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G.R. No.

122156 February 3, 1997 On 17 October 1995, perhaps apprehensive that respondent GSIS has
disregarded the tender of the matching bid and that the sale of 51% of
the MHC may be hastened by respondent GSIS and consummated
MANILA PRINCE HOTEL petitioner, vs. GOVERNMENT SERVICE
with Renong Berhad, petitioner came to this Court on prohibition
INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
and mandamus. On 18 October 1995 the Court issued a temporary
COMMITTEE ON PRIVATIZATION and OFFICE OF THE
restraining order enjoining respondents from perfecting and
GOVERNMENT CORPORATE COUNSEL, respondents.
consummating the sale to the Malaysian firm.

BELLOSILLO, J.:
On 10 September 1996 the instant case was accepted by the Court En
Banc after it was referred to it by the First Division. The case was then
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the set for oral arguments with former Chief Justice Enrique M. Fernando
grant of rights, privileges, and concessions covering the national and Fr. Joaquin G. Bernas, S.J., as amici curiae.
economy and patrimony, the State shall give preference to qualified
Filipinos, 1 is in oked by petitioner in its bid to acquire 51% of the
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the
shares of the Manila Hotel Corporation (MHC) which owns the historic
1987 Constitution and submits that the Manila Hotel has been
Manila Hotel. Opposing, respondents maintain that the provision is not
identified with the Filipino nation and has practically become a
self-executing but requires an implementing legislation for its
historical monument which reflects the vibrancy of Philippine heritage
enforcement. Corollarily, they ask whether the 51% shares form part of
and culture. It is a proud legacy of an earlier generation of Filipinos
the national economy and patrimony covered by the protective mantle
who believed in the nobility and sacredness of independence and its
of the Constitution.
power and capacity to release the full potential of the Filipino
people. To all intents and purposes, it has become a part of the
The controversy arose when respondent Government Service national patrimony. 6 Petitioner also argues that since 51% of the
Insurance System (GSIS), pursuant to the privatization program of the shares of the MHC carries with it the ownership of the business of the
Philippine Government under Proclamation No. 50 dated 8 December hotel which is owned by respondent GSIS, a government-owned and
1986, decided to sell through public bidding 30% to 51% of the issued controlled corporation, the hotel business of respondent GSIS being a
and outstanding shares of respondent MHC. The winning bidder, or the part of the tourism industry is unquestionably a part of the national
eventual "strategic partner," is to provide management expertise economy. Thus, any transaction involving 51% of the shares of stock
and/or an international marketing/reservation system, and financial of the MHC is clearly covered by the term national economy, to which
support to strengthen the profitability and performance of the Manila Sec. 10, second par., Art. XII, 1987 Constitution, applies. 7
Hotel. 2 In a close bidding held on 18 September 1995 only two (2)
bidders participated: petitioner Manila Prince Hotel Corporation, a
It is also the thesis of petitioner that since Manila Hotel is part of the
Filipino corporation, which offered to buy 51% of the MHC or
national patrimony and its business also unquestionably part of the
15,300,000 shares at P41.58 per share, and Renong Berhad, a
national economy petitioner should be preferred after it has matched
Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for
the bid offer of the Malaysian firm. For the bidding rules mandate that if
the same number of shares at P44.00 per share, or P2.42 more than
for any reason, the Highest Bidder cannot be awarded the Block of
the bid of petitioner.
Shares, GSIS may offer this to the other Qualified Bidders that have
validly submitted bids provided that these Qualified Bidders are willing
Pertinent provisions of the bidding rules prepared by respondent GSIS to match the highest bid in terms of price per share. 8
state —
Respondents except. They maintain that: First, Sec. 10, second par.,
I. EXECUTION OF THE NECESSARY CONTRACTS WITH Art. XII, of the 1987 Constitution is merely a statement of principle and
GSIS/MHC — policy since it is not a self-executing provision and requires
implementing legislation(s) . . . Thus, for the said provision to Operate,
there must be existing laws "to lay down conditions under which
1. The Highest Bidder must comply with the conditions set forth business may be done." 9
below by October 23, 1995 (reset to November 3, 1995) or the
Highest Bidder will lose the right to purchase the Block of Shares
and GSIS will instead offer the Block of Shares to the other Second, granting that this provision is self-executing, Manila Hotel
Qualified Bidders: does not fall under the term national patrimony which only refers to
lands of the public domain, waters, minerals, coal, petroleum and other
mineral oils, all forces of potential energy, fisheries, forests or timber,
a. The Highest Bidder must negotiate and execute with the wildlife, flora and fauna and all marine wealth in its territorial sea, and
GSIS/MHC the Management Contract, International
exclusive marine zone as cited in the first and second paragraphs of
Marketing/Reservation System Contract or other type of Sec. 2, Art. XII, 1987 Constitution. According to respondents, while
contract specified by the Highest Bidder in its strategic plan petitioner speaks of the guests who have slept in the hotel and the
for the Manila Hotel. . . .
events that have transpired therein which make the hotel historic,
these alone do not make the hotel fall under the patrimonyof the
b. The Highest Bidder must execute the Stock Purchase and nation. What is more, the mandate of the Constitution is addressed to
Sale Agreement with GSIS . . . . the State, not to respondent GSIS which possesses a personality of its
own separate and distinct from the Philippines as a State.
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER — Third, granting that the Manila Hotel forms part of the national
patrimony, the constitutional provision invoked is still inapplicable since
what is being sold is only 51% of the outstanding shares of the
The Highest Bidder will be declared the Winning Bidder/Strategic corporation, not the hotel building nor the land upon which the building
Partner after the following conditions are met: stands. Certainly, 51% of the equity of the MHC cannot be considered
part of the national patrimony. Moreover, if the disposition of the
a. Execution of the necessary contracts with GSIS/MHC not shares of the MHC is really contrary to the Constitution, petitioner
later than October 23, 1995 (reset to November 3, 1995); should have questioned it right from the beginning and not after it had
and lost in the bidding.

b. Requisite approvals from the GSIS/MHC and COP Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the
(Committee on Privatization)/OGCC (Office of the bidding rules which provides that if for any reason, the Highest Bidder
Government Corporate Counsel) are obtained. 3 cannot be awarded the Block of Shares, GSIS may offer this to the
other Qualified Bidders that have validly submitted bids provided that
these Qualified Bidders are willing to match the highest bid in terms of
Pending the declaration of Renong Berhad as the winning price per share, is misplaced. Respondents postulate that the privilege
bidder/strategic partner and the execution of the necessary contracts, of submitting a matching bid has not yet arisen since it only takes
petitioner in a letter to respondent GSIS dated 28 September 1995 place if for any reason, the Highest Bidder cannot be awarded the
matched the bid price of P44.00 per share tendered by Renong Block of Shares. Thus the submission by petitioner of a matching bid is
Berhad. 4 In a subsequent letter dated 10 October 1995 petitioner sent premature since Renong Berhad could still very well be awarded the
a manager's check issued by Philtrust Bank for Thirty-three Million block of shares and the condition giving rise to the exercise of the
Pesos (P33.000.000.00) as Bid Security to match the bid of the privilege to submit a matching bid had not yet taken place.
Malaysian Group, Messrs. Renong Berhad . . . 5 which respondent
GSIS refused to accept.
Finally, the prayer for prohibition grounded on grave abuse of
discretion should fail since respondent GSIS did not exercise its
1
discretion in a capricious, whimsical manner, and if ever it did abuse its prospective laws will always lay down conditions under which
discretion it was not so patent and gross as to amount to an evasion of business may be done. For example, qualifications on the setting
a positive duty or a virtual refusal to perform a duty enjoined by law. up of other financial structures, et cetera (emphasis supplied by
Similarly, the petition for mandamus should fail as petitioner has no respondents)
clear legal right to what it demands and respondents do not have an
imperative duty to perform the act required of them by petitioner.
MR. RODRIGO. It is just a matter of style.

We now resolve. A constitution is a system of fundamental laws for the


MR. NOLLEDO Yes, 16
governance and administration of a nation. It is supreme, imperious,
absolute and unalterable except by the authority from which it
emanates. It has been defined as the fundamental and paramount law Quite apparently, Sec. 10, second par., of Art XII is couched in such a
of the nation. 10 It prescribes the permanent framework of a system of way as not to make it appear that it is non-self-executing but simply for
government, assigns to the different departments their respective purposes of style. But, certainly, the legislature is not precluded from
powers and duties, and establishes certain fixed principles on which enacting other further laws to enforce the constitutional provision so
government is founded. The fundamental conception in other words is long as the contemplated statute squares with the Constitution. Minor
that it is a supreme law to which all other laws must conform and in details may be left to the legislature without impairing the self-
accordance with which all private rights must be determined and all executing nature of constitutional provisions.
public authority administered.11 Under the doctrine of constitutional
supremacy, if a law or contract violates any norm of the constitution
that law or contract whether promulgated by the legislative or by the In self-executing constitutional provisions, the legislature may still
executive branch or entered into by private persons for private enact legislation to facilitate the exercise of powers directly granted by
the constitution, further the operation of such a provision, prescribe a
purposes is null and void and without any force and effect. Thus, since
the Constitution is the fundamental, paramount and supreme law of the practice to be used for its enforcement, provide a convenient remedy
nation, it is deemed written in every statute and contract. for the protection of the rights secured or the determination thereof, or
place reasonable safeguards around the exercise of the right. The
mere fact that legislation may supplement and add to or prescribe a
Admittedly, some constitutions are merely declarations of policies and penalty for the violation of a self-executing constitutional provision
principles. Their provisions command the legislature to enact laws and does not render such a provision ineffective in the absence of such
carry out the purposes of the framers who merely establish an outline legislation. The omission from a constitution of any express provision
of government providing for the different departments of the for a remedy for enforcing a right or liability is not necessarily an
governmental machinery and securing certain fundamental and indication that it was not intended to be self-executing. The rule is that
inalienable rights of citizens. 12 A provision which lays down a general a self-executing provision of the constitution does not necessarily
principle, such as those found in Art. II of the 1987 Constitution, is exhaust legislative power on the subject, but any legislation must be in
usually not self-executing. But a provision which is complete in itself harmony with the constitution, further the exercise of constitutional
and becomes operative without the aid of supplementary or enabling right and make it more available. 17 Subsequent legislation however
legislation, or that which supplies sufficient rule by means of which the does not necessarily mean that the subject constitutional provision is
right it grants may be enjoyed or protected, is self-executing. Thus a not, by itself, fully enforceable.
constitutional provision is self-executing if the nature and extent of the
right conferred and the liability imposed are fixed by the constitution
itself, so that they can be determined by an examination and Respondents also argue that the non-self-executing nature of Sec. 10,
second par., of Art. XII is implied from the tenor of the first and third
construction of its terms, and there is no language indicating that the
subject is referred to the legislature for action. 13 paragraphs of the same section which undoubtedly are not self-
executing. 18 The argument is flawed. If the first and third paragraphs
are not self-executing because Congress is still to enact measures to
As against constitutions of the past, modern constitutions have been encourage the formation and operation of enterprises fully owned by
generally drafted upon a different principle and have often become in Filipinos, as in the first paragraph, and the State still needs legislation
effect extensive codes of laws intended to operate directly upon the to regulate and exercise authority over foreign investments within its
people in a manner similar to that of statutory enactments, and the national jurisdiction, as in the third paragraph, then a fortiori, by the
function of constitutional conventions has evolved into one more like same logic, the second paragraph can only be self-executing as it does
that of a legislative body. Hence, unless it is expressly provided that a not by its language require any legislation in order to give preference to
legislative act is necessary to enforce a constitutional mandate, the qualified Filipinos in the grant of rights, privileges and concessions
presumption now is that all provisions of the constitution are self- covering the national economy and patrimony. A constitutional
executing If the constitutional provisions are treated as requiring provision may be self-executing in one part and non-self-executing in
legislation instead of self-executing, the legislature would have the another. 19
power to ignore and practically nullify the mandate of the fundamental
law. 14 This can be cataclysmic. That is why the prevailing view is, as it
Even the cases cited by respondents holding that certain constitutional
has always been, that —
provisions are merely statements of principles and policies, which are
basically not self-executing and only placed in the Constitution as
. . . in case of doubt, the Constitution should be considered self- moral incentives to legislation, not as judicially enforceable rights —
executing rather than non-self-executing . . . . Unless the contrary are simply not in point. Basco v. Philippine Amusements and Gaming
is clearly intended, the provisions of the Constitution should be Corporation 20 speaks of constitutional provisions on personal
considered self-executing, as a contrary rule would give the dignity, 21 the sanctity of family life, 22 the vital role of the youth in
legislature discretion to determine when, or whether, they shall be nation-building 23 the promotion of social justice, 24 and the values of
effective. These provisions would be subordinated to the will of the education.25 Tolentino v. Secretary of Finance 26 refers to the
lawmaking body, which could make them entirely meaningless by constitutional provisions on social justice and human rights 27 and on
simply refusing to pass the needed implementing statute. 15 education. 28 Lastly, Kilosbayan, Inc. v. Morato 29 cites provisions on
the promotion of general welfare, 30 the sanctity of family life, 31 the vital
role of the youth in nation-building 32 and the promotion of total human
Respondents argue that Sec. 10, second par., Art. XII, of the 1987
liberation and development.33 A reading of these provisions indeed
Constitution is clearly not self-executing, as they quote from
clearly shows that they are not judicially enforceable constitutional
discussions on the floor of the 1986 Constitutional Commission —
rights but merely guidelines for legislation. The very terms of the
provisions manifest that they are only principles upon which the
MR. RODRIGO. Madam President, I am asking this question as legislations must be based. Res ipsa loquitur.
the Chairman of the Committee on Style. If the wording of
"PREFERENCE" is given to QUALIFIED FILIPINOS," can it be
On the other hand, Sec. 10, second par., Art. XII of the of the 1987
understood as a preference to qualified Filipinos vis-a-vis Filipinos
Constitution is a mandatory, positive command which is complete in
who are not qualified. So, why do we not make it clear? To
itself and which needs no further guidelines or implementing laws or
qualified Filipinos as against aliens?
rules for its enforcement. From its very words the provision does not
require any legislation to put it in operation. It is per sejudicially
THE PRESIDENT. What is the question of Commissioner enforceable When our Constitution mandates that [i]n the grant of
Rodrigo? Is it to remove the word "QUALIFIED?". rights, privileges, and concessions covering national economy and
patrimony, the State shall give preference to qualified Filipinos, it
means just that — qualified Filipinos shall be preferred. And when our
MR. RODRIGO. No, no, but say definitely "TO QUALIFIED
Constitution declares that a right exists in certain specified
FILIPINOS" as against whom? As against aliens or over aliens?
circumstances an action may be maintained to enforce such right
notwithstanding the absence of any legislation on the subject;
MR. NOLLEDO. Madam President, I think that is understood. We consequently, if there is no statute especially enacted to enforce such
use the word "QUALIFIED" because the existing laws or constitutional right, such right enforces itself by its own inherent

2
potency and puissance, and from which all legislations must take their MR. DAVIDE. The Nolledo amendment would refer to an
bearings. Where there is a right there is a remedy. Ubi jus ibi individual Filipino. What about a corporation wholly owned by
remedium. Filipino citizens?

As regards our national patrimony, a member of the 1986 MR. MONSOD. At least 60 percent, Madam President.
Constitutional Commission 34 explains —
MR. DAVIDE. Is that the intention?
The patrimony of the Nation that should be conserved and
developed refers not only to out rich natural resources but also to
MR. MONSOD. Yes, because, in fact, we would be limiting it if we
the cultural heritage of out race. It also refers to our intelligence in
say that the preference should only be 100-percent Filipino.
arts, sciences and letters. Therefore, we should develop not only
our lands, forests, mines and other natural resources but also the
mental ability or faculty of our people. MR: DAVIDE. I want to get that meaning clear because
"QUALIFIED FILIPINOS" may refer only to individuals and not to
juridical personalities or entities.
We agree. In its plain and ordinary meaning, the term patrimony
pertains to heritage. 35 When the Constitution speaks of national
patrimony, it refers not only to the natural resources of the Philippines, MR. MONSOD. We agree, Madam President. 39
as the Constitution could have very well used the term natural
resources, but also to the cultural heritage of the Filipinos.
xxx xxx xxx

Manila Hotel has become a landmark — a living testimonial of


MR. RODRIGO. Before we vote, may I request that the
Philippine heritage. While it was restrictively an American hotel when it
first opened in 1912, it immediately evolved to be truly Filipino, amendment be read again.
Formerly a concourse for the elite, it has since then become the venue
of various significant events which have shaped Philippine history. It MR. NOLLEDO. The amendment will read: "IN THE GRANT OF
was called the Cultural Center of the 1930's. It was the site of the RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE
festivities during the inauguration of the Philippine Commonwealth. NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL
Dubbed as the Official Guest House of the Philippine Government. it GIVE PREFERENCE TO QUALIFIED FILIPINOS." And the word
plays host to dignitaries and official visitors who are accorded the "Filipinos" here, as intended by the proponents, will include not
traditional Philippine hospitality. 36 only individual Filipinos but also Filipino-controlled entities or
entities fully-controlled by Filipinos. 40
The history of the hotel has been chronicled in the book The Manila
Hotel: The Heart and Memory of a City. 37During World War II the hotel The phrase preference to qualified Filipinos was explained thus —
was converted by the Japanese Military Administration into a military
headquarters. When the American forces returned to recapture Manila
the hotel was selected by the Japanese together with Intramuros as MR. FOZ. Madam President, I would like to request
the two (2) places fro their final stand. Thereafter, in the 1950's and Commissioner Nolledo to please restate his amendment so that I
1960's, the hotel became the center of political activities, playing host can ask a question.
to almost every political convention. In 1970 the hotel reopened after a
renovation and reaped numerous international recognitions, an MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES
acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel AND CONCESSIONS COVERING THE NATIONAL ECONOMY
was the site of a failedcoup d' etat where an aspirant for vice-president AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE
was "proclaimed" President of the Philippine Republic. TO QUALIFIED FILIPINOS."

For more than eight (8) decades Manila Hotel has bore mute witness MR FOZ. In connection with that amendment, if a foreign
to the triumphs and failures, loves and frustrations of the Filipinos; its enterprise is qualified and a Filipino enterprise is also qualified,
existence is impressed with public interest; its own historicity will the Filipino enterprise still be given a preference?
associated with our struggle for sovereignty, independence and
nationhood. Verily, Manila Hotel has become part of our national
economy and patrimony. For sure, 51% of the equity of the MHC MR. NOLLEDO. Obviously.
comes within the purview of the constitutional shelter for it comprises
the majority and controlling stock, so that anyone who acquires or MR. FOZ. If the foreigner is more qualified in some aspects than
owns the 51% will have actual control and management of the hotel. In the Filipino enterprise, will the Filipino still be preferred?
this instance, 51% of the MHC cannot be disassociated from the hotel
and the land on which the hotel edifice stands. Consequently, we
cannot sustain respondents' claim that theFilipino First Policy provision MR. NOLLEDO. The answer is "yes."
is not applicable since what is being sold is only 51% of
the outstanding shares of the corporation, not the Hotel building nor MR. FOZ. Thank you, 41
the land upon which the building stands. 38

Expounding further on the Filipino First Policy provision Commissioner


The argument is pure sophistry. The term qualified Filipinos as used in Nolledo continues —
Our Constitution also includes corporations at least 60% of which is
owned by Filipinos. This is very clear from the proceedings of the 1986
Constitutional Commission MR. NOLLEDO. Yes, Madam President. Instead of "MUST," it will
be "SHALL — THE STATE SHALL GlVE PREFERENCE TO
QUALIFIED FILIPINOS. This embodies the so-called "Filipino
THE PRESIDENT. Commissioner Davide is recognized. First" policy. That means that Filipinos should be given preference
in the grant of concessions, privileges and rights covering the
MR. DAVIDE. I would like to introduce an amendment to the national patrimony. 42
Nolledo amendment. And the amendment would consist in
substituting the words "QUALIFIED FILIPINOS" with the following: The exchange of views in the sessions of the Constitutional
"CITIZENS OF THE PHILIPPINES OR CORPORATIONS OR Commission regarding the subject provision was still further clarified by
ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING STOCK Commissioner Nolledo 43 —
IS WHOLLY OWNED BY SUCH CITIZENS.
Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino"
xxx xxx xxx bias in all economic concerns. It is better known as the FILIPINO
FIRST Policy . . . This provision was never found in previous
MR. MONSOD. Madam President, apparently the proponent is Constitutions . . . .
agreeable, but we have to raise a question. Suppose it is a
corporation that is 80-percent Filipino, do we not give it The term "qualified Filipinos" simply means that preference shall
preference? be given to those citizens who can make a viable contribution to
the common good, because of credible competence and
efficiency. It certainly does NOT mandate the pampering and
preferential treatment to Filipino citizens or organizations that are

3
incompetent or inefficient, since such an indiscriminate preference Adhering to the doctrine of constitutional supremacy, the subject
would be counter productive and inimical to the common good. constitutional provision is, as it should be, impliedly written in the
bidding rules issued by respondent GSIS, lest the bidding rules be
nullified for being violative of the Constitution. It is a basic principle in
In the granting of economic rights, privileges, and concessions,
constitutional law that all laws and contracts must conform with the
when a choice has to be made between a "qualified foreigner"
fundamental law of the land. Those which violate the Constitution lose
end a "qualified Filipino," the latter shall be chosen over the
their reason for being.
former."

Paragraph V. J. 1 of the bidding rules provides that [if] for any


Lastly, the word qualified is also determinable. Petitioner was so
reason the Highest Bidder cannot be awarded the Block of Shares,
considered by respondent GSIS and selected as one of
GSIS may offer this to other Qualified Bidders that have validly
the qualified bidders. It was pre-qualified by respondent GSIS in
submitted bids provided that these Qualified Bidders are willing to
accordance with its own guidelines so that the sole inference here is
match the highest bid in terms of price per
that petitioner has been found to be possessed of proven management
share. 47 Certainly, the constitutional mandate itself is reason
expertise in the hotel industry, or it has significant equity ownership in
enough not to award the block of shares immediately to the foreign
another hotel company, or it has an overall management and
bidder notwithstanding its submission of a higher, or even the highest,
marketing proficiency to successfully operate the Manila Hotel. 44
bid. In fact, we cannot conceive of a stronger reason than the
constitutional injunction itself.
The penchant to try to whittle away the mandate of the Constitution by
arguing that the subject provision is not self-executory and requires
In the instant case, where a foreign firm submits the highest bid in a
implementing legislation is quite disturbing. The attempt to violate a
public bidding concerning the grant of rights, privileges and
clear constitutional provision — by the government itself — is only too
concessions covering the national economy and patrimony, thereby
distressing. To adopt such a line of reasoning is to renounce the duty
exceeding the bid of a Filipino, there is no question that the Filipino will
to ensure faithfulness to the Constitution. For, even some of the
have to be allowed to match the bid of the foreign entity. And if the
provisions of the Constitution which evidently need implementing
Filipino matches the bid of a foreign firm the award should go to the
legislation have juridical life of their own and can be the source of a
Filipino. It must be so if we are to give life and meaning to the Filipino
judicial remedy. We cannot simply afford the government a defense
First Policy provision of the 1987 Constitution. For, while this may
that arises out of the failure to enact further enabling, implementing or
neither be expressly stated nor contemplated in the bidding rules, the
guiding legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J.,
constitutional fiat is, omnipresent to be simply disregarded. To ignore it
on constitutional government is apt —
would be to sanction a perilous skirting of the basic law.

The executive department has a constitutional duty to implement


This Court does not discount the apprehension that this policy may
laws, including the Constitution, even before Congress acts —
discourage foreign investors. But the Constitution and laws of the
provided that there are discoverable legal standards for executive
Philippines are understood to be always open to public scrutiny. These
action. When the executive acts, it must be guided by its own
are given factors which investors must consider when venturing into
understanding of the constitutional command and of applicable
business in a foreign jurisdiction. Any person therefore desiring to do
laws. The responsibility for reading and understanding the
business in the Philippines or with any of its agencies or
Constitution and the laws is not the sole prerogative of Congress.
instrumentalities is presumed to know his rights and obligations under
If it were, the executive would have to ask Congress, or perhaps
the Constitution and the laws of the forum.
the Court, for an interpretation every time the executive is
confronted by a constitutional command. That is not how
constitutional government operates. 45 The argument of respondents that petitioner is now estopped from
questioning the sale to Renong Berhad since petitioner was well aware
from the beginning that a foreigner could participate in the bidding is
Respondents further argue that the constitutional provision is
meritless. Undoubtedly, Filipinos and foreigners alike were invited to
addressed to the State, not to respondent GSIS which by itself
the bidding. But foreigners may be awarded the sale only if no Filipino
possesses a separate and distinct personality. This argument again is
qualifies, or if the qualified Filipino fails to match the highest bid
at best specious. It is undisputed that the sale of 51% of the MHC
tendered by the foreign entity. In the case before us, while petitioner
could only be carried out with the prior approval of the State acting
was already preferred at the inception of the bidding because of the
through respondent Committee on Privatization. As correctly pointed
constitutional mandate, petitioner had not yet matched the bid offered
out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of
by Renong Berhad. Thus it did not have the right or personality then to
the assets of respondents GSIS and MHC a "state action." In
compel respondent GSIS to accept its earlier bid. Rightly, only after it
constitutional jurisprudence, the acts of persons distinct from the
had matched the bid of the foreign firm and the apparent disregard by
government are considered "state action" covered by the Constitution
respondent GSIS of petitioner's matching bid did the latter have a
(1) when the activity it engages in is a "public function;" (2) when the
cause of action.
government is so significantly involved with the private actor as to
make the government responsible for his action; and, (3) when the
government has approved or authorized the action. It is evident that Besides, there is no time frame for invoking the constitutional
the act of respondent GSIS in selling 51% of its share in respondent safeguard unless perhaps the award has been finally made. To insist
MHC comes under the second and third categories of "state action." on selling the Manila Hotel to foreigners when there is a Filipino group
Without doubt therefore the transaction. although entered into by willing to match the bid of the foreign group is to insist that government
respondent GSIS, is in fact a transaction of the State and therefore be treated as any other ordinary market player, and bound by its
subject to the constitutional command. 46 mistakes or gross errors of judgment, regardless of the consequences
to the Filipino people. The miscomprehension of the Constitution is
regrettable. Thus we would rather remedy the indiscretion while there
When the Constitution addresses the State it refers not only to the
is still an opportunity to do so than let the government develop the
people but also to the government as elements of the State. After all,
habit of forgetting that the Constitution lays down the basic conditions
government is composed of three (3) divisions of power — legislative,
and parameters for its actions.
executive and judicial. Accordingly, a constitutional mandate directed
to the State is correspondingly directed to the three(3) branches of
government. It is undeniable that in this case the subject constitutional Since petitioner has already matched the bid price tendered by
injunction is addressed among others to the Executive Department and Renong Berhad pursuant to the bidding rules, respondent GSIS is left
respondent GSIS, a government instrumentality deriving its authority with no alternative but to award to petitioner the block of shares of
from the State. MHC and to execute the necessary agreements and documents to
effect the sale in accordance not only with the bidding guidelines and
procedures but with the Constitution as well. The refusal of respondent
It should be stressed that while the Malaysian firm offered the higher
GSIS to execute the corresponding documents with petitioner as
bid it is not yet the winning bidder. The bidding rules expressly provide
provided in the bidding rules after the latter has matched the bid of the
that the highest bidder shall only be declared the winning bidder after it
Malaysian firm clearly constitutes grave abuse of discretion.
has negotiated and executed the necessary contracts, and secured the
requisite approvals. Since the "Filipino First Policy provision of the
Constitution bestows preference on qualified Filipinos the mere tending The Filipino First Policy is a product of Philippine nationalism. It is
of the highest bid is not an assurance that the highest bidder will be embodied in the 1987 Constitution not merely to be used as a
declared the winning bidder. Resultantly, respondents are not bound to guideline for future legislation but primarily to be enforced; so must it
make the award yet, nor are they under obligation to enter into one be enforced. This Court as the ultimate guardian of the Constitution will
with the highest bidder. For in choosing the awardee respondents are never shun, under any reasonable circumstance, the duty of upholding
mandated to abide by the dictates of the 1987 Constitution the the majesty of the Constitution which it is tasked to defend. It is worth
provisions of which are presumed to be known to all the bidders and emphasizing that it is not the intention of this Court to impede and
other interested parties. diminish, much less undermine, the influx of foreign investments. Far

4
from it, the Court encourages and welcomes more business shares of the Manila Hotel Corporation to RENONG BERHAD, and to
opportunities but avowedly sanctions the preference for Filipinos ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL
whenever such preference is ordained by the Constitution. The CORPORATION to purchase the subject 51% of the shares of the
position of the Court on this matter could have not been more Manila Hotel Corporation at P44.00 per share and thereafter to
appropriately articulated by Chief Justice Narvasa — execute the necessary clearances and to do such other acts and
deeds as may be necessary for purpose. SO ORDERED.
As scrupulously as it has tried to observe that it is not its function
to substitute its judgment for that of the legislature or the
executive about the wisdom and feasibility of legislation economic
in nature, the Supreme Court has not been spared criticism for
decisions perceived as obstacles to economic progress and G.R. No. 118295 May 2, 1997
development . . . in connection with a temporary injunction issued
by the Court's First Division against the sale of the Manila Hotel to WIGBERTO E. TAÑADA vs. EDGARDO ANGARA,
a Malaysian Firm and its partner, certain statements were
published in a major daily to the effect that injunction "again
demonstrates that the Philippine legal system can be a major PANGANIBAN, J.:
obstacle to doing business here.
The emergence on January 1, 1995 of the World Trade Organization,
Let it be stated for the record once again that while it is no abetted by the membership thereto of the vast majority of countries
business of the Court to intervene in contracts of the kind referred has revolutionized international business and economic relations
to or set itself up as the judge of whether they are viable or amongst states. It has irreversibly propelled the world towards trade
attainable, it is its bounden duty to make sure that they do not liberalization and economic globalization. Liberalization, globalization,
violate the Constitution or the laws, or are not adopted or deregulation and privatization, the third-millennium buzz words, are
implemented with grave abuse of discretion amounting to lack or ushering in a new borderless world of business by sweeping away as
excess of jurisdiction. It will never shirk that duty, no matter how mere historical relics the heretofore traditional modes of promoting and
buffeted by winds of unfair and ill-informed criticism. 48 protecting national economies like tariffs, export subsidies, import
quotas, quantitative restrictions, tax exemptions and currency controls.
Finding market niches and becoming the best in specific industries in a
Privatization of a business asset for purposes of enhancing its market-driven and export-oriented global scenario are replacing age-
business viability and preventing further losses, regardless of the old "beggar-thy-neighbor" policies that unilaterally protect weak and
character of the asset, should not take precedence over non-material inefficient domestic producers of goods and services. In the words of
values. A commercial, nay even a budgetary, objective should not be Peter Drucker, the well-known management guru, "Increased
pursued at the expense of national pride and dignity. For the participation in the world economy has become the key to domestic
Constitution enshrines higher and nobler non-material values. Indeed, economic growth and prosperity."
the Court will always defer to the Constitution in the proper governance
of a free society; after all, there is nothing so sacrosanct in any
economic policy as to draw itself beyond judicial review when the Brief Historical Background
Constitution is involved. 49
To hasten worldwide recovery from the devastation wrought by the
Nationalism is inherent, in the very concept of the Philippines being a Second World War, plans for the establishment of three multilateral
democratic and republican state, with sovereignty residing in the institutions — inspired by that grand political body, the United Nations
Filipino people and from whom all government authority emanates. In — were discussed at Dumbarton Oaks and Bretton Woods.
nationalism, the happiness and welfare of the people must be the goal. The first was the World Bank (WB) which was to address the
The nation-state can have no higher purpose. Any interpretation of any rehabilitation and reconstruction of war-ravaged and later developing
constitutional provision must adhere to such basic concept. Protection countries; the second, the International Monetary Fund (IMF) which
of foreign investments, while laudible, is merely a policy. It cannot was to deal with currency problems; and the third, the International
override the demands of nationalism. 50 Trade Organization (ITO), which was to foster order and predictability
in world trade and to minimize unilateral protectionist policies that invite
challenge, even retaliation, from other states. However, for a variety of
The Manila Hotel or, for that matter, 51% of the MHC, is not just any reasons, including its non-ratification by the United States, the ITO,
commodity to be sold to the highest bidder solely for the sake of unlike the IMF and WB, never took off. What remained was only GATT
privatization. We are not talking about an ordinary piece of property in — the General Agreement on Tariffs and Trade. GATT was a
a commercial district. We are talking about a historic relic that has collection of treaties governing access to the economies of treaty
hosted many of the most important events in the short history of the adherents with no institutionalized body administering the agreements
Philippines as a nation. We are talking about a hotel where heads of or dependable system of dispute settlement.
states would prefer to be housed as a strong manifestation of their
desire to cloak the dignity of the highest state function to their official
visits to the Philippines. Thus the Manila Hotel has played and After half a century and several dizzying rounds of negotiations,
continues to play a significant role as an authentic repository of principally the Kennedy Round, the Tokyo Round and the Uruguay
twentieth century Philippine history and culture. In this sense, it has Round, the world finally gave birth to that administering body — the
become truly a reflection of the Filipino soul — a place with a history of World Trade Organization — with the signing of the "Final Act" in
grandeur; a most historical setting that has played a part in the shaping Marrakesh, Morocco and the ratification of the WTO Agreement by its
of a country. 51 members. 1

This Court cannot extract rhyme nor reason from the determined Like many other developing countries, the Philippines joined WTO as a
efforts of respondents to sell the historical landmark — this Grand Old founding member with the goal, as articulated by President Fidel V.
Dame of hotels in Asia — to a total stranger. For, indeed, the Ramos in two letters to the Senate (infra), of improving "Philippine
conveyance of this epic exponent of the Filipino psyche to alien hands access to foreign markets, especially its major trading partners,
cannot be less than mephistophelian for it is, in whatever manner through the reduction of tariffs on its exports, particularly agricultural
viewed, a veritable alienation of a nation's soul for some pieces of and industrial products." The President also saw in the WTO the
foreign silver. And so we ask: What advantage, which cannot be opening of "new opportunities for the services sector . . . , (the
equally drawn from a qualified Filipino, can be gained by the Filipinos reduction of) costs and uncertainty associated with exporting . . . , and
Manila Hotel — and all that it stands for — is sold to a non-Filipino? (the attraction of) more investments into the country." Although the
How much of national pride will vanish if the nation's cultural heritage is Chief Executive did not expressly mention it in his letter, the
entrusted to a foreign entity? On the other hand, how much dignity will Philippines — and this is of special interest to the legal profession —
be preserved and realized if the national patrimony is safekept in the will benefit from the WTO system of dispute settlement by judicial
hands of a qualified, zealous and well-meaning Filipino? This is the adjudication through the independent WTO settlement bodies called
plain and simple meaning of the Filipino First Policy provision of the (1) Dispute Settlement Panels and (2) Appellate Tribunal. Heretofore,
Philippine Constitution. And this Court, heeding the clarion call of the trade disputes were settled mainly through negotiations where
Constitution and accepting the duty of being the elderly watchman of solutions were arrived at frequently on the basis of relative bargaining
the nation, will continue to respect and protect the sanctity of the strengths, and where naturally, weak and underdeveloped countries
Constitution. were at a disadvantage.

WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE The Petition in Brief


SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON
PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE Arguing mainly (1) that the WTO requires the Philippines "to place
COUNSEL are directed to CEASE and DESIST from selling 51% of the nationals and products of member-countries on the same footing as

5
Filipinos and local products" and (2) that the WTO "intrudes, limits Agreement on Trade-Related Investment Measures
and/or impairs" the constitutional powers of both Congress and the Agreement on Implementation of Article VI of he
Supreme Court, the instant petition before this Court assails the WTO General Agreement on Tariffs and Trade
Agreement for violating the mandate of the 1987 Constitution to 1994
"develop a self-reliant and independent national economy effectively Agreement on Implementation of Article VII of the
controlled by Filipinos . . . (to) give preference to qualified Filipinos General on Tariffs and Trade 1994
(and to) promote the preferential use of Filipino labor, domestic Agreement on Pre-Shipment Inspection
materials and locally produced goods." Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating
Simply stated, does the Philippine Constitution prohibit Philippine
Measures
participation in worldwide trade liberalization and economic
Agreement on Safeguards
globalization? Does it proscribe Philippine integration into a global
economy that is liberalized, deregulated and privatized? These are the
main questions raised in this petition for certiorari, prohibition Annex 1B: General Agreement on Trade in Services and Annexes
andmandamus under Rule 65 of the Rules of Court praying (1) for the
nullification, on constitutional grounds, of the concurrence of the
Annex 1C: Agreement on Trade-Related Aspects of Intellectual
Philippine Senate in the ratification by the President of the Philippines
Property Rights
of the Agreement Establishing the World Trade Organization (WTO
Agreement, for brevity) and (2) for the prohibition of its implementation
and enforcement through the release and utilization of public funds, the ANNEX 2
assignment of public officials and employees, as well as the use of
government properties and resources by respondent-heads of various
executive offices concerned therewith. This concurrence is embodied Understanding on Rules and Procedures Governing
in Senate Resolution No. 97, dated December 14, 1994. the Settlement of Disputes

The Facts ANNEX 3

Trade Policy Review Mechanism


On April 15, 1994, Respondent Rizalino Navarro, then Secretary of
The Department of Trade and Industry (Secretary Navarro, for brevity),
representing the Government of the Republic of the Philippines, signed On December 16, 1994, the President of the Philippines signed 7 the
in Marrakesh, Morocco, the Final Act Embodying the Results of the Instrument of Ratification, declaring:
Uruguay Round of Multilateral Negotiations (Final Act, for brevity).
NOW THEREFORE, be it known that I, FIDEL V. RAMOS,
By signing the Final Act, 2 Secretary Navarro on behalf of the Republic President of the Republic of the Philippines, after having seen and
of the Philippines, agreed: considered the aforementioned Agreement Establishing the World
Trade Organization and the agreements and associated legal
instruments included in Annexes one (1), two (2) and three (3) of
(a) to submit, as appropriate, the WTO Agreement for the
consideration of their respective competent authorities, with a that Agreement which are integral parts thereof, signed at
view to seeking approval of the Agreement in accordance with Marrakesh, Morocco on 15 April 1994, do hereby ratify and
confirm the same and every Article and Clause thereof.
their procedures; and

(b) to adopt the Ministerial Declarations and Decisions. To emphasize, the WTO Agreement ratified by the President of the
Philippines is composed of the Agreement Proper and "the associated
legal instruments included in Annexes one (1), two (2) and three (3) of
On August 12, 1994, the members of the Philippine Senate received a that Agreement which are integral parts thereof."
letter dated August 11, 1994 from the President of the
Philippines, 3 stating among others that "the Uruguay Round Final Act
is hereby submitted to the Senate for its concurrence pursuant to On the other hand, the Final Act signed by Secretary Navarro
Section 21, Article VII of the Constitution." embodies not only the WTO Agreement (and its integral annexes
aforementioned) but also (1) the Ministerial Declarations and Decisions
and (2) the Understanding on Commitments in Financial Services. In
On August 13, 1994, the members of the Philippine Senate received his Memorandum dated May 13, 1996, 8 the Solicitor General
another letter from the President of the Philippines 4 likewise dated describes these two latter documents as follows:
August 11, 1994, which stated among others that "the Uruguay Round
Final Act, the Agreement Establishing the World Trade Organization,
the Ministerial Declarations and Decisions, and the Understanding on The Ministerial Decisions and Declarations are twenty-five
declarations and decisions on a wide range of matters, such as
Commitments in Financial Services are hereby submitted to the
Senate for its concurrence pursuant to Section 21, Article VII of the measures in favor of least developed countries, notification
Constitution." procedures, relationship of WTO with the International Monetary
Fund (IMF), and agreements on technical barriers to trade and on
dispute settlement.
On December 9, 1994, the President of the Philippines certified the
necessity of the immediate adoption of P.S. 1083, a resolution entitled
The Understanding on Commitments in Financial Services dwell
"Concurring in the Ratification of the Agreement Establishing the World
Trade Organization." 5 on, among other things, standstill or limitations and qualifications
of commitments to existing non-conforming measures, market
access, national treatment, and definitions of non-resident
On December 14, 1994, the Philippine Senate adopted Resolution No. supplier of financial services, commercial presence and new
97 which "Resolved, as it is hereby resolved, that the Senate concur, financial service.
as it hereby concurs, in the ratification by the President of the
Philippines of the Agreement Establishing the World Trade
Organization." 6 The text of the WTO Agreement is written on pages On December 29, 1994, the present petition was filed. After careful
137 et seq. of Volume I of the 36-volume Uruguay Round of deliberation on respondents' comment and petitioners' reply thereto,
the Court resolved on December 12, 1995, to give due course to the
Multilateral Trade Negotiations and includes various agreements and
associated legal instruments (identified in the said Agreement as petition, and the parties thereafter filed their respective memoranda.
Annexes 1, 2 and 3 thereto and collectively referred to as Multilateral The court also requested the Honorable Lilia R. Bautista, the Philippine
Trade Agreements, for brevity) as follows: Ambassador to the United Nations stationed in Geneva, Switzerland,
to submit a paper, hereafter referred to as "Bautista Paper," 9 for
brevity, (1) providing a historical background of and (2) summarizing
ANNEX 1 the said agreements.

Annex 1A: Multilateral Agreement on Trade in Goods During the Oral Argument held on August 27, 1996, the Court directed:
General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and (a) the petitioners to submit the (1) Senate Committee Report on
the matter in controversy and (2) the transcript of
Phytosanitary Measures
Agreement on Textiles and Clothing proceedings/hearings in the Senate; and
Agreement on Technical Barriers to Trade
6
(b) the Solicitor General, as counsel for respondents, to file (1) a establishing the World Trade Organization" implied rejection of
list of Philippine treaties signed prior to the Philippine adherence the treaty embodied in the Final Act.
to the WTO Agreement, which derogate from Philippine
sovereignty and (2) copies of the multi-volume WTO Agreement
By raising and arguing only four issues against the seven presented by
and other documents mentioned in the Final Act, as soon as
petitioners, the Solicitor General has effectively ignored three, namely:
possible.
(1) whether the petition presents a political question or is otherwise not
justiciable; (2) whether petitioner-members of the Senate (Wigberto E.
After receipt of the foregoing documents, the Court said it would Tañada and Anna Dominique Coseteng) are estopped from joining this
consider the case submitted for resolution. In a Compliance dated suit; and (3) whether the respondent-members of the Senate acted in
September 16, 1996, the Solicitor General submitted a printed copy of grave abuse of discretion when they voted for concurrence in the
the 36-volume Uruguay Round of Multilateral Trade Negotiations, and ratification of the WTO Agreement. The foregoing notwithstanding, this
in another Compliance dated October 24, 1996, he listed the various Court resolved to deal with these three issues thus:
"bilateral or multilateral treaties or international instruments involving
derogation of Philippine sovereignty." Petitioners, on the other hand,
(1) The "political question" issue — being very fundamental and vital,
submitted their Compliance dated January 28, 1997, on January 30,
and being a matter that probes into the very jurisdiction of this Court to
1997.
hear and decide this case — was deliberated upon by the Court and
will thus be ruled upon as the first issue;
The Issues
(2) The matter of estoppel will not be taken up because this defense is
In their Memorandum dated March 11, 1996, petitioners summarized waivable and the respondents have effectively waived it by not
the issues as follows: pursuing it in any of their pleadings; in any event, this issue, even if
ruled in respondents' favor, will not cause the petition's dismissal as
there are petitioners other than the two senators, who are not
A. Whether the petition presents a political question or is
vulnerable to the defense of estoppel; and
otherwise not justiciable.

(3) The issue of alleged grave abuse of discretion on the part of the
B. Whether the petitioner members of the Senate who
respondent senators will be taken up as an integral part of the
participated in the deliberations and voting leading to the
disposition of the four issues raised by the Solicitor General.
concurrence are estopped from impugning the validity of the
Agreement Establishing the World Trade Organization or of the
validity of the concurrence. During its deliberations on the case, the Court noted that the
respondents did not question the locus standi of petitioners. Hence,
they are also deemed to have waived the benefit of such issue. They
C. Whether the provisions of the Agreement Establishing the
probably realized that grave constitutional issues, expenditures of
World Trade Organization contravene the provisions of Sec. 19,
public funds and serious international commitments of the nation are
Article II, and Secs. 10 and 12, Article XII, all of the 1987
involved here, and that transcendental public interest requires that the
Philippine Constitution.
substantive issues be met head on and decided on the merits, rather
than skirted or deflected by procedural matters. 11
D. Whether provisions of the Agreement Establishing the World
Trade Organization unduly limit, restrict and impair Philippine
To recapitulate, the issues that will be ruled upon shortly are:
sovereignty specifically the legislative power which, under Sec. 2,
Article VI, 1987 Philippine Constitution is "vested in the Congress
of the Philippines"; (1) DOES THE PETITION PRESENT A JUSTICIABLE
CONTROVERSY? OTHERWISE STATED, DOES THE
PETITION INVOLVE A POLITICAL QUESTION OVER WHICH
E. Whether provisions of the Agreement Establishing the World
THIS COURT HAS NO JURISDICTION?
Trade Organization interfere with the exercise of judicial power.

(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS


F. Whether the respondent members of the Senate acted in grave
THREE ANNEXES CONTRAVENE SEC. 19, ARTICLE II, AND
abuse of discretion amounting to lack or excess of jurisdiction
SECS. 10 AND 12, ARTICLE XII, OF THE PHILIPPINE
when they voted for concurrence in the ratification of the
CONSTITUTION?
constitutionally-infirm Agreement Establishing the World Trade
Organization.
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS
ANNEXES LIMIT, RESTRICT, OR IMPAIR THE EXERCISE OF
G. Whether the respondent members of the Senate acted in
LEGISLATIVE POWER BY CONGRESS?
grave abuse of discretion amounting to lack or excess of
jurisdiction when they concurred only in the ratification of the
Agreement Establishing the World Trade Organization, and not (4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE
with the Presidential submission which included the Final Act, WITH THE EXERCISE OF JUDICIAL POWER BY THIS COURT
Ministerial Declaration and Decisions, and the Understanding on IN PROMULGATING RULES ON EVIDENCE?
Commitments in Financial Services.
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO
On the other hand, the Solicitor General as counsel for respondents AGREEMENT AND ITS ANNEXES SUFFICIENT AND/OR
"synthesized the several issues raised by petitioners into the VALID, CONSIDERING THAT IT DID NOT INCLUDE THE FINAL
following": 10 ACT, MINISTERIAL DECLARATIONS AND DECISIONS, AND
THE UNDERSTANDING ON COMMITMENTS IN FINANCIAL
SERVICES?
1. Whether or not the provisions of the "Agreement Establishing
the World Trade Organization and the Agreements and
Associated Legal Instruments included in Annexes one (1), two The First Issue: Does the Court
(2) and three (3) of that agreement" cited by petitioners directly Have Jurisdiction Over the Controversy?
contravene or undermine the letter, spirit and intent of Section 19,
Article II and Sections 10 and 12, Article XII of the 1987
In seeking to nullify an act of the Philippine Senate on the ground that
Constitution.
it contravenes the Constitution, the petition no doubt raises a
justiciable controversy. Where an action of the legislative branch is
2. Whether or not certain provisions of the Agreement unduly seriously alleged to have infringed the Constitution, it becomes not
limit, restrict or impair the exercise of legislative power by only the right but in fact the duty of the judiciary to settle the dispute.
Congress. "The question thus posed is judicial rather than political. The duty (to
adjudicate) remains to assure that the supremacy of the Constitution is
upheld." 12 Once a "controversy as to the application or interpretation of
3. Whether or not certain provisions of the Agreement impair the
a constitutional provision is raised before this Court (as in the instant
exercise of judicial power by this Honorable Court in promulgating
case), it becomes a legal issue which the Court is bound by
the rules of evidence.
constitutional mandate to decide." 13

4. Whether or not the concurrence of the Senate "in the


The jurisdiction of this Court to adjudicate the matters 14 raised in the
ratification by the President of the Philippines of the Agreement
petition is clearly set out in the 1987 Constitution, 15 as follows:
7
Judicial power includes the duty of the courts of justice to settle In the grant of rights, privileges, and concessions covering the
actual controversies involving rights which are legally demandable national economy and patrimony, the State shall give preference
and enforceable, and to determine whether or not there has been to qualified Filipinos.
a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
xxx xxx xxx
government.

Sec. 12. The State shall promote the preferential use of Filipino
The foregoing text emphasizes the judicial department's duty and
labor, domestic materials and locally produced goods, and adopt
power to strike down grave abuse of discretion on the part of any
measures that help make them competitive.
branch or instrumentality of government including Congress. It is an
innovation in our political law. 16 As explained by former Chief Justice
Roberto Concepcion, 17 "the judiciary is the final arbiter on the question Petitioners aver that these sacred constitutional principles are
of whether or not a branch of government or any of its officials has desecrated by the following WTO provisions quoted in their
acted without jurisdiction or in excess of jurisdiction or so capriciously memorandum: 19
as to constitute an abuse of discretion amounting to excess of
jurisdiction. This is not only a judicial power but a duty to pass
judgment on matters of this nature." a) In the area of investment measures related to trade in goods
(TRIMS, for brevity):

As this Court has repeatedly and firmly emphasized in many


cases, 18 it will not shirk, digress from or abandon its sacred duty and Article 2 National Treatment and Quantitative Restrictions.
authority to uphold the Constitution in matters that involve grave abuse
of discretion brought before it in appropriate cases, committed by any 1. Without prejudice to other rights and obligations under GATT
officer, agency, instrumentality or department of the government. 1994, no Member shall apply any TRIM that is inconsistent with
the provisions of Article II or Article XI of GATT 1994.
As the petition alleges grave abuse of discretion and as there is no
other plain, speedy or adequate remedy in the ordinary course of law, 2. An illustrative list of TRIMS that are inconsistent with the
we have no hesitation at all in holding that this petition should be given obligations of general elimination of quantitative restrictions
due course and the vital questions raised therein ruled upon under provided for in paragraph I of Article XI of GATT 1994 is
Rule 65 of the Rules of Court. Indeed, certiorari, prohibition contained in the Annex to this Agreement." (Agreement on Trade-
andmandamus are appropriate remedies to raise constitutional issues Related Investment Measures, Vol. 27, Uruguay Round, Legal
and to review and/or prohibit/nullify, when proper, acts of legislative Instruments, p. 22121, emphasis supplied).
and executive officials. On this, we have no equivocation.
The Annex referred to reads as follows:
We should stress that, in deciding to take jurisdiction over this petition,
this Court will not review the wisdom of the decision of the President
and the Senate in enlisting the country into the WTO, or pass upon ANNEX
the merits of trade liberalization as a policy espoused by said
international body. Neither will it rule on the propriety of the Illustrative List
government's economic policy of reducing/removing tariffs, taxes,
subsidies, quantitative restrictions, and other import/trade barriers.
Rather, it will only exercise its constitutional duty "to determine whether 1. TRIMS that are inconsistent with the obligation of national
or not there had been a grave abuse of discretion amounting to lack or treatment provided for in paragraph 4 of Article III of GATT 1994
excess of jurisdiction" on the part of the Senate in ratifying the WTO include those which are mandatory or enforceable under domestic
Agreement and its three annexes. law or under administrative rulings, or compliance with which is
necessary to obtain an advantage, and which require:

Second Issue: The WTO Agreement


and Economic Nationalism (a) the purchase or use by an enterprise of products of
domestic origin or from any domestic source, whether
specified in terms of particular products, in terms of volume
This is the lis mota, the main issue, raised by the petition. or value of products, or in terms of proportion of volume or
value of its local production; or
Petitioners vigorously argue that the "letter, spirit and intent" of the
Constitution mandating "economic nationalism" are violated by the so- (b) that an enterprise's purchases or use of imported
called "parity provisions" and "national treatment" clauses scattered in products be limited to an amount related to the volume or
various parts not only of the WTO Agreement and its annexes but also value of local products that it exports.
in the Ministerial Decisions and Declarations and in the Understanding
on Commitments in Financial Services.
2. TRIMS that are inconsistent with the obligations of general
elimination of quantitative restrictions provided for in paragraph 1
Specifically, the "flagship" constitutional provisions referred to are Sec of Article XI of GATT 1994 include those which are mandatory or
19, Article II, and Secs. 10 and 12, Article XII, of the Constitution, enforceable under domestic laws or under administrative rulings,
which are worded as follows: or compliance with which is necessary to obtain an advantage,
and which restrict:
Article II DECLARATION OF PRINCIPLES
AND STATE POLICIES (a) the importation by an enterprise of products used in or
related to the local production that it exports;
xxx xxx xxx
(b) the importation by an enterprise of products used in or
Sec. 19. The State shall develop a self-reliant and independent related to its local production by restricting its access to
national economy effectively controlled by Filipinos. foreign exchange inflows attributable to the enterprise; or

xxx xxx xxx (c) the exportation or sale for export specified in terms of
particular products, in terms of volume or value of products,
or in terms of a preparation of volume or value of its local
Article XII NATIONAL ECONOMY AND PATRIMONY production. (Annex to the Agreement on Trade-Related
Investment Measures, Vol. 27, Uruguay Round Legal
xxx xxx xxx Documents, p. 22125, emphasis supplied).

The paragraph 4 of Article III of GATT 1994 referred to is quoted as


Sec. 10. . . . The Congress shall enact measures that will
encourage the formation and operation of enterprises whose follows:
capital is wholly owned by Filipinos.
The products of the territory of any contracting party imported into
the territory of any other contracting party shall be accorded
treatment no less favorable than that accorded to like products of

8
national origin in respect of laws, regulations and requirements courts. 23 They are used by the judiciary as aids or as guides in the
affecting their internal sale, offering for sale, purchase, exercise of its power of judicial review, and by the legislature in its
transportation, distribution or use, the provisions of this paragraph enactment of laws. As held in the leading case of Kilosbayan,
shall not prevent the application of differential internal Incorporated vs. Morato, 24 the principles and state policies
transportation charges which are based exclusively on the enumerated in Article II and some sections of Article XII are not "self-
economic operation of the means of transport and not on the executing provisions, the disregard of which can give rise to a cause of
nationality of the product." (Article III, GATT 1947, as amended by action in the courts. They do not embody judicially enforceable
the Protocol Modifying Part II, and Article XXVI of GATT, 14 constitutional rights but guidelines for legislation."
September 1948, 62 UMTS 82-84 in relation to paragraph 1(a) of
the General Agreement on Tariffs and Trade 1994, Vol. 1,
In the same light, we held in Basco vs. Pagcor 25 that broad
Uruguay Round, Legal Instruments p. 177, emphasis supplied).
constitutional principles need legislative enactments to implement the,
thus:
(b) In the area of trade related aspects of intellectual
property rights (TRIPS, for brevity):
On petitioners' allegation that P.D. 1869 violates Sections 11
(Personal Dignity) 12 (Family) and 13 (Role of Youth) of Article II;
Each Member shall accord to the nationals of other Section 13 (Social Justice) of Article XIII and Section 2
Members treatment no less favourable than that it accords (Educational Values) of Article XIV of the 1987 Constitution,
to its own nationals with regard to the protection of suffice it to state also that these are merely statements of
intellectual property. . . (par. 1 Article 3, Agreement on principles and policies. As such, they are basically not self-
Trade-Related Aspect of Intellectual Property rights, Vol. executing, meaning a law should be passed by Congress to
31, Uruguay Round, Legal Instruments, p. 25432 clearly define and effectuate such principles.
(emphasis supplied)
In general, therefore, the 1935 provisions were not intended to be
(c) In the area of the General Agreement on Trade in self-executing principles ready for enforcement through the
Services: courts. They were rather directives addressed to the executive
and to the legislature. If the executive and the legislature failed to
heed the directives of the article, the available remedy was not
National Treatment
judicial but political. The electorate could express their
displeasure with the failure of the executive and the legislature
1. In the sectors inscribed in its schedule, and subject to any through the language of the ballot. (Bernas, Vol. II, p. 2).
conditions and qualifications set out therein, each Member shall
accord to services and service suppliers of any other Member, in
The reasons for denying a cause of action to an alleged infringement
respect of all measures affecting the supply of services, treatment
of board constitutional principles are sourced from basic considerations
no less favourable than it accords to its own like services and
of due process and the lack of judicial authority to wade "into the
service suppliers.
uncharted ocean of social and economic policy making." Mr. Justice
Florentino P. Feliciano in his concurring opinion inOposa vs. Factoran,
2. A Member may meet the requirement of paragraph I by according Jr., 26 explained these reasons as follows:
to services and service suppliers of any other Member, either
formally suppliers of any other Member, either formally identical
My suggestion is simply that petitioners must, before the trial
treatment or formally different treatment to that it accords to its own
court, show a more specific legal right — a right cast in language
like services and service suppliers.
of a significantly lower order of generality than Article II (15) of the
Constitution — that is or may be violated by the actions, or
3. Formally identical or formally different treatment shall be failures to act, imputed to the public respondent by petitioners so
considered to be less favourable if it modifies the conditions of that the trial court can validly render judgment grating all or part of
completion in favour of services or service suppliers of the Member the relief prayed for. To my mind, the court should be understood
compared to like services or service suppliers of any other Member. as simply saying that such a more specific legal right or rights
(Article XVII, General Agreement on Trade in Services, Vol. 28, may well exist in our corpus of law, considering the general policy
Uruguay Round Legal Instruments, p. 22610 emphasis supplied). principles found in the Constitution and the existence of the
Philippine Environment Code, and that the trial court should have
given petitioners an effective opportunity so to demonstrate,
It is petitioners' position that the foregoing "national treatment" and instead of aborting the proceedings on a motion to dismiss.
"parity provisions" of the WTO Agreement "place nationals and
products of member countries on the same footing as Filipinos and
local products," in contravention of the "Filipino First" policy of the It seems to me important that the legal right which is an essential
Constitution. They allegedly render meaningless the phrase "effectively component of a cause of action be a specific, operable legal right,
controlled by Filipinos." The constitutional conflict becomes more rather than a constitutional or statutory policy, for at least two (2)
manifest when viewed in the context of the clear duty imposed on the reasons. One is that unless the legal right claimed to have been
Philippines as a WTO member to ensure the conformity of its laws, violated or disregarded is given specification in operational terms,
regulations and administrative procedures with its obligations as defendants may well be unable to defend themselves intelligently
provided in the annexed agreements. 20 Petitioners further argue that and effectively; in other words, there are due process dimensions
these provisions contravene constitutional limitations on the role to this matter.
exports play in national development and negate the preferential
treatment accorded to Filipino labor, domestic materials and locally
The second is a broader-gauge consideration — where a specific
produced goods.
violation of law or applicable regulation is not alleged or proved,
petitioners can be expected to fall back on the expanded
On the other hand, respondents through the Solicitor General counter conception of judicial power in the second paragraph of Section 1
(1) that such Charter provisions are not self-executing and merely set of Article VIII of the Constitution which reads:
out general policies; (2) that these nationalistic portions of the
Constitution invoked by petitioners should not be read in isolation but
Sec. 1. . . .
should be related to other relevant provisions of Art. XII, particularly
Secs. 1 and 13 thereof; (3) that read properly, the cited WTO clauses
do not conflict with Constitution; and (4) that the WTO Agreement Judicial power includes the duty of the courts of justice to settle
contains sufficient provisions to protect developing countries like the actual controversies involving rights which are legally demandable
Philippines from the harshness of sudden trade liberalization. and enforceable, and to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
We shall now discuss and rule on these arguments.
Government. (Emphasis supplied)

Declaration of Principles
When substantive standards as general as "the right to a
Not Self-Executing
balanced and healthy ecology" and "the right to health" are
combined with remedial standards as broad ranging as "a grave
By its very title, Article II of the Constitution is a "declaration of abuse of discretion amounting to lack or excess of jurisdiction,"
principles and state policies." The counterpart of this article in the 1935 the result will be, it is respectfully submitted, to propel courts into
Constitution 21 is called the "basic political creed of the nation" by Dean the uncharted ocean of social and economic policy making. At
Vicente Sinco. 22 These principles in Article II are not intended to be least in respect of the vast area of environmental protection and
self-executing principles ready for enforcement through the management, our courts have no claim to special technical
9
competence and experience and professional qualification. Where provisions in the Constitution to allow the Senate to ratify the Philippine
no specific, operable norms and standards are shown to exist, concurrence in the WTO Agreement. And we hold that there are.
then the policy making departments — the legislative and
executive departments — must be given a real and effective
All told, while the Constitution indeed mandates a bias in favor of
opportunity to fashion and promulgate those norms and
Filipino goods, services, labor and enterprises, at the same time, it
standards, and to implement them before the courts should
recognizes the need for business exchange with the rest of the world
intervene.
on the bases of equality and reciprocity and limits protection of Filipino
enterprises only against foreign competition and trade practices that
Economic Nationalism Should Be Read with Other are unfair. 32 In other words, the Constitution did not intend to pursue
Constitutional Mandates to Attain Balanced Development of an isolationist policy. It did not shut out foreign investments, goods and
Economy services in the development of the Philippine economy. While the
Constitution does not encourage the unlimited entry of foreign goods,
services and investments into the country, it does not prohibit them
On the other hand, Secs. 10 and 12 of Article XII, apart from merely
either. In fact, it allows an exchange on the basis of equality and
laying down general principles relating to the national economy and
reciprocity, frowning only on foreign competition that is unfair.
patrimony, should be read and understood in relation to the other
sections in said article, especially Secs. 1 and 13 thereof which read:
WTO Recognizes Need to
Protect Weak Economies
Sec. 1. The goals of the national economy are a more equitable
distribution of opportunities, income, and wealth; a sustained
increase in the amount of goods and services produced by the Upon the other hand, respondents maintain that the WTO itself has
nation for the benefit of the people; and an expanding productivity some built-in advantages to protect weak and developing economies,
as the key to raising the quality of life for all especially the which comprise the vast majority of its members. Unlike in the UN
underprivileged. where major states have permanent seats and veto powers in the
Security Council, in the WTO, decisions are made on the basis of
sovereign equality, with each member's vote equal in weight to that of
The State shall promote industrialization and full employment
any other. There is no WTO equivalent of the UN Security Council.
based on sound agricultural development and agrarian reform,
through industries that make full and efficient use of human and
natural resources, and which are competitive in both domestic WTO decides by consensus whenever possible, otherwise,
and foreign markets. However, the State shall protect Filipino decisions of the Ministerial Conference and the General Council
enterprises against unfair foreign competition and trade practices. shall be taken by the majority of the votes cast, except in cases of
interpretation of the Agreement or waiver of the obligation of a
member which would require three fourths vote. Amendments
In the pursuit of these goals, all sectors of the economy and all
would require two thirds vote in general. Amendments to MFN
regions of the country shall be given optimum opportunity to
provisions and the Amendments provision will require assent of all
develop. . . .
members. Any member may withdraw from the Agreement upon
the expiration of six months from the date of notice of
xxx xxx xxx withdrawals. 33

Sec. 13. The State shall pursue a trade policy that serves the Hence, poor countries can protect their common interests more
general welfare and utilizes all forms and arrangements of effectively through the WTO than through one-on-one negotiations with
exchange on the basis of equality and reciprocity. developed countries. Within the WTO, developing countries can form
powerful blocs to push their economic agenda more decisively than
outside the Organization. This is not merely a matter of practical
As pointed out by the Solicitor General, Sec. 1 lays down the basic alliances but a negotiating strategy rooted in law. Thus, the basic
goals of national economic development, as follows: principles underlying the WTO Agreement recognize the need of
developing countries like the Philippines to "share in the growth in
1. A more equitable distribution of opportunities, income and wealth; international trade commensurate with the needs of their economic
development." These basic principles are found in the preamble 34 of
the WTO Agreement as follows:
2. A sustained increase in the amount of goods and services provided
by the nation for the benefit of the people; and
The Parties to this Agreement,
3. An expanding productivity as the key to raising the quality of life for
all especially the underprivileged. Recognizing that their relations in the field of trade and economic
endeavour should be conducted with a view to raising standards
of living, ensuring full employment and a large and steadily
With these goals in context, the Constitution then ordains the ideals of growing volume of real income and effective demand, and
economic nationalism (1) by expressing preference in favor of qualified expanding the production of and trade in goods and services,
Filipinos "in the grant of rights, privileges and concessions covering the while allowing for the optimal use of the world's resources in
national economy and patrimony" 27 and in the use of "Filipino labor, accordance with the objective of sustainable development,
domestic materials and locally-produced goods"; (2) by mandating the seeking both to protect and preserve the environment and to
State to "adopt measures that help make them competitive; 28 and (3) enhance the means for doing so in a manner consistent with their
by requiring the State to "develop a self-reliant and independent respective needs and concerns at different levels of economic
national economy effectively controlled by Filipinos." 29 In similar development,
language, the Constitution takes into account the realities of the
outside world as it requires the pursuit of "a trade policy that serves the
general welfare and utilizes all forms and arrangements of exchange Recognizing further that there is need for positive efforts designed
on the basis of equality ad reciprocity"; 30 and speaks of industries to ensure that developing countries, and especially the least
"which are competitive in both domestic and foreign markets" as well developed among them, secure a share in the growth in
as of the protection of "Filipino enterprises against unfair foreign international trade commensurate with the needs of their
competition and trade practices." economic development,

It is true that in the recent case of Manila Prince Hotel vs. Government Being desirous of contributing to these objectives by entering into
Service Insurance System, et al., 31 this Court held that "Sec. 10, reciprocal and mutually advantageous arrangements directed to
second par., Art. XII of the 1987 Constitution is a mandatory, positive the substantial reduction of tariffs and other barriers to trade and
command which is complete in itself and which needs no further to the elimination of discriminatory treatment in international trade
guidelines or implementing laws or rule for its enforcement. From its relations,
very words the provision does not require any legislation to put it in
operation. It is per se judicially enforceable." However, as the Resolved, therefore, to develop an integrated, more viable and
constitutional provision itself states, it is enforceable only in regard to
durable multilateral trading system encompassing the General
"the grants of rights, privileges and concessions covering national Agreement on Tariffs and Trade, the results of past trade
economy and patrimony" and not to every aspect of trade and liberalization efforts, and all of the results of the Uruguay Round
commerce. It refers to exceptions rather than the rule. The issue here
of Multilateral Trade Negotiations,
is not whether this paragraph of Sec. 10 of Art. XII is self-executing or
not. Rather, the issue is whether, as a rule, there are enough balancing

10
Determined to preserve the basic principles and to further the have demonstrated the Filipino capacity to grow and to prosper against
objectives underlying this multilateral trading system, . . . the best offered under a policy of laissez faire.
(emphasis supplied.)
Constitution Favors Consumers,
Specific WTO Provisos Not Industries or Enterprises
Protect Developing Countries
The Constitution has not really shown any unbalanced bias in favor of
So too, the Solicitor General points out that pursuant to and consistent any business or enterprise, nor does it contain any specific
with the foregoing basic principles, the WTO Agreement grants pronouncement that Filipino companies should be pampered with a
developing countries a more lenient treatment, giving their domestic total proscription of foreign competition. On the other hand,
industries some protection from the rush of foreign competition. Thus, respondents claim that WTO/GATT aims to make available to the
with respect to tariffs in general, preferential treatment is given to Filipino consumer the best goods and services obtainable anywhere in
developing countries in terms of the amount of tariff reduction and the world at the most reasonable prices. Consequently, the question
the period within which the reduction is to be spread out. Specifically, boils down to whether WTO/GATT will favor the general welfare of the
GATT requires an average tariff reduction rate of 36% for developed public at large.
countries to be effected within a period of six (6) years while
developing countries — including the Philippines — are required to
Will adherence to the WTO treaty bring this ideal (of favoring the
effect an average tariff reduction of only 24% within ten (10) years.
general welfare) to reality?

In respect to domestic subsidy, GATT requires developed countries to


Will WTO/GATT succeed in promoting the Filipinos' general welfare
reduce domestic support to agricultural products by 20% over six (6)
because it will — as promised by its promoters — expand the country's
years, as compared to only 13% for developing countries to be
exports and generate more employment?
effected within ten (10) years.

Will it bring more prosperity, employment, purchasing power and


In regard to export subsidy for agricultural products, GATT requires
quality products at the most reasonable rates to the Filipino public?
developed countries to reduce their budgetary outlays for export
subsidy by 36% and export volumes receiving export subsidy by 21%
within a period of six (6) years. For developing countries, however, the The responses to these questions involve "judgment calls" by our
reduction rate is only two-thirds of that prescribed for developed policy makers, for which they are answerable to our people during
countries and a longer period of ten (10) years within which to effect appropriate electoral exercises. Such questions and the answers
such reduction. thereto are not subject to judicial pronouncements based on grave
abuse of discretion.
Moreover, GATT itself has provided built-in protection from unfair
foreign competition and trade practices including anti-dumping Constitution Designed to Meet
measures, countervailing measures and safeguards against import Future Events and Contingencies
surges. Where local businesses are jeopardized by unfair foreign
competition, the Philippines can avail of these measures. There is
hardly therefore any basis for the statement that under the WTO, local No doubt, the WTO Agreement was not yet in existence when the
industries and enterprises will all be wiped out and that Filipinos will be Constitution was drafted and ratified in 1987. That does not mean
however that the Charter is necessarily flawed in the sense that its
deprived of control of the economy. Quite the contrary, the weaker
situations of developing nations like the Philippines have been taken framers might not have anticipated the advent of a borderless world of
into account; thus, there would be no basis to say that in joining the business. By the same token, the United Nations was not yet in
existence when the 1935 Constitution became effective. Did that
WTO, the respondents have gravely abused their discretion. True, they
have made a bold decision to steer the ship of state into the yet necessarily mean that the then Constitution might not have
uncharted sea of economic liberalization. But such decision cannot be contemplated a diminution of the absoluteness of sovereignty when the
Philippines signed the UN Charter, thereby effectively surrendering
set aside on the ground of grave abuse of discretion, simply because
we disagree with it or simply because we believe only in other part of its control over its foreign relations to the decisions of various
economic policies. As earlier stated, the Court in taking jurisdiction of UN organs like the Security Council?
this case will not pass upon the advantages and disadvantages of
trade liberalization as an economic policy. It will only perform its It is not difficult to answer this question. Constitutions are designed to
constitutional duty of determining whether the Senate committed grave meet not only the vagaries of contemporary events. They should be
abuse of discretion. interpreted to cover even future and unknown circumstances. It is to
the credit of its drafters that a Constitution can withstand the assaults
Constitution Does Not of bigots and infidels but at the same time bend with the refreshing
winds of change necessitated by unfolding events. As one eminent
Rule Out Foreign Competition
political law writer and respected jurist 38 explains:

Furthermore, the constitutional policy of a "self-reliant and independent


national economy" 35 does not necessarily rule out the entry of foreign The Constitution must be quintessential rather than superficial,
investments, goods and services. It contemplates neither "economic the root and not the blossom, the base and frame-work only of the
seclusion" nor "mendicancy in the international community." As edifice that is yet to rise. It is but the core of the dream that must
take shape, not in a twinkling by mandate of our delegates, but
explained by Constitutional Commissioner Bernardo Villegas, sponsor
of this constitutional policy: slowly "in the crucible of Filipino minds and hearts," where it will in
time develop its sinews and gradually gather its strength and
finally achieve its substance. In fine, the Constitution cannot, like
Economic self-reliance is a primary objective of a developing the goddess Athena, rise full-grown from the brow of the
country that is keenly aware of overdependence on external Constitutional Convention, nor can it conjure by mere fiat an
assistance for even its most basic needs. It does not mean instant Utopia. It must grow with the society it seeks to re-
autarky or economic seclusion; rather, it means avoiding structure and march apace with the progress of the race, drawing
mendicancy in the international community. Independence refers from the vicissitudes of history the dynamism and vitality that will
to the freedom from undue foreign control of the national keep it, far from becoming a petrified rule, a pulsing, living law
economy, especially in such strategic industries as in the attuned to the heartbeat of the nation.
development of natural resources and public utilities. 36
Third Issue: The WTO Agreement and Legislative Power
The WTO reliance on "most favored nation," "national treatment," and
"trade without discrimination" cannot be struck down as
unconstitutional as in fact they are rules of equality and reciprocity that The WTO Agreement provides that "(e)ach Member shall ensure the
apply to all WTO members. Aside from envisioning a trade policy conformity of its laws, regulations and administrative procedures with
based on "equality and reciprocity," 37 the fundamental law encourages its obligations as provided in the annexed Agreements." 39 Petitioners
maintain that this undertaking "unduly limits, restricts and impairs
industries that are "competitive in both domestic and foreign markets,"
thereby demonstrating a clear policy against a sheltered domestic Philippine sovereignty, specifically the legislative power which under
trade environment, but one in favor of the gradual development of Sec. 2, Article VI of the 1987 Philippine Constitution is vested in the
Congress of the Philippines. It is an assault on the sovereign powers of
robust industries that can compete with the best in the foreign markets.
Indeed, Filipino managers and Filipino enterprises have shown the Philippines because this means that Congress could not pass
capability and tenacity to compete internationally. And given a free legislation that will be good for our national interest and general
welfare if such legislation will not conform with the WTO Agreement,
trade environment, Filipino entrepreneurs and managers in Hongkong
which not only relates to the trade in goods . . . but also to the flow of
11
investments and money . . . as well as to a whole slew of agreements the Charter. A final example: under Article 103, "(i)n the event of a
on socio-cultural matters . . . 40 conflict between the obligations of the Members of the United Nations
under the present Charter and their obligations under any other
international agreement, their obligation under the present charter shall
More specifically, petitioners claim that said WTO proviso derogates
prevail," thus unquestionably denying the Philippines — as a member
from the power to tax, which is lodged in the Congress. 41 And while
— the sovereign power to make a choice as to which of conflicting
the Constitution allows Congress to authorize the President to fix tariff
obligations, if any, to honor.
rates, import and export quotas, tonnage and wharfage dues, and
other duties or imposts, such authority is subject to "specified limits
and . . . such limitations and restrictions" as Congress may Apart from the UN Treaty, the Philippines has entered into many other
provide, 42 as in fact it did under Sec. 401 of the Tariff and Customs international pacts — both bilateral and multilateral — that involve
Code. limitations on Philippine sovereignty. These are enumerated by the
Solicitor General in his Compliance dated October 24, 1996, as
follows:
Sovereignty Limited by
International Law and Treaties
(a) Bilateral convention with the United States regarding taxes on
income, where the Philippines agreed, among others, to exempt
This Court notes and appreciates the ferocity and passion by which
from tax, income received in the Philippines by, among others, the
petitioners stressed their arguments on this issue. However, while
Federal Reserve Bank of the United States, the Export/Import
sovereignty has traditionally been deemed absolute and all-
Bank of the United States, the Overseas Private Investment
encompassing on the domestic level, it is however subject to
Corporation of the United States. Likewise, in said convention,
restrictions and limitations voluntarily agreed to by the Philippines,
wages, salaries and similar remunerations paid by the United
expressly or impliedly, as a member of the family of nations.
States to its citizens for labor and personal services performed by
Unquestionably, the Constitution did not envision a hermit-type
them as employees or officials of the United States are exempt
isolation of the country from the rest of the world. In its Declaration of
from income tax by the Philippines.
Principles and State Policies, the Constitution "adopts the generally
accepted principles of international law as part of the law of the land,
and adheres to the policy of peace, equality, justice, freedom, (b) Bilateral agreement with Belgium, providing, among others, for
cooperation and amity, with all nations." 43 By the doctrine of the avoidance of double taxation with respect to taxes on income.
incorporation, the country is bound by generally accepted principles of
international law, which are considered to be automatically part of our
(c) Bilateral convention with the Kingdom of Sweden for the
own laws. 44 One of the oldest and most fundamental rules in
avoidance of double taxation.
international law is pacta sunt servanda — international agreements
must be performed in good faith. "A treaty engagement is not a mere
moral obligation but creates a legally binding obligation on the parties . (d) Bilateral convention with the French Republic for the
. . A state which has contracted valid international obligations is bound avoidance of double taxation.
to make in its legislations such modifications as may be necessary to
ensure the fulfillment of the obligations undertaken." 45
(e) Bilateral air transport agreement with Korea where the
Philippines agreed to exempt from all customs duties, inspection
By their inherent nature, treaties really limit or restrict the absoluteness fees and other duties or taxes aircrafts of South Korea and the
of sovereignty. By their voluntary act, nations may surrender some regular equipment, spare parts and supplies arriving with said
aspects of their state power in exchange for greater benefits granted aircrafts.
by or derived from a convention or pact. After all, states, like
individuals, live with coequals, and in pursuit of mutually covenanted
(f) Bilateral air service agreement with Japan, where the
objectives and benefits, they also commonly agree to limit the exercise
of their otherwise absolute rights. Thus, treaties have been used to Philippines agreed to exempt from customs duties, excise taxes,
record agreements between States concerning such widely diverse inspection fees and other similar duties, taxes or charges fuel,
lubricating oils, spare parts, regular equipment, stores on board
matters as, for example, the lease of naval bases, the sale or cession
of territory, the termination of war, the regulation of conduct of Japanese aircrafts while on Philippine soil.
hostilities, the formation of alliances, the regulation of commercial
relations, the settling of claims, the laying down of rules governing (g) Bilateral air service agreement with Belgium where the
conduct in peace and the establishment of international Philippines granted Belgian air carriers the same privileges as
organizations.46 The sovereignty of a state therefore cannot in fact and those granted to Japanese and Korean air carriers under
in reality be considered absolute. Certain restrictions enter into the separate air service agreements.
picture: (1) limitations imposed by the very nature of membership in the
family of nations and (2) limitations imposed by treaty stipulations. As
aptly put by John F. Kennedy, "Today, no nation can build its destiny (h) Bilateral notes with Israel for the abolition of transit and visitor
alone. The age of self-sufficient nationalism is over. The age of visas where the Philippines exempted Israeli nationals from the
interdependence is here." 47 requirement of obtaining transit or visitor visas for a sojourn in the
Philippines not exceeding 59 days.

UN Charter and Other Treaties


Limit Sovereignty (i) Bilateral agreement with France exempting French nationals
from the requirement of obtaining transit and visitor visa for a
sojourn not exceeding 59 days.
Thus, when the Philippines joined the United Nations as one of its 51
charter members, it consented to restrict its sovereign rights under the
"concept of sovereignty as auto-limitation." 47-A Under Article 2 of the (j) Multilateral Convention on Special Missions, where the
UN Charter, "(a)ll members shall give the United Nations every Philippines agreed that premises of Special Missions in the
assistance in any action it takes in accordance with the present Philippines are inviolable and its agents can not enter said
Charter, and shall refrain from giving assistance to any state against premises without consent of the Head of Mission concerned.
which the United Nations is taking preventive or enforcement action." Special Missions are also exempted from customs duties, taxes
Such assistance includes payment of its corresponding share not and related charges.
merely in administrative expenses but also in expenditures for the
peace-keeping operations of the organization. In its advisory opinion of (k) Multilateral convention on the Law of Treaties. In this
July 20, 1961, the International Court of Justice held that money used convention, the Philippines agreed to be governed by the Vienna
by the United Nations Emergency Force in the Middle East and in the Convention on the Law of Treaties.
Congo were "expenses of the United Nations" under Article 17,
paragraph 2, of the UN Charter. Hence, all its members must bear their
corresponding share in such expenses. In this sense, the Philippine (l) Declaration of the President of the Philippines accepting
Congress is restricted in its power to appropriate. It is compelled to compulsory jurisdiction of the International Court of Justice. The
appropriate funds whether it agrees with such peace-keeping International Court of Justice has jurisdiction in all legal disputes
expenses or not. So too, under Article 105 of the said Charter, the UN concerning the interpretation of a treaty, any question of
and its representatives enjoy diplomatic privileges and immunities, international law, the existence of any fact which, if established,
thereby limiting again the exercise of sovereignty of members within would constitute a breach "of international obligation."
their own territory. Another example: although "sovereign equality" and
"domestic jurisdiction" of all members are set forth as underlying In the foregoing treaties, the Philippines has effectively agreed to limit
principles in the UN Charter, such provisos are however subject to the exercise of its sovereign powers of taxation, eminent domain and
enforcement measures decided by the Security Council for the police power. The underlying consideration in this partial surrender of
maintenance of international peace and security under Chapter VII of sovereignty is the reciprocal commitment of the other contracting
12
states in granting the same privilege and immunities to the Philippines, "substantial likelihood" that the identical product was made with the
its officials and its citizens. The same reciprocity characterizes the use of the said patented process but the owner of the patent could not
Philippine commitments under WTO-GATT. determine the exact process used in obtaining such identical product.
Hence, the "burden of proof" contemplated by Article 34 should
actually be understood as the duty of the alleged patent infringer to
International treaties, whether relating to nuclear
overthrow such presumption. Such burden, properly understood,
disarmament, human rights, the environment, the
actually refers to the "burden of evidence" (burden of going forward)
law of the sea, or trade, constrain domestic
placed on the producer of the identical (or fake) product to show that
political sovereignty through the assumption of
his product was produced without the use of the patented process.
external obligations. But unless anarchy in
international relations is preferred as an
alternative, in most cases we accept that the The foregoing notwithstanding, the patent owner still has the "burden
benefits of the reciprocal obligations involved of proof" since, regardless of the presumption provided under
outweigh the costs associated with any loss of paragraph 1 of Article 34, such owner still has to introduce evidence of
political sovereignty. (T)rade treaties that structure the existence of the alleged identical product, the fact that it is
relations by reference to durable, well-defined "identical" to the genuine one produced by the patented process and
substantive norms and objective dispute resolution the fact of "newness" of the genuine product or the fact of "substantial
procedures reduce the risks of larger countries likelihood" that the identical product was made by the patented
exploiting raw economic power to bully smaller process.
countries, by subjecting power relations to some
form of legal ordering. In addition, smaller
The foregoing should really present no problem in changing the rules
countries typically stand to gain disproportionately
of evidence as the present law on the subject, Republic Act No. 165,
from trade liberalization. This is due to the simple
as amended, otherwise known as the Patent Law, provides a similar
fact that liberalization will provide access to a
presumption in cases of infringement of patented design or utility
larger set of potential new trading relationship than
model, thus:
in case of the larger country gaining enhanced
success to the smaller country's market. 48
Sec. 60. Infringement. — Infringement of a design patent or of a
patent for utility model shall consist in unauthorized copying of the
The point is that, as shown by the foregoing treaties, a portion of
patented design or utility model for the purpose of trade or
sovereignty may be waived without violating the Constitution, based on
industry in the article or product and in the making, using or
the rationale that the Philippines "adopts the generally accepted
selling of the article or product copying the patented design or
principles of international law as part of the law of the land and
utility model. Identity or substantial identity with the patented
adheres to the policy of . . . cooperation and amity with all nations."
design or utility model shall constitute evidence of copying.
(emphasis supplied)
Fourth Issue: The WTO Agreement and Judicial Power
Moreover, it should be noted that the requirement of Article 34 to
Petitioners aver that paragraph 1, Article 34 of the General Provisions provide a disputable presumption applies only if (1) the product
and Basic Principles of the Agreement on Trade-Related Aspects of obtained by the patented process in NEW or (2) there is a substantial
Intellectual Property Rights (TRIPS) 49 intrudes on the power of the likelihood that the identical product was made by the process and the
Supreme Court to promulgate rules concerning pleading, practice and process owner has not been able through reasonable effort to
procedures. 50 determine the process used. Where either of these two provisos does
not obtain, members shall be free to determine the appropriate method
51 of implementing the provisions of TRIPS within their own internal
To understand the scope and meaning of Article 34, TRIPS, it will be
systems and processes.
fruitful to restate its full text as follows:

By and large, the arguments adduced in connection with our


Article 34
disposition of the third issue — derogation of legislative power — will
apply to this fourth issue also. Suffice it to say that the reciprocity
Process Patents: Burden of Proof clause more than justifies such intrusion, if any actually exists.
Besides, Article 34 does not contain an unreasonable burden,
consistent as it is with due process and the concept of adversarial
1. For the purposes of civil proceedings in respect of the dispute settlement inherent in our judicial system.
infringement of the rights of the owner referred to in paragraph 1
(b) of Article 28, if the subject matter of a patent is a process for
obtaining a product, the judicial authorities shall have the authority So too, since the Philippine is a signatory to most international
to order the defendant to prove that the process to obtain an conventions on patents, trademarks and copyrights, the adjustment in
identical product is different from the patented process. Therefore, legislation and rules of procedure will not be substantial. 52
Members shall provide, in at least one of the following
circumstances, that any identical product when produced without
Fifth Issue: Concurrence Only in the WTO Agreement and
the consent of the patent owner shall, in the absence of proof to
Not in Other Documents Contained in the Final Act
the contrary, be deemed to have been obtained by the patented
process:
Petitioners allege that the Senate concurrence in the WTO Agreement
and its annexes — but not in the other documents referred to in the
(a) if the product obtained by the patented process is new;
Final Act, namely the Ministerial Declaration and Decisions and the
Understanding on Commitments in Financial Services — is defective
(b) if there is a substantial likelihood that the identical and insufficient and thus constitutes abuse of discretion. They submit
product was made by the process and the owner of the that such concurrence in the WTO Agreement alone is flawed because
patent has been unable through reasonable efforts to it is in effect a rejection of the Final Act, which in turn was the
determine the process actually used. document signed by Secretary Navarro, in representation of the
Republic upon authority of the President. They contend that the
second letter of the President to the Senate 53 which enumerated what
2. Any Member shall be free to provide that the burden of proof
constitutes the Final Act should have been the subject of concurrence
indicated in paragraph 1 shall be on the alleged infringer only if of the Senate.
the condition referred to in subparagraph (a) is fulfilled or only if
the condition referred to in subparagraph (b) is fulfilled.
"A final act, sometimes called protocol de cloture, is an instrument
which records the winding up of the proceedings of a diplomatic
3. In the adduction of proof to the contrary, the legitimate conference and usually includes a reproduction of the texts of treaties,
interests of defendants in protecting their manufacturing and conventions, recommendations and other acts agreed upon and
business secrets shall be taken into account. signed by the plenipotentiaries attending the conference." 54 It is not
the treaty itself. It is rather a summary of the proceedings of a
From the above, a WTO Member is required to provide a rule of protracted conference which may have taken place over several years.
disputable (not the words "in the absence of proof to the contrary") The text of the "Final Act Embodying the Results of the Uruguay
presumption that a product shown to be identical to one produced with Round of Multilateral Trade Negotiations" is contained in just one
the use of a patented process shall be deemed to have been obtained page 55 in Vol. I of the 36-volume Uruguay Round of Multilateral Trade
by the (illegal) use of the said patented process, (1) where such Negotiations. By signing said Final Act, Secretary Navarro as
product obtained by the patented product is new, or (2) where there is representative of the Republic of the Philippines undertook:

13
(a) to submit, as appropriate, the WTO Agreement for the being in the nature of briefings for Senators until the question
consideration of their respective competent authorities with a view of the submission could be clarified.
to seeking approval of the Agreement in accordance with their
procedures; and
And so, Secretary Romulo, in effect, is the President submitting
a new . . . is he making a new submission which improves on
(b) to adopt the Ministerial Declarations and Decisions. the clarity of the first submission?

The assailed Senate Resolution No. 97 expressed concurrence in MR. ROMULO: Mr. Chairman, to make sure that it is clear cut
exactly what the Final Act required from its signatories, namely, and there should be no misunderstanding, it was his intention
concurrence of the Senate in the WTO Agreement. to clarify all matters by giving this letter.

The Ministerial Declarations and Decisions were deemed adopted THE CHAIRMAN: Thank you.
without need for ratification. They were approved by the ministers by
virtue of Article XXV: 1 of GATT which provides that representatives of
Can this Committee hear from Senator Tañada and later on
the members can meet "to give effect to those provisions of this
Senator Tolentino since they were the ones that raised this
Agreement which invoke joint action, and generally with a view to
question yesterday?
facilitating the operation and furthering the objectives of this
Agreement." 56
Senator Tañada, please.
The Understanding on Commitments in Financial Services also
approved in Marrakesh does not apply to the Philippines. It applies SEN. TAÑADA: Thank you, Mr. Chairman.
only to those 27 Members which "have indicated in their respective
schedules of commitments on standstill, elimination of monopoly,
expansion of operation of existing financial service suppliers, Based on what Secretary Romulo has read, it would now
clearly appear that what is being submitted to the Senate for
temporary entry of personnel, free transfer and processing of
information, and national treatment with respect to access to payment, ratification is not the Final Act of the Uruguay Round, but rather
clearing systems and refinancing available in the normal course of the Agreement on the World Trade Organization as well as the
business." 57 Ministerial Declarations and Decisions, and the Understanding
and Commitments in Financial Services.

On the other hand, the WTO Agreement itself expresses what


multilateral agreements are deemed included as its integral parts, 58 as I am now satisfied with the wording of the new submission of
follows: President Ramos.

SEN. TAÑADA. . . . of President Ramos, Mr. Chairman.


Article II

Scope of the WTO THE CHAIRMAN. Thank you, Senator Tañada. Can we hear
from Senator Tolentino? And after him Senator Neptali
Gonzales and Senator Lina.
1. The WTO shall provide the common institutional frame-work
for the conduct of trade relations among its Members in matters
SEN. TOLENTINO, Mr. Chairman, I have not seen the new
to the agreements and associated legal instruments included in
the Annexes to this Agreement. submission actually transmitted to us but I saw the draft of his
earlier, and I think it now complies with the provisions of the
Constitution, and with the Final Act itself . The Constitution
2. The Agreements and associated legal instruments included does not require us to ratify the Final Act. It requires us to ratify
in Annexes 1, 2, and 3, (hereinafter referred to as "Multilateral the Agreement which is now being submitted. The Final Act
Agreements") are integral parts of this Agreement, binding on itself specifies what is going to be submitted to with the
all Members. governments of the participants.

3. The Agreements and associated legal instruments included In paragraph 2 of the Final Act, we read and I quote:
in Annex 4 (hereinafter referred to as "Plurilateral Trade
Agreements") are also part of this Agreement for those
Members that have accepted them, and are binding on those By signing the present Final Act, the representatives agree: (a)
to submit as appropriate the WTO Agreement for the
Members. The Plurilateral Trade Agreements do not create
either obligation or rights for Members that have not accepted consideration of the respective competent authorities with a
them. view to seeking approval of the Agreement in accordance with
their procedures.

4. The General Agreement on Tariffs and Trade 1994 as


specified in annex 1A (hereinafter referred to as "GATT 1994") In other words, it is not the Final Act that was agreed to be
submitted to the governments for ratification or acceptance as
is legally distinct from the General Agreement on Tariffs and
Trade, dated 30 October 1947, annexed to the Final Act whatever their constitutional procedures may provide but it is
adopted at the conclusion of the Second Session of the the World Trade Organization Agreement. And if that is the one
that is being submitted now, I think it satisfies both the
Preparatory Committee of the United Nations Conference on
Trade and Employment, as subsequently rectified, amended or Constitution and the Final Act itself .
modified (hereinafter referred to as "GATT 1947").
Thank you, Mr. Chairman.
It should be added that the Senate was well-aware of what it was
concurring in as shown by the members' deliberation on August 25, THE CHAIRMAN. Thank you, Senator Tolentino, May I call on
1994. After reading the letter of President Ramos dated August 11, Senator Gonzales.
1994, 59 the senators
of the Republic minutely dissected what the Senate was concurring in,
as follows: 60 SEN. GONZALES. Mr. Chairman, my views on this matter are
already a matter of record. And they had been adequately
reflected in the journal of yesterday's session and I don't see
THE CHAIRMAN: Yes. Now, the question of the validity of the any need for repeating the same.
submission came up in the first day hearing of this Committee
yesterday. Was the observation made by Senator Tañada that
what was submitted to the Senate was not the agreement on Now, I would consider the new submission as an act ex
establishing the World Trade Organization by the final act of abudante cautela.
the Uruguay Round which is not the same as the agreement
establishing the World Trade Organization? And on that basis, THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina,
Senator Tolentino raised a point of order which, however, he do you want to make any comment on this?
agreed to withdraw upon understanding that his suggestion for
an alternative solution at that time was acceptable. That
suggestion was to treat the proceedings of the Committee as SEN. LINA. Mr. President, I agree with the observation just
made by Senator Gonzales out of the abundance of
14
question. Then the new submission is, I believe, stating the WTO remains as the only viable structure for multilateral trading and
obvious and therefore I have no further comment to make. the veritable forum for the development of international trade law. The
alternative to WTO is isolation, stagnation, if not economic self-
destruction. Duly enriched with original membership, keenly aware of
Epilogue
the advantages and disadvantages of globalization with its on-line
experience, and endowed with a vision of the future, the Philippines
In praying for the nullification of the Philippine ratification of the WTO now straddles the crossroads of an international strategy for economic
Agreement, petitioners are invoking this Court's constitutionally prosperity and stability in the new millennium. Let the people, through
imposed duty "to determine whether or not there has been grave their duly authorized elected officers, make their free choice.
abuse of discretion amounting to lack or excess of jurisdiction" on the
part of the Senate in giving its concurrence therein via Senate
WHEREFORE, the petition is DISMISSED for lack of merit. SO
Resolution No. 97. Procedurally, a writ of certiorari grounded on grave
ORDERED.
abuse of discretion may be issued by the Court under Rule 65 of the
Rules of Court when it is amply shown that petitioners have no other
plain, speedy and adequate remedy in the ordinary course of law.

By grave abuse of discretion is meant such capricious and whimsical G.R. No. 134015 July 19, 1999
exercise of judgment as is equivalent to lack of jurisdiction. 61 Mere
abuse of discretion is not enough. It must be grave abuse of discretion
as when the power is exercised in an arbitrary or despotic manner by JUAN DOMINO vs. COMMISSION ON ELECTIONS
reason of passion or personal hostility, and must be so patent and so
gross as to amount to an evasion of a positive duty or to a virtual DAVIDE, JR., CJ.:
refusal to perform the duty enjoined or to act at all in contemplation of
law. 62 Failure on the part of the petitioner to show grave abuse of
discretion will result in the dismissal of the petition. 63 Challenged in this case for certiorari with a prayer for preliminary
injunction are the Resolution of 6 May 1998 1 of the Second Division of
the Commission on Elections (hereafter COMELEC), declaring
In rendering this Decision, this Court never forgets that the Senate, petitioner Juan Domino (hereafter DOMINO) disqualified as candidate
whose act is under review, is one of two sovereign houses of Congress for representative of the Lone Legislative District of the Province of
and is thus entitled to great respect in its actions. It is itself a Sarangani in the 11 May 1998 elections, and the Decision of 29 May
constitutional body independent and coordinate, and thus its actions 1998 2 of the COMELEC en banc denying DOMINO's motion for
are presumed regular and done in good faith. Unless convincing proof reconsideration.
and persuasive arguments are presented to overthrow such
presumptions, this Court will resolve every doubt in its favor. Using the
foregoing well-accepted definition of grave abuse of discretion and the The antecedents are not disputed.1âwphi1.nêt
presumption of regularity in the Senate's processes, this Court cannot
find any cogent reason to impute grave abuse of discretion to the On 25 March 1998, DOMINO filed his certificate of candidacy for the
Senate's exercise of its power of concurrence in the WTO Agreement position of Representative of the Lone Legislative District of the
granted it by Sec. 21 of Article VII of the Constitution. 64 Province of Sarangani indicating in item nine (9) of his certificate that
he had resided in the constituency where he seeks to be elected for
It is true, as alleged by petitioners, that broad constitutional principles one (1) year and two (2) months immediately preceding the election. 3
require the State to develop an independent national economy
effectively controlled by Filipinos; and to protect and/or prefer Filipino On 30 March 1998, private respondents Narciso Ra. Grafilo, Jr., Eddy
labor, products, domestic materials and locally produced goods. But it B. Java, Juan P. Bayonito, Jr., Rosario Samson and Dionisio P. Lim,
is equally true that such principles — while serving as judicial and Sr., fied with the COMELEC a Petition to Deny Due Course to or
legislative guides — are not in themselves sources of causes of action. Cancel Certificate of Candidacy, which was docketed as SPA No. 98-
Moreover, there are other equally fundamental constitutional principles 022 and assigned to the Second Division of the COMELEC. Private
relied upon by the Senate which mandate the pursuit of a "trade policy respondents alleged that DOMINO, contrary to his declaration in the
that serves the general welfare and utilizes all forms and arrangements certificate of candidacy, is not a resident, much less a registered voter,
of exchange on the basis of equality and reciprocity" and the promotion of the province of Sarangani where he seeks election. To substantiate
of industries "which are competitive in both domestic and foreign their allegations, private respondents presented the following evidence:
markets," thereby justifying its acceptance of said treaty. So too, the
alleged impairment of sovereignty in the exercise of legislative and
judicial powers is balanced by the adoption of the generally accepted 1. Annex "A" — the Certificate of Candidacy of respondent for the
principles of international law as part of the law of the land and the position of Congressman of the Lone District of the Province of
adherence of the Constitution to the policy of cooperation and amity Sarangani filed with the Office of the Provincial Election
with all nations. Supervisor of Sarangani on March 25, 1998, where in item 4
thereof he wrote his date of birth as December 5, 1953; in item 9,
he claims he have resided in the constituency where he seeks
That the Senate, after deliberation and voting, voluntarily and election for one (1) year and two (2) months; and, in item 10, that
overwhelmingly gave its consent to the WTO Agreement thereby he is registered voter of Precinct No. 14A-1, Barangay Poblacion,
making it "a part of the law of the land" is a legitimate exercise of its Alabel, Sarangani;
sovereign duty and power. We find no "patent and gross" arbitrariness
or despotism "by reason of passion or personal hostility" in such
exercise. It is not impossible to surmise that this Court, or at least 2. Annex "B" — Voter's Registration Record with SN 31326504
some of its members, may even agree with petitioners that it is more dated June 22, 1997 indicating respondent's registration at
advantageous to the national interest to strike down Senate Resolution Precinct No. 4400-A, Old Balara, Quezon City;
No. 97. But that is not a legal reason to attribute grave abuse of
discretion to the Senate and to nullify its decision. To do so would 3. Annex "C" — Respondent's Community Tax Certificate No.
constitute grave abuse in the exercise of our own judicial power and 11132214C dated January 15, 1997;
duty. Ineludably, what the Senate did was a valid exercise of its
authority. As to whether such exercise was wise, beneficial or viable is
outside the realm of judicial inquiry and review. That is a matter 4. Annex "D" — Certified true copy of the letter of Herson D.
between the elected policy makers and the people. As to whether the Dema-ala, Deputy Provincial & Municipal Treasurer of Alabel,
nation should join the worldwide march toward trade liberalization and Sarangani, dated February 26, 1998, addressed to Mr. Conrado
economic globalization is a matter that our people should determine in G. Butil, which reads:
electing their policy makers. After all, the WTO Agreement allows
withdrawal of membership, should this be the political desire of a
In connection with your letter of even date, we are furnishing you
member.
herewith certified xerox copy of the triplicate copy of
COMMUNITY TAX CERTIFICATE NO. 11132214C in the name
The eminent futurist John Naisbitt, author of the best of Juan Domino.
seller Megatrends, predicts an Asian Renaissance 65 where "the East
will become the dominant region of the world economically, politically
Furthermore, Community Tax Certificate No. 11132212C of the
and culturally in the next century." He refers to the "free market"
same stub was issued to Carlito Engcong on September 5,
espoused by WTO as the "catalyst" in this coming Asian ascendancy.
1997, while Certificate No. 11132213C was also issued to Mr.
There are at present about 31 countries including China, Russia and
Juan Domino but was cancelled and serial no. 11132215C was
Saudi Arabia negotiating for membership in the WTO. Notwithstanding
issued in the name of Marianita Letigio on September 8, 1997.
objections against possible limitations on national sovereignty, the

15
5. Annex "E" — The triplicate copy of the Community Tax 3. Approving the transfer of registration of voters of
Certificate No. 11132214C in the name of Juan Domino dated petitioners from Precint No. 4400-A of Barangay Old Balara,
September 5, 1997; Quezon City to Precinct No. 14A1 of Barangay Poblacion of
Alabel, Sarangani; and
6. Annex "F" — Copy of the letter of Provincial Treasurer
Lourdes P. Riego dated March 2, 1998 addressed to Mr. Herson 4. Ordering the respondents to immediately transfer and
D. Dema-ala, Deputy Provincial Treasurer and Municipal forward all the election/voter's registration records of the
Treasurer of Alabel, Sarangani, which states: petitioners in Quezon City to the Election Officer, the
Election Registration Board and other Comelec Offices of
Alabel, Sarangani where the petitioners are obviously
For easy reference, kindly turn-over to the undersigned for
qualified to excercise their respective rights of suffrage.
safekeeping, the stub of Community Tax Certificate containing
Nos. 11132201C-11132250C issued to you on June 13, 1997
and paid under Official Receipt No. 7854744. 4. Annex "4" — Copy of the Application for Transfer of
Registration Records due to Change of Residence addressed to
Mantil Alim, COMELEC Registrar, Alabel, Sarangani, dated
Upon request of Congressman James L. Chiongbian.
August 30, 1997.

7. Annex "G" — Certificate of Candidacy of respondent for the


5. Annex "5" — Certified True Copy of the Notice of Approval of
position of Congressman in the 3rd District of Quezon City for the
Application, the roster of applications for registration approved by
1995 elections filed with the Office of the Regional Election
the Election Registration Board on October 20, 1997, showing the
Director, National Capital Region, on March 17, 1995, where, in
spouses Juan and Zorayda Bailon Domino listed as numbers 111
item 4 thereof, he wrote his birth date as December 22, 1953; in
and 112 both under Precinct No. 14A1, the last two names in the
item 8 thereof his "residence in the constituency where I seek to be
slate indicated as transferees without VRR numbers and their
elected immediately preceding the election" as 3 years and 5
application dated August 30, 1997 and September 30, 1997,
months; and, in item 9, that he is a registered voter of Precinct No.
respectively.
182, Barangay Balara, Quezon City;

6. Annex "6" — same as Annex "5"


8. Annex "H" — a copy of the APPLICATION FOR TRANSFER OF
REGISTRATION RECORDS DUE TO CHANGE OF RESIDENCE
of respondent dated August 30, 1997 addressed to and received 7. Annex "6-a" — Copy of the Sworn Application for Cancellation
by Election Officer Mantil Alim, Alabel, Sarangani, on September of Voter's Previous Registration (Annex "I", Petition);
22, 1997, stating among others, that "[T]he undersigned's previous
residence is at 24 Bonifacio Street, Ayala Heights, Quezon City, III
8. Annex "7" — Copy of claim card in the name of respondent
District, Quezon City; wherein he is a registered voter" and "that for
showing his VRR No. 31326504 dated October 20, 1997 as a
business and residence purposes, the undersigned has transferred
registered voter of Precinct No. 14A1, Barangay Poblacion,
and conducts his business and reside at Barangay Poblacion,
Alabel, Sarangani;
Alabel, Province of Sarangani prior to this application;"

9. Annex "7-a" — Certification dated April 16, 1998, issued by


9. Annex "I" — Copy of the SWORN APPLICATION FOR OF
Atty. Elmer M. Kayanan, Election Officer IV, District III, Quezon
CANCELLATION OF THE VOTER'S [TRANSFER OF] PREVIOUS
City, which reads:
REGISTRATION of respondent subscribed and sworn to on 22
October 1997 before Election Officer Mantil Allim at Alabel,
Sarangani. 4 This is to certify that the spouses JUAN and ZORAYDA DOMINO
are no longer registered voters of District III, Quezon City. Their
registration records (VRR) were transferred and are now in the
For his defense, DOMINO maintains that he had complied with the
possession of the Election Officer of Alabel, Sarangani.
one-year residence requirement and that he has been residing in
Sarangani since January 1997. In support of the said contention,
DOMINO presented before the COMELEC the following exhibits, to This certification is being issued upon the request of Mr. JUAN
wit: DOMINO.

1. Annex "1" — Copy of the Contract of Lease between Nora 10. Annex "8" — Affidavit of Nora Dacaldacal and Maria Lourdes
Dacaldacal as Lessor and Administrator of the properties of Dacaldacal stating the circumstances and incidents detailing their
deceased spouses Maximo and Remedios Dacaldacal and alleged acquaintance with respondent.
respondent as Lessee executed on January 15, 1997, subscribed
and sworn to before Notary Public Johnny P. Landero;
11. Annexes "8-a", "8-b", "8-c" and "8-d" — Copies of the uniform
affidavits of witness Myrna Dalaguit, Hilario Fuentes, Coraminda
2. Annex "2" — Copy of the Extra-Judicial Settlement of Estate Lomibao and Elena V. Piodos subscribed and sworn to before
with Absolute Deed of sale executed by and between the heirs of Notary Public Bonifacio F. Doria, Jr., on April 18, 1998,
deceased spouses Maximo and Remedios Dacaldacal, namely: embodying their alleged personal knowledge of respondent's
Maria Lourdes, Jupiter and Beberlie and the respondent on residency in Alabel, Sarangani;
November 4, 1997, subscribed and sworn to before Notary Public
Jose A. Alegario;
12. Annex "8-e" — A certification dated April 20, 1998, subscribed
and sworn to before Notary Public Bonifacio, containing a listing
3. Annex "3" — True Carbon Xerox copy of the Decision dated of the names of fifty-five (55) residents of Alabel, Sarangani,
January 19, 1998, of the Metropolitan Trial Court of Metro Manila, declaring and certifying under oath that they personally know the
Branch 35, Quezon City, in Election Case NO. 725 captioned as respondent as a permanent resident of Alabel, Sarangani since
"In the Matter of the Petition for the Exclusion from the List of January 1997 up to present;
voters of Precinct No. 4400-A Brgy. Old Balara, Quezon City,
Spouses Juan and Zorayda Domino, Petitioners, -versus- Elmer
M. Kayanan, Election Officer, Quezon City, District III, and the 13. Annexes "9", "9-a" and "9-b" — Copies of Individual Income
Tax Return for the year 1997, BIR form 2316 and W-2,
Board of Election Inspectors of Precinct No. 4400-A, Old Balara,
Quezon City, Respondents." The dispositive portion of which respectively, of respondent; and,
reads:
14. Annex "10" — The affidavit of respondent reciting the
1. Declaring the registration of petitioners as voters of chronology of events and circumstances leading to his relocation
Precinct No. 4400-A, Barangay Old Balara, in District III to the Municipality of Alabel, Sarangani, appending Annexes "A",
Quezon City as completely erroneous as petitioners were no "B", "C", "D", "D-1", "E", "F", "G" with sub-markings "G-1" and "G-
longer residents of Quezon City but of Alabel, Sarangani 2" and "H" his CTC No. 111`32214C dated September 5, 1997,
where they have been residing since December 1996; which are the same as Annexes "1", "2", "4", "5", "6-a", "3", "7",
"9" with sub-markings "9-a" and "9-b" except Annex "H". 5

2. Declaring this erroneous registration of petitioners in


On 6 May 1998, the COMELEC 2nd Division promulgated a
Quezon City as done in good faith due to an honest mistake
caused by circumstances beyond their control and without resolution declaring DOMINO disqualified as candidate for the
any fault of petitioners; position of representative of the lone district of Sarangani for lack

16
of the one-year residence requirement and likewise ordered the The COMELEC has jurisdiction as provided in Sec. 78, Art. IX of the
cancellation of his certificate of candidacy, on the basis of the Omnibus Election Code, over a petition to deny due course to or
following findings: cancel certificate of candidacy. In the exercise of the said jurisdiction, it
is within the competence of the COMELEC to determine whether false
representation as to material facts was made in the certificate of
What militates against respondent's claim that he has met the
candidacy, that will include, among others, the residence of the
residency requirement for the position sought is his own Voter's
candidate.
Registration Record No. 31326504 dated June 22, 1997 [Annex
"B", Petition] and his address indicated as 24 Bonifacio St., Ayala
Heights, Old Balara, Quezon City. This evidence, standing alone, The determination of the Metropolitan Trial Court of Quezon City in the
negates all his protestations that he established residence at exclusion proceedings as to the right of DOMINO to be included or
Barangay Poblacion, Alabel, Sarangani, as early as January excluded from the list of voters in the precinct within its territorial
1997. It is highly improbable, nay incredible, for respondent who jurisdicton, does not preclude the COMELEC, in the determination of
previously ran for the same position in the 3rd Legislative District DOMINO's qualification as a candidate, to pass upon the issue of
of Quezon City during the elections of 1995 to unwittingly forget compliance with the residency requirement.
the residency requirement for the office sought.
The proceedings for the exclusion or inclusion of voters in the list of
Counting, therefore, from the day after June 22, 1997 when voters are summary in character. Thus, the factual findings of the trial
respondent registered at Precinct No. 4400-A, up to and until the court and its resultant conclusions in the exclusion proceedings on
day of the elections on May 11, 1998, respondent clearly lacks matters other than the right to vote in the precinct within its territorial
the one (1) year residency requirement provided for candidates jurisdiction are not conclusive upon the COMELEC. Although the court
for Member of the House of Representatives under Section 6, in inclusion or exclusion proceedings may pass upon any question
Article VI of the Constitution. necessary to decide the issue raised including the questions of
citizenship and residence of the challenged voter, the authority to order
the inclusion in or exclusion from the list of voters necessarily caries
All told, petitioner's evidence conspire to attest to respondent's
with it the power to inquire into and settle all matters essential to the
lack of residence in the constituency where he seeks election and
exercise of said authority. However, except for the right to remain in
while it may be conceded that he is a registered voter as
the list of voters or for being excluded therefrom for the particular
contemplated under Section 12 of R.A. 8189, he lacks the
election in relation to which the proceedings had been held, a decision
qualification to run for the position of Congressman for the Lone
in an exclusion or inclusion proceeding, even if final and unappealable,
District of the Province of Sarangani. 6
does not acquire the nature of res judicata. 13 In this sense, it does not
operate as a bar to any future action that a party may take concerning
On 11 May 1998, the day of the election, the COMELEC issued the subject passed upon in the proceeding. 14 Thus, a decision in an
Supplemental Omnibus Resolution No. 3046, ordering that the votes exclusion proceeding would neither be conclusive on the voter's
cast for DOMINO be counted but to suspend the proclamation if political status, nor bar subsequent proceedings on his right to be
winning, considering that the Resolution disqualifying him as candidate registered as a voter in any other election. 15
had not yet become final and executory. 7
Thus, in Tan Cohon v. Election Registrar 16 we ruled that:
The result of the election, per Statement of Votes certified by the
Chairman of the Provincial Board of Canvassers,8 shows that DOMINO
. . . It is made clear that even as it is here held that the order of
garnered the highest number of votes over his opponents for the
the City Court in question has become final, the same does not
position of Congressman of the Province of Sarangani.
constitute res adjudicata as to any of the matters therein
contained. It is ridiculous to suppose that such an important and
On 15 May 1998, DOMINO filed a motion for reconsideration of the intricate matter of citizenship may be passed upon and
Resolution dated 6 May 1998, which was denied by the COMELEC en determined with finality in such a summary and peremptory
banc in its decision dated 29 May 1998. Hence, the present Petition proceeding as that of inclusion and exclusion of persons in the
for Certiorariwith prayer for Preliminary Mandatory Injunction alleging, registry list of voters. Even if the City Court had granted
in the main, that the COMELEC committed grave abuse of discretion appellant's petition for inclusion in the permanent list of voters on
amounting to excess or lack of jurisdiction when it ruled that he did not the allegation that she is a Filipino citizen qualified to vote, her
meet the one-year residence requirement. alleged Filipino citizenship would still have been left open to
question.
On 14 July 1998, acting on DOMINO's Motion for Issuance of
Temporary Restraining Order, the Court directed the parties to Moreover, the Metropolitan Trial Court of Quezon City in its 18 January
maintain the status quo prevailing at the time of the filing of the instant decision exceeded its jurisdiction when it declared DOMINO a resident
petition. 9 of the Province of Sarangani, approved and ordered the transfer of his
voter's registration from Precinct No. 4400-A of Barangay Old Balara,
Quezon City to precinct 14A1 of Barangay Poblacion, Alabel,
On 15 September 1998, Lucille L. Chiongbian-Solon, (hereafter Sarangani. It is not within the competence of the trial court, in an
INTERVENOR), the candidate receiving the second highest number of
exclusion proceedings, to declare the challenged voter a resident of
votes, was allowed by the Court to Intervene. 10 INTERVENOR in her
another municipality. The jurisdiction of the lower court over exclusion
Motion for Leave to Intervene and in her Comment in Intervention 11 is
cases is limited only to determining the right of voter to remain in the
asking the Court to uphold the disqualification of petitioner Juan
list of voters or to declare that the challenged voter is not qualified to
Domino and to proclaim her as the duly elected representative of vote in the precint in which he is registered, specifying the ground of
Sarangani in the 11 May 1998 elections. the voter's disqualification. The trial court has no power to order the
change or transfer of registration from one place of residence to
Before us DOMINO raised the following issues for resolution, to wit: another for it is the function of the election Registration Board as
provided under Section 12 of R.A. No. 8189. 17 The only effect of the
decision of the lower court excluding the challenged voter from the list
a. Whether or not the judgment of the Metropolitan Trial Court of of voters, is for the Election Registration Board, upon receipt of the
Quezon City declaring petitioner as resident of Sarangani and not final decision, to remove the voter's registration record from the
of Quezon City is final, conclusive and binding upon the whole corresponding book of voters, enter the order of exclusion therein, and
world, including the Commission on Elections. thereafter place the record in the inactive file. 18

b. Whether or not petitioner herein has resided in the subject Finally, the application of the rule on res judicata is unavailing. Identity
congressional district for at least one (1) year immediately of parties, subject matter and cause of action are indispensable
preceding the May 11, 1998 elections; and requirements for the application of said doctrine. Neither herein Private
Respondents nor INTERVENOR, is a party in the exclusion
c. Whether or not respondent COMELEC has jurisdiction over the proceedings. The Petition for Exclusion was filed by DOMINDO himself
petition a quo for the disqualification of petitioner. 12 and his wife, praying that he and his wife be excluded from the Voter's
List on the ground of erroneous registration while the Petition to Deny
Due Course to or Cancel Certificate of Candidacy was filed by private
The first issue. respondents against DOMINO for alleged false representation in his
certificate of candidacy. For the decision to be a basis for the dismissal
The contention of DOMINO that the decision of the Metropolitan Trial by reason of res judicata, it is essential that there must be between the
Court of Quezon City in the exclusion proceedings declaring him a first and the second action identity of parties, identity of subject matter
resident of the Province of Sarangani and not of Quezon City is final and identity of causes of action. 19 In the present case, the aforesaid
and conclusive upon the COMELEC cannot be sustained.
17
essential requisites are not present. In the case of Nuval v. Guray, et now claiming that he had effectively abandoned his "residence" in
al., 20 the Supreme Court in resolving a similar issue ruled that: Quezon City and has established a new "domicile" of choice at the
Province of Sarangani.
The question to be solved under the first assignment of error is
whether or not the judgment rendered in the case of the petition A person's "domicile" once established is considered to continue and
for the exclusion of Norberto Guray's name from the election list will not be deemed lost until a new one is established. 25 To
of Luna, is res judicata, so as to prevent the institution and successfully effect a change of domicile one must demonstrate an
prosecution of an action in quo warranto, which is now before us. actual removal or an actual change of domicile; a bona fide intention of
abandoning the former place of residence and establishing a new one
and definite acts which correspond with the
The procedure prescribed by section 437 of the Administrative
purpose. 26 In other words, there must basically
Code, as amended by Act No. 3387, is of a summary character
be animus manendi coupled with animus non revertendi. The purpose
and the judgment rendered therein is not appealable except when
to remain in or at the domicile of choice must be for an indefinite period
the petition is tried before the justice of the peace of the capital or
of time; the change of residence must be voluntary; and the residence
the circuit judge, in which case it may be appealed to the judge of
at the place chosen for the new domicile must be actual. 27
first instance, with whom said two lower judges have concurrent
jurisdiction.
It is the contention of petitioner that his actual physical presence in
Alabel, Sarangani since December 1996 was sufficiently established
The petition for exclusion was presented by Gregorio Nuval in his
by the lease of a house and lot located therein in January 1997 and by
dual capacity as qualified voter of the municipality of Luna, and as
the affidavits and certifications under oath of the residents of that place
a duly registered candidate for the office of president of said
that they have seen petitioner and his family residing in their locality.
municipality, against Norberto Guray as a registered voter in the
election list of said municipality. The present proceeding
of quo warranto was interposed by Gregorio Nuval in his capacity While this may be so, actual and physical is not in itself sufficient to
as a registered candidate voted for the office of municipal show that from said date he had transferred his residence in that place.
president of Luna, against Norberto Guray, as an elected To establish a new domicile of choice, personal presence in the place
candidate for the same office. Therefore, there is no identity of must be coupled with conduct indicative of that intention. While
parties in the two cases, since it is not enough that there be an "residence" simply requires bodily presence in a given place, "domicile"
identity of persons, but there must be an identity of capacities in requires not only such bodily presence in that place but also a declared
which said persons litigate. (Art. 1259 of the Civil Code; Bowler and probable intent to make it one's fixed and permanent place of
vs. Estate of Alvarez, 23 Phil., 561; 34 Corpus Juris, p. 756, par. abode, one's home. 28
1165)
As a general rule, the principal elements of domicile, physical presence
In said case of the petition for the exclusion, the object of the in the locality involved and intention to adopt it as a domicile, must
litigation, or the litigious matter was the exclusion of Norberto concur in order to establish a new domicile. No change of domicile will
Guray as a voter from the election list of the municipality of Luna, result if either of these elements is absent. Intention to acquire a
while in the present que warranto proceeding, the object of the domicile without actual residence in the locality does not result in
litigation, or the litigious matter is his exclusion or expulsion from acquisition of domicile, nor does the fact of physical presence without
the office to which he has been elected. Neither does there exist, intention. 29
then, any identity in the object of the litigation, or the litigious
matter.
The lease contract entered into sometime in January 1997, does not
adequately support a change of domicile. The lease contract may be
In said case of the petition for exclusion, the cause of action was indicative of DOMINO's intention to reside in Sarangani but it does not
that Norberto Guray had not the six months' legal residence in the engender the kind of permanency required to prove abandonment of
municipality of Luna to be a qualified voter thereof, while in the one's original domicile. The mere absence of individual from his
present proceeding of quo warranto, the cause of action is that permanent residence, no matter how long, without the intention to
Norberto Guray has not the one year's legal residence required abandon it does not result in loss or change of
for eligibility to the office of municipal president of Luna. Neither domicile. 30 Thus the date of the contract of lease of a house and lot
does there exist therefore, identity of causes of action. located in the province of Sarangani, i.e., 15 January 1997, cannot be
used, in the absence of other circumstances, as the reckoning period
of the one-year residence requirement.
In order that res judicata may exist the following are necessary:
(a) identity of parties; (b) identity of things; and (c) identity of
issues (Aquino v. Director of Lands, 39 Phil. 850). And as in the Further, Domino's lack of intention to abandon his residence in Quezon
case of the petition for excluision and in the City is further strengthened by his act of registering as voter in one of
present quo warranto proceeding, as there is no identity of the precincts in Quezon City. While voting is not conclusive of
parties, or of things or litigious matter, or of issues or causes of residence, it does give rise to a strong presumption of residence
action, there is no res judicata. especially in this case where DOMINO registered in his former
barangay. Exercising the right of election franchise is a deliberate
public assertion of the fact of residence, and is said to have decided
The Second Issue.
preponderance in a doubtful case upon the place the elector claims as,
or believes to be, his residence. 31 The fact that a party continously
Was DOMINO a resident of the Province of Sarangani for at least one voted in a particular locality is a strong factor in assisting to determine
year immediately preceding the 11 May 1998 election as stated in his the status of his domicile. 32
certificate of candidacy?
His claim that his registration in Quezon City was erroneous and was
We hold in the negative. caused by events over which he had no control cannot be sustained.
The general registration of voters for purposes of the May 1998
elections was scheduled for two (2) consecutive weekends, viz.: June
It is doctrinally settled that the term "residence," as used in the law 14, 15, 21, and 22. 33
prescribing the qualifications for suffrage and for elective office, means
the same thing as "domicile," which imports not only an intention to
reside in a fixed place but also personal presence in that place, While, Domino's intention to establish residence in Sarangani can be
coupled with conduct indicative of such intention. 21 "Domicile" denotes gleaned from the fact that be bought the house he was renting on
a fixed permanent residence to which, whenever absent for business, November 4, 1997, that he sought cancellation of his previous
pleasure, or some other reasons, one intends to return. 22 "Domicile" is registration in Qezon City on 22 October 1997, 34 and that he applied
a question of intention and circumstances. In the consideration of for transfer of registration from Quezon City to Sarangani by reason of
circumstances, three rules must be borne in mind, namely: (1) that a change of residence on 30 August 1997, 35 DOMINO still falls short of
man must have a residence or domicile somewhere; (2) when once the one year residency requirement under the Constitution.
established it remains until a new one is acquired; and (3) a man can
have but one residence or domicile at a time. 23
In showing compliance with the residency requirement, both intent and
actual presence in the district one intends to represent must satisfy the
Records show that petitioner's domicile of origin was Candon, Ilocos length of time prescribed by the fundamental law. 36 Domino's failure to
Sur 24 and that sometime in 1991, he acquired a new domicile of do so rendered him ineligible and his election to office null and void. 37
choice at 24 Bonifacio St. Ayala Heights, Old Balara, Quezon City, as
shown by his certificate of candidacy for the position of representative
The Third Issue.
of the 3rd District of Quezon City in the May 1995 election. Petitioner is

18
DOMINO's contention that the COMELEC has no jurisdiction in the any fault on their part and to undermine the importance and meaning
present petition is bereft of merit. of democracy and the people's right to elect officials of their choice. 51

As previously mentioned, the COMELEC, under Sec. 78, Art. IX of the INTERVENOR's plea that the votes cast in favor of DOMINO be
Omnibus Election Code, has jurisdiction over a petition to deny due considered stray votes cannot be sustained. INTERVENOR's reliance
course to or cancel certificate of candidacy. Such jurisdiction continues on the opinion made in the Labo, Jr. case 52 to wit: if the electorate,
even after election, if for any reason no final judgment of fully aware in fact and in law of a candidate's disqualification so as to
disqualification is rendered before the election, and the candidate bring such awareness within the realm of notoriety, would nevertheless
facing disqualification is voted for and receives the highest number of cast their votes in favor of the ineligible candidate, the electorate may
votes 38 and provided further that the winning candidate has not been be said to have waived the validity and efficacy of their votes by
proclaimed or has taken his oath of office. 39 notoriously misapplying their franchise or throwing away their votes, in
which case, the eligible candidate obtaining the next higher number of
votes may be deemed elected, is misplaced.
It has been repeatedly held in a number of cases, that the House of
Representatives Electoral Tribunal's sole and exclusive jurisdiction
over all contests relating to the election, returns and qualifications of Contrary to the claim of INTERVENOR, petitioner was not notoriously
members of Congress as provided under Section 17 of Article VI of the known by the public as an ineligible candidate. Although the resolution
Constitution begins only after a candidate has become a member of declaring him ineligible as candidate was rendered before the election,
the House of Representatives. 40 however, the same is not yet final and executory. In fact, it was no less
than the COMELEC in its Supplemental Omnibus Resolution No. 3046
that allowed DOMINO to be voted for the office and ordered that the
The fact of obtaining the highest number of votes in an election does
votes cast for him be counted as the Resolution declaring him ineligible
not automatically vest the position in the winning candidate. 41 A
has not yet attained finality. Thus the votes cast for DOMINO are
candidate must be proclaimed and must have taken his oath of office
presumed to have been cast in the sincere belief that he was a
before he can be considered a member of the House of
qualified candidate, without any intention to misapply their franchise.
Representatives.
Thus, said votes can not be treated as stray, void, or meaningless. 53

In the instant case, DOMINO was not proclaimed as Congressman-


WHEREFORE, the instant petition is DISMISSED. The resolution
elect of the Lone Congressional District of the Province of Sarangani
dated 6 May 1998 of the COMELEC 2nd Division and the decision
by reason of a Supplemental Omnibus Resolution issued by the
dated 29 May 1998 of the COMELEC En Banc, are hereby
COMELEC on the day of the election ordering the suspension of
AFFIRMED. SO ORDERED.
DOMINO's proclamation should he obtain the winning number of votes.
This resolution was issued by the COMELEC in view of the non-finality
of its 6 May 1998 resolution disqualifying DOMINO as candidate for the
position.

Cosidering that DOMINO has not been proclaimed as Congressman-


elect in the Lone Congressional District of the Province of Sarangani
he cannot be deemed a member of the House of Representatives. G.R. No. 161872 April 13, 2004
Hence, it is the COMELEC and not the Electoral Tribunal which has
jurisdiction over the issue of his ineligibility as a candidate. 42 REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner, vs.
COMMISSION ON ELECTIONS, respondent.
Issue raised by INTERVENOR.
RESOLUTION
After finding that DOMINO is disqualified as candidate for the position
of representative of the province of Sarangani, may INTERVENOR, as TINGA, J.:
the candidate who received the next highest number of votes, be
proclaimed as the winning candidate?
Petitioner Rev. Elly Velez Pamatong filed his Certificate of
Candidacy for President on December 17, 2003. Respondent
It is now settled doctrine that the candidate who obtains the second Commission on Elections (COMELEC) refused to give due course to
highest number of votes may not be proclaimed winner in case the petitioner’s Certificate of Candidacy in its Resolution No. 6558 dated
winning candidate is disqualified. 43 In every election, the people's January 17, 2004. The decision, however, was not unanimous since
choice is the paramount consideration and their expressed will must, at Commissioners Luzviminda G. Tancangco and Mehol K. Sadain voted
all times, be given effect. When the majority speaks and elects into to include petitioner as they believed he had parties or movements to
office a candidate by giving the highest number of votes cast in the back up his candidacy.
election for that office, no one can be declared elected in his place. 44

On January 15, 2004, petitioner moved for reconsideration


It would be extremely repugnant to the basic concept of the of Resolution No. 6558. Petitioner’s Motion for Reconsideration was
constitutionally guaranteed right to suffrage if a candidate who has not docketed as SPP (MP) No. 04-001. The COMELEC, acting on
acquired the majority or plurality of votes is proclaimed a winner and petitioner’s Motion for Reconsideration and on similar motions filed by
imposed as the representative of a constituency, the majority of which other aspirants for national elective positions, denied the same under
have positively declared through their ballots that they do not choose the aegis of Omnibus Resolution No. 6604 dated February 11, 2004.
him. 45 To simplistically assume that the second placer would have The COMELEC declared petitioner and thirty-five (35) others nuisance
received the other votes would be to substitute our judgment for the candidates who could not wage a nationwide campaign and/or are not
mind of the voters. He could not be considered the first among nominated by a political party or are not supported by a registered
qualified candidates because in a field which excludes the qualified political party with a national constituency. Commissioner Sadain
candidate, the conditions would have substantially changed. 46 maintained his vote for petitioner. By then, Commissioner Tancangco
had retired.
Sound policy dictates that public elective offices are filled by those who
have received the highest number of votes cast in the election for that In this Petition For Writ of Certiorari, petitioner seeks to reverse the
office, and it is fundamental idea in all republican forms of government resolutions which were allegedly rendered in violation of his right to
that no one can be declared elected and no measure can be declared "equal access to opportunities for public service" under Section 26,
carried unless he or it receives a majority or plurality of the legal votes Article II of the 1987
cast in the election. 47

Constitution,1 by limiting the number of qualified candidates only to


The effect of a decision declaring a person ineligible to hold an office is those who can afford to wage a nationwide campaign and/or are
only that the election fails entirely, that the wreath of victory cannot be nominated by political parties. In so doing, petitioner argues that the
transferred 48 from the disqualified winner to the repudiated loser COMELEC indirectly amended the constitutional provisions on the
because the law then as now only authorizes a declaration of election electoral process and limited the power of the sovereign people to
in favor of the person who has obtained a plurality of votes 49 and does choose their leaders. The COMELEC supposedly erred in disqualifying
not entitle the candidate receiving the next highest number of votes to him since he is the most qualified among all the presidential
be declared elected. In such case, the electors have failed to make a candidates, i.e., he possesses all the constitutional and legal
choice and the election is a nullity. 50 To allow the defeated and qualifications for the office of the president, he is capable of waging a
repudiated candidate to take over the elective position despite his national campaign since he has numerous national organizations
rejection by the electorate is to disenfranchise the electorate without under his leadership, he also has the capacity to wage an international

19
campaign since he has practiced law in other countries, and he has a Significantly, petitioner does not challenge the constitutionality or
platform of government. Petitioner likewise attacks the validity of the validity of Section 69 of the Omnibus Election Code and COMELEC
form for theCertificate of Candidacy prepared by the COMELEC. Resolution No. 6452 dated 10 December 2003. Thus, their presumed
Petitioner claims that the form does not provide clear and reasonable validity stands and has to be accorded due weight.
guidelines for determining the qualifications of candidates since it does
not ask for the candidate’s bio-data and his program of government.
Clearly, therefore, petitioner’s reliance on the equal access clause in
Section 26, Article II of the Constitution is misplaced.
First, the constitutional and legal dimensions involved.
The rationale behind the prohibition against nuisance candidates and
Implicit in the petitioner’s invocation of the constitutional provision the disqualification of candidates who have not evinced a bona fide
ensuring "equal access to opportunities for public office" is the claim intention to run for office is easy to divine. The State has a compelling
that there is a constitutional right to run for or hold public office and, interest to ensure that its electoral exercises are rational, objective,
particularly in his case, to seek the presidency. There is none. What is and orderly. Towards this end, the State takes into account the
recognized is merely a privilege subject to limitations imposed by law. practical considerations in conducting elections. Inevitably, the greater
Section 26, Article II of the Constitution neither bestows such a right the number of candidates, the greater the opportunities for logistical
nor elevates the privilege to the level of an enforceable right. There is confusion, not to mention the increased allocation of time and
nothing in the plain language of the provision which suggests such a resources in preparation for the election. These practical difficulties
thrust or justifies an interpretation of the sort. should, of course, never exempt the State from the conduct of a
mandated electoral exercise. At the same time, remedial actions
should be available to alleviate these logistical hardships, whenever
The "equal access" provision is a subsumed part of Article II of the
necessary and proper. Ultimately, a disorderly election is not merely a
Constitution, entitled "Declaration of Principles and State Policies." The
textbook example of inefficiency, but a rot that erodes faith in our
provisions under the Article are generally considered not self-
democratic institutions. As the United States Supreme Court held:
executing,2 and there is no plausible reason for according a different
treatment to the "equal access" provision. Like the rest of the policies
enumerated in Article II, the provision does not contain any judicially [T]here is surely an important state interest in requiring some
enforceable constitutional right but merely specifies a guideline for preliminary showing of a significant modicum of support before
legislative or executive action.3 The disregard of the provision does not printing the name of a political organization and its candidates on
give rise to any cause of action before the courts.4 the ballot – the interest, if no other, in avoiding confusion,
deception and even frustration of the democratic [process].11
An inquiry into the intent of the framers5 produces the same
determination that the provision is not self-executory. The original The COMELEC itself recognized these practical considerations when it
wording of the present Section 26, Article II had read, "The State shall promulgated Resolution No. 6558 on 17 January 2004, adopting the
broaden opportunities to public office and prohibit public study Memorandum of its Law Department dated 11 January 2004. As
dynasties."6 Commissioner (now Chief Justice) Hilario Davide, Jr. observed in the COMELEC’s Comment:
successfully brought forth an amendment that changed the word
"broaden" to the phrase "ensure equal access," and the substitution of
There is a need to limit the number of candidates especially in the
the word "office" to "service." He explained his proposal in this wise:
case of candidates for national positions because the election
process becomes a mockery even if those who cannot clearly
I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" wage a national campaign are allowed to run. Their names would
because what is important would be equal access to the have to be printed in the Certified List of Candidates, Voters
opportunity. If you broaden, it would necessarily mean that the Information Sheet and the Official Ballots. These would entail
government would be mandated to create as many offices as additional costs to the government. For the official ballots in
are possible to accommodate as many people as are also automated counting and canvassing of votes, an additional page
possible. That is the meaning of broadening opportunities to public would amount to more or less FOUR HUNDRED FIFTY MILLION
service. So, in order that we should not mandate the State to PESOS (P450,000,000.00).
make the government the number one employer and to limit
offices only to what may be necessary and expedient yet
xxx[I]t serves no practical purpose to allow those candidates to
offering equal opportunities to access to it, I change the word
continue if they cannot wage a decent campaign enough to
"broaden."7 (emphasis supplied)
project the prospect of winning, no matter how slim.12

Obviously, the provision is not intended to compel the State to enact


The preparation of ballots is but one aspect that would be affected by
positive measures that would accommodate as many people as
allowance of "nuisance candidates" to run in the elections. Our election
possible into public office. The approval of the "Davide amendment"
laws provide various entitlements for candidates for public office, such
indicates the design of the framers to cast the provision as simply
as watchers in every polling place,13 watchers in the board of
enunciatory of a desired policy objective and not reflective of the
canvassers,14 or even the receipt of electoral contributions.15Moreover,
imposition of a clear State burden.
there are election rules and regulations the formulations of which are
dependent on the number of candidates in a given election.
Moreover, the provision as written leaves much to be desired if it is to
be regarded as the source of positive rights. It is difficult to interpret the
Given these considerations, the ignominious nature of a nuisance
clause as operative in the absence of legislation since its effective
candidacy becomes even more galling. The organization of an election
means and reach are not properly defined. Broadly written, the myriad
with bona fide candidates standing is onerous enough. To add into the
of claims that can be subsumed under this rubric appear to be entirely
mix candidates with no serious intentions or capabilities to run a viable
open-ended.8 Words and phrases such as "equal access,"
campaign would actually impair the electoral process. This is not to
"opportunities," and "public service" are susceptible to countless
mention the candidacies which are palpably ridiculous so as to
interpretations owing to their inherent impreciseness. Certainly, it was
constitute a one-note joke. The poll body would be bogged by
not the intention of the framers to inflict on the people an operative but
irrelevant minutiae covering every step of the electoral process, most
amorphous foundation from which innately unenforceable rights may
probably posed at the instance of these nuisance candidates. It would
be sourced.
be a senseless sacrifice on the part of the State.

As earlier noted, the privilege of equal access to opportunities to public


Owing to the superior interest in ensuring a credible and orderly
office may be subjected to limitations. Some valid limitations
election, the State could exclude nuisance candidates and need not
specifically on the privilege to seek elective office are found in the
indulge in, as the song goes, "their trips to the moon on gossamer
provisions9 of the Omnibus Election Code on "Nuisance Candidates"
wings."
and COMELEC Resolution No. 645210 dated December 10, 2002
outlining the instances wherein the COMELEC may motu
proprio refuse to give due course to or cancel aCertificate of The Omnibus Election Code and COMELEC Resolution No. 6452 are
Candidacy. cognizant of the compelling State interest to ensure orderly and
credible elections by excising impediments thereto, such as nuisance
candidacies that distract and detract from the larger purpose. The
As long as the limitations apply to everybody equally without
COMELEC is mandated by the Constitution with the administration of
discrimination, however, the equal access clause is not violated.
elections16 and endowed with considerable latitude in adopting means
Equality is not sacrificed as long as the burdens engendered by the
and methods that will ensure the promotion of free, orderly and honest
limitations are meant to be borne by any one who is minded to file a
elections.17 Moreover, the Constitution guarantees that only bona
certificate of candidacy. In the case at bar, there is no showing that any
fidecandidates for public office shall be free from any form of
person is exempt from the limitations or the burdens which they create.
harassment and discrimination.18 The determination ofbona
20
fide candidates is governed by the statutes, and the concept, to our on equity. This is so because his dismissal is not for serious
mind is, satisfactorily defined in the Omnibus Election Code. misconduct. Neither is it reflective of his moral character.

Now, the needed factual premises. The Facts

However valid the law and the COMELEC issuance involved are, their Petitioner Armando G. Yrasuegui was a former international flight
proper application in the case of the petitioner cannot be tested and steward of Philippine Airlines, Inc. (PAL). He stands five feet and eight
reviewed by this Court on the basis of what is now before it. The inches (5’8") with a large body frame. The proper weight for a man of
assailed resolutions of the COMELEC do not direct the Court to the his height and body structure is from 147 to 166 pounds, the ideal
evidence which it considered in determining that petitioner was a weight being 166 pounds, as mandated by the Cabin and Crew
nuisance candidate. This precludes the Court from reviewing at this Administration Manual1 of PAL.
instance whether the COMELEC committed grave abuse of discretion
in disqualifying petitioner, since such a review would necessarily take
The weight problem of petitioner dates back to 1984. Back then, PAL
into account the matters which the COMELEC considered in arriving at
advised him to go on an extended vacation leave from December 29,
its decisions.
1984 to March 4, 1985 to address his weight concerns. Apparently,
petitioner failed to meet the company’s weight standards, prompting
Petitioner has submitted to this Court mere photocopies of various another leave without pay from March 5, 1985 to November 1985.
documents purportedly evincing his credentials as an eligible
candidate for the presidency. Yet this Court, not being a trier of facts,
After meeting the required weight, petitioner was allowed to return to
can not properly pass upon the reproductions as evidence at this level.
work. But petitioner’s weight problem recurred. He again went on leave
Neither the COMELEC nor the Solicitor General appended any
without pay from October 17, 1988 to February 1989.
document to their respective Comments.

On April 26, 1989, petitioner weighed 209 pounds, 43 pounds over his
The question of whether a candidate is a nuisance candidate or not is
ideal weight. In line with company policy, he was removed from flight
both legal and factual. The basis of the factual determination is not
duty effective May 6, 1989 to July 3, 1989. He was formally requested
before this Court. Thus, the remand of this case for the reception of
to trim down to his ideal weight and report for weight checks on several
further evidence is in order.
dates. He was also told that he may avail of the services of the
company physician should he wish to do so. He was advised that his
A word of caution is in order. What is at stake is petitioner’s aspiration case will be evaluated on July 3, 1989.2
and offer to serve in the government. It deserves not a cursory
treatment but a hearing which conforms to the requirements of due
On February 25, 1989, petitioner underwent weight check. It was
process.
discovered that he gained, instead of losing, weight. He was
overweight at 215 pounds, which is 49 pounds beyond the limit.
As to petitioner’s attacks on the validity of the form for the certificate of Consequently, his off-duty status was retained.
candidacy, suffice it to say that the form strictly complies with Section
74 of the Omnibus Election Code. This provision specifically
On October 17, 1989, PAL Line Administrator Gloria Dizon personally
enumerates what a certificate of candidacy should contain, with the
visited petitioner at his residence to check on the progress of his effort
required information tending to show that the candidate possesses the
to lose weight. Petitioner weighed 217 pounds, gaining 2 pounds from
minimum qualifications for the position aspired for as established by
his previous weight. After the visit, petitioner made a commitment3 to
the Constitution and other election laws.
reduce weight in a letter addressed to Cabin Crew Group Manager
Augusto Barrios. The letter, in full, reads:
IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No.
04-001 is hereby remanded to the COMELEC for the reception of
Dear Sir:
further evidence, to determine the question on whether petitioner Elly
Velez Lao Pamatong is a nuisance candidate as contemplated in
Section 69 of the Omnibus Election Code. I would like to guaranty my commitment towards a weight loss
from 217 pounds to 200 pounds from today until 31 Dec. 1989.
The COMELEC is directed to hold and complete the reception of
evidence and report its findings to this Court with deliberate dispatch. From thereon, I promise to continue reducing at a reasonable
SO ORDERED. percentage until such time that my ideal weight is achieved.

Likewise, I promise to personally report to your office at the designated


time schedule you will set for my weight check.

Respectfully Yours,
G.R. No. 168081 October 17, 2008
F/S Armando Yrasuegui4
ARMANDO G. YRASUEGUI, petitioners,
vs. PHILIPPINE AIRLINES, INC., respondents. Despite the lapse of a ninety-day period given him to reach his ideal
weight, petitioner remained overweight. On January 3, 1990, he was
informed of the PAL decision for him to remain grounded until such
DECISION time that he satisfactorily complies with the weight standards. Again,
he was directed to report every two weeks for weight checks.
REYES, R.T., J.:
Petitioner failed to report for weight checks. Despite that, he was given
THIS case portrays the peculiar story of an international flight steward one more month to comply with the weight requirement. As usual, he
who was dismissed because of his failure to adhere to the weight was asked to report for weight check on different dates. He was
standards of the airline company. reminded that his grounding would continue pending satisfactory
compliance with the weight standards.5

He is now before this Court via a petition for review on


certiorari claiming that he was illegally dismissed. To buttress his Again, petitioner failed to report for weight checks, although he was
stance, he argues that (1) his dismissal does not fall under 282(e) of seen submitting his passport for processing at the PAL Staff Service
the Labor Code; (2) continuing adherence to the weight standards of Division.
the company is not a bona fide occupational qualification; and (3) he
was discriminated against because other overweight employees were On April 17, 1990, petitioner was formally warned that a repeated
promoted instead of being disciplined. refusal to report for weight check would be dealt with accordingly. He
was given another set of weight check dates.6 Again, petitioner ignored
After a meticulous consideration of all arguments pro and con, We the directive and did not report for weight checks. On June 26, 1990,
uphold the legality of dismissal. Separation pay, however, should be petitioner was required to explain his refusal to undergo weight
awarded in favor of the employee as an act of social justice or based checks.7

21
When petitioner tipped the scale on July 30, 1990, he weighed at 212 WHEREFORE, premises considered[,] the Decision of the Arbiter
pounds. Clearly, he was still way over his ideal weight of 166 pounds. dated 18 November 1998 as modified by our findings herein, is hereby
AFFIRMED and that part of the dispositive portion of said decision
concerning complainant’s entitlement to backwages shall be deemed
From then on, nothing was heard from petitioner until he followed up
to refer to complainant’s entitlement to his full backwages, inclusive of
his case requesting for leniency on the latter part of 1992. He weighed
allowances and to his other benefits or their monetary
at 219 pounds on August 20, 1992 and 205 pounds on November 5,
equivalent instead of simply backwages, from date of dismissal until
1992.
his actual reinstatement or finality hereof. Respondent is enjoined to
manifests (sic) its choice of the form of the reinstatement of
On November 13, 1992, PAL finally served petitioner a Notice of complainant, whether physical or through payroll within ten (10) days
Administrative Charge for violation of company standards on weight from notice failing which, the same shall be deemed as complainant’s
requirements. He was given ten (10) days from receipt of the charge reinstatement through payroll and execution in case of non-payment
within which to file his answer and submit controverting evidence. 8 shall accordingly be issued by the Arbiter. Both appeals of respondent
thus, are DISMISSEDfor utter lack of merit.25
On December 7, 1992, petitioner submitted his Answer. 9 Notably, he
did not deny being overweight. What he claimed, instead, is that his According to the NLRC, "obesity, or the tendency to gain weight
violation, if any, had already been condoned by PAL since "no action uncontrollably regardless of the amount of food intake, is a disease in
has been taken by the company" regarding his case "since 1988." He itself."26 As a consequence, there can be no intentional defiance or
also claimed that PAL discriminated against him because "the serious misconduct by petitioner to the lawful order of PAL for him to
company has not been fair in treating the cabin crew members who are lose weight.27
similarly situated."
Like the Labor Arbiter, the NLRC found the weight standards of PAL to
On December 8, 1992, a clarificatory hearing was held where be reasonable. However, it found as unnecessary the Labor Arbiter
petitioner manifested that he was undergoing a weight reduction holding that petitioner was not remiss in the performance of his duties
program to lose at least two (2) pounds per week so as to attain his as flight steward despite being overweight. According to the NLRC, the
ideal weight.10 Labor Arbiter should have limited himself to the issue of whether the
failure of petitioner to attain his ideal weight constituted willful defiance
of the weight standards of PAL.28
On June 15, 1993, petitioner was formally informed by PAL that due to
his inability to attain his ideal weight, "and considering the utmost
leniency" extended to him "which spanned a period covering a total of PAL moved for reconsideration to no avail.29 Thus, PAL elevated the
almost five (5) years," his services were considered terminated matter to the Court of Appeals (CA) via a petition for certiorari under
"effective immediately."11 Rule 65 of the 1997 Rules of Civil Procedure.30

His motion for reconsideration having been denied, 12 petitioner filed a By Decision dated August 31, 2004, the CA reversed31 the NLRC:
complaint for illegal dismissal against PAL.
WHEREFORE, premises considered, we hereby GRANT the petition.
Labor Arbiter, NLRC and CA Dispositions The assailed NLRC decision is declared NULL and VOID and is
hereby SET ASIDE. The private respondent’s complaint is hereby
DISMISSED. No costs.
On November 18, 1998, Labor Arbiter Valentin C. Reyes ruled13 that
petitioner was illegally dismissed. The dispositive part of the Arbiter
ruling runs as follows: SO ORDERED.32

WHEREFORE, in view of the foregoing, judgment is hereby rendered, The CA opined that there was grave abuse of discretion on the part of
declaring the complainant’s dismissal illegal, and ordering the the NLRC because it "looked at wrong and irrelevant
respondent to reinstate him to his former position or substantially considerations"33 in evaluating the evidence of the parties. Contrary to
equivalent one, and to pay him: the NLRC ruling, the weight standards of PAL are meant to be
a continuing qualification for an employee’s position.34 The failure to
adhere to the weight standards is an analogous cause for the dismissal
a. Backwages of Php10,500.00 per month from his dismissal on June
of an employee under Article 282(e) of the Labor Code in relation to
15, 1993 until reinstated, which for purposes of appeal is hereby set Article 282(a). It is not willful disobedience as the NLRC seemed to
from June 15, 1993 up to August 15, 1998 at P651,000.00; suggest.35 Said the CA, "the element of willfulness that the NLRC
decision cites is an irrelevant consideration in arriving at a conclusion
b. Attorney’s fees of five percent (5%) of the total award. on whether the dismissal is legally proper."36 In other words, "the
relevant question to ask is not one of willfulness but one of
reasonableness of the standard and whether or not the employee
SO ORDERED.14 qualifies or continues to qualify under this standard."37

The Labor Arbiter held that the weight standards of PAL are Just like the Labor Arbiter and the NLRC, the CA held that the weight
reasonable in view of the nature of the job of petitioner. 15 However, the standards of PAL are reasonable.38 Thus, petitioner was legally
weight standards need not be complied with under pain of dismissal dismissed because he repeatedly failed to meet the prescribed weight
since his weight did not hamper the performance of his standards.39 It is obvious that the issue of discrimination was only
duties.16 Assuming that it did, petitioner could be transferred to other invoked by petitioner for purposes of escaping the result of his
positions where his weight would not be a negative factor. 17 Notably, dismissal for being overweight.40
other overweight employees, i.e., Mr. Palacios, Mr. Cui, and Mr.
Barrios, were promoted instead of being disciplined.18
On May 10, 2005, the CA denied petitioner’s motion for
reconsideration.41 Elaborating on its earlier ruling, the CA held that the
Both parties appealed to the National Labor Relations Commission weight standards of PAL are a bona fide occupational
(NLRC).19 qualification which, in case of violation, "justifies an employee’s
separation from the service."42
On October 8, 1999, the Labor Arbiter issued a writ of execution
directing the reinstatement of petitioner without loss of seniority rights Issues
and other benefits.20

In this Rule 45 petition for review, the following issues are posed for
On February 1, 2000, the Labor Arbiter denied21 the Motion to Quash resolution:
Writ of Execution22 of PAL.

I.
On March 6, 2000, PAL appealed the denial of its motion to quash to
the NLRC.23
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED
24
IN HOLDING THATPETITIONER’S OBESITY CAN BE A GROUND
On June 23, 2000, the NLRC rendered judgment in the following FOR DISMISSAL UNDER PARAGRAPH (e) OF ARTICLE 282 OF
tenor: THE LABOR CODE OF THE PHILIPPINES;

22
II. The reliance on Nadura is off-tangent. The factual milieu in Nadura is
substantially different from the case at bar.First, Nadura was not
decided under the Labor Code. The law applied in that case was
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED
Republic Act (RA) No. 1787.Second, the issue of flight safety is absent
IN HOLDING THATPETITIONER’S DISMISSAL FOR OBESITY CAN
in Nadura, thus, the rationale there cannot apply here. Third,
BE PREDICATED ON THE "BONA FIDE OCCUPATIONAL
in Nadura, the employee who was a miner, was laid off from work
QUALIFICATION (BFOQ) DEFENSE";
because of illness, i.e., asthma. Here, petitioner was dismissed for his
failure to meet the weight standards of PAL. He was not dismissed due
III. to illness. Fourth, the issue in Nadura is whether or not the dismissed
employee is entitled to separation pay and damages. Here, the issue
centers on the propriety of the dismissal of petitioner for his failure to
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED meet the weight standards of PAL. Fifth, in Nadura, the employee was
IN HOLDING THAT PETITIONER WAS NOT UNDULY not accorded due process. Here, petitioner was accorded utmost
DISCRIMINATED AGAINST WHEN HE WAS DISMISSED WHILE leniency. He was given more than four (4) years to comply with the
OTHER OVERWEIGHT CABIN ATTENDANTS WERE EITHER weight standards of PAL.
GIVEN FLYING DUTIES OR PROMOTED;

In the case at bar, the evidence on record militates against petitioner’s


IV. claims that obesity is a disease. That he was able to reduce his weight
from 1984 to 1992 clearly shows that it is possible for him to lose
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED weight given the proper attitude, determination, and self-discipline.
WHEN IT BRUSHED ASIDE PETITIONER’S CLAIMS FOR Indeed, during the clarificatory hearing on December 8, 1992,
REINSTATEMENT [AND] WAGES ALLEGEDLY FOR BEING MOOT petitioner himself claimed that "[t]he issue is could I bring my weight
AND ACADEMIC.43 (Underscoring supplied) down to ideal weight which is 172, then the answer is yes. I can do it
now."49
Our Ruling
True, petitioner claims that reducing weight is costing him "a lot of
expenses."50 However, petitioner has only himself to blame. He could
I. The obesity of petitioner is a ground for dismissal under Article have easily availed the assistance of the company physician, per the
282(e) 44 of the Labor Code. advice of PAL.51He chose to ignore the suggestion. In fact, he
repeatedly failed to report when required to undergo weight checks,
A reading of the weight standards of PAL would lead to no other without offering a valid explanation. Thus, his fluctuating weight
conclusion than that they constitute a continuing qualification of an indicates absence of willpower rather than an illness.
employee in order to keep the job. Tersely put, an employee may be
dismissed the moment he is unable to comply with his ideal weight as Petitioner cites Bonnie Cook v. State of Rhode Island, Department of
prescribed by the weight standards. The dismissal of the employee Mental Health, Retardation and Hospitals,52decided by the United
would thus fall under Article 282(e) of the Labor Code. As explained by States Court of Appeals (First Circuit). In that case, Cook worked from
the CA: 1978 to 1980 and from 1981 to 1986 as an institutional attendant for
the mentally retarded at the Ladd Center that was being operated by
x x x [T]he standards violated in this case were not mere "orders" of respondent. She twice resigned voluntarily with an unblemished
the employer; they were the "prescribed weights" that a cabin crew record. Even respondent admitted that her performance met the
must maintain in order to qualify for and keep his or her position in Center’s legitimate expectations. In 1988, Cook re-applied for a similar
the company. In other words, they were standards that position. At that time, "she stood 5’2" tall and weighed over 320
establish continuing qualifications for an employee’s position. In this pounds." Respondent claimed that the morbid obesity of plaintiff
sense, the failure to maintain these standards does not fall under compromised her ability to evacuate patients in case of emergency
Article 282(a) whose express terms require the element of willfulness and it also put her at greater risk of serious diseases.
in order to be a ground for dismissal. The failure to meet the
employer’s qualifying standards is in fact a ground that does not Cook contended that the action of respondent amounted to
squarely fall under grounds (a) to (d) and is therefore one that falls discrimination on the basis of a handicap. This was in direct violation of
under Article 282(e) – the "other causes analogous to the foregoing." Section 504(a) of the Rehabilitation Act of 1973,53 which incorporates
the remedies contained in Title VI of the Civil Rights Act of 1964.
By its nature, these "qualifying standards" are norms that apply prior Respondent claimed, however, that morbid obesity could never
to and after an employee is hired. They apply prior to constitute a handicap within the purview of the Rehabilitation Act.
employment because these are the standards a job applicant must Among others, obesity is a mutable condition, thus plaintiff could
initially meet in order to be hired. They apply after hiring because an simply lose weight and rid herself of concomitant disability.
employee must continue to meet these standards while on the job in
order to keep his job. Under this perspective, a violation is not one of The appellate Court disagreed and held that morbid obesity is a
the faults for which an employee can be dismissed pursuant to pars. disability under the Rehabilitation Act and that respondent
(a) to (d) of Article 282; the employee can be dismissed simply discriminated against Cook based on "perceived" disability. The
because he no longer "qualifies" for his job irrespective of whether or evidence included expert testimony that morbid obesity is a
not the failure to qualify was willful or intentional. x x x45 physiological disorder. It involves a dysfunction of both the metabolic
system and the neurological appetite – suppressing signal system,
Petitioner, though, advances a very interesting argument. He claims which is capable of causing adverse effects within the musculoskeletal,
that obesity is a "physical abnormality and/or illness."46 Relying respiratory, and cardiovascular systems. Notably, the Court stated that
on Nadura v. Benguet Consolidated, Inc.,47 he says his dismissal is "mutability is relevant only in determining the substantiality of the
illegal: limitation flowing from a given impairment," thus "mutability only
precludes those conditions that an individual can easily and quickly
reverse by behavioral alteration."
Conscious of the fact that Nadura’s case cannot be made to fall
squarely within the specific causes enumerated in subparagraphs 1(a)
to (e), Benguet invokes the provisions of subparagraph 1(f) and says Unlike Cook, however, petitioner is not morbidly obese. In the words of
that Nadura’s illness – occasional attacks of asthma – is a cause the District Court for the District of Rhode Island, Cook was sometime
analogous to them. before 1978 "at least one hundred pounds more than what is
considered appropriate of her height." According to the Circuit Judge,
Cook weighed "over 320 pounds" in 1988. Clearly, that is not the case
Even a cursory reading of the legal provision under consideration is here. At his heaviest, petitioner was only less than 50 pounds over his
sufficient to convince anyone that, as the trial court said, "illness ideal weight.
cannot be included as an analogous cause by any stretch of
imagination."
In fine, We hold that the obesity of petitioner, when placed in the
context of his work as flight attendant, becomes an analogous cause
It is clear that, except the just cause mentioned in sub-paragraph 1(a), under Article 282(e) of the Labor Code that justifies his dismissal from
all the others expressly enumerated in the law are due to the voluntary the service. His obesity may not be unintended, but is nonetheless
and/or willful act of the employee. How Nadura’s illness could be voluntary. As the CA correctly puts it, "[v]oluntariness basically means
considered as "analogous" to any of them is beyond our that the just cause is solely attributable to the employee without any
understanding, there being no claim or pretense that the same was external force influencing or controlling his actions. This element runs
contracted through his own voluntary act.48 through all just causes under Article 282, whether they be in the nature
of a wrongful action or omission. Gross and habitual neglect, a

23
recognized just cause, is considered voluntary although it lacks the when something goes wrong. It is not farfetched to say that airline
element of intent found in Article 282(a), (c), and (d)."54 companies, just like all common carriers, thrive due to public
confidence on their safety records. People, especially the riding public,
expect no less than that airline companies transport their passengers
II. The dismissal of petitioner can be predicated on the bona fide
to their respective destinations safely and soundly. A lesser
occupational qualification defense.
performance is unacceptable.

Employment in particular jobs may not be limited to persons of a


The task of a cabin crew or flight attendant is not limited to serving
particular sex, religion, or national origin unless the employer can show
meals or attending to the whims and caprices of the passengers. The
that sex, religion, or national origin is an actual qualification for
most important activity of the cabin crew is to care for the safety of
performing the job. The qualification is called a bona fide occupational
passengers and the evacuation of the aircraft when an emergency
qualification (BFOQ).55 In the United States, there are a few federal
occurs. Passenger safety goes to the core of the job of a cabin
and many state job discrimination laws that contain an exception
attendant. Truly, airlines need cabin attendants who have the
allowing an employer to engage in an otherwise unlawful form of
necessary strength to open emergency doors, the agility to attend to
prohibited discrimination when the action is based on a BFOQ
passengers in cramped working conditions, and the stamina to
necessary to the normal operation of a business or enterprise.56
withstand grueling flight schedules.

Petitioner contends that BFOQ is a statutory defense. It does not exist


On board an aircraft, the body weight and size of a cabin attendant are
if there is no statute providing for it.57Further, there is no existing BFOQ
important factors to consider in case of emergency. Aircrafts have
statute that could justify his dismissal.58
constricted cabin space, and narrow aisles and exit doors. Thus, the
arguments of respondent that "[w]hether the airline’s flight attendants
Both arguments must fail. are overweight or not has no direct relation to its mission of
transporting passengers to their destination"; and that the weight
standards "has nothing to do with airworthiness of respondent’s
First, the Constitution,59 the Labor Code,60 and RA No. 727761 or the
airlines," must fail.
Magna Carta for Disabled Persons62 contain provisions similar to
BFOQ.
The rationale in Western Air Lines v. Criswell76 relied upon by
petitioner cannot apply to his case. What was involved there were two
Second, in British Columbia Public Service Employee Commission (2) airline pilots who were denied reassignment as flight engineers
(BSPSERC) v. The British Columbia Government and Service upon reaching the age of 60, and a flight engineer who was forced to
Employee’s Union (BCGSEU),63 the Supreme Court of Canada
retire at age 60. They sued the airline company, alleging that the age-
adopted the so-called "Meiorin Test" in determining whether an 60 retirement for flight engineers violated the Age Discrimination in
employment policy is justified. Under this test, (1) the employer must Employment Act of 1967. Age-based BFOQ and being overweight are
show that it adopted the standard for a purpose rationally connected to
not the same. The case of overweight cabin attendants is another
the performance of the job;64 (2) the employer must establish that the matter. Given the cramped cabin space and narrow aisles and
standard is reasonably necessary65 to the accomplishment of that emergency exit doors of the airplane, any overweight cabin attendant
work-related purpose; and (3) the employer must establish that the
would certainly have difficulty navigating the cramped cabin area.
standard is reasonably necessary in order to accomplish the legitimate
work-related purpose. Similarly, in Star Paper Corporation v.
Simbol,66 this Court held that in order to justify a BFOQ, the employer In short, there is no need to individually evaluate their ability to perform
must prove that (1) the employment qualification is reasonably related their task. That an obese cabin attendant occupies more space than a
to the essential operation of the job involved; and (2) that there is slim one is an unquestionable fact which courts can judicially recognize
factual basis for believing that all or substantially all persons meeting without introduction of evidence.77 It would also be absurd to require
the qualification would be unable to properly perform the duties of the airline companies to reconfigure the aircraft in order to widen the aisles
job.67 and exit doors just to accommodate overweight cabin attendants like
petitioner.
In short, the test of reasonableness of the company policy is used
because it is parallel to BFOQ.68 BFOQ is valid "provided it reflects an The biggest problem with an overweight cabin attendant is the
inherent quality reasonably necessary for satisfactory job possibility of impeding passengers from evacuating the aircraft, should
performance."69 the occasion call for it. The job of a cabin attendant during
emergencies is to speedily get the passengers out of the aircraft
safely. Being overweight necessarily impedes mobility. Indeed, in an
In Duncan Association of Detailman-PTGWTO v. Glaxo Wellcome
emergency situation, seconds are what cabin attendants are dealing
Philippines, Inc.,70 the Court did not hesitate to pass upon the validity with, not minutes. Three lost seconds can translate into three lost lives.
of a company policy which prohibits its employees from marrying Evacuation might slow down just because a wide-bodied cabin
employees of a rival company. It was held that the company policy is
attendant is blocking the narrow aisles. These possibilities are not
reasonable considering that its purpose is the protection of the remote.
interests of the company against possible competitor infiltration on its
trade secrets and procedures.
Petitioner is also in estoppel. He does not dispute that the weight
standards of PAL were made known to him prior to his employment.
Verily, there is no merit to the argument that BFOQ cannot be applied He is presumed to know the weight limit that he must maintain at all
if it has no supporting statute. Too, the Labor Arbiter, 71 NLRC,72 and
times.78 In fact, never did he question the authority of PAL when he
CA73 are one in holding that the weight standards of PAL are was repeatedly asked to trim down his weight. Bona fides exigit ut
reasonable. A common carrier, from the nature of its business and for quod convenit fiat. Good faith demands that what is agreed upon shall
reasons of public policy, is bound to observe extraordinary diligence for
be done. Kung ang tao ay tapat kanyang tutuparin ang
the safety of the passengers it transports. 74 It is bound to carry its napagkasunduan.
passengers safely as far as human care and foresight can provide,
using the utmost diligence of very cautious persons, with due regard
for all the circumstances.75 Too, the weight standards of PAL provide for separate weight
limitations based on height and body frame for both male and female
cabin attendants. A progressive discipline is imposed to allow non-
The law leaves no room for mistake or oversight on the part of a compliant cabin attendants sufficient opportunity to meet the weight
common carrier. Thus, it is only logical to hold that the weight standards. Thus, the clear-cut rules obviate any possibility for the
standards of PAL show its effort to comply with the exacting obligations commission of abuse or arbitrary action on the part of PAL.
imposed upon it by law by virtue of being a common carrier.

III. Petitioner failed to substantiate his claim that he was


The business of PAL is air transportation. As such, it has committed discriminated against by PAL.
itself to safely transport its passengers. In order to achieve this, it must
necessarily rely on its employees, most particularly the cabin flight
deck crew who are on board the aircraft. The weight standards of PAL Petitioner next claims that PAL is using passenger safety as a
should be viewed as imposing strict norms of discipline upon its convenient excuse to discriminate against him.79 We are constrained,
employees. however, to hold otherwise. We agree with the CA that "[t]he element
of discrimination came into play in this case as a secondary position for
the private respondent in order to escape the consequence of
In other words, the primary objective of PAL in the imposition of the dismissal that being overweight entailed. It is a confession-and-
weight standards for cabin crew is flight safety. It cannot be gainsaid avoidance position that impliedly admitted the cause of dismissal,
that cabin attendants must maintain agility at all times in order to
including the reasonableness of the applicable standard and the
inspire passenger confidence on their ability to care for the passengers
24
private respondent’s failure to comply."80 It is a basic rule in evidence from the time the employer failed to reinstate him despite the issuance
that each party must prove his affirmative allegation.81 of a writ of execution"98 and ""even if the order of reinstatement of the
Labor Arbiter is reversed on appeal, it is obligatory on the part of the
employer to reinstate and pay the wages of the employee during the
Since the burden of evidence lies with the party who asserts an
period of appeal until reversal by the higher court."99 He failed to prove
affirmative allegation, petitioner has to prove his allegation with
that he complied with the return to work order of PAL. Neither does it
particularity. There is nothing on the records which could support the
appear on record that he actually rendered services for PAL from the
finding of discriminatory treatment. Petitioner cannot establish
moment he was dismissed, in order to insist on the payment of his full
discrimination by simply naming the supposed cabin attendants who
backwages.
are allegedly similarly situated with him. Substantial proof must be
shown as to how and why they are similarly situated and the
differential treatment petitioner got from PAL despite the similarity of In insisting that he be reinstated to his actual position despite being
his situation with other employees. overweight, petitioner in effect wants to render the issues in the
present case moot. He asks PAL to comply with the impossible. Time
and again, the Court ruled that the law does not exact compliance with
Indeed, except for pointing out the names of the supposed overweight
the impossible.100
cabin attendants, petitioner miserably failed to indicate their respective
ideal weights; weights over their ideal weights; the periods they were
allowed to fly despite their being overweight; the particular flights V. Petitioner is entitled to separation pay.
assigned to them; the discriminating treatment they got from PAL; and
other relevant data that could have adequately established a case of
Be that as it may, all is not lost for petitioner.
discriminatory treatment by PAL. In the words of the CA, "PAL really
had no substantial case of discrimination to meet."82
Normally, a legally dismissed employee is not entitled to separation
pay. This may be deduced from the language of Article 279 of the
We are not unmindful that findings of facts of administrative agencies,
Labor Code that "[a]n employee who is unjustly dismissed from work
like the Labor Arbiter and the NLRC, are accorded respect, even
shall be entitled to reinstatement without loss of seniority rights and
finality.83 The reason is simple: administrative agencies are experts in
other privileges and to his full backwages, inclusive of allowances, and
matters within their specific and specialized jurisdiction. 84 But the
to his other benefits or their monetary equivalent computed from the
principle is not a hard and fast rule. It only applies if the findings of
time his compensation was withheld from him up to the time of his
facts are duly supported by substantial evidence. If it can be shown
actual reinstatement." Luckily for petitioner, this is not an ironclad rule.
that administrative bodies grossly misappreciated evidence of such
nature so as to compel a conclusion to the contrary, their findings of
facts must necessarily be reversed. Factual findings of administrative Exceptionally, separation pay is granted to a legally dismissed
agencies do not have infallibility and must be set aside when they fail employee as an act "social justice,"101 or based on "equity."102 In both
the test of arbitrariness.85 instances, it is required that the dismissal (1) was not for serious
misconduct; and (2) does not reflect on the moral character of the
employee.103
Here, the Labor Arbiter and the NLRC inexplicably misappreciated
evidence. We thus annul their findings.
Here, We grant petitioner separation pay equivalent to one-half (1/2)
month’s pay for every year of service.104 It should include regular
To make his claim more believable, petitioner invokes the equal
allowances which he might have been receiving. 105 We are not blind to
protection clause guaranty86 of the Constitution. However, in the
the fact that he was not dismissed for any serious misconduct or to any
absence of governmental interference, the liberties guaranteed by the
act which would reflect on his moral character. We also recognize that
Constitution cannot be invoked.87 Put differently, the Bill of Rights is not
his employment with PAL lasted for more or less a decade.
meant to be invoked against acts of private individuals.88 Indeed, the
United States Supreme Court, in interpreting the Fourteenth
Amendment,89 which is the source of our equal protection guarantee, is WHEREFORE, the appealed Decision of the Court of Appeals
consistent in saying that the equal protection erects no shield against is AFFIRMED but MODIFIED in that petitioner Armando G. Yrasuegui
private conduct, however discriminatory or wrongful. 90 Private actions, is entitled to separation pay in an amount equivalent to one-half (1/2)
no matter how egregious, cannot violate the equal protection month’s pay for every year of service, which should include his regular
guarantee.91 allowances. SO ORDERED.

IV. The claims of petitioner for reinstatement and wages are moot.

As his last contention, petitioner avers that his claims for reinstatement G.R. No. 196271 October 18, 2011
and wages have not been mooted. He is entitled to reinstatement and
his full backwages, "from the time he was illegally dismissed" up to the
time that the NLRC was reversed by the CA.92 DATU MICHAEL ABAS KIDA, vs.
SENATE OF THE
At this point, Article 223 of the Labor Code finds relevance:
DECISION
In any event, the decision of the Labor Arbiter reinstating a dismissed
or separated employee, insofar as the reinstatement aspect is BRION, J.:
concerned, shall immediately be executory, even pending appeal. The
employee shall either be admitted back to work under the same terms On June 30, 2011, Republic Act (RA) No. 10153, entitled "An Act
and conditions prevailing prior to his dismissal or separation or, at the Providing for the Synchronization of the Elections in the Autonomous
option of the employer, merely reinstated in the payroll. The posting of Region in Muslim Mindanao (ARMM) with the National and Local
a bond by the employer shall not stay the execution for reinstatement Elections and for Other Purposes" was enacted. The law reset the
provided herein. ARMM elections from the 8th of August 2011, to the second Monday of
May 2013 and every three (3) years thereafter, to coincide with the
The law is very clear. Although an award or order of reinstatement is country’s regular national and local elections. The law as well granted
self-executory and does not require a writ of execution, 93 the option to the President the power to "appoint officers-in-charge (OICs) for the
exercise actual reinstatement or payroll reinstatement belongs to the Office of the Regional Governor, the Regional Vice-Governor, and the
employer. It does not belong to the employee, to the labor tribunals, or Members of the Regional Legislative Assembly, who shall perform the
even to the courts. functions pertaining to the said offices until the officials duly elected in
the May 2013 elections shall have qualified and assumed office."
Contrary to the allegation of petitioner that PAL "did everything under
the sun" to frustrate his "immediate return to his previous Even before its formal passage, the bills that became RA No. 10153
position,"94 there is evidence that PAL opted to physically reinstate him already spawned petitions against their validity; House Bill No. 4146
to a substantially equivalent position in accordance with the order of and Senate Bill No. 2756 were challenged in petitions filed with this
the Labor Arbiter.95 In fact, petitioner duly received the return to work Court. These petitions multiplied after RA No. 10153 was passed.
notice on February 23, 2001, as shown by his signature.96
Factual Antecedents
Petitioner cannot take refuge in the pronouncements of the Court in a
case97 that "[t]he unjustified refusal of the employer to reinstate the
dismissed employee entitles him to payment of his salaries effective
25
The State, through Sections 15 to 22, Article X of the 1987 Senators voted favorably for its passage. On June 7, 2011, the House
Constitution, mandated the creation of autonomous regions in Muslim of Representative concurred with the Senate amendments, and on
Mindanao and the Cordilleras. Section 15 states: June 30, 2011, the President signed RA No. 10153 into law.

Section 15. There shall be created autonomous regions in Muslim As mentioned, the early challenge to RA No. 10153 came through a
Mindanao and in the Cordilleras consisting of provinces, cities, petition filed with this Court – G.R. No. 1962713 - assailing the
municipalities, and geographical areas sharing common and distinctive constitutionality of both HB No. 4146 and SB No. 2756, and
historical and cultural heritage, economic and social structures, and challenging the validity of RA No. 9333 as well for non-compliance with
other relevant characteristics within the framework of this Constitution the constitutional plebiscite requirement. Thereafter, petitioner Basari
and the national sovereignty as well as territorial integrity of the Mapupuno in G.R. No. 196305 filed another petition4 also assailing the
Republic of the Philippines. validity of RA No. 9333.

Section 18 of the Article, on the other hand, directed Congress to enact With the enactment into law of RA No. 10153, the COMELEC stopped
an organic act for these autonomous regions to concretely carry into its preparations for the ARMM elections. The law gave rise as well to
effect the granted autonomy. the filing of the following petitions against its constitutionality:

Section 18. The Congress shall enact an organic act for each a) Petition for Certiorari and Prohibition5 filed by Rep. Edcel
autonomous region with the assistance and participation of the Lagman as a member of the House of Representatives
regional consultative commission composed of representatives against Paquito Ochoa, Jr. (in his capacity as the Executive
appointed by the President from a list of nominees from multisectoral Secretary) and the COMELEC, docketed as G.R. No.
bodies. The organic act shall define the basic structure of government 197221;
for the region consisting of the executive department and legislative
assembly, both of which shall be elective and representative of the
b) Petition for Mandamus and Prohibition6 filed by Atty.
constituent political units. The organic acts shall likewise provide for
Romulo Macalintal as a taxpayer against the COMELEC,
special courts with personal, family and property law jurisdiction
docketed as G.R. No. 197282;
consistent with the provisions of this Constitution and national laws.

c) Petition for Certiorari and Mandamus, Injunction and


The creation of the autonomous region shall be effective when
Preliminary Injunction7 filed by Louis "Barok" Biraogo against
approved by a majority of the votes cast by the constituent units in a
the COMELEC and Executive Secretary Paquito N. Ochoa,
plebiscite called for the purpose, provided that only provinces, cities,
Jr., docketed as G.R. No. 197392; and
and geographic areas voting favorably in such plebiscite shall be
included in the autonomous region.
d) Petition for Certiorari and Mandamus8 filed by Jacinto
Paras as a member of the House of Representatives against
On August 1, 1989 or two years after the effectivity of the 1987
Executive Secretary Paquito Ochoa, Jr. and the COMELEC,
Constitution, Congress acted through Republic Act (RA) No. 6734
docketed as G.R. No. 197454.
entitled "An Act Providing for an Organic Act for the Autonomous
Region in Muslim Mindanao." A plebiscite was held on November 6,
1990 as required by Section 18(2), Article X of RA No. 6734, thus fully Petitioners Alamarim Centi Tillah and Datu Casan Conding Cana as
establishing the Autonomous Region of Muslim Mindanao (ARMM). registered voters from the ARMM, with the Partido Demokratiko
The initially assenting provinces were Lanao del Sur, Maguindanao, Pilipino Lakas ng Bayan (a political party with candidates in the ARMM
Sulu and Tawi-tawi. RA No. 6734 scheduled the first regular elections regional elections scheduled for August 8, 2011), also filed a Petition
for the regional officials of the ARMM on a date not earlier than 60 for Prohibition and Mandamus9 against the COMELEC, docketed as
days nor later than 90 days after its ratification. G.R. No. 197280, to assail the constitutionality of RA No. 9140, RA No.
9333 and RA No. 10153.
RA No. 9054 (entitled "An Act to Strengthen and Expand the Organic
Act for the Autonomous Region in Muslim Mindanao, Amending for the Subsequently, Anak Mindanao Party-List, Minority Rights Forum
Purpose Republic Act No. 6734, entitled An Act Providing for the Philippines, Inc. and Bangsamoro Solidarity Movement filed their own
Autonomous Region in Muslim Mindanao, as Amended") was the next Motion for Leave to Admit their Motion for Intervention and Comment-
legislative act passed. This law provided further refinement in the basic in-Intervention dated July 18, 2011. On July 26, 2011, the Court
ARMM structure first defined in the original organic act, and reset the granted the motion. In the same Resolution, the Court ordered the
regular elections for the ARMM regional officials to the second Monday consolidation of all the petitions relating to the constitutionality of HB
of September 2001. No. 4146, SB No. 2756, RA No. 9333, and RA No. 10153.

Congress passed the next law affecting ARMM – RA No. 91401 - on Oral arguments were held on August 9, 2011 and August 16, 2011.
June 22, 2001. This law reset the first regular elections originally Thereafter, the parties were instructed to submit their respective
scheduled under RA No. 9054, to November 26, 2001. It likewise set memoranda within twenty (20) days.
the plebiscite to ratify RA No. 9054 to not later than August 15, 2001.
On September 13, 2011, the Court issued a temporary restraining
RA No. 9054 was ratified in a plebiscite held on August 14, 2001. The order enjoining the implementation of RA No. 10153 and ordering the
province of Basilan and Marawi City voted to join ARMM on the same incumbent elective officials of ARMM to continue to perform their
date. functions should these cases not be decided by the end of their term
on September 30, 2011.
RA No. 93332 was subsequently passed by Congress to reset the
ARMM regional elections to the 2nd Monday of August 2005, and on The Arguments
the same date every 3 years thereafter. Unlike RA No. 6734 and RA
No. 9054, RA No. 9333 was not ratified in a plebiscite.
The petitioners assailing RA No. 9140, RA No. 9333 and RA No.
10153 assert that these laws amend RA No. 9054 and thus, have to
Pursuant to RA No. 9333, the next ARMM regional elections should comply with the supermajority vote and plebiscite requirements
have been held on August 8, 2011. COMELEC had begun prescribed under Sections 1 and 3, Article XVII of RA No. 9094 in
preparations for these elections and had accepted certificates of order to become effective.
candidacies for the various regional offices to be elected. But on June
30, 2011, RA No. 10153 was enacted, resetting the ARMM elections to
May 2013, to coincide with the regular national and local elections of The petitions assailing RA No. 10153 further maintain that it is
the country. unconstitutional for its failure to comply with the three-reading
requirement of Section 26(2), Article VI of the Constitution. Also cited
as grounds are the alleged violations of the right of suffrage of the
RA No. 10153 originated in the House of Representatives as House people of ARMM, as well as the failure to adhere to the "elective and
Bill (HB) No. 4146, seeking the postponement of the ARMM elections representative" character of the executive and legislative departments
scheduled on August 8, 2011. On March 22, 2011, the House of of the ARMM. Lastly, the petitioners challenged the grant to the
Representatives passed HB No. 4146, with one hundred ninety one President of the power to appoint OICs to undertake the functions of
(191) Members voting in its favor. the elective ARMM officials until the officials elected under the May
2013 regular elections shall have assumed office. Corrolarily, they also
argue that the power of appointment also gave the President the power
After the Senate received HB No. 4146, it adopted its own version,
Senate Bill No. 2756 (SB No. 2756), on June 6, 2011. Thirteen (13)
26
of control over the ARMM, in complete violation of Section 16, Article X Section 5. The six-year term of the incumbent President and Vice
of the Constitution. President elected in the February 7, 1986 election is, for purposes of
synchronization of elections, hereby extended to noon of June 30,
1992.
The Issues

The first regular elections for President and Vice-President under this
From the parties’ submissions, the following issues were recognized
Constitution shall be held on the second Monday of May, 1992.
and argued by the parties in the oral arguments of August 9 and 16,
2011:
We agree with this position.
I. Whether the 1987 Constitution mandates the synchronization of
elections While the Constitution does not expressly state that Congress has to
synchronize national and local elections, the clear intent towards this
objective can be gleaned from the Transitory Provisions (Article XVIII)
II. Whether the passage of RA No. 10153 violates Section 26(2),
of the Constitution,10 which show the extent to which the Constitutional
Article VI of the 1987 Constitution
Commission, by deliberately making adjustments to the terms of the
incumbent officials, sought to attain synchronization of elections.11
III. Whether the passage of RA No. 10153 requires a supermajority
vote and plebiscite
The objective behind setting a common termination date for all elective
officials, done among others through the shortening the terms of the
A. Does the postponement of the ARMM regular elections twelve winning senators with the least number of votes, is to
constitute an amendment to Section 7, Article XVIII of RA No. synchronize the holding of all future elections – whether national or
9054? local – to once every three years.12 This intention finds full support in
the discussions during the Constitutional Commission deliberations.13
B. Does the requirement of a supermajority vote for amendments
or revisions to RA No. 9054 violate Section 1 and Section 16(2), These Constitutional Commission exchanges, read with the provisions
Article VI of the 1987 Constitution and the corollary doctrine on of the Transitory Provisions of the Constitution, all serve as patent
irrepealable laws? indicators of the constitutional mandate to hold synchronized national
and local elections, starting the second Monday of May, 1992 and for
all the following elections.
C. Does the requirement of a plebiscite apply only in the creation
of autonomous regions under paragraph 2, Section 18, Article X
of the 1987 Constitution? This Court was not left behind in recognizing the synchronization of the
national and local elections as a constitutional mandate. In Osmeña v.
Commission on Elections,14 we explained:
IV. Whether RA No. 10153 violates the autonomy granted to the
ARMM
It is clear from the aforequoted provisions of the 1987 Constitution that
the terms of office of Senators, Members of the House of
V. Whether the grant of the power to appoint OICs violates:
Representatives, the local officials, the President and the Vice-
President have been synchronized to end on the same hour, date and
A. Section 15, Article X of the 1987 Constitution year — noon of June 30, 1992.

B. Section 16, Article X of the 1987 Constitution It is likewise evident from the wording of the above-mentioned Sections
that the term of synchronization is used synonymously as the
phrase holding simultaneously since this is the precise intent in
C. Section 18, Article X of the 1987 Constitution terminating their Office Tenure on the same day or occasion. This
common termination date will synchronize future elections to once
VI. Whether the proposal to hold special elections is constitutional and every three years (Bernas, the Constitution of the Republic of the
legal. Philippines, Vol. II, p. 605).

We shall discuss these issues in the order they are presented above. That the election for Senators, Members of the House of
Representatives and the local officials (under Sec. 2, Art. XVIII) will
have to be synchronized with the election for President and Vice
OUR RULING President (under Sec. 5, Art. XVIII) is likewise evident from the x x x
records of the proceedings in the Constitutional Commission.
We resolve to DISMISS the petitions and thereby UPHOLD the [Emphasis supplied.]
constitutionality of RA No. 10153 in toto.
Although called regional elections, the ARMM elections should be
I. Synchronization as a recognized constitutional mandate included among the elections to be synchronized as it is a "local"
election based on the wording and structure of the
Constitution.1avvphil
The respondent Office of the Solicitor General (OSG) argues that the
Constitution mandates synchronization, and in support of this position,
cites Sections 1, 2 and 5, Article XVIII (Transitory Provisions) of the A basic rule in constitutional construction is that the words used should
1987 Constitution, which provides: be understood in the sense that they have in common use and given
their ordinary meaning, except when technical terms are employed, in
which case the significance thus attached to them prevails. 15 As this
Section 1. The first elections of Members of the Congress under this Court explained in People v. Derilo,16 "[a]s the Constitution is not
Constitution shall be held on the second Monday of May, 1987. primarily a lawyer’s document, its language should be understood in
the sense that it may have in common. Its words should be given their
The first local elections shall be held on a date to be determined by the ordinary meaning except where technical terms are employed."
President, which may be simultaneous with the election of the
Members of the Congress. It shall include the election of all Members Understood in its ordinary sense, the word "local" refers to something
of the city or municipal councils in the Metropolitan Manila area. that primarily serves the needs of a particular limited district, often a
community or minor political subdivision.17 Regional elections in the
Section 2. The Senators, Members of the House of Representatives ARMM for the positions of governor, vice-governor and regional
and the local officials first elected under this Constitution shall serve assembly representatives obviously fall within this classification, since
until noon of June 30, 1992. they pertain to the elected officials who will serve within the limited
region of ARMM.
Of the Senators elected in the election in 1992, the first twelve
obtaining the highest number of votes shall serve for six year and the From the perspective of the Constitution, autonomous regions are
remaining twelve for three years. considered one of the forms of local governments, as evident from
Article X of the Constitution entitled "Local Government." Autonomous
regions are established and discussed under Sections 15 to 21 of this
xxx Article – the article wholly devoted to Local Government. That an

27
autonomous region is considered a form of local government is also In any case, despite the President’s certification, the two-fold purpose
reflected in Section 1, Article X of the Constitution, which provides: that underlies the requirement for three readings on separate days of
every bill must always be observed to enable our legislators and other
parties interested in pending bills to intelligently respond to them.
Section 1. The territorial and political subdivisions of the Republic of
Specifically, the purpose with respect to Members of Congress is: (1)
the Philippines are the provinces, cities, municipalities, and barangays.
to inform the legislators of the matters they shall vote on and (2) to give
There shall be autonomous regions in Muslim Mindanao, and the
them notice that a measure is in progress through the enactment
Cordilleras as hereinafter provided.
process.23

Thus, we find the contention – that the synchronization mandated by


We find, based on the records of the deliberations on the law, that both
the Constitution does not include the regional elections of the ARMM –
advocates and the opponents of the proposed measure had sufficient
unmeritorious. We shall refer to synchronization in the course of our
opportunities to present their views. In this light, no reason exists to
discussions below, as this concept permeates the consideration of the
nullify RA No. 10153 on the cited ground.
various issues posed in this case and must be recalled time and again
for its complete resolution.
III. A. RA No. 9333 and RA No. 10153 are not amendments to RA No.
9054
II. The President’s Certification on the Urgency of RA No. 10153

The effectivity of RA No. 9333 and RA No. 10153 has also been
The petitioners in G.R. No. 197280 also challenge the validity of RA
challenged because they did not comply with Sections 1 and 3, Article
No. 10153 for its alleged failure to comply with Section 26(2), Article VI
XVII of RA No. 9054 in amending this law. These provisions require:
of the Constitution18 which provides that before bills passed by either
the House or the Senate can become laws, they must pass through
three readings on separate days. The exception is when the President Section 1. Consistent with the provisions of the Constitution, this
certifies to the necessity of the bill’s immediate enactment. Organic Act may be reamended or revised by the Congress of the
Philippines upon a vote of two-thirds (2/3) of the Members of the
House of Representatives and of the Senate voting separately.
The Court, in Tolentino v. Secretary of Finance,19 explained the effect
of the President’s certification of necessity in the following manner:
Section 3. Any amendment to or revision of this Organic Act shall
become effective only when approved by a majority of the vote cast in
The presidential certification dispensed with the requirement not only
a plebiscite called for the purpose, which shall be held not earlier than
of printing but also that of reading the bill on separate days. The
sixty (60) days or later than ninety (90) days after the approval of such
phrase "except when the President certifies to the necessity of its
amendment or revision.
immediate enactment, etc." in Art. VI, Section 26[2] qualifies the two
stated conditions before a bill can become a law: [i] the bill has passed
three readings on separate days and [ii] it has been printed in its final We find no merit in this contention.
form and distributed three days before it is finally approved.
In the first place, neither RA No. 9333 nor RA No. 10153 amends RA
xxx No. 9054. As an examination of these laws will show, RA No. 9054
only provides for the schedule of the first ARMM elections and does
not fix the date of the regular elections. A need therefore existed for
That upon the certification of a bill by the President, the requirement of
the Congress to fix the date of the subsequent ARMM regular
three readings on separate days and of printing and distribution can be
elections, which it did by enacting RA No. 9333 and thereafter, RA No.
dispensed with is supported by the weight of legislative practice. For
10153. Obviously, these subsequent laws – RA No. 9333 and RA No.
example, the bill defining the certiorari jurisdiction of this Court which,
10153 – cannot be considered amendments to RA No. 9054 as they
in consolidation with the Senate version, became Republic Act No.
did not change or revise any provision in the latter law; they merely
5440, was passed on second and third readings in the House of
filled in a gap in RA No. 9054 or supplemented the law by providing the
Representatives on the same day [May 14, 1968] after the bill had
date of the subsequent regular elections.
been certified by the President as urgent.

This view – that Congress thought it best to leave the determination of


In the present case, the records show that the President wrote to the
the date of succeeding ARMM elections to legislative discretion – finds
Speaker of the House of Representatives to certify the necessity of the
support in ARMM’s recent history.
immediate enactment of a law synchronizing the ARMM elections with
the national and local elections.20 Following our Tolentino ruling, the
President’s certification exempted both the House and the Senate from To recall, RA No. 10153 is not the first law passed that rescheduled
having to comply with the three separate readings requirement. the ARMM elections. The First Organic Act – RA No. 6734 – not only
did not fix the date of the subsequent elections; it did not even fix the
specific date of the first ARMM elections, 24 leaving the date to be fixed
On the follow-up contention that no necessity existed for the immediate
in another legislative enactment. Consequently, RA No. 7647,25 RA No.
enactment of these bills since there was no public calamity or
8176,26 RA No. 8746,27 RA No. 8753,28 and RA No. 901229 were all
emergency that had to be met, again we hark back to our ruling in
enacted by Congress to fix the dates of the ARMM elections. Since
Tolentino:
these laws did not change or modify any part or provision of RA No.
6734, they were not amendments to this latter law. Consequently,
The sufficiency of the factual basis of the suspension of the writ of there was no need to submit them to any plebiscite for ratification.
habeas corpus or declaration of martial law Art. VII, Section 18, or the
existence of a national emergency justifying the delegation of
The Second Organic Act – RA No. 9054 – which lapsed into law on
extraordinary powers to the President under Art. VI, Section 23(2) is
March 31, 2001, provided that the first elections would be held on the
subject to judicial review because basic rights of individuals may be of
second Monday of September 2001. Thereafter, Congress passed RA
hazard. But the factual basis of presidential certification of bills, which
No. 914030to reset the date of the ARMM elections. Significantly, while
involves doing away with procedural requirements designed to insure
RA No. 9140 also scheduled the plebiscite for the ratification of the
that bills are duly considered by members of Congress, certainly
Second Organic Act (RA No. 9054), the new date of the ARMM
should elicit a different standard of review. [Emphasis supplied.]
regional elections fixed in RA No. 9140 was not among the provisions
ratified in the plebiscite held to approve RA No. 9054. Thereafter,
The House of Representatives and the Senate – in the exercise of their Congress passed RA No. 9333,31 which further reset the date of the
legislative discretion – gave full recognition to the President’s ARMM regional elections. Again, this law was not ratified through a
certification and promptly enacted RA No. 10153. Under the plebiscite.
circumstances, nothing short of grave abuse of discretion on the part of
the two houses of Congress can justify our intrusion under our power
From these legislative actions, we see the clear intention of Congress
of judicial review.21
to treat the laws which fix the date of the subsequent ARMM elections
as separate and distinct from the Organic Acts. Congress only acted
The petitioners, however, failed to provide us with any cause or consistently with this intent when it passed RA No. 10153 without
justification for this course of action. Hence, while the judicial requiring compliance with the amendment prerequisites embodied in
department and this Court are not bound by the acceptance of the Section 1 and Section 3, Article XVII of RA No. 9054.
President's certification by both the House of Representatives and the
Senate, prudent exercise of our powers and respect due our co-equal
III. B. Supermajority voting requirement unconstitutional for giving RA
branches of government in matters committed to them by the
No. 9054 the character of an irrepealable law
Constitution, caution a stay of the judicial hand.22

28
Even assuming that RA No. 9333 and RA No. 10153 did in fact amend government; (b) the region’s judicial system, i.e., the special courts
RA No. 9054, the supermajority (2/3) voting requirement required with personal, family, and property law jurisdiction; and, (c) the grant
under Section 1, Article XVII of RA No. 905432 has to be struck down and extent of the legislative powers constitutionally conceded to the
for giving RA No. 9054 the character of an irrepealable law by requiring regional government under Section 20, Article X of the Constitution. 36
more than what the Constitution demands.
The date of the ARMM elections does not fall under any of the matters
Section 16(2), Article VI of the Constitution provides that a "majority of that the Constitution specifically mandated Congress to provide for in
each House shall constitute a quorum to do business." In other words, the Organic Act. Therefore, even assuming that the supermajority
as long as majority of the members of the House of Representatives or votes and the plebiscite requirements are valid, any change in the date
the Senate are present, these bodies have the quorum needed to of elections cannot be construed as a substantial amendment of the
conduct business and hold session. Within a quorum, a vote of Organic Act that would require compliance with these requirements.
majority is generally sufficient to enact laws or approve acts.
IV. The synchronization issue
In contrast, Section 1, Article XVII of RA No. 9054 requires a vote of no
less than two-thirds (2/3) of the Members of the House of
As we discussed above, synchronization of national and local elections
Representatives and of the Senate, voting separately, in order to
is a constitutional mandate that Congress must provide for and this
effectively amend RA No. 9054. Clearly, this 2/3 voting requirement is
synchronization must include the ARMM elections. On this point, an
higher than what the Constitution requires for the passage of bills, and
existing law in fact already exists – RA No. 7166 – as the forerunner of
served to restrain the plenary powers of Congress to amend, revise or
the current RA No. 10153. RA No. 7166 already provides for the
repeal the laws it had passed. The Court’s pronouncement in City of
synchronization of local elections with the national and congressional
Davao v. GSIS33 on this subject best explains the basis and reason for
elections. Thus, what RA No. 10153 provides is an old matter for local
the unconstitutionality:
governments (with the exception of barangay and Sanggunian
Kabataan elections where the terms are not constitutionally provided)
Moreover, it would be noxious anathema to democratic principles for a and is technically a reiteration of what is already reflected in the law,
legislative body to have the ability to bind the actions of future given that regional elections are in reality local elections by express
legislative body, considering that both assemblies are regarded with constitutional recognition.37
equal footing, exercising as they do the same plenary powers.
Perpetual infallibility is not one of the attributes desired in a legislative
To achieve synchronization, Congress necessarily has to reconcile the
body, and a legislature which attempts to forestall future amendments
schedule of the ARMM’s regular elections (which should have been
or repeals of its enactments labors under delusions of omniscience.
held in August 2011 based on RA No. 9333) with the fixed schedule of
the national and local elections (fixed by RA No. 7166 to be held in
xxx May 2013).

A state legislature has a plenary law-making power over all subjects, During the oral arguments, the Court identified the three options open
whether pertaining to persons or things, within its territorial jurisdiction, to Congress in order to resolve this problem. These options are: (1) to
either to introduce new laws or repeal the old, unless prohibited allow the elective officials in the ARMM to remain in office in a hold
expressly or by implication by the federal constitution or limited or over capacity, pursuant to Section 7(1), Article VII of RA No. 9054, until
restrained by its own. It cannot bind itself or its successors by enacting those elected in the synchronized elections assume office; 38 (2) to hold
irrepealable laws except when so restrained. Every legislative body special elections in the ARMM, with the terms of those elected to
may modify or abolish the acts passed by itself or its predecessors. expire when those elected in the synchronized elections assume office;
This power of repeal may be exercised at the same session at which or (3) to authorize the President to appoint OICs, pursuant to Section 3
the original act was passed; and even while a bill is in its progress and of RA No. 10153, also until those elected in the synchronized elections
before it becomes a law. This legislature cannot bind a future assume office.
legislature to a particular mode of repeal. It cannot declare in
advance the intent of subsequent legislatures or the effect of
As will be abundantly clear in the discussion below, Congress, in
subsequent legislation upon existing statutes.34 (Emphasis ours.)
choosing to grant the President the power to appoint OICs, chose the
correct option and passed RA No. 10153 as a completely valid law.
Thus, while a supermajority is not a total ban against a repeal, it is a
limitation in excess of what the Constitution requires on the passage of
V. The Constitutionality of RA No. 10153
bills and is constitutionally obnoxious because it significantly constricts
the future legislators’ room for action and flexibility.
A. Basic Underlying Premises
III. C. Section 3, Article XVII of RA No. 9054 excessively enlarged the
plebiscite requirement found in Section 18, Article X of the Constitution To fully appreciate the available options, certain underlying material
premises must be fully understood. The firstis the extent of the powers
of Congress to legislate; the second is the constitutional mandate for
The requirements of RA No. 9054 not only required an unwarranted
the synchronization of elections; and the third is on the concept of
supermajority, but enlarged as well the plebiscite requirement, as
autonomy as recognized and established under the 1987 Constitution.
embodied in its Section 3, Article XVII of that Act. As we did on the
supermajority requirement, we find the enlargement of the plebiscite
requirement required under Section 18, Article X of the Constitution to The grant of legislative power to Congress is broad, general and
be excessive to point of absurdity and, hence, a violation of the comprehensive.39 The legislative body possesses plenary power for all
Constitution. purposes of civil government.40 Any power, deemed to be legislative by
usage and tradition, is necessarily possessed by Congress, unless the
Constitution has lodged it elsewhere.41 Except as limited by the
Section 18, Article X of the Constitution states that the plebiscite is
Constitution, either expressly or impliedly, legislative power embraces
required only for the creation of autonomous regions and for
all subjects and extends to all matters of general concern or common
determining which provinces, cities and geographic areas will be
interest.42
included in the autonomous regions. While the settled rule is that
amendments to the Organic Act have to comply with the plebiscite
requirement in order to become effective,35 questions on the extent of The constitutional limitations on legislative power are either express or
the matters requiring ratification may unavoidably arise because of the implied. The express limitations are generally provided in some
seemingly general terms of the Constitution and the obvious absurdity provisions of the Declaration of Principles and State Policies (Article 2)
that would result if a plebiscite were to be required for every statutory and in the provisions Bill of Rights (Article 3). Other constitutional
amendment. provisions (such as the initiative and referendum clause of Article 6,
Sections 1 and 32, and the autonomy provisions of Article X) provide
their own express limitations. The implied limitations are found "in the
Section 18, Article X of the Constitution plainly states that "The
evident purpose which was in view and the circumstances and
creation of the autonomous region shall be effective when approved by
historical events which led to the enactment of the particular provision
the majority of the votes case by the constituent units in a plebiscite
as a part of organic law."43
called for the purpose." With these wordings as standard, we interpret
the requirement to mean that only amendments to, or revisions of, the
Organic Act constitutionally-essential to the creation of autonomous The constitutional provisions on autonomy – specifically, Sections 15
regions – i.e., those aspects specifically mentioned in the Constitution to 21 of Article X of the Constitution – constitute express limitations on
which Congress must provide for in the Organic Act – require legislative power as they define autonomy, its requirements and its
ratification through a plebiscite. These amendments to the Organic Act parameters, thus limiting what is otherwise the unlimited power of
are those that relate to: (a) the basic structure of the regional Congress to legislate on the governance of the autonomous region.
29
Of particular relevance to the issues of the present case are the 10153 the concomitant problems that the adjustment of elections
limitations posed by the prescribed basic structure of government – necessarily brought with it?
i.e., that the government must have an executive department and a
legislative assembly, both of which must be elective and representative
B. Holdover Option is Unconstitutional
of the constituent political units; national government, too, must not
encroach on the legislative powers granted under Section 20, Article X.
Conversely and as expressly reflected in Section 17, Article X, "all We rule out the first option – holdover for those who were elected in
powers and functions not granted by this Constitution or by law to the executive and legislative positions in the ARMM during the 2008-2011
autonomous regions shall be vested in the National Government." term – as an option that Congress could have chosen because a
holdover violates Section 8, Article X of the Constitution. This provision
states:
The totality of Sections 15 to 21 of Article X should likewise serve as a
standard that Congress must observe in dealing with legislation
touching on the affairs of the autonomous regions. The terms of these Section 8. The term of office of elective local officials, except barangay
sections leave no doubt on what the Constitution intends – the idea of officials, which shall be determined by law, shall be three years and no
self-rule or self-government, in particular, the power to legislate on a such official shall serve for more than three consecutive terms.
wide array of social, economic and administrative matters. But equally [emphases ours]
clear under these provisions are the permeating principles of national
sovereignty and the territorial integrity of the Republic, as expressed in
Since elective ARMM officials are local officials, they are covered and
the above-quoted Section 17 and in Section 15.44 In other words, the
Constitution and the supporting jurisprudence, as they now stand, bound by the three-year term limit prescribed by the Constitution; they
reject the notion of imperium et imperio45 in the relationship between cannot extend their term through a holdover. As this Court put in
Osmeña v. COMELEC:52
the national and the regional governments.

In relation with synchronization, both autonomy and the It is not competent for the legislature to extend the term of officers by
providing that they shall hold over until their successors are elected
synchronization of national and local elections are recognized and
established constitutional mandates, with one being as compelling as and qualified where the constitution has in effect or by clear implication
the other. If their compelling force differs at all, the difference is in their prescribed the term and when the Constitution fixes the day on which
the official term shall begin, there is no legislative authority to continue
coverage; synchronization operates on and affects the whole country,
while regional autonomy – as the term suggests – directly carries a the office beyond that period, even though the successors fail to qualify
narrower regional effect although its national effect cannot be within the time.
discounted.
In American Jurisprudence it has been stated as follows:
These underlying basic concepts characterize the powers and
limitations of Congress when it acted on RA No. 10153. To succinctly "It has been broadly stated that the legislature cannot, by an act
describe the legal situation that faced Congress then, its decision to postponing the election to fill an office the term of which is limited by
synchronize the regional elections with the national, congressional and the Constitution, extend the term of the incumbent beyond the period
all other local elections (save for barangay and sangguniang kabataan as limited by the Constitution." [Emphasis ours.]
elections) left it with the problem of how to provide the ARMM with
governance in the intervening period between the expiration of the
term of those elected in August 2008 and the assumption to office – Independently of the Osmeña ruling, the primacy of the Constitution as
twenty-one (21) months away – of those who will win in the the supreme law of the land dictates that where the Constitution has
synchronized elections on May 13, 2013. itself made a determination or given its mandate, then the matters so
determined or mandated should be respected until the Constitution
itself is changed by amendment or repeal through the applicable
The problem, in other words, was for interim measures for this period, constitutional process. A necessary corollary is that none of the three
consistent with the terms of the Constitution and its established branches of government can deviate from the constitutional mandate
supporting jurisprudence, and with the respect due to the concept of except only as the Constitution itself may allow.53 If at all, Congress
autonomy. Interim measures, to be sure, is not a strange phenomenon may only pass legislation filing in details to fully operationalize the
in the Philippine legal landscape. The Constitution’s Transitory constitutional command or to implement it by legislation if it is non-self-
Provisions themselves collectively provide measures for transition from executing; this Court, on the other hand, may only interpret the
the old constitution to the new46 and for the introduction of new mandate if an interpretation is appropriate and called for.54
concepts.47 As previously mentioned, the adjustment of elective terms
and of elections towards the goal of synchronization first transpired
under the Transitory Provisions. The adjustments, however, failed to In the case of the terms of local officials, their term has been fixed
look far enough or deeply enough, particularly into the problems that clearly and unequivocally, allowing no room for any implementing
synchronizing regional autonomous elections would entail; thus, the legislation with respect to the fixed term itself and no vagueness that
present problem is with us today. would allow an interpretation from this Court. Thus, the term of three
years for local officials should stay at three (3) years as fixed by the
Constitution and cannot be extended by holdover by Congress.
The creation of local government units also represents instances when
interim measures are required. In the creation of Quezon del Sur 48 and
Dinagat Islands,49 the creating statutes authorized the President to If it will be claimed that the holdover period is effectively another term
appoint an interim governor, vice-governor and members of the mandated by Congress, the net result is for Congress to create a new
sangguniang panlalawigan although these positions are essentially term and to appoint the occupant for the new term. This view – like the
elective in character; the appointive officials were to serve until a new extension of the elective term – is constitutionally infirm because
set of provincial officials shall have been elected and qualified.50 A Congress cannot do indirectly what it cannot do directly, i.e., to act in a
similar authority to appoint is provided in the transition of a local way that would effectively extend the term of the incumbents. Indeed, if
government from a sub-province to a province.51 acts that cannot be legally done directly can be done indirectly, then all
laws would be illusory.55 Congress cannot also create a new term and
effectively appoint the occupant of the position for the new term. This is
In all these, the need for interim measures is dictated by necessity; effectively an act of appointment by Congress and an unconstitutional
out-of-the-way arrangements and approaches were adopted or used in intrusion into the constitutional appointment power of the
order to adjust to the goal or objective in sight in a manner that does President.56 Hence, holdover – whichever way it is viewed – is a
not do violence to the Constitution and to reasonably accepted norms. constitutionally infirm option that Congress could not have undertaken.
Under these limitations, the choice of measures was a question of
wisdom left to congressional discretion.
Jurisprudence, of course, is not without examples of cases where the
question of holdover was brought before, and given the imprimatur of
To return to the underlying basic concepts, these concepts shall serve approval by, this Court. The present case though differs significantly
as the guideposts and markers in our discussion of the options from past cases with contrary rulings, particularly from Sambarani v.
available to Congress to address the problems brought about by the COMELEC,57 Adap v. Comelec,58 and Montesclaros v.
synchronization of the ARMM elections, properly understood as interim Comelec,59 where the Court ruled that the elective officials could hold
measures that Congress had to provide. The proper understanding of on to their positions in a hold over capacity.
the options as interim measures assume prime materiality as it is
under these terms that the passage of RA No. 10153 should be
measured, i.e., given the constitutional objective of synchronization All these past cases refer to elective barangay or sangguniang
that cannot legally be faulted, did Congress gravely abuse its kabataan officials whose terms of office are not explicitly provided for
discretion or violate the Constitution when it addressed through RA No. in the Constitution; the present case, on the other hand, refers to local
elective officials – the ARMM Governor, the ARMM Vice-Governor,
and the members of the Regional Legislative Assembly – whose terms
30
fall within the three-year term limit set by Section 8, Article X of the Furthermore, we have to bear in mind that the constitutional power of
Constitution. Because of their constitutionally limited term, Congress the COMELEC, in contrast with the power of Congress to call for, and
cannot legislate an extension beyond the term for which they were to set the date of, elections, is limited to enforcing and administering all
originally elected. laws and regulations relative to the conduct of an election.65 Statutorily,
COMELEC has no power to call for the holding of special elections
unless pursuant to a specific statutory grant. True, Congress did grant,
Even assuming that holdover is constitutionally permissible, and there
via Sections 5 and 6 of BP 881, COMELEC with the power to postpone
had been statutory basis for it (namely Section 7, Article VII of RA No.
elections to another date. However, this power is limited to, and can
9054) in the past,60 we have to remember that the rule of holdover can
only be exercised within, the specific terms and circumstances
only apply as an available option where no express or implied
provided for in the law. We quote:
legislative intent to the contrary exists; it cannot apply where such
contrary intent is evident.61
Section 5. Postponement of election. - When for any serious cause
such as violence, terrorism, loss or destruction of election
Congress, in passing RA No. 10153, made it explicitly clear that it had
paraphernalia or records, force majeure, and other analogous causes
the intention of suppressing the holdover rule that prevailed under RA
of such a nature that the holding of a free, orderly and honest election
No. 9054 by completely removing this provision. The deletion is a
should become impossible in any political subdivision, the
policy decision that is wholly within the discretion of Congress to make
Commission, motu proprio or upon a verified petition by any interested
in the exercise of its plenary legislative powers; this Court cannot pass
party, and after due notice and hearing, whereby all interested parties
upon questions of wisdom, justice or expediency of legislation,62 except
are afforded equal opportunity to be heard, shall postpone the election
where an attendant unconstitutionality or grave abuse of discretion
therein to a date which should be reasonably close to the date of the
results.
election not held, suspended or which resulted in a failure to electbut
not later than thirty days after the cessation of the cause for such
C. The COMELEC has no authority to order special elections postponement or suspension of the election or failure to elect.

Another option proposed by the petitioner in G.R. No. 197282 is for this Section 6. Failure of election. - If, on account of force
Court to compel COMELEC to immediately conduct special elections majeure, violence, terrorism, fraud, or other analogous causes the
pursuant to Section 5 and 6 of Batas Pambansa Bilang (BP) 881. election in any polling place has not been held on the date
fixed, or had been suspendedbefore the hour fixed by law for the
closing of the voting, or after the voting and during the preparation and
The power to fix the date of elections is essentially legislative in nature, the transmission of the election returns or in the custody or canvass
as evident from, and exemplified by, the following provisions of the thereof, such election results in a failure to elect, and in any of such
Constitution: cases the failure or suspension of election would affect the result of the
election, the Commission shall, on the basis of a verified petition by
Section 8, Article VI, applicable to the legislature, provides: any interested party and after due notice and hearing, call for the
holding or continuation of the election not held, suspended or which
resulted in a failure to elect on a date reasonably close to the date of
Section 8. Unless otherwise provided by law, the regular election of the the election not held, suspended or which resulted in a failure to elect
Senators and the Members of the House of Representatives shall be but not later than thirty days after the cessation of the cause of such
held on the second Monday of May. [Emphasis ours] postponement or suspension of the election or failure to elect.
[Emphasis ours]
Section 4(3), Article VII, with the same tenor but applicable solely to
the President and Vice-President, states: A close reading of Section 5 of BP 881 reveals that it is meant to
address instances where elections have already been scheduled to
xxxx take place but have to be postponed because of (a) violence, (b)
terrorism, (c) loss or destruction of election paraphernalia or records,
(d) force majeure, and (e) other analogous causes of such a nature
Section 4. xxx Unless otherwise provided by law, the regular election that the holding of a free, orderly and honest election should become
for President and Vice-President shall be held on the second Monday impossible in any political subdivision. Under the principle of ejusdem
of May. [Emphasis ours] generis, the term "analogous causes" will be restricted to those
unforeseen or unexpected events that prevent the holding of the
while Section 3, Article X, on local government, provides: scheduled elections. These "analogous causes" are further defined by
the phrase "of such nature that the holding of a free, orderly and
honest election should become impossible."
Section 3. The Congress shall enact a local government code which
shall provide for xxx the qualifications, election, appointment and
removal, term, salaries, powers and functions and duties of local Similarly, Section 6 of BP 881 applies only to those situations where
officials[.] [Emphases ours] elections have already been scheduled but do not take place because
of (a) force majeure, (b) violence, (c) terrorism, (d) fraud, or
(e) other analogous causes the election in any polling place has
These provisions support the conclusion that no elections may be held not been held on the date fixed, or had been suspendedbefore the
on any other date for the positions of President, Vice President, hour fixed by law for the closing of the voting, or after the voting and
Members of Congress and local officials, except when so provided by during the preparation and the transmission of the election returns or in
another Act of Congress, or upon orders of a body or officer to whom the custody or canvass thereof, such election results in a failure to
Congress may have delegated either the power or the authority to elect. As in Section 5 of BP 881, Section 6 addresses instances where
ascertain or fill in the details in the execution of that power. 63 the elections do not occur or had to be suspended because
of unexpected and unforeseen circumstances.
Notably, Congress has acted on the ARMM elections by postponing
the scheduled August 2011 elections and setting another date – May In the present case, the postponement of the ARMM elections is by
13, 2011 – for regional elections synchronized with the presidential, law – i.e., by congressional policy – and is pursuant to the
congressional and other local elections. By so doing, Congress itself constitutional mandate of synchronization of national and local
has made a policy decision in the exercise of its legislative wisdom elections. By no stretch of the imagination can these reasons be given
that it shall not call special elections as an adjustment measure in the same character as the circumstances contemplated by Section 5 or
synchronizing the ARMM elections with the other elections. Section 6 of BP 881, which all pertain to extralegal causes that
obstruct the holding of elections. Courts, to be sure, cannot enlarge the
After Congress has so acted, neither the Executive nor the Judiciary scope of a statute under the guise of interpretation, nor include
can act to the contrary by ordering special elections instead at the call situations not provided nor intended by the lawmakers. 66 Clearly,
of the COMELEC. This Court, particularly, cannot make this call neither Section 5 nor Section 6 of BP 881 can apply to the present
without thereby supplanting the legislative decision and effectively case and this Court has absolutely no legal basis to compel the
legislating. To be sure, the Court is not without the power to declare an COMELEC to hold special elections.
act of Congress null and void for being unconstitutional or for having
been exercised in grave abuse of discretion. 64 But our power rests on D. The Court has no power to shorten the terms of elective officials
very narrow ground and is merely to annul a contravening act of
Congress; it is not to supplant the decision of Congress nor to mandate
what Congress itself should have done in the exercise of its legislative Even assuming that it is legally permissible for the Court to compel the
powers. Thus, contrary to what the petition in G.R. No. 197282 urges, COMELEC to hold special elections, no legal basis likewise exists to
we cannot compel COMELEC to call for special elections. rule that the newly elected ARMM officials shall hold office only until

31
the ARMM officials elected in the synchronized elections shall have Since the President’s authority to appoint OICs emanates from RA No.
assumed office. 10153, it falls under the third group of officials that the President can
appoint pursuant to Section 16, Article VII of the Constitution. Thus, the
assailed law facially rests on clear constitutional basis.
In the first place, the Court is not empowered to adjust the terms of
elective officials. Based on the Constitution, the power to fix the term of
office of elective officials, which can be exercised only in the case of If at all, the gravest challenge posed by the petitions to the authority to
barangay officials,67 is specifically given to Congress. Even Congress appoint OICs under Section 3 of RA No. 10153 is the assertion that the
itself may be denied such power, as shown when the Constitution Constitution requires that the ARMM executive and legislative officials
shortened the terms of twelve Senators obtaining the least votes,68 and to be "elective and representative of the constituent political units."
extended the terms of the President and the Vice-President69 in order This requirement indeed is an express limitation whose non-
to synchronize elections; Congress was not granted this same power. observance in the assailed law leaves the appointment of OICs
The settled rule is that terms fixed by the Constitution cannot be constitutionally defective.
changed by mere statute.70 More particularly, not even Congress and
certainly not this Court, has the authority to fix the terms of elective
After fully examining the issue, we hold that this alleged constitutional
local officials in the ARMM for less, or more, than the constitutionally
problem is more apparent than real and becomes very real only if RA
mandated three years71 as this tinkering would directly contravene
No. 10153 were to be mistakenly read as a law that changes the
Section 8, Article X of the Constitution as we ruled in Osmena.
elective and representative character of ARMM positions. RA No.
10153, however, does not in any way amend what the organic law of
Thus, in the same way that the term of elective ARMM officials cannot the ARMM (RA No. 9054) sets outs in terms of structure of
be extended through a holdover, the term cannot be shortened by governance. What RA No. 10153 in fact only does is to "appoint
putting an expiration date earlier than the three (3) years that the officers-in-charge for the Office of the Regional Governor, Regional
Constitution itself commands. This is what will happen – a term of less Vice Governor and Members of the Regional Legislative Assembly
than two years – if a call for special elections shall prevail. In sum, who shall perform the functions pertaining to the said offices until the
while synchronization is achieved, the result is at the cost of a violation officials duly elected in the May 2013 elections shall have qualified and
of an express provision of the Constitution. assumed office." This power is far different from appointing elective
ARMM officials for the abbreviated term ending on the assumption to
office of the officials elected in the May 2013 elections.
Neither we nor Congress can opt to shorten the tenure of those
officials to be elected in the ARMM elections instead of acting on their
term (where the "term" means the time during which the officer may As we have already established in our discussion of the supermajority
claim to hold office as of right and fixes the interval after which the and plebiscite requirements, the legal reality is that RA No. 10153 did
several incumbents shall succeed one another, while the "tenure" not amend RA No. 9054. RA No. 10153, in fact, provides only for
represents the term during which the incumbent actually holds the synchronization of elections and for the interim measures that must in
office).72 As with the fixing of the elective term, neither Congress nor the meanwhile prevail. And this is how RA No. 10153 should be read –
the Court has any legal basis to shorten the tenure of elective ARMM in the manner it was written and based on its unambiguous facial
officials. They would commit an unconstitutional act and gravely abuse terms.75 Aside from its order for synchronization, it is purely and simply
their discretion if they do so. an interim measure responding to the adjustments that the
synchronization requires.
E. The President’s Power to Appoint OICs
Thus, the appropriate question to ask is whether the interim measure is
an unreasonable move for Congress to adopt, given the legal situation
The above considerations leave only Congress’ chosen interim
that the synchronization unavoidably brought with it. In more concrete
measure – RA No. 10153 and the appointment by the President of
terms and based on the above considerations, given the plain
OICs to govern the ARMM during the pre-synchronization period
unconstitutionality of providing for a holdover and the unavailability of
pursuant to Sections 3, 4 and 5 of this law – as the only measure that
constitutional possibilities for lengthening or shortening the term of the
Congress can make. This choice itself, however, should be examined
elected ARMM officials, is the choice of the President’s power to
for any attendant constitutional infirmity.
appoint – for a fixed and specific period as an interim measure, and as
allowed under Section 16, Article VII of the Constitution – an
At the outset, the power to appoint is essentially executive in nature, unconstitutional or unreasonable choice for Congress to make?
and the limitations on or qualifications to the exercise of this power
should be strictly construed; these limitations or qualifications must be
Admittedly, the grant of the power to the President under other
clearly stated in order to be recognized.73 The appointing power is
situations or where the power of appointment would extend beyond the
embodied in Section 16, Article VII of the Constitution, which states:
adjustment period for synchronization would be to foster a government
that is not "democratic and republican." For then, the people’s right to
Section 16. The President shall nominate and, with the consent of the choose the leaders to govern them may be said to be systemically
Commission on Appointments, appoint the heads of the executive withdrawn to the point of fostering an undemocratic regime. This is the
departments, ambassadors, other public ministers and consuls or grant that would frontally breach the "elective and representative"
officers of the armed forces from the rank of colonel or naval captain, governance requirement of Section 18, Article X of the Constitution.
and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government
But this conclusion would not be true under the very limited
whose appointments are not otherwise provided for by law, and those
circumstances contemplated in RA No. 10153 where the period is fixed
whom he may be authorized by law to appoint. The Congress may, by
and, more importantly, the terms of governance – both under Section
law, vest the appointment of other officers lower in rank in the
18, Article X of the Constitution and RA No. 9054 – will not
President alone, in the courts, or in the heads of departments,
systemically be touched nor affected at all. To repeat what has
agencies, commissions, or boards. [emphasis ours]
previously been said, RA No. 9054 will govern unchanged and
continuously, with full effect in accordance with the Constitution, save
This provision classifies into four groups the officers that the President only for the interim and temporary measures that synchronization of
can appoint. These are: elections requires.

First, the heads of the executive departments; ambassadors; other Viewed from another perspective, synchronization will temporarily
public ministers and consuls; officers of the Armed Forces of the disrupt the election process in a local community, the ARMM, as well
Philippines, from the rank of colonel or naval captain; and other officers as the community’s choice of leaders, but this will take place under a
whose appointments are vested in the President in this Constitution; situation of necessity and as an interim measure in the manner that
interim measures have been adopted and used in the creation of local
government units76 and the adjustments of sub-provinces to the status
Second, all other officers of the government whose appointments are
of provinces.77 These measures, too, are used in light of the wider
not otherwise provided for by law; national demand for the synchronization of elections (considered vis-à-
vis the regional interests involved). The adoption of these measures, in
Third, those whom the President may be authorized by law to appoint; other words, is no different from the exercise by Congress of the
and inherent police power of the State, where one of the essential tests is
the reasonableness of the interim measure taken in light of the given
circumstances.
Fourth, officers lower in rank whose appointments the Congress may
by law vest in the President alone.74
Furthermore, the "representative" character of the chosen leaders
need not necessarily be affected by the appointment of OICs as this
requirement is really a function of the appointment process; only the
32
"elective" aspect shall be supplanted by the appointment of OICs. In delivery of basic services to the people of Leyte if the Governor or the
this regard, RA No. 10153 significantly seeks to address concerns Vice-Governor is missing.80 (Emphasis ours.)
arising from the appointments by providing, under Sections 3, 4 and 5
of the assailed law, concrete terms in the Appointment of OIC, the
As in Menzon, leaving the positions of ARMM Governor, Vice
Manner and Procedure of Appointing OICs, and their Qualifications.
Governor, and members of the Regional Legislative Assembly vacant
for 21 months, or almost 2 years, would clearly cause disruptions and
Based on these considerations, we hold that RA No. 10153 – viewed in delays in the delivery of basic services to the people, in the proper
its proper context – is a law that is not violative of the Constitution management of the affairs of the regional government, and in
(specifically, its autonomy provisions), and one that is reasonable as responding to critical developments that may arise. When viewed in
well under the circumstances. this context, allowing the President in the exercise of his
constitutionally-recognized appointment power to appoint OICs is, in
our judgment, a reasonable measure to take.
VI. Other Constitutional Concerns

B. Autonomy in the ARMM


Outside of the above concerns, it has been argued during the oral
arguments that upholding the constitutionality of RA No. 10153 would
set a dangerous precedent of giving the President the power to cancel It is further argued that while synchronization may be constitutionally
elections anywhere in the country, thus allowing him to replace elective mandated, it cannot be used to defeat or to impede the autonomy that
officials with OICs. the Constitution granted to the ARMM. Phrased in this manner, one
would presume that there exists a conflict between two recognized
Constitutional mandates – synchronization and regional autonomy –
This claim apparently misunderstands that an across-the-board
such that it is necessary to choose one over the other.
cancellation of elections is a matter for Congress, not for the President,
to address. It is a power that falls within the powers of Congress in the
exercise of its legislative powers. Even Congress, as discussed above, We find this to be an erroneous approach that violates a basic principle
is limited in what it can legislatively undertake with respect to elections. in constitutional construction – ut magis valeat quam pereat: that the
Constitution is to be interpreted as a whole,81 and one mandate should
not be given importance over the other except where the primacy of
If RA No. 10153 cancelled the regular August 2011 elections, it was for
one over the other is clear.82 We refer to the Court’s declaration in Ang-
a very specific and limited purpose – the synchronization of elections.
Angco v. Castillo, et al.,83 thus:
It was a temporary means to a lasting end – the synchronization of
elections. Thus, RA No. 10153 and the support that the Court gives
this legislation are likewise clear and specific, and cannot be A provision of the constitution should not be construed in isolation from
transferred or applied to any other cause for the cancellation of the rest. Rather, the constitution must be interpreted as a whole, and
elections. Any other localized cancellation of elections and call for apparently, conflicting provisions should be reconciled and harmonized
special elections can occur only in accordance with the power already in a manner that may give to all of them full force and effect. [Emphasis
delegated by Congress to the COMELEC, as above discussed. supplied.]

Given that the incumbent ARMM elective officials cannot continue to Synchronization is an interest that is as constitutionally entrenched as
act in a holdover capacity upon the expiration of their terms, and this regional autonomy. They are interests that this Court should reconcile
Court cannot compel the COMELEC to conduct special elections, the and give effect to, in the way that Congress did in RA No. 10153 which
Court now has to deal with the dilemma of a vacuum in governance in provides the measure to transit to synchronized regional elections with
the ARMM. the least disturbance on the interests that must be respected.
Particularly, regional autonomy will be respected instead of being
sidelined, as the law does not in any way alter, change or modify its
To emphasize the dire situation a vacuum brings, it should not be
governing features, except in a very temporary manner and only as
forgotten that a period of 21 months – or close to 2 years – intervenes
necessitated by the attendant circumstances.
from the time that the incumbent ARMM elective officials’ terms
expired and the time the new ARMM elective officials begin their terms
in 2013. As the lessons of our Mindanao history – past and current – Elsewhere, it has also been argued that the ARMM elections should
teach us, many developments, some of them critical and adverse, can not be synchronized with the national and local elections in order to
transpire in the country’s Muslim areas in this span of time in the way maintain the autonomy of the ARMM and insulate its own electoral
they transpired in the past.78 Thus, it would be reckless to assume that processes from the rough and tumble of nationwide and local
the presence of an acting ARMM Governor, an acting Vice-Governor elections. This argument leaves us far from convinced of its merits.
and a fully functioning Regional Legislative Assembly can be done
away with even temporarily. To our mind, the appointment of OICs
As heretofore mentioned and discussed, while autonomous regions
under the present circumstances is an absolute necessity.
are granted political autonomy, the framers of the Constitution never
equated autonomy with independence. The ARMM as a regional entity
Significantly, the grant to the President of the power to appoint OICs to thus continues to operate within the larger framework of the State and
undertake the functions of the elective members of the Regional is still subject to the national policies set by the national government,
Legislative Assembly is neither novel nor innovative. We hark back to save only for those specific areas reserved by the Constitution for
our earlier pronouncement in Menzon v. Petilla, etc., et al.: 79 regional autonomous determination. As reflected during the
constitutional deliberations of the provisions on autonomous regions:
It may be noted that under Commonwealth Act No. 588 and the
Revised Administrative Code of 1987, the President is empowered to Mr. Bennagen. xxx We do not see here a complete separation from the
make temporary appointments in certain public offices, in case of any central government, but rather an efficient working relationship
vacancy that may occur. Albeit both laws deal only with the filling of between the autonomous region and the central government. We see
vacancies in appointive positions. However, in the absence of any this as an effective partnership, not a separation.
contrary provision in the Local Government Code and in the best
interest of public service, we see no cogent reason why the procedure
Mr. Romulo. Therefore, complete autonomy is not really thought of as
thus outlined by the two laws may not be similarly applied in the
complete independence.
present case. The respondents contend that the provincial board is the
correct appointing power. This argument has no merit. As between the
President who has supervision over local governments as provided by Mr. Ople. We define it as a measure of self-government within the
law and the members of the board who are junior to the vice-governor, larger political framework of the nation.84[Emphasis supplied.]
we have no problem ruling in favor of the President, until the law
provides otherwise.
This exchange of course is fully and expressly reflected in the above-
quoted Section 17, Article X of the Constitution, and by the express
A vacancy creates an anomalous situation and finds no approbation reservation under Section 1 of the same Article that autonomy shall be
under the law for it deprives the constituents of their right of "within the framework of this Constitution and the national sovereignty
representation and governance in their own local government. as well as the territorial integrity of the Republic of the Philippines."

In a republican form of government, the majority rules through their Interestingly, the framers of the Constitution initially proposed to
chosen few, and if one of them is incapacitated or absent, etc., the remove Section 17 of Article X, believing it to be unnecessary in light of
management of governmental affairs is, to that extent, may be the enumeration of powers granted to autonomous regions in Section
hampered. Necessarily, there will be a consequent delay in the 20, Article X of the Constitution. Upon further reflection, the framers
decided to reinstate the provision in order to "make it clear, once and

33
for all, that these are the limits of the powers of the autonomous WHEREFORE, premises considered, we DISMISS the consolidated
government. Those not enumerated are actually to be exercised by the petitions assailing the validity of RA No. 10153 for lack of merit, and
national government[.]"85 Of note is the Court’s pronouncement in UPHOLD the constitutionality of this law. We likewise LIFT the
Pimentel, Jr. v. Hon. Aguirre86 which we quote: temporary restraining order we issued in our Resolution of September
13, 2011. No costs. SO ORDERED.
Under the Philippine concept of local autonomy, the national
government has not completely relinquished all its powers over local
governments, including autonomous regions. Only administrative
powers over local affairs are delegated to political subdivisions. The
purpose of the delegation is to make governance more directly
responsive and effective at the local levels. In turn, economic, political
and social development at the smaller political units are expected to
propel social and economic growth and development. But to enable the
country to develop as a whole, the programs and policies effected
locally must be integrated and coordinated towards a common national
goal. Thus, policy-setting for the entire country still lies in the President
and Congress. [Emphasis ours.]

In other words, the autonomy granted to the ARMM cannot be invoked


to defeat national policies and concerns. Since the synchronization of
elections is not just a regional concern but a national one, the ARMM is
subject to it; the regional autonomy granted to the ARMM cannot be
used to exempt the region from having to act in accordance with a
national policy mandated by no less than the Constitution.

Conclusion

Congress acted within its powers and pursuant to a constitutional


mandate – the synchronization of national and local elections – when it
enacted RA No. 10153. This Court cannot question the manner by
which Congress undertook this task; the Judiciary does not and cannot
pass upon questions of wisdom, justice or expediency of
legislation.87 As judges, we can only interpret and apply the law and,
despite our doubts about its wisdom, cannot repeal or amend it.88

Nor can the Court presume to dictate the means by which Congress
should address what is essentially a legislative problem. It is not within
the Court’s power to enlarge or abridge laws; otherwise, the Court will
be guilty of usurping the exclusive prerogative of Congress. 89 The
petitioners, in asking this Court to compel COMELEC to hold special
elections despite its lack of authority to do so, are essentially asking us
to venture into the realm of judicial legislation, which is abhorrent to
one of the most basic principles of a republican and democratic
government – the separation of powers.

The petitioners allege, too, that we should act because Congress acted
with grave abuse of discretion in enacting RA No. 10153. Grave abuse
of discretion is such capricious and whimsical exercise of judgment
that is patent and gross as to amount to an evasion of a positive duty
or to a virtual refusal to perform a duty enjoined by law or to act at all in
contemplation of the law as where the power is exercised in an
arbitrary and despotic manner by reason of passion and hostility.90

We find that Congress, in passing RA No. 10153, acted strictly within


its constitutional mandate. Given an array of choices, it acted within
due constitutional bounds and with marked reasonableness in light of
the necessary adjustments that synchronization demands. Congress,
therefore, cannot be accused of any evasion of a positive duty or of a
refusal to perform its duty. We thus find no reason to accord merit to
the petitioners’ claims of grave abuse of discretion.

On the general claim that RA No. 10153 is unconstitutional, we can


only reiterate the established rule that every statute is presumed
valid.91 Congress, thus, has in its favor the presumption of
constitutionality of its acts, and the party challenging the validity of a
statute has the onerous task of rebutting this presumption.92 Any
reasonable doubt about the validity of the law should be resolved in
favor of its constitutionality.93 As this Court declared inGarcia v.
Executive Secretary:94

The policy of the courts is to avoid ruling on constitutional questions


and to presume that the acts of the political departments are valid in
the absence of a clear and unmistakable showing to the contrary. To
doubt is to sustain. This presumption is based on the doctrine of
separation of powers which enjoins upon each department a becoming
respect for the acts of the other departments. The theory is that as the
joint act of Congress and the President of the Philippines, a law has
been carefully studied and determined to be in accordance with the
fundamental law before it was finally enacted.95 [Emphasis ours.]

Given the failure of the petitioners to rebut the presumption of


constitutionality in favor of RA No. 10153, we must support and confirm
its validity.

34
G.R. No. 196271 February 28, 2012 III. THE PRESIDENT’S APPOINTING POWER IS LIMITED
TO APPOINTIVE OFFICIALS AND DOES NOT EXTEND
TO ELECTIVE OFFICIALS EVEN AS THE PRESIDENT IS
DATU MICHAEL ABAS KIDA, vs.
ONLY VESTED WITH SUPERVISORY POWERS OVER
SENATE OF THE PHILIPPINES
THE ARMM, THEREBY NEGATING THE AWESOME
POWER TO APPOINT AND REMOVE OICs OCCUPYING
RESOLUTION ELECTIVE POSITIONS.

BRION, J.: IV. THE CONSTITUTION DOES NOT PROSCRIBE THE


HOLDOVER OF ARMM ELECTED OFFICIALS PENDING
THE ELECTION AND QUALIFICATION OF THEIR
We resolve: (a) the motion for reconsideration filed by petitioners Datu SUCCESSORS.
Michael Abas Kida, et al. in G.R. No. 196271; (b) the motion for
reconsideration filed by petitioner Rep. Edcel Lagman in G.R. No.
197221; (c) the ex abundante ad cautelam motion for reconsideration V. THE RULING IN OSMENA DOES NOT APPLY TO
filed by petitioner Basari Mapupuno in G.R. No. 196305; (d) the motion ARMM ELECTED OFFICIALS WHOSE TERMS OF OFFICE
for reconsideration filed by petitioner Atty. Romulo Macalintal in G.R. ARE NOT PROVIDED FOR BY THE CONSTITUTION BUT
No. 197282; (e) the motion for reconsideration filed by petitioners PRESCRIBED BY THE ORGANIC ACTS.
Almarim Centi Tillah, Datu Casan Conding Cana and Partido
Demokratiko Pilipino Lakas ng Bayan in G.R. No. 197280; (f) the
VI. THE REQUIREMENT OF A SUPERMAJORITY OF ¾
manifestation and motion filed by petitioners Almarim Centi Tillah, et al.
VOTES IN THE HOUSE OF REPRESENTATIVES AND
in G.R. No. 197280; and (g) the very urgent motion to issue
THE SENATE FOR THE VALIDITY OF A SUBSTANTIVE
clarificatory resolution that the temporary restraining order (TRO) is still
AMENDMENT OR REVISION OF THE ORGANIC ACTS
existing and effective.
DOES NOT IMPOSE AN IRREPEALABLE LAW.

These motions assail our Decision dated October 18, 2011, where we
VII. THE REQUIREMENT OF A PLEBISCITE FOR THE
upheld the constitutionality of Republic Act (RA) No. 10153. Pursuant
EFFECTIVITY OF A SUBSTANTIVE AMENDMENT OR
to the constitutional mandate of synchronization, RA No. 10153
REVISION OF THE ORGANIC ACTS DOES NOT UNDULY
postponed the regional elections in the Autonomous Region in Muslim
EXPAND THE PLEBISCITE REQUIREMENT OF THE
Mindanao (ARMM) (which were scheduled to be held on the second
CONSTITUTION.
Monday of August 2011) to the second Monday of May 2013 and
recognized the President’s power to appoint officers-in-charge (OICs)
to temporarily assume these positions upon the expiration of the terms VIII. SYNCHRONIZATION OF THE ARMM ELECTION
of the elected officials. WITH THE NATIONAL AND LOCAL ELECTIONS IS NOT
MANDATED BY THE CONSTITUTION.
The Motions for Reconsideration
IX. THE COMELEC HAS THE AUTHORITY TO HOLD AND
CONDUCT SPECIAL ELECTIONS IN ARMM, AND THE
The petitioners in G.R. No. 196271 raise the following grounds in
ENACTMENT OF AN IMPROVIDENT AND
support of their motion:
UNCONSTITUTIONAL STATUTE IS AN ANALOGOUS
CAUSE WARRANTING COMELEC’S HOLDING OF
I. THE HONORABLE COURT ERRED IN CONCLUDING SPECIAL ELECTIONS.2 (italics supplied)
THAT THE ARMM ELECTIONS ARE LOCAL ELECTIONS,
CONSIDERING THAT THE CONSTITUTION GIVES THE
The petitioner in G.R. No. 196305 further asserts that:
ARMM A SPECIAL STATUS AND IS SEPARATE AND
DISTINCT FROM ORDINARY LOCAL GOVERNMENT
UNITS. I. BEFORE THE COURT MAY CONSTRUE OR
INTERPRET A STATUTE, IT IS A CONDITION SINE QUA
NON THAT THERE BE DOUBT OR AMBIGUITY IN ITS
II. R.A. 10153 AND R.A. 9333 AMEND THE ORGANIC ACT.
LANGUAGE.

III. THE SUPERMAJORITY PROVISIONS OF THE


THE TRANSITORY PROVISIONS HOWEVER ARE CLEAR
ORGANIC ACT (R.A. 9054) ARE NOT IRREPEALABLE
AND UNAMBIGUOUS: THEY REFER TO THE 1992
LAWS.
ELECTIONS AND TURN-OVER OF ELECTIVE OFFICIALS.

IV. SECTION 3, ARTICLE XVII OF R.A. 9054 DOES NOT


IN THUS RECOGNIZING A SUPPOSED "INTENT" OF THE
VIOLATE SECTION 18, ARTICLE X OF THE
FRAMERS, AND APPLYING THE SAME TO ELECTIONS
CONSTITUTION.
20 YEARS AFTER, THE HONORABLE SUPREME COURT
MAY HAVE VIOLATED THEFOREMOST RULE IN
V. BALANCE OF INTERESTS TILT IN FAVOR OF THE STATUTORY CONSTRUCTION.
DEMOCRATIC PRINCIPLE[.]1
xxxx
The petitioner in G.R. No. 197221 raises similar grounds, arguing that:
II. THE HONORABLE COURT SHOULD HAVE
I. THE ELECTIVE REGIONAL EXECUTIVE AND CONSIDERED THAT RA 9054, AN ORGANIC ACT, WAS
LEGISLATIVE OFFICIALS OF ARMM CANNOT BE COMPLETE IN ITSELF. HENCE, RA 10153 SHOULD BE
CONSIDERED AS OR EQUATED WITH THE CONSIDERED TO HAVE BEEN ENACTED PRECISELY TO
TRADITIONAL LOCAL GOVERNMENT OFFICIALS IN THE AMEND RA 9054.
LOCAL GOVERNMENT UNITS (LGUs) BECAUSE (A)
THERE IS NO EXPLICIT CONSTITUTIONAL PROVISION
xxxx
ON SUCH PARITY; AND (B) THE ARMM IS MORE
SUPERIOR THAN LGUs IN STRUCTURE, POWERS AND
AUTONOMY, AND CONSEQUENTLY IS A CLASS OF ITS III. THE HONORABLE COURT MAY HAVE COMMITTED A
OWN APART FROM TRADITIONAL LGUs. SERIOUS ERROR IN DECLARING THE 2/3 VOTING
REQUIREMENT SET FORTH IN RA 9054 AS
UNCONSTITUTIONAL.
II. THE UNMISTAKABLE AND UNEQUIVOCAL
CONSTITUTIONAL MANDATE FOR AN ELECTIVE AND
REPRESENTATIVE EXECUTIVE DEPARTMENT AND xxxx
LEGISLATIVE ASSEMBLY IN ARMM INDUBITABLY
PRECLUDES THE APPOINTMENT BY THE PRESIDENT
IV. THE HONORABLE COURT MAY HAVE COMMITTED A
OF OFFICERS-IN-CHARGE (OICs), ALBEIT MOMENTARY
SERIOUS ERROR IN HOLDING THAT A PLEBISCITE IS
OR TEMPORARY, FOR THE POSITIONS OF ARMM
NOT NECESSARY IN AMENDING THE ORGANIC ACT.
GOVERNOR, VICE GOVERNOR AND MEMBERS OF THE
REGIONAL ASSEMBLY.
xxxx

35
V. THE HONORABLE COURT COMMITTED A SERIOUS appoint OICs to take the place of ARMM elective officials;
ERROR IN DECLARING THE HOLD-OVER OF ARMM and
ELECTIVE OFFICIALS UNCONSTITUTIONAL.
f) it would be better to hold the ARMM elections separately
xxxx from the national and local elections as this will make it
easier for the authorities to implement election laws.
VI. THE HONORABLE COURT COMMITTED A SERIOUS
ERROR IN UPHOLDING THE APPOINTMENT OF In essence, the Court is asked to resolve the following questions:
OFFICERS-IN-CHARGE.3 (italics and underscoring
supplied)
(a) Does the Constitution mandate the synchronization of
ARMM regional elections with national and local elections?
The petitioner in G.R. No. 197282 contends that:
(b) Does RA No. 10153 amend RA No. 9054? If so, does RA
A. No. 10153 have to comply with the supermajority vote and
plebiscite requirements?
ASSUMING WITHOUT CONCEDING THAT THE
APPOINTMENT OF OICs FOR THE REGIONAL (c) Is the holdover provision in RA No. 9054 constitutional?
GOVERNMENT OF THE ARMM IS NOT
UNCONSTITUTIONAL TO BEGIN WITH, SUCH
(d) Does the COMELEC have the power to call for special
APPOINTMENT OF OIC REGIONAL OFFICIALS WILL
elections in ARMM?
CREATE A FUNDAMENTAL CHANGE IN THE BASIC
STRUCTURE OF THE REGIONAL GOVERNMENT SUCH
THAT R.A. NO. 10153 SHOULD HAVE BEEN SUBMITTED (e) Does granting the President the power to appoint OICs
TO A PLEBISCITE IN THE ARMM FOR APPROVAL BY ITS violate the elective and representative nature of ARMM
PEOPLE, WHICH PLEBISCITE REQUIREMENT CANNOT regional legislative and executive offices?
BE CIRCUMVENTED BY SIMPLY CHARACTERIZING THE
PROVISIONS OF R.A. NO. 10153 ON APPOINTMENT OF
(f) Does the appointment power granted to the President
OICs AS AN "INTERIM MEASURE".
exceed the President’s supervisory powers over
autonomous regions?
B.
The Court’s Ruling
THE HONORABLE COURT ERRED IN RULING THAT THE
APPOINTMENT BY THE PRESIDENT OF OICs FOR THE
We deny the motions for lack of merit.
ARMM REGIONAL GOVERNMENT IS NOT VIOLATIVE OF
THE CONSTITUTION.
Synchronization mandate includes ARMM elections
C.
The Court was unanimous in holding that the Constitution mandates
THE HOLDOVER PRINCIPLE ADOPTED IN R.A. NO. 9054 the synchronization of national and local elections. While the
Constitution does not expressly instruct Congress to synchronize the
DOES NOT VIOLATE THE CONSTITUTION, AND BEFORE
THEIR SUCCESSORS ARE ELECTED IN EITHER AN national and local elections, the intention can be inferred from the
ELECTION TO BE HELD AT THE SOONEST POSSIBLE following provisions of the Transitory Provisions (Article XVIII) of the
Constitution, which state:
TIME OR IN MAY 2013, THE SAID INCUMBENT ARMM
REGIONAL OFFICIALS MAY VALIDLY CONTINUE
FUNCTIONING AS SUCH IN A HOLDOVER CAPACITY IN Section 1. The first elections of Members of the Congress under this
ACCORDANCE WITH SECTION 7, ARTICLE VII OF R.A. Constitution shall be held on the second Monday of May, 1987.
NO. 9054.
The first local elections shall be held on a date to be determined by the
D. President, which may be simultaneous with the election of the
Members of the Congress. It shall include the election of all Members
WITH THE CANCELLATION OF THE AUGUST 2011 of the city or municipal councils in the Metropolitan Manila area.
ARMM ELECTIONS, SPECIAL ELECTIONS MUST
IMMEDIATELY BE HELD FOR THE ELECTIVE REGIONAL Section 2. The Senators, Members of the House of Representatives,
OFFICIALS OF THE ARMM WHO SHALL SERVE UNTIL and the local officials first elected under this Constitution shall serve
THEIR SUCCESSORS ARE ELECTED IN THE MAY 2013 until noon of June 30, 1992.
SYNCHRONIZED ELECTIONS.4
Of the Senators elected in the elections in 1992, the first twelve
Finally, the petitioners in G.R. No. 197280 argue that: obtaining the highest number of votes shall serve for six years and the
remaining twelve for three years.
a) the Constitutional mandate of synchronization does not
apply to the ARMM elections; xxxx

b) RA No. 10153 negates the basic principle of republican Section 5. The six-year term of the incumbent President and Vice-
democracy which, by constitutional mandate, guides the President elected in the February 7, 1986 election is, for purposes of
governance of the Republic; synchronization of elections, hereby extended to noon of June 30,
1992.
c) RA No. 10153 amends the Organic Act (RA No. 9054)
and, thus, has to comply with the 2/3 vote from the House of The first regular elections for the President and Vice-President under
Representatives and the Senate, voting separately, and be this Constitution shall be held on the second Monday of May, 1992.
ratified in a plebiscite;
To fully appreciate the constitutional intent behind these provisions, we
d) if the choice is between elective officials continuing to hold refer to the discussions of the Constitutional Commission:
their offices even after their terms are over and non-elective
individuals getting into the vacant elective positions by
appointment as OICs, the holdover option is the better MR. MAAMBONG. For purposes of identification, I will now read a
choice; section which we will temporarily indicate as Section 14. It reads: "THE
SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES
AND THE LOCAL OFFICIALS ELECTED IN THE FIRST ELECTION
e) the President only has the power of supervision over SHALL SERVE FOR FIVE YEARS, TO EXPIRE AT NOON OF JUNE
autonomous regions, which does not include the power to 1992."

36
This was presented by Commissioner Davide, so may we ask that MR. GUINGONA. Not the reverse. Will the committee not synchronize
Commissioner Davide be recognized. the election of the Senators and local officials with the election of the
President?
THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner Davide is
recognized. MR. DAVIDE. It works both ways, Mr. Presiding Officer. The attempt
here is on the assumption that the provision of the Transitory
Provisions on the term of the incumbent President and Vice-President
MR. DAVIDE. Before going to the proposed amendment, I would only
would really end in 1992.
state that in view of the action taken by the Commission on Section 2
earlier, I am formulating a new proposal. It will read as follows: "THE
SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES MR. GUINGONA. Yes.
AND THE LOCAL OFFICIALS FIRST ELECTED UNDER THIS
CONSTITUTION SHALL SERVE UNTIL NOON OF JUNE 30, 1992."
MR. DAVIDE. In other words, there will be a single election in 1992
for all, from the President up to the municipal officials.5 (emphases
I proposed this because of the proposed section of the Article on and underscoring ours)
Transitory Provisions giving a term to the incumbent President and
Vice-President until 1992. Necessarily then, since the term provided by
The framers of the Constitution could not have expressed their
the Commission for Members of the Lower House and for local officials
objective more clearly – there was to be a single election in 1992 for all
is three years, if there will be an election in 1987, the next election for
elective officials – from the President down to the municipal officials.
said officers will be in 1990, and it would be very close to 1992. We
Significantly, the framers were even willing to temporarily lengthen or
could never attain, subsequently, any synchronization of election which
shorten the terms of elective officials in order to meet this objective,
is once every three years.
highlighting the importance of this constitutional mandate.

So under my proposal we will be able to begin actual


We came to the same conclusion in Osmeña v. Commission on
synchronization in 1992, and consequently, we should not have a
Elections,6 where we unequivocally stated that "the Constitution has
local election or an election for Members of the Lower House in 1990
mandated synchronized national and local elections."7 Despite the
for them to be able to complete their term of three years each. And if
length and verbosity of their motions, the petitioners have failed to
we also stagger the Senate, upon the first election it will result in an
convince us to deviate from this established ruling.
election in 1993 for the Senate alone, and there will be an election for
12 Senators in 1990. But for the remaining 12 who will be elected in
1987, if their term is for six years, their election will be in 1993. So, Neither do we find any merit in the petitioners’ contention that the
consequently we will have elections in 1990, in 1992 and in 1993. The ARMM elections are not covered by the constitutional mandate of
later election will be limited to only 12 Senators and of course to the synchronization because the ARMM elections were not specifically
local officials and the Members of the Lower House. But, definitely, mentioned in the above-quoted Transitory Provisions of the
thereafter we can never have an election once every three years, Constitution.
therefore defeating the very purpose of the Commission when we
adopted the term of six years for the President and another six years
That the ARMM elections were not expressly mentioned in the
for the Senators with the possibility of staggering with 12 to serve for
six years and 12 for three years insofar as the first Senators are Transitory Provisions of the Constitution on synchronization cannot be
concerned.And so my proposal is the only way to effect the first interpreted to mean that the ARMM elections are not covered by the
synchronized election which would mean, necessarily, a bonus of constitutional mandate of synchronization. We have to consider that
two years to the Members of the Lower House and a bonus of two the ARMM, as we now know it, had not yet been officially organized at
years to the local elective officials. the time the Constitution was enacted and ratified by the people.
Keeping in mind that a constitution is not intended to provide merely for
the exigencies of a few years but is to endure through generations for
THE PRESIDING OFFICER (Mr. Rodrigo). What does the committee as long as it remains unaltered by the people as ultimate sovereign, a
say? constitution should be construed in the light of what actually is a
continuing instrument to govern not only the present but also the
unfolding events of the indefinite future. Although the principles
MR. DE CASTRO. Mr. Presiding Officer.
embodied in a constitution remain fixed and unchanged from the time
of its adoption, a constitution must be construed as a dynamic process
THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner de Castro is intended to stand for a great length of time, to be progressive and not
recognized. static.8

MR. DE CASTRO. Thank you. To reiterate, Article X of the Constitution, entitled "Local Government,"
clearly shows the intention of the Constitution to classify autonomous
regions, such as the ARMM, as local governments. We refer to Section
During the discussion on the legislative and the synchronization of
1 of this Article, which provides:
elections, I was the one who proposed that in order to synchronize the
elections every three years, which the body approved — the first
national and local officials to be elected in 1987 shall continue in office Section 1. The territorial and political subdivisions of the Republic of
for five years, the same thing the Honorable Davide is now proposing. the Philippines are the provinces, cities, municipalities, and barangays.
That means they will all serve until 1992, assuming that the term of the There shall be autonomous regions in Muslim Mindanao and the
President will be for six years and continue beginning in 1986. So from Cordilleras as hereinafter provided.
1992, we will again have national, local and presidential elections. This
time, in 1992, the President shall have a term until 1998 and the
The inclusion of autonomous regions in the enumeration of political
first 12 Senators will serve until 1998, while the next 12 shall
subdivisions of the State under the heading "Local Government"
serve until 1995, and then the local officials elected in 1992 will
indicates quite clearly the constitutional intent to consider autonomous
serve until 1995. From then on, we shall have an election every
regions as one of the forms of local governments.
three years.

That the Constitution mentions only the "national government" and the
So, I will say that the proposition of Commissioner Davide is in order, if
"local governments," and does not make a distinction between the
we have to synchronize our elections every three years which was
"local government" and the "regional government," is particularly
already approved by the body.
revealing, betraying as it does the intention of the framers of the
Constitution to consider the autonomous regions not as separate forms
Thank you, Mr. Presiding Officer. of government, but as political units which, while having more powers
and attributes than other local government units, still remain under the
category of local governments. Since autonomous regions are
xxxx
classified as local governments, it follows that elections held in
autonomous regions are also considered as local elections.
MR. GUINGONA. What will be synchronized, therefore, is the election
of the incumbent President and Vice-President in 1992.
The petitioners further argue that even assuming that the Constitution
mandates the synchronization of elections, the ARMM elections are
MR. DAVIDE. Yes. not covered by this mandate since they are regional elections and not
local elections.

37
In construing provisions of the Constitution, the first rule is verba legis, law what they think should be in it or to supply what they think the
"that is, wherever possible, the words used in the Constitution must be legislature would have supplied if its attention had been called to the
given their ordinary meaning except where technical terms are omission.14 Providing for lapses within the law falls within the exclusive
employed."9 Applying this principle to determine the scope of "local domain of the legislature, and courts, no matter how well-meaning,
elections," we refer to the meaning of the word "local," as understood have no authority to intrude into this clearly delineated space.
in its ordinary sense. As defined in Webster’s Third New International
Dictionary Unabridged, "local" refers to something "that primarily
Since RA No. 10153 does not amend, but merely fills in the gap in RA
serves the needs of a particular limited district, often a community or
No. 9054, there is no need for RA No. 10153 to comply with the
minor political subdivision." Obviously, the ARMM elections, which are
amendment requirements set forth in Article XVII of RA No. 9054.
held within the confines of the autonomous region of Muslim
Mindanao, fall within this definition.
Supermajority vote requirement makes RA No. 9054 an irrepealable
law
To be sure, the fact that the ARMM possesses more powers than other
provinces, cities, or municipalities is not enough reason to treat the
ARMM regional elections differently from the other local elections. Ubi Even assuming that RA No. 10153 amends RA No. 9054, however, we
lex non distinguit nec nos distinguire debemus. When the law does not have already established that the supermajority vote requirement set
distinguish, we must not distinguish.10 forth in Section 1, Article XVII of RA No. 905415 is unconstitutional for
violating the principle that Congress cannot pass irrepealable laws.
RA No. 10153 does not amend RA No. 9054
The power of the legislature to make laws includes the power to
amend and repeal these laws. Where the legislature, by its own act,
The petitioners are adamant that the provisions of RA No. 10153, in
attempts to limit its power to amend or repeal laws, the Court has the
postponing the ARMM elections, amend RA No. 9054.
duty to strike down such act for interfering with the plenary powers of
Congress. As we explained in Duarte v. Dade:16
We cannot agree with their position.
A state legislature has a plenary law-making power over all subjects,
A thorough reading of RA No. 9054 reveals that it fixes the schedule whether pertaining to persons or things, within its territorial jurisdiction,
for only the first ARMM elections;11 it does not provide the date for the either to introduce new laws or repeal the old, unless prohibited
succeeding regular ARMM elections. In providing for the date of the expressly or by implication by the federal constitution or limited or
regular ARMM elections, RA No. 9333 and RA No. 10153 clearly do restrained by its own. It cannot bind itself or its successors by enacting
not amend RA No. 9054 since these laws do not change or revise any irrepealable laws except when so restrained. Every legislative body
provision in RA No. 9054. In fixing the date of the ARMM elections may modify or abolish the acts passed by itself or its predecessors.
subsequent to the first election, RA No. 9333 and RA No. 10153 This power of repeal may be exercised at the same session at which
merely filled the gap left in RA No. 9054. the original act was passed; and even while a bill is in its progress and
before it becomes a law. This legislature cannot bind a future
legislature to a particular mode of repeal. It cannot declare in
We reiterate our previous observations:
advance the intent of subsequent legislatures or the effect of
subsequent legislation upon existing statutes. [emphasis ours]
This view – that Congress thought it best to leave the determination of
the date of succeeding ARMM elections to legislative discretion – finds
Under our Constitution, each House of Congress has the power to
support in ARMM’s recent history.
approve bills by a mere majority vote, provided there is quorum. 17 In
requiring all laws which amend RA No. 9054 to comply with a higher
To recall, RA No. 10153 is not the first law passed that rescheduled voting requirement than the Constitution provides (2/3 vote), Congress,
the ARMM elections. The First Organic Act – RA No. 6734 – not only which enacted RA No. 9054, clearly violated the very principle which
did not fix the date of the subsequent elections; it did not even fix the we sought to establish in Duarte. To reiterate, the act of one legislature
specific date of the first ARMM elections, leaving the date to be fixed in is not binding upon, and cannot tie the hands of, future legislatures.18
another legislative enactment. Consequently, RA No. 7647, RA No.
8176, RA No. 8746, RA No. 8753, and RA No. 9012 were all enacted
We also highlight an important point raised by Justice Antonio T.
by Congress to fix the dates of the ARMM elections. Since these laws
Carpio in his dissenting opinion, where he stated: "Section 1, Article
did not change or modify any part or provision of RA No. 6734, they
XVII of RA 9054 erects a high vote threshold for each House of
were not amendments to this latter law. Consequently, there was no
Congress to surmount, effectively and unconstitutionally, taking RA
need to submit them to any plebiscite for ratification.
9054 beyond the reach of Congress’ amendatory powers. One
Congress cannot limit or reduce the plenary legislative power of
The Second Organic Act – RA No. 9054 – which lapsed into law on succeeding Congresses by requiring a higher vote threshold than what
March 31, 2001, provided that the first elections would be held on the the Constitution requires to enact, amend or repeal laws. No law can
second Monday of September 2001. Thereafter, Congress passed RA be passed fixing such a higher vote threshold because Congress has
No. 9140 to reset the date of the ARMM elections. Significantly, while no power, by ordinary legislation, to amend the Constitution."19
RA No. 9140 also scheduled the plebiscite for the ratification of the
Second Organic Act (RA No. 9054), the new date of the ARMM
Plebiscite requirement in RA No. 9054 overly broad
regional elections fixed in RA No. 9140 was not among the
provisions ratified in the plebiscite held to approve RA No. 9054.
Thereafter, Congress passed RA No. 9333, which further reset the Similarly, we struck down the petitioners’ contention that the plebiscite
date of the ARMM regional elections. Again, this law was not ratified requirement20 applies to all amendments of RA No. 9054 for being an
through a plebiscite. unreasonable enlargement of the plebiscite requirement set forth in the
Constitution.
From these legislative actions, we see the clear intention of Congress
to treat the laws which fix the date of the subsequent ARMM elections Section 18, Article X of the Constitution provides that "[t]he creation of
as separate and distinct from the Organic Acts. Congress only acted the autonomous region shall be effective when approved by majority of
consistently with this intent when it passed RA No. 10153 without the votes cast by the constituent units in a plebiscite called for the
requiring compliance with the amendment prerequisites embodied in purpose[.]" We interpreted this to mean that only amendments to, or
Section 1 and Section 3, Article XVII of RA No. 9054.12 (emphases revisions of, the Organic Act constitutionally-essential to the creation
supplied) of autonomous regions – i.e., those aspects specifically mentioned in
the Constitution which Congress must provide for in the Organic
Act21 – require ratification through a plebiscite. We stand by this
The petitioner in G.R. No. 196305 contends, however, that there is no
interpretation.
lacuna in RA No. 9054 as regards the date of the subsequent ARMM
elections. In his estimation, it can be implied from the provisions of RA
No. 9054 that the succeeding elections are to be held three years after The petitioners argue that to require all amendments to RA No. 9054 to
the date of the first ARMM regional elections. comply with the plebiscite requirement is to recognize that sovereignty
resides primarily in the people.
We find this an erroneous assertion. Well-settled is the rule that the
court may not, in the guise of interpretation, enlarge the scope of a While we agree with the petitioners’ underlying premise that
statute and include therein situations not provided nor intended by the sovereignty ultimately resides with the people, we disagree that this
lawmakers. An omission at the time of enactment, whether careless or legal reality necessitates compliance with the plebiscite requirement for
calculated, cannot be judicially supplied however later wisdom may all amendments to RA No. 9054. For if we were to go by the
recommend the inclusion.13 Courts are not authorized to insert into the petitioners’ interpretation of Section 18, Article X of the Constitution
38
that all amendments to the Organic Act have to undergo the plebiscite Assembly - whose terms fall within the three-year term limit set by
requirement before becoming effective, this would lead to impractical Section 8, Article X of the Constitution.
and illogical results – hampering the ARMM’s progress by impeding
Congress from enacting laws that timely address problems as they
Even assuming that a holdover is constitutionally permissible, and
arise in the region, as well as weighing down the ARMM government
there had been statutory basis for it (namely Section 7, Article VII of
with the costs that unavoidably follow the holding of a plebiscite.
RA No. 9054), the rule of holdover can only apply as an available
option where no express or implied legislative intent to the contrary
Interestingly, the petitioner in G.R. No. 197282 posits that RA No. exists; it cannot apply where such contrary intent is evident. 23
10153, in giving the President the power to appoint OICs to take the
place of the elective officials of the ARMM, creates a fundamental
Congress, in passing RA No. 10153 and removing the holdover option,
change in the basic structure of the government, and thus requires
has made it clear that it wants to suppress the holdover rule expressed
compliance with the plebiscite requirement embodied in RA No. 9054.
in RA No. 9054. Congress, in the exercise of its plenary legislative
powers, has clearly acted within its discretion when it deleted the
Again, we disagree. holdover option, and this Court has no authority to question the
wisdom of this decision, absent any evidence of unconstitutionality or
grave abuse of discretion. It is for the legislature and the executive,
The pertinent provision in this regard is Section 3 of RA No. 10153,
and not this Court, to decide how to fill the vacancies in the ARMM
which reads:
regional government which arise from the legislature complying with
the constitutional mandate of synchronization.
Section 3. Appointment of Officers-in-Charge. — The President shall
appoint officers-in-charge for the Office of the Regional Governor,
COMELEC has no authority to hold special elections
Regional Vice Governor and Members of the Regional Legislative
Assembly who shall perform the functions pertaining to the said offices
until the officials duly elected in the May 2013 elections shall have Neither do we find any merit in the contention that the Commission on
qualified and assumed office. Elections (COMELEC) is sufficiently empowered to set the date of
special elections in the ARMM. To recall, the Constitution has merely
empowered the COMELEC to enforce and administer all laws and
We cannot see how the above-quoted provision has changed the basic
regulations relative to the conduct of an election. 24Although the
structure of the ARMM regional government. On the contrary, this
legislature, under the Omnibus Election Code (Batas Pambansa Bilang
provision clearly preserves the basic structure of the ARMM regional
[BP] 881), has granted the COMELEC the power to postpone elections
government when it recognizes the offices of the ARMM regional
to another date, this power is confined to the specific terms and
government and directs the OICs who shall temporarily assume these
circumstances provided for in the law. Specifically, this power falls
offices to "perform the functions pertaining to the said offices."
within the narrow confines of the following provisions:

Unconstitutionality of the holdover provision


Section 5. Postponement of election. - When for any serious cause
such as violence, terrorism, loss or destruction of election
The petitioners are one in defending the constitutionality of Section paraphernalia or records, force majeure, and other analogous
7(1), Article VII of RA No. 9054, which allows the regional officials to causes of such a nature that the holding of a free, orderly and honest
remain in their positions in a holdover capacity. The petitioners election should become impossible in any political subdivision, the
essentially argue that the ARMM regional officials should be allowed to Commission, motu proprio or upon a verified petition by any interested
remain in their respective positions until the May 2013 elections since party, and after due notice and hearing, whereby all interested parties
there is no specific provision in the Constitution which prohibits are afforded equal opportunity to be heard, shall postpone the
regional elective officials from performing their duties in a holdover election therein to a date which should be reasonably close to the
capacity. date of the election not held, suspended or which resulted in a
failure to elect but not later than thirty days after the cessation of the
cause for such postponement or suspension of the election or failure to
The pertinent provision of the Constitution is Section 8, Article X which
elect.
provides:

Section 6. Failure of election. - If, on account of force


Section 8. The term of office of elective local officials, except
majeure, violence, terrorism, fraud, or other analogous causes the
barangay officials, which shall be determined by law, shall be three election in any polling place has not been held on the date
years and no such official shall serve for more than three consecutive fixed, or had been suspendedbefore the hour fixed by law for the
terms. [emphases ours]
closing of the voting, or after the voting and during the preparation and
the transmission of the election returns or in the custody or canvass
On the other hand, Section 7(1), Article VII of RA No. 9054 provides: thereof, such election results in a failure to elect, and in any of such
cases the failure or suspension of election would affect the result of the
election, the Commission shall, on the basis of a verified petition by
Section 7. Terms of Office of Elective Regional Officials. – (1) Terms of any interested party and after due notice and hearing, call for the
Office. The terms of office of the Regional Governor, Regional Vice holding or continuation of the election not held, suspended or which
Governor and members of the Regional Assembly shall be for a period resulted in a failure to elect on a date reasonably close to the date of
of three (3) years, which shall begin at noon on the 30th day of the election not held, suspended or which resulted in a failure to elect
September next following the day of the election and shall end at noon but not later than thirty days after the cessation of the cause of such
of the same date three (3) years thereafter. The incumbent elective postponement or suspension of the election or failure to elect.
officials of the autonomous region shall continue in effect until their [emphases and underscoring ours]
successors are elected and qualified.

As we have previously observed in our assailed decision, both Section


The clear wording of Section 8, Article X of the Constitution expresses 5 and Section 6 of BP 881 address instances where elections have
the intent of the framers of the Constitution to categorically set a already been scheduled to take place but do not occur or had to be
limitation on the period within which all elective local officials can suspended because of unexpected and unforeseen circumstances,
occupy their offices. We have already established that elective ARMM such as violence, fraud, terrorism, and other analogous circumstances.
officials are also local officials; they are, thus, bound by the three-year
term limit prescribed by the Constitution. It, therefore, becomes
irrelevant that the Constitution does not expressly prohibit elective In contrast, the ARMM elections were postponed by law, in furtherance
officials from acting in a holdover capacity. Short of amending the of the constitutional mandate of synchronization of national and local
Constitution, Congress has no authority to extend the three-year term elections. Obviously, this does not fall under any of the circumstances
limit by inserting a holdover provision in RA No. 9054. Thus, the term contemplated by Section 5 or Section 6 of BP 881.
of three years for local officials should stay at three (3) years, as fixed
by the Constitution, and cannot be extended by holdover by Congress. More importantly, RA No. 10153 has already fixed the date for the next
ARMM elections and the COMELEC has no authority to set a different
Admittedly, we have, in the past, recognized the validity of holdover election date.
provisions in various laws. One significant difference between the
present case and these past cases 22 is that while these past cases all Even assuming that the COMELEC has the authority to hold special
refer to electivebarangay or sangguniang kabataan officials whose
elections, and this Court can compel the COMELEC to do so, there is
terms of office are not explicitly provided for in the Constitution, the still the problem of having to shorten the terms of the newly elected
present case refers to local elective officials - the ARMM Governor, the officials in order to synchronize the ARMM elections with the May 2013
ARMM Vice Governor, and the members of the Regional Legislative
national and local elections. Obviously, neither the Court nor the
39
COMELEC has the authority to do this, amounting as it does to an stated in order to be recognized.29 Given that the President derives his
amendment of Section 8, Article X of the Constitution, which limits the power to appoint OICs in the ARMM regional government from law, it
term of local officials to three years. falls under the classification of presidential appointments covered by
the second sentence of Section 16, Article VII of the Constitution; the
President’s appointment power thus rests on clear constitutional basis.
President’s authority to appoint OICs

The petitioners also jointly assert that RA No. 10153, in granting the
The petitioner in G.R. No. 197221 argues that the President’s power to
President the power to appoint OICs in elective positions, violates
appoint pertains only to appointive positions and cannot extend to
Section 16, Article X of the Constitution,30 which merely grants the
positions held by elective officials.
President the power of supervision over autonomous regions.

The power to appoint has traditionally been recognized as executive in


This is an overly restrictive interpretation of the President’s
nature.25 Section 16, Article VII of the Constitution describes in broad
appointment power. There is no incompatibility between the
strokes the extent of this power, thus:
President’s power of supervision over local governments and
autonomous regions, and the power granted to the President, within
Section 16. The President shall nominate and, with the consent of the the specific confines of RA No. 10153, to appoint OICs.
Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or
The power of supervision is defined as "the power of a superior officer
officers of the armed forces from the rank of colonel or naval captain,
to see to it that lower officers perform their functions in accordance
and other officers whose appointments are vested in him in this
with law."31 This is distinguished from the power of control or "the
Constitution. He shall also appoint all other officers of the
power of an officer to alter or modify or set aside what a subordinate
Government whose appointments are not otherwise provided for
officer had done in the performance of his duties and to substitute the
by law, and those whom he may be authorized by law to
judgment of the former for the latter."32
appoint. The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in the
heads of departments, agencies, commissions, or boards. [emphasis The petitioners’ apprehension regarding the President’s alleged power
ours] of control over the OICs is rooted in their belief that the President’s
appointment power includes the power to remove these officials at will.
In this way, the petitioners foresee that the appointed OICs will be
The 1935 Constitution contained a provision similar to the one quoted
beholden to the President, and act as representatives of the President
above. Section 10(3), Article VII of the 1935 Constitution provides:
and not of the people.

(3) The President shall nominate and with the consent of the
Section 3 of RA No. 10153 expressly contradicts the petitioners’
Commission on Appointments, shall appoint the heads of the executive
supposition. The provision states:
departments and bureaus, officers of the Army from the rank of
colonel, of the Navy and Air Forces from the rank of captain or
commander, and all other officers of the Government whose Section 3. Appointment of Officers-in-Charge. — The President shall
appointments are not herein otherwise provided for, and those whom appoint officers-in-charge for the Office of the Regional Governor,
he may be authorized by law to appoint; but the Congress may by law Regional Vice Governor and Members of the Regional Legislative
vest the appointment of inferior officers, in the President alone, in the Assembly who shall perform the functions pertaining to the said offices
courts, or in the heads of departments. [emphasis ours] until the officials duly elected in the May 2013 elections shall have
qualified and assumed office.
The main distinction between the provision in the 1987 Constitution
and its counterpart in the 1935 Constitution is the sentence The wording of the law is clear. Once the President has appointed the
construction; while in the 1935 Constitution, the various appointments OICs for the offices of the Governor, Vice Governor and members of
the President can make are enumerated in a single sentence, the 1987 the Regional Legislative Assembly, these same officials will remain in
Constitution enumerates the various appointments the President is office until they are replaced by the duly elected officials in the May
empowered to make and divides the enumeration in two sentences. 2013 elections. Nothing in this provision even hints that the President
The change in style is significant; in providing for this change, the has the power to recall the appointments he already made. Clearly, the
framers of the 1987 Constitution clearly sought to make a distinction petitioners’ fears in this regard are more apparent than real.
between the first group of presidential appointments and the second
group of presidential appointments, as made evident in the following
RA No. 10153 as an interim measure
exchange:

We reiterate once more the importance of considering RA No. 10153


MR. FOZ. Madame President x x x I propose to put a period (.) after
not in a vacuum, but within the context it was enacted in. In the first
"captain" and x x x delete "and all" and substitute it with HE SHALL
place, Congress enacted RA No. 10153 primarily to heed the
ALSO APPOINT ANY.
constitutional mandate to synchronize the ARMM regional elections
with the national and local elections. To do this, Congress had to
MR. REGALADO. Madam President, the Committee accepts the postpone the scheduled ARMM elections for another date, leaving it
proposed amendment because it makes it clear that those other with the problem of how to provide the ARMM with governance in
officers mentioned therein do not have to be confirmed by the the intervening period, between the expiration of the term of those
Commission on Appointments.26 elected in August 2008 and the assumption to office – twenty-one (21)
months away – of those who will win in the synchronized elections on
May 13, 2013.
The first group of presidential appointments, specified as the heads of
the executive departments, ambassadors, other public ministers and
consuls, or officers of the Armed Forces, and other officers whose In our assailed Decision, we already identified the three possible
appointments are vested in the President by the Constitution, pertains solutions open to Congress to address the problem created by
to the appointive officials who have to be confirmed by the Commission synchronization – (a) allow the incumbent officials to remain in office
on Appointments. after the expiration of their terms in a holdover capacity; (b) call for
special elections to be held, and shorten the terms of those to be
elected so the next ARMM regional elections can be held on May 13,
The second group of officials the President can appoint are "all other
2013; or (c) recognize that the President, in the exercise of his
officers of the Government whose appointments are not otherwise
appointment powers and in line with his power of supervision over the
provided for by law, and those whom he may be authorized by law to
ARMM, can appoint interim OICs to hold the vacated positions in the
appoint."27The second sentence acts as the "catch-all provision" for the
ARMM regional government upon the expiration of their terms. We
President’s appointment power, in recognition of the fact that the
have already established the unconstitutionality of the first two options,
power to appoint is essentially executive in nature. 28 The wide latitude
leaving us to consider the last available option.
given to the President to appoint is further demonstrated by the
recognition of the President’s power to appoint officials whose
appointments are not even provided for by law. In other words, In this way, RA No. 10153 is in reality an interim measure, enacted to
where there are offices which have to be filled, but the law does not respond to the adjustment that synchronization requires. Given the
provide the process for filling them, the Constitution recognizes the context, we have to judge RA No. 10153 by the standard of
power of the President to fill the office by appointment. reasonableness in responding to the challenges brought about by
synchronizing the ARMM elections with the national and local
elections. In other words, "given the plain unconstitutionality of
Any limitation on or qualification to the exercise of the President’s
providing for a holdover and the unavailability of constitutional
appointment power should be strictly construed and must be clearly
40
possibilities for lengthening or shortening the term of the elected We agree with the petitioner that the lifting of a TRO can be included
ARMM officials, is the choice of the President’s power to appoint as a subject of a motion for reconsideration filed to assail our decision.
– for a fixed and specific period as an interim measure, and as It does not follow, however, that the TRO remains effective until after
allowed under Section 16, Article VII of the Constitution – an we have issued a final and executory decision, especially considering
unconstitutional or unreasonable choice for Congress to the clear wording of the dispositive portion of our October 18, 2011
make?"33 decision, which states:

We admit that synchronization will temporarily disrupt the election WHEREFORE, premises considered, we DISMISS the consolidated
process in a local community, the ARMM, as well as the community’s petitions assailing the validity of RA No. 10153 for lack of merit, and
choice of leaders. However, we have to keep in mind that the adoption UPHOLD the constitutionality of this law. We likewise LIFT the
of this measure is a matter of necessity in order to comply with a temporary restraining order we issued in our Resolution of September
mandate that the Constitution itself has set out for us. Moreover, the 13, 2011. No costs.43 (emphases ours)
implementation of the provisions of RA No. 10153 as an interim
measure is comparable to the interim measures traditionally practiced
In this regard, we note an important distinction between Tolentino and
when, for instance, the President appoints officials holding elective
the present case. While it may be true that Tolentino and the present
offices upon the creation of new local government units.
case are similar in that, in both cases, the petitions assailing the
challenged laws were dismissed by the Court, an examination of the
The grant to the President of the power to appoint OICs in place of the dispositive portion of the decision in Tolentino reveals that the Court
elective members of the Regional Legislative Assembly is neither novel did not categorically lift the TRO. In sharp contrast, in the present case,
nor innovative. The power granted to the President, via RA No. 10153, we expressly lifted the TRO issued on September 13,
to appoint members of the Regional Legislative Assembly is 2011.1âwphi1 There is, therefore, no legal impediment to prevent the
comparable to the power granted by BP 881 (the Omnibus Election President from exercising his authority to appoint an acting ARMM
Code) to the President to fill any vacancy for any cause in the Regional Governor and Vice Governor as specifically provided for in RA No.
Legislative Assembly (then called the Sangguniang Pampook). 34 10153.

Executive is not bound by the principle of judicial courtesy Conclusion

The petitioners in G.R. No. 197280, in their Manifestation and Motion As a final point, we wish to address the bleak picture that the petitioner
dated December 21, 2011, question the propriety of the appointment in G.R. No. 197282 presents in his motion, that our Decision has
by the President of Mujiv Hataman as acting Governor and Bainon virtually given the President the power and authority to appoint
Karon as acting Vice Governor of the ARMM. They argue that since 672,416 OICs in the event that the elections of barangay and
our previous decision was based on a close vote of 8-7, and given the Sangguniang Kabataan officials are postponed or cancelled.
numerous motions for reconsideration filed by the parties, the
President, in recognition of the principle of judicial courtesy, should
We find this speculation nothing short of fear-mongering.
have refrained from implementing our decision until we have ruled with
finality on this case.
This argument fails to take into consideration the unique factual and
legal circumstances which led to the enactment of RA No. 10153. RA
We find the petitioners’ reasoning specious.
No. 10153 was passed in order to synchronize the ARMM elections
with the national and local elections. In the course of synchronizing the
Firstly, the principle of judicial courtesy is based on the hierarchy of ARMM elections with the national and local elections, Congress had to
courts and applies only to lower courts in instances where, even if grant the President the power to appoint OICs in the ARMM, in light of
there is no writ of preliminary injunction or TRO issued by a higher the fact that: (a) holdover by the incumbent ARMM elective officials is
court, it would be proper for a lower court to suspend its proceedings legally impermissible; and (b) Congress cannot call for special
for practical and ethical considerations.35 In other words, the principle elections and shorten the terms of elective local officials for less than
of "judicial courtesy" applies where there is a strong probability that the three years.
issues before the higher court would be rendered moot and moribund
as a result of the continuation of the proceedings in the lower court or
Unlike local officials, as the Constitution does not prescribe a term limit
court of origin.36 Consequently, this principle cannot be applied to the
for barangay and Sangguniang Kabataan officials, there is no legal
President, who represents a co-equal branch of government. To
proscription which prevents these specific government officials from
suggest otherwise would be to disregard the principle of separation of
continuing in a holdover capacity should some exigency require the
powers, on which our whole system of government is founded upon.
postponement of barangay or Sangguniang Kabataan elections.
Clearly, these fears have neither legal nor factual basis to stand on.
Secondly, the fact that our previous decision was based on a slim vote
of 8-7 does not, and cannot, have the effect of making our ruling any
For the foregoing reasons, we deny the petitioners’ motions for
less effective or binding. Regardless of how close the voting is, so long
reconsideration.
as there is concurrence of the majority of the members of the en banc
who actually took part in the deliberations of the case,37 a decision
garnering only 8 votes out of 15 members is still a decision of the WHEREFORE, premises considered, we DENY with FINALITY the
Supreme Court en banc and must be respected as such. The motions for reconsideration for lack of merit and UPHOLD the
petitioners are, therefore, not in any position to speculate that, based constitutionality of RA No. 10153. SO ORDERED.
on the voting, "the probability exists that their motion for
reconsideration may be granted."38

Similarly, the petitioner in G.R. No. 197282, in his Very Urgent Motion
to Issue Clarificatory Resolution, argues that since motions for
reconsideration were filed by the aggrieved parties challenging our
October 18, 2011 decision in the present case, the TRO we initially
issued on September 13, 2011 should remain subsisting and effective.
He further argues that any attempt by the Executive to implement our
October 18, 2011 decision pending resolution of the motions for
reconsideration "borders on disrespect if not outright insolence"39 to
this Court.

In support of this theory, the petitioner cites Samad v.


COMELEC,40 where the Court held that while it had already issued a
decision lifting the TRO, the lifting of the TRO is not yet final and
executory, and can also be the subject of a motion for reconsideration.
The petitioner also cites the minute resolution issued by the Court in
Tolentino v. Secretary of Finance,41 where the Court reproached the
Commissioner of the Bureau of Internal Revenue for manifesting its
intention to implement the decision of the Court, noting that the Court
had not yet lifted the TRO previously issued.42

41