. If at all, it is only Congress,
not petitioner, which can claim any "injury" in this case since,
according to petitioner, the President has encroached upon the
legislature’s powers to create a public office and to propose
amendments to the Charter by forming the PCCR. Petitioner has
sustained no direct, or even any indirect, injury. Neither does he
claim that his rights or privileges have been or are in danger of being
violated, nor that he shall be subjected to any penalties or burdens
as a result of the PCCR’s activities. Clearly, petitioner has failed to
establish his locus standi so as to enable him to seek judicial redress
as a citizen.
A taxpayer is deemed to have the standing to raise a constitutional
issue when it is established that public funds have been disbursed in
alleged contravention of the law or the Constitution.13 , Thus payer’s
action is properly brought only when there is an exercise by
Congress of its taxing or spending power.14 This was our ruling in a
recent case wherein petitioners Telecommunications and Broadcast
Attorneys of the Philippines (TELEBAP) and GMA Network, Inc.
questioned the validity of section 92 of B.P. No. 881 (otherwise
knows as the "Omnibus Election Code") requiring radio and
television stations to give free air time to the Commission on
Elections during the campaign period.15 The Court held that
petitioner TELEBAP did not have any interest as a taxpayer since the
assailed law did not involve the taxing or spending power of
Congress.16
Many other rulings have premised the grant or denial of standing to
taxpayers upon whether or not the case involved a disbursement of
public funds by the legislature. In Sanidad v. Commission on
Elections,17 the petitioners therein were allowed to bring a
taxpayers’ suit to question several presidential decrees promulgated
by then President Marcos in his legislative capacity calling for a
national referendum, with the Court explaining that –
...[i]t is now an ancient rule that the valid source of a statute –
Presidential Decrees are of such nature – may be contested by one
who will sustain a direct injury as a result of its enforcement. At the
instance of taxpayers, laws providing for the disbursement of public
funds may be enjoined, upon the theory that the expenditure of
public funds by an officer of the State for the purpose of executing
an unconstitutional act constitutes a misapplication of such funds.
The breadth of Presidential Decree No. 991 carries an appropriation
of Five Million Pesos for the effective implementation of its
purposes. Presidential Decree No. 1031 appropriates the sum of
Eight Million Pesos to carry out its provisions. The interest of the
aforenamed petitioners as taxpayers in the lawful expenditure of
these amounts of public money sufficiently clothes them with that
personality to litigate the validity of the Decrees appropriating said
funds. …
In still another case, the Court held that petitioners – the Philippine
Constitution Association, Inc., a non-profit civic organization - had
standing as taxpayers to question the constitutionality of Republic
Act No. 3836 insofar as it provides for retirement gratuity and
commutation of vacation and sick leaves to Senators and
Representatives and to the elective officials of both houses of
Congress.18 And in Pascual v. Secretary of Public Works,19 the Court
allowed petitioner to maintain a taxpayer’s suit assailing the
constitutional soundness of Republic Act No. 920 appropriating
P85,000 for the construction, repair and improvement of feeder
roads within private property. All these cases involved the
disbursement of public funds by means of a law.
Meanwhile, in Bugnay Construction and Development Corporation v.
Laron,20 the Court declared that the trial court was wrong in allowing
respondent Ravanzo to bring an action for injunction in his capacity
as a taxpayer in order to question the legality of the contract of
lease covering the public market entered into between the City of
Dagupan and petitioner. The Court declared that Ravanzo did not
possess the requisite standing to bring such taxpayer’s suit since
"[o]n its face, and there is no evidence to the contrary, the lease
contract entered into between petitioner and the City shows that no
public funds have been or will be used in the construction of the
market building."
Coming now to the instant case, it is readily apparent that there is
no exercise by Congress of its taxing or spending power. The PCCR
was created by the President by virtue of E.O. No. 43, as amended
by E.O. No. 70. Under section 7 of E.O. No. 43, the amount of P3
million is "appropriated" for its operational expenses "to be sourced
from the funds of the Office of the President." The relevant
provision states -
Appropriations. The initial amount of Three Million Pesos
(P3,000,000.00) is hereby appropriated for the operational expenses
of the Commission to be sourced from funds of the Office of the
President, subject to the usual accounting and auditing rules and
regulations. Additional amounts shall be released to the Commission
upon submission of requirements for expenditures.
The appropriations for the PCCR were authorized by the President,
not by Congress. In fact, there was no an appropriation at all. "In a
strict sense, appropriation has been defined ‘as nothing more than
the legislative authorization prescribed by the Constitution that
money may be paid out of the Treasury’, while appropriation made
by law refers to ‘the act of the legislature setting apart or assigning
to a particular use a certain sum to be used in the payment of debt
or dues from the State to its creditors.’ "21 The funds used for the
PCCR were taken from funds intended for the Office of the
President, in the exercise of the Chief Executive’s power to transfer
funds pursuant to section 25 (5) of article VI of the Constitution.
In the final analysis, it must be stressed that the Court retains the
power to decide whether or not it will entertain a taxpayer’s
suit.22 In the case at bar, there being no exercise by Congress of its
taxing or spending power, petitioner cannot be allowed to question
the creation of the PCCR in his capacity as a taxpayer, but rather, he
must establish that he has a "personal and substantial interest in the
case and that he has sustained or will sustain direct injury as a result
of its enforcement."23 In other words, petitioner must show that he
is a real party in interest - that he will stand to be benefited or
injured by the judgment or that he will be entitled to the avails of
the suit.24 Nowhere in his pleadings does petitioner presume to
make such a representation.
II. Presidential Consultants, Advisers, Assistants
The second issue raised by petitioner concerns the presidential
consultants. Petitioner alleges that in 1995 and 1996, the President
created seventy (70) positions in the Office of the President and
appointed to said positions twenty (20) presidential consultants,
twenty-two (22) presidential advisers, and twenty-eight (28)
presidential assistants.25 Petitioner asserts that, as in the case of the
PCCR, the President does not have the power to create these
positions.26
Consistent with the abovementioned discussion on standing,
petitioner does not have the personality to raise this issue before
the Court. First of all, he has not proven that he has sustained or is in
danger of sustaining any injury as a result of the appointment of
such presidential advisers. Secondly, petitioner has not alleged the
necessary facts so as to enable the Court to determine if he
possesses a taxpayer’s interest in this particular issue. Unlike the
PCCR which was created by virtue of an executive order, petitioner
does not allege by what official act, whether it be by means of an
executive order, administrative order, memorandum order, or
otherwise, the President attempted to "create" the positions of
presidential advisers, consultants and assistants. Thus, it is unclear
158
what act of the President petitioner is assailing. In support of his WHEREFORE, the petition is dismissed, with the exception that
allegation, petitioner merely annexed a copy of the Philippine respondent Zamora is ordered to furnish petitioner with the
Government Directory (Annex "C") listing the names and positions of information requested.
such presidential consultants, advisers and assistants to his petition.
However, appointment is obviously not synonymous with creation. It SO ORDERED.
would be improvident for this Court to entertain this issue given the
insufficient nature of the allegations in the Petition.
Davide, Jr., C.J., Melo, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena, Ynares-Santiago, and De Leon,
III. Right to Information Jr., JJ., concur.
Bellosillo, J., abroad, on official business.
Finally, petitioner asks us to issue a writ of mandamus ordering Puno, J., vote to dismiss on the ground that the case is moot.
Executive Secretary Ronaldo B. Zamora to answer his letter (Annex
"D") dated October 4, 1999 requesting for the names of executive
officials holding multiple positions in government, copies of their
appointments, and a list of the recipients of luxury vehicles seized by
the Bureau of Customs and turned over to Malacanang.27

The right to information is enshrined in Section 7 of the Bill of Rights

which provides that –

The right of the people to information on matters of public concern

shall be recognized. Access to official records, and to documents,
and papers pertaining to official acts, transactions, or decisions, as
well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such
limitations as may be provided by law.

Under both the 197328 and 1987 Constitution, this is a self-executory

provision which can be invoked by any citizen before the courts. This
was our ruling in Legaspi v. Civil Service Commission,29 wherein the
Court classified the right to information as a public right and "when
a [m]andamus proceeding involves the assertion of a public right,
the requirement of personal interest is satisfied by the mere fact
that the petitioner is a citizen, and therefore, part of the general
‘public’ which possesses the right." However, Congress may provide
for reasonable conditions upon the access to information. Such
limitations were embodied in Republic Act No. 6713, otherwise
knows as the "Code of Conduct and Ethical Standards for Public
Officials and Employees," which took effect on March 25, 1989. This
law provides that, in the performance of their duties, all public
officials and employees are obliged to respond to letters sent by the
public within fifteen (15) working days from receipt thereof and to
ensure the accessibility of all public documents for inspection by the
public within reasonable working hours, subject to the reasonable
claims of confidentiality.30

Elaborating on the significance of the right to information, the Court

said in Baldoza v. Dimaano31 that "[t]he incorporation of this right in
the Constitution is a recognition of the fundamental role of free
exchange of information in a democracy. There can be no realistic
perception by the public of the nation’s problems, nor a meaningful
democratic decisionmaking if they are denied access to information
of general interest. Information is needed to enable the members of
society to cope with the exigencies of the times." The information to
which the public is entitled to are those concerning "matters of
public concern", a term which "embrace[s] a broad spectrum of
subjects which the public may want to know, either because these
directly affect their lives, or simply because such matters naturally
arouse the interest of an ordinary citizen. In the final analysis, it is
for the courts to determine in a case by case basis whether the
matter at issue is of interest or importance, as it relates to or affects
the public."321âwphi1

Thus, we agree with petitioner that respondent Zamora, in his

official capacity as Executive Secretary, has a constitutional and
statutory duty to answer petitioner’s letter dealing with matters
which are unquestionably of public concern – that is, appointments
made to public offices and the utilization of public property. With
regard to petitioner’s request for copies of the appointment papers
of certain officials, respondent Zamora is obliged to allow the
inspection and copying of the same subject to the reasonable
limitations required for the orderly conduct of official business.33

159
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 138570 October 10, 2000
BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT,
BISHOP TOMAS MILLAMENA (Iglesia Filipina Independiente), BISHOP
ELMER BOLOCAN (United Church of Christ of the Phil.), DR.
REYNALDO LEGASCA, MD, KILUSANG MAMBUBUKID NG PILIPINAS,
KILUSANG MAYO UNO, GABRIELA, PROLABOR, and the PUBLIC
INTEREST LAW CENTER, petitioners,
vs.
EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS
SECRETARY DOMINGO SIAZON, DEFENSE SECRETARY ORLANDO
MERCADO, BRIG. GEN. ALEXANDER AGUIRRE, SENATE PRESIDENT
MARCELO FERNAN, SENATOR FRANKLIN DRILON, SENATOR BLAS
OPLE, SENATOR RODOLFO BIAZON, and SENATOR FRANCISCO
TATAD, respondents.
x-----------------------x
G.R. No. 138572 October 10, 2000
PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA),
EXEQUIEL B. GARCIA, AMADOGAT INCIONG, CAMILO L. SABIO, AND
RAMON A. GONZALES, petitioners,
vs.
HON. RONALDO B. ZAMORA, as Executive Secretary, HON. ORLANDO
MERCADO, as Secretary of National Defense, and HON. DOMINGO L.
SIAZON, JR., as Secretary of Foreign Affairs, respondents.
x-----------------------x
G.R. No. 138587 October 10, 2000
TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEÑA
III, petitioners,
vs.
JOSEPH E. ESTRADA, RONALDO B. ZAMORA, DOMINGO L. SIAZON,
JR., ORLANDO B. MERCADO, MARCELO B. FERNAN, FRANKLIN M.
DRILON, BLAS F. OPLE and RODOLFO G. BIAZON, respondents.
x-----------------------x
G.R. No. 138680 October 10, 2000
INTEGRATED BAR OF THE PHILIPPINES, Represented by its National
President, Jose Aguila Grapilon,petitioners,
vs.
JOSEPH EJERCITO ESTRADA, in his capacity as President, Republic of
the Philippines, and HON. DOMINGO SIAZON, in his capacity as
Secretary of Foreign Affairs, respondents.
x-----------------------x
G.R. No. 138698 October 10, 2000
JOVITO R. SALONGA, WIGBERTO TAÑADA, ZENAIDA QUEZON-
AVENCEÑA, ROLANDO SIMBULAN, PABLITO V. SANIDAD, MA.
SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER P. ARROYO,
FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN,
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND
NATIONALISM, INC. (MABINI), petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS,
THE SECRETARY OF NATIONAL DEFENSE, SENATE PRESIDENT
MARCELO B. FERNAN, SENATOR BLAS F. OPLE, SENATOR RODOLFO
G. BIAZON, AND ALL OTHER PERSONS ACTING THEIR CONTROL,
SUPERVISION, DIRECTION, AND INSTRUCTION IN RELATION TO THE
VISITING FORCES AGREEMENT (VFA), respondents.
DECISION
BUENA, J.:
Confronting the Court for resolution in the instant consolidated
petitions for certiorari and prohibition are issues relating to, and
borne by, an agreement forged in the turn of the last century
between the Republic of the Philippines and the United States of
America -the Visiting Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America
forged a Military Bases Agreement which formalized, among others,
the use of installations in the Philippine territory by United States
military personnel. To further strengthen their defense and security
relationship, the Philippines and the United States entered into a
Mutual Defense Treaty on August 30, 1951. Under the treaty, the
parties agreed to respond to any external armed attack on their
territory, armed forces, public vessels, and aircraft.1
In view of the impending expiration of the RP-US Military Bases
Agreement in 1991, the Philippines and the United States negotiated
for a possible extension of the military bases agreement. On
September 16, 1991, the Philippine Senate rejected the proposed
RP-US Treaty of Friendship, Cooperation and Security which, in
effect, would have extended the presence of US military bases in the
Philippines.2 With the expiration of the RP-US Military Bases
Agreement, the periodic military exercises conducted between the
two countries were held in abeyance. Notwithstanding, the defense
and security relationship between the Philippines and the United
States of America continued pursuant to the Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed by US Defense
Deputy Assistant Secretary for Asia Pacific Kurt Campbell, met with
the Philippine panel, headed by Foreign Affairs Undersecretary
Rodolfo Severino Jr., to exchange notes on "the complementing
strategic interests of the United States and the Philippines in the
Asia-Pacific region." Both sides discussed, among other things, the
possible elements of the Visiting Forces Agreement (VFA for brevity).
Negotiations by both panels on the VFA led to a consolidated draft
text, which in turn resulted to a final series of conferences and
negotiations3 that culminated in Manila on January 12 and 13, 1998.
Thereafter, then President Fidel V. Ramos approved the VFA, which
was respectively signed by public respondent Secretary Siazon and
Unites States Ambassador Thomas Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through
respondent Secretary of Foreign Affairs, ratified the VFA.4
On October 6, 1998, the President, acting through respondent
Executive Secretary Ronaldo Zamora, officially transmitted to the
Senate of the Philippines,5 the Instrument of Ratification, the letter
of the President6 and the VFA, for concurrence pursuant to Section
21, Article VII of the 1987 Constitution. The Senate, in turn, referred
the VFA to its Committee on Foreign Relations, chaired by Senator
Blas F. Ople, and its Committee on National Defense and Security,
chaired by Senator Rodolfo G. Biazon, for their joint consideration
and recommendation. Thereafter, joint public hearings were held by
the two Committees.7
On May 3, 1999, the Committees submitted Proposed Senate
Resolution No. 4438 recommending the concurrence of the Senate
to the VFA and the creation of a Legislative Oversight Committee to
oversee its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was
approved by the Senate, by a two-thirds (2/3) vote9of its members.
Senate Resolution No. 443 was then re-numbered as Senate
Resolution No. 18.10
160
On June 1, 1999, the VFA officially entered into force after an
Exchange of Notes between respondent Secretary Siazon and United
States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles, provides
for the mechanism for regulating the circumstances and conditions
under which US Armed Forces and defense personnel may be
present in the Philippines, and is quoted in its full text, hereunder:
"Article
Definitions
"As used in this Agreement, ‘United States personnel’ means United
States military and civilian personnel temporarily in the Philippines
in connection with activities approved by the Philippine
Government.
"Within this definition:
"1. The term ‘military personnel’ refers to
military members of the United States Army,
Navy, Marine Corps, Air Force, and Coast Guard.
"2. The term ‘civilian personnel’ refers to
individuals who are neither nationals of, nor
ordinary residents in the Philippines and who are
employed by the United States armed forces or
who are accompanying the United States armed
forces, such as employees of the American Red
Cross and the United Services Organization.
"Article
Respect for Law
"It is the duty of the United States personnel to respect the laws of
the Republic of the Philippines and to abstain from any activity
inconsistent with the spirit of this agreement, and, in particular,
from any political activity in the Philippines. The Government of the
United States shall take all measures within its authority to ensure
that this is done.
"Article III
Entry and Departure
"1. The Government of the Philippines shall
facilitate the admission of United States
personnel and their departure from the
Philippines in connection with activities covered
by this agreement.
"2. United States military personnel shall be
exempt from passport and visa regulations upon
entering and departing the Philippines.
"3. The following documents only, which shall be
presented on demand, shall be required in
respect of United States military personnel who
enter the Philippines:
"(a) personal identity card issued by
the appropriate United States
authority showing full name, date of
birth, rank or grade and service
number (if any), branch of service and
photograph;
"(b) individual or collective document
issued by the appropriate United
States authority, authorizing the travel
or visit and identifying the individual or
group as United States military
personnel; and
"(c) the commanding officer of a
military aircraft or vessel shall present
a declaration of health, and when
required by the cognizant
representative of the Government of
the Philippines, shall conduct a
quarantine inspection and will certify
that the aircraft or vessel is free from
quarantinable diseases. Any
quarantine inspection of United States
I
aircraft or United States vessels or
cargoes thereon shall be conducted by
the United States commanding officer
in accordance with the international
health regulations as promulgated by
the World Health Organization, and
mutually agreed procedures.
"4. United States civilian personnel shall be
exempt from visa requirements but shall
present, upon demand, valid passports upon
entry and departure of the Philippines.
"5. If the Government of the Philippines has
requested the removal of any United States
personnel from its territory, the United States
authorities shall be responsible for receiving the
person concerned within its own territory or
otherwise disposing of said person outside of the
Philippines.
"Article IV
II
Driving and Vehicle Registration
"1. Philippine authorities shall accept as valid,
without test or fee, a driving permit or license
issued by the appropriate United States
authority to United States personnel for the
operation of military or official vehicles.
"2. Vehicles owned by the Government of the
United States need not be registered, but shall
have appropriate markings.
"Article V
Criminal Jurisdiction
"1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction
over United States personnel with respect to
offenses committed within the Philippines and
punishable under the law of the Philippines.
(b) United States military authorities shall have
the right to exercise within the Philippines all
criminal and disciplinary jurisdiction conferred
on them by the military law of the United States
over United States personnel in the Philippines.
"2. (a) Philippine authorities exercise exclusive jurisdiction over
United States personnel with respect to offenses, including offenses
relating to the security of the Philippines, punishable under the laws
of the Philippines, but not under the laws of the United States.
(b) United States authorities exercise exclusive
jurisdiction over United States personnel with
respect to offenses, including offenses relating to
the security of the United States, punishable
under the laws of the United States, but not
under the laws of the Philippines.
161
 (c) For the purposes of this paragraph and
paragraph 3 of this article, an offense relating to
security means:
(1) treason;
(2) sabotage, espionage or violation of
any law relating to national defense.
"3. In cases where the right to exercise jurisdiction is concurrent, the
following rules shall apply:
(a) Philippine authorities shall have the primary
right to exercise jurisdiction over all offenses
committed by United States personnel, except in
cases provided for in paragraphs 1(b), 2 (b), and
3 (b) of this Article.
(b) United States military authorities shall have
the primary right to exercise jurisdiction over
United States personnel subject to the military
law of the United States in relation to.
(1) offenses solely against the property
or security of the United States or
offenses solely against the property or
person of United States personnel; and
(2) offenses arising out of any act or
omission done in performance of
official duty.
(c) The authorities of either
government may request the
authorities of the other government to
waive their primary right to exercise
jurisdiction in a particular case.
(d) Recognizing the responsibility of
the United States military authorities
to maintain good order and discipline
among their forces, Philippine
authorities will, upon request by the
United States, waive their primary right
to exercise jurisdiction except in cases
of particular importance to the
Philippines. If the Government of the
Philippines determines that the case is
of particular importance, it shall
communicate such determination to
the United States authorities within
twenty (20) days after the Philippine
authorities receive the United States
request.
(e) When the United States military
commander determines that an
offense charged by authorities of the
Philippines against United states
personnel arises out of an act or
omission done in the performance of
official duty, the commander will issue
a certificate setting forth such
determination. This certificate will be
transmitted to the appropriate
authorities of the Philippines and will
constitute sufficient proof of
performance of official duty for the
purposes of paragraph 3(b)(2) of this
Article. In those cases where the
Government of the Philippines believes
the circumstances of the case require a
review of the duty certificate, United
States military authorities and
Philippine authorities shall consult
immediately. Philippine authorities at
the highest levels may also present any
information bearing on its validity.
United States military authorities shall
take full account of the Philippine
position. Where appropriate, United
States military authorities will take
disciplinary or other action against
offenders in official duty cases, and
notify the Government of the
Philippines of the actions taken.
(f) If the government having the
primary right does not exercise
jurisdiction, it shall notify the
authorities of the other government as
soon as possible.
(g) The authorities of the Philippines
and the United States shall notify each
other of the disposition of all cases in
which both the authorities of the
Philippines and the United States have
the right to exercise jurisdiction.
"4. Within the scope of their legal competence, the authorities of
the Philippines and United States shall assist each other in the arrest
of United States personnel in the Philippines and in handling them
over to authorities who are to exercise jurisdiction in accordance
with the provisions of this article.
"5. United States military authorities shall promptly notify Philippine
authorities of the arrest or detention of United States personnel
who are subject of Philippine primary or exclusive jurisdiction.
Philippine authorities shall promptly notify United States military
authorities of the arrest or detention of any United States personnel.
"6. The custody of any United States personnel over whom the
Philippines is to exercise jurisdiction shall immediately reside with
United States military authorities, if they so request, from the
commission of the offense until completion of all judicial
proceedings. United States military authorities shall, upon formal
notification by the Philippine authorities and without delay, make
such personnel available to those authorities in time for any
investigative or judicial proceedings relating to the offense with
which the person has been charged in extraordinary cases, the
Philippine Government shall present its position to the United States
Government regarding custody, which the United States
Government shall take into full account. In the event Philippine
judicial proceedings are not completed within one year, the United
States shall be relieved of any obligations under this paragraph. The
one-year period will not include the time necessary to appeal. Also,
the one-year period will not include any time during which
scheduled trial procedures are delayed because United States
authorities, after timely notification by Philippine authorities to
arrange for the presence of the accused, fail to do so.
"7. Within the scope of their legal authority, United States and
Philippine authorities shall assist each other in the carrying out of all
necessary investigation into offenses and shall cooperate in
providing for the attendance of witnesses and in the collection and
production of evidence, including seizure and, in proper cases, the
delivery of objects connected with an offense.
"8. When United States personnel have been tried in accordance
with the provisions of this Article and have been acquitted or have
been convicted and are serving, or have served their sentence, or
have had their sentence remitted or suspended, or have been
pardoned, they may not be tried again for the same offense in the
Philippines. Nothing in this paragraph, however, shall prevent United
States military authorities from trying United States personnel for
any violation of rules of discipline arising from the act or omission
which constituted an offense for which they were tried by Philippine
authorities.
162
"9. When United States personnel are detained, taken into custody,
or prosecuted by Philippine authorities, they shall be accorded all
procedural safeguards established by the law of the Philippines. At
the minimum, United States personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the
specific charge or charges made against them
and to have reasonable time to prepare a
defense;
(c) To be confronted with witnesses against them
and to cross examine such witnesses;
(d) To present evidence in their defense and to
have compulsory process for obtaining
witnesses;
(e) To have free and assisted legal
representation of their own choice on the same
basis as nationals of the Philippines;
(f) To have the service of a competent
interpreter; and
(g) To communicate promptly with and to be
visited regularly by United States authorities, and
to have such authorities present at all judicial
proceedings. These proceedings shall be public
unless the court, in accordance with Philippine
laws, excludes persons who have no role in the
proceedings.
"10. The confinement or detention by Philippine authorities of
United States personnel shall be carried out in facilities agreed on by
appropriate Philippine and United States authorities. United States
Personnel serving sentences in the Philippines shall have the right to
visits and material assistance.
"11. United States personnel shall be subject to trial only in
Philippine courts of ordinary jurisdiction, and shall not be subject to
the jurisdiction of Philippine military or religious courts.
"Article VI
Claims
"1. Except for contractual arrangements,
including United States foreign military sales
letters of offer and acceptance and leases of
military equipment, both governments waive
any and all claims against each other for damage,
loss or destruction to property of each other’s
armed forces or for death or injury to their
military and civilian personnel arising from
activities to which this agreement applies.
"2. For claims against the United States, other
than contractual claims and those to which
paragraph 1 applies, the United States
Government, in accordance with United States
law regarding foreign claims, will pay just and
reasonable compensation in settlement of
meritorious claims for damage, loss, personal
injury or death, caused by acts or omissions of
United States personnel, or otherwise incident to
the non-combat activities of the United States
forces.
"Article VII
Importation and Exportation
"1. United States Government equipment,
materials, supplies, and other property imported
into or acquired in the Philippines by or on
behalf of the United States armed forces in
connection with activities to which this
agreement applies, shall be free of all Philippine
duties, taxes and other similar charges. Title to
such property shall remain with the United
States, which may remove such property from
the Philippines at any time, free from export
duties, taxes, and other similar charges. The
exemptions provided in this paragraph shall also
extend to any duty, tax, or other similar charges
which would otherwise be assessed upon such
property after importation into, or acquisition
within, the Philippines. Such property may be
removed from the Philippines, or disposed of
therein, provided that disposition of such
property in the Philippines to persons or entities
not entitled to exemption from applicable taxes
and duties shall be subject to payment of such
taxes, and duties and prior approval of the
Philippine Government.
"2. Reasonable quantities of personal baggage,
personal effects, and other property for the
personal use of United States personnel may be
imported into and used in the Philippines free of
all duties, taxes and other similar charges during
the period of their temporary stay in the
Philippines. Transfers to persons or entities in
the Philippines not entitled to import privileges
may only be made upon prior approval of the
appropriate Philippine authorities including
payment by the recipient of applicable duties
and taxes imposed in accordance with the laws
of the Philippines. The exportation of such
property and of property acquired in the
Philippines by United States personnel shall be
free of all Philippine duties, taxes, and other
similar charges.
"Article VIII
Movement of Vessels and Aircraft
"1. Aircraft operated by or for the United States
armed forces may enter the Philippines upon
approval of the Government of the Philippines in
accordance with procedures stipulated in
implementing arrangements.
"2. Vessels operated by or for the United States
armed forces may enter the Philippines upon
approval of the Government of the Philippines.
The movement of vessels shall be in accordance
with international custom and practice
governing such vessels, and such agreed
implementing arrangements as necessary.
"3. Vehicles, vessels, and aircraft operated by or
for the United States armed forces shall not be
subject to the payment of landing or port fees,
navigation or over flight charges, or tolls or other
use charges, including light and harbor dues,
while in the Philippines. Aircraft operated by or
for the United States armed forces shall observe
local air traffic control regulations while in the
Philippines. Vessels owned or operated by the
United States solely on United States
Government non-commercial service shall not be
subject to compulsory pilotage at Philippine
ports.
"Article IX
Duration and Termination
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"This agreement shall enter into force on the date on which the
parties have notified each other in writing through the diplomatic
channel that they have completed their constitutional requirements
for entry into force. This agreement shall remain in force until the
expiration of 180 days from the date on which either party gives the
other party notice in writing that it desires to terminate the
agreement."
Via these consolidated11 petitions for certiorari and prohibition,
petitioners - as legislators, non-governmental organizations, citizens
and taxpayers - assail the constitutionality of the VFA and impute to
herein respondents grave abuse of discretion in ratifying the
agreement.
We have simplified the issues raised by the petitioners into the
following:
I
Do petitioners have legal standing as concerned citizens, taxpayers,
or legislators to question the constitutionality of the VFA?
II
Is the VFA governed by the provisions of Section 21, Article VII or of
Section 25, Article XVIII of the Constitution?
III
Does the VFA constitute an abdication of Philippine sovereignty?
a. Are Philippine courts deprived of their jurisdiction to
hear and try offenses committed by US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over
offenses punishable by reclusion perpetua or higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1, Article III of
the Constitution?
b. the Prohibition against nuclear weapons under Article II,
Section 8?
c. Section 28 (4), Article VI of the Constitution granting the
exemption from taxes and duties for the equipment,
materials supplies and other properties imported into or
acquired in the Philippines by, or on behalf, of the US
Armed Forces?
LOCUS STANDI
At the outset, respondents challenge petitioner’s standing to sue, on
the ground that the latter have not shown any interest in the case,
and that petitioners failed to substantiate that they have sustained,
or will sustain direct injury as a result of the operation of the
VFA.12 Petitioners, on the other hand, counter that the validity or
invalidity of the VFA is a matter of transcendental importance which
justifies their standing.13
A party bringing a suit challenging the constitutionality of a law, act,
or statute must show "not only that the law is invalid, but also that
he has sustained or in 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." He must
show that he has been, or is about to be, denied some right or
privilege to which he is lawfully entitled, or that he is about to be
subjected to some burdens or penalties by reason of the statute
complained of.14
In the case before us, petitioners failed to show, to the satisfaction
of this Court, that they have sustained, or are in danger of sustaining
any direct injury as a result of the enforcement of the VFA. As
taxpayers, petitioners have not established that the VFA involves the
exercise by Congress of its taxing or spending powers.15 On this
point, it bears stressing that a taxpayer’s suit refers to a case where
the act complained of directly involves the illegal disbursement of
public funds derived from taxation.16 Thus, in Bugnay Const. &
Development Corp. vs. Laron17, we held:
"x x x it is exigent that the taxpayer-plaintiff sufficiently show that he
would be benefited or injured by the judgment or entitled to the
avails of the suit as a real party in interest. Before he can invoke the
power of judicial review, he must specifically prove that he has
sufficient interest in preventing the illegal expenditure of money
raised by taxation and that he will sustain a direct injury as a result
of the enforcement of the questioned statute or contract. It is not
sufficient that he has merely a general interest common to all
members of the public."
Clearly, inasmuch as no public funds raised by taxation are involved
in this case, and in the absence of any allegation by petitioners that
public funds are being misspent or illegally expended, petitioners, as
taxpayers, have no legal standing to assail the legality of the VFA.
Similarly, Representatives Wigberto Tañada, Agapito Aquino and
Joker Arroyo, as petitioners-legislators, do not possess the
requisite locus standi to maintain the present suit. While this Court,
in Phil. Constitution Association vs. Hon. Salvador
Enriquez,18 sustained the legal standing of a member of the Senate
and the House of Representatives to question the validity of a
presidential veto or a condition imposed on an item in an
appropriation bull, we cannot, at this instance, similarly uphold
petitioners’ standing as members of Congress, in the absence of a
clear showing of any direct injury to their person or to the institution
to which they belong.
Beyond this, the allegations of impairment of legislative power, such
as the delegation of the power of Congress to grant tax exemptions,
are more apparent than real. While it may be true that petitioners
pointed to provisions of the VFA which allegedly impair their
legislative powers, petitioners failed however to sufficiently show
that they have in fact suffered direct injury.
In the same vein, petitioner Integrated Bar of the Philippines (IBP) is
stripped of standing in these cases. As aptly observed by the Solicitor
General, the IBP lacks the legal capacity to bring this suit in the
absence of a board resolution from its Board of Governors
authorizing its National President to commence the present action.19
Notwithstanding, in view of the paramount importance and the
constitutional significance of the issues raised in the petitions, this
Court, in the exercise of its sound discretion, brushes aside the
procedural barrier and takes cognizance of the petitions, as we have
done in the early Emergency Powers Cases,20 where we had occasion
to rule:
"x x x ordinary citizens and taxpayers were allowed to question the
constitutionality of several executive orders issued by President
Quirino although they were involving only an indirect and general
interest shared in common with the public. The Court dismissed the
objection that they were not proper parties and ruled that
‘transcendental importance to the public of these cases demands
that they be settled promptly and definitely, brushing aside, if we
must, technicalities of procedure.’ We have since then applied the
exception in many other cases. (Association of Small Landowners in
the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343)."
(Underscoring Supplied)
This principle was reiterated in the subsequent cases of Gonzales vs.
COMELEC,21 Daza vs. Singson,22 andBasco vs. Phil. Amusement and
Gaming Corporation,23 where we emphatically held:
164
"Considering however the importance to the public of the case at
bar, and in keeping with the Court’s duty, under the 1987
Constitution, to determine whether or not the other branches of the
government have kept themselves within the limits of the
Constitution and the laws and that they have not abused the
discretion given to them, the Court has brushed aside technicalities
of procedure and has taken cognizance of this petition. x x x"
Again, in the more recent case of Kilosbayan vs. Guingona,
Jr.,24 thisCourt ruled that in cases of transcendental importance, the
Court may relax the standing requirements and allow a suit to
prosper even where there is no direct injury to the party claiming
the right of judicial review.
Although courts generally avoid having to decide a constitutional
question based on the doctrine of separation of powers, which
enjoins upon the departments of the government a becoming
respect for each others’ acts,25 this Court nevertheless resolves to
take cognizance of the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION
One focal point of inquiry in this controversy is the determination of
which provision of the Constitution applies, with regard to the
exercise by the senate of its constitutional power to concur with the
VFA. Petitioners argue that Section 25, Article XVIII is applicable
considering that the VFA has for its subject the presence of foreign
military troops in the Philippines. Respondents, on the contrary,
maintain that Section 21, Article VII should apply inasmuch as the
VFA is not a basing arrangement but an agreement which involves
merely the temporary visits of United States personnel engaged in
joint military exercises.
The 1987 Philippine Constitution contains two provisions requiring
the concurrence of the Senate on treaties or international
agreements. Section 21, Article VII, which herein respondents
invoke, reads:
"No treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the Members of the
Senate."
Section 25, Article XVIII, provides:
"After the expiration in 1991 of the Agreement between the
Republic of the Philippines and the United States of America
concerning Military Bases, foreign military bases, troops, or facilities
shall not be allowed in the Philippines except under a treaty duly
concurred in by the senate and, when the Congress so requires,
ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the
other contracting State."
Section 21, Article VII deals with treatise or international agreements
in general, in which case, the concurrence of at least two-thirds (2/3)
of all the Members of the Senate is required to make the subject
treaty, or international agreement, valid and binding on the part of
the Philippines. This provision lays down the general rule on treatise
or international agreements and applies to any form of treaty with a
wide variety of subject matter, such as, but not limited to,
extradition or tax treatise or those economic in nature. All treaties or
international agreements entered into by the Philippines, regardless
of subject matter, coverage, or particular designation or appellation,
requires the concurrence of the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special provision that applies
to treaties which involve the presence of foreign military bases,
troops or facilities in the Philippines. Under this provision, the
concurrence of the Senate is only one of the requisites to render
compliance with the constitutional requirements and to consider the
agreement binding on the Philippines. Section 25, Article XVIII
further requires that "foreign military bases, troops, or facilities"
may be allowed in the Philippines only by virtue of a treaty duly
concurred in by the Senate, ratified by a majority of the votes cast in
a national referendum held for that purpose if so required by
Congress, and recognized as such by the other contracting state.
It is our considered view that both constitutional provisions, far from
contradicting each other, actually share some common ground.
These constitutional provisions both embody phrases in the negative
and thus, are deemed prohibitory in mandate and character. In
particular, Section 21 opens with the clause "No treaty x x x," and
Section 25 contains the phrase "shall not be allowed." Additionally,
in both instances, the concurrence of the Senate is indispensable to
render the treaty or international agreement valid and effective.
To our mind, the fact that the President referred the VFA to the
Senate under Section 21, Article VII, and that the Senate extended
its concurrence under the same provision, is immaterial. For in
either case, whether under Section 21, Article VII or Section 25,
Article XVIII, the fundamental law is crystalline that the concurrence
of the Senate is mandatory to comply with the strict constitutional
requirements.
On the whole, the VFA is an agreement which defines the treatment
of United States troops and personnel visiting the Philippines. It
provides for the guidelines to govern such visits of military
personnel, and further defines the rights of the United States and
the Philippine government in the matter of criminal jurisdiction,
movement of vessel and aircraft, importation and exportation of
equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with
treaties involving foreign military bases, troops, or facilities, should
apply in the instant case. To a certain extent and in a limited sense,
however, the provisions of section 21, Article VII will find
applicability with regard to the issue and for the sole purpose of
determining the number of votes required to obtain the valid
concurrence of the Senate, as will be further discussed hereunder.
It is a finely-imbedded principle in statutory construction that a
special provision or law prevails over a general one.Lex specialis
derogat generali. Thus, where there is in the same statute a
particular enactment and also a general one which, in its most
comprehensive sense, would include what is embraced in the
former, the particular enactment must be operative, and the general
enactment must be taken to affect only such cases within its general
language which are not within the provision of the particular
enactment.26
In Leveriza vs. Intermediate Appellate Court,27 we enunciated:
"x x x that another basic principle of statutory construction
mandates that general legislation must give way to a special
legislation on the same subject, and generally be so interpreted as to
embrace only cases in which the special provisions are not
applicable (Sto. Domingo vs. de los Angeles, 96 SCRA 139), that a
specific statute prevails over a general statute (De Jesus vs. People,
120 SCRA 760) and that where two statutes are of equal theoretical
application to a particular case, the one designed therefor specially
should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38)."
Moreover, it is specious to argue that Section 25, Article XVIII is
inapplicable to mere transient agreements for the reason that there
is no permanent placing of structure for the establishment of a
military base. On this score, the Constitution makes no distinction
between "transient’ and "permanent". Certainly, we find nothing in
Section 25, Article XVIII that requires foreign troops or facilities to be
stationed or placed permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no distinction is
made by law, the Court should not distinguish- Ubi lex non distinguit
nec nos distinguire debemos.
In like manner, we do not subscribe to the argument that Section 25,
Article XVIII is not controlling since no foreign military bases, but
merely foreign troops and facilities, are involved in the VFA. Notably,
a perusal of said constitutional provision reveals that the
165
proscription covers "foreign military bases, troops, or facilities."
Stated differently, this prohibition is not limited to the entry of
troops and facilities without any foreign bases being established.
The clause does not refer to "foreign military bases,
troops, or facilities" collectively but treats them as separate and
independent subjects. The use of comma and the disjunctive word
"or" clearly signifies disassociation and independence of one thing
from the others included in the enumeration,28 such that, the
provision contemplates three different situations - a military treaty
the subject of which could be either (a) foreign bases, (b) foreign
troops, or (c) foreign facilities - any of the three standing alone
places it under the coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as
manifested during the deliberations of the 1986 Constitutional
Commission, is consistent with this interpretation:
"MR. MAAMBONG. I just want to address a question or two to
Commissioner Bernas.
This formulation speaks of three things: foreign military bases,
troops or facilities. My first question is: If the country does enter into
such kind of a treaty, must it cover the three-bases, troops or
facilities-or could the treaty entered into cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only
one or it covers three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can
enter into a treaty covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can
enter into a treaty covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little
bit more, we will find some. We just want to cover
everything."29 (Underscoring Supplied)
Moreover, military bases established within the territory of another
state is no longer viable because of the alternatives offered by new
means and weapons of warfare such as nuclear weapons, guided
missiles as well as huge sea vessels that can stay afloat in the sea
even for months and years without returning to their home country.
These military warships are actually used as substitutes for a land-
home base not only of military aircraft but also of military personnel
and facilities. Besides, vessels are mobile as compared to a land-
based military headquarters.
At this juncture, we shall then resolve the issue of whether or not
the requirements of Section 25 were complied with when the Senate
gave its concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops, or
facilities in the country, unless the following conditions are
sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must
be duly concurred in by the Senate and, when so required by
congress, ratified by a majority of the votes cast by the people in a
national referendum; and (c) recognized as a treaty by the other
contracting state.
There is no dispute as to the presence of the first two requisites in
the case of the VFA. The concurrence handed by the Senate through
Resolution No. 18 is in accordance with the provisions of the
Constitution, whether under the general requirement in Section 21,
Article VII, or the specific mandate mentioned in Section 25, Article
XVIII, the provision in the latter article requiring ratification by a
majority of the votes cast in a national referendum being
unnecessary since Congress has not required it.
As to the matter of voting, Section 21, Article VII particularly requires
that a treaty or international agreement, to be valid and effective,
must be concurred in by at least two-thirds of all the members of
the Senate. On the other hand, Section 25, Article XVIII simply
provides that the treaty be "duly concurred in by the Senate."
Applying the foregoing constitutional provisions, a two-thirds vote of
all the members of the Senate is clearly required so that the
concurrence contemplated by law may be validly obtained and
deemed present. While it is true that Section 25, Article XVIII
requires, among other things, that the treaty-the VFA, in the instant
case-be "duly concurred in by the Senate," it is very true however
that said provision must be related and viewed in light of the clear
mandate embodied in Section 21, Article VII, which in more specific
terms, requires that the concurrence of a treaty, or international
agreement, be made by a two -thirds vote of all the members of the
Senate. Indeed, Section 25, Article XVIII must not be treated in
isolation to section 21, Article, VII.
As noted, the "concurrence requirement" under Section 25, Article
XVIII must be construed in relation to the provisions of Section 21,
Article VII. In a more particular language, the concurrence of the
Senate contemplated under Section 25, Article XVIII means that at
least two-thirds of all the members of the Senate favorably vote to
concur with the treaty-the VFA in the instant case.
Under these circumstances, the charter provides that the Senate
shall be composed of twenty-four (24) Senators.30 Without a tinge of
doubt, two-thirds (2/3) of this figure, or not less than sixteen (16)
members, favorably acting on the proposal is an unquestionable
compliance with the requisite number of votes mentioned in Section
21 of Article VII. The fact that there were actually twenty-three (23)
incumbent Senators at the time the voting was made,31 will not alter
in any significant way the circumstance that more than two-thirds of
the members of the Senate concurred with the proposed VFA, even
if the two-thirds vote requirement is based on this figure of actual
members (23). In this regard, the fundamental law is clear that two-
thirds of the 24 Senators, or at least 16 favorable votes, suffice so as
to render compliance with the strict constitutional mandate of giving
concurrence to the subject treaty.
Having resolved that the first two requisites prescribed in Section 25,
Article XVIII are present, we shall now pass upon and delve on the
requirement that the VFA should be recognized as a treaty by the
United States of America.
Petitioners content that the phrase "recognized as a treaty,"
embodied in section 25, Article XVIII, means that the VFA should
have the advice and consent of the United States Senate pursuant to
its own constitutional process, and that it should not be considered
merely an executive agreement by the United States.
In opposition, respondents argue that the letter of United States
Ambassador Hubbard stating that the VFA is binding on the United
States Government is conclusive, on the point that the VFA is
recognized as a treaty by the United States of America. According to
respondents, the VFA, to be binding, must only be accepted as a
treaty by the United States.
This Court is of the firm view that the phrase "recognized as a
treaty" means that the other contracting partyaccepts or
acknowledges the agreement as a treaty.32 To require the other
contracting state, the United States of America in this case, to
submit the VFA to the United States Senate for concurrence
pursuant to its Constitution,33 is to accord strict meaning to the
phrase.
Well-entrenched is the principle that the words used in the
Constitution are to be given their ordinary meaning except where
technical terms are employed, in which case the significance thus
attached to them prevails. Its language should be understood in the
sense they have in common use.34
Moreover, it is inconsequential whether the United States treats the
VFA only as an executive agreement because, under international
law, an executive agreement is as binding as a treaty.35 To be sure,
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as long as the VFA possesses the elements of an agreement under
international law, the said agreement is to be taken equally as a
treaty.
A treaty, as defined by the Vienna Convention on the Law of
Treaties, is "an international instrument concluded between States
in written form and governed by international law, whether
embodied in a single instrument or in two or more related
instruments, and whatever its particular designation."36 There are
many other terms used for a treaty or international agreement,
some of which are: act, protocol, agreement, compromis d’
arbitrage, concordat, convention, declaration, exchange of notes,
pact, statute, charter and modus vivendi. All writers, from Hugo
Grotius onward, have pointed out that the names or titles of
international agreements included under the general
term treaty have little or no legal significance. Certain terms are
useful, but they furnish little more than mere description.37
Article 2(2) of the Vienna Convention provides that "the provisions
of paragraph 1 regarding the use of terms in the present Convention
are without prejudice to the use of those terms, or to the meanings
which may be given to them in the internal law of the State."
Thus, in international law, there is no difference between treaties
and executive agreements in their binding effect upon states
concerned, as long as the negotiating functionaries have remained
within their powers.38 International law continues to make no
distinction between treaties and executive agreements: they are
equally binding obligations upon nations.39
In our jurisdiction, we have recognized the binding effect of
executive agreements even without the concurrence of the Senate
or Congress. In Commissioner of Customs vs. Eastern Sea
Trading,40 we had occasion to pronounce:
"x x x the right of the Executive to enter into binding
agreements without the necessity of subsequent congressional
approval has been confirmed by long usage. From the earliest days
of our history we have entered into executive agreements covering
such subjects as commercial and consular relations, most-favored-
nation rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and the settlement of
claims. The validity of these has never been seriously questioned by
our courts.
"x x x x x x x x x
"Furthermore, the United States Supreme Court has expressly
recognized the validity and constitutionality of executive
agreements entered into without Senate approval. (39 Columbia
Law Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright Export
Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S.
324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796;
Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-
1906; California Law Review, Vol. 25, pp. 670-675; Hyde on
International Law [revised Edition], Vol. 2, pp. 1405, 1416-1418;
willoughby on the U.S. Constitution Law, Vol. I [2d ed.], pp. 537-540;
Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth,
International Law Digest, Vol. V, pp. 390-407). (Italics
Supplied)" (Emphasis Ours)
The deliberations of the Constitutional Commission which drafted
the 1987 Constitution is enlightening and highly-instructive:
"MR. MAAMBONG. Of course it goes without saying that as far as
ratification of the other state is concerned, that is entirely their
concern under their own laws.
FR. BERNAS. Yes, but we will accept whatever they say. If they say
that we have done everything to make it a treaty, then as far as we
are concerned, we will accept it as a treaty."41
The records reveal that the United States Government, through
Ambassador Thomas C. Hubbard, has stated that the United States
government has fully committed to living up to the terms of the
VFA.42 For as long as the united States of America accepts or
acknowledges the VFA as a treaty, and binds itself further to comply
with its obligations under the treaty, there is indeed marked
compliance with the mandate of the Constitution.
Worth stressing too, is that the ratification, by the President, of the
VFA and the concurrence of the Senate should be taken as a clear an
unequivocal expression of our nation’s consent to be bound by said
treaty, with the concomitant duty to uphold the obligations and
responsibilities embodied thereunder.
Ratification is generally held to be an executive act, undertaken by
the head of the state or of the government, as the case may be,
through which the formal acceptance of the treaty is proclaimed.43 A
State may provide in its domestic legislation the process of
ratification of a treaty. The consent of the State to be bound by a
treaty is expressed by ratification when: (a) the treaty provides for
such ratification, (b) it is otherwise established that the negotiating
States agreed that ratification should be required, (c) the
representative of the State has signed the treaty subject to
ratification, or (d) the intention of the State to sign the treaty subject
to ratification appears from the full powers of its representative, or
was expressed during the negotiation.44
In our jurisdiction, the power to ratify is vested in the President and
not, as commonly believed, in the legislature. The role of the Senate
is limited only to giving or withholding its consent, or concurrence,
to the ratification.45
With the ratification of the VFA, which is equivalent to final
acceptance, and with the exchange of notes between the Philippines
and the United States of America, it now becomes obligatory and
incumbent on our part, under the principles of international law, to
be bound by the terms of the agreement. Thus, no less than Section
2, Article II of the Constitution,46 declares that the Philippines adopts
the generally accepted principles of international law as part of the
law of the land and adheres to the policy of peace, equality, justice,
freedom, cooperation and amity with all nations.
As a member of the family of nations, the Philippines agrees to be
bound by generally accepted rules for the conduct of its
international relations. While the international obligation devolves
upon the state and not upon any particular branch, institution, or
individual member of its government, the Philippines is nonetheless
responsible for violations committed by any branch or subdivision of
its government or any official thereof. As an integral part of the
community of nations, we are responsible to assure that our
government, Constitution and laws will carry out our international
obligation.47 Hence, we cannot readily plead the Constitution as a
convenient excuse for non-compliance with our obligations, duties
and responsibilities under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of
States adopted by the International Law Commission in 1949
provides: "Every State has the duty to carry out in good faith its
obligations arising from treaties and other sources of international
law, and it may not invoke provisions in its constitution or its laws as
an excuse for failure to perform this duty."48
Equally important is Article 26 of the convention which provides that
"Every treaty in force is binding upon the parties to it and must be
performed by them in good faith." This is known as the principle
of pacta sunt servandawhich preserves the sanctity of treaties and
have been one of the most fundamental principles of positive
international law, supported by the jurisprudence of international
tribunals.49
NO GRAVE ABUSE OF DISCRETION
In the instant controversy, the President, in effect, is heavily faulted
for exercising a power and performing a task conferred upon him by
167
the Constitution-the power to enter into and ratify treaties. Through
the expediency of Rule 65 of the Rules of Court, petitioners in these
consolidated cases impute grave abuse of discretion on the part of
the chief Executive in ratifying the VFA, and referring the same to
the Senate pursuant to the provisions of Section 21, Article VII of the
Constitution.
On this particular matter, grave abuse of discretion implies such
capricious and whimsical exercise of judgment as is equivalent to
lack of jurisdiction, or, when the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, and it
must be so patent and gross as to amount to an evasion of positive
duty enjoined or to act at all in contemplation of law.50
By constitutional fiat and by the intrinsic nature of his office, the
President, as head of State, is the sole organ and authority in the
external affairs of the country. In many ways, the President is the
chief architect of the nation’s foreign policy; his "dominance in the
field of foreign relations is (then) conceded."51 Wielding vast powers
an influence, his conduct in the external affairs of the nation, as
Jefferson describes, is "executive altogether."52
As regards the power to enter into treaties or international
agreements, the Constitution vests the same in the President,
subject only to the concurrence of at least two-thirds vote of all the
members of the Senate. In this light, the negotiation of the VFA and
the subsequent ratification of the agreement are exclusive acts
which pertain solely to the President, in the lawful exercise of his
vast executive and diplomatic powers granted him no less than by
the fundamental law itself. Into the field of negotiation the Senate
cannot intrude, and Congress itself is powerless to invade
it.53 Consequently, the acts or judgment calls of the President
involving the VFA-specifically the acts of ratification and entering
into a treaty and those necessary or incidental to the exercise of
such principal acts - squarely fall within the sphere of his
constitutional powers and thus, may not be validly struck down,
much less calibrated by this Court, in the absence of clear showing of
grave abuse of power or discretion.
It is the Court’s considered view that the President, in ratifying the
VFA and in submitting the same to the Senate for concurrence, acted
within the confines and limits of the powers vested in him by the
Constitution. It is of no moment that the President, in the exercise of
his wide latitude of discretion and in the honest belief that the VFA
falls within the ambit of Section 21, Article VII of the Constitution,
referred the VFA to the Senate for concurrence under the
aforementioned provision. Certainly, no abuse of discretion, much
less a grave, patent and whimsical abuse of judgment, may be
imputed to the President in his act of ratifying the VFA and referring
the same to the Senate for the purpose of complying with the
concurrence requirement embodied in the fundamental law. In
doing so, the President merely performed a constitutional task and
exercised a prerogative that chiefly pertains to the functions of his
office. Even if he erred in submitting the VFA to the Senate for
concurrence under the provisions of Section 21 of Article VII, instead
of Section 25 of Article XVIII of the Constitution, still, the President
may not be faulted or scarred, much less be adjudged guilty of
committing an abuse of discretion in some patent, gross, and
capricious manner.
For while it is conceded that Article VIII, Section 1, of the
Constitution has broadened the scope of judicial inquiry into areas
normally left to the political departments to decide, such as those
relating to national security, it has not altogether done away with
political questions such as those which arise in the field of foreign
relations.54 The High Tribunal’s function, as sanctioned by Article
VIII, Section 1, "is merely (to) check whether or not the governmental
branch or agency has gone beyond the constitutional limits of its
jurisdiction, not that it erred or has a different view. In the absence
of a showing… (of) grave abuse of discretion amounting to lack of
jurisdiction, there is no occasion for the Court to exercise its
corrective power…It has no power to look into what it thinks is
apparent error."55
As to the power to concur with treaties, the constitution lodges the
same with the Senate alone.1âwphi1 Thus, once the
Senate56 performs that power, or exercises its prerogative within the
boundaries prescribed by the Constitution, the concurrence cannot,
in like manner, be viewed to constitute an abuse of power, much
less grave abuse thereof. Corollarily, the Senate, in the exercise of its
discretion and acting within the limits of such power, may not be
similarly faulted for having simply performed a task conferred and
sanctioned by no less than the fundamental law.
For the role of the Senate in relation to treaties is essentially
legislative in character;57 the Senate, as an independent body
possessed of its own erudite mind, has the prerogative to either
accept or reject the proposed agreement, and whatever action it
takes in the exercise of its wide latitude of discretion, pertains to the
wisdom rather than the legality of the act. In this sense, the Senate
partakes a principal, yet delicate, role in keeping the principles
of separation of powers and of checks and balances alive and
vigilantly ensures that these cherished rudiments remain true to
their form in a democratic government such as ours. The
Constitution thus animates, through this treaty-concurring power of
the Senate, a healthy system of checks and balances indispensable
toward our nation’s pursuit of political maturity and growth. True
enough, rudimentary is the principle that matters pertaining to the
wisdom of a legislative act are beyond the ambit and province of the
courts to inquire.
In fine, absent any clear showing of grave abuse of discretion on the
part of respondents, this Court- as the final arbiter of legal
controversies and staunch sentinel of the rights of the people - is
then without power to conduct an incursion and meddle with such
affairs purely executive and legislative in character and nature. For
the Constitution no less, maps out the distinct boundaries and limits
the metes and bounds within which each of the three political
branches of government may exercise the powers exclusively and
essentially conferred to it by law.
WHEREFORE, in light of the foregoing disquisitions, the instant
petitions are hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Kapunan, Quisumbing, Purisima, Pardo,
Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Melo, and Vitug, JJ., join the dissent of J. Puno.
Puno , J., see dissenting opinion.
Mendoza, J., in the result.
Panganiban, J., no part due to close personal and former
professional relations with a petitioner, Sen. J.R. Salonga.
Footnotes
1 Article V. Any such armed attack and all measures taken
as a result thereof shall be immediately reported to the
Security Council of the United Nations. Such measures
shall be terminated when the Security Council has taken
the measure necessary to restore and maintain
international peace and security.
2Joint Report of the Senate Committee on Foreign
Relation and the Committee on National Defense and
Security on the Visiting Forces Agreement.
3 Joint Committee Report.
4 Petition, G.R. No. 138698, Annex "B", Rollo, pp. 61-62.
"INSTRUMENT OF RATIFICATION
168
TO ALL TO WHOM THESE PRESENTS SHALL
COME, GREETINGS:
KNOW YE, that whereas, the Agreement
between the government of the Republic of the
Philippines and the Government of the United
States of America Regarding the Treatment of
the United States Armed Forces Visiting the
Philippines, hereinafter referred to as VFA, was
signed in Manila on 10 February 1998;
WHEREAS, the VFA is essentially a framework to
promote bilateral defense cooperation between
the Republic of the Philippines and the United
States of America and to give substance to the
1951 RP-US Mutual Defense Treaty (RP-US MDT).
To fulfill the objectives of the RP-US MDT, it is
necessary that regular joint military exercises are
conducted between the Republic of the
Philippines and the United States of America;
WHEREAS, the VFA seeks to provide a conducive
setting for the successful conduct of combined
military exercises between the Philippines and
the United States armed forces to ensure
interoperability of the RP-US MDT;
WHEREAS, in particular, the VFA provides the
mechanism for regulating the circumstances and
conditions under which US armed forces and
defense personnel may be present in the
Philippines such as the following inter alia:
(a) specific requirements to facilitate
the admission of United States
personnel and their departure from
the Philippines in connection with
activities covered by the agreement;
(b) clear guidelines on the prosecution
of offenses committed by any member
of the United States armed forces
while in the Philippines;
(c) precise directive on the importation
and exportation of United States
Government equipment, materials,
supplies and other property imported
into or acquired in the Philippines by or
on behalf of the United States armed
forces in connection with activities
covered by the Agreement; and
(d) explicit regulations on the entry of
United States vessels, aircraft, and
vehicles;
WHEREAS, Article IX of the Agreement provides
that it shall enter into force on the date on which
the Parties have notified each other in writing,
through diplomatic channels, that they have
completed their constitutional requirements for
its entry into force. It shall remain in force until
the expiration of 180 days from the date on
which either Party gives the other Party written
notice to terminate the Agreement.
NOW, THEREFORE, be it known that I, JOSEPH
EJERCITO ESTRADA, President of the Republic of
the Philippines, after having seen and considered
the aforementioned Agreement between the
Government of the United States of America
Regarding the Treatment of the United States
Armed Forces Visiting the Philippines, do hereby
ratify and confirm the same and each and every
Article and Clause thereof.
IN TESTIMONY WHEREOF, I have hereunto set
my hand and caused the seal of the Republic of
the Philippines to be affixed.
GIVEN under my hand at the City of Manila, this
5th day of October, in the year of Our Lord one
thousand nine hundred and ninety-eight.
5 Petition, G.R. No. 138587, Annex "C", Rollo, p. 59.
The Honorable Senate President and
Member of the Senate
Senate of the Philippines
Pasay City
Gentlemen and Ladies of the Senate:
I have the honor to transmit herewith the
Instrument of Ratification duly signed by H.E.
President Joseph Ejercito Estrada, his message to
the Senate and a draft Senate Resolution of
Concurrence in connection with the ratification
of the AGREEMENT BETWEEN THE
GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES AND THE GOVERNMENT OF THE
UNITED STATES OF AMERICA REGARDING THE
TREATMENT OF THE UNITED STATES ARMED
FORCES VISITING THE PHILIPPINES.
With best wishes.
Very truly yours,
RONALDO B. ZAMORA
Executive Secretary
6 Petition, G.R. No. 138698, Annex "C".
7Between January 26 and March 11, 1999, the two
Committees jointly held six public hearings-three in Manila
and one each in General Santos, Angeles City and Cebu
City.
8 Petition , G.R. No. 138570, Annex "C", Rollo, pp. 88-95.
"WHEREAS, the VFA is essentially a framework
for promoting the common security interest of
the two countries; and for strengthening their
bilateral defense partnership under the 1951 RP-
US Mutual Defense Treaty;
"x x x x x x x x x
"WHEREAS, the VFA does not give unrestricted
access or unhampered movement to US Forces
in the Philippines; in fact, it recognizes the
Philippine government as the sole authority to
approve the conduct of any visit or activity in the
country by US Forces, hence the VFA is not a
derogation of Philippine sovereignty;
"WHEREAS, the VFA is not a basing arrangement;
neither does it pave way for the restoration of
the American bases and facilities in the
Philippines, in contravention of the prohibition
against foreign bases and permanent stationing
of foreign troops under Article XVIII, Section 25
of the 1987 Constitution-because the agreement
envisions only temporary visits of US personnel
169
engaged in joint military exercises or other
activities as may be approved by the Philippine
Government;
"WHEREAS, the VFA gives Philippine courts
primary jurisdiction over offenses that may be
committed by US personnel within Philippine
territory, with the exception of those incurred
solely against the security or property of the Us
or solely against the person or property of US
personnel, and those committed in the
performance of official duty;
"x x x x x x x x x
"WHEREAS, by virtue of Article II of the VFA, the
United States commits to respect the laws of the
Republic of the Philippines, including the
Constitution, which declares in Article II, Section
8 thereof, a policy of freedom from nuclear
weapons consistent with the national interest;
"WHEREAS, the VFA shall serve as the legal
mechanism to promote defense cooperation
between two countries-enhancing the
preparedness of the Armed Forces of the
Philippines against external threats; and enabling
the Philippines to bolster the stability of the
Pacific area in a shared effort with its neighbor-
states;
"WHEREAS, the VFA will enhance our political,
economic and security partnership and
cooperation with the United States-which has
helped promote the development of our country
and improved the lives of our people;
"WHEREAS, in accordance with the powers and
functions of Senate as mandated by the
Constitution, this Chamber, after holding several
public hearings and deliberations, concurs in the
President’s ratification of the VFA, for the
following reasons:
(1) The Agreement will provide the
legal mechanism to promote defense
cooperation between the Philippines
and the U.S. and thus enhance the
tactical, strategic, and technological
capabilities of our armed forces;
(2) The Agreement will govern the
treatment of U.S., military and defense
personnel within Philippine territory,
while they are engaged in activities
covered by the Mutual Defense Treaty
and conducted with the prior approval
of the Philippine government; and
(3) The Agreement will provide the
regulatory mechanism for the
circumstances and conditions under
which U.S. military forces may visit the
Philippines; x x x
"x x x x x x x x x
"WHEREAS, in accordance with Article IX of the
VFA, the Philippine government reserves the
right to terminate the agreement unilaterally
once it no longer redounds to our national
interest: Now, therefore, be it
"Resolved, that the Senate concur, as it hereby
concurs, in the Ratification of the Agreement
between the Government of the Republic of the
Philippines and the United States of America
Regarding the Treatment of United States Armed
Forces visiting the Philippines. x x x"
9 The following voted for concurrence: (1) Senate
President Marcelo Fernan, (2) Senate President Pro
Tempore Blas Ople, (3) Senator Franklin Drilon, (4) Senator
Rodolfo Biazon, (5) Senator Francisco Tatad, (6) Senator
Renato Cayetano, (7) Senator Teresa Aquino-Oreta, (8)
Senator Robert Barbers, (9) Senator Robert Jaworski, (10)
Senator Ramon Magsaysay, Jr., (11) Senator John Osmeña,
(12) Senator Juan Flavier, (13) Senator Mirriam Defensor-
Santiago, (14) Senator Juan Ponce-Enrile, (15) Senator
Vicente Sotto III, (16) Senator Ramon Revilla, (17) Senator
Anna Dominique Coseteng, and (18) Senator Gregorio
Honasan.
Only the following voted to reject the ratification
of the VFA: (1) Senator Teofisto Guingona, Jr., (2)
Senator Raul Roco, (3) Senator Sergio Osmena III,
(4) Senator Aquilino Pimentel, Jr., and (5)
Senator Loren Legarda-Leviste.
10 See Petition, G.R. No. 138570, Rollo, pp. 105.
11 Minute Resolution dated June 8, 1999.
12 See Consolidated Comment.
13
Reply to Consolidated Comment, G.R. No. 138698; G.R.
No. 138587.
14Valmonte vs. Philippine Charity Sweepstakes Office,
(Res.) G.R. No. 78716, September 22, 1987, cited in
Telecommunications and Broadcast Attorneys of the
Philippines, Inc. vs. COMELEC, 289 SCRA 337, 343 [1998];
Valley Forge College vs. Americans United, 454 US 464, 70
L. Ed. 2d 700 [1982]; Bugnay Const. And Dev. Corp. vs.
Laron, 176 SCRA 240, 251-252 [1989]; Tatad vs. Garcia, Jr.
243 SCRA 436, 473 [1995].
15See Article VI, Sections 24, 25 and 29 of the 1987
Constitution.
16Pascual vs. Secretary of Public Works, 110 Phil. 331
[1960]; Maceda vs. Macaraig, 197 SCRA 771 [1991];
Lozada vs. COMELEC, 120 SCRA 337 [1983]; Dumlao vs.
COMELEC, 95 SCRA 392 [1980]; Gonzales vs. Marcos, 65
SCRA 624 [1975].
17 176 SCRA 240, 251-252 [1989].
18 235 SCRA 506 [1994].
19 Consolidated Memorandum, p. 11.
20Araneta vs. Dinglasan, 84 Phil. 368 [1949]; Iloilo Palay &
Corn Planters Association vs. Feliciano, 121 Phil. 358
[1965]; Philippine Constitution Association vs. Gimenez,
122 Phil. 894 [1965].
21 21 SCRA 774 [1967].
22180 SCRA 496, 502 [1988] cited in Kilosbayan, Inc. vs.
Guingona, Jr., 232 SCRA 110 [1994].
23 197 SCRA 52, 60 [1991].
24 232 SCRA 110 [1994].
170
25J. Santos vs. Northwest Orient Airlines, 210 SCRA 256,
261 [1992].
26Manila Railroad Co. vs. Collector of Customs, 52 Phil.
950.
27
157 SCRA 282 [1988] cited in Republic vs.
Sandiganbayan, 173 SCRA 72, 85 [1989].
28 Castillo-co v. Barbers, 290 SCRA 717, 723 (1998).
29Records of the Constitutional Commission, September
18, 1986 Deliberation, p. 782.
301987 Constitution, Article VI, Section 2. - the Senate shall
be composed of twenty-four Senators who shall be elected
at large by the qualified voters of the Philippines, as may
be provided by law.
31The 24th member (Gloria Macapagal-Arroyo) of the
Senate whose term was to expire in 2001 was elected
Vice-President in the 1998 national elections.
32 Ballentine’s Legal Dictionary, 1995.
33Article 2, Section 2, paragraph 2 of the United States
Constitution, speaking of the United States President
provides: "He shall have power, by and with the advice and
consent of the Senate to make treaties, provided two-
thirds of the senators present concur."
34J.M. Tuason & Co., Inc. vs. Land Tenure Association, 31
SCRA 413 [1970].
35 Altman Co. vs. United States, 224 US 263 [1942], cited in
Coquia and Defensor-Santiago, International Law, 1998 Ed.
P. 497.
36 Vienna Convention, Article 2.
37Gerhard von Glahn, Law among Nations, an Introduction
to Public International Law, 4th Ed., p. 480.
38 Hackworth, Digest of International Law, Vol. 5, p. 395,
cited in USAFE Veterans Association Inc. vs. Treasurer of
the Philippines, 105 Phil. 1030, 1037 [1959].
39 Richard J. Erickson, "The Making of Executive
Agreements by the United States Department of Defense:
An agenda for Progress," 13 Boston U. Intl. L.J. 58 [1995],
citing Restatement [third] of Foreign Relations Law pt. III,
introductory note [1987] and Paul Reuter, Introduction to
the Law of Treaties 22 [Jose Mico & Peter Haggemacher
trans., 1989] cited in Consolidated Memorandum, p. 32.
40 3 SCRA 351, 356-357 [1961].
414 Record of the Constitutional Commission 782 [Session
of September 18, 1986].
42Letter of Ambassador Hubbard to Senator Miriam
Defensor-Santiago:
"Dear Senator Santiago:
I am happy to respond to your letter of April 29,
concerning the way the US Government views
the Philippine-US Visiting Forces Agreement in
US legal terms. You raise an important question
and I believe this response will help in the Senate
deliberations.
As a matter of both US and international law, an
international agreement like the Visiting Forces
Agreement is legally binding on the US
Government, In international legal terms, such
an agreement is a ‘treaty.’ However, as a matter
of US domestic law, an agreement like the VFA is
an ‘executive agreement,’ because it does not
require the advice and consent of the senate
under Article II, section 2 of our Constitution.
The President’s power to conclude the VFA with
the Philippines, and other status of forces
agreements with the other countries, derives
from the President’s responsibilities for the
conduct of foreign relations (Art. II, Sec. 1) and
his constitutional powers as Commander in Chief
of the Armed Forces. Senate advice and consent
is not needed, inter alia, because the VFA and
similar agreements neither change US domestic
nor require congressional appropriation of funds.
It is important to note that only about five
percent of the international agreement entered
into by the US Governments require Senate
advice and consent. However, in terms of the US
Government’s obligation to adhere to the terms
of the VFA, there is no difference between a
treaty concurred in by our Senate and an
executive agreement. Background information
on these points can be found in the
‘Restatement 3rd of the Foreign Relations Law of
the United States,’ Sec. 301, et seq. [1986].
I hope you find this answer helpful. As the
President’s representative to the Government of
the Philippines, I can assure you that the United
States Government is fully committed to living
up to the terms of the VFA.
Sincerely yours,
THOMAS C. HUBBARD
Ambassador"
43Gerhard von Glahn, Law Among Nations, An
Introduction to Public International Law, 4th Ed., p. 486.
44Article 14 of the Vienna Convention, cited in Coquia and
Defensor-Santiago, Intenational Law, 1998 Ed., pp. 506-
507.
45 Cruz, Isagani, "International Law", 1985 Ed., p. 175.
46Sec. 2. The Philippines renounces war as an instrument
of national policy, adopts the generally accepted principles
of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations.
47Louis Henkin, Richard C. Pugh, Oscar Schachter, Hans
Smit, International Law, Cases and Materials, 2nd Ed
American Casebook Series, p. 136.
48 Gerhard von Glah, supra, p. 487.
49 Harris, p. 634 cited in Coquia, International Law, supra,
p. 512.
50Cuison vs. CA, 289 SCRA 159 [1998]. See also Jardine vs.
NLRC, G.R. No. 119268, Feb 23, 2000 citing Arroyo vs. De
Venecia, 277 SCRA 268 [1997].
51Cortes, "The Philippine Presidency a study of Executive
Power, 2nd Ed.," p. 195.
171
 52 Cruz, Phil. Political Law, 1995 Ed., p. 223.
53United States vs. Curtis Wright Corp., 299 U.S. 304
(1934), per Justice Sutherland.
54 Arroyo vs. De Venecia, 277 SCRA 269 [1997].
55Co vs. Electoral Tribunal of the House of
Representatives, 199 SCRA 692, 701 (1991); Llamas vs.
Orbos, 202 SCRA 849, 857 (1991); Lansang vs. Garcia, 42
SCRA at 480-481 [1971].
561987 Constitution, Article VI, Section 1. - The legislative
power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of
Representatives, except to the extent reserved to the
people by the provision on initiative and referendum.
57
See Akehurst, Michael: Modern Introduction to
International Law, (London: George Allen and Unwin) 5th
ed., p. 45; United States vs. Curtiss-Wright Export Corp.,
299 U.S. 304, 319 (1936).
DISSENTING OPINION
PUNO, J.:
The cases at bar offer a smorgasbord of issues. As summed up by the
Solicitor General, they are:
"I
DO PETITIONERS HAVE STANDING AS CONCERNED CITIZENS,
TAXPAYERS, OR LEGISLATORS?
II
IS THE VFA CONSISTENT WITH THE GENERAL WELFARE CLAUSE OF
THE CONSTITUTION?
III
IS THE VFA GOVERNED BY THE PROVISIONS OF SECTION 21, ARTICLE
VII OR SECTION 25, ARTICLE XVIII OF THE CONSTITUTION?
IV
DOES THE VFA CONSTITUTE AN ABDICATION OF PHILIPPINE
SOVEREIGNTY?
(a) DOES THE VFA DEPRIVE PHILIPPINE COURTS OF THEIR
JURISDICTION TO HEAR AND TRY OFFENSES COMMITTED BY U.S.
MILITARY PERSONNEL?
(b) IS THIS COURT DEPRIVED OF ITS JURISDICTION OVER OFFENSES
PUNISHABLE BY RECLUSIONPERPETUA OR HIGHER?
(c) IS THE GRANT OF TAX EXEMPTIONS UNDER THE VFA
UNCONSTITUTIONAL?
V refers in its preamble,3 provides the slightest suggestion on the
DOES THE VFA VIOLATE THE EQUAL PROTECTION CLAUSE UNDER
SECTION 1, ARTICLE III OF THE CONSTITUTION?
VI
IS THE NUCLEAR BAN UNDER SECTION 8, ARTICLE II OF THE
CONSITUTION VIOLATED BY THE VFA?
VII
ARE FILIPINOS DENIED THEIR PERSONAL AND PROPERTY RIGHT TO
SUE FOR TORTS AND DAMAGES?
VIII
WAS THERE UNDUE DELEGATION OF LEGISLATIVE POWER IN THE
APPROVAL OF THE VFA?
IX
DOES THE VFA CONTRAVENE THE POLICY OF NEUTRALITY UNDER
SECTION 7, ARTICLE II OF THE CONSTITUTION?
X
IS THE TERM "ACTIVITIES" UNDER THE COVERAGE OF THE VFA
VAGUE, UNQUALIFIED OR UNCERTAIN?"
I like to think that the most significant issue is whether the Visiting
Forces Agreement (VFA) violates Sec. 25, Art. XVIII of the
Constitution. I shall therefore limit my opinion on this jugular issue.
The 1987 Constitution provides in Sec. 25, Art. XVIII, viz:
"After the expiration in 1991 of the Agreement between the
Republic of the Philippines and the United States of America
concerning Military Bases, foreign military bases, troops, or facilities
shall not be allowed in the Philippines except under a treaty duly
concurred in by the Senate and, when the Congress so requires,
ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the
other contracting State."
This provision lays down three constitutional requisites that must be
complied with before foreign military bases, troops, or facilities can
be allowed in Philippine territory, namely: (1) their presence should
be allowed by a treaty duly concurred in by the Philippine Senate; (2)
when Congress so requires, such treaty should be ratified by a
majority of the votes cast by the Filipino people in a national
referendum held for that purpose; and (3) such treaty should be
recognized as a treaty by the other contracting party.
To start with, respondents, with unrelenting resolve, claim that
these constitutional requirements are not applicable to the VFA.
They contend that the VFA, as its title implies, contemplates
merely temporary visits of U.S. military troops in Philippine territory,
and thus does not come within the purview of Sec. 25, Art. XVIII of
the Constitution. They assert that this constitutional provision
applies only to the stationing or permanent presence of foreign
military troops on Philippine soil since the word "troops" is
mentioned along with "bases" and "facilities" which are permanent
in nature.1 This assertion would deserve serious attention if the
temporary nature of these visits were indeed borne out by the
provisions of the VFA. If we turn, however, a heedful eye on the
provisions of the VFA as well as the interpretation accorded to it by
the government officials charged with its negotiation and
implementation, the temporary nature of the visits would turn out
to be a mirage in a desert of vague provisions of the VFA. Neither
the VFA nor the Mutual Defense Treaty between the Republic of the
Philippines and the United States of America2 to which the VFA
duration of visits of U.S. forces in Philippine territory. The joint
public hearings on the VFA conducted by the Senate Committee on
Foreign Relations and the Senate Committee on National Defense
and Security give us a keyhole to the time frame involved in these
visits.
Secretary of Foreign Affairs Domingo L. Siazon, the Philippine’s
signatory to the VFA, testified before the said committees that even
before the signing of the VFA, Philippine and U.S. troops conducted
joint military exercises in Philippine territory for two days to four
172
weeks at the frequency of ten to twelve exercises a year. The
"Balikatan", the largest combined military exercise involving about
3,000 troops, lasted at an average of three to four weeks and
occurred once every year or one and a half years.4 He further
declared that the VFA contemplates the same time line for visits of
U.S. troops, but argued that even if these troops conduct ten to
twelve exercises a year with each exercise lasting for two to three
weeks, their stay will not be uninterrupted, hence, not
permanent.5 Secretary of National Defense Orlando S. Mercado
further testified that the VFA will allow joint military exercises
between the Philippine and U.S. troops on a larger scale than those
we had been undertaking since 1994.6 As the joint military exercises
will be conducted on a larger scale, it would be reasonable to project
an escalation of the duration as well as frequency of past joint
military exercises between Philippine and U.S. troops.
These views on the temporary nature of visits of U.S. troops cannot
stand for, clearly, the VFA does not provide for a specific and limited
period of effectivity. It instead provides an open-ended term in Art.
IX, viz: ". . . (t)his agreement shall remain in force until the expiration
of 180 days from the date on which either party gives the other
party notice in writing that it desires to terminate the agreement."
No magic of semantics will blur the truth that theVFA could be in
force indefinitely. The following exchange between Senator Aquilino
Q. Pimentel, Jr. and Secretary Siazon in the public hearings on the
VFA is apropos to the issue:
"SEN. PIMENTEL. . . . In other words, this kind of activities are not
designed to last only within one year, for example, the various visits,
but can cover eternity until the treaty is abrogated?
MR. SIAZON. Well, Your Honor, this is an exercise for the protection
of our national security, and until conditions are such that there is
no longer a possible threat to our national security, then you will
have to continue exercising, Your Honor, because we cannot take a
chance on it.
SEN. PIMENTEL. So, this will be temporarily permanent, or
permanently temporary?
MR. SIAZON. Permanently temporary, Your Honor."7
The worthiest of wordsmiths cannot always manipulate the meaning
of words. Black’s Law Dictionary defines "temporary" as "that which
is to last for a limited time only, as distinguished from that which is
perpetual or indefinite in its duration"8 and states that "permanent"
is "generally opposed to ‘temporary’ but not always meaning
perpetual."9 The definitions of "temporary" and "permanent" in
Bouvier’s Law Dictionary are of similar import: temporary is "that
which is to last for a limited time"10 while permanent "does not
always embrace the idea of absolute perpetuity."11 By these
definitions, even the contingency that the Philippines may abrogate
the VFA when there is no longer any threat to our national security
does not make the visits of U.S. troops temporary, nor do short
interruptions in or gaps between joint military exercises carve them
out from the definition of "permanent" as permanence does not
necessarily contemplate absolute perpetuity.
It is against this tapestry woven from the realities of the past and a
vision of the future joint military exercises that the Court must draw
a line between temporary visits and permanent stay of U.S.
troops. The absence in the VFA of the slightest suggestion as to the
duration of visits of U.S. troops in Philippine territory, coupled with
the lack of a limited term of effectivity of the VFA itself justify the
interpretation that the VFA allows permanent, not merely
temporary, presence of U.S. troops on Philippine soil. Following
Secretary Siazon’s testimony, if the visits of U.S. troops could last for
four weeks at the most and at the maximum of twelve times a year
for an indefinite number of years, then by no stretch of logic can
these visits be characterized as temporary because in fact, the U.S.
troops could be in Philippine territory 365 days a year for 50 years --
longer than the duration of the 1947 RP-US Military Bases
Agreement12 which expired in 1991 and which, without question,
contemplated permanent presence of U.S. bases, facilities, and
troops.
To be sure, even former Secretary of Justice, Serafin Cuevas,
admitted in the same public hearings that the subject matter of the
VFA, i.e., the visits and activities of U.S. troops in Philippine territory,
partakes of a permanent character. He declared with clarity:
"MR. CUEVAS. . . . Why we considered this as a treaty is because the
subject therein treated had some character of permanence; and
secondly, there is a change insofar as some of our laws are
concerned."13
Thus, regardless of whether Sec. 25, Art. XVIII of the Constitution
contemplates permanent presence of foreign military troops alone,
or temporary presence as well, the VFA comes within its purview as
it allows the permanent presence of U.S. troops on Philippine soil.
Contrary to respondents’ allegation, the determination of the
permanent nature of visits of U.S. troops under the VFA is an issue
ripe for adjudication since Sec. 25 of Art. XVIII speaks of the manner
by which U.S. troops may be allowed to enter Philippine territory.
We need not wait and see, therefore, whether the U.S. troops will
actually conduct military exercises on Philippine soil on a permanent
basis before adjudicating this issue. What is at issue is whether the
VFA allows such permanent presence of U.S. troops in Philippine
territory.
To determine compliance of the VFA with the requirements of Sec.
25, Art. XVIII of the Constitution, it is necessary to ascertain the
intent of the framers of the Constitution as well as the will of the
Filipino people who ratified the fundamental law. This exercise
would inevitably take us back to the period in our history when U.S.
military presence was entrenched in Philippine territory with the
establishment and operation of U.S. Military Bases in several parts of
the archipelago under the 1947 R.P.-U.S. Military Bases Agreement.
As articulated by Constitutional Commissioner Blas F. Ople in the
1986 Constitutional Commission deliberations on this provision, the
1947 RP-US Military Bases Agreement was ratified by the Philippine
Senate, but not by the United States Senate. In the eyes of Philippine
law, therefore, the Military Bases Agreement was a treaty, but by
the laws of the United States, it was a mere executive
agreement.14 This asymmetry in the legal treatment of the Military
Bases Agreement by the two countries was believed to be a slur to
our sovereignty. Thus, in the debate among the Constitutional
Commissioners, the unmistakable intention of the commission
emerged that thisanomalous asymmetry must never be
repeated.15 To correct this historical aberration, Sec. 25, Art. XVIII of
the Constitution requires that the treaty allowing the presence of
foreign military bases, troops, and facilities should also be
"recognized as a treaty by the other contracting party." In plain
language, recognition of the United States as the other contracting
party of the VFA should be by the U.S. President with the advice and
consent of the U.S. Senate.16 The following exchanges manifest this
intention:
"MR. OPLE. Will either of the two gentlemen yield to just one
question for clarification? Is there anything in this formulation,
whether that of Commissioner Bernas or of Commissioner Romulo,
that will prevent the Philippine government from abrogating the
existing bases agreement?
FR. BERNAS. To my understanding, none.
MR. ROMULO. I concur with Commissioner Bernas.
MR. OPLE. I was very keen to put this question because I had taken
the position from the beginning - and this is embodied in a
resolution filed by Commissioners Natividad, Maambong and
Regalado - that it is very important that the government of the
Republic of the Philippines be in a position to terminate or abrogate
the bases agreement as one of the options. . . . we have
acknowledged starting at the committee level that the bases
agreement was ratified by our Senate; it is a treaty under Philippine
law. But as far as the Americans are concerned, the Senate never
took cognizance of this and therefore, it is an executive agreement.
That creates a wholly unacceptable asymmetry between the two
countries. Therefore, in my opinion, the right step to take, if the
government of our country will deem it in the national interest to
173
terminate this agreement or even to renegotiate it, is that we must
begin with a clean slate; we should not be burdened by the flaws of
the 1947 Military Bases Agreement. . .
MR. ROMULO. Madam President, I think the two phrases in the
Bernas formulation take care of Commissioner Ople’s concerns.
The first says "EXCEPT UNDER THE TERMS OF A TREATY." That
means that if it is to be renegotiated, it must be under the terms of a
new treaty. The second is the concluding phrase which says: "AND
RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING STATE."
xxx
MR. SUAREZ. Is the proposal prospective and not retroactive in
character?
FR. BERNAS. Yes, it is prospective because it does not touch the
validity of the present agreement. However, if a decision should be
arrived at that the present agreement is invalid, then even prior to
1991, this becomes operative right away.
MR. SUAREZ. In other words, we do not impress the previous
agreements with a valid character, neither do we say that they are
null and void ab initio as claimed by many of us here.
FR. BERNAS. The position I hold is that it is not the function of this
Commission to pass judgment on the validity or invalidity of the
subsisting agreement.
MR. SUAREZ. . . . the proposal requires recognition of this treaty by
the other contracting nation. How would that recognition be
expressed by that other contracting nation? That is in accordance
with their constitutional or legislative process, I assume.
FR. BERNAS. As Commissioner Romulo indicated, since this certainly
would refer only to the United States, because it is only the United
States that would have the possibility of being allowed to have
treaties here, then we would have to require that the Senate of the
United States concur in the treaty because under American
constitutional law, there must be concurrence on the part of the
Senate of the United States to conclude treaties.
xxx
FR. BERNAS. When I say that the other contracting state must
recognize it as a treaty, by that I meanit must perform all the acts
required for the agreement to reach the status of a treaty under
their jurisdiction." (emphasis supplied)17
In ascertaining the VFA’s compliance with the constitutional
requirement that it be "recognized as a treaty by the other
contracting state," it is crystal clear from the above exchanges of the
Constitutional Commissioners that the yardstick should be U.S.
constitutional law. It is therefore apropos to make a more in depth
study of the U.S. President’s power to enter into executive
agreements under U.S. constitutional law.
Sec. 2, Art. II, Clause 2 of the U.S. Constitution provides that the
President "shall have Power, by and with the Advice and Consent of
the Senate, to make Treaties, provided two thirds of the Senators
present concur." The U.S. Constitution does not define "treaties".
Nevertheless, the accepted definition of a "treaty" is that of "an
agreement between two or more states or international
organizations that is intended to be legally binding and is governed
by international law."18 Although the United States did not formally
ratify the Vienna Convention on the Law of Treaties, its definition of
a treaty has been applied by U.S. courts and the State Department
has stated that the Vienna Convention represents customary
international law.19 The Vienna Convention defines a treaty as "an
international agreement concluded between States in written form
and governed by international law."20 It has been observed that this
definition is broader than the sense in which "treaty" is used in the
U.S. Constitution. In U.S. practice, a "treaty" is only one of four types
of international agreements, namely: Article II treaties, executive
agreements pursuant to a treaty, congressional-executive
agreements, and sole executive agreements.21
The term "executive agreement" is used both colloquially and in
scholarly and governmental writings as a convenient catch-all to
subsume all international agreements intended to bind the United
States and another government, other than those which receive
consent of two-thirds of the U.S. Senate.22 The U.S. Constitution
does not expressly confer authority to make these executive
agreements, hence the authority to make them, their scope, and
legal force have been the subject of a long-ongoing debate.23 This,
notwithstanding,executive agreements have grown to be a primary
instrument of foreign policy in the United States. In 1789-1839, the
United States concluded 60 treaties and only 27 executive
agreements. In 1930-1939, the United States entered into 142
treaties and 144 executive agreements. In 1940-1949, 116 treaties
and 919 executive agreements were concluded by the United States.
From 1980-1988, the United States entered into 136 treaties and
3,094 executive agreements. In sum, by 1988, there were 12,778
executive agreements as opposed to 1,476 treaties, accounting for
about 90% of the international agreements concluded by the United
States.24
The upsurge in the use of executive agreements in the post World
War II period may be attributed to several factors. President Franklin
Roosevelt set a precedent for the more recent presidents by, for
instance, completing the Destroyer-for-Bases deal of 1940 with an
executive agreement. President Harry S. Truman likewise concluded
the Potsdam Agreement by executive agreement. The U.S.
Presidents also committed military missions in Honduras and El
Salvador in the 1950’s; pledged security to Turkey, Iran, and
Pakistan; acquired permission from the British to use the island of
Diego Garcia for military purposes in the 1960’s; and established a
military mission in Iran in 1974, all by way of executive
agreements.25 U.S. Supreme Court decisions affirming the validity of
executive agreements have also contributed to the explosive growth
in their usage.26 Another factor that accelerated its use was the
foreign policy cooperation between Congress and the executive as
expressed in the postwar refrain that "politics must end at the
water’s edge."27 The fourth factor is the expansion of executive
institutions including foreign policy machinery and
information.28 The fifth factor is the Cold War which put the United
States in a "constant state of emergency" which required expediency
in decisions and actions regarding the use of force or diplomacy. Last
but not the least, the nuclear weapons race and instantaneous
global communication made centralized foreign policy machinery
under the U.S. President necessary.29
These executive agreements which have grown to be the primary
instrument of U.S. foreign policy may be classified into three types,
namely:
(1) Treaty-authorized executive agreements, i.e., agreements made
by the President pursuant to authority conferred in a prior treaty; 30
(2) Congressional-executive agreements, i.e., agreements either (a)
negotiated by the President with prior Congressional authorization
or enactment or (b) confirmed by both Houses of Congress after the
fact of negotiation;31 and
(3) Presidential or sole executive agreements, i.e., agreements made
by the President based on his exclusive presidential powers, such as
the power as commander-in-chief of the armed forces pursuant to
which he conducts military operations with U.S. allies, or his power
to receive ambassadors and recognize foreign governments.32
This classification is important as the different types of executive
agreements bear distinctions in terms of constitutional basis, subject
matter, and legal effects in the domestic arena. For instance,treaty-
authorized executive agreements do not pose constitutional
problems as they are generally accepted to have been pre-approved
by the Senate when the Senate consented to the treaty which
authorized the executive to enter into executive agreements;
174
another view supporting its acceptance is that the Senate delegated
to the President the authority to make the executive agreement.33 In
comparison, the constitutionality of congressional-executive
agreements has provoked debate among legal scholars. One view,
espoused by interpretivists such as Edwin Borchard, holds that all
international agreements must be strictly in accordance with Sec. 2,
Art. II of the U.S. Constitution, and thus congressional-executive
agreements are constitutionally invalid. According to them, allowing
congressional-executive agreements would enhance the power of
the President as well as of the House of Representatives, in utter
violation of the intent of the framers of the U.S. Constitution.34 The
opposite school of thought, led by Myer S. McDougal and Asher
Lans, holds that congressional-executive agreements and treaties
are interchangeable, thus, such agreements are constitutional.
These non-interpretivists buttress their stance by leaning on the
constitutional clause that prohibits States, without consent of
Congress, from "enter(ing) into any Agreement or Compact with
another State, or with a Foreign Power." By making reference to
international agreements other than treaties, these scholars argue
that the framers of the Constitution intended international
agreements, other than treaties, to exist. This school of thought
generally opposes the "mechanical, filiopietistic theory, (which)
purports to regard the words of the Constitution as timeless
absolutes"35 and gives emphasis to the necessity and expediency of
congressional-executive agreements in modern foreign
affairs.36 Finally, sole executive agreements which account for a
relatively small percentage of executive agreements are the most
constitutionally problematic since the system of checks and balances
is inoperative when the President enters into an executive
agreement with neither the Senate’s or Congress’ consent. This last
type of executive agreement draws authority upon the President’s
enumerated powers under Article II of the U.S. Constitution, such as
the President’s power as Commander-in-Chief of the U.S. army and
navy.37
I respectfully submit that, using these three types of executive
agreements as bases for classification, the VFA would not fall under
the category of an executive agreement made by the president
pursuant to authority conferred in a prior treaty because although
the VFA makes reference to the Mutual Defense Treaty in its
Preamble,38 the Mutual Defense Treaty itself does not confer
authority upon the U.S. President to enter into executive
agreements in implementation of the Treaty. Issues have
occasionally arisen about whether an executive agreement was
entered into pursuant to a treaty. These issues, however, involved
mere treaty interpretation.39 In Wilson v. Girard, 354 US 524 (1957),
the U.S. Supreme Court had occasion to interpret Art. III of the
Security Treaty Between the United States of America and Japan
which stated that, "(t)he conditions which shall govern the
disposition of armed forces of the United States of America in and
about Japan shall be determined by administrative agreements
between the two Governments."40 Pursuant to this provision in the
treaty, the executive entered into an administrative agreement
covering, among other matters, jurisdiction of the United States over
offenses committed in Japan by members of the U.S. armed forces.
The U.S. Supreme Court recognized the validity of the Administrative
Agreement as it was concluded by the President pursuant to the
authority conferred upon him by Art. III of the Security Treaty
between Japan and the United States to make administrative
agreements between the two governments concerning "(t)he
conditions which shall govern the disposition of armed forces of the
United States of America in and about Japan."
Respondents boldly claim that the VFA is authorized by Art. II of the
RP-US Mutual Defense Treaty which provides that, "(i)n order more
effectively to achieve the objective of this Treaty, the Parties
separately and jointly by self-help and mutual aid will maintain and
develop their individual and collective capacity to resist armed
attack."41 The alleged authorization is not as direct and unequivocal
as Art. III of the Security Treaty Between the U.S. and Japan, hence it
would be precarious to assume that the VFA derives authorization
from the Mutual Defense Treaty. The precariousness is heightened
by the fact that when the U.S. Senate ratified the Agreement
Between the Parties to the North Atlantic Treaty Regarding the
Status of Their Forces42 which was concluded pursuant to the North
Atlantic Treaty (NATO),43 the Senate included in its instrument of
ratification statements on matters of jurisdiction over U.S. forces
stationed abroad, among which was an admonition that the
Agreement’s provisions on criminal jurisdiction which have similar
features as the VFA, do not constitute a precedent for future
agreements. We can reasonably gather from the U.S. Senate’s
statements that criminal jurisdiction over U.S. forces stationed
abroad is a matter of Senate concern, and thus Senate authorization
for the President to enter into agreements touching upon such
jurisdictional matters cannot so easily be assumed.
Neither does the VFA fall under the category of a Congressional-
Executive Agreement as it was not concluded by the U.S. President
pursuant to Congressional authorization or enactment nor has it
been confirmed by the U.S. Congress.
At best, the VFA would be more akin to a sole or presidential
executive agreement which would be valid if concluded on the basis
of the U.S. President’s exclusive power under the U.S. Constitution.
Respondents argue that except for the Status of Forces Agreement
(SOFA) entered into pursuant to the NATO, the United States, by
way of executive agreements, has entered into 78 Status of Forces
Agreements (SOFA) which extend privileges and immunities to U.S.
forces stationed abroad,44 similar to the provisions of the VFA.
Respondents have failed, however, to qualify whether these
executive agreements are sole executive agreements or were
concluded pursuant to Congressional authorization or were
authorized by treaty. This detail is important in view of the above
discussion on the sense of the Senate on criminal jurisdiction over
U.S. forces stationed abroad.
It will contribute to the elucidation of the legal status of the VFA
under U.S. law if we compare the legal force of sole executive
agreements and of treaties. Under international law, treaties and
executive agreements equally bind the United States.45 If there is
any distinction between treaties and executive agreements, it must
be found in U.S. constitutional law.46 The distinctions, if any,
between the legal force of treaties and executive agreements on the
domestic plane may be treated on three levels, namely, vis-a-vis: (1)
state law; (2) acts of Congress and treaties; and (3) the U.S.
Constitution.
The Supremacy Clause of the U.S. Constitution provides:
"This Constitution, and the Law of the United States which shall be
made in pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the
supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding."47
It is well-settled that this clause provides the constitutional basis for
the superiority of a treaty over state law. Thus, the Warsaw
Convention to which the United States is a signatory preempts the
California law on airline liability.48 The U.S. Supreme Court has ruled
in unmistakable terms that a treaty enjoys supremacy over state
law,viz:
"Plainly, the external powers of the United States are to be exercised
without regard to state laws or policies. The supremacy of a treaty in
this respect has been recognized from the beginning. Mr. Madison,
in the Virginia Convention, said that if a treaty does not supersede
existing state laws, as far as they contravene its operation, the treaty
would be ineffective. "To counter-act it by the supremacy of the
state laws, would bring on the Union the just charge of national
perfidy, and involve us in war." 3 Elliot, Debates, 515. . . . this rule in
respect of treaties is established by the express language of cl. 2, Art.
6, of the Constitution. . . ."(emphasis supplied)49
It is also generally conceded that sole executive agreements are
supreme over state law and policy. Two cases decided by the U.S.
Supreme Court support this view.
The first of these two cases, United States v. Belmont,50 involved the
Litvinov Assignment, a sole executive agreement executed between
175
the United States and the Soviet Government. In 1918, the Soviet
government, by laws and decrees, nationalized, among others, a
Russian corporation, and appropriated its assets including a sum of
money deposited with Belmont, a private banker doing business in
New York. The sum of money remained Russian property until 1933,
at which time the Soviet government released and assigned to the
United States all amounts due the Soviet government from
American nationals, including the deposit account of the Russian
corporation with Belmont. The assignment, better known as the
Litvinov Assignment, was effected by an exchange of diplomatic
correspondence between the Soviet government and the United
States to bring about a final settlement of the claims and counter-
claims between the Soviet government and the United States.
Coincident with the assignment, the U.S. President recognized the
Soviet Government and normal diplomatic relations were
established between the two governments.51
Upon demand duly made by the United States, the executors of
Belmont’s will failed and refused to pay the sum of money deposited
by the Russian corporation with Belmont. The United States thus
filed a suit in a federal district court to recover the sum of money.
The court below held that the situs of the bank deposit was within
the State of New York and not within Soviet territory. Thus, the
nationalization decree, if enforced, would amount to an act of
confiscation which was contrary to the controlling public policy of
New York. The U.S. Supreme Court, however, held that no state
policy could prevail against the Litvinov Assignment.52 It ruled as
follows:
"The assignment and the agreements in connection therewith did
not, as in the case of treaties, as that term is used in the treaty
making clause of the Constitution (Sec. 2, Art. 2), require the advice
and consent of the Senate.
A treaty signifies "a compact made between two or more
independent nations with a view to the public welfare." B. Altman &
Co. v. United States, 224 U.S. 583, 600, 56 L. ed. 894, 910, 32 S. Ct.
593. Butan international compact, as this was, is not always a treaty
which requires the participation of the Senate. There are many such
compacts, of which a protocol, a modus vivendi, a postal convention,
and agreements like that now under consideration are illustrations."
(emphasis supplied)53
On the supremacy of executive agreements over state law, it ruled
as follows:
"Plainly, the external powers of the United States are to be exercised
without regard to state laws or policies. The supremacy of a treaty in
this respect has been recognized from the beginning. Mr. Madison,
in the Virginia Convention, said that if a treaty does not supersede
existing state laws, as far as they contravene its operation, the treaty
would be ineffective. "To counter-act it by the supremacy of the
state laws, would bring on the Union the just charge of national
perfidy, and involve us in war." 3 Elliot, Debates, 515. . . And while
this rule in respect of treaties is established by the express language
of cl. 2, Art. 6, of the Constitution, the same rule would result in the
case of all international compacts and agreements from the very fact
that complete power over international affairs is in the national
government and is not and cannot be subjected to any curtailment
or interference on the part of the several states." (emphasis
supplied)54
The other case, United States v. Pink,55 likewise involved the Litvinov
Assignment. The U.S. Supreme Court here reiterated its ruling in
the Belmont case and held that the Litvinov Assignment was an
international compact or agreement having similar dignity as a
treaty under the supremacy clause of the U.S. Constitution. 56
While adherents of sole executive agreements usually point to these
two cases as bearing judicial imprimatur of sole executive
agreements, the validity of sole executive agreements seems to have
been initially dealt with by the U.S. Supreme Court in 1933
in Monaco v. Mississippi wherein Chief Justice Hughes stated that,
"(t)he National Government, by virtue of its control of our foreign
relations is entitled to employ the resources of diplomatic
negotiations and to effect such an international settlement as may
be found to be appropriate, through treaty, agreement of
arbitration, or otherwise."57
Subsequent to the Belmont and Pink cases, the U.S. Supreme Court
once again upheld the validity of a sole executive agreement
in Dames & Moore v. Regan.58 This case involved the Algiers Accord,
an executive agreement negotiated and concluded by President
Carter and confirmed by President Reagan to resolve the Iran
Hostage Crisis in 1981. That agreement provided, among others, that
the United States and Iran agreed to cancel certain claims between
them and to establish a special tribunal to resolve other claims,
including those by U.S. nationals against Iran. The United States also
agreed to close its courts to those claims, as well as to suits by U.S.
citizens against the government of Iran for recovery of damages
arising from the Hostage Crisis. Although the agreement was
entered into by the President pursuant to Congressional
authorization, the Court found that the President’s action with
regard to claims was not so authorized. Nevertheless, the U.S.
Supreme Court, noting the power of presidents in foreign affairs
which includes the power to settle claims, as well as Congressional
acquiescence to such practice, upheld the validity of the Algiers
Accord.
Upon the other hand, those opposed to sole executive agreements
argue that the pronouncements of the Court in
the Belmont and Pink cases mean that sole executive agreements
override state legislation only when foundedupon the President’s
constitutional power to recognize foreign governments.59
While treaties and sole executive agreements have the same legal
effect on state law, sole executive agreements pale in comparison to
treaties when pitted against prior inconsistent acts of Congress. The
U.S. Supreme Court has long ago declared that the Constitution
mandates that a treaty and an act of legislation are both "supreme
law of the land." As such, no supreme efficacy is given to one over
the other. If the two relate to the same subject matter and are
inconsistent, the one later in date will prevail, provided the treaty is
self-executing,60 i.e., "whenever it operates of itself without aid of
legislation."61 In The Cherokee Tobacco (Boudinot v. United
States),62 the U.S. Supreme Court also held that where there is
repugnance between a treaty and an Act of Congress, "(a) treaty
may supersede a prior Act of Congress . . . and an Act of Congress
may supersede a prior treaty. . . ."63 Settled is the rule, therefore,
that a treaty supersedes an earlier repugnant Act of Congress, and
an Act of Congress supersedes an earlier contradictory treaty.64 As a
corollary, a treaty, being placed on the same footing as an act of
legislation,65 can repeal or modify a prior inconsistent treaty.
In the case of sole executive agreements, commentators have been
in general agreement that unlike treaties,sole executive agreements
cannot prevail over prior inconsistent federal legislation. Even
proponents of sole executive agreements admit that while a self-
executing treaty can supersede a prior inconsistent statute, it is very
doubtful whether a sole executive agreement, in the absence of
appropriate legislation, will be given similar effect.66 Wallace
McClure, a leading proponent of the interchangeability of treaties
and executive agreements, opined that it would be contrary to "the
entire tenor of the Constitution" for sole executive agreements to
supersede federal law.67 The Restatement (Third) of the Foreign
Relations Law of the United States postulates that a sole executive
agreement could prevail at least over state law, and
(only) possibly federal law without implementing legislation.68 Myer
S. McDougal and Asher Lans who are staunch advocates of executive
agreements also concede that sole executive agreements will not
ordinarily be valid if repugnant to existing legislation.69
In United States v. Guy W. Capps, Inc.,70 a leading lower court
decision discussing the issue of supremacy of executive agreements
over federal legislation, the Fourth Circuit held that, "the executive
agreement was void because it was not authorized by Congress and
contravened provisions of a statute dealing with the very matter to
which it related..."71 The U.S. Supreme Court itself has "intimated
that the President might act in external affairs without congressional
authority, but not that he might act contrary to an Act of
176
Congress."72 The reason for this is that the U.S. President’s power to
enter into international agreements derives from his position as
Chief Executive.By Sec. 7, Art. 1 of the U.S. Constitution, the
president does not have power to repeal existing federal laws.
Consequently, he cannot make an indirect repeal by means of a sole
executive agreement.73
On the other side of the coin, it is argued, that when the U.S.
President enters into a sole executive agreement pursuant to his
exclusive presidential authority in the field of foreign relations, such
agreement may prevail over prior inconsistent federal
legislation.74 In this situation, the doctrine of separation of powers
may permit the U.S. President to disregard the prior inconsistent Act
of Congress as an "unconstitutional invasion of his
power."75However, aside from lacking firm legal support, this view
has to contend with the problem of determining which powers are
exclusively executive and which powers overlap with the powers of
Congress.76
greater ‘dignity’ than an executive agreement, because its
constitutional effectiveness is beyond doubt, because a treaty will
‘commit’ the Senate and the people of the United States and make
its subsequent abrogation or violation less likely."90
With the cloud of uncertainty still hanging on the exact legal force of
sole executive agreements under U.S. constitutional law, this Court
must strike a blow for the sovereignty of our country by drawing a
bright line between the dignity and status of a treaty in contrast with
a sole executive agreement. However we may wish it, the VFA, as a
sole executive agreement, cannot climb to the same lofty height that
the dignity of a treaty can reach. Consequently, it falls short of the
requirement set by Sec. 25, Art. XVIII of the 1987 Constitution that
the agreement allowing the presence of foreign military troops on
Philippine soil must be "recognized as a treaty by the other
contracting state."
I vote to grant the petitions.

Again, although it is doubtful whether sole executive agreements

can supersede prior inconsistent federal legislation, proponents of
sole executive agreements interpret the Pink case to mean that sole
executive agreements are on equal footing with a treaty, having
been accorded the status of "law of the land" under the supremacy
clause and the Litvinov Assignment having been recognized to have
similar dignity as a treaty.77 As such, it is opined that a sole executive
agreement may supersede a prior inconsistent treaty. Treaties of the
United States have in fact been terminated on several occasions by
the President on his own authority.78 President Roosevelt
terminated at least two treaties under his independent
constitutional powers: the extradition treaty with Greece, in 1933,
and the Treaty of Commerce and Navigation with Japan, in
1939.79 That sole executive agreements may repeal or terminate a
treaty is impliedly recognized in Charlton v. Kelly80 as follows: "The
executive department having thus elected to waive any right to free
itself from the obligation [of the treaty], it is the plain duty of the
court to recognize the obligation.81

As against the U.S. Constitution, treaties and sole executive

agreements are in equal footing as they are subject to the same
limitations. As early as 1870, the U.S. Supreme Court declared that,
"a treaty cannot change the Constitution or be held valid if it be in
violation of that instrument."82 In Missouri v. Holland,83 it was held
that treaties must not violate the Constitution.84 The U.S. Supreme
Court also discussed the constitutionally implied limitations on the
treaty making power in Reid v. Covert,85 where Justice Black stated
that "(n)o agreement with a foreign nation can confer power on the
Congress, or any other branch of Government, which is free from
the restraints of the Constitution."86 He concluded that the U.S.
Constitution provides limits to the acts of the president, the joint
action of the president and the Senate, and consequently limits the
treaty making power.87

There is no dispute that the constitutional limitations relating to

treaties also apply to sole executive agreements. It is well-settled
that the due process clause of the Fifth Amendment and other
substantive provisions of the U.S. Constitution constitute limitations
on both treaties and executive agreements.88 Numerous decisions
have also held that both treaties and sole executive agreements
cannot contravene private rights protected by the U.S.
Constitution.89

In conclusion, after a macro view of the landscape of U.S. foreign

relations vis-a-vis U.S. constitutional law, with special attention on
the legal status of sole executive agreements, I respectfully submit
that the Court will be standing on unstable ground if it places a sole
executive agreement like the VFA on the same constitutional plateau
as a treaty. Questions remain and the debate continues on the
constitutional basis as well as the legal effects of sole executive
agreements under U.S. law. The observation of Louis Henkin, a
noted international and U.S. constitutional law scholar, captures the
sentiments of the framers of the Philippine Constitution and of the
Filipinos in crafting Sec. 25, Art. XVIII of the 1987 Constitution --
"(o)ften the treaty process will be used at the insistence of other
parties to an agreement because they believe that a treaty has
177
 Republic of the Philippines
SUPREME COURT
Manila
G.R. No. 171396 May 3, 2006
PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS,
H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL,
GARY S. MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER F.C.
BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-
IN-CHIEF, EXECUTIVE SECRETARY EDUARDO ERMITA, HON. AVELINO
CRUZ II, SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO
SENGA, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,
DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE
NATIONAL POLICE, Respondents.
x-------------------------------------x
G.R. No. 171409 May 3, 2006
NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO.,
INC., Petitioners,
vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE
DIRECTOR GENERAL ARTURO C. LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171485 May 3, 2006
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A.
CASINO, AGAPITO A. AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO,
MUJIV S. HATAMAN, JUAN EDGARDO ANGARA, TEOFISTO DL.
GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA,
IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB.
CHIPECO, ROILO GOLEZ, DARLENE ANTONINO-CUSTODIO, LORETTA
ANN P. ROSALES, JOSEL G. VIRADOR, RAFAEL V. MARIANO, GILBERT
C. REMULLA, FLORENCIO G. NOEL, ANA THERESIA HONTIVEROS-
BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN, NERI
JAVIER COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR
CIVIL LIBERTIES REPRESENTED BY AMADO GAT
INCIONG, Petitioners,
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR.,
SECRETARY, DND RONALDO V. PUNO, SECRETARY, DILG, GENEROSO
SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF
PNP, Respondents.
x-------------------------------------x
G.R. No. 171483 May 3, 2006
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER
C. LABOG AND SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL
FEDERATION OF LABOR UNIONS – KILUSANG MAYO UNO (NAFLU-
KMU), REPRESENTED BY ITS NATIONAL PRESIDENT, JOSELITO V.
USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, EMILIA P.
DAPULANG, MARTIN CUSTODIO, JR., AND ROQUE M.
TAN, Petitioners,
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE
HONORABLE EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF
OF STAFF, ARMED FORCES OF THE PHILIPPINES, GENEROSO SENGA,
AND THE PNP DIRECTOR GENERAL, ARTURO
LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171400 May 3, 2006
ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO
SENGA, AND DIRECTOR GENERAL ARTURO LOMIBAO, Respondents.
G.R. No. 171489 May 3, 2006
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R.
RIVERA, JOSE AMOR M. AMORADO, ALICIA A. RISOS-VIDAL,
FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C. BERNABE,
BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND INTEGRATED BAR
OF THE PHILIPPINES (IBP), Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL
GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF, AND
DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY AS PNP
CHIEF, Respondents.
x-------------------------------------x
G.R. No. 171424 May 3, 2006
LOREN B. LEGARDA, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND
COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS
DIRECTOR-GENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP);
GENEROSO SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF THE
ARMED FORCES OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA,
IN HIS CAPACITY AS EXECUTIVE SECRETARY, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than
rigid formula are necessary.1 Superior strength – the use of force –
cannot make wrongs into rights. In this regard, the courts should be
vigilant in safeguarding the constitutional rights of the citizens,
specifically their liberty.
Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus
most relevant. He said: "In cases involving liberty, the scales of
justice should weigh heavily against government and in favor of the
poor, the oppressed, the marginalized, the dispossessed and the
weak." Laws and actions that restrict fundamental rights come to
the courts "with a heavy presumption against their constitutional
validity."2
These seven (7) consolidated petitions for certiorari and prohibition
allege that in issuing Presidential Proclamation No. 1017 (PP 1017)
and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-
Arroyo committed grave abuse of discretion. Petitioners contend
that respondent officials of the Government, in their professed
efforts to defend and preserve democratic institutions, are actually
trampling upon the very freedom guaranteed and protected by the
Constitution. Hence, such issuances are void for being
unconstitutional.
Once again, the Court is faced with an age-old but persistently
modern problem. How does the Constitution of a free people
combine the degree of liberty, without which, law becomes tyranny,
with the degree of law, without which, liberty becomes license?3
On February 24, 2006, as the nation celebrated the 20th Anniversary
of the Edsa People Power I, President Arroyo issued PP 1017
declaring a state of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the
Republic of the Philippines and Commander-in-Chief of the Armed
Forces of the Philippines, by virtue of the powers vested upon me by
Section 18, Article 7 of the Philippine Constitution which states that:
"The President. . . whenever it becomes necessary, . . . may call out
178
(the) armed forces to prevent or suppress. . .rebellion. . .," and in my
capacity as their Commander-in-Chief, do hereby command the
Armed Forces of the Philippines, to maintain law and order
throughout the Philippines, prevent or suppress all forms of lawless
violence as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction; and as
provided in Section 17, Article 12 of the Constitution do hereby
declare a State of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political
opposition have conspired with authoritarians of the extreme Left
represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists – the historical enemies of the
democratic Philippine State – who are now in a tactical alliance and
engaged in a concerted and systematic conspiracy, over a broad
front, to bring down the duly constituted Government elected in
May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down
the President;
WHEREAS, the claims of these elements have been recklessly
magnified by certain segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State – by
obstructing governance including hindering the growth of the
economy and sabotaging the people’s confidence in government
and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the
extreme Left and extreme Right the opening to intensify their
avowed aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the
defense and preservation of the democratic institutions and the
State the primary duty of Government;
WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present
danger to the safety and the integrity of the Philippine State and of
the Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP
1017, thus:
WHEREAS, over these past months, elements in the political
opposition have conspired with authoritarians of the extreme Left,
represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists - the historical enemies of the
democratic Philippine State – and who are now in a tactical alliance
and engaged in a concerted and systematic conspiracy, over a broad
front, to bring down the duly-constituted Government elected in
May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down
our republican government;
WHEREAS, the claims of these elements have been recklessly
magnified by certain segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by
obstructing governance, including hindering the growth of the
economy and sabotaging the people’s confidence in the government
and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the
extreme Left and extreme Right the opening to intensify their
avowed aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense
and preservation of the democratic institutions and the State the
primary duty of Government;
WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present
danger to the safety and the integrity of the Philippine State and of
the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been
issued declaring a State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the
powers vested in me under the Constitution as President of the
Republic of the Philippines, and Commander-in-Chief of the Republic
of the Philippines, and pursuant to Proclamation No. 1017 dated
February 24, 2006, do hereby call upon the Armed Forces of the
Philippines (AFP) and the Philippine National Police (PNP), to prevent
and suppress acts of terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP,
as well as the officers and men of the AFP and PNP, to immediately
carry out the necessary and appropriate actions and measures to
suppress and prevent acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state
of national emergency and after all these petitions had been filed,
the President lifted PP 1017. She issued Proclamation No. 1021
which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article
XII of the Constitution, Proclamation No. 1017 dated February 24,
2006, was issued declaring a state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February
24, 2006, which were issued on the basis of Proclamation No. 1017,
the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), were directed to maintain law and order
throughout the Philippines, prevent and suppress all form of lawless
violence as well as any act of rebellion and to undertake such action
as may be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed
and quelled the acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the
Republic of the Philippines, by virtue of the powers vested in me by
law, hereby declare that the state of national emergency has ceased
to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5,
respondents stated that the proximate cause behind the executive
issuances was the conspiracy among some military officers, leftist
insurgents of the New People’s Army (NPA), and some members of
the political opposition in a plot to unseat or assassinate President
Arroyo.4 They considered the aim to oust or assassinate the
President and take-over the reigns of government as a clear and
present danger.
During the oral arguments held on March 7, 2006, the Solicitor
General specified the facts leading to the issuance of PP 1017 and
G.O. No. 5. Significantly, there was no refutation from petitioners’
counsels.
The Solicitor General argued that the intent of the Constitution is to
give full discretionary powers to the President in determining the
necessity of calling out the armed forces. He emphasized that none
of the petitioners has shown that PP 1017 was without factual bases.
While he explained that it is not respondents’ task to state the facts
179
behind the questioned Proclamation, however, they are presenting
the same, narrated hereunder, for the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First
Lieutenants Sonny Sarmiento, Lawrence San Juan and Patricio
Bumidang, members of the Magdalo Group indicted in the Oakwood
mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In
a public statement, they vowed to remain defiant and to elude
arrest at all costs. They called upon the people to "show and
proclaim our displeasure at the sham regime. Let us demonstrate our
disgust, not only by going to the streets in protest, but also by
wearing red bands on our left arms." 5
On February 17, 2006, the authorities got hold of a document
entitled "Oplan Hackle I " which detailed plans for bombings and
attacks during the Philippine Military Academy Alumni Homecoming
in Baguio City. The plot was to assassinate selected targets including
some cabinet members and President Arroyo herself. 6 Upon the
advice of her security, President Arroyo decided not to attend the
Alumni Homecoming. The next day, at the height of the celebration,
a bomb was found and detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist
safehouse in Batangas province. Found in his possession were two
(2) flash disks containing minutes of the meetings between members
of the Magdalo Group and the National People’s Army (NPA), a tape
recorder, audio cassette cartridges, diskettes, and copies of
subversive documents.7 Prior to his arrest, Lt. San Juan announced
through DZRH that the "Magdalo’s D-Day would be on February 24,
2006, the 20th Anniversary of Edsa I."
On February 23, 2006, PNP Chief Arturo Lomibao intercepted
information that members of the PNP- Special Action Force were
planning to defect. Thus, he immediately ordered SAF Commanding
General Marcelino Franco, Jr. to "disavow" any defection. The latter
promptly obeyed and issued a public statement: "All SAF units are
under the effective control of responsible and trustworthy officers
with proven integrity and unquestionable loyalty."
On the same day, at the house of former Congressman Peping
Cojuangco, President Cory Aquino’s brother, businessmen and mid-
level government officials plotted moves to bring down the Arroyo
administration. Nelly Sindayen of TIME Magazine reported that
Pastor Saycon, longtime Arroyo critic, called a U.S. government
official about his group’s plans if President Arroyo is ousted. Saycon
also phoned a man code-named Delta. Saycon identified him as
B/Gen. Danilo Lim, Commander of the Army’s elite Scout Ranger.
Lim said "it was all systems go for the planned movement against
Arroyo."8
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin
confided to Gen. Generoso Senga, Chief of Staff of the Armed Forces
of the Philippines (AFP), that a huge number of soldiers would join
the rallies to provide a critical mass and armed component to the
Anti-Arroyo protests to be held on February 24, 2005. According to
these two (2) officers, there was no way they could possibly stop the
soldiers because they too, were breaking the chain of command to
join the forces foist to unseat the President. However, Gen. Senga
has remained faithful to his Commander-in-Chief and to the chain of
command. He immediately took custody of B/Gen. Lim and directed
Col. Querubin to return to the Philippine Marines Headquarters in
Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and
revolutionary work within the military and the police establishments
in order to forge alliances with its members and key officials. NPA
spokesman Gregorio "Ka Roger" Rosal declared: "The Communist
Party and revolutionary movement and the entire people look
forward to the possibility in the coming year of accomplishing its
immediate task of bringing down the Arroyo regime; of rendering it
to weaken and unable to rule that it will not take much longer to end
it."9
On the other hand, Cesar Renerio, spokesman for the National
Democratic Front (NDF) at North Central Mindanao, publicly
announced: "Anti-Arroyo groups within the military and police are
growing rapidly, hastened by the economic difficulties suffered by
the families of AFP officers and enlisted personnel who undertake
counter-insurgency operations in the field." He claimed that with the
forces of the national democratic movement, the anti-Arroyo
conservative political parties, coalitions, plus the groups that have
been reinforcing since June 2005, it is probable that the President’s
ouster is nearing its concluding stage in the first half of 2006.
Respondents further claimed that the bombing of
telecommunication towers and cell sites in Bulacan and Bataan was
also considered as additional factual basis for the issuance of PP
1017 and G.O. No. 5. So is the raid of an army outpost in Benguet
resulting in the death of three (3) soldiers. And also the directive of
the Communist Party of the Philippines ordering its front
organizations to join 5,000 Metro Manila radicals and 25,000 more
from the provinces in mass protests.10
By midnight of February 23, 2006, the President convened her
security advisers and several cabinet members to assess the gravity
of the fermenting peace and order situation. She directed both the
AFP and the PNP to account for all their men and ensure that the
chain of command remains solid and undivided. To protect the
young students from any possible trouble that might break loose on
the streets, the President suspended classes in all levels in the entire
National Capital Region.
For their part, petitioners cited the events that followed after the
issuance of PP 1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation
of all programs and activities related to the 20th anniversary
celebration of Edsa People Power I; and revoked the permits to hold
rallies issued earlier by the local governments. Justice Secretary Raul
Gonzales stated that political rallies, which to the President’s mind
were organized for purposes of destabilization, are
cancelled.Presidential Chief of Staff Michael Defensor announced
that "warrantless arrests and take-over of facilities, including media,
can already be implemented."11
Undeterred by the announcements that rallies and public assemblies
would not be allowed, groups of protesters (members of Kilusang
Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang
Mayo Uno [NAFLU-KMU]), marched from various parts of Metro
Manila with the intention of converging at the EDSA shrine. Those
who were already near the EDSA site were violently dispersed by
huge clusters of anti-riot police. The well-trained policemen used
truncheons, big fiber glass shields, water cannons, and tear gas to
stop and break up the marching groups, and scatter the massed
participants. The same police action was used against the protesters
marching forward to Cubao, Quezon City and to the corner of
Santolan Street and EDSA. That same evening, hundreds of riot
policemen broke up an EDSA celebration rally held along Ayala
Avenue and Paseo de Roxas Street in Makati City.12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017
as the ground for the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested
(without warrant) petitioner Randolf S. David, a professor at the
University of the Philippines and newspaper columnist. Also arrested
was his companion, Ronald Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006,
operatives of the Criminal Investigation and Detection Group (CIDG)
of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily
Tribune offices in Manila. The raiding team confiscated news stories
by reporters, documents, pictures, and mock-ups of the Saturday
issue. Policemen from Camp Crame in Quezon City were stationed
inside the editorial and business offices of the newspaper; while
policemen from the Manila Police District were stationed outside
the building.13
180
A few minutes after the search and seizure at the Daily
Tribune offices, the police surrounded the premises of another pro-
opposition paper, Malaya, and its sister publication, the tabloid
Abante.
The raid, according to Presidential Chief of Staff Michael Defensor,
is "meant to show a ‘strong presence,’ to tell media outlets not to
connive or do anything that would help the rebels in bringing down
this government." The PNP warned that it would take over any
media organization that would not follow "standards set by the
government during the state of national emergency." Director
General Lomibao stated that "if they do not follow the standards –
and the standards are - if they would contribute to instability in the
government, or if they do not subscribe to what is in General Order
No. 5 and Proc. No. 1017 – we will recommend a
‘takeover.’" National Telecommunications’ Commissioner Ronald
Solis urged television and radio networks to "cooperate" with the
government for the duration of the state of national emergency. He
asked for "balanced reporting" from broadcasters when covering the
events surrounding the coup attempt foiled by the government. He
warned that his agency will not hesitate to recommend the closure
of any broadcast outfit that violates rules set out for media coverage
when the national security is threatened.14
Also, on February 25, 2006, the police arrested Congressman Crispin
Beltran, representing the Anakpawis Party and Chairman of Kilusang
Mayo Uno (KMU), while leaving his farmhouse in Bulacan. The police
showed a warrant for his arrest dated 1985. Beltran’s lawyer
explained that the warrant, which stemmed from a case of inciting
to rebellion filed during the Marcos regime, had long been quashed.
Beltran, however, is not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit
Beltran, they were told they could not be admitted because of PP
1017 and G.O. No. 5. Two members were arrested and detained,
while the rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the
police went after him during a public forum at the Sulo Hotel in
Quezon City. But his two drivers, identified as Roel and Art, were
taken into custody.
Retired Major General Ramon Montaño, former head of the
Philippine Constabulary, was arrested while with his wife and
golfmates at the Orchard Golf and Country Club in Dasmariñas,
Cavite.
Attempts were made to arrest Anakpawis Representative Satur
Ocampo, Representative Rafael Mariano, Bayan
Muna Representative Teodoro Casiño and Gabriela Representative
Liza Maza. Bayan Muna Representative Josel Virador was arrested at
the PAL Ticket Office in Davao City. Later, he was turned over to the
custody of the House of Representatives where the "Batasan 5"
decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights
of Representatives Beltran, Satur Ocampo, et al., are not being
raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that
the state of national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the
constitutionality of PP 1017 and G.O. No. 5 were filed with this Court
against the above-named respondents. Three (3) of these petitions
impleaded President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP
1017 on the grounds that (1) it encroaches on the emergency
powers of Congress; (2) itis a subterfuge to avoid the constitutional
requirements for the imposition of martial law; and (3) it violates the
constitutional guarantees of freedom of the press, of speech and of
assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares
and Tribune Publishing Co., Inc. challenged the CIDG’s act of raiding
the Daily Tribune offices as a clear case of "censorship" or "prior
restraint." They also claimed that the term "emergency" refers only
to tsunami, typhoon, hurricane and similar occurrences, hence,
there is "absolutely no emergency" that warrants the issuance of PP
1017.
In G.R. No. 171485, petitioners herein are Representative Francis
Joseph G. Escudero, and twenty one (21) other members of the
House of Representatives, including Representatives Satur Ocampo,
Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel Virador. They
asserted that PP 1017 and G.O. No. 5 constitute "usurpation of
legislative powers"; "violation of freedom of expression" and "a
declaration of martial law." They alleged that President Arroyo
"gravely abused her discretion in calling out the armed forces
without clear and verifiable factual basis of the possibility of lawless
violence and a showing that there is necessity to do so."
In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their
members averred that PP 1017 and G.O. No. 5 are unconstitutional
because (1) they arrogate unto President Arroyo the power to enact
laws and decrees; (2) their issuance was without factual basis;
and (3) they violate freedom of expression and the right of the
people to peaceably assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI)
alleged that PP 1017 and G.O. No. 5 are unconstitutional because
they violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and
418 of Article III, (c) Section 2319 of Article VI, and (d) Section 1720 of
Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged
that PP 1017 is an "arbitrary and unlawful exercise by the President
of her Martial Law powers." And assuming that PP 1017 is not really
a declaration of Martial Law, petitioners argued that "it amounts to
an exercise by the President of emergency powers without
congressional approval." In addition, petitioners asserted that PP
1017 "goes beyond the nature and function of a proclamation as
defined under the Revised Administrative Code."
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained
that PP 1017 and G.O. No. 5 are "unconstitutional for being violative
of the freedom of expression, including its cognate rights such as
freedom of the press and the right to access to information on
matters of public concern, all guaranteed under Article III, Section 4
of the 1987 Constitution." In this regard, she stated that these
issuances prevented her from fully prosecuting her election protest
pending before the Presidential Electoral Tribunal.
In respondents’ Consolidated Comment, the Solicitor General
countered that: first, the petitions should be dismissed for being
moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424
(Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489
(Cadiz et al.) have no legal standing; third, it is not necessary for
petitioners to implead President Arroyo as respondent; fourth, PP
1017 has constitutional and legal basis; and fifth, PP 1017 does not
violate the people’s right to free expression and redress of
grievances.
On March 7, 2006, the Court conducted oral arguments and heard
the parties on the above interlocking issues which may be
summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions
moot and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R.
Nos. 171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et
al.), and 171424 (Legarda) have legal standing.
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B. SUBSTANTIVE:
1) Whetherthe Supreme Court can review the factual
bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this
country is the concept of judicial review enunciated in Marbury v.
Madison.21 This concept rests on the extraordinary simple
foundation --
The Constitution is the supreme law. It was ordained by the people,
the ultimate source of all political authority. It confers limited
powers on the national government. x x x If the government
consciously or unconsciously oversteps these limitations there must
be some authority competent to hold it in control, to thwart its
unconstitutional attempt, and thus to vindicate and preserve
inviolate the will of the people as expressed in the Constitution. This
power the courts exercise. This is the beginning and the end of the
theory of judicial review.22
But the power of judicial review does not repose upon the courts a
"self-starting capacity."23 Courts may exercise such power only when
the following requisites are present: first, there must be an actual
case or controversy; second, petitioners have to raise a question of
constitutionality; third, the constitutional question must be raised at
the earliest opportunity; and fourth, the decision of the
constitutional question must be necessary to the determination of
the case itself.24
Respondents maintain that the first and second requisites are
absent, hence, we shall limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an
opposite legal claims susceptible of judicial resolution. It is "definite
and concrete, touching the legal relations of parties having adverse
legal interest;" a real and substantial controversy admitting of
specific relief.25 The Solicitor General refutes the existence of such
actual case or controversy, contending that the present petitions
were rendered "moot and academic" by President Arroyo’s issuance
of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events,26 so that a declaration
thereon would be of no practical use or value.27 Generally, courts
decline jurisdiction over such case28 or dismiss it on ground of
mootness.29
The Court holds that President Arroyo’s issuance of PP 1021 did not
render the present petitions moot and academic. During the eight
(8) days that PP 1017 was operative, the police officers, according to
petitioners, committed illegal acts in implementing it. Are PP 1017
and G.O. No. 5 constitutional or valid? Do they justify these alleged
illegal acts? These are the vital issues that must be resolved in the
present petitions. It must be stressed that "an unconstitutional act is
not a law, it confers no rights, it imposes no duties, it affords no
protection; it is in legal contemplation, inoperative."30
The "moot and academic" principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will
decide cases, otherwise moot and academic, if: first, there is a grave
violation of the Constitution;31 second, the exceptional character of
the situation and the paramount public interest is
involved;32third, when constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and
the public;33 and fourth, the case is capable of repetition yet evading
review.34
All the foregoing exceptions are present here and justify this Court’s
assumption of jurisdiction over the instant petitions. Petitioners
alleged that the issuance of PP 1017 and G.O. No. 5 violates the
Constitution. There is no question that the issues being raised affect
the public’s interest, involving as they do the people’s basic rights to
freedom of expression, of assembly and of the press. Moreover, the
Court has the duty to formulate guiding and controlling
constitutional precepts, doctrines or rules. It has the symbolic
function of educating the bench and the bar, and in the present
petitions, the military and the police, on the extent of the protection
given by constitutional guarantees.35 And lastly, respondents’
contested actions are capable of repetition. Certainly, the petitions
are subject to judicial review.
In their attempt to prove the alleged mootness of this case,
respondents cited Chief Justice Artemio V. Panganiban’s Separate
Opinion in Sanlakas v. Executive Secretary.36 However, they failed to
take into account the Chief Justice’s very statement that an
otherwise "moot" case may still be decided "provided the party
raising it in a proper case has been and/or continues to be prejudiced
or damaged as a direct result of its issuance." The present case falls
right within this exception to the mootness rule pointed out by the
Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities,
the Court deems it imperative to have a more than passing
discussion on legal standing or locus standi.
Locus standi is defined as "a right of appearance in a court of justice
on a given question."37 In private suits, standing is governed by the
"real-parties-in interest" rule as contained in Section 2, Rule 3 of the
1997 Rules of Civil Procedure, as amended. It provides that "every
action must be prosecuted or defended in the name of the real party
in interest." Accordingly, the "real-party-in interest" is "the party
who stands to be benefited or injured by the judgment in the suit or
the party entitled to the avails of the suit."38 Succinctly put, the
plaintiff’s standing is based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here,
the plaintiff who asserts a "public right" in assailing an allegedly
illegal official action, does so as a representative of the general
public. He may be a person who is affected no differently from any
other person. He could be suing as a "stranger," or in the category of
a "citizen," or ‘taxpayer." In either case, he has to adequately show
that he is entitled to seek judicial protection. In other words, he has
to make out a sufficient interest in the vindication of the public
order and the securing of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and
"taxpayer" standing in public actions. The distinction was first laid
down in Beauchamp v. Silk,39 where it was held that the plaintiff in a
taxpayer’s suit is in a different category from the plaintiff in a
citizen’s suit. In the former, the plaintiff is affected by the
expenditure of public funds, while in the latter, he is but the mere
instrument of the public concern. As held by the New York Supreme
Court in People ex rel Case v. Collins:40 "In matter of mere public
right, however…the people are the real parties…It is at least the
right, if not the duty, of every citizen to interfere and see that a
public offence be properly pursued and punished, and that a public
grievance be remedied." With respect to taxpayer’s suits, Terr v.
Jordan41 held that "the right of a citizen and a taxpayer to maintain
an action in courts to restrain the unlawful use of public funds to his
injury cannot be denied."
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However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed
with, and thus hinders the activities of governmental agencies
engaged in public service, the United State Supreme Court laid down
the more stringent "direct injury" test in Ex Parte Levitt,42 later
reaffirmed in Tileston v. Ullman.43 The same Court ruled that for a
private individual to invoke the judicial power to determine the
validity of an executive or legislative action, he must show that he
has sustained a direct injury as a result of that action, and it is not
sufficient that he has a general interest common to all members of
the public.
This Court adopted the "direct injury" test in our jurisdiction.
In People v. Vera,44 it held that the person who impugns the validity
of a statute must have "a personal and substantial interest in the
case such that he has sustained, or will sustain direct injury as a
result." The Vera doctrine was upheld in a litany of cases, such
as, Custodio v. President of the Senate,45 Manila Race Horse Trainers’
Association v. De la Fuente,46 Pascual v. Secretary of Public
Works47 and Anti-Chinese League of the Philippines v. Felix.48
However, being a mere procedural technicality, the requirement
of locus standi may be waived by the Court in the exercise of its
discretion. This was done in the 1949 Emergency Powers
Cases, Araneta v. Dinglasan,49 where the "transcendental
importance" of the cases prompted the Court to act liberally. Such
liberality was neither a rarity nor accidental. In Aquino v.
Comelec,50 this Court resolved to pass upon the issues raised due to
the "far-reaching implications" of the petition notwithstanding its
categorical statement that petitioner therein had no personality to
file the suit. Indeed, there is a chain of cases where this liberal policy
has been observed, allowing ordinary citizens, members of Congress,
and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings.51
Thus, the Court has adopted a rule that even where the petitioners
have failed to show direct injury, they have been allowed to sue
under the principle of "transcendental importance." Pertinent are
the following cases:
(1) Chavez v. Public Estates Authority,52 where the Court
ruled that the enforcement of the constitutional right to
information and the equitable diffusion of natural
resources are matters of transcendental importance which
clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,53 wherein
the Court held that "given the transcendental importance
of the issues involved, the Court may relax the standing
requirements and allow the suit to prosper despite the
lack of direct injury to the parties seeking judicial
review" of the Visiting Forces Agreement;
(3) Lim v. Executive Secretary,54 while the Court noted that
the petitioners may not file suit in their capacity as
taxpayers absent a showing that "Balikatan 02-01" involves
the exercise of Congress’ taxing or spending powers, it
reiterated its ruling in Bagong Alyansang Makabayan v.
Zamora,55that in cases of transcendental importance, the
cases must be settled promptly and definitely and standing
requirements may be relaxed.
By way of summary, the following rules may be culled from the
cases decided by this Court. Taxpayers, voters, concerned citizens,
and legislators may be accorded standing to sue, provided that the
following requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal
disbursement of public funds or that the tax measure is
unconstitutional;
(3) for voters, there must be a showing of obvious interest
in the validity of the election law in question;
(4) for concerned citizens, there must be a showing that
the issues raised are of transcendental importance which
must be settled early; and
(5) for legislators, there must be a claim that the official
action complained of infringes upon their prerogatives as
legislators.
Significantly, recent decisions show a certain toughening in the
Court’s attitude toward legal standing.
In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status
of Kilosbayan as a people’s organization does not give it the
requisite personality to question the validity of the on-line lottery
contract, more so where it does not raise any issue of
constitutionality. Moreover, it cannot sue as a taxpayer absent any
allegation that public funds are being misused. Nor can it sue as a
concerned citizen as it does not allege any specific injury it has
suffered.
In Telecommunications and Broadcast Attorneys of the Philippines,
Inc. v. Comelec,57 the Court reiterated the "direct injury" test with
respect to concerned citizens’ cases involving constitutional issues. It
held that "there must be a showing that the citizen personally
suffered some actual or threatened injury arising from the alleged
illegal official act."
In Lacson v. Perez,58 the Court ruled that one of the
petitioners, Laban ng Demokratikong Pilipino (LDP), is not a real
party-in-interest as it had not demonstrated any injury to itself or to
its leaders, members or supporters.
In Sanlakas v. Executive Secretary,59 the Court ruled that only the
petitioners who are members of Congress have standing to sue, as
they claim that the President’s declaration of a state of rebellion is a
usurpation of the emergency powers of Congress, thus impairing
their legislative powers. As to petitioners Sanlakas, Partido
Manggagawa, and Social Justice Society, the Court declared them to
be devoid of standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present
petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David
and Llamas, is beyond doubt. The same holds true with petitioners
in G.R. No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc.
They alleged "direct injury" resulting from "illegal arrest" and
"unlawful search" committed by police operatives pursuant to PP
1017. Rightly so, the Solicitor General does not question their legal
standing.
In G.R. No. 171485, the opposition Congressmen alleged there was
usurpation of legislative powers. They also raised the issue of
whether or not the concurrence of Congress is necessary whenever
the alarming powers incident to Martial Law are used. Moreover, it
is in the interest of justice that those affected by PP 1017 can be
represented by their Congressmen in bringing to the attention of the
Court the alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule
in Philconsa v. Enriquez,60 Kapatiran Ng Mga Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. v. Tan,61 Association of Small
Landowners in the Philippines, Inc. v. Secretary of Agrarian
Reform,62 Basco v. Philippine Amusement and Gaming
Corporation,63 and Tañada v. Tuvera,64 that when the issue concerns
a public right, it is sufficient that the petitioner is a citizen and has an
interest in the execution of the laws.
In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5
violated its right to peaceful assembly may be deemed sufficient to
183
give it legal standing. Organizations may be granted standing to
assert the rights of their members.65 We take judicial notice of the
announcement by the Office of the President banning all rallies and
canceling all permits for public assemblies following the issuance of
PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers
of the Integrated Bar of the Philippines (IBP) have no legal standing,
having failed to allege any direct or potential injury which the IBP as
an institution or its members may suffer as a consequence of the
issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar of the
Philippines v. Zamora,66 the Court held that the mere invocation by
the IBP of its duty to preserve the rule of law and nothing more,
while undoubtedly true, is not sufficient to clothe it with standing in
this case. This is too general an interest which is shared by other
groups and the whole citizenry. However, in view of the
transcendental importance of the issue, this Court declares that
petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer
to file the instant petition as there are no allegations of illegal
disbursement of public funds. The fact that she is a former Senator is
of no consequence. She can no longer sue as a legislator on the
allegation that her prerogatives as a lawmaker have been impaired
by PP 1017 and G.O. No. 5. Her claim that she is a media personality
will not likewise aid her because there was no showing that the
enforcement of these issuances prevented her from pursuing her
occupation. Her submission that she has pending electoral protest
before the Presidential Electoral Tribunal is likewise of no relevance.
She has not sufficiently shown that PP 1017 will affect the
proceedings or result of her case. But considering once more the
transcendental importance of the issue involved, this Court may
relax the standing rules.
It must always be borne in mind that the question of locus standi is
but corollary to the bigger question of proper exercise of judicial
power. This is the underlying legal tenet of the "liberality doctrine"
on legal standing. It cannot be doubted that the validity of PP No.
1017 and G.O. No. 5 is a judicial question which is of paramount
importance to the Filipino people. To paraphrase Justice Laurel, the
whole of Philippine society now waits with bated breath the ruling of
this Court on this very critical matter. The petitions thus call for the
application of the "transcendental importance" doctrine, a
relaxation of the standing requirements for the petitioners in the
"PP 1017 cases."1avvphil.net
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as
respondent. Settled is the doctrine that the President, during his
tenure of office or actual incumbency,67 may not be sued in any civil
or criminal case, and there is no need to provide for it in the
Constitution or law. It will degrade the dignity of the high office of
the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that he
be freed from any form of harassment, hindrance or distraction to
enable him to fully attend to the performance of his official duties
and functions. Unlike the legislative and judicial branch, only one
constitutes the executive branch and anything which impairs his
usefulness in the discharge of the many great and important duties
imposed upon him by the Constitution necessarily impairs the
operation of the Government. However, this does not mean that the
President is not accountable to anyone. Like any other official, he
remains accountable to the people68 but he may be removed from
office only in the mode provided by law and that is by
impeachment.69
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was
not "necessary" for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the
President’s exercise of his Commander-in-Chief power has reached
its distilled point - from the indulgent days of Barcelon v.
Baker70 and Montenegro v. Castaneda71 to the volatile era
of Lansang v. Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v.
Enrile.74 The tug-of-war always cuts across the line defining "political
questions," particularly those questions "in regard to which full
discretionary authority has been delegated to the legislative or
executive branch of the government."75Barcelon and
Montenegro were in unison in declaring that the authority to decide
whether an exigency has arisen belongs to the President and his
decision is final and conclusive on the courts. Lansang took the
opposite view. There, the members of the Court were unanimous in
the conviction that the Court has the authority to inquire into the
existence of factual bases in order to determine their constitutional
sufficiency. From the principle of separation of powers, it shifted the
focus to the system of checks and balances, "under which the
President is supreme, x x x only if and when he acts within the
sphere allotted to him by the Basic Law, and the authority to
determine whether or not he has so acted is vested in the Judicial
Department, which in this respect, is, in turn,
constitutionally supreme."76 In 1973, the unanimous Court
of Lansang was divided in Aquino v. Enrile.77 There, the Court was
almost evenly divided on the issue of whether the validity of the
imposition of Martial Law is a political or justiciable question.78 Then
came Garcia-Padilla v. Enrile which greatly diluted Lansang. It
declared that there is a need to re-examine the latter case,
ratiocinating that "in times of war or national emergency, the
President must be given absolute control for the very life of the
nation and the government is in great peril. The President, it
intoned, is answerable only to his conscience, the People, and
God."79
The Integrated Bar of the Philippines v. Zamora80 -- a recent case
most pertinent to these cases at bar -- echoed a principle similar
to Lansang. While the Court considered the President’s "calling-out"
power as a discretionary power solely vested in his wisdom, it
stressed that "this does not prevent an examination of whether such
power was exercised within permissible constitutional limits or
whether it was exercised in a manner constituting grave abuse of
discretion."This ruling is mainly a result of the Court’s reliance on
Section 1, Article VIII of 1987 Constitution which fortifies the
authority of the courts to determine in an appropriate action the
validity of the acts of the political departments. Under the new
definition of judicial power, the courts are authorized not only "to
settle actual controversies involving rights which are legally
demandable and enforceable," but also "to determine whether or
not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of
the government." The latter part of the authority represents a
broadening of judicial power to enable the courts of justice to
review what was before a forbidden territory, to wit, the discretion
of the political departments of the government.81 It speaks of
judicial prerogative not only in terms of power but also of duty.82
As to how the Court may inquire into the President’s exercise of
power, Lansang adopted the test that "judicial inquiry can go no
further than to satisfy the Court not that the President’s decision
is correct," but that "the President did not act arbitrarily." Thus, the
standard laid down is not correctness, but
arbitrariness.83 In Integrated Bar of the Philippines, this Court further
ruled that "it is incumbent upon the petitioner to show that the
President’s decision is totally bereft of factual basis" and that if he
fails, by way of proof, to support his assertion, then "this Court
cannot undertake an independent investigation beyond the
pleadings."
Petitioners failed to show that President Arroyo’s exercise of the
calling-out power, by issuing PP 1017, is totally bereft of factual
basis. A reading of the Solicitor General’s Consolidated Comment
and Memorandum shows a detailed narration of the events leading
to the issuance of PP 1017, with supporting reports forming part of
the records. Mentioned are the escape of the Magdalo Group, their
audacious threat of the Magdalo D-Day, the defections in the
military, particularly in the Philippine Marines, and the reproving
statements from the communist leaders. There was also the Minutes
184
of the Intelligence Report and Security Group of the Philippine Army
showing the growing alliance between the NPA and the military.
Petitioners presented nothing to refute such events. Thus, absent
any contrary allegations, the Court is convinced that the President
was justified in issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo
was not expected to simply fold her arms and do nothing to prevent
or suppress what she believed was lawless violence, invasion or
rebellion. However, the exercise of such power or duty must not
stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency
This case brings to fore a contentious subject -- the power of the
President in times of emergency. A glimpse at the various political
theories relating to this subject provides an adequate backdrop for
our ensuing discussion.
John Locke, describing the architecture of civil government, called
upon the English doctrine of prerogative to cope with the problem
of emergency. In times of danger to the nation, positive law enacted
by the legislature might be inadequate or even a fatal obstacle to
the promptness of action necessary to avert catastrophe. In these
situations, the Crown retained a prerogative "power to act according
to discretion for the public good, without the proscription of the law
and sometimes even against it."84 But Locke recognized that this
moral restraint might not suffice to avoid abuse of prerogative
powers. Who shall judge the need for resorting to the prerogative
and how may its abuse be avoided? Here, Locke readily admitted
defeat, suggesting that "the people have no other remedy in this, as
in all other cases where they have no judge on earth, but to appeal
to Heaven."85
Jean-Jacques Rousseau also assumed the need for temporary
suspension of democratic processes of government in time of
emergency. According to him:
The inflexibility of the laws, which prevents them from adopting
themselves to circumstances, may, in certain cases, render them
disastrous and make them bring about, at a time of crisis, the ruin of
the State…
It is wrong therefore to wish to make political institutions as strong
as to render it impossible to suspend their operation. Even Sparta
allowed its law to lapse...
If the peril is of such a kind that the paraphernalia of the laws are an
obstacle to their preservation, the method is to nominate a supreme
lawyer, who shall silence all the laws and suspend for a moment the
sovereign authority. In such a case, there is no doubt about the
general will, and it clear that the people’s first intention is that the
State shall not perish.86
Rosseau did not fear the abuse of the emergency dictatorship or
"supreme magistracy" as he termed it. For him, it would more likely
be cheapened by "indiscreet use." He was unwilling to rely upon an
"appeal to heaven." Instead, he relied upon a tenure of office of
prescribed duration to avoid perpetuation of the dictatorship. 87
John Stuart Mill concluded his ardent defense of representative
government: "I am far from condemning, in cases of extreme
necessity, the assumption of absolute power in the form of a
temporary dictatorship."88
Nicollo Machiavelli’s view of emergency powers, as one element in
the whole scheme of limited government, furnished an ironic
contrast to the Lockean theory of prerogative. He recognized and
attempted to bridge this chasm in democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to
resort to extra –constitutional measures; for although they may for a
time be beneficial, yet the precedent is pernicious, for if the practice
is once established for good objects, they will in a little while be
disregarded under that pretext but for evil purposes. Thus, no
republic will ever be perfect if she has not by law provided for
everything, having a remedy for every emergency and fixed rules for
applying it.89
Machiavelli – in contrast to Locke, Rosseau and Mill – sought to
incorporate into the constitution a regularized system of standby
emergency powers to be invoked with suitable checks and controls
in time of national danger. He attempted forthrightly to meet the
problem of combining a capacious reserve of power and speed and
vigor in its application in time of emergency, with effective
constitutional restraints.90
Contemporary political theorists, addressing themselves to the
problem of response to emergency by constitutional democracies,
have employed the doctrine of constitutional
dictatorship.91 Frederick M. Watkins saw "no reason why absolutism
should not be used as a means for the defense of liberal
institutions," provided it "serves to protect established institutions
from the danger of permanent injury in a period of temporary
emergency and is followed by a prompt return to the previous forms
of political life."92 He recognized the two (2) key elements of the
problem of emergency governance, as well as all constitutional
governance: increasing administrative powers of the executive,
while at the same time "imposing limitation upon that
power."93 Watkins placed his real faith in a scheme of constitutional
dictatorship. These are the conditions of success of such a
dictatorship: "The period of dictatorship must be relatively
short…Dictatorship should always be strictly legitimate in
character…Final authority to determine the need for dictatorship in
any given case must never rest with the dictator himself…"94 and the
objective of such an emergency dictatorship should be "strict
political conservatism."
Carl J. Friedrich cast his analysis in terms similar to those of
Watkins.95 "It is a problem of concentrating power – in a
government where power has consciously been divided – to cope
with… situations of unprecedented magnitude and gravity. There
must be a broad grant of powers, subject to equally strong
limitations as to who shall exercise such powers, when, for how
long, and to what end."96 Friedrich, too, offered criteria for judging
the adequacy of any of scheme of emergency powers, to wit: "The
emergency executive must be appointed by constitutional means –
i.e., he must be legitimate; he should not enjoy power to determine
the existence of an emergency; emergency powers should be
exercised under a strict time limitation; and last, the objective of
emergency action must be the defense of the constitutional
order."97
Clinton L. Rossiter, after surveying the history of the employment of
emergency powers in Great Britain, France, Weimar, Germany and
the United States, reverted to a description of a scheme of
"constitutional dictatorship" as solution to the vexing problems
presented by emergency.98 Like Watkins and Friedrich, he stated a
priori the conditions of success of the "constitutional dictatorship,"
thus:
1) No general regime or particular institution of
constitutional dictatorship should be initiated unless it is
necessary or even indispensable to the preservation of the
State and its constitutional order…
2) …the decision to institute a constitutional dictatorship
should never be in the hands of the man or men who will
constitute the dictator…
3) No government should initiate a constitutional
dictatorship without making specific provisions for its
termination…
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 4) …all uses of emergency powers and all readjustments in
the organization of the government should be effected in
pursuit of constitutional or legal requirements…
5) … no dictatorial institution should be adopted, no right
invaded, no regular procedure altered any more than is
absolutely necessary for the conquest of the particular
crisis . . .
6) The measures adopted in the prosecution of the a
constitutional dictatorship should never be permanent in
character or effect…
7) The dictatorship should be carried on by persons
representative of every part of the citizenry interested in
the defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for every
action taken under a constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship,
like the decision to institute one should never be in the
hands of the man or men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond
the termination of the crisis for which it was instituted…
11) …the termination of the crisis must be followed by a
complete return as possible to the political and
governmental conditions existing prior to the initiation of
the constitutional dictatorship…99
Rossiter accorded to legislature a far greater role in the oversight
exercise of emergency powers than did Watkins. He would secure to
Congress final responsibility for declaring the existence or
termination of an emergency, and he places great faith in the
effectiveness of congressional investigating committees.100
Scott and Cotter, in analyzing the above contemporary theories in
light of recent experience, were one in saying that, "the suggestion
that democracies surrender the control of government to an
authoritarian ruler in time of grave danger to the nation is not based
upon sound constitutional theory." To appraise emergency power in
terms of constitutional dictatorship serves merely to distort the
problem and hinder realistic analysis. It matters not whether the
term "dictator" is used in its normal sense (as applied to
authoritarian rulers) or is employed to embrace all chief executives
administering emergency powers. However used, "constitutional
dictatorship" cannot be divorced from the implication of suspension
of the processes of constitutionalism. Thus, they favored instead the
"concept of constitutionalism" articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the
analysis of problems of emergency powers, and which is consistent
with the findings of this study, is that formulated by Charles H.
McIlwain. While it does not by any means necessarily exclude some
indeterminate limitations upon the substantive powers of
government, full emphasis is placed upon procedural limitations,
and political responsibility. McIlwain clearly recognized the need to
repose adequate power in government. And in discussing the
meaning of constitutionalism, he insisted that the historical and
proper test of constitutionalism was the existence of adequate
processes for keeping government responsible. He refused to equate
constitutionalism with the enfeebling of government by an
exaggerated emphasis upon separation of powers and substantive
limitations on governmental power. He found that the really
effective checks on despotism have consisted not in the weakening
of government but, but rather in the limiting of it; between which
there is a great and very significant difference. In associating
constitutionalism with "limited" as distinguished from "weak"
government, McIlwain meant government limited to the orderly
procedure of law as opposed to the processes of force. The two
fundamental correlative elements of constitutionalism for which all
lovers of liberty must yet fight are the legal limits to arbitrary power
and a complete political responsibility of government to the
governed.101
In the final analysis, the various approaches to emergency of the
above political theorists –- from Lock’s "theory of prerogative," to
Watkins’ doctrine of "constitutional dictatorship" and, eventually, to
McIlwain’s "principle of constitutionalism" --- ultimately aim to solve
one real problem in emergency governance, i.e., that of allotting
increasing areas of discretionary power to the Chief Executive, while
insuring that such powers will be exercised with a sense of political
responsibility and under effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the
fetters of a repressive regime, the 1986 Constitutional Commission,
in drafting the 1987 Constitution, endeavored to create a
government in the concept of Justice Jackson’s "balanced power
structure."102 Executive, legislative, and judicial powers are
dispersed to the President, the Congress, and the Supreme Court,
respectively. Each is supreme within its own sphere. But none has
the monopoly of power in times of emergency. Each branch is given
a role to serve as limitation or check upon the other. This system
does not weaken the President, it just limits his power, using the
language of McIlwain. In other words, in times of emergency, our
Constitution reasonably demands that we repose a certain amount
of faith in the basic integrity and wisdom of the Chief Executive but,
at the same time, it obliges him to operate within carefully
prescribed procedural limitations.
a. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because of its
"overbreadth." They claim that its enforcement encroached on both
unprotected and protected rights under Section 4, Article III of the
Constitution and sent a "chilling effect" to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is
uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool
developed for testing "on their faces" statutes in free speech
cases, also known under the American Law as First Amendment
cases.103
A plain reading of PP 1017 shows that it is not primarily directed to
speech or even speech-related conduct. It is actually a call upon the
AFP to prevent or suppress all forms of lawless violence. In United
States v. Salerno,104the US Supreme Court held that "we have not
recognized an ‘overbreadth’ doctrine outside the limited context of
the First Amendment" (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the
validity of a law that "reflects legitimate state interest in maintaining
comprehensive control over harmful, constitutionally unprotected
conduct." Undoubtedly, lawless violence, insurrection and rebellion
are considered "harmful" and "constitutionally unprotected
conduct." In Broadrick v. Oklahoma,105 it was held:
It remains a ‘matter of no little difficulty’ to determine when a law
may properly be held void on its face and when ‘such summary
action’ is inappropriate. But the plain import of our cases is, at the
very least, that facial overbreadth adjudication is an exception to our
traditional rules of practice and that its function, a limited one at the
outset, attenuates as the otherwise unprotected behavior that it
forbids the State to sanction moves from ‘pure speech’ toward
conduct and that conduct –even if expressive – falls within the scope
of otherwise valid criminal laws that reflect legitimate state interests
in maintaining comprehensive controls over harmful,
constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving
statutes which, by their terms, seek to regulate only "spoken words"
and again, that "overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are
sought to be applied to protected conduct."106Here, the
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incontrovertible fact remains that PP 1017 pertains to a spectrum
of conduct, not free speech, which is manifestly subject to state
regulation.
Second, facial invalidation of laws is considered as "manifestly strong
medicine," to be used "sparingly and only as a last resort," and is
"generally disfavored;"107 The reason for this is obvious. Embedded
in the traditional rules governing constitutional adjudication is the
principle that a person to whom a law may be applied will not be
heard to challenge a law on the ground that it may conceivably be
applied unconstitutionally to others, i.e., in other situations not
before the Court.108 A writer and scholar in Constitutional Law
explains further:
The most distinctive feature of the overbreadth technique is that it
marks an exception to some of the usual rules of constitutional
litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the
courts carve away the unconstitutional aspects of the law by
invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights
of third parties and can only assert their own interests. In
overbreadth analysis, those rules give way; challenges are permitted
to raise the rights of third parties; and the court invalidates the
entire statute "on its face," not merely "as applied for" so that the
overbroad law becomes unenforceable until a properly authorized
court construes it more narrowly. The factor that motivates courts
to depart from the normal adjudicatory rules is the concern with the
"chilling;" deterrent effect of the overbroad statute on third parties
not courageous enough to bring suit. The Court assumes that an
overbroad law’s "very existence may cause others not before the
court to refrain from constitutionally protected speech or
expression." An overbreadth ruling is designed to remove that
deterrent effect on the speech of those third parties.
In other words, a facial challenge using the overbreadth doctrine will
require the Court to examine PP 1017 and pinpoint its flaws and
defects, not on the basis of its actual operation to petitioners, but on
the assumption or prediction that its very existence may
cause others not before the Court to refrain from constitutionally
protected speech or expression. In Younger v. Harris,109 it was held
that:
[T]he task of analyzing a proposed statute, pinpointing its
deficiencies, and requiring correction of these deficiencies before
the statute is put into effect, is rarely if ever an appropriate task for
the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the
required line-by-line analysis of detailed statutes,...ordinarily results
in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.
And third, a facial challenge on the ground of overbreadth is the
most difficult challenge to mount successfully, since the challenger
must establish that there can be no instance when the assailed law
may be valid. Here, petitioners did not even attempt to show
whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of
vagueness. This, too, is unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness
doctrine" which holds that "a law is facially invalid if men of common
intelligence must necessarily guess at its meaning and differ as to its
application."110 It is subject to the same principles governing
overbreadth doctrine. For one, it is also an analytical tool for testing
"on their faces" statutes in free speech cases. And like overbreadth,
it is said that a litigant may challenge a statute on its face only if it
is vague in all its possible applications. Again, petitioners did not
even attempt to show that PP 1017 is vague in all its
application. They also failed to establish that men of common
intelligence cannot understand the meaning and application of PP
1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three
important provisions, thus:
First provision:
"by virtue of the power vested upon me by Section 18, Artilce VII …
do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well any act of insurrection
or rebellion"
Second provision:
"and to enforce obedience to all the laws and to all decrees, orders
and regulations promulgated by me personally or upon my
direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby
declare a State of National Emergency."
First Provision: Calling-out Power
The first provision pertains to the President’s calling-out power.
In Sanlakas v. Executive Secretary,111 this Court, through Mr. Justice
Dante O. Tinga, held that Section 18, Article VII of the Constitution
reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he
may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when
the public safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight
hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its Members in regular
or special session, may revoke such proclamation or suspension,
which revocation shall not be set aside by the President. Upon the
initiative of the President, the Congress may, in the same manner,
extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist
and public safety requires it.
The Congress, if not in session, shall within twenty-four hours
following such proclamation or suspension, convene in accordance
with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed
by any citizen, the sufficiency of the factual bases of the
proclamation of martial law or the suspension of the privilege of the
writ or the extension thereof, and must promulgate its decision
thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction
on military courts and agencies over civilians where civil courts are
able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to
persons judicially charged for rebellion or offenses inherent in or
directly connected with invasion.
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During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days,
otherwise he shall be released.
grants the President, as Commander-in-Chief, a "sequence" of
graduated powers. From the most to the least benign, these are: the
calling-out power, the power to suspend the privilege of the writ
of habeas corpus, and the power to declare Martial Law.
Citing Integrated Bar of the Philippines v. Zamora,112 the Court ruled
that the only criterion for the exercise of the calling-out power is
that "whenever it becomes necessary," the President may call the
armed forces "to prevent or suppress lawless violence, invasion or
rebellion." Are these conditions present in the instant cases? As
stated earlier, considering the circumstances then prevailing,
President Arroyo found it necessary to issue PP 1017. Owing to her
Office’s vast intelligence network, she is in the best position to
determine the actual condition of the country.
Under the calling-out power, the President may summon the armed
forces to aid him in suppressing lawless violence, invasion and
rebellion. This involves ordinary police action. But every act that
goes beyond the President’s calling-out power is considered illegal
or ultra vires. For this reason, a President must be careful in the
exercise of his powers. He cannot invoke a greater power when he
wishes to act under a lesser power. There lies the wisdom of our
Constitution, the greater the power, the greater are the limitations.
It is pertinent to state, however, that there is a distinction between
the President’s authority to declare a "state of rebellion"
(in Sanlakas) and the authority to proclaim a state of national
emergency. While President Arroyo’s authority to declare a "state of
rebellion" emanates from her powers as Chief Executive, the
statutory authority cited in Sanlakas was Section 4, Chapter 2, Book
II of the Revised Administrative Code of 1987, which provides:
SEC. 4. – Proclamations. – Acts of the President fixing a date or
declaring a status or condition of public moment or interest, upon
the existence of which the operation of a specific law or regulation is
made to depend, shall be promulgated in proclamations which shall
have the force of an executive order.
President Arroyo’s declaration of a "state of rebellion" was merely
an act declaring a status or condition of public moment or interest, a
declaration allowed under Section 4 cited above. Such declaration,
in the words of Sanlakas, is harmless, without legal significance, and
deemed not written. In these cases, PP 1017 is more than that. In
declaring a state of national emergency, President Arroyo did not
only rely on Section 18, Article VII of the Constitution, a provision
calling on the AFP to prevent or suppress lawless violence, invasion
or rebellion. She also relied on Section 17, Article XII, a provision on
the State’s extraordinary power to take over privately-owned public
utility and business affected with public interest. Indeed, PP 1017
calls for the exercise of an awesome power. Obviously, such
Proclamation cannot be deemed harmless, without legal
significance, or not written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is
actually a declaration of Martial Law. It is no so. What defines the
character of PP 1017 are its wordings. It is plain therein that what
the President invoked was her calling-out power.
The declaration of Martial Law is a "warn[ing] to citizens that the
military power has been called upon by the executive to assist in the
maintenance of law and order, and that, while the emergency lasts,
they must, upon pain of arrest and punishment, not commit any acts
which will in any way render more difficult the restoration of order
and the enforcement of law."113
In his "Statement before the Senate Committee on Justice" on March
13, 2006, Mr. Justice Vicente V. Mendoza,114 an authority in
constitutional law, said that of the three powers of the President as
Commander-in-Chief, the power to declare Martial Law poses the
most severe threat to civil liberties. It is a strong medicine which
should not be resorted to lightly. It cannot be used to stifle or
persecute critics of the government. It is placed in the keeping of the
President for the purpose of enabling him to secure the people from
harm and to restore order so that they can enjoy their individual
freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction
on military courts and agencies over civilians where civil courts are
able to function, nor automatically suspend the privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of
Martial Law. It is no more than a call by the President to the armed
forces to prevent or suppress lawless violence. As such, it cannot be
used to justify acts that only under a valid declaration of Martial Law
can be done. Its use for any other purpose is a perversion of its
nature and scope, and any act done contrary to its command is ultra
vires.
Justice Mendoza further stated that specifically, (a) arrests and
seizures without judicial warrants; (b) ban on public assemblies; (c)
take-over of news media and agencies and press censorship; and (d)
issuance of Presidential Decrees, are powers which can be exercised
by the President as Commander-in-Chief only where there is a valid
declaration of Martial Law or suspension of the writ of habeas
corpus.
Based on the above disquisition, it is clear that PP 1017 is not a
declaration of Martial Law. It is merely an exercise of President
Arroyo’s calling-out power for the armed forces to assist her in
preventing or suppressing lawless violence.
Second Provision: "Take Care" Power
The second provision pertains to the power of the President to
ensure that the laws be faithfully executed. This is based on Section
17, Article VII which reads:
SEC. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed.
As the Executive in whom the executive power is vested, 115 the
primary function of the President is to enforce the laws as well as to
formulate policies to be embodied in existing laws. He sees to it that
all laws are enforced by the officials and employees of his
department. Before assuming office, he is required to take an oath
or affirmation to the effect that as President of the Philippines, he
will, among others, "execute its laws."116 In the exercise of such
function, the President, if needed, may employ the powers attached
to his office as the Commander-in-Chief of all the armed forces of
the country,117 including the Philippine National Police118 under the
Department of Interior and Local Government.119
Petitioners, especially Representatives Francis Joseph G. Escudero,
Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel
Virador argue that PP 1017 is unconstitutional as it arrogated upon
President Arroyo the power to enact laws and decrees in violation of
Section 1, Article VI of the Constitution, which vests the power to
enact laws in Congress. They assail the clause "to enforce obedience
to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction."
\
Petitioners’ contention is understandable. A reading of PP 1017
operative clause shows that it was lifted120 from Former President
Marcos’ Proclamation No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines by virtue of the powers vested upon me by Article VII,
Section 10, Paragraph (2) of the Constitution, do hereby place the
entire Philippines as defined in Article 1, Section 1 of the
188
Constitution under martial law and, in my capacity as their
Commander-in-Chief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act of
insurrection or rebellion and to enforce obedience to all the laws
and decrees, orders and regulations promulgated by me personally
or upon my direction.
We all know that it was PP 1081 which granted President Marcos
legislative power. Its enabling clause states: "to enforce obedience
to all the laws and decrees, orders and regulations promulgated by
me personally or upon my direction." Upon the other hand, the
enabling clause of PP 1017 issued by President Arroyo is: to enforce
obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction."
Is it within the domain of President Arroyo to promulgate "decrees"?
PP 1017 states in part: "to enforce obedience to all the laws
and decrees x x x promulgated by me personally or upon my
direction."
The President is granted an Ordinance Power under Chapter 2, Book
III of Executive Order No. 292 (Administrative Code of 1987). She
may issue any of the following:
Sec. 2. Executive Orders. — Acts of the President providing for rules
of a general or permanent character in implementation or execution
of constitutional or statutory powers shall be promulgated in
executive orders.
Sec. 3. Administrative Orders. — Acts of the President which relate
to particular aspect of governmental operations in pursuance of his
duties as administrative head shall be promulgated in administrative
orders.
Sec. 4. Proclamations. — Acts of the President fixing a date or
declaring a status or condition of public moment or interest, upon
the existence of which the operation of a specific law or regulation is
made to depend, shall be promulgated in proclamations which shall
have the force of an executive order.
Sec. 5. Memorandum Orders. — Acts of the President on matters of
administrative detail or of subordinate or temporary interest which
only concern a particular officer or office of the Government shall be
embodied in memorandum orders.
Sec. 6. Memorandum Circulars. — Acts of the President on matters
relating to internal administration, which the President desires to
bring to the attention of all or some of the departments, agencies,
bureaus or offices of the Government, for information or
compliance, shall be embodied in memorandum circulars.
Sec. 7. General or Special Orders. — Acts and commands of the
President in his capacity as Commander-in-Chief of the Armed
Forces of the Philippines shall be issued as general or special orders.
President Arroyo’s ordinance power is limited to the foregoing
issuances. She cannot issue decrees similar to those issued by
Former President Marcos under PP 1081. Presidential Decrees are
laws which are of the same category and binding force as statutes
because they were issued by the President in the exercise of his
legislative power during the period of Martial Law under the 1973
Constitution.121
This Court rules that the assailed PP 1017 is unconstitutional insofar
as it grants President Arroyo the authority to promulgate
"decrees." Legislative power is peculiarly within the province of the
Legislature. Section 1, Article VI categorically states that "[t]he
legislative power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives." To
be sure, neither Martial Law nor a state of rebellion nor a state of
emergency can justify President Arroyo’s exercise of legislative
power by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws
through the military?
As this Court stated earlier, President Arroyo has no authority to
enact decrees. It follows that these decrees are void and, therefore,
cannot be enforced. With respect to "laws," she cannot call the
military to enforce or implement certain laws, such as customs laws,
laws governing family and property relations, laws on obligations
and contracts and the like. She can only order the military, under PP
1017, to enforce laws pertinent to its duty to suppress lawless
violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees,
orders, and regulations promulgated by me personally or upon my
direction; and as provided in Section 17, Article XII of the
Constitution do hereby declare a state of national emergency.
The import of this provision is that President Arroyo, during the
state of national emergency under PP 1017, can call the military not
only to enforce obedience "to all the laws and to all decrees x x x"
but also to act pursuant to the provision of Section 17, Article XII
which reads:
Sec. 17. In times of national emergency, when the public interest so
requires, the State may, during the emergency and under
reasonable terms prescribed by it, temporarily take over or direct
the operation of any privately-owned public utility or business
affected with public interest.
What could be the reason of President Arroyo in invoking the above
provision when she issued PP 1017?
The answer is simple. During the existence of the state of national
emergency, PP 1017 purports to grant the President, without any
authority or delegation from Congress, to take over or direct the
operation of any privately-owned public utility or business affected
with public interest.
This provision was first introduced in the 1973 Constitution, as a
product of the "martial law" thinking of the 1971 Constitutional
Convention.122 In effect at the time of its approval was President
Marcos’ Letter of Instruction No. 2 dated September 22, 1972
instructing the Secretary of National Defense to take over "the
management, control and operation of the Manila Electric Company,
the Philippine Long Distance Telephone Company, the National
Waterworks and Sewerage Authority, the Philippine National
Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient
Airways . . . for the successful prosecution by the Government of its
effort to contain, solve and end the present national emergency."
Petitioners, particularly the members of the House of
Representatives, claim that President Arroyo’s inclusion of Section
17, Article XII in PP 1017 is an encroachment on the legislature’s
emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the President’s authority
to declare "a state of national emergency" and
to exercise emergency powers. To the first, as elucidated by the
Court, Section 18, Article VII grants the President such power, hence,
no legitimate constitutional objection can be raised. But to the
second, manifold constitutional issues arise.
Section 23, Article VI of the Constitution reads:
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SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in
joint session assembled, voting separately, shall have the sole power
to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may,
by law, authorize the President, for a limited period and subject to
such restrictions as it may prescribe, to exercise powers necessary
and proper to carry out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such powers shall cease
upon the next adjournment thereof.
It may be pointed out that the second paragraph of the above
provision refers not only to war but also to "other national
emergency." If the intention of the Framers of our Constitution was
to withhold from the President the authority to declare a "state of
national emergency" pursuant to Section 18, Article VII (calling-out
power) and grant it to Congress (like the declaration of the existence
of a state of war), then the Framers could have provided so. Clearly,
they did not intend that Congress should first authorize the
President before he can declare a "state of national emergency." The
logical conclusion then is that President Arroyo could validly declare
the existence of a state of national emergency even in the absence
of a Congressional enactment.
But the exercise of emergency powers, such as the taking over of
privately owned public utility or business affected with public
interest, is a different matter. This requires a delegation from
Congress.
Courts have often said that constitutional provisions in pari
materia are to be construed together. Otherwise stated, different
clauses, sections, and provisions of a constitution which relate to the
same subject matter will be construed together and considered in
the light of each other.123 Considering that Section 17 of Article XII
and Section 23 of Article VI, previously quoted, relate to national
emergencies, they must be read together to determine the
limitation of the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is
evident in the tenor of Section 23 (2), Article VI authorizing it to
delegate such powers to the President. Certainly, a body cannot
delegate a power not reposed upon it. However, knowing that
during grave emergencies, it may not be possible or practicable for
Congress to meet and exercise its powers, the Framers of our
Constitution deemed it wise to allow Congress to grant emergency
powers to the President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as
the Congress may prescribe.
(4) The emergency powers must be exercised to carry out
a national policy declared by Congress.124
Section 17, Article XII must be understood as an aspect of the
emergency powers clause. The taking over of private business
affected with public interest is just another facet of the emergency
powers generally reposed upon Congress. Thus, when Section 17
states that the "the State may, during the emergency and under
reasonable terms prescribed by it, temporarily take over or direct
the operation of any privately owned public utility or business
affected with public interest," it refers to Congress, not the
President. Now, whether or not the President may exercise such
power is dependent on whether Congress may delegate it to him
pursuant to a law prescribing the reasonable terms
thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,125 held:
It is clear that if the President had authority to issue the order he
did, it must be found in some provision of the Constitution. And it is
not claimed that express constitutional language grants this power
to the President. The contention is that presidential power should be
implied from the aggregate of his powers under the Constitution.
Particular reliance is placed on provisions in Article II which say that
"The executive Power shall be vested in a President . . . .;" that "he
shall take Care that the Laws be faithfully executed;" and that he
"shall be Commander-in-Chief of the Army and Navy of the United
States.
The order cannot properly be sustained as an exercise of the
President’s military power as Commander-in-Chief of the Armed
Forces. The Government attempts to do so by citing a number of
cases upholding broad powers in military commanders engaged in
day-to-day fighting in a theater of war. Such cases need not concern
us here. Even though "theater of war" be an expanding concept, we
cannot with faithfulness to our constitutional system hold that the
Commander-in-Chief of the Armed Forces has the ultimate power as
such to take possession of private property in order to keep labor
disputes from stopping production. This is a job for the nation’s
lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several
constitutional provisions that grant executive power to the
President. In the framework of our Constitution, the President’s
power to see that the laws are faithfully executed refutes the idea
that he is to be a lawmaker. The Constitution limits his functions in
the lawmaking process to the recommending of laws he thinks wise
and the vetoing of laws he thinks bad. And the Constitution is
neither silent nor equivocal about who shall make laws which the
President is to execute. The first section of the first article says that
"All legislative Powers herein granted shall be vested in a Congress
of the United States. . ."126
Petitioner Cacho-Olivares, et al. contends that the term
"emergency" under Section 17, Article XII refers to "tsunami,"
"typhoon," "hurricane"and"similar occurrences." This is a limited
view of "emergency."
Emergency, as a generic term, connotes the existence of conditions
suddenly intensifying the degree of existing danger to life or well-
being beyond that which is accepted as normal. Implicit in this
definitions are the elements of intensity, variety, and
perception.127 Emergencies, as perceived by legislature or executive
in the United Sates since 1933, have been occasioned by a wide
range of situations, classifiable under three (3) principal
heads: a)economic,128 b) natural disaster,129 and c) national
security.130
"Emergency," as contemplated in our Constitution, is of the same
breadth. It may include rebellion, economic crisis, pestilence or
epidemic, typhoon, flood, or other similar catastrophe of nationwide
proportions or effect.131This is evident in the Records of the
Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committee’s definition of "national
emergency" which appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take
over or direct the operation of any privately owned public utility or
business affected with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for
example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes.
What about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term
"national emergency."
MR. BENGZON. Unless they are of such proportions such that they
would paralyze government service.132
xxxxxx
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MR. TINGSON. May I ask the committee if "national emergency"
refers to military national emergency or could this be economic
emergency?"
MR. VILLEGAS. Yes, it could refer to both military or economic
dislocations.
MR. TINGSON. Thank you very much.133
It may be argued that when there is national emergency, Congress
may not be able to convene and, therefore, unable to delegate to
the President the power to take over privately-owned public utility
or business affected with public interest.
In Araneta v. Dinglasan,134 this Court emphasized that legislative
power, through which extraordinary measures are exercised,
remains in Congress even in times of crisis.
"x x x
After all the criticisms that have been made against the efficiency of
the system of the separation of powers, the fact remains that the
Constitution has set up this form of government, with all its defects
and shortcomings, in preference to the commingling of powers in
one man or group of men. The Filipino people by adopting
parliamentary government have given notice that they share the
faith of other democracy-loving peoples in this system, with all its
faults, as the ideal. The point is, under this framework of
government, legislation is preserved for Congress all the time, not
excepting periods of crisis no matter how serious. Never in the
history of the United States, the basic features of whose
Constitution have been copied in ours, have specific functions of the
legislative branch of enacting laws been surrendered to another
department – unless we regard as legislating the carrying out of a
legislative policy according to prescribed standards; no, not even
when that Republic was fighting a total war, or when it was engaged
in a life-and-death struggle to preserve the Union. The truth is that
under our concept of constitutional government, in times of
extreme perils more than in normal circumstances ‘the various
branches, executive, legislative, and judicial,’ given the ability to act,
are called upon ‘to perform the duties and discharge the
responsibilities committed to them respectively."
Following our interpretation of Section 17, Article XII, invoked by
President Arroyo in issuing PP 1017, this Court rules that such
Proclamation does not authorize her during the emergency to
temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest without
authority from Congress.
Let it be emphasized that while the President alone can declare a
state of national emergency, however, without legislation, he has no
power to take over privately-owned public utility or business
affected with public interest. The President cannot decide whether
exceptional circumstances exist warranting the take over of
privately-owned public utility or business affected with public
interest. Nor can he determine when such exceptional
circumstances have ceased. Likewise, without legislation, the
President has no power to point out the types of businesses affected
with public interest that should be taken over. In short, the
President has no absolute authority to exercise all the powers of the
State under Section 17, Article VII in the absence of an emergency
powers act passed by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which
pertains to security, is that military necessity and the guaranteed
rights of the individual are often not compatible. Our history reveals
that in the crucible of conflict, many rights are curtailed and
trampled upon. Here, the right against unreasonable search and
seizure; the right against warrantless arrest; and the freedom of
speech, of expression, of the press, and of assembly under the Bill of
Rights suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate "direct injury."
In G.R. No. 171396, petitioners David and Llamas alleged that, on
February 24, 2006, they were arrested without warrants on their
way to EDSA to celebrate the 20th Anniversary of People Power
I. The arresting officers cited PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares
and Tribune Publishing Co., Inc. claimed that on February 25, 2006,
the CIDG operatives "raided and ransacked without warrant" their
office. Three policemen were assigned to guard their office as a
possible "source of destabilization." Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et
al. alleged that their members were "turned away and dispersed"
when they went to EDSA and later, to Ayala Avenue, to celebrate the
20th Anniversary of People Power I.
A perusal of the "direct injuries" allegedly suffered by the said
petitioners shows that they resulted from the implementation,
pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on
the basis of these illegal acts? In general, does the illegal
implementation of a law render it unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes
invalid although they may be abused and misabused135 and may
afford an opportunity for abuse in the manner of application.136 The
validity of a statute or ordinance is to be determined from its
general purpose and its efficiency to accomplish the end desired, not
from its effects in a particular case.137 PP 1017 is merely an
invocation of the President’s calling-out power. Its general purpose
is to command the AFP to suppress all forms of lawless violence,
invasion or rebellion. It had accomplished the end desired which
prompted President Arroyo to issue PP 1021. But there is nothing in
PP 1017 allowing the police, expressly or impliedly, to conduct illegal
arrest, search or violate the citizens’ constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on
the ground that its implementor committed illegal acts? The answer
is no. The criterion by which the validity of the statute or ordinance
is to be measured is the essential basis for the exercise of
power, and not a mere incidental result arising from its
exertion.138This is logical. Just imagine the absurdity of situations
when laws maybe declared unconstitutional just because the
officers implementing them have acted arbitrarily. If this were so,
judging from the blunders committed by policemen in the cases
passed upon by the Court, majority of the provisions of the Revised
Penal Code would have been declared unconstitutional a long time
ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions
of PP 1017. General orders are "acts and commands of the President
in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines." They are internal rules issued by the executive officer
to his subordinates precisely for
the proper and efficientadministration of law. Such rules and
regulations create no relation except between the official who issues
them and the official who receives them.139 They are based on and
are the product of, a relationship in which power is their source, and
obedience, their object.140 For these reasons, one requirement for
these rules to be valid is that they must be reasonable, not arbitrary
or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out
the "necessary and appropriate actions and measures to suppress
and prevent acts of terrorism and lawless violence."
Unlike the term "lawless violence" which is unarguably extant in our
statutes and the Constitution, and which is invariably associated
with "invasion, insurrection or rebellion," the phrase "acts of
terrorism" is still an amorphous and vague concept. Congress has yet
to enact a law defining and punishing acts of terrorism.
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In fact, this "definitional predicament" or the "absence of an agreed
definition of terrorism" confronts not only our country, but the
international community as well. The following observations are
quite apropos:
In the actual unipolar context of international relations, the "fight
against terrorism" has become one of the basic slogans when it
comes to the justification of the use of force against certain states
and against groups operating internationally. Lists of states
"sponsoring terrorism" and of terrorist organizations are set up and
constantly being updated according to criteria that are not always
known to the public, but are clearly determined by strategic
interests.
The basic problem underlying all these military actions – or threats
of the use of force as the most recent by the United States against
Iraq – consists in the absence of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization
of acts of violence either by states, by armed groups such as
liberation movements, or by individuals.
The dilemma can by summarized in the saying "One country’s
terrorist is another country’s freedom fighter." The apparent
contradiction or lack of consistency in the use of the term
"terrorism" may further be demonstrated by the historical fact that
leaders of national liberation movements such as Nelson Mandela in
South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in
Algeria, to mention only a few, were originally labeled as terrorists
by those who controlled the territory at the time, but later became
internationally respected statesmen.
What, then, is the defining criterion for terrorist acts –
the differentia specifica distinguishing those acts from eventually
legitimate acts of national resistance or self-defense?
Since the times of the Cold War the United Nations Organization has
been trying in vain to reach a consensus on the basic issue of
definition. The organization has intensified its efforts recently, but
has been unable to bridge the gap between those who associate
"terrorism" with any violent act by non-state groups against civilians,
state functionaries or infrastructure or military installations, and
those who believe in the concept of the legitimate use of force when
resistance against foreign occupation or against systematic
oppression of ethnic and/or religious groups within a state is
concerned.
The dilemma facing the international community can best be
illustrated by reference to the contradicting categorization of
organizations and movements such as Palestine Liberation
Organization (PLO) – which is a terrorist group for Israel and a
liberation movement for Arabs and Muslims – the Kashmiri
resistance groups – who are terrorists in the perception of India,
liberation fighters in that of Pakistan – the earlier Contras in
Nicaragua – freedom fighters for the United States, terrorists for the
Socialist camp – or, most drastically, the Afghani Mujahedeen (later
to become the Taliban movement): during the Cold War period they
were a group of freedom fighters for the West, nurtured by the
United States, and a terrorist gang for the Soviet Union. One could
go on and on in enumerating examples of conflicting categorizations
that cannot be reconciled in any way – because of opposing political
interests that are at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting
perceptions and evaluations of one and the same group and its
actions be explained? In our analysis, the basic reason for these
striking inconsistencies lies in the divergent interest of states.
Depending on whether a state is in the position of an occupying
power or in that of a rival, or adversary, of an occupying power in a
given territory, the definition of terrorism will "fluctuate"
accordingly. A state may eventually see itself as protector of the
rights of a certain ethnic group outside its territory and will
therefore speak of a "liberation struggle," not of "terrorism" when
acts of violence by this group are concerned, and vice-versa.
The United Nations Organization has been unable to reach a
decision on the definition of terrorism exactly because of these
conflicting interests of sovereign states that determine in each and
every instance how a particular armed movement (i.e. a non-state
actor) is labeled in regard to the terrorists-freedom fighter
dichotomy. A "policy of double standards" on this vital issue of
international affairs has been the unavoidable consequence.
This "definitional predicament" of an organization consisting of
sovereign states – and not of peoples, in spite of the emphasis in the
Preamble to the United Nations Charter! – has become even more
serious in the present global power constellation: one superpower
exercises the decisive role in the Security Council, former great
powers of the Cold War era as well as medium powers are
increasingly being marginalized; and the problem has become even
more acute since the terrorist attacks of 11 September 2001 I the
United States.141
The absence of a law defining "acts of terrorism" may result in abuse
and oppression on the part of the police or military. An illustration is
when a group of persons are merely engaged in a drinking spree. Yet
the military or the police may consider the act as an act of terrorism
and immediately arrest them pursuant to G.O. No. 5. Obviously, this
is abuse and oppression on their part. It must be remembered that
an act can only be considered a crime if there is a law defining the
same as such and imposing the corresponding penalty thereon.
So far, the word "terrorism" appears only once in our criminal laws,
i.e., in P.D. No. 1835 dated January 16, 1981 enacted by President
Marcos during the Martial Law regime. This decree is entitled
"Codifying The Various Laws on Anti-Subversion and Increasing The
Penalties for Membership in Subversive Organizations." The word
"terrorism" is mentioned in the following provision: "That one who
conspires with any other person for the purpose of overthrowing the
Government of the Philippines x x x by force, violence, terrorism, x x
x shall be punished by reclusion temporal x x x."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the
Communist Party of the Philippines) enacted by President Corazon
Aquino on May 5, 1985. These two (2) laws, however, do not define
"acts of terrorism." Since there is no law defining "acts of terrorism,"
it is President Arroyo alone, under G.O. No. 5, who has the discretion
to determine what acts constitute terrorism. Her judgment on this
aspect is absolute, without restrictions. Consequently, there can be
indiscriminate arrest without warrants, breaking into offices and
residences, taking over the media enterprises, prohibition and
dispersal of all assemblies and gatherings unfriendly to the
administration. All these can be effected in the name of G.O. No. 5.
These acts go far beyond the calling-out power of the President.
Certainly, they violate the due process clause of the Constitution.
Thus, this Court declares that the "acts of terrorism" portion of G.O.
No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or
police to commit acts beyond what are necessary and appropriate to
suppress and prevent lawless violence, the limitation of their
authority in pursuing the Order. Otherwise, such acts are considered
illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that "the right of the people to be secured
in their persons, houses, papers and effects against unreasonable
search and seizure of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be
seized."142 The plain import of the language of the Constitution is
that searches, seizures and arrests are normally unreasonable unless
authorized by a validly issued search warrant or warrant of arrest.
Thus, the fundamental protection given by this provision is that
between person and police must stand the protective authority of a
192
magistrate clothed with power to issue or refuse to issue search
warrants or warrants of arrest.143
In the Brief Account144 submitted by petitioner David, certain facts
are established: first, he was arrested without warrant; second, the
PNP operatives arrested him on the basis of PP 1017; third, he was
brought at Camp Karingal, Quezon City where he was fingerprinted,
photographed and booked like a criminal suspect; fourth,he was
treated brusquely by policemen who "held his head and tried to
push him" inside an unmarked car; fifth, he was charged with
Violation of Batas Pambansa Bilang No. 880145 and Inciting to
Sedition; sixth, he was detained for seven (7) hours; and seventh,he
was eventually released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure
provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense.
(b) When an offense has just been committed and he has
probable cause to believe based on personal knowledge of
facts or circumstances that the person to be arrested has
committed it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies
petitioner David’s warrantless arrest. During the inquest for the
charges of inciting to sedition and violation of BP 880, all that the
arresting officers could invoke was their observation that some
rallyists were wearing t-shirts with the invective "Oust Gloria
Now" and their erroneous assumption that petitioner David was the
leader of the rally.146 Consequently, the Inquest Prosecutor ordered
his immediate release on the ground of insufficiency of evidence. He
noted that petitioner David was not wearing the subject t-shirt and
even if he was wearing it, such fact is insufficient to charge him with
inciting to sedition. Further, he also stated that there is insufficient
evidence for the charge of violation of BP 880 as it was not even
known whether petitioner David was the leader of the rally.147
But what made it doubly worse for petitioners David et al. is that not
only was their right against warrantless arrest violated, but also their
right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances.
"Assembly" means a right on the part of the citizens to meet
peaceably for consultation in respect to public affairs. It is a
necessary consequence of our republican institution and
complements the right of speech. As in the case of freedom of
expression, this right is not to be limited, much less denied, except
on a showing of a clear and present danger of a substantive evil that
Congress has a right to prevent. In other words, like other rights
embraced in the freedom of expression, the right to assemble is not
subject to previous restraint or censorship. It may not be
conditioned upon the prior issuance of a permit or authorization
from the government authorities except, of course, if the assembly is
intended to be held in a public place, a permit for the use of such
place, and not for the assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested
while they were exercising their right to peaceful assembly. They
were not committing any crime, neither was there a showing of a
clear and present danger that warranted the limitation of that right.
As can be gleaned from circumstances, the charges of inciting to
sedition and violation of BP 880 were mere afterthought. Even the
Solicitor General, during the oral argument, failed to justify the
arresting officers’ conduct. In De Jonge v. Oregon,148 it was held that
peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime.
The holding of meetings for peaceable political action cannot be
proscribed. Those who assist in the conduct of such meetings cannot
be branded as criminals on that score. The question, if the rights of
free speech and peaceful assembly are not to be preserved, is not as
to the auspices under which the meeting was held but as to its
purpose; not as to the relations of the speakers, but whether their
utterances transcend the bounds of the freedom of speech which
the Constitution protects. If the persons assembling have committed
crimes elsewhere, if they have formed or are engaged in a
conspiracy against the public peace and order, they may be
prosecuted for their conspiracy or other violations of valid laws. But
it is a different matter when the State, instead of prosecuting them
for such offenses, seizes upon mere participation in a peaceable
assembly and a lawful public discussion as the basis for a criminal
charge.
On the basis of the above principles, the Court likewise considers the
dispersal and arrest of the members of KMU et al. (G.R. No. 171483)
unwarranted. Apparently, their dispersal was done merely on the
basis of Malacañang’s directive canceling all permits previously
issued by local government units. This is arbitrary. The wholesale
cancellation of all permits to rally is a blatant disregard of the
principle that "freedom of assembly is not to be limited, much less
denied, except on a showing of a clear and present danger of a
substantive evil that the State has a right to prevent."149 Tolerance is
the rule and limitation is the exception. Only upon a showing that an
assembly presents a clear and present danger that the State may
deny the citizens’ right to exercise it. Indeed, respondents failed to
show or convince the Court that the rallyists committed acts
amounting to lawless violence, invasion or rebellion. With the
blanket revocation of permits, the distinction between protected
and unprotected assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and
rallies is lodged with the local government units. They have the
power to issue permits and to revoke such permits after due notice
and hearing on the determination of the presence of clear and
present danger. Here, petitioners were not even notified and heard
on the revocation of their permits.150 The first time they learned of it
was at the time of the dispersal. Such absence of notice is a fatal
defect. When a person’s right is restricted by government action, it
behooves a democratic government to see to it that the restriction is
fair, reasonable, and according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of
freedom of speech i.e., the freedom of the press. Petitioners’
narration of facts, which the Solicitor General failed to refute,
established the following: first, the Daily Tribune’s offices were
searched without warrant;second, the police operatives seized
several materials for publication; third, the search was conducted at
about 1:00 o’ clock in the morning of February 25, 2006; fourth, the
search was conducted in the absence of any official of the Daily
Tribune except the security guard of the building;
and fifth, policemen stationed themselves at the vicinity of the Daily
Tribune offices.
Thereafter, a wave of warning came from government officials.
Presidential Chief of Staff Michael Defensor was quoted as saying
that such raid was "meant to show a ‘strong presence,’ to tell media
outlets not to connive or do anything that would help the rebels in
bringing down this government." Director General Lomibao further
stated that "if they do not follow the standards –and the standards
are if they would contribute to instability in the government, or if
they do not subscribe to what is in General Order No. 5 and Proc.
No. 1017 – we will recommend a ‘takeover.’" National
Telecommunications Commissioner Ronald Solis urged television
and radio networks to "cooperate" with the government for the
duration of the state of national emergency. He warned that his
193
agency will not hesitate to recommend the closure of any broadcast Under the law they would seem to be, if they were illegally seized, I
outfit that violates rules set out for media coverage during times think and I know, Your Honor, and these are inadmissible for any
when the national security is threatened.151 purpose.155

The search is illegal. Rule 126 of The Revised Rules on Criminal xxxxxxxxx
Procedure lays down the steps in the conduct of search and
seizure. Section 4 requires that a search warrant be issued upon SR. ASSO. JUSTICE PUNO:
probable cause in connection with one specific offence to be
determined personally by the judge after examination under oath or
These have been published in the past issues of the Daily Tribune; all
affirmation of the complainant and the witnesses he may
you have to do is to get those past issues. So why do you have to go
produce. Section 8 mandates that the search of a house, room, or
there at 1 o’clock in the morning and without any search warrant?
any other premise be made in the presence of the lawful
Did they become suddenly part of the evidence of rebellion or
occupant thereof or any member of his family or in the absence of
inciting to sedition or what?
the latter, in the presence of two (2) witnesses of sufficient age and
discretion residing in the same locality. And Section 9 states that the
warrant must direct that it be served in the daytime, unless the SOLGEN BENIPAYO:
property is on the person or in the place ordered to be searched, in
which case a direction may be inserted that it be served at any time Well, it was the police that did that, Your Honor. Not upon my
of the day or night. All these rules were violated by the CIDG instructions.
operatives.
SR. ASSO. JUSTICE PUNO:
Not only that, the search violated petitioners’ freedom of the press.
The best gauge of a free and democratic society rests in the degree Are you saying that the act of the policeman is illegal, it is not based
of freedom enjoyed by its media. In the Burgos v. Chief of on any law, and it is not based on Proclamation 1017.
Staff152 this Court held that --

As heretofore stated, the premises searched were the business and
printing offices of the "Metropolitan Mail" and the "We Forum"
newspapers. As a consequence of the search and seizure, these
premises were padlocked and sealed, with the further result that the
printing and publication of said newspapers were discontinued.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is
nothing in 1017 which says that the police could go and inspect and
gather clippings from Daily Tribune or any other newspaper.

Such closure is in the nature of previous restraint or censorship SR. ASSO. JUSTICE PUNO:
abhorrent to the freedom of the press guaranteed under the
fundamental law, and constitutes a virtual denial of petitioners' Is it based on any law?
freedom to express themselves in print. This state of being is
patently anathematic to a democratic framework where a free, alert SOLGEN BENIPAYO:
and even militant press is essential for the political enlightenment
and growth of the citizenry.
As far as I know, no, Your Honor, from the facts, no.

While admittedly, the Daily Tribune was not padlocked and sealed
SR. ASSO. JUSTICE PUNO:
like the "Metropolitan Mail" and "We Forum" newspapers in the
above case, yet it cannot be denied that the CIDG operatives
exceeded their enforcement duties. The search and seizure of So, it has no basis, no legal basis whatsoever?
materials for publication, the stationing of policemen in the vicinity
of the The Daily Tribune offices, and the arrogant warning of SOLGEN BENIPAYO:
government officials to media, are plain censorship. It is that
officious functionary of the repressive government who tells the Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it
citizen that he may speak only if allowed to do so, and no more and is premature to say this, we do not condone this. If the people who
no less than what he is permitted to say on pain of punishment have been injured by this would want to sue them, they can sue and
should he be so rash as to disobey.153 Undoubtedly, the The Daily there are remedies for this.156
Tribune was subjected to these arbitrary intrusions because of its
anti-government sentiments. This Court cannot tolerate the blatant
Likewise, the warrantless arrests and seizures executed by the police
disregard of a constitutional right even if it involves the most defiant
were, according to the Solicitor General, illegal and cannot be
of our citizens. Freedom to comment on public affairs is essential to
condoned, thus:
the vitality of a representative democracy. It is the duty of the courts
to be watchful for the constitutional rights of the citizen, and against
any stealthy encroachments thereon. The motto should always CHIEF JUSTICE PANGANIBAN:
be obsta principiis.154
There seems to be some confusions if not contradiction in your
Incidentally, during the oral arguments, the Solicitor General theory.
admitted that the search of the Tribune’s offices and the seizure of
its materials for publication and other papers are illegal; and that the SOLICITOR GENERAL BENIPAYO:
same are inadmissible "for any purpose," thus:
I don’t know whether this will clarify. The acts, the supposed illegal
JUSTICE CALLEJO: or unlawful acts committed on the occasion of 1017, as I said, it
cannot be condoned. You cannot blame the President for, as you
You made quite a mouthful of admission when you said that the said, a misapplication of the law. These are acts of the police
policemen, when inspected the Tribune for the purpose of gathering officers, that is their responsibility.157
evidence and you admitted that the policemen were able to get the
clippings. Is that not in admission of the admissibility of these The Dissenting Opinion states that PP 1017 and G.O. No. 5 are
clippings that were taken from the Tribune? constitutional in every aspect and "should result in no constitutional
or statutory breaches if applied according to their letter."
SOLICITOR GENERAL BENIPAYO:
194
The Court has passed upon the constitutionality of these issuances.
Its ratiocination has been exhaustively presented. At this point,
suffice it to reiterate that PP 1017 is limited to the calling out by the
President of the military to prevent or suppress lawless violence,
invasion or rebellion. When in implementing its provisions, pursuant
to G.O. No. 5, the military and the police committed acts which
violate the citizens’ rights under the Constitution, this Court has to
declare such acts unconstitutional and illegal.
It is well to remember that military power is a means to an end and
substantive civil rights are ends in themselves. How to give the
military the power it needs to protect the Republic without
unnecessarily trampling individual rights is one of the eternal
balancing tasks of a democratic state.During emergency,
governmental action may vary in breadth and intensity from normal
times, yet they should not be arbitrary as to unduly restrain our
people’s liberty.

In this connection, Chief Justice Artemio V. Panganiban’s concurring
opinion, attached hereto, is considered an integral part of
this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 – a
supervening event – would have normally rendered this case moot
and academic. However, while PP 1017 was still operative, illegal
acts were committed allegedly in pursuance thereof. Besides, there
is no guarantee that PP 1017, or one similar to it, may not again be
issued. Already, there have been media reports on April 30, 2006
that allegedly PP 1017 would be reimposed "if the May 1 rallies"
become "unruly and violent." Consequently, the transcendental
issues raised by the parties should not be "evaded;" they must now
be resolved to prevent future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as
it constitutes a call by the President for the AFP to prevent or
suppress lawless violence. The proclamation is sustained by Section
18, Article VII of the Constitution and the relevant jurisprudence
discussed earlier. However, PP 1017’s extraneous provisions giving
the President express or implied power (1) to issue decrees; (2) to
direct the AFP to enforce obedience to all laws even those not
related to lawless violence as well as decrees promulgated by the
President; and (3) to impose standards on media or any form of prior
restraint on the press, are ultra vires and unconstitutional. The Court
also rules that under Section 17, Article XII of the Constitution, the
President, in the absence of a legislation, cannot take over privately-
owned public utility and private business affected with public
interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order
issued by the President – acting as Commander-in-Chief – addressed
to subalterns in the AFP to carry out the provisions of PP 1017.
Significantly, it also provides a valid standard – that the military and
the police should take only the "necessary and appropriate actions
and measures to suppress and prevent acts of lawless violence."But
the words "acts of terrorism" found in G.O. No. 5 have not been
legally defined and made punishable by Congress and should thus be
deemed deleted from the said G.O. While "terrorism" has been
denounced generally in media, no law has been enacted to guide the
military, and eventually the courts, to determine the limits of the
AFP’s authority in carrying out this portion of G.O. No. 5.
Perhaps, the vital lesson that we must learn from the theorists who
studied the various competing political philosophies is that, it is
possible to grant government the authority to cope with crises
without surrendering the two vital principles of
constitutionalism: the maintenance of legal limits to arbitrary power,
and political responsibility of the government to the governed.158
WHEREFORE, the Petitions are partly granted. The Court rules that
PP 1017 is CONSTITUTIONAL insofar as it constitutes a call by
President Gloria Macapagal-Arroyo on the AFP to prevent or
suppress lawless violence. However, the provisions of PP 1017
commanding the AFP to enforce laws not related to lawless violence,
as well as decrees promulgated by the President, are
declared UNCONSTITUTIONAL. In addition, the provision in PP 1017
declaring national emergency under Section 17, Article VII of the
Constitution is CONSTITUTIONAL, but such declaration does not
authorize the President to take over privately-owned public utility or
business affected with public interest without prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which
the AFP and the PNP should implement PP 1017, i.e. whatever is
"necessary and appropriate actions and measures to suppress and
prevent acts of lawless violence." Considering that "acts of
terrorism" have not yet been defined and made punishable by the
Legislature, such portion of G.O. No. 5 is
declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the
dispersal and warrantless arrest of the KMU and NAFLU-KMU
members during their rallies, in the absence of proof that these
petitioners were committing acts constituting lawless violence,
invasion or rebellion and violating BP 880; the imposition of
standards on media or any form of prior restraint on the press, as
well as the warrantless search of the Tribune offices and whimsical
seizure of its articles for publication and other materials, are
declared UNCONSTITUTIONAL.
No costs.
SO ORDERED.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

WE CONCUR:
On the basis of the relevant and uncontested facts narrated earlier,
it is also pristine clear that (1) the warrantless arrest of petitioners
Randolf S. David and Ronald Llamas; (2) the dispersal of the rallies ARTEMIO V. PANGANIBAN
and warrantless arrest of the KMU and NAFLU-KMU members; (3) Chief Justice
the imposition of standards on media or any prior restraint on the
press; and (4) the warrantless search of the Tribune offices and the
whimsical seizures of some articles for publication and other
materials, are not authorized by the Constitution, the law and (On leave)
LEONARDO A.
jurisprudence. Not even by the valid provisions of PP 1017 and G.O. REYNATO S. PUNO
QUISUMBING
No. 5. Associate Justice
Asscociate Justice

Other than this declaration of invalidity, this Court cannot impose

any civil, criminal or administrative sanctions on the individual police CONSUELO YNARES-
officers concerned. They have not been individually identified and ANTONIO T. CARPIO
SANTIAGO
given their day in court. The civil complaints or causes of action Asscociate Justice
Associate Justice
and/or relevant criminal Informations have not been presented
before this Court. Elementary due process bars this Court from
making any specific pronouncement of civil, criminal or MA. ALICIA AUSTRIA- RENATO C. CORONA
administrative liabilities. MARTINEZ Asscociate Justice

195
 13 Petition in G.R. No. 171400, p. 11.
Associate Justice
14 Ibid.

CONCHITA CARPIO 15 The prime duty of the Government is to serve and

ROMEO J. CALLEJO, SR.
MORALES protect the people. The Government may call upon the
Asscociate Justice
Associate Justice people to defend the State and, in the fulfillment thereof,
all citizens may be required, under conditions provided by
law, to render personal military or civil service.
ADOLFO S. AZCUNA DANTE O. TINGA
Associate Justice Asscociate Justice 16No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied
the equal protection of the laws.
MINITA V. CHICO-NAZARIO CANCIO C. GARCIA
Associate Justice Asscociate Justice 17The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall
PRESBITERO J. VELASCO, JR. be inviolable, and no search warrant or warrant of arrest
Associate Justice shall issue except upon probable cause to be determined
personally by the judge after examination under oath or
CERTIFICATION affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be
searched and the persons or things to be seized.
Pursuant to Section 13, Article VIII of the Constitution, it is hereby
certified that the conclusions in the above Decision were reached in
18No law shall be passed abridging the freedom of speech,
consultation before the case was assigned to the writer of the
opinion of the Court. of expression, or of the press, or the right of the people
peaceably to assemble and petition the Government for
redress of grievances.
ARTEMIO V. PANGANIBAN
19(1) The Congress, by a vote of two-thirds of both Houses
Chief Justice
in joint session assembled, voting separately, shall have
the sole power to declare the existence of a state of war.

(2) In times of war or other national emergency,

the Congress may, by law, authorize the
Footnotes President, for a limited period and subject to
such restrictions as it may prescribe, to exercise
1Law and Disorder, The Franklin Memorial powers necessary and proper to carry out a
Lectures, Justice Tom C. Clark – Lecturer, Volume XIX, declared national policy. Unless sooner
1971, p. 29. withdrawn by resolution of the Congress, such
powers shall cease upon the next adjournment
2Chief Justice Artemio V. Panganiban, Liberty and thereof.
Prosperity, February 15, 2006.
20In times of national emergency, when the public interest
3Articulated in the writings of the Greek philosopher, so requires, the State may, during the emergency and
Heraclitus of Ephesus, 540-480 B.C., who propounded under reasonable terms prescribed by it, temporarily take
universal impermanence and that all things, notably over or direct the operation of any privately owned public
opposites are interrelated. utility or business affected with public interest.

21 1 Cranch 137 [1803].

4 Respondents’ Comment dated March 6, 2006.

22Howard L. MacBain, "Some Aspects of Judicial

5 Ibid.
Review," Bacon Lectures on the Constitution of the United
6
States (Boston: Boston University Heffernan Press, 1939),
Ibid. pp. 376-77.

7Minutes of the Intelligence Report and Security Group, 23The Court has no self-starting capacity and must await
Philippine Army, Annex "I" of Respondents’ Consolidated the action of some litigant so aggrieved as to have a
Comment. justiciable case. (Shapiro and Tresolini, American
Constitutional Law, Sixth Edition, 1983, p. 79).
8 Respondents’ Consolidated Comment.
24 Cruz, Philippine Political Law, 2002 Ed., p. 259.
9 Ibid.
25 Ibid.
10 Ibid.
26Province of Batangas v. Romulo, G.R. No. 152774, May
11 Petition in G.R. No. 171396, p. 5. 27, 2004, 429 SCRA 736.

12Police action in various parts of Metro Manila and the 27 Banco Filipino Savings and Mortgage Bank v. Tuazon,
reactions of the huge crowds being dispersed were Jr., G.R. No. 132795, March 10, 2004, 425 SCRA 129; Vda.
broadcast as "breaking news" by the major television De Dabao v. Court of Appeals, G.R. No. 1165, March 23,
stations of this country.

196
2004, 426 SCRA 91; and Paloma v. Court of Appeals, G.R.
No. 145431, November 11, 2003, 415 SCRA 590.
28Royal Cargo Corporation v. Civil Aeronautics Board, G.R.
Nos. 103055-56, January 26, 2004, 421 SCRA 21; Vda. De
Dabao v. Court of Appeals, supra.
29Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357
SCRA 756.
30
Cruz, Philippine Political Law, 2002, p. 268 citing Norton
v. Shelby, 118 U.S. 425.
Court held that in cases involving an assertion of
a public right, the requirement of personal
interest is satisfied by the mere fact that the
petitioner is a citizen and part of the general
public which possesses the right.
Kapatiran ng mga Naglilingkod sa Pamahalaan
ng Pilipinas, Inc. v. Tan, L. No. 81311, June 30,
1988, 163 SCRA 371, where the Court held that
objections to taxpayers’ lack of personality to
sue may be disregarded in determining the
validity of the VAT law;

31
Albano v. Reyes, G.R. No. 83551, July 11, 1989,
Province of Batangas v. Romulo, supra.
175 SCRA 264, where the Court held that while
no expenditure of public funds was involved
32 Lacson v. Perez, supra. under the questioned contract, nonetheless
considering its important role in the economic
33 Province of Batangas v. Romulo, supra. development of the country and the magnitude
of the financial consideration involved, public
34Albaña v. Commission on Elections, G.R. No. 163302, July interest was definitely involved and this clothed
23, 2004, 435 SCRA 98, Acop v. Guingona, Jr., G.R. No. petitioner with the legal personality under the
134855, July 2, 2002, 383 SCRA 577, Sanlakas v. Executive disclosure provision of the Constitution to
Secretary, G.R. No. 159085, February 3, 2004, 421 SCRA question it.
656.
Association of Small Landowners in the
35Salonga v. Cruz Paño, et al., No. L- 59524, February 18, Philippines, Inc. v. Sec. of Agrarian Reform, G.R.
1985, 134 SCRA 438. No. 78742, July 14, 1989, 175 SCRA 343, where
the Court ruled that while petitioners are strictly
speaking, not covered by the definition of a
36 G.R. No. 159085, February 3, 2004, 421 SCRA 656. "proper party," nonetheless, it has the discretion
to waive the requirement, in determining the
37 Black’s Law Dictionary, 6th Ed. 1991, p. 941. validity of the implementation of the CARP.

38 Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951). Gonzales v. Macaraig, Jr., G.R. No. 87636,
November 19, 1990, 191 SCRA 452, where the
39 275 Ky 91, 120 SW2d 765 (1938). Court held that it enjoys the open discretion to
entertain taxpayer’s suit or not and that a
40 member of the Senate has the requisite
19 Wend. 56 (1837).
personality to bring a suit where a constitutional
issue is raised.
41 232 NC 48, 59 SE2d 359 (1950).
Maceda v. Macaraig, Jr., G.R. No. 88291, May
42 302 U.S. 633. 31, 1991, 197 SCRA 771, where the Court held
that petitioner as a taxpayer, has the personality
43 318 U.S. 446. to file the instant petition, as the issues involved,
pertains to illegal expenditure of public money;
44 65 Phil. 56 (1937).
Osmeña v. Comelec, G.R. No. 100318, 100308,
45 G.R. No. 117, November 7, 1945 (Unreported). 100417,100420, July 30, 1991, 199 SCRA 750,
where the Court held that where serious
46
constitutional questions are involved, the
G.R. No. 2947, January 11, 1959 (Unreported).
"transcendental importance" to the public of the
cases involved demands that they be settled
47 110 Phil. 331 (1960). promptly and definitely, brushing aside
technicalities of procedures;
48 77 Phil. 1012 (1947).
De Guia v. Comelec, G.R. No. 104712, May 6,
4984 Phil. 368 (1949) The Court held: "Above all, the 1992, 208 SCRA 420, where the Court held that
transcendental importance to the public of these cases the importance of the issues involved concerning
demands that they be settled promptly and definitely, as it does the political exercise of qualified voters
brushing aside, if we must, technicalities of procedure." affected by the apportionment, necessitates the
brushing aside of the procedural requirement
50 L-No. 40004, January 31, 1975, 62 SCRA 275. of locus standi.

52 G.R. No. 133250, July 9, 2002, 384 SCRA 152.

51Tañada v. Tuvera, G.R. No. 63915, April 24, 1985, 136
SCRA 27, where the Court held that where the question is
53G.R. Nos. 138570, 138572, 138587, 138680, 138698,
one of public duty and the enforcement of a public right,
the people are the real party in interest, and it is sufficient October 10, 2000, 342 SCRA 449.
that the petitioner is a citizen interested in the execution
of the law; 54 G.R. No. 151445, April 11, 2002, 380 SCRA 739.

Legaspi v. Civil Service Commission, G.R. No. 55 Supra.

72119, May 29, 1987, 150 SCRA 530, where the
197
56 G.R. No. 118910, November 16, 1995, 250 SCRA 130. advocated a return to Barcelon v. Baker. Similarly,
Esguerra advocated the abandonment of Lansang and a
57 G.R. No. 132922, April 21, 1998, 289 SCRA 337. return to Barcelon. And, although Justices Castro,
Fernando, Muñoz- Palma, and, implicitly, Teehankee, lined
58
up on the side of justiciability as enunciated in Lansang, x x
G.R. No. 147780, 147781, 147799, 147810, May 10,
x Barredo, however, wanted to have the best of both
2001, 357 SCRA 756.
worlds and opted for the view that "political questions are
not per se beyond the Court’s jurisdiction ... but that as a
59 G.R. No. 159085, February 3, 2004, 421 SCRA 656. matter of policy implicit in the Constitution itself the Court
should abstain from interfering with the Executive’s
60 235 SCRA 506 (1994). Proclamation." (Bernas, The 1987 Constitution of the
Republic of the Philippines: A Commentary, 1996 Edition, p.
61 Supra. 794.)

79See Separate Opinion of J. Puno in Integrated Bar of the

62 Supra.
Philippines v. Zamora, supra.
63 197 SCRA 52, 60 (1991). 80 Supra.
64 Supra. 81 Cruz, Philippine Political Law, 2002 Ed., p. 247.
65 See NAACP v. Alabama, 357 U.S. 449 (1958). 82Santiago v. Guingona, Jr., G.R. No. 134577, November
18, 1998, 298 SCRA 756.
66 G.R. No. 141284, August 15, 2000, 338 SCRA 81.
83 Supra, 481-482.
67From the deliberations of the Constitutional
Commission, the intent of the framers is clear that the 84
immunity of the President from suit is concurrent only Smith and Cotter, Powers of the President during Crises,
with his tenure and not his term. (De Leon, Philippine 1972, p. 6.
Constitutional Law, Vol. 2, 2004 Ed., p. 302).
85 Ibid.
68Section 1, Article XI of the Constitution provides: Public
86The Social Contract (New York: Dutton, 1950), pp. 123-
Office is a public trust. Public officers and employees must
at all times be accountable to the people, serve them with 124.
utmost responsibility, integrity, loyalty and efficiency, act
with patriotism and justice, and lead modest lives. 87Smith and Cotter, Powers of the President during Crises,
1972, pp. 6-7.
69 Ibid., Sec. 2.
88Representative Government, New York, Dutton, 1950,
70 No. 2908, September 30, 2005, 471 SCRA 87. pp. 274, 277-78.

71 89 The Discourses, Bk. 1, Ch. XXXIV.

91 Phil. 882 (1952).

72 90Smith and Cotter, Powers of the President During Crises,

No. L-33964, December 11, 1971, 42 SCRA 448.
1972. p. 8.
73 No. L-35546, September 17, 1974, 59 SCRA 183.
91 Ibid.
74 No. L-61388, April 20, 1983, 121 SCRA 472.
92 See The Problem of Constitutional Dictatorship, p. 328.
75 Tañada v. Cuenco, 103 Phil. 1051 (1957).
93 Ibid., p. 353.
76 Lansang v. Garcia, supra, pp. 473 and 481.
94 Ibid., pp. 338-341.
77 Supra.
95Smith and Cotter, Powers of the President During
78"Five Justices – Antonio, Makasiar, Esguerra, Fernandez, Crises, 1972, p. 9.
and Aquino – took the position that the proclamation of
96Constitutional Government and Democracy, Ch. XXVI,
martial law and the arrest and detention orders
accompanying the proclamation posed a "political rev. ed., Boston: Ginn & Co., 1949, p. 580.
question" beyond the jurisdiction of the Court. Justice
Antonio, in a separate opinion concurred in by Makasiar, 97 Ibid, pp. 574-584.
Fernandez, and Aquino, argued that the Constitution had
deliberately set up a strong presidency and had 98Smith and Cotter, Powers of the President During Crises,
concentrated powers in times of emergency in the hands
1972, p. 10.
of the President and had given him broad authority and
discretion which the Court was bound to respect. He made
99Rossiter, Constitutional Dictatorship, Princeton:
reference to the decision in Lansang v. Garcia but read it
as in effect upholding the "political question" position. Princeton University Press, 1948, pp. 298-306.
Fernandez, in a separate opinion, also argued Lansang,
even understood as giving a narrow scope of review 100Smith and Cotter, Powers of the President During
authority to the Court, affirmed the impossible task of Crises, 1972, p. 11.
‘checking’ the action taken by the President. Hence, he

198
101Smith and Cotter, Powers of the President During
Crises, 1972, p. 12.
102
Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S.
579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952), See Concurring
Opinion J. Jackson.
103See Concurring Opinion of Justice Mendoza in Estrada
v. Sandiganbayan, G.R. No. 148560, November 19, 2001,
369 SCRA 393.
104 481 U.S. 739, 95 L. Ed. 2d 697 (1987).
105 Supra.
106 See Concurring Opinion of Justice Mendoza in Estrada
v. Sandiganbayan, supra.
107 Broadrick v. Oklahoma, 413 U.S. 601 (1973).
108 Ibid.
109
401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971), United
States v. Raines, 362 U.S. 17, 4 L.Ed.2d 524 (1960); Board
of Trustees, State Univ. of N.Y v. Fox, 492 U.S. 469, 106
L.Ed.2d 388 (1989).
110Ermita-Malate Hotel and Motel Operators Association
v. City Mayor, No. L-24693, July 31, 1967, 20 SCRA 849
(1967).
111G.R. No. 159085, February 3, 2004, 421 SCRA 656,
wherein this Court sustained President Arroyo’s
declaration of a "state of rebellion" pursuant to her calling-
out power.
112 Supra.
113Westel Willoughby, Constitutional Law of the United
States 1591 [2d Ed. 1929, quoted in Aquino v. Ponce Enrile,
59 SCRA 183 (1974), (Fernando, J., concurring)].
114 Retired Associate Justice of the Supreme Court.
115 Section 1, Article VII of the Constitution.
116 Section 5, Article VII of the Constitution.
117
Section 18, Article VII of the Constitution.
118 Section 6, Article XVI of the Constitution.
119 See Republic Act No. 6975.
120Ironically, even the 7th Whereas Clause of PP 1017
which states that "Article 2, Section 4 of our
Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of
Government" replicates more closely Section 2, Article 2 of
the 1973 Constitution than Section 4, Article 2 of the 1987
Constitution which provides that, "[t[he prime duty of the
Government is to serve and protect the people."
121Agpalo, Statutory Construction, Fourth Edition, 1998, p.
1, citing Legaspi v. Ministry of Finance, 115 SCRA 418
(1982); Garcia-Padilla v. Ponce-Enrile, supra. Aquino v.
Commission on Election, supra.
122
Section 17, Article XIV of the 1973 Constitution reads:
"In times of national emergency when the public interest
so requires, the State may temporarily take over or direct
the operation of any privately owned public utility or
business affected with public interest."
123 Antieau, Constitutional Construction, 1982, p.21.
124 Cruz, Philippine Political Law, 1998, p. 94.
125 343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952).
126Tresolini, American Constitutional Law, 1959, Power of
the President, pp. 255-257.
127Smith and Cotter, Powers of the President During
Crises, 1972, p. 14
128The Federal Emergency Relief Act of 1933 opened with
a declaration that the economic depression created a
serious emergency, due to wide-spread unemployment
and the inadequacy of State and local relief funds, . . .
making it imperative that the Federal Government
cooperate more effectively with the several States and
Territories and the District of Columbia in furnishing relief
to their needy and distressed people. President Roosevelt
in declaring a bank holiday a few days after taking office in
1933 proclaimed that "heavy and unwarranted
withdrawals of gold and currency from … banking
institutions for the purpose of hoarding; ... resulting in
"sever drains on the Nation’s stocks of gold … have created
a national emergency," requiring his action. Enacted within
months after Japan’s attack on Pearl Harbor,
the Emergency Price Control Act of 1942 was designed to
prevent economic dislocations from endangering the
national defense and security and the effective
prosecution of the war. (Smith and Cotter, Powers of the
President During Crises, 1972, p.18)
129 The Emergency Appropriation Act for Fiscal
1935 appropriated fund to meet the emergency and
necessity for relief in stricken agricultural areas and in
another section referred to "the present drought
emergency."[129] The India Emergency Food Aid Act of
1951 provided for emergency shipments of food to India
to meet famine conditions then ravaging the great Asian
sub-continent. The Communication Act of 1934 and its
1951 amendment grant the President certain powers in
time of "public peril or disaster." The other statutes
provide for existing or anticipated emergencies
attributable to earthquake, flood, tornado, cyclone,
hurricane, conflagration an landslides.[129] There is also a
Joint Resolution of April 1937. It made "funds available for
the control of incipient or emergency outbreaks of insect
pests or plant diseases, including grasshoppers, Mormon
crickets, and chinch bugs. (66 Stat 315, July 1, 1952, Sec. 2
[a]) Supra.
130 National Security may be cataloged under the heads
of (1) Neutrality, (2) Defense, (3) Civil Defense,
and (4) Hostilities or War. (p. 22) The Federal Civil Defense
Act of 1950 contemplated an attack or series of attacks by
an enemy of the United States which conceivably would
cause substantial damage or injury to civilian property or
persons in the United States by any one of several means;
sabotage, the use of bombs, shellfire, or atomic,
radiological, chemical, bacteriological means or other
weapons or processes. Such an occurrence would cause a
"National Emergency for Civil Defense Purposes," or "a
state of civil defense emergency," during the term which
the Civil Defense Administrator would have recourse to
extraordinary powers outlined in the Act. The New York-
New Jersey Civil Defense Compact supplies an illustration
in this context for emergency cooperation. "Emergency" as
used in this compact shall mean and include invasion, or
other hostile action, disaster, insurrection or imminent
danger thereof. ( Id., p.15-16)
199
131 Cruz, Philippine Political Law, 1998, p. 95.
132
Record of the Constitutional Commission, Vol. III, pp.
266-267.
133 Record of the Constitutional Convention, pp. 648-649.
134 84 Phil. 368 (1949).
135 Uren v Bagley, 118 Or 77, 245 P 1074, 46 ALR 1173.
136Gutierrez v. Middle Rio Grande Conservancy Dist., 34
NM 346, 282 P 1, 70 ALR 1261, cert den 280 US 610, 74 L
ed 653, 50 S Ct 158.
137
Sanitation Dist. V. Campbell (Ky), 249 SW 2d
767; Rochester v. Gutberlett, 211 NY 309, 105 NE 548.
138
Hammond Packing Co. v. Arkansas, 212 US 322, 53 L ed
530, 29 S Ct 370.
139De Leon and De Leon Jr., Administrative Law, Text and
Cases, 2001 Ed., p. 115.
140 Ibid.
141In a Lecture delivered on March 12, 2002 as part of the
Supreme Court Centenary Lecture Series, Hans Koechler,
Professor of Philosophy at the University of Innsbruck
(Austria) and President of the International Progress
Organization, speaking on "The United Nations, The
International Rule of Law and Terrorism" cited in the
Dissenting Opinion of Justice Kapunan in Lim v. Executive
Secretary, G.R. No. 151445, April 11, 2002, 380 SCRA 739.
142 Section 2, Article III of the 1987 Constitution.
143Bernas, The 1987 Constitution of the Republic of the
Philippines, A Reviewer-Primer, p. 51.
144
Annex "A" of the Memorandum in G.R. No. 171396, pp.
271-273.
145An Act Ensuring the Free Exercise by the People of their
Right Peaceably to Assemble and Petition the Government
for Other Purposes.
146
Annex "A" of the Memorandum in G.R. No. 171396, pp.
271-273.
147 Ibid.
148 299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278.
149
Reyes v. Bagatsing, No. L-65366, November 9, 1983,
125 SCRA 553.
150Section 5. Application requirements - All applications for
a permit shall comply with the following guidelines:
xxxxxx
(c) If the mayor is of the view that there is
imminent and grave danger of a substantive evil
warranting the denial or modification of the
permit, he shall immediately inform the
applicant who must be heard on the matter.
151 Petition in G.R. No. 171400, p. 11.
152 No. L-64161, December 26, 1984, 133 SCRA 816.
153
Dissenting Opinion, J. Cruz, National Press Club v.
Commission on Elections, G.R. Nos. 102653, 102925 &
102983, March 5, 1992, 207 SCRA 1.
154 Boyd v. United States, 116 U.S. 616 (1886).
155
Transcript of Stenographic Notes, Oral Arguments,
March 7, 2006, p. 470.
156 Ibid., pp. 432-433.
157 Ibid, pp. 507-508.
158
Smith and Cotter, Powers of the President During Crisis,
1972, p. 146.
SUMMARY OF THE VOTING IN THE PP 1017 DECISION
Fourteen of the 15 SC justices participated in the decision. Senior
Associate Justice Reynato S. Puno was on leave.
Justice Angelina Sandoval Gutierrez’s 78-page ponencia was
concurred in by 10 Justices: Chief Justice Artemio V. Panganiban and
Justices Leonardo A. Quisumbing, Consuelo Ynares Santiago, Antonio
T. Carpio, Ma. Alicia Austria-Martinez, Conchita Carpio Morales,
Romeo J. Callejo, Sr., Adolfo S. Azcuna, Minita V. Chico-Nazario, and
Cancio C. Garcia.
Both the Chief Justice and Justice Ynares-Santiago wrote separate
concurring opinions. The Chief Justice’s concurring opinion was
joined by Justices Carpio, Carpio Morales, and Callejo, Sr.
Justice Dante O. Tinga’s dissenting opinion was joined by Justices
Renato C. Corona and Presbitero J. Velasco, Jr.
EN BANC
G.R. No. 171396 – DAVID et al. v. ARROYO, etc., et al. and related
cases (G.R. Nos. 171409, 171483, 171485, 171400, 171424 and
171489)
Promulgated on:
May 3, 2006
x --------------------------------------------------------------------------- x
CONCURRING OPINION
CJ:
I was hoping until the last moment of our deliberations on these
consolidated cases that the Court would be unanimous in its
Decision. After all, during the last two weeks, it decided with one
voice two equally contentious and nationally significant
controversies involving Executive Order No. 4641 and the so-called
Calibrated Preemptive Response policy.2
However, the distinguished Mr. Justice Dante O. Tinga’s Dissenting
Opinion has made that hope an impossibility. I now write, not only
to express my full concurrence in the thorough and elegantly
written ponencia of the esteemed Mme. Justice Angelina Sandoval-
Gutierrez, but more urgently to express a little comment on Justice
Tinga’s Dissenting Opinion (DO).
200
The Dissent dismisses all the Petitions, grants no reliefs to
petitioners, and finds nothing wrong with PP 1017. It labels the PP a
harmless pronouncement -- "an utter superfluity" -- and denounces
the ponencia as an "immodest show of brawn" that "has
imprudently placed the Court in the business of defanging paper
tigers."
Under this line of thinking, it would be perfectly legal for the
President to reissue PP 1017 under its present language and nuance.
I respectfully disagree.
Let us face it. Even Justice Tinga concedes that under PP 1017, the
police -- "to some minds" -- "may have flirted with power." With due
respect, this is a masterful understatement. PP 1017 may be a paper
tiger, but -- to borrow the colorful words of an erstwhile Asian
leader -- it has nuclear teeth that must indeed be defanged.
Some of those who drafted PP 1017 may be testing the outer limits
of presidential prerogatives and the perseverance of this Court in
safeguarding the people’s constitutionally enshrined liberty. They
are playing with fire, and unless prudently restrained, they may one
day wittingly or unwittingly burn down the country. History will
never forget, much less forgive, this Court if it allows such
misadventure and refuses to strike down abuse at its inception.
Worse, our people will surely condemn the misuse of legal hocus
pocus to justify this trifling with constitutional sanctities.
And even for those who deeply care for the President, it is timely
and wise for this Court to set down the parameters of power and to
make known, politely but firmly, its dogged determination to
perform its constitutional duty at all times and against all odds.
Perhaps this country would never have had to experience the
wrenching pain of dictatorship; and a past President would not have
fallen into the precipice of authoritarianism, if the Supreme Court
then had the moral courage to remind him steadfastly of his
mortality and the inevitable historical damnation of despots and
tyrants. Let not this Court fall into that same rut.
ARTEMIO V. PANGANIBAN
Chief Justice
Footnotes
1
Senate v. Ermita, GR No. 169777, April 20, 2006.
2 Bayan v. Ermita, GR No. 169838, April 25, 2006.
EN BANC
G.R. No. 171396 --- Professor Randolf S. David, et
al., Petitioners, versus Gloria Macapagal-Arroyo, as President and
Commander-in-Chief, et al, Respondents.
G.R. No. 171409 --- Ninez Cacho-Olivares and Tribune Publishing Co.,
Inc., Petitioners, versus Honorable Secretary Eduardo Ermita and
Honorable Director General Arturo C. Lomibao, Respondents.
G.R. No. 171485 --- Francis Joseph G. Escudero, et al. Petitioners,
versus Eduardo R. Ermita, et al., Respondents.
G.R. No. 171483 --- Kilusang Mayo Uno, represented by its
Chairperson Elmer C. Labog and Secretary General Joel Maglunsod,
et al., Petitioners, versus Her Excellency President Gloria Macapagal
Arroyo, et al., Respondents.
G.R. No. 171400 --- Alternative Law Groups, Inc..
(ALG), Petitioners, versus Executive Secretary, Eduardo Ermita, et
al., Respondents.
G.R. No. 171489 – Jose Anselmo I. Cadiz, et al., Petitioners,
versus Hon. Executive Secretary Eduardo Ermita, et al., Respondents.
G.R. No. 171424 --- Loren B. Legarda, Petitioner, versus President
Gloria Macapagal-Arroyo, in her capacity as President and
Commander-in-Chief, et al., Respondents;
Promulgated:
May 3, 2006
x ----------------------------------------------------------------------------------------
x
CONCURRING OPINION
YNARES-SANTIAGO, J.:
The only real security for social well-being is the free exercise of
men’s minds.
-Harold J. Laski, Professor of Government and Member of the British
Labor Party, in his book, Authority in the Modern State (1919).
The ideals of liberty and equality, the eminent U.S. Supreme Court
Justice Benjamin Cardozo once wrote, are preserved against the
assaults of opportunism, the expediency of the passing hour, the
erosion of small encroachments, the scorn and derision of those
who have no patience with general principles. 1 In an open and
democratic society, freedom of thought and expression is the
matrix, the indispensable condition, of nearly every other form of
freedom.2
I share the view that Presidential Proclamation No. 1017 (PP 1017)
under which President Gloria Macapagal Arroyo declared a state of
national emergency, and General Order No. 5 (GO No. 5), issued by
the President pursuant to the same proclamation are both partly
unconstitutional.
I fully agree with the pronouncement that PP 1017 is no more than
the exercise by the President, as the Commander-in-Chief of all
armed forces of the Philippines, of her power to call out such armed
forces whenever it becomes necessary to prevent or
suppress lawless violence, invasion or rebellion. This is allowed
under Section 18, Article VII of the Constitution.
However, such "calling out" power does not authorize the President
to direct the armed forces or the police to enforce laws not related
to lawless violence, invasion or rebellion. The same does not allow
the President to promulgate decrees with the force and effect
similar or equal to laws as this power is vested by the Constitution
with the legislature. Neither is it a license to conduct searches and
seizures or arrests without warrant except in cases provided in the
Rules of Court. It is not a sanction to impose any form of prior
restraint on the freedom of the press or expression or to curtail the
freedom to peaceably assemble or frustrate fundamental
constitutional rights.
In the case of Bayan v. Ermita3 this Court thru Justice Adolfo S.
Azcuna emphasized that the right to peaceably assemble and
petition for redress of grievances is, together with freedom of
speech, of expression, and of the press, a right that enjoys primacy
in the realm of constitutional protection. These rights constitute the
very basis of a functional democratic polity, without which all the
other rights would be meaningless and unprotected.
201
On the other hand, the direct reference to Section 17, Article XII of
the Constitution as the constitutional basis for the declaration of a
state of national emergency is misplaced. This provision can be
found under the article on National Economy and Patrimony which
presupposes that "national emergency" is of an economic, and not
political, nature. Moreover, the said provision refers to the
temporary takeover by the State of any privately-owned public
utility or business affected with public interest in times of national
emergency. In such a case, the takeover is authorized when the
public interest so requires and subject to "reasonable terms" which
the State may prescribe.
The use of the word "State" as well as the reference to "reasonable
terms" under Section 17, Article XII can only pertain to Congress. In
other words, the said provision is not self-executing as to be validly
invoked by the President without congressional authorization. The
provision merely declares a state economic policy during times of
national emergency. As such, it cannot be taken to mean as
authorizing the President to exercise "takeover" powers pursuant to
a declaration of a state of national emergency.
The President, with all the powers vested in her by Article VII, cannot
arrogate unto herself the power to take over or direct the operation
of any privately owned public utility or business affected with public
interest without Congressional authorization. To do so would
constitute an ultra vires act on the part of the Chief Executive,
whose powers are limited to the powers vested in her by Article VII,
and cannot extend to Article XII without the approval of Congress.
Thus, the President’s authority to act in times of national emergency
is still subject to the limitations expressly prescribed by Congress.
This is a featured component of the doctrine of separation of
powers, specifically, the principle of checks and balances as
applicable to the political branches of government, the executive
and the legislature.
With regard to GO No. 5, I agree that it is unconstitutional insofar as
it mandates the armed forces and the national police "to prevent
and suppress acts of terrorism and lawless violence in the country."
There is presently no law enacted by Congress that defines
terrorism, or classifies what acts are punishable as acts of terrorism.
The notion of terrorism, as well as acts constitutive thereof, is at
best fraught with ambiguity. It is therefore subject to different
interpretations by the law enforcement agencies.
As can be gleaned from the facts, the lack of a clear definition of
what constitutes "terrorism" have led the law enforcement officers
to necessarily guess at its meaning and differ as to its application
giving rise to unrestrained violations of the fundamental guarantees
of freedom of peaceable assembly and freedom of the press.
In Kolender v. Lawson,4 the United States Supreme Court nullified a
state statute requiring persons who loitered or wandered on streets
to provide "credible and reliable" identification and to account for
their presence when requested to do so by a police officer. Writing
for the majority, Justice Sandra Day O’Connor noted that the most
important aspect of vagueness doctrine was the imposition of
guidelines that prohibited arbitrary, selective enforcement on
constitutionally suspect basis by police officers. This rationale for
invocation of that doctrine was of special concern in this case
because of the potential for arbitrary suppression of the
fundamental liberties concerning freedom of speech and expression,
as well as restriction on the freedom of movement.
Thus, while I recognize that the President may declare a state of
national emergency as a statement of a factual conditionpursuant to
our ruling in Sanlakas v. Executive Secretary,5 I wish to emphasize
that the same does not grant her any additional powers.
Consequently, while PP 1017 is valid as a declaration of a factual
condition, the provisions which purport to vest in the President
additional powers not theretofore vested in her must be struck
down. The provision under GO No. 5 ordering the armed forces to
carry out measures to prevent or suppress "acts of terrorism" must
be declared unconstitutional as well.
Finally, it cannot be gainsaid that government action to stifle
constitutional liberties guaranteed under the Bill of Rights cannot be
preemptive in meeting any and all perceived or potential threats to
the life of the nation. Such threats must be actual, or at least gravely
imminent, to warrant government to take proper action. To allow
government to preempt the happening of any event would be akin
to "putting the cart before the horse," in a manner of speaking. State
action is proper only if there is a clear and present danger of a
substantive evil which the state has a right to prevent. We should
bear in mind that in a democracy, constitutional liberties must
always be accorded supreme importance in the conduct of daily life.
At the heart of these liberties lies freedom of speech and thought –
not merely in the propagation of ideas we love, but more
importantly, in the advocacy of ideas we may oftentimes loathe. As
succinctly articulated by Justice Louis D. Brandeis:
Fear of serious injury cannot alone justify suppression of free speech
and assembly. x x x It is the function of speech to free men from the
bondage of irrational fears. To justify suppression of free speech
there must be reasonable ground to believe that the danger
apprehended is imminent. There must be reasonable ground to
believe that the evil to be prevented is a serious one. x x x But even
advocacy of violation, however reprehensible morally, is not a
justification for denying free speech where the advocacy falls short
of incitement and there is nothing to indicate that the advocacy
would be immediately acted on. The wide difference between
advocacy and incitement, between preparation and attempt,
between assembling and conspiracy, must be borne in mind. In
order to support a finding of clear and present danger it must be
shown either that immediate serious violence was to be expected or
was advocated, or that the past conduct furnished reason to believe
that such advocacy was then contemplated.6
IN VIEW OF THE FOREGOING, I vote to PARTLY GRANT the petitions.
CONSUELO YNARES-SANTIAGO
Associate Justice
Footnotes
1 Cardozo, B. Nature of Judicial Process, 1921.
2 Palko v. State of Connecticut, 302 U.S. 319 (1937).
3 G.R. Nos. 169838, 169848, 169881, April 25, 2006.
4 461 U.S. 352 (1983).
5G.R. Nos. 159085, 159103, 159185 & 159196, February 3,
2004, 421 SCRA 656.
6Brandeis, J. , joined by Holmes, J., concurring in Whitney
v. California, 274 U.S. 357 (1927).
G.R. No. 171396 (Prof. Randolf S. David, Lorenzo Tañada III, Ronald
Llamas, H. Harry L. Roque, Jr., Joel Ruiz Butuyan, Roger R. Rayel,
Gary S. Mallari, Romel Regalado Bagares, Christopher F.C. Bolastig,
petitioners, v. Gloria Macapagal-Arroyo, as President and
Commander-in-Chief, Executive Secretary Eduardo Ermita, Hon.
Avelino Cruz II, Secretary of National Defense, General Generoso
Senga, Chief of Staff, Armed Forces of the Philippines, Director
General Arturo Lomibao, Chief, Philippine National Police,
respondents.)
G.R. No. 171409 (Niñez Cacho-Olivares and Tribune Publishing Co.,
Inc., petitioner, v. Honorable Secretary Eduardo Ermita and
Honorable Director General Arturo Lomibao, respondents.)
202
G.R. No. 171485 (Francis Joseph G. Escudero, Joseph A. Santiago,
Teodoro A. Casino, Agapito A. Aquino, Mario G. Aguja, Satur C.
Ocampo, Mujiv S. Hataman, Juan Edgardo Angara, Teofisto DL.
Guingona III, Emmanuel Josel J. Villanueva, Liza L. Maza, Imee R.
Marcos, Renato B. Magtubo, Justin Marc SB. Chipeco, Roilo Golez,
Darlene Antonio-Custudio, Loretta Ann P. Rosales, Josel G. Virador,
Rafael V. Mariano, Gilbert C. Remulla, Florencio G. Noel, Ana
Theresa Hontiveros-Baraquel, Imelda C. Nicolas, Marvic M.V.F.
Leonenen, Neri Javier Colmenares, Movement of Concerned Citizens
for Civil Liberties, represented by Amado Gat Inciong, petitioners, v.
Eduardo R. Ermita, Executive Secretary, Avelino J. Cruz, Jr.,
Secretary, DND Ronaldo V. Puno, Secretary, DILG, Generoso Senga,
AFP Chief of Staff, Arturo Lumibao, Chief PNP, respondents.)
G.R. No. 171483 (Kilusang Mayo Uno, represented by its Chairperson
Elmer C. Labog and Secretary General Joel Maglunsod, National
Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU),
represented by its National President, Joselito v. Ustarez, Antonio C.
Pascual, Salvador t. Carranza, Emilia P. Dapulang, Martin Custodio,
Jr., and Roque M. Tan, petitioners, v. Her Excellency, President
Gloria Macapagal-Arroyo, The Honorable Executive Secretary,
Eduardo Ermita, The Chief of Staff, Armed Forces of the Philippines,
Generoso Senga, and the PNP Director General, Arturo Lomibao,
respondents.)
G.R. No. 171400 (Alternative Law Groups, Inc. v. (ALG), petitioner, v.
Executive Secretary Eduardo L. Ermita. Lt. Gen. Generoso Senga, and
Director General Arturo Lomibao, respondents.)
G.R. No. 171489 (Jose Anselmo I. Cadiz, Feliciano M. Bautista,
Romulo R. Rivera, Jose Amor M. Amorado, Alicia A. Risos-Vidal,
Felimon C. Abelita III, Manuel P. Legaspi, J.B., Jovy C. Bernabe,
Bernard L. Dagcuta, Rogelio V. Garcia and Integrated Bar of the
Philippines (IBP), petitioners, v. Hon. Executive Secretary Eduardo
Ermita, General Generoso Senga, in his capacity as AFP Chief of Staff,
and Direcotr General Arturo Lomibao, in his capacity as PNP Chief,
respondents.)
G.R. No. 171424 (Loren B. Legarda, petitioner, v. Gloria Macapagal-
Arroyo, in her capacity as President and Commander-in-Chief; Arturo
Lomibao, in his capacity as Director-General of the Philippine
National Police (PNP); Generoso Senga, in his capacity as Chief of
Staff of the Armed Forces of the Philippine (AFP); and Eduardo
Ermita, in his capacity as Executive Secretary, respondents.)
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DISSENTING OPINION
TINGA, J:
I regret to say that the majority, by its ruling today, has imprudently
placed the Court in the business of defanging paper tigers. The
immodest show of brawn unfortunately comes at the expense of an
exhibition by the Court of a fundamental but sophisticated
understanding of the extent and limits of executive powers and
prerogatives, as well as those assigned to the judicial branch. I agree
with the majority on some points, but I cannot join the majority
opinion, as it proceeds to rule on non-justiciable issues based on
fears that have not materialized, departing as they do from the plain
language of the challenged issuances to the extent of second-
guessing the Chief Executive. I respectfully dissent.
The key perspective from which I view these present petitions is my
own ponencia in Sanlakas v. Executive Secretary,1 which centered on
Presidential Proclamation No. 427 (PP 427), declaring a "state of
rebellion" in 2003. The Court therein concluded that while the
declaration was constitutional, such declaration should be regarded
as both regarded as "an utter superfluity", which "only gives notice
to the nation that such a state exists and that the armed forces may
be called to prevent or suppress it", and "devoid of any legal
significance", and "cannot diminish or violate constitutionally
protected rights." I submit that the same conclusions should be
reached as to Proclamation No. 1017 (PP 1017). Following the
cardinal precept that the acts of the executive are presumed
constitutional is the equally important doctrine that to warrant
unconstitutionality, there must be a clear and unequivocal breach of
the Constitution, not a doubtful and argumentative
implication.2 Also well-settled as a rule of construction is that where
thee are two possible constructions of law or executive issuance one
of which is in harmony with the Constitution, that construction
should be preferred.3 The concerns raised by the majority relating to
PP 1017 and General Order Nos. 5 can be easily disquieted by
applying this well-settled principle.
I.
PP 1017Has No Legal Binding Effect; Creates No Rights and
Obligations; and Cannot Be Enforced or Invoked in a Court< Of Law
First, the fundamentals. The President is the Chief of State and
Foreign Relations, the chief of the Executive Branch,4 and the
Commander-in-Chief of the Armed Forces.5 The Constitution vests
on the President the executive power.6 The President derives these
constitutional mandates from direct election from the people. The
President stands as the most recognizable representative symbol of
government and of the Philippine state, to the extent that foreign
leaders who speak with the President do so with the understanding
that they are speaking to the Philippine state.
Yet no matter the powers and prestige of the presidency, there are
significant limitations to the office of the President. The President
does not have the power to make or legislate laws,7 or disobey those
laws passed by Congress.8 Neither does the President have to power
to create rights and obligations with binding legal effect on the
Filipino citizens, except in the context of entering into contractual or
treaty obligations by virtue of his/her position as the head of State.
The Constitution likewise imposes limitations on certain powers of
the President that are normally inherent in the office. For example,
even though the President is the administrative head of the
Executive Department and maintains executive control thereof,9 the
President is precluded from arbitrarily terminating the vast majority
of employees in the civil service whose right to security of tenure is
guaranteed by the Constitution.10
The President has inherent powers,11 powers expressly vested by the
Constitution, and powers expressly conferred by statutes. The power
of the President to make proclamations, while confirmed by
statutory grant, is nonetheless rooted in an inherent power of the
presidency and not expressly subjected to constitutional limitations.
But proclamations, as they are, are a species of issuances of
extremely limited efficacy. As defined in the Administrative Code,
proclamations are merely "acts of the President fixing a date or
declaring a status or condition of public moment or interest upon
the existence of which the operation of a specific law or regulation is
made to depend".12 A proclamation, on its own, cannot create or
suspend any constitutional or statutory rights or obligations. There
would be need of a complementing law or regulation referred to in
the proclamation should such act indeed put into operation any law
or regulation by fixing a date or declaring a status or condition of a
public moment or interest related to such law or regulation. And
should the proclamation allow the operationalization of such law or
regulation, all subsequent resultant acts cannot exceed or supersede
the law or regulation that was put into effect.
Under Section 18, Article VII of the Constitution, among the
constitutional powers of the President, as Commander-in-Chief, is to
"call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion".13 The existence of invasion or rebellion could
allow the President to either suspend the privilege of the writ
of habeas corpus or place the Philippines or any part thereof under
martial law, but there is a fairly elaborate constitutional procedure
to be observed in such a case, including congressional affirmation or
revocation of such suspension or declaration, as well as the
availability of judicial review. However, the existence of lawless
violence, invasion or rebellion does not ipso facto cause the "calling
out" of the armed forces, the suspension of habeas corpus or the
declaration of martial law ─ it remains within the discretion of the
203
President to engage in any of these three acts should said conditions
arise.
Sanlakas involved PP 427, which declared the existence of a "state of
rebellion." Such declaration could ostensibly predicate the
suspension of the privilege of the writ of habeas corpus or the
declaration of martial law, but the President did not do so. Instead,
PP 427, and the accompanying General Order No. 4, invoked the
"calling out" of the Armed Forces to prevent lawless violence,
invasion and rebellion. Appreciably, a state of lawless violence,
invasion or rebellion could be variable in scope, magnitude and
gravity; and Section 18, Article VII allows for the President to
respond with the appropriate measured and proportional response.
Indeed, the diminution of any constitutional rights through the
suspension of the privilege of the writ or the declaration of martial
law is deemed as "strong medicine" to be used sparingly and only as
a last resort, and for as long as only truly necessary. Thus, the mere
invocation of the "calling out" power stands as a balanced means of
enabling a heightened alertness in dealing with the armed threat,
but without having to suspend any constitutional or statutory rights
or cause the creation of any new obligations. For the utilization of
the "calling out" power alone cannot vest unto the President any
new constitutional or statutory powers, such as the enactment of
new laws. At most, it can only renew emphasis on the duty of the
President to execute already existing laws without extending a
corresponding mandate to proceed extra-constitutionally or extra-
legally. Indeed, the "calling out" power does not authorize the
President or the members of the Armed Forces to break the law.
These were the premises that ultimately informed the Court’s
decision in Sanlakas, which affirmed the declaration of a "state of
rebellion" as within the "calling out" power of the President, but
which emphasized that for legal intents and purposes, it should be
both regarded as "an utter superfluity", which "only gives notice to
the nation that such a state exists and that the armed forces may be
called to prevent or suppress it," and "devoid of any legal
significance," as it could not "cannot diminish or violate
constitutionally protected rights." The same premises apply as to PP
1017.
A comparative analysis of PP 427 and PP 1017, particularly their
operative clauses, is in order.
regulations promulgated by
me personally or upon my
direction; and as provided in
Section 17, Article 12 of the
Constitution do hereby
declare a State of National
Emergency.
Let us begin with the similarities. Both PP 427 and PP 1017 are
characterized by two distinct phases. The first is the declaration
itself of a status or condition, a "state of rebellion" in PP 437, and a
"state of national emergency" under PP 1017. Both "state of
rebellion" and "state of national emergency" are terms within
constitutional contemplation. Under Section 18, Article VII, the
existence of a "state of rebellion" is sufficient premise for either the
suspension of the privilege of the writ of habeas corpus or the
declaration of martial law, though in accordance with the strict
guidelines under the same provision. Under Section 17, Article XII,
the existence of a state of national emergency is sufficient ground
for the State, during the emergency, under reasonable terms
prescribed by it, and when the public interest so requires, to
temporarily take over or direct the operation of any privately-owned
public utility or business affected with public interest. Under Section
23(2), Article VI, the existence of a state of national emergency may
also allow Congress to authorize the President, for a limited period
and subject to such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national policy.
Certainly, the declaration could stand as the first step towards
constitutional authorization for the exercise by the President, the
Congress or the State of extraordinary powers and prerogatives.
However, the declaration alone cannot put into operation these
extraordinary powers and prerogatives, as the declaration must be
followed through with a separate act providing for the actual
utilization of such powers. In the case of the "state of rebellion,"
such act involves the suspension of the writ or declaration of martial
law. In the case of the "state of national emergency," such act
involves either an order for the takeover or actual takeover by the
State of public utilities or businesses imbued with public interest or
the authorization by Congress for the President to exercise
emergency powers.

PP 427 PP 1017
NOW, THEREFORE, I, GLORIA
MACAPAGAL-ARROYO, by
virtue of the powers vested in
me by law, hereby confirm
the existence of an actual and
on-going rebellion,
compelling me to declare a
state of rebellion.
In view of the foregoing, I am
issuing General Order No. 4 in
accordance with Section 18,
Article VII of the Constitution,
calling out the Armed Forces
of the Philippines and the
Philippine National Police to
immediately carry out the
necessary actions and
measures to suppress and
quell the rebellion with due
regard to constitutional
rights.
NOW, THEREFORE, I Gloria
Macapagal-Arroyo, President
of the Republic of the
Philippines and Commander-
in-Chief of the Armed Forces
of the Philippines, by virtue of
the powers vested upon me
by Section 18, Article 7 of the
Philippine Constitution which
states that: "The President. . .
whenever it becomes
necessary, . . . may call out
(the) armed forces to prevent
or suppress. . . rebellion. . .,"
and in my capacity as their
Commander-in-Chief, do
hereby command the Armed
Forces of the Philippines, to
maintain law and order
throughout the Philippines,
prevent or suppress all forms
of lawless violence as well
any act of insurrection or
rebellion and to enforce
obedience to all the laws and
to all decrees, orders and
In PP 427, the declaration of a "state of rebellion" did not lead to the
suspension of the writ or the declaration of martial law. In PP 1017,
the declaration of a "state of national emergency" did not lead to an
authorization for the takeover or actual takeover of any utility or
business, or the grant by Congress to the President of emergency
powers. Instead, both declarations led to the invocation of the
calling out power of the President under Section 18, Article VII,
which the majority correctly characterizes as involving only "ordinary
police action."
I agree with the ponencia’s holding that PP 1017 involves the
exercise by the President of the "calling out" power under Section
18, Article VII. In Integrated Bar v. Zamora,14 the Court was
beseeched upon to review an order of President Estrada
commanding the deployment of the Marines in patrols around
Metro Manila, in view of an increase in crime.15 The Court, speaking
through Justice Santiago Kapunan, affirmed the President’s order,
asserting that "it is the unclouded intent of the Constitution to vest
upon the President, as Commander-in-Chief of the Armed Forces,
full discretion to call forth the military when in his judgment it is
necessary to do so in order to prevent or suppress lawless violence,
invasion or rebellion. Unless the petitioner can show that the
exercise of such discretion was gravely abused, the President’s
exercise of judgment deserves to be accorded respect from this
Court."16 Tellingly, the order of deployment by President Estrada
was affirmed by the Court even though we held the view that the
power then involved was not the "calling out" power, but "the
power involved may be no more than the maintenance of peace and
order and promotion of the general welfare."17

204
It was also maintained in Integrated Bar that while Section 18, Presidential Proclamation No. 1081, was issued by President Marcos
Article VII mandated two conditions ─ actual rebellion or invasion in 1972 as the instrument of declaring martial law. The operative
and the requirement of public safety ─ before the suspension of the provisions read:
privilege of the writ of habeas corpus or the declaration of martial
law could be declared, "these conditions are not required in the case PD. 1081 PP 1017
of the power to call out the armed forces. The only criterion is that
‘whenever it becomes necessary’, the President may call the armed
forces ‘to suppress lawless violence, invasion or rebellion."18 The
Court concluded that the implication was "that the President is given Now, thereof, I, Ferdinand E. NOW, THEREFORE, I Gloria
full discretion and wide latitude in the exercise of the power to call Marcos, President Of the Macapagal-Arroyo, President
as compared to the two other powers."19 Philippines, by virtue of the of the Republic of the
powers vested upon me by Philippines and Commander-
These propositions were affirmed in Sanlakas, wherein the article VII, Section 10, in-Chief of the Armed Forces
invocation of the calling out power was expressly made by President Paragraph (2) of the of the Philippines, by virtue of
Arroyo. The Court noted that for the purpose of exercising the Constitution, do hereby place the powers vested upon me
calling out power, the Constitution did not require the President to the entire Philippines as by Section 18, Article 7 of the
make a declaration of a state of rebellion. 20 At the same time, the defined in the article I, Philippine Constitution which
Court in Sanlakas acknowledged that "the President’s authority to Section 1, of the Constitution states that: "The President. . .
declare a state of rebellion springs in the main from her powers as under martial law, and in my whenever it becomes
chief executive and, at the same time, draws strength from her capacity as their commander- necessary, . . . may call out
Commander-in-Chief powers."21 in-chief, do hereby command (the) armed forces to prevent
the arned forces of the or suppress. . . rebellion. . .,"
Philippines, to maintain law and in my capacity as their
For still unclear reasons, the majority attempts to draw a distinction
and order throughout the Commander-in-Chief, do
between Sanlakas and the present petitions by that the statutory
Philippines, prevent or hereby command the Armed
authority to declare a "state of rebellion" emanates from the
suppress all forms of lawless Forces of the Philippines, to
Administrative Code of 1987, particularly the provision authorizing
violence as well as any act of maintain law and order
the President to make proclamations. As such, the declaration of a
insurrection or rebellion and throughout the Philippines,
"state of rebellion," pursuant to statutory authority, "was merely an
to enforce obedience to all prevent or suppress all forms
act declaring a status or condition of public moment or interest."
the laws and decrees, orders of lawless violence as well
The majority grossly misreads Sanlakas, which expressly roots the
and regulations promulgated any act of insurrection or
declaration of a state of rebellion from the wedded powers of the
by me personally or upon my rebellion and to enforce
Chief Executive, under Section 1, Article VII, and as Commander-in-
direction. obedience to all the laws and
Chief, under Section 18, Article VII.
to all decrees, orders and
In addition, I do hereby order regulations promulgated by
Insofar as PP 1017 is concerned, the calling out power is definitely me personally or upon my
that all persons presently
involved, in view of the directive to the Armed Forces of the direction; and as provided in
detained, as well as others
Philippines to "suppress all forms of lawless violence". But there are Section 17, Article 12 of the
who may hereafter be
nuances to the calling out power invoked in PP 1017 which the Constitution do hereby
similarly detained for the
majority does not discuss. The directive "to suppress all forms of declare a State of National
crimes of insurrection or
lawless violence" is addressed not only to the Armed Forces but to Emergency.
rebellion, and all other crimes
the police as well. The "calling out" of the police does not derive
and offenses committed in
from Section 17, Article VII, or the commander-in-chief clause, our
furtherance or on the
national police being civilian in character. Instead, the calling out of
occasion thereof, or incident
the police is sourced from the power of the President as Chief
thereto, or in connection
Executive under Section 1, Article VII, and the power of executive
therewith, for crimes against
control under Section 18, Article VII. Moreover, while the
national security and the law
permissible scope of military action is limited to acts in furtherance
of nations, crimes, against the
of suppressing lawless violence, rebellion, invasion, the police can be
fundamental laws of the
commanded by the President to execute all laws without distinction
state, crimes against public
in light of the presidential duty to execute all laws.22
order, crimes involving
usurpation of authority, rank,
Still, insofar as Section 17, Article VII is concerned, wide latitude is title and improper use of
accorded to the discretion of the Chief Executive in the exercise of names, uniforms and insignia,
the "calling out" power due to a recognition that the said power is of crimes committed by public
limited import, directed only to the Armed Forces of the Philippines, officers, and for such other
and incapable of imposing any binding legal effect on the citizens crimes as will be enumerated
and other branches of the Philippines. Indeed, PP 1017 does not in Orders that I shall
purport otherwise. Nothing in its operative provisions authorize the subsequently promulgate, as
President, the Armed Forces of the Philippines, or any officer of the well as crimes as a
law, to perform any extra-constitutional or extra-legal acts. PP 1017 consequence of any violation
does not dictate the suspension of any of the people’s guarantees of any decree, order or
under the Bill of Rights. regulation promulgated by
me personally or
If it cannot be made more clear, neither the declaration of a state of promulgated upon my
emergency under PP 1017 nor the invocation of the calling out direction shall be kept under
power therein authorizes warrantless arrests, searches or seizures; detention until otherwise
the infringement of the right to free expression, peaceable assembly ordered released by me or by
and association and other constitutional or statutory rights. Any my duly designated
public officer who nonetheless engaged or is engaging in such extra- representative. (emphasis
constitutional or extra-legal acts in the name of PP 1017 may be supplied)
subjected to the appropriate civil, criminal or administrative liability.

To prove this point, let us now compare PP 1017 with a different

Let us examine the differences between PP No. 1081 and PP 1017.
presidential issuance, one that was intended to diminish
First, while PP 1017 merely declared the existence of a state of
constitutional and civil rights of the people. The said issuance,
205
rebellion, an act ultimately observational in character, PP 1081
"placed the entire Philippines under martial law," an active
implement23 that, by itself, substituted civilian governmental
authority with military authority. Unlike in the 1986 Constitution,
which was appropriately crafted with an aversion to the excesses of
Marcosian martial rule, the 1935 Constitution under which PP 1081
was issued left no intervening safeguards that tempered or limited
the declaration of martial law. Even the contrast in the verbs used,
"place" as opposed to "declare," betrays some significance. To
declare may be simply to acknowledge the existence of a particular
condition, while to place ineluctably goes beyond mere
acknowledgement, and signifies the imposition of the actual
condition even if it did not exist before.
Both PP 1081 and PP 1017 expressly invoke the calling out power.
However, the contexts of such power are wildly distaff in light of PP
1081’s accompanying declaration of martial law. Since martial law
involves the substitution of the military in the civilian functions of
government, the calling out power involved in PP 1081 is
significantly greater than the one involved in PP 1017, which could
only contemplate the enforcement of existing laws in relation to the
suppression of lawless violence, rebellion or invasion and the
maintenance of general peace and order.
Further proof that PP 1081 intended a wholesale suspension of civil
liberties in the manner that PP 1017 does not even ponder upon is
the subsequent paragraph cited, which authorizes the detention and
continued detention of persons for a plethora of crimes not only
directly related to the rebellion or lawless violence, but of broader
range such as those "against national security," or "public order."
The order of detention under PP 1081 arguably includes every crime
in the statute book. And most alarmingly, any person detained by
virtue of PP 1081 could remain in perpetual detention unless
otherwise released upon order of President Marcos or his duly
authorized representative.
Another worthy point of contrast concerns how the Supreme Court,
during the martial law era, dealt with the challenges raised before it
to martial law rule and its effects on civil liberties. While martial law
stood as a valid presidential prerogative under the 1935
Constitution, a ruling committed to safeguard civil rights and
liberties could have stood ground against even the most
fundamental of human rights abuses ostensibly protected under the
1935 and 1973 constitutions and under international declarations
and conventions. Yet a perusal of Aquino v. Enrile,24 the case that
decisively affirmed the validity of martial law rule, shows that most
of the Justices then sitting exhibited diffidence guised though as
deference towards the declaration of martial law. Note these few
excerpts from the several opinions submitted in that case which
stand as typical for those times:
The present state of martial law in the Philippines is peculiarly
Filipino and fits into no traditional patterns or judicial precedents.
xxx In the first place I am convinced (as are the other Justices),
without need of receiving evidence as in an ordinary adversary court
proceeding, that a state of rebellion existed in the country when
Proclamation No. 1081 was issued. It was a matter of contemporary
history within the cognizance not only of the courts but of all
observant people residing here at that time. xxx The state of
rebellion continues up to the present. The argument that while
armed hostilities go on in several provinces in Mindanao there are
none in other regions except in isolated pockets in Luzon, and that
therefore there is no need to maintain martial law all over the
country, ignores the sophisticated nature and ramifications of
rebellion in a modern setting. It does not consist simply of armed
clashes between organized and identifiable groups on fields of their
own choosing. It includes subversion of the most subtle kind,
necessarily clandestine and operating precisely where there is no
actual fighting. Underground propaganda, through printed
newssheets or rumors disseminated in whispers; recruiting of armed
and ideological adherents, raising of funds, procurement of arms
and materiel, fifth-column activities including sabotage and
intelligence ─ all these are part of the rebellion which by their nature
are usually conducted far from the battle fronts. They cannot be
counteracted effectively unless recognized and dealt with in that
context.25
xxx
[T]he fact that courts are open cannot be accepted as proof that the
rebellion and insurrection, which compellingly called for the
declaration of martial law, no longer imperil the public safety. Nor
are the many surface indicia adverted to by the petitioners (the
increase in the number of tourists, the choice of Manila as the site of
international conferences and of an international beauty contest) to
be regarded as evidence that the threat to public safety has abated.
There is actual armed combat, attended by the somber panoply of
war, raging in Sulu and Cotabato, not to mention the Bicol region
and Cagayan Valley. I am hard put to say, therefore, that the
Government’s claim is baseless.
I am not insensitive to the plea made here in the name of individual
liberty. But to paraphrase Ex parte Moyer, if it were the liberty alone
of the petitioner Diokno that is in issue we would probably resolve
the doubt in his favor and grant his application. But the Solicitor
General, who must be deemed to represent the President and the
Executive Department in this case, has manifested that in the
President’s judgment peace and tranquility cannot be speedily
restored in the country unless the petitioners and others like them
meantime remain in military custody. For, indeed, the central matter
involved is not merely the liberty of isolated individuals, but the
collective peace, tranquility and security of the entire nation.26
xxx
It may be that the existence or non-existence or imminence of a
rebellion of the magnitude that would justify the imposition of
martial law is an objective fact capable of judicial notice, for a
rebellion that is not of general knowledge to the public cannot
conceivably be dangerous to public safety. But precisely because it is
capable of judicial notice, no inquiry is needed to determine the
propriety of the Executive’s action.
Again, while the existence of a rebellion may be widely known, its
real extent and the dangers it may actually pose to the public safety
are not always easily perceptible to the unpracticed eye. In the
present day practices of rebellion, its inseparable subversion aspect
has proven to be more effective and important than "the rising (of
persons) publicly and taking arms against the Government" by which
the Revised Penal Code characterizes rebellion as a crime under its
sanction. Subversion is such a covert kind of anti-government
activity that it is very difficult even for army intelligence to
determine its exact area of influence and effect, not ot mention the
details of its forces and resources. By subversion, the rebels can
extend their field of action unnoticed even up to the highest levels
of the government, where no one can always be certain of the
political complexion of the man next to him, and this does not
exclude the courts. Arms, ammunition and all kinds of war
equipment travel and are transferred in deep secrecy to strategic
locations, which can be one’s neighborhood without him having any
idea of what is going on. There are so many insidious ways in which
subversives act, in fact too many to enumerate, but the point that
immediately suggests itself is that they are mostly incapable of being
proven in court, so how are We to make a judicial inquiry about
them that can satisfy our judicial conscience.
The Constitution definitely commits it to the Executive to determine
the factual bases and to forthwith act as promptly as possible to
meet the emergencies of rebellion and invasion which may be
crucial to the life of the nation. He must do this with unwavering
conviction, or any hesitancy or indecision on his part will surely
detract from the needed precision in his choice of the means he
would employ to repel the aggression. The apprehension that his
decision might be held by the Supreme Court to be a transgression
of the fundamental law he has sworn to ‘defend and preserve’
would deter him from acting when precisely it is most urgent and
critical that he should act, since the enemy is about to strike the
mortal blow.27
206
xxx
To start with, Congress was not unaware of the worsening
conditions of peace and order and of, at least, evident insurgency,
what with the numerous easily verifiable reports of open rebellious
activities in different parts of the country and the series of rallies
and demonstrations, often bloody, in Manila itself and other centers
of population, including those that reached not only the portals but
even the session hall of the legislature, but the legislators seemed
not to be sufficiently alarmed or they either were indifferent or did
not know what to do under the circumstances. Instead of taking
immediate measures to alleviate the conditions denounced and
decried by the rebels and the activists, they debated and argued
long on palliatives without coming out with anything substantial
much less satisfactory in the eyes of those who were seditiously
shouting for reforms. In any event, in the face of the inability of
Congress to meet the situation, and prompted by his appraisal of a
critical situation that urgently called for immediate action, the only
alternative open to the President was to resort to the other
constitutional source of extraordinary powers, the Constitution
itself.28
xxx
Proclamation 1081 is in no sense any more constitutionally
offensive. In fact, in ordering detention of persons, the Proclamation
pointedly limits arrests and detention only to those "presently
detained, as well as others who may hereafter be similarly detained
for the crimes of insurrection or rebellion, and all other crimes and
offences committed in furtherance or on the occasion thereof, or
incident thereto, or in connection therewith, for crimes against
national security and the law of nations, crimes, against the
fundamental laws of the state, crimes against public order, crimes
involving usurpation of authority, rank, title and improper use of
names, uniforms and insignia, crimes committed by public officers,
and for such other crimes as will be enumerated in Orders that I
shall subsequently promulgate, as well as crimes as a consequence
of any violation of any decree, order or regulation promulgated by
me personally or promulgated upon my direction." Indeed, even in
the affected areas, the Constitution has not been really suspended
much less discarded. As contemplated in the fundamental law itself,
it is merely in a state of anaesthesia, to the end that the much
needed major surgery to save the nation’s life may be successfully
undertaken.29
xxx
The quoted lines of reasoning can no longer be sustained, on many
levels, in these more enlightened times. For one, as a direct reaction
to the philosophy of judicial inhibition so frequently exhibited during
the Marcos dictatorship, our present Constitution has explicitly
mandated judicial review of the acts of government as part of the
judicial function. As if to rebuff Aquino, the 1987 Constitution
expressly allows the Supreme Court to review the sufficiency of the
factual basis of the proclamation of martial law and decide the same
within 30 days from the filing of the appropriate case.30 The
Constitution also emphasizes that a state of martial law did not
suspend the operation of the Constitution or supplant the
functioning of the judicial and legislative branches. 31 The expediency
of hiding behind the political question doctrine can no longer be
resorted to.
For another, the renewed emphasis within domestic and
international society on the rights of people, as can be seen in
worldwide democratic movements beginning with our own in 1986,
makes it more difficult for a government established and governed
under a democratic constitution, to engage in official acts that run
contrary to the basic tenets of democracy and civil rights. If a
government insists on proceeding otherwise, the courts will stand in
defense of the basic constitutional rights of the people.
Still, the restoration of rule under law, the establishment of national
governmental instrumentalities, and the principle of republicanism
all ensure that the constitutional government retains significant
powers and prerogatives, for it is through such measures that it can
exercise sovereign will in behalf of the people. Concession to those
presidential privileges and prerogatives should be made if due. The
abuses of past executive governments should not detract from these
basic governmental powers, even as they may warrant a greater
degree of wariness from those institutions that balance power and
the people themselves. And the rule of law should prevail above all.
The damage done by martial rule was not merely personal but
institutional, and the proper rebuke to the caprices and whims of
the iniquitous past is to respect the confines of the restored rule of
law.32
Nothing in PP 1017, or any issuance by any President since Aquino,
comes even close to matching PP 1081. It is a rank insult to those of
us who suffered or stood by those oppressed under PP 1081 to even
suggest that the innocuous PP 1017 is of equivalent import.
PP 1017 Does Not Purport or Pretend that the President Has The
Power to Issue Decrees
There is one seeming similarity though in the language of PP 1017
and PP 1081, harped upon by some of the petitioners and alluded to
by the majority. PP 1017 contains a command to the Armed Forces
"to enforce obedience to all the laws and to all decrees, orders and
regulations by [the President]". A similar command was made under
PP 1081. That in itself should not be a cause of surprise, since both
PP 1017 and PP 1081 expressly invoked the "calling out" power,
albeit in different contexts.
The majority however considers that since the President does not
have the power to issue decrees, PP 1017 is unconstitutional insofar
as it enforces obedience "to all decrees." For one, it should be made
clear that the President currently has no power to issue decrees, and
PP 1017 by no measure seeks to restore such power to the
President. Certainly, not even a single decree was issued by
President Arroyo during the several days PP 1017 was in effect, or
during her term thus far for that matter.
At the same time, such power did once belong to the President
during the Marcos era and was extensively utilized by President
Marcos. It has to be remembered that chafed as we may have under
some of the Marcos decrees, per the 1987 Constitution they still
remain as part of the law of the land unless particularly stricken
down or repealed by subsequent enactments. Indeed, when the
President calls upon the Armed Forces to enforce the laws, those
subsisting presidential decrees issued by President Marcos in the
exercise of his legislative powers are included in the equation.
This view is supported by the rules of statutory construction. The
particular passage in PP 1017 reads ""to enforce obedience to all the
laws and to all decrees, orders and regulations," with the phrases
"all the laws and to all decrees" separated by a comma from "orders
and regulations promulgated by me." Inherently, laws and those
decrees issued by President Marcos in the exercise of his legislative
powers, and even those executive issuances of President Aquino in
the exercise of her legislative powers, belong to the same class,
superior in the hierarchy of laws than "orders and regulations." The
use of the conjunction "and" denotes a joinder or union, "relating
the one to the other."33 The use of "and" establishes an association
between laws and decrees distinct from orders and regulations, thus
permitting the application of the doctrine of noscitur a sociis to
construe "decrees" as those decrees which at present have the force
of law. The dividing comma further signifies the segregation of
concepts between "laws and decrees" on one hand, and "orders and
regulations" on the other.
Further proof that "laws and decrees" stand as a class distinct from
"orders and regulations" is the qualifying phrase "promulgated by
me," which necessarily refers only to orders and regulations.
Otherwise, PP 1017 would be ridiculous in the sense that the
obedience to be enforced only relates to laws promulgated by
President Arroyo since she assumed office in 2001. "Laws and
decrees" do not relate only to those promulgated by President
Arroyo, but other laws enacted by past sovereigns, whether they be
in the form of the Marcos presidential decrees, or acts enacted by
the American Governor-General such as the Revised Penal Code.
207
Certainly then, such a qualification sufficiently addresses the fears of
the majority that PP 1017 somehow empowers or recognizes the
ability of the current President to promulgate decrees. Instead, the
majority pushes an interpretation that, if pursued to its logical end,
suggests that the President by virtue of PP 1017 is also arrogating
unto herself, the power to promulgate laws, which are in the mold
of enactments from Congress. Again, in this respect, the grouping of
"laws" and "decrees" separately from "orders" and "regulations"
signifies that the President has not arrogated unto herself the power
to issue decrees in the mold of the infamous Marcos decrees.
Moreover, even assuming that PP 1017 was intended to apply to
decrees which the current President could not very well issue, such
intention is of no consequence, since the proclamation does not
intend or pretend to grant the President such power in the first
place. By no measure of contemplation could PP 1017 be interpreted
as reinstating to the President the power to issue decrees.
I cannot see how the phrase "enforce obedience to decrees" can be
the source of constitutional mischief, since the implementation of PP
1017 will not vest on the President the power to issue such decrees.
If the Court truly feels the need to clarify this point, it can do so with
the expediency of one sentence or even a footnote. A solemn
declaration that the phrase is unconstitutional would be like killing a
flea with dynamite when insect powder would do.
PP 1017 A Valid Exercise of Prerogatives
Inherent and Traditional in the Office of The Presidency
Thus far, I have dwelt on the legal effects of PP 1017, non-existent as
they may be in relation to the citizenry, the courts or on Congress.
Still, there is another purpose and dimension behind PP 1017 that
fall within the valid prerogatives of the President.
The President, as head of state, is cast in a unique role in our polity
matched by no other individual or institution. Apart from the
constitutional powers vested on the President lie those powers
rooted in the symbolic functions of the office. There is the common
expectation that the President should stand as the political, moral
and social leader of the nation, an expectation not referred to in of
the oath of office, but expected as a matter of tradition. In fact, a
President may be cast in crisis even if the Chief Executive has broken
no law, and faithfully executed those laws that exist, simply because
the President has failed to win over the hearts and minds of the
citizens. As a Princeton academic, Woodrow Wilson once observed
that with the People, the President is everything, and without them
nothing, and the sad decline of his own eventual presidency is no
better proof of the maxim. Such are among the vagaries of the
political office, and generally beyond judicial relief or remedy.
Justice Robert Jackson’s astute observation in Youngstown Sheet &
Tube Co. v. Sawyer34 on the unique nature of the presidency, has
been widely quoted:
Executive power has the advantage of concentration in a single head
in whose choice the whole Nation has a part, making him the focus
of public hopes and expectations. In drama, magnitude, and finality,
his decisions so far overshadow any others that almost alone he fills
the public eye and ear. No other personality in public life can begin
to compete with him in access to the public mind through modern
methods of communications. By his prestige as head of state and his
influence upon public opinion he exerts a leverage upon those who
are supposed to check and balance his power which often cancels
their effectiveness.35
Correspondingly, the unique nature of the office affords the
President the opportunity to profoundly influence the public
discourse, not necessarily through the enactment or enforcement of
laws, but specially by the mere expediency of taking a stand on the
issues of the day. Indeed, the President is expected to exercise
leadership not merely through the proposal and enactment of laws,
but by making such vital stands. U.S. President Theodore Roosevelt
popularized the notion of the presidency as a "bully pulpit", in line
with his belief that the President was the steward of the people
limited only by the specific restrictions and prohibitions appearing in
the Constitution, or impleaded by Congress under its constitutional
powers.
Many times, the President exercises such prerogative as a
responsive measure, as after a mass tragedy or calamity. Indeed,
when the President issues a declaration or proclamation of a state of
national mourning after a disaster with massive casualties, while
perhaps de rigeur, is not the formalistic exercise of tradition, but a
statement that the President, as the representative of the Filipino
people, grieves over the loss of life and extends condolences in
behalf of the people to the bereaved. This is leadership at its most
solemn.
Yet the President is not precluded, in the exercise of such role, to be
merely responsive. The popular expectation in fact is of a pro-active,
dynamic chief executive with an ability to identify problems or
concerns at their incipience and to respond to them with all legal
means at the earliest possible time. The President, as head of state,
very well has the capacity to use the office to garner support for
those great national quests that define a civilization, as President
Kennedy did when by a mere congressional address, he put America
on track to the goal of placing a man on the moon. Those
memorable presidential speeches memorized by schoolchildren may
have not, by themselves, made operative any law, but they served
not only merely symbolic functions, but help profoundly influence
towards the right direction, the public opinion in the discourse of the
times. Perhaps there was no more dramatic example of the use of
the "bully pulpit" for such noble purposes than in 1964, when an
American President from Texas stood before a Congress populated
by many powerful bigots, and fully committed himself as no other
President before to the cause of civil rights with his intonation of
those lines from the civil rights anthem, "we shall overcome."
From an earlier era in American history, Lincoln’s Emancipation
Proclamation stands out as a presidential declaration which clearly
staked American polity on the side of the democratic ideal, even
though the proclamation itself was of dubitable legal value. The
proclamation, in short form, "freed the slaves", but was not itself
free of legal questions. For one, the notion that the President could,
by himself, alter the civil and legal status of an entire class of
persons was dubious then and now, although President Lincoln did
justify his action as in the exercise of his powers as commander-in-
chief during wartime, "as a fit and necessary war measure for
suppressing [the] rebellion." Moreover, it has been pointed out that
the Proclamation only freed those slaves in those states which were
then in rebellion, and it eventually took the enactment of the
Thirteenth Amendment of the U.S. Constitution to legally abolish
involuntary servitude.36 Notwithstanding the legal haze surrounding
it, the Emancipation Proclamation still stands as a defining example
not only of the Lincoln Presidency, but of American democratic
principles. It may be remembered to this day not exactly as an
operational means by which slaves were actually freed, but as a
clear rhetorical statement that slavery could no longer thenceforth
stand.
The President as Chief Government Spokesperson of the democratic
ideals is entrusted with a heady but comfortable pursuit. But no less
vital, if somewhat graver, is the role of the President as the Chief
Defender of the democratic way of life. The "calling out" power
assures the President such capability to a great extent, yet it will not
fully suffice as a defense of democracy. There is a need for the
President to rally the people to defend the Constitution which
guarantees the democratic way of life, through means other than
coercive. I assert that the declaration of a state of emergency, on
premises of a looming armed threat which have hardly been
disputed, falls within such proper functions of the President as the
defender of the Constitution. It was designed to inform the people
of the existence of such a threat, with the expectation that the
citizenry would not aid or abet those who would overturn through
force the democratic government. At the same time, the
Proclamation itself does not violate the Constitution as it does not
call for or put into operation the suspension or withdrawal of any
208
constitutional rights, or even create or diminish any substantive
rights.
I submit that it would be proper for the Court to recognize that PP
1017 strikes a commendable balance between the Constitution, the
"calling out" power, and the inherent function of the Presidency as
defender of the democratic constitution. PP 1017 keeps within the
scope and limitations of these three standards. It asserts the primacy
of the democratic order, civilian control over the armed forces, yet
respects constitutional and statutory guarantees of the people.
II.
Section 17, Article XII of the Constitution In Relation to PP 1017
My next issue with the majority pertains to the assertion that the
President does not have the power to take over public utilities or
businesses impressed with public interest under Section 17, Article
XII of the Constitution without prior congressional authorization. I
agree that the power of the State to take over such utilities and
businesses is highly limited, and should be viewed with suspicion if
actually enforced.
Yet qualifications are in order with regard to how Section 17, Article
XII actually relates of PP 1017.
I agree with the majority that a distinction should be asserted as
between the power of the President to declare a state of
emergency, and the exercise of emergency powers under Section 17,
Article XII. The President would have the power to declare a state of
emergency even without Section 17, Article XII.
At the same time, it should be recognized that PP 1017, on its face
and as applied, did not involve the actual takeover of any public
utility or business impressed with public interest. To some minds,
the police action in relation to the Daily Tribune may have flirted
with such power, yet ultimately the newspaper was able to
independently publish without police interference or court
injunction. It may be so that since PP 1017 did make express
reference to Section 17, Article XII, but it should be remembered
that the constitutional provision refers to a two-fold power of the
State to declare a national emergency and to take over such utilities
and enterprises. The first power under Section 17, Article XII is not
distinct from the power of the President, derived from other
constitutional sources, to declare a state of national emergency.
Reference to Section 17, Article XII in relation to the power to
declare a state of national emergency is ultimately superfluous. A
different situation would obtain though if PP 1017 were invoked in
the actual takeover of a utility or business, and in such case, full
consideration of the import of Section 17, Article XII would be
warranted. But no such situation obtains in this case, and any
discussion relating to the power of the State to take over a utility or
business under Section 17, Article XII would ultimately be obiter
dictum.
I respectfully submit that the Court, in these petitions, need not
have engaged this potentially contentious issue, especially as it
extends to whether under constitutional contemplation, the
President may act in behalf of the State in exercising the powers
under Section 17, Article XII. Nonetheless, considering that the
majority has chosen to speak out anyway, I will express agreement
that as a general rule, the President may exercise such powers under
Section 17, Article XII only under the grant of congressional
approval. Certainly, the notion that congressional authority is
required under Section 17, Article XII is not evident from the
provision. Even Fr. Bernas notes that Section 17 does not require, as
does Article VI, Section 23(2), that the authorization be "by law",
thus leaving the impression that the authorization can come from
the President.37
After the 1989 coup d’etat, President Aquino issued issued
Proclamation No. 503 on 6 December 1989, declaring a state of
national emergency, and referring therein to Section 17, Article XII
by citing the entire provision. The declaration was subsequently
reaffirmed by Congress when two weeks after, it enacted Republic
Act No. 6826. Notably, Section 3(3) of the law authorized the
President "to temporarily takeover or direct the operation of any
privately-owned public utility or business affected with public
interest that violates the herein declared national policy". Tellingly,
however, such authority was granted by Congress expressly
"pursuant to Article VI, Section 23(2) of the Constitution", and not
the take-over provision in Section 17, Article XII. Evidently, the view
that Section 17, Article XII requires prior congressional authority has
some novelty to it.
Still, I concede that it is fundamentally sound to construe Section 17
as requiring congressional authority or approval before the takeover
under the provision may be effected. After all, the taking over of a
privately owned public utility or business affected with public
interest would involve an infringement on the right of private
enterprise to profit; or perhaps even expropriation for a limited
period. Constitutionally, the taking of property can only be
accomplished with due process of law,38 and the enactment of
appropriate legislation prescribing the terms and conditions under
which the President may exercise the powers of the State under
Section 17 stands as the best assurance that due process of law
would be observed.
The fact that Section 17 is purposely ambivalent as to whether the
President may exercise the power therein with or without
congressional approval leads me to conclude that it is
constitutionally permissible to recognize exceptions, such as in
extreme situations wherein obtention of congressional authority is
impossible or inexpedient considering the emergency. I thus dissent
to any proposition that such requirement is absolute under all
circumstances. I maintain that in such extreme situations, the
President may exercise such authority subject to judicial review.
It should be admitted that some emergencies are graver and more
imminent than others. It is not within the realm of impossibility that
by reason of a particularly sudden and grave emergency, Congress
may not be able to convene to grant the necessary congressional
authority to the President. Certainly, if bombs from a foreign invader
are falling over Manila skies, it may be difficult, not to mention
unnecessarily onerous, to require convening Congress before the
President may exercise the functions under Section 17, Article XII.
The proposition of the majority may be desirable as the general rule,
but the correct rule that should be adopted by the Court should not
be so absolute so as to preclude the exercise by the President of
such power under extreme situations.
In response to this argument, the majority cites portions of Araneta
v. Dinglasan,39 most pertinent of which reads: "The point is, under
this framework of government, legislation is preserved for Congress
all the time, not excepting periods of crisis no matter how serious."
For one, Araneta did not involve a situation wherein the President
attempted to exercise emergency powers without congressional
authority; concerning as it did the exercise by President Quirino of
those emergency powers conferred several years earlier by Congress
to President Quezon at the onset of the Pacific phase of World War
II. The Court therein ruled that the emergency that justified then the
extraordinary grant of powers had since expired, and that there no
longer existed any authority on the part of the President to exercise
such powers, notwithstanding that the law, Commonwealth Act No.
671, "did not in term fix the duration of its effectiveness".
Clearly, the context in which the Court made that observation
in Araneta is not the same context within which my own
observations oscillate. My own submission is premised on the
extreme situation wherein Congress may be physically unable to
convene, an exceptional circumstance which the hard-line stance of
the majority makes no concessions for.
Indeed, even the factual milieu recounted in Araneta conceded that
such extreme circumstance could occur, when it noted President
Quezon’s claim that he was impelled to call for a special session of
the National Assembly after foreseeing that "it was most unlikely
that the Philippine Legislature would hold its next regular session
209
which was to open on January 1, 1942."40 That the National
Assembly then was able to convene and pass Commonwealth Act
No. 671 was fortunate, but somewhat a luxury nonetheless. Indeed,
it is not beyond the realm of possibility that the emergency
contemplated would be so grave that a sufficient number of
members of Congress would be physically unable to convene and
meet the quorum requirement.
Ultimately though, considering that the authorized or actual
takeover under Section 17, Article XII, is not presented as a properly
justiciable issue. Nonetheless, and consistent with the general tenor,
the majority has undertaken to decide this non-justiciable issue, and
to even place their view in the dispositive portion in a bid to
enshrine it as doctrine. In truth, the Court’s pronouncement on this
point is actually obiter. It is hoped that should the issue become ripe
for adjudication before this Court, the obiter is not adopted as a
precedent without the qualification that in extreme situations
wherein congressional approval is impossible or highly impractical to
obtain, the powers under Section 17, Article XII may be authorized
by the President.
III.
Overbreadth and "Void for Vagueness" Doctrines Applicable Not
Only To Free Speech Cases
The majority states that "the overbreadth doctrine is an analytical
tool developed for testing ‘on their faces’ statutes in free speech
cases"41, and may thus be entertained "in cases involving statutes
which, by their terms, seek to regulate only ‘spoken words’, and not
conduct. A similar characterization is made as to the "void for
vagueness" doctrine, which according to the majority, is "subject to
the same principles governing overbreadth doctrine … also an
analytical tool for testing ‘on their faces’ statutes in free speech
cases."42
As I noted in my Separate Opinion in Romualdez v.
Sandiganbayan,43 citing Justice Kapunan, there is a viable distinction
between "void for vagueness" and "overbreadth" which the majority
sadly ignores.
A view has been proferred that "vagueness and overbreadth
doctrines are not applicable to penal laws." These two concepts,
while related, are distinct from each other. On one hand, the
doctrine of overbreadth applies generally to statutes that infringe
upon freedom of speech. On the other hand, the "void-for-
vagueness" doctrine applies to criminal laws, not merely those that
regulate speech or other fundamental constitutional right. (not
merely those that regulate speech or other fundamental
constitutional rights.) The fact that a particular criminal statute does
not infringe upon free speech does not mean that a facial challenge
to the statute on vagueness grounds cannot succeed. 44
The distinction may prove especially crucial since there has been a
long line of cases in American Supreme Court jurisprudence wherein
penal statutes have been invalidated on the ground that they were
"void for vagueness." As I cited in Romualdez v.
Sandiganbayan,45 these cases are Connally v. General Construction
Co,.46 Lanzetta v. State of New Jersey,47 Bouie v. City of
Columbia,48 Papachristou v. City of Jacksonville,49 Kolender v.
Lawson,50and City of Chicago v. Morales.51
Granting that perhaps as a general rule, overbreadth may find
application only in "free speech"52 cases, it is on the other hand very
settled doctrine that a penal statute regulating conduct, not speech,
may be invalidated on the ground of "void for vagueness".
In Romualdez, I decried the elevation of the suspect and radical new
doctrine that the "void for vagueness" challenge cannot apply other
than in free speech cases. My view on this point has not changed,
and insofar as the ponencia would hold otherwise, I thus dissent.
Moreover, even though the argument that an overbreadth challenge
can be maintained only in free speech cases has more jurisprudential
moorings, the rejection of the challenge on that basis alone may
prove unnecessarily simplistic. I maintain that there is an even
stronger ground on which the overbreadth and "void for vagueness"
arguments can be refuted ─ that Presidential Proclamation 1017 (PP
1017) neither creates nor diminishes any rights or obligations
whatsoever. In fact, I submit again that this proposition is the key
perspective from which the petitions should be examined.
IV.
General Order No. 5
Suffers No Constitutional Infirmity
The majority correctly concludes that General Order No. 5 is
generally constitutional. However, they make an unnecessary
distinction with regard to "acts of terrorism", pointing out that
Congress has not yet passed a law defining and punishing terrorism
or acts of terrorism.
That may be the case, but does the majority seriously suggest that
the President or the State is powerless to suppress acts of terrorism
until the word "terrorism" is defined by law? Terrorism has a widely
accepted meaning that encompasses many acts already punishable
by our general penal laws. There are several United Nations and
multilateral conventions on terrorism53, as well as declarations made
by the United Nations General Assembly denouncing and seeking to
combat terrorism.54 There is a general sense in international law as
to what constitutes terrorism, even if no precise definition has been
adopted as binding on all nations. Even without an operative law
specifically defining terrorism, the State already has the power to
suppress and punish such acts of terrorism, insofar as such acts are
already punishable, as they almost always are, in our extant general
penal laws. The President, tasked with the execution of all existing
laws, already has a sufficient mandate to order the Armed Forces to
combat those acts of terrorism that are already punishable in our
Revised Penal Code, such as rebellion, coup d’etat, murder,
homicide, arson, physical injuries, grave threats, and the like.
Indeed, those acts which under normal contemplation would
constitute terrorism are associated anyway with or subsumed under
lawless violence, which is a term found in the Constitution itself.
Thus long ago, the State has already seen it fit to punish such acts.
Moreover, General Order No. 5 cannot redefine statutory crimes or
create new penal acts, since such power belongs to the legislative
alone. Fortunately, General Order No. 5 does not assume to make
such redefinitions. It may have been a different matter had General
Order No. 5 attempted to define "acts of terrorism" in a manner that
would include such acts that are not punished under our statute
books, but the order is not comported in such a way. The proper
course of action should be to construe "terrorism" not in any legally
defined sense, but in its general sense. So long as it is understood
that "acts of terrorism" encompasses only those acts which are
already punishable under our laws, the reference is not
constitutionally infirm.
The majority cites a theoretical example wherein a group of persons
engaged in a drinking spree may be arrested by the military or police
in the belief that they were committing acts of terrorism pursuant to
General Order No. 5. Under the same logical framework that group
of persons engaged in a drinking spree could very well be arrested
by the military or police in the belief that they are committing acts of
lawless violence pursuant to General Order No. 5, instead of acts of
terrorism. Obviously such act would be "abuse and oppression" on
the part of the military and the police, whether justified under
"lawless violence" or "acts of terrorism". Yet following the logic of
the majority, the directive to prevent acts of "lawless violence"
should be nullified as well.
If the point of the majority is that there are no justiciable standards
on what constitutes acts of terrorism, it should be pointed out that
only the following scenarios could ensue. For one, a person would
actually be arrested and charged with "acts of terrorism", and such
arrest or charge would be thrown out of the courts, since our statute
books do not criminalize the specific crime of terrorism. More
210
probably, a person will be arrested and charged for acts that may
under the layperson’s contemplation constitutes acts of terrorism,
but would be categorized in the information and charge sheet as
actual crimes under our Revised Penal Code. I simply cannot see how
General Order No. 5 could validate arrests and convictions for non-
existent crimes.
Interestingly, the majority, by taking issue with the lack of definition
and possible broad context of "acts of terrorism", seems to be
positively applying the arguments of "overbreadth" or "void for
vagueness", arguments which they earlier rejected as applicable only
in the context of free expression cases. The inconsistency is breath-
taking. While I disagree with the majority-imposed limitations on the
applicability of the "overbreadth" or "void for vagueness" doctrines,
I likewise cannot accede to the application of those doctrines in the
context of General Order No. 5, for the same reason that they
should not apply to PP 1017. Neither General Order No. 5 nor PP
1017 is a penal statute, or have an operative legal effect of infringing
upon liberty, expression or property. As such, neither General Order
No. 5 nor PP 1017 can cause the deprivation of life, liberty or
property, thus divorcing those issuances from the context of the due
process clause. The same absence of any binding legal effect of
these two issuances correspondingly disassociates them from the
constitutional infringement of free expression or association.
Neither "void for vagueness" nor "overbreadth" therefore lie.
Another point. The majority concludes from General Order No. 5
that the military or police is limited in authority to perform those
acts that are "necessary and appropriate actions and measures to
suppress and prevent acts of terrorism and lawless violence," and
such acts committed beyond such authority are considered illegal. I
do not dispute such conclusion, but it must be emphasized that
"necessary and appropriate actions and measures" precisely do not
authorize the military or police to commit unlawful and
unconstitutional acts themselves, even if they be geared towards
suppressing acts of terrorism or lawless violence. Indeed, with the
emphasis that PP 1017 does not create new rights or obligations, or
diminish existing ones, it necessarily follows that General Order No.
5, even if premised on a state of emergency, cannot authorize the
military or police to ignore or violate constitutional or statutory
rights, or enforce laws completely alien to the suppression of lawless
violence. Again, following the cardinal principle of legal
hermeneutics earlier adverted to, General Order No. 5 should be
viewed in harmony with the Constitution, and only if it the Order
irreconcilably deviates from the fundamental law should it be struck
down.
V.
Court Should Refrain Making Any Further Declaration, For Now,
Relating to the Individual Grievances Raised by the Petitioners in
Relation To PP 1017
I respectfully disagree with the manner by which the majority would
treat the "void as applied" argument presented by the petitioners.
The majority adopts the tack of citing three particular injuries
alleged by the petitioners as inflicted with the implementation of PP
1017. The majority analyzes the alleged injuries, correlates them to
particular violations of the Bill of Rights, and ultimately concludes
that such violations were illegal.
The problem with this approach is that it would forever deem the
Court as a trier or reviewer at first instance over questions involving
the validity of warrantless arrests, searches, seizures and the
dispersal of rallies, all of which entail a substantial level of factual
determination. I agree that PP 1017 does not expand the grounds
for warrantless arrests, searches and seizures or dispersal of rallies,
and that the proclamation cannot be invoked before any court to
assert the validity of such unauthorized actions. Yet the problem
with directly adjudicating that the injuries inflicted on David, et al.,
as illegal, would be that such would have been done with undue
haste, through an improper legal avenue, without the appropriate
trial of facts, and without even impleading the particular officers
who effected the arrests/searches/seizures.
I understand that the injurious acts complained of by the petitioners
upon the implementation of PP 1017 are a source of grave concern.
Indubitably, any person whose statutory or constitutional rights
were violated in the name of PP 1017 or General Order No. 5
deserves redress in the appropriate civil or criminal proceeding, and
even the minority wishes to makes this point as emphatically clear, if
not moreso, as the majority. Yet a ruling from this Court, without the
proper factual basis or prayer for remuneration for the injury
sustained, would ultimately be merely symbolic. While the Court will
not be harmed by a symbolic reaffirmation of commitment to the
principles in the Bill of Rights, it will be harmed by a ruling that
unduly and inappropriately expands the very limited function of the
Court as a trier of facts on first instance.
In my dissent in Teves v. Sandiganbayan,55 I alluded to the fact that
our legal system may run counter-intuitive in the sense that the
seemingly or obviously guilty may still, after trial, be properly
acquitted or exonerated; to the extent that even an accused who
murders another person in front of live television cameras broadcast
to millions of sets is not yet necessarily guilty of the crime of murder
or homicide.56 Hence, the necessity of a proper trial so as to allow
the entire factual milieu to be presented, tested and evaluated
before the court. In my theoretical example, the said accused should
nonetheless be acquitted if the presence of exempting
circumstances is established. The same principle applies in these
cases. Certainly, we in the Court can all agree that PP 1017 cannot
be invoked to justify acts by the police or military officers that go
beyond the Constitution and the laws. But the course of prudence
dictates that the pronouncement of such a doctrine, while
enforceable in a court of law, should not yet extend itself to specific
examples that have not yet been properly litigated. The function of
this Court is to make legal pronouncements not based on "obvious"
facts, but on proven facts.
A haphazard declaration by the Court that the arrests or seizures
were "illegal" would likewise preclude any meaningful review or
reevaluation of pertinent legal doctrines that otherwise could have
been reexamined had these acts been properly challenged in regular
order. For example, the matter of the warrantless arrests in these
cases could have most certainly compelled the Court to again
consider the doctrine laid down in Umil v. Ramos on warrantless
arrests and rebellion as a continuing crime, a doctrine that may
merit renewed evaluation. Yet any healthy reexamination of Umil, or
other precedents for that matter, require the presentation and trial
of the proper factual predicates, a course which the majority
unfortunately "short-cuts" in this present decision.
Of course, despite the grandiloquent pronouncement by the
majority that the acts complained of by the petitioners and
implemented pursuant to General Order No. 5 are illegal, it could
nonetheless impose civil, criminal or administrative sanctions on the
individual police officers concerned, as these officers had not been
"individually identified and given their day in court". Of course, the
Court would be left with pie on its face if these persons, once "given
their day in court", would be able to indubitably establish that their
acts were actually justified under law. Perhaps worse, the
pronouncement of the majority would have had the effect of
prejudging these cases, if ever lodged, even before trial on the
merits.
Certainly, a declaration by the majority that PP 1017 or General
Order No. 5 cannot justify violation of statutory or constitutional
rights (a declaration which the minority would have no qualms
assenting to) would sufficiently arm those petitioners and other
persons whose rights may have been injured in the implementation
of PP 1017, with an impeccable cause of action which they could
pursue against the violators before the appropriate courts. At the
same time, if the officers or officials concerned have basis to
contend that no such rights were violated, for justifications
independent of PP 1017 or General Order No. 5, such claims could
receive due consideration before the courts. Such a declaration
would squarely entrench the Court as a defender of the Bill of
Rights, foster enforceable means by which the injured could seek
actual redress for the injury sustained, and preserve the integrity
and order of our procedural law.
211
VI.

Conclusion

The country-wide attention that the instant petitions have drawn

should not make the Court lose focus on its principal mission, which
is to settle the law of the case. On the contrary, the highly political
nature of these petitions should serve as forewarning for the Court
to proceed ex abundante cautelam, lest the institution be unduly
dragged into the partisan mud. The credibility of the Court is
ensured by making decisions in accordance with the Constitution
without regard to the individual personalities involved; with sights
set on posterity, oblivious of the popular flavor of the day.

By deciding non-justiciable issues and prejudging cases and

controversies without a proper trial on the merits, the majority has
diminished the potency of this Court’s constitutional power in favor
of rhetorical statements that afford no quantifiable relief. It is for
the poet and the politician to pen beautiful paeans to the people’s
rights and liberties, it is for the Court to provide for viable legal
means to enforce and safeguard these rights and liberties. When the
passions of these times die down, and sober retrospect accedes, the
decision of this Court in these cases will be looked upon as an
extended advisory opinion.

Yes, PP 1017 and General Order No. 5 warrant circumspect scrutiny

from those interested and tasked with preserving our civil liberties.
They may even stand, in the appropriate contexts, as viable partisan
political issues. But the plain fact remains that, under legal
contemplation, these issuances are valid on their face, and should
result in no constitutional or statutory breaches if applied according
to their letter.

I vote to DISMISS all the petitions.

DANTE O. TINGA
Associate Justice

212
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 132231 March 31, 1998
EMILIO M. R. OSMEÑA and PABLO P. GARCIA, petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.
MENDOZA, J.:
This is a petition for prohibition, seeking a reexamination of the
validity of §11(b) of R.A. No. 6646, the Electoral Reforms Law of
1987, which prohibits mass media from selling or giving free of
charge print space or air time for campaign or other political
purposes, except to the Commission on Elections.1Petitioners are
candidates for public office in the forthcoming elections. Petitioner
Emilio M. R. Osmeña is candidate for President of the Philippines,
while petitioner Pablo P. Garcia is governor of Cebu Province,
seeking reelection. They contend that events after the ruling
in National Press Club v. Commission on Elections2 "have called into
question the validity of the very premises of that [decision]."3
There Is No Case or Controversy to Decide,
Only an Academic Discussion to Hold
NPC v. COMELEC upheld the validity of §11(b) of R.A. No. 6646
against claims that it abridged freedom of speech and of the
press.4 In urging a reexamination of that ruling, petitioners claim
that experience in the last five years since the decision in that case
has shown the "undesirable effects" of the law because "the ban on
political advertising has not only failed to level the playing field, [but]
actually worked to the grave disadvantage of the poor
candidate[s]"5 by depriving them of a medium which they can afford
to pay while their more affluent rivals can always resort to other
means of reaching voters like airplanes, boats, rallies, parades, and
handbills.
No empirical data have been presented by petitioners to back up
their claim, however. Argumentation is made at the theoretical and
not the practical level. Unable to show the "experience" and
"subsequent events" which they claim invalidate the major premise
of our prior decision, petitioners now say "there is no need for
'empirical data' to determine whether the political ad ban offends
the Constitution or not."6Instead they make arguments from which
it is clear that their disagreement is with the opinion of the Court on
the constitutionality of §11(b) of R.A. No. 6646 and that what they
seek is a reargument on the same issue already decided in that case.
What is more, some of the arguments were already considered and
rejected in the NPC case.7
Indeed, petitioners do not complain of any harm suffered as a result
of the operation of the law. They do not complain that they have in
any way been disadvantaged as a result of the ban on media
advertising. Their contention that, contrary to the holding in NPC,
§11(b) works to the disadvantage of candidates who do not have
enough resources to wage a campaign outside of mass media can
hardly apply to them. Their financial ability to sustain a long drawn-
out campaign, using means other than the mass media to
communicate with voters, cannot be doubted. If at all, it is
candidates like intervenor Roger Panotes, who is running for mayor
of Daet, Camarines Norte, who can complain against §11(b) of R.A.
No. 6646. But Panotes is for the law which, he says, has "to some
extent, reduced the advantages of moneyed politicians and parties
over their rivals who are similarly situated as ROGER PANOTES." He
claims that "the elimination of this substantial advantage is one
reason why ROGER PANOTES and others similarly situated have
dared to seek an elective position this coming elections."8
What petitioners seek is not the adjudication of a case but simply
the holding of an academic exercise. And since a majority of the
present Court is unpersuaded that its decision in NPC is founded in
error, it will suffice for present purposes simply to reaffirm the ruling
in that case. Stare decisis et non quieta movere. This is what makes
the present case different from the overruling decisions 9 invoked by
petitioners.
Nevertheless, we have undertaken to revisit the decision in NPC
v. COMELEC in order to clarify our own understanding of its reach
and set forth a theory of freedom of speech.
No Ad Ban, Only a Substitution of
COMELEC Space and COMELEC
Time for the Advertising Page and
Commercials in Mass Media
The term political "ad ban," when used to describe §11(b) of R.A. No.
6646, is misleading, for even as §11(b) prohibits the sale or donation
of print space and air time to political candidates, it mandates the
COMELEC to procure and itself allocate to the candidates space and
time in the media. There is no suppression of political ads but only a
regulation of the time and manner of advertising.
Thus, §11(b) states:
Prohibited Forms of Elections Propaganda. — In addition
to the forms of election propaganda prohibited in Section
85 of Batas Pambansa Blg. 881, it shall be unlawful:
xxx xxx xxx
(b) for any newspapers, radio broadcasting or television
station, or other mass media, or any person making use of
the mass media to sell or to give free of charge print space
or air time for campaign or other political purposes except
to the Commission as provided under Section 90 and 92 of
Batas Pambansa Blg. 881. Any mass media columnist,
commentator, announcer or personality who is a
candidate for any elective public office shall take a leave of
absence from his work as such during the campaign
period.
On the other hand, the Omnibus Election Code provisions referred
to in §11(b) read:
Sec. 90. Comelec space. — The Commission shall procure
space in at least one newspaper of general circulation in
every province or city: Provided, however, That in the
absence of said newspaper, publication shall be done in
any other magazine or periodical in said province or city,
which shall be known as "Comelec Space" wherein
candidates can announce their candidacy. Said space shall
be allocated, free of charge, equally and impartially by the
Commission among all candidates within the area in which
the newspaper is circulated. (Sec. 45, 1978 EC).
Sec. 92. Comelec time. — The Commission shall procure
radio and television time to be known as "Comelec Time"
which shall be allocated equally and impartially among the
candidates within the area of coverage of all radio and
television stations. For this purpose, the franchise of all
radio broadcasting and television stations are hereby
amended so as to provide radio or television time, free of
charge, during the period of the campaign. (Sec. 46, 1978
EC)
The law's concern is not with the message or content of the ad but
with ensuring media equality between candidates with "deep
pockets," as Justice Feliciano called them in his opinion of the Court
in NPC, and those with less resources.10 The law is part of a package
of electoral reforms adopted in 1987. Actually, similar effort was
made in 1970 to equalize the opportunity of candidates to advertise
213
themselves and their programs of government by requiring the
COMELEC to have a COMELEC space in newspapers, magazines, and
periodicals and prohibiting candidates to advertise outside such
space, unless the names of all the other candidates in the district in
which the candidate is running are mentioned "with equal
prominence." The validity of the law was challenged in Badoy,
Jr. v. COMELEC.11The voting was equally divided (5-5), however, with
the result that the validity of the law was deemed upheld.
There is a difference in kind and in severity between restrictions
such as those imposed by the election law provisions in question in
this case and those found to be unconstitutional in the cases cited by
both petitioners and the Solicitor General, who has taken the side of
petitioners. In Adiong v.
COMELEC12 the Court struck down a regulation of the COMELEC
which prohibited the use of campaign decals and stickers on mobile
units, allowing their location only in the COMELEC common poster
area or billboard, at the campaign headquarters of the candidate or
his political party, or at his residence. The Court found the restriction
"so broad that it encompasses even the citizen's private property,
which in this case is a privately-owned car."13 Nor was there a
substantial governmental interest justifying the restriction.
[T]he constitutional objective to give a rich candidate and
a poor candidate equal opportunity to inform the
electorate as regards their candidacies, mandated by
Article II, Section 26 and Article XIII, Section 1 in relation to
Article IX(c) Section 4 of the Constitution, is not impaired
by posting decals and stickers on cars and other private
vehicles. Compared to the paramount interest of the State
in guaranteeing freedom of expression, any financial
considerations behind the regulation are of marginal
significance.14
Mutuc v. COMELEC15 is of a piece with Adiong. An order of the
COMELEC prohibiting the playing of taped campaign jingles through
sound systems mounted on mobile units was held to be an invalid
prior restraint without any apparent governmental interest to
promote, as the restriction did not simply regulate time, place or
manner but imposed an absolute ban on the use of the jingles. The
prohibition was actually content-based and was for that reason bad
as a prior restraint on speech, as inhibiting as prohibiting the
candidate himself to use the loudspeaker. So is a ban against
newspaper columnists expressing opinion on an issue in a plebiscite
a content restriction which, unless justified by compelling reason, is
unconstitutional.16
Here, on the other hand, there is no total ban on political ads, much
less restriction on the content of the speech. Given the fact that
print space and air time can be controlled or dominated by rich
candidates to the disadvantage of poor candidates, there is a
substantial or legitimate governmental interest justifying exercise of
the regulatory power of the COMELEC under Art. IX-C, §4 of the
Constitution, which provides:
The commission may, during the election period, supervise
or regulate the enjoyment or utilization of all franchises or
permits for the operation of transportation and other
public utilities, media of communication or information, all
grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality
thereof, including any government-owned or controlled
corporation or its subsiding. Such supervision or regulation
shall aim to ensure equal opportunity, time, and space,
and the right to reply, including reasonable, equal rates
therefor, for public information campaigns and forums
among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible
elections.
The provisions in question involve no suppression of political ads.
The only prohibit the sale or donation of print space and air time to
candidates but require the COMELEC instead to procure space and
time in the mass media for allocation, free of charge, to the
candidates. In effect, during the election period, the COMELEC takes
over the advertising page of newspapers or the commercial time of
radio and TV stations and allocates these to the candidates.
Nor can the validity of the COMELEC take-over for such temporary
period be doubted.17 In Pruneyard Shopping Center v. Robbins,18 it
was held that a court order compelling a private shopping center to
permit use of a corner of its courtyard for the purpose of distributing
pamphlets or soliciting signatures for a petition opposing a UN
resolution was valid. The order neither unreasonably impaired the
value or use of private property nor violated the owner's right not to
be compelled to express support for any viewpoint since it can
always disavow any connection with the message.
On the other hand, the validity of regulations of time, place and
manner, under well-defined standards, is well-nigh beyond
question.19 What is involved here is simply regulation of this nature.
Instead of leaving candidates to advertise freely in the mass media,
the law provides for allocation, by the COMELEC, of print space and
air time to give all candidates equal time and space for the purpose
of ensuring "free, orderly, honest, peaceful, and credible elections."
In Gonzales v. COMELEC,20 the Court sustained the validity of a
provision of R.A. No. 4880 which in part reads:
Sec. 50-B. Limitation upon the period of Election Campaign
or Partisan Political Activity. — It is unlawful for any
person whether or not a voter or candidate, or for any
group, or association of persons, whether or not a political
party or political committee, to engage in an election
campaign or partisan political activity except during the
period of one hundred twenty days immediately preceding
an election involving a public office voted for at large and
ninety days immediately preceding an election for any
other elective public office.
The term "Candidate" refers to any person aspiring for or
seeking an elective public office, regardless of whether or
not said person has already filed his certificate of
candidacy or has been nominated by any political party as
its candidate.
The term "Election Campaign" or "Partisan Political
Activity" refers to acts designed to have a candidate
elected or not or promote the candidacy of a person or
persons to a public office which shall include:
(a) Forming Organizations,
Associations, Clubs, Committees or
other groups of persons for the
purpose of soliciting votes and/or
undertaking any campaign or
propaganda for or against a party or
candidate;
(b) Holding political conventions,
caucuses, conferences, meetings,
rallies, parades, or other similar
assemblies, for the purpose of
soliciting votes and/or undertaking any
campaign or propaganda for or against
a candidate or party; . . .
In Valmonte v. COMELEC,21 on the other hand, the Court upheld the
validity of a COMELEC resolution prohibiting members of citizen
groups or associations from entering any polling place except to
vote. Indeed, §261(k) of the Omnibus Election Code makes it
unlawful for anyone to solicit votes in the polling place and within a
radius of 30 meters thereof.
These decisions come down to this: the State can prohibit
campaigning outside a certain period as well as campaigning within a
certain place. For unlimited expenditure for political advertising in
the mass media skews the political process and subverts democratic
self-government. What is bad is if the law prohibits campaigning by
214
certain candidates because of the views expressed in the ad.
Content regulation cannot be done in the absence of any compelling
reason.
Law Narrowly Drawn to Fit
Regulatory Purpose
The main purpose of §11(b) is regulatory. Any restriction on speech
is only incidental, and it is no more than is necessary to achieve its
purpose of promoting equality of opportunity in the use of mass
media for political advertising. The restriction on speech, as pointed
out in NPC, is limited both as to time and as to scope.
Petitioners and the dissenters make little of this on the ground that
the regulation, which they call a ban, would be useless any other
time than the election period. Petitioners state: "[I]n testing the
reasonableness of a ban on mountain-skiing, one cannot conclude
that it is limited because it is enforced only during the winter
season."22 What makes the regulation reasonable is precisely that it
applies only to the election period. Its enforcement outside the
period would make it unreasonable. More importantly, it should be
noted that a "ban on mountain skiing" would be passive in nature. It
is like the statutory cap on campaign expenditures, but is so unlike
the real nature of §11(b), as already explained.
Petitioners likewise deny that §11(b) is limited in scope, as they
make another quaint argument:
A candidate may court media to report and comment on
his person and his programs, and media in the exercise of
their discretion just might. It does not, however, follow
that a candidate's freedom of expression is thereby
enhanced, or less abridged. If Pedro is not allowed to
speak, but Juan may speak of what Pedro wishes to say,
the curtailment of Pedro's freedom of expression cannot
be said to be any less limited, just because Juan has the
freedom to speak.23
The premise of this argument is that §11(b) imposes a ban on media
political advertising. What petitioners seem to miss is that the
prohibition against paid or sponsored political advertising is only half
of the regulatory framework, the other half being the mandate of
the COMELEC to procure print space and air time so that these can
be allocated free of charge to the candidates.
Reform of The Marketplace of Ideas,
Not Permissible?
Petitioners argue that the reasoning of NPC is flawed, because it
rests on a misconception that Art. IX-C, §4 mandates the absolute
equality of all candidates regardless of financial status, when what
this provision speaks of is "equality of opportunity." In support of
this claim, petitioners quote the following from the opinion of the
Court written by Justice Feliciano:
The objective which animates Section 11(b) is the
equalizing, as far as practicable, the situations of rich and
poor candidates by preventing the former from enjoying
the undue advantage offered by huge campaign "war
chests."24
The Court meant equalizing media access, as the following sentences
which were omitted clearly show:
Section 11(b) prohibits the sale or donation of print space
and air time "for campaign or other political purposes"
except to the Commission on Elections ("Comelec"). Upon
the other hand, Sections 90 and 92 of the Omnibus
Election Code require the Comelec to procure "Comelec
space" in newspapers of general circulation in every
province or city and "Comelec time" on radio and
television stations. Further, the Comelec is statutorily
commanded to allocate "Comelec space" and "Comelec
time" on a free of charge, equal and impartial basis among
all candidates within the area served by the newspaper or
radio and television station involved.25
On the other hand, the dissent of Justice Romero in the present
case, in batting for an "uninhibited market place of ideas," quotes
the following from Buckley v. Valeo:
[T]he concept that the government may restrict the
speech of some elements in our society in order to
enhance the relative voice of the others is wholly foreign
to the First Amendment which was designed to "secure
the widest possible dissemination of information from
diverse and antagonistic sources" and "to assure
unfettered interchange of ideas for the bringing about of
political and social changes desired by the people.26
But do we really believe in that? That statement was made to justify
striking down a limit on campaign expenditure on the theory that
money is speech. Do those who endorse the view that government
may not restrict the speech of some in order to enhance the relative
voice of others also think that the campaign expenditure limitation
found in our election laws27 is unconstitutional? How about the
principle of one person, one vote,28 is this not based on the political
equality of voters? Voting after all is speech. We speak of it as the
voice of the people — even of God. The notion that the government
may restrict the speech of some in order to enhance the relative
voice of others may be foreign to the American Constitution. It is not
to the Philippine Constitution, being in fact an animating principle of
that document.
Indeed, Art. IX-C, §4 is not the only provision in the Constitution
mandating political equality. Art. XIII, §1 requires Congress to give
the "highest priority" to the enactment of measures designed to
reduce political inequalities, while Art. II, §26 declares as a
fundamental principle of our government "equal access to
opportunities for public service." Access to public office will be
denied to poor candidates if they cannot even have access to mass
media in order to reach the electorate. What fortress principle
trumps or overrides these provisions for political equality?
Unless the idealism and hopes which fired the imagination of those
who framed the Constitution now appear dim to us, how can the
electoral reforms adopted by them to implement the Constitution,
of which §11(b) of R.A. No. 6646, in relation to §§90 and 92 are part,
be considered infringements on freedom of speech? That the
framers contemplated regulation of political propaganda similar to
§11(b) is clear from the following portion of the sponsorship speech
of Commissioner Vicente B. Foz:
MR. FOZ. . . . Regarding the regulation by the Commission
of the enjoyment or utilization of franchises or permits for
the operation of transportation and other public utilities,
media of communication or information, all grants, special
privileges or concessions granted by the Government,
there is a provision that during the election period, the
Commission may regulate, among other things, the rates,
reasonable free space, and time allotments for public
information campaigns and forums among candidates for
the purpose of ensuring free, orderly, honest and peaceful
elections. This has to do with the media of communication
or information.29
On the Claim that the Reforms
Have Been Ineffectual
Petitioners contend that §11(b) is not a reasonable means for
achieving the purpose for which it was enacted. They claim that
instead of levelling the playing field as far as the use of mass media
for political campaign is concerned, §11(b) has abolished it. They
further claim that §11(b) does not prevent rich candidates from
using their superior resources to the disadvantage of poor
candidates.
215
All this is of course mere allegation. As stated in the beginning, what
petitioners claim to be the nation's experience with the law is
merely argumentation against its validity. The claim will not bear
analysis, however. Assuming that rich candidates can spend for
parades, rallies, motorcades, airplanes and the like in order to
campaign while poor candidates can only afford political ads, the
gap between the two will not necessarily be reduced by allowing
unlimited mass media advertising because rich candidates can spend
for other propaganda in addition to mass media advertising.
Moreover, it is not true that §11(b) has abolished the playing field.
What it has done, as already stated, is merely to regulate its use
through COMELEC-sponsored advertising in place of advertisements
paid for by candidates or donated by their supporters.
It is finally argued that COMELEC Space and COMELEC Time are
ineffectual. It is claimed that people hardly read or watch or listen to
them. Again, this is a factual assertion without any empirical basis to
support it. What is more, it is an assertion concerning the adequacy
or necessity of the law which should be addressed to Congress. Well-
settled is the rule that the choice of remedies for an admitted social
malady requiring government action belongs to Congress. The
remedy prescribed by it, unless clearly shown to be repugnant to
fundamental law, must be respected.30 As shown in this case, §11(b)
of R.A. 6646 is a permissible restriction on the freedom of speech, of
expression and of the press.
Dissenting, Justice Panganiban argues that advertising is the most
effective means of reaching voters. He adverts to a manifestation of
the COMELEC lawyer that the Commission "is not procuring
[Comelec Space] by virtue of the effects of the decision of this
Honorable Court in the case of Philippine Press Institute (PPI)
vs. Comelec, 244 SCRA 272."31
To be sure, this Court did not hold in PPI v. COMELEC that it should
not procure newspaper space for allocation to candidates. What it
ruled is that the COMELEC cannot procure print space without
paying just compensation. Whether by its manifestation the
COMELEC meant it is not going to buy print space or only that it will
not require newspapers to donate free of charge print space is not
clear from the manifestation. It is to be presumed that the
COMELEC, in accordance with its mandate under §11(b) of R.A. No.
6646 and §90 of the Omnibus Election Code, will procure print space
for allocation to candidates, paying just compensation to
newspapers providing print space.
In any event, the validity of a law cannot be made to depend on the
faithful compliance of those charged with its enforcement but by
appropriate constitutional provisions. There is a remedy for such
lapse if it should happen. In addition, there is the COMELEC Time
during which candidates may advertise themselves. Resolution No.
2983-A of the COMELEC provides:
Sec. 2. Grant of "Comelec Time." — Every radio
broadcasting and television station operating under
franchise shall grant to Commission, upon payment of just
compensation, at least thirty (30) minutes of prime time
daily, to be known as "Comelec Time", effective February
10, 1998 for candidates for President, Vice-President and
Senators, and effective March 27, 1998, for candidates for
local elective offices, until May 9, 1998. (Emphasis added).
Failure of Legislative Remedy Bespeaks
of More than Congressional Inaction
The fact is that efforts have been made to secure the amendment or
even repeal of §11(b) of R.A. No. 6646. No less than five bills32 were
filed in the Senate in the last session of Congress for this purpose,
but they all failed of passage. Petitioners claim it was because
Congress adjourned without acting on them. But that is just the
point. Congress obviously did not see it fit to act on the bills before it
adjourned.
We thus have a situation in which an act of Congress was found by
this Court to be valid so that those opposed to the statute resorted
to the legislative department. The latter reconsidered the question
but after doing so apparently found no reason for amending the
statute and therefore did not pass any of the bills filed to amend or
repeal the statute. Must this Court now grant what Congress denied
to them? The legislative silence here certainly bespeak of more than
inaction.
Test for Content-Neutral Restrictions33
In Adiong v. COMELEC34 this Court quoted the following from the
decision of the U.S. Supreme Court in a case sustaining a Los Angeles
City ordinance which prohibited the posting of campaign signs on
public property:
A government regulation is sufficiently justified if it is
within the constitutional power of the Government, if it
furthers an important or substantial governmental
interest; if the governmental interest is unrelated to the
suppression of free expression; and if the incident
restriction on alleged First Amendment freedoms is no
greater than is essential to the furtherance of that interest.
(Id., at 377, 20 L Ed 2d 672, 88 S Ct 1673. (City Council v.
Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S
Ct 2118 [1984])35
This test was actually formulated in United States v. O'Brien.36 It is an
appropriate test for restrictions on speech which, like §11(b), are
content-neutral. Unlike content-based restrictions, they are not
imposed because of the content of the speech. For this reason,
content-neutral restrictions are tests demanding standards. For
example, a rule such as that involved in Sanidad
v. COMELEC,37 prohibiting columnists, commentators, and
announcers from campaigning either for or against an issue in a
plebiscite must have a compelling reason to support it, or it will not
pass muster under strict scrutiny. These restrictions, it will be seen,
are censorial and therefore they bear a heavy presumption of
constitutional invalidity. In addition. they will be tested for possible
overbreadth and vagueness.
It is apparent that these doctrines have no application to content-
neutral regulations which, like §11(b), are not concerned with the
content of the speech. These regulations need only a substantial
governmental interest to support them.38 A deferential standard of
review will suffice to test their validity.
Justice Panganiban's dissent invokes the clear-and-present-danger
test and argues that "media ads do not partake of the 'real
substantive evil' that the state has a right to prevent and that
justifies the curtailment of the people's cardinal right to choose their
means of expression and of access to information." The clear-and-
present-danger test is not, however, a sovereign remedy for all free
speech problems. As has been pointed out by a thoughtful student
of constitutional law, it was originally formulated for the criminal
law and only later appropriated for free speech cases. For the
criminal law is necessarily concerned with the line at which innocent
preparation ends and a guilty conspiracy or attempt
begins.39 Clearly, it is inappropriate as a test for determining the
constitutional validity of laws which, like §11(b) of R.A. No. 6646, are
not concerned with the content of political ads but only with their
incidents. To apply the clear-and-present-danger test to such
regulatory measures would be like using a sledgehammer to drive a
nail when a regular hammer is all that is needed.
The reason for this difference in the level of justification for the
restriction of speech is that content-based restrictions distort public
debate, have improper motivation, and are usually imposed because
of fear of how people will react to a particular speech. No such
reasons underlie content-neutral regulations, like regulations of
time, place and manner of holding public assemblies under B.P. Blg.
880, the Public Assembly Act of 1985. Applying the O'Brien test in
this case, we find that §11(b) of R.A. No. 6646 is a valid exercise of
the power of the State to regulate media of communication or
information for the purpose of ensuring equal opportunity, time and
space for political campaigns; that the regulation is unrelated to the
suppression of speech; that any restriction on freedom of expression
216
is only incidental and no more than is necessary to achieve the THE POLITICAL AD BAN UNDER SECTION 11(B), R.A. 6646
purpose of promoting equality. CONSTITUTES PRIOR RESTRAINT, AND CARRIES A HEAVY
PRESUMPTION AGAINST VALIDITY.
The Court is just as profoundly aware as anyone else that discussion
of public issues and debate on the qualifications of candidates in an IV
election are essential to the proper functioning of the government
established by our Constitution. But it is precisely with this THE POLITICAL AD BAN IS NOT A REASONABLE NECESSARY
awareness that we think democratic efforts at reform should be MEANS TO ACHIEVE THE DESIRED END.
seen for what they are: genuine efforts to enhance the political
process rather than infringements on freedom of expression. The
A. INSTEAD OF "LEVELING THE
statutory provision involved in this case is part of the reform
PLAYING FIELD," INSOFAR AS THE USE
measures adopted in 1987 in the aftermath of EDSA. A reform-
OF MASS MEDIA FOR POLITICAL
minded Congress passed bills which were consolidated into what is
PURPOSES IS CONCERNED, THE
now R.A No. 6646 with near unanimity. The House of
POLITICAL AD BAN HAS ABOLISHED
Representatives, of which petitioner Pablo P. Garcia was a
THE PLAYING FIELD.
distinguished member, voted 96 to 1 (Rep. Eduardo Pilapil) in favor,
while the Senate approved it 19-0.40
B. THERE IS NO REASONABLE
NECESSITY FOR THE AD BAN, BECAUSE
In his recent book. The Irony of Free Speech, Owen Fiss speaks of "a
IT DOES NOT PREVENT THE RICH
truth that is full of irony and contradiction: that the state can be
CANDIDATE FROM USING HIS
both an enemy and a friend of speech; that it can do terrible things
SUPERIOR RESOURCES TO THE UNDUE
to undermine democracy but some wonderful things to enhance it
DISADVANTAGE OF THE POOR
as well."41 We hold R.A. No. 6646, §11(b) to be such a democracy-
CANDIDATE.
enhancing measure. For Holmes's marketplace of ideas can prove to
be nothing but a romantic illusion if the electoral process is badly
skewed, if not corrupted, by the unbridled use of money for C. THERE IS NO REASONABLE
campaign propaganda. NECESSITY FOR THE POLITICAL AD BAN
BECAUSE ADEQUATE SAFEGUARDS ARE
LEGALLY IN PLACE IN ORDER TO
The petition is DISMISSED.
PREVENT THE RICH CANDIDATE FROM
TAKING UNDUE ADVANTAGE OF HIS
SO ORDERED. SUPERIOR RESOURCES.

Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Kapunan and V

Martinez, JJ., concur.
THE POLITICAL AD BAN VIOLATES THE RIGHT OF THE
PEOPLE TO BE INFORMED ON MATTERS OF PUBLIC
CONCERN.

Separate Opinions VI

THERE IS NO NEED FOR "EMPIRICAL DATA" TO DETERMINE

WHETHER THE POLITICAL AD BAN OFFENDS THE
PUNO, J., separate concurring; CONSTITUTION OR NOT.

In G.R. No. 132231, petitioners assail the constitutionality of Sec. The Solicitor General and the petitioners-in-intervention likewise
11(b) of R.A. No. 6646 and Resolution No. 2974 of the COMELEC contend that section 11(b) of R.A. No. 6646 is unconstitutional
implementing said law. They contend: principally because it impairs freedom of speech and of the press.

I A quick glance at petitioners' arguments against section 11(b) of R.A.

THE POLITICAL AD BAN IS MOVED BY AN INVALID
LEGISLATIVE INTENT, ULTRA VIRES ON THE PART OF
CONGRESS, AND VIOLATIVE OF THE VERY
CONSTITUTIONAL PROVISION UPON WHICH IT IS SOUGHT
TO BE GROUNDED.
II
CONTRARY TO THE HOLDING IN NATIONAL PRESS CLUB,
THE POLITICAL AD BAN IS NOT LIMITED IN TIME AND
SCOPE OF APPLICATION.
A. THE POLITICAL AD BAN IS NOT LIMITED IN DURATION; IT
IS ABSOLUTE, ALL-ENCOMPASSING, COMPREHENSIVE AND
UNLIMITED.
B. THE POLITICAL AD BAN IS NOT LIMITED IN SCOPE OF
APPLICABILITY. INSOFAR AS THE CANDIDATE'S FREEDOM
TO EXPRESS THROUGH THE MASS MEDIA, IT IS ABSOLUTE,
ALL-EMCOMPASSING, COMPREHENSIVE AND UNLIMITED.
III
No. 6646 will show that they are mere rehash of arguments in the
NPC case. The lack of new arguments is a tribute to the brilliant
majority decision and equally enlightening dissenting opinions in
said case which petitioners now seek to reexamine. A repetition of
the NPC rationale is thus unnecessary.
I wish, however, to advert to the dissent of Madam Justice Romero
which cites Buckley v. Valeo,1 a 1976 case where a divided us
Supreme Court ruled that limits on campaign expenditures violate
the guarantee of freedom of speech. The essence of
the Buckley ruling is that "the concept that government may restrict
the speech of some elements of society in order to enhance the
relative voice of others is wholly foreign to the First Amendment . .
."2
A reading of American legal literature, however, will reveal
that Buckley has been widely criticized by libertarians because its
pro-business thrust has pernicious effects on efforts to achieve
much needed electoral reforms.3 Typical of the criticisms is the
observation of wright that the Buckley Court ". . . has given
protection to the polluting effect of money in election campaigns. As
a result, our political system may not use some of its most powerful
defenses against electoral inequalities."4 The barrage of criticisms
caused the US Supreme Court to modify its absolute support for free
217
speech in Buckley. In the 1990 case of Austin v. Michigan State
Chamber of Commerce,5 it upheld the constitutionality of a Michigan
law that prohibited corporations from using corporate treasury
funds to support or oppose any candidate for office. Retreating
from Buckley, the Austin Court recognized the state's compelling
interest in regulating campaign expenditure. Writing for the
majority, Mr. Justice Thurgood Marshall, an icon of libertarians
declared: "Michigan identified as a serious danger the significant
possibility that corporate political expenditures will undermine the
integrity of the political process, and it has implemented a narrowly
tailored solution to that problem." In his concurring opinion, the last
of the libertarians in the US High Court, Mr. Justice Brennan, held:
"In MCFL, we held that a provision of the Federal Election Campaign
Act of 1971 (FECA), . . . similar to the Michigan law at issue here,
could not be applied constitutionally to a small, anti-abortion
advocacy group. In evaluating the First Amendment challenge,
however, we acknowledged the legitimacy of Congress' concern that
organizations that amass great wealth in the economic marketplace
should not gain unfair advantage in the political marketplace."
There is less reason to apply the discredited Buckley decision in our
setting. Section 11(b) of R.A. No. 6646 is based on provisions of our
Constitution which have no counterparts in the US Constitution.
These provisions are:
Art. II, sec. 26. The State shall guarantee equal access to
opportunities for public service, and prohibit political
dynasties as may be defined by law.
Art. XIII, sec. 1. The Congress shall give highest priority to
the enactment of measures that protect and enhance the
right of all the people to human dignity, reduce social,
economic, and political inequalities, and remove cultural
inequities by equitably diffusing wealth and political power
for the common good.
Art. IX (c) (4). The Commission may, during the election
period, supervise or regulate the enjoyment or utilization
of all franchises or permits from the operation of
transportation and other public utilities, media of
communication or information, all grants, special
privileges, or concessions granted by the Government or
any subdivision, agency, or instrumentality thereof,
including any government-owned or controlled
corporation or its subsidiary. Such supervision or
regulation shall aim to ensure equal opportunity, time, and
space, and the right to reply, including reasonable equal
rates therefor for public information campaigns and forms
among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible
elections.
A member of the Constitutional Commission, now our distinguished
colleague, Mr. Justice Hilario Davide, Jr., well explained these new
wrinkles in our Constitution, viz.:
xxx xxx xxx
Aware of the lamentable fact in the Philippines; no gap
between these two unavoidable extremes of society is
more pronounced than that in the field of politics, and ever
mindful of the dire consequences thereof, the framers of
the present Constitution saw it fit to diffuse political power
in the social justice provisions. Ours has been a politics of
the elite, the rich, the powerful and the pedigreed. The
victory of a poor candidate in an election is almost always
an exception. Arrayed against the vast resources of
wealthy opponent, the former, even if he is the most
qualified and competent, does not stand a fighting chance.
Of course, there have been isolated instances — but yet so
few and far between — when poor candidates made it.6
He stressed that this thrust for political equality is an improvement
of our past Constitutions which merely sought to establish equality
in the economic and social fields.7
It is difficult to think why such an egalitarian law like Section 11(b) of
R.A. No. 6646 should be condemned when it equalizes the political
opportunities of our people. The gap between the perfumed few
and the perspiring many in our country is galloping at a frightening
pace. As the cost of election spirals at an immoral speed, levers of
the political power are wielded more and more by the wealthy
alone. The subject law attempts to break this control by reducing the
purchasing power of the peso of the rich in the political freemarket.
Political equality is a touchstone of democracy. The guaranty of
freedom of speech should not be used to frustrate legislative
attempts to level the playing field in politics. R.A. No. 6646 does not
curtail speech as it no more than prevents the abusive use of wealth
by the rich to frustrate the poor candidate's access to media. It
seems to me self-evident that if Congress can regulate the abuse of
money in the economic market so can it regulate its misuse in the
political freemarket. Money talks in politics but it is not the specie of
speech sanctified in our Constitution. If we allow money to
monopolize media, the political freemarket will cease to be a market
of ideas but a market for influence by the rich. I do not read freedom
of speech as meaning more speech for the rich for freedom of
speech is not guaranteed only to those who can afford its exercise.
There ought to be no quarrel with the proposition that freedom of
speech will be a chimera if Congress does not open the
opportunities for its exercise. When the opportunities for its exercise
are obstructed by the money of the rich, it is the duty of Congress to
regulate the misuse of money — for in the political marketplace of
ideas, when money win, we lose.
Let us not also close our eyes to the reality that in underdeveloped
countries where sharp disparities in wealth exist, the threat to
freedom of speech comes not only from the government but from
vested interests that own and control the media. Today, freedom of
speech can be restrained not only by the exercise of public power
but also by private power. Thus, we should be equally vigilant in
protecting freedom of speech from public and private restraints. The
observation of a legal scholar is worth meditating, viz.: "With the
development of private restraints on free expression, the idea of a
free marketplace where ideas can compete on their merits has
become just as unrealistic in the twentieth century as the economic
theory of perfect competition. The world in which an essentially
rationalist philosophy of the first amendment was born has vanished
and what was rationalism is now romance."8
I vote to dismiss the petitions.
Melo, J., concurs.
VITUG, J., separate opinion;
I share the opinion of those who continue to uphold the decision in
the National Press Club vs. Commission on Elections case that has
sustained the validity of Section 11(b) of Republic Act ("R.A.") No.
6646, otherwise also known as the Electoral Reforms Law of 1987.
Petitioners, in seeking a re-examination of the decision of this Court
in the National Press Club case, no more than invoke anew Section 4,
Article III, of the Constitution to the effect that —
No law shall be passed abridging the freedom of speech, of
expression, or of press, on the right of the people
peaceably to assemble and petition the government for
redress of grievances.
It is their submission that Section 11(b) of R.A. No. 6646 and Section
18(e) of Comelec Resolution No. 2974 should be declared
unconstitutional. These contested provisions state:
218
 Sec. 11. Prohibited forms of election propaganda. — In
addition to the forms of election propaganda prohibited
under Section 85 of Batas Pambansa Blg. 881, it shall be
unlawful;
xxx xxx xxx
b) for any newspapers, radio broadcasting or television
station, other mass media, or any person making use of
the mass media to sell or give free of charge print space or
air time for campaign or other political purposes except to
the Commission as provided under Sections 90 and 92 of
Batas Pambansa Blg. 881. Any mass media columnist,
commentator, announcer or personality who is a
candidate for any elective public office shall take a leave of
absence from his work as such during the campaign
period.
Sec. 18. Prohibited forms of election propaganda. — It is
unlawful
xxx xxx xxx
e. For any radio broadcasting or television station or any
person making use of broadcast media to sell or give, free
of charge, any air time for campaign and other political
purposes, except thru "COMELEC Time," allotted to the
Commission pursuant to Section 92 of the Omnibus
Election Code.
I see, however, in the above provisions a faithful compliance and
due observance of the language, intent and spirit of the Constitution
itself, Article IX(C)(4) of which reads:
Sec. 4. The Commission [on Elections] may, during the
election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of
transportation and other public utilities, media of
communication or information, all grants, special
privileges, or concessions granted by the Government or
any subdivision, agency, or instrumentality thereof,
including any government-owned or controlled
corporation or its subsidiary. Such supervision or
regulation shall aim to ensure equal opportunity, time, and
space, and the right to reply, including reasonable, equal
rates therefor, for public information campaigns and
forums among candidates in connection with the objective
of holding free, orderly, honest, peaceful, and credible
elections. (Emphasis supplied.)
It might be worth mentioning that Section 26, Article II, of the
Constitution also states that the "State shall guarantee equal access
to opportunities for public service, and prohibit political dynasties as
may be defined by law." I see neither Article IX (C)(4) nor Section 26,
Article II, of the Constitution to be all that adversarial or
irreconcilably inconsistent with the right of free expression. In any
event, the latter, being one of general application, must yield to the
specific demands of the Constitution. The freedom of expression
concededly holds, it is true, a vantage point in the hierarchy of
constitutionally-enshrined rights but, like all fundamental rights, it is
not without limitations.
The case is not about a fight between the "rich" and the "poor" or
between the "powerful" and the "weak" in our society but it is to me
a genuine attempt on the part of Congress and the Commission on
Elections to ensure that all candidates are given an equal chance to
media coverage and thereby be equally perceived as giving real life
to the candidates' right of free expression rather than being viewed
as an undue restriction of that freedom. The wisdom in the
enactment of the law, i.e., that which the legislature deems to be
the best in giving life to the Constitutional mandate, is not for the
Court to question; it is a matter that lies beyond the normal
prerogatives of the Court to pass upon.
I vote to dismiss the petition.
Melo and Purisima, JJ., concur.
ROMERO, J., dissenting;
A foolish consistency is the hobgoblin of little minds . . . .1
Not wishing to be held hostage by Emerson's "hobgoblin," I dare to
break away from a past position and encapsulize my ruminations in
a dissenting opinion.
When, If At All, May The Court Reverse Itself?
The majority, reiterating the 1992 decision NPC v. COMELEC, holds
that Section 11(b) of R.A. 6646 is a reasonable restriction on the
freedom of expression guaranteed by the Constitution. 2 Our six-year
experience with the ban on political advertisements, however,
constrains me to dissent. While it is desirable, even imperative, that
this Court, in accordance with the principle of stare decisis, afford
stability to the law by hewing to doctrines previously established,
said principle was never meant as an obstacle to the abandonment
of established rulings where abandonment is demanded by public
interest and by circumstances.3 Reverence for precedent simply as
precedent cannot prevail when constitutionalism and public interest
demand otherwise. Thus, a doctrine which should be abandoned or
modified should be abandoned or modified accordingly. More
pregnant than anything else is that the court should be right.4
I submit that our country's past experience in the 1992 and 1995
elections, as well as contemporary events, has established that
Section 11(b) of R.A. 6646 falls short of the rigorous and exacting
standard for permissible limitation on free speech and flee press.
In 1992, this Court, in NPC v. COMELEC, gave constitutional
imprimatur to Section 11(b), pronouncing the same to be authorized
by Article IX(C), Section 4 of the Constitution which reads:
Sec. 4. The Commission may, during the election period,
supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation
and other public utilities, media of communication or
information, all grants, special privileges, or concessions
granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned
or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply,
including reasonable, equal rates therefor, for public
information campaigns and forms among candidates in
connection with the objective of holding free, orderly,
honest, peaceful and credible elections.
Prefatorily, it must be borne in mind that Article IX(C), Section 4 of
the Constitution, is essentially an express manifestation of the
comprehensive police power of the State.
Police power, it has been declared often enough, rests upon public
necessity and upon the right of the state and the public to self-
protection. For this reason, its scope expands and contracts with
changing needs.5 In the words of Mr. Justice Isagani A. Cruz:
Police power is dynamic, not static, and must move with
the moving society it is supposed to regulate. Conditions
change, circumstances vary; and to every such alteration
the police power must conform. What may be sustained as
a valid exercise of the power now may become
constitutional heresy in the future under a different factual
setting. Old notions may become outmoded even as new
ideas are born, expanding or constricting the limits of the
police power. For example, police measures validly
enacted fifty years ago against the wearing of less than
sedate swimsuits in public beaches would be laughed out
219
 of court in these days of permissiveness. . . (T)he police
power continues to change even as constraints on liberty
diminish and private property becomes more and more
affected with public interest and therefore subject to
regulation" (Emphasis ours).6
Thus, when the temper and circumstances of the times necessitate a
review, this Court should not hesitate to reverse itself, even on
constitutional issues; for the legal problems with which society is
beset continually cannot be merely considered in the abstract, but
must be viewed in light of the infinite motley facets of human
experience. As aptly stated by Mr. Justice Holmes, "The life of the
law has not been logic: it has been experience."
By way of illustration, we first held, in the celebrated Flag Salute
Case,7 that:
the flag is not an image but a symbol of the Republic of the
Philippines, an emblem of national sovereignty, of national
unity and cohesion and of freedom and liberty which it and
the Constitution guarantee and protect. Under a system of
complete separation of church and state in the
government, the flag is utterly devoid of any religious
significance. Saluting the flag does not involve any religious
ceremony. The flag salute is no more a religious ceremony
than the taking of an oath of office by a public official or by
a public candidate for admission to the bar.
xxx xxx xxx
The children of Jehovah's Witnesses cannot be exempted
from participation in the flag ceremony. They have no valid
right to such exemption. Moreover, exemption to the
requirement will disrupt school discipline and demoralize
the rest of the school population which by far constitute
the great majority.
The freedom of religious belief guaranteed by the
Constitution does not and cannot mean exemption from or
non-compliance with reasonable and non-discriminatory
laws, rules and regulations promulgated by competent
authority.
The Court further predicted that exempting Jehovah's Witnesses
from participating in the flag ceremony would ultimately lead to a
situation wherein:
[T]he flag ceremony will become a thing of the past or
perhaps conducted with very few participants, and the
time will come when we would have citizens untaught and
uninculcated in and not imbued with reverence for the flag
and love of country, admiration for national heroes, and
patriotism-a pathetic, even tragic situation, and all
because a small portion of the school population imposed
its will, demanded and was granted an exemption.
Thirty-two years later, events caught up with the changing political
climate, such that an undivided Court pronounced, in Ebralinag
v. The Division Superintendent of Schools of Cebu8 that:
the idea that one may be compelled to salute the flag, sing
the national anthem, and recite the patriotic pledge,
during a flag ceremony on pain of being dismissed from
one's job or of being expelled from school, is alien to the
conscience of the present generation of Filipinos who cut
their teeth on the Bill of Rights which guarantees their
right to free speech and the free exercise of religious
profession and worship.
xxx xxx xxx
The sole justification for a prior restraint or limitation on
the exercise of religious freedom is the existence of a
grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals,
public health or any other legitimate public interest, that
the State has a right (and duty) to prevent. Absent such a
threat to public safety, the expulsion of petitioners from
the schools is not justified.
The Court held that its earlier prediction of dire consequences had
not come to pass. It concluded that exempting Jehovah's Witnesses
from attending flag ceremonies would not produce a nation
"untaught and uninculcated in and not imbued with reverence for
the flag and love of country, admiration for national heroes, and
patriotism."
In much the same manner, in the early case of People v. Pomar,9 the
Court struck down as violative of the freedom of contract, a statute
prescribing a thirty-day vacation with pay both before and after
confinement arising from pregnancy. The Court said:
The rule in this jurisdiction is, that the contracting parties
may establish any agreements, terms, and conditions they
may deem advisable, provided they are not contrary to
law, morals or public policy.
Citing American cases that espoused the prevailing laissez
faire doctrine, the Court ruled that the right to contract about one's
affairs is a part of the liberty of the individual guaranteed by the due
process clause. The Court also cited the "equality of right" principle,
holding that "(i)n all such particulars the employer and the employee
have equality of right, and any legislation that disturbs that equality
is an arbitrary interference with the liberty of contract, which no
government can legally justify in a free land . . . Police power, the
Court conceded, is an expanding power; but it cannot grow faster
than the fundamental law of the state . . . If the people desire to
have the police power extended and applied to conditions and
things prohibited by the organic law, they must first amend that
law.10
Sixteen years later, the validity of the above pronouncement was
rejected by the Court in Antamok Goldfields Mining
Co. v. CIR,11 which rationalized its volte-face stance, thus: "(i)n the
midst of changes that have taken place, it may likewise be doubted if
the pronouncement made by this court in the case of People
v. Pomar . . . still retains its virtuality as a living principle. The policy
of laissez faire has to some extent given way to the assumption by
the government of the right of intervention even in contractual
relations affected with public interests."
Similarly, events subsequent to the Court's ruling in Avelino
v. Cuenco12 impelled the Court to reverse its original position. In this
case, the Court initially refused to take cognizance of the raging
controversy to determine who was the rightful president of the
Philippine Senate, ruling that in view of the separation of powers,
the question was a political one not within its jurisdiction. Despite
such a ruling, almost one-half of the members of the Senate refused
to acknowledge Mariano Cuenco as the acting President, as a result
of which legislative work came to a standstill. In the words of Justice
Perfecto, "the situation has created a veritable national crisis, and it
is apparent that solution cannot be expected from any quarter other
than this Supreme Court. . . . The judiciary ought to ripen into
maturity if it has to be true to its role as spokesman of the collective
conscience, of the conscience of humanity." The Court, thus,
assumed jurisdiction over the case, rationalizing that supervening
events justified its intervention.
From the foregoing, it can be seen that the inexorable march of
events, and the liberalizing winds of change may very well signal a
needed shift in our conception of the permissible limits of regulation
in the name of police power. Verily, while the validity of NPC
v. COMELEC may have been etched on granite at the time of its
promulgation, events subsequent thereto now call into question the
very underpinnings of said ponencia. To my mind, the hoary maxim
that "time upsets many fighting faiths" still holds true, and the Court
must be ever resilient and adaptable in order to meet the protean
complexities of the present and future generation.
220
In NPC v. COMELEC, the Court held that:
(N)o presumption of invalidity arises in respect of exercises
of supervisory or regulatory authority on the part of the
Comelec for the purpose of securing equal opportunity
among candidates for political office, although such
supervision or regulation may result in some limitation of
the right of free speech and free press. For supervision or
regulation of the operations of media enterprises is
scarcely conceivable without such accompanying
limitation. Thus, the applicable rule is the general, time-
honored one — that a statute is presumed to be
constitutional and that the party asserting its
unconstitutionality must discharge the burden of clearly
and convincingly proving that assertion.
This upends the familiar holding that "any system of prior restraint
of expression comes to this Court bearing a heavy presumption
against its constitutional validity, with the Government carrying a
heavy burden of showing justification for the enforcement of such a
restraint."13 This presumption was even reiterated in the recent case
of Iglesia ni Cristo v. CA,14 wherein we ruled that "deeply ensconced
in our fundamental law is its hostility against all prior restraints on
speech . . . Hence, any act that restrains speech is hobbled by the
presumption of invalidity and should be greeted with furrowed
brows. It is the burden of the respondent . . . to overthrow this
presumption. If it fails to discharge this burden, its act of censorship
will be struck down." NPC v. COMELEC, insofar as it bestows a
presumption of validity upon a statute authorizing COMELEC to
infringe upon the right of free speech and free press, constitutes a
departure from this Court's previous rulings as to mandate its re-
examination.
In this connection, it bears emphasis that NPC v. COMELEC was the
product of a divided court, marked as it was by the strong dissents of
Mr. Justices Cruz, Gutierrez, and Paras. This fact gains significance
when viewed in light of the changes in the composition of the court.
While a change in court composition, per se, does not authorize
abandonment of decisional precedents, it is apropos to keep in mind
the pronouncement by the Court in Philippine Trust Co. and Smith,
Bell and Co. v. Mitchell.15 which reads as follows:
Is the court with new membership compelled to follow
blindly the doctrine of the Velasco case? The rule of stare
decisis is entitled to respect. Stability in the law,
particularly in the business field, is desirable. But
idolatrous reverence for precedent, simply as precedent,
no longer rules. More important than anything else is that
the court should be right. (Emphasis ours)
Are The Restrictions Imposed by Sec. 11(b) Of R.A.
6646 on Freedom of Expression Valid?
Preliminaries having been disposed of, we proceed to the crux of the
matter. Freedom of speech has been defined as the liberty to know,
to utter and to argue freely according to conscience, above all
liberties. It thus includes, not only the right to express one's views,
but also other cognate rights relevant to the free communication of
ideas, not excluding the right to be informed on matters of public
concern.
The Court, in NPC v. COMELEC, found the restrictions imposed by
Section 11(b) on the freedom of expression, to be valid. First, the
prohibition is limited in the duration of its applicability and
enforceability to election periods. Precisely, this is what makes the
prohibition more odious. It is imposed during the campaign period
when the electorate clamors for more and accurate information as
their basis for intelligent voting. To restrict the same only defeats
the purpose of holding electoral campaigns — to inform the
qualified voter of the qualifications of candidates for public office, as
well as the ideology and programs of government and public service
they advocate, to the end that when election time comes, the right
of suffrage may be intelligently and knowingly, if not always wisely,
exercised. Opening all avenues of information to the estimated 36.4
million voters is crucial for their intelligent exercise of the right of
suffrage in the May 11 polls, considering that they will be voting for
an average of thirty elective positions.16
Second, the prohibition is of limited application, as the same is
applied only to the purchase and sale of print space and air time for
campaign or other political purposes. "Section 11(b) does not
purport in any way to restrict the reporting by newspapers or radio
or television stations of news or newsworthy events relating to
candidates, their qualifications, political parties and programs of
government." It does not reach commentaries and expressions of
belief or opinion by reporters or broadcasters or editors or
commentators or columnists in respect of candidates, their
qualifications, and programs and so forth. To be sure, newspapers,
radio, and television stations may not be restricted from reporting
on candidates, their qualifications, and programs of government,
yet, admittedly, the freedom of expression of the candidates
themselves in the manner they choose to, is restricted. Candidates
are thereby foreclosed from availing of the facilities of mass media,
except through the filtering prism of the COMELEC.
Not to be overlooked is the stark truth that the media itself is
partisan. In a study17 commissioned by the COMELEC itself to
determine whether certain newspapers adhered to the principles of
fairness and impartiality in their reportage of the presidential
candidates in the 1992 elections, the results disclosed that
newspapers showed biases for or against certain candidates. Hence,
the contention that "Section 11(b) does not cut off the flow of media
reporting, opinion or commentary about candidates, their
qualifications and platforms and promises" simply is illusory.
Editorial policy will always ensure that favored candidates receive
prominent coverage while less favored ones will get minimal
exposure, if at all. This underscores the need to give candidates the
freedom to advertise, if only to counteract negative reporting with
paid advertisements, which they cannot have recourse to with the
present prohibition. Worse, the ban even encourages corruption of
the mass media by candidates who procure paid hacks,
masquerading as legitimate journalists, to sing them paeans to the
high heavens. Wittingly or unwittingly, the mass media, to the
detriment of poor candidates, occasionally lend themselves to the
manipulative devices of the rich and influential candidates.
Finally, it is alleged that while Section 11(b) prohibited the sale or
donation by mass media of print space or air time for campaign or
other political purposes, COMELEC, by way of exception, was
mandated to purchase print space or air time, which space and time
it was required to allocate, equally and impartially, among the
candidates for public office. Hence, whatever limitation was
imposed by Section 11(b) upon the right to free speech of the
candidates was found not to be unduly repressive or unreasonable
inasmuch as they could still realize their objective as long as it was
coursed through COMELEC. COMELEC it was that shall decide what,
who, which media to employ and the time allocation for the
candidates who signify their desire to avail of the agency's air time
and print space. Why accord to COMELEC such powers in the name
of supervision and regulation at the expense of the constitutionally
hallowed freedom of expression?
Given the conditions then prevailing, the Court's ruling in NPC
v. COMELEC may have been valid and reasonable; yet today, with
the benefit of hindsight, it is clear that the prohibition has become a
woeful hindrance to the exercise by the candidates of their
cherished right to free expression and concomitantly, a violation of
the people's right to information on matters of public concern. As
applied, it has given an undue advantage to well-known popular
candidates for office.
In the hierarchy of fundamental civil liberties, the right of free
expression occupies a preferred position,18the sovereign people
recognizing that it is indispensable in a free society such as ours.
Verily, one of the touchstones of democracy is the principle
that free political discussion is necessary if government is to remain
responsive to the will of the people. It is a guarantee that the people
will be kept informed at all times sufficiently to discharge the
awesome responsibilities of sovereignty.
221
Yet, it is also to be conceded that freedom of expression is not an
absolute right. The right or privilege of free speech and publication
has its limitations, the right not being absolute at all times and under
all circumstances. For freedom of speech does not comprehend the
right to speak whenever, however, and wherever one pleases, and
the manner, and place, or time of public discussion can be
constitutionally controlled.19
Still, while freedom of expression may not be immune from
regulation, it does not follow that all regulation is valid. Regulation
must be reasonable as not to constitute a repression of the freedom
of expression. First, it must be shown that the interest of the public
generally, as distinguished from that of a particular class requires
such regulation. Second, it must appear that the means used are
reasonably necessary for the accomplishment of the purpose, and
not unduly oppressive upon individuals.
As to the first, in NPC v. COMELEC, this Court declared that the ban
on political advertising aims to assure equality of opportunity to
proffer oneself for public service by equalizing, as far as practicable,
the situations of rich and poor candidates by preventing the former
from enjoying the undue advantage offered by huge campaign "war
chests."
While there can be no gainsaying the laudable intent behind such an
objective, the State being mandated to guarantee equal access to
opportunities for public service, the prohibition has had the opposite
effect. Instead of "equalizing" the position of candidates who offer
themselves for public office, the prohibition actually gives an unfair
advantage to those who have had wide media exposure prior to the
campaign period. Instead of promoting the interests of the public in
general, the ban promotes the interest of a particular class of
candidates, the prominent and popular candidates for public office.
What is in store for the relatively obscure candidate who wants to
pursue his candidacy? Eager to trumpet his credentials and program
of government, he finds himself barred from using the facilities of
mass media on his own. While incumbent government officials,
show business personalities, athletes and prominent media men
enjoy the advantage of name recall due to past public exposure, the
unknown political neophyte has to content himself with other fora,
which, given the limited campaign period, cannot reach the
electorate as effectively as it would through the mass media. To be
sure, the candidate may avail himself of "COMELEC Space" and
"COMELEC Time," but the sheer number of candidates does not
make the same an effective vehicle of communication. Not
surprisingly, COMELEC Chairman Pardo, at the Oral Argument held
by the Court en banc, admitted that no candidate has as yet applied
for COMELEC air time and space.
More telling, the celebrities are lavished with broader coverage from
newspapers, radio and television stations, as well as via the
commentaries and expressions of belief or opinion by reporters,
broadcasters, editors, commentators or columnists, as they are
deemed more newsworthy by media, thus generating a self-
perpetuating cycle wherein political unknowns, who may be more
deserving of public office, campaign in relative obscurity compared
to their more popular rivals. Instead of equalizing opportunities for
public service, the prohibition not only perpetuates political
inequality, but also invidiously discriminates against lesser-known
candidates.
While Article IX(C), Section 10 of the Constitution provides that
"(b)ona fide candidates for any public office shall be free from any
form of harassment and discrimination," Article IX(C), Section 4 is
nothing if not antithetical to the former provision as, in its
application, it is productive of a situation wherein political
neophytes are blatantly discriminated against. Much as we recognize
the basic canon in Constitutional construction that the Constitution
must be interpreted in such a way as to harmonize all its provisions
if the Charter is to be construed as a single, comprehensive
document and not as a series of disjointed articles or provisions, the
predictable effect is for one provision to negate the other.
As to the second requisite, experience shows that the ban on
political advertisements has not been reasonably necessary to
accomplish its desired end. First, there are more than 70 provinces,
more than 60 cities and more than a thousand municipalities spread
all over the archipelago. Previous elections have shown that the ban
on political advertising forces a candidate to conduct a nationwide
whistle-stop campaign to attain maximum exposure of his
credentials and his program of government. Obviously, this
necessitates tremendous resources for sundry expenses
indispensable for political campaigns, all within a limited period of
90 days. Given the enormous logistics needed for such a massive
effort, what are the chances for an impecunious candidate who
sincerely aspires for national office?
On the other hand, radio and television reach out to a great majority
of the populace more than other instruments of information and
dissemination, being the most pervasive, effective, and inexpensive.
A 30-second television advertisement, costing around P35,000.00 at
present rates, would, in an instant, reach millions of viewers around
the country in the comfort of their homes. Indeed, the use of
modern mass media gives the poor candidate the opportunity to
make himself known to the electorate at an affordable cost. Yet,
these means of communication are denied such candidates due to
the imagined apprehension that more affluent candidates may
monopolize the airwaves. This fear, however, need not materialize
as the COMELEC is precisely empowered to regulate mass media to
prevent such a monopoly. Likewise, the ceiling on election spending
imposed by law upon all candidates, regardless, will also serve as a
deterrent.
Second, the means employed is less than effective, for with or
without the ban, moneyed candidates, although similarly barred
from buying mass media coverage, are in a position to lavish their
funds on other propaganda activities which their lesser-endowed
rivals can ill-afford. Furthermore, we take judicial notice of the
inability of COMELEC to enforce laws limiting political advertising to
"common poster areas." Many places in cities have been ungainly
plastered with campaign materials of the better off candidates.
What use is there in banning political advertisements to equalize the
situation between rich and poor candidates, when the COMELEC
itself, by its failure to curb the political excesses of candidates,
effectively encourages the prevailing disparities? Why then single
out political advertising? What is the reasonable necessity of doing
so?
To be realistic, judicial notice must be taken of the fact that
COMELEC, in narrowing down its list of "serious" candidates,
considers in effect a candidate's capability to wage an effective
nationwide campaign — which necessarily entails possession and/or
availability of substantial financial resources. Given this requirement,
the objective of equalizing rich and poor candidates may no longer
find relevance, the candidates ultimately allowed to run being
relatively equal, as far as resources are concerned. Additionally, the
disqualification of nuisance candidates, allegedly due to their
inability to launch serious campaigns, itself casts doubt on the
validity of the prohibition as a means to achieve the state policy of
equalizing access to opportunities for public service. If poor and
unknown candidates are declared unfit to run for office due to their
lack of logistics, the political ad ban fails to serve its purpose, as the
persons for whom it has been primarily imposed have been shunted
aside and thus, are unable to enjoy its benefits.
It must be kept in mind that the holding of periodic elections
constitute the very essence of a republican form of government,
these being the most direct act and participation of a citizen in the
conduct of government. In this process, political power is entrusted
by him, in concert with the entire body of the electorate, to the
leaders who are to govern the nation for a specified period. To make
this exercise meaningful, it is the duty of government to see to it
that elections are free and honest and that the voter is unhampered
by overt and covert inroads of fraud, force and corruption so that
the choice of the people may be untrammelled and the ballot box an
accurate repository of public opinion. And since so many
imponderables may affect the outcome of elections — qualifications
of voters and candidates, education, means of transportation,
health, public discussion, private animosities, the weather, the
threshold of a voter's resistance to pressure — the utmost
222
ventilation of opinion of men and issues, through assembly,
association and organizations, both by the candidate and the voter,
becomes a sine qua non for elections to truly reflect the will of the
electorate.
With the prohibition on political advertisements except through the
Comelec space and time, how can a full discussion of men, issues,
ideologies and programs be realized? Article III, Section 4 of the
Constitution provides that "(n)o law shall be passed abridging the
freedom of speech, of expression, of the press, or the right of the
people peaceably to assemble and petition the government for
redress of grievances." Implicit in this guarantee is the right of the
people to speak and publish their views and opinions on political and
other issues, without prior restraint and/or fear of subsequent
punishment. Yet Section 11(b), by authorizing political
advertisements only via the COMELEC effectively prevents the
candidates from freely using the facilities of print and electronic
mass media to reach the electorate. A more blatant form of prior
restraint on the free flow of information and ideas can hardly be
imagined. To be sure, it does not constitute an absolute restriction,
but it is restriction nonetheless, as odious and insidious as any that
may be conceived by minds canalized in deepening grooves.
I hold that, given our experience in the past two elections, political
advertisements on radio and television would not endanger any
substantial public interest. Indeed, allowing advertisements would
actually promote public interest by furthering public awareness of
election issues. The objective, equalizing opportunities for public
service, while of some immediacy during election times, does not
justify curtailing the citizen's right of free speech and expression.
Not only must the danger be patently clear and pressingly
present but the evil sought to be avoided must be so
substantive as to justify a clamp over one's mouth or a
writing instrument to be stilled. For these reasons, any
attempt to restrict these liberties must be justified by clear
public interest, threatened not doubtfully or remotely but
by clear and present danger. The rational connection
between the remedy provided and the evil to be curbed,
which in other context might support legislation against
attack on due process grounds, will not suffice. These
rights rest on firmer foundation. Accordingly, whatever
occasion would restrain orderly discussion and persuasion,
at appropriate time and place, must have clear support in
public danger, actual or impending. Only the greatest
abuses, endangering permanent interests, give occasion
for permissible limitation.20
No such clear and present danger exists here as to justify banning
political advertisements from radio and television stations.
Past experience shows that the COMELEC has been hard put
effectively informing the voting populace of the credentials,
accomplishments, and platforms of government of the candidates.
There are 17,396 national and local elective public positions21 which
will be contested by an estimated 100,000 candidates22 on May 11,
1998. For national positions, the list has been trimmed down to 11
candidates for president, 9 candidates for vice-president, and 40
candidates for senator. It is difficult to see how the number of
candidates can be adequately accommodated by "COMELEC Space"
and "COMELEC Time." Resolution No. 2983 of the COMELEC, issued
in compliance with Section 92 of B.P. 881, mandates that at least
thirty minutes or prime time be granted to the Commission, free of
charge, from February 10, 1998 until May 9, 1998.23 Thirty minutes
of prime-time for eighty-nine days (89) is scarcely enough time to
introduce candidates to the voters, much less to properly inform the
electorate of the credentials and platforms of all candidates running
for national office. Let us be reminded that those running for local
elective positions will also need to use the same space and time
from March 27 to May 9, 1998, and that the COMELEC itself is
authorized to use the space and time to disseminate vital election
information.24Clearly, "COMELEC Space" and "COMELEC Time"
sacrifices the right of the citizenry to be sufficiently informed
regarding the qualifications and programs of the candidates. The net
effect of Section 11(b) is, thus, a violation of the people's right to be
informed on matters of public concern and makes it a palpably
unreasonable restriction on the people's right to freedom of
expression. Not only this, the failure of "Comelec Space" and
"Comelec Time" to adequately inform the electorate, only highlights
the unreasonableness of the means employed to achieve the
objective of equalizing opportunities for public service between rich
and poor candidates.
Again, NPC v. COMELEC finds Section 11(b) valid, as paid political
advertisements are allowed in fora other than modern mass media,
thus: "aside from Section 11(b) of R.A. 6646 providing for 'COMELEC
Space' and 'COMELEC Time,' Sections 9 and 10 of the same law
afford a candidate several venues by which he can fully exercise his
freedom of expression, including freedom of assembly." A
concurring opinion points to the mandate of COMELEC to encourage
non-political, non-partisan private or civic organizations to initiate
and hold in every city and municipality, public fora at which all
registered candidates for the same office may participate in, the
designation of common poster areas, the right to hold political
caucuses, conferences, meetings, rallies, parades, and other
assemblies, as well as the publication and distribution of campaign
literature. All these devices conveniently gloss over the fact that for
the electorate, as shown in surveys by the Ateneo de Manila
University's Center for Social Policy and Public Affairs, mass media
remains to be the most important and accessible source of
information about candidates for public office.
It must be borne in mind that the novel party-list system will be
implemented in the impending elections. The party-list system, an
innovation introduced by the 1987 Constitution in order to
encourage the growth of a multi-party system is designed to give a
chance to marginalized sectors of society to elect their
representatives to the Congress. A scheme aimed at giving
meaningful representation to the interests of sectors which are not
adequately attended to in normal legislative deliberations, it is
envisioned that system will encourage interest in political affairs on
the part of a large number of citizens who feel that they are
deprived of the opportunity to elect spokesmen of their own
choosing under the present system. It is expected to forestall resort
to extra-parliamentary means by minority groups which would wish
to express their interests and influence governmental policies, since
every citizen is given a substantial representation.25
Under R.A. 7941, known as the Party-List System Act, the labor,
peasant, fisherfolk, urban poor, indigenous cultural communities,
elderly, handicapped, women, youth, veterans, overseas worker and
professional sectors26 will have the opportunity to elect
representatives to Congress. With the prohibition on political
advertisements, however, those parties who wish to have their
candidates elected as sectoral representatives, are prevented from
directly disseminating their platforms of government through the
mass media. The ban on political advertisements thus serves as a
deterrent to the development of self-reliance, self-development,
logistical and organizational capability on the part of sectoral
parties/organizations, even as it inhibits them from reaching their
target audiences. What more effective way of depriving them of the
chance of consolidating a mass base sorely needed for a fair chance
of success in a highly competitive political exercise. Likewise, with
the inability of the candidates to reach the sectors they seek to
represent, the right of the people belonging to these sectors to be
informed on matters of concern to them is likewise violated.27
Finally, NPC v. COMELEC invokes the specter of the "captive
audience" to justify its stand against political advertisements.
Describing political advertisements as "appealing to the non-
intellective faculties of the captive and passive audience," it says
that anyhow, the only limitation imposed by Section 11(b) upon the
free speech of candidates is on their right to bombard the helpless
electorate with paid advertisements commonly repeated in the mass
media ad nauseam.
Suffice it to say that, with the exception of obscenity, seditious
speech, libel, and the like, it is not for this Court to determine what
the people may or may not watch or read. Even "mind-numbing"
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political advertisements are subject to the constitutional safeguard
of due process.
Freedom Of Speech Expression Remains A Fresh
and Vital Verity
The guarantee of the freedom of speech which has been defined by
Wendell Phillips as "the instrument and guarantee and the bright
and consummate flower of all liberty," has always been granted a
predominant status in the hierarchy of individual rights.28 It is
founded on the belief that the final end of the state was to make
men free to develop their faculties and that freedom to think as you
will and to speak as you think are means indispensable to the
discovery and spread of political truth.29 Its purpose is to preserve an
uninhibited marketplace of ideas where truth will ultimately
prevail.30 "An individual who seeks knowledge and truth must hear
all sides of the question, consider all alternatives, test his judgment
by exposing it to opposition and make full use of different minds.
Discussion must be kept open no matter how certainly true an
accepted opinion may be; many of the most widely accepted
opinions have turned out to be erroneous. Conversely, the same
principles apply no matter how false or pernicious the new opinion
may be; for the unaccepted opinion may be true and partially true;
and even if false, its presentation and open discussion compel a
rethinking and retesting of the accepted opinion.31 As applied to
instant case, this Court cannot dictate what the citizen may watch
on the ground that the same appeals only to his non-intellective
faculties or is mind-deadening and repetitive. A veritable "Big
Brother" looking over the shoulder of the people declaring: "We
know better what is good for you," is passé.
As to the puerile allegation that the same constitutes invasion of
privacy, making the Filipino audience a "captive audience," the
explosive growth of cable television and AM/FM radio will belie this
assertion. Today, the viewing population has access to 12 local TV
channels,32 as well as cable television offering up to 50 additional
channels. To maintain that political advertisements constitute
invasion of privacy overlooks the fact that viewers, with the surfeit
of channels, can easily skip to other TV channels during commercial
breaks — a fact which, coupled with the now ubiquitous remote
control device, has become the bane of advertisers everywhere.
The line between gaining access to an audience and forcing the
audience to hear is sometimes difficult to draw, leaving the courts
with no clearcut doctrine on issues arising from this kind of
intrusion. This is specially true in cases involving broadcast and
electronic media. The US cases cited as authorities on the captive
audience phenomenon, which, incidentally, did not involve the issue
of election campaigns,33 provide little guidance as to whether
freedom of speech may be infringed during the campaign period for
national elections on account of the individual's right to
privacy.34 Prudence would dictate against an infringement of the
freedom of speech if we are to take into consideration that an
election campaigns is as much a means of disseminating ideas as
attaining political office35 and freedom of speech has its fullest and
most urgent application to speech uttered during election
campaigns.36 In Buckley v. Valeo, a case involving the
constitutionality of certain provisions of the Federal Election
Campaign Act, the United States Supreme Court per curiam held
that:
the concept that the government may restrict the speech
of some elements in our society in order to enhance the
relative voice of the others is wholly foreign to the First
Amendment which was designed to "secure the widest
possible dissemination of information from diverse and
antagonistic sources" and "to assure unfettered
interchange of ideas for the bringing about of political and
social changes desired by the people. (emphasis
supplied) 37
The fear that the candidates will bombard the helpless electorate
with paid advertisements, while not entirely unfounded, is only to
be expected considering the nature of political campaigns. The
supposition however that "the political advertisements which will be
"introjected into the electronic media and repeated with mind
deadening frequency" are commonly crafted not so much to inform
and educate as to condition and manipulate, not so much to
provoke rational and objective appraisal of candidates' qualifications
or programs as to appeal to the intellective faculties of the captive
and passive audience" is not a valid justification for the infringement
of so paramount a right granted by the Constitution inasmuch as it is
the privilege of the electorate in a democratic society to make up
their own minds as to the merit of the advertisements presented.
The government derives its power from the people as the sovereign
and it may not impose its standards of what is true and what is false,
what is informative and what is not for the individual who, as a
"particle" of the sovereignty is the only one entitled to exercise this
privilege.
Government may regulate constitutionally protected speech in order
to promote a compelling interest if it chooses the least restrictive
means to further the said interest without unnecessarily interfering
with the guarantee of freedom of expression. Mere legislative
preference for one rather than another means for combating
substantive evils may well be an inadequate foundation on which to
rest regulations which are aimed at or in their operation diminish
the effective exercise of rights so necessary to maintenance of
democratic institutions.38
It should be noted that legislature has already seen fit to impose a
ceiling on the candidates' total campaign expenditures39 and has
limited the political campaign period to 90 days for candidates
winning for national office and 60 days for congressmen and other
local officials. With these restrictions, it cannot be gainsaid that the
constitutional provision on social justice has been sufficiently
complied with. We see no reason why another restriction, must be
imposed which only burdens the candidate and voters alike. To
make matters worse, we are not even certain as to the efficacy of
the "ad ban" in curtailing the feared consequences of the object of
its restriction. Of course, this is not to say that the law is being struck
down as unconstitutional mainly because it is efficacious or
inefficacious. If this is the only issue which confronts us, there would
have been no need to give due course to the petition inasmuch as
we would be inquiring as to the wisdom of the law and treading into
an area which rightfully belongs to the legislature. Verily, courts
cannot run a race of opinions upon points of right, reason and
expediency with the law-making power.40
Freedom of Expression Incompatible With Social Justice?
The constitutional question at hand is not just a simple matter of
deciding whether the "ad ban" is effective or ineffective in bridging
the financial disparity between the rich and poor candidates. Sec
11(b) of RA No. 6646 strikes at the very core of freedom of
expression. It is unconstitutional not because we are uncertain as to
whether it actually levels the playing field for the candidates but
because the means used to regulate freedom of expression is on all
points constitutionally impermissible. It tells the candidates when,
where and how to disseminate their ideas under pain of punishment
should they refuse to comply. The implications of the ban are indeed
more complex and far reaching than approximating equality among
the rich and poor candidates.
The primacy accorded the freedom of expression is a fundamental
postulate of our constitutional system. The trend as reflected in
Philippine and American decisions is to recognize the broadest scope
and assure the widest latitude to this guaranty. It represents a
profound commitment to the principle that debate of public issue
should be uninhibited, robust and wide open and may best serve its
high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are or even stirs people to
anger.41
The repression of expression in an attempt to level the playing field
between the rich and the poor candidates is not only unrealistic but
goes beyond the permissible limits of freedom of expression as
enshrined in the constitution. Social justice is a laudable objective
but it should not be used as a means to justify infringement of the
freedom of expression if it can be achieved by means that do not
224
unnecessarily trench on the individual's fundamental right. The case
of Guido v. Rural Progress Administration,42 is particularly
enlightening. In said case, we had occasion to state that:
Hand in hand with the announced principle, herein
invoked, that "the promotion of social justice to insure the
well being and economic security of all people should be
the concern of the state", is a declaration with which the
former should be reconciled, that "the Philippines is a
Republican state" created to secure to the Filipino people
"the blessings in independence under a regime of justice,
liberty and democracy." Democracy as a way of life
enshrined in the Constitution, embraces as its necessary
components freedom of conscience, freedom of
expression, and freedom in pursuit of happiness. . . . Social
justice does not champion division of property or equality
of economic status; what it and the Constitution do
guarantee are equality of economic opportunity, equality
of political rights, equality before the law, equality
between values given and received . . .
While we concede the possibility that the rich candidates may
dominate the airwaves to the detriment of the poor candidates, the
latter should not be prevented from replying. While they may be
restricted on account of their financial resources, they are not
denied access to the media altogether. This is what is meant by the
phrase "equal time, space, equal opportunity and the right of reply"
under Article IX (C)(4) of the 1987 Constitution which was inserted
by the framers of the Constitution as a reaction to a 1981 ruling of
the Supreme Court that when the president speaks over radio or
television, he speaks not as representative of his party but of the
people and therefore opposition parties have no right to demand
equal time.43
It is ironic that the guarantee of freedom of expression should be
pitted against the constitutional provision on social justice because
the freedom of speech is the most potent instrument of public
opinion, not to speak of its being the most effective weapon for
effecting political and social reforms. Certainly, an infringement of
the freedom of speech in a less than heroic attempt at attaining
social justice cannot be countenanced, for in the ultimate analysis
social justice cannot flourish if the people's right to speak, to hear, to
know and ask for redress of grievances is watered down.
A word on the intervenors' argument that Resolution No. 2983,
Section 2, insofar as it directs every radio broadcasting and
television station to provide COMELEC with air time free of charge
constitutes taking of private property for public use without just
compensation. The COMELEC, anticipating its vulnerability to said
challenge passed Resolution 2983-A on March 3, 1998 requiring that
it pay just compensation for its COMELEC time.
Buckley vs. Valeo and Existing US Jurisprudence
The novelist George Orwell once said, "In a society in which there is
no law, and in theory no compulsion, the only arbiter of behavior is
public opinion. But public opinion, because of the tremendous urge
to conformity in gregarious animals, is less tolerant than any other
system of law." For want of legislature to equalize the playing field
between the rich and the poor candidates, it has, by imposing a
complete prohibition on paid political advertisements, burned down
a house to roast a pig. For fear of accusations that it might be
treading into an area which rightfully belongs to the legislature, the
Court today, by sanctioning an unnecessary infringement on the
freedom of speech, has unwittingly allowed the camel's nose into
the tent.
My colleague, Justice Reynato Puno, in his separate opinion,
apparently overlooked the thrust of our dissenting opinion when we
quoted the case of Buckley v. Valeo.44 Lest we be misunderstood, we
have in no way relied on the Buckley v. Valeo case for the grant of
the instant petition inasmuch as it has never escaped our notice that
legislature has already seen fit to impose a ceiling on the candidates'
total campaign expenditures45 Precisely, we have repeatedly
emphasized in the dissenting opinion that we see no reason why
another restriction must be imposed on the constitutional guarantee
of freedom of speech which only burdens the candidates and
electorates alike when legislature has already taken steps to comply
with the constitutional provision on social justice by imposing a
ceiling on the candidates' total campaign expenditures and limiting
the campaign period to 90 days for candidates running for national
office and 60 days for congressmen and other local officials. We
have mentioned Buckley if only to underscore the fact that due to
the primacy accorded to freedom of speech, courts, as a rule are
wary to impose greater restrictions as to any attempt to curtail
speeches with political content. To preserve the sanctity of the
status accorded to the said freedom, the US Supreme Court has, in
fact, gone as far as invalidating a federal law limiting individual
expenditures of candidates running for political office.
In any case, to address some misconceptions about existing
jurisprudence on the matter, we now present a brief discussion on
Buckley and the preceding US cases. In the case of Buckley v. Valeo,
a divided US Supreme Court, per curiam held that a federal law
limiting individual contributions to candidates for office served the
state's compelling interest in limiting the actuality and appearance
of corruption. However a law limiting expenditures by candidates,
individuals and groups was held unconstitutional. The rationale for
the dichotomy between campaign expenditures and contributions
has been explained in this wise — campaign contributions are
marginal because they convey only an undifferentiated expression of
support rather than the specific values which motivate the support.
Expenditures, on the other hand, as directly related to the
expression of political views, are on a higher plane of constitutional
values. The Court, in noting that a more stringent justification is
necessary for legislative intrusion into protected speech said, "A
restriction on the amount of money a person or a group can spend
on political communication necessarily reduces the quantity of
expression by restricting the number of issues discussed, the depth
of their exploration, and the size of the audience reached. This is
because virtually every means of communicating in today's mass
society requires the expenditure of money."46
A more discerning scrutiny of the US cases following Buckley, would
show that while Buckley has been widely criticized, it has, to date,
never been modified, much less discredited. In California Medical
Association vs. FEC,47 a law limiting the amount an incorporated
association can contribute to a multi-candidate political committee
was upheld. The spending was viewed not as independent political
speech but rather as "speech by proxy," hence, the spending was
deemed analogous to group contributions which can be regulated.
In FEC vs. National Conservative Political Action Comm.48 the US
Supreme Court invalidated a section of the Presidential Election
Campaign Fund Act which makes it a criminal offense for
an independent political committee to spend more than $1,000 to
further the election of a presidential candidate who elects public
funding. National Conservative Political Action Committee (NCPAC)
and the Fund for a Conservative Majority (FCM), two political action
committees or PAC's, solicited funds in support of President
Reagan's 1980 presidential campaign. The PAC's spent these funds
on radio and television advertising in support of Reagan. The Court,
relying on Buckley v. Valeo and the distinction it drew between
expenditures and contributions, held that the independent
expenditures of the political committees were constitutionally
protected for they "produce speech at the core of the First
Amendment" necessitating a "rigorous standard of review." Justice
Rehnquist, for the court, likened the restriction to allowing a speaker
in a public hall to express his views while denying him use of the
amplifier. As in Buckley, independent expenditures, not coordinated
with candidates' political campaign, were seen as presenting a lesser
danger of political quid pro quos. The Court then proceeded to reject
efforts to support the statutory limitation on expenditures on the
basis of special treatment historically accorded to corporations
inasmuch as the terms of the Campaign Fund Act "apply equally to
an informal neighborhood group that solicits contributions and
spends money on a presidential election campaign as to the wealthy
and professionally managed PAC's."
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In the case of FEC v. Massachussets Citizens for Life (MCFL),49 a
provision of the Federal Election Campaign Act prohibiting direct
expenditure of corporate funds to a non-profit, voluntary political
association concerned with elections to public office was struck
down as unconstitutional. No compelling government interest was
found to justify infringement of protected political speech in this
case where a small voluntary political association, which had no
shareholders and was not engaged in business, refused to accept
contributions from either business corporations or labor unions.
In Austin v. Michigan Chamber of Commerce,50 the case cited by
Justice Puno, a Michigan statute prohibiting corporations from
making campaign contributions from their general treasury funds to
political candidates was held not to violate the first amendment
even though the statute burdened expressive activity mainly
because the statute was sufficiently narrowed to support its goal in
preventing political corruption or the appearance of undue influence
— it did not prohibit all corporate spending and corporations were
permitted to make independent expenditures for political purposes
from segregated funds but not from their treasuries. Notably, the
non profit corporation involved in this case, the Michigan Chamber of
Commerce (hereinafter referred to as the Chamber of Commerce),
lacked three of the distinctive features of MCFL, the organization
involved in the FEC vs. National Conservative Political Action
Comm51 case, namely: (1) The Chamber of Commerce, unlike MCFL,
was not formed just for the purpose of political expression (2) The
members of the Chamber of commerce had an economic reason for
remaining with it even though they might disagree with its politics
and (3) The Chamber of Commerce, unlike MCFL, was subject to
influence from business corporations which might use it as a conduit
for direct spending which would pose a threat to the political
marketplace.
From the foregoing, it should be obvious that Austin in fact supports
the holding in Buckley v. Valeo and "refines" it insofar as as it allows
the regulation of corporate spending in the political process if the
regulation is drawn with sufficient specificity to serve the compelling
state interest in reducing the threat that "huge corporate treasuries"
will distort the political process and influence unfairly the outcome
of elections.
The ad ban, undoubtedly, could hardly be considered as a regulation
drawn with sufficient specificity to serve compelling governmental
interest inasmuch as it imposes a complete prohibition on the use of
paid political advertisements except through Comelec time and
space despite the fact that Congress has already seen fit to impose a
ceiling on the candidates' total campaign expenditures. While it
seems a rather fair proposition that Congress may regulate the
misuse of money by limiting the candidates' total campaign
expenditures, it seems a rather curious supposition that Congress
through the ad ban can regulate the misuse of money by telling the
candidates how, when and where to use their financial resources for
political campaigns. Obviously, it is one thing to limit the total
campaign expenditures of the candidates and another to dictate to
them as to how they should spend it.
Freedom of expression occupies a preferred position in the hierarchy
of human values. The priority gives the liberty a sanctity and a
sanction not permitting dubious intrusions and it is the character of
the right, not the limitation which determines what standard
governs the choice. 52 Consequently, when the government defends
a regulation on speech as a means to redress past harm or prevent
anticipated harm, it must do more than simply "posit the existence
of the disease sought to be cured.53 It must demonstrate that the
recited harms are real, not merely conjectural and that the
regulation will alleviate these harms in a material way.54
As earlier pointed out, legislature has already seen fit to impose a
ceiling on the total campaign expenditures of the candidates and has
limited the campaign period for 90/60 days. We see no reason why
another restriction must be imposed which only burdens the
candidates and voters alike. The fact alone that so much time has
been devoted to the discussion as to whether the ad ban does in fact
level the playing field among the rich and poor candidates should be
a strong indication in itself that it is a dubious intrusion on the
freedom of expression which should not be countenanced.
Illegitimate and unconstitutional practices make their initial foothold
by furtive approaches and minimal deviations from legal modes of
procedure. Hence, courts must be extremely vigilant in safeguarding
the fundamental rights granted by the Constitution to the individual.
Since freedom of expression occupies a dominant position in the
hierarchy of rights under the Constitution, it deserves no less than
an exacting standard of limitation. Limitations on the guarantee
must be clearcut, precise and, if needed readily controllable,
otherwise the forces that press towards curtailment will eventually
break through the crevices and freedom of expression will become
the exception and suppression the rule.55 Sadly, the much vaunted
ad ban failed to live up to such standard and roseate expectations.
Freedom of Expression In Historical Context
At this juncture, as we celebrate the Centennial of our Philippine
Independence, it is timely to call to mind that wars and revolutions
have been fought, not only in our shores and in our time, but in
centuries past, halfway around the globe to keep these subject
rights inviolate. To stretch our memories, Spain's adamant denial of
basic freedoms to our hapless forefathers, among others, sparked
the Philippine revolution. Jose Rizal, in "Filipinas Despues de Cien
Años"56 described the reform a sine quibus non, saying, "The
minister, . . . who wants his reforms to be reforms, must begin by
declaring the press in the Philippines free." The Filipino
propagandists who sought refuge in the freer intellectual climate of
Spain invariably demanded "liberty of the press, of cults, and of
associations57 through the columns of "La Solidaridad."
One of the more lofty minds unleashed his fierce nationalistic
aspirations though the novels Noli Me Tangere and El Filibusterismo,
necessarily banned from the author's native land. Eventually, the
seeds of these monumental works ignited the flame of revolution,
devouring in the process its foremost exponent, albeit producing a
national hero, Jose Rizal. The mighty pen emerged victorious over
the colonizers' sword.
The Malolos Constitution, approved before the turn of century on
January 20, 1899, enshrined freedom of expression in Article 20 of
its Bill of Rights, thus:
Article 20 Neither shall any Filipino be deprived:
1. Of the right to freely express his ideas or opinions, orally
or in writing, through the use of the press or other similar
means.58
This right, held sacrosanct by the Filipino people and won at the cost
of their lives found its way ultimately in the Constitutions of a later
day, reenforced as they were, by the profound thoughts
transplanted on fertile soil by libertarian ideologies. Why emasculate
the freedom of expression now to accord a governmental agency a
power exercisable for a limited period of time for the dubious
purpose of "equalizing" the chances of wealthy and less affluent
candidates?
In summary, I hold that Section 11(b) of R.A. 6646, in the six years
that have elapsed since it was upheld as being in consonance with
the fundamental law, has now become out of sync with the times
and, therefore, unreasonable and arbitrary, as it not only unduly
restrains the freedom of expression of candidates but corollarily
denies the electorate its fullest right to freedom of information at a
time when it should flourish most.
For the reasons stated above, I VOTE to declare Section 11(b) of R.A.
6646 UNCONSTITUTIONAL.
Quisumbing and Purisima, JJ., dissent.
PANGANIBAN, J., dissenting;
226
The Court, by a majority vote, decided to uphold the ban on political
advertising, as provided, under Section 11(b)1 of RA 6646, and to
reiterate the 1992 ruling in National Press Club vs. Comelec2 for two
main reasons:
1. To equalize "as far as practicable, the situations of rich
and poor candidates by preventing the former from
enjoying the undue advantage offered by huge campaign
'war chests.'" In other words, the intention of the
prohibition is to equalize the "political playing field" for rich
and poor candidates.
2. While conceding that Section 11(b) of RA 6646 "limit[s]
the right of free speech and of access to mass media of the
candidates themselves," the Court justifies the ad ban by
alleging that: (a) it is limited, first, in its "duration," (i.e. the
ban applies only during the "election period") and, second,
in its "scope" (i.e. the prohibition on the sale and the
donation of print space and air time covers only those for
"campaign and other political purposes", time does not
restrict the legitimate reporting of news and opinions by
media practitioners who are not candidates); and (b) the
Comelec is authorized to procure, by purchase or
donation, media time and space which are to be fairly,
freely and equally distributed among the
candidates. Otherwise stated, the grant of Comelec time
and space, free of charge, to said candidates makes up for
the admitted infringement of the constitutional right to
free speech and access to mass media during the campaign
period.
With all due respect, I disagree with the majority's view and join the
stirring Dissenting Opinions of Justices Hugo E. Gutierrez, Jr.,3 Isagani
A.
Cruz4 and Edgardo L. Paras5 in NPC vs. Comelec, and of Justice Flerida
Ruth P. Romero in the present case. I will no longer repeat their
cogent legal arguments. Let me just add my own.
1. Ad Ban Not Pro-Poor
but Anti-Poor
The majority argues that the ad ban is pro-poor, because it prevents
the rich from buying media time and space which the poor cannot
afford or match. This argument assumes that media advertising is
expensive and, thus, beyond the reach of the poor.
I respectfully submit that such argument is bereft of factual basis.
True, a full-page ad in a major broadsheet6 may be priced at about
P100,000; a 30-second commercial in a major television
channel,7anywhere from P15,000 to P90,000 depending on the time
and the program; while air time of an equal duration in a leading
radio station, anywhere from P300 to P4,500.8 But even with such
price tags, media ads are not necessarily expensive, considering their
nationwide reach, audience penetration, effectiveness and
persuasive value.
Realistically, expenses are involved in a candidacy for a national
office like the presidency, the vice presidency, and the senate. In
recognition of this, the law has limited campaign expenditures to ten
pesos (P10) for every voter in the case of candidates for president
and vice president, and three pesos (P3) per voter in their
constituencies, for other candidates.9 Anyone — whether rich or
poor — who aspires for such national elective office must expect to
spend a considerable sum, whether of his own or from allowable
donations, to make himself and his platform or program of
government known to the voting public.
Media Ads
Comparatively Cheaper
While a one-page black-and-white ad in a major daily costs about
P100,000, it is replicated, however, in about 250,000
copies 10 circulated to an equal number of offices and
households nationwide on the very same day of its publication. Each
newspaper copy has an average readership of six. Hence, the ad is
exposed to about 1.5 million (250,000 x 6) people all over the
country. Consider, too, that people discuss what they read while
they congregate in barber shops, corner stores, and other places
where people gather. Sometimes, radio and TV broadcasters pick up
and comment on what they read in newspapers. So, the reach, pass-
on readership, multiplier effect and effectivity of a broadsheet ad
are practically immeasurable.
On the other hand, let us consider the alternative of printing and
distributing a poster or handbill of similar size. The actual printing
cost of such handbill on newsprint is twenty centavos (P.20) per
copy.11The cost of P250,000 copies (the circulation of a major daily)
would thus be P50,000 (250,000 x P.20). But that is only the printing
cost. To disseminate these handbills nationwide on the same day of
printing without the distribution network of a major newspaper is
almost impossible. Besides, the cost would be horrendous. To
approximate the circulation of a major newspaper, the most
practical substitute would be the mails. Ordinary mail is now P4.00
per posting. Hence, the distribution cost through the mails would be
P1 million (250,000 copies x P4.00). And this does not include the
manual work and cost of sorting, folding and individually addressing
these 250,000 pieces of mail matter. (This alternative assumes the
availability of a mailing list equivalent to the reach of a newspaper.)
Even if third-class mail is used, the distribution cost alone will still be
P3.00 per individual mailing, or P750,000 for all 250,000 copies.12
This alternative is not only much more expensive but much less
effective as well, because it has no guarantee of same-day delivery,
has a diminished readership multiplier effect and is tremendously
cumbersome in terms of sorting and distribution.
Furthermore, a candidate need not buy one-page ads. He can use
quarter-page ads at one fourth the cost or about P25,000 only per
issue. To be effective in his ad campaign, he may need to come out
once every three days (to be spread out among the different dailies)
or 30 times during the 90-day campaign period13 for national
candidates. Hence, he will spend, for the entire duration of the
campaign, about P750,000 (P25,000 x 30). I repeat, to advertise a
one-fourth page ad at least 30 times in various major dailies, a
candidate needs to spend only P750,000 — an amount less than the
alternative of printing and distributing nationwide ONLY ONCE a less
timely and less effective equivalent leaflet or poster.
A similar detailed comparison of cost-benefit could be written for
radio and television. While, at initial glance, the rates for these
electronic media may appear high, still they could be proven more
beneficial and cheaper in the long term because of their "value-for-
money" appeal.14
Candidates Should Not Be Denied
Option to Use Media Ads
From the foregoing, it is clear that mass media truly offers an
economical, practical, and effective means by which a relatively
unknown but well-qualified political candidate who has limited
resources, particularly one running for a national office, may make
known to the general public during the short campaign period15 his
qualifications, platform of government, stand on vital issues, as well
as his responses to questions or doubts about his capabilities, his
character or any other matter raised against him. Deprived of media
ads, the rich candidate, unlike his poor opponent, resorts to
expensive propaganda — the holding of public meetings and rallies
before large but oftentimes "paid" crowds, helicopter stops and
motorcades spanning several towns and cities, the production of
ingenious materials, giveaways and other products, and the
incessant printing and distribution of various campaign
paraphernalia. These forms of electoral promotion ineluctably
require a large political machinery and gargantuan funds
(organization + people/supporters + communication gadgets +
vehicles + logistics). To combat this formidable and expensive
election behemoth, the poor candidate's most viable alternative may
be media advertising.
227
In NPC vs. Comelec, it was feared that the "unlimited purchase of
print space and radio and television time . . . by the financially
affluent [was] likely to make a crucial difference." But I say such fear
is unfounded. First, because campaign expenses are limited by law.
Second, the possibility of the abuse and misuse of media ads by the
"financially affluent" is not an argument in favor of their total
withdrawal, for — to use the very words of the majority in NPC —
"there is no power or authority in human society that is not
susceptible of being abused."16 Third, the absence of access to
media advertising totally deprives the poor candidate of his most
formidable weapon in combating the "huge campaign war chests" of
rich contenders.
THE POINT IS: IT IS INCORRECT TO SAY THAT MEDIA ADVERTISING
SHOULD BE BANNED BECAUSE ONLY THE RICH CAN AFFORD IT OR,
FOR THAT MATTER, THEY MAY ABUSE OR MISUSE IT. Quite the
contrary, in terms of reach, pass-on readership, multiplier effect and
cost-benefit advantage, media advertising may be the cheapest and
most effective campaign mechanism available. I am not suggesting
that every candidate should use media ads. In the final analysis, it is
really up to the candidates and their campaign handlers to adopt
such mode and means of campaigning as their budgets and political
strategies may require.16a What I am stressing is that candidates,
whether rich or poor, should be given the option of campaigning
through media, instead of being forced to use other forms of
propaganda that could turn out to be less effective and more
expensive.
2. Ad Ban Not Limited; Comelec Time and Space Inutile
I now come to the second major point. The majority rationalizes the
ad ban by saying that it has a very limited duration and scope and
that, in any event, the Comelec's grant of free media time and space
to candidates more than makes up for the violation of their
constitutional right. I disagree.
Ad Ban Not Limited in Duration
The ad ban is constitutional because, according to the majority, it is
limited in duration for the reason that it is enforced only during the
election period. In my humble view and with all due respect, this is
both erroneous and illogical. A political advertisement is relevant
only during the campaign period — not before and not after. As
petitioners put it, a ban on mountain-skiing during the winter season
cannot be said to be limited in duration, just because it is enforced
during winter. After all, skiing is indulged in only when the
mountains slopes are covered with snow. To add a further parallel, a
ban against the planting of rice during the rainy season is not limited
simply because it covers only that season. After all, nobody plants
rice during summer when the soil is parched. In the same manner,
campaign ads are not resorted to except during the campaign
period. And their prohibition does not become any less odious and
less comprehensive just because the proscription applies only during
the election season. Obviously, candidates need to advertise their
qualifications and platforms only during such period. Properly
understood, therefore, the prohibition is not limited in duration but
is in fact and in truth total, complete and exhaustive.
Ad Ban Neither Limited in Scope
The majority also claims that the prohibition is reasonable because it
is limited in scope; that is, it refers only to the purchase, sale or
donation of print space and air time for "campaign or other political
purposes," and does not restrict news reporting or commentaries by
editors, columnists, reporters, and broadcasters. But the issue here
is not the freedom of media professionals.17 The issue is the freedom
of expression of candidates. That the freedom of the press is
respected by the law and by the Comelec is not a reason to trample
upon the candidates' constitutional right to free speech and the
people's right to information. In this light, the majority's contention
is a clear case of non sequitur. Media ads do not partake of the "real
substantive evil" that the state has a right to prevent 18 and that
justifies the curtailment of the people's cardinal right to choose their
means of expression and of access to information.
Besides, what constitutes "campaign or other political purposes"?
Neither RA 6646 nor the majority provides an explanation. If
candidates buy 30 column-inches of newspaper space or one hour of
prime radio/TV, time everyday, and if they retrain professional
journalists to use such space/time to defend them from attacks and
to promote their platforms of government, should such purchase be
covered by the ad ban, or should it be allowed as an exercise of the
freedom of journalists to express their views? Even more insidiously,
should regular columnists' daily defense of their chosen candidates
and daily promotion of their platforms of government constitute
donated space for "campaign and other political purposes"? 19
Ad Ban Not Compensated for or Justified by Free "Comelec Time"
Finally, the majority opines that the grant of free Comelec media
time and space to candidates more than makes up for the
abridgment of the latter's right to buy political ads.20 With due
respect, I believe this is hollow and shallow.
In its Compliance dated March 13, 1998, Comelec tell us that under
its Resolution No. 3015, it gave due course to eleven candidates for
president,21 nine for vice president,22 and forty for senator.23 It is
claimed however that, all in all, there are really about 100,000
candidates running for about 17,000 national and local positions in
the coming elections, from whom a voter is expected to choose at
least 3024 to vote for. With so many candidates, how can the
ordinary, sometimes nonchalant, voter ever get to know each of the
political hopefuls from whom he will make an intelligent selection?
In the crucial choice for president alone, how can ordinary citizens
intelligently and sufficiently assess each of the 11 candidates in
order to make a sensible choice for a leader upon whom to entrust
the momentous responsibility of carving the country's path in the
next millennium?
The Comelec answers these questions with Resolution No. 2983-A,
promulgated on March 3, 1998, in which it asks "every radio
broadcasting and television station operating under franchise [to]
grant the Commission, upon payment of just compensation, at least
thirty (30) minutes of prime time daily, to be known as 'Comelec
time' effective February 10, 1998 for candidates for President, Vice
President and Senators, and effective March 27, 1998 for candidates
for local elective offices, until May 9, 1998," to be allocated "by
lottery" among candidates requesting its use. But Comelec, in the
same Compliance, informed the Court that "it is not procuring
'Comelec space' (in any newspaper) by virtue of the effects of the
decision of this Honorable Court in the case of Philippine Press
Institute (PPI) vs. Comelec, 244 SCRA 272."25
In sum, the Comelec intends to secure 30 minutes of "Comelec time"
from every radio and broadcasting station to be allocated equally to
all candidates. The Comelec does not state exactly how it intends to
allocate — except "by lottery" — these 30 minutes per station to the
17,000 candidates, considering that these stations do not have the
same reach, audience and penetration. The poll body does not say
exactly how many stations are involved, what budget allocation, if
any, it has for the purpose,26 when each candidate will be allowed to
speak and for how long, how the Comelec intends to cover the 77
provinces, 68 cities and 42,000 barangays nationwide, and many
other details. Moreover, while the Comelec smugly speaks of free
Comelec time being effective on "February 10, 1998" for national
candidates, Resolution 2983-A itself was promulgated only on March
3, 1998.
Up to this writing, I have yet to hear of any major candidate using
this so-called free Comelec broadcast time. In fact, during the oral
argument of this case on March 5, 1998, Comelec Chairman
Bernardo P. Pardo frankly admitted that no candidate had applied
for an allocation of Comelec time. Not even petitioners. This is the
best testament to the utter inutility and ineffectivity of Comelec
time. Indeed, it cannot be a substitute, much less a viable
alternative, to freely chosen but paid for media ads. It cannot
compensate for the violation of the candidates' right to free speech
and media access, or for the electorate's right to information.
228
If the real objective is to level the playing field for rich and poor WHEREFORE, I vote to GRANT the petition and to CONDEMN Section
candidates, there must be, as there already are, a cap on election 11(b) of RA 6646 as UNCONSTITUTIONAL and VOID.
expenses and a shortening of the campaign period. The incapability
of the Comelec to effectively monitor and strictly implement such Quisumbing and Purisima, JJ., dissent.
expense and time limitations should not take its toll upon
constitutionally enshrined liberties of the people, including the
candidates. To prohibit access to mass media, except only through
Comelec time — which has been indubitably shorn to be sorely
insubstantial, insignificant and inutile — is not, and is far from being, Separate Opinions
a solution to the problems faced by poor candidates. The simple
remedy is to lift the media ban. PUNO, J., separate concurring;

Epilogue In G.R. No. 132231, petitioners assail the constitutionality of Sec.

The ad ban is a blatant violation of the candidates' constitutional
right to free speech 27 and the people's right to information.28 Being
the last refuge of the people and the guardian of the Constitution,
this Court should then, with alacrity, view the ban with suspicion, if
not with outright rejection.29 To repeat, the alleged limitations are in
reality nonexistent; and the "pro-poor" justification, without logic.
To say that the prohibition levels the playing field for the rich and
the poor is to indulge in a theoretical assumption totally devoid of
factual basis. On the contrary, media advertising may be —
depending on a contender's propaganda strategy — the cheapest,
most practical and most effective campaign medium, especially for
national candidates. By completely denying this medium to both the
rich and the poor, this Court has not leveled the playing field. It has
effectively abolished it! Far from equalizing campaign opportunities,
the ban on media advertising actually favors the rich (and the
popular) who can afford the more expensive and burdensome forms
of propaganda, against the poor (and the unknown) who cannot.
The allegation that the prohibition is reasonable because it is limited
in duration and scope is itself most unreasonable, bereft as it is of
logic and basis. Even more shallow is the argument that the
Comelec-given media time and space compensate for such
abridgment. In fact, the Comelec is not even procuring any
newspaper space. In any event, the fact that not even the poorest
candidates have applied for available opportunities is the best
testament to its dubiousness. That petitioners who are seasoned
political leaders prefer to pay for their own media ads rather than to
avail themselves of the Comelec freebies refutes the majority's
thesis of compensation. Indeed, the free things in life are not always
the best.30 They mat just be a bureaucratic waste of resources.
11(b) of R.A. No. 6646 and Resolution No. 2974 of the COMELEC
implementing said law. They contend:
I
THE POLITICAL AD BAN IS MOVED BY AN INVALID
LEGISLATIVE INTENT, ULTRA VIRES ON THE PART OF
CONGRESS, AND VIOLATIVE OF THE VERY
CONSTITUTIONAL PROVISION UPON WHICH IT IS SOUGHT
TO BE GROUNDED.
II
CONTRARY TO THE HOLDING IN NATIONAL PRESS CLUB,
THE POLITICAL AD BAN IS NOT LIMITED IN TIME AND
SCOPE OF APPLICATION.
A. THE POLITICAL AD BAN IS NOT LIMITED IN DURATION; IT
IS ABSOLUTE, ALL-ENCOMPASSING, COMPREHENSIVE AND
UNLIMITED.
B. THE POLITICAL AD BAN IS NOT LIMITED IN SCOPE OF
APPLICABILITY. INSOFAR AS THE CANDIDATE'S FREEDOM
TO EXPRESS THROUGH THE MASS MEDIA, IT IS ABSOLUTE,
ALL-EMCOMPASSING, COMPREHENSIVE AND UNLIMITED.
III
THE POLITICAL AD BAN UNDER SECTION 11(B), R.A. 6646
CONSTITUTES PRIOR RESTRAINT, AND CARRIES A HEAVY
PRESUMPTION AGAINST VALIDITY.

Before I close, a word about stare decisis. In the present case, the
IV
Court is maintaining the ad ban to be consistent with its previous
holding in NPC vs. Comelec. Thus, respondent urges reverence for
the stability of judicial doctrines. I submit, however, that more THE POLITICAL AD BAN IS NOT A REASONABLE NECESSARY
important than consistency and stability are the verity, integrity and MEANS TO ACHIEVE THE DESIRED END.
correctness of jurisprudence. As Dean Roscoe Pound explains, "Law
must be stable but it cannot stand still." Verily, it must correct itself A. INSTEAD OF "LEVELING THE
and move in cadence with the march of the electronic age. Error and PLAYING FIELD," INSOFAR AS THE USE
illogic should not be perpetuated. After all, the Supreme Court, in OF MASS MEDIA FOR POLITICAL
many cases,31has deviated from stare decisis and reversed previous PURPOSES IS CONCERNED, THE
doctrines and decisions. It should do no less in the present case. POLITICAL AD BAN HAS ABOLISHED
THE PLAYING FIELD.
Elections can he free, honest and credible not only because of the
absence of the three execrable "G's" or "guns, goons and gold." B. THERE IS NO REASONABLE
Beyond this, the integrity and effectivity of electoral democracy NECESSITY FOR THE AD BAN, BECAUSE
depend upon the availability of information and education touching IT DOES NOT PREVENT THE RICH
on three good "P's" — principles, platforms and programs of the CANDIDATE FROM USING HIS
candidates. Indeed, an intelligent vote presupposes a well-informed SUPERIOR RESOURCES TO THE UNDUE
voter. If elections must be rid of patronage, personalities and DISADVANTAGE OF THE POOR
popularity as the main criteria of the people's choice, we must allow CANDIDATE.
candidates every opportunity to educate the voters. And corollarily,
the people must be accorded every access to such information C. THERE IS NO REASONABLE
without much effort and expense on their part. NECESSITY FOR THE POLITICAL AD BAN
BECAUSE ADEQUATE SAFEGUARDS ARE
With all due respect, I submit that the ad ban is regressive, LEGALLY IN PLACE IN ORDER TO
repressive and deceptive. It has no place in our constitutional PREVENT THE RICH CANDIDATE FROM
democracy. TAKING UNDUE ADVANTAGE OF HIS
SUPERIOR RESOURCES.

229
 V inequities by equitably diffusing wealth and political power
THE POLITICAL AD BAN VIOLATES THE RIGHT OF THE
PEOPLE TO BE INFORMED ON MATTERS OF PUBLIC
CONCERN.
VI
THERE IS NO NEED FOR "EMPIRICAL DATA" TO DETERMINE
WHETHER THE POLITICAL AD BAN OFFENDS THE
CONSTITUTION OR NOT.
The Solicitor General and the petitioners-in-intervention likewise
contend that section 11(b) of R.A. No. 6646 is unconstitutional
principally because it impairs freedom of speech and of the press.
A quick glance at petitioners' arguments against section 11(b) of R.A.
No. 6646 will show that they are mere rehash of arguments in the
NPC case. The lack of new arguments is a tribute to the brilliant
majority decision and equally enlightening dissenting opinions in
said case which petitioners now seek to reexamine. A repetition of
the NPC rationale is thus unnecessary.
I wish, however, to advert to the dissent of Madam Justice Romero
which cites Buckley v. Valeo,1 a 1976 case where a divided us
Supreme Court ruled that limits on campaign expenditures violate
the guarantee of freedom of speech. The essence of
the Buckley ruling is that "the concept that government may restrict
the speech of some elements of society in order to enhance the
relative voice of others is wholly foreign to the First Amendment . .
."2
A reading of American legal literature, however, will reveal
that Buckley has been widely criticized by libertarians because its
pro-business thrust has pernicious effects on efforts to achieve
much needed electoral reforms.3 Typical of the criticisms is the
observation of wright that the Buckley Court ". . . has given
protection to the polluting effect of money in election campaigns. As
a result, our political system may not use some of its most powerful
defenses against electoral inequalities."4 The barrage of criticisms
caused the US Supreme Court to modify its absolute support for free
speech in Buckley. In the 1990 case of Austin v. Michigan State
Chamber of Commerce,5 it upheld the constitutionality of a Michigan
law that prohibited corporations from using corporate treasury
funds to support or oppose any candidate for office. Retreating
from Buckley, the Austin Court recognized the state's compelling
interest in regulating campaign expenditure. Writing for the
majority, Mr. Justice Thurgood Marshall, an icon of libertarians
declared: "Michigan identified as a serious danger the significant
possibility that corporate political expenditures will undermine the
integrity of the political process, and it has implemented a narrowly
tailored solution to that problem." In his concurring opinion, the last
of the libertarians in the US High Court, Mr. Justice Brennan, held:
"In MCFL, we held that a provision of the Federal Election Campaign
Act of 1971 (FECA), . . . similar to the Michigan law at issue here,
could not be applied constitutionally to a small, anti-abortion
advocacy group. In evaluating the First Amendment challenge,
however, we acknowledged the legitimacy of Congress' concern that
organizations that amass great wealth in the economic marketplace
should not gain unfair advantage in the political marketplace."
There is less reason to apply the discredited Buckley decision in our
setting. Section 11(b) of R.A. No. 6646 is based on provisions of our
Constitution which have no counterparts in the US Constitution.
These provisions are:
Art. II, sec. 26. The State shall guarantee equal access to
opportunities for public service, and prohibit political
dynasties as may be defined by law.
Art. XIII, sec. 1. The Congress shall give highest priority to
the enactment of measures that protect and enhance the
right of all the people to human dignity, reduce social,
economic, and political inequalities, and remove cultural
for the common good.
Art. IX (c) (4). The Commission may, during the election
period, supervise or regulate the enjoyment or utilization
of all franchises or permits from the operation of
transportation and other public utilities, media of
communication or information, all grants, special
privileges, or concessions granted by the Government or
any subdivision, agency, or instrumentality thereof,
including any government-owned or controlled
corporation or its subsidiary. Such supervision or
regulation shall aim to ensure equal opportunity, time, and
space, and the right to reply, including reasonable equal
rates therefor for public information campaigns and forms
among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible
elections.
A member of the Constitutional Commission, now our distinguished
colleague, Mr. Justice Hilario Davide, Jr., well explained these new
wrinkles in our Constitution, viz.:
xxx xxx xxx
Aware of the lamentable fact in the Philippines; no gap
between these two unavoidable extremes of society is
more pronounced than that in the field of politics, and ever
mindful of the dire consequences thereof, the framers of
the present Constitution saw it fit to diffuse political power
in the social justice provisions. Ours has been a politics of
the elite, the rich, the powerful and the pedigreed. The
victory of a poor candidate in an election is almost always
an exception. Arrayed against the vast resources of
wealthy opponent, the former, even if he is the most
qualified and competent, does not stand a fighting chance.
Of course, there have been isolated instances — but yet so
few and far between — when poor candidates made it.6
He stressed that this thrust for political equality is an improvement
of our past Constitutions which merely sought to establish equality
in the economic and social fields.7
It is difficult to think why such an egalitarian law like Section 11(b) of
R.A. No. 6646 should be condemned when it equalizes the political
opportunities of our people. The gap between the perfumed few
and the perspiring many in our country is galloping at a frightening
pace. As the cost of election spirals at an immoral speed, levers of
the political power are wielded more and more by the wealthy
alone. The subject law attempts to break this control by reducing the
purchasing power of the peso of the rich in the political freemarket.
Political equality is a touchstone of democracy. The guaranty of
freedom of speech should not be used to frustrate legislative
attempts to level the playing field in politics. R.A. No. 6646 does not
curtail speech as it no more than prevents the abusive use of wealth
by the rich to frustrate the poor candidate's access to media. It
seems to me self-evident that if Congress can regulate the abuse of
money in the economic market so can it regulate its misuse in the
political freemarket. Money talks in politics but it is not the specie of
speech sanctified in our Constitution. If we allow money to
monopolize media, the political freemarket will cease to be a market
of ideas but a market for influence by the rich. I do not read freedom
of speech as meaning more speech for the rich for freedom of
speech is not guaranteed only to those who can afford its exercise.
There ought to be no quarrel with the proposition that freedom of
speech will be a chimera if Congress does not open the
opportunities for its exercise. When the opportunities for its exercise
are obstructed by the money of the rich, it is the duty of Congress to
regulate the misuse of money — for in the political marketplace of
ideas, when money win, we lose.
Let us not also close our eyes to the reality that in underdeveloped
countries where sharp disparities in wealth exist, the threat to
230
freedom of speech comes not only from the government but from
vested interests that own and control the media. Today, freedom of
speech can be restrained not only by the exercise of public power
but also by private power. Thus, we should be equally vigilant in
protecting freedom of speech from public and private restraints. The
observation of a legal scholar is worth meditating, viz.: "With the
development of private restraints on free expression, the idea of a
free marketplace where ideas can compete on their merits has
become just as unrealistic in the twentieth century as the economic
theory of perfect competition. The world in which an essentially
rationalist philosophy of the first amendment was born has vanished
and what was rationalism is now romance."8
I vote to dismiss the petitions.
Melo, J., concurs.
VITUG, J., separate opinion;
I share the opinion of those who continue to uphold the decision in
the National Press Club vs. Commission on Elections case that has
sustained the validity of Section 11(b) of Republic Act ("R.A.") No.
6646, otherwise also known as the Electoral Reforms Law of 1987.
Petitioners, in seeking a re-examination of the decision of this Court
in the National Press Club case, no more than invoke anew Section 4,
Article III, of the Constitution to the effect that —
No law shall be passed abridging the freedom of speech, of
expression, or of press, on the right of the people
peaceably to assemble and petition the government for
redress of grievances.
It is their submission that Section 11(b) of R.A. No. 6646 and Section
18(e) of Comelec Resolution No. 2974 should be declared
unconstitutional. These contested provisions state:
Sec. 11. Prohibited forms of election propaganda. — In
addition to the forms of election propaganda prohibited
under Section 85 of Batas Pambansa Blg. 881, it shall be
unlawful;
xxx xxx xxx
b) for any newspapers, radio broadcasting or television
station, other mass media, or any person making use of
the mass media to sell or give free of charge print space or
air time for campaign or other political purposes except to
the Commission as provided under Sections 90 and 92 of
Batas Pambansa Blg. 881. Any mass media columnist,
commentator, announcer or personality who is a
candidate for any elective public office shall take a leave of
absence from his work as such during the campaign
period.
Sec. 18. Prohibited forms of election propaganda. — It is
unlawful
xxx xxx xxx
e. For any radio broadcasting or television station or any
person making use of broadcast media to sell or give, free
of charge, any air time for campaign and other political
purposes, except thru "COMELEC Time," allotted to the
Commission pursuant to Section 92 of the Omnibus
Election Code.
I see, however, in the above provisions a faithful compliance and
due observance of the language, intent and spirit of the Constitution
itself, Article IX(C)(4) of which reads:
Sec. 4. The Commission [on Elections] may, during the
election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of
transportation and other public utilities, media of
communication or information, all grants, special
privileges, or concessions granted by the Government or
any subdivision, agency, or instrumentality thereof,
including any government-owned or controlled
corporation or its subsidiary. Such supervision or
regulation shall aim to ensure equal opportunity, time, and
space, and the right to reply, including reasonable, equal
rates therefor, for public information campaigns and
forums among candidates in connection with the objective
of holding free, orderly, honest, peaceful, and credible
elections. (Emphasis supplied.)
It might be worth mentioning that Section 26, Article II, of the
Constitution also states that the "State shall guarantee equal access
to opportunities for public service, and prohibit political dynasties as
may be defined by law." I see neither Article IX (C)(4) nor Section 26,
Article II, of the Constitution to be all that adversarial or
irreconcilably inconsistent with the right of free expression. In any
event, the latter, being one of general application, must yield to the
specific demands of the Constitution. The freedom of expression
concededly holds, it is true, a vantage point in the hierarchy of
constitutionally-enshrined rights but, like all fundamental rights, it is
not without limitations.
The case is not about a fight between the "rich" and the "poor" or
between the "powerful" and the "weak" in our society but it is to me
a genuine attempt on the part of Congress and the Commission on
Elections to ensure that all candidates are given an equal chance to
media coverage and thereby be equally perceived as giving real life
to the candidates' right of free expression rather than being viewed
as an undue restriction of that freedom. The wisdom in the
enactment of the law, i.e., that which the legislature deems to be
the best in giving life to the Constitutional mandate, is not for the
Court to question; it is a matter that lies beyond the normal
prerogatives of the Court to pass upon.
I vote to dismiss the petition.
Melo and Purisima, JJ., concur.
ROMERO, J., dissenting;
A foolish consistency is the hobgoblin of little minds . . . .1
Not wishing to be held hostage by Emerson's "hobgoblin," I dare to
break away from a past position and encapsulize my ruminations in
a dissenting opinion.
When, If At All, May The Court Reverse Itself?
The majority, reiterating the 1992 decision NPC v. COMELEC, holds
that Section 11(b) of R.A. 6646 is a reasonable restriction on the
freedom of expression guaranteed by the Constitution. 2 Our six-year
experience with the ban on political advertisements, however,
constrains me to dissent. While it is desirable, even imperative, that
this Court, in accordance with the principle of stare decisis, afford
stability to the law by hewing to doctrines previously established,
said principle was never meant as an obstacle to the abandonment
of established rulings where abandonment is demanded by public
interest and by circumstances.3 Reverence for precedent simply as
precedent cannot prevail when constitutionalism and public interest
demand otherwise. Thus, a doctrine which should be abandoned or
modified should be abandoned or modified accordingly. More
pregnant than anything else is that the court should be right.4
I submit that our country's past experience in the 1992 and 1995
elections, as well as contemporary events, has established that
Section 11(b) of R.A. 6646 falls short of the rigorous and exacting
standard for permissible limitation on free speech and flee press.
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In 1992, this Court, in NPC v. COMELEC, gave constitutional
imprimatur to Section 11(b), pronouncing the same to be authorized
by Article IX(C), Section 4 of the Constitution which reads:
Sec. 4. The Commission may, during the election period,
supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation
and other public utilities, media of communication or
information, all grants, special privileges, or concessions
granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned
or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply,
including reasonable, equal rates therefor, for public
information campaigns and forms among candidates in
connection with the objective of holding free, orderly,
honest, peaceful and credible elections.
Prefatorily, it must be borne in mind that Article IX(C), Section 4 of
the Constitution, is essentially an express manifestation of the
comprehensive police power of the State.
Police power, it has been declared often enough, rests upon public
necessity and upon the right of the state and the public to self-
protection. For this reason, its scope expands and contracts with
changing needs.5 In the words of Mr. Justice Isagani A. Cruz:
Police power is dynamic, not static, and must move with
the moving society it is supposed to regulate. Conditions
change, circumstances vary; and to every such alteration
the police power must conform. What may be sustained as
a valid exercise of the power now may become
constitutional heresy in the future under a different factual
setting. Old notions may become outmoded even as new
ideas are born, expanding or constricting the limits of the
police power. For example, police measures validly
enacted fifty years ago against the wearing of less than
sedate swimsuits in public beaches would be laughed out
of court in these days of permissiveness. . . (T)he police
power continues to change even as constraints on liberty
diminish and private property becomes more and more
affected with public interest and therefore subject to
regulation" (Emphasis ours).6
Thus, when the temper and circumstances of the times necessitate a
review, this Court should not hesitate to reverse itself, even on
constitutional issues; for the legal problems with which society is
beset continually cannot be merely considered in the abstract, but
must be viewed in light of the infinite motley facets of human
experience. As aptly stated by Mr. Justice Holmes, "The life of the
law has not been logic: it has been experience."
By way of illustration, we first held, in the celebrated Flag Salute
Case,7 that:
the flag is not an image but a symbol of the Republic of the
Philippines, an emblem of national sovereignty, of national
unity and cohesion and of freedom and liberty which it and
the Constitution guarantee and protect. Under a system of
complete separation of church and state in the
government, the flag is utterly devoid of any religious
significance. Saluting the flag does not involve any religious
ceremony. The flag salute is no more a religious ceremony
than the taking of an oath of office by a public official or by
a public candidate for admission to the bar.
xxx xxx xxx
The children of Jehovah's Witnesses cannot be exempted
from participation in the flag ceremony. They have no valid
right to such exemption. Moreover, exemption to the
requirement will disrupt school discipline and demoralize
the rest of the school population which by far constitute
the great majority.
The freedom of religious belief guaranteed by the
Constitution does not and cannot mean exemption from or
non-compliance with reasonable and non-discriminatory
laws, rules and regulations promulgated by competent
authority.
The Court further predicted that exempting Jehovah's Witnesses
from participating in the flag ceremony would ultimately lead to a
situation wherein:
[T]he flag ceremony will become a thing of the past or
perhaps conducted with very few participants, and the
time will come when we would have citizens untaught and
uninculcated in and not imbued with reverence for the flag
and love of country, admiration for national heroes, and
patriotism-a pathetic, even tragic situation, and all
because a small portion of the school population imposed
its will, demanded and was granted an exemption.
Thirty-two years later, events caught up with the changing political
climate, such that an undivided Court pronounced, in Ebralinag
v. The Division Superintendent of Schools of Cebu8 that:
the idea that one may be compelled to salute the flag, sing
the national anthem, and recite the patriotic pledge,
during a flag ceremony on pain of being dismissed from
one's job or of being expelled from school, is alien to the
conscience of the present generation of Filipinos who cut
their teeth on the Bill of Rights which guarantees their
right to free speech and the free exercise of religious
profession and worship.
xxx xxx xxx
The sole justification for a prior restraint or limitation on
the exercise of religious freedom is the existence of a
grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals,
public health or any other legitimate public interest, that
the State has a right (and duty) to prevent. Absent such a
threat to public safety, the expulsion of petitioners from
the schools is not justified.
The Court held that its earlier prediction of dire consequences had
not come to pass. It concluded that exempting Jehovah's Witnesses
from attending flag ceremonies would not produce a nation
"untaught and uninculcated in and not imbued with reverence for
the flag and love of country, admiration for national heroes, and
patriotism."
In much the same manner, in the early case of People v. Pomar,9 the
Court struck down as violative of the freedom of contract, a statute
prescribing a thirty-day vacation with pay both before and after
confinement arising from pregnancy. The Court said:
The rule in this jurisdiction is, that the contracting parties
may establish any agreements, terms, and conditions they
may deem advisable, provided they are not contrary to
law, morals or public policy.
Citing American cases that espoused the prevailing laissez
faire doctrine, the Court ruled that the right to contract about one's
affairs is a part of the liberty of the individual guaranteed by the due
process clause. The Court also cited the "equality of right" principle,
holding that "(i)n all such particulars the employer and the employee
have equality of right, and any legislation that disturbs that equality
is an arbitrary interference with the liberty of contract, which no
government can legally justify in a free land . . . Police power, the
Court conceded, is an expanding power; but it cannot grow faster
than the fundamental law of the state . . . If the people desire to
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have the police power extended and applied to conditions and
things prohibited by the organic law, they must first amend that
law.10
Sixteen years later, the validity of the above pronouncement was
rejected by the Court in Antamok Goldfields Mining
Co. v. CIR,11 which rationalized its volte-face stance, thus: "(i)n the
midst of changes that have taken place, it may likewise be doubted if
the pronouncement made by this court in the case of People
v. Pomar . . . still retains its virtuality as a living principle. The policy
of laissez faire has to some extent given way to the assumption by
the government of the right of intervention even in contractual
relations affected with public interests."
Similarly, events subsequent to the Court's ruling in Avelino
v. Cuenco12 impelled the Court to reverse its original position. In this
case, the Court initially refused to take cognizance of the raging
controversy to determine who was the rightful president of the
Philippine Senate, ruling that in view of the separation of powers,
the question was a political one not within its jurisdiction. Despite
such a ruling, almost one-half of the members of the Senate refused
to acknowledge Mariano Cuenco as the acting President, as a result
of which legislative work came to a standstill. In the words of Justice
Perfecto, "the situation has created a veritable national crisis, and it
is apparent that solution cannot be expected from any quarter other
than this Supreme Court. . . . The judiciary ought to ripen into
maturity if it has to be true to its role as spokesman of the collective
conscience, of the conscience of humanity." The Court, thus,
assumed jurisdiction over the case, rationalizing that supervening
events justified its intervention.
From the foregoing, it can be seen that the inexorable march of
events, and the liberalizing winds of change may very well signal a
needed shift in our conception of the permissible limits of regulation
in the name of police power. Verily, while the validity of NPC
v. COMELEC may have been etched on granite at the time of its
promulgation, events subsequent thereto now call into question the
very underpinnings of said ponencia. To my mind, the hoary maxim
that "time upsets many fighting faiths" still holds true, and the Court
must be ever resilient and adaptable in order to meet the protean
complexities of the present and future generation.
In NPC v. COMELEC, the Court held that:
(N)o presumption of invalidity arises in respect of exercises
of supervisory or regulatory authority on the part of the
Comelec for the purpose of securing equal opportunity
among candidates for political office, although such
supervision or regulation may result in some limitation of
the right of free speech and free press. For supervision or
regulation of the operations of media enterprises is
scarcely conceivable without such accompanying
limitation. Thus, the applicable rule is the general, time-
honored one — that a statute is presumed to be
constitutional and that the party asserting its
unconstitutionality must discharge the burden of clearly
and convincingly proving that assertion.
This upends the familiar holding that "any system of prior restraint
of expression comes to this Court bearing a heavy presumption
against its constitutional validity, with the Government carrying a
heavy burden of showing justification for the enforcement of such a
restraint."13 This presumption was even reiterated in the recent case
of Iglesia ni Cristo v. CA,14 wherein we ruled that "deeply ensconced
in our fundamental law is its hostility against all prior restraints on
speech . . . Hence, any act that restrains speech is hobbled by the
presumption of invalidity and should be greeted with furrowed
brows. It is the burden of the respondent . . . to overthrow this
presumption. If it fails to discharge this burden, its act of censorship
will be struck down." NPC v. COMELEC, insofar as it bestows a
presumption of validity upon a statute authorizing COMELEC to
infringe upon the right of free speech and free press, constitutes a
departure from this Court's previous rulings as to mandate its re-
examination.
In this connection, it bears emphasis that NPC v. COMELEC was the
product of a divided court, marked as it was by the strong dissents of
Mr. Justices Cruz, Gutierrez, and Paras. This fact gains significance
when viewed in light of the changes in the composition of the court.
While a change in court composition, per se, does not authorize
abandonment of decisional precedents, it is apropos to keep in mind
the pronouncement by the Court in Philippine Trust Co. and Smith,
Bell and Co. v. Mitchell.15 which reads as follows:
Is the court with new membership compelled to follow
blindly the doctrine of the Velasco case? The rule of stare
decisis is entitled to respect. Stability in the law,
particularly in the business field, is desirable. But
idolatrous reverence for precedent, simply as precedent,
no longer rules. More important than anything else is that
the court should be right. (Emphasis ours)
Are The Restrictions Imposed by Sec. 11(b) Of R.A.
6646 on Freedom of Expression Valid?
Preliminaries having been disposed of, we proceed to the crux of the
matter. Freedom of speech has been defined as the liberty to know,
to utter and to argue freely according to conscience, above all
liberties. It thus includes, not only the right to express one's views,
but also other cognate rights relevant to the free communication of
ideas, not excluding the right to be informed on matters of public
concern.
The Court, in NPC v. COMELEC, found the restrictions imposed by
Section 11(b) on the freedom of expression, to be valid. First, the
prohibition is limited in the duration of its applicability and
enforceability to election periods. Precisely, this is what makes the
prohibition more odious. It is imposed during the campaign period
when the electorate clamors for more and accurate information as
their basis for intelligent voting. To restrict the same only defeats
the purpose of holding electoral campaigns — to inform the
qualified voter of the qualifications of candidates for public office, as
well as the ideology and programs of government and public service
they advocate, to the end that when election time comes, the right
of suffrage may be intelligently and knowingly, if not always wisely,
exercised. Opening all avenues of information to the estimated 36.4
million voters is crucial for their intelligent exercise of the right of
suffrage in the May 11 polls, considering that they will be voting for
an average of thirty elective positions.16
Second, the prohibition is of limited application, as the same is
applied only to the purchase and sale of print space and air time for
campaign or other political purposes. "Section 11(b) does not
purport in any way to restrict the reporting by newspapers or radio
or television stations of news or newsworthy events relating to
candidates, their qualifications, political parties and programs of
government." It does not reach commentaries and expressions of
belief or opinion by reporters or broadcasters or editors or
commentators or columnists in respect of candidates, their
qualifications, and programs and so forth. To be sure, newspapers,
radio, and television stations may not be restricted from reporting
on candidates, their qualifications, and programs of government,
yet, admittedly, the freedom of expression of the candidates
themselves in the manner they choose to, is restricted. Candidates
are thereby foreclosed from availing of the facilities of mass media,
except through the filtering prism of the COMELEC.
Not to be overlooked is the stark truth that the media itself is
partisan. In a study17 commissioned by the COMELEC itself to
determine whether certain newspapers adhered to the principles of
fairness and impartiality in their reportage of the presidential
candidates in the 1992 elections, the results disclosed that
newspapers showed biases for or against certain candidates. Hence,
the contention that "Section 11(b) does not cut off the flow of media
reporting, opinion or commentary about candidates, their
qualifications and platforms and promises" simply is illusory.
Editorial policy will always ensure that favored candidates receive
prominent coverage while less favored ones will get minimal
exposure, if at all. This underscores the need to give candidates the
freedom to advertise, if only to counteract negative reporting with
233
paid advertisements, which they cannot have recourse to with the
present prohibition. Worse, the ban even encourages corruption of
the mass media by candidates who procure paid hacks,
masquerading as legitimate journalists, to sing them paeans to the
high heavens. Wittingly or unwittingly, the mass media, to the
detriment of poor candidates, occasionally lend themselves to the
manipulative devices of the rich and influential candidates.
Finally, it is alleged that while Section 11(b) prohibited the sale or
donation by mass media of print space or air time for campaign or
other political purposes, COMELEC, by way of exception, was
mandated to purchase print space or air time, which space and time
it was required to allocate, equally and impartially, among the
candidates for public office. Hence, whatever limitation was
imposed by Section 11(b) upon the right to free speech of the
candidates was found not to be unduly repressive or unreasonable
inasmuch as they could still realize their objective as long as it was
coursed through COMELEC. COMELEC it was that shall decide what,
who, which media to employ and the time allocation for the
candidates who signify their desire to avail of the agency's air time
and print space. Why accord to COMELEC such powers in the name
of supervision and regulation at the expense of the constitutionally
hallowed freedom of expression?
Given the conditions then prevailing, the Court's ruling in NPC
v. COMELEC may have been valid and reasonable; yet today, with
the benefit of hindsight, it is clear that the prohibition has become a
woeful hindrance to the exercise by the candidates of their
cherished right to free expression and concomitantly, a violation of
the people's right to information on matters of public concern. As
applied, it has given an undue advantage to well-known popular
candidates for office.
In the hierarchy of fundamental civil liberties, the right of free
expression occupies a preferred position,18the sovereign people
recognizing that it is indispensable in a free society such as ours.
Verily, one of the touchstones of democracy is the principle
that free political discussion is necessary if government is to remain
responsive to the will of the people. It is a guarantee that the people
will be kept informed at all times sufficiently to discharge the
awesome responsibilities of sovereignty.
Yet, it is also to be conceded that freedom of expression is not an
absolute right. The right or privilege of free speech and publication
has its limitations, the right not being absolute at all times and under
all circumstances. For freedom of speech does not comprehend the
right to speak whenever, however, and wherever one pleases, and
the manner, and place, or time of public discussion can be
constitutionally controlled.19
Still, while freedom of expression may not be immune from
regulation, it does not follow that all regulation is valid. Regulation
must be reasonable as not to constitute a repression of the freedom
of expression. First, it must be shown that the interest of the public
generally, as distinguished from that of a particular class requires
such regulation. Second, it must appear that the means used are
reasonably necessary for the accomplishment of the purpose, and
not unduly oppressive upon individuals.
As to the first, in NPC v. COMELEC, this Court declared that the ban
on political advertising aims to assure equality of opportunity to
proffer oneself for public service by equalizing, as far as practicable,
the situations of rich and poor candidates by preventing the former
from enjoying the undue advantage offered by huge campaign "war
chests."
While there can be no gainsaying the laudable intent behind such an
objective, the State being mandated to guarantee equal access to
opportunities for public service, the prohibition has had the opposite
effect. Instead of "equalizing" the position of candidates who offer
themselves for public office, the prohibition actually gives an unfair
advantage to those who have had wide media exposure prior to the
campaign period. Instead of promoting the interests of the public in
general, the ban promotes the interest of a particular class of
candidates, the prominent and popular candidates for public office.
What is in store for the relatively obscure candidate who wants to
pursue his candidacy? Eager to trumpet his credentials and program
of government, he finds himself barred from using the facilities of
mass media on his own. While incumbent government officials,
show business personalities, athletes and prominent media men
enjoy the advantage of name recall due to past public exposure, the
unknown political neophyte has to content himself with other fora,
which, given the limited campaign period, cannot reach the
electorate as effectively as it would through the mass media. To be
sure, the candidate may avail himself of "COMELEC Space" and
"COMELEC Time," but the sheer number of candidates does not
make the same an effective vehicle of communication. Not
surprisingly, COMELEC Chairman Pardo, at the Oral Argument held
by the Court en banc, admitted that no candidate has as yet applied
for COMELEC air time and space.
More telling, the celebrities are lavished with broader coverage from
newspapers, radio and television stations, as well as via the
commentaries and expressions of belief or opinion by reporters,
broadcasters, editors, commentators or columnists, as they are
deemed more newsworthy by media, thus generating a self-
perpetuating cycle wherein political unknowns, who may be more
deserving of public office, campaign in relative obscurity compared
to their more popular rivals. Instead of equalizing opportunities for
public service, the prohibition not only perpetuates political
inequality, but also invidiously discriminates against lesser-known
candidates.
While Article IX(C), Section 10 of the Constitution provides that
"(b)ona fide candidates for any public office shall be free from any
form of harassment and discrimination," Article IX(C), Section 4 is
nothing if not antithetical to the former provision as, in its
application, it is productive of a situation wherein political
neophytes are blatantly discriminated against. Much as we recognize
the basic canon in Constitutional construction that the Constitution
must be interpreted in such a way as to harmonize all its provisions
if the Charter is to be construed as a single, comprehensive
document and not as a series of disjointed articles or provisions, the
predictable effect is for one provision to negate the other.
As to the second requisite, experience shows that the ban on
political advertisements has not been reasonably necessary to
accomplish its desired end. First, there are more than 70 provinces,
more than 60 cities and more than a thousand municipalities spread
all over the archipelago. Previous elections have shown that the ban
on political advertising forces a candidate to conduct a nationwide
whistle-stop campaign to attain maximum exposure of his
credentials and his program of government. Obviously, this
necessitates tremendous resources for sundry expenses
indispensable for political campaigns, all within a limited period of
90 days. Given the enormous logistics needed for such a massive
effort, what are the chances for an impecunious candidate who
sincerely aspires for national office?
On the other hand, radio and television reach out to a great majority
of the populace more than other instruments of information and
dissemination, being the most pervasive, effective, and inexpensive.
A 30-second television advertisement, costing around P35,000.00 at
present rates, would, in an instant, reach millions of viewers around
the country in the comfort of their homes. Indeed, the use of
modern mass media gives the poor candidate the opportunity to
make himself known to the electorate at an affordable cost. Yet,
these means of communication are denied such candidates due to
the imagined apprehension that more affluent candidates may
monopolize the airwaves. This fear, however, need not materialize
as the COMELEC is precisely empowered to regulate mass media to
prevent such a monopoly. Likewise, the ceiling on election spending
imposed by law upon all candidates, regardless, will also serve as a
deterrent.
Second, the means employed is less than effective, for with or
without the ban, moneyed candidates, although similarly barred
from buying mass media coverage, are in a position to lavish their
funds on other propaganda activities which their lesser-endowed
rivals can ill-afford. Furthermore, we take judicial notice of the
234
inability of COMELEC to enforce laws limiting political advertising to
"common poster areas." Many places in cities have been ungainly
plastered with campaign materials of the better off candidates.
What use is there in banning political advertisements to equalize the
situation between rich and poor candidates, when the COMELEC
itself, by its failure to curb the political excesses of candidates,
effectively encourages the prevailing disparities? Why then single
out political advertising? What is the reasonable necessity of doing
so?
To be realistic, judicial notice must be taken of the fact that
COMELEC, in narrowing down its list of "serious" candidates,
considers in effect a candidate's capability to wage an effective
nationwide campaign — which necessarily entails possession and/or
availability of substantial financial resources. Given this requirement,
the objective of equalizing rich and poor candidates may no longer
find relevance, the candidates ultimately allowed to run being
relatively equal, as far as resources are concerned. Additionally, the
disqualification of nuisance candidates, allegedly due to their
inability to launch serious campaigns, itself casts doubt on the
validity of the prohibition as a means to achieve the state policy of
equalizing access to opportunities for public service. If poor and
unknown candidates are declared unfit to run for office due to their
lack of logistics, the political ad ban fails to serve its purpose, as the
persons for whom it has been primarily imposed have been shunted
aside and thus, are unable to enjoy its benefits.
It must be kept in mind that the holding of periodic elections
constitute the very essence of a republican form of government,
these being the most direct act and participation of a citizen in the
conduct of government. In this process, political power is entrusted
by him, in concert with the entire body of the electorate, to the
leaders who are to govern the nation for a specified period. To make
this exercise meaningful, it is the duty of government to see to it
that elections are free and honest and that the voter is unhampered
by overt and covert inroads of fraud, force and corruption so that
the choice of the people may be untrammelled and the ballot box an
accurate repository of public opinion. And since so many
imponderables may affect the outcome of elections — qualifications
of voters and candidates, education, means of transportation,
health, public discussion, private animosities, the weather, the
threshold of a voter's resistance to pressure — the utmost
ventilation of opinion of men and issues, through assembly,
association and organizations, both by the candidate and the voter,
becomes a sine qua non for elections to truly reflect the will of the
electorate.
With the prohibition on political advertisements except through the
Comelec space and time, how can a full discussion of men, issues,
ideologies and programs be realized? Article III, Section 4 of the
Constitution provides that "(n)o law shall be passed abridging the
freedom of speech, of expression, of the press, or the right of the
people peaceably to assemble and petition the government for
redress of grievances." Implicit in this guarantee is the right of the
people to speak and publish their views and opinions on political and
other issues, without prior restraint and/or fear of subsequent
punishment. Yet Section 11(b), by authorizing political
advertisements only via the COMELEC effectively prevents the
candidates from freely using the facilities of print and electronic
mass media to reach the electorate. A more blatant form of prior
restraint on the free flow of information and ideas can hardly be
imagined. To be sure, it does not constitute an absolute restriction,
but it is restriction nonetheless, as odious and insidious as any that
may be conceived by minds canalized in deepening grooves.
I hold that, given our experience in the past two elections, political
advertisements on radio and television would not endanger any
substantial public interest. Indeed, allowing advertisements would
actually promote public interest by furthering public awareness of
election issues. The objective, equalizing opportunities for public
service, while of some immediacy during election times, does not
justify curtailing the citizen's right of free speech and expression.
Not only must the danger be patently clear and pressingly
present but the evil sought to be avoided must be so
substantive as to justify a clamp over one's mouth or a
writing instrument to be stilled. For these reasons, any
attempt to restrict these liberties must be justified by clear
public interest, threatened not doubtfully or remotely but
by clear and present danger. The rational connection
between the remedy provided and the evil to be curbed,
which in other context might support legislation against
attack on due process grounds, will not suffice. These
rights rest on firmer foundation. Accordingly, whatever
occasion would restrain orderly discussion and persuasion,
at appropriate time and place, must have clear support in
public danger, actual or impending. Only the greatest
abuses, endangering permanent interests, give occasion
for permissible limitation.20
No such clear and present danger exists here as to justify banning
political advertisements from radio and television stations.
Past experience shows that the COMELEC has been hard put
effectively informing the voting populace of the credentials,
accomplishments, and platforms of government of the candidates.
There are 17,396 national and local elective public positions21 which
will be contested by an estimated 100,000 candidates22 on May 11,
1998. For national positions, the list has been trimmed down to 11
candidates for president, 9 candidates for vice-president, and 40
candidates for senator. It is difficult to see how the number of
candidates can be adequately accommodated by "COMELEC Space"
and "COMELEC Time." Resolution No. 2983 of the COMELEC, issued
in compliance with Section 92 of B.P. 881, mandates that at least
thirty minutes or prime time be granted to the Commission, free of
charge, from February 10, 1998 until May 9, 1998.23 Thirty minutes
of prime-time for eighty-nine days (89) is scarcely enough time to
introduce candidates to the voters, much less to properly inform the
electorate of the credentials and platforms of all candidates running
for national office. Let us be reminded that those running for local
elective positions will also need to use the same space and time
from March 27 to May 9, 1998, and that the COMELEC itself is
authorized to use the space and time to disseminate vital election
information.24Clearly, "COMELEC Space" and "COMELEC Time"
sacrifices the right of the citizenry to be sufficiently informed
regarding the qualifications and programs of the candidates. The net
effect of Section 11(b) is, thus, a violation of the people's right to be
informed on matters of public concern and makes it a palpably
unreasonable restriction on the people's right to freedom of
expression. Not only this, the failure of "Comelec Space" and
"Comelec Time" to adequately inform the electorate, only highlights
the unreasonableness of the means employed to achieve the
objective of equalizing opportunities for public service between rich
and poor candidates.
Again, NPC v. COMELEC finds Section 11(b) valid, as paid political
advertisements are allowed in fora other than modern mass media,
thus: "aside from Section 11(b) of R.A. 6646 providing for 'COMELEC
Space' and 'COMELEC Time,' Sections 9 and 10 of the same law
afford a candidate several venues by which he can fully exercise his
freedom of expression, including freedom of assembly." A
concurring opinion points to the mandate of COMELEC to encourage
non-political, non-partisan private or civic organizations to initiate
and hold in every city and municipality, public fora at which all
registered candidates for the same office may participate in, the
designation of common poster areas, the right to hold political
caucuses, conferences, meetings, rallies, parades, and other
assemblies, as well as the publication and distribution of campaign
literature. All these devices conveniently gloss over the fact that for
the electorate, as shown in surveys by the Ateneo de Manila
University's Center for Social Policy and Public Affairs, mass media
remains to be the most important and accessible source of
information about candidates for public office.
It must be borne in mind that the novel party-list system will be
implemented in the impending elections. The party-list system, an
innovation introduced by the 1987 Constitution in order to
encourage the growth of a multi-party system is designed to give a
chance to marginalized sectors of society to elect their
representatives to the Congress. A scheme aimed at giving
235
meaningful representation to the interests of sectors which are not
adequately attended to in normal legislative deliberations, it is
envisioned that system will encourage interest in political affairs on
the part of a large number of citizens who feel that they are
deprived of the opportunity to elect spokesmen of their own
choosing under the present system. It is expected to forestall resort
to extra-parliamentary means by minority groups which would wish
to express their interests and influence governmental policies, since
every citizen is given a substantial representation.25
Under R.A. 7941, known as the Party-List System Act, the labor,
peasant, fisherfolk, urban poor, indigenous cultural communities,
elderly, handicapped, women, youth, veterans, overseas worker and
professional sectors26 will have the opportunity to elect
representatives to Congress. With the prohibition on political
advertisements, however, those parties who wish to have their
candidates elected as sectoral representatives, are prevented from
directly disseminating their platforms of government through the
mass media. The ban on political advertisements thus serves as a
deterrent to the development of self-reliance, self-development,
logistical and organizational capability on the part of sectoral
parties/organizations, even as it inhibits them from reaching their
target audiences. What more effective way of depriving them of the
chance of consolidating a mass base sorely needed for a fair chance
of success in a highly competitive political exercise. Likewise, with
the inability of the candidates to reach the sectors they seek to
represent, the right of the people belonging to these sectors to be
informed on matters of concern to them is likewise violated.27
Finally, NPC v. COMELEC invokes the specter of the "captive
audience" to justify its stand against political advertisements.
Describing political advertisements as "appealing to the non-
intellective faculties of the captive and passive audience," it says
that anyhow, the only limitation imposed by Section 11(b) upon the
free speech of candidates is on their right to bombard the helpless
electorate with paid advertisements commonly repeated in the mass
media ad nauseam.
Suffice it to say that, with the exception of obscenity, seditious
speech, libel, and the like, it is not for this Court to determine what
the people may or may not watch or read. Even "mind-numbing"
political advertisements are subject to the constitutional safeguard
of due process.
Freedom Of Speech Expression Remains A Fresh
and Vital Verity
The guarantee of the freedom of speech which has been defined by
Wendell Phillips as "the instrument and guarantee and the bright
and consummate flower of all liberty," has always been granted a
predominant status in the hierarchy of individual rights.28 It is
founded on the belief that the final end of the state was to make
men free to develop their faculties and that freedom to think as you
will and to speak as you think are means indispensable to the
discovery and spread of political truth.29 Its purpose is to preserve an
uninhibited marketplace of ideas where truth will ultimately
prevail.30 "An individual who seeks knowledge and truth must hear
all sides of the question, consider all alternatives, test his judgment
by exposing it to opposition and make full use of different minds.
Discussion must be kept open no matter how certainly true an
accepted opinion may be; many of the most widely accepted
opinions have turned out to be erroneous. Conversely, the same
principles apply no matter how false or pernicious the new opinion
may be; for the unaccepted opinion may be true and partially true;
and even if false, its presentation and open discussion compel a
rethinking and retesting of the accepted opinion.31 As applied to
instant case, this Court cannot dictate what the citizen may watch
on the ground that the same appeals only to his non-intellective
faculties or is mind-deadening and repetitive. A veritable "Big
Brother" looking over the shoulder of the people declaring: "We
know better what is good for you," is passé.
As to the puerile allegation that the same constitutes invasion of
privacy, making the Filipino audience a "captive audience," the
explosive growth of cable television and AM/FM radio will belie this
assertion. Today, the viewing population has access to 12 local TV
channels,32 as well as cable television offering up to 50 additional
channels. To maintain that political advertisements constitute
invasion of privacy overlooks the fact that viewers, with the surfeit
of channels, can easily skip to other TV channels during commercial
breaks — a fact which, coupled with the now ubiquitous remote
control device, has become the bane of advertisers everywhere.
The line between gaining access to an audience and forcing the
audience to hear is sometimes difficult to draw, leaving the courts
with no clearcut doctrine on issues arising from this kind of
intrusion. This is specially true in cases involving broadcast and
electronic media. The US cases cited as authorities on the captive
audience phenomenon, which, incidentally, did not involve the issue
of election campaigns,33 provide little guidance as to whether
freedom of speech may be infringed during the campaign period for
national elections on account of the individual's right to
privacy.34 Prudence would dictate against an infringement of the
freedom of speech if we are to take into consideration that an
election campaigns is as much a means of disseminating ideas as
attaining political office35 and freedom of speech has its fullest and
most urgent application to speech uttered during election
campaigns.36 In Buckley v. Valeo, a case involving the
constitutionality of certain provisions of the Federal Election
Campaign Act, the United States Supreme Court per curiam held
that:
the concept that the government may restrict the speech
of some elements in our society in order to enhance the
relative voice of the others is wholly foreign to the First
Amendment which was designed to "secure the widest
possible dissemination of information from diverse and
antagonistic sources" and "to assure unfettered
interchange of ideas for the bringing about of political and
social changes desired by the people. (emphasis
supplied) 37
The fear that the candidates will bombard the helpless electorate
with paid advertisements, while not entirely unfounded, is only to
be expected considering the nature of political campaigns. The
supposition however that "the political advertisements which will be
"introjected into the electronic media and repeated with mind
deadening frequency" are commonly crafted not so much to inform
and educate as to condition and manipulate, not so much to
provoke rational and objective appraisal of candidates' qualifications
or programs as to appeal to the intellective faculties of the captive
and passive audience" is not a valid justification for the infringement
of so paramount a right granted by the Constitution inasmuch as it is
the privilege of the electorate in a democratic society to make up
their own minds as to the merit of the advertisements presented.
The government derives its power from the people as the sovereign
and it may not impose its standards of what is true and what is false,
what is informative and what is not for the individual who, as a
"particle" of the sovereignty is the only one entitled to exercise this
privilege.
Government may regulate constitutionally protected speech in order
to promote a compelling interest if it chooses the least restrictive
means to further the said interest without unnecessarily interfering
with the guarantee of freedom of expression. Mere legislative
preference for one rather than another means for combating
substantive evils may well be an inadequate foundation on which to
rest regulations which are aimed at or in their operation diminish
the effective exercise of rights so necessary to maintenance of
democratic institutions.38
It should be noted that legislature has already seen fit to impose a
ceiling on the candidates' total campaign expenditures39 and has
limited the political campaign period to 90 days for candidates
winning for national office and 60 days for congressmen and other
local officials. With these restrictions, it cannot be gainsaid that the
constitutional provision on social justice has been sufficiently
complied with. We see no reason why another restriction, must be
imposed which only burdens the candidate and voters alike. To
make matters worse, we are not even certain as to the efficacy of
236
the "ad ban" in curtailing the feared consequences of the object of
its restriction. Of course, this is not to say that the law is being struck
down as unconstitutional mainly because it is efficacious or
inefficacious. If this is the only issue which confronts us, there would
have been no need to give due course to the petition inasmuch as
we would be inquiring as to the wisdom of the law and treading into
an area which rightfully belongs to the legislature. Verily, courts
cannot run a race of opinions upon points of right, reason and
expediency with the law-making power.40
Freedom of Expression Incompatible With Social Justice?
The constitutional question at hand is not just a simple matter of
deciding whether the "ad ban" is effective or ineffective in bridging
the financial disparity between the rich and poor candidates. Sec
11(b) of RA No. 6646 strikes at the very core of freedom of
expression. It is unconstitutional not because we are uncertain as to
whether it actually levels the playing field for the candidates but
because the means used to regulate freedom of expression is on all
points constitutionally impermissible. It tells the candidates when,
where and how to disseminate their ideas under pain of punishment
should they refuse to comply. The implications of the ban are indeed
more complex and far reaching than approximating equality among
the rich and poor candidates.
The primacy accorded the freedom of expression is a fundamental
postulate of our constitutional system. The trend as reflected in
Philippine and American decisions is to recognize the broadest scope
and assure the widest latitude to this guaranty. It represents a
profound commitment to the principle that debate of public issue
should be uninhibited, robust and wide open and may best serve its
high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are or even stirs people to
anger.41
The repression of expression in an attempt to level the playing field
between the rich and the poor candidates is not only unrealistic but
goes beyond the permissible limits of freedom of expression as
enshrined in the constitution. Social justice is a laudable objective
but it should not be used as a means to justify infringement of the
freedom of expression if it can be achieved by means that do not
unnecessarily trench on the individual's fundamental right. The case
of Guido v. Rural Progress Administration,42 is particularly
enlightening. In said case, we had occasion to state that:
Hand in hand with the announced principle, herein
invoked, that "the promotion of social justice to insure the
well being and economic security of all people should be
the concern of the state", is a declaration with which the
former should be reconciled, that "the Philippines is a
Republican state" created to secure to the Filipino people
"the blessings in independence under a regime of justice,
liberty and democracy." Democracy as a way of life
enshrined in the Constitution, embraces as its necessary
components freedom of conscience, freedom of
expression, and freedom in pursuit of happiness. . . . Social
justice does not champion division of property or equality
of economic status; what it and the Constitution do
guarantee are equality of economic opportunity, equality
of political rights, equality before the law, equality
between values given and received . . .
While we concede the possibility that the rich candidates may
dominate the airwaves to the detriment of the poor candidates, the
latter should not be prevented from replying. While they may be
restricted on account of their financial resources, they are not
denied access to the media altogether. This is what is meant by the
phrase "equal time, space, equal opportunity and the right of reply"
under Article IX (C)(4) of the 1987 Constitution which was inserted
by the framers of the Constitution as a reaction to a 1981 ruling of
the Supreme Court that when the president speaks over radio or
television, he speaks not as representative of his party but of the
people and therefore opposition parties have no right to demand
equal time.43
It is ironic that the guarantee of freedom of expression should be
pitted against the constitutional provision on social justice because
the freedom of speech is the most potent instrument of public
opinion, not to speak of its being the most effective weapon for
effecting political and social reforms. Certainly, an infringement of
the freedom of speech in a less than heroic attempt at attaining
social justice cannot be countenanced, for in the ultimate analysis
social justice cannot flourish if the people's right to speak, to hear, to
know and ask for redress of grievances is watered down.
A word on the intervenors' argument that Resolution No. 2983,
Section 2, insofar as it directs every radio broadcasting and
television station to provide COMELEC with air time free of charge
constitutes taking of private property for public use without just
compensation. The COMELEC, anticipating its vulnerability to said
challenge passed Resolution 2983-A on March 3, 1998 requiring that
it pay just compensation for its COMELEC time.
Buckley vs. Valeo and Existing US Jurisprudence
The novelist George Orwell once said, "In a society in which there is
no law, and in theory no compulsion, the only arbiter of behavior is
public opinion. But public opinion, because of the tremendous urge
to conformity in gregarious animals, is less tolerant than any other
system of law." For want of legislature to equalize the playing field
between the rich and the poor candidates, it has, by imposing a
complete prohibition on paid political advertisements, burned down
a house to roast a pig. For fear of accusations that it might be
treading into an area which rightfully belongs to the legislature, the
Court today, by sanctioning an unnecessary infringement on the
freedom of speech, has unwittingly allowed the camel's nose into
the tent.
My colleague, Justice Reynato Puno, in his separate opinion,
apparently overlooked the thrust of our dissenting opinion when we
quoted the case of Buckley v. Valeo.44 Lest we be misunderstood, we
have in no way relied on the Buckley v. Valeo case for the grant of
the instant petition inasmuch as it has never escaped our notice that
legislature has already seen fit to impose a ceiling on the candidates'
total campaign expenditures45 Precisely, we have repeatedly
emphasized in the dissenting opinion that we see no reason why
another restriction must be imposed on the constitutional guarantee
of freedom of speech which only burdens the candidates and
electorates alike when legislature has already taken steps to comply
with the constitutional provision on social justice by imposing a
ceiling on the candidates' total campaign expenditures and limiting
the campaign period to 90 days for candidates running for national
office and 60 days for congressmen and other local officials. We
have mentioned Buckley if only to underscore the fact that due to
the primacy accorded to freedom of speech, courts, as a rule are
wary to impose greater restrictions as to any attempt to curtail
speeches with political content. To preserve the sanctity of the
status accorded to the said freedom, the US Supreme Court has, in
fact, gone as far as invalidating a federal law limiting individual
expenditures of candidates running for political office.
In any case, to address some misconceptions about existing
jurisprudence on the matter, we now present a brief discussion on
Buckley and the preceding US cases. In the case of Buckley v. Valeo,
a divided US Supreme Court, per curiam held that a federal law
limiting individual contributions to candidates for office served the
state's compelling interest in limiting the actuality and appearance
of corruption. However a law limiting expenditures by candidates,
individuals and groups was held unconstitutional. The rationale for
the dichotomy between campaign expenditures and contributions
has been explained in this wise — campaign contributions are
marginal because they convey only an undifferentiated expression of
support rather than the specific values which motivate the support.
Expenditures, on the other hand, as directly related to the
expression of political views, are on a higher plane of constitutional
values. The Court, in noting that a more stringent justification is
necessary for legislative intrusion into protected speech said, "A
restriction on the amount of money a person or a group can spend
on political communication necessarily reduces the quantity of
expression by restricting the number of issues discussed, the depth
237
of their exploration, and the size of the audience reached. This is
because virtually every means of communicating in today's mass
society requires the expenditure of money."46
A more discerning scrutiny of the US cases following Buckley, would
show that while Buckley has been widely criticized, it has, to date,
never been modified, much less discredited. In California Medical
Association vs. FEC,47 a law limiting the amount an incorporated
association can contribute to a multi-candidate political committee
was upheld. The spending was viewed not as independent political
speech but rather as "speech by proxy," hence, the spending was
deemed analogous to group contributions which can be regulated.
In FEC vs. National Conservative Political Action Comm.48 the US
Supreme Court invalidated a section of the Presidential Election
Campaign Fund Act which makes it a criminal offense for
an independent political committee to spend more than $1,000 to
further the election of a presidential candidate who elects public
funding. National Conservative Political Action Committee (NCPAC)
and the Fund for a Conservative Majority (FCM), two political action
committees or PAC's, solicited funds in support of President
Reagan's 1980 presidential campaign. The PAC's spent these funds
on radio and television advertising in support of Reagan. The Court,
relying on Buckley v. Valeo and the distinction it drew between
expenditures and contributions, held that the independent
expenditures of the political committees were constitutionally
protected for they "produce speech at the core of the First
Amendment" necessitating a "rigorous standard of review." Justice
Rehnquist, for the court, likened the restriction to allowing a speaker
in a public hall to express his views while denying him use of the
amplifier. As in Buckley, independent expenditures, not coordinated
with candidates' political campaign, were seen as presenting a lesser
danger of political quid pro quos. The Court then proceeded to reject
efforts to support the statutory limitation on expenditures on the
basis of special treatment historically accorded to corporations
inasmuch as the terms of the Campaign Fund Act "apply equally to
an informal neighborhood group that solicits contributions and
spends money on a presidential election campaign as to the wealthy
and professionally managed PAC's."
In the case of FEC v. Massachussets Citizens for Life (MCFL),49 a
provision of the Federal Election Campaign Act prohibiting direct
expenditure of corporate funds to a non-profit, voluntary political
association concerned with elections to public office was struck
down as unconstitutional. No compelling government interest was
found to justify infringement of protected political speech in this
case where a small voluntary political association, which had no
shareholders and was not engaged in business, refused to accept
contributions from either business corporations or labor unions.
In Austin v. Michigan Chamber of Commerce,50 the case cited by
Justice Puno, a Michigan statute prohibiting corporations from
making campaign contributions from their general treasury funds to
political candidates was held not to violate the first amendment
even though the statute burdened expressive activity mainly
because the statute was sufficiently narrowed to support its goal in
preventing political corruption or the appearance of undue influence
— it did not prohibit all corporate spending and corporations were
permitted to make independent expenditures for political purposes
from segregated funds but not from their treasuries. Notably, the
non profit corporation involved in this case, the Michigan Chamber of
Commerce (hereinafter referred to as the Chamber of Commerce),
lacked three of the distinctive features of MCFL, the organization
involved in the FEC vs. National Conservative Political Action
Comm51 case, namely: (1) The Chamber of Commerce, unlike MCFL,
was not formed just for the purpose of political expression (2) The
members of the Chamber of commerce had an economic reason for
remaining with it even though they might disagree with its politics
and (3) The Chamber of Commerce, unlike MCFL, was subject to
influence from business corporations which might use it as a conduit
for direct spending which would pose a threat to the political
marketplace.
From the foregoing, it should be obvious that Austin in fact supports
the holding in Buckley v. Valeo and "refines" it insofar as as it allows
the regulation of corporate spending in the political process if the
regulation is drawn with sufficient specificity to serve the compelling
state interest in reducing the threat that "huge corporate treasuries"
will distort the political process and influence unfairly the outcome
of elections.
The ad ban, undoubtedly, could hardly be considered as a regulation
drawn with sufficient specificity to serve compelling governmental
interest inasmuch as it imposes a complete prohibition on the use of
paid political advertisements except through Comelec time and
space despite the fact that Congress has already seen fit to impose a
ceiling on the candidates' total campaign expenditures. While it
seems a rather fair proposition that Congress may regulate the
misuse of money by limiting the candidates' total campaign
expenditures, it seems a rather curious supposition that Congress
through the ad ban can regulate the misuse of money by telling the
candidates how, when and where to use their financial resources for
political campaigns. Obviously, it is one thing to limit the total
campaign expenditures of the candidates and another to dictate to
them as to how they should spend it.
Freedom of expression occupies a preferred position in the hierarchy
of human values. The priority gives the liberty a sanctity and a
sanction not permitting dubious intrusions and it is the character of
the right, not the limitation which determines what standard
governs the choice. 52 Consequently, when the government defends
a regulation on speech as a means to redress past harm or prevent
anticipated harm, it must do more than simply "posit the existence
of the disease sought to be cured.53 It must demonstrate that the
recited harms are real, not merely conjectural and that the
regulation will alleviate these harms in a material way.54
As earlier pointed out, legislature has already seen fit to impose a
ceiling on the total campaign expenditures of the candidates and has
limited the campaign period for 90/60 days. We see no reason why
another restriction must be imposed which only burdens the
candidates and voters alike. The fact alone that so much time has
been devoted to the discussion as to whether the ad ban does in fact
level the playing field among the rich and poor candidates should be
a strong indication in itself that it is a dubious intrusion on the
freedom of expression which should not be countenanced.
Illegitimate and unconstitutional practices make their initial foothold
by furtive approaches and minimal deviations from legal modes of
procedure. Hence, courts must be extremely vigilant in safeguarding
the fundamental rights granted by the Constitution to the individual.
Since freedom of expression occupies a dominant position in the
hierarchy of rights under the Constitution, it deserves no less than
an exacting standard of limitation. Limitations on the guarantee
must be clearcut, precise and, if needed readily controllable,
otherwise the forces that press towards curtailment will eventually
break through the crevices and freedom of expression will become
the exception and suppression the rule.55 Sadly, the much vaunted
ad ban failed to live up to such standard and roseate expectations.
Freedom of Expression In Historical Context
At this juncture, as we celebrate the Centennial of our Philippine
Independence, it is timely to call to mind that wars and revolutions
have been fought, not only in our shores and in our time, but in
centuries past, halfway around the globe to keep these subject
rights inviolate. To stretch our memories, Spain's adamant denial of
basic freedoms to our hapless forefathers, among others, sparked
the Philippine revolution. Jose Rizal, in "Filipinas Despues de Cien
Años"56 described the reform a sine quibus non, saying, "The
minister, . . . who wants his reforms to be reforms, must begin by
declaring the press in the Philippines free." The Filipino
propagandists who sought refuge in the freer intellectual climate of
Spain invariably demanded "liberty of the press, of cults, and of
associations57 through the columns of "La Solidaridad."
One of the more lofty minds unleashed his fierce nationalistic
aspirations though the novels Noli Me Tangere and El Filibusterismo,
necessarily banned from the author's native land. Eventually, the
seeds of these monumental works ignited the flame of revolution,
238
devouring in the process its foremost exponent, albeit producing a
national hero, Jose Rizal. The mighty pen emerged victorious over
the colonizers' sword.
The Malolos Constitution, approved before the turn of century on
January 20, 1899, enshrined freedom of expression in Article 20 of
its Bill of Rights, thus:
Article 20 Neither shall any Filipino be deprived:
1. Of the right to freely express his ideas or opinions, orally
or in writing, through the use of the press or other similar
means.58
This right, held sacrosanct by the Filipino people and won at the cost
of their lives found its way ultimately in the Constitutions of a later
day, reenforced as they were, by the profound thoughts
transplanted on fertile soil by libertarian ideologies. Why emasculate
the freedom of expression now to accord a governmental agency a
power exercisable for a limited period of time for the dubious
purpose of "equalizing" the chances of wealthy and less affluent
candidates?
In summary, I hold that Section 11(b) of R.A. 6646, in the six years
that have elapsed since it was upheld as being in consonance with
the fundamental law, has now become out of sync with the times
and, therefore, unreasonable and arbitrary, as it not only unduly
restrains the freedom of expression of candidates but corollarily
denies the electorate its fullest right to freedom of information at a
time when it should flourish most.
For the reasons stated above, I VOTE to declare Section 11(b) of R.A.
6646 UNCONSTITUTIONAL.
Quisumbing and Purisima, JJ., dissent.
PANGANIBAN, J., dissenting;
The Court, by a majority vote, decided to uphold the ban on political
advertising, as provided, under Section 11(b)1 of RA 6646, and to
reiterate the 1992 ruling in National Press Club vs. Comelec2 for two
main reasons:
1. To equalize "as far as practicable, the situations of rich
and poor candidates by preventing the former from
enjoying the undue advantage offered by huge campaign
'war chests.'" In other words, the intention of the
prohibition is to equalize the "political playing field" for rich
and poor candidates.
2. While conceding that Section 11(b) of RA 6646 "limit[s]
the right of free speech and of access to mass media of the
candidates themselves," the Court justifies the ad ban by
alleging that: (a) it is limited, first, in its "duration," (i.e. the
ban applies only during the "election period") and, second,
in its "scope" (i.e. the prohibition on the sale and the
donation of print space and air time covers only those for
"campaign and other political purposes", time does not
restrict the legitimate reporting of news and opinions by
media practitioners who are not candidates); and (b) the
Comelec is authorized to procure, by purchase or
donation, media time and space which are to be fairly,
freely and equally distributed among the
candidates. Otherwise stated, the grant of Comelec time
and space, free of charge, to said candidates makes up for
the admitted infringement of the constitutional right to
free speech and access to mass media during the campaign
period.
With all due respect, I disagree with the majority's view and join the
stirring Dissenting Opinions of Justices Hugo E. Gutierrez, Jr.,3 Isagani
A.
Cruz4 and Edgardo L. Paras5 in NPC vs. Comelec, and of Justice Flerida
Ruth P. Romero in the present case. I will no longer repeat their
cogent legal arguments. Let me just add my own.
1. Ad Ban Not Pro-Poor
but Anti-Poor
The majority argues that the ad ban is pro-poor, because it prevents
the rich from buying media time and space which the poor cannot
afford or match. This argument assumes that media advertising is
expensive and, thus, beyond the reach of the poor.
I respectfully submit that such argument is bereft of factual basis.
True, a full-page ad in a major broadsheet6 may be priced at about
P100,000; a 30-second commercial in a major television
channel,7anywhere from P15,000 to P90,000 depending on the time
and the program; while air time of an equal duration in a leading
radio station, anywhere from P300 to P4,500.8 But even with such
price tags, media ads are not necessarily expensive, considering their
nationwide reach, audience penetration, effectiveness and
persuasive value.
Realistically, expenses are involved in a candidacy for a national
office like the presidency, the vice presidency, and the senate. In
recognition of this, the law has limited campaign expenditures to ten
pesos (P10) for every voter in the case of candidates for president
and vice president, and three pesos (P3) per voter in their
constituencies, for other candidates.9 Anyone — whether rich or
poor — who aspires for such national elective office must expect to
spend a considerable sum, whether of his own or from allowable
donations, to make himself and his platform or program of
government known to the voting public.
Media Ads
Comparatively Cheaper
While a one-page black-and-white ad in a major daily costs about
P100,000, it is replicated, however, in about 250,000
copies 10 circulated to an equal number of offices and
households nationwide on the very same day of its publication. Each
newspaper copy has an average readership of six. Hence, the ad is
exposed to about 1.5 million (250,000 x 6) people all over the
country. Consider, too, that people discuss what they read while
they congregate in barber shops, corner stores, and other places
where people gather. Sometimes, radio and TV broadcasters pick up
and comment on what they read in newspapers. So, the reach, pass-
on readership, multiplier effect and effectivity of a broadsheet ad
are practically immeasurable.
On the other hand, let us consider the alternative of printing and
distributing a poster or handbill of similar size. The actual printing
cost of such handbill on newsprint is twenty centavos (P.20) per
copy.11The cost of P250,000 copies (the circulation of a major daily)
would thus be P50,000 (250,000 x P.20). But that is only the printing
cost. To disseminate these handbills nationwide on the same day of
printing without the distribution network of a major newspaper is
almost impossible. Besides, the cost would be horrendous. To
approximate the circulation of a major newspaper, the most
practical substitute would be the mails. Ordinary mail is now P4.00
per posting. Hence, the distribution cost through the mails would be
P1 million (250,000 copies x P4.00). And this does not include the
manual work and cost of sorting, folding and individually addressing
these 250,000 pieces of mail matter. (This alternative assumes the
availability of a mailing list equivalent to the reach of a newspaper.)
Even if third-class mail is used, the distribution cost alone will still be
P3.00 per individual mailing, or P750,000 for all 250,000 copies.12
This alternative is not only much more expensive but much less
effective as well, because it has no guarantee of same-day delivery,
has a diminished readership multiplier effect and is tremendously
cumbersome in terms of sorting and distribution.
Furthermore, a candidate need not buy one-page ads. He can use
quarter-page ads at one fourth the cost or about P25,000 only per
239
issue. To be effective in his ad campaign, he may need to come out
once every three days (to be spread out among the different dailies)
or 30 times during the 90-day campaign period13 for national
candidates. Hence, he will spend, for the entire duration of the
campaign, about P750,000 (P25,000 x 30). I repeat, to advertise a
one-fourth page ad at least 30 times in various major dailies, a
candidate needs to spend only P750,000 — an amount less than the
alternative of printing and distributing nationwide ONLY ONCE a less
timely and less effective equivalent leaflet or poster.
A similar detailed comparison of cost-benefit could be written for
radio and television. While, at initial glance, the rates for these
electronic media may appear high, still they could be proven more
beneficial and cheaper in the long term because of their "value-for-
money" appeal.14
Candidates Should Not Be Denied Option to Use Media Ads
From the foregoing, it is clear that mass media truly offers an
economical, practical, and effective means by which a relatively
unknown but well-qualified political candidate who has limited
resources, particularly one running for a national office, may make
known to the general public during the short campaign period15 his
qualifications, platform of government, stand on vital issues, as well
as his responses to questions or doubts about his capabilities, his
character or any other matter raised against him. Deprived of media
ads, the rich candidate, unlike his poor opponent, resorts to
expensive propaganda — the holding of public meetings and rallies
before large but oftentimes "paid" crowds, helicopter stops and
motorcades spanning several towns and cities, the production of
ingenious materials, giveaways and other products, and the
incessant printing and distribution of various campaign
paraphernalia. These forms of electoral promotion ineluctably
require a large political machinery and gargantuan funds
(organization + people/supporters + communication gadgets +
vehicles + logistics). To combat this formidable and expensive
election behemoth, the poor candidate's most viable alternative may
be media advertising.
In NPC vs. Comelec, it was feared that the "unlimited purchase of
print space and radio and television time . . . by the financially
affluent [was] likely to make a crucial difference." But I say such fear
is unfounded. First, because campaign expenses are limited by law.
Second, the possibility of the abuse and misuse of media ads by the
"financially affluent" is not an argument in favor of their total
withdrawal, for — to use the very words of the majority in NPC —
"there is no power or authority in human society that is not
susceptible of being abused."16 Third, the absence of access to
media advertising totally deprives the poor candidate of his most
formidable weapon in combating the "huge campaign war chests" of
rich contenders.
THE POINT IS: IT IS INCORRECT TO SAY THAT MEDIA ADVERTISING
SHOULD BE BANNED BECAUSE ONLY THE RICH CAN AFFORD IT OR,
FOR THAT MATTER, THEY MAY ABUSE OR MISUSE IT. Quite the
contrary, in terms of reach, pass-on readership, multiplier effect and
cost-benefit advantage, media advertising may be the cheapest and
most effective campaign mechanism available. I am not suggesting
that every candidate should use media ads. In the final analysis, it is
really up to the candidates and their campaign handlers to adopt
such mode and means of campaigning as their budgets and political
strategies may require.16a What I am stressing is that candidates,
whether rich or poor, should be given the option of campaigning
through media, instead of being forced to use other forms of
propaganda that could turn out to be less effective and more
expensive.
2. Ad Ban Not Limited; Comelec Time and Space Inutile
I now come to the second major point. The majority rationalizes the
ad ban by saying that it has a very limited duration and scope and
that, in any event, the Comelec's grant of free media time and space
to candidates more than makes up for the violation of their
constitutional right. I disagree.
Ad Ban Not
Limited in Duration
The ad ban is constitutional because, according to the majority, it is
limited in duration for the reason that it is enforced only during the
election period. In my humble view and with all due respect, this is
both erroneous and illogical. A political advertisement is relevant
only during the campaign period — not before and not after. As
petitioners put it, a ban on mountain-skiing during the winter season
cannot be said to be limited in duration, just because it is enforced
during winter. After all, skiing is indulged in only when the
mountains slopes are covered with snow. To add a further parallel, a
ban against the planting of rice during the rainy season is not limited
simply because it covers only that season. After all, nobody plants
rice during summer when the soil is parched. In the same manner,
campaign ads are not resorted to except during the campaign
period. And their prohibition does not become any less odious and
less comprehensive just because the proscription applies only during
the election season. Obviously, candidates need to advertise their
qualifications and platforms only during such period. Properly
understood, therefore, the prohibition is not limited in duration but
is in fact and in truth total, complete and exhaustive.
Ad Ban Neither Limited in Scope
The majority also claims that the prohibition is reasonable because it
is limited in scope; that is, it refers only to the purchase, sale or
donation of print space and air time for "campaign or other political
purposes," and does not restrict news reporting or commentaries by
editors, columnists, reporters, and broadcasters. But the issue here
is not the freedom of media professionals.17 The issue is the freedom
of expression of candidates. That the freedom of the press is
respected by the law and by the Comelec is not a reason to trample
upon the candidates' constitutional right to free speech and the
people's right to information. In this light, the majority's contention
is a clear case of non sequitur. Media ads do not partake of the "real
substantive evil" that the state has a right to prevent 18 and that
justifies the curtailment of the people's cardinal right to choose their
means of expression and of access to information.
Besides, what constitutes "campaign or other political purposes"?
Neither RA 6646 nor the majority provides an explanation. If
candidates buy 30 column-inches of newspaper space or one hour of
prime radio/TV, time everyday, and if they retrain professional
journalists to use such space/time to defend them from attacks and
to promote their platforms of government, should such purchase be
covered by the ad ban, or should it be allowed as an exercise of the
freedom of journalists to express their views? Even more insidiously,
should regular columnists' daily defense of their chosen candidates
and daily promotion of their platforms of government constitute
donated space for "campaign and other political purposes"? 19
Ad Ban Not Compensated for or Justified by Free "Comelec Time"
Finally, the majority opines that the grant of free Comelec media
time and space to candidates more than makes up for the
abridgment of the latter's right to buy political ads.20 With due
respect, I believe this is hollow and shallow.
In its Compliance dated March 13, 1998, Comelec tell us that under
its Resolution No. 3015, it gave due course to eleven candidates for
president,21 nine for vice president,22 and forty for senator.23 It is
claimed however that, all in all, there are really about 100,000
candidates running for about 17,000 national and local positions in
the coming elections, from whom a voter is expected to choose at
least 3024 to vote for. With so many candidates, how can the
ordinary, sometimes nonchalant, voter ever get to know each of the
political hopefuls from whom he will make an intelligent selection?
In the crucial choice for president alone, how can ordinary citizens
intelligently and sufficiently assess each of the 11 candidates in
order to make a sensible choice for a leader upon whom to entrust
the momentous responsibility of carving the country's path in the
next millennium?
240
The Comelec answers these questions with Resolution No. 2983-A,
promulgated on March 3, 1998, in which it asks "every radio
broadcasting and television station operating under franchise [to]
grant the Commission, upon payment of just compensation, at least
thirty (30) minutes of prime time daily, to be known as 'Comelec
time' effective February 10, 1998 for candidates for President, Vice
President and Senators, and effective March 27, 1998 for candidates
for local elective offices, until May 9, 1998," to be allocated "by
lottery" among candidates requesting its use. But Comelec, in the
same Compliance, informed the Court that "it is not procuring
'Comelec space' (in any newspaper) by virtue of the effects of the
decision of this Honorable Court in the case of Philippine Press
Institute (PPI) vs. Comelec, 244 SCRA 272."25
In sum, the Comelec intends to secure 30 minutes of "Comelec time"
from every radio and broadcasting station to be allocated equally to
all candidates. The Comelec does not state exactly how it intends to
allocate — except "by lottery" — these 30 minutes per station to the
17,000 candidates, considering that these stations do not have the
same reach, audience and penetration. The poll body does not say
exactly how many stations are involved, what budget allocation, if
any, it has for the purpose,26 when each candidate will be allowed to
speak and for how long, how the Comelec intends to cover the 77
provinces, 68 cities and 42,000 barangays nationwide, and many
other details. Moreover, while the Comelec smugly speaks of free
Comelec time being effective on "February 10, 1998" for national
candidates, Resolution 2983-A itself was promulgated only on March
3, 1998.
Up to this writing, I have yet to hear of any major candidate using
this so-called free Comelec broadcast time. In fact, during the oral
argument of this case on March 5, 1998, Comelec Chairman
Bernardo P. Pardo frankly admitted that no candidate had applied
for an allocation of Comelec time. Not even petitioners. This is the
best testament to the utter inutility and ineffectivity of Comelec
time. Indeed, it cannot be a substitute, much less a viable
alternative, to freely chosen but paid for media ads. It cannot
compensate for the violation of the candidates' right to free speech
and media access, or for the electorate's right to information.
If the real objective is to level the playing field for rich and poor
candidates, there must be, as there already are, a cap on election
expenses and a shortening of the campaign period. The incapability
of the Comelec to effectively monitor and strictly implement such
expense and time limitations should not take its toll upon
constitutionally enshrined liberties of the people, including the
candidates. To prohibit access to mass media, except only through
Comelec time — which has been indubitably shorn to be sorely
insubstantial, insignificant and inutile — is not, and is far from being,
a solution to the problems faced by poor candidates. The simple
remedy is to lift the media ban.
logic and basis. Even more shallow is the argument that the
Comelec-given media time and space compensate for such
abridgment. In fact, the Comelec is not even procuring any
newspaper space. In any event, the fact that not even the poorest
candidates have applied for available opportunities is the best
testament to its dubiousness. That petitioners who are seasoned
political leaders prefer to pay for their own media ads rather than to
avail themselves of the Comelec freebies refutes the majority's
thesis of compensation. Indeed, the free things in life are not always
the best.30 They mat just be a bureaucratic waste of resources.
Before I close, a word about stare decisis. In the present case, the
Court is maintaining the ad ban to be consistent with its previous
holding in NPC vs. Comelec. Thus, respondent urges reverence for
the stability of judicial doctrines. I submit, however, that more
important than consistency and stability are the verity, integrity and
correctness of jurisprudence. As Dean Roscoe Pound explains, "Law
must be stable but it cannot stand still." Verily, it must correct itself
and move in cadence with the march of the electronic age. Error and
illogic should not be perpetuated. After all, the Supreme Court, in
many cases,31has deviated from stare decisis and reversed previous
doctrines and decisions. It should do no less in the present case.
Elections can he free, honest and credible not only because of the
absence of the three execrable "G's" or "guns, goons and gold."
Beyond this, the integrity and effectivity of electoral democracy
depend upon the availability of information and education touching
on three good "P's" — principles, platforms and programs of the
candidates. Indeed, an intelligent vote presupposes a well-informed
voter. If elections must be rid of patronage, personalities and
popularity as the main criteria of the people's choice, we must allow
candidates every opportunity to educate the voters. And corollarily,
the people must be accorded every access to such information
without much effort and expense on their part.
With all due respect, I submit that the ad ban is regressive,
repressive and deceptive. It has no place in our constitutional
democracy.
WHEREFORE, I vote to GRANT the petition and to CONDEMN Section
11(b) of RA 6646 as UNCONSTITUTIONAL and VOID.
Quisumbing and Purisima, JJ., dissent.

Epilogue

The ad ban is a blatant violation of the candidates' constitutional

right to free speech 27 and the people's right to information.28 Being
the last refuge of the people and the guardian of the Constitution,
this Court should then, with alacrity, view the ban with suspicion, if
not with outright rejection.29 To repeat, the alleged limitations are in
reality nonexistent; and the "pro-poor" justification, without logic.

To say that the prohibition levels the playing field for the rich and
the poor is to indulge in a theoretical assumption totally devoid of
factual basis. On the contrary, media advertising may be —
depending on a contender's propaganda strategy — the cheapest,
most practical and most effective campaign medium, especially for
national candidates. By completely denying this medium to both the
rich and the poor, this Court has not leveled the playing field. It has
effectively abolished it! Far from equalizing campaign opportunities,
the ban on media advertising actually favors the rich (and the
popular) who can afford the more expensive and burdensome forms
of propaganda, against the poor (and the unknown) who cannot.

The allegation that the prohibition is reasonable because it is limited

in duration and scope is itself most unreasonable, bereft as it is of
241
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-59524 February 18, 1985
JOVITO R. SALONGA, petitioner,
vs.
HON. ERNANI CRUZ PAÑO, Presiding Judge of the Court of First
Instance of Rizal Branch XVIII (Quezon City), HON. JUDGE RODOLFO
ORTIZ, Presiding Judge of the Court of First Instance of Rizal,
Branch XXXI (Quezon City) CITY FISCAL SERGIO APOSTOL of Quezon
City; COL. BALBINO DIEGO and COL. ROMAN
MADELLA, respondents.
GUTIERREZ, JR., J.:
The petitioner invokes the constitutionally protected right to life and
liberty guaranteed by the due process clause, alleging that no prima
facie case has been established to warrant the filing of an
information for subversion against him. Petitioner asks this Court to
prohibit and prevent the respondents from using the iron arm of the
law to harass, oppress, and persecute him, a member of the
democratic opposition in the Philippines.
The background of this case is a matter of public knowledge.
A rash of bombings occurred in the Metro Manila area in the months
of August, September and October of 1980. On September 6, 1980,
one Victor Burns Lovely, Jr., a Philippine-born American citizen from
Los Angeles, California, almost killed himself and injured his younger
brother, Romeo, as a result of the explosion of a small bomb inside
his room at the YMCA building in Manila. Found in Lovely's
possession by police and military authorities were several pictures
taken sometime in May, 1980 at the birthday party of former
Congressman Raul Daza held at the latter's residence in a Los
Angeles suburb. Petitioner Jovito R. Salonga and his wife were
among those whose likenesses appeared in the group pictures
together with other guests, including Lovely.
As a result of the serious injuries he suffered, Lovely was brought by
military and police authorities to the AFP Medical Center (V. Luna
Hospital) where he was placed in the custody and detention of Col.
Roman P. Madella, under the over-all direction of General Fabian
Ver, head of the National Intelligence and Security Authority (NISA).
Shortly afterwards, Mr. Lovely and his two brothers, Romeo and
Baltazar Lovely were charged with subversion, illegal possession of
explosives, and damage to property.
On September 12, 1980, bombs once again exploded in Metro
Manila including one which resulted in the death of an American
lady who was shopping at Rustan's Supermarket in Makati and
others which caused injuries to a number of persons.
On September 20, 1980, the President's anniversary television radio
press conference was broadcast. The younger brother of Victor
Lovely, Romeo, was presented during the conference. In his
interview, Romeo stated that he had driven his elder brother, Victor,
to the petitioner's house in Greenhills on two occasions. The first
time was on August 20, 1980. Romeo stated that Victor did not bring
any bag with him on that day when he went to the petitioner's
residence and did not carry a bag when he left. The second time was
in the afternoon of August 31, 1980 when he brought Victor only to
the gate of the petitioner's house. Romeo did not enter the
petitioner's residence. Neither did he return that day to pick up his
brother.
The next day, newspapers came out with almost Identical headlines
stating in effect that petitioner had been linked to the various
bombings in Metro Manila.
Meanwhile, on September 25, 1980, Lovely was taken out of the
hospital's intensive care unit and transferred to the office of Col.
Madella where he was held incommunicado for some time.
On the night of October 4, 1980, more bombs were reported to have
exploded at three big hotels in Metro Manila, namely: Philippine
Plaza, Century Park Sheraton and Manila Peninsula. The bombs
injured nine people. A meeting of the General Military Council was
called for October 6, 1980.
On October 19, 1980, minutes after the President had finished
delivering his speech before the International Conference of the
American Society of Travel Agents at the Philippine International
Convention Center, a small bomb exploded. Within the next twenty-
four hours, arrest, search, and seizure orders (ASSOs) were issued
against persons who were apparently implicated by Victor Lovely in
the series of bombings in Metro Manila. One of them was herein
petitioner. Victor Lovely offered himself to be a "state witness" and
in his letter to the President, he stated that he will reveal everything
he knows about the bombings.
On October 21, 1980, elements of the military went to the hospital
room of the petitioner at the Manila Medical Center where he was
confined due to his recurrent and chronic ailment of bronchial
asthma and placed him under arrest. The arresting officer showed
the petitioner the ASSO form which however did not specify the
charge or charges against him. For some time, the petitioner's
lawyers were not permitted to visit him in his hospital room until
this Court in the case of Ordoñez v. Gen. Fabian Ver, et al., (G.R. No.
55345, October 28, 1980) issued an order directing that the
petitioner's right to be visited by counsel be respected.
On November 2, 1980, the petitioner was transferred against his
objections from his hospital arrest to an isolation room without
windows in an army prison camp at Fort Bonifacio, Makati. The
petitioner states that he was not informed why he was transferred
and detained, nor was he ever investigated or questioned by any
military or civil authority.
Subsequently, on November 27, 1980, the petitioner was released
for humanitarian reasons from military custody and placed "under
house arrest in the custody of Mrs. Lydia Salonga" still without the
benefit of any investigation or charges.
On December 10, 1980, the Judge Advocate General sent the
petitioner a "Notice of Preliminary Investigation" in People v.
Benigno Aquino, Jr., et al. (which included petitioner as a co-
accused), stating that "the preliminary investigation of the above-
entitled case has been set at 2:30 o'clock p.m. on December 12,
1980" and that petitioner was given ten (10) days from receipt of the
charge sheet and the supporting evidence within which to file his
counter-evidence. The petitioner states that up to the time martial
law was lifted on January 17, 1981, and despite assurance to the
contrary, he has not received any copies of the charges against him
nor any copies of the so-called supporting evidence.
On February 9, 1981, the records of the case were turned over by
the Judge Advocate General's Office to the Ministry of Justice.
On February 24, 1981, the respondent City Fiscal filed a complaint
accusing petitioner, among others of having violated Republic Act
No. 1700, as amended by P.D. 885 and Batas Pambansa Blg. 31 in
relation to Article 142 of the Revised Penal Code. The inquest court
set the preliminary investigation for March 17, 1981.
On March 6, 1981, the petitioner was allowed to leave the country
to attend a series of church conferences and undergo
comprehensive medical examinations of the heart, stomach, liver,
eye and ear including a possible removal of his left eye to save his
right eye. Petitioner Salonga almost died as one of the principal
242
victims of the dastardly bombing of a Liberal Party rally at Plaza
Miranda on August 20, 1971. Since then, he has suffered serious
disabilities. The petitioner was riddled with shrapnel and pieces still
remain in various parts of his body. He has an AV fistula caused by a
piece of shrapnel lodged one millimeter from his aorta. The
petitioner has limited use of his one remaining hand and arms, is
completely blind and physical in the left eye, and has scar like
formations in the remaining right eye. He is totally deaf in the right
ear and partially deaf in the left ear. The petitioner's physical
ailments led him to seek treatment abroad.
On or around March 26, 1981, the counsel for petitioner was
furnished a copy of an amended complaint signed by Gen. Prospero
Olivas, dated March 12, 1981, charging the petitioner, along with 39
other accused with the violation of R.A. 1700, as amended by P.D.
885, Batas Pambansa Blg. 31 and P.D. 1736. Hearings for preliminary
investigation were conducted. The prosecution presented as its
witnesses Ambassador Armando Fernandez, the Consul General of
the Philippines in Los Angeles, California, Col. Balbino Diego,
PSC/NISA Chief, Investigation and Legal Panel of the Presidential
Security Command and Victor Lovely himself.
On October 15, 1981, the counsel for petitioner filed a motion to
dismiss the charges against petitioner for failure of the prosecution
to establish a prima facie case against him.
On December 2, 1981, the respondent judge denied the motion. On
January 4, 1982, he issued a resolution ordering the filing of an
information for violation of the Revised Anti-Subversion Act, as
amended, against forty (40) people, including herein petitioner.
The resolutions of the respondent judge dated December 2, 1981
and January 4, 1982 are now the subject of the petition. It is the
contention of the petitioner that no prima facie case has been
established by the prosecution to justify the filing of an information
against him. He states that to sanction his further prosecution
despite the lack of evidence against him would be to admit that no
rule of law exists in the Philippines today.
After a painstaking review of the records, this Court finds the
evidence offered by the prosecution utterly insufficient to establish
a prima facie case against the petitioner. We grant the petition.
However, before going into the merits of the case, we shall pass
upon a procedural issue raised by the respondents.
The respondents call for adherence to the consistent rule that the
denial of a motion to quash or to dismiss, being interlocutory in
character, cannot be questioned by certiorari; that since the
question of dismissal will again be considered by the court when it
decides the case, the movant has a plain, speedy and adequate
remedy in the ordinary course of law; and that public interest
dictates that criminal prosecutions should not be enjoined.
The general rule is correctly stated. However, the respondents fail to
appreciate or take into account certain exceptions when a petition
for certiorari is clearly warranted. The case at bar is one such
exception.
In the case of Mead v. Angel (115 SCRA 256) the same contentions
were advanced by the respondents to wit:
xxx xxx xxx
... Respondents advert to the rule that when a
motion to quash filed by an accused in a criminal
case shall be denied, the remedy of the accused-
movant is not to file a petition for certiorari or
mandamus or prohibition, the proper recourse
being to go to trial, without prejudice to his right
to reiterate the grounds invoked in his motion to
quash if an adverse judgment is rendered against
him, in the appeal that he may take therefrom in
the manner authorized by law. (Mill v. People, et
al., 101 Phil. 599; Echarol v. Purisima, et al., 13
SCRA 309.)
On this argument, we ruled:
There is no disputing the validity and wisdom of
the rule invoked by the respondents. However, it
is also recognized that, under certain situations,
recourse to the extraordinary legal remedies of
certiorari, prohibition or mandamus to question
the denial of a motion to quash is considered
proper in the interest of "more enlightened and
substantial justice", as was so declared in "Yap v.
Lutero, G.R. No. L-12669, April 30, 1969."
Infinitely more important than conventional adherence to general
rules of criminal procedure is respect for the citizen's right to be free
not only from arbitrary arrest and punishment but also from
unwarranted and vexatious prosecution. The integrity of a
democratic society is corrupted if a person is carelessly included in
the trial of around forty persons when on the very face of the record
no evidence linking him to the alleged conspiracy exists. Ex-Senator
Jovito Salonga, himself a victim of the still unresolved and heinous
Plaza Miranda bombings, was arrested at the Manila Medical Center
while hospitalized for bronchial asthma. When arrested, he was not
informed of the nature of the charges against him. Neither was
counsel allowed to talk to him until this Court intervened through
the issuance of an order directing that his lawyers be permitted to
visit him (Ordonez v. Gen. Fabian Ver, et al., G.R. No. 55345, October
28, 1980). Only after four months of detention was the petitioner
informed for the first time of the nature of the charges against him.
After the preliminary investigation, the petitioner moved to dismiss
the complaint but the same was denied. Subsequently, the
respondent judge issued a resolution ordering the filing of an
information after finding that a prima facie case had been
established against an of the forty persons accused.
In the light of the failure to show prima facie that the petitioner was
probably guilty of conspiring to commit the crime, the initial
disregard of petitioner's constitutional rights together with the
massive and damaging publicity made against him, justifies the
favorable consideration of this petition by this Court. With former
Senator Benigno Aquino, Jr. now deceased, there are at least 38
other co-accused to be tried with the petitioner. The prosecution
must present proof beyond reasonable doubt against each and
every one of the 39 accused, most of whom have varying
participations in the charge for subversion. The prosecution's star
witness Victor Lovely and the only source of information with regard
to the alleged link between the petitioner and the series of terrorist
bombings is now in the United States. There is reason to believe the
petitioner's citation of international news dispatches * that the
prosecution may find it difficult if not infeasible to bring him back to
the Philippines to testify against the petitioner. If Lovely refused to
testify before an American federal grand jury how could he possibly
be made to testify when the charges against the respondent come
up in the course of the trial against the 39 accused. Considering the
foregoing, we find it in the interest of justice to resolve at this stage
the issue of whether or not the respondent judge gravely abused his
discretion in issuing the questioned resolutions.
The respondents contend that the prosecution will introduce
additional evidence during the trial and if the evidence, by then, is
not sufficient to prove the petitioner's guilt, he would anyway be
acquitted. Yes, but under the circumstances of this case, at what
cost not only to the petitioner but to the basic fabric of our criminal
justice system?
The term "prima facie evidence" denotes evidence which, if
unexplained or uncontradicted, is sufficient to sustain the
proposition it supports or to establish the facts, or to counter-
balance the presumption of innocence to warrant a conviction. The
question raised before us now is: Were the evidences against the
petitioner uncontradicted and if they were unexplained or
243
uncontradicted, would they, standing alone, sufficiently overcome
the presumption of innocence and warrant his conviction?
We do not think so.
The records reveal that in finding a case against the petitioner, the
respondent judge relied only on the testimonies of Col. Balbino
Diego and Victor Lovely. Ambassador Armando Fernandez, when
called upon to testify on subversive organizations in the United
States nowhere mentioned the petitioner as an organizer, officer or
member of the Movement for Free Philippines (MFP), or any of the
organizations mentioned in the complaint. Col. Diego, on the other
hand, when asked what evidence he was able to gather against the
petitioner depended only on the statement of Lovely "that it was the
residence of ex-Senator Salonga where they met together with
Renato Tañada, one of the brains of the bombing conspiracy ... and
the fact that Sen. Salonga has been meeting with several subversive
personnel based in the U.S.A. was also revealed to me by Victor
Burns Lovely; 11 and on the group pictures taken at former
Congressman Raul Daza's birthday party. In concluding that a
conspiracy exists to overthrow by violent means the government of
the Philippines in the United States, his only bases were
"documentary as well as physical and sworn statements that were
referred to me or taken by me personally," which of course negate
personal knowledge on his part. When asked by the court how he
would categorize petitioner in any of the subversive organizations,
whether petitioner was an organizer, officer or a member, the
witness replied:
A. To categorize former Senator Salonga if he
were an organizer, he is an officer or he is a
member, your Honor, please, we have to
consider the surrounding circumstances and on
his involvement: first, Senator Salonga wanted
always to travel to the United States at least
once a year or more often under the pretext of
to undergo some sort of operation and
participate in some sort of seminar. (t.s.n., April
21, 1981, pp- 14-15)
Such testimony, being based on affidavits of other persons and
purely hearsay, can hardly qualify as prima facie evidence of
subversion. It should not have been given credence by the court in
the first place. Hearsay evidence, whether objected to or not, -has
no probative value as the affiant could not have been cross-
examined on the facts stated therein. (See People v. Labinia, 115
SCRA 223; People v. Valero, 112 SCRA 661). Moreover, as Victor
Lovely, himself, was personally examined by the court, there was no
need for the testimony of Col. Diego. Thus, the inquest judge should
have confined his investigation to Victor Burns Lovely, the sole
witness whose testimony had apparently implicated petitioner in the
bombings which eventually led to the filing of the information.
Lovely's account of the petitioner's involvement with the former's
bombing mission is found in his sworn statement made before Col.
Diego and Lt. Col. Madella and taken on October 17, 1980 at the AFP
Medical Center. Lovely was not presented as a prosecution or state
witness but only as a defense witness for his two younger brothers,
Romeo and Baltazar, who were both included in the complaint but
who were later dropped from the information. Victor Lovely was
examined by his counsel and cross-examined by the fiscal. In the
process, he Identified the statement which he made before Col.
Diego and Lt. Col. Madella. After Lovely's testimony, the prosecution
made a manifestation before the court that it was adopting Lovely as
a prosecution witness.
According to Lovely's statement, the following events took place:
36. Q. Did Psinakis tell you where to stay?
A. Yes, at first he told me to check-in at Manila Hotel or the Plaza
Hotel where somebody would come to contact me and give the
materials needed in the execution of my mission. I thought this was
not safe so I disagreed with him. Mr. Psinakis changed the plan and
instead told me to visit the residence of Ex-Sen. Jovito Salonga as
often as I can and someone will meet me there to give the materials
I needed to accomplish my mission
37. Q. Did you comply as instructed?
A. Yes, I arrived in Manila on August 20, 1980 and stayed at the
residence of Mr. Johnny Chua, husband of my business partner, then
I went to the Hospital where I visited my mother and checked-in at
Room 303 of the YMCA at Concepcion Street, Manila.
38. Q. Did you visit the residence of former Senator Jovito Salonga as
directed by Psinakis?
A. I visited Sen. Salonga's place three (3) times, the first visit was
August 20 or 21, and the last was 4:00 P.M. of August 31, 1980. In
addition to these visits, I TALKED to him on the phone about three or
four times. On my first visit, I told him "I am expecting an attache
case from somebody which will be delivered to your house," for
which Sen. Salonga replied "Wala namang nagpunta dito at wala
namang attache case para sa iyo." However, if your attache case
arrives, I'll just call you." I gave him my number. On my second visit,
Salonga said, "I'll be very busy so just come back on the 31st of
August at 4 P.M." On that date, I was with friends at Batulao Resort
and had to hurry back to be at Salonga's place for the appointment. I
arrived at Salonga's place at exactly 4 P.M.
39. Q. What happened then?
A. I was ushered to the sala by Mrs. Salonga and after five minutes,
Sen. Salonga joined me in the sala. Sen. Salonga informed me that
somebody will be coming to give me the attache case but did not tell
me the name.
40. Q. Are there any subject matters you discuss while waiting for
that somebody to deliver your materials?
A. Yes, Salonga asked if Sen. Aquino and I have met, I explained to
him the efforts of Raul Daza in setting up that meeting but I have
previous business commitments at Norfolk, Virginia. I told him,
however, that through the efforts of Raul Daza, I was able to talk
with Ninoy Aquino in the airport telephone booth in San Francisco.
He also asked about Raul Daza, Steve Psinakis and the latest
opposition group activities but it seems he is well informed.
41. Q. How long did you wait until that somebody arrived?
A. About thirty (30) minutes
41. Q. What happened when the man arrived?
A. This man arrived and I was greatly surprised to see Atty. Renato
Tañada Jovy Salonga was the one who met him and as I observed
parang nasa sariling bahay si Tañada nung dumating. They talked for
five (5) minutes in very low tones so I did not hear what they talked
about. After their whispering conversations, Sen. Salonga left and at
this time Atty. "Nits" Tañada told me "Nasa akin ang kailangan mo,
nasa kotse."
43. Q. Were the materials given to you?
A. When Sen. Salonga came back, we asked to be permitted to leave
and I rode in Atty. "Nits" Tañadas old Pontiac car colored dirty
brown and proceeded to Broadway Centrum where before I
alighted, Atty. Tañada handed me a "Puma" bag containing all the
materials I needed.
xxx xxx xxx
45. Q. What were the contents of the Puma bag?
244
A. Ten (10) pieces of Westclox pocket watch with screw and wirings,
ten (10) pieces electrical blasting caps 4" length, ten (10) pieces non-
electrical blasting caps 1 " length, nine (9) pieces volts dry cell
battery, two (2) improvised electrical testers. ten (10) plastic packs
of high explosive about 1 pound weight each.
However, in his interview with Mr. Ronnie Nathanielz which was
aired on Channel 4 on November 8, 1980 and which was also offered
as evidence by the accused, Lovely gave a different story which
negates the above testimony insofar as the petitioner's participation
was concerned:
xxx xxx xxx
Q. Who were the people that you contacted in Manila and for what
purpose?
A. Before I left for the Philippines, Mr. Psinakis told me to check in at
the Manila Hotel or the Plaza Hotel, and somebody would just
deliver the materials I would need. I disapproved of this, and I told
him I would prefer a place that is familiar to me or who is close to
me. Mr. Psinakis suggested the residence of Sen. Salonga.
And so, I arrived in Manila on August 20, 1980, 1 made a call to Sen.
Salonga, but he was out. The next day I made a call again. I was able
to contact him. I made an appointment t• see him. I went to Sen.
Salonga's house the following day. I asked Sen. Salonga if someone
had given him an attache case for me. He said nobody. Afterwards, I
made three calls to Sen. Salonga. Sen. Salonga told me "call me
again on the 31st of August. I did not call him, I just went to his
house on the 31st of August at 4 P.M. A few minutes after my arrival
Atty. Renato Tañada arrived. When he had a chance to be near me,
he (Atty. Tanada) whispered to me that he had the attache case and
the materials I needed in his car. These materials were given to me
by Atty. Tanada When I alighted at the Broadway
Centrum. (Emphasis supplied)
During the cross-examination, counsel for petitioner asked Lovely
about the so-called destabilization plan which the latter mentioned
in his sworn statement:
Q. You mentioned in your statement taken on October 17, 1980,
marked Exhibit "G" about the so-called destabilization plan of
Aquino. When you attended the birthday party of Raul Daza wherein
Jovito Salonga was also present, was this destabilization plan as
alleged by you already formulated?
WITNESS:
A. Not to my knowledge.
COURT TO WITNESS:
Q. Mr. Witness, who invited you to the party?
A. Raul Daza, your Honor.
Q. Were you told that Mr. Salonga would be present in the party.
A. I am really not quite sure, your Honor.
Q. Alright. You said initially it was social but then it became political.
Was there any political action taken as a result of the party?
A. Only political discussion, your Honor. (TSN, July 8, 1981, pp. 69-
84).
Counsel for petitioner also asked Lovely whether in view of the
latter's awareness of the physical condition of petitioner, he really
implicated petitioner in any of the bombings that occurred in Metro
Manila. The fiscal objected without stating any ground. In sustaining
the objection, the Court said:
Sustained . . . The use of the word 'implicate'
might expand the role of Mr. Salonga. In other
words, you are widening the avenue of Mr.
Salonga's role beyond the participation stated in
the testimony of this witness about Mr. Salonga,
at least, as far as the evidence is concerned, I
supposed, is only being in the house of Mr.
Salonga which was used as the contact point. He
never mentions Mr. Salonga about the
bombings. Now these words had to be put in the
mouth of this witness. That would be unfair to
Mr. Salonga. (TSN. July 8, 1981, p. 67)
Respondent judge further said:
COURT: As the Court said earlier, the parts or portions affecting
Salonga only refers to the witness coming to Manila already then the
matter of . . . I have gone over the statement and there is no
mention of Salonga insofar as activities in the United States is
concerned. I don't know why it concerns this cross-examination.
ATTY. YAP: Because according to him, it was in pursuance of the plan
that he came to Manila.
COURT: According to him it was Aquino, Daza, and Psinakis who
asked him to come here, but Salonga was introduced only when he
(Lovely) came here. Now, the tendency of the question is also to
connect Salonga to the activities in the United States. It seems to be
the thrust of the questions.
COURT: In other words, the point of the Court as of the time when
you asked him question, the focus on Salonga was only from the
time when he met Salonga at Greenhills. It was the first time that
the name of Salonga came up. There was no mention of Salonga in
the formulation of the destabilization plan as affirmed by him. But
you are bringing this up although you are only cross-examining for
Salonga as if his (Lovely's) activities in the United States affected
Salonga. (TSN. July 8, 1981, pp. 73-74).
Apparently, the respondent judge wanted to put things in proper
perspective by limiting the petitioner's alleged "participation" in the
bombing mission only to the fact that petitioner's house was used as
a "contact point" between Lovely and Tañada, which was all that
Lovely really stated in his testimony.
However, in the questioned resolution dated December 2, 1981, the
respondent judge suddenly included the "activities" of petitioner in
the United States as his basis for denying the motion to dismiss:
On the activities of Salonga in the United States, the witness, Lovely,
in one of his statements declared: 'To the best of my recollection he
mentioned of some kind of violent struggle in the Philippines being
most likely should reforms be not instituted by President Marcos
immediately.
It is therefore clear that the prosecution's evidence has established
facts and circumstances sufficient for a finding that excludes a
Motion to Dismiss by respondent Salonga. The Movement for Free
Philippines is undoubtedly a force born on foreign soil it appears to
rely on the resources of foreign entities, and is being (sic) on gaining
ascendancy in the Philippines with the use of force and for that
purpose it has linked itself with even communist organizations to
achieve its end. It appears to rely on aliens for its supporters and
financiers.
The jump from the "contact point" theory to the conclusion of
involvement in subversive activities in the United States is not only
inexplicable but without foundation.
The respondents admit that no evidence was presented directly
linking petitioner Salonga to actual acts of violence or terrorism.
There is no proof of his direct participation in any overt acts of
245
subversion. However, he is tagged as a leader of subversive
organizations for two reasons-
(1) Because his house was used as a "contactpoint"; and
(2) Because "he mentioned some kind of violent struggle in the
Philippines being most likely should reforms be not instituted by
President Marcos immediately."
The "contact point" theory or what the petitioner calls the guilt by
visit or guilt by association" theory is too tenuous a basis to conclude
that Senator Salonga was a leader or mastermind of the bombing
incidents. To indict a person simply because some plotters,
masquerading as visitors, have somehow met in his house or office
would be to establish a dangerous precedent. The right of citizens to
be secure against abuse of governmental processes in criminal
prosecutions would be seriously undermined.
The testimony of Victor Lovely against petitioner Salonga is full of
inconsistencies. Senator Salonga and Atty. Renato Tañada could not
have whispered to one another because the petitioner is almost
totally deaf. Lovely could not have met Senator Salonga at a
Manglapus party in Washington, D.C. in 1977 because the petitioner
left for the United States only on November, 1978. Senator Salonga
denies having known Mr. Lovely in the United States or in the
Philippines. He states that he has hundred of visitors from week to
week in his residence but cannot recall any Victor Lovely.
The presence of Lovely in a group picture taken at Mr. Raul Daza's
birthday party in Los Angeles where Senator Salonga was a guest is
not proof of conspiracy. As stated by the petitioner, in his many
years in the turbulent world of politics, he has posed with all kinds of
people in various groups and various places and could not possibly
vouch for their conduct. Commenting on the matter, newspaper
columnist Teodoro Valencia stated that Filipinos love to pose with
important visitors and the picture proves nothing.
It is likewise probable that a national figure and former politician of
Senator Salonga's stature can expect guests and visitors of all kinds
to be visiting his home or office. If a rebel or subversive happens to
pose with the petitioner for a group picture at a birthday party
abroad, or even visit him with others in his home, the petitioner
does not thereby become a rebel or subversive, much less a leader
of a subversive group. More credible and stronger evidence is
necessary for an indictment. Nonetheless, even if we discount the
flaws in Lovely's testimony and dismiss the refutations and
arguments of the petitioner, the prosecution evidence is still
inadequate to establish a prima facie finding.
The prosecution has not come up with even a single iota of evidence
which could positively link the petitioner to any proscribed activities
of the Movement for Free Philippines or any subversive organization
mentioned in the complaint. Lovely had already testified that during
the party of former Congressman Raul Daza which was alleged to
have been attended by a number of members of the MFP, no
political action was taken but only political discussion. Furthermore,
the alleged opinion of the petitioner about the likelihood of a violent
struggle here in the Philippines if reforms are not instituted,
assuming that he really stated the same, is nothing but a legitimate
exercise of freedom of thought and expression. No man deserves
punishment for his thoughts. Cogitationis poenam memo
meretur. And as the late Justice Oliver W. Holmes stated in the case
of U.S. v. Schwimmer, 279 U.S. 644, " ... if there is any principle of
the Constitution that more imperatively calls for attachment than
any other it is the principle of free thought not free thought for
those who agree with us but freedom for the thought that we hate."
We have adopted the concept that freedom of expression is a
"preferred" right and, therefore, stands on a higher level than
substantive economic or other liberties. The primacy, the high estate
accorded freedom of expression is a fundamental postulate of our
constitutional system. (Gonzales v. Commission on Elections, 29
SCRA 835). As explained by Justice Cardozo in Palko v.
Connecticut (302 U.S. 319) this must be so because the lessons of
history, both political and legal, illustrate that freedom of thought
and speech is the indispensable condition of nearly every other form
of freedom. Protection is especially mandated for political
discussions. This Court is particularly concerned when allegations are
made that restraints have been imposed upon mere criticisms of
government and public officials. Political discussion is essential to
the ascertainment of political truth. It cannot be the basis of criminal
indictments.
The United States Supreme Court in Noto v. United States (367 U.S.
290) distinguished between the abstract teaching of the moral
propriety or even moral necessity for a resort to force and violence
and speech which would prepare a group for violent action and steel
it to such action. In Watts v. United States (394 U.S. 705), the
American court distinguished between criminal threats and
constitutionally protected speech.
It stated:
We do not believe that the kind of political
hyperbole indulged in by petitioner fits within
that statutory term. For we must interpret the
language Congress chose against the background
of a profound national commitment to the
principle that debate on public issues should be
uninhibited, robust, and wide open and that it
may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on
government and public officials. New York Times
Co. v. Sullivan (376 U.S. 254). The language of
the political arena, like the language used in
labor disputed is often vituperative abusive, and
inexact. We agree with petitioner that his only
offense was a kind of very crude offensive
method of stating a political opposition to the
President.
In the case before us, there is no teaching of the moral propriety of a
resort to violence, much less an advocacy of force or a conspiracy to
organize the use of force against the duly constituted authorities.
The alleged remark about the likelihood of violent struggle unless
reforms are instituted is not a threat against the government. Nor is
it even the uninhibited, robust, caustic, or unpleasantly sharp attack
which is protected by the guarantee of free speech. Parenthetically,
the American case of Brandenburg v. Ohio (395 U.S. 444) states that
the constitutional guarantees of free speech and free press do not
permit a State to forbid or proscribe advocacy of the use of force or
of law violation except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or produce
such action. The words which petitioner allegedly used according to
the best recollections of Mr. Lovely are light years away from such
type of proscribed advocacy.
Political discussion even among those opposed to the present
administration is within the protective clause of freedom of speech
and expression. The same cannot be construed as subversive
activities per se or as evidence of membership in a subversive
organization. Under Presidential Decree No. 885, Section 3,
paragraph 6, political discussion will only constitute, prima facie
evidence of membership in a subversive organization if such
discussion amounts to:
(6) Conferring with officers or other members of
such association or organization in furtherance of
any plan or enterprise thereof.
As stated earlier, the prosecution has failed to produce evidence
that would establish any link between petitioner and any subversive
organization. Even if we lend credence to Lovely's testimony that a
political discussion took place at Daza's birthday party, no proof
whatsoever was adduced that such discussion was in furtherance of
any plan to overthrow the government through illegal means. The
alleged opinion that violent struggle is likely unless reforms are
instituted by no means shows either advocacy of or incitement to
246
violence or furtherance of the objectives of a subversive
organization.
Lovely also declared that he had nothing to do with the bombing on
August 22, 1980, which was the only bombing incident that occurred
after his arrival in Manila on August 20, and before the YMCA
explosion on September 6, 1980. (See TSN, pp. 63-63, July 8, 1981).
He further testified that:
WITNESS:
Actually, it was not my
intention to do some kind of
bombing against the
government. My bombing
mission was directed against
the particular family
(referring to the Cabarrus
family [TSN, p. 11, July 9,
1981] [Rollo, p. 10].
Such a statement wholly negates any politically motivated or
subversive assignment which Lovely was supposed to have been
commissioned to perform upon the orders of his co- accused and
which was the very reason why they answer charged in the first
place. The respondent judge also asked Lovely about the possible
relation between Cabarrus and petitioner:
COURT:
Q. Did you suspect any
relation between Cabarrus
and Jovito Salonga, why did
you implicate Jovito Salonga?
A. No, your Honor. I did not
try to implicate Salonga.
It should be noted that after Lovely's testimony, the prosecution
manifested to the court that it was adopting him as a prosecution
witness. Therefore, the prosecution became irreversively bound by
Lovely's disclaimers on the witness stand, that it was not his
intention "to do some kind of bombing against the government" and
that he "did not try to implicate Salonga", especially since Lovely is
the sole witness adopted by the prosecution who could supposedly
establish the link between the petitioner and the bombing incidents.
The respondent court should have taken these factors into
consideration before concluding that a prima facie case exists
against the petitioner. Evidence must not only proceed from the
mouth of a credible witness but it must be credible in itself such as
the common experience and observation of mankind can approve as
probable under the circumstances. (People v. Dayad, 56 SCRA 439).
In the case at bar, the prosecution cannot even present a credible
version of the petitioner's role in the bombings even if it ignores the
subsequent disclaimers of Lovely and without relying on mere
affidavits including those made by Lovely during his detention.
The resolution dated January 4, 1982 suffers from the same defect.
In this resolution, Lovely's previous declarations about the bombings
as part of the alleged destabilization plan and the people behind the
same were accorded such credibility by the respondent judge as if
they had already been proved beyond reasonable doubt.
The purpose of a preliminary investigation is to secure the innocent
against hasty, malicious and oppressive prosecution, and to protect
him from an open and public accusation of crime, from the trouble,
expense and anxiety of a public trial, and also to protect the state
from useless and expensive trials. (Trocio v. Manta, 118 SCRA 241;
citing Hashim v. Boncan, 71 Phil. 216). The right to a preliminary
investigation is a statutory grant, and to withhold it would be to
transgress constitutional due process. (See People v. Oandasa, 25
SCRA 277) However, in order to satisfy the due process clause it is
not enough that the preliminary investigation is conducted in the
sense of making sure that a transgressor shall not escape with
impunity. A preliminary investigation serves not only the purposes of
the State. More important, it is a part of the guarantees of freedom
and fair play which are birthrights of all who live in our country. It is,
therefore, imperative upon the fiscal or the judge as the case may
be, to relieve the accused from the pain of going through a trial once
it is ascertained that the evidence is insufficient to sustain a prima
facie case or that no probable cause exists to form a sufficient belief
as to the guilt of the accused. Although there is no general formula
or fixed rule for the determination of probable cause since the
same must be decided in the light of the conditions obtaining in
given situations and its existence depends to a large degree upon
the finding or opinion of the judge conducting the examination, such
a finding should not disregard the facts before the judge nor run
counter to the clear dictates of reasons (See La Chemise Lacoste,
S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore,
should not go on with the prosecution in the hope that some
credible evidence might later turn up during trial for this would be a
flagrant violation of a basic right which the courts are created to
uphold. It bears repeating that the judiciary lives up to its mission by
vitalizing and not denigrating constitutional rights. So it has been
before. It should continue to be so. Mercado v. Court of First
Instance of Rizal, 116 SCRA 93).
The Court had already deliberated on this case, a consensus on the
Court's judgment had been arrived at, and a draft ponencia was
circulating for concurrences and separate opinions, if any, when on
January 18, 1985, respondent Judge Rodolfo Ortiz granted the
motion of respondent City Fiscal Sergio Apostol to drop the
subversion case against the petitioner. Pursuant to instructions of
the Minister of Justice, the prosecution restudied its evidence and
decided to seek the exclusion of petitioner Jovito Salonga as one of
the accused in the information filed under the questioned
resolution.
We were constrained by this action of the prosecution and the
respondent Judge to withdraw the draft ponencia from circulating
for concurrences and signatures and to place it once again in the
Court's crowded agenda for further deliberations.
Insofar as the absence of a prima facie case to warrant the filing of
subversion charges is concerned, this decision has been rendered
moot and academic by the action of the prosecution.
Respondent Fiscal Sergio Apostol correctly points out, however, that
he is not precluded from filing new charges for the same acts
because the petitioner has not been arraigned and double jeopardy
does not apply. in that sense, the case is not completely academic.
Recent developments in this case serve to focus attention on a not
too well known aspect of the Supreme Court's functions.
The setting aside or declaring void, in proper cases, of intrusions of
State authority into areas reserved by the Bill of Rights for the
individual as constitutionally protected spheres where even the
awesome powers of Government may not enter at will is not the
totality of the Court's functions.
The Court also has the duty to formulate guiding and controlling
constitutional principles, precepts, doctrines, or rules. It has the
symbolic function of educating bench and bar on the extent of
protection given by constitutional guarantees.
In dela Camara v. Enage (41 SCRA 1), the petitioner who questioned
a P1,195,200.00 bail bond as excessive and, therefore,
constitutionally void, escaped from the provincial jail while his
petition was pending. The petition became moot because of his
escape but we nonetheless rendered a decision and stated:
The fact that the case is moot and academic
should not preclude this Tribunal from setting
forth in language clear and unmistakable, the
obligation of fidelity on the part of lower court
247
 judges to the unequivocal command of the
Constitution that excessive bail shall not be
required.
In Gonzales v. Marcos (65 SCRA 624) whether or not the Cultural
Center of the Philippines could validly be created through an
executive order was mooted by Presidential Decree No. 15, the
Center's new charter pursuant to the President's legislative powers
under martial law. Stan, this Court discussed the constitutional
mandate on the preservation and development of Filipino culture for
national Identity. (Article XV, Section 9, Paragraph 2 of the
Constitution).
In the habeas corpus case of Aquino, Jr., v. Enrile, 59 SCRA 183),
during the pendency of the case, 26 petitioners were released from
custody and one withdrew his petition. The sole remaining
petitioner was facing charges of murder, subversion, and illegal
possession of firearms. The fact that the petition was moot and
academic did not prevent this Court in the exercise of its symbolic
function from promulgating one of the most voluminous decisions
ever printed in the Reports.
In this case, the respondents agree with our earlier finding that the
prosecution evidence miserably fails to establish a prima facie case
against the petitioner, either as a co-conspirator of a destabilization
plan to overthrow the government or as an officer or leader of any
subversive organization. They have taken the initiative of dropping
the charges against the petitioner. We reiterate the rule, however,
that this Court will not validate the filing of an information based on
the kind of evidence against the petitioner found in the records.
WHEREFORE, the petition is DISMISSED for having become moot and
academic.
SO ORDERED.
Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-
Herrera, Plana, Escolin, Relova and Cuevas, JJ., concur.
Aquino, De la Fuente and Alampay, JJ., took no part.
Separate Opinions
ABAD SANTOS, J., concurring
Del Castillo vs. Ponce Enrile, G.R. No. 62119, August 27, 1984, 131
SCRA 405, was a petition for the writ of habeas corpus. Before this
Court could finally act on the petition, the subject was released and
for that reason the majority of this Court resolved to dismiss the
petition for having become moot and academic. Justice Teehankee
and the undersigned disagreed with the majority; we expressed the
view that despite the release of the subject, the petition should have
been resolved on the merits because it posed important legal
questions.
Babst et al. vs. National Intelligence Board, Special Committee No. 2,
et al., G.R. No. 62992, Sept. 2, 1984, was a petition for prohibition to
restrain the respondents from interrogating the petitioners,
members of the print media, on various aspects of their works,
feelings, sentiments, beliefs, associations and even their private
lives. Again the majority of this Court dismissed the petition because
the assailed proceedings had come to an end thereby rendering the
petition moot and academic. In dismissing the petition a short and
mild note of concern was added. And again Justice Teehankee and
the undersigned disagreed with the majority. We expressed the view
that this Court should rule squarely on the matters raised in the
petition rather than dismiss it for having become moot and
academic.
I am glad that this Court has abandoned its cavalier treatment of
petitions by dismissing them on the ground that they have become
moot and academic and stopped there. I am glad it has reverted
to De la Camara vs. Enage, Gonzales vs. Marcos and Aquino v.
Enrile which are mentioned in the ponencia of Justice Gutierrez.
I agree with the ponencia of Justice Gutierrez that because the
subversion charges against the petitioner had been dropped by the
trial court on January 18, 1985, there is no longer any need to
prohibit the respondents from prosecuting Criminal Case No. Q-
18606 insofar as he is concerned.
I am not revealing any confidential matter by saying that the initial
action of this Court was to grant the petition, i.e. prohibit the
prosecution of the petitioner. This is manifest from the ponencia of
Justice Gutierrez. I regret that on this matter the Court has been
preempted by a "first strike" which has occurred once too often.
Justice Gutierrez states that, "The Court had already deliberated on
this case, and a consensus on the Court's judgment had been arrived
at." Let me add that the consensus had taken place as early as
October 24, 1984, and the decision started to circulate for signature
on November 2, 1984. Alas, on January 18, 1985, the decision was
still circulating overtaken by events. The decision could have had a
greater impact had it been promulgated prior to the executive
action.
Separate Opinions
ABAD SANTOS, J., concurring
Del Castillo vs. Ponce Enrile, G.R. No. 62119, August 27, 1984, 131
SCRA 405, was a petition for the writ of habeas corpus. Before this
Court could finally act on the petition, the subject was released and
for that reason the majority of this Court resolved to dismiss the
petition for having become moot and academic. Justice Teehankee
and the undersigned disagreed with the majority; we expressed the
view that despite the release of the subject, the petition should have
been resolved on the merits because it posed important legal
questions.
Babst et al. vs. National Intelligence Board, Special Committee No. 2,
et al., G.R. No. 62992, Sept. 2, 1984, was a petition for prohibition to
restrain the respondents from interrogating the petitioners,
members of the print media, on various aspects of their works,
feelings, sentiments, beliefs, associations and even their private
lives. Again the majority of this Court dismissed the petition because
the assailed proceedings had come to an end thereby rendering the
petition moot and academic. In dismissing the petition a short and
mild note of concern was added. And again Justice Teehankee and
the undersigned disagreed with the majority. We expressed the view
that this Court should rule squarely on the matters raised in the
petition rather than dismiss it for having become moot and
academic.
I am glad that this Court has abandoned its cavalier treatment of
petitions by dismissing them on the ground that they have become
moot and academic and stopped there. I am glad it has reverted
to De la Camara vs. Enage, Gonzales vs. Marcos and Aquino v.
Enrile which are mentioned in the ponencia of Justice Gutierrez.
I agree with the ponencia of Justice Gutierrez that because the
subversion charges against the petitioner had been dropped by the
trial court on January 18, 1985, there is no longer any need to
prohibit the respondents from prosecuting Criminal Case No. Q-
18606 insofar as he is concerned.
I am not revealing any confidential matter by saying that the initial
action of this Court was to grant the petition, i.e. prohibit the
248
prosecution of the petitioner. This is manifest from the ponencia of
Justice Gutierrez. I regret that on this matter the Court has been
preempted by a "first strike" which has occurred once too often.

Justice Gutierrez states that, "The Court had already deliberated on

this case, and a consensus on the Court's judgment had been arrived
at." Let me add that the consensus had taken place as early as
October 24, 1984, and the decision started to circulate for signature
on November 2, 1984. Alas, on January 18, 1985, the decision was
still circulating overtaken by events. The decision could have had a
greater impact had it been promulgated prior to the executive
action.

249
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 133486 January 28, 2000
ABS-CBN BROADCASTING CORPORATION, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
PANGANIBAN, J.:
The holding of exit polls and the dissemination of their results
through mass media constitute an essential part of the freedoms of
speech and of the press. Hence, the Comelec cannot ban them
totally in the guise of promoting clean, honest, orderly and credible
elections. Quite the contrary, exit polls — properly conducted and
publicized — can be vital tools in eliminating the evils of election-
fixing and fraud. Narrowly tailored countermeasures may be
prescribed by the Comelec so as to minimize or suppress the
incidental problems in the conduct of exit polls, without
transgressing in any manner the fundamental rights of our people.
The Case and the Facts
Before us is a Petition for Certiorari under Rule 65 of the Rules of
Court assailing Commission on Elections (Comelec) en
banc Resolution No. 98-14191 dated April 21, 1998. In the said
Resolution, the poll body
RESOLVED to approve the issuance of a restraining order
to stop ABS-CBN or any other groups, its agents or
representatives from conducting such exit survey and to
authorize the Honorable Chairman to issue the same.
The Resolution was issued by the Comelec allegedly upon
"information from [a] reliable source that ABS-CBN (Lopez Group)
has prepared a project, with PR groups, to conduct radio-TV
coverage of the elections . . . and to make [an] exit survey of the . . .
vote during the elections for national officials particularly for
President and Vice President, results of which shall be [broadcast]
immediately."2 The electoral body believed that such project might
conflict with the official Comelec count, as well as the unofficial
quick count of the National Movement for Free Elections (Namfrel).
It also noted that it had not authorized or deputized Petitioner ABS-
CBN to undertake the exit survey.
On May 9, 1998, this Court issued the Temporary Restraining Order
prayed for by petitioner. We directed the Comelec to cease and
desist, until further orders, from implementing the assailed
Resolution or the restraining order issued pursuant thereto, if any. In
fact, the exit polls were actually conducted and reported by media
without any difficulty or problem.
The Issues
Petitioner raises this lone issue: "Whether or not the Respondent
Commission acted with grave abuse of discretion amounting to a
lack or excess of jurisdiction when it approved the issuance of a
restraining order enjoining the petitioner or any [other group], its
agents or representatives from conducting exit polls during the . . .
May 11 elections."3
In his Memorandum,4 the solicitor general, in seeking to dismiss the
Petition, brings up additional issues: (1) mootness and (2)
prematurity, because of petitioner's failure to seek a reconsideration
of the assailed Comelec Resolution.
The Court's Ruling
The Petition5 is meritorious.
Procedural Issues:
Mootness and Prematurity
The solicitor general contends that the petition is moot and
academic, because the May 11, 1998 election has already been held
and done with. Allegedly, there is no longer any actual controversy
before us.
The issue is not totally moot. While the assailed Resolution referred
specifically to the May 11, 1998 election, its implications on the
people's fundamental freedom of expression transcend the past
election. The holding of periodic elections is a basic feature of our
democratic government. By its very nature, exit polling is tied up
with elections. To set aside the resolution of the issue now will only
postpone a task that could well crop up again in future elections.6
In any event, in Salonga v. Cruz Paño, the Court had occasion to
reiterate that it "also has the duty to formulate guiding and
controlling constitutional principles, precepts, doctrines, or rules. It
has the symbolic function of educating bench and bar on the extent
of protection given by constitutional guarantees."7 Since the
fundamental freedoms of speech and of the press are being invoked
here, we have resolved to settle, for the guidance of posterity,
whether they likewise protect the holding of exit polls and the
dissemination of data derived therefrom.
The solicitor general further contends that the Petition should be
dismissed for petitioner's failure to exhaust available remedies
before the issuing forum, specifically the filing of a motion for
reconsideration.
This Court, however, has ruled in the past that this procedural
requirement may be glossed over to prevent a miscarriage of
justice,8 when the issue involves the principle of social justice or the
protection of labor,9 when the decision or resolution sought to be
set aside is a nullity,10 or when the need for relief is extremely
urgent and certiorari is the only adequate and speedy remedy
available.11
The instant Petition assails a Resolution issued by the Comelec en
banc on April 21, 1998, only twenty (20) days before the election
itself. Besides, the petitioner got hold of a copy thereof only on May
4, 1998. Under the circumstances, there was hardly enough
opportunity to move for a reconsideration and to obtain a swift
resolution in time or the May 11, 1998 elections. Moreover, not only
is time of the essence; the Petition involves transcendental
constitutional issues. Direct resort to this Court through a special
civil action for certiorari is therefore justified.
Main Issue:
Validity of Conducting Exit Polls
An exit poll is a species of electoral survey conducted by qualified
individuals or groups of individuals for the purpose of determining
the probable result of an election by confidentially asking randomly
selected voters whom they have voted for, immediately after they
have officially cast their ballots. The results of the survey are
announced to the public, usually through the mass media, to give an
advance overview of how, in the opinion of the polling individuals or
organizations, the electorate voted. In our electoral history, exit
polls had not been resorted to until the recent May 11, 1998
elections.
In its Petition, ABS-CBN Broadcasting Corporation maintains that it is
a responsible member of the mass media, committed to report
balanced election-related data, including "the exclusive results of
Social Weather Station (SWS) surveys conducted in fifteen
administrative regions."
250
It argues that the holding of exit polls and the nationwide reporting
their results are valid exercises of the freedoms of speech and of the
press. It submits that, in precipitately and unqualifiedly restraining
the holding and the reporting of exit polls, the Comelec gravely
abused its discretion and grossly violated the petitioner's
constitutional rights.
Public respondent, on the other hand, vehemently denies that, in
issuing the assailed Resolution, it gravely abused its discretion. It
insists that the issuance thereof was "pursuant to its constitutional
and statutory powers to promote a clean, honest, orderly and
credible May 11, 1998 elections"; and "to protect, preserve and
maintain the secrecy and sanctity of the ballot." It contends that
"the conduct of exit surveys might unduly confuse and influence the
voters," and that the surveys were designed "to condition the minds
of people and cause confusion as to who are the winners and the
[losers] in the election," which in turn may result in "violence and
anarchy."
Public respondent further argues that "exit surveys indirectly violate
the constitutional principle to preserve the sanctity of the ballots,"
as the "voters are lured to reveal the contents of ballots," in
violation of Section 2, Article V of the Constitution;12 and relevant
provisions of the Omnibus Election Code.13 It submits that the
constitutionally protected freedoms invoked by petitioner "are not
immune to regulation by the State in the legitimate exercise of its
police power," such as in the present case.
The solicitor general, in support of the public respondent, adds that
the exit polls pose a "clear and present danger of destroying the
credibility and integrity of the electoral process," considering that
they are not supervised by any government agency and can in
general be manipulated easily. He insists that these polls would sow
confusion among the voters and would undermine the official
tabulation of votes conducted by the Commission, as well as the
quick count undertaken by the Namfrel.
Admittedly, no law prohibits the holding and the reporting of exit
polls. The question can thus be more narrowly defined: May the
Comelec, in the exercise of its powers, totally ban exit polls? In
answering this question, we need to review quickly our
jurisprudence on the freedoms of speech and of the press.
Nature and Scope of Freedoms of Speech and of the Press
The freedom of expression is a fundamental principle of our
democratic government. It "is a 'preferred' right and, therefore,
stands on a higher level than substantive economic or other
liberties. . . . [T]his must be so because the lessons of history, both
political and legal, illustrate that freedom of thought and speech is
the indispensable condition of nearly every other form of
freedom."14
Our Constitution clearly mandates that no law shall be passed
abridging the freedom of speech or of the press.15In the landmark
case Gonzales v. Comelec,16 this Court enunciated that at the very
least, free speech and a free press consist of the liberty to discuss
publicly and truthfully any matter of public interest without prior
restraint.
The freedom of expression is a means of assuring individual self-
fulfillment, of attaining the truth, of securing participation by the
people in social and political decision-making, and of maintaining the
balance between stability and change.17 It represents a profound
commitment to the principle that debates on public issues should be
uninhibited, robust, and wide open.18 It means more than the right
to approve existing political beliefs or economic arrangements, to
lend support to official measures, or to take refuge in the existing
climate of opinion on any of public consequence. And paraphrasing
the eminent Justice Oliver Wendell Holmes,19 we stress that the
freedom encompasses the thought we hate, no less than the
thought we agree with.
Limitations
The realities of life in a complex society, however, preclude an
absolute exercise of the freedoms of speech and of the press. Such
freedoms could not remain unfettered and unrestrained at all times
and under all circumstances.20 They are not immune to regulation by
the State in the exercise of its police power.21 While the liberty to
think is absolute, the power to express such thought in words and
deeds has limitations.
In Cabansag v. Fernandez22 this Court had occasion to discuss two
theoretical test in determining the validity of restrictions to such
freedoms, as follows:
These are the "clear and present danger" rule and the
"dangerous tendency" rule. The first, as interpreted in a
number of cases, means that the evil consequence of the
comment or utterance must be "extremely serious and the
degree of imminence extremely high" before the
utterance can be punished. The danger to be guarded
against is the "substantive evil" sought to be prevented. . .
.23
The "dangerous tendency" rule, on the other hand, . . .
may be epitomized as follows: if the words uttered create
a dangerous tendency which the state has a right to
prevent, then such words are punishable. It is not
necessary that some definite or immediate acts of force,
violence, or unlawfulness be advocated. It is sufficient that
such acts be advocated in general terms. Nor is it
necessary that the language used be reasonably calculated
to incite persons to acts of force, violence, or
unlawfulness. It is sufficient if the natural tendency and
probable effect of the utterance be to bring about the
substantive evil which the legislative body seeks to
prevent.24
Unquestionably, this Court adheres to the "clear and present
danger" test. It implicitly did in its earlier decisions in Primicias v.
Fugoso25 and American Bible Society v. City of Manila;26 as well as in
later ones, Vera v. Arca,27Navarro v. Villegas,28 Imbong
29 30
v. Ferrer, Blo Umpar Adiong v. Comelec and, more recently,
in Iglesia ni Cristo v. MTRCB.31 In setting the standard or test for the
"clear and present danger" doctrine, the Court echoed the words of
Justice Holmes: "The question in every case is whether the words
used are used in such circumstances and are of such a nature as to
create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. It is a question
of proximity and degree."32
A limitation on the freedom of expression may be justified only by a
danger of such substantive character that the state has a right to
prevent. Unlike in the "dangerous tendency" doctrine, the danger
must not only be clear but also present. "Present" refers to the time
element; the danger must not only be probable but very likely to be
inevitable.33 The evil sought to be avoided must be so substantive as
to justify a clamp over one's mouth or a restraint of a writing
instrument.34
Justification for a Restriction
Doctrinally, the Court has always ruled in favor of the freedom of
expression, and any restriction is treated an exemption. The power
to exercise prior restraint is not to be presumed; rather the
presumption is against its validity.35 And it is respondent's burden to
overthrow such presumption. Any act that restrains speech should
be greeted with furrowed brows,36 so it has been said.
To justify a restriction, the promotion of a substantial government
interest must be clearly shown.37 Thus:
A government regulation is sufficiently justified if it is
within the constitutional power of the government, if it
furthers an important or substantial government interest;
if the governmental interest is unrelated to the
suppression of free expression; and if the incidental
251
 restriction on alleged First Amendment freedoms is no
greater than is essential to the furtherance of that
interest.38
Hence, even though the government's purposes are legitimate and
substantial, they cannot be pursued by means that broadly stifle
fundamental personal liberties, when the end can be more narrowly
achieved.39
The freedoms of speech and of the press should all the more be
upheld when what is sought to be curtailed is the dissemination of
information meant. to add meaning to the equally vital right of
suffrage.40 We cannot support any ruling or order "the effect of
which would be to nullify so vital a constitutional right as free
speech."41 When faced with borderline situations in which the
freedom of a candidate or a party to speak or the freedom of the
electorate to know is invoked against actions allegedly made to
assure clean and free elections, this Court shall lean in favor of
freedom. For in the ultimate analysis, the freedom of the citizen and
the State's power to regulate should not be antagonistic. There can
be no free and honest elections if, in the efforts to maintain them,
the freedom to speak and the right to know are unduly curtailed.42
True, the government has a stake in protecting the fundamental
right to vote by providing voting places that are safe and accessible.
It has the duty to secure the secrecy of the ballot and to preserve
the sanctity and the integrity of the electoral process. However, in
order to justify a restriction of the people's freedoms of speech and
of the press, the state's responsibility of ensuring orderly voting
must far outweigh them.
These freedoms have additional importance, because exit polls
generate important research data which may be used to study
influencing factors and trends in voting behavior. An absolute
prohibition would thus be unreasonably restrictive, because it
effectively prevents the use of exit poll data not only for election-
day projections, but also for long-term research.43
Comelec Ban on Exit Polling
In the case at bar, the Comelec justifies its assailed Resolution as
having been issued pursuant to its constitutional mandate to ensure
a free, orderly, honest, credible and peaceful election. While
admitting that "the conduct of an exit poll and the broadcast of the
results thereof [are] . . . an exercise of press freedom," it argues that
"[p]ress freedom may be curtailed if the exercise thereof creates a
clear and present danger to the community or it has a dangerous
tendency." It then contends that "an exit poll has the tendency to
sow confusion considering the randomness of selecting
interviewees, which further make[s] the exit poll highly unreliable.
The probability that the results of such exit poll may not be in
harmony with the official count made by the Comelec . . . is ever
present. In other words, the exit poll has a clear and present danger
of destroying the credibility and integrity of the electoral process."
Such arguments are purely speculative and clearly untenable. First,
by the very nature of a survey, the interviewees or participants are
selected at random, so that the results will as much as possible be
representative or reflective of the general sentiment or view of the
community or group polled. Second, the survey result is not meant
to replace or be at par with the official Comelec count. It consists
merely of the opinion of the polling group as to who the electorate
in general has probably voted for, based on the limited data
gathered from polled individuals. Finally, not at stake here are the
credibility and the integrity of the elections, which are exercises that
are separate and independent from the exit polls. The holding and
the reporting of the results of exit polls cannot undermine those of
the elections, since the former is only part of the latter. If at all, the
outcome of one can only be indicative of the other.
The Comelec's concern with the possible noncommunicative effect
of exit polls — disorder and confusion in the voting centers — does
not justify a total ban on them. Undoubtedly, the assailed Comelec
Resolution is too broad, since its application is without qualification
as to whether the polling is disruptive or not.44 Concededly, the
Omnibus Election Code prohibits disruptive behavior around the
voting centers.45 There is no showing, however, that exit polls or the
means to interview voters cause chaos in voting centers. Neither has
any evidence been presented proving that the presence of exit poll
reporters near an election precinct tends to create disorder or
confuse the voters.
Moreover, the prohibition incidentally prevents the collection of exit
poll data and their use for any purpose. The valuable information
and ideas that could be derived from them, based on the voters'
answer to the survey questions will forever remain unknown and
unexplored. Unless the ban is restrained, candidates, researchers,
social scientists and the electorate in general would be deprived of
studies on the impact of current events and of election-day and
other factors on voters' choices.1âwphi1.nêt
In Daily Herald Co. v. Munro,46 the US Supreme Court held that a
statute, one of the purposes of which was to prevent the
broadcasting of early returns, was unconstitutional because such
purpose was impermissible, and the statute was neither narrowly
tailored to advance a state interest nor the least restrictive
alternative. Furthermore, the general interest of the State in
insulating voters from outside influences is insufficient to justify
speech regulation. Just as curtailing election-day broadcasts and
newspaper editorials for the reason that they might indirectly affect
the voters' choices is impermissible, so is impermissible, so is
regulating speech via an exit poll restriction.47
The absolute ban imposed by the Comelec cannot, therefore, be
justified. It does not leave open any alternative channel of
communication to gather the type of information obtained through
exit polling. On the other hand, there are other valid and reasonable
ways and means to achieve the Comelec end of avoiding or
minimizing disorder and confusion that may be brought about by
exit surveys.
For instance, a specific limited area for conducting exit polls may be
designated. Only professional survey groups may be allowed to
conduct the same. Pollsters may be kept at a reasonable distance
from the voting center. They may be required to explain to voters
that the latter may refuse interviewed, and that the interview is not
part of the official balloting process. The pollsters may further be
required to wear distinctive clothing that would show they are not
election officials.48 Additionally, they may be required to undertake
an information campaign on the nature of the exercise and the
results to be obtained therefrom. These measures, together with a
general prohibition of disruptive behavior, could ensure a clean, safe
and orderly election.
For its part, petitioner ABS-CBN explains its survey methodology as
follows: (1) communities are randomly selected in each province; (2)
residences to be polled in such communities are also chosen at
random; (3) only individuals who have already voted, as shown by
the indelible ink on their fingers, are interviewed; (4) the
interviewers use no cameras of any sort; (5) the poll results are
released to the public only on the day after the elections.49 These
precautions, together with the possible measures earlier stated, may
be undertaken to abate the Comelec's fear, without consequently
and unjustifiably stilling the people's voice.
With the foregoing premises, we conclude that the interest of the
state in reducing disruption is outweighed by the drastic abridgment
of the constitutionally guaranteed rights of the media and the
electorate. Quite the contrary, instead of disrupting elections, exit
polls — properly conducted and publicized — can be vital tools for
the holding of honest, orderly, peaceful and credible elections; and
for the elimination of election-fixing, fraud and other electoral ills.
Violation of Ballot Secrecy
The contention of public respondent that exit polls indirectly
transgress the sanctity and the secrecy of the ballot is off-tangent to
252
the real issue. Petitioner does not seek access to the ballots cast by
the voters. The ballot system of voting is not at issue here.
The reason behind the principle of ballot secrecy is to avoid vote
buying through voter identification. Thus, voters are prohibited from
exhibiting the contents of their official ballots to other persons, from
making copies thereof, or from putting distinguishing marks thereon
so as to be identified. Also proscribed is finding out the contents of
the ballots cast by particular voters or disclosing those of disabled or
illiterate voters who have been assisted. Clearly, what is forbidden is
the association of voters with their respective votes, for the purpose
of assuring that the votes have been cast in accordance with the
instructions of a third party. This result cannot, however, be
achieved merely through the voters' verbal and confidential
disclosure to a pollster of whom they have voted for.
In exit polls, the contents of the official ballot are not actually
exposed. Furthermore, the revelation of whom an elector has voted
for is not compulsory, but voluntary. Voters may also choose not to
reveal their identities. Indeed, narrowly tailored countermeasures
may be prescribed by the Comelec, so as to minimize or suppress
incidental problems in the conduct of exit polls, without
transgressing the fundamental rights of our people.
WHEREFORE, the Petition is GRANTED, and the Temporary
Restraining Order issued by the Court on May 9, 1998 is made
PERMANENT. Assailed Minute Resolution No. 98-1419 issued by the
Comelec en banc on April 21, 1998 is hereby NULLIFIED and SET
ASIDE. No costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Quisumbing, Purisima, Buena,
Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.
Kapunan, J., see dissenting opinion.
Vitug, J., please see separate opinion.
Melo and Mendoza, JJ., are join the separate opinion of Justice Vitug.
Pardo, J., took no part.
Separate Opinions
KAPUNAN, J., dissenting opinion;
I share the view of Justice Jose C. Vitug in his Separate Opinion that
the case is technically moot. Since the Comelec has not declared exit
polls to be illegal and neither did the petitioner present its
methodology or system of conducting the exit polls to the poll body,
the nullification of the Comelec's questioned resolution is bereft of
empirical basis. The decision of this Court constitutes a mere
academic exercise in view of the premature nature of the issues and
the lack of "concreteness" of the controversy. I wish however, to
express my thoughts on a few material points.
The majority opinion cites the general rules that any restrictions to
freedom of expression would be burdened with a presumption of
invalidity and should be greeted with "furrowed brews."1 While this
has been the traditional approach, this rules does not apply where,
as in this case, the Comelec exercised its Constitutional functions of
securing the secrecy and sanctity of the ballots and ensuring the
integrity of the elections. Thus, Mr. Justice Feliciano in National
Press (NPC) v. Comelec2 wrote:
The technical effect of Article IX (C) (4) of the Constitution
may be seen to be that no presumption of invalidity arises
in respect of supervisory or regulatory authority on the
part of the COMELEC for the purpose of securing equal
opportunity among candidates for political office, although
such supervision or regulation may result in some
limitation of the right of free speech and free press. For
supervision or regulation of the operations of media
enterprises is scarcely conceivable without such
accompanying limitation. Thus, the applicable rule is the
general, time honored one — that a statute is presumed to
be constitutional and that the party asserting its
unconstitutionality must discharge the burden of clearly
and convincingly proving that assertion.3
The NPC decision holds that if the right to free speech collides with a
norm of constitutional stature,4 the rule on heavy presumption of
invalidity does not apply.
Our Constitution mandates the Comelec to enforce and administer
laws and regulations relative to the conduct of elections and to
secure the secrecy and sanctity of the ballots to ensure orderly,
honest, credible and peaceful elections.5 This Constitutional
provision effectively displaces the general presumption of invalidity
in favor of the presumption that Comelec acted in the exercise of its
constitutionally mandated powers. If no presumption of invalidity
arises, I see no occasion for the application of the "clear and present
danger test." As this Court, through Mr. Justice Mendoza, succinctly
observed:
. . . the clear-and-present danger test is not, however, a
sovereign remedy for all free speech problems. As has
been pointed out by a thoughtful student of constitutional
law, it was originally formulated for the criminal law and
only later appropriated for free speech cases. For the
criminal law is necessarily concerned with the line at which
innocent preparation ends and guilty conspiracy or
attempt begins. Clearly, it is inappropriate as a test for
determining the constitutional validity of law which, like
§11(b) of R.A. No. 6646, are not concerned with the
content of political ads but only with their incidents. To
apply the clear-and-present danger test to such regulatory
measures would be like using a sledgehammer to drive a
nail when a regular hammer is all that is needed.6
On the matter of methodology in conducting polls, petitioner gave
assurance that the exit poll results will only be made public a day
after the elections, in order to allay fears of "trending,"
"bandwagon-effect" or disruption. This offers little comfort
considering the state of our country's electoral system. Unlike in
other countries where voting and counting are computerized, our
elections are characterized by snail-paced counting. It is not
infrequent that postponement, failure or annulment of elections
occur in some areas designated as election hot spots. 7 Such being
the case, exit poll results made public after the day of voting in the
regular elections but before the conduct of special elections in these
areas may potentially pose the danger of "trending," "bandwagon-
effect" and disruption of elections.
In view of the foregoing discussion, I believe the Comelec committed
no abuse of discretion in issuing the assailed temporary restraining
order stopping petitioner from conducting exit polls. I, therefore,
vote to DENY the petition.
VITUG, J., separate opinion;
The instant petition, now technically moot, presents issues so
significantly that a slights change of circumstances can have a
decisive effect on, and possibly spell a difference in, the final
outcome of the case. I am not inclined to take the case in an
academic fashion and pass upon the views expressed by either party
in preemptive judgment.
While I understand what the ponencia is saying quite laudably, I also
appreciate, upon the other hand, the concern of the Commission on
Elections, i.e., that the conduct of exit polls can have some adverse
effects on the need to preserve the sanctity of the ballot. The
Commission performs an indispensable task of ensuring free, honest,
and orderly elections and of guarding against any frustration of the
true will of the people. Expectedly, it utilizes all means available
within its power and authority to prevent the electoral process from
being manipulated and rendered an absurdity. Like my colleagues, I
greatly prize the freedom of expression but, so also, I cherish no less
the right of the people to express their will by means of the ballot. In
any case, I must accept the reality that the right to information and
253
free speech is not illimitable and immune from the valid exercise of
an ever demanding and pervasive police power. Whether any kind of
restraint should be upheld or declared invalid in the proper
balancing of interest is one that must be resolved at any given
moment, not on perceived circumstances, but on prevailing facts.
Neither of the advocations proffered by the parties in this instance, I
believe, should be foreclosed by the Court at this time.

I vote, therefore, to dismiss the petition on the foregoing thesis.

254
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-41233 November 21, 1979
J.M. TUASON & CO., INC., petitioner,
vs.
HON. COURT OF APPEALS, ALFONSO DE LEON and ROSARIO G. DE
LEON, respondents.
Araneta, Mendoza & Papa for petitioner.
Martin B. Laurea for private respondents.
DE CASTRO, J.:
Appeal by certiorari from the decision of respondent Court of
Appeals (CA-G.R. No. 54695-R) affirming with modification the
decision of the Court of First Instance of Manila in Civil Case No.
89119, which is an action based on warranty against eviction, and to
recover the value of a subdivision lot at the time of eviction, plus
damages.
The following facts may be regarded as without any dispute:
On January 31, 1952, petitioner J.M. Tuason & Co., Inc. executed, in
favor of Ricardo de Leon, a contract to sell Lot No. 15, Block 460 of
the Sta. Mesa Heights Subdivision containing an area of 1,703.6
square meters with the agreed price of P24.60 per square meter or a
total of P41,908.56. At the execution of the contract, Ricardo de
Leon paid the down-payment of P4,190.86 and agreed to pay the
balance in the monthly installment of P498.63 including the agreed
annual interest of 10% (Exhibit A).
Meanwhile, on April 10, 1953, petitioner signed a compromise
agreement with the Deudors (in another Civil Case No. Q-135,
captioned Florencio Deudor, et al. vs. J.M. Tuason, et al.).
On July 19, 1965 with the consent of the petitioner, Ricardo de Leon
transferred all his rights to the lot in favor of his parents, herein
private respondents Alfonso and Rosario de Leon (exhibit B). On the
same date, private respondents paid the outstanding balance of the
purchase price (Exhibit 1-B). On August 5, 1965 petitioner executed
in favor of private respondents the deed of sale over the lot (Exhibit
C) and upon its registration, the Register of Deeds issued to the
respondents the Transfer Certificate of Title No. 96143 (Exhibit 3;
Annex B, Rollo, 39-40).
At the time of the execution of the contract to sell, the contracting
parties knew that a portion of the lot in question was actually
occupied by Ramon Rivera. However, it was their understanding that
the latter will be ejected by the petitioner from the premises (Annex
B, Id).
On May 13, 1958, herein petitioner filed a complaint of ejectment
against Ramon Rivera before the Court of First Instance of Rizal (Civil
Case No. Q-2989) and later petitioner petitioner Ricardo de Leon and
respondents Alfonso and Rosario de Leon as necessary parties. In
this Civil Case No. Q-2989, the decision of the lower court,
principally based on the compromise agreement executed in
another Civil Case No. Q-135 entitled Florencio Deudor, et al. vs. J.M.
Tuason, et al. has the following dispositive portion:
WHEREFORE, the complaint against the
defendant Ramon Rivera is hereby
DISMISSSED ordering the plaintiff to enter into
an agreement with Ramon Rivera allowing said
defendant to purchase 1,050 square meters to
land now covered by Lot 15, Block 460 of the Sta.
Mesa Heights Subdivision to be priced at the
prevailing cost in the year 1958 which is placed
by this Court to be P60.00 per square meters; to
pay attorney's fees of P3,000.00 to defendant
Ramon Rivera, with costs against the plaintiff ...
(Emphasis supplied)
The Court of Appeals wholly affirmed this decision with costs against
plaintiff-appellant J.M. Tuason & Co., Inc. (CA-G.R. No. 38212-R), and
denied the motion for reconsideration filed by the other plaintiffs-
appellants Alfonso and Rosario de Leon, stating among others: ... We
believe, however, that these questions should be properly ventilated
in the proper action which the plaintiffs- appellants, the De Leons,
may file against the plaintiff-appellant (J.M. Tuason & Co., Inc.) for
failure of the latter to deliver to them the possession of the whole of
Lot 15, Block 460 of the Sta. Mesa Heights Subdivision ... (Annex E, 4-
5).
This decision of the Court of Appeals became final and executory in
September, 1971 when the De Leons were evicted from the
premises in question (Annex E, 6).
Pursuing the step as suggested by the Court of Appeals advising
herein private respondents to file the proper action the latter
instituted on December 5,1972 before the Court of First Instance of
Manila, Branch XXIX, Civil Case No. 89119, an action against J.M.
Tuason & Co., Inc. to enforce the vendor's warranty against eviction
or to recover the value of the land amounting to P315,000.00, plus
damages.
The lower court decided the case against herein petitioner J.M. &
Co., Inc. (defendant below) disposing as follows:
WHEREFORE, judgment is hereby rendered in
favor of the plaintiffs and against the defendant:
(1) Ordering defendant to pay plaintiffs the sum
of TWO HUNDRED TEN THOUSAND
(P210,000.00) PESOS representing the value of
the 1,050 square meters at P200.00 per square
meter, from which the latter were evicted, with
legal interest from December 5, 1972, the date
of filing of the complaint;
(2) Ordering defendant to pay plaintiffs the sum
of TWENTY FIVE THOUSAND (P25,000.00) PESOS,
by lay of moral damages, TEN THOUSAND
(P10,000.00) PESOS, by way of exemplary
damages, and FIFTEEN THOUSAND (P15,000.00)
PESOS, for and as attorney's fees; and
(3) For costs of this suit.
This decision of the lower court was appealed to herein respondent
Court of Appeals (CA-G.R. No. 54695-R), which on July 2, 1975
affirmed it with the sole modification on the reduction of the
awarded moral damages from P25,000.00 to P5,000.00 (Annex B,
Rollo, p. 52).
Hence, this petition before Us with the prayer that the decision of
respondent court be reversed and another rendered, 'dismissing the
complaint and ordering respondents De Leons to accept from
petitioner J.M. Tuason & Co., Inc. the sum of P60.00 per square
meter for the 1,050 square meters which the petitioner was ordered
to sell to Ramon Rivera, and to pay petitioner P30,000.00 as
attorney's fees plus costs.
Petitioner J. M. Tuason & Co., Inc. alleges that dent court erred: (1)
in holding that the compromise agreement was the proximate cause
of its failure to comply with its contract to self in favor of Ricardo de
Leon; (2) in holding that it entered into the compromise agreement
255
without the knowledge and behind the back of Ricardo de Leon and
thereafter continued the collection of the installments until the
purchase price was fully paid and thus it wilfully committed fraud
against him; (3) in not considering that Ricardo de Leon was guilty of
bad faith in entering into the contract to sell and therefore he is not
entitled to the warranty against eviction; and (4) in granting moral
and exemplary damages.
The real point in issue is whether respondents De Leon are entitled
to the vendor's warranty against eviction and damages.
The appellate court, in this action of warranty against eviction, found
that petitioner J.M. Tuason & Co., Inc. failed to comply with its
obligation to transfer ownership over the lot to the De Leons due to
the compromise agreement it entered with the Deudors, and that
petitioner is guilty of "wilful deception, intentional forsaking of one
to whom defendant was bound in a contract to convey, and worse
yet, even at that, after the compromise, defendant still continued to
collect installments from buyer ...
Contrary to these findings, this Court holds that it was not
petitioner's own making that it executed the compromise
agreement with the Deudors. This agreement was sanctioned by the
court after the Deudors filed an action against petitioner in Civil Case
No. Q-135 entitled "Florencio Deudor, et al. vs. J.M. Tuason et
al." The prior right of Ramon Rivera to purchase the lot in litigation
was based more on his prior occupancy to the same since 1949,
about which fact respondents De Leon were informed by petitioner
at the time of the execution of the contract to sell. The execution of
the compromise agreement merely recognized this prior right, under
the condition as stipulated in said agreement, that it was possible to
do so.
Petitioner claims, without having been contradicted, that it executed
the compromise agreement with the Deudors in the honest belief
that the lots it already sold. like the lot in question, were excluded
from the coverage of the agreement. This claim finds support in
paragraph "SEVENTH" of the compromise agreement which reads ...
It shall be the joint and solidary obligation of the Deudors to make
the buyers of the lots purportedly sold by them recognize the title of
the OWNERS over the property purportedly bought by them, and to
make them sign, whenever possible, new contracts of purchase for
the said property at the current prices and terms specified by the
OWNERS in their sales of lots in their subdivision known as Sta. Mesa
Heights Subdivision ... " (Annex C, Rollo, p. 55). In fact, in their brief
as appellants in CA-G.R. No. 38212-R, private respondents stated
that "as correctly pointed out in the brief for plaintiff-appellant, it
was not the intention of the signatories of the Compromise
Agreement to include within its coverage those parcels of land
already sold by plaintiff-appellant (petitioner herein) to third
parties," and "We reproduce herein by way of reference the
arguments in pp. 1-2 to 39 of plaintiffs- appellants' brief." (See
Annex C, Petition, pp. 3-4). Private respondents should not be
allowed to turn back from what they stated in their brief in CA-G.R.
No. 38212-R, to impute "wilful deception" as the respondent court
said in its decision under review.
This particular stipulation in the compromise agreement discloses an
understanding between the petitioner and the Deudors that the
buyers of lots from the Deudors, like Ramon Rivera, may, acquire
lots from the subdivision being sold by petitioner and sign new
contracts of purchase with the latter 6 whenever possible", or only
when said lots have not already been sold to third 'parties. Relying
on the above-quoted provision, petitioner believed in good faith that
said lot sold to the De Leons would not be adversely affected.
Nonetheless, with the inevitable and admitted fact that Ramon
Rivera was a prior occupant thereof, petitioner was compelled by
judicial fiat in Civil Case No. 2989 of the Court of First Instance of
Rizal, to recognize the preferential right of Rivera to rightfully
purchase the lot. This fact is not of itself a proof under the
circumstance just cited, of bad faith on the part of the petitioner or
that it is guilty of committing fraud and deception upon the
respondents as the respondent court found. Its good faith in with
Ricardo de Leon who was the one branded as a "buyer in bad faith"
by the Court of Appeals in its decision affirming of the Court of First
Instance of Rizal in CA-G.R. No. No. 38212-R seems beyond question.
If petitioner continued the collection of the outstanding monthly
after the execution of the compromise agreement on April 10,1953
pursuant to the agreements embodied in the contract to sell (Exhibit
A), its act only proved its honest belief that it found no barrier
against the enforceability of the contract to sell, the terms of which
have the force of law between the parties and must be complied
with in good faith (Lazo vs. Republic Surety & Insurance Co., Inc., 311
SCRA 329; Ramos vs. Central Bank of the Philippines, 41 SCRA 565;
Enriquez vs. Ramos, 73 SCRA 116; De Cortes vs, Venturanza, 79 SCRA
709). The collection of the monthly installment payments
terminated upon the fun payment of the purchase price on July 19,
1965, long before the ejectment case against Ramon Rivera was
finally resolved by the appellate court in September, 1971 (Civil Case
No. Q-2989; CA-G.R. No. 38212-R). As properly claimed by the
petitioner, it had the right to hopefully expect to win the ejectment
case. It was not exactly its fault that it lost the case. Private
respondents joined in a common cause with it.
The subsequent execution of a deed of sale upon the total payment
of the purchase price in favor of herein respondents on August 5,
1965 in lieu of the previous contract to sell made in favor of Ricardo
de Leon, through which deed of sale the respondents acquired a
transfer certificate of title over the questioned lot, is further
evidence of the honesty and good faith of petitioner in dealing with
private respondents. Petitioner owns vast tracts of land, with the lot
in question possibly put an insignificant part in terms of value, and it
would be much too difficult to make the serious imputations made
to petitioner.
In fulfillment of the assurance made to eject the occupant from the
lot, petitioner, on May 13, 1958, later joined by Ricardo de Leon and
respondents Alfonso and Rosario de Leon, instituted a complaint of
ejectment against Ramon Rivera in Civil Case No. Q- 2989.
Unfortunately, however, the decision of the lower court dismissing
the complaint of ejectment was affirmed by the appellate court in
CA-G.R. No. 38212-R, which decision, of the latter upon its finality in
September, 1971 resulted in the eviction of herein respondents from
the lot. It is meet, at this juncture, to repeat that in its decision, the
Court of Appeals branded Ricardo de Leon as a buyer in bad faith.
In manifesting its desire to compensate respondents, as disclosed by
prayer in the instant petition in the sum of P60.00 per square meter
for the 1,050 meters which it was ordered by the courts, in Civil Case
No. Q-2989 and CA-G.R. No. 38212-R, to sell to Ramon Rivera, again
reveals how fair petitioner would want to be to private respondents,
not to defraud them as the respondent court would ascribe such
base intent to petitioner, which is by no means not a disreputable
but a respectable, corporation.
For all the foregoing circumstances, We have no hesitation to give to
petitioner the benefit of the doubt of its having acted in good faith,
which is always presumed,, without any intention of taking
advantage of the other party dealing with it. "Good faith consists in
an honest intention to abstain from taking any unconscientious
advantage of another. Good faith is an opposite of fraud and of bad
faith and its non-existence must be established by competent
proof." (Leung Yee vs. Strong Machinery Company, 37 PhiL 645; Cui
vs. Henson, 51 Phil. 606, 612; Fule vs. De Legare, 7 SCRA 351).
Moreover, at the time of the execution of the contract to sell it is an
admitted fact that Ricardo de Leon knew that a third party was
occupying a part of the lot subject of the sale. Ricardo de Leon ought
to have known that he was buying a property with the distinct
possibility of not being able to possess and own the land due to the
occupancy of another person on the same. So there had to be an
understanding between him and the petitioner for the latter to eject
the occupant, something which, by the facts then obtaining and the
law relevant thereto, would make the ejectment more speculative
than certain. Nonetheless, Ricardo de Leon knowingly assumed the
risk when he bought the, land, and was even called a vendee in bad
faith by the Court of Appeals in doing so, clearly not an innocent
purchaser in good faith. If petitioner that it would eject Ramon
256
Rivera, he did so, not knowing that the compromise agreement
would stand on the way, as it had thought, in all good faith, that
paragraph 7 of the compromise agreement excluded the lot in
question, having been already sold to Ricardo de Leon before the
agreement was executed in court.

This Court is impelled to declare that private respondents were

lacking in good faith for knowing beforehand, at the time of the sale,
the presence of an obstacle to their taking over the possession of
the land, which, in effect, would amount to eviction from said land,
and still they bought the land without first removing that obstacle.
(Angelo vs. Pacheco, 56 Phil. 70; Andaya vs. Manansala, 107 Phil
1151).

One who purchases real estate with knowledge of a defect or lack of

title in his vendor cannot claim that he has acquired title thereto in
good faith, as against the true owner of the land or of an interest
therein; and the same rule must be applied to one who has
knowledge of facts which should have put him upon such inquiry and
investigation as might be necessary to acquaint him with the defects
in the title of his vendor. A purchaser cannot close his eyes to facts
which should put a reasonable man upon his guard and then claim
that he acted in good faith under the belief that there was no defect
in the title of the vendor (Leung Yee vs. Strong Machinery Company,
supra; Manancop Jr. vs. Cansino, 1 SCRA 572; Paylago vs. Jarabe, 22-
SCRA 1247; Barrios vs. Court of Appeals, 78 SCRA 427; Emphasis
supplied).

Without being shown to be vendees in good faith, herein

respondents are not entitled to the warranty against eviction nor are
they On titled to recover damages (Article 1555 of the Civil Code).
However, for justice and equity sake, and in consonance with the
salutary principle of non-enrichment at another's expense, herein
petitioner J.M. Tuason & Co., Inc. should compensate respondents
De Leons in the total sum of ONE HUNDRED TWENTY SIX THOUSAND
(P126,000.00) PESOS, representing the aggregate value of the 1,050
square meters (which petitioner was judicially ordered to sell to
Ramon Rivera at the year 1958 prevailing rate of P60.00 per square
meter) at the value of P120.00 per square meter, doubling the price
of P60.00 per square meter which amount petitioner voluntarily
offered to pay herein respondents following how indemnity for
death had been raised from P6,000.00 to P12,060.00 (People vs.
Pantoja, 25 SCRA 468, 474 [1968]) based on grounds of equity, due
to the reduced purchasing power of the peso, with the legal rate of
interest from December 5, 1972, the date respondents filed their
complaint, until the said total sum is fully paid.

WHEREFORE, the judgment of respondent court is hereby modified

by ordering petitioner J.M. Tuason & Co., Inc. to pay the
respondents the amount of ONE HUNDRED TWENTY-SIX THOUSAND
(Pl26,000.00) PESOS plus the legal rate of interest from December 5,
1972, the date of filing the complaint until the s aid total sum is fully
paid. No costs.

SO ORDERED.

257
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 74457 March 20, 1987
RESTITUTO YNOT, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER,
INTEGRATED NATIONAL POLICE, BAROTAC NUEVO, ILOILO and THE
REGIONAL DIRECTOR, BUREAU OF ANIMAL INDUSTRY, REGION IV,
ILOILO CITY, respondents.
Ramon A. Gonzales for petitioner.
CRUZ, J.:
The essence of due process is distilled in the immortal cry of
Themistocles to Alcibiades "Strike — but hear me first!" It is this cry
that the petitioner in effect repeats here as he challenges the
constitutionality of Executive Order No. 626-A.
The said executive order reads in full as follows:
WHEREAS, the President has given orders
prohibiting the interprovincial movement of
carabaos and the slaughtering of carabaos not
complying with the requirements of Executive
Order No. 626 particularly with respect to age;
WHEREAS, it has been observed that despite
such orders the violators still manage to
circumvent the prohibition against inter-
provincial movement of carabaos by transporting
carabeef instead; and
WHEREAS, in order to achieve the purposes and
objectives of Executive Order No. 626 and the
prohibition against interprovincial movement of
carabaos, it is necessary to strengthen the said
Executive Order and provide for the disposition
of the carabaos and carabeef subject of the
violation;
NOW, THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines, by virtue of the
powers vested in me by the Constitution, do
hereby promulgate the following:
SECTION 1. Executive Order No. 626 is hereby
amended such that henceforth, no carabao
regardless of age, sex, physical condition or
purpose and no carabeef shall be transported
from one province to another. The carabao or
carabeef transported in violation of this
Executive Order as amended shall be subject to
confiscation and forfeiture by the government,
to be distributed to charitable institutions and
other similar institutions as the Chairman of the
National Meat Inspection Commission may ay
see fit, in the case of carabeef, and to deserving
farmers through dispersal as the Director of
Animal Industry may see fit, in the case of
carabaos.
SECTION 2. This Executive Order shall take effect
immediately.
Done in the City of Manila, this 25th day of
October, in the year of Our Lord, nineteen
hundred and eighty.
The petitioner had transported six carabaos in a pump boat from
Masbate to Iloilo on January 13, 1984, when they were confiscated
by the police station commander of Barotac Nuevo, Iloilo, for
violation of the above measure. 1The petitioner sued for recovery,
and the Regional Trial Court of Iloilo City issued a writ
of replevin upon his filing of a supersedeas bond of P12,000.00. After
considering the merits of the case, the court sustained the
confiscation of the carabaos and, since they could no longer be
produced, ordered the confiscation of the bond. The court also
declined to rule on the constitutionality of the executive order, as
raise by the petitioner, for lack of authority and also for its
presumed validity. 2
The petitioner appealed the decision to the Intermediate Appellate
Court,* 3 which upheld the trial court, ** and he has now come
before us in this petition for review on certiorari.
The thrust of his petition is that the executive order is
unconstitutional insofar as it authorizes outright confiscation of the
carabao or carabeef being transported across provincial boundaries.
His claim is that the penalty is invalid because it is imposed without
according the owner a right to be heard before a competent and
impartial court as guaranteed by due process. He complains that the
measure should not have been presumed, and so sustained, as
constitutional. There is also a challenge to the improper exercise of
the legislative power by the former President under Amendment No.
6 of the 1973 Constitution. 4
While also involving the same executive order, the case of Pesigan v.
Angeles 5 is not applicable here. The question raised there was the
necessity of the previous publication of the measure in the Official
Gazette before it could be considered enforceable. We imposed the
requirement then on the basis of due process of law. In doing so,
however, this Court did not, as contended by the Solicitor General,
impliedly affirm the constitutionality of Executive Order No. 626-A.
That is an entirely different matter.
This Court has declared that while lower courts should observe a
becoming modesty in examining constitutional questions, they are
nonetheless not prevented from resolving the same whenever
warranted, subject only to review by the highest tribunal. 6 We have
jurisdiction under the Constitution to "review, revise, reverse,
modify or affirm on appeal or certiorari, as the law or rules of court
may provide," final judgments and orders of lower courts in, among
others, all cases involving the constitutionality of certain
measures. 7 This simply means that the resolution of such cases may
be made in the first instance by these lower courts.
And while it is true that laws are presumed to be constitutional, that
presumption is not by any means conclusive and in fact may be
rebutted. Indeed, if there be a clear showing of their invalidity, and
of the need to declare them so, then "will be the time to make the
hammer fall, and heavily," 8 to recall Justice Laurel's trenchant
warning. Stated otherwise, courts should not follow the path of least
resistance by simply presuming the constitutionality of a law when it
is questioned. On the contrary, they should probe the issue more
deeply, to relieve the abscess, paraphrasing another distinguished
jurist, 9 and so heal the wound or excise the affliction.
Judicial power authorizes this; and when the exercise is demanded,
there should be no shirking of the task for fear of retaliation, or loss
of favor, or popular censure, or any other similar inhibition
unworthy of the bench, especially this Court.
The challenged measure is denominated an executive order but it is
really presidential decree, promulgating a new rule instead of
merely implementing an existing law. It was issued by President
Marcos not for the purpose of taking care that the laws were
faithfully executed but in the exercise of his legislative authority
under Amendment No. 6. It was provided thereunder that whenever
in his judgment there existed a grave emergency or a threat or
imminence thereof or whenever the legislature failed or was unable
to act adequately on any matter that in his judgment required
immediate action, he could, in order to meet the exigency, issue
decrees, orders or letters of instruction that were to have the force
258
and effect of law. As there is no showing of any exigency to justify
the exercise of that extraordinary power then, the petitioner has
reason, indeed, to question the validity of the executive order.
Nevertheless, since the determination of the grounds was supposed
to have been made by the President "in his judgment, " a phrase
that will lead to protracted discussion not really necessary at this
time, we reserve resolution of this matter until a more appropriate
occasion. For the nonce, we confine ourselves to the more
fundamental question of due process.
It is part of the art of constitution-making that the provisions of the
charter be cast in precise and unmistakable language to avoid
controversies that might arise on their correct interpretation. That is
the Ideal. In the case of the due process clause, however, this rule
was deliberately not followed and the wording was purposely kept
ambiguous. In fact, a proposal to delineate it more clearly was
submitted in the Constitutional Convention of 1934, but it was
rejected by Delegate Jose P. Laurel, Chairman of the Committee on
the Bill of Rights, who forcefully argued against it. He was sustained
by the body. 10
The due process clause was kept intentionally vague so it would
remain also conveniently resilient. This was felt necessary because
due process is not, like some provisions of the fundamental law, an
"iron rule" laying down an implacable and immutable command for
all seasons and all persons. Flexibility must be the best virtue of the
guaranty. The very elasticity of the due process clause was meant to
make it adapt easily to every situation, enlarging or constricting its
protection as the changing times and circumstances may require.
Aware of this, the courts have also hesitated to adopt their own
specific description of due process lest they confine themselves in a
legal straitjacket that will deprive them of the elbow room they may
need to vary the meaning of the clause whenever indicated. Instead,
they have preferred to leave the import of the protection open-
ended, as it were, to be "gradually ascertained by the process of
inclusion and exclusion in the course of the decision of cases as they
arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme Court,
for example, would go no farther than to define due process — and
in so doing sums it all up — as nothing more and nothing less than
"the embodiment of the sporting Idea of fair play." 12
When the barons of England extracted from their sovereign liege the
reluctant promise that that Crown would thenceforth not proceed
against the life liberty or property of any of its subjects except by the
lawful judgment of his peers or the law of the land, they thereby
won for themselves and their progeny that splendid guaranty of
fairness that is now the hallmark of the free society. The solemn vow
that King John made at Runnymede in 1215 has since then
resounded through the ages, as a ringing reminder to all rulers,
benevolent or base, that every person, when confronted by the
stern visage of the law, is entitled to have his say in a fair and open
hearing of his cause.
The closed mind has no place in the open society. It is part of the
sporting Idea of fair play to hear "the other side" before an opinion
is formed or a decision is made by those who sit in judgment.
Obviously, one side is only one-half of the question; the other half
must also be considered if an impartial verdict is to be reached
based on an informed appreciation of the issues in contention. It is
indispensable that the two sides complement each other, as unto
the bow the arrow, in leading to the correct ruling after examination
of the problem not from one or the other perspective only but in its
totality. A judgment based on less that this full appraisal, on the
pretext that a hearing is unnecessary or useless, is tainted with the
vice of bias or intolerance or ignorance, or worst of all, in repressive
regimes, the insolence of power.
The minimum requirements of due process are notice and
hearing 13 which, generally speaking, may not be dispensed with
because they are intended as a safeguard against official
arbitrariness. It is a gratifying commentary on our judicial system
that the jurisprudence of this country is rich with applications of this
guaranty as proof of our fealty to the rule of law and the ancient
rudiments of fair play. We have consistently declared that every
person, faced by the awesome power of the State, is entitled to "the
law of the land," which Daniel Webster described almost two
hundred years ago in the famous Dartmouth College Case, 14 as "the
law which hears before it condemns, which proceeds upon inquiry
and renders judgment only after trial." It has to be so if the rights of
every person are to be secured beyond the reach of officials who,
out of mistaken zeal or plain arrogance, would degrade the due
process clause into a worn and empty catchword.
This is not to say that notice and hearing are imperative in every
case for, to be sure, there are a number of admitted exceptions. The
conclusive presumption, for example, bars the admission of contrary
evidence as long as such presumption is based on human experience
or there is a rational connection between the fact proved and the
fact ultimately presumed therefrom. 15 There are instances when
the need for expeditions action will justify omission of these
requisites, as in the summary abatement of a nuisance per se, like a
mad dog on the loose, which may be killed on sight because of the
immediate danger it poses to the safety and lives of the people.
Pornographic materials, contaminated meat and narcotic drugs are
inherently pernicious and may be summarily destroyed. The
passport of a person sought for a criminal offense may be cancelled
without hearing, to compel his return to the country he has
fled. 16Filthy restaurants may be summarily padlocked in the
interest of the public health and bawdy houses to protect the public
morals. 17 In such instances, previous judicial hearing may be
omitted without violation of due process in view of the nature of the
property involved or the urgency of the need to protect the general
welfare from a clear and present danger.
The protection of the general welfare is the particular function of
the police power which both restraints and is restrained by due
process. The police power is simply defined as the power inherent in
the State to regulate liberty and property for the promotion of the
general welfare. 18 By reason of its function, it extends to all the
great public needs and is described as the most pervasive, the least
limitable and the most demanding of the three inherent powers of
the State, far outpacing taxation and eminent domain. The
individual, as a member of society, is hemmed in by the police
power, which affects him even before he is born and follows him still
after he is dead — from the womb to beyond the tomb — in
practically everything he does or owns. Its reach is virtually limitless.
It is a ubiquitous and often unwelcome intrusion. Even so, as long as
the activity or the property has some relevance to the public
welfare, its regulation under the police power is not only proper but
necessary. And the justification is found in the venerable Latin
maxims, Salus populi est suprema lex and Sic utere tuo ut alienum
non laedas, which call for the subordination of individual interests to
the benefit of the greater number.
It is this power that is now invoked by the government to justify
Executive Order No. 626-A, amending the basic rule in Executive
Order No. 626, prohibiting the slaughter of carabaos except under
certain conditions. The original measure was issued for the reason,
as expressed in one of its Whereases, that "present conditions
demand that the carabaos and the buffaloes be conserved for the
benefit of the small farmers who rely on them for energy needs."
We affirm at the outset the need for such a measure. In the face of
the worsening energy crisis and the increased dependence of our
farms on these traditional beasts of burden, the government would
have been remiss, indeed, if it had not taken steps to protect and
preserve them.
A similar prohibition was challenged in United States v.
Toribio, 19 where a law regulating the registration, branding and
slaughter of large cattle was claimed to be a deprivation of property
without due process of law. The defendant had been convicted
thereunder for having slaughtered his own carabao without the
required permit, and he appealed to the Supreme Court. The
conviction was affirmed. The law was sustained as a valid police
measure to prevent the indiscriminate killing of carabaos, which
were then badly needed by farmers. An epidemic had stricken many
of these animals and the reduction of their number had resulted in
an acute decline in agricultural output, which in turn had caused an
incipient famine. Furthermore, because of the scarcity of the animals
259
and the consequent increase in their price, cattle-rustling had spread
alarmingly, necessitating more effective measures for the
registration and branding of these animals. The Court held that the
questioned statute was a valid exercise of the police power and
declared in part as follows:
To justify the State in thus interposing its
authority in behalf of the public, it must appear,
first, that the interests of the public generally, as
distinguished from those of a particular class,
require such interference; and second, that the
means are reasonably necessary for the
accomplishment of the purpose, and not unduly
oppressive upon individuals. ...
From what has been said, we think it is clear that
the enactment of the provisions of the statute
under consideration was required by "the
interests of the public generally, as distinguished
from those of a particular class" and that the
prohibition of the slaughter of carabaos for
human consumption, so long as these animals
are fit for agricultural work or draft purposes
was a "reasonably necessary" limitation on
private ownership, to protect the community
from the loss of the services of such animals by
their slaughter by improvident owners, tempted
either by greed of momentary gain, or by a
desire to enjoy the luxury of animal food, even
when by so doing the productive power of the
community may be measurably and dangerously
affected.
In the light of the tests mentioned above, we hold with the Toribio
Case that the carabao, as the poor man's tractor, so to speak, has a
direct relevance to the public welfare and so is a lawful subject of
Executive Order No. 626. The method chosen in the basic measure is
also reasonably necessary for the purpose sought to be achieved
and not unduly oppressive upon individuals, again following the
above-cited doctrine. There is no doubt that by banning the
slaughter of these animals except where they are at least seven
years old if male and eleven years old if female upon issuance of the
necessary permit, the executive order will be conserving those still
fit for farm work or breeding and preventing their improvident
depletion.
But while conceding that the amendatory measure has the same
lawful subject as the original executive order, we cannot say with
equal certainty that it complies with the second
requirement, viz., that there be a lawful method. We note that to
strengthen the original measure, Executive Order No. 626-A imposes
an absolute ban not on theslaughter of the carabaos but on
their movement, providing that "no carabao regardless of age, sex,
physical condition or purpose (sic) and no carabeef shall be
transported from one province to another." The object of the
prohibition escapes us. The reasonable connection between the
means employed and the purpose sought to be achieved by the
questioned measure is missing
We do not see how the prohibition of the inter-provincial transport
of carabaos can prevent their indiscriminate slaughter, considering
that they can be killed anywhere, with no less difficulty in one
province than in another. Obviously, retaining the carabaos in one
province will not prevent their slaughter there, any more than
moving them to another province will make it easier to kill them
there. As for the carabeef, the prohibition is made to apply to it as
otherwise, so says executive order, it could be easily circumvented
by simply killing the animal. Perhaps so. However, if the movement
of the live animals for the purpose of preventing their slaughter
cannot be prohibited, it should follow that there is no reason either
to prohibit their transfer as, not to be flippant dead meat.
Even if a reasonable relation between the means and the end were
to be assumed, we would still have to reckon with the sanction that
the measure applies for violation of the prohibition. The penalty is
outright confiscation of the carabao or carabeef being transported,
to be meted out by the executive authorities, usually the police only.
In the Toribio Case, the statute was sustained because the penalty
prescribed was fine and imprisonment, to be imposed by the court
after trial and conviction of the accused. Under the challenged
measure, significantly, no such trial is prescribed, and the property
being transported is immediately impounded by the police and
declared, by the measure itself, as forfeited to the government.
In the instant case, the carabaos were arbitrarily confiscated by the
police station commander, were returned to the petitioner only
after he had filed a complaint for recovery and given
a supersedeas bond of P12,000.00, which was ordered confiscated
upon his failure to produce the carabaos when ordered by the trial
court. The executive order defined the prohibition, convicted the
petitioner and immediately imposed punishment, which was carried
out forthright. The measure struck at once and pounced upon the
petitioner without giving him a chance to be heard, thus denying
him the centuries-old guaranty of elementary fair play.
It has already been remarked that there are occasions when notice
and hearing may be validly dispensed with notwithstanding the
usual requirement for these minimum guarantees of due process. It
is also conceded that summary action may be validly taken in
administrative proceedings as procedural due process is not
necessarily judicial only. 20 In the exceptional cases accepted,
however. there is a justification for the omission of the right to a
previous hearing, to wit, the immediacy of the problem sought to be
corrected and the urgency of the need to correct it.
In the case before us, there was no such pressure of time or action
calling for the petitioner's peremptory treatment. The properties
involved were not even inimical per se as to require their instant
destruction. There certainly was no reason why the offense
prohibited by the executive order should not have been proved first
in a court of justice, with the accused being accorded all the rights
safeguarded to him under the Constitution. Considering that, as we
held in Pesigan v. Angeles, 21 Executive Order No. 626-A is penal in
nature, the violation thereof should have been pronounced not by
the police only but by a court of justice, which alone would have had
the authority to impose the prescribed penalty, and only after trial
and conviction of the accused.
We also mark, on top of all this, the questionable manner of the
disposition of the confiscated property as prescribed in the
questioned executive order. It is there authorized that the seized
property shall "be distributed to charitable institutions and other
similar institutions as the Chairman of the National Meat Inspection
Commissionmay see fit, in the case of carabeef, and to deserving
farmers through dispersal as the Director of Animal Industrymay see
fit, in the case of carabaos." (Emphasis supplied.) The phrase "may
see fit" is an extremely generous and dangerous condition, if
condition it is. It is laden with perilous opportunities for partiality
and abuse, and even corruption. One searches in vain for the usual
standard and the reasonable guidelines, or better still, the
limitations that the said officers must observe when they make their
distribution. There is none. Their options are apparently boundless.
Who shall be the fortunate beneficiaries of their generosity and by
what criteria shall they be chosen? Only the officers named can
supply the answer, they and they alone may choose the grantee as
they see fit, and in their own exclusive discretion. Definitely, there is
here a "roving commission," a wide and sweeping authority that is
not "canalized within banks that keep it from overflowing," in short,
a clearly profligate and therefore invalid delegation of legislative
powers.
To sum up then, we find that the challenged measure is an invalid
exercise of the police power because the method employed to
conserve the carabaos is not reasonably necessary to the purpose of
the law and, worse, is unduly oppressive. Due process is violated
because the owner of the property confiscated is denied the right to
be heard in his defense and is immediately condemned and
punished. The conferment on the administrative authorities of the
power to adjudge the guilt of the supposed offender is a clear
encroachment on judicial functions and militates against the
260
doctrine of separation of powers. There is, finally, also an invalid
delegation of legislative powers to the officers mentioned therein
who are granted unlimited discretion in the distribution of the
properties arbitrarily taken. For these reasons, we hereby declare
Executive Order No. 626-A unconstitutional.

We agree with the respondent court, however, that the police

station commander who confiscated the petitioner's carabaos is not
liable in damages for enforcing the executive order in accordance
with its mandate. The law was at that time presumptively valid, and
it was his obligation, as a member of the police, to enforce it. It
would have been impertinent of him, being a mere subordinate of
the President, to declare the executive order unconstitutional and,
on his own responsibility alone, refuse to execute it. Even the trial
court, in fact, and the Court of Appeals itself did not feel they had
the competence, for all their superior authority, to question the
order we now annul.

The Court notes that if the petitioner had not seen fit to assert and
protect his rights as he saw them, this case would never have
reached us and the taking of his property under the challenged
measure would have become afait accompli despite its invalidity.
We commend him for his spirit. Without the present challenge, the
matter would have ended in that pump boat in Masbate and
another violation of the Constitution, for all its obviousness, would
have been perpetrated, allowed without protest, and soon forgotten
in the limbo of relinquished rights.

The strength of democracy lies not in the rights it guarantees but in

the courage of the people to invoke them whenever they are
ignored or violated. Rights are but weapons on the wall if, like
expensive tapestry, all they do is embellish and impress. Rights, as
weapons, must be a promise of protection. They become truly
meaningful, and fulfill the role assigned to them in the free society, if
they are kept bright and sharp with use by those who are not afraid
to assert them.

WHEREFORE, Executive Order No. 626-A is hereby declared

unconstitutional. Except as affirmed above, the decision of the Court
of Appeals is reversed. The supersedeas bond is cancelled and the
amount thereof is ordered restored to the petitioner. No costs.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Paras,

Gancayco, Padilla Bidin Sarmiento and Cortes, JJ., concur.

Melencio-Herrera and Feliciano, JJ., are on leave.

(
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261
 Republic of the Philippines
SUPREME COURT
Manila
G.R. No. 76180 October 24, 1986
IN RE: SATURNINO V. BERMUDEZ, petitioner.
R E S O L U T IO N
PER CURIAM:
In a petition for declaratory relief impleading no respondents,
petitioner, as a lawyer, quotes the first paragraph of Section 5 (not
Section 7 as erroneously stated) of Article XVIII of the proposed 1986
Constitution, which provides in full as follows:
Sec. 5. The six-year term of the incumbent President and Vice-
President elected in the February 7, 1986 election is, for purposes of
synchronization of elections, hereby extended to noon of June 30,
1992.
The first regular elections for the President and Vice-President under
this Constitution shall be held on the second Monday of May, 1992.
Claiming that the said provision "is not clear" as to whom it refers,
he then asks the Court "to declare and answer the question of the
construction and definiteness as to who, among the present
incumbent President Corazon Aquino and Vice-President Salvador
Laurel and the elected President Ferdinand E. Marcos and Vice-
President Arturo M. Tolentino being referred to under the said
Section 7 (sic) of ARTICLE XVIII of the TRANSITORY PROVISIONS of
the proposed 1986 Constitution refers to, . ...
The petition is dismissed outright for lack of jurisdiction and for lack
for cause of action.
Prescinding from petitioner's lack of personality to sue or to bring
this action, (Tan vs. Macapagal, 43 SCRA 677), it is elementary that
this Court assumes no jurisdiction over petitions for declaratory
relief. More importantly, the petition amounts in effect to a suit
against the incumbent President of the Republic, President Corazon
C. Aquino, and it is equally elementary that incumbent Presidents
are immune from suit or from being brought to court during the
period of their incumbency and tenure.
The petition furthermore states no cause of action. Petitioner's
allegation of ambiguity or vagueness of the aforequoted provision is
manifestly gratuitous, it being a matter of public record and
common public knowledge that the Constitutional Commission
refers therein to incumbent President Corazon C. Aquino and Vice-
President Salvador H. Laurel, and to no other persons, and provides
for the extension of their term to noon of June 30, 1992 for
purposes of synchronization of elections. Hence, the second
paragraph of the cited section provides for the holding on the
second Monday of May, 1992 of the first regular elections for the
President and Vice-President under said 1986 Constitution. In
previous cases, the legitimacy of the government of President
Corazon C. Aquino was likewise sought to be questioned with the
claim that it was not established pursuant to the 1973 Constitution.
The said cases were dismissed outright by this court which held that:
Petitioners have no personality to sue and their petitions state no
cause of action. For the legitimacy of the Aquino government is not a
justiciable matter. It belongs to the realm of politics where only the
people of the Philippines are the judge. And the people have made
the judgment; they have accepted the government of President
Corazon C. Aquino which is in effective control of the entire country
so that it is not merely a de facto government but in fact and law a
de jure government. Moreover, the community of nations has
recognized the legitimacy of tlie present government. All the eleven
members of this Court, as reorganized, have sworn to uphold the
fundamental law of the Republic under her government. (Joint
Resolution of May 22, 1986 in G.R. No. 73748 [Lawyers League for a
Better Philippines, etc. vs. President Corazon C. Aquino, et al.]; G.R.
No. 73972 [People's Crusade for Supremacy of the Constitution. etc.
vs. Mrs. Cory Aquino, et al.]; and G.R. No. 73990 [Councilor Clifton U.
Ganay vs. Corazon C. Aquino, et al.])
For the above-quoted reason, which are fully applicable to the
petition at bar, mutatis mutandis, there can be no question that
President Corazon C. Aquino and Vice-President Salvador H. Laurel
are the incumbent and legitimate President and Vice-President of
the Republic of the Philippines.or the above-quoted reasons, which
are fully applicable to the petition at bar,
ACCORDINGLY, the petition is hereby dismissed.
Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Alampay and Paras, JJ.,
concur.
MELENCIO-HERRERA, J., concurring:
GUTIERREZ, Jr., J., concurring:
FELICIANO, JJ., concurring.
The petitioner asks the Court to declare who are "the incumbent
President and Vice President elected in the February 7, 1986
elections" as stated in Article XVIII, Section 5 of the Draft
Constitution adopted by the Constitutional Commission of 1986.
We agree that the petition deserves outright dismissal as this Court
has no original jurisdiction over petitions for declaratory relief.
As to lack of cause of action, the petitioner's prayer for a declaration
as to who were elected President and Vice President in the February
7, 1986 elections should be addressed not to this Court but to other
departments of government constitutionally burdened with the task
of making that declaration.
The 1935 Constitution, the 1913 Constitution as amended, and the
1986 Draft Constitution uniformly provide 'that boards of canvassers
in each province and city shall certified who were elected President
and Vice President in their respective areas. The certified returns are
transmitted to the legislature which proclaims, through the
designated Presiding Head, who were duty elected.
Copies of the certified returns from the provincial and city boards of
canvassers have not been furnished this Court nor is there any need
to do so. In the absence of a legislature, we cannot assume the
function of stating, and neither do we have any factual or legal
capacity to officially declare, who were elected President and Vice
President in the February 7, 1986 elections.
As to who are the incumbent President and Vice President referred
to in the 1986 Draft Constitution, we agree that there is no doubt
the 1986 Constitutional Commission referred to President Corazon
C. Aquino and Vice President Salvador H. Laurel.
Finally, we agree with the Resolution of the Court in G.R. Nos.
73748, 73972, and 73990.
For the foregoing reasons, we vote to DISMISS the instant petition.
CRUZ, J., concurring:
I vote to dismiss this petition on the ground that the Constitution we
are asked to interpret has not yet been ratified and is therefore not
yet effective. I see here no actual conflict of legal rights susceptible
of judicial determination at this time. (Aetna Life Insurance Co. vs.
Haworth, 300 U.S. 227; PACU vs. Secretary of Education, 97 Phil.
806.)
262
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-10520 February 28, 1957
LORENZO M. TAÑADA and DIOSDADO MACAPAGAL, petitioners,
vs.
MARIANO JESUS CUENCO, FRANCISCO A. DELGADO, ALFREDO
CRUZ, CATALINA CAYETANO, MANUEL SERAPIO, PLACIDO REYES,
and FERNANDO HIPOLITO in his capacity as cashier and disbursing
officer, respondents.
Tañada, Teehankee and Macapagal for petitioners.
Office of the Solicitor General Ambrosio Padilla and Solicitor Troadio
T. Quiazon, Jr. for respondents.
CONCEPCION, J.:
Petitioner Lorenzo M. Tañada is a member of the Senate of the
Philippines, and President of the Citizens Party, whereas petitioner
Diosdado Macapagal, a member of the House of Representatives of
the Philippines, was one of the official candidates of the Liberal Party
for the Senate, at the General elections held in November, 1955, in
which Pacita Madrigal Warns, Lorenzo Sumulong, Quintin Paredes,
Francisco Rodrigo, Pedro Sabido, Claro M. Recto, Domocao Alonto
and Decoroso Rosales, were proclaimed elected. Subsequently, the
elections of this Senators-elect-who eventually assumed their
respective seats in the Senate-was contested by petitioner
Macapagal, together with Camilo Osias, Geronima Pecson, Macario
Peralta, Enrique Magalona, Pio Pedrosa and William Chiongbian-who
had, also, run for the Senate, in said election-in Senate Electoral
Case No. 4, now pending before the Senate Electoral Tribunal. .
The Senate, in its session of February 22, 1956, upon nomination of
Senator Cipriano Primicias, on behalf of the Nacionalista Party, chose
Senators Jose P. Laurel, Fernando Lopez and Cipriano Primicias, as
members of the Senate Electoral Tribunal. Upon nomination of
petitioner Senator Tañada, on behalf of the Citizens Party, said
petitioner was next chosen by the Senate as member of said
Tribunal. Then, upon nomination of Senator Primicias on behalf of
the Committee on Rules of the Senate, and over the objections of
Senators Tañada and Sumulong, the Senate choose respondents
Senators Mariano J. Cuenco and Francisco A. Delgado as members of
the same Electoral Tribunal. Subsequently, the Chairman of the
latter appointed: (1) Alfredo Cruz and Catalina Cayetano, as
technical assistant and private secretary, respectively, to Senator
Cuenco, as supposed member of the Senate Electoral Tribunal, upon
his recommendation of said respondent; and (2) Manuel Serapio and
Placido Reyes, as technical assistant and private secretary,
respectively to Senator Delgado, as supposed member of said
Electoral Tribunal, and upon his recommendation.
Soon, thereafter, Senator Lorenzo M. Tañada and Congressman
Diosdado Macapagal instituted the case at bar against Senators
Cuenco and Delgado, and said Alfredo Cruz, Catalina Cayetano,
Manuel Serapio and Placido Reyes, as well as Fernando Hipolito, in
his capacity as Cashier and Disbursing Officer of the Senate Electoral
Tribunal. Petitioners allege that on February 22, 1956, as well as at
present, the Senate consists of 23 Senators who belong to the
Nacionalista Party, and one (1) Senator-namely, petitioner, Lorenzo
M. Tañada-belonging to the Citizens Party; that the Committee on
Rules for the Senate, in nominating Senators Cuenco and Delgado,
and the Senate, in choosing these respondents, as members of the
Senate Electoral Tribunal, had "acted absolutely without power or
color of authority and in clear violation .. of Article VI, Section 11 of
the Constitution"; that "in assuming membership in the Senate
Electoral Tribunal, by taking the corresponding oath of office
therefor", said respondents had "acted absolutely without color of
appointment or authority and are unlawfully, and in violation of the
Constitution, usurping, intruding into and exercising the powers of
members of the Senate Electoral Tribunal"; that, consequently, the
appointments of respondents, Cruz, Cayetano, Serapio and Reyes, as
technical assistants and private secretaries to Senators Cuenco and
Delgado-who caused said appointments to be made-as members of
the Senate Electoral Tribunal, are unlawful and void; and that
Senators Cuenco and Delgado "are threatening and are about to
take cognizance of Electoral Case No. 4 of the Senate Electoral
Tribunal, as alleged members thereof, in nullification of the rights of
petitioner Lorenzo M. Tañada, both as a Senator belonging to the
Citizens Party and as representative of the Citizens Party in the
Senate Electoral Tribunal, and in deprivation of the constitutional
rights of petitioner Diosdado Macapagal and his co-protestants to
have their election protest tried and decided-by an Electoral Tribunal
composed of not more than three (3) senators chosen by the Senate
upon nomination of the party having the largest number of votes in
the Senate and not more than the (3) Senators upon nomination of
the Party having the second largest number of votes therein,
together, three (3) Justice of the Supreme Court to be designated by
the Chief Justice, instead of by an Electoral Tribunal packed with five
members belonging to the Nacionalista Party, which is the rival party
of the Liberal Party, to which the Petitioner Diosdado Macapagal and
his co-protestants in Electoral Case No. 4 belong, the said five (5)
Nacionalista Senators having been nominated and chosen in the
manner alleged.. hereinabove.".
Petitioners pray that:.
"1. Upon petitioners' filing of bond in such amount as may be
determined by this Honorable Court, a writ of preliminary injunction
be immediately issued directed to respondents Mariano J. Cuenco,
Francisco A. Delgado, Alfredo Cruz, Catalina Cayetano, Manuel
Serapio and Placido Reyes, restraining them from continuing to
usurp, intrude into and/ or hold or exercise the said public offices
respectively being occupied by them in the Senate Electoral Tribunal,
and to respondent Fernando Hipolito restraining him from paying
the salaries of respondent Alfredo Cruz, Catalina Cayetano, Manuel
Serapio and Placido Reyes, pending this action.
"2. After hearing, judgment be rendered ousting respondent
Mariano J. Cuenco Francisco A. Delgado, Alfredo Cruz, Catalina
Cayetano, Manuel Serapio and Placido Reyes from the
aforementioned public offices in the Senate Electoral Tribunal and
that they be altogether excluded therefrom and making the
Preliminary injunction permanent, with costs against the
respondents.".
Respondents have admitted the main allegations of fact in the
petition, except insofar as it questions the legality, and validity of the
election of respondents Senators Cuenco and Delgado, as members
of the Senate Electoral Tribunal, and of the appointment of
respondent Alfredo Cruz, Catalina Cayetano, Manuel Serapio and
Placido Reyes as technical assistants and private secretaries to said
respondents Senators. Respondents, likewise, allege, by way of
special and affirmative defenses, that: (a) this Court is without
power, authority of jurisdiction to direct or control the action of the
Senate in choosing the members of the Electoral Tribunal; and (b)
that the petition states no cause of action, because "petitioner
Tañada has exhausted his right to nominate after he nominated
himself and refused to nominate two (2) more Senators", because
said petitioner is in estoppel, and because the present action is not
the proper remedy. .
I. Respondents assail our jurisdiction to entertain the petition, upon
the ground that the power to choose six (6) Senators as members of
the Senate Electoral Tribunal has been expressly conferred by the
Constitution upon the Senate, despite the fact that the draft
submitted to the constitutional convention gave to the respective
political parties the right to elect their respective representatives in
the Electoral Commission provided for in the original Constitution of
the Philippines, and that the only remedy available to petitioners
herein "is not in the judicial forum", but "to bring the matter to the
bar of public opinion.".
We cannot agree with the conclusion drawn by respondents from
the foregoing facts. To begin with, unlike the cases of Alejandrino vs.
Quezon (46 Phil., 83) and Vera vs. Avelino (77 Phil., 192)-relied upon
263
by the respondents this is not an action against the Senate, and it
does not seek to compel the latter, either directly or indirectly, to
allow the petitioners to perform their duties as members of said
House. Although the Constitution provides that the Senate shall
choose six (6) Senators to be members of the Senate Electoral
Tribunal, the latter is part neither of Congress nor of the Senate.
(Angara vs. Electoral Commission, 63 Phil., 139, Suanes vs. Chief
Accountant, 81 Phil., 818; 46 Off. Gaz., 462.).
Secondly, although the Senate has, under the Constitution, the
exclusive power to choose the Senators who shall form part of the
Senate Electoral Tribunal, the fundamental law has prescribed the
manner in which the authority shall be exercised. As the author of a
very enlightening study on judicial self-limitation has aptly put it:.
"The courts are called upon to say, on the one hand, by whom
certain powers shall be exercised, and on the other hand, to
determine whether the powers possessed have been validly
exercised. In performing the latter function, they do not encroach
upon the powers of a coordinate branch of the, government, since
the determination of the validity of an act is not the same, thing as
the performance of the act. In the one case we are seeking to
ascertain upon whom devolves the duty of the particular service. In
the other case we are merely seeking to determine whether the
Constitution has been violated by anything done or attented by
either an executive official or the legislative." (Judicial Self-Limitation
by Finkelstein, pp. 221, 224, 244, Harvard Law Review, Vol. 39;
emphasis supplied,).
The case of Suanes vs. Chief Accountant (supra) cited by respondent
refutes their own pretense. This Court exercised its jurisdiction over
said case and decided the same on the merits thereof, despite the
fact that it involved an inquiry into the powers of the Senate and its
President over the Senate Electoral Tribunal and the personnel
thereof. .
Again, under the Constitution, "the legislative power" is vested
exclusively in the Congress of the Philippines. Yet, this does not
detract from the power of the courts to pass upon the
constitutionality of acts of Congress 1 And, since judicial power
includes the authority to inquire into the legality of statutes enacted
by the two Houses of Congress, and approved by the Executive,
there can be no reason why the validity of an act of one of said
Houses, like that of any other branch of the Government, may not
be determined in the proper actions. Thus, in the exercise of the so-
called "judicial supremacy", this Court declared that a resolution of
the defunct National Assembly could not bar the exercise of the
powers of the former Electoral Commission under the original
Constitution. 2 (Angara vs. Electoral Commission, supra), and
annulled certain acts of the Executive 3 as incompatible with the
fundamental law.
In fact, whenever the conflicting claims of the parties to a litigation
cannot properly be settled without inquiring into the validity of an
act of Congress or of either House thereof, the courts have, not only
jurisdiction to pass upon said issue, but, also, the duty to do so,
which cannot be evaded without violating the fundamental law and
paving the way to its eventual destruction. 4.
Neither are the cases of Mabanag vs. Lopez Vito (78 Phil., 1) and
Cabili vs. Francisco (88 Phil., 654), likewise, invoked by respondents,
in point. In the Mabanag case, it was held that the courts could not
review the finding of the Senate to the effect that the members
thereof who had been suspended by said House should not be
considered in determining whether the votes cast therein, in favor of
a resolution proposing an amendment to the Constitution, sufficed
to satisfy the requirements of the latter, such question being a
political one. The weight of this decision, as a precedent, has been
weakened, however, by our resolutions in Avelino vs. Cuenco (83
Phil., 17), in which this Court proceeded to determine the number
essential to constitute a quorum in the Senate. Besides, the case at
bar does not hinge on the number of votes needed for a particular
act of said body. The issue before us is whether the Senate-after
acknowledging that the Citizens Party is the party, having the second
largest number of votes in the Senate, to which party the
Constitution gives the right to nominate three (3) Senators for the
Senate electoral Tribunal-could validly choose therefor two (2)
Nacionalista Senators, upon nomination by the floor leader of the
Nacionalista Party in the Senate, Senator Primicias claiming to act on
behalf of the Committee on Rules for the Senate.
The issue in the Cabili case was whether we could review a
resolution of the Senate reorganizing its representation in the
Commission on Appointments. This was decided in the negative,
upon the authority of Alejandrino vs. Quezon (supra) and Vera vs.
Avelino (supra), the main purpose of the petition being "to force
upon the Senate the reinstatement of Senator Magalona in the
Commission on Appointments," one-half (1/2) of the members of
which is to be elected by each House on the basis of proportional
representation of the political parties therein. Hence, the issue
depended mainly on the determination of the political alignment of
the members of the Senate at the time of said reorganization and of
the necessity or advisability of effecting said reorganization, which is
a political question. We are not called upon, in the case at bar, to
pass upon an identical or similar question, it being conceded,
impliedly, but clearly, that the Citizens Party is the party with the
second largest number of votes in the Senate. The issue, therefore,
is whether a right vested by the Constitution in the Citizens Party
may validly be exercised, either by the Nacionalista Party, or by the
Committee on Rules for the Senate, over the objection of said
Citizens Party.
xxx xxx xxx
The only ground upon which respondents' objection to the
jurisdiction of this Court and their theory to the effect that the
proper remedy for petitioners herein is, not the present action, but
an appeal to public opinion, could possibly be entertained is,
therefore, whether the case at bar raises merely a political question,
not one justiciable in nature.
In this connection, respondents assert in their answer that "the
remedy of petitioners is not in the judicial forum, but, to use
petitioner, Tañada's own words, to bring the matter to the bar of
public opinion' (p. 81, Discussion on the Creation of the Senate
Electoral Tribunal, February 21, 1956)." This allegation may give the
impression that said petitioner had declared, on the floor of the
Senate, that his only relief against the acts complained of in the
petition is to take up the issue before the people- which is not a fact.
During the discussions in the Senate, in the course of the
organization of the Senate Electoral Tribunal, on February 21, 1956,
Senator Tañada was asked what remedies he would suggest if he
nominated two (2) Nacionialista Senators and the latter declined
the, nomination. Senator Tañada replied:.
"There are two remedies that occur to my mind right now, Mr.
Senator; one is the remedy open to all of us that if we feel aggrieved
and there is no recourse in the court of justice, we can appeal to
public opinion. Another remedy is an action in the Supreme Court.
Of course, as Senator Rodriguez, our President here, has said one
day; "If you take this matter to the Supreme Court, you will lose,
because until now the Supreme Court has always ruled against any
action that would constitute interference in the business of anybody
pertaining to the Senate. The theory of separation of powers will be
upheld by the Supreme Court." But that learned opinion of Senator
Rodriguez, our President, notwithstanding, I may take the case to
the Supreme Court if my right herein is not respected. I may lose,
Mr. President, but who has not lost in the Supreme Court? I may
lose because of the theory of the separation of powers, but that
does not mean, Mr. President, that what has been done here is
pursuant to the provision of the Constitution." (Congressional
Record, Vol. III, p. 339; emphasis supplied.).
This statement did not refer to the nomination, by Senator Primicias,
and the election, by the Senate, of Senators Cuenco and Delgado as
members of said Tribunal. Indeed, said nomination and election took
place the day after the aforementioned statement of Senator
Tañada was made. At any rate, the latter announced that he might
"take the case to the Supreme Court if my right here is not
respected.".
264
As already adverted to, the objection to our jurisdiction hinges on
the question whether the issue before us is political or not. In this
connection, Willoughby lucidly states:.
"Elsewhere in this treatise the well-known and well-established
principle is considered that it is not within the province of the courts
to pass judgment upon the policy of legislative or executive action.
Where, therefore, discretionary powers are granted by the
Constitution or by statute, the manner in which those powers are
exercised is not subject to judicial review. The courts, therefore,
concern themselves only with the question as to the existence and
extent of these discretionary powers.
"As distinguished from the judicial, the legislative and executive
departments are spoken of as the political departments of
government because in very many cases their action is necessarily
dictated by considerations of public or political policy. These
considerations of public or political policy of course will not permit
the legislature to violate constitutional provisions, or the executive
to exercise authority not granted him by the Constitution or by,
statute, but, within these limits, they do permit the departments,
separately or together, to recognize that a certain set of facts exists
or that a given status exists, and these determinations, together
with the consequences that flow therefrom, may not be traversed in
the courts." (Willoughby on the Constitution of the United States,
Vol. 3, p. 1326; emphasis supplied.).
To the same effect is the language used in Corpus Juris Secundum,
from which we quote:.
"It is well-settled doctrine that political questions are not within the
province of the judiciary, except to the extent that power to deal
with such questions has been conferred upon the courts by express
constitutional or statutory provisions.
"It is not easy, however, to define the phrase `political question', nor
to determine what matters, fall within its scope. It is frequently used
to designate all questions that lie outside the scope of the judicial
questions, which under the constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or
executive branch of the government." (16 C.J.S., 413; see, also
Geauga Lake Improvement Ass'n. vs. Lozier, 182 N. E. 491, 125 Ohio
St. 565; Sevilla vs, Elizalde, 112 F. 2d 29, 72 App. D. C., 108; emphasis
supplied.).
Thus, it has been repeatedly held that the question whether certain
amendments to the Constitution are invalid for non-compliance with
the procedure therein prescribed, is not a political one and may be
settled by the Courts. 5 .
In the case of In re McConaughy (119 N.W. 408), the nature of
political question was considered carefully. The Court said:.
"At the threshold of the case we are met with the assertion that the
questions involved are political, and not judicial. If this is correct, the
court has no jurisdiction as the certificate of the state canvassing
board would then be final, regardless of the actual vote upon the
amendment. The question thus raised is a fundamental one; but it
has been so often decided contrary to the view contended for by the
Attorney General that it would seem to be finally settled.
xxx xxx x x x.
" .. What is generally meant, when it is, said that a question is
political, and not judicial, is that it is a matter which, is to be
exercised by the people in their primary political capacity, or that it
has been specifically delegated to some other department or
particular officer of the government, with discretionary power to
act. See State vs. Cunningham, 81 Wis. 497, 51 L. R. A. 561; In Re
Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L. R. A. 519; Green vs. Mills,
69 Fed. 852, 16, C. C. A. 516, 30 L. R. A. 90; Fletcher vs. Tuttle, 151 Ill.
41, 37 N. E. 683, 25 L. R. A. 143, 42 Am. St. Rep. 220. Thus the
Legislature may in its discretion determine whether it will pass a law
or submit a proposed constitutional amendment to the people. The
courts have no judicial control over such matters, not merely
because they involve political question, but because they are
matters which the people have by the Constitution delegated to the
Legislature. The Governor may exercise the powers delegated to
him, free from judicial control, so long as he observes the laws and
acts within the limits of the power conferred. His discretionary acts
cannot be controllable, not primarily because they are of a political
nature, but because the Constitution and laws have placed the
particular matter under his control. But every officer under a
constitutional government must act according to law and subject
him to the restraining and controlling power of the people, acting
through the courts, as well as through the executive or the
Legislature. One department is just as representative as the other,
and the judiciary is the department which is charged with the special
duty of determining the limitations which the law places upon all
official action. The recognition of this principle, unknown except in
Great Britain and America, is necessary, to the end that the
government may be one of laws and not men'-words which Webster
said were the greatest contained in any written constitutional
document." (pp. 411, 417; emphasis supplied.).
In short, the term "political question" connotes, in legal parlance,
what it means in ordinary parlance, namely, a question of policy. In
other words, in the language of Corpus Juris Secundum (supra), it
refers to "those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the
Legislature or executive branch of the Government." It is concerned
with issues dependent upon the wisdom, not legality, of a particular
measure.
Such is not the nature of the question for determination in the
present case. Here, we are called upon to decide whether the
election of Senators Cuenco and Delgado, by the Senate, as
members of the Senate Electoral Tribunal, upon nomination by
Senator Primicias-a member and spokesman of the party having the
largest number of votes in the Senate-on behalf of its Committee on
Rules, contravenes the constitutional mandate that said members of
the Senate Electoral Tribunal shall be chosen "upon nomination .. of
the party having the second largest number of votes" in the Senate,
and hence, is null and void. This is not a political question. The
Senate is not clothed with "full discretionary authority" in the choice
of members of the Senate Electoral Tribunal. The exercise of its
power thereon is subject to constitutional limitations which are
claimed to be mandatory in nature. It is clearly within the legitimate
prove of the judicial department to pass upon the validity the
proceedings in connection therewith.
".. whether an election of public officers has been in accordance
with law is for the judiciary. Moreover, where the legislative
department has by statute prescribed election procedure in a given
situation, the judiciary may determine whether a particular election
has been in conformity with such statute, and, particularly, whether
such statute has been applied in a way to deny or transgress on the
constitutional or statutory rights .." (16 C.J.S., 439; emphasis
supplied.).
It is, therefore, our opinion that we have, not only jurisdiction, but,
also, the duty, to consider and determine the principal issue raised
by the parties herein.
II. Is the election of Senators Cuenco and Delgado, by the Senate, as
members of the Electoral Tribunal, valid and lawful?.
Section 11 of Article VI of the Constitution, reads:.
"The Senate and the House of Representatives shall each have an
Electoral Tribunal which shall be the sole judge of all contests
relating to the election, returns, and qualifications of their respective
Members. Each Electoral Tribunal shall be composed of nine
Members, three of whom shall be Justices of the Supreme Court to
be designated by the Chief Justice, and the remaining six shall be
Members of the Senate or of the House of Representatives, as the
case may be, who shall be chosen by each House, three upon
265
nomination of the party having the largest number of votes and
three of the party having the second largest number of votes
therein. The Senior Justice in each Electoral Tribunal shall be its
Chairman." (Emphasis supplied.).
It appears that on February 22, 1956, as well as at present, the
Senate of the Philippines consists of twenty three (23) members of
the Nacionalista Party and one (1) member of the Citizens Party,
namely, Senator Tañada, who is, also, the president of said party. In
the session of the Senate held on February 21, 1956, Senator Sabido
moved that Senator Tañada, "the President of the Citizens Party, be
given the privilege to nominate .. three (3) members" of the Senate
Electoral Tribunal (Congressional Record for the Senate, Vol. III, pp.
328-329), referring to those who, according to the provision above-
quoted, should be nominated by "the party having the second
largest number of votes" in the Senate. Senator Tañada objected
formally to this motion upon the-ground: (a) that the right to
nominate said members of the Senate Electoral Tribunal belongs,
not to the Nacionalista Party of which Senator Sabido and the other
Senators are members-but to the Citizens Party, as the one having
the second largest number of votes in the Senate, so that, being
devoid of authority to nominate the aforementioned members of
said Tribunal, the Nacionalista Party cannot give it to the Citizens
Party, which, already, has such authority, pursuant to the
Constitution; and (b) that Senator Sabido's motion would compel
Senator Tañada to nominate three (3) Senators to said Tribunal,
although as representative of the minority party in the Senate he has
"the right to nominate one, two or three to the Electoral Tribunal,"
in his discretion. Senator Tañada further stated that he reserved the
right to determine how many he would nominate, after hearing the
reasons of Senator Sabido in support of his motion. After some
discussion, in which Senators Primicias, Cea, Lim, Sumulong, Zulueta,
and Rodrigo took part, the Senate adjourned until the next morning,
February 22, 1956 (Do., do, pp. 329, 330, 332-333, 336, 338, 339,
343).
Then, said issues were debated upon more extensively, with Senator
Sumulong, not only seconding the opposition of Senator Tañada,
but, also, maintaining that "Senator Tañada should nominate only
one" member of the Senate, namely, himself, he being the only
Senator who belongs to the minority party in said House (Do., do.,
pp. 360-364, 369). Thus, a new issue was raised - whether or not one
who does not belong to said party may be nominated by its
spokesman, Senator Tañada - on which Senators Paredes, Pelaez,
Rosales and Laurel, as well as the other Senators already mentioned,
expressed their views (Do., do., pp. 345, 349, 350, 354, 358, 364,
375). Although the deliberations of the Senate consumed the whole
morning and afternoon of February 22, 1956, a satisfactory solution
of the question before the Senate appeared to be remote. So, at
7:40 p.m., the meeting was suspended, on motion of Senator Laurel,
with a view to seeking a compromise formula (Do., do., pp. 377).
When session was resumed at 8:10 p.m., Senator Sabido withdrew
his motion above referred to. Thereupon, Senator Primicias, on
behalf of the Nacionalista Party, nominated, and the Senate elected,
Senators Laurel, Lopez and Primicias, as members of the Senate
Electoral Tribunal. Subsequently, Senator Tañada stated:.
"On behalf of the Citizens Party, the minority party in this Body, I
nominate the only Citizens Party member in this Body, and that is
Senator Lorenzo M. Tañada.".
Without an objection, this nomination was approved by the House.
Then, Senator Primicias stood up and said:.
"Now, Mr. President, in order to comply with the provision in the
Constitution, the Committee on Rules of the Senate-and I am now
making this proposal not on behalf of the Nacionalista Party but on
behalf of the Committee on Rules of the Senate-I nominate two
other members to complete the membership of the Tribunal:
Senators Delgado and Cuenco.".
What took place thereafter appears in the following quotations from
the Congressional Record for the Senate.
"SENATOR TAÑADA. Mr. President.
"EL PRESIDENTE INTERINO. Caballero de Quezon.
"SENATOR TAÑADA. I would like to record my opposition to the
nominations of the last two named gentlemen, Senators Delgado
and Cuenco, not because I don't believe that they do not deserve to
be appointed to the tribunal but because of my sincere and firm
conviction that these additional nominations are not sanctioned by
the Constitution. The Constitution only permits the Nacionalista
Party or the party having the largest number of votes to nominate
three.
"SENATOR SUMULONG. Mr. President.
"EL PRESIDENTE INTERINO. Caballero de Rizal.
"SENATOR SUMULONG. For the reasons that I have stated a few
moments ago when I took the floor, I also wish to record my
objection to the last nominations, to the nomination of two
additional NP's to the Electoral Tribunal.
"EL PRESIDENTE INTERINO. Esta dispuesto el Senado a votar? (Varios
Senadores: Si.) Los que esten conformes con la nominacion hecha
por el Presidente del Comite de Reglamentos a favor de los
Senadores Delgado y Cuenco para ser miembros del Tribunal
Electoral, digan, si. (Varios Senadores: Si.) Los que no lo esten digan,
no (Silencio.) Queda aprobada." (Congressional Record for the
Senate, Vol. III, p. 377; emphasis supplied.).
Petitioners maintain that said nomination and election of Senators
Cuenco and Delgado-who belong to the Nacionalista Party-as
members of the Senate Electoral Tribunal, are null and void and
have been made without power or color of authority, for, after the
nomination by said party, and the election by the Senate, of
Senators Laurel, Lopez and Primicias, as members of said Tribunal,
the other Senators, who shall be members thereof, must necessarily
be nominated by the party having the second largest number of
votes in the Senate, and such party is, admittedly, the Citizens Party,
to which Senator Tañada belongs and which he represents.
Respondents allege, however, that the constitutional mandate to
the effect that "each Electoral Tribunal shall be compose of nine (9)
members," six (6) of whom "shall be members of the Senate or of
the House of Representatives, as the case may be", is mandatory;
that when-after the nomination of three (3) Senators by the majority
party, and their election by the Senate, as members of the Senate
Electoral Tribunal-Senator Tañada nominated himself only, on behalf
of the minority party, he thereby "waived his right to no two more
Senators;" that, when Senator Primicias nominated Senators Cuenco
and Delgado, and these respondents were chosen by the Senate, as
members of the Senate Electoral Tribunal, Said Senator Primicias
and the Senate merely complied with the aforementioned provision
of the fundamental law, relative to the number of members of the
Senate Electoral Tribunal; and, that, accordingly, Senators Cuenco
and Delgado are de jure members of said body, and the
appointment of their co-respondents, Alfredo Cruz, Catalina
Cayetano, Manuel Serapio and Placido Reyes is valid and lawful.
At the outset, it will be recalled that the proceedings the
organization of the Senate Electoral Tribunal began with a motion of
Senator Sabido to the effect that "the distinguished gentleman from
Quezon, the President of the Citizens Party, be given the privilege to
nominate the three Members" of said Tribunal. Senator Primicias
inquired why the movant had used the word "privilege". Senator
Sabido explained that the present composition of the Senate had
created a condition or situation which was not anticipated by the
framers of our Constitution; that although Senator Tañada formed
part of the Nacionalista Party before the end of 1955, he
subsequently parted ways with" said party; and that Senator Tañada
"is the distinguished president of the Citizens Party," which
"approximates the situation desired by the framers of the
Constitution" (Congressional Record for the Senate Vol. III, pp. 329-
330). Then Senator Lim intervened, stating:.
266
"At present Senator Tañada is considered as forming the only
minority or the one that has the second largest number of votes in
the existing Senate, is not that right? And if this is so, he should be
given this as a matter of right, not as a matter of privilege. .. I don't
believe that we should be allowed to grant this authority to Senator
Tañada only as a privilege but we must grant it as a matter of right."
(Id., id., p. 32; emphasis supplied.).
Similarly, Senator Sumulong maintained that "Senator Tañada, as
Citizens Party Senator, has the right and not a mere privilege to
nominate," adding that:.
".. the question is whether we have a party here having the second
largest number of votes, and it is clear in my mind that there is such
a party, and that is the Citizens Party to which the gentleman from
Quezon belongs. .. We have to bear in mind, .. that when Senator
Tañada was included in the Nacionalista Party ticket in 1953, it was
by virtue of a coalition or an alliance between the Citizens Party and
the Nacionalista Party at that time, and I maintain that when
Senator Tañada as head of the Citizens Party entered into a coalition
with the Nacionalista Party, he did not thereby become a
Nacionalista because that was a mere coalition, not a fusion. When
the Citizens Party entered into a mere coalition, that party did not
lose its personality as a party separate and distinct from the,
Nacionalista Party. And we should also remember that the certificate
of candidacy filed by Senator Tañada in the 1953 election was one to
the effect that he belonged to the Citizens Party .." (Id., id., p. 360;
emphasis supplied.).
The debate was closed by Senator Laurel, who remarked, referring
to Senator Tañada:.
"..there is no doubt that he does not belong to the majority in the
first place, and that, therefore, he belongs to the minority. And
whether we like it or not, that is the reality of the actual situation-
that he is not a Nacionalista now, that he is the head and the
representative of the Citizens Party. I think that on equitable ground
and from the point of view of public opinion, his situation ..
approximates or approaches what is within the spirit of that
Constitution. .. and from the point of view of the spirit of the
Constitution it would be a good thing if we grant the opportunity to
Senator Tañada to help us in the organization of this Electoral
Tribunal (Id., id., p. 376; emphasis supplied.).
The foregoing statements and the fact that, thereafter, Senator
Sabido withdrew his motion to grant Senator Tañada the "privilege"
to nominate, and said petitioner actually nominated himself "on
behalf of the Citizens Party, the minority party in this Body"-not only
without any, objection whatsoever, but, also, with the approval of
the Senate-leave no room for doubt that the Senate-leave no room
for doubt that the Senate has regarded the Citizens Party,
represented by Senator Tañada, as the party having the second
largest number of votes in said House.
Referring, now, to the contention of respondents herein, their main
argument in support of the mandatory character of the
constitutional provision relative to the number of members of the
Senate Electoral Tribunal is that the word "shall", therein used, is
imperative in nature and that this is borne out by an opinion of the
Secretary of Justice dated February 1, 1939, pertinent parts of which
are quoted at the footnote. 6.
Regardless of the respect due its author, as a distinguished citizen
and public official, said opinion has little, if any, weight in the
solution of the question before this Court, for the practical
construction of a Constitution is of little, if any, unless it has been
uniform .." 6a Again, "as a general rule, it is only in cases of
substantial doubt and ambiguity that the doctrine of
contemporaneous or practical construction has any application". As
a consequence, "where the meaning of a constitutional provision is
clear, a contemporaneous or practical executive interpretation
thereof is entitled to no weight, and will not be allowed to distort or
in any way change its natural meaning." The reason is that "the
application of the doctrine of contemporaneous construction is
more restricted as applied to the interpretation of constitutional
provisions than when applied to statutory provisions", and that,
"except as to matters committed by the Constitution, itself to the
discretion of some other department, contemporary or practical
construction is not necessarily binding upon the courts, even in a
doubtful case." Hence, "if in the judgment of the court, such
construction is erroneous and its further application is not made
imperative by any paramount considerations of public policy, it may
he rejected." (16 C. J. S., 71-72; emphasis supplied.) 6b.
The aforemention opinion of the Secretary of Justice is not backed
up by a, "uniform" application of the view therein adopted, so
essential to give thereto the weight accorded by the rules on
contemporaneous constructions. Moreover, said opinion tends to
change the natural meaning of section 11 of Article VI of the
Constitution, which is clear. What is more, there is not the slightest
doubt in our mind that the purpose and spirit of said provisions do
not warrant said change and that the rejection of the latter is
demanded by paramount considerations of public policy. .
The flaw in the position taken in said opinion and by respondent
herein is that, while, it relies upon the compulsory nature of the
word "shall", as regards the number of members of the Electoral
Tribunals, it ignores the fact that the same term is used with respect
to the method prescribed for their election, and that both form part
of a single sentence and must be considered, therefore, as integral
portions of one and the same thought. Indeed, respondents have
not even tried to show and we cannot conceive-why "shall" must be
deemed mandatory insofar as the number of members of each
Electoral Tribunal, and should be considered directory as regards the
procedure for their selection. More important still, the history of
section 11 of Article VI of the Constitution and the records of the
Convention, refute respondents' pretense, and back up the theory of
petitioners herein.
Commenting on the frame of mind of the delegates to the
Constitutional Convention, when they faced the task of providing for
the adjudication of contests relating to the election, returns and
qualifications of members of the Legislative Department, Dr. Jose M.
Aruego, a member of said Convention, says:.
"The experience of the Filipino people under the provisions of the
organic laws which left to the lawmaking body the determination of
the elections, returns, and qualifications of its members was not
altogether satisfactory. There were many complaints against the lack
of political justice in this determination; for in a great number of
cases, party interests controlled and dictated the decisions. The
undue delay in the dispatch of election contests for legislative seats,
the irregularities that characterized the proceedings in some of
them, and the very apparent injection of partisanship in the
determination of a great number of the cases were decried by a
great number of the people as well as by the organs of public
opinion.
"The faith of the people in the uprightness of the lawmaking body in
the performance of this function assigned to it in the organic laws
was by no means great. In fact so blatant was the lack of political
justice in the decisions that there was, gradually built up a camp of
thought in the Philippines inclined to leave to the courts the
determination of election contests, following the practice in some
countries, like England and Canada.
"Such were the conditions of things at the time of the meeting of the
convention." (The Framing of the Philippine Constitution by Aruego,
Vol. 1, pp. 257-258; emphasis supplied.).
This view is shared by distinguished members of the Senate. Thus, in
its session of February 22, 1956, Senator Sumulong declared:.
".. when you leave it to either House to decide election protests
involving its own members, that is virtually placing the majority
party in a position to dictate the decision in those election cases,
because each House will be composed of a majority and a minority,
and when you make each House the judge of every election protest
involving any member of that House, you place the majority in a
267
position to dominate and dictate the decision in the case and result
was, there were so many abuses, there were so main injustices:
committed by the majority at the expense and to the prejudice of
the minority protestants. Statements have been made here that
justice was done even under the old system, like that case involving
Senator Mabanag, when he almost became a victim of the majority
when he had an election case, and it was only through the
intervention of President Quezon that he was saved from becoming
the victim of majority injustices.
"It is true that justice had sometimes prevailed under the old
system, but the record will show that those cases were few and they
were the rare exceptions. The overwhelming majority of election
protests decided under the old system was that the majority being
then in a position to dictate the, decision in the election protest, was
tempted to commit as it did commit many abuses and injustices."
(Congressional Record for the Senate, Vol. 111, p. 361; emphasis
supplied.).
Senator Paredes, a veteran legislator and former Speaker of the
House of Representatives, said:.
".. what was intended in the creation of the electoral tribunal was to
create a sort of collegiate court composed of nine members: Three
of them belonging to the party having the largest number of votes,
and three from the party having the second largest number votes so
that these members may represent the party, and the members of
said party who will sit before the electoral tribunal as protestees. For
when it comes to a party, Mr. President, there ground to believe
that decisions will be made along party lines." (Congressional Record
for the Senate, Vol. III, p. 351; emphasis supplied.).
Senator Laurel, who played an important role in the framing of our
Constitution, expressed himself as follows:.
"Now, with reference to the protests or contests, relating to the
election, the returns and the qualifications of the members of the
legislative bodies, I heard it said here correctly that there was a time
when that was given to the corresponding chamber of the legislative
department. So the election, returns and qualifications of the
members, of the Congress or legislative body was entrusted to that
body itself as the exclusive body to determine the election, returns
and qualifications of its members. There was some doubt also
expressed as to whether that should continue or not, and the
greatest argument in favor of the retention of that provision was the
fact that was, among other things, the system obtaining in the
United States under the Federal Constitution of the United States,
and there was no reason why that power or that right vested in the
legislative body should not be retained. But it was thought that
would make the determination of this contest, of this election
protest, purely political as has been observed in the past."
(Congressional Record for the Senate, Vol. III, p. 376; emphasis
supplied.).
It is interesting to note that not one of the members of the Senate
contested the accuracy of the views thus expressed.
Referring particularly to the philosophy underlying the constitutional
provision quoted above, Dr. Aruego states:.
"The defense of the Electoral Commission was based primarily upon
the hope and belief that the abolition of Party line because of the
equal representation in this body of the majority and the minority
parties of the National Assembly and the intervention of some
members of the Supreme Court who, under the proposed
constitutional provision, would also be members of the same, would
insure greater political justice in the determination of election
contests for seats in the National Assembly than there would be if
the power had been lodged in the lawmaking body itself. Delegate
Francisco summarized the arguments for the creation of the
Electoral Commission in the following words:.
"I understand that from the time that this question is placed in the
hands of members not only of the majority party but also of the
minority party, there is already a condition, a factor which would
make protests decided in a non-partisan manner. We know from
experience that many times in the many protests tried in the House
or in the Senate, it was impossible to prevent the factor of party
from getting in. From the moment that it is required that not only
the majority but also the minority should intervene in these
questions, we have already enough guarantee that there would be
no tyranny on the part of the majority.
`But there is another more detail which is the one which satisfies me
most, and that is the intervention of three justices. So that with this
intervention of three justices if there would be any question as to
the justice applied by the majority or the minority, if there would be
any fundamental disagreement, or if there would be nothing but
questions purely of party in which the members of the majority as
well as those of the minority should wish to take lightly a protest
because the protestant belongs to one of said parties, we have in
this case, as a check upon the two parties, the actuations of the
three justices. In the last analysis, what is really applied in the
determination of electoral cases brought before the tribunals of
justice or before the House of Representatives or the Senate? Well,
it is nothing more than the law and the doctrine of the Supreme
Court. If that is the case, there will be greater skill in the application
of the laws and in the application of doctrines to electoral matters
having as we shall have three justices who will act impartially in
these electoral questions.
`I wish to call the attention of my distinguished colleagues to the fact
that in electoral protests it is impossible to set aside party interests.
Hence, the best guarantee, I repeat, for the administration of justice
to the parties, for the fact that the laws will not be applied rightfully
or incorrectly as well as for the fact that the doctrines of the
Supreme Court will be applied rightfully, the best guarantee which
we shall have, I repeat, is the intervention of the three justices. And
with the formation of the Electoral Commission, I say again, the
protestants as well as the protestees could remain tranquil in the
certainty that they will receive the justice that they really deserve. If
we eliminate from this precept the intervention of the party of the
minority and that of the three justices, then we shall be placing
protests exclusively in the hands of the party in power. And I
understand, gentlemen, that in practice that has not given good
results. Many have criticized, many have complained against, the
tyranny of the majority in electoral cases .. I repeat that the best
guarantee the fact that these questions will be judged not only by
three members of the majority but also by three members of the
minority, with the additional guarantee of the impartial judgment of
three justices of the Supreme Court." (The Framing of the Philippine
Constitution by Aruego, Vol. I, pp. 261-263; emphasis supplied.).
The foregoing was corroborated by Senator Laurel. Speaking for this
Court, in Angara vs. Electoral Commission (63 Phil., 139), he
asserted:.
"The members of the Constitutional Convention who framed our
fundamental law were in their majority-men mature in years and
experience. To be sure, many of them were familiar with the history
and political development of other countries of the world. When,
therefore they deemed it wise to create an Electoral Commission as
a constitutional organ and invested with the exclusive function of
passing upon and determining the election, returns and
qualifications of the members of the National Assembly, they must
have done so not only in the light of their own experience but also
having in view the experience of other enlightened peoples of the
world. The creation of the Electoral Commission was designed to
remedy certain evils of which the framers of our Constitution were
cognizant. Notwithstanding the vigorous opposition of some
members of the Convention to its creation, the plan, as hereinabove
stated, was approved by that body by a vote of 98 against 58. All
that can be said now is that, upon the approval of the Constitution,
the creation of the Electoral Commission is the expression of the
wisdom `ultimate justice of the people'. (Abraham Lincoln, First
Inaugural Address, March 4, 1861.).
"From the deliberations of our Constitutional Convention it is
evident that the purpose was to transfer in its totality all the powers
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previously exercised by the legislature in matters pertaining to
contested elections of its members, to an independent and impartial
tribunal. It was not so much the knowledge and appreciation of
contemporary constitutional precedents, however, as the long felt
need of determining legislative contests devoid of partisan
considerations which prompted the people acting through their
delegates to the Convention, to provide for this body known as the
Electoral Commission. With this end in view, a composite body in
which both the majority and minority parties are equally
represented to off-set partisan influence in its deliberations was
created, and further endowed with judicial temper by including in its
membership three justices of the Supreme Court," (Pp. 174-175.) 7.
As a matter of fact, during the deliberations of the convention,
Delegates Conejero and Roxas said:.
"El Sr. CONEJERO. Antes de votarse la enmienda, quisiera pedir
informacion del Subcomite de Siete.
"El Sr. PRESIDENTE. Que dice el Comite?" El Sr. ROXAS. Con mucho
gusto. "El Sr. CONEJERO. Tal como esta el draft., dando tres
miembrosala mayoria, y otros t?-es a la minyoryia y atros a la Corte
Suprerma, no cree su Senoria que este equivale pricticamente a
dejar el asunto a los miembros del Tribunal Supremo?.
"El Sr. ROXAS. Si y no. Creemos que si el tribunal a la Comision esta
cotistuido en esa forma, tanto los miembros de la mayoria como los
de la minoria asi como los miembros de la Corte Saprema
consideration la cuestion sobre la base de sus meritos, sabiendo que
el partidismo no es suficiente para dar el triunbo.
"El Sr. CONEJERO. Cree Su Senoria que en un caso como ese,
podriamos hacer que tanto los de la mayoria como los de la minoria
prescindieran del partidisrno?.
"El Sr. ROXAS. Creo que si, porque el partidismo no les daria el
triunfo." (Angara vs. Electoral Commission, supra, pp. 168-169;
emphasis supplied.).
It is clear from the foregoing that the main objective of the framers
of our Constitution in providing for the establishment, first, of an
Electoral Commission, 8 and then 9 of one Electoral Tribunal for
each House of Congress, was to insure the exercise of judicial
impartiality in the disposition of election contests affecting members
of the lawmaking body. To achieve this purpose, two devices were
resorted to, namely: (a) the party having the largest number of
votes, and the party having the second largest number of votes, in
the National Assembly or in each House of Congress, were given the
same number of representatives in the Electoral Commission or
Tribunal, so that they may realize that partisan considerations could
not control the adjudication of said cases, and thus be induced to act
with greater impartiality; and (b) the Supreme Court was given in
said body the same number of representatives as each one of said
political parties, so that the influence of the former may be decisive
and endow said Commission or Tribunal with judicial temper.
This is obvious from the very language of the constitutional provision
under consideration. In fact, Senator Sabido-who had moved to
grant to Senator Tañada the privilege" to make the nominations on
behalf of party having the second largest number of votes in the
Senate-agrees with it. As Senator Sumulong inquired:.
"..I suppose Your Honor will agree with me that the framers of the
Constitution precisely thought of creating this Electoral Tribunal so
as to prevent the majority from ever having a preponderant majority
in the Tribunal." (Congressional Record for the Senate, Vol. III, p.
330; emphasis supplied.).
Senator Sabido replied:.
"That is so, .." (Id., p. 330.).
Upon further interpretation, Senator Sabido said:.
".. the purpose of the creation of the Electoral Tribunal and of its
composition is to maintain a balance between the two parties and
make the members of the Supreme Court the controlling power so
to speak of the Electoral Tribunal or hold the balance of power. That
is the ideal situation." (Congressional Record for the Senate, Vol. III,
p. 349; emphasis supplied.).
Senator Sumulong opined along the same line. His words were: .
"..The intention is that when the three from the majority and the
three from the minority become members of the Tribunal it is hoped
that they will become aware of their judicial functions, not to
protect the protestants or the protegees. It is hoped that they will
act as judges because to decide election cases is a judicial function.
But the framers of, the Constitution besides being learned were men
of experience. They knew that even Senators like us are not angels,
that we are human beings, that if we should be chosen to go to the
Electoral Tribunal no one can say that we will entirely be free from
partisan influence to favor our party, so that in, case that hope that
the three from the majority and the three from the minority who
will act as Judges should result in disappointment, in case they do
not act as judges but they go there and vote along party liner, still
there is the guarantee that they will offset each other and the result
will be that the deciding vote will reside in the hands of the three
Justices who have no partisan motives to favor either the protestees
or the protestants. In other words, the whole idea is to prevent the
majority from controlling and dictating the decisions of the Tribunal
and to make sure that the decisive vote will be wielded by the
Congressmen or Senators who are members the Tribunal but will be
wielded by the Justices who, by virtue of their judicial offices, will
have no partisan motives to serve, either protestants, or protestees.
That is my understanding of the intention of the framers of the
Constitution when they decided to create the Electoral Tribunal.
xxx xxx x x x.
"My idea is that the intention of the framers of the constitution in
creating the Electoral Tribunal is to insure impartially and
independence in its decision, and that is sought to be done by never
allowing the majority party to control the Tribunal, and secondly by
seeing to it that the decisive vote in the Tribunal will be left in the
hands of persons who have no partisan interest or motive to favor
either protestant or protestee." (Congressional Record for the
Senate, Vol. III, pp. 362-363, 365-366; emphasis supplied.).
So important in the "balance of powers" between the two political
parties in the Electoral Tribunals, that several members of the
Senate questioned the right of the party having the second largest
number of votes in the Senate and, hence, of Senator Tañada, as
representative of the Citizens Party-to nominate for the Senate
Electoral Tribunal any Senator not belonging to said party. Senators
Lim, Sabido, Cea and Paredes maintained that the spirit of the
Constitution would be violated if the nominees to the Electoral
Tribunals did not belong to the parties respectively making the
nominations. 10.
It is not necessary, for the purpose of this decision, to determine
whether the parties having the largest, and the second largest,
number of votes in each House may nominate, to the Electoral
Tribunals, those members of Congress who do not belong to the
party nominating them. It is patent, however, that the most vital
feature of the Electoral Tribunals is the equal representation of said
parties therein, and the resulting equilibrium to be maintained by
the Justices of the Supreme Court as members of said Tribunals. In
the words of the members of the present Senate, said feature
reflects the "intent" "purpose", and "spirit of the Constitution",
pursuant to which the Senate Electoral Tribunal should be organized
(Congressional Record for the Senate, pp. 330, 337, 348-9, 350, 351,
355, 358, 362-3, 364, 370, 376).
Now then, it is well settled that "the purpose of all rules or maxims
as to the construction or interpretation of statutes is to discover the
true intention of the law" (82 C. J. S., 526) and that.
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"As a general rule of statutory construction, the spirit or intention of
a statute prevails over the letter thereof, and whatever is within the
spirit of statute is within the statute although it is not within the
letter, while that which is within the letter, but not within the spirit
of a statute, is not within the statute; but, where the law is free and
clear from ambiguity, the letter of it is not to be disregarded on the
pretext of pursuing its spirit." (82 C. J. S., 613.).
"There is no universal rule or absolute test by which directory
provisions in a statute may in all circumstances be distinguished
from those which are mandatory. However, in the determination of
this question, as of every other question of statutory construction,
the prime object is to ascertain the legislative intent. The legislative
intent must be obtained front all the surrounding circumstances,
and the determination does not depend on the form of the statute.
Consideration must be given to the entire statute, its nature, its
object, and the consequences which would result from construing it
one way or the other, and the statute must be construed in
connection with other related statutes. Words of permissive
character may be given a mandatory significance in order to effect
the legislative intent, and, when the terms of a statute are such that
they cannot be made effective to the extent of giving each and all of
them some reasonable operation, without construing the statute as
mandatory, such construction should be given; .. On the other hand,
the language of a statute, however mandatory in form, may be
deemed directory whenever legislative purpose can best be carried
out by such construction, and the legislative intent does not require
a mandatory construction; but the construction of mandatory words
as directory should not be lightly adopted and never where it would
in fact make a new law instead of that passed by the legislature. ..
Whether a statute is mandatory or directory depends on whether
the thing directed to be done is of the essence of the thing required,
or is a mere matter of form, and what is a matter of essence can
often be determined only by judicial construction. Accordingly, when
a particular provision of a statute relates to some immaterial matter,
as to which compliance with the statute is a matter of convenience
rather than substance, or where the directions of a statute are given
merely with a view to the proper, orderly, and prompt conduct of
business, it is generally regarded as directory, unless followed by
words of absolute prohibition; and a statute is regarded as directory
were no substantial rights depend on it, no injury can result from
ignoring it, and the purpose of the legislative can be accomplished in
a manner other than that prescribed, with substantially the same
result. On the other hand, a provision relating to the essence of the
thing to be done, that is, to matters of substance, is mandatory, and
when a fair interpretation of a statute, which directs acts or
proceedings to be done in a certain way shows that the legislature
intended a compliance with such provision to be essential to the
validity of the act or proceeding, or when same antecedent and pre-
requisite conditions must exist prior to the exercise of power, or
must be performed before certain other powers can be exercise, the
statute must be regarded as mandatory. (Id., pp. 869-874.) (See also,
Words and Phrases, Vol. 26, pp. 463-467; emphasis supplied.).
What has been said above, relative to the conditions antecedent to,
and concomitant with, the adoption of section 11 of Article VI of the
Constitution, reveals clearly that its framers intended to prevent the
majority party from controlling the Electoral Tribunals, and that the
structure thereof is founded upon the equilibrium between the
majority and the minority parties therein, with the Justices of the
Supreme Court, who are members of said Tribunals, holding the
resulting balance of power. The procedure prescribed in said
provision for the selection of members of the Electoral Tribunals is
vital to the role they are called upon to play. it constitutes the
essence of said Tribunals. Hence, compliance with said procedure is
mandatory, and acts performed in violation thereof are null and
void. 11.
It is true that the application of the foregoing criterion would limit
the membership of the Senate Electoral Tribunal, in the case at bar,
to seven (7), instead of nine (9), members; but, it is conceded that
the present composition of the Senate was not foreseen by the
framers of our Constitution (Congressional Record for the Senate,
Vol. III, pp. 329, 342, 349, 354, 359, 375). Furthermore, the spirit of
the law prevails over its letter, and the solution herein adopted
maintains the spirit of the Constitution, for partisan considerations
can not be decisive in a tribunal consisting of three (3) Justices of the
Supreme Court, three (3) members nominated by the majority party
and either one (1) or two (2) members nominated by the party
having the second largest number of votes in the House concerned.
Upon the other hand, what would be the result of respondents'
contention if upheld? Owing to the fact that the Citizens Party 12
has only one member in the Upper House, Senator Tañada felt he
should nominate, for the Senate Electoral Tribunal, only said
member of the Citizens Party. The same is, thus, numerically
handicapped, vis-a-vis the majority party, in said Tribunal. Obviously,
Senator Tañada did not nominate other two Senators, because,
otherwise, he would worsen the already disadvantageous position,
therein, of the Citizens Party. Indeed, by the aforementioned
nomination and election of Senators Cuenco and Delgado, if the
same were sanctioned, the Nacionalista Party would have five (5)
members in the Senate Electoral Tribunal, as against one (1)
member of the Citizens Party and three members of the Supreme
Court. With the absolute majority thereby attained by the majority
party in said Tribunal, the philosophy underlying the same would be
entirely upset. The equilibrium between the political parties therein
would be destroyed. What is worst, the decisive moderating role of
the Justices of the Supreme Court would be wiped out, and, in lieu
thereof, the door would be thrown wide open for the predominance
of political considerations in the determination of election protests
pending before said Tribunal, which is precisely what the fathers of
our Constitution earnestly strove to forestall. 13.
This does not imply that the honesty, integrity or impartiality of
Senators Cuenco and Delgado are being questioned. As a matter of
fact, when Senator Tañada objected to their nomination, he
explicitly made of record that his opposition was based, not upon
their character, but upon the principle involved. When the election
of members of Congress to the Electoral Tribunal is made dependent
upon the nomination of the political parties above referred to, the
Constitution thereby indicates its reliance upon the method of
selection thus established, regardless of the individual qualities of
those chosen therefor. Considering the wealth of experience of the
delegatesto the Convention, as lawyers of great note, as veteran
politicians and as leaders in other fields of endeavor, they could not,
and did not, ignore the fact that the Constitution must limit itself to
giving general patterns or norms of action. In connection,
particularly, with the composition of the Electoral Tribunals, they
believed that, even the most well meaning individuals often find it
difficult to shake off the bias and prejudice created by political
antagonisms and to resist the demands of political exigencies, the
pressure of which is bound to increase in proportion to the degree
of predominance of the party from which it comes. As above stated,
this was confirmed by distinguished members of the present Senate.
(See pp. 25-28, 33, 34, supra.).
In connection with the argument of the former Secretary of Justice
to the effect that when "there is no minority party represented in
the Assembly, the necessity for such a check by the minority
disappears", the following observations of the petitioners herein are
worthy of notice:.
" Under the interpretation espoused by the respondents, the very
frauds or terrorism committed by a party would establish the legal
basis for the final destruction of minority parties in the Congress at
least. Let us suppose, for example, that in the Senate, the 15 or 16
senators with unexpired terms belong to the party A. In the
senatorial elections to fill the remaining 8 seats, all the 8 candidates
of party A are proclaimed elected through alleged fraud and/or
terrorism. (The ouster of not less than 3 senators-elect in the
elections held since liberation attests to the reality of election frauds
and terrorism in our country.) There being no senator or only one
senator belonging to the minority, who would sit in judgment on the
election candidates of the minority parties? According to the
contention of the respondents, it would be a Senate Electoral
Tribunal made up of three Supreme Court Justices and 5 or 6
members of the same party A accused of fraud and terrorism. Most
respectfully, we pray this Honorable Court to reject an
interpretation that would make of a democratic constitution the
very instrument by which a corrupt and ruthless party could
270
entrench itself in power the legislature and thus destroy democracy
in the Philippines.
xxx xxx x x x.
".. When there are no electoral protests filed by the Minority party,
or when the only electoral protests filed are by candidates of the
majority against members-elect of the same majority party, there
might be no objection to the statement. But if electoral protests are
filed by candidates of the minority party, it is at this point that a
need for a check on the majority party is greatest, and contrary to
the observation made in the above-quoted opinion, such a cheek is a
function that cannot be successfully exercised by the 3 Justices of
the Supreme Court, for the obvious and simple reason that they
could easily be outvoted by the 6 members of the majority party in
the Tribunal.
xxx xxx x x x.
"In the case of the cited opinion of Secretary Abad Santos rendered
in 1939, it, did not appear that there were minority party candidates
who were adversely affected by the ruling of the Secretary of Justice
and who could have brought a test case to court." (Emphasis
supplied.).
The defenses of waiver and estoppel set up against petitioner
Tañada are untenable. Although "an individual may waive
constitutional provisions intended for his benefit", particularly those
meant for the protection of his property, and, sometimes, even
those tending "to secure his personal liberty", the power to waive
does not exist when "public policy or public morals" are involved.
(11 Am. Jur. 765; I Cooley's Constitutional Limitations, pp. 368-371).
The procedure outlined in the Constitution for the organization, of
the Electoral Tribunals was adopted in response to the demands of
the common weal, and it has been held that where a statute is
founded on public policy, those to whom it applies should not be
permitted to waive its provisions" (82 C. J. S., 874). Besides, there
can be no waiver without an intent to such effect, which Senator
Tañada did not have. Again, the alleged waiver or exhaustion of his
rights does not justify the exercise thereof by a person or party,
other than that to which it is vested exclusively by the Constitution.
The rule estoppel is that "whenever a party has, by his declaration,
act or omissions, intentionally and deliberately led another to
believe a particular thing true, and to act upon such belief, he
cannot, in a litigation arising out of such declaration, act or omission,
be permitted to falsify it" (Rule 69, sec. 68 [a], Rules of Court). In the
case at bar, petitioner Senator Tañada did not lead the Senate to
believe that Senator Primicias could nominate Senators Cuenco and
Delgado. On the contrary, said petitioner repeatedly asserted that
his was the exclusive right to make the nomination. He, likewise,
specifically contested said nomination of Senators Cuenco and
Delgado. Again, the rule on estoppel applies to questions of fact, not
of law, about the truth of which the other party is ignorant (see
Moran's Comments on the Rules of Court, Vol. 3, pp. 490, 495). Such
is not the nature of the situation that confronted Senator Tañada
and the other members of the Senate. Lastly, the case of Zandueta
vs. De la Costa (66 Phil., 615), cited by respondents, is not in point.
Judge Zandueta assumed office by virtue of an appointment, the
legality of which he later on assailed. In the case at bar, the
nomination and election of Senator Tañada as member of the
Senate Electoral Tribunal was separate, distinct and independent
from the nomination and election of Senators Cuenco and Delgado.
In view of the foregoing, we hold that the Senate may not elect, as
members of the Senate Electoral Tribunal, those Senators who have
not been nominated by the political parties specified in the
Constitution; that the party having the largest number of votes in
the Senate may nominate not more than three (3) members thereof
to said Electoral Tribunal; that the party having the second largest
number of votes in the Senate has the exclusive right to nominate
the other three (3) Senators who shall sit as members in the
Electoral Tribunal; that neither these three (3) Senators, nor any of
them, may be nominated by a person or party other than the one
having the second largest number of votes in the Senate or its
representative therein; that the Committee on Rules for the Senate
has no standing to validly make such nomination and that the
nomination of Senators Cuenco and Delgado by Senator Primicias,
and the election of said respondents by the Senate, as members of
said Tribunal, are null and void ab initio.
As regards respondents Alfredo Cruz, Catalina Cayetano, Manuel
Serapio and Placido Reyes, we are not prepared to hold, however,
that their appointments were null and void. Although recommended
by Senators Cuenco and Delgado, who are not lawful members of
the Senate Electoral Tribunal, they were appointed by its Chairman,
presumably, with the consent of the majority of the de jure
members of said body 14 or, pursuant to the Rules thereof. At any
rate, as held in Suanes vs. Chief Accountant (supra), the election of
its personnel is an internal matter falling within the jurisdiction and
control of said body, and there is every reason to believe that it will,
hereafter take appropriate measures, in relation to the four (4)
respondents abovementioned, conformably with the spirit of the
Constitution and of, the decision in the case at bar.
Wherefore, judgment is hereby rendered declaring that,
respondents Senators Mariano Jesus Cuenco and Francisco A.
Delgado have not been duly elected as Members of the Senate
Electoral Tribunal, that they are not entitled to act as such and that
they should be, as they are hereby, enjoined from exercising the
powers and duties of Members of said Electoral Tribunal and from
acting in such capacity in connection with Senate Electoral Case No.
4 thereof. With the qualification stated above, the petition is
dismissed, as regards respondents Alfredo Cruz, Catalina Cayetano,
Manuel Serapio and Placido Reyes. Without special pronouncement
as to costs. It is so ordered.
Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Reyes,
J.B.L., and Felix, JJ., concur.
Paras, C.J., dissenting:.
In 1939, Section (4) of Article VI of the Philippine Constitution
provided that "There shall be an Electoral Commission composed of
three Justices of the Supreme Court designated by the Chief Justice,
and of six members chosen by the National Assembly, three of
whom shall be nominated by the party having the largest number of
votes, and three by the party having the second largest number of
votes therein." As all the members of the National Assembly then
belonged to the Nacionalista Party and a belief arose that it was
impossible to comply with the constitutional requirement that three
members of the Electoral Commission should be nominated by the
party having the second largest number of votes, the opinion of the
Secretary of Justice was sought on the proper interpretation of the
constitutional provision involved. Secretary of Justice Jose A. Santos
accordingly rendered the following opinion:.
"Sir:.
"I have the honor to acknowledge the receipt of your letter of
January 24, 1939, thru the office of His Excellency, the President, in
which you request my opinion as `to the proper interpretation of the
following provision of Section (4) of Article VI of the Philippine
Constitution':.
`There shall be an Electoral Commission composed of three Justices
of the Supreme Court designated by the Chief Justice, and of six
members chosen by the National Assembly, three of whom shall be
nominated by the party having the largest number of votes, and
three by the party having the second largest number of votes
therein.'.
"You state that `as all the members of the present National
Assembly belong to the Nacionalista Party, it is impossible to comply
with the last part of the provision which requires that three
271
members shall be nominated by the party having the second largest
number of votes in the Assembly.'.
"The main features of the constitutional provision in question are:
(1) that there shall be an Electoral Commission composed of three
Justices of the Supreme Court designated by the Chief Justice, and of
six members chosen by the National Assembly; and that (2) of the six
members to be chosen by the National Assembly, three shall be
nominated by the party having the largest number of votes and
three by the party having the second largest number of votes.
"Examining the history of the constitutional provision, I find that in
the first two drafts it was provided that the Electoral Commission
shall be composed of `three members elected by the members of
the party having the largest number of vote three elected by the
members of the party having the second largest number of votes,
and three justices of the Supreme Court ..(Aruego, The Framing of
the Phil. Const., pp. 260-261). But as finally adopted by the
Convention, the Constitution explicitly states that there shall be `six
members chosen by the National Assembly, three of whom shall be
nominated by the party having the largest number of votes, an and
three by the party having the second largest number of votes'
(Aruego, The Framing of the Phil. Const., pp. 271-272).
"From the foregoing changes in the phraseology of the provision, it
is evident that the intention of the framers of our Constitution was
that there should invariably be six members from the National
Assembly. It was also intended to create a non-partisan body to
decide any partisan contest that may be brought before the
Commission. The primary object was to avoid decision based chiefly
if not exclusively on partisan considerations.
"The procedure or manner of nomination cannot possibly affect the
constitutional mandate that the Assembly is entitled to six members
in the Electoral Commission. When for lack of a minority
representation in the Assembly the power to nominate three
minority members cannot be exercised, it logically follows that the
only party the Assembly may nominate three others, otherwise the
explicit mandate of the Constitution that there shall be six members
from the National Assembly would be nullified.
"In other words, fluctuations in the total membership of the
Commission were not and could not have been intended. We cannot
say that the Commission should have nine members during one
legislative term and six members during the next. Constitutional
provisions must always have a consistent application. The
membership of the Commission is intended to be fixed and not
variable and is not dependent upon the existence or non-existence
of one or more parties in the Assembly.
"`A cardinal rule in dealing with Constitutions is that they should
receive a consistent and uniform interpretation, so they shall not be
taken to mean one thing at one time and another thing at another
time, even though the circumstances may have so changed as to
make a different rule after desirable (11 Am. Jur. 659).
"It is undisputed of course that the primary purpose of the
Convention in giving representation to the minority party in the
Electoral Commission was to safeguard the rights of the minority
party and to protect their interests, especially when the election of
any member of the minority party is protested. The basic philosophy
behind the constitutional provision was to enable the minority party
to act as a check on the majority in the Electoral Commission, with
the members of the Supreme Court as the balancing factor.
Inasmuch, however, as there is no minority party represented in the
Assembly, the necessity for such a check by the minority party
disappears. It is a function that is expected to be exercised by the
three Justices of the Supreme Court.
"To summarize, considering the plain terms of the constitutional
provision in question, the changes that it has undergone since it was
first introduced until finally adopted by the convertion, as well as,
the considerations that must have inspired the Constitutional
Convention in adopting it as it is, I have come to the conclusion that
the Electoral Commission should be composed of nine members,
three from the Supreme Court and six chosen by the National
Assembly to be nominated by the party in power, there being no
other party entitled to such nomination.".
Pursuant to the foregoing opinion of February 1, 1939, the Electoral
Commission was formally organized, with six members of the
National Assembly all belonging to the same party and three Justices
of the Supreme Court. Constitutional amendments were introduced
and duly adopted in 1940, and the Electoral Commission was
replaced by an Electoral Tribunal for each house of Congress. It is
now provided that "Each Electoral Tribunal shall be composed of
nine Members, three of whom shall be Justices of the Supreme
Court to be designated by the Chief Justice, and the remaining six
shall be Members of the Senate or of the House of Representatives,
as the case may be, who shall be chosen by each house, three upon
nomination of the party having the largest number of votes and
three of the party having the second largest number of votes
therein. The senior Justice in each Electoral Tribunal shall be its
Chairman." (Article VI, Section 11, of the Constitution.).
If there was any doubt on the matter, the same was removed by the
amendment of 1940 the framers of which may be assumed to have
been fully aware of the one-party composition of the former
National Assembly which gave rise to the abovequoted opinion of
the Secretary of Justice. When instead of wording the amendment in
such a form as to nullify said opinion, Section 11 of Article VI of the
Constitution not only did not substantially depart from the original
constitutional provision but also positively and expressly ordains
that "Each Electoral Tribunal shall be composed of nine Members,"
the intent has become clear and mandatory that at all times the
Electoral Tribunal shall have nine Members regardless of whether or
not two parties make up each house of Congress.
It is very significant that while the party having the second largest
number of votes is allowed to nominate three Members of the
Senate or of the House of Representatives, it is not required that the
nominees should belong to the same party. Considering further that
the six Members are chosen by each house, and not by the party or
parties, the conclusion is inescapable that party affiliation is neither
controlling nor necessary.
Under the theory of the petitioners, even if there were sufficient
Members belonging to the party having the second largest of votes,
the latter may nominate less than three or none at all; and the Chief
Justice may similarly designate less than three Justices. If not absurd,
would frustrate the purpose of having an ideal number in the
composition of the Electoral Tribunal and guarding against the
possibility of deadlocks. It would not be accurate to argue that the
Members of the Electoral Tribunal other than the Justices of the
Supreme Court would naturally vote along purely partisan lines,
checked or fiscalized only by the votes of the Justices; otherwise
membership in the Tribunal may well be limited to the Justices of
the Supreme Court and so others who are not Members of the
Senate or of the House of Representatives. Upon the other hand, he
framers of the Constitution-not insensitive to some such argument-
still had reposed their faith and confidence in the independence,
integrity and uprightness of the Members of each House who are to
sit in the Electoral Tribunals and thereby expected them, as does
everybody, to decide jointly with the Justices of the Supreme Court
election contests exclusively upon their merits.
In view of the failure or unwillingness of Senator Lorenzo M. Tañada
of the Citizens Party, the party having the second largest number of
votes in the Senate, to nominate two other Members of the
Electoral Tribunal, the Senate was justified, in obedience to the
constitutional mandate, to choose-as it did-said two Members.
I vote to dismiss the petition.
Endencia, J., concurs.
272
LABRADOR, J., dissenting:.
I dissent and herewith proceed to explain my reasons therefor.
The constitutional provision, in pursuance of which Senators Cuenco
and Delgado were elected by the Senate members of the Senate
Electoral Tribunal is as follows:.
"The Senate and the House of Representatives shall each have an
Electoral Tribunal which shall be the sole judge of all contests
relating to the election, returns, and qualifications of their respective
Members. Each Electoral Tribunal shall be composed of nine
Members, three of whom shall be Justices of the Supreme Court to
be designated by the Chief Justice, and the remaining six shall be
Members of the Senate or of the House of Representatives, as the
case may be, who shall be chosen by each House, three upon
nomination of the party having the largest number of votes and
three of the party having the second largest number of votes
therein. The Senior Justice in each Electoral Tribunal shall be its
Chairman." (Section II, Article VI of the Constitution.).
I hold that the above provision, just as any other constitutional
provision, is mandatory in character and that this character is true
not only of the provision that nine members shall compose the
tribunal but also that which defines the manner in which the
members shall be chosen. Such a holding is in accord with well-
settled rules of statutory construction.
"As a general proposition, there is greater likelihood that
constitutional provisions will be given mandatory effect than is true
of any other class of organic law. Indeed, such a construction
accords with the generally acknowledged import of constitutional
fiat; that its character is such as to require absolute compliance in all
cases without exception. And the very principles of our institutions,
involving as they do concepts of constitutional supremacy, are such
as to form reasonable grounds for a presumption that the framers of
a constitution intended that just such efficacy be given to it .." (Sec.
5807, Sutherland Statutory Construction, Vol. 3, p.84.).
The majority helds that as Senator Tañada, the only member of the
Senate who does not belong to the Nacionalista Party, has refused
to exercise the constitutional privilege afforded him to nominate the
two other members the Senate may not elect said two other
members. And the reason given for this ruling is the presumed
intention of the constitutional provision to safeguard the interests of
the minority. This holding is subject to the following fundamental
objections. In the first Place, it renders nugatory the provision which
fixes the membership of the Senate Electoral Tribunal at nine, a
provision which is admittedly a mandatory provision. In the second
place, it denies to the Senate the power that the constitutional
provision expressly grants it, i. e., that of electing the members of
the Electoral Tribunal so in effect this right or prerogative is lodged,
as a consequence of the refusal of the minority member to
nominate, in the hands of said member of the minority, contrary to
the constitutional provision. In the third place, it would make the
supposedly procedural provision, the process of nomination lodged
in the minority party in the Senate, superior to and paramount over
the power of election, which is in the whole Senate itself. So by the
ruling of the majority, a procedural provision overrides a substantive
one and renders nugatory the other more important mandatory
provision that the Electoral Tribunal shall be composed of nine
members. In the fourth place, the majority decision has by
interpretation inserted a provision in the Constitution, which the
Constitutional Convention alone had the power to introduce,
namely, a proviso to the effect that if the minority fails or refuses to
exercise its privilege to nominate all the three members, the
membership of the Electoral Tribunal shall thereby be
correspondingly reduced. This arrogation of power by us is not
justified by any rule of law or reason.
I consider the opinion of the Senate that the refusal of Senator
Tañada to nominate the two other members must be construed as a
waiver of a mere privilege, more in consonance not only with the
constitutional provision as a whole, but with the dictates of reason.
The above principle (of waiver) furnishes the remedy by which two
parts of the constitutional provision, that which fixes membership at
nine and that which outlines the procedure in which said
membership of nine may be elected, can be reconciled. Well known
is the legal principle that provisions which in their application may
nullify each other should be reconciled to make them both effective,
if the reconciliation can be effected by the application of other legal
principles. The reconciliation is brought about in this case by the
principle of waiver.
While I agree with the majority that it is the duty of this Court to
step in, when a constitutional mandate is ignored, to enforce said
mandate even as against the other coordinate departments, this is
not the occasion for it to do so, for to say the least it does not clearly
appear that the form and manner in which the Senate exercised its
expressly recognized power to elect its members to the Senate
Electoral Tribunal has been clearly violative of the constitutional
mandate.
1 Casanovas vs. Hord, 8 Phil., 125; Omo vs. Insular Gov't., 11 Phil.,
67; Weigall vs. Shuster, 11 Phil., 340; Barrameda vs. Moir, 25 Phil.,
44; Hamilton vs. McGirr, 30 Phil., 563; Compania Gral. de Tabacos vs.
Board of Public Utility Commissioners, 34 Phil., 136; Central Capiz vs.
Ramirez, 40 Phil., 883; Concepcion vs. Paredes, 42 Phil 599;
McDaniel vs. Apacible, 42 Phil., 749; U. S. vs. Ang Tan Ho, 43 Phil., 1;
People vs. Pomar, 46 Phil., 440. Agcaoili vs. Saguitan, 48 Phil., 676;
Gov't. vs. Springer, 50 Phil., 259; Gov't. us. Agoncillo, 50 Phil., 348;
Gov't. vs. El Hogar Filipino, 50 Phil, 399; Manila Electric vs. Pasay
Transp., 57 Phil., 600; Angara vs. Electoral Commission, supra;
People vs. Vera, 65 Phil., 56; Vargas vs. Rilloraza, 45 Off. Gaz., 3847;
Endencia vs. David, 49 Off. Gaz., A822; Rutter vs. Esteban, 49 Off.
Gaz., 1807; Comm. investment vs. Garcia, 49 Off. Gaz., 1801;
Marbury vs. Madison, 1 Cranch 137; Ex Parte Garland, 4 Wall. 333;
Hepburn vs. Griswold, 8 Wall. 603; Knox vs. Lee, 12 Wall. 457; Civil
Rights Cases [U. S. vs. M. Stanley; U. S. vs. M. Ryan, U. S. vs. S.
Nichols; U. S. vs. Singleton; Robinson vs. and Charleston Railroad
Co.], 109 U. S. 3 Pollock vs. Farmers' Loan and Trust Co. 157 U. S.
429, 158 U. S. 601; Fairbanks vs. U. S., 181 U. S. 286.
2 Which, insofar as pertinent to the issues in the case at bar, is
substantially identical to each of the Electoral Tribunals under the
Constitution as amended.
3 Araneta vs. Dinglasan, Barredo vs. Commission on Elections, and
Rodriguez vs. Teasurer of the Philippines, 84 Phil., 368, 45 Off. Gaz.,
4411, 4457; Nacionalista Party vs. Bautista, 85 Phil., 101, 47 Off.
Gaz., 2356; Lacson vs. Romero, 84 Phil., 740, 47 Off. Gaz., 1778; De
los Santos vs. Mallare, 87 Phil., 289, 48 Off. Gaz., 1787; Lacson vs.
Roque, 92 Phil., 456, 49 Off. Gaz., 93; Jover Ledesma vs. Borra, 93
Phil., 506, 49 Off. Gaz., 2765; Ramos vs. Avelino, 97 Phil., 844, 51 Off.
Gaz., 5607.
"From the very nature of the American system of government with
Constitutions prescribing the jurisdiction and powers of each of the
three branches of government, it has devolved on the judiciary to
determine whether the acts of the other two departments are in
harmony with the fundamental law. All the departments are of the
government are unquestionably entitled and compelled to judge of
the Constitution for themselves; but, in doing so, they act under the
obligations imposed in the instrument, and in the order of time
pointed out by it. When the, judiciary has once spoken, if the acts of
the other two departments are held to be unauthorized or despotic,
in violation of the Constitution or the vested rights of the citizen,
they cease to be operative or binding.
xxx xxx x x x.
"Since the Constitution is intended for the observance of the
judiciary as well as the other departments of government and the
judges are sworn to support its provisions, the court are not at
liberty to overlook or disregard its commands. It is their duty in
authorized proceedings to give effect to the existing Constitution
and to obey all constitutional provisions irrespective of their opinion
as to the wisdom of such provisions.
273
"In accordance with principles which are basic, the rule is fixed that
the duty in a proper case to declare a law unconstitutional cannot be
declined and must be performed in accordance with the deliberate
judgment of the tribunal before which the validity of the enactment
is directly drawn into question. When it is clear that a statute
transgresses the authority vested in the legislature by the
Constitution, it is the duty of the courts to declare the act
unconstitutional cause they cannot shrink from it without violating
their oaths of office. This duty of the courts to maintain the
Constitution as the fundamental law of the state is imperative and
unceasing; and, as Chief Justice Marshal said, whenever a statute is
in violation of the fundamental law, the courts must so adjudge and
thereby give effect to the Constitution. Any other course would lead
to the destruction of the Constitution. Since the question as to the
constitutionality of a statute is a judicial matter, the courts will not
decline the exercise of jurisdiction upon the suggestion that action
might be taken by political agencies in disregard of the judgment of
the judicial tribunals." (11 Am. Jur., pp. 712-713, 713-715; emphasis
supplied).
5 Rich vs. Board of Canvassers, 59 N. W. 183; State vs. McBride, 29
Am. Dec. 636; Collier vs. Frierson, 24 Ala. 100; State vs. Swift, 69 Ind.
505; State vs. Timme, 11 N.W. 785; Prohibition and Amendment
Cases, 24 Kan. 700; Kadderly vs. Portland, 74 Pac. 710; Koehler vs.
Hill, 14 N. W. 738; State vs. Brockhart, 84 S. W. 1064; University vs.
Melver, 72 N. C. 76; Westinghausen vs. People, 6 N.W. 641; State vs.
Powell, 27 South, 927; Bott vs. Wurtz, 43 Atl. 744; Rice vs. Palmer, 96
S. W. 396; State vs. Tooker, 37 Pac. 840.
6 "The procedure or manner of nomination cannot possibly affect
the, constitutional mandate that the Assembly is entitled to six in
the Electoral Commission. When for lack of a minority
representation in the Assembly the power to nominate three
minority members cannot be exercised, it logically follows that the
only party in the Assembly may nominate three others, otherwise
the explicit mandate of the Constitution that there shall be six
members from the National Assembly would be nullified.
"In other words, fluctuations in the total membership of the
Commission were not and could have been intended; We cannot say
that the Commission should have nine members during one
legislative term and six members during the next. Constitutional
provisions must always have a consistent application. The
membership of the Commission is intended to be fixed and not
variable and is not dependent upon the existence or non-existence
of one or more parties in the Assembly.
`A cardinal rule in dealing with Constitutions is that they should
receive a consistent and uniform interpretation, so they shall not be
taken to mean one thing at one time and another thing at another
time, even though the circumstance may have so changed as to
make a different rule seem desirable (11 Am. Jur. 659).'.
"It is undisputed of course that the primary purpose of the
Convention in giving representation to the minority party in the
Electoral Commission was to safeguard the rights of the minority
party and to protect their interests, especially when the election of
any member of the minority party is protected. The basic philosophy
behind the constitutional provision was to enable the minority party
to act as a check on the majority of the Electoral Commission, with
the members of the Supreme Court as the balancing factor.
Inasmuch, however, as there is no minority party represented in the
Assembly, the necessity for such a check by the minority party
disappears. It is a function that is expected to be exercised by the
three Justices of the Supreme Court.
"To summarize, considering the plain terms of the constitutional
provision in question, the changes that it has undergone since it was
first introduced until finally adopted by the Convention, as well as
the considerations that must have inspired the Constitutional
Convention in adopting it as it is, I have come to the conclusion that
the Electoral Commission should be composed of nine members,
three from the Supreme Court and six chosen by the National
Assembly to be nominated by the party in power, there being no
other party entitled to such nomination." Annex A to the Answers
pp. 2-3.
6a Since 1939, when said opinion was rendered, the question
therein raised has not been taken up or discussed, until the events
leading to the case at bar (in February 1956).
6b "Thus, in Suanes vs. Chief Accountant (supra)-in which the
respondents maintained that the Electoral Commission formed part
of the National Assembly, citing in support thereof the principle of
contemporaneous and practical construction-this Court deemed it
unnecessary to refute the same in order to adopt the opposite view.
7 Senator Laurel reiterated this view on the floor of the Senate, on
February 22. 1956, in the following language:.
"And hence this provision that we find in the Constitution, three to
represent, in the manner prescribed in the Constitution, the party
that received the highest number of votes, meaning the majority
party which is the Nacionalista Party now, and three to represent
the party receiving the next highest number of votes therein,
meaning the minority party, the party receiving the next highest
number of votes. But there was a great deal of opinion that it would
be better if this political organization, so far as the legislative
department is concerned, could be tempered by a sort of a judicial
reflection which could be done by drafting three, as to each Electoral
Tribunal, from the Supreme Court. And that, I think, was the reason
because a great majority of the delegates to the constitutional
convention accepted that principle. That is why we have nine
members in each electoral tribunal, in the House and in the Senate.
And one reason that I remember then and I am speaking from
memory, Mr. President, was that it is likely that the three members
representing a party would naturally favor the protestants or
protestees, and so on. So it would be better that even on that
hypothesis or on that supposition it would be better, in case they
annul each other because three votes in favor or three votes against,
depending on the party of the protestants or the protestees, that
the Supreme Court decide the case because then it would be a
judicial decision in reality. Another reason is founded on the theory
that the Justices of the Supreme Court are supposed to be beyond
influence, although that may not be true. But having reached the
highest judicial position of the land, these persons would likely act
impartially." (Congressional Record for the Senate Vol. III, p. 376.).
8 When the legislative power was vested in a unicameral body,
known as the National Assembly.
9 Upon the substitution of the National Assembly by a bicameral
Congress, consisting of the Senate and the House of
Representatives.
10 Senator Lim said:.
"But in the spirit, Your Honor can see very well that those three
should belong to the party having the second largest number of
votes, precisely, as Your Honor said, to maintain equilibrium because
partisan considerations naturally enter into the mind and heart of a
senator belonging to a particular party. Although grammatically, I
agree with Your Honor, Your Honor can see that the spirit of the
provision of the Constitution is clear that the three must come from
the party having the highest number of votes and the other three
nominated must belong to the party having the second highest
number of votes. Your Honor can see the point. If we allow Your
Honor to back up your argument that equilibrium should be
maintained, because partisan considerations enter when one is with
the majority party, and that no party should prevail, Your Honor
should also have to consider that the spirit of the Constitution is
precisely to obviate that to the extent that the only three can be
nominated from the party having the largest number of votes and
three from the party having the second largest number of votes."
(Congressional Record of the Senate, Vol. Ill, p, 337; emphasis
supplied.).
274
The statement of Senator Sabido was:.
".. the purpose of the creation of the Electoral Tribunal and of its
composition is to maintain a balance between the two parties and
make the members of the Supreme Court the controlling power so
to speak of the Electoral Tribunal or hold the balance of power. That
is the ideal situation.".
"In the same session of December 4, 1934, Delegate Cruz (C.) sought
to amend the draft by reducing the representation of the minority
party and the Supreme Court in the Electoral Commission to two
members each, so as to accord more representation to the majority
party. The Convention rejected this amendment by a vote of
seventy-six (76) against forty-six (46), thus maintaining the non-
partisan character of the commission."(emphasis supplied.).

xxx xxx x x x.
".. I said that the ideal composition in the contemplation of the
framers of the Constitution is that those participating in the electoral
tribunal shall belong to the members of the party who are before
the electoral tribunal either as protestants or protestees, in order to
insure impartiality in the proceeding and justice in the decision that
may be finally rendered." (Congressional Record for the Senate, Vol.
III, pp. 349, 352; emphasis supplied.).
Needless to say, what the Constitutional Convention thus precluded
from being done by direct action or grant of authority in the Charter
of our Republic should not receive judicial sanction, when done by
resolution of one House of Congress, a mere creature of said
charter.
14 Namely, the other two (2) Justices of the Supreme Court and
Senators Laurel, Lopez and Primicias, or a total of six (6) members of
the Tribunal.

Senator Cea declared:.

".. the original purpose of the Constitution is to nominate only

members of the two major parties in the Senate in the Electoral
Tribunal." (Congressional Record for the Senate, Vol. III, p. 350;
emphasis supplied.).

The words of Senator Paredes were:.

".. what was intended in the creation of the electoral tribunal was to
create a sort of collegiate court composed of nine members three of
them belonging to the party having largest number of votes, and
three from, the party having the second largest number of votes so
that these members my represent the party, and the members of
said party who will sit before the electoral tribunal as protestees. For
when it comes to a party, Mr. President, there is ground to believe
that decisions will be made along party lines." (Congressional Record
for the Senate, Vol. III, p. 351; emphasis supplied.).

11 The need of adopting this view is demanded, not only by the

factors already adverted to, but, also, by the fact that constitutional
provisions, unlike statutory enactments, are presumed to be
mandatory, "unless the contrary is unmistakably manifest." The
pertinent rule of statutory construction is set forth in the American
Jurisprudence as follows:.

"In the interpretation of Constitutions, questions frequently arise as

to whether particular sections are mandatory or directory. The
courts usually hesitate to declare that a constitutional provision is
directory merely in view of the tendency of the legislature to
disregard provisions which are not said to be mandatory.
Accordingly, it is the general rule to regard constitutional provisions
as mandatory, and not to leave any direction to the will of a
legislature to obey or to disregard them. This presumption as to
mandatory quality is usually followed unless it is unmistakably
manifest that the provisions are intended to be merely directory.
The analogous rules distinguishing mandatory and directory statutes
are of little value in this connection and are rarely applied in passing
upon the provisions of a Constitution.

"So strong is the inclination in favor of giving obligatory force to the

terms of the organic law that it has even been said that neither by
the courts nor by any other department of the government may any
provision of the Constitution be regarded as merely directory, but
that each and everyone of its provisions should be treated as
imperative and mandatory, without reference to the rules and
distinguishing between the directory and the mandatory statutes."
(II Am. Jur. 686-687; emphasis supplied.).

12 Which admittedly, has the second largest number of votes in the

Senate.

13 In Angara vs. Electoral Commission (supra, 169) Senator, then

Justice, Laurel, speaking for this Court, recalled that:.

275
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 146710-15 March 2, 2001
JOSEPH E. ESTRADA, petitioner,
vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON
GONZALES, VOLUNTEERS AGAINST CRIME AND CORRUPTION,
GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA,
DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO,
JR., respondent.
----------------------------------------
G.R. No. 146738 March 2, 2001
JOSEPH E. ESTRADA, petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, respondent.
PUNO, J.:
On the line in the cases at bar is the office of the President.
Petitioner Joseph Ejercito Estrada alleges that he is the President on
leave while respondent Gloria Macapagal-Arroyo claims she is the
President. The warring personalities are important enough but more
transcendental are the constitutional issues embedded on the
parties' dispute. While the significant issues are many, the jugular
issue involves the relationship between the ruler and the ruled in a
democracy, Philippine style.
First, we take a view of the panorama of events that precipitated the
crisis in the office of the President.
In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was
elected President while respondent Gloria Macapagal-Arroyo was
elected Vice-President. Some ten (10) million Filipinos voted for the
petitioner believing he would rescue them from life's adversity. Both
petitioner and the respondent were to serve a six-year term
commencing on June 30, 1998.
From the beginning of his term, however, petitioner was plagued by
a plethora of problems that slowly but surely eroded his popularity.
His sharp descent from power started on October 4, 2000. Ilocos Sur
Governor, Luis "Chavit" Singson, a longtime friend of the petitioner,
went on air and accused the petitioner, his family and friends of
receiving millions of pesos from jueteng lords.1
The exposẻ immediately ignited reactions of rage. The next day,
October 5, 2000, Senator Teofisto Guingona, Jr., then the Senate
Minority Leader, took the floor and delivered a fiery privilege speech
entitled "I Accuse." He accused the petitioner of receiving some
P220 million in jueteng money from Governor Singson from
November 1998 to August 2000. He also charged that the petitioner
took from Governor Singson P70 million on excise tax on cigarettes
intended for Ilocos Sur. The privilege speech was referred by then
Senate President Franklin Drilon, to the Blue Ribbon Committee
(then headed by Senator Aquilino Pimentel) and the Committee on
Justice (then headed by Senator Renato Cayetano) for joint
investigation.2
The House of Representatives did no less. The House Committee on
Public Order and Security, then headed by Representative Roilo
Golez, decided to investigate the exposẻ of Governor Singson. On
the other hand, Representatives Heherson Alvarez, Ernesto Herrera
and Michael Defensor spearheaded the move to impeach the
petitioner.
Calls for the resignation of the petitioner filled the air. On October
11, Archbishop Jaime Cardinal Sin issued a pastoral statement in
behalf of the Presbyteral Council of the Archdiocese of Manila,
asking petitioner to step down from the presidency as he had lost
the moral authority to govern.3 Two days later or on October 13, the
Catholic Bishops Conference of the Philippines joined the cry for the
resignation of the petitioner.4 Four days later, or on October 17,
former President Corazon C. Aquino also demanded that the
petitioner take the "supreme self-sacrifice" of resignation.5 Former
President Fidel Ramos also joined the chorus. Early on, or on
October 12, respondent Arroyo resigned as Secretary of the
Department of Social Welfare and Services6 and later asked for
petitioner's resignation.7 However, petitioner strenuously held on to
his office and refused to resign.
The heat was on. On November 1, four (4) senior economic advisers,
members of the Council of Senior Economic Advisers, resigned. They
were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar
Virata, former Senator Vicente Paterno and Washington Sycip. 8 On
November 2, Secretary Mar Roxas II also resigned from the
Department of Trade and Industry.9 On November 3, Senate
President Franklin Drilon, and House Speaker Manuel Villar, together
with some 47 representatives defected from the ruling coalition,
Lapian ng Masang Pilipino.10
The month of November ended with a big bang. In a tumultuous
session on November 13, House Speaker Villar transmitted the
Articles of Impeachment11 signed by 115 representatives, or more
than 1/3 of all the members of the House of Representatives to the
Senate. This caused political convulsions in both houses of Congress.
Senator Drilon was replaced by Senator Pimentel as Senate
President. Speaker Villar was unseated by Representative
Fuentebella.12 On November 20, the Senate formally opened the
impeachment trial of the petitioner. Twenty-one (21) senators took
their oath as judges with Supreme Court Chief Justice Hilario G.
Davide, Jr., presiding.13
The political temperature rose despite the cold December. On
December 7, the impeachment trial started.14 The battle royale was
fought by some of the marquee names in the legal profession.
Standing as prosecutors were then House Minority Floor Leader
Feliciano Belmonte and Representatives Joker Arroyo, Wigberto
Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib
Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and
Antonio Nachura. They were assisted by a battery of private
prosecutors led by now Secretary of Justice Hernando Perez and
now Solicitor General Simeon Marcelo. Serving as defense counsel
were former Chief Justice Andres Narvasa, former Solicitor General
and Secretary of Justice Estelito P. Mendoza, former City Fiscal of
Manila Jose Flaminiano, former Deputy Speaker of the House Raul
Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun.
The day to day trial was covered by live TV and during its course
enjoyed the highest viewing rating. Its high and low points were the
constant conversational piece of the chattering classes. The dramatic
point of the December hearings was the testimony of Clarissa
Ocampo, senior vice president of Equitable-PCI Bank. She testified
that she was one foot away from petitioner Estrada when he affixed
the signature "Jose Velarde" on documents involving a P500 million
investment agreement with their bank on February 4, 2000.15
After the testimony of Ocampo, the impeachment trial was
adjourned in the spirit of Christmas. When it resumed on January 2,
2001, more bombshells were exploded by the prosecution. On
January 11, Atty. Edgardo Espiritu who served as petitioner's
Secretary of Finance took the witness stand. He alleged that the
petitioner jointly owned BW Resources Corporation with Mr. Dante
Tan who was facing charges of insider trading.16 Then came the
fateful day of January 16, when by a vote of 11-1017 the senator-
judges ruled against the opening of the second envelope which
allegedly contained evidence showing that petitioner held P3.3
billion in a secret bank account under the name "Jose Velarde." The
public and private prosecutors walked out in protest of the ruling. In
disgust, Senator Pimentel resigned as Senate President.18 The ruling
made at 10:00 p.m. was met by a spontaneous outburst of anger
that hit the streets of the metropolis. By midnight, thousands had
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assembled at the EDSA Shrine and speeches full of sulphur were
delivered against the petitioner and the eleven (11) senators.
On January 17, the public prosecutors submitted a letter to Speaker
Fuentebella tendering their collective resignation. They also filed
their Manifestation of Withdrawal of Appearance with the
impeachment tribunal.19Senator Raul Roco quickly moved for the
indefinite postponement of the impeachment proceedings until the
House of Representatives shall have resolved the issue of resignation
of the public prosecutors. Chief Justice Davide granted the motion.20
January 18 saw the high velocity intensification of the call for
petitioner's resignation. A 10-kilometer line of people holding
lighted candles formed a human chain from the Ninoy Aquino
Monument on Ayala Avenue in Makati City to the EDSA Shrine to
symbolize the people's solidarity in demanding petitioner's
resignation. Students and teachers walked out of their classes in
Metro Manila to show their concordance. Speakers in the continuing
rallies at the EDSA Shrine, all masters of the physics of persuasion,
attracted more and more people.21
On January 19, the fall from power of the petitioner appeared
inevitable. At 1:20 p.m., the petitioner informed Executive Secretary
Edgardo Angara that General Angelo Reyes, Chief of Staff of the
Armed Forces of the Philippines, had defected. At 2:30 p.m.,
petitioner agreed to the holding of a snap election for President
where he would not be a candidate. It did not diffuse the growing
crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado
and General Reyes, together with the chiefs of all the armed services
went to the EDSA Shrine.22 In the presence of former Presidents
Aquino and Ramos and hundreds of thousands of cheering
demonstrators, General Reyes declared that "on behalf of Your
Armed Forces, the 130,000 strong members of the Armed Forces,
we wish to announce that we are withdrawing our support to this
government."23 A little later, PNP Chief, Director General Panfilo
Lacson and the major service commanders gave a similar stunning
announcement.24Some Cabinet secretaries, undersecretaries,
assistant secretaries, and bureau chiefs quickly resigned from their
posts.25 Rallies for the resignation of the petitioner exploded in
various parts of the country. To stem the tide of rage, petitioner
announced he was ordering his lawyers to agree to the opening of
the highly controversial second envelope.26 There was no turning
back the tide. The tide had become a tsunami.
January 20 turned to be the day of surrender. At 12:20 a.m., the first
round of negotiations for the peaceful and orderly transfer of power
started at Malacañang'' Mabini Hall, Office of the Executive
Secretary. Secretary Edgardo Angara, Senior Deputy Executive
Secretary Ramon Bagatsing, Political Adviser Angelito Banayo, Asst.
Secretary Boying Remulla, and Atty. Macel Fernandez, head of the
Presidential Management Staff, negotiated for the petitioner.
Respondent Arroyo was represented by now Executive Secretary
Renato de Villa, now Secretary of Finance Alberto Romulo and now
Secretary of Justice Hernando Perez.27 Outside the palace, there was
a brief encounter at Mendiola between pro and anti-Estrada
protesters which resulted in stone-throwing and caused minor
injuries. The negotiations consumed all morning until the news
broke out that Chief Justice Davide would administer the oath to
respondent Arroyo at high noon at the EDSA Shrine.
At about 12:00 noon, Chief Justice Davide administered the oath to
respondent Arroyo as President of the Philippines.28 At 2:30 p.m.,
petitioner and his family hurriedly left Malacañang Palace.29 He
issued the following press statement:30
"20 January 2001
STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA
At twelve o'clock noon today, Vice President Gloria
Macapagal-Arroyo took her oath as President of the
Republic of the Philippines. While along with many other
legal minds of our country, I have strong and serious
doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that
will prevent the restoration of unity and order in our civil
society.
It is for this reason that I now leave Malacañang Palace,
the seat of the presidency of this country, for the sake of
peace and in order to begin the healing process of our
nation. I leave the Palace of our people with gratitude for
the opportunities given to me for service to our people. I
will not shirk from any future challenges that may come
ahead in the same service of our country.
I call on all my supporters and followers to join me in to
promotion of a constructive national spirit of reconciliation
and solidarity.
May the Almighty bless our country and beloved people.
MABUHAY!
(Sgd.) JOSEPH EJERCITO ESTRADA"
It also appears that on the same day, January 20, 2001, he signed
the following letter:31
"Sir:
By virtue of the provisions of Section 11, Article VII of the
Constitution, I am hereby transmitting this declaration that
I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice-
President shall be the Acting President.
(Sgd.) JOSEPH EJERCITO ESTRADA"
A copy of the letter was sent to former Speaker Fuentebella at 8:30
a.m. on January 20.23 Another copy was transmitted to Senate
President Pimentel on the same day although it was received only at
9:00 p.m.33
On January 22, the Monday after taking her oath, respondent Arroyo
immediately discharged the powers the duties of the Presidency. On
the same day, this Court issued the following Resolution in
Administrative Matter No. 01-1-05-SC, to wit:
"A.M. No. 01-1-05-SC — In re: Request of Vice President
Gloria Macapagal-Arroyo to Take her Oath of Office as
President of the Republic of the Philippines before the
Chief Justice — Acting on the urgent request of Vice
President Gloria Macapagal-Arroyo to be sworn in as
President of the Republic of the Philippines, addressed to
the Chief Justice and confirmed by a letter to the Court,
dated January 20, 2001, which request was treated as an
administrative matter, the court Resolve unanimously to
confirm the authority given by the twelve (12) members of
the Court then present to the Chief Justice on January 20,
2001 to administer the oath of office of Vice President
Gloria Macapagal-Arroyo as President of the Philippines, at
noon of January 20, 2001.
This resolution is without prejudice to the disposition of
any justiciable case that may be filed by a proper party."
Respondent Arroyo appointed members of her Cabinet as well as
ambassadors and special envoys.34Recognition of respondent
Arroyo's government by foreign governments swiftly followed. On
January 23, in a reception or vin d' honneur at Malacañang, led by
the Dean of the Diplomatic Corps, Papal Nuncio Antonio Franco,
more than a hundred foreign diplomats recognized the government
of respondent Arroyo.35 US President George W. Bush gave the
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respondent a telephone call from the White House conveying US
recognition of her government.36
On January 24, Representative Feliciano Belmonte was elected new
Speaker of the House of Representatives.37The House then passed
Resolution No. 175 "expressing the full support of the House of
Representatives to the administration of Her Excellency, Gloria
Macapagal-Arroyo, President of the Philippines."38 It also approved
Resolution No. 176 "expressing the support of the House of
Representatives to the assumption into office by Vice President
Gloria Macapagal-Arroyo as President of the Republic of the
Philippines, extending its congratulations and expressing its support
for her administration as a partner in the attainment of the nation's
goals under the Constitution."39
On January 26, the respondent signed into law the Solid Waste
Management Act.40 A few days later, she also signed into law the
Political Advertising ban and Fair Election Practices Act.41
On February 6, respondent Arroyo nominated Senator Teofisto
Guingona, Jr., as her Vice President.42 The next day, February 7, the
Senate adopted Resolution No. 82 confirming the nomination of
Senator Guingona, Jr.43Senators Miriam Defensor-Santiago, Juan
Ponce Enrile, and John Osmena voted "yes" with reservations, citing
as reason therefor the pending challenge on the legitimacy of
respondent Arroyo's presidency before the Supreme Court. Senators
Teresa Aquino-Oreta and Robert Barbers were absent. 44 The House
of Representatives also approved Senator Guingona's nomination in
Resolution No. 178.45 Senator Guingona, Jr. took his oath as Vice
President two (2) days later.46
On February 7, the Senate passed Resolution No. 83 declaring that
the impeachment court is functus officio and has been
terminated.47 Senator Miriam Defensor-Santiago stated "for the
record" that she voted against the closure of the impeachment court
on the grounds that the Senate had failed to decide on the
impeachment case and that the resolution left open the question of
whether Estrada was still qualified to run for another elective post.48
Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's
public acceptance rating jacked up from 16% on January 20, 2001 to
38% on January 26, 2001.49 In another survey conducted by the ABS-
CBN/SWS from February 2-7, 2001, results showed that 61% of the
Filipinos nationwide accepted President Arroyo as replacement of
petitioner Estrada. The survey also revealed that President Arroyo is
accepted by 60% in Metro Manila, by also 60% in the balance of
Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating
increased to 52%. Her presidency is accepted by majorities in all
social classes: 58% in the ABC or middle-to-upper classes, 64% in the
D or mass class, and 54% among the E's or very poor class.50
After his fall from the pedestal of power, the petitioner's legal
problems appeared in clusters. Several cases previously filed against
him in the Office of the Ombudsman were set in motion. These are:
(1) OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October
23, 2000 for bribery and graft and corruption; (2) OMB Case No. 0-
00-1754 filed by the Volunteers Against Crime and Corruption on
November 17, 2000 for plunder, forfeiture, graft and corruption,
bribery, perjury, serious misconduct, violation of the Code of
Conduct for Government Employees, etc; (3) OMB Case No. 0-00-
1755 filed by the Graft Free Philippines Foundation, Inc. on
November 24, 2000 for plunder, forfeiture, graft and corruption,
bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756
filed by Romeo Capulong, et al., on November 28, 2000 for
malversation of public funds, illegal use of public funds and
property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard
de Vera, et al., on November 28, 2000 for bribery, plunder, indirect
bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6)
OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on
December 4, 2000 for plunder, graft and corruption.
A special panel of investigators was forthwith created by the
respondent Ombudsman to investigate the charges against the
petitioner. It is chaired by Overall Deputy Ombudsman Margarito P.
Gervasio with the following as members, viz: Director Andrew
Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty.
Emmanuel Laureso. On January 22, the panel issued an Order
directing the petitioner to file his counter-affidavit and the affidavits
of his witnesses as well as other supporting documents in answer to
the aforementioned complaints against him.
Thus, the stage for the cases at bar was set. On February 5,
petitioner filed with this Court GR No. 146710-15, a petition for
prohibition with a prayer for a writ of preliminary injunction. It
sought to enjoin the respondent Ombudsman from "conducting any
further proceedings in Case Nos. OMB 0-00-1629, 1754, 1755, 1756,
1757 and 1758 or in any other criminal complaint that may be filed
in his office, until after the term of petitioner as President is over
and only if legally warranted." Thru another counsel, petitioner, on
February 6, filed GR No. 146738 for Quo Warranto. He prayed for
judgment "confirming petitioner to be the lawful and incumbent
President of the Republic of the Philippines temporarily unable to
discharge the duties of his office, and declaring respondent to have
taken her oath as and to be holding the Office of the President, only
in an acting capacity pursuant to the provisions of the Constitution."
Acting on GR Nos. 146710-15, the Court, on the same day, February
6, required the respondents "to comment thereon within a non-
extendible period expiring on 12 February 2001." On February 13,
the Court ordered the consolidation of GR Nos. 146710-15 and GR
No. 146738 and the filing of the respondents' comments "on or
before 8:00 a.m. of February 15."
On February 15, the consolidated cases were orally argued in a four-
hour hearing. Before the hearing, Chief Justice Davide, Jr.51 and
Associate Justice Artemio Panganiban52 recused themselves on
motion of petitioner's counsel, former Senator Rene A. Saguisag.
They debunked the charge of counsel Saguisag that they have
"compromised themselves by indicating that they have thrown their
weight on one side" but nonetheless inhibited themselves.
Thereafter, the parties were given the short period of five (5) days to
file their memoranda and two (2) days to submit their simultaneous
replies.
In a resolution dated February 20, acting on the urgent motion for
copies of resolution and press statement for "Gag Order" on
respondent Ombudsman filed by counsel for petitioner in G.R. No.
146738, the Court resolved:
"(1) to inform the parties that the Court did not issue a
resolution on January 20, 2001 declaring the office of the
President vacant and that neither did the Chief Justice
issue a press statement justifying the alleged resolution;
(2) to order the parties and especially their counsel who
are officers of the Court under pain of being cited for
contempt to refrain from making any comment or
discussing in public the merits of the cases at bar while
they are still pending decision by the Court, and
(3) to issue a 30-day status quo order effective
immediately enjoining the respondent Ombudsman from
resolving or deciding the criminal cases pending
investigation in his office against petitioner, Joseph E.
Estrada and subject of the cases at bar, it appearing from
news reports that the respondent Ombudsman may
immediately resolve the cases against petitioner Joseph E.
Estrada seven (7) days after the hearing held on February
15, 2001, which action will make the cases at bar moot and
academic."53
The parties filed their replies on February 24. On this date, the cases
at bar were deemed submitted for decision.
The bedrock issues for resolution of this Court are:
I
Whether the petitions present a justiciable controversy.
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II
Assuming that the petitions present a justiciable
controversy, whether petitioner Estrada is a President on
leave while respondent Arroyo is an Acting President.
III
Whether conviction in the impeachment proceedings is a
condition precedent for the criminal prosecution of
petitioner Estrada. In the negative and on the assumption
that petitioner is still President, whether he is immune
from criminal prosecution.
IV
Whether the prosecution of petitioner Estrada should be
enjoined on the ground of prejudicial publicity.
We shall discuss the issues in seriatim.
I the proclamation of martial law or the suspension of the privilege of
Whether or not the cases
At bar involve a political question
Private respondents54 raise the threshold issue that the cases at bar
pose a political question, and hence, are beyond the jurisdiction of
this Court to decide. They contend that shorn of its embroideries,
the cases at bar assail the "legitimacy of the Arroyo administration."
They stress that respondent Arroyo ascended the presidency
through people power; that she has already taken her oath as the
14th President of the Republic; that she has exercised the powers of
the presidency and that she has been recognized by foreign
governments. They submit that these realities on ground constitute
the political thicket, which the Court cannot enter.
We reject private respondents' submission. To be sure, courts here
and abroad, have tried to lift the shroud on political question but its
exact latitude still splits the best of legal minds. Developed by the
courts in the 20th century, the political question doctrine which
rests on the principle of separation of powers and on prudential
considerations, continue to be refined in the mills of constitutional
law.55 In the United States, the most authoritative guidelines to
determine whether a question is political were spelled out by Mr.
Justice Brennan in the 1962 case or Baker v. Carr,56 viz:
"x x x Prominent on the surface of any case held to involve
a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate
political department or a lack of judicially discoverable and
manageable standards for resolving it, or the impossibility
of deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a
court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning
adherence to a political decision already made; or the
potentiality of embarrassment from multifarious
pronouncements by various departments on question.
Unless one of these formulations is inextricable from the
case at bar, there should be no dismissal for non
justiciability on the ground of a political question's
presence. The doctrine of which we treat is one of 'political
questions', not of 'political cases'."
In the Philippine setting, this Court has been continuously
confronted with cases calling for a firmer delineation of the inner
and outer perimeters of a political question. 57 Our leading case
is Tanada v. Cuenco,58 where this Court, through former Chief
Justice Roberto Concepcion, held that political questions refer "to
those questions which, under the Constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or
executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure."
To a great degree, the 1987 Constitution has narrowed the reach of
the political question doctrine when it expanded the power of
judicial review of this court not only to settle actual controversies
involving rights which are legally demandable and enforceable but
also to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of government.59 Heretofore, the
judiciary has focused on the "thou shalt not's" of the Constitution
directed against the exercise of its jurisdiction.60 With the new
provision, however, courts are given a greater prerogative to
determine what it can do to prevent grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of government. Clearly, the new provision did
not just grant the Court power of doing nothing. In sync and
symmetry with this intent are other provisions of the 1987
Constitution trimming the so called political thicket. Prominent of
these provisions is section 18 of Article VII which empowers this
Court in limpid language to "x x x review, in an appropriate
proceeding filed by any citizen, the sufficiency of the factual basis of
the writ (of habeas corpus) or the extension thereof x x x."
Respondents rely on the case of Lawyers League for a Better
Philippines and/or Oliver A. Lozano v. President Corazon C. Aquino,
et al.61 and related cases62 to support their thesis that since the
cases at bar involve the legitimacy of the government of
respondent Arroyo, ergo, they present a political question. A more
cerebral reading of the cited cases will show that they are
inapplicable. In the cited cases, we held that the government of
former President Aquino was the result of a successful
revolution by the sovereign people, albeit a peaceful one. No less
than the Freedom Constitution63 declared that the Aquino
government was installed through a direct exercise of the power of
the Filipino people "in defiance of the provisions of the 1973
Constitution, as amended." In is familiar learning that the legitimacy
of a government sired by a successful revolution by people power is
beyond judicial scrutiny for that government automatically orbits
out of the constitutional loop. In checkered contrast, the
government of respondent Arroyo is not revolutionary in
character. The oath that she took at the EDSA Shrine is the oath
under the 1987 Constitution.64 In her oath, she categorically swore
to preserve and defend the 1987 Constitution. Indeed, she has
stressed that she is discharging the powers of the presidency under
the authority of the 1987 Constitution.1âwphi1.nêt
In fine, the legal distinction between EDSA People Power I EDSA
People Power II is clear. EDSA I involves the exercise of the people
power of revolution which overthrew the whole government. EDSA
II is an exercise of people power of freedom of speech and freedom
of assembly to petition the government for redress of
grievances which only affected the office of the President. EDSA I is
extra constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review, but EDSA II
is intra constitutional and the resignation of the sitting President
that it caused and the succession of the Vice President as President
are subject to judicial review. EDSA I presented a political question;
EDSA II involves legal questions. A brief discourse on freedom of
speech and of the freedom of assembly to petition the government
for redress of grievance which are the cutting edge of EDSA People
Power II is not inappropriate.
Freedom of speech and the right of assembly are treasured by
Filipinos. Denial of these rights was one of the reasons of our 1898
revolution against Spain. Our national hero, Jose P. Rizal, raised the
clarion call for the recognition of freedom of the press of the
Filipinos and included it as among "the reforms sine quibus
non."65 The Malolos Constitution, which is the work of the
revolutionary Congress in 1898, provided in its Bill of Rights that
Filipinos shall not be deprived (1) of the right to freely express his
ideas or opinions, orally or in writing, through the use of the press or
other similar means; (2) of the right of association for purposes of
human life and which are not contrary to public means; and (3) of
279
the right to send petitions to the authorities, individually or
collectively." These fundamental rights were preserved when the
United States acquired jurisdiction over the Philippines. In the
Instruction to the Second Philippine Commission of April 7, 1900
issued by President McKinley, it is specifically provided "that no law
shall be passed abridging the freedom of speech or of the press or of
the rights of the people to peaceably assemble and petition the
Government for redress of grievances." The guaranty was carried
over in the Philippine Bill, the Act of Congress of July 1, 1902 and the
Jones Law, the Act of Congress of August 29, 1966.66
Thence on, the guaranty was set in stone in our 1935
Constitution,67 and the 197368 Constitution. These rights are now
safely ensconced in section 4, Article III of the 1987 Constitution, viz:
"Sec. 4. No law shall be passed abridging the freedom of
speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the
government for redress of grievances."
The indispensability of the people's freedom of speech and of
assembly to democracy is now self-evident. The reasons are well put
by Emerson: first, freedom of expression is essential as a means of
assuring individual fulfillment; second, it is an essential process for
advancing knowledge and discovering truth; third, it is essential to
provide for participation in decision-making by all members of
society; and fourth, it is a method of achieving a more adaptable and
hence, a more stable community of maintaining the precarious
balance between healthy cleavage and necessary consensus."69 In
this sense, freedom of speech and of assembly provides a
framework in which the "conflict necessary to the progress of a
society can take place without destroying the society."70 In Hague
v. Committee for Industrial Organization,71 this function of free
speech and assembly was echoed in the amicus curiae filed by the
Bill of Rights Committee of the American Bar Association which
emphasized that "the basis of the right of assembly is the
substitution of the expression of opinion and belief by talk rather
than force; and this means talk for all and by all."72 In the relatively
recent case of Subayco v. Sandiganbayan,73 this Court similar
stressed that "… it should be clear even to those with intellectual
deficits that when the sovereign people assemble to petition for
redress of grievances, all should listen. For in a democracy, it is the
people who count; those who are deaf to their grievances are
ciphers."
Needless to state, the cases at bar pose legal and not political
questions. The principal issues for resolution require the proper
interpretation of certain provisions in the 1987 Constitution, notably
section 1 of Article II,74 and section 875 of Article VII, and the
allocation of governmental powers under section 1176 of Article VII.
The issues likewise call for a ruling on the scope of presidential
immunity from suit. They also involve the correct calibration of the
right of petitioner against prejudicial publicity. As early as the 1803
case of Marbury v. Madison,77 the doctrine has been laid down that
"it is emphatically the province and duty of the judicial department
to say what the law is . . ." Thus, respondent's in vocation of the
doctrine of political question is but a foray in the dark.
II
Whether or not the petitioner
Resigned as President
We now slide to the second issue. None of the parties considered
this issue as posing a political question. Indeed, it involves a legal
question whose factual ingredient is determinable from the records
of the case and by resort to judicial notice. Petitioner denies he
resigned as President or that he suffers from a permanent disability.
Hence, he submits that the office of the President was not vacant
when respondent Arroyo took her oath as President.
The issue brings under the microscope the meaning of section 8,
Article VII of the Constitution which provides:
"Sec. 8. In case of death, permanent disability, removal
from office or resignation of the President, the Vice
President shall become the President to serve the
unexpired term. In case of death, permanent disability,
removal from office, or resignation of both the President
and Vice President, the President of the Senate or, in case
of his inability, the Speaker of the House of
Representatives, shall then act as President until the
President or Vice President shall have been elected and
qualified.
x x x."
The issue then is whether the petitioner resigned as President or
should be considered resigned as of January 20, 2001 when
respondent took her oath as the 14th President of the Public.
Resignation is not a high level legal abstraction. It is a factual
question and its elements are beyond quibble: there must be an
intent to resign and the intent must be coupled by acts of
relinquishment.78 The validity of a resignation is not government by
any formal requirement as to form. It can be oral. It can be written.
It can be express. It can be implied. As long as the resignation is
clear, it must be given legal effect.
In the cases at bar, the facts show that petitioner did not write any
formal letter of resignation before he evacuated Malacañang Palace
in the afternoon of January 20, 2001 after the oath-taking of
respondent Arroyo. Consequently, whether or not petitioner
resigned has to be determined from his act and omissions before,
during and after January 20, 2001 or by the totality of prior,
contemporaneous and posterior facts and circumstantial evidence
bearing a material relevance on the issue.
Using this totality test, we hold that petitioner resigned as
President.
To appreciate the public pressure that led to the resignation of the
petitioner, it is important to follow the succession of events after the
exposẻ of Governor Singson. The Senate Blue Ribbon Committee
investigated. The more detailed revelations of petitioner's alleged
misgovernance in the Blue Ribbon investigation spiked the hate
against him. The Articles of Impeachment filed in the House of
Representatives which initially was given a near cipher chance of
succeeding snowballed. In express speed, it gained the signatures of
115 representatives or more than 1/3 of the House of
Representatives. Soon, petitioner's powerful political allies began
deserting him. Respondent Arroyo quit as Secretary of Social
Welfare. Senate President Drilon and former Speaker Villar defected
with 47 representatives in tow. Then, his respected senior economic
advisers resigned together with his Secretary of Trade and Industry.
As the political isolation of the petitioner worsened, the people's call
for his resignation intensified. The call reached a new crescendo
when the eleven (11) members of the impeachment tribunal refused
to open the second envelope. It sent the people to paroxysms of
outrage. Before the night of January 16 was over, the EDSA Shrine
was swarming with people crying for redress of their grievance.
Their number grew exponentially. Rallies and demonstration quickly
spread to the countryside like a brush fire.
As events approached January 20, we can have an authoritative
window on the state of mind of the petitioner. The window is
provided in the "Final Days of Joseph Ejercito Estrada," the diary of
Executive Secretary Angara serialized in the Philippine Daily
Inquirer.79 The Angara Diary reveals that in the morning of January
19, petitioner's loyal advisers were worried about the swelling of the
crowd at EDSA, hence, they decided to create an ad hoc committee
to handle it. Their worry would worsen. At 1:20 p.m., petitioner
pulled Secretary Angara into his small office at the presidential
residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo
(Reyes) (Ed, this is serious. Angelo has defected.)"80 An hour later or
at 2:30 p.m., the petitioner decided to call for a snap presidential
election and stressed he would not be a candidate. The proposal
for a snap election for president in May where he would not be a
candidate is an indicium that petitioner had intended to give up
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the presidency even at that time. At 3:00 p.m., General Reyes
joined the sea of EDSA demonstrators demanding the resignation of
the petitioner and dramatically announced the AFP's withdrawal of
support from the petitioner and their pledge of support to
respondent Arroyo. The seismic shift of support left petitioner weak
as a president. According to Secretary Angara, he asked Senator
Pimentel to advise petitioner to consider the option of "dignified
exit or resignation."81 Petitioner did not disagree but listened
intently.82 The sky was falling fast on the petitioner. At 9:30 p.m.,
Senator Pimentel repeated to the petitioner the urgency of making a
graceful and dignified exit. He gave the proposal a sweetener by
saying that petitioner would be allowed to go abroad with enough
funds to support him and his family.83 Significantly, the petitioner
expressed no objection to the suggestion for a graceful and
dignified exit but said he would never leave the country. 84 At 10:00
p.m., petitioner revealed to Secretary Angara, "Ed, Angie (Reyes)
guaranteed that I would have five days to a week in the
palace."85 This is proof that petitioner had reconciled himself to the
reality that he had to resign. His mind was already concerned with
the five-day grace period he could stay in the palace. It was a
matter of time.
The pressure continued piling up. By 11:00 p.m., former President
Ramos called up Secretary Angara and requested, "Ed, magtulungan
tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful
and orderly transfer of power."86 There was no defiance to the
request. Secretary Angara readily agreed. Again, we note that at this
stage, the problem was already about a peaceful and orderly
transfer of power. The resignation of the petitioner was implied.
The first negotiation for a peaceful and orderly transfer of power
immediately started at 12:20 a.m. of January 20, that fateful
Saturday. The negotiation was limited to three (3) points: (1) the
transition period of five days after the petitioner's resignation; (2)
the guarantee of the safety of the petitioner and his family, and (3)
the agreement to open the second envelope to vindicate the name
of the petitioner.87 Again, we note that the resignation of petitioner
was not a disputed point. The petitioner cannot feign ignorance of
this fact. According to Secretary Angara, at 2:30 a.m., he briefed the
petitioner on the three points and the following entry in the Angara
Diary shows the reaction of the petitioner, viz:
"x x x
I explain what happened during the first round of
negotiations. The President immediately stresses that he
just wants the five-day period promised by Reyes, as well
as to open the second envelope to clear his name.
If the envelope is opened, on Monday, he says, he will
leave by Monday.
The President says. "Pagod na pagod na ako. Ayoko na
masyado nang masakit. Pagod na ako sa red tape,
bureaucracy, intriga. (I am very tired. I don't want any
more of this – it's too painful. I'm tired of the red tape,
the bureaucracy, the intrigue.)
I just want to clear my name, then I will go."88
Again, this is high grade evidence that the petitioner has
resigned. The intent to resign is clear when he said "x x x Ayoko
na masyado nang masakit." "Ayoko na" are words of resignation.
The second round of negotiation resumed at 7:30 a.m. According to
the Angara Diary, the following happened:
"Opposition's deal
7:30 a.m. – Rene arrives with Bert Romulo and (Ms.
Macapagal's spokesperson) Rene Corona. For this round, I
am accompanied by Dondon Bagatsing and Macel.
Rene pulls out a document titled "Negotiating Points." It
reads:
'1. The President shall sign a resignation document within
the day, 20 January 2001, that will be effective on
Wednesday, 24 January 2001, on which day the Vice
President will assume the Presidency of the Republic of the
Philippines.
2. Beginning to day, 20 January 2001, the transition
process for the assumption of the new administration shall
commence, and persons designated by the Vice President
to various positions and offices of the government shall
start their orientation activities in coordination with the
incumbent officials concerned.
3. The Armed Forces of the Philippines and the Philippine
National Police shall function under the Vice President as
national military and police authority effective
immediately.
4. The Armed Forced of the Philippines, through its Chief
of Staff, shall guarantee the security of the President and
his family as approved by the national military and police
authority (Vice President).
5. It is to be noted that the Senate will open the second
envelope in connection with the alleged savings account of
the President in the Equitable PCI Bank in accordance with
the rules of the Senate, pursuant to the request to the
Senate President.
Our deal
We bring out, too, our discussion draft which reads:
The undersigned parties, for and in behalf of their
respective principals, agree and undertake as follows:
'1. A transition will occur and take place on Wednesday, 24
January 2001, at which time President Joseph Ejercito
Estrada will turn over the presidency to Vice President
Gloria Macapagal-Arroyo.
'2. In return, President Estrada and his families are
guaranteed security and safety of their person and
property throughout their natural lifetimes. Likewise,
President Estrada and his families are guarantee freedom
from persecution or retaliation from government and the
private sector throughout their natural lifetimes.
This commitment shall be guaranteed by the Armed Forces
of the Philippines (AFP) through the Chief of Staff, as
approved by the national military and police authorities –
Vice President (Macapagal).
'3. Both parties shall endeavor to ensure that the Senate
sitting as an impeachment court will authorize the opening
of the second envelope in the impeachment trial as proof
that the subject savings account does not belong to
President Estrada.
'4. During the five-day transition period between 20
January 2001 and 24 January 2001 (the 'Transition
Period"), the incoming Cabinet members shall receive an
appropriate briefing from the outgoing Cabinet officials as
part of the orientation program.
During the Transition Period, the AFP and the Philippine
National Police (PNP) shall function Vice President
(Macapagal) as national military and police authorities.
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 Both parties hereto agree that the AFP chief of staff and
PNP director general shall obtain all the necessary
signatures as affixed to this agreement and insure faithful
implementation and observance thereof.
Vice President Gloria Macapagal-Arroyo shall issue a public
statement in the form and tenor provided for in "Annex A"
heretofore attached to this agreement."89
The second round of negotiation cements the reading that the
petitioner has resigned. It will be noted that during this second
round of negotiation, the resignation of the petitioner was again
treated as a given fact. The only unsettled points at that time were
the measures to be undertaken by the parties during and after the
transition period.
According to Secretary Angara, the draft agreement, which was
premised on the resignation of the petitioner was further refined. It
was then, signed by their side and he was ready to fax it to General
Reyes and Senator Pimentel to await the signature of the United
Opposition. However, the signing by the party of the respondent
Arroyo was aborted by her oath-taking. The Angara diary narrates
the fateful events, viz;90
"xxx
11:00 a.m. – Between General Reyes and myself, there is a
firm agreement on the five points to effect a peaceful
transition. I can hear the general clearing all these points
with a group he is with. I hear voices in the background.
Agreement.
The agreement starts: 1. The President shall resign today,
20 January 2001, which resignation shall be effective on 24
January 2001, on which day the Vice President will assume
the presidency of the Republic of the Philippines.
xxx
The rest of the agreement follows:
2. The transition process for the assumption of the new
administration shall commence on 20 January 2001,
wherein persons designated by the Vice President to
various government positions shall start orientation
activities with incumbent officials.
'3. The Armed Forces of the Philippines through its Chief of
Staff, shall guarantee the safety and security of the
President and his families throughout their natural
lifetimes as approved by the national military and police
authority – Vice President.
'4. The AFP and the Philippine National Police (PNP) shall
function under the Vice President as national military and
police authorities.
'5. Both parties request the impeachment court to open
the second envelope in the impeachment trial, the
contents of which shall be offered as proof that the subject
savings account does not belong to the President.
The Vice President shall issue a public statement in the
form and tenor provided for in Annex "B" heretofore
attached to this agreement.
11:20 a.m. – I am all set to fax General Reyes and Nene
Pimentel our agreement, signed by our side and awaiting
the signature of the United opposition.
And then it happens. General Reyes calls me to say that
the Supreme Court has decided that Gloria Macapagal-
Arroyo is President and will be sworn in at 12 noon.
'Bakit hindi naman kayo nakahintay? Paano na ang
agreement (why couldn't you wait? What about the
agreement)?' I asked.
Reyes answered: 'Wala na, sir (it's over, sir).'
I ask him: Di yung transition period, moot and academic
na?'
And General Reyes answers: ' Oo nga, I delete na natin, sir
(yes, we're deleting the part).'
Contrary to subsequent reports, I do not react and say that
there was a double cross.
But I immediately instruct Macel to delete the first
provision on resignation since this matter is already moot
and academic. Within moments, Macel erases the first
provision and faxes the documents, which have been
signed by myself, Dondon and Macel, to Nene Pimentel
and General Reyes.
I direct Demaree Ravel to rush the original document to
General Reyes for the signatures of the other side, as it is
important that the provisions on security, at least, should
be respected.
I then advise the President that the Supreme Court has
ruled that Chief Justice Davide will administer the oath to
Gloria at 12 noon.
The President is too stunned for words:
Final meal
12 noon – Gloria takes her oath as president of the
Republic of the Philippines.
12:20 p.m. – The PSG distributes firearms to some people
inside the compound.
The president is having his final meal at the presidential
Residence with the few friends and Cabinet members who
have gathered.
By this time, demonstrators have already broken down the
first line of defense at Mendiola. Only the PSG is there to
protect the Palace, since the police and military have
already withdrawn their support for the President.
1 p.m. – The President's personal staff is rushing to pack as
many of the Estrada family's personal possessions as they
can.
During lunch, Ronnie Puno mentions that the president
needs to release a final statement before leaving
Malacañang.
The statement reads: At twelve o'clock noon today, Vice
President Gloria Macapagal-Arroyo took her oath as
President of the Republic of the Philippines. While along
with many other legal minds of our country, I have strong
and serious doubts about the legality and constitutionality
of her proclamation as President, I do not wish to be a
factor that will prevent the restoration of unity and order
in our civil society.
282
 It is for this reason that I now leave Malacañang Palace,
the seat of the presidency of this country, for the sake of
peace and in order to begin the healing process of our
nation. I leave the Palace of our people with gratitude for
the opportunities given to me for service to our people. I
will not shirk from any future challenges that may come
ahead in the same service of our country.
I call on all my supporters and followers to join me in the
promotion of a constructive national spirit of reconciliation
and solidarity.
May the Almighty bless our country and our beloved
people.
MABUHAY!"'
It was curtain time for the petitioner.
In sum, we hold that the resignation of the petitioner cannot be
doubted. It was confirmed by his leaving Malacañang. In the press
release containing his final statement, (1) he acknowledged the
oath-taking of the respondent as President of the Republic albeit
with reservation about its legality; (2) he emphasized he was leaving
the Palace, the seat of the presidency, for the sake of peace and in
order to begin the healing process of our nation. He did not say he
was leaving the Palace due to any kind inability and that he was
going to re-assume the presidency as soon as the disability
disappears: (3) he expressed his gratitude to the people for the
opportunity to serve them. Without doubt, he was referring to the
past opportunity given him to serve the people as President (4) he
assured that he will not shirk from any future challenge that may
come ahead in the same service of our country. Petitioner's
reference is to a future challenge after occupying the office of the
president which he has given up; and (5) he called on his supporters
to join him in the promotion of a constructive national spirit of
reconciliation and solidarity. Certainly, the national spirit of
reconciliation and solidarity could not be attained if he did not give
up the presidency. The press release was petitioner's valedictory, his
final act of farewell. His presidency is now in the part tense.
It is, however, urged that the petitioner did not resign but only took
a temporary leave dated January 20, 2001 of the petitioner sent to
Senate President Pimentel and Speaker Fuentebella is cited. Again,
we refer to the said letter, viz:
"Sir.
By virtue of the provisions of Section II, Article VII of the
Constitution, I am hereby transmitting this declaration that
I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice
President shall be the Acting president.
(Sgd.) Joseph Ejercito Estrada"
To say the least, the above letter is wrapped in mystery. 91 The
pleadings filed by the petitioner in the cases at bar did not discuss,
may even intimate, the circumstances that led to its preparation.
Neither did the counsel of the petitioner reveal to the Court these
circumstances during the oral argument. It strikes the Court as
strange that the letter, despite its legal value, was never referred to
by the petitioner during the week-long crisis. To be sure, there was
not the slightest hint of its existence when he issued his final press
release. It was all too easy for him to tell the Filipino people in his
press release that he was temporarily unable to govern and that he
was leaving the reins of government to respondent Arroyo for the
time bearing. Under any circumstance, however, the mysterious
letter cannot negate the resignation of the petitioner. If it was
prepared before the press release of the petitioner clearly as a later
act. If, however, it was prepared after the press released, still, it
commands scant legal significance. Petitioner's resignation from the
presidency cannot be the subject of a changing caprice nor of a
whimsical will especially if the resignation is the result of his
reputation by the people. There is another reason why this Court
cannot given any legal significance to petitioner's letter and this shall
be discussed in issue number III of this Decision.
After petitioner contended that as a matter of fact he did not resign,
he also argues that he could not resign as a matter of law. He relies
on section 12 of RA No. 3019, otherwise known as the Anti-graft and
Corrupt Practices Act, which allegedly prohibits his resignation, viz:
"Sec. 12. No public officer shall be allowed to resign or
retire pending an investigation, criminals or administrative,
or pending a prosecution against him, for any offense
under this Act or under the provisions of the Revised Penal
Code on bribery."
A reading of the legislative history of RA No. 3019 will hardly provide
any comfort to the petitioner. RA No. 3019 originated form Senate
Bill No. 293. The original draft of the bill, when it was submitted to
the Senate, did not contain a provision similar to section 12 of the
law as it now stands. However, in his sponsorship speech, Senator
Arturo Tolentino, the author of the bill, "reserved to propose during
the period of amendments the inclusion of a provision to the effect
that no public official who is under prosecution for any act of graft
or corruption, or is under administrative investigation, shall be
allowed to voluntarily resign or retire."92 During the period of
amendments, the following provision was inserted as section 15:
"Sec. 15. Termination of office – No public official shall be
allowed to resign or retire pending an investigation,
criminal or administrative, or pending a prosecution
against him, for any offense under the Act or under the
provisions of the Revised Penal Code on bribery.
The separation or cessation of a public official form office
shall not be a bar to his prosecution under this Act for an
offense committed during his incumbency."93
The bill was vetoed by then President Carlos P. Garcia who
questioned the legality of the second paragraph of the provision and
insisted that the President's immunity should extend after his
tenure.
Senate Bill No. 571, which was substantially similar Senate Bill No.
293, was thereafter passed. Section 15 above became section 13
under the new bill, but the deliberations on this particular provision
mainly focused on the immunity of the President, which was one of
the reasons for the veto of the original bill. There was hardly any
debate on the prohibition against the resignation or retirement of a
public official with pending criminal and administrative cases against
him. Be that as it may, the intent of the law ought to be obvious. It is
to prevent the act of resignation or retirement from being used by a
public official as a protective shield to stop the investigation of a
pending criminal or administrative case against him and to prevent
his prosecution under the Anti-Graft Law or prosecution for bribery
under the Revised Penal Code. To be sure, no person can be
compelled to render service for that would be a violation of his
constitutional right.94 A public official has the right not to serve if he
really wants to retire or resign. Nevertheless, if at the time he
resigns or retires, a public official is facing administrative or criminal
investigation or prosecution, such resignation or retirement will not
cause the dismissal of the criminal or administrative proceedings
against him. He cannot use his resignation or retirement to avoid
prosecution.
There is another reason why petitioner's contention should be
rejected. In the cases at bar, the records show that when petitioner
resigned on January 20, 2001, the cases filed against him before the
Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756,
0-00-1757 and 0-00-1758. While these cases have been filed, the
respondent Ombudsman refrained from conducting the preliminary
investigation of the petitioner for the reason that as the sitting
President then, petitioner was immune from suit. Technically, the
said cases cannot be considered as pending for the Ombudsman
lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot
283
therefore be invoked by the petitioner for it contemplates of cases
whose investigation or prosecution do not suffer from any
insuperable legal obstacle like the immunity from suit of a sitting
President.
Petitioner contends that the impeachment proceeding is an
administrative investigation that, under section 12 of RA 3019, bars
him from resigning. We hold otherwise. The exact nature of an
impeachment proceeding is debatable. But even
assuming arguendo that it is an administrative proceeding, it can not
be considered pending at the time petitioner resigned because the
process already broke down when a majority of the senator-judges
voted against the opening of the second envelope, the public and
private prosecutors walked out, the public prosecutors filed their
Manifestation of Withdrawal of Appearance, and the proceedings
were postponed indefinitely. There was, in effect, no impeachment
case pending against petitioner when he resigned.
III
Whether or not the petitioner Is only temporarily unable to Act as
President.
We shall now tackle the contention of the petitioner that he is
merely temporarily unable to perform the powers and duties of the
presidency, and hence is a President on leave. As aforestated, the
inability claim is contained in the January 20, 2001 letter of
petitioner sent on the same day to Senate President Pimentel and
Speaker Fuentebella.
Petitioner postulates that respondent Arroyo as Vice President has
no power to adjudge the inability of the petitioner to discharge the
powers and duties of the presidency. His significant submittal is that
"Congress has the ultimate authority under the Constitution to
determine whether the President is incapable of performing his
functions in the manner provided for in section 11 of article
VII."95 This contention is the centerpiece of petitioner's stance that
he is a President on leave and respondent Arroyo is only an Acting
President.
An examination of section 11, Article VII is in order. It provides:
"SEC. 11. Whenever the President transmits to the
President of the Senate and the Speaker of the House of
Representatives his written declaration that he is unable
to discharge the powers and duties of his office, and until
he transmits to them a written declaration to the contrary,
such powers and duties shall be discharged by the Vice-
President as Acting President.
Whenever a majority of all the Members of the Cabinet
transmit to the President of the Senate and to the Speaker
of the House of Representatives their written declaration
that the President is unable to discharge the powers and
duties of his office, the Vice-President shall immediately
assume the powers and duties of the office as Acting
President.
Thereafter, when the President transmits to the President
of the Senate and to the Speaker of the House of
Representatives his written declaration that no inability
exists, he shall reassume the powers and duties of his
office. Meanwhile, should a majority of all the Members of
the Cabinet transmit within five days to the President of
the Senate and to the Speaker of the House of
Representatives their written declaration that the
President is unable to discharge the powers and duties of
his office, the Congress shall decide the issue. For that
purpose, the Congress shall convene, if it is not in session,
within forty-eight hours, in accordance with its rules and
without need of call.
If the Congress, within ten days after receipt of the last
written declaration, or, if not in session, within twelve days
after it is required to assemble, determines by a two-thirds
vote of both Houses, voting separately, that the President
is unable to discharge the powers and duties of his office,
the Vice-President shall act as President; otherwise, the
President shall continue exercising the powers and duties
of his office."
That is the law. Now, the operative facts:
1. Petitioner, on January 20, 2001, sent the above
letter claiming inability to the Senate President
and Speaker of the House;
2. Unaware of the letter, respondent Arroyo took
her oath of office as President on January 20,
2001 at about 12:30 p.m.;
3. Despite receipt of the letter, the House of
Representatives passed on January 24, 2001
House Resolution No. 175;96
On the same date, the House of the Representatives passed House
Resolution No. 17697 which states:
"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE
OF REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE
BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES,
EXTENDING ITS CONGRATULATIONS AND EXPRESSING ITS
SUPPORT FOR HER ADMINISTRATION AS A PARTNER IN
THE ATTAINMENT OF THE NATION'S GOALS UNDER THE
CONSTITUTION
WHEREAS, as a consequence of the people's loss of
confidence on the ability of former President Joseph
Ejercito Estrada to effectively govern, the Armed Forces of
the Philippines, the Philippine National Police and majority
of his cabinet had withdrawn support from him;
WHEREAS, upon authority of an en banc resolution of the
Supreme Court, Vice President Gloria Macapagal-Arroyo
was sworn in as President of the Philippines on 20 January
2001 before Chief Justice Hilario G. Davide, Jr.;
WHEREAS, immediately thereafter, members of the
international community had extended their recognition
to Her Excellency, Gloria Macapagal-Arroyo as President of
the Republic of the Philippines;
WHEREAS, Her Excellency, President Gloria Macapagal-
Arroyo has espoused a policy of national healing and
reconciliation with justice for the purpose of national unity
and development;
WHEREAS, it is axiomatic that the obligations of the
government cannot be achieved if it is divided, thus by
reason of the constitutional duty of the House of
Representatives as an institution and that of the individual
members thereof of fealty to the supreme will of the
people, the House of Representatives must ensure to the
people a stable, continuing government and therefore
must remove all obstacles to the attainment thereof;
WHEREAS, it is a concomitant duty of the House of
Representatives to exert all efforts to unify the nation, to
eliminate fractious tension, to heal social and political
wounds, and to be an instrument of national reconciliation
and solidarity as it is a direct representative of the various
segments of the whole nation;
WHEREAS, without surrending its independence, it is vital
for the attainment of all the foregoing, for the House of
Representatives to extend its support and collaboration to
the administration of Her Excellency, President Gloria
Macapagal-Arroyo, and to be a constructive partner in
284
 nation-building, the national interest demanding no less:
Now, therefore, be it
Resolved by the House of Representatives, To express its
support to the assumption into office by Vice President
Gloria Macapagal-Arroyo as President of the Republic of
the Philippines, to extend its congratulations and to
express its support for her administration as a partner in
the attainment of the Nation's goals under the
Constitution.
Adopted,
(Sgd.) FELICIANO BELMONTE JR. Speaker
This Resolution was adopted by the House of
Representatives on January 24, 2001.
(Sgd.) ROBERTO P. NAZARENO Secretary General"
On February 7, 2001, the House of the Representatives
passed House Resolution No. 17898 which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA
MACAPAGAL-ARROYO'S NOMINATION OF SENATOR
TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES
WHEREAS, there is a vacancy in the Office of the Vice
President due to the assumption to the Presidency of Vice
President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9, Article VII of the
Constitution, the President in the event of such vacancy
shall nominate a Vice President from among the members
of the Senate and the House of Representatives who shall
assume office upon confirmation by a majority vote of all
members of both Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-
Arroyo has nominated Senate Minority Leader Teofisto T.
Guingona Jr., to the position of Vice President of the
Republic of the Philippines;
WHEREAS, Senator Teofisto T. Guingona Jr., is a public
servant endowed with integrity, competence and courage;
who has served the Filipino people with dedicated
responsibility and patriotism;
WHEREAS, Senator Teofisto T. Guingona, Jr. possesses
sterling qualities of true statesmanship, having served the
government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of
the Commission on Audit, Executive Secretary, Secretary of
Justice, Senator of the Philippines – qualities which merit
his nomination to the position of Vice President of the
Republic: Now, therefore, be it
Resolved as it is hereby resolved by the House of
Representatives, That the House of Representatives
confirms the nomination of Senator Teofisto T. Guingona,
Jr. as the Vice President of the Republic of the Philippines.
Adopted,
(Sgd.) FELICIANO BELMONTE JR. Speaker
This Resolution was adopted by the House of
Representatives on February 7, 2001.
(Sgd.) ROBERTO P. NAZARENO Secretary General"
(4) Also, despite receipt of petitioner's letter claiming
inability, some twelve (12) members of the Senate signed
the following:
"RESOLUTION
WHEREAS, the recent transition in government offers the
nation an opportunity for meaningful change and
challenge;
WHEREAS, to attain desired changes and overcome
awesome challenges the nation needs unity of purpose
and resolve cohesive resolute (sic) will;
WHEREAS, the Senate of the Philippines has been the
forum for vital legislative measures in unity despite
diversities in perspectives;
WHEREFORE, we recognize and express support to the
new government of President Gloria Macapagal-Arroyo
and resolve to discharge and overcome the nation's
challenges." 99
On February 7, the Senate also passed Senate Resolution
No. 82100 which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA
MACAPAGAL ARROYO'S NOMINATION OF SEM. TEOFISTO
T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF
THE PHILIPPINES
WHEREAS, there is vacancy in the Office of the Vice
President due to the assumption to the Presidency of Vice
President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9 Article VII of the
Constitution, the President in the event of such vacancy
shall nominate a Vice President from among the members
of the Senate and the House of Representatives who shall
assume office upon confirmation by a majority vote of all
members of both Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-
Arroyo has nominated Senate Minority Leader Teofisto T.
Guingona, Jr. to the position of Vice President of the
Republic of the Philippines;
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant
endowed with integrity, competence and courage; who
has served the Filipino people with dedicated
responsibility and patriotism;
WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling
qualities of true statemanship, having served the
government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of
the Commission on Audit, Executive Secretary, Secretary of
Justice, Senator of the land - which qualities merit his
nomination to the position of Vice President of the
Republic: Now, therefore, be it
Resolved, as it is hereby resolved, That the Senate confirm
the nomination of Sen. Teofisto T. Guingona, Jr. as Vice
President of the Republic of the Philippines.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL JR. President of the Senate
This Resolution was adopted by the Senate on February 7,
2001.
285
 (Sgd.) LUTGARDO B. BARBO Secretary of the Senate"
On the same date, February 7, the Senate likewise
passed Senate Resolution No. 83101 which states:
"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT
COURT IS FUNCTUS OFFICIO
Resolved, as it is hereby resolved. That the Senate
recognize that the Impeachment Court is functus
officio and has been terminated.
Resolved, further, That the Journals of the Impeachment
Court on Monday, January 15, Tuesday, January 16 and
Wednesday, January 17, 2001 be considered approved.
Resolved, further, That the records of the Impeachment
Court including the "second envelope" be transferred to
the Archives of the Senate for proper safekeeping and
preservation in accordance with the Rules of the Senate.
Disposition and retrieval thereof shall be made only upon
written approval of the Senate president.
Resolved, finally. That all parties concerned be furnished
copies of this Resolution.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL, JR. President of the Senate
This Resolution was adopted by the Senate on February 7,
2001.
(Sgd.) LUTGARDO B. BARBO Secretary of the Senate"
(5) On February 8, the Senate also passed Resolution No.
84 "certifying to the existence of vacancy in the Senate and calling
on the COMELEC to fill up such vacancy through election to be held
simultaneously with the regular election on May 14, 2001 and the
Senatorial candidate garnering the thirteenth (13th) highest number
of votes shall serve only for the unexpired term of Senator Teofisto
T. Guingona, Jr.'
(6) Both houses of Congress started sending bills to be signed into
law by respondent Arroyo as President.
(7) Despite the lapse of time and still without any functioning
Cabinet, without any recognition from any sector of government,
and without any support from the Armed Forces of the Philippines
and the Philippine National Police, the petitioner continues to claim
that his inability to govern is only momentary.
What leaps to the eye from these irrefutable facts is that both
houses of Congress have recognized respondent Arroyo as the
President. Implicitly clear in that recognition is the premise that
the inability of petitioner Estrada. Is no longer temporary. Congress
has clearly rejected petitioner's claim of inability.
The question is whether this Court has jurisdiction to review the
claim of temporary inability of petitioner Estrada and
thereafter revise the decision of both Houses of
Congress recognizing respondent Arroyo as president of the
Philippines. Following Tañada v. Cuenco,102 we hold that this Court
cannot exercise its judicial power or this is an issue "in regard to
which full discretionary authority has been delegated to the
Legislative xxx branch of the government." Or to use the language
in Baker vs. Carr,103 there is a "textually demonstrable or a lack of
judicially discoverable and manageable standards for resolving it."
Clearly, the Court cannot pass upon petitioner's claim of inability to
discharge the power and duties of the presidency. The question is
political in nature and addressed solely to Congress by
constitutional fiat. It is a political issue, which cannot be decided by
this Court without transgressing the principle of separation of
powers.
In fine, even if the petitioner can prove that he did not resign, still,
he cannot successfully claim that he is a President on leave on the
ground that he is merely unable to govern temporarily. That claim
has been laid to rest by Congress and the decision that respondent
Arroyo is the de jure, president made by a co-equal branch of
government cannot be reviewed by this Court.
IV
Whether or not the petitioner enjoys immunity from suit.
Assuming he enjoys immunity, the extent of the immunity
Petitioner Estrada makes two submissions: first, the cases filed
against him before the respondent Ombudsman should be
prohibited because he has not been convicted in the impeachment
proceedings against him; and second, he
enjoys immunity from all kinds of suit, whether criminal or civil.
Before resolving petitioner's contentions, a revisit of our legal
history executive immunity will be most enlightening. The doctrine
of executive immunity in this jurisdiction emerged as a case law. In
the 1910 case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the
respondent Tiaco, a Chinese citizen, sued petitioner W. Cameron
Forbes, Governor-General of the Philippine Islands. J.E. Harding and
C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the
City of Manila, respectively, for damages for allegedly conspiring to
deport him to China. In granting a writ of prohibition, this Court,
speaking thru Mr. Justice Johnson, held:
" The principle of nonliability, as herein enunciated, does
not mean that the judiciary has no authority to touch the
acts of the Governor-General; that he may, under cover of
his office, do what he will, unimpeded and unrestrained.
Such a construction would mean that tyranny, under the
guise of the execution of the law, could walk defiantly
abroad, destroying rights of person and of property,
wholly free from interference of courts or legislatures. This
does not mean, either that a person injured by the
executive authority by an act unjustifiable under the law
has n remedy, but must submit in silence. On the contrary,
it means, simply, that the governors-general, like the
judges if the courts and the members of the Legislature,
may not be personally mulcted in civil damages for the
consequences of an act executed in the performance of his
official duties. The judiciary has full power to, and will,
when the mater is properly presented to it and the
occasion justly warrants it, declare an act of the Governor-
General illegal and void and place as nearly as possible in
status quo any person who has been deprived his liberty or
his property by such act. This remedy is assured to every
person, however humble or of whatever country, when his
personal or property rights have been invaded, even by
the highest authority of the state. The thing which the
judiciary can not do is mulct the Governor-General
personally in damages which result from the performance
of his official duty, any more than it can a member of the
Philippine Commission of the Philippine Assembly. Public
policy forbids it.
Neither does this principle of nonliability mean that the
chief executive may not be personally sued at all in
relation to acts which he claims to perform as such official.
On the contrary, it clearly appears from the discussion
heretofore had, particularly that portion which touched
the liability of judges and drew an analogy between such
liability and that of the Governor-General, that the latter is
liable when he acts in a case so plainly outside of his
power and authority that he can not be said to have
exercised discretion in determining whether or not he had
the right to act. What is held here is that he will be
286
 protected from personal liability for damages not only
when he acts within his authority, but also when he is
without authority, provided he actually used discretion
and judgement, that is, the judicial faculty, in determining
whether he had authority to act or not. In other words, in
determining the question of his authority. If he decide
wrongly, he is still protected provided the question of his
authority was one over which two men, reasonably
qualified for that position, might honestly differ; but he s
not protected if the lack of authority to act is so plain that
two such men could not honestly differ over its
determination. In such case, be acts, not as Governor-
General but as a private individual, and as such must
answer for the consequences of his act."
Mr. Justice Johnson underscored the consequences if the Chief
Executive was not granted immunity from suit, viz "xxx. Action upon
important matters of state delayed; the time and substance of the
chief executive spent in wrangling litigation; disrespect engendered
for the person of one of the highest officials of the state and for the
office he occupies; a tendency to unrest and disorder resulting in a
way, in distrust as to the integrity of government itself."105
Our 1935 Constitution took effect but it did not contain any specific
provision on executive immunity. Then came the tumult of the
martial law years under the late President Ferdinand E. Marcos and
the 1973 Constitution was born. In 1981, it was amended and one of
the amendments involved executive immunity. Section 17, Article VII
stated:
"The President shall be immune from suit during his
tenure. Thereafter, no suit whatsoever shall lie for official
acts done by him or by others pursuant to his specific
orders during his tenure.
The immunities herein provided shall apply to the
incumbent President referred to in Article XVII of this
Constitution.
In his second Vicente G. Sinco professional Chair lecture entitled,
"Presidential Immunity and All The King's Men: The Law of Privilege
As a Defense To Actions For Damages,"106 petitioner's learned
counsel, former Dean of the UP College of Law, Atty. Pacificao
Agabin, brightened the modifications effected by this constitutional
amendment on the existing law on executive privilege. To quote his
disquisition:
"In the Philippines, though, we sought to do the Americans
one better by enlarging and fortifying the absolute
immunity concept. First, we extended it to shield the
President not only form civil claims but also from criminal
cases and other claims. Second, we enlarged its scope so
that it would cover even acts of the President outside the
scope of official duties. And third, we broadened its
coverage so as to include not only the President but also
other persons, be they government officials or private
individuals, who acted upon orders of the President. It can
be said that at that point most of us were suffering from
AIDS (or absolute immunity defense syndrome)."
The Opposition in the then Batasan Pambansa sought the repeal of
this Marcosian concept of executive immunity in the 1973
Constitution. The move was led by them Member of Parliament,
now Secretary of Finance, Alberto Romulo, who argued that the
after incumbency immunity granted to President Marcos violated
the principle that a public office is a public trust. He denounced the
immunity as a return to the anachronism "the king can do no
wrong."107 The effort failed.
The 1973 Constitution ceased to exist when President Marcos was
ousted from office by the People Power revolution in 1986. When
the 1987 Constitution was crafted, its framers did not reenact the
executive immunity provision of the 1973 Constitution. The
following explanation was given by delegate J. Bernas vis:108
"Mr. Suarez. Thank you.
The last question is with reference to the Committee's
omitting in the draft proposal the immunity provision for
the President. I agree with Commissioner Nolledo that the
Committee did very well in striking out second sentence,
at the very least, of the original provision on immunity
from suit under the 1973 Constitution. But would the
Committee members not agree to a restoration of at least
the first sentence that the President shall be immune from
suit during his tenure, considering that if we do not
provide him that kind of an immunity, he might be
spending all his time facing litigation's, as the President-in-
exile in Hawaii is now facing litigation's almost daily?
Fr. Bernas. The reason for the omission is that we consider
it understood in present jurisprudence that during his
tenure he is immune from suit.
Mr. Suarez. So there is no need to express it here.
Fr. Bernas. There is no need. It was that way before. The
only innovation made by the 1973 Constitution was to
make that explicit and to add other things.
Mr. Suarez. On that understanding, I will not press for any
more query, Madam President.
I think the Commissioner for the clarifications."
We shall now rule on the contentions of petitioner in the light of this
history. We reject his argument that he cannot be prosecuted for
the reason that he must first be convicted in the impeachment
proceedings. The impeachment trial of petitioner Estrada was
aborted by the walkout of the prosecutors and by the events that
led to his loss of the presidency. Indeed, on February 7, 2001, the
Senate passed Senate Resolution No. 83 "Recognizing that the
Impeachment Court is Functus Officio."109 Since, the Impeachment
Court is now functus officio, it is untenable for petitioner to demand
that he should first be impeached and then convicted before he can
be prosecuted. The plea if granted, would put a perpetual bar
against his prosecution. Such a submission has nothing to commend
itself for it will place him in a better situation than a non-sitting
President who has not been subjected to impeachment proceedings
and yet can be the object of a criminal prosecution. To be sure, the
debates in the Constitutional Commission make it clear that when
impeachment proceedings have become moot due to the
resignation of the President, the proper criminal and civil cases may
already be filed against him, viz:110
"xxx
Mr. Aquino. On another point, if an impeachment
proceeding has been filed against the President, for
example, and the President resigns before judgement of
conviction has been rendered by the impeachment court
or by the body, how does it affect the impeachment
proceeding? Will it be necessarily dropped?
Mr. Romulo. If we decide the purpose of impeachment to
remove one from office, then his resignation would render
the case moot and academic. However, as the provision
says, the criminal and civil aspects of it may continue in the
ordinary courts."
This is in accord with our ruling In Re: Saturnino Bermudez 111 that
'incumbent Presidents are immune from suit or from being brought
to court during the period of their incumbency and tenure" but not
beyond. Considering the peculiar circumstance that the
impeachment process against the petitioner has been aborted and
thereafter he lost the presidency, petitioner Estrada cannot demand
as a condition sine qua non to his criminal prosecution before the
Ombudsman that he be convicted in the impeachment proceedings.
287
His reliance on the case of Lecaroz vs. Sandiganbayan112 and related
cases113 are inapropos for they have a different factual milieu.
We now come to the scope of immunity that can be claimed by
petitioner as a non-sitting President. The cases filed against
petitioner Estrada are criminal in character. They involve plunder,
bribery and graft and corruption. By no stretch of the imagination
can these crimes, especially plunder which carries the death penalty,
be covered by the alleged mantle of immunity of a non-sitting
president. Petitioner cannot cite any decision of this Court licensing
the President to commit criminal acts and wrapping him with post-
tenure immunity from liability. It will be anomalous to hold that
immunity is an inoculation from liability for unlawful acts and
conditions. The rule is that unlawful acts of public officials are not
acts of the State and the officer who acts illegally is not acting as
such but stands in the same footing as any trespasser.114
Indeed, critical reading of current literature on executive immunity
will reveal a judicial disinclination to expand the privilege especially
when it impedes the search for truth or impairs the vindication of a
right. In the 1974 case of US v. Nixon,115 US President Richard Nixon,
a sitting President, was subpoenaed to produce certain recordings
and documents relating to his conversations with aids and advisers.
Seven advisers of President Nixon's associates were facing charges
of conspiracy to obstruct Justice and other offenses, which were
committed in a burglary of the Democratic National Headquarters in
Washington's Watergate Hotel during the 972 presidential
campaign. President Nixon himself was named an unindicted co-
conspirator. President Nixon moved to quash the subpoena on the
ground, among others, that the President was not subject to judicial
process and that he should first be impeached and removed from
office before he could be made amenable to judicial proceedings.
The claim was rejected by the US Supreme Court. It concluded that
"when the ground for asserting privilege as to subpoenaed materials
sought for use in a criminal trial is based only on the generalized
interest in confidentiality, it cannot prevail over the fundamental
demands of due process of law in the fair administration of criminal
justice." In the 1982 case of Nixon v. Fitzgerald,116 the US Supreme
Court further held that the immunity of the president from civil
damages covers only "official acts." Recently, the US Supreme Court
had the occasion to reiterate this doctrine in the case of Clinton v.
Jones117 where it held that the US President's immunity from suits
for money damages arising out of their official acts is inapplicable to
unofficial conduct.
There are more reasons not to be sympathetic to appeals to stretch
the scope of executive immunity in our jurisdiction. One of the great
themes of the 1987 Constitution is that a public office is a public
trust.118 It declared as a state policy that "the State shall maintain
honesty and integrity in the public service and take positive and
effective measures against graft and corruptio."119 it ordained that
"public officers and employees must at all times be accountable to
the people, serve them with utmost responsibility, integrity, loyalty,
and efficiency act with patriotism and justice, and lead modest
lives."120 It set the rule that 'the right of the State to recover
properties unlawfully acquired by public officials or employees, from
them or from their nominees or transferees, shall not be barred by
prescription, latches or estoppel."121 It maintained the
Sandiganbayan as an anti-graft court.122 It created the office of the
Ombudsman and endowed it with enormous powers, among which
is 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."123 The Office of the Ombudsman was also given fiscal
autonomy.124 These constitutional policies will be devalued if we
sustain petitioner's claim that a non-sitting president enjoys
immunity from suit for criminal acts committed during his
incumbency.
V of publicity. In the case at a bar, the records do not show
Whether or not the prosecution of petitioner
Estrada should be enjoined due to prejudicial publicity
Petitioner also contends that the respondent Ombudsman should be
stopped from conducting the investigation of the cases filed against
him due to the barrage of prejudicial publicity on his guilt. He
submits that the respondent Ombudsman has developed bias and is
all set file the criminal cases violation of his right to due process.
There are two (2) principal legal and philosophical schools of
thought on how to deal with the rain of unrestrained publicity
during the investigation and trial of high profile cases. 125 The British
approach the problem with the presumption that publicity will
prejudice a jury. Thus, English courts readily stay and stop criminal
trials when the right of an accused to fair trial suffers a threat.126 The
American approach is different. US courts assume a skeptical
approach about the potential effect of pervasive publicity on the
right of an accused to a fair trial. They have developed different
strains of tests to resolve this issue, i.e., substantial; probability of
irreparable harm, strong likelihood, clear and present danger, etc.
This is not the first time the issue of trial by publicity has been raised
in this Court to stop the trials or annul convictions in high profile
criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in
the case of Larranaga vs. court of Appeals, et al.,129 we laid down the
doctrine that:
"We cannot sustain appellant's claim that he was denied
the right to impartial trial due to prejudicial publicity. It is
true that the print and broadcast media gave the case at
bar pervasive publicity, just like all high profile and high
stake criminal trials. Then and now, we rule that the right
of an accused to a fair trial is not incompatible to a free
press. To be sure, responsible reporting enhances
accused's right to a fair trial for, as well pointed out, a
responsible press has always been regarded as the criminal
field xxx. The press does not simply publish information
about trials but guards against the miscarriage of justice by
subjecting the police, prosecutors, and judicial processes
to extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of
an accused to fair trial. The mere fact that the trial of
appellant was given a day-to-day, gavel-to-gavel coverage
does not by itself prove that the publicity so permeated
the mind of the trial judge and impaired his impartiality.
For one, it is impossible to seal the minds of members of
the bench from pre-trial and other off-court publicity of
sensational criminal cases. The state of the art of our
communication system brings news as they happen
straight to our breakfast tables and right to our bedrooms.
These news form part of our everyday menu of the facts
and fictions of life. For another, our idea of a fair and
impartial judge is not that of a hermit who is out of touch
with the world. We have not installed the jury system
whose members are overly protected from publicity lest
they lose there impartially. xxx xxx xxx. Our judges are
learned in the law and trained to disregard off-court
evidence and on-camera performances of parties to
litigation. Their mere exposure to publications and
publicity stunts does not per se fatally infect their
impartiality.
At best, appellant can only conjure possibility of prejudice
on the part of the trial judge due to the barrage of
publicity that characterized the investigation and trial of
the case. In Martelino, et al. v. Alejandro, et al., we
rejected this standard of possibility of prejudice and
adopted the test of actual prejudice as we ruled that to
warrant a finding of prejudicial publicity, there must be
allegation and proof that the judges have been unduly
influenced, not simply that they might be, by the barrage
that the trial judge developed actual bias against
appellants as a consequence of the extensive media
coverage of the pre-trial and trial of his case. The totality
of circumstances of the case does not prove that the trial
judge acquired a fixed opinion as a result of prejudicial
288
 publicity, which is incapable of change even by evidence
presented during the trial. Appellant has the burden to
prove this actual bias and he has not discharged the
burden.'
We expounded further on this doctrine in the subsequent case of
Webb vs. Hon. Raul de Leon, etc.130 and its companion cases, viz:
"Again petitioners raise the effect of prejudicial publicity
on their right to due process while undergoing preliminary
investigation. We find no procedural impediment to its
early invocation considering the substantial risk to their
liberty while undergoing a preliminary investigation.
xxx
The democratic settings, media coverage of trials of
sensational cases cannot be avoided and oftentimes, its
excessiveness has been aggravated by kinetic
developments in the telecommunications industry. For
sure, few cases can match the high volume and high
velocity of publicity that attended the preliminary
investigation of the case at bar. Our daily diet of facts and
fiction about the case continues unabated even today.
Commentators still bombard the public with views not too
many of which are sober and sublime. Indeed, even the
principal actors in the case – the NBI, the respondents,
their lawyers and their sympathizers have participated in
this media blitz. The possibility of media abuses and their
threat to a fair trial notwithstanding, criminal trials cannot
be completely closed to the press and public. In the
seminal case of Richmond Newspapers, Inc. v. Virginia, it
was
xxx
a. The historical evidence of the evolution of the
criminal trial in Anglo-American justice
demonstrates conclusively that at the time this
Nation's organic laws were adopted, criminal
trials both here and in England had long been
presumptively open, thus giving assurance that
the proceedings were conducted fairly to all
concerned and discouraging perjury, the
misconduct of participants, or decisions based
on secret bias or partiality. In addition, the
significant community therapeutic value of
public trials was recognized when a shocking
crime occurs a community reaction of outrage
and public protest often follows, and thereafter
the open processes of justice serve an important
prophylactic purpose, providing an outlet for
community concern, hostility and emotion. To
work effectively, it is important that society's
criminal process satisfy the appearance of
justice,' Offutt v. United States, 348 US 11, 14, 99
L ED 11, 75 S Ct 11, which can best be provided
by allowing people to observe such process.
From this unbroken, uncontradicted history,
supported by reasons as valid today as in
centuries past, it must be concluded that a
presumption of openness inheres in the very
nature of a criminal trial under this Nation's
system of justice, Cf., e,g., Levine v. United
States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
b. The freedoms of speech. Press and assembly,
expressly guaranteed by the First Amendment,
share a common core purpose of assuring
freedom of communication on matters relating
to the functioning of government. In
guaranteeing freedom such as those of speech
and press, the First Amendment can be read as
protecting the right of everyone to attend trials
so as give meaning to those explicit guarantees;
the First Amendment right to receive
information and ideas means, in the context of
trials, that the guarantees of speech and press,
standing alone, prohibit government from
summarily closing courtroom doors which had
long been open to the public at the time the First
Amendment was adopted. Moreover, the right
of assembly is also relevant, having been
regarded not only as an independent right but
also as a catalyst to augment the free exercise of
the other First Amendment rights with which the
draftsmen deliberately linked it. A trial
courtroom is a public place where the people
generally and representatives of the media have
a right to be present, and where their presence
historically has been thought to enhance the
integrity and quality of what takes place.
c. Even though the Constitution contains no
provision which be its terms guarantees to the
public the right to attend criminal trials, various
fundamental rights, not expressly guaranteed,
have been recognized as indispensable to the
enjoyment of enumerated rights. The right to
attend criminal trial is implicit in the guarantees
of the First Amendment: without the freedom to
attend such trials, which people have exercised
for centuries, important aspects of freedom of
speech and of the press be eviscerated.
Be that as it may, we recognize that pervasive and
prejudicial publicity under certain circumstances can
deprive an accused of his due process right to fair trial.
Thus, in Martelino, et al. vs. Alejandro, et al., we held that
to warrant a finding of prejudicial publicity there must
be allegation and proof that the judges have been unduly
influenced, not simply that they might be, by the barrage
of publicity. In the case at bar, we find nothing in the
records that will prove that the tone and content of the
publicity that attended the investigation of petitioners
fatally infected the fairness and impartiality of the DOJ
Panel. Petitioners cannot just rely on the subliminal effects
of publicity on the sense of fairness of the DOJ Panel, for
these are basically unbeknown and beyond knowing. To be
sure, the DOJ Panel is composed of an Assistant Chief State
Prosecutor and Senior State Prosecutors. Their long
experience in criminal investigation is a factor to consider
in determining whether they can easily be blinded by the
klieg lights of publicity. Indeed, their 26-page Resolution
carries no indubitable indicia of bias for it does not appear
that they considered any extra-record evidence except
evidence properly adduced by the parties. The length of
time the investigation was conducted despite its summary
nature and the generosity with which they accommodated
the discovery motions of petitioners speak well of their
fairness. At no instance, we note, did petitioners seek the
disqualification of any member of the DOJ Panel on the
ground of bias resulting from their bombardment of
prejudicial publicity." (emphasis supplied)
Applying the above ruling, we hold that there is not enough
evidence to warrant this Court to enjoin the preliminary
investigation of the petitioner by the respondent Ombudsman.
Petitioner needs to offer more than hostile headlines to discharge
his burden of proof.131 He needs to show more weighty social
science evidence to successfully prove the impaired capacity of a
judge to render a bias-free decision. Well to note, the cases against
the petitioner are still undergoing preliminary investigation by a
special panel of prosecutors in the office of the respondent
Ombudsman. No allegation whatsoever has been made by the
petitioner that the minds of the members of this special panel have
already been infected by bias because of the pervasive prejudicial
publicity against him. Indeed, the special panel has yet to come out
with its findings and the Court cannot second guess whether its
recommendation will be unfavorable to the petitioner.
The records show that petitioner has instead charged respondent
Ombudsman himself with bias. To quote petitioner's submission, the
289
respondent Ombudsman "has been influenced by the barrage of
slanted news reports, and he has buckled to the threats and
pressures directed at him by the mobs."132 News reports have also
been quoted to establish that the respondent Ombudsman has
already prejudged the cases of the petitioner133 and it is postulated
that the prosecutors investigating the petitioner will be influenced
by this bias of their superior.

Again, we hold that the evidence proffered by the petitioner

is insubstantial. The accuracy of the news reports referred to by the
petitioner cannot be the subject of judicial notice by this Court
especially in light of the denials of the respondent Ombudsman as to
his alleged prejudice and the presumption of good faith and
regularity in the performance of official duty to which he is
entitled. Nor can we adopt the theory of derivative prejudice of
petitioner, i.e., that the prejudice of respondent Ombudsman flows
to his subordinates. In truth, our Revised Rules of Criminal
Procedure, give investigation prosecutors the independence to make
their own findings and recommendations albeit they are reviewable
by their superiors.134 They can be reversed but they can not be
compelled cases which they believe deserve dismissal. In other
words, investigating prosecutors should not be treated like
unthinking slot machines. Moreover, if the respondent Ombudsman
resolves to file the cases against the petitioner and the latter
believes that the findings of probable cause against him is the result
of bias, he still has the remedy of assailing it before the proper court.

VI.

Epilogue

A word of caution to the "hooting throng." The cases against the

petitioner will now acquire a different dimension and then move to
a new stage - - - the Office of the Ombudsman. Predictably, the call
from the majority for instant justice will hit a higher decibel while
the gnashing of teeth of the minority will be more threatening. It is
the sacred duty of the respondent Ombudsman to balance the right
of the State to prosecute the guilty and the right of an accused to a
fair investigation and trial which has been categorized as the "most
fundamental of all freedoms."135To be sure, the duty of a prosecutor
is more to do justice and less to prosecute. His is the obligation to
insure that the preliminary investigation of the petitioner shall have
a circus-free atmosphere. He has to provide the restraint against
what Lord Bryce calls "the impatient vehemence of the majority."
Rights in a democracy are not decided by the mob whose judgment
is dictated by rage and not by reason. Nor are rights necessarily
resolved by the power of number for in a democracy, the dogmatism
of the majority is not and should never be the definition of the rule
of law. If democracy has proved to be the best form of government,
it is because it has respected the right of the minority to convince
the majority that it is wrong. Tolerance of multiformity of thoughts,
however offensive they may be, is the key to man's progress from
the cave to civilization. Let us not throw away that key just to pander
to some people's prejudice.

IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada

challenging the respondent Gloria Macapagal-Arroyo as the de
jure 14th President of the Republic are DISMISSED.

SO ORDERED.

290
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23127 April 29, 1971
FRANCISCO SERRANO DE AGBAYANI, plaintiff-appellee,
vs.
PHILIPPINE NATIONAL BANK and THE PROVINCIAL SHERIFF OF
PANGASINAN, defendants, PHILIPPINE NATIONAL
BANK, defendant-appellant.
Dionisio E. Moya for plaintiff-appellee.
Ramon B. de los Reyes for defendant-appellant.
FERNANDO, J.:
A correct appreciation of the controlling doctrine as to the effect, if
any, to be attached to a statute subsequently adjudged invalid, is
decisive of this appeal from a lower court decision. Plaintiff
Francisco Serrano de Agbayani, now appellee, was able to obtain a
favorable judgment in her suit against defendant, now appellant
Philippine National Bank, permanently enjoining the other
defendant, the Provincial Sheriff of Pangasinan, from proceeding
with an extra-judicial foreclosure sale of land belonging to plaintiff
mortgaged to appellant Bank to secure a loan declared no longer
enforceable, the prescriptive period having lapsed. There was thus a
failure to sustain the defense raised by appellant that if the
moratorium under an Executive Order and later an Act subsequently
found unconstitutional were to be counted in the computation, then
the right to foreclose the mortgage was still subsisting. In arriving at
such a conclusion, the lower court manifested a tenacious
adherence to the inflexible view that an unconstitutional act is not a
law, creating no rights and imposing no duties, and thus as
inoperative as if it had never been. It was oblivious to the force of
the principle adopted by this Court that while a statute's repugnancy
to the fundamental law deprives it of its character as a juridical
norm, its having been operative prior to its being nullified is a fact
that is not devoid of legal consequences. As will hereafter be
explained, such a failing of the lower court resulted in an erroneous
decision. We find for appellant Philippine National Bank, and we
reverse.
There is no dispute as to the facts. Plaintiff obtained the loan in the
amount of P450.00 from defendant Bank dated July 19, 1939,
maturing on July 19, 1944, secured by real estate mortgage duly
registered covering property described in T.C.T. No. 11275 of the
province of Pangasinan. As of November 27, 1959, the balance due
on said loan was in the amount of P1,294.00. As early as July 13 of
the same year, defendant instituted extra-judicial foreclosure
proceedings in the office of defendant Provincial Sheriff of
Pangasinan for the recovery of the balance of the loan remaining
unpaid. Plaintiff countered with his suit against both defendants on
August 10, 1959, her main allegation being that the mortgage sought
to be foreclosed had long prescribed, fifteen years having elapsed
from the date of maturity, July 19, 1944. She sought and was able to
obtain a writ of preliminary injunction against defendant Provincial
Sheriff, which was made permanent in the decision now on appeal.
Defendant Bank in its answer prayed for the dismissal of the suit as
even on plaintiff's own theory the defense of prescription would not
be available if the period from March 10, 1945, when Executive
Order No. 32 1 was issued, to July 26, 1948, when the subsequent
legislative act 2 extending the period of moratorium was declared
invalid, were to be deducted from the computation of the time
during which the bank took no legal steps for the recovery of the
loan. As noted, the lower court did not find such contention
persuasive and decided the suit in favor of plaintiff.
Hence this appeal, which, as made clear at the outset, possesses
merit, there being a failure on the part of the lower court to adhere
to the applicable constitutional doctrine as to the effect to be given
to a statute subsequently declared invalid.
1. The decision now on appeal reflects the orthodox view that an
unconstitutional act, for that matter an executive order or a
municipal ordinance likewise suffering from that infirmity, cannot be
the source of any legal rights or duties. Nor can it justify any official
act taken under it. Its repugnancy to the fundamental law once
judicially declared results in its being to all intents and purposes a
mere scrap of paper. As the new Civil Code puts it: "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 of the Constitution. 3 It is understandable why it
should be so, the Constitution being supreme and paramount. Any
legislative or executive act contrary to its terms cannot survive.
Such a view has support in logic and possesses the merit of
simplicity. It may not however be sufficiently realistic. It does not
admit of doubt that prior to the declaration of nullity such
challenged legislative or executive act must have been in force and
had to be complied with. This is so as until after the judiciary, in an
appropriate case, declares its invalidity, it is entitled to obedience
and respect. Parties may have acted under it and may have changed
their positions. What could be more fitting than that in a subsequent
litigation regard be had to what has been done while such legislative
or executive act was in operation and presumed to be valid in all
respects. It is now accepted as a doctrine that prior to its being
nullified, its existence as a fact must be reckoned with. This is merely
to reflect awareness that precisely because the judiciary is the
governmental organ which has the final say on whether or not a
legislative or executive measure is valid, a period of time may have
elapsed before it can exercise the power of judicial review that may
lead to a declaration of nullity. It would be to deprive the law of its
quality of fairness and justice then, if there be no recognition of
what had transpired prior to such adjudication.
In the language of an American Supreme Court decision: "The actual
existence of a statute, prior to such a determination [of
unconstitutionality], is an operative fact and may have
consequences which cannot justly be ignored. The past cannot
always be erased by a new judicial declaration. The effect of the
subsequent ruling as to invalidity may have to be considered in
various aspects, with respect to particular relations, individual and
corporate, and particular conduct, private and official." 4 This
language has been quoted with approval in a resolution inAraneta v.
Hill 5 and the decision in Manila Motor Co., Inc. v. Flores. 6 An even
more recent instance is the opinion of Justice Zaldivar speaking for
the Court in Fernandez v. Cuerva and Co. 7
2. Such an approach all the more commends itself whenever police
power legislation intended to promote public welfare but adversely
affecting property rights is involved. While subject to be assailed on
due process, equal protection and non-impairment grounds, all that
is required to avoid the corrosion of invalidity is that the rational
basis or reasonableness test is satisfied. The legislature on the whole
is not likely to allow an enactment suffering, to paraphrase Cardozo,
from the infirmity of out running the bounds of reason and resulting
in sheer oppression. It may be of course that if challenged, an
adverse judgment could be the result, as its running counter to the
Constitution could still be shown. In the meanwhile though, in the
normal course of things, it has been acted upon by the public and
accepted as valid. To ignore such a fact would indeed be the fruitful
parent of injustice. Moreover, as its constitutionality is conditioned
on its being fair or reasonable, which in turn is dependent on the
actual situation, never static but subject to change, a measure valid
when enacted may subsequently, due to altered circumstances, be
stricken down.
That is precisely what happened in connection with Republic Act No.
342, the moratorium legislation, which continued Executive Order
No. 32, issued by the then President Osmeña, suspending the
enforcement of payment of all debts and other monetary obligations
291
payable by war sufferers. So it was explicitly held in Rutter v. 1959, when extra-judicial foreclosure proceedings were started by
Esteban 8where such enactment was considered in 1953 appellant Bank, the time consumed is six days short of fifteen years.
"unreasonable and oppressive, and should not be prolonged a The prescriptive period was tolled however, from March 10, 1945,
minute longer, and, therefore, the same should be declared null and the effectivity of Executive Order No. 32, to May 18, 1953, when the
void and without effect." 9 At the time of the issuance of the above decision of Rutter v. Esteban was promulgated, covering eight years,
Executive Order in 1945 and of the passage of such Act in 1948, two months and eight days. Obviously then, when resort was had
there was a factual justification for the moratorium. The Philippines extra-judicially to the foreclosure of the mortgage obligation, there
was confronted with an emergency of impressive magnitude at the was time to spare before prescription could be availed of as a
time of her liberation from the Japanese military forces in 1945. defense.
Business was at a standstill. Her economy lay prostrate. Measures,
radical measures, were then devised to tide her over until some WHEREFORE, the decision of January 27, 1960 is reversed and the
semblance of normalcy could be restored and an improvement in suit of plaintiff filed August 10, 1959 dismissed. No costs.
her economy noted. No wonder then that the suspension of
enforcement of payment of the obligations then existing was
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro,
declared first by executive order and then by legislation. The
Teehankee, Barredo, Villamor, and Makasiar, JJ., concur.
Supreme Court was right therefore in rejecting the contention that
on its face, the Moratorium Law was unconstitutional, amounting as
it did to the impairment of the obligation of contracts. Considering
the circumstances confronting the legitimate government upon its
return to the Philippines, some such remedial device was needed
and badly so. An unyielding insistence then on the rights to property
on the part of the creditors was not likely to meet with judicial
sympathy. Time passed however, and conditions did change.

When the legislation was before this Court in 1953, the question
before it was its satisfying the rational basis test, not as of the time
of its enactment but as of such date. Clearly, if then it were found
unreasonable, the right to non-impairment of contractual
obligations must prevail over the assertion of community power to
remedy an existing evil. The Supreme Court was convinced that such
indeed was the case. As stated in the opinion of Justice Bautista
Angelo: "But we should not lose sight of the fact that these
obligations had been pending since 1945 as a result of the issuance
of Executive Orders Nos. 25 and 32 and at present their enforcement
is still inhibited because of the enactment of Republic Act No. 342
and would continue to be unenforceable during the eight-year
period granted to prewar debtors to afford them an opportunity to
rehabilitate themselves, which in plain language means that the
creditors would have to observe a vigil of at least twelve (12) years
before they could affect a liquidation of their investment dating as
far back as 1941. This period seems to us unreasonable, if not
oppressive. While the purpose of Congress is plausible, and should
be commended, the relief accorded works injustice to creditors who
are practically left at the mercy of the debtors. Their hope to effect
collection becomes extremely remote, more so if the credits are
unsecured. And the injustice is more patent when, under the law the
debtor is not even required to pay interest during the operation of
the relief, unlike similar statutes in the United States. 10 The
conclusion to which the foregoing considerations inevitably led was
that as of the time of adjudication, it was apparent that Republic Act
No. 342 could not survive the test of validity. Executive Order No. 32
should likewise be nullified. That before the decision they were not
constitutionally infirm was admitted expressly. There is all the more
reason then to yield assent to the now prevailing principle that the
existence of a statute or executive order prior to its being adjudged
void is an operative fact to which legal consequences are attached.

3. Precisely though because of the judicial recognition that

moratorium was a valid governmental response to the plight of the
debtors who were war sufferers, this Court has made clear its view
in a series of cases impressive in their number and unanimity that
during the eight-year period that Executive Order No. 32 and
Republic Act No. 342 were in force, prescription did not run. So it
has been held from Day v. Court of First
Instance, 11 decided in 1954, to Republic v. Hernaez, 12 handed down
only last year. What is deplorable is that as of the time of the lower
court decision on January 27, 1960, at least eight decisions had left
no doubt as to the prescriptive period being tolled in the meanwhile
prior to such adjudication of invalidity. 13 Speaking of the opposite
view entertained by the lower court, the present Chief Justice,
in Liboro v. Finance and Mining Investments Corp. 14 has categorized
it as having been "explicitly and consistently rejected by this
Court." 15

The error of the lower court in sustaining plaintiff's suit is thus

manifest. From July 19, 1944, when her loan matured, to July 13,
292
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 81510 March 14, 1990
HORTENCIA SALAZAR, petitioner,
vs.
HON. TOMAS D. ACHACOSO, in his capacity as Administrator of the
Philippine Overseas Employment Administration, and FERDIE
MARQUEZ, respondents.
Gutierrez & Alo Law Offices for petitioner.
SARMIENTO, J.:
This concerns the validity of the power of the Secretary of Labor to
issue warrants of arrest and seizure under Article 38 of the Labor
Code, prohibiting illegal recruitment.
The facts are as follows:
xxx xxx xxx
1. On October 21, 1987, Rosalie Tesoro of 177 Tupaz Street, Leveriza,
Pasay City, in a sworn statement filed with the Philippine Overseas
Employment Administration (POEA for brevity) charged petitioner
Hortencia Salazar, viz:
04. T: Ano ba ang dahilan at ikaw ngayon ay narito at nagbibigy ng
salaysay.
S: Upang ireklamo sa dahilan ang aking PECC Card ay ayaw ibigay sa
akin ng dati kong manager. — Horty Salazar — 615 R.O. Santos,
Mandaluyong, Mla.
05. T: Kailan at saan naganap and ginawang panloloko sa iyo ng
tao/mga taong inireklamo mo?
S. Sa bahay ni Horty Salazar.
06. T: Paano naman naganap ang pangyayari?
S. Pagkagaling ko sa Japan ipinatawag niya ako. Kinuha
ang PECC Card ko at sinabing hahanapan ako ng booking sa Japan.
Mag 9 month's na ako sa Phils. Ay hindi pa niya ako napa-alis. So
lumipat ako ng ibang company pero ayaw niyang ibigay and PECC
Card ko.
2. On November 3, 1987, public respondent Atty. Ferdinand
Marquez to whom said complaint was assigned, sent to the
petitioner the following telegram:
YOU ARE HEREBY DIRECTED TO APPEAR BEFORE FERDIE MARQUEZ
POEA ANTI ILLEGAL RECRUITMENT UNIT 6TH FLR. POEA BLDG. EDSA
COR. ORTIGAS AVE. MANDALUYONG MM ON NOVEMBER 6, 1987 AT
10 AM RE CASE FILED AGAINST YOU. FAIL NOT UNDER PENALTY OF
LAW.
4. On the same day, having ascertained that the petitioner had no
license to operate a recruitment agency, public respondent
Administrator Tomas D. Achacoso issued his challenged CLOSURE
AND SEIZURE ORDER NO. 1205 which reads:
HORTY SALAZAR
No. 615 R.O. Santos St.
Mandaluyong, Metro Manila
Pursuant to the powers vested in me under
Presidential Decree No. 1920 and Executive
Order No. 1022, I hereby order the CLOSURE of
your recruitment agency being operated at No.
615 R.O. Santos St., Mandaluyong, Metro Manila
and the seizure of the documents and
paraphernalia being used or intended to be used
as the means of committing illegal recruitment,
it having verified that you have —
(1) No valid license or authority from the Department of Labor and
Employment to recruit and deploy workers for overseas
employment;
(2) Committed/are committing acts prohibited under Article 34 of
the New Labor Code in relation to Article 38 of the same code.
This ORDER is without prejudice to your criminal prosecution under
existing laws.
Done in the City of Manila, this 3th day of November, 1987.
5. On January 26, 1988 POEA Director on Licensing and Regulation
Atty. Estelita B. Espiritu issued an office order designating
respondents Atty. Marquez, Atty. Jovencio Abara and Atty. Ernesto
Vistro as members of a team tasked to implement Closure and
Seizure Order No. 1205. Doing so, the group assisted by
Mandaluyong policemen and mediamen Lito Castillo of the People's
Journal and Ernie Baluyot of News Today proceeded to the residence
of the petitioner at 615 R.O. Santos St., Mandaluyong, Metro Manila.
There it was found that petitioner was operating Hannalie Dance
Studio. Before entering the place, the team served said Closure and
Seizure order on a certain Mrs. Flora Salazar who voluntarily allowed
them entry into the premises. Mrs. Flora Salazar informed the team
that Hannalie Dance Studio was accredited with Moreman
Development (Phil.). However, when required to show credentials,
she was unable to produce any. Inside the studio, the team chanced
upon twelve talent performers — practicing a dance number and
saw about twenty more waiting outside, The team confiscated
assorted costumes which were duly receipted for by Mrs. Asuncion
Maguelan and witnessed by Mrs. Flora Salazar.
6. On January 28, 1988, petitioner filed with POEA the following
letter:
Gentlemen:
On behalf of Ms. Horty Salazar of 615 R.O. Santos, Mandaluyong,
Metro Manila, we respectfully request that the personal properties
seized at her residence last January 26, 1988 be immediately
returned on the ground that said seizure was contrary to law and
against the will of the owner thereof. Among our reasons are the
following:
1. Our client has not been given any prior notice or hearing, hence
the Closure and Seizure Order No. 1205 dated November 3, 1987
violates "due process of law" guaranteed under Sec. 1, Art. III, of the
Philippine Constitution.
2. Your acts also violate Sec. 2, Art. III of the Philippine Constitution
which guarantees right of the people "to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose."
3. The premises invaded by your Mr. Ferdi Marquez and five (5)
others (including 2 policemen) are the private residence of the
Salazar family, and the entry, search as well as the seizure of the
personal properties belonging to our client were without her
consent and were done with unreasonable force and intimidation,
together with grave abuse of the color of authority, and constitute
robbery and violation of domicile under Arts. 293 and 128 of the
Revised Penal Code.
293
Unless said personal properties worth around TEN THOUSAND
PESOS (P10,000.00) in all (and which were already due for shipment
to Japan) are returned within twenty-four (24) hours from your
receipt hereof, we shall feel free to take all legal action, civil and
criminal, to protect our client's interests.
We trust that you will give due attention to these important matters.
7. On February 2, 1988, before POEA could answer the letter,
petitioner filed the instant petition; on even date, POEA filed a
criminal complaint against her with the Pasig Provincial Fiscal,
docketed as IS-88-836. 1
On February 2, 1988, the petitioner filed this suit for prohibition.
Although the acts sought to be barred are alreadyfait accompli,
thereby making prohibition too late, we consider the petition as one
for certiorari in view of the grave public interest involved.
The Court finds that a lone issue confronts it: May the Philippine
Overseas Employment Administration (or the Secretary of Labor)
validly issue warrants of search and seizure (or arrest) under Article
38 of the Labor Code? It is also an issue squarely raised by the
petitioner for the Court's resolution.
Under the new Constitution, which states:
. . . no search warrant or warrant of arrest shall
issue except upon probable cause to be
determined personally by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be
searched and the persons or things to be
seized. 2
it is only a judge who may issue warrants of search and arrest. 3 In
one case, it was declared that mayors may not exercise this power:
xxx xxx xxx
But it must be emphasized here and now that
what has just been described is the state of the
law as it was in September, 1985. The law has
since been altered. No longer does the mayor
have at this time the power to conduct
preliminary investigations, much less issue
orders of arrest. Section 143 of the Local
Government Code, conferring this power on the
mayor has been abrogated, rendered functus
officio by the 1987 Constitution which took
effect on February 2, 1987, the date of its
ratification by the Filipino people. Section 2,
Article III of the 1987 Constitution pertinently
provides that "no search warrant or warrant of
arrest shall issue except upon probable cause to
be determined personally by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be
searched and the person or things to be seized."
The constitutional proscription has thereby been
manifested that thenceforth, the function of
determining probable cause and issuing, on the
basis thereof, warrants of arrest or search
warrants, may be validly exercised only by
judges, this being evidenced by the elimination
in the present Constitution of the phrase, "such
other responsible officer as may be authorized
by law" found in the counterpart provision of
said 1973 Constitution, who, aside from judges,
might conduct preliminary investigations and
issue warrants of arrest or search warrants. 4
Neither may it be done by a mere prosecuting body:
We agree that the Presidential Anti-Dollar Salting
Task Force exercises, or was meant to exercise,
prosecutorial powers, and on that ground, it
cannot be said to be a neutral and detached
"judge" to determine the existence of probable
cause for purposes of arrest or search. Unlike a
magistrate, a prosecutor is naturally interested
in the success of his case. Although his office "is
to see that justice is done and not necessarily to
secure the conviction of the person accused," he
stands, invariably, as the accused's adversary
and his accuser. To permit him to issue search
warrants and indeed, warrants of arrest, is to
make him both judge and jury in his own right,
when he is neither. That makes, to our mind and
to that extent, Presidential Decree No. 1936 as
amended by Presidential Decree No. 2002,
unconstitutional. 5
Section 38, paragraph (c), of the Labor Code, as now written, was
entered as an amendment by Presidential Decrees Nos. 1920 and
2018 of the late President Ferdinand Marcos, to Presidential Decree
No. 1693, in the exercise of his legislative powers under Amendment
No. 6 of the 1973 Constitution. Under the latter, the then Minister of
Labor merely exercised recommendatory powers:
(c) The Minister of Labor or his duly authorized
representative shall have the power to
recommend the arrest and detention of any
person engaged in illegal recruitment. 6
On May 1, 1984, Mr. Marcos promulgated Presidential Decree No.
1920, with the avowed purpose of giving more teeth to the
campaign against illegal recruitment. The Decree gave the Minister
of Labor arrest and closure powers:
(b) The Minister of Labor and Employment shall
have the power to cause the arrest and
detention of such non-licensee or non-holder of
authority if after proper investigation it is
determined that his activities constitute a danger
to national security and public order or will lead
to further exploitation of job-seekers. The
Minister shall order the closure of companies,
establishment and entities found to be engaged
in the recruitment of workers for overseas
employment, without having been licensed or
authorized to do so. 7
On January 26, 1986, he, Mr. Marcos, promulgated Presidential
Decree No. 2018, giving the Labor Minister search and seizure
powers as well:
(c) The Minister of Labor and Employment or his
duly authorized representatives shall have the
power to cause the arrest and detention of such
non-licensee or non-holder of authority if after
investigation it is determined that his activities
constitute a danger to national security and
public order or will lead to further exploitation of
job-seekers. The Minister shall order the search
of the office or premises and seizure of
documents, paraphernalia, properties and other
implements used in illegal recruitment activities
and the closure of companies, establishment and
entities found to be engaged in the recruitment
of workers for overseas employment, without
having been licensed or authorized to do so.8
The above has now been etched as Article 38, paragraph (c) of the
Labor Code.
The decrees in question, it is well to note, stand as the dying vestiges
of authoritarian rule in its twilight moments.
294
We reiterate that the Secretary of Labor, not being a judge, may no We have held that a warrant must identify clearly the things to be
longer issue search or arrest warrants. Hence, the authorities must seized, otherwise, it is null and void, thus:
go through the judicial process. To that extent, we declare Article 38,
paragraph (c), of the Labor Code, unconstitutional and of no force xxx xxx xxx
and effect.
Another factor which makes the search warrants
The Solicitor General's reliance on the case of Morano v. Vivo 9 is not under consideration constitutionally
well-taken. Vivo involved a deportation case, governed by Section 69 objectionable is that they are in the nature of
of the defunct Revised Administrative Code and by Section 37 of the general warrants. The search warrants describe
Immigration Law. We have ruled that in deportation cases, an arrest the articles sought to be seized in this wise:
(of an undesirable alien) ordered by the President or his duly
authorized representatives, in order to carry out a final decision of
1) All printing equipment,
deportation is valid. 10 It is valid, however, because of the recognized
paraphernalia, paper, ink,
supremacy of the Executive in matters involving foreign affairs. We
photo equipment,
have held: 11
typewriters, cabinets, tables,
communications/ recording
xxx xxx xxx equipment, tape recorders,
dictaphone and the like used
The State has the inherent power to deport and/or connected in the
undesirable aliens (Chuoco Tiaco vs. Forbes, 228 printing of the "WE FORUM"
U.S. 549, 57 L. Ed. 960, 40 Phil. 1122, 1125). That newspaper and any and all
power may be exercised by the Chief Executive documents/communications,
"when he deems such action necessary for the letters and facsimile of prints
peace and domestic tranquility of the nation." related to the "WE FORUM"
Justice Johnson's opinion is that when the Chief newspaper.
Executive finds that there are aliens whose
continued presence in the country is injurious to 2) Subversive documents,
the public interest, "he may, even in the absence pamphlets, leaflets, books,
of express law, deport them". (Forbes vs. Chuoco and other publications to
Tiaco and Crossfield, 16 Phil. 534, 568, 569; In re promote the objectives and
McCulloch Dick, 38 Phil. 41). purposes of the subversive
organizations known as
The right of a country to expel or deport aliens Movement for Free
because their continued presence is detrimental Philippines, Light-a-Fire
to public welfare is absolute and unqualified (Tiu Movement and April 6
Chun Hai and Go Tam vs. Commissioner of Movement; and
Immigration and the Director of NBI, 104 Phil.
949, 956). 12 3) Motor vehicles used in the
distribution/circulation of the
The power of the President to order the arrest of aliens for "WE FORUM" and other
deportation is, obviously, exceptional. It (the power to order arrests) subversive materials and
can not be made to extend to other cases, like the one at bar. Under propaganda, more
the Constitution, it is the sole domain of the courts. particularly,

Moreover, the search and seizure order in question, assuming, ex 1) Toyota-Corolla, colored
gratia argumenti, that it was validly issued, is clearly in the nature of yellow with Plate No. NKA
a general warrant: 892;

Pursuant to the powers vested in me under 2) DATSUN, pick-up colored

Presidential Decree No. 1920 and Executive white with Plate No. NKV
Order No. 1022, I hereby order the CLOSURE of 969;
your recruitment agency being operated at No.
615 R.O. Santos St., Mandaluyong, Metro Manila 3) A delivery truck with Plate
and the seizure of the documents and No. NBS 542;
paraphernalia being used or intended to be used
as the means of committing illegal recruitment,
4) TOYOTA-TAMARAW,
it having verified that you have —
colored white with Plate No.
PBP 665; and
(1) No valid license or
authority from the
5) TOYOTA Hi-Lux, pick-up
Department of Labor and
truck with Plate No. NGV 472
Employment to recruit and
with marking "Bagong
deploy workers for overseas
Silang."
employment;

In Stanford v. State of Texas, the search warrant

(2) Committed/are
committing acts prohibited
under Article 34 of the New
Labor Code in relation to
Article 38 of the same code.
This ORDER is without prejudice to your criminal
prosecution under existing laws. 13
which authorized the search for "books, records,
pamphlets, cards, receipts, lists, memoranda,
pictures, recordings and other written
instruments concerning the Communist Parties
of Texas, and the operations of the Community
Party in Texas," was declared void by the U.S.
Supreme Court for being too general. In like
manner, directions to "seize any evidence in

295
 connection with the violation of SDC 13-3703 or
otherwise" have been held too general, and that
portion of a search warrant which authorized the
seizure of any "paraphernalia which could be
used to violate Sec. 54-197 of the Connecticut
General Statutes (the statute dealing with the
crime of conspiracy)" was held to be a general
warrant, and therefore invalid. The description
of the articles sought to be seized under the
search warrants in question cannot be
characterized differently.

In the Stanford case, the U.S. Supreme court calls

to mind a notable chapter in English history; the
era of disaccord between the Tudor Government
and the English Press, when "Officers of the
Crown were given roving commissions to search
where they pleased in order to suppress and
destroy the literature of dissent both Catholic
and Puritan." Reference herein to such historical
episode would not be relevant for it is not the
policy of our government to suppress any
newspaper or publication that speaks with "the
voice of non-conformity" but poses no clear and
imminent danger to state security.14

For the guidance of the bench and the bar, we reaffirm the following
principles:

1. Under Article III, Section 2, of the l987

Constitution, it is only judges, and no other, who
may issue warrants of arrest and search:

2. The exception is in cases of deportation of

illegal and undesirable aliens, whom the
President or the Commissioner of Immigration
may order arrested, following a final order of
deportation, for the purpose of deportation.

WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of

the Labor Code is declared UNCONSTITUTIONAL and null and void.
The respondents are ORDERED to return all materials seized as a
result of the implementation of Search and Seizure Order No. 1205.

No costs.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,

Feliciano, Gancayco, Padilla, Bidin, Cortes, Griño-Aquino, Medialdea
and Regalado, JJ., concur.

296