G.R. No.

200903, July 22, 2014

KALIPUNAN NG DAMAYANG MAHIHIRAP, INC., REPRESENTED BY ITS VICE-

PRESIDENT, CARLITO BADION, CORAZON DE JESUS HOMEOWNERS
ASSOCIATION, REPRESENTED BY ITS PRESIDENT, ARNOLD REPIQUE,
FERNANDO SEVILLA AS PRESIDENT OF SAMAHANG PAMATA SA KAPATIRANG
KRISTIYANO, ESTRELIETA BAGASBAS, JOCY LOPEZ, ELVIRA VIDOL, AND DELIA
FRAYRES, Petitioners, v. JESSIE ROBREDO, IN HIS CAPACITY AS SECRETARY,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, HON. GUIA GOMEZ, IN
HER CAPACITY AS MAYOR OF THE CITY OF SAN JUAN, HON. HERBERT
BAUTISTA, IN HIS CAPACITY AS THE MAYOR OF QUEZON CITY, HON. JOHN REY
TIANGCO, IN HIS CAPACITY AS MAYOR OF NAVOTAS CITY, AND THE GENERAL
MANAGER OF THE NATIONAL HOUSING AUTHORITY, Respondents.

DECISION

BRION, J.:

This is a petition for prohibition and mandamus to enjoin the public respondents from
evicting the individual petitioners as well as the petitioner-associations’ members from
their dwellings in the cities of San Juan, Navotas and Quezon without any court order,
and to compel the respondents to afford them judicial process prior to evictions and
demolitions. The petition primarily seeks to declare as unconstitutional Section 28 (a)
and (b) of Republic Act No. 7279 (RA 7279), otherwise known as Urban Development
Housing Act, which authorizes evictions and demolitions under certain circumstances
without any court order.

The Factual Antecedents

The members of petitioners Kalipunan ng Damayang Mahihirap, Inc. and Corazon de

Jesus Homeowners’ Association as well as the individual petitioners, Fernando Sevilla,
Estrelieta Bagasbas, Jocy Lopez, Elvira Vidol and Delia Frayres, were/are occupying
parcels of land owned by and located in the cities of San Juan, Navotas and Quezon
(collectively, the LGUs1). These LGUs sent the petitioners notices of eviction and
demolition pursuant to Section 28 (a) and (b) of RA 7279 in order to give way to the
implementation and construction of infrastructure projects2 in the areas illegally
occupied by the petitioners.3

Section 28 (a) and (b) of RA 7279 authorize evictions and demolitions without any court
order when: (1) persons or entities occupy danger areas such as esteros, railroad tracks,
garbage dumps, riverbanks, shorelines, waterways, and other public places such as
sidewalks, roads, parks, and playgrounds; and (2) persons or entities occupy areas
where government infrastructure projects with available funding are about to be
implemented.

The Petition

On March 23, 2012, the petitioners directly filed a petition for prohibition and
mandamus before the Court, seeking to compel the Secretary of Interior and Local
Government, et al. (the public respondents)to first secure an eviction and/or demolition
order from the court prior to their implementation of Section 28 (a) and (b) of RA 7279.

The petitioners justify their direct recourse before this Court by generally averring that
they have no plain, speedy and adequate remedy in the ordinary course of law. 4 They
also posit that the respondents gravely abused their discretion in implementing Section
28 (a) and (b) of RA 7279 which are patently unconstitutional. They likewise insist that
they stand to be directly injured by the respondents’ threats of evictions and
demolitions. In the alternative, they contend that the transcendental public importance
of the issues raised in this case clothes them with legal standing. 5

The petitioners argue that Section 28 (a) and (b) of RA 7279 offend their constitutional
right to due process because they warrant evictions and demolitions without any court
order. They point out that Section 6, Article 3 of the 1987 Constitution expressly
prohibits the impairment of liberty of abode unless there is a court order. Moreover,
Section 28 (a) and (b) of RA 7279 violate their right to adequate housing, a universal
right recognized in Article 25 of Universal Declaration of Human Rights and Section 2
(a) of RA 7279. The petitioners further complain that the respondents had previously
conducted evictions and demolitions in a violent manner, contrary to Section 10, Article
13 of the 1987 Constitution.6

The Respondents’ Case

A. The Position of the Mayor of Navotas

The Mayor of Navotas prays for the outright dismissal of the petition for its serious
procedural defects. First, the petitioners ignored the hierarchy of courts when they
directly filed a Rule 65 petition before the Court.7Second, the petitioners incorrectly
availed themselves of a petition for prohibition and mandamus in assailing the
constitutionality of Section 28 (a) and (b) of RA 7279. According to the Mayor of
Navotas, the office of a writ of prohibition is merely to prevent the public respondent’s
usurpation of power or improper assumption of jurisdiction. On the other hand, a writ
of mandamus only commands the public respondent to perform his ministerial
functions. Third, the petitioners failed to particularly state the grave abuse of discretion
that the Mayor of Navotas allegedly committed. Fourth, the petition does not present
any justiciable controversy since the City of Navotas had already successfully evicted the
petitioners in San Roque, Navotas on November 28, 2011. Fifth, the petition was filed
out of time since the petitioners were personally notified of the intended eviction and
demolition on September 23, 2011.8

The Mayor argues that Section 10, Article 13 of the 1987 Constitution allows evictions
and demolitions to be conducted even without a court order provided they are done in
accordance with the law and in a just and humane manner. According to him, RA 7279
is precisely the law referred to by Section 10, Article 13 of the 1987 Constitution. The
Mayor also disputes the petitioners’ claim that RA 7279 does not afford the informal
settlers procedural due process prior to evictions and demolitions. He points out that
Section 28 of RA 7279 and its implementing rules and regulations (IRR) mandate that
the affected persons or entities shall be given notice at least thirty (30) days prior to the
date of eviction or demolition. The respondents are likewise required to consult with the
duly designated representatives of the affected families and communities with respect to
their relocation. He further asserts that his faithful implementation of Section 28 (a)
and (b) of RA 7279, which are presumed to be constitutional, cannot be equated to grave
abuse of discretion. Lastly, the Mayor of Navotas insists that the petitioners’ invocation
of their right to freely choose their abode is misplaced since they have no vested right to
occupy properties that they do not own.9

B. The Position of the Mayor of San Juan

The Mayor of San Juan similarly argues that the petitioners improperly availed
themselves of a petition for prohibition and mandamus before the Court. She contends
that she performed neither judicial nor ministerial functions in implementing RA 7279,
the enabling law of Section 10, Article 13 of the 1987 Constitution. She also maintains
that the petition has been rendered moot and academic by the successful eviction of
some of the petitioners in Pinaglabanan, Corazon de Jesus, San Juan. The Mayor of San
Juan further stresses that Section 28 (a) and (b) of RA 7279 already lay down the
procedure in evicting informal settlers in a just and humane manner.10

C. The Position of the Mayor of Quezon

The Mayor of Quezon City holds that the petitioners’ premature invocation of the
Court’s power of judicial review and their violation of the principle of hierarchy of courts
are fatal to their cause of action. Moreover, the petitioners failed to substantiate the
material allegations in the petition. He additionally argues that his faithful
implementation of RA 7279, which the legislature enacted in the exercise of police
power, does not amount to grave abuse of discretion.11

D. The Position of the Secretary of Interior and Local Government and the General
Manager of the National Housing Authority

The Secretary of Interior and Local Government and the National Housing
Authority (NHA) General Manager adopt the Mayor of Navotas’ position that the
petition is procedurally infirm. They further argue that the liberty of abode is not
illimitable and does not include the right to encroach upon other person properties.
They also reiterate that Section 28 of RA 7279 provides sufficient safeguards in ensuring
that evictions and demolitions are carried out in a just and humane manner.12

The Issues

This case presents to us the following issues:

(1) Whether the petition should be dismissed for serious procedural defects; and

(a) Whether the petitioners violated the principle of hierarchy of courts;

(b) Whether the petitioners correctly availed themselves of a petition for

prohibition and mandamus;

(2) Whether Section 28 (a) and (b) of RA 7279 are violative of Sections 1 and 6, Article
3 of the 1987 Constitution.

The Court’s Ruling

We dismiss the petition.

The petitioners violated the principle

of hierarchy of courts when they directly
filed the petition before the Court.

The petitioners have unduly disregarded the hierarchy of courts by coming directly to
the Court with their petition for prohibition and mandamus. The petitioners appear to
have forgotten that the Supreme Court is a court of last resort, not a court of first
instance. The hierarchy of courts should serve as a general determinant of the
appropriate forum for Rule 65 petitions. The concurrence of jurisdiction among the
Supreme Court, Court of Appeals and the Regional Trial Courts to issue writs of
certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction does
not give the petitioners the unrestricted freedom of choice of forum. By directly filing
Rule 65 petitions before us, the petitioners have unduly taxed the Court’s time and
attention which are better devoted to matters within our exclusive jurisdiction. Worse,
the petitioners only contributed to the overcrowding of the Court's docket. We also wish
to emphasize that the trial court is better equipped to resolve cases of this nature since
this Court is not a trier of facts and does not normally undertake an examination of the
contending parties’ evidence.13

The petitioners wrongly availed

themselves of a petition for prohibition
and mandamus.

We cannot also ignore the petitioners’ glaring error in using a petition for prohibition
and mandamus in the current case.

The petitioners seem to have forgotten that a writ of prohibition only lies against the
tribunal, corporation, board, officer or person’s exercise of judicial, quasi-judicial or
ministerial functions.14We issue a writ of prohibition to afford the aggrieved party a
relief against the respondent’s usurpation or grave abuse of jurisdiction or power.15

On the other hand, a petition for mandamus is merely directed against the tribunal,
corporation, board, officer, or person who unlawfully neglects the performance of an act
which the law enjoins as a duty resulting from an office, trust or station or who
unlawfully excludes another from the use and enjoyment of a right or office to which
such other is entitled.16 Thus, a writ of mandamus will only issue to compel an officer to
perform a ministerial duty. It will not control a public officer’s exercise of discretion as
where the law imposes upon him the duty to exercise his judgment in reference to any
manner in which he is required to act precisely because it is his judgment that is to be
exercised, not that of the court.17

In the present case, the petitioners seek to prohibit the respondents from implementing
Section 28 (a) and (b) of RA 7279 without a prior court order of eviction and/or
demolition. In relation to this, paragraph 1, Section 28 of RA 7279
provides:chanroblesvirtuallawlibrary

Sec. 28. Eviction and Demolition. — Eviction or demolition as a practice shall be

discouraged. Eviction or demolition, however, may be allowed under the following
situations:

(a) When persons or entities occupy danger areas such as esteros, railroad tracks,
garbage dumps, riverbanks, shorelines, waterways, and other public places such as
 sidewalks, roads, parks, and playgrounds;

(b) When government infrastructure projects with available funding are about to be
implemented; or

(c) When there is a court order for eviction and demolition. (emphasis and underline
ours)

A reading of this provision clearly shows that the acts complained of are beyond the
scope of a petition for prohibition and mandamus. The use of the permissive word
“may” implies that the public respondents have discretion when their duty to execute
evictions and/or demolitions shall be performed. Where the words of a statute are clear,
plain, and free from ambiguity, it must be given its literal meaning and applied without
attempted interpretation.18

Consequently, the time when the public respondents shall carry out evictions and/or
demolitions under Section 28 (a), (b), and (c) of RA 7279 is merely discretionary, and
not ministerial, judicial or quasi-judicial. The duty is discretionary if the law imposes a
duty upon a public officer and gives him the right to decide when the duty shall be
performed.

In contrast, a ministerial duty is one which an officer or tribunal

performs in a given state of facts, in a prescribed manner, in obedience to the
mandate of a legal authority, without regard to or the exercise of his own judgment upon
the propriety or impropriety of the act done.19

On the other hand, both judicial and quasi-judicial functions involve the determination
of what the law is, and what the legal rights of the contending parties are, with respect to
the matter in controversy and, on the basis thereof and the facts obtaining, the
adjudication of their respective rights.20

The resolution of the constitutionality

of Section 28 (a) and (b) of RA 7279
is not the lis mota of the case.

Even if we treat the present petition as one for certiorari since it assails the
constitutionality of Section 28 (a) and (b) of RA 7279, the petition must necessarily fail
for failure to show the essential requisites that would warrant the Court’s exercise of
judicial review. It is a rule firmly entrenched in our jurisprudence that the courts will
not determine the constitutionality of a law unless the following requisites are present:
(1) the existence of an actual case or controversy involving a conflict of legal rights
susceptible of judicial determination; (2) the existence of personal and substantial
interest on the part of the party raising the constitutional question; (3) recourse to
judicial review is made at the earliest opportunity; and (4) the resolution of the
constitutional question must be necessary to the decision of the case. 21

Save for the petition pertaining to the City of Quezon’s threat of eviction and demolition,
this case no longer presents a justiciable controversy with respect to the Mayors of
Navotas and San Juan. We take note of the Comments of these Mayors who alleged that
they had already successfully evicted the concerned petitioners in their respective cities
at the time of the filing of the petition.

What further constrains this Court from touching on the issue of constitutionality is the
fact that this issue is not the lis mota of this case. Lis mota literally means “the cause of
the suit or action”; it is rooted in the principle of separation of powers and is thus merely
an offshoot of the presumption of validity accorded the executive and legislative acts of
our co-equal branches of the government.

This means that the petitioner who claims the unconstitutionality of a law has the
burden of showing first that the case cannot be resolved unless the disposition of the
constitutional question that he raised is unavoidable. If there is some other ground upon
which the court may rest its judgment, that course will be adopted and the question of
constitutionality should be avoided.22 Thus, to justify the nullification of a law, there
must be a clear and unequivocal breach of the Constitution, and not one that is
doubtful, speculative or argumentative.23

We carefully read the petitions and we conclude that they fail to compellingly show the
necessity of examining the constitutionality of Section 28 (a) and (b) of RA 7279 in the
light of Sections 1 and 6, Article 3 of the 1987 Constitution.24 In Magkalas v. NHA,25 this
Court had already ruled on the validity of evictions and demolitions without any court
order. In that case, we affirmed the validity of Section 2 of Presidential Decree No. 1472
which authorizes the NHA to summarily eject all informal settlers’ colonies on
government resettlement projects as well as any illegal occupant in any homelot,
apartment or dwelling unit owned or administered by the NHA. In that case, we held
that Caridad Magkalas’ illegal possession of the property should not hinder the NHA’s
development of Bagong Barrio Urban Bliss Project. We further stated that demolitions
and evictions may be validly carried out even without a judicial order in the following
instances:chanroblesvirtuallawlibrary

(1) when the property involved is an expropriated property xxx pursuant to Section 1 of
P.D. No. 1315;
(2) when there are squatters on government resettlement projects and illegal occupants
in any homelot, apartment or dwelling unit owned or administered by the NHA
pursuant to Section 2 of P.D. No. 1472;

(3) when persons or entities occupy danger areas such as esteros, railroad tracks,
garbage dumps, riverbanks, shorelines, waterways and other public places such as
sidewalks, roads, parks and playgrounds, pursuant to Section 28(a) of R.A. No.
7279;

(4) when government infrastructure projects with available funding are about to be
implemented pursuant to Section 28(b) of R.A. No. 7279.26 (emphasis ours)

We note that Section 10, Article 13 of the 1987 Constitution provides that urban or rural
poor dwellers shall not be evicted nor their dwelling demolished, except in accordance
with law and in a just and humane manner. Paragraph 1, Section 28 of RA 7279 allows
summary evictions and demolition in cases where persons or entities occupy danger
areas and when persons or entities occupy areas where government infrastructure
projects with available funding are about to be implemented.

To ensure that evictions and demolitions are conducted in a just and humane manner,
paragraph 2, Section 28 of RA 7279 commands the public respondents to comply with
the following prescribed procedure in executing eviction and/or demolition
orders:chanroblesvirtuallawlibrary

In the execution of eviction or demolition orders involving underprivileged and

homeless citizens, the following shall be mandatory:

(1) Notice upon the effected persons or entities at least thirty (30) days prior to the date
of eviction or demolition;

(2) Adequate consultations on the matter of settlement with the duly designated
representatives of the families to be resettled and the affected communities in the
areas where they are to be relocated;

(3) Presence of local government officials or their representatives during eviction or

demolition;

(4) Proper identification of all persons taking part in the demolition;

(5) Execution of eviction or demolition only during regular office hours from Mondays
to Fridays and during good weather, unless the affected families consent otherwise;

(6) No use of heavy equipment for demolition except for structures that are permanent
 and of concrete materials;

(7) Proper uniforms for members of the Philippine National Police who shall occupy
the first line of law enforcement and observe proper disturbance control
procedures; and

(8) Adequate relocation, whether temporary or permanent: Provided, however, That in

cases of eviction and demolition pursuant to a court order involving
underprivileged and homeless citizens, relocation shall be undertaken by the local
government unit concerned and the National Housing Authority with the assistance
of other government agencies within forty-five (45) days from service of notice of
final judgment by the court, after which period the said order shall be executed:
Provided, further, That should relocation not be possible within the said period,
financial assistance in the amount equivalent to the prevailing minimum daily wage
multiplied by sixty (60) days shall be extended to the affected families by the local
government unit concerned.

This Department of the Interior and Local Government and the Housing and Urban
Development Coordinating Council shall jointly promulgate the necessary rules and
regulations to carry out the above provision.

Lastly, the petitioners failed to substantiate their allegations that the public respondents
gravely abused their discretion in implementing Section 28 (a) and (b) of RA 7279.
Instead, they merely imputed jurisdictional abuse to the public respondents through
general averments in their pleading, but without any basis to support their claim.

This is precisely the reason why we frown upon the direct filing of Rule 65 petitions
before the Court. To the point of being repetitive, we emphasize that we are not trier of
facts and this applies with greater force to Rule 65 petitions which are original and
independent actions. To justify judicial intrusion into what is fundamentally the domain
of the executive department, the petitioners must establish facts that are necessarily
linked to the jurisdictional problem they presented in this case, i.e., whether the public
respondents exercised their power in an arbitrary and despotic manner by reason of
passion or personal hostility in implementing Section 28 (a) and (b) of RA 7279.

Since the petitioners failed to establish that the public respondents’ alleged abuse of
discretion was so patent and gross as to amount to an evasion or to a unilateral refusal
to perform the duty enjoined or to act in contemplation of law, this petition must
necessarily fail.27
WHEREFORE, premises considered, we hereby DISMISS the petition for its serious
procedural defects. No costs.

SO ORDERED.

59. Chavez v. PCGG, 299 SCRA 744 (Right to Information)FACTS: Petitioner asks this Court
to define the nature and the extent of the people’s constitutional right to information on
matters of public concern. Petitioner, invoking his constitutional right to information and
the correlative duty of the state to disclose publicly all its transactions involving the
national interest, demands that respondents make public any and all negotiations and
agreements pertaining to PCGG’s task of recovering the Marcoses’ ill-gotten wealth.

ISSUE: Are the negotiations leading to a settlement on ill-gotten wealth of the Marcoses
within the scope of the constitutional guarantee of access to information?

HELD: Yes. Considering the intent of the framers of the Constitution, it is incumbent
upon the PCGG and its officers, as well as other government representatives, to disclose
sufficient public information on any proposed settlement they have decided to take up
with the ostensible owners and holders of ill-gotten wealth. Such information, though,
must pertain to definite propositions of the government, not necessarily to intra-agency or
inter-agency recommendations or communications during the stage when common
assertions are still in the process of being formulated or are in the “exploratory” stage.
There is a need, of course, to observe the same restrictions on disclosure of information in
general --such as on matters involving national security, diplomatic or foreign relations,
intelligence and other classified information

Chavez v PEA and AMARI G.R. No. 133250. July 9, 2002.

7/7/2010

0 Comments

Facts: On February 4, 1977, then President Ferdinand E. Marcos issued Presidential

Decree No. 1084 creating PEA. PD No. 1084 tasked PEA "to reclaim land, including
foreshore and submerged areas," and "to develop, improve, acquire, lease and sell any
and all kinds of lands." On the same date, then President Marcos issued Presidential
Decree No. 1085 transferring to PEA the "lands reclaimed in the foreshore and offshore
of the Manila Bay" under the Manila-Cavite Coastal Road and Reclamation Project
(MCCRRP).

On January 19, 1988, then President Corazon C. Aquino issued Special Patent No.
3517, granting and transferring to PEA "the parcels of land so reclaimed under the
Manila-Cavite Coastal Road and Reclamation Project (MCCRRP) containing a total area
of one million nine hundred fifteen thousand eight hundred ninety four (1,915,894)
square meters." Subsequently, on April 9, 1988, the Register of Deeds of the
Municipality of Parañaque issued Transfer Certificates of Title Nos. 7309, 7311, and
7312, in the name of PEA, covering the three reclaimed islands known as the "Freedom
Islands" located at the southern portion of the Manila-Cavite Coastal Road, Parañaque
City.

PEA and AMARI entered into the JVA through negotiation without public bidding.
On April 28, 1995, the Board of Directors of PEA, in its Resolution No. 1245, confirmed
the JVA. On June 8, 1995, then President Fidel V. Ramos, through then Executive
Secretary Ruben Torres, approved the JVA.

The Senate Committees reported the results of their investigation in Senate

Committee Report No. 560 dated September 16, 1997. Among the conclusions of their
report are: (1) the reclaimed lands PEA seeks to transfer to AMARI under the JVA are
lands of the public domain which the government has not classified as alienable lands
and therefore PEA cannot alienate these lands; (2) the certificates of title covering the
Freedom Islands are thus void, and (3) the JVA itself is illegal.

On December 5, 1997, then President Fidel V. Ramos issued Presidential

Administrative Order No. 365 creating a Legal Task Force to conduct a study on the
legality of the JVA in view of Senate Committee Report No. 560. The members of the
Legal Task Force were the Secretary of Justice, the Chief Presidential Legal Counsel, and
the Government Corporate Counsel. The Legal Task Force upheld the legality of the
JVA, contrary to the conclusions reached by the Senate Committees.

On April 27, 1998, petitioner Frank I. Chavez ("Petitioner" for brevity) as a taxpayer,
filed the instant Petition for Mandamus with Prayer for the Issuance of a Writ of
Preliminary Injunction and Temporary Restraining Order. Petitioner contends the
government stands to lose billions of pesos in the sale by PEA of the reclaimed lands to
AMARI. Petitioner prays that PEA publicly disclose the terms of any renegotiation of the
JVA, invoking Section 28, Article II, and Section 7, Article III, of the 1987 Constitution
on the right of the people to information on matters of public concern.

Due to the approval of the Amended JVA by the Office of the President, petitioner
now prays that on "constitutional and statutory grounds the renegotiated contract be
declared null and void."

Issue: The issues raised by petitioner, PEA and AMARI are as follows:
1. Whether the reliefs prayed for are moot and academic because of subsequent
events;
2. Whether the petition should be dismissed for failing to observe the principle of
governing the heirarchy of courts;
3. Whether the petition should be dismissed for non-exhaustion of administrative
remedies;
4. Whether petitioner has locus standi;
5. Whether the constitutional right to information includes information on on-going
neogtiations BEFORE a final agreement;
6. Whether the stipulations in the amended joint venture agreement for the transfer
to AMARI of certain lands, reclaimed and still to be reclaimed violate the 1987
Constitution; and
7. Whether the Court has jurisdiction over the issue whether the amended JVA is
grossly disadvantageous to the government

Held: 1. We rule that the signing and of the Amended JVA by PEA and AMARI and its
approval by the President cannot operate to moot the petition and divest the Court of its
jurisdiction.

PEA and AMARI have still to implement the Amended JVA. The prayer to enjoin the
signing of the Amended JVA on constitutional grounds necessarily includes preventing
its implementation if in the meantime PEA and AMARI have signed one in violation of
the Constitution. Petitioner's principal basis in assailing the renegotiation of the JVA is
its violation of the Section 3, Article XII of the Constitution, which prohibits the
government from alienating lands of the public domain to private corporations. The
Amended JVA is not an ordinary commercial contract but one which seeks to transfer
title and ownership to 367.5 hectares of reclaimed lands and submerged areas of Manila
Bay to a single private corporation.

Also, the instant petition is a case of first impression being a wholly government
owned corporation performing public as well as proprietary functions. All previous
decisions of the Court involving Section 3, Article XII of the 1987 Constitution, or its
counterpart provision in the 1973 Constitution, covered agricultural lands sold to private
corporations which acquired the lands from private parties.
 Lastly, there is a need to resolve immediately the constitutional issue raised in this
petition because of the possible transfer at any time by PEA to AMARI of title and
ownership to portions of the reclaimed lands. Under the Amended JVA, PEA is
obligated to transfer to AMARI the latter's seventy percent proportionate share in the
reclaimed areas as the reclamation progresses, The Amended JVA even allows AMARI
to mortgage at any time the entire reclaimed area to raise financing for the reclamation
project.

2. The instant case, however, raises constitutional issues of transcendental

importance to the public. The Court can resolve this case without determining any
factual issue related to the case. Also, the instant case is a petition for mandamus which
falls under the original jurisdiction of the Court under Section 5, Article VIII of the
Constitution. We resolve to exercise primary jurisdiction over the instant case.

3. PEA was under a positive legal duty to disclose to the public the terms and
conditions for the sale of its lands. The law obligated PEA make this public disclosure
even without demand from petitioner or from anyone. PEA failed to make this public
disclosure because the original JVA, like the Amended JVA, was the result of a
negotiated contract, not of a public bidding. Considering that PEA had an affirmative
statutory duty to make the public disclosure, and was even in breach of this legal duty,
petitioner had the right to seek direct judicial intervention.

The principle of exhaustion of administrative remedies does not apply when the issue
involved is a purely legal or constitutional question. The principal issue in the instant
case is the capacity of AMARI to acquire lands held by PEA in view of the constitutional
ban prohibiting the alienation of lands of the public domain to private corporations. We
rule that the principle of exhaustion of administrative remedies does not apply in the
instant case.

The petitioner has standing to bring this taxpayer's suit because the petition seeks to
compel PEA to comply with its constitutional duties. There are two constitutional issues
involved here. First is the right of citizens to information on matters of public concern.
Second is the application of a constitutional provision intended to insure the equitable
distribution of alienable lands of the public domain among Filipino Citizens.
The thrust of the second issue is to prevent PEA from alienating hundreds of hectares of
alienable lands of the public domain in violation of the Constitution, compelling PEA to
comply with a constitutional duty to the nation.

4. Ordinary taxpayers have a right to initiate and prosecute actions questioning the
validity of acts or orders of government agencies or instrumentalities, if the issues raised
are of 'paramount public interest,' and if they 'immediately affect the social, economic
and moral well being of the people.'

We rule that since the instant petition, brought by a citizen, involves the enforcement
of constitutional rights — to information and to the equitable diffusion of natural
resources — matters of transcendental public importance, the petitioner has the
requisite locus standi.

5. The State policy of full transparency in all transactions involving public interest
reinforces the people's right to information on matters of public concern. This State
policy is expressed in Section 28, Article II of the Constitution, thus: “Subject to
reasonable conditions prescribed by law, the State adopts and implements a policy of
full public disclosure of all its transactions involving public interest."

Contrary to AMARI's contention, the commissioners of the 1986 Constitutional

Commission understood that the right to information "contemplates inclusion of
negotiations leading to the consummation of the transaction." Certainly, a
consummated contract is not a requirement for the exercise of the right to information.
Otherwise, the people can never exercise the right if no contract is consummated, and if
one is consummated, it may be too late for the public to expose its defects.

Requiring a consummated contract will keep the public in the dark until the contract,
which may be grossly disadvantageous to the government or even illegal, becomes a fait
accompli.

However, the right to information does not compel PEA to prepare lists, abstracts,
summaries and the like relating to the renegotiation of the JVA. 34 The right only
affords access to records, documents and papers, which means the opportunity to
inspect and copy them. One who exercises the right must copy the records, documents
and papers at his expense. The exercise of the right is also subject to reasonable
regulations to protect the integrity of the public records and to minimize disruption to
government operations, like rules specifying when and how to conduct the inspection
and copying.

6. Article 339 of the Civil Code of 1889 defined property of public dominion as
follows:
"Art. 339. Property of public dominion is —
1. That devoted to public use, such as roads, canals, rivers, torrents, ports and
bridges constructed by the State, riverbanks, shores, roadsteads, and that of a similar
character;
2. That belonging exclusively to the State which, without being of general public
use, is employed in some public service, or in the development of the national wealth,
such as walls, fortresses, and other works for the defense of the territory, and mines,
until granted to private individuals.

Property devoted to public use referred to property open for use by the public. In
contrast, property devoted to public service referred to property used for some specific
public service and open only to those authorized to use the property.Property of public
dominion referred not only to property devoted to public use, but also to property not so
used but employed to develop the national wealth. This class of property constituted
property of public dominion although employed for some economic or commercial
activity to increase the national wealth.

"Art. 341. Property of public dominion, when no longer devoted to public use or to
the defense of the territory, shall become a part of the private property of the State."
This provision, however, was not self-executing. The legislature, or the executive
department pursuant to law, must declare the property no longer needed for public use
or territorial defense before the government could lease or alienate the property to
private parties.

Act No. 2874 of the Philippine Legislature

Sec. 55. Any tract of land of the public domain which, being neither timber nor
mineral land, shall be classified as suitable for residential purposes or for commercial,
industrial, or other productive purposes other than agricultural purposes, and shall be
open to disposition or concession, shall be disposed of under the provisions of this
chapter, and not otherwise.

The rationale behind this State policy is obvious. Government reclaimed, foreshore
and marshy public lands for non-agricultural purposes retain their inherent potential as
areas for public service. This is the reason the government prohibited the sale, and only
allowed the lease, of these lands to private parties. The State always reserved these lands
for some future public service.

However, government reclaimed and marshy lands, although subject to classification

as disposable public agricultural lands, could only be leased and not sold to private
parties because of Act No. 2874.

The 1987 Constitution continues the State policy in the 1973 Constitution banning
private corporations from acquiring any kind of alienable land of the public domain.
Like the 1973 Constitution, the 1987 Constitution allows private corporations to hold
alienable lands of the public domain only through lease. As in the 1935 and 1973
Constitutions, the general law governing the lease to private corporations of reclaimed,
foreshore and marshy alienable lands of the public domain is still CA No. 141.

Without the constitutional ban, individuals who already acquired the maximum area
of alienable lands of the public domain could easily set up corporations to acquire more
alienable public lands. An individual could own as many corporations as his means
would allow him. An individual could even hide his ownership of a corporation by
putting his nominees as stockholders of the corporation. The corporation is a convenient
vehicle to circumvent the constitutional limitation on acquisition by individuals of
alienable lands of the public domain.

PD No. 1085, coupled with President Aquino's actual issuance of a special patent
covering the Freedom Islands, is equivalent to an official proclamation classifying the
Freedom Islands as alienable or disposable lands of the public domain. Being neither
timber, mineral, nor national park lands, the reclaimed Freedom Islands necessarily fall
under the classification of agricultural lands of the public domain. Under the 1987
Constitution, agricultural lands of the public domain are the only natural resources that
the State may alienate to qualified private parties. All other natural resources, such as
the seas or bays, are "waters . . . owned by the State" forming part of the public domain,
and are inalienable pursuant to Section 2, Article XII of the 1987 Constitution.

In short, DENR is vested with the power to authorize the reclamation of areas under
water, while PEA is vested with the power to undertake the physical reclamation of areas
under water whether directly or through private contractors. DENR is also empowered
to classify lands of the public domain into alienable or disposable lands subject to the
approval of the President. On the other hand, PEA is tasked to develop, sell or lease the
reclaimed alienable lands of the public domain.

Clearly, the mere physical act of reclamation by PEA of foreshore or submerged areas
does not make the reclaimed lands alienable or disposable lands of the public domain,
much less patrimonial lands of PEA. Likewise, the mere transfer by the National
Government of lands of the public domain to PEA does not make the lands alienable or
disposable lands of the public domain, much less patrimonial lands of PEA.

There is no express authority under either PD No. 1085 or EO No. 525 for PEA to sell
its reclaimed lands. PD No. 1085 merely transferred "ownership and administration" of
lands reclaimed from Manila Bay to PEA, while EO No. 525 declared that lands
reclaimed by PEA "shall belong to or be owned by PEA." PEA's charter, however,
expressly tasks PEA "to develop, improve, acquire, administer, deal in, subdivide,
dispose, lease and sell any and all kinds of lands . . . owned, managed, controlled and/or
operated by the government." 87 (Emphasis supplied) There is, therefore, legislative
authority granted to PEA to sell its lands, whether patrimonial or alienable lands of the
public domain. PEA may sell to private parties its patrimonial properties in accordance
with the PEA charter free from constitutional limitations. The constitutional ban on
private corporations from acquiring alienable lands of the public domain does not apply
to the sale of PEA's patrimonial lands.

Moreover, under Section 79 of PD No. 1445, otherwise known as the Government

Auditing Code, the government is required to sell valuable government property
through public bidding. Section 79 of PD No. 1445 mandates that:... "In the event that
the public auction fails, the property may be sold at a private sale at such price as may
be fixed by the same committee or body concerned and approved by the Commission."

However, the original JVA dated April 25, 1995 covered not only the Freedom Islands
and the additional 250 hectares still to be reclaimed, it also granted an option to AMARI
to reclaim another 350 hectares. The original JVA, a negotiated contract, enlarged the
reclamation area to 750 hectares. The failure of public bidding on December 10, 1991,
involving only 407.84 hectares, is not a valid justification for a negotiated sale of 750
hectares, almost double the area publicly auctioned.

Jurisprudence holding that upon the grant of the patent or issuance of the certificate
of title the alienable land of the public domain automatically becomes private land
cannot apply to government units and entities like PEA.

The grant of legislative authority to sell public lands in accordance with Section 60 of
CA No. 141 does not automatically convert alienable lands of the public domain into
private or patrimonial lands. The alienable lands of the public domain must be
transferred to qualified private parties, or to government entities not tasked to dispose
of public lands, before these lands can become private or patrimonial lands. Otherwise,
the constitutional ban will become illusory if Congress can declare lands of the public
domain as private or patrimonial lands in the hands of a government agency tasked to
dispose of public lands.

To allow vast areas of reclaimed lands of the public domain to be transferred to PEA
as private lands will sanction a gross violation of the constitutional ban on private
corporations from acquiring any kind of alienable land of the public domain. This
scheme can even be applied to alienable agricultural lands of the public domain since
PEA can "acquire . . . any and all kinds of lands."

The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now covered
by certificates of title in the name of PEA, are alienable lands of the public domain. PEA
may lease these lands to private corporations but may not sell or transfer ownership of
these lands to private corporations.
 7. Considering that the Amended JVA is null and void ab initio, there is no necessity
to rule on this last issue. Besides, the Court is not the trier of facts, and this last issue
involves a determination of factual matters.

WHEREFORE, the petition is GRANTED. The Public Estates Authority and Amari
Coastal Bay Development Corporation are PERMANENTLY ENJOINED from
implementing the Amended Joint Venture Agreement which is hereby declared NULL
and VOID ab initio.

Petitioner: Romulo L. Neri

Respondents: Senate Committee on Accountability of Public Officers and

Investigations, Senate Committee on Trade and Commerce, and Senate Committee on
National Defense and Security

Facts:

Petitioner Romulo Neri, then Director General of the National Economic and
Development Authority (NEDA), was invited by the respondent Senate Committees to
attend their joint investigation on the alleged anomalies in the National Broadband
Network (NBN) Project. This project was contracted by the Philippine Government with
the Chinese firm Zhong Xing Telecommunications Equipment (ZTE), which involved
the amount of US$329,481,290. When he testified before the Senate Committees, he
disclosed that then Commission on Elections Chairman Benjamin Abalos, brokering for
ZTE, offered him P200 million in exchange for his approval of the NBN Project. He
further narrated that he informed President Gloria Macapagal-Arroyo about
the bribery attempt and that she instructed him not to accept the bribe. However, when
probed further on what they discussed about the NBN Project, petitioner refused to
answer, invoking “executive privilege.” In particular, he refused to answer the questions
on 1.) whether or not the President followed up the NBN Project, 2.) whether or not she
directed him to prioritize it, and 3.) whether or not she directed him to approve it.

Later on, respondent Committees issued a Subpoena Ad Testificandum to petitioner,

requiring him to appear and testify on 20 November 2007. However, Executive
Secretary Eduardo Ermita sent a letter dated 15 November to the Committees
requesting them to dispense with Neri’s testimony on the ground of executive privilege.
Ermita invoked the privilege on the ground that “the information sought to be disclosed
might impair our diplomatic as well as economic relations with the People’s Republic of
China,” and given the confidential nature in which these information were conveyed to
the President, Neri “cannot provide the Committee any further details of these
conversations, without disclosing the very thing the privilege is designed to protect.”
Thus, on 20 November, Neri did not appear before the respondent Committees.

On 22 November, respondents issued a Show Cause Letter to Neri requiring him to

show cause why he should not be cited for contempt for his failure to attend the
scheduled hearing on 20 November. On 29 November, Neri replied to the Show Cause
Letter and explained that he did not intend to snub the Senate hearing, and requested
that if there be new matters that were not yet taken up during his first appearance, he be
informed in advance so he can prepare himself. He added that his non-appearance was
upon the order of the President, and that his conversation with her dealt with delicate
and sensitive national security and diplomatic matters relating to the impact of the
bribery scandal involving high government officials and the possible loss of confidence
of foreign investors and lenders in the Philippines. Respondents found the explanation
unsatisfactory, and later on issued an Order citing Neri in contempt and consequently
ordering his arrest and detention at the Office of the Senate Sergeant-At-Arms until he
appears and gives his testimony.

Neri filed the petition asking the Court to nullify both the Show Cause Letter and the
Contempt Order for having been issued with grave abuse of discretion amounting to lack
or excess of jurisdiction, and stressed that his refusal to answer the three questions was
anchored on a valid claim to executive privilege in accordance with the ruling in the
landmark case of Senate vs. Ermita (G.R. No. 169777, 20 April 2006). For its part, the
Senate Committees argued that they did not exceed their authority in issuing the
assailed orders because there is no valid justification for Neri’s claim to executive
privilege. In addition, they claimed that the refusal of petitioner to answer the three
questions violates the people’s right to public information, and that the executive is
using the concept of executive privilege as a means to conceal the criminal
act of bribery in the highest levels of government.

Issue:

Whether or not the three questions that petitioner Neri refused to answer were covered
by executive privilege, making the arrest order issued by the respondent Senate
Committees void.

Discussion:

Citing the case of United States vs. Nixon (418 U.S. 683), the Court laid out the three
elements needed to be complied with in order for the claim to executive privilege to be
valid. These are: 1.) the protected communication must relate to a quintessential and
non-delegable presidential power; 2.) it must be authored, solicited, and received by a
close advisor of the President or the President himself. The judicial test is that an
advisor must be in “operational proximity” with the President; and, 3.) it may be
overcome by a showing of adequate need, such that the information sought “likely
contains important evidence,” and by the unavailability of the information elsewhere by
an appropriate investigating authority.

In the present case, Executive Secretary Ermita claimed executive privilege on the
argument that the communications elicited by the three questions “fall under
conversation and correspondence between the President and public officials” necessary
in “her executive and policy decision-making process,” and that “the information sought
to be disclosed might impair our diplomatic as well as economic relations with the
People’s Republic of China.” It is clear then that the basis of the claim is a matter related
to the quintessential and non-delegable presidential power of diplomacy or foreign
relations.

As to the second element, the communications were received by a close advisor of the
President. Under the “operational proximity” test, petitioner Neri can be considered a
close advisor, being a member of the President’s Cabinet.

And as to the third element, there is no adequate showing of a compelling need that
would justify the limitation of the privilege and of the unavailability of the information
elsewhere by an appropriate investigating authority. Presidential communications are
presumptive privilege and that the presumption can be overcome only by mere showing
of public need by the branch seeking access to such conversations. In the present case,
respondent Committees failed to show a compelling or critical need for the answers to
the three questions in the enactment of any law under Sec. 21, Art. VI. Instead, the
questions veer more towards the exercise of the legislative oversight function under Sec.
22, Art. VI. As ruled in Senate vs. Ermita, “the oversight function of Congress may be
facilitated by compulsory process only to the extent that it is performed in pursuit of
legislation.”

Neri’s refusal to answer based on the claim of executive privilege does not violate the
people’s right to information on matters of public concern simply because Sec. 7, Art. III
of the Constitution itself provides that this right is “subject to such limitations as may be
provided by law.”

Held:

The divided Supreme Court (voting 9-6) was convinced that the three questions are
covered by presidential communications privilege, and that this privilege has been
validly claimed by the executive department, enough to shield petitioner Neri from any
arrest order the Senate may issue against him for not answering such questions.
The petition was granted. The subject Order dated January 30, 2008, citing petitioner in
contempt of the Senate Committee and directing his arrest and detention was nullified.

EN BANC

CENTER FOR PEOPLE G.R. No. 189546

EMPOWERMENT IN

GOVERNANCE,

Petitioner, Present:

CORONA, C.J.,

CARPIO,

CARPIO MORALES,

VELASCO, JR.,*

NACHURA,*

LEONARDO-DE CASTRO,*

- versus - BRION,*

PERALTA,

BERSAMIN,

DEL CASTILLO,

ABAD,

VILLARAMA, JR.,

PEREZ,

MENDOZA,* and

SERENO,** JJ.

COMMISSION ON ELECTIONS,
Respondent. Promulgated:

September 21, 2010

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

DECISION

ABAD, J.:

This case concerns the duty of the Commission on Elections (COMELEC) to disclose the
source code for the Automated Election System (AES) technologies it used in the 2010
national and local elections.

On May 26, 2009 petitioner Center for People Empowerment in Governance (CenPEG),
a non-government organization,[1] wrote respondent COMELEC, requesting a copy of
the source code of the Precinct Count Optical Scan (PCOS) programs, the Board of
Canvassers Consolidation/Canvassing System (BOC CCS) programs for the municipal,
provincial, national, and congressional canvass, the COMELEC server programs, and
the source code of the in-house COMELEC programs called the Data Capturing System
(DCS) utilities.

CenPEG invoked the following pertinent portion of Section 12 of Republic Act (R.A.)
9369, which provides:

xxxx
Once an AES technology is selected for implementation, the Commission shall promptly
make the source code of that technology available and open to any interested political
party or groups which may conduct their own review thereof.

Section 2(12) of R.A. 9369 describes the source code as the human readable instructions
that define what the computer equipment will do. This has been explained in an article:

Source code is the human readable representation of the instructions that control the
operation of a computer. Computers are composed of hardware (the physical devices
themselves) and software (which controls the operation of the hardware). The software
instructs the computer how to operate; without software, the computer is useless.
Source code is the human readable form in which software is written by computer
programmers. Source code is usually written in a programming language that is arcane
and incomprehensible to non-specialists but, to a computer programmer, the source
code is the master blueprint that reveals and determines how the machine will behave.

Source code could be compared to a recipe: just as a cook follows the instructions in a
recipe step-by-step, so a computer executes the sequence of instructions found in the
software source code. This is a reasonable analogy, but it is also imperfect. While a good
cook will use her discretion and common sense in following a recipe, a computer follows
the instructions in the source code in a mechanical and unfailingly literal way; thus,
while errors in a recipe might be noticed and corrected by the cook, errors in source
code can be disastrous, because the code is executed by the computer exactly as written,
whether that was what the programmer intended or not x x x.

The source code in voting machines is in some ways analogous to the procedures
provided to election workers. Procedures are instructions that are provided to people;
for instance, the procedures provided to poll workers list a sequence of steps that poll
workers should follow to open the polls on election morning. Source code contains
instructions, not for people, but for the computers running the election; for instance, the
source code for a voting machine determines the steps the machine will take when the
polls are opened on election morning.[2] (Underscoring supplied)

On June 24, 2009 the COMELEC granted the request[3] for the source code of the PCOS
and the CCS, but denied that for the DCS, since the DCS was a system used in processing
the Lists of Voters which is not part of the voting, counting and canvassing systems
contemplated by R.A. 9369. According to COMELEC, if the source code for the DCS
were to be divulged, unscrupulous individuals might change the program and pass off
an illicit one that could benefit certain candidates or parties.

Still, the COMELEC apparently did not release even the kinds of source code that it said
it was approving for release. Consequently, on July 13, 2009, CenPEG once more asked
COMELEC for the source code of the PCOS, together with other documents, programs,
and diagrams related to the AES. CenPEG sent follow-up letters on July 17 and 20 and
on August 24, 2009.

On August 26, 2009 COMELEC replied that the source code CenPEG wanted did not yet
exist for the reasons: 1) that it had not yet received the baseline source code of the
provider, Smartmatic, since payment to it had been withheld as a result of a pending
suit; 2) its customization of the baseline source code was targeted for completion in
November 2009 yet; 3) under Section 11 of R.A. 9369, the customized source code still
had to be reviewed by an established international certification entity, which review was
expected to be completed by the end of February 2010; and 4) only then would the AES
be made available for review under a controlled environment.

Rejecting COMELECs excuse, on October 5, 2009 CenPEG filed the present petition
for mandamus, seeking to compel COMELEC to immediately make its source codes
available to CenPEG and other interested parties.

COMELEC claimed in its comment that CenPEG did not have a clear, certain, and well-
defined right that was enforceable by mandamus because COMELECs duty to make the
source code available presupposed that it already had the same. COMELEC restated the
explanation it gave in its August 26, 2009 letter to CenPEG.

In its manifestation and omnibus motion, CenPEG did not believe that the source code
was still unavailable considering that COMELEC had already awarded to an
international certification entity the review of the same and that COMELEC had already
been field testing its PCOS and CCS machines.
On February 10, 2010 COMELEC filed a manifestation, stating that it had already
deposited on February 9, 2010 the source code to be used in the May 10, 2010 elections
with the Bangko Sentral ng Pilipinas. Required to comment on this, CenPEG said on
February 22, 2010 that the manifestation did not constitute compliance with Section 12
of R.A. 9369 but only with Section 11 of R.A. 8436.

In its earlier comment, COMELEC claimed, reiterating what it said in its August 26,
2009 letter to CenPEG, that it would make the source code available for review by the
end of February 2010 under a controlled environment. Apparently, this review had not
taken place and was overtaken by the May 10, 2010 elections.

On June 21, 2010 CenPEG filed a manifestation and omnibus motion, reiterating its
prayer for the issuance of a writ of mandamus in this case notwithstanding the fact that
the elections for which the subject source code was to be used had already been held. It
claimed that the source code remained important and relevant not only for compliance
with the law, and the purpose thereof, but especially in the backdrop of numerous
admissions of errors and claims of fraud.

The Court finds the petition and this last manifestation meritorious.

The pertinent portion of Section 12 of R.A. 9369 is clear in that once an AES technology
is selected for implementation, the Commission shall promptly make the source code of
that technology available and open to any interested political party or groups which may
conduct their own review thereof. The COMELEC has offered no reason not to comply
with this requirement of the law. Indeed, its only excuse for not disclosing the source
code was that it was not yet available when CenPEG asked for it and, subsequently, that
the review had to be done, apparently for security reason, under a controlled
environment. The elections had passed and that reason is already stale.

WHEREFORE, the Court GRANTS the petition for mandamus and DIRECTS the
COMELEC to make the source codes for the AES technologies it selected for
implementation pursuant to R.A. 9369 immediately available to CenPEG and all other
interested political parties or groups for independent review.
SO ORDERED.

A.C. 1928 December 19, 1980

In the Matter of the IBP Membership Dues Delinquency of Atty. MARCIAL A.

EDILLION (IBP Administrative Case No. MDD-1), petitioner,

FERNANDO, C.J.:

The full and plenary discretion in the exercise of its competence to reinstate a disbarred
member of the bar admits of no doubt. All the relevant factors bearing on the specific
case, public interest, the integrity of the profession and the welfare of the recreant who
had purged himself of his guilt are given their due weight. Respondent Marcial A.
Edillon was disbarred on August 3, 1978, 1 the vote being unanimous with the late.

Chief Justice Castro ponente. From June 5, 1979, he had repeatedly pleaded that he be
reinstated. The minute resolution dated October 23, 1980, granted such prayer. It was
there made clear that it "is without prejudice to issuing an extended opinion." 2

Before doing so, a recital of the background facts that led to the disbarment of
respondent may not be amiss. As set forth in the resolution penned by the late Chief
Justice Castro: "On November 29. 1975, the Integrated Bar of the Philippines (IBP for
short) Board of Governors, unanimously adopted Resolution No. 75-65 in
Administrative case No. MDD-1 (In the Matter of the Membership Dues Delinquency of
Atty. Marcial A. Edillon) recommending to the Court the removal of the name of the
respondent from its Roll of Attorneys for 'stubborn refusal to pay his membership dues'
to the IBP since the latter's constitution notwithstanding due notice. On January 21,
1976, the IBP, through its then President Liliano B. Neri, submitted the said resolution
to the Court for consideration and approval,. Pursuant to paragraph 2, Section 24,
Article III of the By-Laws of the IBP, which. reads: ... Should the delinquency further
continue until the following June 29, the Board shall promptly inquire into the cause or
causes of the continued delinquency and take whatever action it shall deem appropriate,
including a recommendation to the Supreme Court for the removal of the delinquent
member's name from the Roll of Attorneys. Notice of the action taken should be submit
by registered mail to the member and to the Secretary of the Chapter concerned.' On
January 27, 1976, the Court required the respondent to comment on the resolution and
letter adverted to above he submitted his comment on February 23, 1976, reiterating his
refusal to pay the membership fees due from him. On March 2, 1976, the Court required
the IBP President and the IBP Board of Governors to reply to Edillon's comment: On
March 24, 1976, they submitted a joint reply. Thereafter, the case was set for hearing on
June 3, 1976. After the hearing, the parties were required to submit memoranda in
amplification of their oral arguments. The matter was thenceforth submitted for
resolution." 3

Reference was then made to the authority of the IBP Board of Governors to recommend
to the Supreme Court the removal of a delinquent member's name from the Roll of
Attorneys as found in Rules of Court: 'Effect of non-payment of dues. — Subject to the
provisions of Section 12 of this Rule, default in the payment of annual dues for six
months shall warrant suspension of membership in the Integrated Bar, and default in
such payment for one year shall be a ground for the removal of the name of the
delinquent member from the Roll of Attorneys. 4

The submission of respondent Edillion as summarized in the aforesaid resolution "is

that the above provisions constitute an invasion of his constitutional rights in the sense
that he is being compelled, as a pre-condition to maintaining his status as a lawyer in
good standing, to be a member of the IBP and to pay the corresponding dues, and that
as a consequence of this compelled financial support of the said organization to which
he is admittedly personally antagonistic, he is being deprived of the rights to liberty and
property guaranteed to him by the Constitution. Hence, the respondent concludes, the
above provisions of the Court Rule and of the IBP By-Laws are void and of no legal force
and effect. 5 It was pointed out in the resolution that such issues was raised on a
previous case before the Court, entitled 'Administrative Case No. 526, In the Matter of
the Petition for the Integration of the Bar of the Philippines, Roman Ozaeta, et al.,
Petitioners.' The Court exhaustively considered all these matters in that case in its
Resolution ordaining the integration of the Bar of the Philippines, promulgated on
January 9, 1973. 6The unanimous conclusion reached by the Court was that the
integration of the Philippine Bar raises no constitutional question and is therefore
legally unobjectionable, "and, within the context of contemporary conditions in the
Philippine, has become an imperative means to raise the standards of the legal
profession, improve the administration of justice, and enable the Bar to discharge its
public responsibility fully and effectively." 7

As mentioned at the outset, the vote was unanimous. From the time the decision was
rendered, there were various pleadings filed by respondent for reinstatement starting
with a motion for reconsideration dated August 19, 1978. Characterized as it was by
persistence in his adamantine refusal to admit the full competence of the Court on the
matter, it was not unexpected that it would be denied. So it turned out. 8 It was the
consensus that he continued to be oblivious to certain balic juridical concepts, the
appreciation of which does not even require great depth of intellect. Since respondent
could not be said to be that deficient in legal knowledge and since his pleadings in other
cases coming before this Tribunal were quite literate, even if rather generously sprinkled
with invective for which he had been duly taken to task, there was the impression that
his recalcitrance arose from and sheer obstinacy. Necessary, the extreme penalty of
disbarment visited on him was more than justified.

Since then, however, there were other communications to this Court where a different
attitude on his part was discernible. 9 The tone of defiance was gone and circumstances
of a mitigating character invoked — the state of his health and his advanced age. He
likewise spoke of the welfare of former clients who still rely on him for counsel, their
confidence apparently undiminished. For he had in his career been a valiant, if at times
unreasonable, defender of the causes entrusted to him.

This Court, in the light of the above, felt that reinstatement could be ordered and so it
did in the resolution of October 23, 1980. It made certain that there was full acceptance
on his part of the competence of this Tribunal in the exercise of its plenary power to
regulate the legal profession and can integrate the bar and that the dues were duly paid.
Moreover, the fact that more than two years had elapsed during which he war. barred
from exercising his profession was likewise taken into account. It may likewise be said
that as in the case of the inherent power to punish for contempt and paraphrasing the
dictum of Justice Malcolm in Villavicencio v. Lukban, 10 the power to discipline,
especially if amounting to disbarment, should be exercised on the preservative and not
on the vindictive principle. 11

One last word. It has been pertinently observed that there is no irretrievable finality as
far as admission to the bar is concerned. So it is likewise as to loss of membership. What
must ever be borne in mind is that membership in the bar, to follow Cardozo, is a
privilege burdened with conditions. Failure to abide by any of them entails the loss of
such privilege if the gravity thereof warrant such drastic move. Thereafter a sufficient
time having elapsed and after actuations evidencing that there was due contrition on the
part of the transgressor, he may once again be considered for the restoration of such a
privilege. Hence, our resolution of October 23, 1980.

The Court restores to membership to the bar Marcial A. Edillon.

MALABANAN VS. RAMENTO [129 SCRA 359; G.R. NO.62270; 21 MAY 1984]

Sunday, February 08, 2009 Posted by Coffeeholic Writes

Labels: Case Digests, Political Law

Facts: Petitioners were officers of the Supreme Student Council of respondent

University. They sought and were granted by the school authorities a permit to hold a
meeting from 8:00 A.M. to 12:00 P.M, on August 27, 1982. Pursuant to such permit,
along with other students, they held a general assembly at the Veterinary Medicine
and Animal Sciencebasketball court (VMAS), the place indicated in such permit, not in
thebasketball court as therein stated but at the second floor lobby. At such gathering
they manifested in vehement and vigorous language their opposition to the proposed
merger of the Institute of Animal Science with the Institute of Agriculture. The same
day, they marched toward the Life Science Building and continued their rally. It was
outside the area covered by their permit. Even they rallied beyond the period allowed.
They were asked to explain on the same day why they should not be held liable for
holding an illegal assembly. Then on September 9, 1982, they were informed that they
were under preventive suspension for their failure to explain the holding of an illegal
assembly. The validity thereof was challenged by petitioners both before the Court of
First Instance of Rizal against private respondents and before the Ministry of Education,
Culture, and Sports. Respondent Ramento found petitioners guilty of the charge of
illegal assembly which was characterized by the violation of the permitgranted resulting
in the disturbance of classes and oral defamation. The penalty was suspension for
one academic year. Hence this petition.

Issue: Whether on the facts as disclosed resulting in the disciplinaryaction and the
penalty imposed, there was an infringement of the right to peaceable assembly and its
cognate right of free speech.

Held: Yes. Student leaders are likely to be assertive and dogmatic. They would be
ineffective if during a rally they speak in the guarded and judicious language of the
academe. But with the activity taking place in the school premises and during the
daytime, no clear and present danger of public disorder is discernible. This is without
prejudice to the taking ofdisciplinary action for conduct, "materially disrupts classwork
or involves substantial disorder or invasion of the rights of others."

The rights to peaceable assembly and free speech are guaranteed students of educational
institutions. Necessarily, their exercise to discussmatters affecting their welfare or
involving public interest is not to be subjected to previous restraint or subsequent
punishment unless there be a showing of a clear and present danger to a substantive evil
that the state, has a right to present. As a corollary, the utmost leeway and scope is
accorded the content of the placards displayed or utterances made. The peaceable
character of an assembly could be lost, however, by an advocacy of disorder under the
name of dissent, whatever grievances that may be aired being susceptible to correction
through the ways of the law. If the assembly is to be held in school
premises, permit must be sought from its school authorities, who are devoid of the
power to deny such request arbitrarily or unreasonably. In granting such permit, there
may be conditions as to the time and place of the assembly to avoid disruption of classes
or stoppage of work of the non-academic personnel. Even if, however, there be
violations of its terms, the penalty incurred should not be disproportionate to the
offense.

UNITED PEPSI-COLA VS. LAGUESMA

NOVEMBER 17, 2013 ~ VBDIAZ

G.R. No. 122226 March 25, 1998

UNITED PEPSI-COLA SUPERVISORY UNION (UPSU), petitioner,
vs.
HON. BIENVENIDO E. LAGUESMA and PEPSI-COLA PRODUCTS,
PHILIPPINES, INC. respondents.

FACTS: Petitioner is a union of supervisory employees. It appears that on March 20,

1995 the union filed a petition for certification election on behalf of the route managers
at Pepsi-Cola Products Philippines, Inc. However, its petition was denied by the med-
arbiter and, on appeal, by the Secretary of Labor and Employment, on the ground that
the route managers are managerial employees and, therefore, ineligible for union
membership under the first sentence of Art. 245 of the Labor Code, which provides:

Ineligibility of managerial employees to join any labor organization; right of supervisory

employees. — Managerial employees are not eligible to join, assist or form any labor
organization. Supervisory employees shall not be eligible for membership in a labor
organization of the rank-and-file employees but may join, assist or form separate labor
organizations of their own.

Petitioner brought this suit challenging the validity of the order, dismissed.

Hence, this petition. Pressing for resolution its contention that the first sentence of Art.
245 of the Labor Code, so far as it declares managerial employees to be ineligible to
form, assist or join unions, contravenes Art. III, §8 of the Constitution which provides:

The right of the people, including those employed in the public and private sectors, to
form unions, associations, or societies for purposes not contrary to law shall not be
abridged.

ISSUES:
(1) whether the route managers at Pepsi-Cola Products Philippines, Inc. are managerial
employees and

(2) whether Art. 245, insofar as it prohibits managerial employees from forming, joining
or assisting labor unions, violates Art. III, §8 of the Constitution.

HELD: YES and NO

As a class, managers constitute three levels of a pyramid: (1) Top management; (2)
Middle Management; and (3) First-line Management [also called supervisors].

FIRST-LINE MANAGERS — The lowest level in an organization at which individuals are

responsible for the work of others is called first-line or first-level management. First-line
managers direct operating employees only; they do not supervise other managers.
Examples of first-line managers are the “foreman” or production supervisor in a
manufacturing plant, the technical supervisor in a research department, and the clerical
supervisor in a large office. First-level managers are often called supervisors.

MIDDLE MANAGERS — The term middle management can refer to more than one level
in an organization. Middle managers direct the activities of other managers and
sometimes also those of operating employees. Middle managers’ principal
responsibilities are to direct the activities that implement their organizations’ policies
and to balance the demands of their superiors with the capacities of their subordinates.
A plant manager in an electronics firm is an example of a middle manager.

TOP MANAGERS — Composed of a comparatively small group of executives, top

management is responsible for the overall management of the organization. It
establishes operating policies and guides the organization’s interactions with its
environment. Typical titles of top managers are “chief executive officer,” “president,”
and “senior vice-president.” Actual titles vary from one organization to another and are
not always a reliable guide to membership in the highest management classification.

A distinction exists between those who have the authority to devise, implement and
control strategic and operational policies (top and middle managers) and those whose
task is simply to ensure that such policies are carried out by the rank-and-file employees
of an organization (first-level managers/supervisors). What distinguishes them from the
rank-and-file employees is that they act in the interest of the employer in supervising
such rank-and-file employees.

“Managerial employees” may therefore be said to fall into two distinct categories: the
“managers” per se, who compose the former group described above, and the
“supervisors” who form the latter group.
#1: It appears that this question was the subject of two previous determinations by the
Secretary of Labor and Employment, in accordance with which this case was decided by
the med-arbiter.

To qualify as managerial employee, there must be a clear showing of the exercise of

managerial attributes under paragraph (m), Article 212 of the Labor Code as amended.
Designations or titles of positions are not controlling. As to the route managers and
accounting manager, we are convinced that they are managerial employees. Their job
descriptions clearly reveal so (Worker’s Alliance Trade Union (WATU) v. Pepsi-Cola
Products Philippines, Inc., Nov. 13, 1991)

This finding was reiterated in Case No. OS-A-3-71-92. entitled In Re: Petition for Direct
Certification and/or Certification Election-Route Managers/Supervisory Employees of
Pepsi-Cola Products Phils.Inc.
* doctrine of res judicata certainly applies to adversary administrative proceedings
Thus, we have in this case an expert’s view that the employees concerned are managerial
employees within the purview of Art. 212.

At the very least, the principle of finality of administrative determination compels

respect for the finding of the Secretary of Labor that route managers are managerial
employees as defined by law in the absence of anything to show that such determination
is without substantial evidence to support it.
The Court now finds that the job evaluation made by the Secretary of Labor is indeed
supported by substantial evidence. The nature of the job of route managers is given in a
four-page pamphlet, prepared by the company, called “Route Manager Position
Description,” the pertinent parts of which read:

A. BASIC PURPOSE
A Manager achieves objectives through others.
As a Route Manager, your purpose is to meet the sales plan; and you achieve this
objective through the skillful MANAGEMENT OF YOUR JOB AND THE
MANAGEMENT OF YOUR PEOPLE.
These then are your functions as Pepsi-Cola Route Manager. Within these functions —
managing your job and managing your people — you are accountable to your District
Manager for the execution and completion of various tasks and activities which will
make it possible for you to achieve your sales objectives.
Xxxx
Distinction is evident in the work of the route managers which sets them apart from
supervisors in general. Unlike supervisors who basically merely direct operating
employees in line with set tasks assigned to them, route managers are responsible for
the success of the company’s main line of business through management of their
respective sales teams. Such management necessarily involves the planning, direction,
operation and evaluation of their individual teams and areas which the work of
supervisors does not entail.

The route managers cannot thus possibly be classified as mere supervisors because their
work does not only involve, but goes far beyond, the simple direction or supervision of
operating employees to accomplish objectives set by those above them.

While route managers do not appear to have the power to hire and fire people (the
evidence shows that they only “recommended” or “endorsed” the taking of disciplinary
action against certain employees), this is because thisis a function of the Human
Resources or Personnel Department of the company.

# 2: Constitutionality of Art. 245

Art.245 is the result of the amendment of the Labor Code in 1989 by R.A. No. 6715,
otherwise known as the Herrera-Veloso Law. Unlike the Industrial Peace Act or the
provisions of the Labor Code which it superseded, R.A. No. 6715 provides separate
definitions of the terms “managerial” and “supervisory employees,” as follows:

Art. 212. Definitions. . . .

(m) “managerial employee” is one who is vested with powers or prerogatives to lay down
and execute management policies and/or to hire transfer, suspend, lay off, recall,
discharge, assign or discipline employees. Supervisory employees are those who, in the
interest of the employer, effectively recommend such managerial actions if the exercise
of such authority is not merely routinary or clerical in nature but requires the use of
independent judgment. All employees not falling within any of the above definitions are
considered rank-and-file employees for purposes of this Book.

The distinction between top and middle managers, who set management policy, and
front-line supervisors, who are merely responsible for ensuring that such policies are
carried out by the rank and file, is articulated in the present definition. 30 When read in
relation to this definition in Art. 212(m), it will be seen that Art. 245 faithfully carries
out the intent of the Constitutional Commission in framing Art. III, §8 of the
fundamental law.
*Framer’s Intent: MR. LERUM. My amendment is on Section 7, page 2, line 19, which is
to insert between the words “people” and “to” the following: WHETHER EMPLOYED
BY THE STATE OR PRIVATE ESTABLISHMENTS. In other words, the section will now
read as follows: “The right of the people WHETHER EMPLOYED BY THE STATE OR
PRIVATE ESTABLISHMENTS to form associations, unions, or societies for purposes
not contrary to law shall not be abridged.”

Nor is the guarantee of organizational right in Art. III, §8 infringed by a ban against
managerial employees forming a union. The right guaranteed in Art. III, §8 is subject to
the condition that its exercise should be for purposes “not contrary to law.” In the case
of Art. 245, there is a rational basis for prohibiting managerial employees from forming
or joining labor organizations.

PETITION is DISMISSED.

Acosta vs. Court of Appeals

Posted on June 26, 2013 by winnieclaire

Standard

GR 132088, 28 June 2000; Second Division, De Leon Jr

Facts: Petitioners are teachers from different public schools in Metro Manila. On various
dates in September and October 1990, petitioners did not report for work and instead,
participated in mass actions by public school teachers at the Liwasang Bonifacio for the
purpose of petitioning the government for redress of their grievances.
Petitioners were administratively charged with such offenses as grave misconduct, gross
neglect of duty, gross violation of civil service law, rules and regulations and reasonable
office regulations, refusal to perform official duty, gross insubordination, conduct
prejudicial to the best interest of the service and absence without official leave.
Petitioners failed to answer these charges. Following the investigations conducted by the
DECS Investigating committees, Secretary Cariño found petitioners guilty as charged
and ordered their immediate dismissal from the service. Petitioners appealed and the
CSC modified the said orders of Secretary Cariño to six (6) months suspension without
pay.
Appeal to CA: Denied

ISSUE: Whether Petitioner’s participation in the mass actions was an exercise of their
constitutional rights to peaceably assemble and petition the government for redress of
grievances

HELD: These ‘mass actions’ were to all intents and purposes a strike; they constituted a
concerted and unauthorized stoppage of, or absence from, work which it was the
teachers’ sworn duty to perform, undertaken for essentially economic reasons.

The ability to strike is not essential to the right of association. In the

absence of statute, public employees do not have the right to engage in
concerted work stoppages for any purpose.
Further, herein petitioners, are being penalized not because they exercised their right of
peaceable assembly and petition for redress of grievances but because of their successive
unauthorized and unilateral absences which produced adverse effects upon their
students for whose education they are responsible.
As aptly stated by the Solicitor General, “It is not the exercise by the petitioners
of their constitutional right to peaceably assemble that was punished, but
the manner in which they exercised such right which resulted in the
temporary stoppage or disruption of public service and classes in various
public schools in Metro Manila. For, indeed, there are efficient and non-
disruptive avenues, other than the mass actions in question, whereby
petitioners could petition the government for redress of grievances.”

It bears stressing that suspension of public services, however temporary,

will inevitably derail services to the public, which is one of the reasons why the
right to strike is denied government employees. It may be conceded that the petitioners
had valid grievances and noble intentions in staging the “mass actions,” but that will not
justify their absences to the prejudice of innocent school children. Their righteous
indignation does not legalize an illegal work stoppage.