[Emphasis added.
]
EN BANC
[G.R. No. 123169. November 4, 1996]
DANILO E. PARAS, petitioner, vs. COMMISSION
ELECTIONS, respondent.
RESOLUTION
FRANCISCO, J.:
Petitioner Danilo E. Paras is the incumbent Punong Barangay
of Pula, Cabanatuan City who won during the last regular barangay
election in 1994. A petition for his recall as Punong Barangay was filed
by the registered voters of the barangay. Acting on the petition for
recall, public respondent Commission on Elections (COMELEC)
resolved to approve the petition, scheduled the petition signing
on October 14, 1995, and set the recall election on November 13,
1995.[1] At least 29.30% of the registered voters signed the petition,
well above the 25% requirement provided by law. The COMELEC,
however, deferred the recall election in view of petitioners
opposition. On December 6, 1995, the COMELEC set anew the recall
election, this time on December 16, 1995. To prevent the holding of the
recall election, petitioner filed before
the Regional Trial Court of Cabanatuan City a petition for injunction,
docketed as SP Civil Action No. 2254-AF, with the trial court issuing a
temporary restraining order. After conducting a summary hearing, the
trial court lifted the restraining order, dismissed the petition and
required petitioner and his counsel to explain why they should not be
cited for contempt for misrepresenting that the barangay recall election
was without COMELEC approval.[2]
In a resolution dated January 5, 1996, the COMELEC, for the
third time, re-scheduled the recall election on January 13, 1996; hence,
the instant petition for certiorari with urgent prayer for
injunction. On January 12, 1996, the Court issued a temporary
restraining order and required the Office of the Solicitor General, in
behalf of public respondent, to comment on the petition. In view of the
Office of the Solicitor Generals manifestation maintaining an opinion
adverse to that of the COMELEC, the latter through its law department
filed the required comment. Petitioner thereafter filed a reply.[3]
Petitioners argument is simple and to the point. Citing Section 74
(b) of Republic Act No. 7160, otherwise known as the Local
Government Code, which states that no recall shall take place within
one (1) year from the date of the officials assumption to office or one
(1) year immediately preceding a regular local election, petitioner
insists that the scheduled January 13, 1996 recall election is now
barred as the Sangguniang Kabataan (SK) election was set by
Republic Act No. 7808 on the first Monday of May 1996, and every
three years thereafter. In support thereof, petitioner cites Associated
Labor Union v. Letrondo-Montejo, 237 SCRA 621, where the Court
considered the SK election as a regular local election. Petitioner
maintains that as the SK election is a regular local election, hence no
recall election can be had for barely four months separate the SK
election from the recall election. We do not agree.
The subject provision of the Local Government Code provides:
SEC. 74. Limitations on Recall. (a) Any elective local official may be
the subject of a recall election only once during his term of office for
loss of confidence.
(b) No recall shall take place within one (1) year from the date of the
officials assumption to office or one (1) year immediately preceding
a regular local election.
It is a rule in statutory construction that every part of the statute
must be interpreted with reference to the context, i.e., that every part of
the statute must be considered together with the other parts, and kept
subservient to the general intent of the whole enactment.[4] The evident
intent of Section 74 is to subject an elective local official to recall
election once during his term of office.Paragraph (b) construed
together with paragraph (a) merely designates the period when such
elective local official may be subject of a recall election, that is, during
ON the second year of his term of office. Thus, subscribing to petitioners
interpretation of the phrase regular local election to include the SK
election will unduly circumscribe the novel provision of the Local
Government Code on recall, a mode of removal of public officers by
initiation of the people before the end of his term. And if the SK
election which is set by R.A. No. 7808 to be held every three years
from May 1996 were to be deemed within the purview of the
phrase regular local election, as erroneously insisted by petitioner,
then no recall election can be conducted rendering inutile the recall
provision of the Local Government Code.
In the interpretation of a statute, the Court should start with the
assumption that the legislature intended to enact an effective law, and
the legislature is not presumed to have done a vain thing in the
enactment of a statute.[5] An interpretation should, if possible, be
avoided under which a statute or provision being construed is
defeated, or as otherwise expressed, nullified, destroyed,
emasculated, repealed, explained away, or rendered insignificant,
meaningless, inoperative or nugatory.[6]
It is likewise a basic precept in statutory construction that a
statute should be interpreted in harmony with the Constitution.[7] Thus,
the interpretation of Section 74 of the Local Government Code,
specifically paragraph (b) thereof, should not be in conflict with the
Constitutional mandate of Section 3 of Article X of the Constitution to
enact a local government code which shall provide for a more
responsive and accountable local government structure instituted
through a system of decentralization with effective mechanisms of
recall, initiative, and referendum x x x.
Moreover, petitioners too literal interpretation of the law leads to
absurdity which we cannot countenance. Thus, in a case, the Court
made the following admonition:
We admonish against a too-literal reading of the law as this is apt to
constrict rather than fulfill its purpose and defeat the intention of its
authors. That intention is usually found not in the letter that killeth but
in the spirit that vivifieth x x x[8]
The spirit, rather than the letter of a law determines its construction;
hence, a statute, as in this case, must be read according to its spirit
and intent.
Finally, recall election is potentially disruptive of the normal
working of the local government unit necessitating additional
expenses, hence the prohibition against the conduct of recall election
one year immediately preceding the regular local election. The
proscription is due to the proximity of the next regular election for the
office of the local elective official concerned. The electorate could
choose the officials replacement in the said election who certainly has
a longer tenure in office than a successor elected through a recall
election. It would, therefore, be more in keeping with the intent of the
recall provision of the Code to construe regular local election as one
referring to an election where the office held by the local elective
official sought to be recalled will be contested and be filled by the
electorate.
Nevertheless, recall at this time is no longer possible because of
the limitation stated under Section 74 (b) of the Code considering that
the next regular election involving the barangay office concerned is
barely seven (7) months away, the same having been scheduled on
May 1997.[9]
ACCORDINGLY, the petition is hereby dismissed for having
become moot and academic. The temporary restraining order issued
1
by the Court on January 12, 1996, enjoining the recall election should
be as it is hereby made permanent.
SO ORDERED.
Romero, Melo, Puno, Kapunan, Hermosisima, Jr.,
Panganiban, and Torres, Jr., JJ., concur.
Narvasa, C.J., Padilla, Regalado, Bellosillo, Vitug, and Mendoza,
JJ., concur in the majority and separate concurring opinions.
Davide, Jr., Please see separate concurring opinion.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 100776 October 28, 1993
ALBINO S. CO, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
Antonio P. Barredo for petitioner.
The Solicitor General for the people.
NARVASA, C.J.:
In connection with an agreement to salvage and refloat asunken vessel
— and in payment of his share of the expenses of the salvage
operations therein stipulated — petitioner Albino Co delivered to the
salvaging firm on September 1, 1983 a check drawn against the
Associated Citizens' Bank, postdated November 30, 1983 in the sum of
P361,528.00.1 The check was deposited on January 3, 1984. It was
dishonored two days later, the tersely-stated reason given by the bank
being: "CLOSED ACCOUNT."
A criminal complaint for violation of Batas Pambansa Bilang 222 was
filed by the salvage company against Albino Co with the Regional Trial
Court of Pasay City. The case eventuated in Co's conviction of the
crime charged, and his being sentenced to suffer a term of
imprisonment of sixty (60) days and to indemnify the salvage company
in the sum of P361,528.00.
Co appealed to the Court of Appeals. There he sought exoneration
upon the theory that it was reversible error for the Regional Trial Court
to have relied, as basis for its verdict of conviction, on the ruling
rendered on September 21, 1987 by this Court in Que v. People, 154
SCRA 160 (1987)3 — i.e., that a check issued merely to guarantee the
performance of an obligation is nevertheless covered by B.P. Blg. 22.
This was because at the time of the issuance of the check
on September 1, 1983, some four (4) years prior to the promulgation of
the judgment in Que v. Peopleon September 21, 1987, the delivery of
a "rubber" or "bouncing" check as guarantee for an obligation was not
considered a punishable offense, an official pronouncement made in a
Circular of the Ministry of Justice. That Circular (No. 4),
dated December 15, 1981, pertinently provided as follows:
2.3.4. Where issuance of bouncing check is neither estafa nor violation
of B.P. Blg. 22.
Where the check is issued as part of an arrangement to guarantee or
secure the payment of an obligation, whether pre-existing or not, the
drawer is not criminally liable for either estafa or violation of B.P. Blg.
22 (Res. No. 438, s. 1981, Virginia Montano vs. Josefino Galvez, June
19, 1981; Res. No. 707, s. 1989; Alice Quizon vs. Lydia Calingo,
October 23, 1981, Res. No. 769, s. 1981, Alfredo Guido vs. Miguel A.
Mateo, et. al., November 17, 1981; Res. No. 589, s. 1981, Zenaida
Lazaro vs. Maria Aquino, August 7, 1981).
This administrative circular was subsequently reversed by another
issued on August 8, 1984 (Ministry Circular No. 12) — almost one (1)
year after Albino Co had delivered the "bouncing" check to the
complainant on September 1, 1983. Said Circular No. 12, after
observing inter alia that Circular No. 4 of December 15, 1981 appeared
to have been based on "a misapplication of the deliberation in the
Batasang Pambansa, . . . (or) the explanatory note on the original bill,
i.e. that the intention was not to penalize the issuance of a check to
secure or guarantee the payment of an obligation," as follows: 4
Henceforth, conforming with the rule that an administrative agency
having interpreting authority may reverse its administration
interpretation of a statute, but that its review interpretation applies only
prospectively (Waterbury Savings Bank vs. Danaher, 128 Conn., 476;
20 a2d 455 (1941), in all cases involving violation of Batas Pambansa
Blg. 22 where the check in question is issued after this date, the claim
that the check is issued as a guarantee or part of an arrangement to
secure an obligation collection will no longer be considered a valid
defense.
Co's theory was rejected by the Court of Appeals which affirmed his
conviction. Citing Senarillos v. Hermosisima, 101 Phil. 561, the
Appellate Court opined that the Que doctrine did not amount to the
passage of new law but was merely a construction or interpretation of
a pre-existing one, i.e., BP 22, enacted on April 3, 1979.
From this adverse judgment of the Court of Appeals, Albino Co
appealed to this Court on certiorari under Rule 45 of the Rules of
Court. By Resolution dated September 9, 1991, the Court dismissed
his appeal. Co moved for reconsideration under date of October 2,
1991. The Court required comment thereon by the Office of the
Solicitor General. The latter complied and, in its comment dated
December 13, 1991, extensively argued against the merits of Albino
Co's theory on appeal, which was substantially that proffered by him in
the Court of Appeals. To this comment, Albino Co filed a reply dated
February 14, 1992. After deliberating on the parties' arguments and
contentions, the Court resolved, in the interests of justice, to reinstate
Albino Co's appeal and adjudicate the same on its merits.
Judicial decisions applying or interpreting the laws or the Constitution
shall form a part of the legal system of the Philippines," according to
Article 8 of the Civil Code. "Laws shall have no retroactive effect,
unless the contrary is provided," declares Article 4 of the same Code, a
declaration that is echoed by Article 22 of the Revised Penal Code:
"Penal laws shall have, a retroactive effect insofar as they favor the
person guilty of a felony, who is not a habitual criminal . . .5
The principle of prospectivity of statutes, original or amendatory, has
been applied in many cases. These include: Buyco v. PNB, 961 2
SCRA 682 (June 30, 1961), holding that Republic Act No. 1576 which
divested the Philippine National Bank of authority to accept back pay
certificates in payment of loans, does not apply to an offer of payment
made before effectivity of the act; Largado v. Masaganda, et al., 5
SCRA 522 (June 30, 1962), ruling that RA 2613, s amended by RA
3090 on June, 1961, granting to inferior courts jurisdiction over
guardianship cases, could not be given retroactive effect, in the
2
absence of a saving clause; Larga v. Ranada, Jr., 64 SCRA 18, to the
effect that Sections 9 and 10 of Executive Order No. 90, amending
Section 4 of PD 1752, could have no retroactive application; People
v. Que Po Lay, 94 Phil. 640, holding that a person cannot be convicted
of violating Circular No. 20 of the Central, when the alleged violation
occurred before publication of the Circular in the Official
Gazette; Baltazar v. C.A., 104 SCRA 619, denying retroactive
application to P.D. No. 27 decreeing the emancipation of tenants from
the bondage of the soil, and P.D. No. 316 prohibiting ejectment of
tenants from rice and corn farmholdings, pending the promulgation of
rules and regulations implementing P.D. No. 27; Nilo v. Court of
Appeals, 128 SCRA 519, adjudging that RA 6389 whichremoved
"personal cultivation" as a ground for the ejectment of a tenant cannot
be given retroactive effect in the absence of a statutory statement for
retroactivity; Tac-An v. CA, 129 SCRA 319, ruling that the repeal of the
old Administrative Code by RA 4252 could not be accorded retroactive
effect; Ballardo v. Borromeo, 161 SCRA 500, holding that RA 6389
should have only prospective application; (see also Bonifacio v. Dizon,
177 SCRA 294 and Balatbat v. CA, 205 SCRA 419).
The prospectivity principle has also been made to apply to
administrative rulings and circulars, to wit: ABS-CBN Broadcasting
Corporation v. CTA, Oct. 12, 1981, 108 SCRA 142, holding that a
circular or ruling of the Commissioner of Internal Revenue may not be
given retroactive effect adversely to a taxpayer: Sanchez v.COMELEC,
193 SCRA 317, ruling that Resolution No. 90-0590 of the Commission
on Elections, which directed the holding of recall proceedings, had no
retroactive application; Romualdez v. CSC, 197 SCRA 168, where it
was ruled that CSC Memorandum Circular No. 29, s. 1989 cannot be
given retrospective effect so as to entitle to permanent appointment an
employee whose temporary appointment had expired before the
Circular was issued.
The principle of prospectivity has also been applied to judicial
decisions which, "although in themselves not laws, are nevertheless
evidence of what the laws mean, . . . (this being) the reason whyunder
Article 8 of the New Civil Code, 'Judicial decisions applying or
interpreting the laws or the Constitution shall form a part of the legal
system . . .'"
So did this Court hold, for example, in Peo. v. Jabinal, 55 SCRA 607,
611:
It will be noted that when appellant was appointed Secret Agent by the
Provincial Government in 1962, and Confidential Agent by the
Provincial commander in 1964, the prevailing doctrine on the matter
was that laid down by Us in People v. Macarandang (1959) and People
v. Lucero (1958).6 Our decision in People v. Mapa,7 reversing the
aforesaid doctrine, came only in 1967. The sole question in this appeal
is: should appellant be acquitted on the basis of Our rulings
in Macarandang and Lucero, or should his conviction stand in view of
the complete reverse of the Macarandang and Lucero doctrine in
Mapa? . . .
Decisions of this Court, although in themselves not laws, are
nevertheless evidence of what the laws mean, and this is the reason
why under Article 8 of the New Civil Code, "Judicial decisions applying
or interpreting the laws or the Constitution shall form a part of the legal
system . . ."The interpretation upon a law by this Court constitutes, in a
way, a part of the law as of the date that law was originally passed,
since this Court's construction merely establishes the
contemporaneous legislative intent that the law thus construed intends
to effectuate. The settled rule supported by numerous authorities is a
restatement of the legal maxim "legis interpretation legis vim
obtinet" — the interpretation placed upon the written law by a
competent court has the force of law. The doctrine laid down
in Lucero and Macarandang was part of the jurisprudence, hence, of
the law, of the land, at the time appellant was found in possession of
the firearm in question and where he was arraigned by the trial court. It
is true that the doctrine was overruled in the Mapa case in 1967, but
when a doctrine of this Court is overruled and a different view is
adopted, the new doctrine should be applied prospectively, and should
not apply to parties who had relied on, the old doctrine and acted on
the faith thereof. This is especially true in the construction and
application of criminal laws, where it is necessary that the punishment
of an act be reasonably foreseen for the guidance of society.
So, too, did the Court rule in Spouses Gauvain and Bernardita
Benzonan v. Court of Appeals, et al. (G.R. No. 97973)
and Development Bank of the Philippines v. Court of Appeals, et
al (G.R. No 97998), Jan. 27, 1992, 205 SCRA 515, 527-528:8
We sustain the petitioners' position, It is undisputed that the subject lot
was mortgaged to DBP on February 24, 1970. It was acquired by DBP
as the highest bidder at a foreclosure sale on June 18, 1977, and then
sold to the petitioners on September 29, 1979.
At that time, the prevailing jurisprudence interpreting section 119 of
R.A. 141 as amended was that enunciated in Monge and Tupas cited
above. The petitioners Benzonan and respondent Pe and the DBP are
bound by these decisions for pursuant to Article 8 of the Civil Code
"judicial decisions applying or interpreting the laws or the Constitution
shall form a part of the legal system of the Philippines." But while our
decisions form part of the law of the land, they are also subject to
Article 4 of the Civil Code which provides that "laws shall have no
retroactive effect unless the contrary is provided." This is expressed in
the familiar legal maxim lex prospicit, non respicit, the law looks
forward not backward. The rationale against retroactivity is easy to
perceive. The retroactive application of a law usually divests rights that
have already become vested or impairs the obligations of contract and
hence, is unconstitutional (Francisco vs. Certeza, 3 SCRA 565 [1061]).
The same consideration underlies our rulings giving only prospective
effect to decisions enunciating new doctrines. Thus, we emphasized
in People v. Jabinal, 55 SCRA 607 [1974]" . . . when a doctrine of this
Court is overruled and a different view is adopted, the new doctrine
should be applied prospectively and should not apply to parties who
had relied on the old doctrine and acted on the faith thereof.
A compelling rationalization of the prospectivity principle of judicial
decisions is well set forth in the oft-cited case of Chicot County
Drainage Dist. v. Baxter States Bank, 308 US 371, 374 [1940]. The
Chicot doctrine advocates the imperative necessity to take account of
the actual existence of a statute prior to its nullification, as an operative
fact negating acceptance of "a principle of absolute retroactive
invalidity.
Thus, in this Court's decision in Tañada v. Tuvera,9 promulgated on
April 24, 1985 — which declared "that presidential issuances of
general application, which have not been published,shall have no force
and effect," and as regards which declaration some members of the
Court appeared "quite apprehensive about the possible unsettling
effect . . . (the) decision might have on acts done in reliance on the
validity of these presidential decrees . . ." — the Court said:
. . . . The answer is all too familiar. In similar situation is in the past this
Court, had taken the pragmatic and realistic course set forth in Chicot
County Drainage District vs. Baxter Bank (308 U.S. 371, 374) to wit:
The courts below have proceeded on the theory that the Act of
Congress, having found to be unconstitutional, was not a law; that it
3
was inoperative, conferring no rights and imposing no duties, and
hence affording no basis for the challenged decree. Norton vs. Shelby
County, 118 US 425, 442; Chicago, I. & L. Ry. Co. v. Hackett, 228 U.
S. 559, 566. It is quite clear, however, that such broad statements as
to the effect of a determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to such a
determination, 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 conduct, private and official. Questions of rights claimed to
have become vested, of status, of prior determinations deemed to
have finality and acted upon accordingly, of public policy in the light of
the nature both of the statute and of its previous application, demand
examination. These questions are among the most difficult of those
who have engaged the attention of courts, state and federal, and it is
manifest from numerous decisions that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified.
Much earlier, in De Agbayani v. PNB, 38 SCRA 429 — concerning the
effects of the invalidation of "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 payable by war sufferers," and
which had been "explicitly held in Rutter v. Esteban (93 Phil. 68
[1953] 10 . . . (to be) in 1953 'unreasonable and oppressive, and should
not be prolonged a minute longer . . ." — the Court made substantially
the same observations, to wit:11
. . . . 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 amere scrap of paper. . .
. 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.
lt 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 compiled 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 theirpositions, 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 is 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 (Chicot County Drainage Dist. v. Baxter
States Bank, 308 US 371, 374 [1940]). This language has been quoted
with approval in a resolution in Araneta v. Hill (93 Phil. 1002 [1953])
and the decision in Manila Motor Co. Inc. v. Flores (99 Phil. 738
[1956]). An even more recent instance is the opinion of Justice Zaldivar
speaking for the Court in Fernandez v. Cuerva and Co. (L-21114, Nov.
28, 1967, 21 SCRA 1095).
Again, treating of the effect that should be given to its decision
in Olaguer v. Military Commission No 34, 12 — declaring invalid
criminal proceedings conducted during the martial law regime against
civilians, which had resulted in the conviction and incarceration of
numerous persons — this Court, in Tan vs. Barrios, 190 SCRA 686, at
p. 700, ruled as follows:
In the interest of justice and consistently, we hold that Olaguer should,
in principle, be applied prospectively only to future cases and cases
still ongoing or not yet final when that decision was promulgated.
Hence, there should be no retroactive nullification of final judgments,
whether of conviction or acquittal, rendered by military courts against
civilians before the promulgation of the Olaguer decision. Such final
sentences should not be disturbed by the State. Only in particular
cases where the convicted person or the State shows that there was
serious denial of constitutional rights of the accused, should the nullity
of the sentence be declared and a retrial be ordered based on the
violation of the constitutional rights of the accused and not on the
Olaguer doctrine. If a retrial is no longer possible, the accused should
be released since judgment against him is null on account of the
violation of his constitutional rights and denial of due process.
xxx xxx xxx
The trial of thousands of civilians for common crimes before the
military tribunals and commissions during the ten-year period of martial
rule (1971-1981) which were created under general orders issued by
President Marcos in the exercise of his legislative powers is an
operative fact that may not just be ignored. The belated declaration in
1987 of the unconstitutionality and invalidity of those proceedings did
not erase the reality of their consequences which occurred long before
our decision in Olaguer was promulgated and which now prevent us
from carrying Olaguer to the limit of its logic. Thus did this Court rule in
Municipality of Malabang v. Benito, 27 SCRA 533, where the question
arose as to whether the nullity of creation of a municipality by
executive order wiped out all the acts of the local government
abolished. 13
It would seem then, that the weight of authority is decidedly in favor of
the proposition that the Court's decision of September 21, 1987 in Que
v. People, 154 SCRA 160 (1987) 14 that a check issued merely to
guarantee the performance of an obligation is nevertheless covered by
B.P. Blg. 22 — should not be given retrospective effect to the prejudice
of the petitioner and other persons situated, who relied on the official
opinion of the Minister of Justice that such a check did not fall within
the scope of B.P. Blg. 22.
Inveighing against this proposition, the Solicitor General
invokes U.S. v. Go Chico, 14 Phil. 128, applying the familiar doctrine
that in crimes mala prohibita, the intent or motive of the offender is
inconsequential, the only relevant inquiry being, "has the law been
violated?" The facts in Go Chico are substantially different from those
in the case at bar. In the former, there was no official issuance by the
Secretary of Justice or other government officer construing the special
law violated; 15 and it was there observed, among others, that "the
defense . . . (of) an honest misconstruction of the law under legal
advice" 16 could not be appreciated as a valid defense. In the present
4
case on the other hand, the defense is that reliance was placed, not on
the opinion of a private lawyer but upon an official pronouncement of
no less than the attorney of the Government, the Secretary of Justice,
whose opinions, though not law, are entitled to great weight and on
which reliance may be placed by private individuals is reflective of the
correct interpretation of a constitutional or statutory provision; this,
particularly in the case of penal statutes, by the very nature and scope
of the authority that resides in as regards prosecutions for their
violation.17 Senarillos vs.Hermosisima, supra, relied upon by the
respondent Court of Appeals, is crucially different in that in said case,
as in U.S. v. Go Chico, supra, no administrative interpretation
antedated the contrary construction placed by the Court on the law
invoked.
appointment by the Provincial Governor or Provincial Commander of a
person as a "secret agent" or "confidential agent" "sufficiently placed
him under the category of a 'peace officer' . . . who under section 879
of the Revised Administrative Code is exempted from the requirements
relating to the issuance of license to possess firearm.
7 SEE Ilagan v. People, Jan. 29, 1974, 55 SCRA 361.
8 The title of the cited Monge case is Monge, et al. v. Angeles, et al.,
and is reported in 101 Phil., 563 [1957], while that of the cited Tupas
case is Tupas v. Damasco, et al., reported in 132 SCRA 593 [1984].
9 136 SCRA 27, 40-41.

This is after all a criminal action all doubts in which, pursuant to
familiar, fundamental doctrine, must be resolved in favor of the
accused. Everything considered, the Court sees no compelling reason
why the doctrine of mala prohibita should override the principle of
prospectivity, and its clear implications as herein above set out and
discussed, negating criminal liability.
WHEREFORE, the assailed decisions of the Court of Appeals and of
the Regional Trial Court are reversed and set aside, and the criminal
prosecution against the accused-petitioner is DISMISSED, with
costs de oficio.
10 And several other rulings set forth in a corresponding footnote in the
text of the decision.
11 SEE also Olaguer v. Military Commission No. 34, 150 SCRA 144
(1987) (Citing Municipality of Malabang v. Benito, 27 SCRA 533 where
the question arose as to whether the judicial nullification of an
executive order creating a municipality wiped out all the acts of the
local government abolished); Tan v. Barrios, 190 SCRA 686 (1990);
Drilon v. Court of Appeals, 202 SCRA 378 (1991); Union of Filipino
Employees v. Vivar, Jr., 205 SCRA 200 (1992); Peralta v. Civil Service
Commission, 212 SCRA 425.

SO ORDERED. 12 150 SCRA 144 (1987).

Padilla, Regalado, Nocon and Puno, JJ., concur. 13 SEE also Cruz v. Enrile, 160 SCRA 700 [1988] and Res. of
February 26, 1991; and Drilon v. Court of Appeals, 202 SCRA 378
# Footnotes [1991].

1 As found by the Court of Appeals, the agreement was between Co, 14 SEE footnote 3, supra.
representing Mayflower Shipping Corporation, and Geronimo B. Bella,
representing Tans-Pacific Towage, Inc. The expenses for refloating 15 Act No. 1696 of the Philippine Commission punishing any person
were apportioned chiefly between FGU Insurance and Development who shall expose, or cause or permit to be exposed, to public view . . .
Bank of the Philippines, which respectively contributed P2,329,022.00 any flag, banner, emblem, or device used during the late insurrection in
and P1,579,000.00. SEE Rollo, pp. 9, 20-21. the Philippine Islands to designate or identify those in armed rebellion
against the United States, . . .
2 Otherwise known as the "Bouncing Checks Law".
16 14 Phil. 128, 133-134.
3 The ruling is contained in an extended resolution on a motion for
reconsideration, promulgated by the Special Former Second Division 17 Estrella vs. Orendain, 37 SCRA 640; Noblejas vs. Salas, 67 SCRA
of the Court on September 21, 1987, written for the division by 47.
Paras,J., with whom concurred Fernan, Gutierrez, Jr., Padilla, Bidin
and Cortes, JJ. In that resolution, the Court gave its "stamp of THIRD DIVISION
approval" on the decision of the Court of Appeals holding inter alia that
"It is now settled that Batas Pambansa Bilang 22 applies even in cases
where dishonored checks are issued merely in the form of a deposit or
a guarantee." CARMELO F. LAZATIN, G.R. No. 147097
MARINO A. MORALES,
4 Emphasis supplied. TEODORO L. DAVID and Present:
ANGELITO A. PELAYO,
5 Exceptions to the rule of prospectivity are collated, e.g., in the YNARES-SANTIAGO, J.,
textbook of retired Justice Edgardo A. Paras (Civil Code of the Petitioner,
Philippines Annotated, 1984 ed., Vol. 1, pp. 22-23) viz : 1) laws Chairperson,
remedial in nature; 2) penal law favorable to accused, if ; after not
CARPIO,*
habitual delinquent; 3) laws of emergency nature under police power :
e.g., tenancy relations (Vda. de Ongsiako v. Gamboa, 47 O.G. 4259,
CORONA,**
Valencia et al. v. Surtida et al., May 31, 1961); 4) curative laws; 5)
- versus -
substantive right declared for first time unless vested rights impaired
NACHURA, and
(Unson v. del Rosario, Jan. 29, 1953; Belen v. Belen, 49 O.G. 997;
Peo v. Alejaga, 49 OG 2833).
PERALTA, JJ.

6 106 Phil. 713 and 103 Phil. 500, respectively, both involving
prosecutions for illegal possession of firearms, and both holding that
5
HON. ANIANO A. DESIERTO as Promulgated:
OMBUDSMAN, and
SANDIGANBAYAN, THIRD
DIVISION,
June 5, 2009
Respondents.
x--------------------------------------------------
--------x
DECISION
PERALTA, J.:
This resolves the petition for certiorari under Rule 65 of the Rules
of Court, praying that the Ombudsman's disapproval of the Office of
the Special Prosecutor's (OSP) Resolution[1] dated September 18,
2000, recommending dismissal of the criminal cases filed against
herein petitioners, be reversed and set aside.
The antecedent facts are as follows.
On July 22, 1998, the Fact-Finding and Intelligence Bureau of the
Office of the Ombudsman filed a Complaint-Affidavit docketed as
OMB-0-98-1500, charging herein petitioners with Illegal Use of Public
Funds as defined and penalized under Article 220 of the Revised
Penal Code and violation of Section 3, paragraphs (a) and (e) of
Republic Act (R.A.) No. 3019, as amended.
The complaint alleged that there were irregularities in the use by then
Congressman Carmello F. Lazatin of his Countrywide Development
Fund (CDF) for the calendar year 1996, i.e., he was both proponent
and implementer of the projects funded from his CDF; he signed
vouchers and supporting papers pertinent to the disbursement as
Disbursing Officer; and he received, as claimant, eighteen (18) checks
amounting to P4,868,277.08. Thus, petitioner Lazatin, with the help of
petitioners Marino A. Morales, Angelito A. Pelayo and Teodoro L.
David, was allegedly able to convert his CDF into cash.
A preliminary investigation was conducted and, thereafter, the
Evaluation and Preliminary Investigation Bureau (EPIB) issued a
Resolution[2] dated May 29, 2000 recommending the filing against
herein petitioners of fourteen (14) counts each of Malversation of
Public Funds and violation of Section 3 (e) of R.A. No. 3019. Said
Resolution was approved by the Ombudsman; hence, twenty-eight
(28) Informations docketed as Criminal Case Nos. 26087 to 26114
were filed against herein petitioners before the Sandiganbayan.
Petitioner Lazatin and his co-petitioners then filed
their respective Motions for Reconsideration/Reinvestigation,
which motions were granted by the Sandiganbayan (Third
Division).The Sandiganbayan also ordered the prosecution to re-
evaluate the cases against petitioners.
Subsequently, the OSP submitted to the Ombudsman its
Resolution[3] dated September 18, 2000. It recommended the dismissal
of the cases against petitioners for lack or insufficiency of evidence.
The Ombudsman, however, ordered the Office of the Legal Affairs
(OLA) to review the OSP Resolution. In a
Memorandum[4] dated October 24, 2000, the OLA recommended that
the OSP Resolution be disapproved and the OSP be directed to
proceed with the trial of the cases against petitioners. On October 27,
2000, the Ombudsman adopted the OLA Memorandum, thereby
disapproving the OSP Resolution dated September 18, 2000 and
ordering the aggressive prosecution of the subject cases. The cases
were then returned to the Sandiganbayan for continuation of criminal
proceedings.
Thus, petitioners filed the instant petition.
Petitioners allege that:
I.
THE OMBUDSMAN ACTED WITH GRAVE ABUSE OF DISCRETION
OR ACTED WITHOUT OR IN EXCESS OF HIS JURISDICTION.
II.
THE QUESTIONED RESOLUTION WAS BASED ON
MISAPPREHENSION OF FACTS, SPECULATIONS, SURMISES AND
CONJECTURES.[5]
Amplifying their arguments, petitioners asseverate that the
Ombudsman had no authority to overturn the OSP's Resolution
dismissing the cases against petitioners because, under Section 13,
Article XI of the 1987 Constitution, the Ombudsman is clothed only with
the power to watch, investigate and recommend the filing of proper
cases against erring officials, but it was not granted the power to
prosecute. They point out that under the Constitution, the power to
prosecute belongs to the OSP (formerly the Tanodbayan), which was
intended by the framers to be a separate and distinct entity from the
Office of the Ombudsman. Petitioners conclude that, as provided by
the Constitution, the OSP being a separate and distinct entity, the
Ombudsman should have no power and authority over the OSP. Thus,
petitioners maintain that R.A. No. 6770 (The Ombudsman Act of 1989),
which made the OSP an organic component of the Office of the
Ombudsman, should be struck down for being unconstitutional.
Next, petitioners insist that they should be absolved from any liability
because the checks were issued to petitioner Lazatin allegedly as
reimbursement for the advances he made from his personal funds for
expenses incurred to ensure the immediate implementation of projects
that are badly needed by the Pinatubo victims.
The Court finds the petition unmeritorious.
Petitioners' attack against the constitutionality of R.A. No. 6770 is
stale. It has long been settled that the provisions of R.A. No. 6770
granting the Office of the Ombudsman prosecutorial powers and
placing the OSP under said office have no constitutional infirmity. The
issue of whether said provisions of R.A. No. 6770 violated the
Constitution had been fully dissected as far back as 1995 in Acop v.
Office of the Ombudsman.[6]
Therein, the Court held that giving prosecutorial powers to the
Ombudsman is in accordance with the Constitution as paragraph 8,
Section 13, Article XI provides that the Ombudsman shall exercise
such other functions or duties as may be provided by law. Elucidating
on this matter, the Court stated:
x x x While the intention to withhold prosecutorial powers from the
Ombudsman was indeed present, the Commission [referring to the
6
Constitutional Commission of 1986] did not hesitate to recommend that
the Legislature could, through statute, prescribe such other powers,
functions, and duties to the Ombudsman. x x x As finally approved by
the Commission after several amendments, this is now embodied in
paragraph 8, Section 13, Article XI (Accountability of Public Officers) of
the Constitution, which provides:
Sec.13. The Office of the Ombudsman shall have the following powers,
functions, and duties:
xxxx
Promulgate its rules and procedure and exercise such other functions
or duties as may be provided by law.
Expounding on this power of Congress to prescribe other powers,
functions, and duties to the Ombudsman, we quote Commissioners
Colayco and Monsod during interpellation by Commissioner Rodrigo:
xxxx
MR. RODRIGO:
Precisely, I am coming to that. The last of the enumerated functions of
the Ombudsman is: to exercise such powers or perform such functions
or duties as may be provided by law. So, the legislature may vest him
with powers taken away from the Tanodbayan, may it not?
MR. COLAYCO:
Yes.
MR. MONSOD:
Yes.
xxxx
MR. RODRIGO:
Madam President. Section 5 reads: The Tanodbayan shall continue to
function and exercise its powers as provided by law.
MR. COLAYCO:
That is correct, because it is under P.D. No. 1630.
MR. RODRIGO:
So, if it is provided by law, it can be taken away by law, I suppose.
MR. COLAYCO:
That is correct.
MR. RODRIGO:
And precisely, Section 12(6) says that among the functions that can be
performed by the Ombudsman are such functions or duties as may be
provided by law. The sponsors admitted that the legislature later on
might remove some powers from the Tanodbayan and transfer these
to the Ombudsman.
MR. COLAYCO:
Madam President, that is correct.
xxxx
MR. RODRIGO:
Madam President, what I am worried about is, if we create a
constitutional body which has neither punitive nor prosecutory powers
but only persuasive powers, we might be raising the hopes of our
people too much and then disappoint them.
MR. MONSOD:
I agree with the Commissioner.
MR. RODRIGO:
Anyway, since we state that the powers of the Ombudsman can later
on be implemented by the legislature, why not leave this to the
legislature?
xxxx
MR. MONSOD: (reacting to statements of Commissioner Blas Ople):
xxxx
With respect to the argument that he is a toothless animal, we would
like to say that we are promoting the concept in its form at the present,
but we are also saying that he can exercise such powers and functions
as may be provided by law in accordance with the direction of the
thinking of Commissioner Rodrigo. We do not think that at this time we
should prescribe this, but we leave it up to Congress at some future
time if it feels that it may need to designate what powers the
Ombudsman need in order that he be more effective. This is not
foreclosed.
So, this is a reversible disability, unlike that of a eunuch; it is not an
irreversible disability.[7]
The constitutionality of Section 3 of R.A. No. 6770, which subsumed
the OSP under the Office of the Ombudsman, was likewise upheld by
the Court in Acop. It was explained, thus:
x x x the petitioners conclude that the inclusion of the Office of the
Special Prosecutor as among the offices under the Office of the
Ombudsman in Section 3 of R.A. No. 6770 (An Act Providing for the
Functional and Structural Organization of the Office of the
Ombudsman and for Other Purposes) is unconstitutional and void.
The contention is not impressed with merit. x x x
xxxx
x x x Section 7 of Article XI expressly provides that the then existing
Tanodbayan, to be henceforth known as the Office of the Special
7
Prosecutor, shall continue to function and exercise its powers as now
or hereafter may be provided by law, except those conferred on the
Office of the Ombudsman created under this Constitution. The
underscored phrase evidently refers to the Tanodbayan's powers
under P.D. No. 1630 or subsequent amendatory legislation. It follows
then that Congress may remove any of the Tanodbayan's/Special
Prosecutor's powers under P.D. No. 1630 or grant it other powers,
except those powers conferred by the Constitution on the Office of the
Ombudsman.
Pursuing the present line of reasoning, when one considers that by
express mandate of paragraph 8, Section 13, Article XI of the
Constitution, the Ombudsman may exercise such other powers or
perform functions or duties as may be provided by law, it is indubitable
then that Congress has the power to place the Office of the Special
Prosecutor under the Office of the Ombudsman. In the same vein,
Congress may remove some of the powers granted to the Tanodbayan
by P.D. No. 1630 and transfer them to the Ombudsman; or grant the
Office of the Special Prosecutor such other powers and functions and
duties as Congress may deem fit and wise. This Congress did through
the passage of R.A. No. 6770.[8]
The foregoing ruling of the Court has been reiterated in Camanag v.
Guerrero.[9] More recently, in Office of the Ombudsman v.
Valera,[10] the Court, basing its ratio decidendi on its ruling
in Acop and Camanag, declared that the OSP is merely a component
of the Office of the Ombudsman and may only act under the
supervision and control, and upon authority of the Ombudsman and
ruled that under R.A. No. 6770, the power to preventively suspend is
lodged only with the Ombudsman and Deputy Ombudsman.[11] The
Court's ruling in Acopthat the authority of the Ombudsman to prosecute
based on R.A. No. 6770 was authorized by the Constitution was also
made the foundation for the decision in Perez v.
Sandiganbayan,[12] where it was held that the power to prosecute
carries with it the power to authorize the filing of informations, which
power had not been delegated to the OSP. It is, therefore, beyond cavil
that under the Constitution, Congress was not proscribed from
legislating the grant of additional powers to the Ombudsman or placing
the OSP under the Office of the Ombudsman.
Petitioners now assert that the Court's ruling on the constitutionality of
the provisions of R.A. No. 6770 should be revisited and the principle
of stare decisis set aside. Again, this contention deserves scant
consideration.
The doctrine of stare decisis et non quieta movere (to adhere to
precedents and not to unsettle things which are established) is
embodied in Article 8 of the Civil Code of the Philippineswhich
provides, thus:
ART. 8. Judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines.
It was further explained in Fermin v. People[13] as follows:
The doctrine of stare decisis enjoins adherence to judicial
precedents. It requires courts in a country to follow the rule
established in a decision of the Supreme Court thereof. That
decision becomes a judicial precedent to be followed in subsequent
cases by all courts in the land. The doctrine of stare decisis is based
on the principle that once a question of law has been examined and
decided, it should be deemed settled and closed to further
argument.[14]
In Chinese Young Men's Christian Association of the Philippine Islands
v. Remington Steel Corporation,[15] the Court expounded on the
importance of the foregoing doctrine, stating that:
The doctrine of stare decisis is one of policy grounded on the necessity
for securing certainty and stability of judicial decisions, thus:
Time and again, the court has held that it is a very desirable and
necessary judicial practice that when a court has laid down a
principle of law as applicable to a certain state of facts, it will adhere to
that principle and apply it to all future cases in which the facts are
substantially the same. Stare decisis et non quieta movere. Stand by
the decisions and disturb not what is settled. Stare decisis simply
means that for the sake of certainty, a conclusion reached in one
case should be applied to those that follow if the facts are
substantially the same, even though the parties may be different. It
proceeds from the first principle of justice that, absent any powerful
countervailing considerations, like cases ought to be decided
alike. Thus, where the same questions relating to the same event have
been put forward by the parties similarly situated as in a previous case
litigated and decided by a competent court, the rule of stare
decisis is a bar to any attempt to relitigate the same issue.[16]
The doctrine has assumed such value in our judicial system that the
Court has ruled that [a]bandonment thereof must be based only on
strong and compelling reasons, otherwise, the becoming virtue of
predictability which is expected from this Court would be immeasurably
affected and the public's confidence in the stability of the solemn
pronouncements diminished.[17] Verily, only upon showing that
circumstances attendant in a particular case override the great benefits
derived by our judicial system from the doctrine of stare decisis, can
the courts be justified in setting aside the same.
In this case, petitioners have not shown any strong, compelling reason
to convince the Court that the doctrine of stare decisis should not be
applied to this case. They have not successfully demonstrated how or
why it would be grave abuse of discretion for the Ombudsman, who
has been validly conferred by law with the power of control and
supervision over the OSP, to disapprove or overturn any resolution
issued by the latter.
The second issue advanced by petitioners is that the Ombudsman's
disapproval of the OSP Resolution recommending dismissal of the
cases is based on misapprehension of facts, speculations, surmises
and conjectures. The question is really whether the Ombudsman
correctly ruled that there was enough evidence to support a finding of
probable cause. That issue, however, pertains to a mere error of
judgment. It must be stressed that certiorari is a remedy meant to
correct only errors of jurisdiction, not errors of judgment. This has been
emphasized in First Corporation v. Former Sixth Division of the Court
of Appeals,[18] to wit:
It is a fundamental aphorism in law that a review of facts and evidence
is not the province of the extraordinary remedy of certiorari, which
is extra ordinem - beyond the ambit of
appeal. In certiorariproceedings, judicial review does not go as far
as to examine and assess the evidence of the parties and to
weigh the probative value thereof. It does not include an inquiry
as to the correctness of the evaluation of evidence. Any error
committed in the evaluation of evidence is merely an error of
judgment that cannot be remedied by certiorari. An error of
judgment is one which the court may commit in the exercise of its
jurisdiction. An error of jurisdiction is one where the act complained of
was issued by the court without or in excess of jurisdiction, or with
grave abuse of discretion, which is tantamount to lack or in excess of
8
jurisdiction and which error is correctible only by the extraordinary writ WE CONCUR:
of certiorari. Certiorari will not be issued to cure errors of the trial
court in its appreciation of the evidence of the parties, or its CONSUELO YNARES-SANTIAGO
conclusions anchored on the said findings and its conclusions of
law. It is not for this Court to re-examine conflicting evidence, re- Associate Justice
evaluate the credibility of the witnesses or substitute the findings
of fact of the court a quo.[19] Chairperson

Evidently, the issue of whether the evidence indeed supports a finding ANTONIO T. CARPIO RENATO C. CORONA
of probable cause would necessitate an examination and re-evaluation
of the evidence upon which the Ombudsman based its disapproval of Associate Justice Associate Justice
the OSP Resolution. Hence, the Petition for Certiorari should not be
given due course.

Likewise noteworthy is the holding of the Court in Presidential Ad Hoc ANTONIO EDUARDO B. NACHURA
Fact-Finding Committee on Behest Loans v. Desierto,[20] imparting the
value of the Ombudsman's independence, stating thus: Associate Justice

Under Sections 12 and 13, Article XI of the 1987 Constitution and RA ATTESTATION
6770 (The Ombudsman Act of 1989), the Ombudsman has the power
I attest that the conclusions in the above Decision had been reached in
to investigate and prosecute any act or omission of a public officer or
consultation before the case was assigned to the writer of the opinion
employee when such act or omission appears to be illegal, unjust,
improper or inefficient. It has been the consistent ruling of the Court of the Courts Division.
not to interfere with the Ombudsman's exercise of his
CONSUELO YNARES-SANTIAGO
investigatory and prosecutory powers as long as his rulings are
supported by substantial evidence. Envisioned as the champion of
Associate Justice
the people and preserver of the integrity of public service, he has wide
latitude in exercising his powers and is free from intervention
Third Division, Chairperson
from the three branches of government. This is to ensure that his
Office is insulated from any outside pressure and improper
CERTIFICATION
influence.[21]
Pursuant to Section 13, Article VIII of the Constitution and the Division
Indeed, for the Court to overturn the Ombudsman's finding of probable
Chairpersons Attestation, I certify that the conclusions in the above
cause, it is imperative for petitioners to clearly prove that said public
Decision were reached in consultation before the case was assigned to
official acted with grave abuse of discretion.In Presidential Commission
the writer of the opinion of the Courts Division.
on Good Government v. Desierto,[22] the Court elaborated on what
constitutes such abuse, to wit: REYNATO S. PUNO

Grave abuse of discretion implies a capricious and whimsical exercise Chief Justice
of judgment tantamount to lack of jurisdiction. The Ombudsman's
exercise of power must have been done in an arbitrary or despotic
manner which must be so patent and gross as to amount to an evasion
of a positive duty or a virtual refusal to perform the duty enjoined or to
act at all in contemplation of law. x x x[23]
EN BANC

PROF. RANDOLF S. DAVID, LORENZO G.R. No. 171396

In this case, petitioners failed to demonstrate that the Ombudsman
TA�ADA III, RONALD LLAMAS, H.
acted in a manner described above. Clearly, the Ombudsman was HARRY L. ROQUE, JR., JOEL RUIZ Present:
acting in accordance with R.A. No. 6770 and properly exercised its BUTUYAN, ROGER R. RAYEL, GARY S.
power of control and supervision over the OSP when it disapproved MALLARI, ROMEL REGALADO PANGANIBAN, C.J.
the Resolution dated September 18, 2000. BAGARES, CHRISTOPHER F.C. ,
*
BOLASTIG, PUNO,
Petitioners, QUISUMBING,
It should also be noted that the petition does not question any order or
YNARES-
action of the Sandiganbayan Third Division; hence, it should not have SANTIAGO,
- versus -
been included as a respondent in this petition. SANDOVAL-
GUTIERREZ,
IN VIEW OF THE FOREGOING, the petition is DISMISSED for lack of GLORIA MACAPAGAL- CARPIO,
merit. No costs. ARROYO, AS PRESIDENT AUSTRIA-
AND COMMANDER-IN-CHIEF, MARTINEZ,
SO ORDERED. EXECUTIVE SECRETARY EDUARDO CORONA,
ERMITA, HON. AVELINO CRUZ II, CARPIO
SECRETARY OF NATIONAL DEFENSE, MORALES,
DIOSDADO M. PERALTA CALLEJO, SR.,
GENERAL GENEROSO SENGA, CHIEF
OF STAFF, ARMED FORCES OF THE AZCUNA,
Associate Justice PHILIPPINES, DIRECTOR GENERAL TINGA,
ARTURO LOMIBAO, CHIEF, PHILIPPINE CHICO-NAZARIO,
9
NATIONAL POLICE, GARCIA, and GLORIA MACAPAGAL-ARROYO, THE
Respondent VELASCO, JJ. HONORABLE EXECUTIVE
s. SECRETARY, EDUARDO ERMITA, THE
x-------------------------------------------------x Promulgated: CHIEF OF STAFF, ARMED FORCES OF
NI�EZ CACHO-OLIVARES AND THE PHILIPPINES, GENEROSO
TRIBUNE PUBLISHING CO., INC., May 3, 2006 SENGA, AND THE PNP DIRECTOR
Petitioners, GENERAL, ARTURO LOMIBAO,
Respondents.
G.R. No. 171409 x-------------------------------------------------x
- versus - ALTERNATIVE LAW GROUPS, INC.
(ALG),
Petitioner,
HONORABLE SECRETARY EDUARDO - versus -
ERMITA AND HONORABLE DIRECTOR G.R. No. 171400
GENERAL ARTURO C. LOMIBAO,
Respondents. EXECUTIVE SECRETARY EDUARDO R.
x-------------------------------------------------x ERMITA, LT. GEN. GENEROSO SENGA,
FRANCIS JOSEPH G. ESCUDERO, AND DIRECTOR GENERAL ARTURO
JOSEPH A. SANTIAGO, TEODORO A. LOMIBAO,
CASINO, AGAPITO A. AQUINO, MARIO Respondents.
J. AGUJA, SATUR C. OCAMPO, MUJIV x-------------------------------------------------x
S. HATAMAN, JUAN EDGARDO G.R. No. 171485 JOSE ANSELMO I. CADIZ, FELICIANO
ANGARA, TEOFISTO DL. GUINGONA M. BAUTISTA, ROMULO R. RIVERA,
III, EMMANUEL JOSEL J. VILLANUEVA, JOSE AMOR M. AMORADO, ALICIA A.
LIZA L. MAZA, IMEE R. MARCOS, RISOS-VIDAL, FELIMON C. ABELITA III,
RENATO B. MAGTUBO, JUSTIN MARC MANUEL P. LEGASPI, J.B. JOVY C.
SB. CHIPECO, ROILO GOLEZ, BERNABE, BERNARD L. DAGCUTA,
DARLENE ANTONINO-CUSTODIO, ROGELIO V. GARCIA AND
LORETTA ANN P. ROSALES, JOSEL G. INTEGRATED BAR OF THE
VIRADOR, RAFAEL V. MARIANO, PHILIPPINES (IBP), G.R. No. 171489
GILBERT C. REMULLA, FLORENCIO G. Petitioners,
NOEL, ANA THERESIA HONTIVEROS-
BARAQUEL, IMELDA C. NICOLAS, - versus -
MARVIC M.V.F. LEONEN, NERI JAVIER
COLMENARES, MOVEMENT OF
CONCERNED CITIZENS FOR CIVIL HON. EXECUTIVE SECRETARY
LIBERTIES REPRESENTED BY AMADO EDUARDO ERMITA, GENERAL
GAT INCIONG, GENEROSO SENGA, IN HIS CAPACITY
Petitioners, AS AFP CHIEF OF STAFF, AND
DIRECTOR GENERAL ARTURO
- versus - LOMIBAO, IN HIS CAPACITY AS PNP
CHIEF,
Respondents.
EDUARDO R. ERMITA, EXECUTIVE x-------------------------------------------------x
SECRETARY, AVELINO J. CRUZ, JR., LOREN B. LEGARDA,
SECRETARY, DND RONALDO V. Petitioner,
PUNO, SECRETARY, DILG,
GENEROSO SENGA, AFP CHIEF OF
STAFF, ARTURO LOMIBAO, CHIEF - versus -
PNP,
Respondents.
x-------------------------------------------------x GLORIA MACAPAGAL-ARROYO, IN
KILUSANG MAYO UNO, HER CAPACITY AS PRESIDENT AND G.R. No. 171424
REPRESENTED BY ITS CHAIRPERSON COMMANDER-IN-CHIEF; ARTURO
ELMER C. LABOG AND SECRETARY LOMIBAO, IN HIS CAPACITY AS
GENERAL JOEL MAGLUNSOD, DIRECTOR-GENERAL OF THE
NATIONAL FEDERATION OF LABOR PHILIPPINE NATIONAL POLICE (PNP);
UNIONS � KILUSANG MAYO UNO G.R. No. 171483 GENEROSO SENGA, IN HIS CAPACITY
(NAFLU-KMU), REPRESENTED BY ITS AS CHIEF OF STAFF OF THE ARMED
NATIONAL PRESIDENT, JOSELITO V. FORCES OF THE PHILIPPINES (AFP);
USTAREZ, ANTONIO C. PASCUAL, AND EDUARDO ERMITA, IN HIS
SALVADOR T. CARRANZA, EMILIA P. CAPACITY AS EXECUTIVE
DAPULANG, MARTIN CUSTODIO, JR., SECRETARY,
AND ROQUE M. TAN, Respondents.
Petitioners,
x---------------------------------------------------------------------------------------------x

- versus - DECISION

SANDOVAL-GUTIERREZ, J.:

HER EXCELLENCY, PRESIDENT

10
 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 (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;
11

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 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
12
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
th
20 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]
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.
13
 Retired Major General Ramon Monta�o, former head of the
Philippine Constabulary, was arrested while with his wife and
golfmates at the Orchard Golf and Country Club in Dasmari�as,
Cavite.
Attempts were made to arrest Anakpawis Representative
Satur Ocampo, Representative Rafael Mariano, Bayan
Muna Representative Teodoro Casi�o 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) it is 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 Casi�o, 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 4[15] of Article II, (b) Sections
1,[16] 2,[17] and 4[18] of Article III, (c) Section 23[19] of Article
VI, and (d) Section 17[20] 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, petitioner Loren 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.
B. SUBSTANTIVE:
1) Whether the 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
14
 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 case[28] 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;[32] third, 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. Jordan[41] 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.�
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
15
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 Works[47] 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,[55] that 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 Ta�ada v. Tuvera,[64] that when the issue
16
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 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.�
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 people[68] 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.
Baker[70] and Montenegro v. Castaneda[71] 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.�[75] Barcelon 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. Zamora[80] -- 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.�
17
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 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
18
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�
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
19
 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,[104] the 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.�[106] Here, the 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
20
 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
corpusor 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.
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
21
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.
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.

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.
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.

It is pertinent to state, however, that there is a distinction Justice Mendoza further stated that specifically, (a) arrests and
between the President�s authority to declare a �state of rebellion� seizures without judicial warrants; (b) ban on public assemblies; (c)
(in Sanlakas) and the authority to proclaim a state of national take-over of news media and agencies and press censorship; and (d)
emergency. While President Arroyo�s authority to declare a �state issuance of Presidential Decrees, are powers which can be exercised
by the President as Commander-in-Chief only where there is a valid
of rebellion� emanates from her powers as Chief Executive, the
statutory authority cited in Sanlakas was Section 4, Chapter 2, Book II declaration of Martial Law or suspension of the writ of habeas corpus.
of the Revised Administrative Code of 1987, which provides:
Based on the above disquisition, it is clear that PP 1017 is
not a declaration of Martial Law. It is merely an exercise of
SEC. 4. � Proclamations. � Acts
President Arroyo�s calling-out power for the armed forces to assist
of the President fixing a date or
declaring a status or condition of public her in preventing or suppressing lawless violence.
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 Second Provision: �Take Care� Power
order.
The second provision pertains to the power of the President
to ensure that the laws be faithfully executed. This is based on Section
President Arroyo�s declaration of a �state of rebellion� was 17, Article VII which reads:
merely an act declaring a status or condition of public moment or
interest, a declaration allowed under Section 4 cited above. Such
SEC. 17. The President shall have
declaration, in the words of Sanlakas, is harmless, without legal
significance, and deemed not written. In these cases, PP 1017 is more control of all the executive departments, bureaus,
and offices. He shall ensure that the laws be
than that. In declaring a state of national emergency, President Arroyo
faithfully executed.
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,
As the Executive in whom the executive power is
PP 1017 calls for the exercise of an awesome power. Obviously,
vested,[115] the primary function of the President is to enforce the laws
such Proclamation cannot be deemed harmless, without legal
as well as to formulate policies to be embodied in existing laws. He
significance, or not written, as in the case of Sanlakas.
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
Some of the petitioners vehemently maintain that PP 1017 is
or affirmation to the effect that as President of the Philippines, he will,
actually a declaration of Martial Law. It is no so. What defines the
among others, �execute its laws.�[116] In the exercise of such
character of PP 1017 are its wordings. It is plain therein that what the
President invoked was her calling-out power. 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 Police[118] under the
The declaration of Martial Law is a �warn[ing] to citizens that the
Department of Interior and Local Government.[119]
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
Petitioners, especially Representatives Francis Joseph G.
which will in any way render more difficult the restoration of order and
Escudero, Satur Ocampo, Rafael Mariano, Teodoro Casi�o, Liza
the enforcement of law.�[113]
Maza, and Josel Virador argue that PP 1017 is unconstitutional as it
arrogated upon President Arroyo the power to enact laws and decrees
In his �Statement before the Senate Committee on
in violation of Section 1, Article VI of the Constitution, which vests the
Justice� on March 13, 2006, Mr. Justice Vicente V. Mendoza,[114] an
power to enact laws in Congress. They assail the clause �to enforce
authority in constitutional law, said that of the three powers of the
obedience to all the laws and to all decrees, orders and
President as Commander-in-Chief, the power to declare Martial Law
regulations promulgated by me personally or upon my
poses the most severe threat to civil liberties. It is a strong medicine
direction.�
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:

22
 Petitioners� contention is understandable. A reading of PP
1017 operative clause shows that it was lifted[120] 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 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 cannot be enforced. With respect to �laws,� she cannot call the
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,
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.
23

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:
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
24
 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.[131] This 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]
x x x
x x x
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.�
25
 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
misabused[135] and may afford an opportunity for abuse in the
[136]
manner of application. 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.[138] This 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 efficient administration 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.
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
26
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.)
27
 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
magistrate clothed with power to issue or refuse to issue search
warrants or warrants of arrest.[143]
In the Brief Account[144] 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.
880[145] 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 880were 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
28
on the basis of Malaca�ang�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 agency will not hesitate to
recommend the closure of any broadcast outfit that violates rules
set out for media coverage during times when the national
security is threatened.[151]
The search 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.
Not only that, the search violated petitioners� freedom of
the press. The best gauge of a free and democratic society rests in
the degree of freedom enjoyed by its media. In theBurgos v. Chief of
Staff[152] 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.
Such closure is in the nature of
previous restraint or censorship abhorrent to
the freedom of the press guaranteed under the
fundamental law, and constitutes a virtual
denial of petitioners' freedom to express
themselves in print. This state of being is
patently anathematic to a democratic
framework where a free, alert and even militant
press is essential for the political
enlightenment and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and
sealed 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
materials for publication, the stationing of policemen in the vicinity of
the The Daily Tribune offices, and the arrogant warning of government
officials to media, are plain censorship. It is that officious functionary
of the repressive government who tells the citizen that he may speak
only if allowed to do so, and no more and no less than what he is
permitted to say on pain of punishment should he be so rash as to
disobey.[153] Undoubtedly, the The Daily Tribune was subjected to
these arbitrary intrusions because of its anti-government
sentiments. This Court cannot tolerate the blatant disregard of a
constitutional right even if it involves the most defiant of our
citizens. Freedom to comment on public affairs is essential to 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 be obsta
principiis.[154]
Incidentally, during the oral arguments, the Solicitor General
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
same are inadmissible �for any purpose,� thus:
JUSTICE CALLEJO:
You made quite a
mouthful of
admission when
you said that the
policemen, when
inspected the
Tribune for the
purpose of
gathering evidence
and you admitted
29
 that the policemen SR. ASSO. JUSTICE PUNO:
were able to get the
clippings. Is that Is it based on any
not in admission of law?
the admissibility of
these clippings that SOLGEN BENIPAYO:
were taken from the
Tribune? As far as I know, no,
Your Honor, from
SOLICITOR GENERAL the facts, no.
BENIPAYO:
SR. ASSO. JUSTICE PUNO:
Under the law they
would seem to be, if So, it has no basis, no
they were illegally legal basis
seized, I think and I whatsoever?
know, Your Honor,
and these are
inadmissible for any
purpose.[155]
SOLGEN BENIPAYO:
x x x x x
x xxx Maybe so, Your
Honor. Maybe so,
SR. ASSO. JUSTICE PUNO: that is why I said, I
don�t know if it is
These have been premature to say
published in the this, we do not
past issues of the condone this. If
Daily Tribune; all the people who
you have to do is to have been injured
get those past by this would want
issues. So why do to sue them, they
you have to go can sue and there
there at 1 o�clock are remedies for
in the morning and this.[156]
without any search
warrant? Did they
become suddenly Likewise, the warrantless arrests and seizures executed by
part of the evidence the police were, according to the Solicitor General, illegal and cannot
of rebellion or be condoned, thus:
inciting to sedition
or what? CHIEF JUSTICE
PANGANIBAN:
SOLGEN BENIPAYO:
There seems to be
Well, it was the police some confusions if not
that did that, Your contradiction in your theory.
Honor. Not upon
my instructions. SOLICITOR GENERAL
BENIPAYO:
SR. ASSO. JUSTICE PUNO:
I don�t know whether
Are you saying that this will clarify. The acts, the
the act of the supposed illegal or unlawful
policeman is illegal, acts committed on the
it is not based on occasion of 1017, as I said, it
any law, and it is cannot be condoned. You
not based on cannot blame the President
Proclamation 1017. for, as you said, a
misapplication of the
SOLGEN BENIPAYO: law. These are acts of the
police officers, that is their
It is not based on responsibility.[157]
Proclamation 1017,
Your Honor,
because there is
nothing in 1017 The Dissenting Opinion states that PP 1017 and G.O. No. 5
which says that the are constitutional in every aspect and �should result in no
police could go and constitutional or statutory breaches if applied according to their letter.�
inspect and gather
clippings from Daily The Court has passed upon the constitutionality of these
Tribune or any issuances. Its ratiocination has been exhaustively presented. At this
other newspaper. 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,
30
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.
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.
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 and warrantless arrest of the KMU and NAFLU-KMU
members; (3) 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 jurisprudence. Not even by the valid provisions of PP
1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot
impose any civil, criminal or administrative sanctions on the individual
police officers concerned. They have not been individually identified
and given their day in court. The civil complaints or causes of action
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 administrative liabilities.
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.
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:
ARTEMIO V. PANGANIBAN
Chief Justice
31
 (On leave) enumerated in the margin.1 Soon after the date last mentioned, or on
REYNATO S. PUNO LEONARDO A. QUISUMBING November 10, 1964 petitioner Emmanuel Pelaez, as Vice President of
Associate Justice Associate Justice the Philippines and as taxpayer, instituted the present special civil
action, for a writ of prohibition with preliminary injunction, against the
Auditor General, to restrain him, as well as his representatives and
CONSUELO YNARES-SANTIAGO ANTONIO T. CARPIO agents, from passing in audit any expenditure of public funds in
Associate Justice Associate Justice implementation of said executive orders and/or any disbursement by
said municipalities.

Petitioner alleges that said executive orders are null and void, upon the
MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA
ground that said Section 68 has been impliedly repealed by Republic
Associate Justice Associate Justice
Act No. 2370 and constitutes an undue delegation of legislative power.
Respondent maintains the contrary view and avers that the present
action is premature and that not all proper parties — referring to the
CONCHITA CARPIO MORALES ROMEO J. CALLEJO, SR. officials of the new political subdivisions in question — have been
Associate Justice Associate Justice impleaded. Subsequently, the mayors of several municipalities
adversely affected by the aforementioned executive orders — because
the latter have taken away from the former the barrios composing the
ADOLFO S. AZCUNA DANTE O. TINGA new political subdivisions — intervened in the case. Moreover,
Associate Justice Associate Justice Attorneys Enrique M. Fernando and Emma Quisumbing-Fernando
were allowed to and did appear as amici curiae.

The third paragraph of Section 3 of Republic Act No. 2370, reads:

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA
Associate Justice Associate Justice Barrios shall not be created or their boundaries altered nor their names
changed except under the provisions of this Act or by Act of Congress.

PRESBITERO J. VELASCO, JR. Pursuant to the first two (2) paragraphs of the same Section 3:
Associate Justice
All barrios existing at the time of the passage of this Act shall come
under the provisions hereof.

CERTIFICATION Upon petition of a majority of the voters in the areas affected, a new
barrio may be created or the name of an existing one may be changed
Pursuant to Section 13, Article VIII of the Constitution, it is by the provincial board of the province, upon recommendation of the
hereby certified that the conclusions in the above Decision were council of the municipality or municipalities in which the proposed
reached in consultation before the case was assigned to the writer of barrio is stipulated. The recommendation of the municipal council shall
the opinion of the Court.
be embodied in a resolution approved by at least two-thirds of the
entire membership of the said council: Provided, however, That no new
ARTEMIO V. PANGANIBAN barrio may be created if its population is less than five hundred
Chief Justice persons.

Hence, since January 1, 1960, when Republic Act No. 2370 became
effective, barrios may "not be created or their boundaries altered nor
their names changed" except by Act of Congress or of the
Republic of the Philippines
corresponding provincial board "upon petition of a majority of the
SUPREME COURT
voters in the areas affected" and the "recommendation of the council of
Manila
the municipality or municipalities in which the proposed barrio is
situated." Petitioner argues, accordingly: "If the President, under this
EN BANC
new law, cannot even create a barrio, can he create a municipality
G.R. No. L-23825 December 24, 1965 which is composed of several barrios, since barrios are units of
municipalities?"
EMMANUEL PELAEZ, petitioner,
vs. Respondent answers in the affirmative, upon the theory that a new
THE AUDITOR GENERAL, respondent. municipality can be created without creating new barrios, such as, by
placing old barrios under the jurisdiction of the new municipality. This
Zulueta, Gonzales, Paculdo and Associates for petitioner. theory overlooks, however, the main import of the petitioner's
Office of the Solicitor General for respondent. argument, which is that the statutory denial of the presidential authority
to create a new barrio implies a negation of the bigger power to create
CONCEPCION, J.: municipalities, each of which consists of several barrios. The cogency
and force of this argument is too obvious to be denied or even
During the period from September 4 to October 29, 1964 the President questioned. Founded upon logic and experience, it cannot be offset
of the Philippines, purporting to act pursuant to Section 68 of the except by a clear manifestation of the intent of Congress to the
Revised Administrative Code, issued Executive Orders Nos. 93 to 121, contrary, and no such manifestation, subsequent to the passage of
124 and 126 to 129; creating thirty-three (33) municipalities Republic Act No. 2379, has been brought to our attention.

32
Moreover, section 68 of the Revised Administrative Code, upon which
the disputed executive orders are based, provides:
The (Governor-General) President of the Philippines may by executive
order define the boundary, or boundaries, of any province,
subprovince, municipality, [township] municipal district, or other
political subdivision, and increase or diminish the territory comprised
therein, may divide any province into one or more subprovinces,
separate any political division other than a province, into such portions
as may be required, merge any of such subdivisions or portions with
another, name any new subdivision so created, and may change the
seat of government within any subdivision to such place therein as the
public welfare may require: Provided, That the authorization of the
(Philippine Legislature) Congress of the Philippines shall first be
obtained whenever the boundary of any province or subprovince is to
be defined or any province is to be divided into one or more
subprovinces. When action by the (Governor-General) President of the
Philippines in accordance herewith makes necessary a change of the
territory under the jurisdiction of any administrative officer or any
judicial officer, the (Governor-General) President of the Philippines,
with the recommendation and advice of the head of the Department
having executive control of such officer, shall redistrict the territory of
the several officers affected and assign such officers to the new
districts so formed.
Upon the changing of the limits of political divisions in pursuance of the
foregoing authority, an equitable distribution of the funds and
obligations of the divisions thereby affected shall be made in such
manner as may be recommended by the (Insular Auditor) Auditor
General and approved by the (Governor-General) President of the
Philippines.
Respondent alleges that the power of the President to create
municipalities under this section does not amount to an undue
delegation of legislative power, relying upon Municipality of Cardona
vs. Municipality of Binañgonan (36 Phil. 547), which, he claims, has
settled it. Such claim is untenable, for said case involved, not the
creation of a new municipality, but a mere transfer of territory — from
an already existing municipality (Cardona) to another municipality
(Binañgonan), likewise, existing at the time of and prior to said
transfer (See Gov't of the P.I. ex rel. Municipality of Cardona vs.
Municipality, of Binañgonan [34 Phil. 518, 519-5201) — in
consequence of the fixing and definition, pursuant to Act No. 1748, of
the common boundaries of two municipalities.
It is obvious, however, that, whereas the power to fix such common
boundary, in order to avoid or settle conflicts of jurisdiction between
adjoining municipalities, may partake of an administrative nature —
involving, as it does, the adoption of means and ways to carry into
effect the law creating said municipalities — the authority to create
municipal corporations is essentially legislative in nature. In the
language of other courts, it is "strictly a legislative function" (State ex
rel. Higgins vs. Aicklen, 119 S. 425, January 2, 1959) or "solely
and exclusively the exercise of legislative power" (Udall vs. Severn,
May 29, 1938, 79 P. 2d 347-349). As the Supreme Court of
Washington has put it (Territory ex rel. Kelly vs. Stewart, February 13,
1890, 23 Pac. 405, 409), "municipal corporations are purely the
creatures of statutes."
Although1a Congress may delegate to another branch of the
Government the power to fill in the details in the execution,
enforcement or administration of a law, it is essential, to forestall a
violation of the principle of separation of powers, that said law: (a) be
complete in itself — it must set forth therein the policy to be executed,
carried out or implemented by the delegate2 — and (b) fix a standard
— the limits of which are sufficiently determinate or determinable — to
which the delegate must conform in the performance of his
functions.2a Indeed, without a statutory declaration of policy, the
delegate would in effect, make or formulate such policy, which is the
essence of every law; and, without the aforementioned standard, there
would be no means to determine, with reasonable certainty, whether
the delegate has acted within or beyond the scope of his
authority.2b Hence, he could thereby arrogate upon himself the power,
not only to make the law, but, also — and this is worse — to unmake it,
by adopting measures inconsistent with the end sought to be attained
by the Act of Congress, thus nullifying the principle of separation of
powers and the system of checks and balances, and, consequently,
undermining the very foundation of our Republican system.
Section 68 of the Revised Administrative Code does not meet these
well settled requirements for a valid delegation of the power to fix the
details in the enforcement of a law. It does not enunciate any policy to
be carried out or implemented by the President. Neither does it give a
standard sufficiently precise to avoid the evil effects above referred to.
In this connection, we do not overlook the fact that, under the last
clause of the first sentence of Section 68, the President:
... may change the seat of the government within any subdivision to
such place therein as the public welfare may require.
It is apparent, however, from the language of this clause, that the
phrase "as the public welfare may require" qualified, not the clauses
preceding the one just quoted, but only the place to which the seat of
the government may be transferred. This fact becomes more apparent
when we consider that said Section 68 was originally Section 1 of Act
No. 1748,3 which provided that, "whenever in the judgment of the
Governor-General the public welfare requires, he may, by executive
order," effect the changes enumerated therein (as in said section 68),
including the change of the seat of the government "to such place ... as
the public interest requires." The opening statement of said Section 1
of Act No. 1748 — which was not included in Section 68 of the Revised
Administrative Code — governed the time at which, or the conditions
under which, the powers therein conferred could be exercised;
whereas the last part of the first sentence of said section
referred exclusively to the place to which the seat of the government
was to be transferred.
At any rate, the conclusion would be the same, insofar as the case at
bar is concerned, even if we assumed that the phrase "as the public
welfare may require," in said Section 68, qualifies all other clauses
thereof. It is true that in Calalang vs. Williams (70 Phil. 726)
and People vs. Rosenthal (68 Phil. 328), this Court had upheld "public
welfare" and "public interest," respectively, as sufficient standards for a
valid delegation of the authority to execute the law. But, the doctrine
laid down in these cases — as all judicial pronouncements — must be
construed in relation to the specific facts and issues involved therein,
outside of which they do not constitute precedents and have no binding
effect.4 The law construed in the Calalang case conferred upon the
Director of Public Works, with the approval of the Secretary of Public
Works and Communications, the power to issue rules and regulations
to promote safe transitupon national roads and streets. Upon the other
hand, the Rosenthal case referred to the authority of the Insular
Treasurer, under Act No. 2581, to issue and cancel certificates or
permits for the sale of speculative securities. Both cases involved
grants to administrative officers of powers related to the exercise of
their administrative functions, calling for the determination of questions
of fact.
Such is not the nature of the powers dealt with in section 68. As above
indicated, the creation of municipalities, is not
33
an administrative function, but one which is essentially and eminently
legislative in character. The question of whether or not "public interest"
demands the exercise of such power is not one of fact. it is "purely a
legislativequestion "(Carolina-Virginia Coastal Highway vs. Coastal
Turnpike Authority, 74 S.E. 2d. 310-313, 315-318), or
a political question (Udall vs. Severn, 79 P. 2d. 347-349). As the
Supreme Court of Wisconsin has aptly characterized it, "the question
as to whether incorporation is for the best interest of the community in
any case is emphatically a question of public policy and statecraft" (In
re Village of North Milwaukee, 67 N.W. 1033, 1035-1037).
For this reason, courts of justice have annulled, as constituting undue
delegation of legislative powers, state laws granting the judicial
department, the power to determine whether certain territories should
be annexed to a particular municipality (Udall vs. Severn, supra, 258-
359); or vesting in a Commission the right to determine the plan and
frame of government of proposed villages and what functions shall be
exercised by the same, although the powers and functions of the
village are specifically limited by statute (In re Municipal Charters, 86
Atl. 307-308); or conferring upon courts the authority to declare a given
town or village incorporated, and designate its metes and bounds,
upon petition of a majority of the taxable inhabitants thereof, setting
forth the area desired to be included in such village (Territory ex rel
Kelly vs. Stewart, 23 Pac. 405-409); or authorizing the territory of a
town, containing a given area and population, to be incorporated as a
town, on certain steps being taken by the inhabitants thereof and on
certain determination by a court and subsequent vote of the inhabitants
in favor thereof, insofar as the court is allowed to determine whether
the lands embraced in the petition "ought justly" to be included in the
village, and whether the interest of the inhabitants will be promoted by
such incorporation, and to enlarge and diminish the boundaries of the
proposed village "as justice may require" (In re Villages of North
Milwaukee, 67 N.W. 1035-1037); or creating a Municipal Board of
Control which shall determine whether or not the laying out,
construction or operation of a toll road is in the "public interest" and
whether the requirements of the law had been complied with, in which
case the board shall enter an order creating a municipal corporation
and fixing the name of the same (Carolina-Virginia Coastal Highway
vs. Coastal Turnpike Authority, 74 S.E. 2d. 310).
Insofar as the validity of a delegation of power by Congress to the
President is concerned, the case of Schechter Poultry Corporation vs.
U.S. (79 L. Ed. 1570) is quite relevant to the one at bar. The Schechter
case involved the constitutionality of Section 3 of the National Industrial
Recovery Act authorizing the President of the United States to approve
"codes of fair competition" submitted to him by one or more trade or
industrial associations or corporations which "impose no inequitable
restrictions on admission to membership therein and are truly
representative," provided that such codes are not designed "to
promote monopolies or to eliminate or oppress small enterprises and
will not operate to discriminate against them, and will tend to effectuate
the policy" of said Act. The Federal Supreme Court held:
To summarize and conclude upon this point: Sec. 3 of the Recovery
Act is without precedent. It supplies no standards for any trade,
industry or activity. It does not undertake to prescribe rules of conduct
to be applied to particular states of fact determined by appropriate
administrative procedure. Instead of prescribing rules of conduct, it
authorizes the making of codes to prescribe them. For that legislative
undertaking, Sec. 3 sets up no standards, aside from the statement of
the general aims of rehabilitation, correction and expansion described
in Sec. 1. In view of the scope of that broad declaration, and of the
nature of the few restrictions that are imposed, the discretion of the
President in approving or prescribing codes, and thus enacting laws for
the government of trade and industry throughout the country, is
virtually unfettered. We think that the code making authority thus
conferred is an unconstitutional delegation of legislative power.
If the term "unfair competition" is so broad as to vest in the President a
discretion that is "virtually unfettered." and, consequently, tantamount
to a delegation of legislative power, it is obvious that "public welfare,"
which has even a broader connotation, leads to the same result. In
fact, if the validity of the delegation of powers made in Section 68 were
upheld, there would no longer be any legal impediment to a statutory
grant of authority to the President to do anything which, in his opinion,
may be required by public welfare or public interest. Such grant of
authority would be a virtual abdication of the powers of Congress in
favor of the Executive, and would bring about a total collapse of the
democratic system established by our Constitution, which it is the
special duty and privilege of this Court to uphold.
It may not be amiss to note that the executive orders in question were
issued after the legislative bills for the creation of the municipalities
involved in this case had failed to pass Congress. A better proof of the
fact that the issuance of said executive orders entails the exercise of
purely legislative functions can hardly be given.
Again, Section 10 (1) of Article VII of our fundamental law ordains:
The President shall have control of all the executive departments,
bureaus, or offices, exercise general supervision over all local
governments as may be provided by law, and take care that the laws
be faithfully executed.
The power of control under this provision implies the right of the
President to interfere in the exercise of such discretion as may be
vested by law in the officers of the executive departments, bureaus, or
offices of the national government, as well as to act in lieu of such
officers. This power is denied by the Constitution to the Executive,
insofar as local governments are concerned. With respect to the latter,
the fundamental law permits him to wield no more authority than that of
checking whether said local governments or the officers thereof
perform their duties as provided by statutory enactments. Hence, the
President cannot interfere with local governments, so long as the same
or its officers act Within the scope of their authority. He may not enact
an ordinance which the municipal council has failed or refused to pass,
even if it had thereby violated a duty imposed thereto by law, although
he may see to it that the corresponding provincial officials take
appropriate disciplinary action therefor. Neither may he vote, set aside
or annul an ordinance passed by said council within the scope of its
jurisdiction, no matter how patently unwise it may be. He may not even
suspend an elective official of a regular municipality or take any
disciplinary action against him, except on appeal from a decision of the
corresponding provincial board.5
Upon the other hand if the President could create a municipality, he
could, in effect, remove any of its officials, by creating a new
municipality and including therein the barrio in which the official
concerned resides, for his office would thereby become vacant. 6 Thus,
by merely brandishing the power to create a new municipality (if he
had it), without actually creating it, he could compel local officials to
submit to his dictation, thereby, in effect, exercising over them the
power of control denied to him by the Constitution.
Then, also, the power of control of the President over executive
departments, bureaus or offices implies no more than the authority to
assume directly the functions thereof or to interfere in the exercise of
discretion by its officials. Manifestly, such control does not include the
authority either to abolish an executive department or bureau, or to
create a new one. As a consequence, the alleged power of the
President to create municipal corporations would necessarily connote
34
the exercise by him of an authority even greater than that of control
which he has over the executive departments, bureaus or offices. In
other words, Section 68 of the Revised Administrative Code does not
merely fail to comply with the constitutional mandate above quoted.
Instead of giving the President less power over local governments than
that vested in him over the executive departments, bureaus or offices,
it reverses the process and does the exact opposite, by conferring
upon him more power over municipal corporations than that which he
has over said executive departments, bureaus or offices.
In short, even if it did entail an undue delegation of legislative powers,
as it certainly does, said Section 68, as part of the Revised
Administrative Code, approved on March 10, 1917, must be deemed
repealed by the subsequent adoption of the Constitution, in 1935,
which is utterly incompatible and inconsistent with said statutory
enactment.7
There are only two (2) other points left for consideration, namely,
respondent's claim (a) that "not all the proper parties" — referring to
the officers of the newly created municipalities — "have been
impleaded in this case," and (b) that "the present petition is
premature."
As regards the first point, suffice it to say that the records do not show,
and the parties do not claim, that the officers of any of said
municipalities have been appointed or elected and assumed office. At
any rate, the Solicitor General, who has appeared on behalf of
respondent Auditor General, is the officer authorized by law "to act and
represent the Government of the Philippines, its offices and agents, in
any official investigation, proceeding or matter requiring the services of
a lawyer" (Section 1661, Revised Administrative Code), and, in
connection with the creation of the aforementioned municipalities,
which involves a political, not proprietary, function, said local officials, if
any, are mere agents or representatives of the national government.
Their interest in the case at bar has, accordingly, been, in effect, duly
represented.8
With respect to the second point, respondent alleges that he has not
as yet acted on any of the executive order & in question and has not
intimated how he would act in connection therewith. It is, however, a
matter of common, public knowledge, subject to judicial cognizance,
that the President has, for many years, issued executive orders
creating municipal corporations and that the same have been
organized and in actual operation, thus indicating, without
peradventure of doubt, that the expenditures incidental thereto have
been sanctioned, approved or passed in audit by the General Auditing
Office and its officials. There is no reason to believe, therefore, that
respondent would adopt a different policy as regards the new
municipalities involved in this case, in the absence of an allegation to
such effect, and none has been made by him.
WHEREFORE, the Executive Orders in question are hereby declared
null and void ab initio and the respondent permanently restrained from
passing in audit any expenditure of public funds in implementation of
said Executive Orders or any disbursement by the municipalities above
referred to. It is so ordered.
Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera and Dizon,
JJ., concur.
Zaldivar, J., took no part.
Separate Opinions
BENGZON, J.P., J., concurring and dissenting:
A sign of progress in a developing nation is the rise of new
municipalities. Fostering their rapid growth has long been the aim
pursued by all three branches of our Government.
So it was that the Governor-General during the time of the Jones Law
was given authority by the Legislature (Act No. 1748) to act upon
certain details with respect to said local governments, such as fixing of
boundaries, subdivisions and mergers. And the Supreme Court, within
the framework of the Jones Law, ruled in 1917 that the execution or
implementation of such details, did not entail abdication of legislative
power (Government vs. Municipality of Binañgonan, 34 Phil. 518;
Municipality of Cardona vs. Municipality of Binañgonan, 36 Phil. 547).
Subsequently, Act No. 1748's aforesaid statutory authorization was
embodied in Section 68 of the Revised Administrative Code. And Chief
Executives since then up to the present continued to avail of said
provision, time and again invoking it to issue executive orders
providing for the creation of municipalities.
From September 4, 1964 to October 29, 1964 the President of the
Philippines issued executive orders to create thirty-three municipalities
pursuant to Section 68 of the Revised Administrative Code. Public
funds thereby stood to be disbursed in implementation of said
executive orders.
Suing as private citizen and taxpayer, Vice President Emmanuel
Pelaez filed in this Court a petition for prohibition with preliminary
injunction against the Auditor General. It seeks to restrain the
respondent or any person acting in his behalf, from passing in audit
any expenditure of public funds in implementation of the executive
orders aforementioned.
Petitioner contends that the President has no power to create a
municipality by executive order. It is argued that Section 68 of the
Revised Administrative Code of 1917, so far as it purports to grant any
such power, is invalid or, at the least, already repealed, in light of the
Philippine Constitution and Republic Act 2370 (The Barrio Charter).
Section 68 is again reproduced hereunder for convenience:
SEC. 68. General authority of [Governor-General) President of the
Philippines to fix boundaries and make new subdivisions. — The
[Governor-General] President of the Philippines may by executive
order define the boundary, or boundaries, of any province,
subprovince, municipality, [township] municipal district, or other
political subdivision, and increase or diminish the territory comprised
therein, may divide any province into one or more subprovinces,
separate any political division other than a province, into such portions
as may be required, merge any of such subdivisions or portions with
another, name any new subdivision so created, and may change the
seat of government within any subdivision to such place therein as the
public welfare may require: Provided, That the authorization of the
[Philippine Legislature] Congress of the Philippines shall first be
obtained whenever the boundary of any province or subprovince is to
be defined or any province is to be divided into one or more
subprovinces. When action by the [Governor-General] President of the
Philippines in accordance herewith makes necessary a change of the
territory under the jurisdiction of any administrative officer or any
judicial officer, the [Governor-General] President of the Philippines,
with the recommendation and advice of the head of the Department
having executive control of such officer, shall redistrict the territory of
the several officers to the new districts so formed.
35
Upon the changing of the limits of political divisions in pursuance of the
foregoing authority, an equitable distribution of the funds and
obligations of the divisions thereby affected shall be made in such
manner as may be recommended by the [Insular Auditor] Auditor
General and approved by the [Governor-General] President of the
Philippines.
From such working I believe that power to create a municipality is
included: to "separate any political division other than a province, into
such portions as may be required, merge any such subdivisions or
portions with another, name any new subdivision so created." The
issue, however, is whether the legislature can validly delegate to the
Executive such power.
The power to create a municipality is legislative in character. American
authorities have therefore favored the view that it cannot be delegated;
that what is delegable is not the power to create municipalities but only
the power to determine the existence of facts under which creation of a
municipality will result (37 Am. Jur. 628).
The test is said to lie in whether the statute allows any discretion on
the delegate as to whether the municipal corporation should be
created. If so, there is an attempted delegation of legislative power and
the statute is invalid (Ibid.). Now Section 68 no doubt gives the
President such discretion, since it says that the President "may by
executive order" exercise the powers therein granted. Furthermore,
Section 5 of the same Code states:
SEC. 5. Exercise of administrative discretion — The exercise of the
permissive powers of all executive or administrative officers and bodies
is based upon discretion, and when such officer or body is given
authority to do any act but not required to do such act, the doing of the
same shall be dependent on a sound discretion to be exercised for the
good of the service and benefit of the public, whether so expressed in
the statute giving the authority or not.
Under the prevailing rule in the United States — and Section 68 is of
American origin — the provision in question would be an invalid
attempt to delegate purely legislative powers, contrary to the principle
of separation of powers.
It is very pertinent that Section 68 should be considered with the
stream of history in mind. A proper knowledge of the past is the only
adequate background for the present. Section 68 was adopted half a
century ago. Political change, two world wars, the recognition of our
independence and rightful place in the family of nations, have since
taken place. In 1917 the Philippines had for its Organic Act the Jones
Law. And under the setup ordained therein no strict separation of
powers was adhered to. Consequently, Section 68 was not
constitutionally objectionable at the time of its enactment.
The advent of the Philippine Constitution in 1935 however altered the
situation. For not only was separation of powers strictly ordained,
except only in specific instances therein provided, but the power of the
Chief Executive over local governments suffered an explicit reduction.
Formerly, Section 21 of the Jones Law provided that the Governor-
General "shall have general supervision and control of all the
departments and bureaus of the government in the Philippine Islands."
Now Section 10 (1), Article VII of the Philippine Constitution provides:
"The President shall have control of all the executive departments,
bureaus, or offices, exercise general supervision over all local
governments as may be provided by law, and take care that the laws
be faithfully executed.
In short, the power of control over local governments had now been
taken away from the Chief Executive. Again, to fully understand the
significance of this provision, one must trace its development and
growth.
As early as April 7, 1900 President McKinley of the United States, in
his Instructions to the Second Philippine Commission, laid down the
policy that our municipal governments should be "subject to the least
degree of supervision and control" on the part of the national
government. Said supervision and control was to be confined within
the "narrowest limits" or so much only as "may be necessary to secure
and enforce faithful and efficient administration by local officers." And
the national government "shall have no direct administration except of
matters of purely general concern." (See Hebron v. Reyes, L-9158,
July 28, 1958.)
All this had one aim, to enable the Filipinos to acquire experience in
the art of self-government, with the end in view of later allowing them
to assume complete management and control of the administration of
their local affairs. Such aim is the policy now embodied in Section 10
(1), Article VII of the Constitution (Rodriguez v. Montinola, 50 O.G.
4820).
It is the evident decree of the Constitution, therefore, that the President
shall have no power of control over local governments. Accordingly,
Congress cannot by law grant him such power (Hebron v. Reyes,
supra). And any such power formerly granted under the Jones Law
thereby became unavoidably inconsistent with the Philippine
Constitution.
It remains to examine the relation of the power to create and the power
to control local governments. Said relationship has already been
passed upon by this Court in Hebron v. Reyes, supra. In said case, it
was ruled that the power to control is an incident of the power to create
or abolish municipalities. Respondent's view, therefore, that creating
municipalities and controlling their local governments are "two worlds
apart," is untenable. And since as stated, the power to control local
governments can no longer be conferred on or exercised by the
President, it follows a fortiori that the power to create them, all the
more cannot be so conferred or exercised.
I am compelled to conclude, therefore, that Section 10 (1), Article VII of
the Constitution has repealed Section 68 of the Revised Administrative
Code as far as the latter empowers the President to create local
governments. Repeal by the Constitution of prior statutes inconsistent
with it has already been sustained in De los Santos v. MaIlare, 87 Phil.
289. And it was there held that such repeal differs from a declaration of
unconstitutionality of a posterior legislation, so much so that only a
majority vote of the Court is needed to sustain a finding of repeal.
Since the Constitution repealed Section 68 as far back as 1935, it is
academic to ask whether Republic Act 2370 likewise has provisions in
conflict with Section 68 so as to repeal it. Suffice it to state, at any rate,
that statutory prohibition on the President from creating a barrio does
not, in my opinion, warrant the inference of statutory prohibition for
creating a municipality. For although municipalities consist of barrios,
there is nothing in the statute that would preclude creation of new
municipalities out of pre-existing barrios.
It is not contrary to the logic of local autonomy to be able to create
larger political units and unable to create smaller ones. For as long ago
observed in President McKinley's Instructions to the Second Philippine
Commission, greater autonomy is to be imparted to the smaller of the
two political units. The smaller the unit of local government, the lesser
is the need for the national government's intervention in its political
affairs. Furthermore, for practical reasons, local autonomy cannot be
36
given from the top downwards. The national government, in such a
case, could still exercise power over the supposedly autonomous unit,
e.g., municipalities, by exercising it over the smaller units that comprise
them, e.g., the barrios. A realistic program of decentralization therefore
calls for autonomy from the bottom upwards, so that it is not surprising
for Congress to deny the national government some power over
barrios without denying it over municipalities. For this reason, I
disagree with the majority view that because the President could not
create a barrio under Republic Act 2370, a fortiori he cannot create a
municipality.
It is my view, therefore, that the Constitution, and not Republic Act
2370, repealed Section 68 of the Revised Administrative Code's
provision giving the President authority to create local governments.
And for this reason I agree with the ruling in the majority opinion that
the executive orders in question are null and void.
In thus ruling, the Court is but sustaining the fulfillment of our historic
desire to be free and independent under a republican form of
government, and exercising a function derived from the very
sovereignty that it upholds. Executive orders declared null and void.
Makalintal and Regala, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-16704 March 17, 1962
VICTORIAS MILLING COMPANY, INC., petitioner-appellant,
vs.
SOCIAL SECURITY COMMISSION, respondent-appellee.
Ross, Selph and Carrascoso for petitioner-appellant.
Office of the Solicitor General and Ernesto T. Duran for respondent-
appellee.
BARRERA, J.:
On October 15, 1958, the Social Security Commission issued its
Circular No. 22 of the following tenor: .
Effective November 1, 1958, all Employers in computing the premiums
due the System, will take into consideration and include in the
Employee's remuneration all bonuses and overtime pay, as well as the
cash value of other media of remuneration. All these will comprise the
Employee's remuneration or earnings, upon which the 3-1/2% and 2-
1/2% contributions will be based, up to a maximum of P500 for any
one month.
Upon receipt of a copy thereof, petitioner Victorias Milling Company,
Inc., through counsel, wrote the Social Security Commission in effect
protesting against the circular as contradictory to a previous Circular
No. 7, dated October 7, 1957 expressly excluding overtime pay and
bonus in the computation of the employers' and employees' respective
monthly premium contributions, and submitting, "In order to assist your
System in arriving at a proper interpretation of the term 'compensation'
for the purposes of" such computation, their observations on Republic
Act 1161 and its amendment and on the general interpretation of the
words "compensation", "remuneration" and "wages". Counsel further
questioned the validity of the circular for lack of authority on the part of
the Social Security Commission to promulgate it without the approval
of the President and for lack of publication in the Official Gazette.
Overruling these objections, the Social Security Commission ruled that
Circular No. 22 is not a rule or regulation that needed the approval of
the President and publication in the Official Gazette to be effective, but
a mere administrative interpretation of the statute, a mere statement of
general policy or opinion as to how the law should be construed.
Not satisfied with this ruling, petitioner comes to this Court on appeal.
The single issue involved in this appeal is whether or not Circular No.
22 is a rule or regulation, as contemplated in Section 4(a) of Republic
Act 1161 empowering the Social Security Commission "to adopt,
amend and repeal subject to the approval of the President such rules
and regulations as may be necessary to carry out the provisions and
purposes of this Act."
There can be no doubt that there is a distinction between an
administrative rule or regulation and an administrative interpretation of
a law whose enforcement is entrusted to an administrative body. When
an administrative agency promulgates rules and regulations, it "makes"
a new law with the force and effect of a valid law, while when it renders
an opinion or gives a statement of policy, it merely interprets a pre-
existing law (Parker, Administrative Law, p. 197; Davis, Administrative
Law, p. 194). Rules and regulations when promulgated in pursuance of
the procedure or authority conferred upon the administrative agency by
law, partake of the nature of a statute, and compliance therewith may
be enforced by a penal sanction provided in the law. This is so
because statutes are usually couched in general terms, after
expressing the policy, purposes, objectives, remedies and sanctions
intended by the legislature. The details and the manner of carrying out
the law are often times left to the administrative agency entrusted with
its enforcement. In this sense, it has been said that rules and
regulations are the product of a delegated power to create new or
additional legal provisions that have the effect of law. (Davis, op. cit., p.
194.) .
37
A rule is binding on the courts so long as the procedure fixed for its
promulgation is followed and its scope is within the statutory authority
granted by the legislature, even if the courts are not in agreement with
the policy stated therein or its innate wisdom (Davis, op. cit., 195-197).
On the other hand, administrative interpretation of the law is at best
merely advisory, for it is the courts that finally determine what the law
means.
Circular No. 22 in question was issued by the Social Security
Commission, in view of the amendment of the provisions of the Social
Security Law defining the term "compensation" contained in Section 8
(f) of Republic Act No. 1161 which, before its amendment, reads as
follows: .
(f) Compensation — All remuneration for employment include the cash
value of any remuneration paid in any medium other than cash except
(1) that part of the remuneration in excess of P500 received during the
month; (2) bonuses, allowances or overtime pay; and (3) dismissal and
all other payments which the employer may make, although not legally
required to do so.
Republic Act No. 1792 changed the definition of "compensation" to:
(f) Compensation — All remuneration for employment include the cash
value of any remuneration paid in any medium other than cash except
that part of the remuneration in excess of P500.00 received during the
month.
It will thus be seen that whereas prior to the amendment, bonuses,
allowances, and overtime pay given in addition to the regular or base
pay were expressly excluded, or exempted from the definition of the
term "compensation", such exemption or exclusion was deleted by the
amendatory law. It thus became necessary for the Social Security
Commission to interpret the effect of such deletion or elimination.
Circular No. 22 was, therefore, issued to apprise those concerned of
the interpretation or understanding of the Commission, of the law as
amended, which it was its duty to enforce. It did not add any duty or
detail that was not already in the law as amended. It merely stated and
circularized the opinion of the Commission as to how the law should be
construed. 1äwphï1.ñët
The case of People v. Jolliffe (G.R. No. L-9553, promulgated on May
30, 1959) cited by appellant, does not support its contention that the
circular in question is a rule or regulation. What was there said was
merely that a regulation may be incorporated in the form of a circular.
Such statement simply meant that the substance and not the form of a
regulation is decisive in determining its nature. It does not lay down a
general proposition of law that any circular, regardless of its substance
and even if it is only interpretative, constitutes a rule or regulation
which must be published in the Official Gazette before it could take
effect.
The case of People v. Que Po Lay (50 O.G. 2850) also cited by
appellant is not applicable to the present case, because the penalty
that may be incurred by employers and employees if they refuse to pay
the corresponding premiums on bonus, overtime pay, etc. which the
employer pays to his employees, is not by reason of non-compliance
with Circular No. 22, but for violation of the specific legal provisions
contained in Section 27(c) and (f) of Republic Act No. 1161.
We find, therefore, that Circular No. 22 purports merely to advise
employers-members of the System of what, in the light of the
amendment of the law, they should include in determining the monthly
compensation of their employees upon which the social security
contributions should be based, and that such circular did not require
presidential approval and publication in the Official Gazette for its
effectivity.
It hardly need be said that the Commission's interpretation of the
amendment embodied in its Circular No. 22, is correct. The express
elimination among the exemptions excluded in the old law, of all
bonuses, allowances and overtime pay in the determination of the
"compensation" paid to employees makes it imperative that such
bonuses and overtime pay must now be included in the employee's
remuneration in pursuance of the amendatory law. It is true that in
previous cases, this Court has held that bonus is not demandable
because it is not part of the wage, salary, or compensation of the
employee. But the question in the instant case is not whether bonus is
demandable or not as part of compensation, but whether, after the
employer does, in fact, give or pay bonus to his employees, such
bonuses shall be considered compensation under the Social Security
Act after they have been received by the employees. While it is true
that terms or words are to be interpreted in accordance with their well-
accepted meaning in law, nevertheless, when such term or word is
specifically defined in a particular law, such interpretation must be
adopted in enforcing that particular law, for it can not be gainsaid that a
particular phrase or term may have one meaning for one purpose and
another meaning for some other purpose. Such is the case that is now
before us. Republic Act 1161 specifically defined what "compensation"
should mean "For the purposes of this Act". Republic Act 1792
amended such definition by deleting same exemptions authorized in
the original Act. By virtue of this express substantial change in the
phraseology of the law, whatever prior executive or judicial
construction may have been given to the phrase in question should
give way to the clear mandate of the new law.
IN VIEW OF THE FOREGOING, the Resolution appealed from is
hereby affirmed, with costs against appellant. So ordered.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes,
J.B.L., Paredes, Dizon and De Leon, JJ., concur.
EN BANC
38
HON. EXECUTIVE SECRETARY, G.R. No. 164171 Respondents.

HON. SECRETARY OF THE

DEPARTMENT OF TRANSPORTATION x -------------------------------------------------------- x

AND COMMUNICATIONS (DOTC),

COMMISSIONER OF CUSTOMS,

ASSISTANT SECRETARY, LAND

TRANSPORTATION OFFICE (LTO),

HON. EXECUTIVE SECRETARY, G.R. No. 164172
COLLECTOR OF CUSTOMS, SUBIC
SECRETARY OF THE DEPARTMENT
BAY FREE PORT ZONE, AND CHIEF
OF TRANSPORTATION AND
OF LTO, SUBIC BAY FREE PORT ZONE,
COMMUNICATION (DOTC),
Petitioners,
COMMISSIONER OF CUSTOMS,
Present:
ASSISTANT SECRETARY, LAND

TRANSPORTATION OFFICE (LTO),

Panganiban, C.J.,
COLLECTOR OF CUSTOMS, SUBIC
Puno,
BAY FREE PORT ZONE AND CHIEF OF
Quisumbing,
LTO, SUBIC BAY FREE PORT ZONE,
Ynares-Santiago,
Petitioners,
Sandoval-Gutierrez,

- versus - Carpio,
- versus -
Austria-Martinez,
SUBIC INTEGRATED MACRO
Corona,
VENTURES CORP., represented
Carpio-Morales,
by its President YOLANDA AMBAR,
Callejo, Sr.,
Respondent.
Azcuna,

Tinga,
x -------------------------------------------------------- x
Chico-Nazario, and

Garcia, JJ.
HON. EXECUTIVE SECRETARY, G.R. No. 168741
SOUTHWING HEAVY INDUSTRIES,
HON. SECRETARY OF FINANCE,
INC., represented by its President JOSE
THE CHIEF OF THE LAND
T. DIZON, UNITED AUCTIONEERS,
TRANSPORTATION OFFICE, THE
INC., represented by its President
COMMISSIONER OF CUSTOMS,
DOMINIC SYTIN, and MICROVAN,
and THE COLLECTOR OF CUSTOMS,
INC., represented by its President
SUBIC SPECIAL ECONOMIC ZONE,
MARIANO C. SONON,

39
Petitioners, 3.1.2 A vehicle for the use of an official of the Diplomatic Corps and
authorized to be imported by the Department of Foreign Affairs;

- versus -
3.1.3 Trucks excluding pickup trucks;
MOTOR VEHICLE IMPORTERS
1. with GVW of 2.5-6.0 tons covered by an authority to import issued
ASSOCIATION OF SUBIC BAY by the DTI.

FREEPORT, INC., represented by Promulgated: 2. With GVW above 6.0 tons.

its President ALFREDO S. GALANG,

Respondent. February 20, 2006 3.1.4 Buses:

1. with GVW of 6-12 tons covered by an authority to import issued by

DTI;
x ---------------------------------------------------------------------------------------- x
2. with GVW above 12 tons.

DECISION 3.1.5 Special purpose vehicles:

1. fire trucks

YNARES-SANTIAGO, J.: 2. ambulances

3. funeral hearse/coaches

The instant consolidated petitions seek to annul and set aside the 4. crane lorries
Decisions of the Regional Trial Court of Olongapo City, Branch 72, in
Civil Case No. 20-0-04 and Civil Case No. 22-0-04, both dated May 24, 5. tractor heads and truck tractors
2004; and the February 14, 2005 Decision of the Court of Appeals in
CA-G.R. SP. No. 83284, which declared Article 2, Section 3.1 of 6. boom trucks
Executive Order No. 156 (EO 156) unconstitutional. Said executive
issuance prohibits the importation into the country, inclusive of the 7. tanker trucks
Special Economic and Freeport Zone or the Subic Bay Freeport (SBF
or Freeport), of used motor vehicles, subject to a few exceptions. 8. tank lorries with high pressure spray gun

9. reefers or refrigerated trucks

The undisputed facts show that on December 12, 2002, President 10. mobile drilling derricks
Gloria Macapagal-Arroyo, through Executive Secretary Alberto
G. Romulo, issued EO 156, entitled PROVIDING FOR A 11. transit/concrete mixers
COMPREHENSIVE INDUSTRIAL POLICY AND DIRECTIONS FOR
THE MOTOR VEHICLE DEVELOPMENT PROGRAM AND ITS 12. mobile radiological units
IMPLEMENTING GUIDELINES.The challenged provision states:
13. wreckers or tow trucks

14. concrete pump trucks

3.1 The importation into the country, inclusive of the Freeport, of
all types of used motor vehicles is prohibited, except for the 15. aerial/bucket flat-form trucks
following:
16. street sweepers

17. vacuum trucks

3.1.1 A vehicle that is owned and for the personal use of a returning
18. garbage compactors
resident or immigrant and covered by an authority to import issued
under the No-dollar Importation Program. Such vehicles cannot be
19. self loader trucks
resold for at least three (3) years;
20. man lift trucks

21. lighting trucks

40
22. trucks mounted with special purpose equipment
23. all other types of vehicle designed for a specific use.
The issuance of EO 156 spawned three separate actions for
declaratory relief before Branch 72 of
the Regional Trial Court of Olongapo City, all seeking the declaration
of the unconstitutionality of Article 2, Section 3.1 of said executive
order. The cases were filed by herein respondent entities, who or
whose members, are classified as Subic Bay Freeport Enterprises and
engaged in the business of, among others, importing and/or trading
used motor vehicles.
G.R. No. 164171:
On January 16, 2004, respondents Southwing Heavy Industries, Inc.,
(SOUTHWING) United Auctioneers, Inc. (UNITED AUCTIONEERS),
and Microvan, Inc. (MICROVAN), instituted a declaratory relief case
docketed as Civil Case No. 20-0-04,[1] against the Executive Secretary,
Secretary of Transportation and Communication, Commissioner of
Customs, Assistant Secretary and Head of the Land Transportation
Office, Subic Bay Metropolitan Authority (SBMA), Collector of Customs
for the Port at Subic Bay Freeport Zone, and the Chief of the Land
Transportation Office at Subic Bay Freeport Zone.
SOUTHWING, UNITED AUCTIONEERS and MICROVAN prayed that
judgment be rendered (1) declaring Article 2, Section 3.1 of EO 156
unconstitutional and illegal; (2) directing the Secretary of Finance,
Commissioner of Customs, Collector of Customs and the Chairman of
the SBMA to allow the importation of used motor vehicles; (2) ordering
the Land Transportation Office and its subordinates inside
the Subic Special Economic Zone to process the registration of the
imported used motor vehicles; and (3) in general, to allow the
unimpeded entry and importation of used motor vehicles subject only
to the payment of the required customs duties.
Upon filing of petitioners answer/comment,
respondents SOUTHWING and MICROVAN filed a motion for
summary judgment which was granted by the trial court. On May 24,
2004, a summary judgment was rendered declaring that Article 2,
Section 3.1 of EO 156 constitutes an unlawful usurpation of legislative
power vested by the Constitution with Congress.The trial court further
held that the proviso is contrary to the mandate of Republic Act No.
7227 (RA 7227) or the Bases Conversion and Development Act of
1992 which allows the free flow of goods and capital within
the Freeport. The dispositive portion of the said decision reads:
WHEREFORE, judgment is hereby rendered in favor of petitioner
declaring Executive Order 156 [Article 2, Section] 3.1 for being
unconstitutional and illegal; directing respondents Collector of Customs
based at SBMA to allow the importation and entry of used motor
vehicles pursuant to the mandate of RA 7227; directing respondent
Chief of the Land Transportation Office and its subordinates inside
the Subic Special Economic Zone or SBMA to process the registration
of imported used motor vehicle; and in general, to allow unimpeded
entry and importation of used motor vehicles to the Philippines subject
only to the payment of the required customs duties.
SO ORDERED.[2]
From the foregoing decision, petitioners sought relief before this
Court via a petition for review on certiorari, docketed as G.R. No.
164171.
G.R. No. 164172:
On January 20, 2004, respondent Subic Integrated Macro Ventures
Corporation (MACRO VENTURES) filed with the same trial court, a
similar action for declaratory relief docketed as Civil Case No. 22-0-
04,[3] with the same prayer and against the same parties[4] as those in
Civil Case No. 20-0-04.
In this case, the trial court likewise rendered a summary judgment
on May 24, 2004, holding that Article 2, Section 3.1 of EO 156, is
repugnant to the constitution.[5] Elevated to this Court via a petition for
review on certiorari, Civil Case No. 22-0-04 was docketed as G.R. No.
164172.
G.R. No. 168741
On January 22, 2003, respondent Motor Vehicle Importers Association
of Subic Bay Freeport, Inc. (ASSOCIATION), filed another action for
declaratory relief with essentially the same prayer as those in Civil
Case No. 22-0-04 and Civil Case No. 20-0-04, against the Executive
Secretary, Secretary of Finance, Chief of the Land Transportation
Office, Commissioner of Customs, Collector of Customs at SBMA and
the Chairman of SBMA. This was docketed as Civil Case No. 30-0-
2003,[6] before the same trial court.
In a decision dated March 10, 2004, the court a quo granted
the ASSOCIATIONs prayer and declared the assailed proviso as
contrary to the Constitution, to wit:
WHEREFORE, judgment is hereby rendered in favor of petitioner
declaring Executive Order 156 [Article 2, Section] 3.1 for being
unconstitutional and illegal; directing respondents Collector of Customs
based at SBMA to allow the importation and entry of used motor
vehicles pursuant to the mandate of RA 7227; directing respondent
Chief of the Land Transportation Office and its subordinates inside
the Subic Special Economic Zone or SBMA to process the registration
of imported used motor vehicles; directing the respondent Chairman of
the SBMA to allow the entry into the Subic Special Economic Zone or
SBMA imported used motor vehicle; and in general, to allow
41
unimpeded entry and importation of used motor vehicles to the
Philippines subject only to the payment of the required customs duties.
SO ORDERED.[7]
Aggrieved, the petitioners in Civil Case No. 30-0-2003, filed a petition
for certiorari[8] with the Court of Appeals (CA-G.R. SP. No. 83284)
which denied the petition on February 14, 2005 and sustained the
finding of the trial court that Article 2, Section 3.1 of EO 156, is void for
being repugnant to the constitution. The dispositive portion thereof,
reads:
WHEREFORE, the instant petition for certiorari is hereby DENIED. The
assailed decision of the Regional Trial Court, Third Judicial Region,
Branch 72, Olongapo City, in Civil Case No. 30-0-2003, accordingly,
STANDS.
SO ORDERED.[9]
The aforequoted decision of the Court of Appeals was elevated to this
Court and docketed as G.R. No. 168741. In a Resolution
dated October 4, 2005,[10] said case was consolidated with G.R. No.
164171 and G.R. No. 164172.
Petitioners are now before this Court contending that Article 2, Section
3.1 of EO 156 is valid and applicable to the entire country, including
the Freeeport. In support of their arguments, they raise procedural and
substantive issues bearing on the constitutionality of the assailed
proviso. The procedural issues are: the lack of
respondents locus standi to question the validity of EO 156, the
propriety of challenging EO 156 in a declaratory relief proceeding and
the applicability of a judgment on the pleadings in this case.
Petitioners argue that respondents will not be affected by the
importation ban considering that their certificate of registration and tax
exemption do not authorize them to engage in the importation and/or
trading of used cars. They also aver that the actions filed by
respondents do not qualify as declaratory relief cases. Section 1, Rule
63 of the Rules of Court provides that a petition for declaratory relief
may be filed before there is a breach or violation of rights. Petitioners
claim that there was already a breach of respondents supposed right
because the cases were filed more than a year after the issuance of
EO 156. In fact, in Civil Case No. 30-0-2003, numerous warrants of
seizure and detention were issued against imported used motor
vehicles belonging to respondent ASSOCIATIONs members.
Petitioners arguments lack merit.
The established rule that the constitutionality of a law or administrative
issuance can be challenged by one who will sustain a direct injury as a
result of its enforcement[11] has been satisfied in the instant case. The
broad subject of the prohibited importation is all types of used motor
vehicles. Respondents would definitely suffer a direct injury from the
implementation of EO 156 because their certificate of registration and
tax exemption authorize them to trade and/or import new and
used motor vehicles and spare parts, except used cars.[12] Other
types of motor vehicles imported and/or traded by respondents and not
falling within the category of used cars would thus be subjected to the
ban to the prejudice of their business. Undoubtedly, respondents have
the legal standing to assail the validity of EO 156.
As to the propriety of declaratory relief as a vehicle for assailing the
executive issuance, suffice it to state that any breach of the rights of
respondents will not affect the case. In Commission on Audit of the
Province of Cebu v. Province of Cebu,[13] the Court entertained a suit
for declaratory relief to finally settle the doubt as to the proper
interpretation of the conflicting laws involved, notwithstanding a
violation of the right of the party affected. We find no reason to deviate
from said ruling mindful of the significance of the present case to the
national economy.
So also, summary judgments were properly rendered by the trial court
because the issues involved in the instant case were pure questions of
law. A motion for summary judgment is premised on the assumption
that the issues presented need not be tried either because these are
patently devoid of substance or that there is no genuine issue as to
any pertinent fact. It is a method sanctioned by the Rules of Court for
the prompt disposition of a civil action in which the pleadings raise only
a legal issue, not a genuine issue as to any material fact.[14]
At any rate, even assuming the procedural flaws raised by petitioners
truly exist, the Court is not precluded from brushing aside these
technicalities and taking cognizance of the action filed by respondents
considering its importance to the public and in keeping with the duty to
determine whether the other branches of the government have kept
themselves within the limits of the Constitution.[15]
We now come to the substantive issues, which are: (1) whether there
is statutory basis for the issuance of EO 156; and (2) if the answer is in
the affirmative, whether the application of Article 2, Section 3.1 of EO
156, reasonable and within the scope provided by law.
The main thrust of the petition is that EO 156 is constitutional because
it was issued pursuant to EO 226, the Omnibus Investment Code of
the Philippines and that its application should be extended to the
Freeport because the guarantee of RA 7227 on the free flow of goods
into the said zone is merely an exemption from customs duties and
taxes on items brought into the Freeport and not an open floodgate for
all kinds of goods and materials without restriction.
In G.R. No. 168741, the Court of Appeals invalidated Article 2, Section
3.1 of EO 156, on the ground of lack of any statutory basis for the
42
President to issue the same. It held that the prohibition on the
importation of used motor vehicles is an exercise of police power
vested on the legislature and absent any enabling law, the exercise
thereof by the President through an executive issuance, is void.
Police power is inherent in a government to enact laws, within
constitutional limits, to promote the order, safety, health, morals, and
general welfare of society. It is lodged primarily with the legislature. By
virtue of a valid delegation of legislative power, it may also be
exercised by the President and administrative boards, as well as the
lawmaking bodies on all municipal levels, including
the barangay.[16] Such delegation confers upon the President quasi-
legislative power which may be defined as the authority delegated by
the law-making body to the administrative body to adopt rules and
regulations intended to carry out the provisions of the law and
implement legislative policy.[17] To be valid, an administrative issuance,
such as an executive order, must comply with the following requisites:
(1) Its promulgation must be authorized by the legislature;
(2) It must be promulgated in accordance with the prescribed
procedure;
(3) It must be within the scope of the authority given by the legislature;
and
(4) It must be reasonable.[18]
Contrary to the conclusion of the Court of Appeals, EO 156 actually
satisfied the first requisite of a valid administrative order. It has both
constitutional and statutory bases.
Delegation of legislative powers to the President is permitted in Section
28(2) of Article VI of the Constitution. It provides:
(2) The Congress may, by law, authorize the President to fix within
specified limits, and subject to such limitations and restrictions as it
may impose, tariff rates, import and export quotas, tonnage
and wharfage dues, and other duties or imposts within the framework
of the national development program of the Government.[19] (Emphasis
supplied)
The relevant statutes to execute this provision are:
1) The Tariff and Customs Code which authorizes the President, in
the interest of national economy, general welfare and/or national
security, to, inter alia, prohibit the importation of any
commodity. Section 401 thereof, reads:
Sec. 401. Flexible Clause.
a. In the interest of national economy, general welfare and/or
national security, and subject to the limitations herein prescribed,
the President, upon recommendation of the National Economic
and Development Authority (hereinafter referred to as NEDA), is
hereby empowered: x x x (2) to establish import quota or to ban
imports of any commodity, as may be necessary; x x x Provided,
That upon periodic investigations by the Tariff Commission and
recommendation of the NEDA, the President may cause a gradual
reduction of protection levels granted in Section One hundred and four
of this Code, including those subsequently granted pursuant to this
section. (Emphasis supplied)
2) Executive Order No. 226, the Omnibus Investment Code of the
Philippines which was issued on July 16, 1987, by then President
Corazon C. Aquino, in the exercise of legislative power under the
Provisional Freedom Constitution,[20] empowers the President to
approve or reject the prohibition on the importation of any equipment or
raw materials or finished products. Pertinent provisions thereof, read:
ART. 4. Composition of the board. The Board of Investments shall be
composed of seven (7) governors: The Secretary of Trade and
Industry, three (3) Undersecretaries of Trade and Industry to be
chosen by the President; and three (3) representatives from the
government agencies and the private sector x x x.
ART. 7. Powers and duties of the Board.
xxxx
(12) Formulate and implement rationalization programs for certain
industries whose operation may result in dislocation, overcrowding or
inefficient use of resources, thus impeding economic growth. For this
purpose, the Board may formulate guidelines for progressive
manufacturing programs, local content programs, mandatory sourcing
requirements and dispersal of industries. In appropriate cases and
upon approval of the President, the Board may restrict, either
totally or partially, the importation of any equipment or raw
materials or finished products involved in the rationalization
program; (Emphasis supplied)
3) Republic Act No. 8800, otherwise known as the Safeguard
Measures Act (SMA), and entitled An Act Protecting Local Industries
By Providing Safeguard Measures To Be Undertaken In Response To
Increased Imports And Providing Penalties For Violation
Thereof,[21] designated the Secretaries[22] of the Department of Trade
and Industry (DTI) and the Department of Agriculture, in their capacity
as alter egos of the President, as the implementing authorities of the
safeguard measures, which include, inter alia, modification or
imposition of any quantitative restriction on the importation of a product
43
into the Philippines. The purpose of the SMA is stated in the
declaration of policy, thus:
SEC. 2. Declaration of Policy. The State shall promote competitiveness
of domestic industries and producers based on sound industrial and
agricultural development policies, and efficient use of human, natural
and technical resources. In pursuit of this goal and in the public
interest, the State shall provide safeguard measures to protect
domestic industries and producers from increased imports which cause
or threaten to cause serious injury to those domestic industries and
producers.
There are thus explicit constitutional and statutory permission
authorizing the President to ban or regulate importation of articles and
commodities into the country.
Anent the second requisite, that is, that the order must be issued or
promulgated in accordance with the prescribed procedure, it is
necessary that the nature of the administrative issuance is properly
determined. As in the enactment of laws, the general rule is that, the
promulgation of administrative issuances requires previous notice and
hearing, the only exception being where the legislature itself requires it
and mandates that the regulation shall be based on certain facts as
determined at an appropriate investigation.[23] This exception pertains
to the issuance of legislative rules as distinguished
from interpretative rules which give no real consequence more than
what the law itself has already prescribed;[24] and are designed merely
to provide guidelines to the law which the administrative agency is in
charge of enforcing.[25] A legislative rule, on the other hand, is in the
nature of subordinate legislation, crafted to implement a primary
legislation.
In Commissioner of Internal Revenue v. Court of
Appeals,[26] and Commissioner of Internal Revenue v. Michel
J. Lhuillier Pawnshop, Inc.,[27] the Court enunciated the doctrine that
when an administrative rule goes beyond merely providing for the
means that can facilitate or render less cumbersome the
implementation of the law and substantially increases the burden of
those governed, it behooves the agency to accord at least to those
directly affected a chance to be heard and, thereafter, to be duly
informed, before the issuance is given the force and effect of law.
In the instant case, EO 156 is obviously a legislative rule as it seeks to
implement or execute primary legislative enactments intended to
protect the domestic industry by imposing a ban on the importation of a
specified product not previously subject to such prohibition. The due
process requirements in the issuance thereof are embodied in
Section 401[28] of the Tariff and Customs Code and Sections 5 and 9 of
the SMA[29] which essentially mandate the conduct of investigation and
public hearings before the regulatory measure or importation ban may
be issued.
In the present case, respondents neither questioned before this Court
nor with the courts below the procedure that paved the way for the
issuance of EO 156. What they challenged in their petitions before the
trial court was the absence of substantive due process in the issuance
of the EO.[30] Their main contention before the court a quo is that the
importation ban is illogical and unfair because it unreasonably drives
them out of business to the prejudice of the national economy.
Considering the settled principle that in the absence of strong evidence
to the contrary, acts of the other branches of the government are
presumed to be valid,[31] and there being no objection from the
respondents as to the procedure in the promulgation of EO 156, the
presumption is that said executive issuance duly complied with the
procedures and limitations imposed by law.
To determine whether EO 156 has complied with the third and fourth
requisites of a valid administrative issuance, to wit, that it was issued
within the scope of authority given by the legislature and that it is
reasonable, an examination of the nature of a Freeport under RA 7227
and the primordial purpose of the importation ban under the
questioned EO is necessary.
RA 7227 was enacted providing for, among other things, the sound
and balanced conversion of the Clark and Subic military reservations
and their extensions into alternative productive uses in the form of
Special Economic and Freeport Zone, or the Subic Bay Freeport, in
order to promote the economic and social development of Central
Luzon in particular and the country in general.
The Rules and Regulations Implementing RA 7227 specifically defines
the territory comprising the Subic Bay Freeport, referred to as the
Special Economic and Freeport Zone in Section 12 of RA 7227 as "a
separate customs territory consisting of the City of Olongapo and the
Municipality of Subic, Province of Zambales, the lands occupied by
the Subic Naval Base and its contiguous extensions as embraced,
covered and defined by the 1947 Philippine-U.S. Military Base
Agreement as amended and within the territorial jurisdiction
of Morongand Hermosa, Province of Bataan, the metes and bounds of
which shall be delineated by the President of the Philippines; provided
further that pending establishment of secure perimeters around the
entire SBF, the SBF shall refer to the area demarcated by the SBMA
pursuant to Section 13[32] hereof."
Among the salient provisions of RA 7227 are as follows:
SECTION 12. Subic Special Economic Zone.
xxxx
The abovementioned zone shall be subject to the following policies:
xxxx
44

(a) Within the framework and subject to the mandate and limitations of
the Constitution and the pertinent provisions of the Local Government
Code, the Subic Special Economic Zone shall be developed into a self-
sustaining, industrial, commercial, financial and investment center to
generate employment opportunities in and around the zone and to
attract and promote productive foreign investments;
(b) The Subic Special Economic Zone shall be operated and managed
as a separate customs territory ensuring free flow or movement of
goods and capital within, into and exported out of the SubicSpecial
Economic Zone, as well as provide incentives such as tax and duty-
free importations of raw materials, capital and equipment. However,
exportation or removal of goods from the territory of the Subic Special
Economic Zone to the other parts of the Philippine territory shall be
subject to customs duties and taxes under the Customs and Tariff
Code and other relevant tax laws of the Philippines;
The Freeport was designed to ensure free flow or movement of goods
and capital within a portion of the Philippine territory in order to attract
investors to invest their capital in a business climate with the least
governmental intervention. The concept of this zone was explained by
Senator Guingona in this wise:
Senator Guingona. Mr. President, the special economic zone is
successful in many places, particularly Hong Kong, which is a free
port. The difference between a special economic zone and an
industrial estate is simply expansive in the sense that the commercial
activities, including the establishment of banks, services, financial
institutions, agro-industrial activities, maybe agriculture to a certain
extent.
This delineates the activities that would have the least of
government intervention, and the running of the affairs of the
special economic zone would be run principally by the investors
themselves, similar to a housing subdivision, where the
subdivision owners elect their representatives to run the affairs of
the subdivision, to set the policies, to set the guidelines.
We would like to see Subic area converted into a little Hong Kong,
Mr. President, where there is a hub of free port and free entry, free
duties and activities to a maximum spur generation of investment
and jobs.
While the investor is reluctant to come in the Philippines, as a rule,
because of red tape and perceived delays, we envision this special
economic zone to be an area where there will be minimum government
interference.
The initial outlay may not only come from the Government or the
Authority as envisioned here, but from them themselves, because they
would be encouraged to invest not only for the land but also for the
buildings and factories. As long as they are convinced that in such an
area they can do business and reap reasonable profits, then many
from other parts, both local and foreign, would invest, Mr.
President.[33] (Emphasis, added)
With minimum interference from the government, investors can, in
general, engage in any kind of business as well as import and export
any article into and out of the Freeport.These are among the rights
accorded to Subic Bay Freeport Enterprises under Section 39 of the
Rules and Regulations Implementing RA 7227, thus
SEC. 39. Rights and Obligations.- SBF Enterprises shall have the
following rights and obligations:
a. To freely engage in any business, trade, manufacturing, financial or
service activity, and to import and export freely all types of goods into
and out of the SBF, subject to the provisions of the Act, these Rules
and other regulations that may be promulgated by the SBMA;
Citing, inter alia, the interpellations of Senator Enrile, petitioners claim
that the free flow or movement of goods and capital only means that
goods and material brought within the Freeport shall not be subject to
customs duties and other taxes and should not be construed as an
open floodgate for entry of all kinds of goods. They thus surmise that
the importation ban on motor vehicles is applicable within
the Freeport. Pertinent interpellations of Senator Enrile on the concept
of Freeport is as follows:
Senator Enrile: Mr. President, I think we are talking here of sovereign
concepts, not territorial concepts. The concept that we are supposed to
craft here is to carve out a portion of our terrestrial domain as well as
our adjacent waters and say to the world: Well, you can set up your
factories in this area that we are circumscribing, and bringing your
equipment and bringing your goods, you are not subject to any taxes
and duties because you are not within the customs jurisdiction of the
Republic of the Philippines, whether you store the goods or only for
purposes of transshipment or whether you make them into finished
products again to be reexported to other lands.
xxxx
My understanding of a free port is, we are in effect carving out a
part of our territory and make it as if it were foreign territory for
purposes of our customs laws, and that people can come, bring
their goods, store them there and bring them out again, as long
as they do not come into the domestic commerce of the Republic.
We do not really care whether these goods are stored here. The only
thing that we care is for our people to have an employment because of
45
the entry of these goods that are being discharged, warehoused and
reloaded into the ships so that they can be exported. That will generate
employment for us. For as long as that is done, we are saying, in
effect, that we have the least contact with our tariff and customs laws
and our tax laws. Therefore, we consider these goods as outside of the
customs jurisdiction of the Republic of the Philippines as yet, until we
draw them from this territory and bring them inside our domestic
commerce. In which case, they have to pass through our customs
gate. I thought we are carving out this entire area and convert it into
this kind of concept.[34]
However, contrary to the claim of petitioners, there is nothing in the
foregoing excerpts which absolutely limits the incentive
to Freeport investors only to exemption from customs duties and
taxes. Mindful of the legislative intent to attract investors, enhance
investment and boost the economy, the legislature could not have
limited the enticement only to exemption from taxes. The minimum
interference policy of the government on the Freeport extends to the
kind of business that investors may embark on and the articles which
they may import or export into and out of the zone. A contrary
interpretation would defeat the very purpose of the Freeport and drive
away investors.
It does not mean, however, that the right of Freeport enterprises to
import all types of goods and article is absolute. Such right is of course
subject to the limitation that articles absolutely prohibited by law cannot
be imported into the Freeport.[35] Nevertheless, in determining whether
the prohibition would apply to the Freeport, resort to the purpose of the
prohibition is necessary.
In issuing EO 156, particularly the prohibition on importation under
Article 2, Section 3.1, the President envisioned to rationalize the
importation of used motor vehicles and to enhance the capabilities of
the Philippine motor manufacturing firms to be globally competitive
producers of completely build-up units and their parts and components
for the local and export markets.[36] In justifying the issuance of EO
156, petitioners alleged that there has been a decline in the sales of
new vehicles and a remarkable growth of the sales of imported used
motor vehicles. To address the same, the President issued the
questioned EO to prevent further erosion of the already depressed
market base of the local motor vehicle industry and to curtail the
harmful effects of the increase in the importation of used motor
vehicles.[37]
Taking our bearings from the foregoing discussions, we hold that the
importation ban runs afoul the third requisite for a valid administrative
order. To be valid, an administrative issuance must not be ultra vires or
beyond the limits of the authority conferred. It must not supplant or
modify the Constitution, its enabling statute and other existing laws, for
such is the sole function of the legislature which the other branches of
the government cannot usurp. As held in United BF Homeowners
Association v. BF Homes, Inc.:[38]
The rule-making power of a public administrative body is a delegated
legislative power, which it may not use either to abridge the authority
given it by Congress or the Constitution or to enlarge its power beyond
the scope intended. Constitutional and statutory provisions control
what rules and regulations may be promulgated by such a body, as
well as with respect to what fields are subject to regulation by it. It may
not make rules and regulations which are inconsistent with the
provisions of the Constitution or a statute, particularly the statute it is
administering or which created it, or which are in derogation of, or
defeat, the purpose of a statute.
In the instant case, the subject matter of the laws authorizing the
President to regulate or forbid importation of used motor vehicles, is
the domestic industry. EO 156, however, exceeded the scope of its
application by extending the prohibition on the importation of used cars
to the Freeport, which RA 7227, considers to some extent, a foreign
territory. The domestic industry which the EO seeks to protect is
actually the customs territory which is defined under the Rules and
Regulations Implementing RA 7227, as follows:
the portion of the Philippines outside the Subic Bay Freeport
where the Tariff and Customs Code of the Philippines and other
national tariff and customs laws are in force and effect.[39]
The proscription in the importation of used motor vehicles should be
operative only outside the Freeport and the inclusion of said zone
within the ambit of the prohibition is an invalid modification of RA
7227. Indeed, when the application of an administrative issuance
modifies existing laws or exceeds the intended scope, as in the instant
case, the issuance becomes void, not only for being ultra vires, but
also for being unreasonable.
This brings us to the fourth requisite. It is an axiom in administrative
law that administrative authorities should not act arbitrarily and
capriciously in the issuance of rules and regulations. To be valid, such
rules and regulations must be reasonable and fairly adapted to secure
the end in view. If shown to bear no reasonable relation to the
purposes for which they were authorized to be issued, then they must
be held to be invalid.[40]
There is no doubt that the issuance of the ban to protect the domestic
industry is a reasonable exercise of police power. The deterioration of
the local motor manufacturing firms due to the influx of imported used
motor vehicles is an urgent national concern that needs to be swiftly
addressed by the President. In the exercise of delegated police power,
the executive can therefore validly proscribe the importation of these
vehicles. Thus, in Taxicab Operators of Metro Manila, Inc. v. Board of
Transportation,[41] the Court held that a regulation phasing out taxi cabs
more than six years old is a valid exercise of police power. The
regulation was sustained as reasonable holding that the purpose
thereof was to promote the convenience and comfort and protect the
safety of the passengers.
The problem, however, lies with respect to the application of the
importation ban to the Freeport. The Court finds no logic in the all
encompassing application of the assailed provision to
the Freeport which is outside the customs territory. As long as the used
motor vehicles do not enter the customs territory, the injury or harm
sought to be prevented or remedied will not arise. The application of
the law should be consistent with the purpose of and reason for the
law. Ratione cessat lex, et cessat lex. When the reason for the law
ceases, the law ceases. It is not the letter alone but the spirit of the
law also that gives it life.[42] To apply the proscription to
the Freeport would not serve the purpose of the EO. Instead of
improving the general economy of the country, the application of the
importation ban in the Freeport would subvert the avowed purpose of
RA 7227 which is to create a market that would draw investors and
ultimately boost the national economy.
46
In similar cases, we also declared void the administrative issuance or
ordinances concerned for being unreasonable. To illustrate, in De la
Cruz v. Paras,[43] the Court held as unreasonable and unconstitutional
an ordinance characterized by overbreadth. In that case,
the Municipality of Bocaue, Bulacan, prohibited the operation of all
night clubs, cabarets and dance halls within its jurisdiction for the
protection of public morals. As explained by the Court:
x x x It cannot be said that such a sweeping exercise of a lawmaking
power by Bocaue could qualify under the term reasonable. The
objective of fostering public morals, a worthy and desirable end can be
attained by a measure that does not encompass too wide a field.
Certainly the ordinance on its face is characterized by overbreadth.
The purpose sought to be achieved could have been attained by
reasonable restrictions rather than by an absolute prohibition. The
admonition in Salaveria should be heeded: The Judiciary should not
lightly set aside legislative action when there is not a clear invasion of
personal or property rights under the guise of police regulation. It is
clear that in the guise of a police regulation, there was in this instance
a clear invasion of personal or property rights, personal in the case of
those individuals desirous of patronizing those night clubs and property
in terms of the investments made and salaries to be earned by those
therein employed.
Lupangco v. Court of Appeals,[44] is a case involving a resolution
issued by the Professional Regulation Commission which prohibited
examinees from attending review classes and receiving handout
materials, tips, and the like three days before the date of examination
in order to preserve the integrity and purity of the licensure
examinations in accountancy. Besides being unreasonable on its face
and violative of academic freedom, the measure was found to be more
sweeping than what was necessary, viz:
Needless to say, the enforcement of Resolution No. 105 is not a
guarantee that the alleged leakages in the licensure examinations will
be eradicated or at least minimized. Making the examinees suffer by
depriving them of legitimate means of review or preparation on those
last three precious days when they should be refreshing themselves
with all that they have learned in the review classes and preparing their
mental and psychological make-up for the examination day itself would
be like uprooting the tree to get rid of a rotten branch. What is needed
to be done by the respondent is to find out the source of such leakages
and stop it right there. If corrupt officials or personnel should be
terminated from their loss, then so be it. Fixers or swindlers should be
flushed out. Strict guidelines to be observed by examiners should be
set up and if violations are committed, then licenses should be
suspended or revoked. x x x
In Lucena Grand Central Terminal, Inc. v. JAC Liner, Inc.,[45] the
Court likewise struck down as unreasonable and overbreadth a city
ordinance granting an exclusive franchise for 25 years, renewable for
another 25 years, to one entity for the construction and operation of
one common bus and jeepney terminal facility in Lucena City. While
professedly aimed towards alleviating the traffic congestion alleged to
have been caused by the existence of various bus
and jeepney terminals within the city, the ordinance was held to be
beyond what is reasonably necessary to solve the traffic problem in the
city.
By parity of reasoning, the importation ban in this case should also be
declared void for its too sweeping and unnecessary application to
the Freeport which has no bearing on the objective of the prohibition. If
the aim of the EO is to prevent the entry of used motor vehicles from
the Freeport to the customs territory, the solution is not to forbid entry
of these vehicles into the Freeport, but to intensify governmental
campaign and measures to thwart illegal ingress of used motor
vehicles into the customs territory.
At this juncture, it must be mentioned that on June 19, 1993, President
Fidel V. Ramos issued Executive Order No. 97-A, Further Clarifying
The Tax And Duty-Free Privilege Within The Subic Special Economic
And Free Port Zone, Section 1 of which provides:
SECTION 1. The following guidelines shall govern the tax and duty-
free privilege within the Secured Area of the Subic Special Economic
and Free Port Zone:
1.1. The Secured Area consisting of the presently fenced-in
former Subic Naval Base shall be the only completely tax and duty-free
area in the SSEFPZ. Business enterprises and individuals (Filipinos
and foreigners) residing within the Secured Area are free to import raw
materials, capital goods, equipment, and consumer items tax
and dutry-free. Consumption items, however, must be consumed
within the Secured Area. Removal of raw materials, capital goods,
equipment and consumer items out of the Secured Area for sale to
non-SSEFPZ registered enterprises shall be subject to the usual taxes
and duties, except as may be provided herein.
In Tiu v. Court of Appeals[46] as reiterated in Coconut Oil Refiners
Association, Inc. v. Torres,[47] this provision limiting the special
privileges on tax and duty-free importation in the presently fenced-in
former Subic Naval Base has been declared valid and constitutional
and in accordance with RA 7227. Consistent with these rulings and for
easier management and monitoring of activities and to prevent
fraudulent importation of merchandise and smuggling, the free flow
and importation of used motor vehicles shall be operative only within
the secured area.
In sum, the Court finds that Article 2, Section 3.1 of EO 156 is void
insofar as it is made applicable to the presently secured fenced-in
former Subic Naval Base area as stated in Section 1.1 of EO 97-
A. Pursuant to the separability clause[48] of EO 156, Section 3.1 is
declared valid insofar as it applies to the customs territory or the
Philippine territory outside the presently secured fenced-in
former Subic Naval Base area as stated in Section 1.1 of EO 97-
A. Hence, used motor vehicles that come into the Philippine
territory via the secured fenced-in former Subic Naval Base area may
be stored, used or traded therein, or exported out of the Philippine
territory, but they cannot be imported into the Philippine territory
outside of the secured fenced-in former Subic Naval Base area.
WHEREFORE, the petitions are PARTIALLY GRANTED and the May
24, 2004 Decisions of Branch 72, Regional Trial Court
of Olongapo City, in Civil Case No. 20-0-04 and Civil Case No. 22-0-
04; and the February 14, 2005 Decision of the Court of Appeals in CA-
G.R. SP No. 63284, are MODIFIED insofar as they declared Article 2,
Section 3.1 of Executive Order No. 156, void in its entirety.
Said provision is declared VALID insofar as it applies to the Philippine
territory outside the presently fenced-in former Subic Naval
Base area and VOID with respect to its application to the secured
fenced-in former Subic Naval Base area.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice
47
WE CONCUR: CORONA,

ARTEMIO V. PANGANIBAN CARPIO MORALES,*

Chief Justice CALLEJO, SR.,

AZCUNA,*

REYNATO S. PUNO LEONARDO A. QUISUMBING TINGA and

Associate Justice Associate Justice CHICO-NAZARIO,* JJ.

JUDGE GENEROSA G. LABRA,

ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO Branch 23, Regional Trial Court,

Associate Justice Associate Justice Cebu, and the CITY OF CEBU,

Respondent. Promulgated:

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice October 13, 2004

CONCHITA CARPIO-MORALES ROMEO J. CALLEJO, SR. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

Associate Justice Associate Justice

ADOLFO S. AZCUNA DANTE O. TINGA DECISION

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA CORONA, J.:

Associate Justice Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby
certified that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion
of the Court.
Before us is a petition for review of the decision dated July 1, 2002 of
the Regional Trial Court, Branch 23, Cebu City[1] upholding the validity
of the City of Cebus Ordinance No. 1843, as well as the lower courts
order dated August 26, 2002 denying petitioners motion for
reconsideration.

ARTEMIO V. PANGANIBAN
In 1964, the Province of Cebu donated 210 lots to the City of Cebu.
Chief Justice One of these lots was Lot 1029, situated in Capitol Hills, Cebu City,
with an area of 4,048 square meters. In 1965, petitioners purchased
EN BANC Lot 1029 on installment basis. But then, in late 1965, the 210 lots,
including Lot 1029, reverted to the Province of Cebu.[2] Consequently,
DIOSDADO LAGCAO, G.R. No. 155746 the province tried to annul the sale of Lot 1029 by the City of Cebu to
the petitioners. This prompted the latter to sue the province for specific
DOROTEO LAGCAO and performance and damages in the then Court of First Instance.

URSULA LAGCAO,

Petitioners, Present: On July 9, 1986, the court a quo ruled in favor of petitioners and
ordered the Province of Cebu to execute the final deed of sale in favor
of petitioners. On June 11, 1992, the Court of Appeals affirmed the
DAVIDE, C.J.,
decision of the trial court. Pursuant to the ruling of the appellate court,
the Province of Cebu executed on June 17, 1994 a deed of absolute
PUNO,
sale over Lot 1029 in favor of petitioners. Thereafter, Transfer
Certificate of Title (TCT) No. 129306 was issued in the name of
PANGANIBAN, petitioners and Crispina Lagcao.[3]
QUISUMBING,

YNARES-SANTIAGO, After acquiring title, petitioners tried to take possession of the lot only
to discover that it was already occupied by squatters. Thus, on June
- versus - SANDOVAL-GUTIERREZ, 15, 1997, petitioners instituted ejectment proceedings against the
squatters. The Municipal Trial Court in Cities (MTCC), Branch 1, Cebu
CARPIO, City, rendered a decision on April 1, 1998, ordering the squatters to
vacate the lot. On appeal, the RTC affirmed the MTCCs decision and
AUSTRIA-MARTINEZ, issued a writ of execution and order of demolition.
48
However, when the demolition order was about to be implemented,
Cebu City Mayor Alvin Garcia wrote two letters[4] to the MTCC,
requesting the deferment of the demolition on the ground that the City
was still looking for a relocation site for the squatters. Acting on the
mayors request, the MTCC issued two orders suspending the
demolition for a period of 120 days from February 22,
1999. Unfortunately for petitioners, during the suspension period,
the Sangguniang Panlungsod (SP) of Cebu City passed a resolution
which identified Lot 1029 as a socialized housing site pursuant to RA
7279.[5]Then, on June 30, 1999, the SP of Cebu City passed Ordinance
No. 1772[6] which included Lot 1029 among the identified sites for
socialized housing. On July, 19, 2000, Ordinance No. 1843[7] was
enacted by the SP of Cebu City authorizing the mayor of Cebu City to
initiate expropriation proceedings for the acquisition of Lot 1029 which
was registered in the name of petitioners. The intended acquisition was
to be used for the benefit of the homeless after its subdivision and sale
to the actual occupants thereof. For this purpose, the ordinance
appropriated the amount of P6,881,600 for the payment of the subject
lot. This ordinance was approved by Mayor Garcia on August 2, 2000.
On August 29, 2000, petitioners filed with the RTC an action for
declaration of nullity of Ordinance No. 1843 for being unconstitutional.
The trial court rendered its decision on July 1, 2002 dismissing the
complaint filed by petitioners whose subsequent motion for
reconsideration was likewise denied on August 26, 2002.
In this appeal, petitioners argue that Ordinance No. 1843 is
unconstitutional as it sanctions the expropriation of their property for
the purpose of selling it to the squatters, an endeavor contrary to the
concept of public use contemplated in the Constitution.[8] They allege
that it will benefit only a handful of people. The ordinance, according to
petitioners, was obviously passed for politicking, the squatters
undeniably being a big source of votes.
In sum, this Court is being asked to resolve whether or not the
intended expropriation by the City of Cebu of a 4,048-square-meter
parcel of land owned by petitioners contravenes the Constitution and
applicable laws.
Under Section 48 of RA 7160,[9] otherwise known as the Local
Government Code of 1991,[10] local legislative power shall
be exercised by the Sangguniang Panlungsod of the city. The
legislative acts of the Sangguniang Panlungsod in the exercise of its
lawmaking authority are denominated ordinances.
Local government units have no inherent power of eminent domain
and can exercise it only when expressly authorized by the
legislature.[11] By virtue of RA 7160, Congress conferred upon local
government units the power to expropriate. Ordinance No. 1843 was
enacted pursuant to Section 19 of RA 7160:
SEC. 19. Eminent Domain. − A local government unit may, through its
chief executive and acting pursuant to an ordinance, exercise the
power of eminent domain for public use, or purpose, or welfare for the
benefit of the poor and the landless, upon payment of just
compensation, pursuant to the provisions of the Constitution and
pertinent laws xxx. (italics supplied).
Ordinance No. 1843 which authorized the expropriation of petitioners
lot was enacted by the SP of Cebu City to provide socialized housing
for the homeless and low-income residents of the City.
However, while we recognize that housing is one of the most serious
social problems of the country, local government units do not possess
unbridled authority to exercise their power of eminent domain in
seeking solutions to this problem.
There are two legal provisions which limit the exercise of this power:
(1) no 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;[12] and (2) private property shall not be taken for public use
without just compensation.[13] Thus, the exercise by local government
units of the power of eminent domain is not absolute. In fact, Section
19 of RA 7160 itself explicitly states that such exercise must comply
with the provisions of the Constitution and pertinent laws.
The exercise of the power of eminent domain drastically affects a
landowners right to private property, which is as much a
constitutionally-protected right necessary for the preservation and
enhancement of personal dignity and intimately connected with the
rights to life and liberty.[14] Whether directly exercised by the State or
by its authorized agents, the exercise of eminent domain is necessarily
in derogation of private rights.[15] For this reason, the need for a
painstaking scrutiny cannot be overemphasized.
The due process clause cannot be trampled upon each time an
ordinance orders the expropriation of a private
individuals property. The courts cannoteven adopt a hands-off policy
simply because public use or public purpose is invoked by an
ordinance, or just compensation has been fixed and determined. In De
Knecht vs. Bautista,[16] we said:
It is obvious then that a land-owner is covered by the mantle of
protection due process affords. It is a mandate of reason. It frowns on
arbitrariness, it is the antithesis of any governmental act that smacks of
whim or caprice. It negates state power to act in an oppressive
manner. It is, as had been stressed so often, the embodiment of the
sporting idea of fair play. In that sense, it stands as a guaranty of
justice. That is the standard that must be met by any governmental
agency in the exercise of whatever competence is entrusted to it. As
was so emphatically stressed by the present Chief Justice, Acts of
Congress, as well as those of the Executive, can deny due process
only under pain of nullity. xxx.
The foundation of the right to exercise eminent domain is genuine
necessity and that necessity must be of public
character.[17] Government may not capriciously or arbitrarily choose
which private property should be expropriated. In this case, there was
no showing at all why petitioners property was singled out for
expropriation by the city ordinance or what necessity impelled the
particular choice or selection. Ordinance No. 1843 stated no reason for
the choice of petitioners property as the site of a socialized housing
project.
Condemnation of private lands in an irrational or piecemeal fashion or
the random expropriation of small lots to accommodate no more than a
few tenants or squatters is certainly not the condemnation for public
use contemplated by the Constitution. This is depriving a citizen of his
49
property for the convenience of a few without perceptible benefit to the
public.[18]
RA 7279 is the law that governs the local expropriation of property for
purposes of urban land reform and housing. Sections 9 and 10 thereof
provide:
SEC 9. Priorities in the Acquisition of Land. − Lands for socialized
housing shall be acquired in the following order:
(a) Those owned by the Government or any of its subdivisions,
instrumentalities, or agencies, including government-owned or
controlled corporations and their subsidiaries;
(b) Alienable lands of the public domain;
(c) Unregistered or abandoned and idle lands;
(d) Those within the declared Areas or Priority Development, Zonal
Improvement Program sites, and Slum Improvement and Resettlement
Program sites which have not yet been acquired;
(e) Bagong Lipunan Improvement of Sites and Services or BLISS
which have not yet been acquired; and
(f) Privately-owned lands.
Where on-site development is found more practicable and
advantageous to the beneficiaries, the priorities mentioned in this
section shall not apply. The local government units shall give
budgetary priority to on-site development of government lands.
(Emphasis supplied).
SEC. 10. Modes of Land Acquisition. − The modes of acquiring lands
for purposes of this Act shall include, among others, community
mortgage, land swapping, land assembly or consolidation, land
banking, donation to the Government, joint venture agreement,
negotiated purchase, and expropriation: Provided, however, That
expropriation shall be resorted to only when other modes of
acquisition have been exhausted: Provided further, That where
expropriation is resorted to, parcels of land owned by small property
owners shall be exempted for purposes of this Act: xxx. (Emphasis
supplied).
In the recent case of Estate or Heirs of the Late Ex-Justice Jose B.L.
Reyes et al. vs. City of Manila,[19] we ruled that the above-quoted
provisions are strict limitations on the exercise of the power of eminent
domain by local government units, especially with respect to (1) the
order of priority in acquiring land for socialized housing and (2) the
resort to expropriation proceedings as a means to acquiring it. Private
lands rank last in the order of priority for purposes of socialized
housing. In the same vein, expropriation proceedings may be resorted
to only after the other modes of acquisition are exhausted. Compliance
with these conditions is mandatory because these are the only
safeguards of oftentimes helpless owners of private property against
what may be a tyrannical violation of due process when their property
is forcibly taken from them allegedly for public use.
We have found nothing in the records indicating that the City of Cebu
complied strictly with Sections 9 and 10 of RA 7279. Ordinance No.
1843 sought to expropriate petitioners property without any attempt to
first acquire the lands listed in (a) to (e) of Section 9 of RA 7279.
Likewise, Cebu City failed to establish that the other modes of
acquisition in Section 10 of RA 7279 were first exhausted. Moreover,
prior to the passage of Ordinance No. 1843, there was no evidence of
a valid and definite offer to buy petitioners property as required by
Section 19 of RA 7160.[20] We therefore find Ordinance No. 1843 to be
constitutionally infirm for being violative of the petitioners right to due
process.
It should also be noted that, as early as 1998, petitioners had already
obtained a favorable judgment of eviction against the illegal occupants
of their property. The judgment in this ejectment case had, in fact,
already attained finality, with a writ of execution and an order of
demolition. But Mayor Garcia requested the trial court to suspend the
demolition on the pretext that the City was still searching for a
relocation site for the squatters. However, instead of looking for a
relocation site during the suspension period, the city council suddenly
enacted Ordinance No. 1843 for the expropriation of petitioners lot. It
was trickery and bad faith, pure and simple. The unconscionable
manner in which the questioned ordinance was passed clearly
indicated that respondent City transgressed the Constitution, RA 7160
and RA 7279.
For an ordinance to be valid, it must not only be within the corporate
powers of the city or municipality to enact but must also be passed
according to the procedure prescribed by law. It must be in accordance
with certain well-established basic principles of a substantive nature.
These principles require that an ordinance (1) must not contravene the
Constitution or any statute (2) must not be unfair or oppressive (3)
must not be partial or discriminatory (4) must not prohibit but may
regulate trade (5) must be general and consistent with public policy,
and (6) must not be unreasonable.[21]
Ordinance No. 1843 failed to comply with the foregoing substantive
requirements. A clear case of constitutional infirmity having been thus
established, this Court is constrained to nullify the subject
ordinance. We recapitulate:
first, as earlier discussed, the questioned ordinance is repugnant to the
pertinent provisions of the Constitution, RA 7279 and RA 7160;
second, the precipitate manner in which it was enacted was plain
oppression masquerading as a pro-poor ordinance;
third, the fact that petitioners small property was singled out for
expropriation for the purpose of awarding it to no more than a few
squatters indicated manifest partiality against petitioners, and
50
fourth, the ordinance failed to show that there was a reasonable CONGRESSMAN FRANCISCO T. MATUGAS, HON. DEL CASTILL
relation between the end sought and the means adopted. While the SOL T. MATUGAS, HON. ARTURO CARLOS A. EGAY,
objective of the City of Cebu was to provide adequate housing to slum JR., HON. SIMEON VICENTE G. CASTRENCE, HON. ABAD,
dwellers, the means it employed in pursuit of such objective fell short MAMERTO D. GALANIDA, HON. MARGARITO M.
of what was legal, sensible and called for by the circumstances. LONGOS, and HON. CESAR M. BAGUNDOL, VILLARAMA,

Intervenors. PEREZ,

Indeed, experience has shown that the disregard of basic liberties and MENDOZA, a
the use of short-sighted methods in expropriation proceedings have
not achieved the desired results. Over the years, the government has SERENO, JJ.
tried to remedy the worsening squatter problem. Far from solving it,
however, governments kid-glove approach has only resulted in the
multiplication and proliferation of squatter colonies and blighted areas.
A pro-poor program that is well-studied, adequately funded, genuinely
sincere and truly respectful of everyones basic rights is what this
problem calls for, not the improvident enactment of politics-based
ordinances targeting small private lots in no rational fashion.

WHEREFORE, the petition is hereby GRANTED. The July 1, 2002

decision of Branch 23 of the Regional Trial Court of Cebu City
is REVERSED and SET ASIDE.

SO ORDERED.

RENATO C. CORONA

Associate Justice

Republic of the Philippines

Supreme Court

Baguio City Promulgated:

EN BANC April 12, 2011

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

RODOLFO G. NAVARRO, VICTOR F. BERNAL, and G.R. No. 180050

RENE O. MEDINA,

Petitioners, Present:
RESOLUTION
CORONA, C.J.,

- versus - CARPIO,
NACHURA, J.:
CARPIO MORALES,

EXECUTIVE SECRETARY EDUARDO ERMITA, VELASCO, JR.,

representing the President of the Philippines; Senate
of the Philippines, represented by the SENATE
PRESIDENT; House of Representatives, represented
by the HOUSE SPEAKER; GOVERNOR ROBERT ACE
S. BARBERS, representing the mother province of
Surigao del Norte; GOVERNOR GERALDINE ECLEO
VILLAROMAN, representing the new Province of
Dinagat Islands,
Respondents,
NACHURA,
For consideration of the Court is the Urgent Motion to Recall Entry of
Judgment dated October 20, 2010 filed by Movant-Intervenors[1] dated
LEONARDO-DE CASTRO,
and filed on October 29, 2010, praying that the Court (a) recall the
entry of judgment, and (b) resolve their motion for reconsideration of
BRION, the July 20, 2010 Resolution.
PERALTA,
BERSAMIN, To provide a clear perspective of the instant motion, we present
hereunder a brief background of the relevant antecedents

51

On October 2, 2006, the President of the Republic approved into law
Republic Act (R.A.) No. 9355 (An Act Creating the Province of Dinagat
Islands).[2] On December 3, 2006, the Commission on Elections
(COMELEC) conducted the mandatory plebiscite for the ratification of
the creation of the province under the Local Government Code
(LGC).[3] The plebiscite yielded 69,943 affirmative votes and 63,502
negative votes.[4] With the approval of the people from both the mother
province of Surigao del
Norte and the Province of Dinagat Islands (Dinagat), the President
appointed the interim set of provincial officials who took their oath of
office on January 26, 2007. Later, during the May 14,
2007 synchronized elections, the Dinagatnons elected their new set of
provincial officials who assumed office on July 1, 2007.[5]
On November 10, 2006, petitioners Rodolfo G. Navarro, Victor F.
Bernal and Rene O. Medina, former political leaders of Surigao del
Norte, filed before this Court a petition for certiorari and prohibition
(G.R. No. 175158) challenging the constitutionality of R.A. No.
9355.[6] The Court dismissed the petition on technical grounds. Their
motion for reconsideration was also denied.[7]
Undaunted, petitioners, as taxpayers and residents of
the Province of Surigao del Norte, filed another petition
for certiorari[8] seeking to nullify R.A. No. 9355 for being
unconstitutional. They alleged that the creation of Dinagat as a new
province, if uncorrected, would perpetuate an illegal act of Congress,
and would unjustly deprive the people of Surigao del Norte of a large
chunk of the provincial territory, Internal Revenue Allocation (IRA), and
rich resources from the area. They pointed out that when the law was
passed, Dinagat had
aland area of 802.12 square kilometers only and a population of only
106,951, failing to comply with Section 10, Article X of the Constitution
and of Section 461 of the LGC, on both counts, viz.
Constitution, Article X Local Government
Section 10. No province, city, municipality, or barangay may be
created, divided, merged, abolished, or its boundary substantially
altered, except in accordance with the criteria established in the
local government code and subject to the approval by a majority of
the votes cast in a plebiscite in the political units directly affected.
LGC, Title IV, Chapter I
Section 461. Requisites for Creation. (a) A province may be created
if it has an average annual income, as certified by the Department of
Finance, of not less than Twenty million pesos (P20,000,000.00) based
on 1991 constant prices and either of the following requisites:
(i) a continuous territory of at least two thousand (2,000)
square kilometers, as certified by the Lands Management
Bureau; or
(ii) a population of not less than two hundred fifty thousand
(250,000) inhabitants as certified by the National Statistics Office:
Provided, That, the creation thereof shall not reduce the land area,
population, and income of the original unit or units at the time of said
creation to less than the minimum requirements prescribed herein.
(b) The territory need not be contiguous if it comprises two (2) or
more islands or is separated by a chartered city or cities which do
not contribute to the income of the province.
(c) The average annual income shall include the income accruing to
the general fund, exclusive of special funds, trust funds, transfers, and
non-recurring income. (Emphasis supplied.)
On February 10, 2010, the Court rendered its Decision[9] granting the
petition.[10] The Decision declared R.A. No. 9355 unconstitutional for
failure to comply with the requirements on population and land area in
the creation of a province under the LGC. Consequently, it declared
the proclamation of Dinagat and the election of its officials as null and
void. The Decision likewise declared as null and void the provision on
Article 9(2) of the Rules and Regulations Implementing the LGC (LGC-
IRR), stating that, [t]he land
area requirement shall not apply where the proposed province is
composed of one (1) or more islands for being beyond the ambit of
Article 461 of the LGC, inasmuch as such exemption is not expressly
provided in the law.[11]
The Republic, represented by the Office of the Solicitor General, and
Dinagat filed their respective motions for reconsideration of the
Decision. In its Resolution[12] dated May 12, 2010,[13] the Court denied
the said motions.[14]
Unperturbed, the Republic and Dinagat both filed their respective
motions for leave of court to admit their second motions for
reconsideration, accompanied by their second motions for
reconsideration. These motions were eventually noted without action
by this Court in its June 29, 2010 Resolution.[15]
Meanwhile, the movants-intervenors filed on June 18, 2010 a Motion
for Leave to Intervene and to File and to Admit Intervenors Motion for
Reconsideration of the Resolution dated May 12, 2010. They alleged
that the COMELEC issued Resolution No. 8790, relevant to this case,
which provides
RESOLUTION NO. 8790
WHEREAS, Dinagat Islands, consisting of seven (7) municipalities,
were previously components of the First Legislative District of
the Province of Surigao del Norte. In December 2006 pursuant to
Republic Act No. 9355, the Province of Dinagat Island[s] was created
and its creation was ratified on 02 December 2006 in the Plebiscite for
this purpose;
52

WHEREAS, as a province, Dinagat Islands was, for purposes of the
May 10, 2010 National and Local Elections, allocated one (1) seat for
Governor, one (1) seat for Vice Governor, one (1) for congressional
seat, and ten (10) Sangguniang Panlalawigan seats pursuant to
Resolution No. 8670 dated 16 September 2009;
WHEREAS, the Supreme Court in G.R. No. 180050 entitled Rodolfo
Navarro, et al., vs. Executive Secretary Eduardo Ermita, as
representative of the President of the Philippines, et al. rendered a
Decision, dated 10 February 2010, declaring Republic Act No. 9355
unconstitutional for failure to comply with the criteria for the creation of
a province prescribed in Sec. 461 of the Local Government Code in
relation to Sec. 10, Art. X, of the 1987 Constitution;
WHEREAS, respondents intend to file Motion[s] for Reconsideration on
the above decision of the Supreme Court;
WHEREAS, the electoral data relative to the: (1) position for Member,
House of Representatives representing the lone congressional district
of Dinagat Islands, (2) names of the candidates for the aforementioned
position, (3) position for Governor, Dinagat Islands, (4) names of the
candidates for the said position, (5) position of the Vice Governor, (6)
the names of the candidates for the said position, (7) positions for the
ten (10) Sangguniang Panlalawigan Members and, [8] all the names of
the candidates for Sangguniang Panlalawigan Members, have already
been configured into the system and can no longer be revised within
the remaining period before the elections on May 10, 2010.
NOW, THEREFORE, with the current system configuration, and
depending on whether the Decision of the Supreme Court in Navarro
vs. Ermita is reconsidered or not, the Commission RESOLVED, as it
hereby RESOLVES, to declare that:
a. If the Decision is reversed, there will be no problem since the
current system configuration is in line with the reconsidered Decision,
meaning that the Province of Dinagat Islands and
the Province of Surigao del Norte remain as two (2) separate
provinces;
b. If the Decision becomes final and executory before the
election, the Province of Dinagat Islands will revert to its previous
status as part of the First Legislative District, Surigao del Norte.
But because of the current system configuration, the ballots for the
Province of Dinagat Islands will, for the positions of Member, House of
Representatives, Governor, Vice Governor and Members,
Sangguniang Panlalawigan, bear only the names of the candidates for
the said positions.
Conversely, the ballots for the First Legislative District of Surigao del
Norte, will, for the position of Governor, Vice Governor, Member,
House of Representatives, First District of Surigao del Norte and
Members, Sangguniang Panlalawigan, show only candidates for the
said position. Likewise, the whole Province of Surigao del Norte, will,
for the position of Governor and Vice Governor, bear only the names of
the candidates for the said position[s].
Consequently, the voters of the Province of Dinagat Islands will not be
able to vote for the candidates of Members, Sangguniang
Panlalawigan, and Member, House [of] Representatives, First
Legislative District, Surigao del Norte, and candidates for Governor
and Vice Governor for Surigao del Norte. Meanwhile, voters of the First
Legislative District of Surigao del Norte, will not be able to vote for
Members, Sangguniang Panlalawigan and Member, House of
Representatives, Dinagat Islands. Also, the voters of the
whole Province of Surigao del Norte, will not be able to vote for the
Governor and Vice Governor, Dinagat Islands. Given this situation, the
Commission will postpone the elections for Governor, Vice Governor,
Member, House of Representatives, First Legislative District, Surigao
del Norte, and Members, Sangguniang Panlalawigan, First Legislative
District, Surigao del Norte, because the election will result in [a] failure
to elect, since, in actuality, there are no candidates for Governor, Vice
Governor, Members, Sangguniang Panlalawigan, First Legislative
District, and Member, House of Representatives, First Legislative
District (with Dinagat Islands) of Surigao del Norte.
c. If the Decision becomes final and executory after the
election, the Province of Dinagat Islands will revert to its previous
status as part of the First Legislative District of Surigao del Norte. The
result of the election will have to be nullified for the same reasons
given in Item b above. A special election for Governor, Vice Governor,
Member, House of Representatives, First Legislative District of Surigao
del Norte, and Members, Sangguniang Panlalawigan, First District,
Surigao del Norte (with Dinagat Islands) will have to be conducted.
xxxx
SO ORDERED.
They further alleged that, because they are the duly elected officials of
Surigao del Norte whose positions will be affected by the nullification of
the election results in the event that the May 12, 2010 Resolution is not
reversed, they have a legal interest in the instant case and would be
directly affected by the declaration of nullity of R.A. No. 9355. Simply
put, movants-intervenors election to their respective offices would
necessarily be annulled since Dinagat Islands will revert to its previous
status as part of the First Legislative District of Surigao del Norte and a
special election will have to be conducted for governor, vice governor,
and House of Representatives member and Sangguniang
Panlalawigan member for the First Legislative District of Surigao del
Norte. Moreover, as residents of Surigao del Norte and as public
servants representing the interests of their constituents, they have a
clear and strong interest in the outcome of this case inasmuch as the
reversion of Dinagat as part of the First Legislative District of Surigao
del Norte will affect the latter province such that: (1) the whole
administrative set-up of the province will have to be restructured; (2)
the services of many employees will have to be terminated; (3)
contracts will have to be invalidated; and (4) projects and other
developments will have to be discontinued. In addition, they claim that
their rights cannot be adequately pursued and protected in any other
proceeding since their rights would be foreclosed if the May 12, 2010
Resolution would attain finality.
53
In their motion for reconsideration of the May 12, 2010 Resolution,
movants-intervenors raised three (3) main arguments to challenge the
above Resolution, namely: (1) that the passage of R.A. No. 9355
operates as an act of Congress amending Section 461 of the LGC; (2)
that the exemption from territorial contiguity, when the intended
province consists of two or more islands, includes the exemption from
the application of the minimum land area requirement; and (3) that the
Operative Fact Doctrine is applicable in the instant case.
In the Resolution dated July 20, 2010,[16] the Court denied the Motion
for Leave to Intervene and to File and to Admit Intervenors Motion for
Reconsideration of the Resolution dated May 12, 2010 on the ground
that the allowance or disallowance of a motion to intervene is
addressed to the sound discretion of the Court, and that the
appropriate time to file the said motion was before and not after the
resolution of this case.
On September 7, 2010, movants-intervenors filed a Motion for
Reconsideration of the July 20, 2010 Resolution, citing several
rulings[17] of the Court, allowing intervention as an exception to Section
2, Rule 19 of the Rules of Court that it should be filed at any time
before the rendition of judgment. They alleged that, prior to the May
10, 2010 elections, their legal interest in this case was not yet
existent. They averred that prior to the May 10, 2010 elections, they
were unaware of the proceedings in this case. Even for the sake of
argument that they had notice of the pendency of the case, they
pointed out that prior to the said elections, Sol T. Matugas was a
simple resident of Surigao del Norte, Arturo Carlos A. Egay, Jr. was a
member of the Sangguniang Panlalawigan of the Second District of
Surigao del Norte, and Mamerto D. Galanida was the Municipal Mayor
of Socorro, Surigao del Norte, and that, pursuant to COMELEC
Resolution No. 8790, it was only after they were elected as Governor
of Surigao del Norte, Vice Governor of Surigao del Norte and
Sangguniang Panlalawigan Member of the First District of Surigao del
Norte, respectively, that they became possessed with legal interest in
this controversy.
On October 5, 2010, the Court issued an order for Entry of Judgment,
stating that the decision in this case had become final and executory
on May 18, 2010. Hence, the above motion.
At the outset, it must be clarified that this Resolution delves solely on
the instant Urgent Motion to Recall Entry of Judgment of movants-
intervenors, not on the second motions for reconsideration of the
original
parties, and neither on Dinagats Urgent Omnibus Motion, which our
esteemed colleague, Mr. Justice Arturo D. Brion considers as Dinagats
third motion for reconsideration. Inasmuch as the motions for leave to
admit their respective motions for reconsideration of the May 12, 2010
Resolution and the aforesaid motions for reconsideration were already
noted without action by the Court, there is no reason to treat Dinagats
Urgent Omnibus Motion differently. In relation to this, the Urgent
Motion to Recall Entry of Judgment of movants-intervenors could not
be considered as a second motion for reconsideration to warrant the
application of Section 3, Rule 15 of the Internal Rules of the Supreme
Court.[18] It should be noted that this motion prays for the recall of the
entry of judgment and for the resolution of their motion for
reconsideration of the July 20, 2010 Resolution which remained
unresolved. The denial of their motion for leave to intervene and to
admit motion for reconsideration of the May 12, 2010 Resolution did
not rule on the merits of the motion for reconsideration of the May 12,
2010 Resolution, but only on the timeliness of the intended
intervention. Their motion for reconsideration of this denial elaborated
on movants-intervenors interest in this case which existed only after
judgment had been rendered. As such, their motion for intervention
and their motion for reconsideration of the May 12, 2010 Resolution
merely stand as an initial reconsideration of the said resolution.
With due deference to Mr. Justice Brion, there appears nothing in the
records to support the claim that this was a ploy of respondents legal
tactician to reopen the case despite an entry of judgment. To be sure,
it is actually COMELEC Resolution No. 8790 that set this controversy
into motion anew. To reiterate, the pertinent portion of the Resolution
reads:
c. If the Decision becomes final and executory after the
election, the Province of Dinagat Islands will revert to its previous
status as part of the First Legislative District of Surigao del Norte. The
result of the election will have to be nullified for the same reasons
given in Item b above. A special election for Governor, Vice Governor,
Member, House of Representatives, First Legislative District of Surigao
del Norte, and Members, Sangguniang Panlalawigan, First District,
Surigao del Norte (with Dinagat Islands) will have to be conducted.
(Emphasis supplied.)
Indeed, COMELEC Resolution No. 8790 spawned the peculiar
circumstance of proper party interest for movants-intervenors only with
the specter of the decision in the main case becoming final and
executory. More importantly, if the intervention be not entertained, the
movants-intervenors would be left with no other remedy as regards to
the impending nullification of their election to their respective
positions. Thus, to the Courts mind, there is an imperative to grant the
Urgent Motion to Recall Entry of Judgment by movants-intervenors.
It should be remembered that this case was initiated upon the filing of
the petition for certiorari way back on October 30, 2007. At that time,
movants-intervenors had nothing at stake in the outcome of this
case. While it may be argued that their interest in this case should
have commenced upon the issuance of COMELEC Resolution No.
8790, it is obvious that their interest in this case then was more
imaginary than real. This is because COMELEC Resolution No. 8790
provides that should the decision in this case attain finality prior to the
May 10, 2010 elections, the election of the local government officials
stated therein would only have to be postponed. Given such a
scenario, movants-intervenors would not have suffered any injury or
adverse effect with respect to the reversion of Dinagat as part of
Surigao del Norte since they would simply have remained candidates
for the respective positions they have vied for and to which they have
been elected.
For a party to have locus standi, one must allege 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. Because constitutional cases are often public actions in
which the relief sought is likely to affect other persons, a preliminary
question frequently arises as to this interest in the constitutional
question raised.[19]
It cannot be denied that movants-intervenors will suffer direct injury in
the event their Urgent Motion to Recall Entry of Judgment dated
54
October 29, 2010 is denied and their Motion for Leave to Intervene and
to File and to Admit Intervenors Motion for Reconsideration of the
Resolution dated May 12, 2010 is denied with finality. Indeed, they
have sufficiently shown that they have a personal and substantial
interest in the case, such that if the May 12, 2010 Resolution be not
reconsidered, their election to their respective positions during the May
10, 2010 polls and its concomitant effects would all be nullified and be
put to naught. Given their unique circumstances, movants-intervenors
should not be left without any remedy before this Court simply because
their interest in this case became manifest only after the case had
already been decided. The consequences of such a decision would
definitely work to their disadvantage, nay, to their utmost prejudice,
without even them being parties to the dispute. Such decision would
also violate their right to due process, a right that cries out for
protection. Thus, it is imperative that the movants-intervenors be heard
on the merits of their cause. We are not only a court of law, but also of
justice and equity, such that our position and the dire repercussions of
this controversy should be weighed on the scales of justice, rather than
dismissed on account of mootness.
The moot and academic principle is not a magical formula that can
automatically dissuade the courts from resolving a case. Courts will
decide cases, otherwise moot and academic, if: (1) there is a grave
violation of the Constitution; (2) there is an exceptional character of the
situation and the paramount public interest is involved; (3) the
constitutional issue raised requires formation of controlling principles to
guide the bench, the bar, and the public; and (4) the case is capable of
repetition yet evading review.[20] The second exception attends this
case.
This Court had taken a liberal attitude in the case of David v.
Macapagal-Arroyo,[21] where technicalities of procedure on locus
standi were brushed aside, because the constitutional issues raised
were of paramount public interest or of transcendental importance
deserving the attention of the Court. Along parallel lines, the motion for
intervention should be given due course since movants-intervenors
have shown their substantial legal interest in the outcome of this case,
even much more than petitioners themselves, and because of the
novelty, gravity, and weight of the issues involved.
Undeniably, the motion for intervention and the motion for
reconsideration of the May 12, 2010 Resolution of movants-intervenors
is akin to the right to appeal the judgment of a case, which, though
merely a statutory right that must comply with the requirements of the
rules, is an essential part of our judicial system, such that courts
should proceed with caution not to deprive a party of the right to
question the judgment and its effects, and ensure that every party-
litigant, including those who would be directly affected, would have the
amplest opportunity for the proper and just disposition of their cause,
freed from the constraints of technicalities.[22]
Verily, the Court had, on several occasions, sanctioned the recall
entries of judgment in light of attendant extraordinary
circumstances.[23] The power to suspend or even disregard rules of
procedure can be so pervasive and compelling as to alter even that
which this Court itself had already declared final.[24] In this case, the
compelling concern is not only to afford the movants-intervenors the
right to be heard since they would be adversely affected by the
judgment in this case despite not being original parties thereto, but
also to arrive at the correct interpretation of the provisions of the LGC
with respect to the creation of local government units. In this manner,
the thrust of the Constitution with respect to local autonomy and of the
LGC with respect to decentralization and the attainment of national
goals, as hereafter elucidated, will effectively be realized.
On the merits of the motion for intervention, after taking a long and
intent look, the Court finds that the first and second arguments raised
by movants-intervenors deserve affirmative consideration.
It must be borne in mind that the central policy considerations in the
creation of local government units are economic viability, efficient
administration, and capability to deliver basic services to their
constituents. The criteria prescribed by the LGC, i.e., income,
population and land area, are all designed to accomplish these
results. In this light, Congress, in its collective wisdom, has debated on
the relative weight of each of these three criteria, placing emphasis on
which of them should enjoy preferential consideration.
Without doubt, the primordial criterion in the creation of local
government units, particularly of a province, is economic viability. This
is the clear intent of the framers of the LGC. In this connection, the
following excerpts from congressional debates are quoted hereunder
HON. ALFELOR. Income is mandatory. We can even have this
doubled because we thought
CHAIRMAN CUENCO. In other words, the primordial consideration
here is the economic viability of the new local government unit, the
new province?
xxxx
HON. LAGUDA. The reason why we are willing to increase the income,
double than the House version, because we also believe that
economic viability is really a minimum. Land area and population are
functions really of the viability of the area, because you have an
income level which would be the trigger point for economic
development, population will naturally increase because there will be
an immigration. However, if you disallow the particular area from being
converted into a province because of the population problems in the
beginning, it will never be able to reach the point where it could
become a province simply because it will never have the economic
take off for it to trigger off that economic development.
Now, were saying that maybe Fourteen Million Pesos is a floor area
where it could pay for overhead and provide a minimum of basic
services to the population. Over and above that, the provincial officials
should be able to trigger off economic development which will attract
immigration, which will attract new investments from the private
sector. This is now the concern of the local officials. But if we are going
to tie the hands of the proponents, simply by telling them, Sorry, you
are now at 150 thousand or 200 thousand, you will never be able to
become a province because nobody wants to go to your
place. Why? Because you never have any reason for economic
viability.
xxxx
55
CHAIRMAN PIMENTEL. Okay, what about land area?
HON. LUMAUIG. 1,500 square kilometers
HON. ANGARA. Walang problema yon, in fact thats not very critical,
yong land area because
CHAIRMAN PIMENTEL. Okay, ya, our, the Senate version is 3.5,
3,500 square meters, ah, square kilometers.
HON. LAGUDA. Ne, Ne. A province is constituted for the purpose of
administrative efficiency and delivery of basic services.
CHAIRMAN PIMENTEL. Right.
HON. LAGUDA. Actually, when you come down to it, when
government was instituted, there is only one central government and
then everybody falls under that. But it was later on subdivided into
provinces for purposes of administrative efficiency.
CHAIRMAN PIMENTEL. Okay.
HON. LAGUDA. Now, what were seeing now is that the administrative
efficiency is no longer there precisely because the land areas that we
are giving to our governors is so wide that no one man can possibly
administer all of the complex machineries that are needed.
Secondly, when you say delivery of basic services, as pointed out by
Cong. Alfelor, there are sections of the province which have never
been visited by public officials, precisely because they dont have the
time nor the energy anymore to do that because its so wide. Now, by
compressing the land area and by reducing the population
requirement, we are, in effect, trying to follow the basic policy of why
we are creating provinces, which is to deliver basic services and to
make it more efficient in administration.
CHAIRMAN PIMENTEL. Yeah, thats correct, but on the assumption
that the province is able to do it without being a burden to the national
government. Thats the assumption.
HON. LAGUDA. Thats why were going into the minimum income
level. As we said, if we go on a minimum income level, then we say,
this is the trigger point at which this administration can take place.[25]
Also worthy of note are the requisites in the creation of a barangay, a
municipality, a city, and a province as provided both in the LGC and
the LGC-IRR, viz.
For a Barangay:
LGC: SEC. 386. Requisites for Creation. (a) A barangay may be
created out of a contiguous territory which has a population of at least
two thousand (2,000) inhabitants as certified by the National Statistics
Office except in cities and municipalities within Metro Manila and other
metropolitan political subdivisions or in highly urbanized cities where
such territory shall have a certified population of at least five thousand
(5,000) inhabitants: Provided, That the creation thereof shall not
reduce the population of the original barangay or barangays to less
than the minimum requirement prescribed herein.
To enhance the delivery of basic services in the indigenous cultural
communities, barangays may be created in such communities by an
Act of Congress, notwithstanding the above requirement.
(b) The territorial jurisdiction of the new barangay shall be properly
identified by metes and bounds or by more or less permanent natural
boundaries. The territory need not be contiguous if it comprises two (2)
or more islands.
(c) The governor or city mayor may prepare a consolidation plan for
barangays, based on the criteria prescribed in this Section, within his
territorial jurisdiction. The plan shall be submitted to the sangguniang
panlalawigan or sangguniang panlungsod concerned for appropriate
action. In the case of municipalities within the Metropolitan Manila area
and other metropolitan political subdivisions, the barangay
consolidation plan can be prepared and approved by the sangguniang
bayan concerned.
LGC-IRR: ARTICLE 14. Barangays. (a) Creation of barangays by the
sangguniang panlalawigan shall require prior recommendation of the
sangguniang bayan.
(b) New barangays in the municipalities within MMA shall be created
only by Act of Congress, subject to the limitations and requirements
prescribed in this Article.
(c) Notwithstanding the population requirement, a barangay may be
created in the indigenous cultural communities by Act of Congress
upon recommendation of the LGU or LGUs where the cultural
community is located.
(d) A barangay shall not be created unless the following requisites are
present:
(1) Population which shall not be less than two thousand (2,000)
inhabitants, except in municipalities and cities within MMA and other
metropolitan political subdivisions as may be created by law, or in
highly-urbanized cities where such territory shall have a population of
at least five thousand (5,000) inhabitants, as certified by the NSO. The
creation of a barangay shall not reduce the population of the original
barangay or barangays to less than the prescribed minimum/
(2) Land Area which must be contiguous, unless comprised by two (2)
or more islands. The territorial jurisdiction of a barangay sought to be
created shall be properly identified by metes and bounds or by more or
less permanent natural boundaries.
56

Municipality:
LGC: SEC. 442. Requisites for Creation. (a) A municipality may be
created if it has an average annual income, as certified by the
provincial treasurer, or at least Two million five hundred thousand
pesos (P2,500,000.00) for the last two (2) consecutive years based on
the 1991 constant prices; a population of at least twenty-five thousand
(25,000) inhabitants as certified by the National Statistics Office; and a
contiguous territory of at least fifty (50) square kilometers as certified
by the Lands
Management Bureau: Provided, That the creation thereof shall not
reduce the land area, population or income of the original municipality
or municipalities at the time of said creation to less than the minimum
requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created municipality shall be
properly identified by metes and bounds. The requirement on land
area shall not apply where the municipality proposed to be
created is composed of one (1) or more islands. The territory need
not be contiguous if it comprises two (2) or more islands.
(c) The average annual income shall include the income accruing to
the general fund of the municipality concerned, exclusive of special
funds, transfers and non-recurring income.
(d) Municipalities existing as of the date of effectivity of this Code shall
continue to exist and operate as such. Existing municipal districts
organized pursuant to presidential issuances or executive orders and
which have their respective set of elective municipal officials holding
office at the time of the effectivity of this Code shall henceforth be
considered regular municipalities.
LGC-IRR: ARTICLE 13. Municipalities. (a) Requisites for Creation A
municipality shall not be created unless the following requisites are
present:
(i) Income An average annual income of not less than Two
Million Five Hundred Thousand Pesos (P2,500,000.00), for the
immediately preceding two (2) consecutive years based on 1991
constant prices, as certified by the provincial treasurer. The average
annual income shall include the income accruing to the general fund,
exclusive of special funds, special accounts, transfers, and
nonrecurring income;
(ii) Population which shall not be less than twenty five
thousand (25,000) inhabitants, as certified by NSO; and
(iii) Land area which must be contiguous with an area of at
least fifty (50) square kilometers, as certified by LMB. The territory
need not be contiguous if it comprises two (2) or more islands. The
requirement on land area shall not apply where the proposed
municipality is composed of one (1) or more islands. The territorial
jurisdiction of a municipality sought to be created shall be properly
identified by metes and bounds.
The creation of a new municipality shall not reduce the land area,
population, and income of the original LGU or LGUs at the time of said
creation to less than the prescribed minimum requirements. All
expenses incidental to the creation shall be borne by the petitioners.
City:
LGC: SEC. 450. Requisites for Creation. (a) A municipality or a cluster
of barangays may be converted into a component city if it has an
average annual income, as certified by the Department of Finance, of
at least Twenty million pesos (P20,000,000.00) for the last two (2)
consecutive years based on 1991 constant prices, and if it has either of
the following requisities:
(i) a contiguous territory of at least one hundred (100) square
kilometers, as certified by the Lands Management Bureau; or,
(ii) a population of not less than one hundred fifty thousand
(150,000) inhabitants, as certified by the National Statistics Office:
Provided, That, the creation thereof shall not reduce the land area,
population, and income of the original unit or units at the time of said
creation to less than the minimum requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created city shall be properly
identified by metes and bounds. The requirement on land area shall
not apply where the city proposed to be created is composed of
one (1) or more islands. The territory need not be contiguous if it
comprises two (2) or more islands.
(c) The average annual income shall include the income accruing to
the general fund, exclusive of special funds, transfers, and non-
recurring income.
LGC-IRR: ARTICLE 11. Cities. (a) Requisites for creation A city shall
not be created unless the following requisites on income and either
population or land area are present:
(1) Income An average annual income of not less than Twenty Million
Pesos (P20,000,000.00), for the immediately preceding two (2)
consecutive years based on 1991 constant prices, as certified by
DOF. The average annual income shall include the income accruing to
the general fund, exclusive of special funds, special accounts,
transfers, and nonrecurring income; and
(2) Population or land area Population which shall not be less than
one hundred fifty thousand (150,000) inhabitants, as certified by the
NSO; or land area which must be contiguous with an area of at least
one hundred (100) square kilometers, as certified by LMB. The territory
need not be contiguous if it comprises two (2) or more islands or is
separated by a chartered city or cities which do not contribute to the
income of the province. The land area requirement shall not apply
57
where the proposed city is composed of one (1) or more
islands. The territorial jurisdiction of a city sought to be created shall
be properly identified by metes and bounds.
The creation of a new city shall not reduce the land area, population,
and income of the original LGU or LGUs at the time of said creation to
less than the prescribed minimum requirements. All expenses
incidental to the creation shall be borne by the petitioners.
Provinces:
LGC: SEC. 461. Requisites for Creation. (a) A province may be
created if it has an average annual income, as certified by the
Department of Finance, of not less than Twenty million pesos
(P20,000,000.00) based on 1991 prices and either of the following
requisites:
(i) a contiguous territory of at least two thousand (2,000)
square kilometers, as certified by the Lands Management Bureau; or,
(ii) a population of not less than two hundred fifty thousand
(250,000) inhabitants as certified by the National Statistics Office:
Provided, That the creation thereof shall not reduce the land area,
population, and income of the original unit or units at the time of said
creation to less than the minimum requirements prescribed herein.
(b) The territory need not be contiguous if it comprises two (2) or more
islands or is separated by a chartered city or cities which do not
contribute to the income of the province.
(c) The average annual income shall include the income accruing to
the general fund, exclusive of special funds, trust funds, transfers, and
non-recurring income.
LGC-IRR: ARTICLE 9. Provinces. (a) Requisites for creation A
province shall not be created unless the following requisites on income
and either population or land area are present:
(1) Income An average annual income of not less than Twenty Million
pesos (P20,000,000.00) for the immediately preceding two (2)
consecutive years based on 1991 constant prices, as certified by
DOF.The average annual income shall include the income accruing to
the general fund, exclusive of special funds, special accounts,
transfers, and non-recurring income; and
(2) Population or land area Population which shall not be less than
two hundred fifty thousand (250,000) inhabitants, as certified by NSO;
or land area which must be contiguous with an area of at least two
thousand (2,000) square kilometers, as certified by LMB. The territory
need not be contiguous if it comprises two (2) or more islands or is
separated by a chartered city or cities which do not contribute to the
income of the province. The land area requirement shall not apply
where the proposed province is composed of one (1) or more
islands. The territorial jurisdiction of a province sought to be created
shall be properly identified by metes and bounds.
The creation of a new province shall not reduce the land area,
population, and income of the original LGU or LGUs at the time of said
creation to less than the prescribed minimum requirements. All
expenses incidental to the creation shall be borne by the petitioners.
(Emphasis supplied.)
It bears scrupulous notice that from the above cited provisions, with
respect to the creation of barangays, land area is not a requisite
indicator of viability. However, with respect to the creation of
municipalities, component cities, and provinces, the three (3) indicators
of viability and projected capacity to provide services, i.e., income,
population, and land area, are provided for.
But it must be pointed out that when the local government unit to be
created consists of one (1) or more islands, it is exempt from the land
area requirement as expressly provided in Section 442 and Section
450 of the LGC if the local government unit to be created is a
municipality or a component city, respectively. This exemption is
absent in the enumeration of the requisites for the creation of a
province under Section 461 of the LGC, although it is expressly stated
under Article 9(2) of the LGC-IRR.
There appears neither rhyme nor reason why this exemption should
apply to cities and municipalities, but not to provinces. In fact,
considering the physical configuration of the Philippine archipelago,
there is a greater likelihood that islands or group of islands would form
part of the land area of a newly-created province than in most cities or
municipalities. It is, therefore, logical to infer that the genuine
legislative policy decision was expressed in Section 442 (for
municipalities) and Section 450 (for component cities) of the LGC, but
was inadvertently omitted in Section 461 (for provinces). Thus, when
the exemption was expressly provided in Article 9(2) of the LGC-IRR,
the inclusion was intended to correct the congressional oversight in
Section 461 of the LGC and to reflect the true legislative intent. It
would, then, be in order for the Court to uphold the validity of Article
9(2) of the LGC-IRR.
This interpretation finds merit when we consider the basic policy
considerations underpinning the principle of local autonomy.
Section 2 of the LGC, of which paragraph (a) is pertinent to this case,
provides
Sec. 2. Declaration of Policy. (a) It is hereby declared the policy of the
State that the territorial and political subdivisions of the State shall
enjoy genuine and meaningful local autonomy to enable them to attain
their fullest development as self-reliant communities and make them
more effective partners in the attainment of national goals. Toward this
end, the State shall provide for a more responsive and accountable
local government structure instituted through a system of
decentralization whereby local government units shall be given more
powers, authority, responsibilities, and resources. The process of
decentralization shall proceed from the national government to the
local government units.
58
 CHAIRMAN ALFELOR. Can we give time to Congressman
Chiongbian,[28] with respect to his
This declaration of policy is echoed in Article 3(a) of the LGC-
IRR[26] and in the Whereas clauses of Administrative Order No.
270,[27] which read
CHAIRMAN LINA. Okay.

WHEREAS, Section 25, Article II of the Constitution mandates that the

State shall ensure the autonomy of local governments;
WHEREAS, pursuant to this declared policy, Republic Act No. 7160,
otherwise known as the Local Government Code of 1991, affirms,
among others, that the territorial and political subdivisions of the State
shall enjoy genuine and meaningful local autonomy to enable them to
attain their fullest development as self-reliant communities and make
them more effective partners in the attainment of national goals;
WHEREAS, Section 533 of the Local Government Code of 1991
requires the President to convene an Oversight Committee for the
purpose of formulating and issuing the appropriate rules and
regulations necessary for the efficient and effective implementation of
all the provisions of the said Code; and
WHEREAS, the Oversight Committee, after due deliberations and
consultations with all the concerned sectors of society and
consideration of the operative principles of local autonomy as provided
in the Local Government Code of 1991, has completed the formulation
of the implementing rules and regulations; x x x
HON. CHIONGBIAN. At the outset, Chairman Lina, we would like to
apprise the distinguished Senator about the action taken by the House,
on House Bill No. 7166. This was passed about two years ago and has
been pending in the Senate for consideration. This is a bill that I am
not the only one involved, including our distinguished Chairman
here. But then we did want to sponsor the bill, being the Chairman then
of the Local Government.
So, I took the cudgels for the rest of the Congressmen, who were more
or less interested in the creation of the new provinces, because of the
vastness of the areas that were involved.
At any rate, this bill was passed by the House unanimously without any
objection. And as I have said a while ago, that this has been pending in
the Senate for the last two years. And Sen. Pimentel himself was just
in South Cotabato and he delivered a speech that he will support this
bill, and he says, that he will incorporate this in the Local Government
Code, which I have in writing from him. I showed you the letter that he
wrote, and naturally, we in the House got hold of the Senate version. It
becomes an impossibility for the whole Philippines to create a new
province, and that is quite the concern of the respective Congressmen.

Consistent with the declared policy to provide local government units

genuine and meaningful local autonomy, contiguity and minimum land
area requirements for prospective local government units should be Now, insofar as the constitutional provision is concerned, there is
liberally construed in order to achieve the desired results. The strict nothing to stop the mother province from voting against the bill, if a
interpretation adopted by the February 10, 2010 Decision could prove province is going to be created.
to be counter-productive, if not outright absurd, awkward, and
impractical. Picture an intended province that consists of several
municipalities and component cities which, in themselves, also consist
of islands. The component cities and municipalities which consist of So, we are talking about devolution of powers here. Why is the
islands are exempt from the minimum land area requirement, pursuant province not willing to create another province, when it can be
to Sections 450 and 442, respectively, of the LGC.Yet, the province justified. Even Speaker Mitra says, what will happen to Palawan? We
would be made to comply with the minimum land area criterion of wont have one million people there, and if you look at Palawan, there
2,000 square kilometers, even if it consists of several islands. This will be about three or four provinces that will comprise that island. So,
would mean that Congress has opted to assign a distinctive preference the development will be hampered.
to create a province with contiguous land area over one composed of
islands and negate the greater imperative of development of self-
reliant communities, rural progress, and the delivery of basic services
to the constituency. This preferential option would prove more difficult
Now, I would like to read into the record the letter of Sen. Pimentel,
and burdensome if the 2,000-square-kilometer territory of a province is dated November 2, 1989. This was practically about a year after 7166
scattered because the islands are separated by bodies of water, as was approved by the House, House Bill 7166.
compared to one with a contiguous land mass.

Moreover, such a very restrictive construction could trench on the

equal protection clause, as it actually defeats the purpose of local
autonomy and decentralization as enshrined in the
Constitution. Hence, the land area requirement should be read
together with territorial contiguity.

Another look at the transcript of the deliberations of Congress should

prove enlightening: On November 2, 1989, the Senator wrote me:

Dear Congressman Chiongbian:

59

We are in receipt of your letter of 17 October. Please be informed that
your House No. 7166 was incorporated in the proposed Local
Government Code, Senate Bill No. 155, which is pending for second
reading.
Thank you and warm regards.
Very truly yours,
That is the very context of the letter of the Senator, and we are quite
surprised that the Senate has adopted another position.
So, we would like because this is a unanimously approved bill in the
House, thats the only bill that is involving the present Local
Government Code that we are practically considering; and this will be a
slap on the House, if we do not approve it, as approved by the lower
House. This can be [an] irritant in the approval of the Conference
Committee Report. And I just want to manifest that insofar as the
creation of the province, not only in my province, but the other
provinces. That the mother province will participate in the plebiscite,
they can defeat the province, lets say, on the basis of the result, the
province cannot be created if they lose in the plebiscite, and I dont see
why, we should put this stringent conditions to the private people of the
devolution that they are seeking.
So, Mr. Senator, I think we should consider the situation seriously,
because, this is an approved version of the House, and I will not be the
one to raise up and question the Conference Committee Report, but
the rest of the House that are interested in this bill. And they have been
approaching the Speaker about this. So, the Speaker reminded me to
make sure that it takes the cudgel of the House approved version.
So, thats all what I can say, Mr. Senator, and I dont believe that it is
not, because its the wish of the House, but because the mother
province will participate anyhow, you vote them down; and that is
provided for in the Constitution. As a matter of fact, I have seen the
amendment with regards to the creation of the city to be urbanized,
subject to the plebiscite. And why should we not allow that to happen
in the provinces! In other words, we dont want the people who wants to
create a new province, as if they are left in the devolution of powers,
when they feel that they are far away from civilization.
Now, I am not talking about other provinces, because I am unaware,
not aware of their situation. But the province of South Cotabato has a
very unique geographical territorial conglomerations. One side is in the
other side of the Bay, of Sarangani Bay. The capital town is in the
North; while these other municipalities are in the East and in the
West. And if they have to travel from the last town in the eastern part of
the province, it is about one hundred forty kilometers to the capital
town. And from the West side, it is the same distance. And from the
North side, it is about one hundred kilometers. So that is the problem
there. And besides, they have enough resources and I feel that, not
because I am interested in the province, I am after their welfare in the
future. Who am I to dictate on those people? I have no interest but
then I am looking at the future development of these areas.
As a matter of fact, if I am in politics, its incidental; I do not need to be
there, but I can foresee what the creation of a new province will bring
to these people. It will bring them prosperity; it will bring them more
income, and it will encourage even foreign investors. Like the PAP
now, they are concentrating in South Cotabato, especially in the City of
General Santos and the neighboring municipalities, and they are quite
interested and even the AID people are asking me, What is holding the
creation of a new province when practically you need it? Its not 20 or
30 kilometers from the capital town; its about 140 kilometers. And
imagine those people have to travel that far and our road is not like
Metropolitan Manila. That is as far as from here to Tarlac.And there are
municipalities there that are just one municipality is bigger than
the province of La Union. They have the income. Of course, they dont
have the population because thats a part of the land of promise and
people from Luzon are migrating everyday because they feel that there
are more opportunities here.
So, by creating the new provinces, not only in my case, in the other
cases, it will enhance the development of the Philippines, not because
I am interested in my province. Well, as far as I am concerned, you
know, I am in the twilight years of my life to serve and I would like to
serve my people well. No personal or political interest here. I hope the
distinguished Chairman of the Committee will appreciate the House Bill
7166, which the House has already approved because we dont want
them to throw the Conference Committee Report after we have worked
that the house Bill has been, you know, drawn over board and not
even considered by the Senate. And on top of that, we are considering
a bill that has not yet been passed. So I hope the Senator will take that
into account.
Thank you for giving me this time to explain.
CHAIRMAN LINA. Thank you very much, Congressman James. We
will look into the legislative history of the Senate version on this matter
of creation of provinces. I am sure there was an amendment.As I said,
Ill look into it. Maybe the House version was incorporated in toto, but
maybe during the discussion, their amendments were introduced and,
therefore, Senator Pimentel could not hold on to the original version
and as a result new criteria were introduced.
But because of the manifestation that you just made, we will definitely,
when we reach a book, Title IV, on the matter of provinces, we will look
at it sympathetically from your end so that the objective that you want
[to] achieve can be realized. So we will look at it with sympathy. We
will review our position on the matter, how we arrived at the Senate
version and we will adopt an open mind definitely when we come into
it.
CHAIRMAN ALFELOR. Kanino yan?
CHAIRMAN LINA. Book III.
CHAIRMAN ALFELOR. Title?
CHAIRMAN LINA. Title IV.
60
CHAIRMAN ALFELOR. I have been pondering on the case of James,
especially on economic stimulation of a certain area. Like our case,
because I put myself on our province, our province is quite very big. Its
composed of four (4) congressional districts and I feel it should be five
now. But during the Batasan time, four of us talked and conversed
proposing to divide the province into two.
There are areas then, when since time immemorial, very few
governors ever tread on those areas. That is, maybe youre acquainted
with the Bondoc Peninsula of Quezon, fronting that
is Ragay Gulf. From Ragay there is a long stretch of coastal
area. From Albay going to Ragay, very few governors ever tread
[there] before, even today. That area now is infested with NPA. That is
the area of Congressman Andaya.
Now, we thought that in order to stimulate growth, maybe provincial aid
can be extended to these areas. With a big or a large area of a
province, a certain administrator or provincial governor definitely will
have no sufficient time. For me, if we really would like to stimulate
growth, I believe that an area where there is physical or geographical
impossibilities, where administrators can penetrate, I think we have to
create certain provisions in the law where maybe we can treat it with
special considerations.
Now, we went over the graduate scale of the Philipppine Local
Government Data as far as provinces are concerned. It is very
surprising that there are provinces here which only composed of six
municipalities, eight municipalities, seven municipalities. Like in
Cagayan, Tuguegarao, there are six municipalities. Ah, excuse me,
Batanes.
CHAIRMAN LINA. Will you look at the case of --- how many
municipalities are there in Batanes province?
CHAIRMAN ALFELOR. Batanes is only six.
CHAIRMAN LINA. Six town. Siquijor?
CHAIRMAN ALFELOR. Siquijor. It is region?
CHAIRMAN LINA. Seven.
CHAIRMAN ALFELOR.L Seven. Anim.
CHAIRMAN LINA. Six also.
CHAIRMAN ALFELOR. Six also.
CHAIRMAN LINA. It seems with a minimum number of towns?
CHAIRMAN ALFELOR. The population of Siquijor is only 70 thousand,
not even one congressional district. But tumaas in 1982. Camiguin,
that is Region 9. Wala dito. Nagtataka nga ako ngayon.
CHAIRMAN LINA. Camiguin, Camiguin.
CHAIRMAN ALFELOR. That is region? Camiguin has five
municipalities, with a population of 63 thousand. But we do not hold it
against the province because maybe thats one stimulant where growth
can grow, can start. The land area for Camiguin is only 229 square
kilometers. So if we hard fast on requirements of, we set a minimum
for every province, palagay ko we just leave it to legislation,
eh.Anyway, the Constitution is very clear that in case we would like to
divide, we submit it to a plebiscite. Pabayaan natin ang tao. Kung
maglalagay tayo ng set ng minimum, tila yata mahihirapan tayo,
eh.Because what is really the thrust of the Local Government
Code? Growth. To devolve powers in order for the community to have
its own idea how they will stimulate growth in their respective areas.
So, in every geographical condition, mayroon sariling id[i]osyncracies
eh, we cannot make a generalization.
CHAIRMAN LINA. Will the creation of a province, carved out of the
existing province because of some geographical id[i]osyncracies, as
you called it, stimulate the economic growth in the area or will
substantial aid coming from the national government to a particular
area, say, to a municipality, achieve the same purpose?
CHAIRMAN ALFELOR. Ano tayo dito sa budget. All right, here is a
province. Usually, tinitingnan lang yun, provision eh, hindi na yung
composition eh. You are entitled to, say, 20% of the area.
Theres a province of Camarines Sur which have the same share with
that of Camiguin and Siquijor, but Camiguin is composed only of five
municipalities; in Siquijor, its composed of six, but the share of Siquijor
is the same share with that of the province of Camarines Sur, having a
bigger area, very much bigger.
That is the budget in process.
CHAIRMAN LINA. Well, as I said, we are going to consider this very
seriously and even with sympathy because of the explanation given
and we will study this very carefully.[29]
The matters raised during the said Bicameral Conference Committee
meeting clearly show the manifest intention of Congress to promote
development in the previously underdeveloped and uninhabited land
areas by allowing them to directly share in
the allocation of funds under the national budget. It should be
remembered that, under Sections 284 and 285
of the LGC, the IRA is given back to local governments, and the
sharing is based on land area, population, and local revenue. [30]
61
Elementary is the principle that, if the literal application of the law
results in absurdity, impossibility, or injustice, then courts may resort to
extrinsic aids of statutory construction, such as the legislative history of
the law,[31] or may consider the implementing rules and regulations and
pertinent executive issuances in the nature of executive and/or
legislative construction.Pursuant to this principle, Article 9(2) of the
LGC-IRR should be deemed incorporated in the basic law, the LGC.
It is well to remember that the LGC-IRR was formulated by the
Oversight Committee consisting of members of both the Executive and
Legislative departments, pursuant to Section 533[32] of the LGC. As
Section 533 provides, the Oversight Committee shall formulate and
issue the appropriate rules and regulations necessary for the
efficient and effective implementation of any and all provisions of
this Code, thereby ensuring compliance with the principles of
local autonomy as defined under the Constitution. It was also
mandated by the Constitution that a local government code shall be
enacted by Congress, to wit
Section 3. The Congress shall enact a local government code which
shall provide for a more responsive and accountable local
government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and
referendum, allocate among the different local government units
their powers, responsibilities, and resources, and provide for the
qualifications, election, appointment and removal, term, salaries,
powers and functions and duties of local officials, and all other
matters relating to the organization and operation of the local
units. (Emphasis supplied.
These State policies are the very reason for the enactment of the LGC,
with the view to attain decentralization and countryside
development. Congress saw that the old LGC, Batas Pambansa Bilang
337, had to be replaced with a new law, now the LGC of 1991, which is
more dynamic and cognizant of the needs of the Philippines as an
archipelagic country. This accounts for the exemption from the land
area requirement of local government units composed of one or more
islands, as expressly stated under Sections 442 and 450 of the LGC,
with respect to the creation of municipalities and cities, but
inadvertently omitted from Section 461 with respect to the creation of
provinces. Hence, the void or missing detail was filled in by the
Oversight Committee in the LGC-IRR.
With three (3) members each from both the Senate and the House of
Representatives, particularly the chairpersons of their respective
Committees on Local Government, it cannot be gainsaid that the
inclusion by the Oversight Committee of the exemption from the land
area requirement with respect to the creation of provinces consisting of
one (1) or more islands was intended by Congress, but unfortunately
not expressly stated in Section 461 of the LGC, and this intent was
echoed through an express provision in the LGC-IRR. To be sure, the
Oversight Committee did not just arbitrarily and whimsically insert such
an exemption in Article 9(2) of the LGC-IRR. The Oversight Committee
evidently conducted due deliberation and consultations with all the
concerned sectors of society and considered the operative principles of
local autonomy as provided in the LGC when the IRR was
formulated.[33] Undoubtedly, this amounts not only to an executive
construction, entitled to great weight and respect from this Court,[34] but
to legislative construction as well, especially with the inclusion of
representatives from the four leagues of local government units as
members of the Oversight Committee.
With the formulation of the LGC-IRR, which amounted to both
executive and legislative construction of the LGC, the many details to
implement the LGC had already been put in place, which Congress
understood to be impractical and not too urgent to immediately
translate into direct amendments to the LGC. But Congress,
recognizing the capacity and viability of Dinagat to become a full-
fledged province, enacted R.A. No. 9355, following the exemption from
the land area requirement, which, with respect to the creation of
provinces, can only be found as an express provision in the LGC-
IRR. In effect, pursuant to its plenary legislative powers, Congress
breathed flesh and blood into that exemption in Article 9(2) of the LGC-
IRR and transformed it into law when it enacted R.A. No. 9355 creating
the Island Province of Dinagat.
Further, the bill that eventually became R.A. No. 9355 was filed and
favorably voted upon in both Chambers of Congress. Such acts of both
Chambers of Congress definitively show the clear legislative intent to
incorporate into the LGC that exemption from the land area
requirement, with respect to the creation of a province when it consists
of one or more islands, as expressly provided only in the LGC-
IRR. Thereby, and by necessity, the LGC was amended by way of the
enactment of R.A. No. 9355.
What is more, the land area, while considered as an indicator of
viability of a local government unit, is not conclusive in showing that
Dinagat cannot become a province, taking into account its average
annual income of P82,696,433.23 at the time of its creation, as
certified by the Bureau of Local Government Finance, which is four
times more than the minimum requirement of P20,000,000.00 for the
creation of a province. The delivery of basic services to its constituents
has been proven possible and sustainable. Rather than looking at the
results of the plebiscite and the May 10, 2010 elections as mere fait
accompli circumstances which cannot operate in favor of Dinagats
existence as a province, they must be seen from the perspective that
Dinagat is ready and capable of becoming a province. This Court
should not be instrumental in stunting such capacity. As we have held
in League of Cities of the Philippines v. Commission on Elections[35]
Ratio legis est anima. The spirit rather than the letter of the law. A
statute must be read according to its spirit or intent, for what is within
the spirit is within the statute although it is not within its letter, and that
which is within the letter but not within the spirit is not within the
statute. Put a bit differently, that which is within the intent of the
lawmaker is as much within the statute as if within the letter, and that
which is within the letter of the statute is not within the statute unless
within the intent of the lawmakers. Withal, courts ought not to interpret
and should not accept an interpretation that would defeat the intent of
the law and its legislators.
So as it is exhorted to pass on a challenge against the validity of an act
of Congress, a co-equal branch of government, it behooves the Court
to have at once one principle in mind: the presumption of
constitutionality of statutes. This presumption finds its roots in the tri-
partite system of government and the corollary separation of powers,
which enjoins the three great departments of the government to accord
a becoming courtesy for each others acts, and not to interfere
inordinately with the exercise by one of its official functions. Towards
this end, courts ought to reject assaults against the validity of statutes,
barring of course their clear unconstitutionality. To doubt is to sustain,
the theory in context being that the law is the product of earnest
studies by Congress to ensure that no constitutional prescription or
concept is infringed. Consequently, before a law duly challenged is
nullified, an unequivocal breach of, or a clear conflict with, the
Constitution, not merely a doubtful or argumentative one, must be
demonstrated in such a manner as to leave no doubt in the mind of the
Court.
WHEREFORE, the Court resolved to:
1. GRANT the Urgent Motion to Recall Entry of Judgment by movants-
intervenors, dated and filed on October 29, 2010;
2. RECONSIDER and SET ASIDE the July 20, 2010 Resolution,
and GRANT the Motion for Leave to Intervene and to File and to Admit
Intervenors Motion for Reconsideration of the Resolution dated July
20, 2010;
62
3. GRANT the Intervenors Motion for Reconsideration of the RODOLFO G. NAVARRO, VICTOR F. BERNAL, and RENE O. G.R. No. 18
Resolution dated May 12, 2010. The May 12, 2010 Resolution MEDINA,
is RECONSIDERED and SET ASIDE. The provision in Article 9(2) of Present:
the Rules and Regulations Implementing the Local Government Code Petitioners,
of 1991 stating, The land area requirement shall not apply where the
proposed province is composed of one (1) or more islands, is
declared VALID. Accordingly, Republic Act No. 9355 (An Act Creating PUNO, C.J
the Province of Dinagat Islands) is declared
as VALID and CONSTITUTIONAL, and the proclamation of the CARPIO,
Province of Dinagat Islands and the election of the officials thereof are - versus
declared VALID; and
CORONA,
4. The petition is DISMISSED.
CARPIO M
No pronouncement as to costs. VELASCO,
EXECUTIVE SECRETARY EDUARDO ERMITA, representing
SO ORDERED. the President of the Philippines; SENATE OF THE NACHURA
PHILIPPINES, represented by the SENATE PRESIDENT;
ANTONIO EDUARDO B. NACHURA HOUSE OF REPRESENTATIVES, represented by the HOUSE LEONARDO
SPEAKER; GOVERNOR ROBERT ACE S. BARBERS,
Associate Justice representing the Mother Province of Surigao del Norte; BRION,
GOVERNOR GERALDINE ECLEO VILLAROMAN,
Republic of the Philippines representing the new Province of Dinagat Islands, PERALTA,
Supreme Court Respondents. BERSAMIN
Manila DEL CASTI

ABAD,

VILLARAM
EN BANC
PEREZ, an

MENDOZA

Promulgat

May 12, 20

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

RESOLUTION

PERALTA, J.:

Before us are two Motions for Reconsideration of the Decision dated

February 10, 2010 − one filed by the Office of the Solicitor General
(OSG) in behalf of public respondents, and the other filed by
respondent Governor Geraldine Ecleo Villaroman, representing the
Province of Dinagat Islands. The dispositive portion of the Decision
reads:

63
WHEREFORE, the petition is GRANTED. Republic Act No. 9355,
otherwise known as An Act Creating the Province of Dinagat Islands, is
hereby declared unconstitutional. The proclamation of the Province of
Dinagat Islands and the election of the officials thereof are
declared NULL and VOID. The provision in Article 9 (2) of the Rules
and Regulations Implementing the Local Government Code of 1991
stating, The land area requirement shall not apply where the proposed
province is composed of one (1) or more islands, is
declared NULL and VOID.
The arguments of the movants are similar. The grounds for
reconsideration of Governor Villaroman can be subsumed under the
grounds for reconsideration of the OSG, which are as follows:
I.
The Province of Dinagat Islands was created in accordance with the
provisions of the 1987 Constitution and the Local Government Code of
1991. Article 9 of the Implementing Rules and Regulations is merely
interpretative of Section 461 of the Local Government Code.
II.
The power to create a local government unit is vested with the
Legislature. The acts of the Legislature and Executive in enacting into
law RA 9355 should be respected as petitioners failed to overcome the
presumption of validity or constitutionality.
III.
Recent and prevailing jurisprudence considers the operative fact
doctrine as a reason for upholding the validity and constitutionality of
laws involving the creation of a new local government unit as in the
instant case.
As regards the first ground, the movants reiterate the same arguments
in their respective Comments that aside from the undisputed
compliance with the income requirement, Republic Act (R.A.) No.
9355, creating the Province of Dinagat Islands, has also complied with
the population and land area requirements.
The arguments are unmeritorious and have already been passed upon
by the Court in its Decision, ruling that R.A. No. 9355 is
unconstitutional, since it failed to comply with either the territorial or
population requirement contained in Section 461 of R.A. No. 7160,
otherwise known as the Local Government Code of 1991.
When the Dinagat Islands was proclaimed a new province
on December 3, 2006, it had an official population
of only 106,951 based on the 2000 Census of Population conducted by
the National Statistics Office (NSO), which population is short of the
statutory requirement of 250,000 inhabitants.
Although the Provincial Government of Surigao del Norte conducted a
special census of population in Dinagat Islands in 2003, which yielded
a population count of 371,000, the result was not certified by the NSO
as required by the Local Government Code.[1] Moreover, respondents
failed to prove that with the population count of 371,000, the population
of the original unit (mother Province of Surigao del Norte) would not be
reduced to
less than the minimum requirement prescribed by law at the time of the
creation of the new province.[2]
Less than a year after the proclamation of the new province, the NSO
conducted the 2007 Census of Population. The NSO certified that as
of August 1, 2007, Dinagat Islands had a total population of
only 120,813,[3] which was still below the minimum requirement of
250,000 inhabitants.
Based on the foregoing, R.A. No. 9355 failed to comply with the
population requirement of 250,000 inhabitants as certified by the NSO.
Moreover, the land area of the province failed to comply with the
statutory requirement of 2,000 square kilometers. R.A. No. 9355
specifically states that the Province of Dinagat Islands contains an
approximate land area of 802.12 square kilometers. This was not
disputed by the respondent Governor of the Province of Dinagat
Islands in her Comment. She and the other respondents instead
asserted that the province, which is composed of more than one
island, is exempted from the land area requirement based on the
provision in the Rules and Regulations Implementing the Local
Government Code of 1991 (IRR), specifically paragraph 2 of Article
9 which states that [t]he land area requirement shall not apply where
the proposed province is composed of one (1) or more islands. The
certificate of compliance issued by the Lands Management Bureau
was also based on the exemption under paragraph 2, Article 9 of the
IRR.
However, the Court held that paragraph 2 of Article 9 of the IRR is null
and void, because the exemption is not found in Section 461 of the
Local Government Code.[4] There is no dispute that in case of
discrepancy between the basic law and the rules and regulations
implementing the said law, the basic law prevails, because the rules
and regulations cannot go beyond the terms and provisions of the
basic law.[5]
The movants now argue that the correct interpretation of Section 461
of the Local Government Code is the one stated in the Dissenting
Opinion of Associate Justice Antonio Eduardo B. Nachura.
In his Dissenting Opinion, Justice Nachura agrees that R.A. No. 9355
failed to comply with the population requirement. However, he
contends that the Province of Dinagat Islands did not fail to comply
with the territorial requirement because it is composed of a group of
islands; hence, it is exempt from compliance not only with the territorial
contiguity requirement, but also with the 2,000-square-kilometer land
area criterion in Section 461 of the Local Government Code, which is
reproduced for easy reference:
64

SEC. 461. Requisites for Creation. -- (a) A province may be created if
it has an average annual income, as certified by the
Department of Finance, of not less than Twenty
million pesos (P20,000,000.00) based on 1991 constant prices and
either of the following requisites:
(i) a contiguous territory of at least two thousand (2,000) square
kilometers, as certified by the Lands Management Bureau; or
(ii) a population of not less than two hundred fifty thousand (250,000)
inhabitants as certified by the National Statistics Office:
Provided, That, the creation thereof shall not reduce the land area,
population, and income of the original unit or units at the time of said
creation to less than the minimum requirements prescribed herein.
(b) The territory need not be contiguous if it comprises two (2) or
more islands or is separated by a chartered city or cities which do
not contribute to the income of the province.
(c) The average annual income shall include the income accruing to
the general fund, exclusive of special funds, trust funds, transfers, and
non-recurring income.[6]
Justice Nachura contends that the stipulation in paragraph (b) qualifies
not merely the word contiguous in paragraph (a) (i) in the same
provision, but rather the entirety of paragraph (a) (i) that reads:
(i) a contiguous territory of at least two thousand (2,000)
square kilometers, as certified by the Lands Management Bureau[.][7]
He argues that the whole paragraph on contiguity and land area in
paragraph (a) (i) above is the one being referred to in the exemption
from the territorial requirement in paragraph (b). Thus, he contends
that if the province to be created is composed of islands, like the one in
this case, then, its territory need not be contiguous and need not have
an area of at least 2,000 square kilometers. He asserts that this is
because as the law is worded, contiguity and land area are not two
distinct and separate requirements, but they qualify each other. An
exemption from one of the two component requirements in paragraph
(a) (i) allegedly necessitates an exemption from the other component
requirement, because the non-attendance of one results in the
absence of a reason for the other component requirement to effect a
qualification.
Similarly, the OSG contends that when paragraph (b) of Section 461 of
the Local Government Code provides that the territory need not be
contiguous if it comprises two (2) or more islands, it necessarily
dispenses the 2,000-sq.-km. land area requirement, lest such
exemption would not make sense. The OSG argues that in stating that
a territory need not be contiguous if it comprises two (2) or more
islands, the law could not have meant to define the obvious. The land
mass of two or more islands will never be contiguous as it is covered
by bodies of water. It is then but logical that the territory of a proposed
province that is composed of one or more islands need not be
contiguous or be at least 2,000 sq. kms.
The Court is not persuaded.
Section 7, Chapter 2 (entitled General Powers and Attributes of Local
Government Units) of the Local Government Code provides:
SEC. 7. Creation and Conversion. As a general rule, the creation of a
local government unit or its conversion from one level to another
level shall be based on verifiable indicators of viability and
projected capacity to provide services, to wit:
(a) Income. It must be sufficient, based on acceptable standards,
to provide for all essential government facilities and services and
special functions commensurate with the size of its population, as
expected of the local government unit concerned;
(b) Population. It shall be determined as the total number of
inhabitants within the territorial jurisdiction of the local government unit
concerned; and
(c) Land area. It must be contiguous, unless it comprises two (2)
or more islands, or is separated by a local government unit
independent of the others; properly identified by metes and bounds
with technical descriptions; and sufficient to provide for such basic
services and facilities to meet the requirements of its populace.
Compliance with the foregoing indicators shall be attested to by the
Department of Finance (DOF), the National Statistics Office (NSO),
and the Lands Management Bureau (LMB) of the Department of
Environment and Natural Resources (DENR).[8]
It must be emphasized that Section 7 above, which provides for the
general rule in the creation of a local government unit, states in
paragraph (c) thereof that the land area must be
contiguous and sufficient to provide for such basic services and
facilities to meet the requirements of its populace.
Therefore, there are two requirements for land area: (1) the land area
must be contiguous; and (2) the land area must be sufficient to provide
for such basic services and facilities to meet the requirements of its
populace. A sufficient land area in the creation of a province is at least
2,000 square kilometers, as provided by Section 461 of the Local
Government Code .
Thus, Section 461 of the Local Government Code, providing the
requisites for the creation of a province, specifically states the
requirement of a contiguous territory of at least two thousand
(2,000) square kilometers.
Hence, contrary to the arguments of both movants, the requirement of
a contiguous territory and the requirement of a land area of at least
2,000 square kilometers are distinct andseparate requirements for land
area under paragraph (a) (i) of Section 461 and Section 7 (c) of the
Local Government Code.
However, paragraph (b) of Section 461 provides two instances
of exemption from the requirement of territorial contiguity, thus:
65
(b) The territory need not be contiguous if it comprises two (2) or
more islands, or is separated by a chartered city or cities which
do not contribute to the income of the province.[9]
Contrary to the contention of the movants, the exemption above
pertains only to the requirement of territorial contiguity. It clearly states
that the requirement of territorial contiguity may be dispensed with in
the case of a province comprising two or more islands, or is separated
by a chartered city or cities which do not contribute to the income of
the province.
Nowhere in paragraph (b) is it expressly stated or may it be
implied that when a province is composed of two or more islands,
or when the territory of a province is separated by a chartered city
or cities, such province need not comply with the land area
requirement of at least 2,000 square kilometers or the requirement
in paragraph (a) (i) of Section 461of the Local Government Code.
Where the law is free from ambiguity, the court may not introduce
exceptions or conditions where none is provided from considerations of
convenience, public welfare, or for any laudable purpose;[10] neither
may it engraft into the law qualifications not contemplated,[11] nor
construe its provisions by taking into account questions of expediency,
good faith, practical utility and other similar reasons so as to relax non-
compliance therewith.[12] Where the law speaks in clear and categorical
language, there is no room for interpretation, but only for application. [13]
Moreover, the OSG contends that since the power to create a local
government unit is vested with the Legislature, the acts of the
Legislature and the Executive branch in enacting into law R.A. No.
9355 should be respected as petitioners failed to overcome the
presumption of validity or constitutionality.
The contention lacks merit.
Section 10, Article X of the Constitution states:
SEC. 10. No province, city, municipality, or barangay may
be created, divided, merged, abolished, or its boundary substantially
altered, except in accordance with the criteria established in the
local government code and subject to approval by a majority of the
votes cast in a plebiscite in the political units directly affected.[14]
As the law-making branch of the government, indeed, it was the
Legislature that imposed the criteria for the creation of a province as
contained in Section 461 of the Local Government Code. No law has
yet been passed amending Section 461 of the Local Government
Code, so only the criteria stated therein are the bases for the creation
of a province. The Constitution clearly mandates that the criteria in the
Local Government Code must be followed in the creation of a province;
hence, any derogation of or deviation from the criteria prescribed in the
Local Government Code violates Section 10, Article X of the
Constitution.
Contrary to the contention of the movants, the evidence on record
proved that R.A. No. 9355 failed to comply with either the population or
territorial requirement prescribed in Section 461 of the Local
Government Code for the creation of the Province of Dinagat Islands;
hence, the Court declared R.A. No. 9355 unconstitutional.
In Farias v. The Executive Secretary,[15] the Court held:
Every statute is presumed valid. The presumption is that the legislature
intended to enact a valid, sensible and just law and one which
operates no further than may be necessary to effectuate the specific
purpose of the law.
It is equally well-established, however, that the courts, as guardians of
the Constitution, have the inherent authority to determine whether a
statute enacted by the legislature transcends the limit imposed by the
fundamental law. And where the acts of the other branches of
government run afoul of the Constitution, it is the judiciarys solemn and
sacred duty to nullify the same.
Citing League of Cities of the Philippines v. Commission on
Elections,[16] the movants further contend that under the operative fact
doctrine, the constitutionality of R.A No. 9355, creating the Province of
Dinagat Islands, should be upheld.
The Court is not persuaded.
In League of Cities of the Philippines v. Commission on Elections, the
Court held that the 16 cityhood laws, whose validity were questioned
therein, were constitutional mainly because it found that the said
cityhood laws merely carried out the intent of R.A. No. 9009, now
Section 450 of the Local Government Code, to exempt therein
respondents local government units (LGUs) from the P100 million
income requirement, since the said LGUs had pending cityhood bills
long before the enactment of R.A. No. 9009. Each one of the 16
cityhood laws contained a provision exempting the municipality
covered from the P100 million income requirement.
In this case, R.A. No. 9355 was declared unconstitutional because
there was utter failure to comply with either the population or territorial
requirement for the creation of a province under Section 461 of the
Local Government Code.
The Court, while respecting the doctrine of separation of powers,
cannot renege on its duty to determine whether the other branches of
the government have kept themselves within the limits of the
Constitution, and determine whether illegality attached to the creation
of the province in question. To abandon this duty only because the
Province of Dinagat Islands has began its existence is to consent to
the passage of a law that is violative of the provisions of the
Constitution and the Local Government Code, rendering the law and
the province creatednull and void. The Court cannot tolerate such
nullity to be in existence. Where the acts of other branches of the
government go beyond the limit imposed by the Constitution, it is the
sacred duty of the judiciary to nullify the same.[17]
Tan v. Comelec[18] held:
66
x x x [T]he fact that such plebiscite had been held and a new province
proclaimed and its officials appointed, the case before Us cannot truly
be viewed as already moot and academic. Continuation of the
existence of this newly proclaimed province, which petitioners strongly
profess to have been illegally born, deserves to be inquired into by this
Tribunal so that, if indeed, illegality attaches to its creation, the
commission of that error should not provide the very excuse for
perpetuation of such wrong. For this court to yield to the respondents
urging that, as there has been fait accompli then this Court should
passively accept and accede to the prevailing situation, is an
unacceptable suggestion. Dismissal of the instant petition, as
respondents so propose, is a proposition fraught with
mischief. Respondents submission will create a dangerous
precedent. Should this Court decline now to perform its duty of
interpreting and indicating what the law is and should be, this might
tempt again those who strut about in the corridors of power to
recklessly and with ulterior motives, create, merge, divide and/or alter
the boundaries of political subdivisions, either brazenly or stealthily,
confident that this Court will abstain from entertaining future challenges
to their acts if they manage to bring about a fait accompli.

WHEREFORE, in view of the foregoing, the Motions for

Reconsideration of the Decision dated February 10, 2010 are
hereby DENIED for lack of merit.

SO ORDERED.

67