Civil Liberties Union v Exec.
Sec DECISION
194 SCRA 317 – Political Law – Ex Officio Officials – Members
of the Cabinet – Singularity of Office – EO 284
In July 1987, then President Corazon Aquino issued Executive
Order No. 284 which allowed members of the Cabinet, their
undersecretaries and assistant secretaries to hold other
government offices or positions in addition to their primary
positions subject to limitations set therein. The Civil Liberties
Union (CLU) assailed this EO averring that such law is
unconstitutional. The constitutionality of EO 284 is being
challenged by CLU on the principal submission that it adds
exceptions to Sec 13, Article 7 of the Constitution which
provides:
“Sec. 13. The President, Vice-President, the Members of the
Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said
tenure, directly or indirectly practice any other profession,
participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted
by the Government or any subdivision, agency, or
instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries. They shall strictly
avoid conflict of interest in the conduct of their office.”
CLU avers that by virtue of the phrase “unless otherwise
provided in this Constitution“, the only exceptions against
holding any other office or employment in Government are
those provided in the Constitution, namely: (i) The Vice-
President may be appointed as a Member of the Cabinet under
Sec 3, par. (2), Article 7; and (ii) the Secretary of Justice is an
ex-officio member of the Judicial and Bar Council by virtue of
Sec 8 (1), Article 8.
ISSUE: Whether or not EO 284 is constitutional.
HELD: No, it is unconstitutional. It is clear that the 1987
Constitution seeks to prohibit the President, Vice-President,
members of the Cabinet, their deputies or assistants from
holding during their tenure multiple offices or employment in
the government, except in those cases specified in the
Constitution itself and as above clarified with respect to posts
held without additional compensation in an ex-officio capacity
as provided by law and as required by the primary functions of
their office, the citation of Cabinet members (then called
Ministers) as examples during the debate and deliberation on
the general rule laid down for all appointive officials should be
considered as mere personal opinions which cannot override
the constitution’s manifest intent and the people’s
understanding thereof.
In the light of the construction given to Sec 13, Art 7 in relation
to Sec 7, par. (2), Art IX-B of the 1987 Constitution, EO 284 is
unconstitutional. Ostensibly restricting the number of positions
that Cabinet members, undersecretaries or assistant
secretaries may hold in addition to their primary position to not
more than 2 positions in the government and government
corporations, EO 284 actually allows them to hold multiple
offices or employment in direct contravention of the express
mandate of Sec 13, Art 7 of the 1987 Constitution prohibiting
them from doing so, unless otherwise provided in the 1987
Constitution itself.
Manila Prince Hotel v. GSIS, G.R. No. 122156, February 3,
1997
(En Banc)
BELLOSILLO, J.:
I. THE FACTS
Pursuant to the privatization program of the Philippine
Government, the GSIS sold in public auction its stake in Manila
Hotel Corporation (MHC). Only 2 bidders participated:
petitioner Manila Prince Hotel Corporation, a Filipino
corporation, which offered to buy 51% of the MHC or
15,300,000 shares at P41.58 per share, and Renong Berhad, a
Malaysian firm, with ITT-Sheraton as its hotel operator, which
bid for the same number of shares at P44.00 per share, or
P2.42 more than the bid of petitioner.
Petitioner filed a petition before the Supreme Court to compel
the GSIS to allow it to match the bid of Renong Berhad. It
invoked the Filipino First Policy enshrined in §10, paragraph 2,
Article XII of the 1987 Constitution, which provides that “in the
grant of rights, privileges, and concessions covering the
national economy and patrimony, the State shall give
preference to qualified Filipinos.”
II. THE ISSUES
1. Whether §10, paragraph 2, Article XII of the 1987
Constitution is a self-executing provision and does not need
implementing legislation to carry it into effect;
2. Assuming §10, paragraph 2, Article XII is self-executing,
whether the controlling shares of the Manila Hotel Corporation
form part of our patrimony as a nation;
3. Whether GSIS is included in the term “State,” hence,
mandated to implement §10, paragraph 2, Article XII of the
Constitution; and
4. Assuming GSIS is part of the State, whether it should give
preference to the petitioner, a Filipino corporation, over
Renong Berhad, a foreign corporation, in the sale of the
controlling shares of the Manila Hotel Corporation.
III. THE RULING
[The Court, voting 11-4, DISMISSED the petition.]
1. YES, §10, paragraph 2, Article XII of the 1987
Constitution is a self-executing provision and does not
need implementing legislation to carry it into effect.
Sec. 10, second par., of Art XII is couched in such a way as
not to make it appear that it is non-self-executing but simply for
purposes of style. But, certainly, the legislature is not
precluded from enacting further laws to enforce the
constitutional provision so long as the contemplated statute
squares with the Constitution. Minor details may be left to the
legislature without impairing the self-executing nature of
constitutional provisions.
xxx xxx xxx
Respondents . . . argue that the non-self-executing nature of
Sec. 10, second par., of Art. XII is implied from the tenor of the
first and third paragraphs of the same section which
undoubtedly are not self-executing. The argument is flawed. If
the first and third paragraphs are not self-executing because
Congress is still to enact measures to encourage the formation
and operation of enterprises fully owned by Filipinos, as in the
first paragraph, and the State still needs legislation to regulate
and exercise authority over foreign investments within its
national jurisdiction, as in the third paragraph, then a fortiori, by
the same logic, the second paragraph can only be self-
executing as it does not by its language require any legislation
in order to give preference to qualified Filipinos in the grant of
rights, privileges and concessions covering the national
economy and patrimony. A constitutional provision may be
self-executing in one part and non-self-executing in another.
xxx. Sec. 10, second par., Art. XII of the 1987 Constitution is a
mandatory, positive command which is complete in itself and
which needs no further guidelines or implementing laws or
rules for its enforcement. From its very words the provision
does not require any legislation to put it in operation. It is per
se judicially enforceable. When our Constitution mandates that
[i]n the grant of rights, privileges, and concessions covering
national economy and patrimony, the State shall give
preference to qualified Filipinos, it means just that - qualified
Filipinos shall be preferred. And when our Constitution
declares that a right exists in certain specified circumstances
an action may be maintained to enforce such right
notwithstanding the absence of any legislation on the subject;
consequently, if there is no statute especially enacted to
enforce such constitutional right, such right enforces itself by
its own inherent potency and puissance, and from which all
legislations must take their bearings. Where there is a right
there is a remedy. Ubi jus ibi remedium.
2. YES, the controlling shares of the Manila Hotel
Corporation form part of our patrimony as a nation.
In its plain and ordinary meaning, the term patrimony pertains
to heritage. When the Constitution speaks of national
patrimony, it refers not only to the natural resources of the
Philippines, as the Constitution could have very well used the
term natural resources, but also to the cultural heritage of the
Filipinos.
xxx xxx xxx
For more than eight (8) decades Manila Hotel has bore mute
witness to the triumphs and failures, loves and frustrations of
the Filipinos; its existence is impressed with public interest; its
own historicity associated with our struggle for sovereignty,
independence and nationhood. Verily, Manila Hotel has
become part of our national economy and patrimony. For sure,
51% of the equity of the MHC comes within the purview of the
constitutional shelter for it comprises the majority and
controlling stock, so that anyone who acquires or owns the
51% will have actual control and management of the hotel. In
this instance, 51% of the MHC cannot be disassociated from
the hotel and the land on which the hotel edifice stands.
Consequently, we cannot sustain respondents’ claim that the
Filipino First Policy provision is not applicable since what is
being sold is only 51% of the outstanding shares of the
corporation, not the Hotel building nor the land upon which the
building stands.
3. YES, GSIS is included in the term “State,” hence, it is
mandated to implement §10, paragraph 2, Article XII of the
Constitution.
It is undisputed that the sale of 51% of the MHC could only be
carried out with the prior approval of the State acting through
respondent Committee on Privatization. [T]his fact alone
makes the sale of the assets of respondents GSIS and MHC a
“state action.” In constitutional jurisprudence, the acts of
persons distinct from the government are considered “state
action” covered by the Constitution (1) when the activity it
engages in is a “public function;” (2) when the government is
so significantly involved with the private actor as to make the
government responsible for his action; and, (3) when the
government has approved or authorized the action. It is
evident that the act of respondent GSIS in selling 51% of its
share in respondent MHC comes under the second and third
categories of “state action.” Without doubt therefore the
transaction, although entered into by respondent GSIS, is in
fact a transaction of the State and therefore subject to the
constitutional command.
When the Constitution addresses the State it refers not only to
the people but also to the government as elements of the
State. After all, government is composed of three (3) divisions
of power - legislative, executive and judicial. Accordingly, a
constitutional mandate directed to the State is correspondingly
directed to the three (3) branches of government. It is
undeniable that in this case the subject constitutional injunction
is addressed among others to the Executive Department and
respondent GSIS, a government instrumentality deriving its
authority from the State.
4. YES, GSIS should give preference to the petitioner in
the sale of the controlling shares of the Manila Hotel
Corporation.
It should be stressed that while the Malaysian firm offered the
higher bid it is not yet the winning bidder. The bidding rules
expressly provide that the highest bidder shall only be declared
the winning bidder after it has negotiated and executed the
necessary contracts, and secured the requisite approvals.
Since the Filipino First Policy provision of the Constitution
bestows preference on qualified Filipinos the mere tending of
the highest bid is not an assurance that the highest bidder will
be declared the winning bidder. Resultantly, respondents are
not bound to make the award yet, nor are they under obligation
to enter into one with the highest bidder. For in choosing the
awardee respondents are mandated to abide by the dictates of
the 1987 Constitution the provisions of which are presumed to
be known to all the bidders and other interested parties.
xxx xxx xxx
Paragraph V. J. 1 of the bidding rules provides that [i]f for any
reason the Highest Bidder cannot be awarded the Block of
Shares, GSIS may offer this to other Qualified Bidders that
have validly submitted bids provided that these Qualified
Bidders are willing to match the highest bid in terms of price
per share. Certainly, the constitutional mandate itself is reason
enough not to award the block of shares immediately to the
foreign bidder notwithstanding its submission of a higher, or
even the highest, bid. In fact, we cannot conceive of a
stronger reason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest
bid in a public bidding concerning the grant of rights, privileges
and concessions covering the national economy and
patrimony, thereby exceeding the bid of a Filipino, there is no
question that the Filipino will have to be allowed to match the
bid of the foreign entity. And if the Filipino matches the bid of a
foreign firm the award should go to the Filipino. It must be so if
we are to give life and meaning to the Filipino First Policy
provision of the 1987 Constitution. For, while this may neither
be expressly stated nor contemplated in the bidding rules, the
constitutional fiat is omnipresent to be simply disregarded. To
ignore it would be to sanction a perilous skirting of the basic
law.
KILOSBAYAN vs GUINGONA 232 SCRA 110
FACTS:
The PCSO decided to establish an online lottery system for the
purpose of increasing its revenue base and diversifying its
sources of funds. Sometime before March 1993, after learning
that the PCSO was interested in operating on an online lottery
system, the Berjaya Group Berhad, with its affiliate, the
International Totalizator Systems, Inc. became interested to
offer its services and resources to PCSO. Considering the
citizenship requirement, the PGMC claims that Berjaya Group
undertook to reduce its equity stakes in PGMC to 40% by
selling 35% out of the original 75% foreign stockholdings to
local investors. An open letter was sent to President Ramos
strongly opposing the setting up of an online lottery system due
to ethical and moral concerns, however the project pushed
through.
ISSUES:
1. Whether the petitioners have locus standi (legal
standing); and
2. Whether the Contract of Lease is legal and valid in
light of Sec. 1 of R.A. 1169 as amended by B.P. Blg.
42.
RULING:
1. The petitioners have locus standi due to the
transcendental importance to the public that the case
demands. The ramifications of such issues
immeasurably affect the social, economic and moral
well-being of the people. The legal standing then of
the petitioners deserves recognition, and in the
exercise of its sound discretion, the Court brushes
aside the procedural barrier.
2. Sec. 1 of R.A. No. 1169, as amended by B.P. Blg. 42,
prohibits the PCSO from holding and conducting
lotteries “in collaboration, association or joint venture
with any person, association, company, or entity,
whether domestic or foreign.” The language of the
section is clear that with respect to its franchise or
privilege “to hold and conduct charity sweepstakes
races, lotteries and other similar activities,” the PCSO
cannot exercise it “in collaboration, association or joint
venture” with any other party. This is the unequivocal
meaning and import of the phrase. By the exception
explicitly made, the PCSO cannot share its franchise
with another by way of the methods mentioned, nor
can it transfer, assign or lease such franchise.
TOLENTINO vs COMELEC
FACTS:
The 1971 Constitutional Convention came into being by virtue
of two resolutions of the Congress approved in its capacity as
a constituent assembly convened for the purpose of calling a
convention to propose amendments to the Constitution. After
election of delegates held on November 10, 1970, the
Convention held its inaugural session on June 1, 1971. In the
morning of September 28, 1970, the Convention approved
Organic Resolution No. 1 which is entitled as, "A
RESOLUTION AMENDING SECTION 1 OF ARTICLE V OF
THE CONSTITUTION SO AS TO LOWER THE VOTING AGE
TO 18." On September 30, 1971, the COMELEC "resolved" to
follow the mandate of the Convention, that it will hold the said
plebiscite together with the senatorial elections on November
8, 1971 .
Petitioner, Arturo Tolentino, filed a petition for prohibition, its
main thrust being that Organic Resolution No. 1 and the
necessary implementing resolutions subsequently approved
have no force and effect as laws in so far as they provide for
the holding of a plebiscite co-incident with the senatorial
elections, 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 Article XV Section 1 of the
1935 Constitution, the proposed amendment in question
cannot be presented to the people for ratification separately
from each and all other amendments to be drafted and
proposed by the Constitution.
ISSUE:
Whether or not the Organic Resolution No. 1 of the 1971
Constitutional Convention violative to the Constitution.
HELD:
NO.
All the amendments to be proposed by the same Convention
must be submitted to the people in a single "election" or
plebiscite. In order that a plebiscite for the ratification of a
Constitutional amendment 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 but
as well as its relation to the other parts of the Constitution with
which it has to form a harmonious whole.
In the present context, where the Convention has hardly
started considering the merits, 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.
Miriam Defensor- Santiago vs. COMELEC
G.R No. 127325
March 19, 1997
FACTS:
On December 6, 1996, Atty. Jesus S. Delfin, founding member
of the Movement for People's Initiative, filed with the
COMELEC a "Petition to Amend the Constitution, to Lift Term
Limits of Elective Officials, by People's Initiative" citing Section
2, Article XVII of the Constitution. Acting on the petition, the
COMELEC set the case for hearing and directed Delfin to have
the petition published. After the hearing the arguments
between petitioners and opposing parties, the COMELEC
directed Delfin and the oppositors to file their "memoranda
and/or oppositions/memoranda" within five days. On December
18, 1996, Senator Miriam Defensor Santiago, Alexander
Padilla, and Maria Isabel Ongpin filed a special civil action for
prohibition under Rule 65 raising the following arguments,
among others:
1.) That the Constitution can only be amended by people’s
initiative if there is an enabling law passed by Congress, to
which no such law has yet been passed; and
2.) That R.A. 6735 does not suffice as an enabling law on
people’s initiative on the Constitution, unlike in the other modes
of initiative.
ISSUE:
WON R.A. No. 6735 sufficient to enable amendment of the
Constitution by people’s initiative.
WON RA 6735 was intended to include initiative on
amendments to the Constitution, and if so WON the Act as
worded adequately covers such initiative.
WON COMELEC Res. No. 2300 regarding the conduct of
initiative on amendments to the constitution is valid,
considering the absence in the law of specific provisions on the
conduct of such initiative?
WON the lifting of term limits of elective national and local
official, as proposed in the draft petition would constitute a
revision of , or an amendment of the constitution.
WON the COMELEC can take cognizance of or has jurisdiction
over the petition.
WON it is proper for the Supreme Court to take cognizance of
the petition when there is a pending case before the
COMELEC.
HELD:
NO. R.A. 6735 is inadequate to cover the system of initiative
on amendments to the Constitution.
Under the said law, initiative on the Constitution is confined
only to proposals to AMEND. The people are not accorded the
power to "directly propose, enact, approve, or reject, in whole
or in part, the Constitution" through the system of initiative.
They can only do so with respect to "laws, ordinances, or
resolutions." The use of the clause "proposed laws sought to
be enacted, approved or rejected, amended or repealed"
denotes that R.A. No. 6735 excludes initiative on amendments
to the Constitution.
Also, while the law provides subtitles for National Initiative and
Referendum and for Local Initiative and Referendum, no
subtitle is provided for initiative on the Constitution. This means
that the main thrust of the law is initiative and referendum on
national and local laws. If R.A. No. 6735 were intended to fully
provide for the implementation of the initiative on amendments
to the Constitution, it could have provided for a subtitle
therefor, considering that in the order of things, the primacy of
interest, or hierarchy of values, the right of the people to
directly propose amendments to the Constitution is far more
important than the initiative on national and local laws.
While R.A. No. 6735 specially detailed the process in
implementing initiative and referendum on national and local
laws, it intentionally did not do so on the system of initiative on
amendments to the Constitution.
COMELEC Resolution No. 2300 is hereby declared void and
orders the respondent to forthwith dismiss the Delfin Petition .
TRO issued on 18 December 1996 is made permanent.
WHEREFORE, petition is GRANTED.
Tañada, et al., v. Angara, et al., G.R. No. 118295, May 2, 1997
DECISION
(En Banc)
PANGANIBAN, J.:
I. THE FACTS
Petitioners Senators Tañada, et al. questioned the
constitutionality of the concurrence by the Philippine Senate of
the President’s ratification of the international Agreement
establishing the World Trade Organization (WTO). They
argued that the WTO Agreement violates the mandate of the
1987 Constitution to “develop a self-reliant and independent
national economy effectively controlled by Filipinos . . . (to)
give preference to qualified Filipinos (and to) promote the
preferential use of Filipino labor, domestic materials and locally
produced goods.” Further, they contended that the “national
treatment” and “parity provisions” of the WTO Agreement
“place nationals and products of member countries on the
same footing as Filipinos and local products,” in contravention
of the “Filipino First” policy of our Constitution, and render
meaningless the phrase “effectively controlled by Filipinos.”
II. THE ISSUE
Does the 1987 Constitution prohibit our country from
participating in worldwide trade liberalization and economic
globalization and from integrating into a global economy that is
liberalized, deregulated and privatized?
III. THE RULING
[The Court DISMISSED the petition. It sustained the
concurrence of the Philippine Senate of the President’s
ratification of the Agreement establishing the WTO.]
NO, the 1987 Constitution DOES NOT prohibit our country
from participating in worldwide trade liberalization and
economic globalization and from integrating into a global
economy that is liberalized, deregulated and privatized.
There are enough balancing provisions in the Constitution to
allow the Senate to ratify the Philippine concurrence in the
WTO Agreement.
[W]hile the Constitution indeed mandates a bias in favor of
Filipino goods, services, labor and enterprises, at the same
time, it recognizes the need for business exchange with the
rest of the world on the bases of equality and reciprocity and
limits protection of Filipino enterprises only against foreign
competition and trade practices that are unfair. In other words,
the Constitution did not intend to pursue an isolationist policy. It
did not shut out foreign investments, goods and services in the
development of the Philippine economy. While the Constitution
does not encourage the unlimited entry of foreign goods,
services and investments into the country, it does not prohibit
them either.In fact, it allows an exchange on the basis of
equality and reciprocity, frowning only on foreign competition
that is unfair.
xxx xxx xxx
[T]he constitutional policy of a “self-reliant and independent
national economy” does not necessarily rule out the entry of
foreign investments, goods and services. It contemplates
neither “economic seclusion” nor “mendicancy in the
international community.” As explained by Constitutional
Commissioner Bernardo Villegas, sponsor of this constitutional
policy:
Economic self-reliance is a primary objective of a developing
country that is keenly aware of overdependence on external
assistance for even its most basic needs. It does not mean
autarky or economic seclusion; rather, it means avoiding
mendicancy in the international community. Independence
refers to the freedom from undue foreign control of the national
economy, especially in such strategic industries as in the
development of natural resources and public utilities.
The WTO reliance on “most favored nation,” “national
treatment,” and “trade without discrimination” cannot be struck
down as unconstitutional as in fact they are rules of equality
and reciprocity that apply to all WTO members. Aside from
envisioning a trade policy based on “equality and reciprocity,”
the fundamental law encourages industries that are
“competitive in both domestic and foreign markets,” thereby
demonstrating a clear policy against a sheltered domestic
trade environment, but one in favor of the gradual development
of robust industries that can compete with the best in the
foreign markets. Indeed, Filipino managers and Filipino
enterprises have shown capability and tenacity to compete
internationally. And given a free trade environment, Filipino
entrepreneurs and managers in Hongkong have demonstrated
the Filipino capacity to grow and to prosper against the best
offered under a policy of laissez faire.
xxx xxx xxx
It is true, as alleged by petitioners, that broad constitutional
principles require the State to develop an independent national
economy effectively controlled by Filipinos; and to protect
and/or prefer Filipino labor, products, domestic materials and
locally produced goods. But it is equally true that such
principles — while serving as judicial and legislative guides —
are not in themselves sources of causes of action. Moreover,
there are other equally fundamental constitutional principles
relied upon by the Senate which mandate the pursuit of a
“trade policy that serves the general welfare and utilizes all
forms and arrangements of exchange on the basis of equality
and reciprocity” and the promotion of industries “which are
competitive in both domestic and foreign markets,” thereby
justifying its acceptance of said treaty. So too, the alleged
impairment of sovereignty in the exercise of legislative and
judicial powers is balanced by the adoption of the generally
accepted principles of international law as part of the law of the
land and the adherence of the Constitution to the policy of
cooperation and amity with all nations.
That the Senate, after deliberation and voting, voluntarily and
overwhelmingly gave its consent to the WTO Agreement
thereby making it “a part of the law of the land” is a legitimate
exercise of its sovereign duty and power. We find no “patent
and gross” arbitrariness or despotism “by reason of passion or
personal hostility” in such exercise. It is not impossible to
surmise that this Court, or at least some of its members, may
even agree with petitioners that it is more advantageous to the
national interest to strike down Senate Resolution No. 97. But
that is not a legal reason to attribute grave abuse of discretion
to the Senate and to nullify its decision. To do so would
constitute grave abuse in the exercise of our own judicial
power and duty. Ineludibly, what the Senate did was a valid
exercise of its authority. As to whether such exercise was wise,
beneficial or viable is outside the realm of judicial inquiry and
review. That is a matter between the elected policy makers and
the people. As to whether the nation should join the worldwide
march toward trade liberalization and economic globalization is
a matter that our people should determine in electing their
policy makers. After all, the WTO Agreement allows withdrawal
of membership, should this be the political desire of a member.
Randolf S. David v. Gloria Macapagal-Arroyo, G.R. No.
171396, May 3, 2006 (and other consolidated cases)
DECISION
SANDOVAL-GUTIERREZ, J.:
I. THE FACTS
On February 24, 2006, as the Filipino nation celebrated the
20th Anniversary of the EDSA People Power I, President
Arroyo issued PP 1017, implemented by G.O. No. 5, 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 (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.
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, and some
members of the political opposition in a plot to unseat or
assassinate President Arroyo.They considered the aim to oust
or assassinate the President and take-over the reins of
government as a clear and present danger.
Petitioners David and Llamas were arrested without warrants
on February 24, 2006 on their way to EDSA. Meanwhile, the
offices of the newspaper Daily Tribune, which was perceived to
be anti-Arroyo, was searched without warrant at about 1:00
A.M. on February 25, 2006. Seized from the premises – in the
absence of any official of the Daily Tribune except the security
guard of the building – were several materials for publication.
The law enforcers, a composite team of PNP and AFP officers,
cited as basis of the warrantless arrests and the warrantless
search and seizure was Presidential Proclamation 1017 issued
by then President Gloria Macapagal-Arroyo in the exercise of
her constitutional power to call out the Armed Forces of the
Philippines to prevent or suppress lawless violence.
II. THE ISSUE
1. Were the warrantless arrests of petitioners David, et al.,
made pursuant to PP 1017, valid?
2. Was the warrantless search and seizure on the Daily
Tribune’s officesconducted pursuant to PP 1017 valid?
III. THE RULING
[The Court partially GRANTED the petitions.]
1. NO, the warrantless arrests of petitioners David, et al.,
made pursuant to PP 1017, were NOT valid.
[S]earches, seizures and arrests are normally unreasonable
unless authorized by a validly issued search warrant or warrant
of arrest. Section 5, Rule 113 of the Revised Rules on Criminal
Procedure provides [for the following circumstances of valid
warrantless arrests]:
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 [provisions on in flagrante nor hot pursuit
warrantless arrests] 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.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.
2. NO, the warrantless search and seizure on the Daily
Tribune’s officesconducted pursuant to PP 1017 was NOT
valid.
[T]he search [and seizure in the Daily Tribune premises] is
illegal. Rule 126 of The Revised Rules on Criminal Procedure
lays down the steps in the conduct of search and seizure.
Section 4 requires that a search warrant be issued upon
probable cause in connection with one specific offence to be
determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he
may produce. Section 8 mandates that the search of a house,
room, or any other premise be made in the presence of the
lawful occupant thereof or any member of his family or in the
absence of 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 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 of the day or night. All
these rules were violated by the CIDG operatives.
BAYAN v. EXECUTIVE SECRETARY ERMITA
G.R. NO. 169838; 25 APR 2006
Facts
Rallies of September 20, October 4, 5 and 6, 2005 is at issue.
BAYAN’s rally was violently dispersed. 26 petitioners were
injured, arrested and detained when a peaceful mass action
they was preempted and violently dispersed by the police.
KMU asserts that the right to peaceful assembly, are affected
by Batas Pambansa No. 880 and the policy of “Calibrated
Preemptive Response” (CPR) being followed to implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-
sponsored was to be conducted at the Mendiola bridge but
police blocked them along C.M. Recto and Lepanto Streets
and forcibly dispersed them, causing injuries to several of their
members. They further allege that on October 6, 2005, a multi-
sectoral rally which KMU also co-sponsored was scheduled to
proceed along España Avenue in front of the UST and going
towards Mendiola bridge. Police officers blocked them along
Morayta Street and prevented them from proceeding further.
They were then forcibly dispersed, causing injuries on one of
them. Three other rallyists were arrested.
All petitioners assail Batas Pambansa No. 880 The Public
Assembly Act of 1985, some of them in toto and others only
Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of
CPR. They seek to stop violent dispersals of rallies under the
“no permit, no rally” policy and the CPR policy announced on
Sept. 21, 2005.
Petitioners Bayan, et al., contend that BP 880 is clearly a
violation ofthe Constitution and the International Covenant on
Civil and Political Rights and other human rights treaties of
which the Philippines is a signatory.
They argue that B.P. No. 880 requires a permit before one can
stage a public assembly regardless of the presence or
absence of a clear and present danger. It also curtails the
choice of venue and is thus repugnant to the freedom of
expression clause as the time and place of a public assembly
form part of the message for which the expression is sought.
Petitioners Jess del Prado, et al., in turn, argue that B.P. No.
880 is unconstitutional as it is a curtailment of the right to
peacefully assemble and petition for redress of grievances
because it puts a condition for the valid exercise of that right. It
also characterizes public assemblies without a permit as illegal
and penalizes them and allows their dispersal. Thus, its
provisions are not mere regulations but are actually
prohibitions. Regarding the CPR policy, it is void for being an
ultra vires act that alters the standard of maximum tolerance
set forth in B.P. No. 880, aside from being void for being vague
and for lack of publication.
KMU, et al., argue that the Constitution sets no limits on the
right to assembly and therefore B.P. No. 880 cannot put the
prior requirement of securing a permit. And even assuming that
the legislature can set limits to this right, the limits provided are
unreasonable: First, allowing the Mayor to deny the permit on
clear and convincingevidence of a clear and present danger is
too comprehensive. Second, the five-day requirement to apply
for a permit is too long as certain events require instant public
assembly, otherwise interest on the issue would possibly
wane.As to the CPR policy, they argue that it is preemptive,
that the government takes action even before the rallyists can
perform their act, and that no law, ordinance or executive order
supports the policy. Furthermore, it contravenes the maximum
tolerance policy of B.P. No. 880 and violates the Constitution
as it causes a chilling effect on the exercise by the people of
the right to peaceably assemble.
Respondents argued that petitioners have no standing. BP 880
entails traffic re-routing to prevent grave public inconvenience
and serious or undue interference in the free flow of commerce
and trade. It is content-neutral regulation of the time, place and
manner of holding public assemblies. According to Atienza RA.
7160 gives the Mayor power to deny a permit independently of
B.P. No. 880. and that the permit is for the use of a public
place and not for the exercise of rights; and that B.P. No. 880
is not a content-based regulation because it covers all rallies.
Issue
Whether or Not BP 880 and the CPR Policy unconstitutional.
Held
No question as to standing. Their right as citizens to engage in
peaceful assembly and exercise the right of petition, as
guaranteed by the Constitution, is directly affected by B.P. No.
880. B.P. 880 is not an absolute ban of public assemblies but a
restriction that simply regulates the time, place and manner of
the assemblies. It refers to all kinds of public assemblies that
would use public places. The reference to “lawful cause” does
not make it content-based because assemblies really have to
be for lawful causes, otherwise they would not be “peaceable”
and entitled to protection. Maximum tolerance1 is for the
protection and benefit of all rallyists and is independent of the
content of the expressions in the rally. There is, likewise, no
priorrestraint, since the content of the speech is not relevant to
the regulation.
The so-called calibrated preemptive response policy has no
place in our legal firmament and must be struck down as a
darkness that shrouds freedom. It merely confuses our people
and is used by some police agents to justify abuses. Insofar as
it would purport to differ from or be in lieu of maximum
tolerance, this was declared null and void.
The Secretary of the Interior and Local Governments, are
DIRECTED to take all necessary steps for the immediate
compliance with Section 15 of Batas Pambansa No. 880
through the establishment or designation of at least one
suitable freedom park or plaza in every city and municipality of
the country. After thirty (30) days from the finality of this
Decision, subject to the giving of advance notices, no prior
permitshall be required to exercise the right to peaceably
assemble and petition in the public parks or plazas of a city or
municipality that has not yet complied with Section 15 of the
law.
Roque, Jr. vs. Commission on Elections
G.R. No. 188456. September 10, 2009
FACTS:
(1) Petitioners filed a petitioner for certiorari, prohibition
and mandamus with prayer for a restraining order and/or
preliminary injunction and are suing as taxpayers and
concerned citizens. They seek to nullify respondent
COMELEC’s award of the 2010 Elections Automation
Project to the joint venture of Total Information
Management Corporation (TIM) and Smartmatic
International Corporation (Smartmatic)1 and to
permanently prohibit the Comelec, TIM and Smartmatic
from signing and/or implementing the corresponding
contract-award.
(2) On Dec 22, 1997 Congress enacted RA 8346
authorizing the adoption of an automated election system
(AES) in the May 11, 1998 national and local elections and
onwards. However during 1998, 2001 and 2004, purely
manual elections were done.
(3) On Jan 23, 2007, the amendatory of RA 9369 was
passed authorizing again the COMELEC to use the AES.
Sec 5 of that law authorised the COMELEC to:
“Use an automated election system or systems in the same
election in different provinces, whether paper-based or a direct
recording automated election system as it may deem
appropriate and practical for the process of voting, counting of
votes and canvassing/consolidation and transmittal of results
of electoral exercises: Provided, that for the regular national
and local election, which shall be held immediately after
effectivity of this Act, the AES shall be used in at least two
highly urbanized cities and two provinces each in Luzon,
Visayas and Mindanao, to be chosen by the Commission x x x
x In succeeding regular national or local elections, the AES
shall be implemented nationwide.”
 (4) However, the COMELEC did not use any AES in the
May 14 2007 elections.
(5) On July 19, 2009, the COMELEC and the TIM and
Smartmatic (provider) signed the contract for the
automated tallying and recording of votes cast nation-wide
in the May 2010 elections.
(6) For around P7 billion, the COMELEC leased 82,200
optical scanners, related equipment and hired ancillary
services provider to be used in the May 2010 elections.
(7) Hence this petition was filed to enjoin the signing of
the Contract or its implementation and to compel
disclosure of the terms of the contract and other
agreements between the provider and its subcontractors.
(8) Petitioners sought the Contract's invalidation for non-
compliance with the requirement in Section 5 of RA 8436,
as amended, mandating the partial use of an automated
election system before deploying it nationwide.
To further support their claim on the Contract's invalidity,
petitioners alleged that:
(1) the optical scanners leased by the COMELEC do not
satisfy the minimum systems capabilities" under RA 8436,
as amended (he was claiming that the COMELEC must
pilot test in 12 areas in the country in the national elections
of 2010, before doing fully computerized elections in the
national elections after 2010)
(2) the Provider not only failed to submit relevant
documents during the bidding but also failed to show
"community of interest" among its constituent corporations
as required in Information Technology Foundation of the
Philippines v. COMELEC (Infotech).
ISSUE:
· Is there a need for pilot testing of the PCOS machines
offered by Smartmatic and TIM? NO.
· Was there an invalid joint venture agreement between
COMELEC and the provider during the bidding that would
be in violation of the SC’s holding in the Information
Technology Foundation of the Philippines v. COMELEC
(Infotech) which requires a joint venture to include a copy
of its JVA DURING the bidding? NONE
· Was there an infringement of the constitutional right of
the people to secrecy of the ballot? NONE
HELD:
Pilot testing
· The plain wordings of Republic Act No. 9369 (that
amended RA 8436) commands that the 2010 elections
shall be fully automated, and such full automation is not
conditioned on “pilot testing” in the May 2007 elections.
Congress merely gave COMELEC the flexibility to partially
use the AES in some parts of the country for the May 2007
elections.
· Any lingering doubt on the issue of whether or not full
automation of the 2010 regular elections can validly
proceed without a pilot run of the Automated Election
System (AES) should be put to rest with the enactment in
March 2009 of Republic Act No. 9525, in which Congress
appropriated PhP 11.301 billion to automate the 2010
elections—the Republic Act No. 9525 is a compelling
indication that it was never Congress’ intent to make the
pilot testing of a particular automated election system in
the 2007 elections a condition precedent to its use or
award of the 2010 Automation Project.
Joint venture
· As petitioners observed, that the TIM- Smartmatic
joint venture remained an unincorporated aggroupment
during the bid- opening and evaluation stages. It ought to
be stressed, however, that the fact of non-incorporation
was without a vitiating effect on the validity of the tender
offers.
· For the bidding ground rules, as spelled out primarily
in the RFP and the clarificatory bid bulletins, does not
require, for bidding purposes, that there be an
incorporation of the bidding joint ventures or consortiums
· In fact, Bid Bulletin Nos. 19 and 20 recognize the
existence and the acceptability of proposals of
unincorporated joint ventures. In response to a poser, for
example, regarding the 60% Filipino ownership
requirement in a joint venture arrangement, the SBAC, in
its Bid Bulletin No. 22, stated:
“In an unincorporated joint venture, determination of the
required Filipino participation may be made by examining the
terms and conditions of the [JVA] and other supporting
financial documents submitted by the joint venture.”
· And the Court held that petitioners have not shown
that incorporation is part of the pass/fail criteria used in
determining eligibility
Infringement on secrecy and sanctity of the ballot and the
possible violation of the Anti-Dummy Law
· Petitioners were contending that the COMELEC
relinquished its supervision and control of the system to be
used for the automated elections since the COMELEC
would not be the one holding possession of the public and
private keys pair of the machines.
· But Court held that the role of Smartmatic TIM
Corporation is basically to supply the goods necessary for
the automation project, such as but not limited to the
PCOS machines, PCs, electronic transmission devices
and related equipment, both hardware and software, and
the technical services pertaining to their operation.
· As lessees of the goods and the back-up equipment,
the corporation and its operators would provide assistance
with respect to the machines to be used by the Comelec
which, at the end of the day, will be conducting the
election thru its personnel and whoever it deputizes. And if
only to emphasize a point, Comelec’s contract is with
Smartmatic TIM Corporation of which Smartmatic is a 40%
minority owner, per the JVA of TIM and Smartmatic and
the Articles of Incorporation of Smartmatic TIM
Corporation.
· Accordingly, any decision on the part or on behalf of
Smartmatic will not be binding on Comelec. As a
necessary corollary, the board room voting arrangement
that Smartmatic and TIM may have agreed upon as joint
venture partners, inclusive of the veto vote that one may
have power over the other, should really be the least
concern of the Comelec.
As to petitioner’s contention that the PCOS would infringe on
the secrecy and sanctity of the ballot because the voter would
be confronted with a “three feet” long ballot:
 · The Court held that, surely, the Comelec could put up
such infrastructure as to insure that the voter can write his
preference in relative privacy. And as demonstrated during
the oral arguments, the voter himself will personally feed
the ballot into the machine. A voter, if so minded to
preserve the secrecy of his ballot, will always devise a way
to do so. By the same token, one with least regard for
secrecy will likewise have a way to make his vote known.
As to the issue of the possible violation of the Anti Dummy Law
given that the RFP requirement of a joint venture bidder to be
at least be 60% Filipino:
· The winning bidder, TIM-Smartmatic joint venture,
has Smartmatic, a foreign corporation, owning 40% of the
equity in, first, the joint venture partnership, and then in
Smartmatic TIM Corporation.
· The Anti-Dummy Law has been enacted to limit the
enjoyment of certain economic activities to Filipino citizens
or corporations. For liability for violation of the law to
attach, it must be established that there is a law limiting or
reserving the enjoyment or exercise of a right, franchise,
privilege, or business to citizens of the Philippines or to
corporations or associations at least 60 per centum of the
capital of which is owned by such citizens.
· In the case at bench, the Court is not aware of any
constitutional or statutory provision classifying as a
nationalized activity the lease or provision of goods and
technical services for the automation of an election. In
fact, Sec. 8 of RA 8436, as amended, vests the Comelec
with specific authority to acquire AES from foreign
sources, thus:
Ø SEC 12. Procurement of Equipment and
Materials.—To achieve the purpose of this
Act, the Commission is authorized to
procure, xxx, by purchase, lease, rent or
other forms of acquisition, supplies,
equipment, materials, software, facilities,
and other services, from local or foreign
sources xxx.”
· Petitioners cite Executive Order No. (EO) 584,98
Series of 2006, purportedly limiting “contracts for the
supply of materials, goods and commodities to
government- owned or controlled corporation, company,
agency or municipal corporation” to corporations that are
60% Filipino.
But the Court did not see the governing relevance of EO 584.
For let alone the fact that RA 9369 is, in relation to EO 584, a
subsequent enactment and, therefore, enjoys primacy over the
executive issuance, the Comelec does fall under the category
of a government-owned and controlled corporation, an agency
or a municipal corporation contemplated in the executive order.
SANIDAD VS COMELEC
73 SCRA 333 – Political Law – Constitutional Law –
Amendment to the Constitution
On 2 Sept 1976, Marcos issued PD No. 991 calling for a
national referendum on 16 Oct 1976 for the Citizens
Assemblies (“barangays”) to resolve, among other things, the
issues of martial law, the interim assembly, its replacement,
the powers of such replacement, the period of its existence,
the length of the period for the exercise by the President of his
present powers. Twenty days after, the President issued
another related decree, PD No. 1031, amending the previous
PD No. 991, by declaring the provisions of PD No. 229
providing for the manner of voting and canvass of votes in
“barangays” applicable to the national referendum-plebiscite of
Oct 16, 1976. Quite relevantly, PD No. 1031 repealed inter
alia, Sec 4, of PD No. 991. On the same date of 22 Sept 1976,
Marcos issued PD No. 1033, stating the questions to he
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
interim National Assembly evinces their desire to have such
body abolished and replaced thru a constitutional amendment,
providing for a new interim legislative body, which will be
submitted directly to the people in the referendum-plebiscite of
October 16.
On September 27, 1976, Sanidad filed a 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.
The Soc-Gen contended that the question is political in nature
hence the court cannot take cognizance of it.
ISSUE: Whether or not Marcos can validly propose
amendments to the Constitution.
HELD: Yes. 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.
This petition is however dismissed. The President can propose
amendments to the Constitution and he was able to present
those proposals to the people in sufficient time. The President
at that time also sits as the legislature.
73 SCRA 333 – Political Law – Constitutional Law – Definition
of Political Question
ISSUE: Whether or not the issue is a political question.
HELD: The SC ruled that the issue is not a political question
but rather a justiciable one. 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. Political
questions are neatly associated with the wisdom, not 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 confronting the SC 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.
This petition is however dismissed. The President, who was
also the legislature, can propose amendments to the
Constitution and he was able to present those proposals to the
people in sufficient time.