Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 89572 December 21, 1989

DEPARTMENT OF EDUCATION, CULTURE AND SPORTS (DECS) and DIRECTOR OF CENTER FOR EDUCATIONAL
MEASUREMENT, petitioners,
vs.
ROBERTO REY C. SAN DIEGO and JUDGE TERESITA DIZON-CAPULONG, in her capacity as Presiding Judge of the
Regional Trial Court of Valenzuela, Metro Manila, Branch 172, respondents.

Ramon M. Guevara for private respondent.

CRUZ, J.:

The issue before us is mediocrity. The question is whether a person who has thrice failed the National Medical Admission
Test (NMAT) is entitled to take it again.

The petitioner contends he may not, under its rule that-

h) A student shall be allowed only three (3) chances to take the NMAT. After three (3) successive
failures, a student shall not be allowed to take the NMAT for the fourth time.

The private respondent insists he can, on constitutional grounds.

But first the facts.

The private respondent is a graduate of the University of the East with a degree of Bachelor of Science in Zoology. The
petitioner claims that he took the NMAT three times and flunked it as many times. 1 When he applied to take it again, the
petitioner rejected his application on the basis of the aforesaid rule. He then went to the Regional Trial Court of Valenzuela,
Metro Manila, to compel his admission to the test.

In his original petition for mandamus, he first invoked his constitutional rights to academic freedom and quality education. By
agreement of the parties, the private respondent was allowed to take the NMAT scheduled on April 16, 1989, subject to the
outcome of his petition. 2 In an amended petition filed with leave of court, he squarely challenged the constitutionality of
MECS Order No. 12, Series of 1972, containing the above-cited rule. The additional grounds raised were due process and
equal protection.

After hearing, the respondent judge rendered a decision on July 4, 1989, declaring the challenged order invalid and granting
the petition. Judge Teresita Dizon-Capulong held that the petitioner had been deprived of his right to pursue a medical
education through an arbitrary exercise of the police power. 3

We cannot sustain the respondent judge. Her decision must be reversed.

In Tablarin v. Gutierrez, 4 this Court upheld the constitutionality of the NMAT as a measure intended to limit the admission to
medical schools only to those who have initially proved their competence and preparation for a medical education. Justice
Florentino P. Feliciano declared for a unanimous Court:

Perhaps the only issue that needs some consideration is whether there is some reasonable relation
between the prescribing of passing the NMAT as a condition for admission to medical school on the one
hand, and the securing of the health and safety of the general community, on the other hand. This
question is perhaps most usefully approached by recalling that the regulation of the pratice of medicine in
all its branches has long been recognized as a reasonable method of protecting the health and safety of
 the public. That the power to regulate and control the practice of medicine includes the power to regulate
admission to the ranks of those authorized to practice medicine, is also well recognized. Thus, legislation
and administrative regulations requiring those who wish to practice medicine first to take and pass
medical board examinations have long ago been recognized as valid exercises of governmental power.
Similarly, the establishment of minimum medical educational requirements-i.e., the completion of
prescribed courses in a recognized medical school-for admission to the medical profession, has also
been sustained as a legitimate exercise of the regulatory authority of the state. What we have before us
in the instant case is closely related: the regulation of access to medical schools. MECS Order No. 52, s.
1985, as noted earlier, articulates the rationale of regulation of this type: the improvement of the
professional and technical quality of the graduates of medical schools, by upgrading the quality of those
admitted to the student body of the medical schools. That upgrading is sought by selectivity in the
process of admission, selectivity consisting, among other things, of limiting admission to those who
exhibit in the required degree the aptitude for medical studies and eventually for medical practice. The
need to maintain, and the difficulties of maintaining, high standards in our professional schools in
general, and medical schools in particular, in the current state of our social and economic development,
are widely known.

We believe that the government is entitled to prescribe an admission test like the NMAT as a means of
achieving its stated objective of "upgrading the selection of applicants into [our] medical schools" and of
"improv[ing] the quality of medical education in the country." Given the widespread use today of such
admission tests in, for instance, medical schools in the United States of America (the Medical College
Admission Test [MCAT] and quite probably, in other countries with far more developed educational
resources than our own, and taking into account the failure or inability of the petitioners to even attempt
to prove otherwise, we are entitled to hold that the NMAT is reasonably related to the securing of the
ultimate end of legislation and regulation in this area. That end, it is useful to recall, is the protection of
the public from the potentially deadly effects of incompetence and ignorance in those who would
undertake to treat our bodies and minds for disease or trauma.

However, the respondent judge agreed with the petitioner that the said case was not applicable. Her reason was that it
upheld only the requirement for the admission test and said nothing about the so-called "three-flunk rule."

We see no reason why the rationale in the Tablarin case cannot apply to the case at bar. The issue raised in both cases is
the academic preparation of the applicant. This may be gauged at least initially by the admission test and, indeed with more
reliability, by the three-flunk rule. The latter cannot be regarded any less valid than the former in the regulation of the
medical profession.

There is no need to redefine here the police power of the State. Suffice it to repeat that the power is validly exercised if (a)
the interests of the public generally, as distinguished from those of a particular class, require the interference of the State,
and (b) the means employed are reasonably necessary to the attainment of the object sought to be accomplished and not
unduly oppressive upon individuals.5

In other words, the proper exercise of the police power requires the concurrence of a lawful subject and a lawful method.

The subject of the challenged regulation is certainly within the ambit of the police power. It is the right and indeed the
responsibility of the State to insure that the medical profession is not infiltrated by incompetents to whom patients may
unwarily entrust their lives and health.

The method employed by the challenged regulation is not irrelevant to the purpose of the law nor is it arbitrary or oppressive.
The three-flunk rule is intended to insulate the medical schools and ultimately the medical profession from the intrusion of
those not qualified to be doctors.

While every person is entitled to aspire to be a doctor, he does not have a constitutional right to be a doctor. This is true of
any other calling in which the public interest is involved; and the closer the link, the longer the bridge to one's ambition. The
State has the responsibility to harness its human resources and to see to it that they are not dissipated or, no less worse,
not used at all. These resources must be applied in a manner that will best promote the common good while also giving the
individual a sense of satisfaction.

A person cannot insist on being a physician if he will be a menace to his patients. If one who wants to be a lawyer may
prove better as a plumber, he should be so advised and adviced. Of course, he may not be forced to be a plumber, but on
the other hand he may not force his entry into the bar. By the same token, a student who has demonstrated promise as a
pianist cannot be shunted aside to take a course in nursing, however appropriate this career may be for others.
The right to quality education invoked by the private respondent is not absolute. The Constitution also provides that "every
citizen has the right to choose a profession or course of study, subject to fair, reasonable and equitable admission and
academic requirements.6

The private respondent must yield to the challenged rule and give way to those better prepared. Where even those who
have qualified may still not be accommodated in our already crowded medical schools, there is all the more reason to bar
those who, like him, have been tested and found wanting.

The contention that the challenged rule violates the equal protection clause is not well-taken. A law does not have to operate
with equal force on all persons or things to be conformable to Article III, Section 1 of the Constitution.

There can be no question that a substantial distinction exists between medical students and other students who are not
subjected to the NMAT and the three-flunk rule. The medical profession directly affects the very lives of the people, unlike
other careers which, for this reason, do not require more vigilant regulation. The accountant, for example, while belonging to
an equally respectable profession, does not hold the same delicate responsibility as that of the physician and so need not be
similarly treated.

There would be unequal protection if some applicants who have passed the tests are admitted and others who have also
qualified are denied entrance. In other words, what the equal protection requires is equality among equals.

The Court feels that it is not enough to simply invoke the right to quality education as a guarantee of the Constitution: one
must show that he is entitled to it because of his preparation and promise. The private respondent has failed the NMAT five
times. 7 While his persistence is noteworthy, to say the least, it is certainly misplaced, like a hopeless love.

No depreciation is intended or made against the private respondent. It is stressed that a person who does not qualify in the
NMAT is not an absolute incompetent unfit for any work or occupation. The only inference is that he is a probably better, not
for the medical profession, but for another calling that has not excited his interest.

In the former, he may be a bungler or at least lackluster; in the latter, he is more likely to succeed and may even be
outstanding. It is for the appropriate calling that he is entitled to quality education for the full harnessing of his potentials and
the sharpening of his latent talents toward what may even be a brilliant future.

We cannot have a society of square pegs in round holes, of dentists who should never have left the farm and engineers who
should have studied banking and teachers who could be better as merchants.

It is time indeed that the State took decisive steps to regulate and enrich our system of education by directing the student to
the course for which he is best suited as determined by initial tests and evaluations. Otherwise, we may be "swamped with
mediocrity," in the words of Justice Holmes, not because we are lacking in intelligence but because we are a nation of
misfits.

WHEREFORE, the petition is GRANTED. The decision of the respondent court dated January 13, 1989, is REVERSED,
with costs against the private respondent. It is so ordered.

Fernan, C.J., Narvasa Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes,
Griño-Aquino, Medialdea and Regalado, JJ., concur.

Footnotes

1 A check with the Department of Education showed that the private respondent had actually taken and
flunked four tests already and was applying to take a fifth examination. 2 He also failed this fifth test.

2 Rollo, pp. 26-34.

3 152 SCRA 730.

4 US vs. Toribio, 15 Phil. 85; Fabie v. City of Manila, 21 Phil. 486; Ynot v. Intermediate Appellate Court,
148 SCRA 659.

5 Article XIV, Section 5(3).

6 Footnote Nos. 1 & 2.

 SECOND DIVISION

[G.R. No. 161172. December 13, 2004]

NADINE ROSARIO M. MORALES, petitioner, vs. THE BOARD OF REGENTS OF THE UNIVERSITY OF THE
PHILIPPINES, respondent.

DECISION
CHICO-NAZARIO, J.:

It is an accepted principle that schools of learning are given ample discretion to formulate rules and guidelines in the
granting of honors for purposes of graduation. This is part of academic freedom. Within the parameters of these rules, it is
within the competence of universities and colleges to determine who are entitled to the grant of honors among the
graduating students. Its discretion on this academic matter may not be disturbed much less controlled by the courts unless
there is grave abuse of discretion in its exercise. [1]

The Case

Before Us is a Petition for Review on Certiorari of the Decision[2] of the Court of Appeals[3] dated 28 November 2003,
reversing the 05 September 2002 Order[4] of the Regional Trial Court (RTC) of Quezon City, Branch 87.
The pivotal issue from which this case arose is the interpretation and application of Article 410 of the University of the
Philippines (UP) Code which provides:

ART. 410. Students who complete their courses with the following absolute minimum weighted average grade shall be
graduated with honors:

Summa Cum Laude .. 1.20

Magna Cum Laude .1.45

Cum Laude ..1.75

Provided, that all the grades in all subjects prescribed in the curriculum, as well as subjects that qualify as electives, shall be
included in the computation of the weighted average grade; provided further that in cases where the electives taken are
more than those required in the program, the following procedure will be used in selecting the electives to be included in the
computation of the weighted average grade:

(I) For students who did not shift programs, consider the required number of electives in chronological order.

(II) For students who shifted from one program to another, the electives to be considered shall be selected
according to the following order of priority:

(1) Electives taken in the program where the student is graduating will be selected in chronological order.

(2) Electives taken in the previous program and acceptable as electives in the second program will be
selected in chronological order.

(3) Prescribed courses taken in the previous program, but qualify as electives in the second program will
be selected in chronological order.[5]
 The Facts

In the school year 1997-1998, petitioner Nadine Rosario M. Morales transferred from the UP Manila campus, where
she was taking up Speech Pathology, to UP Diliman and enrolled in the European Languages undergraduate program under
the College of Arts and Letters. Said program has three curricula, namely, Plan A, Plan B, and Plan C. Upon the petitioners
transfer, she chose the Plan A curriculum and elected French as her major and German as her minor. Under the Plan A
curriculum, the student is required to complete 141 units worth of subjects in the University, 27 of which should be electives
in his or her minor field of study.
During the first semester of school year 1997-1998, the petitioner enrolled in the subjects German 10 and German 11
where she obtained the grades of 1.0 in both subjects. At the start of the second semester, however, the petitioner changed
her language minor from German to Spanish, while maintaining French as her major.
By the end of the first semester of school year 1999-2000, the petitioner was included in the list of candidates for
graduation with probable honors issued by the College of Arts and Letters of UP Diliman. The inclusion of the petitioner in
the said list was based on the computation made by the College of Arts and Letters of the petitioners General Weighted
Average (GWA) inclusive of her grades of 1.0 in German 10 and 11. According to the colleges computation, the petitioner
had a GWA of 1.725, clearly above the minimum weighted average grade [6]for conferment of cum laude honors.[7] Petitioner
obtained an average of 1.708 for her remaining subjects in her final semester in the University, bringing her GWA to 1.729,
which is definitely higher than the 1.75 average grade required for cum laude honors.

During the assessment for graduation though, the petitioner was not granted cum laude honors because her grades of
1.0 in the subjects German 10 and 11, which she took when her minor was still German, were excluded in the computation
of her GWA, thus bringing her GWA to 1.760, which is lower than the minimum weighted average grade required for the
conferment of cum laude honors.
Prof. Edwin Thaddeus L. Bautista, Chair of the Department of European Languages, explained that a student following
the Plan A curriculum is required to major in one European language other than Spanish, and minor in another or any of the
disciplines allowed under the curriculum. In petitioners case, her major is French and her minor is Spanish, thus, German
does not fit into her curriculum. Furthermore, the Plan A curriculum does not allow for free electives. Electives under said
curriculum must be major language electives, which, in the case of petitioner, must have been taken from French courses in
either literature or translation. German 10 and 11, being basic language courses, do not fall under electives as contemplated
in the Plan A curriculum.

Maintaining that the colleges manner of computing her grades was erroneous, the petitioner wrote Dr. Ofelia Silapan,
College Secretary of the College of Arts and Letters, on 06 April 2000, requesting that her German language subjects (i.e.,
German 10 and 11) be included in the computation of her GWA, it appearing that such had been done in connection with the
inclusion of her name in the list of those graduating with probable honors. Said letter was followed-up by another letter
signed by petitioners father, and addressed to Dr. Elena L. Samonte, University Registrar, on 08 April 2000, explaining why
petitioners German 10 and 11 grades should be included in the computation of her GWA.
These letters were taken up on a no-name basis during the 68th meeting of the University Council on 10 April 2000
upon the University Registrars endorsement. After deliberating on the matter, the University Council, by a vote of 207 in
favor and 4 against, affirmed the recommendation of the European Languages Department and the College of Arts and
Letters of not awarding the cum laude honors to the petitioner.
In view of the adverse decision of the University Council, the petitioner, together with her parents, wrote UP President
Francisco A. Nemenzo, on 18 April 2000, asking that the merits of petitioners case be reviewed and, if deemed appropriate,
the same be elevated to the UP Board of Regents in order to correct the error in the computation of the petitioners GWA.
At the 1142nd meeting of the Board of Regents held on 26 May 2000, petitioners appeal was thus discussed, and it
was resolved that said appeal be returned to the University Council for further consideration, with full disclosure of who is
involved in the matter.

Petitioners case was then again considered by the University Council during its 69 th meeting held on 21 June 2000.
After much deliberation, the University Council, by a vote of 99 for, 12 against, and 6 abstentions, resolved to reaffirm its
earlier decision of 10 April 2000 denying the award of cum laude honors to petitioner.
Upon the denial of the appeal, petitioners parents, on petitioners behalf and for themselves, submitted a Notice of
Appeal dated 27 June 2000 to the Board of Regents through President Nemenzo and, subsequently, an Appeal
Memorandum and Supplemental Memorandum dated 24 and 30 August 2000, respectively. The appeal was taken up during
the 1144thmeeting of the Board of Regents held on 31 August 2000. After a thorough discussion on the proper interpretation
and application of Article 410 of the UP Code, the Board of Regents, by a vote of 9 against 2, elected to deny the appeal.
Petitioners parents thereafter filed a Motion for Reconsideration, but the same was also denied.
Assailing the decision of the UP Board of Regents as erroneous, petitioner, on 21 March 2001, brought a petition
for certiorari and mandamus before the RTC, which resolved the case in her favor under Order of 05 September 2002.
According to the said Order, the UP Board of Regents gravely abused its discretion in the improper application of its
academic discretion in interpreting Article 410 of the UP Code. The lower court, hence, required the respondent UP Board of
Regents to re-compute petitioners grades by including her grades in German 10 and 11 and to confer upon petitioner cum
laude honors. The respondent filed a Motion for Reconsideration on 07 October 2002, which was subsequently denied by
the lower court. Upon said denial, the respondent appealed the RTCs Order to the Court of Appeals by filing a Notice of
Appeal dated 14 February 2003.
The petitioner filed a Motion to Dismiss the appeal on 24 April 2003, advancing that the Court of Appeals had no
jurisdiction to take cognizance of the appeal, inasmuch as it raised only questions of law. Said argument was reiterated in
petitioners Memorandum, together with the position that the lower court was correct to find that respondent had gravely
abused its discretion in arbitrarily excluding petitioners grades in German 10 and 11 from the computation of her GWA.
The respondent, for its part, contended that the lower court failed to take into consideration the interpretation of the
pertinent provision of the UP Code arrived at by the University Council during its deliberations. It instead, substituted its own
interpretation in violation of the academic freedom of UP as an institution of higher learning.
Noting the identity of the arguments raised by petitioner in both her Motion to Dismiss and Memorandum, the Court of
Appeals, in a resolution, deemed the case submitted for decision. In deciding the appeal, the appellate court initially
determined whether only questions of law are involved in the case. Eventually, the appellate court declared that an analysis
of the facts of the case is indispensable. According to the Court of Appeals:

To resolve these issues, an incursion or investigation of the facts attending the case of the petitioner-appellee is
indispensable. The Court must sift through the contrasting evidence submitted to determine the specific situation of
appellees academic standing, and the chronology of appellees scholastic progress, her grades and scholastic average, as
well as what particular rules were used or misused by the Respondent Board, and by the lower court, in coming up with its
respective decisions. The Court is called upon to make a calibration and resolution of all these elements, and to determine
the existence and relevancy [sic] of specific surrounding circumstances, its relation to each other and to the whole and the
probabilities of the situation.

This is not a simple matter of determining what the [sic] law is applicable on a given or specific set of facts. Indeed, the facts
itself [sic] must be determined and reviewed, before a legal adjudication could be made.

To be sure, questions of law are attendant in the instant appeal, but to resolve the same, a review and determination of [the]
facts, based on evidence and matters on record, is necessary before such issues could be resolved. The Court, therefore,
as a legal reviewer of issues of fact and law, is competent, and legally empowered, to take cognizance of and resolve the
instant appeal.[8]

Having resolved the issue of jurisdiction, the Court of Appeals went on to determine whether the lower court erred in
not finding that academic freedom should apply in the instant case. According to the appellate court, the RTCs Order
involved an intrusion on the discretion and authority of the UP Board of Regents in the matter of whether or not to confer
academic honors upon the petitioner. The Court of Appeals stated that the lower court violated UPs constitutionally
protected right to academic freedom when it substituted its own interpretation of the internal rules and regulations of the
University for that of the UP Board of Regents, and applied the same to the petitioners case. The appellate court further
made a determination that respondent is not guilty of grave abuse of discretion in deciding not to confer academic honors
upon the petitioner, inasmuch as respondent proceeded fairly in reaching its decision, giving the petitioner and her parents
ample opportunity to present their case. Accordingly, on 28 November 2003, the Court of Appeals issued a decision granting
the UP Board of Regents appeal:

The Order, dated September 5, 2002 of the Regional Trial Court of Quezon City, Branch 87 is hereby SET ASIDE. In lieu
thereof, judgment is hereby rendered DISMISSING the petition for certiorari and mandamus filed by petitioner-appellee
Nadine Rosario M. Morales.[9]

Claiming that the Court of Appeals committed grave and reversible errors in issuing its 28 November 2003 decision,
petitioner filed before this Court a Petition for Review on Certiorari, raising the following assignment of errors:[10]
I

The Court of Appeals had no jurisdiction over respondents appeal of the RTCs Order (the CA Appeal) because the essential
facts here were never in dispute, this case involves purely questions of law.

II
The RTC correctly required respondent to confer cum laude honors on petitioner because respondent gravely abused its
discretion in refusing to comply with Article 410 of the UP Code (which respondent itself issued) and in arbitrarily excluding
petitioners grades in German 10 and 11 from the computation of her GWA. The Court of Appeals therefore gravely erred in
reversing the RTCs Order.

According to the petitioner, it was erroneous for the appellate court to assume jurisdiction over respondents appeal of
the RTC Order as said appeal involved purely questions of law, and that respondents should have challenged said Order
directly with the Supreme Court through a Petition for Review on Certiorari and not before the Court of Appeals through a
Notice of Appeal. The petitioner further argues that it was error for the Court of Appeals to rule that respondents refusal to
interpret and apply Article 410 of the UP Code in order to confer cum laudehonors to petitioner did not constitute grave
abuse of discretion. Lastly, petitioner advances that the appellate court mischaracterized this case as one involving
academic freedom, thus condoning respondents alleged injustice to petitioner.

Ruling of the Court

First, we shall endeavor to dispose of the issue of jurisdiction.

Petitioner submits that this case involves only the interpretation of a rule (i.e., Article 410 of the UP Code) and the
determination of whether the subjects German 10 and 11 can be considered as qualified electives under the assailed rule in
relation to petitioners situation. According to petitioner, the facts of the case have never been in dispute. Both petitioner and
respondent have presented the same pieces of evidence, albeit of course, their respective interpretations and positions on
the legal effects of their common evidence are different. Petitioner also points out that the total absence of questions of fact
is precisely the reason why the RTC did not require, and the parties themselves did not demand, an evidentiary hearing for
the case before the lower court.

We agree with petitioner that respondents appeal to the appellate court raises only questions of law. There is a
question of law when the issue does not call for an examination of the probative value of evidence presented, the truth or
falsehood of facts being admitted and the doubt concerns the correct application of law and jurisprudence on the
matter.[11] On the other hand, there is a question of fact when the doubt or controversy arises as to the truth or falsity of the
alleged facts. When there is no dispute as to fact, the question of whether or not the conclusion drawn therefrom is correct is
a question of law.[12]
Contrary to what the Court of Appeals postulates, the resolution of the issues presented by respondent UP Board of
Regents does not necessitate an incursion of the facts attending the case. Whether the lower court erred in finding that
respondent gravely abused its discretion in interpreting and applying the provisions of the UP Code on the case of petitioner
is a question of law, the determination of which calls for the analysis of the proper application of law and jurisprudence.
While the Court of Appeals is correct in saying that in order to resolve the issues raised by the parties, the court must
consider all the facts and evidence presented in the case, it does not, however, rule on the truth or falsity of such facts,
based on the evidence and matters on record. It must be stressed that the facts were admitted by both parties. Therefore,
any conclusion based on these facts would not involve a calibration of the probative value of such pieces of evidence, but
would be limited to an inquiry of whether the law was properly applied given the state of facts of the case.
It is thus evident that the controversy centered on, and the doubt arose with respect to, the correct interpretation and
application of Rule 410 of the UP Code in relation to petitioners situation and not as to any fact or evidence advanced by the
parties. And since the appeal brought by respondent UP Board of Regents before the Court of Appeals raises only questions
of law, the proper mode of appeal is by way of a petition for certiorari under Rule 45.[13] Therefore, the appellate court did not
have jurisdiction to take cognizance of and to resolve respondents appeal.
The above conclusion, however, will not deter this Court from proceeding with the judicial determination of the basic
legal issues herein. We must bear in mind that procedural rules are intended to ensure the proper administration of law and
justice. The rules of procedure ought not to be applied in a very rigid, technical sense, for they are adopted to help secure,
not override, substantial justice.[14] A deviation from its rigid enforcement may thus be allowed to attain its prime objective,
for after all, the dispensation of justice is the core reason for the existence of courts. [15] Noting that this case involves the
exercise of a fundamental right - academic freedom no less - of the State University, and that the petitioner has, in any
event, raised before us the legal question of whether the RTC correctly required respondent to confer cum laude honors on
the petitioner because of respondents alleged grave abuse of discretion, for pragmatic reasons and consideration of justice
and equity, the Court must go on to resolve the second assignment of error.

As enunciated by this Court in the case of University of San Carlos v. Court of Appeals,[16] the discretion of schools of
learning to formulate rules and guidelines in the granting of honors for purposes of graduation forms part of academic
freedom. And such discretion may not be disturbed much less controlled by the courts, unless there is grave abuse of
discretion in its exercise. Therefore, absent any showing of grave abuse of discretion, the courts may not disturb the
Universitys decision not to confer honors to petitioner.
 Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction, or in other words, where the power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to
perform the duty enjoined or to act at all in contemplation of law. [17]

A judicious review of the records will show that the respondent proceeded fairly in evaluating petitioners situation,
giving her and her parents ample opportunity to present their side on different occasions and before different fora, i.e., the
Department of European Languages, the College of Arts and Letters, the University Council and finally, the Board of
Regents. Contrary to the trial courts findings, there is no showing that respondent acted arbitrarily or capriciously in
interpreting Article 410 of the UP Code and consequently not conferring academic honors on petitioner.
For clarity, Article 410 of the UP Code is again quoted hereunder:

ART. 410. Students who complete their courses with the following absolute minimum weighted average grade shall be
graduated with honors:

Summa Cum Laude .. 1.20

Magna Cum Laude 1.45

Cum Laude .... 1.75

Provided, that all the grades in all subjects prescribed in the curriculum, as well as subjects that qualify as electives, shall be
included in the computation of the weighted average grade; provided further that in cases where the electives taken are
more than those required in the program, the following procedure will be used in selecting the electives to be included in the
computation of the weighted average grade:

(I) For students who did not shift programs, consider the required number of electives in chronological order.

(II) For students who shifted from one program to another, the electives to be considered shall be selected
according to the following order of priority:

(1) Electives taken in the program where the student is graduating will be selected in chronological order.

(2) Electives taken in the previous program and acceptable as electives in the second program will be
selected in chronological order.

(3) Prescribed courses taken in the previous program, but qualify as electives in the second program will
be selected in chronological order.[18]

As can be seen from the minutes of the meetings of the University Council and the Board of Regents, petitioners case
was subjected to an exhaustive and judicious deliberation. During the 68 th Meeting of the University Council, where
petitioners case was first submitted to the body for discussion on a no-name basis, a member raised the issue of whether
German 10 and 11 could be counted as electives in the program of petitioner, to which the University Registrar replied that
the students program is European Languages, major in French, minor in Spanish under which German 10 and 11 are not
required in the checklist; neither can these subjects be considered electives as said electives should be non-language
electives. Since the student chose Spanish as her minor language, German 10 and 11 are excess subjects. [19] Another
member argued that if the student had satisfied all the requirements in the curriculum, then German 10 and 11 should be
included in the computation of the GWA since the student had good grades. [20] To this, Dean Josefina Agravante of the
College of Arts and Letters replied that while they empathize with the student and her parents, this same rule had been
applied in the past, and if the student would be allowed to graduate with honors, she (Dean Agravante) will be forced to
recommend the same for the other students who were denied the same request in the past. [21] At the 1142nd Meeting of the
Board of Regents, both positions of the petitioner and the University Council on the proper interpretation of Article 410 of the
UP Code were presented before the Board and an agreement was reached among the members to return petitioners appeal
to the University Council for further consideration, with full disclosure of who is involved in the matter.
Upon the appeals return to the University Council, the issue of whether the University rule allows for excess electives
more than those required by the program was raised. Prof. Cao [22]answered this query by pointing to Section 2 of Article
410[23] which provides for the manner of selecting which electives shall be considered. Since the rule provides for an order of
priority, it is clear that not all electives taken by a student may be included in the computation of the GWA. Dean Yu, [24] on
the other hand, pointed out that the more basic issue is whether German 10 and 11 can be considered as electives under
petitioners curriculum within the contemplation of the assailed rule. Dean Yu further stated that the determination of which
subjects will qualify as electives is best left to the Department of European Languages and the students curriculum. To this
issue, Prof. Bautista, Chair of the Department of European Languages, replied that this matter had been taken up again at
the Department level and they stood by their decision that in the Plan A of the BA European Languages program, there is a
major and a minor language. There are no free electives and for the minor language, subjects that fall under the same
language were the ones counted. In the case of Ms. Morales, she initially thought that she would minor in German so she
took German 10 and 11 during her first semester in UP Diliman, but eventually, she changed her minor to Spanish. He said
that the Advising Committee of the Department allows a student to change his major or minor, but courses which had been
previously taken before the shifting of major or minor are not counted as part of the courses with credit in the curriculum. As
to the interpretation of the rules, Dean Tabunda[25] said that it is a matter of course that the traditional interpretation of the
Department be taken. And the Department made it clear that a free elective is different from a course taken as a minor. With
respect to the question of what interpretation should prevail, she (Dean Tabunda) believed that the traditional interpretation
must be taken into account.[26]
In trying to get into the heart of the issue, the Board of Regents, at its 1144 th Meeting, went into an examination of Rule
410.[27] Regent Hernandez[28] considers the rule as referring to the computation of the GWA, not only with respect to the
subjects prescribed in the curriculum, but also takes into account all subjects that qualify as electives. Thus, those electives
may not only be part of the Plan A curriculum but are part of the program. On the contrary, Vice President Diokno [29] said
that the understanding of the Department and the University Council is that subjects that qualify as electives must be in the
curriculum. Otherwise, the student can take anything they want. Vice President Diokno stated further that in cases where
there are free electives, the electives are applied chronologically. Moreover, the Plan A curriculum, incidentally, does not
allow free electives, therefore, there was nothing to put in chronologically. This has always been the practice of the
Department which is being supported by the College Assembly and the University Council. [30]
Further discussing the matter, Regent Hernandez requested for an interpretation of Article 410[31] on the issue of
whether or not the German subjects which are supposedly electives should be included in the computation of the petitioners
GWA. Atty. Azura,[32] University General Counsel, explained that the words subjects that qualify as electives must be read in
conjunction with the immediately preceding qualifying phrase in the curriculum. Where the first conjunctive part contains the
descriptive phrase/modifier in the curriculum, so too must the second conjunctive part be subject to the same modifier. Thus,
subjects that qualify as electives is modified by the words in the curriculum. In other words, in the computation of the GWA,
the grades of subjects prescribed in the curriculum and the grades of subjects that qualify as electives in the curriculum are
included. Seen in this light, the view that German 10 and 11 must be considered in the computation of petitioners GWA,
being electives in the European Languages undergraduate program, is incorrect. The word program in Article 410 [33] must be
interpreted in the context of a particular curriculum. A student fulfills the requirements of a program by following a certai n
curriculum. Atty. Azura said that the University Council, in excluding German 10 and 11 from the computation of petitioners
GWA, effectively ruled that these subjects do not qualify as electives in the course curriculum for a degree in BA European
Languages, major in French, minor in Spanish. [34]
In deliberating on the Motion for Reconsideration submitted by petitioner, the Board of Regents, during its
1147th Meeting, reviewed the interpretation of petitioners curriculum. University General Counsel, Prof. Marvic Leonen,
explained that the interpretation of the required subjects or allowable electives in the curriculum must be taken in the context
of the entire courses. A student in Plan A is required to take:

Minor Language 12/Elective.b

Minor Language 13/Elective.b
Minor Language 20/Elective.b
Minor Language 21/Elective.b
Minor Language 30/Elective.b
Minor Language 40/Elective.b
Minor Language 31/Elective.b

The numbered sequencing of the courses therefore clearly implies that if German 10 and 11 would be equivalent to Minor
Language 10 and 11, then German 12, 13, 20, 21, 30, 40, 31 should have been taken by the student. The pattern would be
different if the student took up Spanish. This is so because there are no Spanish 12, 13, and 21 offered. This also explains
why footnote b that uniformly qualifies the quoted entries states:

(b) Courses in English, Comparative Literature, Creative Writing, Filipino, Panitikan ng Pilipinas, Speech, Theater Arts, Art
Studies, Social Science, Philosophy, Music, Fine Arts, Education, Mass Communication or Tourism. As minor discipline,
these non-language electives must be taken only in one department provided that the prerequisites has/have been satisfied.
For those taking Spanish as minor, the following are recommended: Spanish 3, 20, 30, 31, 40, 60, 80, 100 and 105. [35]

The first two sentences in the footnote could not refer to minor language. The last sentence, on the other hand, could not
refer to the entry elective. There is nothing in the footnote that could be read to imply that the electives could be language
courses other than those enumerated in the footnotes first sentence. Petitioner argues that German 10 and 11 should be
appreciated as the minor languages 10 and 11 required. And that the Spanish subjects should be taken as the elective
subjects in the curriculum. The difficulty with this position is that the description of elective is very clear and leaves no further
room for interpretation. For purposes of graduation and for honors, petitioner has to abide by the requirements of the
curriculum. Petitioners decision to shift her minor language caused the exclusion of her grades in German 10 and 11 in the
computation of her GWA.
It must be stressed that it is the policy of the University to thoroughly evaluate all candidates for graduation with honors
to ensure that students do not earn extra credits in order to increase their GWA. A perusal of petitioners official transcript of
records[36] will show that the subjects German 10 and 11 are in excess of the requirements of the program (i.e., 141 units, 27
of which are electives in the minor field of study), to illustrate:

Subjects Number of Units Earned

General Education Subjects
(i.e. common subjects for BA
programs and required subjects 69
under the BA European Languages
program)
French (major) 45
Spanish (minor) 27
German 6
Total Units 147

The fact that the UP Board of Regents chose to accept the interpretation of Article 410 of the UP Code as construed
by the University Council based on its time-honored interpretation and application of said rule, after the latter has deliberated
on the matter twice, vis--vis petitioners interpretation, is not tantamount to a whimsical exercise of judgment on the part of
the respondent. It is not grave abuse of discretion on the part of the UP Board of Regents to uphold the decisions of the
Department of European Languages, the College of Arts and Letters and the University Council, when said decisions were
reached after a thorough discussion of the merits of petitioners case in relation to the established interpretation and analysis
of its very own internal rules.

In the case of University of the Philippines v. Ayson,[37] UP has been likened to an administrative agency whose
findings must be accorded respect within its areas of competence. Well-settled is the principle that by reason of the special
knowledge and expertise of administrative agencies over matters falling under their jurisdiction, they are in a better position
to pass judgment thereon; thus, their findings of fact in that regard are generally accorded great respect, if not finality, by the
courts.[38] Accordingly, the conclusion arrived at by the UP Board of Regents that petitioners grades in German 10 and 11
should not be included in computing her GWA must be respected and given finality, the interpretation and application of
Article 410 of the UP Code being within the competence and expertise of the Department of European Languages, the
College of Arts and Letters and the University Council to make.
Therefore, it was error on the part of the lower court to rule that respondents discretion has been gravely abused, thus
justifying the substitution of judicial discretion in the interpretation of Article 410 of the UP Code. The decision of the lower
court in substituting its own interpretation of the Universitys internal rules for that of the respondent UP Board of Regents, is
an intrusion into the constitutionally protected right of the University to academic freedom.
Sec. 5 (2), Article XIV of the Constitution provides that [a]cademic freedom shall be enjoyed in all institutions of higher
learning. Academic freedom accords an institution of higher learning the right to decide for itself its aims and objectives and
how best to attain them. This constitutional provision is not to be construed in a niggardly manner or in a grudging
fashion.[39]Certainly, the wide sphere of autonomy given to universities in the exercise of academic freedom extends to the
right to confer academic honors. Thus, exercise of academic freedom grants the University the exclusive discretion to
determine to whom among its graduates it shall confer academic recognition, based on its established standards. And the
courts may not interfere with such exercise of discretion unless there is a clear showing that the University has arbitrarily
and capriciously exercised its judgment. Unlike the UP Board of Regents that has the competence and expertise in granting
honors to graduating students of the University, courts do not have the competence to constitute themselves as an Honors
Committee and substitute their judgment for that of the University officials.
Therefore, for failure to establish that the respondent committed grave abuse of discretion in not conferring cum
laude honors to petitioner, the lower court erred in mandating that petitioners grades be re-computed including her marks in
German 10 and 11 and to confer upon petitioner academic honors.

WHEREFORE, the petition is DENIED. The Decision of the UP Board of Regents on 31 August 2000 denying the
appeal of the petitioner is AFFIRMED. The Order of the Regional Trial Court dated 05 September 2002 is REVERSED and
SET ASIDE. No costs.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-40779 November 28, 1975

EPICHARIS T. GARCIA, petitioner,

vs.
THE FACULTY ADMISSION COMMITTEE, LOYOLA SCHOOL OF THEOLOGY, herein represented by FR. ANTONIO B.
LAMBINO, respondent.

Epicharis T Garcia in her own behalf.

Bengzon, Villegas, Zarraga, Narciso and Cudala for respondents.

FERNANDO, J.:

The specific issue posed by this mandamus proceeding to compel the Faculty Admission Committee of the Loyola School of
Theology, represented by Father Antonio B. Lambino, to allow petitioner Epicharis T. Garcia, to continue studying therein is
whether she is deemed possessed of such a right that has to be respected. That is denied not only on general principle, but
also in view of the character of the particular educational institution involved. It is a seminary. It would appear therefore that
at most she can lay claim to a privilege, no duty being cast on respondent school. Moreover, as a reinforcement to such an
obvious conclusion, there is the autonomy recognized by the Constitution in this explicit language: "All institutions of higher
learning shall enjoy academic freedom."1 The petition must therefore fail.

Petitioner alleged: "3. That in summer, 1975, Respondent admitted Petitioner for studies leading to an M.A. in Theology; 4.
That on May 30, 1975, when Petitioner wanted to enroll for the same course for the first semester, 1975-76, Respondent
told her about the letter he had written her, informing her of the faculty's decision to bar her from re-admission in their
school; 5. That the reasons stated in said letter, dated May 19, 1975 ... do not constitute valid legal ground for expulsion, for
they neither present any violation of any of the school's regulation, nor are they indicative of gross misconduct; 6. That from
June 25, 1975, Petitioner spent much time and effort in said school for the purpose of arriving at a compromise that would
not duly inconvenience the professors and still allow her to enjoy the benefits of the kind of instruction that the school has to
offer, but all in vain; she was in fact told by Fr. Pedro Sevilla, the school's Director, that the compromises she was offering
were unacceptable, their decision was final, and that it were better for her to seek for admission at the UST Graduate
School; 7 Petitioner then subsequently made inquiries in said school, as to the possibilities for her pursuing her graduate
studies for an for M.A. in Theology, and she was informed that she could enroll at the UST Ecclesiastical Faculties, but that
she would have to fulfill their requirements for Baccalaureate in Philosophy in order to have her degree later in Theology —
which would entail about four to five years more of studies — whereas in the Loyola School of Studies to which she is being
unlawfully refused readmission, it would entail only about two years more; 8. That Petitioner, considering that time was of
the essence in her case, and not wanting to be deprived of an opportunity for gaining knowledge necessary for her life's
work, enrolled as a special student at said UST Ecclesiastical Faculties, even if she would not thereby be credited with any
academic units for the subject she would take; 9. That Petitioner could have recourse neither to the President of her school,
Fr. Jose Cruz, he being with the First Couple's entourage now in Red China, nor with the Secretary of Education, since this
is his busiest time of the year, and June 11, 1975 is the last day for registration; ... " 2 She prayed for a writ of mandamus for
the purpose of allowing her to enroll in the current semester. She made it more specific in a pleading she called Amended
Petition so that she would be allowed cross-enrollment even beyond the June 11, 1975 deadline for registration and that
whatever units may be accredited to her in the UST Ecclesiastical Faculties be likewise recognized by respondent. Her
petition included the letter of respondent Father Lambino which started on a happy note that she was given the grade of B+
and B in two theology subjects, but ended in a manner far from satisfactory for her, as shown by this portion thereof: "Now,
you will have to forgive me for going into a matter which is not too pleasant. The faculty had a meeting after the summer
session and several members are strongly opposed to having you back with us at Loyola School of Theology. In the spirit of
honesty may I report this to you as their reason: They felt that your frequent questions and difficulties were not always
pertinent and had the effect of slowing down the progress of the class; they felt you could have tried to give the presentation
a chance and exerted more effort to understand the point made before immediately thinking of difficulties and problems. The
way things are, I would say that the advisability of your completing a program (with all the course work and thesis writing)
with us is very questionable. That you have the requisite intellectual ability is not to be doubted. But it would seem to be in
your best interests to work with a faculty that is more compatible with your orientation. I regret to have to make this report,
but I am only thinking of your welfare."3

This Court, in a resolution of June 23, 1975, required comment on the part of respondent Faculty Admission Committee,
Loyola School of Theology.4 As submitted on behalf of Father Lambino, it set forth the following: "Respondent is the
Chairman of the Faculty Admission Committee of the Loyola School of Theology, which is a religious seminary situated in
Loyola Heights, Quezon City; In collaboration with the Ateneo de Manila University, the Loyola School of Theology allows
some lay students to attend its classes and/or take courses in said Loyola School of Theology but the degree, if any, to be
obtained from such courses is granted by the Ateneo de Manila University and not by the Loyola School of Theology; For
the reason above given, lay students admitted to the Loyola School of Theology to take up courses for credit therein have to
be officially admitted by the Assistant Dean of the Graduate School of the Ateneo de Manila University in order for them to
be considered as admitted to a degree program; Petitioner in the summer of 1975 was admitted by respondent to take some
courses for credit but said admission was not an admission to a degree program because only the Assistant Dean of the
Ateneo de Manila Graduate School can make such admission; That in the case of petitioner, no acceptance by the Assistant
Dean of the Ateneo de Manila Graduate School was given, so that she was not accepted to a degree program but was
merely allowed to take some courses for credit during the summer of 1975; Furthermore, petitioner was not charged a single
centavo by the Loyola School of Theology and/or the Ateneo de Manila University in connection with the courses she took in
the summer of 1975, as she was allowed to take it free of charge; That respondent Fr. Antonio B. Lambino, S.J., and/or the
Loyola School of Theology thru its Faculty Admission Committee, necessarily has discretion as to whether to admit and/or to
continue admitting in the said school any particular student, considering not only academic or intellectual standards but also
other considerations such as personality traits and character orientation in relation with other students as well as considering
the nature of Loyola School of Theology as a seminary. The Petition for Mandamus therefore does not lie, as there is no
duty, much less a clear duty, on the part of respondent to admit the petitioner therein in the current year to take up further
courses in the Loyola School of Theology."5 It was likewise alleged in the aforesaid comment that as set forth in the letter of
May 19, 1975, the decision not to allow petitioner to take up further courses in said seminary "is not arbitrary, as it is based
on reasonable grounds, ... ."6 Then reference was made to the availability of non-judicial remedies which petitioner could
have pursued.7 The prayer was for the dismissal of the petition for lack of merit. Petitioner sought permission to reply and it
was granted. Thereafter, she had a detailed recital of why under the circumstances she is entitled to relief from the courts. In
a resolution of August 8, 1975, this Court considered the comment of respondent as answer and required the parties to file
their respective memoranda. That they did, and the petition was deemed submitted for decision. As was made clear at the
outset, we do not see merit in it. It must therefore be dismissed.

1. In respondent's memorandum, it was made clear why a petition for mandamus is not the proper remedy. Thus: "Petitioner
cannot compel by mandamus, the respondent to admit her into further studies in the Loyola School of Theology. For
respondent has no clear duty to so admit the petitioner. The Loyola School of Theology is a seminary for the priesthood.
Petitioner is admittedly and obviously not studying for the priesthood, she being a lay person and a woman. And even
assuming ex gratia argumenti that she is qualified to study for the priesthood, there is still no duty on the part of respondent
to admit her to said studies, since the school has clearly the discretion to turn down even qualified applicants due to
limitations of space, facilities, professors and optimum classroom size and component considerations." 8 No authorities were
cited, respondent apparently being of the view that the law has not reached the stage where the matter of admission to an
institution of higher learning rests on the sole and uncontrolled discretion of the applicant. There are standards that must be
met. There are policies to be pursued. Discretion appears to be of the essence. In terms of Hohfeld's terminology, what a
student in the position of petitioner possesses is a privilege rather than a right. She cannot therefore satisfy the prime and
indispensable requisite of a mandamus proceeding. Such being the case, there is no duty imposed on the Loyola School of
Theology. In a rather comprehensive memorandum of petitioner, who unfortunately did not have counsel, an attempt was
made to dispute the contention of respondent. There was a labored effort to sustain her stand, but it was not sufficiently
persuasive. It is understandable why. It was the skill of a lay person rather than a practitioner that was evident. While she
pressed her points with vigor, she was unable to demonstrate the existence of the clear legal right that must exist to justify
the grant of this writ.

2. Nor is this all. There is, as previously noted, the recognition in the Constitution of institutions of higher learning enjoying
academic freedom. It is more often identified with the right of a faculty member to pursue his studies in his particular
specialty and thereafter to make known or publish the result of his endeavors without fear that retribution would be visited on
him in the event that his conclusions are found distasteful or objectionable to the powers that be, whether in the political,
economic, or academic establishments. For the sociologist, Robert McIver it is "a right claimed by the accredited educator,
as teacher and as investigator, to interpret his findings and to communicate his conclusions without being subjected to any
interference, molestation, or penalization because these conclusions are unacceptable to some constituted authority within
or beyond the institution." 9 As for the educator and philosopher Sidney Hook, this is his version: "What is academic freedom? Briefly put,
it is the freedom of professionally qualified persons to inquire, discover, publish and teach the truth as they see it in the field of their
competence. It is subject to no control or authority except the control or authority of the rational methods by which truths or conclusions are
sought and established in these disciplines." 10

3. That is only one aspect though. Such a view does not comprehend fully the scope of academic freedom recognized by
the Constitution. For it is to be noted that the reference is to the "institutions of higher learning" as the recipients of this boon.
It would follow then that the school or college itself is possessed of such a right. It decides for itself its aims and objectives
and how best to attain them. It is free from outside coercion or interference save possibly when the overriding public welfare
calls for some restraint. It has a wide sphere of autonomy certainly extending to the choice of students. This constitutional
provision is not to be construed in a niggardly manner or in a gradging fashion. That would be to frustrate its purpose, nullify
its intent. Former President Vicente G. Sinco of the University of the Philippines, in his Philippine Political Law, is similarly of
the view that it "definitely grants the right of academic freedom to the university as an institution as distinguished from the
academic freedom of a university professor." 11 He cited the following from Dr. Marcel Bouchard, Rector of the University of
Dijon, France, President of the conference of rectors and vice-chancellors of European universities: " "It is a well-established
fact, and yet one which sometimes tends to be obscured in discussions of the problems of freedom, that the collective liberty
of an organization is by no means the same thing as the freedom of the individual members within it; in fact, the two kinds of
freedom are not even necessarily connected. In considering the problems of academic freedom one must distinguish,
therefore, between the autonomy of the university, as a corporate body, and the freedom of the individual university
teacher." " 12 Also: "To clarify further the distinction between the freedom of the university and that of the individual scholar,
he says: "The personal aspect of freedom consists in the right of each university teacher — recognized and effectively
guaranteed by society — to seek and express the truth as he personally sees it, both in his academic work and in his
capacity as a private citizen. Thus the status of the individual university teacher is at least as important, in considering
academic freedom, as the status of the institutions to which they belong and through which they disseminate their
learning."' 13 He likewise quoted from the President of the Queen's University in Belfast, Sir Eric Ashby: "'The internal
conditions for academic freedom in a university are that the academic staff should have de facto control of the following
functions: (i) the admission and examination of students; (ii) the curricula for courses of study; (iii) the appointment and
tenure of office of academic staff; and (iv) the allocation of income among the different categories of expenditure. It would be
a poor prospect for academic freedom if universities had to rely on the literal interpretation of their constitutions in order to
acquire for their academic members control of these four functions, for in one constitution or another most of these functions
are laid on the shoulders of the law governing body .'" 14 Justice Frankfurter, with his extensive background in legal education
as a former Professor of the Harvard Law School, referred to what he called the business of a university and the four
essential freedoms in the following language: "It is the business of a university to provide that atmosphere which is most
conducive to speculation, experiment and creation. It is an atmosphere in which there prevail "the four essential freedoms"
of a university — to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught,
and who may be admitted to study." 15 Thus is reinforced the conclusion reached by us that mandamus does not lie in this
case.

4. It is not an easy matter then to disregard the views of persons knowledgeable in the field, to whom cannot be imputed
lack of awareness of the need to respect freedom of thought on the part of students and scholars. Moreover, it could amount
to minimizing the full respect that must be accorded the academic freedom expressly granted by the Constitution "to
institutions of higher learning." It is equally difficult to yield conformity to the approach taken that colleges and universities
should be looked upon as public utilities devoid of any discretion as to whom to admit or reject. Education, especially higher
education, belongs to a different, and certainly higher, category.

5. It only remains to be added that the futility that marked the persistence of petitioner to continue her studies in the Loyola
School of Theology is the result solely of a legal appraisal of the situation before us. The decision is not to be construed as
in any way reflecting on the scholastic standing of petitioner. There was on the part of respondent due acknowledgment of
her intelligence. Nonetheless, for reasons explained in the letter of Father Lambino, it was deemed best, considering the
interest of the school as well as of the other students and her own welfare, that she continue her graduate work elsewhere.
There was nothing arbitrary in such appraisal of the circumstances deemed relevant. It could be that on more mature
reflection, even petitioner would realize that her transfer to some other institution would redound to the benefit of all
concerned. At any rate, as indicated earlier, only the legal aspect of the controversy was touched upon in this decision.

WHEREFORE, the petition is dismissed for lack of merit.

Makalintal, C.J., Barredo, Antonio, Esguerra, Muñoz Palma, Aquino, Concepcion, Jr. and Martin, JJ., concur.

Castro, J., took no part.

Separate Opinions
TEEHANKEE, J., concurring:

I concur with the dismissal of the petition for manifest lack of merit.

On the threadbare claim that during the summer of 1975 she had been admitted by respondent Fr. Antonio B. Lambino, S.J.,
chairman of the Faculty Admission Committee of the Loyola School of Theology (a religious seminary for the priesthood) to
attend therein free of charge two summer courses for credits, petitioner has filed the present petition for mandamus against
respondents to order her admission in said school as a student for an M.A. in Theology and for the payment to her of
exemplary and moral damages and "an amount equivalent more or less to attorney's fees which petitioner would have paid
a competent lawyer, had she employed one." (According to petitioner, her enrollment in the Loyola seminary would allegedly
entail "only about two years more" where she would need "about four to five years more of studies" at the UST Graduate
School for Ecclesiastical Faculties where she has now enrolled as a special student without credit for any academic units for
the subjects taken by her.)

The original respondent, Fr. Lambino, filed his comment on the petition, while the two other respondents, the Director of
Private Schools and the Director, UST Graduate School, did not even deign (and were not required) to file their comments,
notwithstanding the Court's resolution of June 23, 1975 requiring their comment on the amended petition, since by the very
terms of said petition, petitioner had not even bothered to make any application or representations with them before hailing
them before this Court as parties-respondents on her fancied right to enrollment and cross-enrollment at the two institutions
(Loyola and UST ).

The petition must be dismissed, since petitioner has admittedly failed to exhaust her administrative remedies. The facts of
record amply show that petitioner is obviously disqualified, and is not studying, for the priesthood, she being a laywoman
and not eligible for admission to respondent seminary. Mandamus to order her admission in respondent seminary cannot lie
in the absence of a clear right on her part and a clear duty on respondent's part to so admit her.

Petitioner in her petition admits that she has failed to avail of and exhaust the administrative remedies open to her but seeks
to justify her failure by alleging.

That Petitioner could have recourse neither to the President of her school, Fr. Jose Cruz, he being with
the First Couple's entourage now in Red China, nor with the Secretary of Education, since this is his
busiest time of the year, and June 11, 1975 is the last day for registration; ...

This execuse is of course patently inept, since neither the university president's temporary absence nor the Secretary of
Education's having "his busiest time of the year" justifies petitioner's by passing these officials whose final administrative
decision should first be given. Such exhaustion of administrative remedies is a pre-condition for court action and would get
all the facts in so as to enable the courts in a petition for review simply to decide on the basis of the facts whether the
questioned act of petitioner's non-admission constitutes an arbitrary action that would warrant judicial intervention.

Withal, the facts of record amply show that far from being arbitrary , petitioner's non-admission was for perfectly valid
considerations, as follows:

— The Loyola School of Theology, is a seminary for the priesthood; and petitioner is admittedly and
obviously disqualified and is not studying, for the priesthood, she being a laywoman and therefore not eligible for admission;

— Petitioner was admitted free to take some summer courses this year for credits, but according to respondent Fr. Lambino
this was not an admission to a degree program since the official admission by the Assistant Dean of the Graduate School of
the Ateneo de Manila University (which is the institution, not the Loyola School of Theology, that grants the decree) required
for the purpose has neither been sought by petitioner nor granted by the said Assistant Dean. Respondent Fr. Lambino thus
asserts that he is the wrong party to be sued;

— Petitioner claims on the contrary that she was actually admitted for a degree program, and arguing that "The factual
issue, however, of whether or not petitioner was actually admitted for a degree program needs to be resolved
first"1 vehemently insists that this Court resolve the factual issue in her favor on the basis of her bare counter-assertions and
the respondent school's very letter rejecting her admission; (Petitioner who is not a lawyer of course does not appreciate that
this Court is neither a trier nor reviewer of facts and that precisely one of the reasons for exhaustion of administrative
remedies is that all the facts may be placed before the final administrative authorities, whose decision may be reviewed by
the courts only upon a clear showing of fraud, collusion, arbitrariness, illegality, imposition or mistake.2); and
— Aside from the fact that her non-admission to respondent seminary for the priesthood by virtue of her being disqualified
as a laywoman is a matter of school policy and regulation that obviously can in no way be said to be arbitrary (since females
all over the world are up to now not admitted to the priesthood), the faculty's "strong opposition" to having her back in the
school after summer because "they felt that (her) frequent questions and difficulties were not always pertinent and had the
effect of slowing down the progress of the class" and respondent Fr. Lambino's courteous but candid appraisal "that the
advisability of (her) completing a program (with all the course work and thesis writing) with us is very questionable" are
matters of technical and academic judgment that the courts will not ordinarily interfere with.

Petitioner's action for mandamus clearly does not lie, since no cleat right for her admission to a degree program for an M.A.
in Theology nor a clear duty on the part of the Loyola School of Theology (or of the Ateneo Graduate School which is not
even a party) to so admit her have been shown.

Only after exhaustion of administrative remedies and when there is marked arbitrariness, will the courts interfere with the
academic judgment of the school faculty and the proper authorities as to the competence and fitness of an applicant for
enrollment or to continue taking up graduate studies in a graduate school. The courts simply do not have the competence
nor inclination to constitute themselves as Admission Committees of the universities and institutions of higher learning and
to substitute their judgment for that of the regularly constituted Admission Committees of such educational institutions. Were
the courts to do so, they would conceivable be swamped with petitions for admission from the thousands refused admission
every year, and next the thousands who flunked and were dropped would also be petitioning the courts for a judicial review
of their grades!

—————

Before closing this concurrence, I must make of record my concurrence with and adherence to the fundamental principles of
freedom and liberty eloquently expressed by Mr. Justice Makasiar in his dissent. His expression of deep concern for the
preservation and enhancement of the dignity and worth of the human personality citing Justice Cardoso's injunction that
man's freedom must be given sanctuary "against the assaults of opportunism, the expediency of the passing hour, the
erosion of small encroachments and the scorn and derision of those who have no patience with general principles", and
Laski's thesis that "the happiness of the individual, not the well-being of the State, was the criterion by which its behavior
was to be judged, his interests, not its power, set the limits to the authority it was entitled to exercise" reaffirm forcefully the
basic tenet that distinguishes a democratic from a totalitarian state, viz, that the State exists for the individual rather than the
other way around.

I part ways with him of course in his factual premises and assumptions which to my mind are not supported by the record
nor the facts at bar. Foremost among these are the premise that petitioner had been admitted to the theology course and
cannot be refused further attendance therein, when as shown above, the question of whether petitioner was in fact admitted
to a degree program is a controverted one with petitioner herself making no such averment in her petition and precisely
asking that this Court resolve this "factual issue" and the disinclination to give due credence to the reason given by Fr.
Lambino for the faculty's "strong opposition" to petitioner's admission viz, that her "frequent questions and difficulties were
not always pertinent and had the effect of slowing down the progress of the class" and her failure "to give the (faculty's)
presentation a chance and exert(ed) more effort to understand the point made before immediately thinking of problems and
difficulties",3when not even the petitioner questions in her petition the veracity of such faculty opposition and the quoted
factual reasons therefor but only whether the same "constitutes valid legal ground for expulsion".

I do not share his view that private educational institutions may operate only by delegation of the State and "are no different
in this respect from the commercial public utilities whose right to exists and to operate depends upon State authority" 4 and
the assumption that respondent has prescribed "unreasonable rules or regulations" when such rules have not even been
submitted to the Court nor is there any claim that such rules have even been questioned in or disapproved by the Director of
Public Schools (assuming that said official has jurisdiction over a religious seminary such as the Loyola School of Theology).

Petitioner according to her petition has obtained enrollment at the UST Graduate School for Ecclesiastical Faculties where
according to her own petition she could pursue her graduate studies for an M.A. in Theology (after fulfilling their
requirements for Baccalaureate in Philosophy and assuming she has the required recognized undergraduate units, as to
which there is some question). Under the circumstances, it seems fair to state that petitioner may well heed the voices and
visions (that call her to a degree in Theology) without rejection other than that of respondent school and certainly without
being destined to be another Joan of Arc.

Makalintal, C.J., concurs.

MAKASIAR, J., dissenting:

With his usual scholarship and characteristic style, Mr. Justice Fernando has woven a persuasive majority opinion that
commands respect.

The 1973 Constitution provides that: "All institutions of higher learning shall enjoy academic freedom" (Sec. 8[2], Art. XV).
This is broader than Section 6 of Article XIV of the 1935 Constitution, which provides that: "Universities established by the
State shall enjoy academic freedom." Under the aforecited clause of the 1973 Constitution, all colleges and universities of
higher learning, whether established by the State or not, are guaranteed academic freedom.

It should be stressed that the academic freedom thus guaranteed is not limited to the members of the faculty nor to the
administrative authorities of the educational institution. It should also be deemed granted in favor of the student body;
because all three — the administrative authorities of the college or university, its faculty and its student population —
constitute the educational institution, without any one of which the educational institution can neither exist nor operate. The
educational institution is permitted by the State to exist and operate, not for the benefit of its administrative authorities or
faculty members, but for the benefit of its studentry.

As Chief Justice Warren, who penned the opinion in Sweezy versus New Hampshire, emphasized: "No field of education is
so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social
sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion
and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and
understanding; otherwise our civilization will stagnate and die" (354 US 234; 250; 1 L. ed. 2nd 1311, 1325, emphasis
supplied).

An individual has a natural and inherent right to learn and develop his faculties. It is for this reason that the 1973 Constitution
directs the State to aid and support the parents in the rearing of the youth (Sec. 4, Art. II, 1973 Constitution); to promote their
physical, intellectual and social well-being (Sec. 5, Art II); to establish, maintain and ensure adequate social services in the
field of education (Sec. 7, Art. II; to establish and maintain a complete adequate and integrated system of education relevant
to the goals of national development (Sec. 8[1] Art, XV); to recognize and protect the academic freedom of all institutions of
higher learning (Sec. 8[2], Art. XV); to maintain a system of free public elementary education and where finances permit, a
system of free public education up to the secondary level (Sec 8[5], Art. XV); to provide citizenship and vocational training to
adult citizens and out-of-school youths and to create and maintain scholarships for poor and deserving students (Sec. 8[6],
Art. XV) and to promote scientific research and invention, to patronize arts and letters, scholarships, grants-in-aid or other
forms of incentives for specially gifted children (Sec. 9[1], [2] and [3], Art. XV).

On the other hand, no private person or entity has the inherent right to establish and operate a school, college or university.

Hence, there is need of re-examining and recasting the limited definition of academic freedom conceived by Professor
Arthur Lovejoy (Encyclopedia of Social Sciences, p. 384) to the effect that it is "the freedom of the teacher or research
worker in higher institutions of learning to investigate and discuss the problems of his science and to express his
conclusions, whether through publication or in the instruction of the teacher, without interference from political and
ecclesiastical authorities or administrative opinions of institutions in which he is employed, unless his methods are found by
a qualified body of his own profession to be clearly incompetent or contrary to professional ethics", which is echoed by
MacIver (MacIver, Academic Freedom in Our Time [6], 1955) and by Hook (Hook, Academic Freedom and Academic
Anarchy). The scope of academic freedom should not be restricted to the narrow formulation of Mr. Justice Frankfurter as
"an atmosphere in which there prevail "the four essential freedoms of a university — to determine for its own academic
grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study"' (His concurring
opinion in Sweezy vs. New Hampshire, 353, US 234, 263 [1957]), which neutralizes his belief that "it is the business of a
university to provide that atmosphere which is most conducive to speculation, experiment and creation", to which he
however exhibits loyalty as he continued to state:

Progress in the natural sciences is not remotely confined to findings made in the laboratory. Insights into
the mysteries of nature are born of hypothesis and speculation. The more so is this true in the pursuit of
understanding in the groping endeavors of what are called the social sciences, the concern of which is
man and society. The problems that are the respective preoccupations of anthropology, economics, law,
psychology, sociology and related areas of scholarship are merely departmentalized dealing, by way of
manageable division of analysis, with interpenetrating aspects of holistic perplexities. For society's good
— if understanding be an essential need of society — inquiries into these problems, speculation about
them, stimulation in others of reaction upon them, must be left unfettered as
possible ... .

... One need only refer to the address of T. H. Huxley at the opening of Johns Hopkins University, ... :
 "In a university knowledge is its own end, not merely a means to an end. A university
ceases to be true to its own nature if it becomes the tool of Church or State or any
sectional interest. A university is characterized by the spirit of free inquiry, its ideal
being the ideal of Socrates — "to follow the argument where it leads." This implies the
right to examine, question, modify or reject traditional ideas and beliefs. Dogma and
hypothesis are incompatible, and the concept of an immutable doctrine is repugnant
to the spirit of a university. The concern of its scholars is not merely to add and revise
facts in relation to an accepted framework, but to be ever examining and modifying
the framework itself.

"Freedom to reason and freedom for disputation on the basis of observation and
experiment are the necessary conditions for the advancement of scientific knowledge.
A sense of freedom is also necessary for creative work in the arts which, equally with
scientific research, is the concern of the university" (Sweezy vs. New Hampshire 354
US 234; 262-263, emphasis supplied).

The cardinal article of faith of our democratic civilization is the preservation and enhancement of the dignity and worth of the
human personality. It was Mr. Justice Frankfurter himself who emphasized that man's "inviolate character" should be
"protected to the largest possible extent in his thoughts and in his beliefs as the citadel of his person" (American
Communications Association, etc. vs. Douds, 339 US 382, 421, cited in Phil. Blooming Mills Employees Assn. vs. Phil.
Blooming Mills Co., Inc., et al., L-31195, June 5, 1973, 51 SCRA 189,200), so that the individual can fully develop himself
and achieve complete fulfillment. His freedom to seek his own happiness would mean nothing if the same were not given
sanctuary "against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments and
the scorn and derision of those who have no patience with general principles" (Justice Cardoso, The Nature of Judicial
Process, 90-93, cited in Phil. Blooming Mills Employees Assn. vs. Phil. Blooming Mills Co., Inc., supra, 201).

WE likewise reiterated in the Philippine Blooming Mills case, supra, that "the purpose of the Bill of Rights is to withdraw
certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and
to establish them as legal principles to be applied by the Courts. One's rights to life, liberty and property, to free speech or
free press, freedom of worship and assembly, and to the fundamental rights may not be submitted to a vote; they depend on
the outcome of no elections" (51 SCRA 201), much less on the caprice of bigoted, intolerant and impatient professors and
college administrators. In the stirring language of Laski, "the happiness of the individual not the well-being of the State, was
the criterion by which its behaviour was to be judged, his interests, not its power, set the limits to the authority it was entitled
to exercise" (51 SCRA 201). This individual freedom and right to happiness should be recognized and respected not only by
the State but also by enterprises authorized by the State to operate; for as Laski stressed: "Without freedom of the mind ... a
man has no protection in our social order. He may speak wrongly or foolishly, ... . Yet a denial of his right ... is a denial of his
happiness. Thereby he becomes an instrument of other people's ends, not himself an end" (Laski, Liberty in the Modern
State, 73, cited in Tañada and Fernando, Constitution of the Philippines, 1952 ed., 315).

As Justice Holmes pronounced, "the ultimate good desired is better reached by free trade in ideas — that the best test of
truth is the power of the thought to get itself accepted in the competition of the market; and that truth is the only ground upon
which their wishes safely can be carried out" (Abrams vs. U.S. 250 US 616).

The human mind is by nature an inquiring mind, whether of the very young or of the very old or in-between; for freedom of
speech in the words of John Milton is the "liberty to know, to utter, and to argue freely according to conscience above all
liberties."

What is involved here is not merely academic freedom of the higher institutions of learning as guaranteed by Section 8(2) of
Article SV of the 1973 Constitution. The issue here strikes at the broader freedom of expression of the individual — the very
core of human liberty.

Even if the term "academic freedom" were to be limited to institutions of higher learning — which to the mind of Dr. Vicente
Sinco, an eminent authority in Constitutional Law, is the right of the university as an institution, not the academic freedom of
the university professor (Sinco, Phil. Political Law, 1962 ed., 489) — the term "institutions of higher learning" contained in
the aforecited provision of our New Constitution comprehends not only the faculty and the college administrators but also the
members of the student body. While it is true that the university professor may have the initiative and resourcefulness to
pursue his own research and formulate his conclusions concerning the problem of his own science or subject, the motivation
therefor may be provoked by questions addressed to him by his students. In this respect, the student — specially a graduate
student — must not be restrained from raising questions or from challenging the validity of dogmas whether theological or
not. The true scholar never avoids, but on the contrary welcomes and encourages, such searching questions even if the
same will have the tendency to uncover his own ignorance. It is not the happiness and self-fulfillment of the professor alone
that are guaranteed. The happiness and full development of the curious intellect of the student are protected by the narrow
guarantee of academic freedom and more so by the broader right of free expression, which includes free speech and press,
and academic freedom.

After having been admitted to the theology, course, petitioner cannot be refused further attendance therein on the ground
that "her frequent questions and difficulties were not always pertinent and had the effect of slowing down the progress of the
class ... ." It seems that this excuse is merely an euphemistic way of characterizing her questions which might be
embarrassing to the clergy or to the professor or other sensitive souls, for her questions might impugn the validity of their
tenets, dogmas and beliefs. It is hard to believe that "her frequent questions and difficulties" slowed down the progress of
the class; because respondent Father Lambino himself recognized that the petitioner is endowed with "the requisite
intellectual ability" and accordingly merited grades of B+ and B in two theology subjects.

Respondents obviously fear Laski's prophecy:" The heresies we may suppress today may be the orthodoxies of tomorrow.
New truths begins always in minority of one; it must be someone's perception before it becomes a general perception. The
world gains nothing from a refusal to entertain the possibility that a new idea may be true. Nor can we pick and choose
among our suppressions with any prospect of success. It would, indeed, be hardly beyond the mark to affirm that a list of
opinions condemned in the past as wrong or dangerous would be a list of the commonplaces of our time" (Laski, Liberty in
the Modern State, p. 75, cited in Tañada and Fernando, Constitution of the Philippines, 1952 ed., 316-317).

If she flunked in said subjects or the entire course, she could have been justifiably denied enrollment in the second
semester. But that is not the case here, as aforestated.

The respondents never offered as justification for their refusing petitioner admission to the next semester limitations of space
facilities, professors and optimum classroom size. It is doubtful whether the same could have been a valid reason in refusing
her further admission, after she had complied with all the other requirements.

And the fact that she was admitted free to study theology without intending to be a priest, does not weaken her position. It
should be stressed that education is a sovereign state function. It is a vital duty of the state which can delegate the same to
private educational institutions that are qualified and duly authorized to operate. Private educational institutions therefore are
no different in this respect from the commercial public utilities, whose right to exist and to operate depends upon State
authority. The moment they are allowed to operate, they must abide by the Constitution, laws and implementing rules of the
Government on the matter. While the college or university can prescribe regulations for admission to the various courses of
study offered by it, this prerogative does not include the power to prescribe unreasonable rules or regulations violative of the
constitutional rights of the citizen, such as freedom of expression in general and academic freedom in particular. The
educational institutions perform a more vital function than the ordinary public utilities. The institution of learning feeds and
nurtures the human mind and spirit to insure a robust, healthy and educated citizenry on whom national survival and national
greatness depend. The ordinary public utilities merely serve the material comforts and convenience of the people, who can
certainly go on living without them. But the people cannot wallow in darkness and ignorance without hastening their
extermination from the face of the earth.

To repeat the reminder of Chief Justice Warren: "Scholarship cannot flourish in an atmosphere of suspicion and distrust.
Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and
understanding; otherwise our civilization will stagnate and die " (354 US 234, 250; 1 L ed. 2nd 1311, 1325, emphasis
supplied.).

Justice Fernando himself fittingly concludes: "Intellectual liberty occupies a place inferior to none in the hierarchy of human
values. The mind must be free to think what it wills, whether in the secular or religious sphere, to give expression to its
beliefs by oral discourse or through the media, and thus seek other candid views in occasions or gatherings or in more
permanent aggrupations. Embraced in such concept then are freedom of religion, freedom of speech, of the press,
assembly and petition, and freedom of association" (Fernando on the Philippine Constitution, 1974 ed., p. 565).

The case of herein petitioner is a mild prelude to a re-enactment of the persecution of Joan of Arc. Sectarian schools should
have realized by now that intolerance, bigotry and the inquisition — relics of the Dark Ages — tyrannize the mind and spirit
of man and are antithetical to their very function of nourishing the intellect and spreading enlightenment.

In my view, the petitioner has a clear right, and the respondents have the equally clear duty to allow her to continue studying
theology.
Separate Opinions

TEEHANKEE, J., concurring:

I concur with the dismissal of the petition for manifest lack of merit.

On the threadbare claim that during the summer of 1975 she had been admitted by respondent Fr. Antonio B. Lambino, S.J.,
chairman of the Faculty Admission Committee of the Loyola School of Theology (a religious seminary for the priesthood) to
attend therein free of charge two summer courses for credits, petitioner has filed the present petition for mandamus against
respondents to order her admission in said school as a student for an M.A. in Theology and for the payment to her of
exemplary and moral damages and "an amount equivalent more or less to attorney's fees which petitioner would have paid
a competent lawyer, had she employed one." (According to petitioner, her enrollment in the Loyola seminary would allegedly
entail "only about two years more" where she would need "about four to five years more of studies" at the UST Graduate
School for Ecclesiastical Faculties where she has now enrolled as a special student without credit for any academic units for
the subjects taken by her.)

The original respondent, Fr. Lambino, filed his comment on the petition, while the two other respondents, the Director of
Private Schools and the Director, UST Graduate School, did not even deign (and were not required) to file their comments,
notwithstanding the Court's resolution of June 23, 1975 requiring their comment on the amended petition, since by the very
terms of said petition, petitioner had not even bothered to make any application or representations with them before hailing
them before this Court as parties-respondents on her fancied right to enrollment and cross-enrollment at the two institutions
(Loyola and UST ).

The petition must be dismissed, since petitioner has admittedly failed to exhaust her administrative remedies. The facts of
record amply show that petitioner is obviously disqualified, and is not studying, for the priesthood, she being a laywoman
and not eligible for admission to respondent seminary. Mandamus to order her admission in respondent seminary cannot lie
in the absence of a clear right on her part and a clear duty on respondent's part to so admit her.

Petitioner in her petition admits that she has failed to avail of and exhaust the administrative remedies open to her but seeks
to justify her failure by alleging.

That Petitioner could have recourse neither to the President of her school, Fr. Jose Cruz, he being with
the First Couple's entourage now in Red China, nor with the Secretary of Education, since this is his
busiest time of the year, and June 11, 1975 is the last day for registration; ...

This execuse is of course patently inept, since neither the university president's temporary absence nor the Secretary of
Education's having "his busiest time of the year" justifies petitioner's by passing these officials whose final administrative
decision should first be given. Such exhaustion of administrative remedies is a pre-condition for court action and would get
all the facts in so as to enable the courts in a petition for review simply to decide on the basis of the facts whether the
questioned act of petitioner's non-admission constitutes an arbitrary action that would warrant judicial intervention.

Withal, the facts of record amply show that far from being arbitrary , petitioner's non-admission was for perfectly valid
considerations, as follows:

— The Loyola School of Theology, is a seminary for the priesthood; and petitioner is admittedly and
obviously disqualified and is not studying, for the priesthood, she being a laywoman and therefore not eligible for admission;

— Petitioner was admitted free to take some summer courses this year for credits, but according to respondent Fr. Lambino
this was not an admission to a degree program since the official admission by the Assistant Dean of the Graduate School of
the Ateneo de Manila University (which is the institution, not the Loyola School of Theology, that grants the decree) required
for the purpose has neither been sought by petitioner nor granted by the said Assistant Dean. Respondent Fr. Lambino thus
asserts that he is the wrong party to be sued;

— Petitioner claims on the contrary that she was actually admitted for a degree program, and arguing that "The factual
issue, however, of whether or not petitioner was actually admitted for a degree program needs to be resolved
first"1 vehemently insists that this Court resolve the factual issue in her favor on the basis of her bare counter-assertions and
the respondent school's very letter rejecting her admission; (Petitioner who is not a lawyer of course does not appreciate that
this Court is neither a trier nor reviewer of facts and that precisely one of the reasons for exhaustion of administrative
remedies is that all the facts may be placed before the final administrative authorities, whose decision may be reviewed by
the courts only upon a clear showing of fraud, collusion, arbitrariness, illegality, imposition or mistake. 2); and
— Aside from the fact that her non-admission to respondent seminary for the priesthood by virtue of her being disqualified
as a laywoman is a matter of school policy and regulation that obviously can in no way be said to be arbitrary (since females
all over the world are up to now not admitted to the priesthood), the faculty's "strong opposition" to having her back in the
school after summer because "they felt that (her) frequent questions and difficulties were not always pertinent and had the
effect of slowing down the progress of the class" and respondent Fr. Lambino's courteous but candid appraisal "that the
advisability of (her) completing a program (with all the course work and thesis writing) with us is very questionable" are
matters of technical and academic judgment that the courts will not ordinarily interfere with.

Petitioner's action for mandamus clearly does not lie, since no cleat right for her admission to a degree program for an M.A.
in Theology nor a clear duty on the part of the Loyola School of Theology (or of the Ateneo Graduate School which is not
even a party) to so admit her have been shown.

Only after exhaustion of administrative remedies and when there is marked arbitrariness, will the courts interfere with the
academic judgment of the school faculty and the proper authorities as to the competence and fitness of an applicant for
enrollment or to continue taking up graduate studies in a graduate school. The courts simply do not have the competence
nor inclination to constitute themselves as Admission Committees of the universities and institutions of higher learning and
to substitute their judgment for that of the regularly constituted Admission Committees of such educational institutions. Were
the courts to do so, they would conceivable be swamped with petitions for admission from the thousands refused admission
every year, and next the thousands who flunked and were dropped would also be petitioning the courts for a judicial review
of their grades!

—————

Before closing this concurrence, I must make of record my concurrence with and adherence to the fundamental principles of
freedom and liberty eloquently expressed by Mr. Justice Makasiar in his dissent. His expression of deep concern for the
preservation and enhancement of the dignity and worth of the human personality citing Justice Cardoso's injunction that
man's freedom must be given sanctuary "against the assaults of opportunism, the expediency of the passing hour, the
erosion of small encroachments and the scorn and derision of those who have no patience with general principles", and
Laski's thesis that "the happiness of the individual, not the well-being of the State, was the criterion by which its behavior
was to be judged, his interests, not its power, set the limits to the authority it was entitled to exercise" reaffirm forcefully the
basic tenet that distinguishes a democratic from a totalitarian state, viz, that the State exists for the individual rather than the
other way around.

I part ways with him of course in his factual premises and assumptions which to my mind are not supported by the record
nor the facts at bar. Foremost among these are the premise that petitioner had been admitted to the theology course and
cannot be refused further attendance therein, when as shown above, the question of whether petitioner was in fact admitted
to a degree program is a controverted one with petitioner herself making no such averment in her petition and precisely
asking that this Court resolve this "factual issue" and the disinclination to give due credence to the reason given by Fr.
Lambino for the faculty's "strong opposition" to petitioner's admission viz, that her "frequent questions and difficulties were
not always pertinent and had the effect of slowing down the progress of the class" and her failure "to give the (faculty's)
presentation a chance and exert(ed) more effort to understand the point made before immediately thinking of problems and
difficulties",3when not even the petitioner questions in her petition the veracity of such faculty opposition and the quoted
factual reasons therefor but only whether the same "constitutes valid legal ground for expulsion".

I do not share his view that private educational institutions may operate only by delegation of the State and "are no different
in this respect from the commercial public utilities whose right to exists and to operate depends upon State authority" 4 and
the assumption that respondent has prescribed "unreasonable rules or regulations" when such rules have not even been
submitted to the Court nor is there any claim that such rules have even been questioned in or disapproved by the Director of
Public Schools (assuming that said official has jurisdiction over a religious seminary such as the Loyola School of Theology).

Petitioner according to her petition has obtained enrollment at the UST Graduate School for Ecclesiastical Faculties where
according to her own petition she could pursue her graduate studies for an M.A. in Theology (after fulfilling their
requirements for Baccalaureate in Philosophy and assuming she has the required recognized undergraduate units, as to
which there is some question). Under the circumstances, it seems fair to state that petitioner may well heed the voices and
visions (that call her to a degree in Theology) without rejection other than that of respondent school and certainly without
being destined to be another Joan of Arc.

Makalintal, C.J., concurs.

MAKASIAR, J., dissenting:

With his usual scholarship and characteristic style, Mr. Justice Fernando has woven a persuasive majority opinion that
commands respect.

The 1973 Constitution provides that: "All institutions of higher learning shall enjoy academic freedom" (Sec. 8[2], Art. XV).
This is broader than Section 6 of Article XIV of the 1935 Constitution, which provides that: "Universities established by the
State shall enjoy academic freedom." Under the aforecited clause of the 1973 Constitution, all colleges and universities of
higher learning, whether established by the State or not, are guaranteed academic freedom.

It should be stressed that the academic freedom thus guaranteed is not limited to the members of the faculty nor to the
administrative authorities of the educational institution. It should also be deemed granted in favor of the student body;
because all three — the administrative authorities of the college or university, its faculty and its student population —
constitute the educational institution, without any one of which the educational institution can neither exist nor operate. The
educational institution is permitted by the State to exist and operate, not for the benefit of its administrative authorities or
faculty members, but for the benefit of its studentry.

As Chief Justice Warren, who penned the opinion in Sweezy versus New Hampshire, emphasized: "No field of education is
so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social
sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion
and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and
understanding; otherwise our civilization will stagnate and die" (354 US 234; 250; 1 L. ed. 2nd 1311, 1325, emphasis
supplied).

An individual has a natural and inherent right to learn and develop his faculties. It is for this reason that the 1973 Constitution
directs the State to aid and support the parents in the rearing of the youth (Sec. 4, Art. II, 1973 Constitution); to promote their
physical, intellectual and social well-being (Sec. 5, Art II); to establish, maintain and ensure adequate social services in the
field of education (Sec. 7, Art. II; to establish and maintain a complete adequate and integrated system of education relevant
to the goals of national development (Sec. 8[1] Art, XV); to recognize and protect the academic freedom of all institutions of
higher learning (Sec. 8[2], Art. XV); to maintain a system of free public elementary education and where finances permit, a
system of free public education up to the secondary level (Sec 8[5], Art. XV); to provide citizenship and vocational training to
adult citizens and out-of-school youths and to create and maintain scholarships for poor and deserving students (Sec. 8[6],
Art. XV) and to promote scientific research and invention, to patronize arts and letters, scholarships, grants-in-aid or other
forms of incentives for specially gifted children (Sec. 9[1], [2] and [3], Art. XV).

On the other hand, no private person or entity has the inherent right to establish and operate a school, college or university.

Hence, there is need of re-examining and recasting the limited definition of academic freedom conceived by Professor
Arthur Lovejoy (Encyclopedia of Social Sciences, p. 384) to the effect that it is "the freedom of the teacher or research
worker in higher institutions of learning to investigate and discuss the problems of his science and to express his
conclusions, whether through publication or in the instruction of the teacher, without interference from political and
ecclesiastical authorities or administrative opinions of institutions in which he is employed, unless his methods are found by
a qualified body of his own profession to be clearly incompetent or contrary to professional ethics", which is echoed by
MacIver (MacIver, Academic Freedom in Our Time [6], 1955) and by Hook (Hook, Academic Freedom and Academic
Anarchy). The scope of academic freedom should not be restricted to the narrow formulation of Mr. Justice Frankfurter as
"an atmosphere in which there prevail "the four essential freedoms of a university — to determine for its own academic
grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study"' (His concurring
opinion in Sweezy vs. New Hampshire, 353, US 234, 263 [1957]), which neutralizes his belief that "it is the business of a
university to provide that atmosphere which is most conducive to speculation, experiment and creation", to which he
however exhibits loyalty as he continued to state:

Progress in the natural sciences is not remotely confined to findings made in the laboratory. Insights into
the mysteries of nature are born of hypothesis and speculation. The more so is this true in the pursuit of
understanding in the groping endeavors of what are called the social sciences, the concern of which is
man and society. The problems that are the respective preoccupations of anthropology, economics, law,
psychology, sociology and related areas of scholarship are merely departmentalized dealing, by way of
manageable division of analysis, with interpenetrating aspects of holistic perplexities. For society's good
— if understanding be an essential need of society — inquiries into these problems, speculation about
them, stimulation in others of reaction upon them, must be left unfettered as
possible ... .

... One need only refer to the address of T. H. Huxley at the opening of Johns Hopkins University, ... :
 "In a university knowledge is its own end, not merely a means to an end. A university
ceases to be true to its own nature if it becomes the tool of Church or State or any
sectional interest. A university is characterized by the spirit of free inquiry, its ideal
being the ideal of Socrates — "to follow the argument where it leads." This implies the
right to examine, question, modify or reject traditional ideas and beliefs. Dogma and
hypothesis are incompatible, and the concept of an immutable doctrine is repugnant
to the spirit of a university. The concern of its scholars is not merely to add and revise
facts in relation to an accepted framework, but to be ever examining and modifying
the framework itself.

"Freedom to reason and freedom for disputation on the basis of observation and
experiment are the necessary conditions for the advancement of scientific knowledge.
A sense of freedom is also necessary for creative work in the arts which, equally with
scientific research, is the concern of the university" (Sweezy vs. New Hampshire 354
US 234; 262-263, emphasis supplied).

The cardinal article of faith of our democratic civilization is the preservation and enhancement of the dignity and worth of the
human personality. It was Mr. Justice Frankfurter himself who emphasized that man's "inviolate character" should be
"protected to the largest possible extent in his thoughts and in his beliefs as the citadel of his person" (American
Communications Association, etc. vs. Douds, 339 US 382, 421, cited in Phil. Blooming Mills Employees Assn. vs. Phil.
Blooming Mills Co., Inc., et al., L-31195, June 5, 1973, 51 SCRA 189,200), so that the individual can fully develop himself
and achieve complete fulfillment. His freedom to seek his own happiness would mean nothing if the same were not given
sanctuary "against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments and
the scorn and derision of those who have no patience with general principles" (Justice Cardoso, The Nature of Judicial
Process, 90-93, cited in Phil. Blooming Mills Employees Assn. vs. Phil. Blooming Mills Co., Inc., supra, 201).

WE likewise reiterated in the Philippine Blooming Mills case, supra, that "the purpose of the Bill of Rights is to withdraw
certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and
to establish them as legal principles to be applied by the Courts. One's rights to life, liberty and property, to free speech or
free press, freedom of worship and assembly, and to the fundamental rights may not be submitted to a vote; they depend on
the outcome of no elections" (51 SCRA 201), much less on the caprice of bigoted, intolerant and impatient professors and
college administrators. In the stirring language of Laski, "the happiness of the individual not the well-being of the State, was
the criterion by which its behaviour was to be judged, his interests, not its power, set the limits to the authority it was entitled
to exercise" (51 SCRA 201). This individual freedom and right to happiness should be recognized and respected not only by
the State but also by enterprises authorized by the State to operate; for as Laski stressed: "Without freedom of the mind ... a
man has no protection in our social order. He may speak wrongly or foolishly, ... . Yet a denial of his right ... is a denial of his
happiness. Thereby he becomes an instrument of other people's ends, not himself an end" (Laski, Liberty in the Modern
State, 73, cited in Tañada and Fernando, Constitution of the Philippines, 1952 ed., 315).

As Justice Holmes pronounced, "the ultimate good desired is better reached by free trade in ideas — that the best test of
truth is the power of the thought to get itself accepted in the competition of the market; and that truth is the only ground upon
which their wishes safely can be carried out" (Abrams vs. U.S. 250 US 616).

The human mind is by nature an inquiring mind, whether of the very young or of the very old or in-between; for freedom of
speech in the words of John Milton is the "liberty to know, to utter, and to argue freely according to conscience above all
liberties."

What is involved here is not merely academic freedom of the higher institutions of learning as guaranteed by Section 8(2) of
Article SV of the 1973 Constitution. The issue here strikes at the broader freedom of expression of the individual — the very
core of human liberty.

Even if the term "academic freedom" were to be limited to institutions of higher learning — which to the mind of Dr. Vicente
Sinco, an eminent authority in Constitutional Law, is the right of the university as an institution, not the academic freedom of
the university professor (Sinco, Phil. Political Law, 1962 ed., 489) — the term "institutions of higher learning" contained in
the aforecited provision of our New Constitution comprehends not only the faculty and the college administrators but also the
members of the student body. While it is true that the university professor may have the initiative and resourcefulness to
pursue his own research and formulate his conclusions concerning the problem of his own science or subject, the motivation
therefor may be provoked by questions addressed to him by his students. In this respect, the student — specially a graduate
student — must not be restrained from raising questions or from challenging the validity of dogmas whether theological or
not. The true scholar never avoids, but on the contrary welcomes and encourages, such searching questions even if the
same will have the tendency to uncover his own ignorance. It is not the happiness and self-fulfillment of the professor alone
that are guaranteed. The happiness and full development of the curious intellect of the student are protected by the narrow
guarantee of academic freedom and more so by the broader right of free expression, which includes free speech and press,
and academic freedom.

After having been admitted to the theology, course, petitioner cannot be refused further attendance therein on the ground
that "her frequent questions and difficulties were not always pertinent and had the effect of slowing down the progress of the
class ... ." It seems that this excuse is merely an euphemistic way of characterizing her questions which might be
embarrassing to the clergy or to the professor or other sensitive souls, for her questions might impugn the validity of their
tenets, dogmas and beliefs. It is hard to believe that "her frequent questions and difficulties" slowed down the progress of
the class; because respondent Father Lambino himself recognized that the petitioner is endowed with "the requisite
intellectual ability" and accordingly merited grades of B+ and B in two theology subjects.

Respondents obviously fear Laski's prophecy:" The heresies we may suppress today may be the orthodoxies of tomorrow.
New truths begins always in minority of one; it must be someone's perception before it becomes a general perception. The
world gains nothing from a refusal to entertain the possibility that a new idea may be true. Nor can we pick and choose
among our suppressions with any prospect of success. It would, indeed, be hardly beyond the mark to affirm that a list of
opinions condemned in the past as wrong or dangerous would be a list of the commonplaces of our time" (Laski, Liberty in
the Modern State, p. 75, cited in Tañada and Fernando, Constitution of the Philippines, 1952 ed., 316-317).

If she flunked in said subjects or the entire course, she could have been justifiably denied enrollment in the second
semester. But that is not the case here, as aforestated.

The respondents never offered as justification for their refusing petitioner admission to the next semester limitations of space
facilities, professors and optimum classroom size. It is doubtful whether the same could have been a valid reason in refusing
her further admission, after she had complied with all the other requirements.

And the fact that she was admitted free to study theology without intending to be a priest, does not weaken her position. It
should be stressed that education is a sovereign state function. It is a vital duty of the state which can delegate the same to
private educational institutions that are qualified and duly authorized to operate. Private educational institutions therefore are
no different in this respect from the commercial public utilities, whose right to exist and to operate depends upon State
authority. The moment they are allowed to operate, they must abide by the Constitution, laws and implementing rules of the
Government on the matter. While the college or university can prescribe regulations for admission to the various courses of
study offered by it, this prerogative does not include the power to prescribe unreasonable rules or regulations violative of the
constitutional rights of the citizen, such as freedom of expression in general and academic freedom in particular. The
educational institutions perform a more vital function than the ordinary public utilities. The institution of learning feeds and
nurtures the human mind and spirit to insure a robust, healthy and educated citizenry on whom national survival and national
greatness depend. The ordinary public utilities merely serve the material comforts and convenience of the people, who can
certainly go on living without them. But the people cannot wallow in darkness and ignorance without hastening their
extermination from the face of the earth.

To repeat the reminder of Chief Justice Warren: "Scholarship cannot flourish in an atmosphere of suspicion and distrust.
Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and
understanding; otherwise our civilization will stagnate and die " (354 US 234, 250; 1 L ed. 2nd 1311, 1325, emphasis
supplied.).

Justice Fernando himself fittingly concludes: "Intellectual liberty occupies a place inferior to none in the hierarchy of human
values. The mind must be free to think what it wills, whether in the secular or religious sphere, to give expression to its
beliefs by oral discourse or through the media, and thus seek other candid views in occasions or gatherings or in more
permanent aggrupations. Embraced in such concept then are freedom of religion, freedom of speech, of the press,
assembly and petition, and freedom of association" (Fernando on the Philippine Constitution, 1974 ed., p. 565).

The case of herein petitioner is a mild prelude to a re-enactment of the persecution of Joan of Arc. Sectarian schools should
have realized by now that intolerance, bigotry and the inquisition — relics of the Dark Ages — tyrannize the mind and spirit
of man and are antithetical to their very function of nourishing the intellect and spreading enlightenment.

In my view, the petitioner has a clear right, and the respondents have the equally clear duty to allow her to continue studying
theology.

Footnotes

1 Article XV, Section 8, par. 2 of the Constitution.

2 Petition, pars. 3-9.

3 Letter of Father Antonio B. Lambino, Annex A to Petition.

4 Reference was made to respondents as the amended petition included The Director, Bureau of Private
Schools and The Director, UST Graduate School as respondents. However, they did not deem it to
submit comments, and this Court, in view of the nature of the controversy which solely involved the
original respondent, did not press them to do so. The case is therefore decided as if they were not even
made parties.

5 Comment, pars. 1-7.

6 Ibid, par. 8.

7 Ibid. pars. 9-10.

8 Respondent's Memorandum, 1.

9 McIver, Academic Freedom in Our Time, 6 (1955).

10 Hook, Academic Freedom and Academic Anarchy (1965).

11 Sinco, Philippine Political Law, 489 (1962).

12 Ibid, 489-490.

13 Ibid, 490.

14 Ibid, 490-491.

15 Justice Frankfurter, concurring in Sweezy v. New Hampshire, 354 US 234, 236 (1957).

Teehankee, J., concurring:

1 Petitioner's memorandum, page 2.

2 See Lacuesta vs. Herrera, 62 SCRA 115.

3 At page 6.

4 At page 7.
THIRD DIVISION

DE LA SALLE UNIVERSITY, INC., G.R. No. 127980

EMMANUEL SALES, RONALD
HOLMES, JUDE DELA TORRE,
AMPARO RIO, CARMELITA Present:
QUEBENGCO, AGNES YUHICO
and JAMES YAP, YNARES-SANTIAGO, J.,
Petitioners, Chairperson,
QUISUMBING,*
CHICO-NAZARIO,
- versus - VELASCO, JR.,** and
REYES, JJ.

THE COURT OF APPEALS, HON.

WILFREDO D. REYES, in his capacity
as Presiding Judge of Branch 36,
Regional Trial Court of Manila, THE
COMMISSION ON HIGHER
EDUCATION, THE DEPARTMENT
OF EDUCATION CULTURE AND
SPORTS, ALVIN AGUILAR, JAMES
PAUL BUNGUBUNG, RICHARD
REVERENTE and ROBERTO Promulgated:
VALDES, JR.,
Respondents. December 19, 2007
x--------------------------------------------------x

DECISION

REYES, R.T., J.:

NAGTATAGIS sa kasong ito ang karapatang mag-aral ng apat na estudyante na nasangkot sa away ng

dalawang fraternity at ang karapatang akademiko ng isang pamantasan.

PRIVATE respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of

Tau Gamma Phi Fraternity who were expelled by the De La Salle University (DLSU) and College of Saint Benilde
(CSB)[1] Joint Discipline Board because of their involvement in an offensive action causing injuries to petitioner James Yap

and three other student members of Domino Lux Fraternity. This is the backdrop of the controversy before Us pitting private

respondents right to education vis-a-visthe Universitys right to academic freedom.

ASSAILED in this Petition for Certiorari, Prohibition and Mandamus under Rule 65 of the Rules of Court are the following: (1)
Resolution of the Court of Appeals (CA) dated July 30, 1996 dismissing DLSUs petition for certiorari against respondent

Judge and private respondents Aguilar, Bungubung, Reverente, and Valdes, Jr.; [2] (2) Resolution of the CA dated October
15, 1996 denying the motion for reconsideration; [3] (3) Order dated January 7, 1997 of the Regional Trial Court (RTC),

Branch 36 Manila granting private respondent Aguilars motion to reiterate writ of preliminary injunction; [4] and (4) Resolution

No. 181-96 dated May 14, 1996 of the Commission on Higher Education (CHED) exonerating private respondent Aguilar

and lowering the penalties for the other private respondents from expulsion to exclusion. [5]
 Factual Antecedents

Gleaned from the May 3, 1995 Decision of the DLSU-CSB Joint Discipline Board, two violent incidents on March

29, 1995 involving private respondents occurred:

x x x From the testimonies of the complaining witnesses, it appears that one week prior
to March 29, 1995, Mr. James Yap was eating his dinner alone in Manangs Restaurant near La Salle,
when he overheard two men bad-mouthing and apparently angry at Domino Lux. He ignored the
comments of the two. When he arrived at his boarding house, he mentioned the remarks to his two other
brods while watching television. These two brods had earlier finished eating their dinner at Manangs.
Then, the three, together with four other persons went back to Manangs and confronted the two who
were still in the restaurant. By admission of respondent Bungubung in his testimony, one of the two was a
member of the Tau Gamma Phi Fraternity. There was no rumble or physical violence then.

After this incident, a meeting was conducted between the two heads of the fraternity through
the intercession of the Student Council. The Tau Gamma Phi Fraternity was asking for an
apology. Kailangan ng apology in the words of respondent Aguilar. But no apology was made.

Then, 5 members of the Tau Gamma Phi Fraternity went to the tambayan of the Domino Lux
Fraternity in the campus. Among them were respondents Bungubung, Reverente and Papio.They were
looking for a person whose description matched James Yap. According to them, this person
supposedly nambastos ng brod. As they could not find Mr. Yap, one of them remarked Paano ba
iyan. Pasensiya na lang.

Came March 29, 1995 and the following events.

Ten minutes before his next class at 6:00 p.m., Mr. James Yap went out of the campus using
the Engineering Gate to buy candies across Taft Avenue. As he was about to re-cross Taft Avenue, he
heard heavy footsteps at his back. Eight to ten guys were running towards him. He panicked. He did not
know what to do. Then, respondent Bungubung punched him in the head with something heavy in his
hands parang knuckles. Respondents Reverente and Lee were behind Yap, punching him. Respondents
Bungubung and Valdes who were in front of him, were also punching him. As he was lying on the street,
respondent Aguilar kicked him. People shouted; guards arrived; and the group of attackers left.

Mr. Yap could not recognize the other members of the group who attacked him. With respect to
respondent Papio, Mr. Yap said hindi ko nakita ang mukha niya, hindi ko nakita sumuntok siya. What Mr.
Yap saw was a long haired guy also running with the group.

Two guards escorted Mr. Yap inside the campus. At this point, Mr. Dennis Pascual was at the
Engineering Gate. Mr. Pascual accompanied Yap to the university clinic; reported the incident to the
Discipline Office; and informed his fraternity brods at their tambayan. According to Mr. Pascual, their
head of the Domino Lux Fraternity said: Walang gagalaw. Uwian na lang.

Mr. Ericson Cano, who was supposed to hitch a ride with Dennis Pascual, saw him under the
clock in Miguel Building. However, they did not proceed directly for home. With a certain Michael Perez,
they went towards the direction of Dagonoy Street because Mr. Pascual was supposed to pick up a book
for his friend from another friend who lives somewhere in the area.

As they were along Dagonoy Street, and before they could pass the Kolehiyo ng Malate
Restaurant, Mr. Cano first saw several guys inside the restaurant. He said not to mind them and just
keep on walking. However, the group got out of the restaurant, among them respondents Reverente, Lee
and Valdes. Mr. Cano told Mr. Lee: Ayaw namin ng gulo. But, respondent Lee hit Mr. Cano without
provocation. Respondent Reverente kicked Mr. Pascual and respondent Lee also hit Mr. Pascual. Mr.
Cano and Mr. Perez managed to run from the mauling and they were chased by respondent Lee and two
others.

Mr. Pascual was left behind. After respondent Reverente first kicked him, Mr. Pascual was
ganged-upon by the rest. He was able to run, but the group was able to catch up with him. His shirt was
torn and he was hit at the back of his head with a lead pipe. Respondent Lee who was chasing Cano and
Perez, then returned to Mr. Pascual.
 Mr. Pascual identified respondents Reverente and Lee, as among those who hit him. Although
Mr. Pascual did not see respondent Valdes hit him, he identified respondent Valdez (sic) as also one of
the members of the group.

In fact, Mr. Cano saw respondent Valdes near Mr. Pascual. He was almost near the corner of
Leon Guinto and Estrada; while respondent Pascual who managed to run was stopped at the end of
Dagonoy along Leon Guinto. Respondent Valdes shouted: Mga putang-ina niyo. Respondent Reverente
hit Mr. Pascual for the last time. Apparently being satisfied with their handiwork, the group left. The
victims, Cano, Perez and Pascual proceeded to a friends house and waited for almost two hours, or at
around 8:00 in the evening before they returned to the campus to have their wounds treated. Apparently,
there were three cars roaming the vicinity.[6]

The mauling incidents were a result of a fraternity war. The victims, namely: petitioner James Yap and Dennis
Pascual, Ericson Cano, and Michael Perez, are members of the Domino Lux Fraternity, while the alleged assailants, private

respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of Tau
Gamma Phi Fraternity, a rival fraternity.

The next day, March 30, 1995, petitioner Yap lodged a complaint[7] with the Discipline Board of DLSU charging

private respondents with direct assault. Similar complaints[8] were also filed by Dennis Pascual and Ericson Cano against

Alvin Lee and private respondents Valdes and Reverente. Thus, cases entitled De La Salle University and College of St.

Benilde v. Alvin Aguilar (AB-BSM/9152105), James Paul Bungubung (AB-PSM/9234403), Robert R. Valdes, Jr. (BS-BS-

APM/9235086), Alvin Lee (EDD/9462325), Richard Reverente (AB-MGT/9153837) and Malvin A. Papio (AB-

MGT/9251227) were docketed as Discipline Case No. 9495-3-25121.

The Director of the DLSU Discipline Office sent separate notices to private respondents Aguilar, Bungubung and
Valdes, Jr. and Reverente informing them of the complaints and requiring them to answer. Private respondents filed their

respective answers.[9]

As it appeared that students from DLSU and CSB[10] were involved in the mauling incidents, a joint DLSU-

CSB Discipline Board[11] was formed to investigate the incidents. Thus, petitioner Board Chairman Emmanuel Sales sent

notices of hearing[12] to private respondents on April 12, 1995. Said notices uniformly stated as follows:

Please be informed that a joint and expanded Discipline Board had been constituted to hear
and deliberate the charge against you for violation of CHED Order No. 4 arising from the written
complaints of James Yap, Dennis C. Pascual, and Ericson Y. Cano.

You are directed to appear at the hearing of the Board scheduled on April 19, 1995 at 9:00
a.m. at the Bro. Connon Hall for you and your witnesses to give testimony and present evidence in your
behalf. You may be assisted by a lawyer when you give your testimony or those of your witnesses.

On or before April 18, 1995, you are further directed to provide the Board, through the
Discipline Office, with a list of your witnesses as well as the sworn statement of their proposed testimony.

Your failure to appear at the scheduled hearing or your failure to submit the list of witnesses
and the sworn statement of their proposed testimony will be considered a waiver on your part to present
evidence and as an admission of the principal act complained of.
 For your strict compliance.[13]

During the proceedings before the Board on April 19 and 28, 1995, private respondents interposed the common

defense of alibi, summarized by the DLSU-CSB Joint Discipline Board as follows:

First, in the case of respondent Bungubung, March 29, 1995 was one of the few instances
when he was picked-up by a driver, a certain Romeo S. Carillo. Most of the time, respondent Bungubung
goes home alone sans driver. But on this particular date, respondent Bungubung said that his dad asked
his permission to use the car and thus, his dad instructed this driver Carillo to pick-up his son. Mr. Carillo
is not a family driver, but works from 8:00 a.m. to 5:00 p.m. for the Philippine Ports Authority where the
elder Bungubung is also employed.

Thus, attempting to corroborate the alibi of respondent Bungubung, Mr. Carillo said that he
arrived at La Salle at 4:56 p.m.; picked-up respondent at 5:02 p.m.; took the Roxas Blvd. route towards
respondents house in BF Paraaque (on a Wednesday in Baclaran); and arrived at the house at 6:15
p.m. Respondent Bungubung was dropped-off in his house, and taking the same route back, Mr. Carillo
arrived at the South Harbor at 6:55 p.m. the Philippine Ports Authority is located at the South Harbor.[14]

xxxx

Secondly, respondent Valdes said that he was with his friends at McDonalds Taft just
before 6:00 p.m. of March 29, 1995. He said that he left McDonald at 5:50 p.m. together to get some
medicine at the university clinic for his throat irritation. He said that he was at the clinic at 5:52 p.m. and
went back to McDonald, all within a span of 3 or even 4 minutes.

Two witnesses, a certain Sharon Sia and the girlfriend of respondent Valdes, a certain Jorgette
Aquino, attempted to corroborate Valdez alibi.[15]

xxxx

Third, respondent Reverente told that (sic) the Board that he was at his home at 5:00
p.m. of March 29, 1995. He said that he was given the responsibility to be the paymaster of the
construction workers who were doing some works in the apartment of his parents. Although he had
classes in the evening, the workers according to him would wait for him sometimes up to 9:00 p.m. when
he arrives from his classes. The workers get paid everyday.

Respondent Reverente submitted an affidavit, unsigned by the workers listed there, supposedly
attesting to the fact that he paid the workers at the date and time in question. [16]

xxxx

Fourth, respondent Aguilar solemnly sw[ore] that [he] left DLSU at 5:00
p.m. for Camp Crame for a meeting with some of the officers that we were preparing. [17]

On May 3, 1995, the DLSU-CSB Joint Discipline Board issued a Resolution[18] finding private respondents

guilty. They were meted the supreme penalty of automatic expulsion, [19] pursuant to CHED Order No. 4.[20] The dispositive

part of the resolution reads:

WHEREFORE, considering all the foregoing, the Board finds respondents ALVIN AGUILAR
(AB-BSM/9152105), JAMES PAUL BUNGUBUNG (AB-PSM/9234403), ALVIN LEE(EDD/94623250) and
RICHARD V. REVERENTE (AB-MGT/9153837) guilty of having violated CHED Order No. 4 and thereby
orders their automatic expulsion.

In the case of respondent MALVIN A. PAPIO (AB-MGT/9251227), the Board acquits him of the
charge.

SO ORDERED.[21]
 Private respondents separately moved for reconsideration [22] before the Office of the Senior Vice-President for

Internal Operations of DLSU. The motions were all denied in a Letter-Resolution[23] dated June 1, 1995.

On June 5, 1995, private respondent Aguilar filed with the RTC, Manila, against petitioners a petition

for certiorari and injunction under Rule 65 of the Rules of Court with prayer for temporary restraining order (TRO) and/or writ
of preliminary injunction. It was docketed as Civil Case No. 95-74122 and assigned to respondent Judge of Branch 36. The

petition essentially sought to annul the May 3, 1995 Resolution of the DLSU-CSB Joint Discipline Board and the June 1,

1995 Letter-Resolution of the Office of the Senior Vice-President for Internal Affairs.

The following day, June 6, 1995, respondent Judge issued a TRO[24] directing DLSU, its subordinates, agents,

representatives and/or other persons acting for and in its behalf to refrain and desist from implementing Resolution

dated May 3, 1995 and Letter-Resolution dated June 1, 1995 and to immediately desist from barring the enrollment of

Aguilar for the second term of school year (SY) 1995.

Subsequently, private respondent Aguilar filed an ex parte motion to amend his petition to correct an allegation in

paragraph 3.21[25] of his original petition. Respondent Judge amended the TRO[26] to conform to the correction made in the

amended petition.[27]

On June 7, 1995, the CHED directed DLSU to furnish it with copies of the case records of Discipline Case No.

9495-3-25121,[28] in view of the authority granted to it under Section 77(c) of the Manual of Regulations for Private Schools

(MRPS).

On the other hand, private respondents Bungubung and Reverente, and later, Valdes, filed petitions-in-

intervention[29] in Civil Case No. 95-74122. Respondent Judge also issued corresponding temporary restraining orders to
compel petitioner DLSU to admit said private respondents.

On June 19, 1995, petitioner Sales filed a motion to dismiss [30] in behalf of all petitioners, except James

Yap. On June 20, 1995, petitioners filed a supplemental motion to dismiss [31] the petitions-in-intervention.

On September 20, 1995, respondent Judge issued an Order [32] denying petitioners (respondents there) motion to
dismiss and its supplement, and granted private respondents (petitioners there) prayer for a writ of preliminary

injunction. The pertinent part of the Order reads:

 For this purpose, respondent, its agents, representatives or any and all other persons acting for
and in its behalf is/are restrained and enjoined from

1. Implementing and enforcing the Resolution dated May 3, 1995 ordering the
automatic expulsion of petitioner and the petitioners-in-intervention from the De La Salle
University and the letter-resolution dated June 1, 1995, affirming the Resolution dated May 3,
1995; and

2. Barring the enrolment of petitioner and petitioners-in-intervention in the courses

offered at respondent De La Salle University and to immediately allow them to enroll and
complete their respective courses/degrees until their graduation thereat in accordance with the
standards set by the latter.

WHEREFORE, the ancillary remedy prayed for is granted. Respondent, its agents,
representatives, or any and all persons acting for and its behalf are hereby restrained and enjoyed from:

1. Implementing and enforcing the Resolution dated May 3, 1995 ordering the
automatic expulsion of petitioner and petitioners-in-intervention and the Letter-Resolution
dated June 1, 1995; and

2. Barring the enrollment of petitioner and petitioners-in-intervention in the courses

offered at respondent (De La Salle University) and to forthwith allow all said petitioner and
petitioners-in-intervention to enroll and complete their respective courses/degrees until their
graduation thereat.

The Writ of Preliminary Injunction shall take effect upon petitioner and petitioners-in-intervention
posting an injunctive bond in the amount of P15,000.00 executed in favor of respondent to the effect that
petitioner and petitioners-in-intervention will pay to respondent all damages that the latter may suffer by
reason of the injunction if the Court will finally decide that petitioner and petitioners-in-intervention are not
entitled thereto.

The motion to dismiss and the supplement thereto is denied for lack of merit. Respondents are
directed to file their Answer to the Petition not later than fifteen (15) days from receipt thereof.

SO ORDERED.[33]

Despite the said order, private respondent Aguilar was refused enrollment by petitioner DLSU when he attempted

to enroll on September 22, 1995 for the second term of SY 1995-1996. Thus, on September 25, 1995, Aguilar filed with
respondent Judge an urgent motion to cite petitioners (respondents there) in contempt of court.[34] Aguilar also prayed that

petitioners be compelled to enroll him at DLSU in accordance with respondent Judges Order dated September 20,
1995. On September 25, 1995, respondent Judge issued[35] a writ of preliminary injunction, the relevant portion of which

reads:

IT IS HEREBY ORDERED by the undersigned of the REGIONAL TRIAL COURT OF MANILA

that until further orders, you the said DE LA SALLE University as well as your subordinates, agents,
representatives, employees and any other person assisting or acting for or on your behalf, to immediately
desist from implementing the Resolution dated May 3, 1995ordering the automatic expulsion of petitioner
and the intervenors in DLSU, and the letter-resolution dated June 1, 1995 affirming the said Resolution
of May 3, 1995 and to immediately desist from barring the enrolment of petitioner and intervenors in the
courses offered at DLSU and to allow them to enroll and complete their degree courses until their
graduation from said school.[36]
 On October 16, 1995, petitioner DLSU filed with the CA a petition for certiorari[37] (CA-G.R. SP No. 38719) with

prayer for a TRO and/or writ of preliminary injunction to enjoin the enforcement of respondent Judges September 20,

1995 Order and writ of preliminary injunction dated September 25, 1995.

On April 12, 1996, the CA granted petitioners prayer for preliminary injunction.

On May 14, 1996, the CHED issued its questioned Resolution No. 181-96, summarily disapproving the

penalty of expulsion for all private respondents. As for Aguilar, he was to be reinstated, while other private

respondents were to be excluded.[38] The Resolution states:

RESOLUTION 181-96

RESOLVED THAT THE REQUEST OF THE DE LA SALLE UNIVERSITY (DLSU), TAFT

AVENUE, MANILA FOR THE APPROVAL OF THE PENALTY OF EXPULSION IMPOSED ON MR.
ALVIN AGUILAR, JAMES PAUL BUNGUBUNG, ROBERT R. VALDES, JR., ALVIN LEE AND RICHARD
V. REVERENTE BE, AS IT IS HEREBY IS, DISAPPROVED.

RESOLVED FURTHER, THAT THE COMMISSION DIRECT THE DLSU TO IMMEDIATELY

EFFECT THE REINSTATEMENT OF MR. AGUILAR AND THE LOWERING OF THE PENALTY OF MR.
JAMES PAUL BUNGUBUNG, MR. ROBER R. VALDEZ, JR., (sic) MR. ALVIN LEE AND MR. RICHARD
V. REVERENTE FROM EXPULSION TO EXCLUSION.[39]

Despite the directive of CHED, petitioner DLSU again prevented private respondent Aguilar from enrolling and/or

attending his classes, prompting his lawyer to write several demand letters [40] to petitioner DLSU. In view of the refusal of

petitioner DLSU to enroll private respondent Aguilar, CHED wrote a letter dated June 26, 1996 addressed to petitioner

Quebengco requesting that private respondent Aguilar be allowed to continue attending his classes pending the resolution of
its motion for reconsideration of Resolution No. 181-96. However, petitioner Quebengco refused to do so, prompting CHED

to promulgate an Order dated September 23, 1996 which states:

Acting on the above-mentioned request of Mr. Aguilar through counsel enjoining De La Salle
University (DLSU) to comply with CHED Resolution 181-96 (Re: Expulsion Case of Alvin Aguilar, et al. v.
DLSU) directing DLSU to reinstate Mr. Aguilar and finding the urgent request as meritorious, there being
no other plain and speedy remedy available, considering the set deadline for enrollment this current
TRIMESTER, and in order to prevent further prejudice to his rights as a student of the institution, DLSU,
through the proper school authorities, is hereby directed to allow Mr. Alvin Aguilar to provisionally enroll,
pending the Commissions Resolution of the instant Motion for Reconsideration filed by DLSU.

SO ORDERED.[41]

Notwithstanding the said directive, petitioner DLSU, through petitioner Quebengco, still refused to allow private

respondent Aguilar to enroll. Thus, private respondent Aguilars counsel wrote another demand letter to petitioner DLSU. [42]

Meanwhile, on June 3, 1996, private respondent Aguilar, using CHED Resolution No. 181-96, filed a motion to

dismiss[43] in the CA, arguing that CHED Resolution No. 181-96 rendered the CA case moot and academic.
 On July 30, 1996, the CA issued its questioned resolution granting the motion to dismiss of private

respondent Aguilar, disposing thus:

THE FOREGOING CONSIDERED, dismissal of herein petition is hereby directed.

SO ORDERED.[44]

On October 15, 1996, the CA issued its resolution denying petitioners motion for reconsideration, as

follows:

It is obvious to Us that CHED Resolution No. 181-96 is immediately executory in character, the
pendency of a Motion for Reconsideration notwithstanding.

After considering the Opposition and for lack of merit, the Motion for Reconsideration is hereby
denied.

SO ORDERED.[45]

On October 28, 1996, petitioners requested transfer of case records to the Department of Education, Culture and
Sports (DECS) from the CHED.[46] Petitioners claimed that it is the DECS, not CHED, which has jurisdiction over expulsion

cases, thus, necessitating the transfer of the case records of Discipline Case No. 9495-3-25121 to the DECS.

On November 4, 1996, in view of the dismissal of the petition for certiorari in CA-G.R. SP No. 38719 and the

automatic lifting of the writ of preliminary injunction, private respondent Aguilar filed an urgent motion to reiterate writ of

preliminary injunction dated September 25, 1995 before respondent RTC Judge of Manila.[47]

On January 7, 1997, respondent Judge issued its questioned order granting private respondent Aguilars
urgent motion to reiterate preliminary injunction. The pertinent portion of the order reads:

In light of the foregoing, petitioner Aguilars urgent motion to reiterate writ of preliminary
injunction is hereby granted, and respondents motion to dismiss is denied.

The writ of preliminary injunction dated September 25, 1995 is declared to be in force and
effect.

Let a copy of this Order and the writ be served personally by the Courts sheriff upon the
respondents at petitioners expense.

SO ORDERED.[48]

Accordingly, private respondent Aguilar was allowed to conditionally enroll in petitioner DLSU, subject to the

continued effectivity of the writ of preliminary injunction dated September 25, 1995 and to the outcome of Civil Case No. 95-

74122.
 On February 17, 1997, petitioners filed the instant petition.

On June 15, 1998, We issued a TRO[49] as prayed for by the urgent motion for the issuance of

a TRO[50] dated June 4, 1998 of petitioners, and enjoined respondent Judge from implementing the writ of preliminary

injunction dated September 25, 1995 issued in Civil Case No. 95-74122, effective immediately and until further orders from

this Court.

On March 27, 2006, private respondent Aguilar filed his manifestation [51] stating that he has long completed his

course at petitioner DLSU. He finished and passed all his enrolled subjects for the second trimester of 1997-1998, as

indicated in his transcript of records [52] issued by DLSU. However, despite having completed all the academic requirements

for his course, DLSU has not issued a certificate of completion/graduation in his favor.

Issues

We are tasked to resolve the following issues:

1. Whether it is the DECS or the CHED which has legal authority to review decisions of institutions of higher
learning that impose disciplinary action on their students found violating disciplinary rules.

2. Whether or not petitioner DLSU is within its rights in expelling private respondents.

2.a Were private respondents accorded due process of law?

2.b Can petitioner DLSU invoke its right to academic freedom?

2.c Was the guilt of private respondents proven by substantial evidence?

3. Whether or not the penalty imposed by DLSU on private respondents is proportionate to their misdeed.

Our Ruling

Prefatorily, there is merit in the observation of petitioners [53] that while CHED Resolution No. 181-96 disapproved
the expulsion of other private respondents, it nonetheless authorized their exclusion from petitioner DLSU. However,

because of the dismissal of the CA case, petitioner DLSU is now faced with the spectacle of having two different directives
from the CHED and the respondent Judge CHED ordering the exclusion of private respondents Bungubung, Reverente, and

Valdes, Jr., and the Judge ordering petitioner DLSU to allow them to enroll and complete their degree courses until their

graduation.
 This is the reason We opt to decide the whole case on the merits, brushing aside technicalities, in order to settle
the substantial issues involved. This Court has the power to take cognizance of the petition at bar due to compelling

reasons, and the nature and importance of the issues raised warrant the immediate exercise of Our jurisdiction. [54] This is in

consonance with our case law now accorded near-religious reverence that rules of procedure are but tools designed to

facilitate the attainment of justice, such that when its rigid application tends to frustrate rather than promote substantial

justice, this Court has the duty to suspend their operation. [55]

I. It is the CHED, not DECS, which has the

power of supervision and review over
disciplinary cases decided by institutions
of higher learning.

Ang CHED, hindi ang DECS, ang may kapangyarihan ng pagsubaybay at pagrepaso sa mga desisyong pandisiplina

ng mga institusyon ng mas mataas na pag-aaral.

Petitioners posit that the jurisdiction and duty to review student expulsion cases, even those involving students in

secondary and tertiary levels, is vested in the DECS not in the CHED. In support of their stance,

petitioners cite Sections 4,[56] 15(2) & (3),[57] 54,[58] 57(3)[59] and 70[60] of Batas Pambansa (B.P.) Blg. 232, otherwise known as

the Education Act of 1982.

According to them, Republic Act (R.A.) No. 7722 did not transfer to the CHED the DECS power of

supervision/review over expulsion cases involving institutions of higher learning. They say that unlike B.P. Blg. 232, R.A. No.

7722 makes no reference to the right and duty of learning institutions to develop moral character and instill discipline among

its students. The clear concern of R.A. No. 7722 in the creation of the CHED was academic, i.e., the formulation,

recommendation, setting, and development of academic plans, programs and standards for institutions of higher

learning. The enumeration of CHEDs powers and functions under Section 8 does not include supervisory/review powers in

student disciplinary cases. The reference in Section 3 to CHEDs coverage of institutions of higher education is limited to the
powers and functions specified in Section 8. The Bureau of Higher Education, which the CHED has replaced and whose

functions and responsibilities it has taken over, never had any authority over student disciplinary cases.

We cannot agree.

On May 18, 1994, Congress approved R.A. No. 7722, otherwise known as An Act Creating the Commission on
Higher Education, Appropriating Funds Thereof and for other purposes.

Section 3 of the said law, which paved the way for the creation of the CHED, provides:
 Section 3. Creation of the Commission on Higher Education. In pursuance of the
abovementioned policies, the Commission on Higher Education is hereby created, hereinafter referred to
as Commission.

The Commission shall be independent and separate from the Department of Education, Culture
and Sports (DECS) and attached to the office of the President for administrative purposes only. Its
coverage shall be both public and private institutions of higher education as well as degree-granting
programs in all post secondary educational institutions, public and private.

The powers and functions of the CHED are enumerated in Section 8 of R.A. No. 7722. They include the following:

Sec. 8. Powers and functions of the Commission. The Commission shall have the following
powers and functions:

xxxx

n) promulgate such rules and regulations and exercise such other powers and functions
as may be necessary to carry out effectively the purpose and objectives of this Act;
and

o) perform such other functions as may be necessary for its effective operations and for
the continued enhancement of growth or development of higher education.

Clearly, there is no merit in the contention of petitioners that R.A. No. 7722 did not transfer to the CHED the DECS

power of supervision/review over expulsion cases involving institutions of higher learning.

First, the foregoing provisions are all-embracing. They make no reservations of powers to the DECS insofar as

institutions of higher learning are concerned. They show that the authority and supervision over all public and private

institutions of higher education, as well as degree-granting programs in all post-secondary educational institutions, public

and private, belong to the CHED, not the DECS.

Second, to rule that it is the DECS which has authority to decide disciplinary cases involving students on the

tertiary level would render nugatory the coverage of the CHED, which is both public and private institutions of higher

education as well as degree granting programs in all post secondary educational institutions, public and private.That would

be absurd.

It is of public knowledge that petitioner DLSU is a private educational institution which offers tertiary degree
programs. Hence, it is under the CHED authority.

Third, the policy of R.A. No. 7722[61] is not only the protection, fostering and promotion of the right of all citizens to

affordable quality education at all levels and the taking of appropriate steps to ensure that education shall be accessible to
all. The law is likewise concerned with ensuring and protecting academic freedom and with promoting its exercise and

observance for the continued intellectual growth of students, the advancement of learning and research, the development of
responsible and effective leadership, the education of high-level and middle-level professionals, and the enrichment of our

historical and cultural heritage.

It is thus safe to assume that when Congress passed R.A. No. 7722, its members were aware that disciplinary

cases involving students on the tertiary level would continue to arise in the future, which would call for the invocation and

exercise of institutions of higher learning of their right to academic freedom.

Fourth, petitioner DLSU cited no authority in its bare claim that the Bureau of Higher Education, which CHED

replaced, never had authority over student disciplinary cases. In fact, the responsibilities of other

government entities having functions similar to those of the CHED were transferred to the CHED.[62]

Section 77 of the MRPS[63] on the process of review in student discipline cases should therefore be read in

conjunction with the provisions of R.A. No. 7722.

Fifth, Section 18 of R.A. No. 7722 is very clear in stating that [j]urisdiction over DECS-supervised or chartered

state-supported post-secondary degree-granting vocational and tertiary institutions shall be transferred to the

Commission [On Higher Education]. This provision does not limit or distinguish that what is being transferred to the

CHED is merely the formulation, recommendation, setting and development of academic plans, programs and standards for

institutions of higher learning, as what petitioners would have us believe as the only concerns of R.A. No. 7722. Ubi lex non

distinguit nec nos distinguere debemus: Where the law does not distinguish, neither should we.

To Our mind, this provision, if not an explicit grant of jurisdiction to the CHED, necessarily includes the

transfer to the CHED of any jurisdiction which the DECS might have possessed by virtue of B.P. Blg. 232 or any other law or

rule for that matter.

IIa. Private respondents were accorded

due process of law.

Ang mga private respondents ay nabigyan ng tamang proseso ng batas.

The Due Process Clause in Article III, Section 1 of the Constitution embodies a system of rights based on moral
principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society

as conceived by our entire history. [64] The constitutional behest that no person shall be deprived of life, liberty or property
without due process of law is solemn and inflexible. [65]

In administrative cases, such as investigations of students found violating school discipline, [t]here are withal

minimum standards which must be met before to satisfy the demands of procedural due process and these are: that (1) the
students must be informed in writing of the nature and cause of any accusation against them; (2) they shall have the right to

answer the charges against them and with the assistance if counsel, if desired; (3) they shall be informed of the evidence

against them; (4) they shall have the right to adduce evidence in their own behalf; and (5) the evidence must be duly

considered by the investigating committee or official designated by the school authorities to hear and decide the case. [66]

Where a party was afforded an opportunity to participate in the proceedings but failed to do so, he cannot complain
of deprivation of due process.[67] Notice and hearing is the bulwark of administrative due process,
[68]
the right to which is among the primary rights that must be respected even in administrative proceedings. The essence of

due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain ones

side or an opportunity to seek reconsideration of the action or ruling complained of. [69] So long as the party is given the

opportunity to advocate her cause or defend her interest in due course, it cannot be said that there was denial of due

process.[70]

A formal trial-type hearing is not, at all times and in all instances, essential to due process it is enough that the

parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present

supporting evidence on which a fair decision can be based. [71] To be heard does not only mean presentation of testimonial

evidence in court one may also be heard through pleadings and where the opportunity to be heard through pleadings is

accorded, there is no denial of due process. [72]

Private respondents were duly informed in writing of the charges against them by the DLSU-CSB Joint Discipline

Board through petitioner Sales. They were given the opportunity to answer the charges against them as they, in fact,

submitted their respective answers. They were also informed of the evidence presented against them as they attended all

the hearings before the Board. Moreover, private respondents were given the right to adduce evidence on their behalf and

they did. Lastly, the Discipline Board considered all the pieces of evidence submitted to it by all the parties before rendering

its resolution in Discipline Case No. 9495-3-25121.

Private respondents cannot claim that they were denied due process when they were not allowed to cross-

examine the witnesses against them. This argument was already rejected in Guzman v. National University[73] where this

Court held that x x x the imposition of disciplinary sanctions requires observance of procedural due process. And it bears

stressing that due process in disciplinary cases involving students does not entail proceedings and hearings similar to those
prescribed for actions and proceedings in courts of justice. The proceedings in student discipline cases may be summary;

and cross examination is not, x x x an essential part thereof.

IIb. Petitioner DLSU, as an institution of

higher learning, possesses academic
freedom which includes determination
of who to admit for study.
 Ang petitioner DLSU, bilang institusyon ng mas mataas na pag-aaral, ay nagtataglay ng kalayaang

akademiko na sakop ang karapatang pumili ng mga mag-aaral dito.

Section 5(2), Article XIV of the Constitution guaranties all institutions of higher learning academic freedom. This

institutional academic freedom includes the right of the school or college to decide for itself, its aims and objectives, and how

best to attain them free from outside coercion or interference save possibly when the overriding public interest calls for some

restraint.[74] According to present jurisprudence, academic freedom encompasses the independence of an academic

institution to determine for

itself (1) who may teach, (2) what may be taught, (3) how it shall teach, and (4) who may be admitted to study. [75]

It cannot be gainsaid that the school has an interest in teaching the student discipline, a necessary, if not
indispensable, value in any field of learning. By instilling discipline, the school teaches discipline. Accordingly, the right to

discipline the student likewise finds basis in the freedom what to teach. [76] Indeed, while it is categorically stated under the
Education Act of 1982 that students have a right to freely choose their field of study, subject to existing curricula and to

continue their course therein up to graduation, [77] such right is subject to the established academic and disciplinary standards
laid down by the academic institution. Petitioner DLSU, therefore, can very well exercise its academic freedom, which

includes its free choice of students for admission to its school.

IIc. The guilt of private respondents

Bungubung, Reverente and Valdes,
Jr. was proven by substantial evidence.

Ang pagkakasala ng private respondents na sina Bungubung, Reverente at Valdes, Jr. ay napatunayan ng
ebidensiyang substansyal.

As has been stated earlier, private respondents interposed the common defense of alibi. However, in order that
alibi may succeed as a defense, the accused must establish by clear and convincing evidence (a) his presence at another
place at the time of the perpetration of the offense and (b) the physical impossibility of his presence at the scene of the
crime.[78]

On the other hand, the defense of alibi may not be successfully invoked where the identity of the assailant has
been established by witnesses.[79] Positive identification of accused where categorical and consistent, without any showing
of ill motive on the part of the eyewitness testifying, should prevail over the alibi and denial of appellants whose testimonies
are not substantiated by clear and convincing evidence. [80] Well-settled is the rule that denial and alibi, being weak defenses,
cannot overcome the positive testimonies of the offended parties. [81]

Courts reject alibi when there are credible eyewitnesses to the crime who can positively identify the
accused.[82] Alibi is an inherently weak defense and courts must receive it with caution because one can easily fabricate an
alibi.[83] Jurisprudence holds that denial, like alibi, is inherently weak and crumbles in light of positive declarations of truthful
witnesses who testified on affirmative matters that accused were at the scene of the crime and were the victims
assailants. As between categorical testimonies that ring of truth on one hand and a bare denial on the other, the former must
prevail.[84] Alibi is the weakest of all defenses for it is easy to fabricate and difficult to disprove, and it is for this reason that it
cannot prevail over the positive identification of accused by the witnesses.[85]
 The required proof in administrative cases, such as in student discipline cases, is neither proof beyond reasonable

doubt nor preponderance of evidence but only substantial evidence. According to Ang Tibay v. Court of Industrial

Relations,[86] it means such reasonable evidence as a reasonable mind might accept as adequate to support a conclusion.

Viewed from the foregoing, We reject the alibi of private respondents Bungubung, Valdes Jr., and Reverente. They

were unable to show convincingly that they were not at the scene of the crime on March 29, 1995 and that it was impossible

for them to have been there. Moreover, their alibi cannot prevail over their positive identification by the victims.

We hark back to this Courts pronouncement affirming the expulsion of several students found guilty of hazing:

No one can be so myopic as to doubt that the immediate reinstatement of respondent students
who have been investigated and found guilty by the Disciplinary Board to have violated petitioner
universitys disciplinary rules and standards will certainly undermine the authority of the administration of
the school. This we would be most loathe to do.

More importantly, it will seriously impair petitioner universitys academic freedom which has
been enshrined in the 1935, 1973 and the present 1987 Constitution. [87]

Certainly, private respondents Bungubung, Reverente and Valdes, Jr. do not deserve to claim a venerable institution as their

own, for they may foreseeably cast a malevolent influence on the students currently enrolled, as well as those who come

after them.[88] It must be borne in mind that universities are established, not merely to develop the intellect and skills of the

studentry, but to inculcate lofty values, ideals and attitudes; nay, the development, or flowering if you will, of the total man.[89]

As for private respondent Aguilar, however, We are inclined to give credence to his alibi that he was

at Camp Crame in Quezon City at the time of the incident in question on March 29, 1995. This claim was amply

corroborated by the certification that he submitted before the DLSU-CSB Joint Discipline Board, to wit:

CERTIFICATION

TO WHOM THIS MAY CONCERN:

We, the undersigned, hereby declare and affirm by way of this Certification
that sometime on March 29, 1995, at about and between 4:30 P.M. and 5:30 P.M., we
were together with Alvin A. Aguilar, at Kiangan Hall, inside Camp Crame, Quezon
City, meeting in connection with an affair of our class known as Class 7, Batch 89 of
the Philippine Constabulary discussing on the proposed sponsorship of TAU
GAMMA PHI from said Batch 89 affair.

That the meeting was terminated at about 6:30 P.M. that evening and Alvin Aguilar had asked
our permission to leave and we saw him leave Camp Crame, in his car with the driver.

April 18, 1995, Camp Crame, Quezon City.[90]

The said certification was duly signed by PO3 Nicanor R. Faustino (Anti-Organized Crime CIC, NCR), PO3 Alejandro D.

Deluviar (ODITRM, Camp Crame, Quezon City), PO2 Severino C. Filler (TNTSC, Camp Crame, Quezon City), and PO3

Ireneo M. Desesto (Supply Center, PNPLSS). The rule is that alibi assumes significance or strength when it is amply

corroborated by credible and disinterested witnesses. [91] It is true that alibi is a weak defense which an accused can easily

fabricate to escape criminal liability. But where the prosecution evidence is weak, and betrays lack of credibility as to the

identification of defendant, alibi assumes commensurate strength. This is but consistent with the presumption of innocence
in favor of accused.[92]

Alibi is not always undeserving of credit, for there are times when accused has no other possible defense for what

could really be the truth as to his whereabouts at the crucial time, and such defense may, in fact, tilt the scales of justice in

his favor.[93]

III. The penalty of expulsion imposed by DLSU

on private respondents is disproportionate
to their misdeed.

Ang parusang expulsion na ipinataw ng DLSU sa private respondents ay hindi angkop sa kanilang

pagkakasala.

It is true that schools have the power to instill discipline in their students as subsumed in their academic freedom

and that the establishment of rules governing university-student relations, particularly those pertaining to student discipline,
may be regarded as vital, not merely to the smooth and efficient operation of the institution, but to its very survival. [94] This

power, however, does not give them the untrammeled discretion to impose a penalty which is not commensurate with the

gravity of the misdeed. If the concept of proportionality between the offense committed and the sanction imposed is not

followed, an element of arbitrariness intrudes. That would give rise to a due process question. [95]

We agree with respondent CHED that under the circumstances, the penalty of expulsion is grossly

disproportionate to the gravity of the acts committed by private respondents Bungubung, Reverente, and Valdes, Jr. Each of
the two mauling incidents lasted only for few seconds and the victims did not suffer any serious injury. Disciplinary measures

especially where they involve suspension, dismissal or expulsion, cut significantly into the future of a student. They attach to

him for life and become a mortgage of his future, hardly redeemable in certain cases. Officials of colleges and universities

must be anxious to protect it, conscious of the fact that, appropriately construed, a disciplinary action should be treated as
an educational tool rather than a punitive measure. [96]
 Accordingly, We affirm the penalty of exclusion[97] only, not expulsion,[98] imposed on them by the CHED. As such,

pursuant to Section 77(b) of the MRPS, petitioner DLSU may exclude or drop the names of the said private respondents

from its rolls for being undesirable, and transfer credentials immediately issued.

WHEREFORE, the petition is PARTIALLY GRANTED. The Court of Appeals Resolutions dated July 30, 1996 and

dated October 15, 1996, and Regional Trial Court of Manila, Branch 36, Order dated January 7,
1997 are ANNULLED AND SET ASIDE, while CHED Resolution 181-96 dated May 14, 1996 is AFFIRMED.

Petitioner DLSU is ordered to issue a certificate of completion/graduation in favor of private respondent Aguilar. On

the other hand, it may exclude or drop the names of private respondents Bungubung, Reverente, and Valdes, Jr. from its

rolls, and their transfer credentials immediately issued.

SO ORDERED.

RUBEN T. REYES: Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

LEONARDO A. QUISUMBING MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the
writer of the opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 207412 August 7, 2013

FLORD NICSON CALAWAG, PETITIONER,

vs.
UNIVERSITY OF THE PHILIPPINES VISAYAS AND DEAN CARLOS C. BAYLON, RESPONDENTS.

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

G.R. No. 207542

MICAH P. ESPIA, JOSE MARIE F. NASALGA AND CHE CHE B. SALCEPUEDES, PETITIONERS,
vs.
DR. CARLOS C. BA YLON, DR. MINDA J. FORMACI ON AND DR. EMERLINDA ROMAN (TO BE
SUBSTITUTED BY ALFREDO E. PASCUAL, BEING THE NEW UP PRESIDENT), UNIVERSITY OF
THE PHILIPPINES BOARD OF REGENTS, RESPONDENTS.

RESOLUTION

BRION, J.:

This case involves the consolidated petitions of petitioner Flord Nicson Calawag in G.R. No. 207412 and
petitioners Micah P. Espia, Jose Marie F. Nasalga and Che Che B. Salcepuedes in G.R. No. 207542
(hereinafter collectively known as petitioners), both assailing the decision1 dated August 9, 2012 of the
Court of Appeals (CA) in CA-G.R. CEB-SP No. 05079. The CA annulled the Order 2 of the Regional Trial
Court (RTC) of Guimbal, Iloilo, Branch 67, granting a writ of preliminary mandatory injunction against
respondent Dean Carlos Baylon of the University of the Philippines Visayas (UP Visayas).

The petitioners enrolled in the Master of Science in Fisheries Biology at UP Visayas under a scholarship
from the Department of Science and Technology-Philippine Council for Aquatic and Marine Research and
Development. They finished their first year of study with good grades, and thus were eligible to start their
thesis in the first semester of their second year. The petitioners then enrolled in the thesis program,
drafted their tentative thesis titles, and obtained the consent of Dr. Rex Baleña to be their thesis adviser,
as well as the other faculty members’ consent to constitute their respective thesis committees. These
details were enclosed in the letters the petitioners sent to Dean Baylon, asking him to approve the
composition of their thesis committees. The letter contained the thesis committee members and the thesis
adviser’s approval of their titles, as well as the approval of Professor Roman Sanares, the director of the
Institute of Marine Fisheries and Oceanology.

Upon receipt of the petitioners’ letters, Dean Baylon wrote a series of memos addressed to Professor
Sanares, questioning the propriety of the thesis topics with the college’s graduate degree program. He
subsequently disapproved the composition of the petitioners’ thesis committees and their tentative thesis
topics. According to Dean Baylon, the petitioners’ thesis titles connote a historical and social dimension
study which is not appropriate for the petitioners’ chosen master’s degrees. Dean Baylon thereafter
ordered the petitioners to submit a two-page proposal containing an outline of their tentative thesis titles,
and informed them that he is forming an ad hoc committee that would take over the role of the adviser
and of the thesis committees.
The petitioners thus filed a petition for certiorari and mandamus before the RTC, asking it to order Dean
Baylon to approve and constitute the petitioners’ thesis committees and approve their thesis titles. They
also asked that the RTC issue a writ of preliminary mandatory injunction against Dean Baylon, and order
him to perform such acts while the suit was pending.

The RTC granted a writ of preliminary mandatory injunction, which Dean Baylon allegedly refused to
follow. UP Visayas eventually assailed this order before the CA through a Rule 65 petition for certiorari,
with prayer for a temporary restraining order (TRO).

The CA’s Ruling

The CA issued a TRO against the implementation of the RTC’s order, holding that the petitioners had no
clear right to compel Dean Baylon to approve the composition of their thesis committees as a matter of
course. As the college dean, Dean Baylon exercises supervisory authority in all academic matters
affecting the college. According to the CA, the petitioners’ reliance on Article 51 of the Graduate Program
Manual of UP Visayas is misplaced. Article 51 provides:

Art. 51. The composition of the thesis committee shall be approved by the dean of the college/school
upon the recommendation of the chairperson of the major department/division/institute. The GPO shall be
informed of the composition of the thesis committee and/or any change thereof. 3

Despite the mandatory language provided for composing the thesis committee under Article 51 of the
Graduate Program Manual of UP Visayas, the CA construed it to mean that the Dean’s approval is
necessary prior to the composition of a thesis committee.

Lastly, the CA held that the case presents issues that are purely academic in character, which are outside
the court’s jurisdiction. It also noted that Dean Baylon has been accommodating of the petitioners, and
that the requirements he imposed were meant to assist them to formulate a proper thesis title and
graduate on time.

The Petitions for Review on Certiorari

In G.R. No. 207412, Calawag argues that the CA’s decision should be set aside for the following reasons:

First, Calawag was entitled to the injunction prayed for, as he has clear rights under the law which were
violated by Dean Baylon’s actions. These are the right to education, the right to due process, and the right
to equal protection under the law. According to Calawag, Dean Baylon violated his right to due process
when he added to and changed the requirements for the constitution of his thesis committee, without prior
publication of the change in rules. Calawag’s right to equal protection of the law, on the other hand, was
allegedly violated because only students like him, who chose Dr. Baleña for their thesis adviser, were
subjected to the additional requirements imposed by the dean, while the other students’ thesis
committees were formed without these impositions. Hence, Calawag and the three other petitioners in
G.R. No. 207542 were unduly discriminated against.

Second, a reading of Executive Order No. 628, s. 1980,4 and Republic Act No. 95005 shows that the
college dean’s functions are merely administrative, and, hence, the CA erred in its construction of Article
51 of the Graduate Program Manual of UP Visayas, as well as its proclamation that the college dean has
supervisory authority over academic matters in the college.

On the other hand, in G.R. No. 207542, petitioners Espia, Nasalga and Salcepuedes argue that the CA’s
decision should be set aside for the following reasons:
First, the Graduate Program Manual of UP Visayas and the Guidelines for the Master of Science in
Fisheries Program are clear in providing that Dean Baylon has a formal duty to approve the composition
of the petitioners’ thesis committees upon the latter’s compliance with several requirements. Thus, when
the petitioners complied with these requirements and Dean Baylon still refused to approve the
composition of their thesis committees, the petitioners had a right to have him compelled to perform his
duty.

Second, Dean Baylon cannot arbitrarily change and alter the manual and the guidelines, and cannot use
academic freedom as subterfuge for not performing his duties.

Third, the thesis adviser and the thesis committees, in consultations with the students, have the right to
choose the thesis topics, and not the dean.

The Court’s Ruling

Having reviewed the arguments presented by the petitioners and the records they have attached to the
petitions, we find that the CA did not commit an error in judgment in setting aside the preliminary
mandatory injunction that the RTC issued against Dean Baylon. Thus, there could be no basis for the
Court’s exercise of its discretionary power to review the CA’s decision.

"To be entitled to a writ of preliminary injunction, x x x the petitioners must establish the following
requisites: (a) the invasion of the right sought to be protected is material and substantial; (b) the right of
the complainant is clear and unmistakable; and (c) there is an urgent and permanent necessity for the writ
to prevent serious damage. Since a preliminary mandatory injunction commands the performance of an
act, it does not preserve the status quo and is thus more cautiously regarded than a mere prohibitive
injunction. Accordingly, the issuance of a writ of preliminary mandatory injunction [presents a fourth
requirement: it] is justified only in a clear case, free from doubt or dispute. When the complainant’s right is
thus doubtful or disputed, he does not have a clear legal right and, therefore, the issuance of injunctive
relief is improper."6

The CA did not err in ruling that the petitioners failed to show a clear and unmistakable right that needs
the protection of a preliminary mandatory injunction. We support the CA’s conclusion that the dean has
the discretion to approve or disapprove the composition of a thesis committee, and, hence, the petitioners
had no right for an automatic approval and composition of their thesis committees.

Calawag’s citation of Executive Order No. 628, s. 1980 and Republic Act No. 9500 to show that the dean
of a college exercises only administrative functions and, hence, has no ascendancy over the college’s
academic matters, has no legal ground to stand on. Neither law provides or supports such conclusion, as
neither specifies the role and responsibilities of a college dean. The functions and duties of a college
dean are outlined in the university’s Faculty Manual, which details the rules and regulations governing the
university’s administration. Section 11.8.2, paragraph b of the Faculty Manual enumerates the powers
and responsibilities of a college dean, which include the power to approve the composition of a thesis
committee, to wit:

11.8.2 Administration

xxxx

b. Dean/Director of UP System or UP Diliman-based Programs * The Dean/Director shall be responsible

for the planning and

implementation of the graduate programs. In particular, the Dean/Director shall exercise the following
powers and responsibilities based on the recommendations forwarded to him/her, through channels:
 xxxx

Approve the composition of the Thesis, Dissertation or Special Project** Committees and Master’s or
doctoral examination/oral defense panel for each student[.]7 (emphases and italics ours)

By necessary implication,8 the dean’s power to approve includes the power to disapprove the composition
of a thesis committee. Thus, under the UP System’s faculty manual, the dean has complete discretion in
approving or disapproving the composition of a thesis committee. Harmonizing this provision with the
Graduate Program Manual of UP Visayas, and the Guidelines for the Master of Science in Fisheries
Program, we agree with the CA’s interpretation that the thesis committee’s composition needs the
approval of the dean after the students have complied with the requisites provided in Article 51 of the
Graduate Program Manual and Section IX of the Guidelines for the Master of Science in Fisheries
Program.9

Anent the petitioners’ argument that Dean Baylon acted arbitrarily in imposing additional requirements for
the composition of the thesis committee, which according to Calawag violated their right to due process,
we hold that the dean’s authority to approve or disapprove the composition of a thesis committee includes
this discretion. We also note the CA’s finding that these additional requirements were meant to assist the
petitioners in formulating a thesis title that is in line with the college’s master of fisheries program. Absent
any finding of grave abuse of discretion, we cannot interfere with the exercise of the dean’s prerogative
without encroaching on the college’s academic freedom.

Verily, the academic freedom accorded to institutions of higher learning gives them the right to decide for
themselves their aims and objectives and how best to attain them.10 They are given the exclusive
discretion to determine who can and cannot study in them, as well as to whom they can confer the honor
and distinction of being their graduates.11

This necessarily includes the prerogative to establish requirements for graduation, such as the completion
of a thesis, and the manner by which this shall be accomplished by their students. The courts may not
interfere with their exercise of discretion unless there is a clear showing that they have arbitrarily and
capriciously exercised their judgment.12

Lastly, the right to education invoked by Calawag cannot be made the basis for issuing a writ of
preliminary mandatory injunction. In Department of Education, Culture and Sports v. San Diego, 13 we held
that the right to education is not absolute. Section 5(e), Article XIV of the Constitution provides that
"[e]very citizen has a right to select a profession or course of study, subject to fair, reasonable, and
equitable admission and academic requirements." The thesis requirement and the compliance with the
procedures leading to it, are part of the reasonable academic requirements a person desiring to complete
a course of study would have to comply with.

WHEREFORE, the Court resolves to DENY giving due course to the petitions in G.R. No. 207412 and
G.R. No. 207542.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson
 MARIANO C. DEL CASTILLO JOSE PORTUGAL PEREZ
Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

ATTESTATION

I attest that the conclusions in the above Resolution had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's Attestation, I certify
that the conclusions in the above Resolution had been reached in consultation before the case was
assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

1
Rollo, G.R. No. 207412, pp. 83-95; penned by Associate Justice Ramon Paul L. Hernando, and
concurred in by Associate Justices Carmelita Salandanan-Manahan and Zenaida T. Galapate-
Laguilles.

2
Id. at 60-62; penned by Judge Domingo D. Diamante.

3
Id. at 28.

4
Creating a University of the Philippines in the Visayas as an Autonomous Member of the
University of the Philippines System.

5
University of the Philippines Charter of 2008.

6
China Banking Corporation v. Co, G.R. No. 174569, September 17, 2008, 565 SCRA 600, 606-
607, citing Gateway Electronics Corporation v. Land Bank of the Philippines, G.R. Nos. 155217
and 156393, July 30, 2003, 407 SCRA 454, 462; citations omitted, italics supplied.

7
University of the Philippines Faculty Manual, p. 254.

8
The Court has, in several instances, used the doctrine of necessary implication to hold that a
statutory provision of the power to approve necessarily implies the power to disapprove or revoke
the subject matter of that power. See for instance Hacienda Luisita, Incorporated v. Presidential
Agrarian Reform Council, G.R. No. 171101, July 5, 2011, 653 SCRA 154; Atienza v. Villarosa,
G.R. No. 161081, May 10, 2005, 458 SCRA 385; Chua v. Civil Service Commission, G.R. No.
88979, February 7, 1992, 206 SCRA 65; and Gordon v. Veridiano II, No. L-55230, November 8,
1988, 167 SCRA 51.

9
IX. THESIS REQUIREMENT

A student shall be allowed to enrol in Fisheries 300 (Masteral Thesis) upon completing
the academic course requirements with a GWA of 2.00 or better. The student’s thesis
committee shall be composed of the thesis adviser who shall act as Chairman of the
Committee, and two other members. The Thesis Adviser must have published as a
senior author at least one (1) scientific article in a journal listed in Current Contents of the
Institute of Scientific Information x x x. The faculty serving as Committee Members may
or may not have a publication in a current contents-covered journal. The student shall
select from a list of advisers who shall come from the home Institute of the student. At
least one (1) of the two (2) other members must also come from the same Institute.

The student can proceed to actual thesis work only after defending his Thesis Proposal in
a Preliminary Oral Examination.

10
Garcia v. The Faculty Admission Committee, Loyola School of Theology, 160-A Phil. 929, 943
(1975).

11
University of the Philippines Board of Regents v. Court of Appeals, G.R. No. 134625, August
31, 1999, 313 SCRA 404, 423, citing Garcia v. The Faculty Admission Committee, Loyola School
of Theology, No. L-40779, November 28, 1975, 68 SCRA 277.

12
Morales v. Board of Regents of the University of the Philippines, G.R. No. 161172, December
13, 2004, 446 SCRA 227, 229, citing University of San Carlos v. Court of Appeals, G.R. No. L-
79237, October 18, 1988, 166 SCRA 570, 574.

13
G.R. No. 89572, December 21, 1989, 180 SCRA 533.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

A.M. No. 133-J May 31, 1982

BERNARDITA R. MACARIOLA, complainant,

vs.
HONORABLE ELIAS B. ASUNCION, Judge of the Court of First Instance of Leyte, respondent.

MAKASIAR, J:

In a verified complaint dated August 6, 1968 Bernardita R. Macariola charged respondent Judge Elias B.
Asuncion of the Court of First Instance of Leyte, now Associate Justice of the Court of Appeals, with "acts
unbecoming a judge."

The factual setting of the case is stated in the report dated May 27, 1971 of then Associate Justice Cecilia
Muñoz Palma of the Court of Appeals now retired Associate Justice of the Supreme Court, to whom this
case was referred on October 28, 1968 for investigation, thus:

Civil Case No. 3010 of the Court of First Instance of Leyte was a complaint for partition
filed by Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela
Reyes, and Priscilla Reyes, plaintiffs, against Bernardita R. Macariola, defendant,
concerning the properties left by the deceased Francisco Reyes, the common father of
the plaintiff and defendant.

In her defenses to the complaint for partition, Mrs. Macariola alleged among other things
that; a) plaintiff Sinforosa R. Bales was not a daughter of the deceased Francisco Reyes;
b) the only legal heirs of the deceased were defendant Macariola, she being the only
offspring of the first marriage of Francisco Reyes with Felisa Espiras, and the remaining
plaintiffs who were the children of the deceased by his second marriage with Irene
Ondez; c) the properties left by the deceased were all the conjugal properties of the latter
and his first wife, Felisa Espiras, and no properties were acquired by the deceased during
his second marriage; d) if there was any partition to be made, those conjugal properties
should first be partitioned into two parts, and one part is to be adjudicated solely to
defendant it being the share of the latter's deceased mother, Felisa Espiras, and the
other half which is the share of the deceased Francisco Reyes was to be divided equally
among his children by his two marriages.

On June 8, 1963, a decision was rendered by respondent Judge Asuncion in Civil Case
3010, the dispositive portion of which reads:

IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court, upon a

preponderance of evidence, finds and so holds, and hereby renders
judgment (1) Declaring the plaintiffs Luz R. Bakunawa, Anacorita Reyes,
Ruperto Reyes, Adela Reyes and Priscilla Reyes as the only children
legitimated by the subsequent marriage of Francisco Reyes Diaz to Irene
Ondez; (2) Declaring the plaintiff Sinforosa R. Bales to have been an
illegitimate child of Francisco Reyes Diaz; (3) Declaring Lots Nos. 4474,
 4475, 4892, 5265, 4803, 4581, 4506 and 1/4 of Lot 1145 as belonging to
the conjugal partnership of the spouses Francisco Reyes Diaz and Felisa
Espiras; (4) Declaring Lot No. 2304 and 1/4 of Lot No. 3416 as belonging
to the spouses Francisco Reyes Diaz and Irene Ondez in common
partnership; (5) Declaring that 1/2 of Lot No. 1184 as belonging
exclusively to the deceased Francisco Reyes Diaz; (6) Declaring the
defendant Bernardita R. Macariola, being the only legal and forced heir
of her mother Felisa Espiras, as the exclusive owner of one-half of each
of Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506; and the
remaining one-half (1/2) of each of said Lots Nos. 4474, 4475, 4892,
5265, 4803, 4581, 4506 and one-half (1/2) of one-fourth (1/4) of Lot No.
1154 as belonging to the estate of Francisco Reyes Diaz; (7) Declaring
Irene Ondez to be the exclusive owner of one-half (1/2) of Lot No. 2304
and one-half (1/2) of one-fourth (1/4) of Lot No. 3416; the remaining one-
half (1/2) of Lot 2304 and the remaining one-half (1/2) of one-fourth (1/4)
of Lot No. 3416 as belonging to the estate of Francisco Reyes Diaz; (8)
Directing the division or partition of the estate of Francisco Reyes Diaz in
such a manner as to give or grant to Irene Ondez, as surviving widow of
Francisco Reyes Diaz, a hereditary share of. one-twelfth (1/12) of the
whole estate of Francisco Reyes Diaz (Art. 996 in relation to Art. 892, par
2, New Civil Code), and the remaining portion of the estate to be divided
among the plaintiffs Sinforosa R. Bales, Luz R. Bakunawa, Anacorita
Reyes, Ruperto Reyes, Adela Reyes, Priscilla Reyes and defendant
Bernardita R. Macariola, in such a way that the extent of the total share
of plaintiff Sinforosa R. Bales in the hereditary estate shall not exceed
the equivalent of two-fifth (2/5) of the total share of any or each of the
other plaintiffs and the defendant (Art. 983, New Civil Code), each of the
latter to receive equal shares from the hereditary estate, (Ramirez vs.
Bautista, 14 Phil. 528; Diancin vs. Bishop of Jaro, O.G. [3rd Ed.] p. 33);
(9) Directing the parties, within thirty days after this judgment shall have
become final to submit to this court, for approval a project of partition of
the hereditary estate in the proportion above indicated, and in such
manner as the parties may, by agreement, deemed convenient and
equitable to them taking into consideration the location, kind, quality,
nature and value of the properties involved; (10) Directing the plaintiff
Sinforosa R. Bales and defendant Bernardita R. Macariola to pay the
costs of this suit, in the proportion of one-third (1/3) by the first named
and two-thirds (2/3) by the second named; and (I 1) Dismissing all other
claims of the parties [pp 27-29 of Exh. C].

The decision in civil case 3010 became final for lack of an appeal, and on October 16,
1963, a project of partition was submitted to Judge Asuncion which is marked Exh. A.
Notwithstanding the fact that the project of partition was not signed by the parties
themselves but only by the respective counsel of plaintiffs and defendant, Judge
Asuncion approved it in his Order dated October 23, 1963, which for convenience is
quoted hereunder in full:

The parties, through their respective counsels, presented to this Court for
approval the following project of partition:

COMES NOW, the plaintiffs and the defendant in the above-entitled

case, to this Honorable Court respectfully submit the following Project of
Partition:
l. The whole of Lots Nos. 1154, 2304 and 4506 shall belong exclusively
to Bernardita Reyes Macariola;

2. A portion of Lot No. 3416 consisting of 2,373.49 square meters along

the eastern part of the lot shall be awarded likewise to Bernardita R.
Macariola;

3. Lots Nos. 4803, 4892 and 5265 shall be awarded to Sinforosa Reyes
Bales;

4. A portion of Lot No. 3416 consisting of 1,834.55 square meters along

the western part of the lot shall likewise be awarded to Sinforosa Reyes-
Bales;

5. Lots Nos. 4474 and 4475 shall be divided equally among Luz Reyes
Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla
Reyes in equal shares;

6. Lot No. 1184 and the remaining portion of Lot No. 3416 after taking
the portions awarded under item (2) and (4) above shall be awarded to
Luz Reyes Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes
and Priscilla Reyes in equal shares, provided, however that the
remaining portion of Lot No. 3416 shall belong exclusively to Priscilla
Reyes.

WHEREFORE, it is respectfully prayed that the Project of Partition

indicated above which is made in accordance with the decision of the
Honorable Court be approved.

Tacloban City, October 16, 1963.

(SGD) BONIFACIO RAMO Atty. for the Defendant Tacloban City

(SGD) ZOTICO A. TOLETE Atty. for the Plaintiff Tacloban City

While the Court thought it more desirable for all the parties to have
signed this Project of Partition, nevertheless, upon assurance of both
counsels of the respective parties to this Court that the Project of
Partition, as above- quoted, had been made after a conference and
agreement of the plaintiffs and the defendant approving the above
Project of Partition, and that both lawyers had represented to the Court
that they are given full authority to sign by themselves the Project of
Partition, the Court, therefore, finding the above-quoted Project of
Partition to be in accordance with law, hereby approves the same. The
parties, therefore, are directed to execute such papers, documents or
instrument sufficient in form and substance for the vesting of the rights,
interests and participations which were adjudicated to the respective
parties, as outlined in the Project of Partition and the delivery of the
respective properties adjudicated to each one in view of said Project of
Partition, and to perform such other acts as are legal and necessary to
effectuate the said Project of Partition.

SO ORDERED.
 Given in Tacloban City, this 23rd day of October, 1963.

(SGD) ELIAS B. ASUNCION Judge

EXH. B.

The above Order of October 23, 1963, was amended on November 11, 1963, only for the
purpose of giving authority to the Register of Deeds of the Province of Leyte to issue the
corresponding transfer certificates of title to the respective adjudicatees in conformity with
the project of partition (see Exh. U).

One of the properties mentioned in the project of partition was Lot 1184 or rather one-half
thereof with an area of 15,162.5 sq. meters. This lot, which according to the decision was
the exclusive property of the deceased Francisco Reyes, was adjudicated in said project
of partition to the plaintiffs Luz, Anacorita Ruperto, Adela, and Priscilla all surnamed
Reyes in equal shares, and when the project of partition was approved by the trial court
the adjudicatees caused Lot 1184 to be subdivided into five lots denominated as Lot
1184-A to 1184-E inclusive (Exh. V).

Lot 1184-D was conveyed to Enriqueta D. Anota, a stenographer in Judge Asuncion's

court (Exhs. F, F-1 and V-1), while Lot 1184-E which had an area of 2,172.5556 sq.
meters was sold on July 31, 1964 to Dr. Arcadio Galapon (Exh. 2) who was issued
transfer certificate of title No. 2338 of the Register of Deeds of the city of Tacloban (Exh.
12).

On March 6, 1965, Dr. Arcadio Galapon and his wife Sold a portion of Lot 1184-E with an
area of around 1,306 sq. meters to Judge Asuncion and his wife, Victoria S. Asuncion
(Exh. 11), which particular portion was declared by the latter for taxation purposes (Exh.
F).

On August 31, 1966, spouses Asuncion and spouses Galapon conveyed their respective
shares and interest in Lot 1184-E to "The Traders Manufacturing and Fishing Industries
Inc." (Exit 15 & 16). At the time of said sale the stockholders of the corporation were
Dominador Arigpa Tan, Humilia Jalandoni Tan, Jaime Arigpa Tan, Judge Asuncion, and
the latter's wife, Victoria S. Asuncion, with Judge Asuncion as the President and Mrs.
Asuncion as the secretary (Exhs. E-4 to E-7). The Articles of Incorporation of "The
Traders Manufacturing and Fishing Industries, Inc." which we shall henceforth refer to as
"TRADERS" were registered with the Securities and Exchange Commission only on
January 9, 1967 (Exh. E) [pp. 378-385, rec.].

Complainant Bernardita R. Macariola filed on August 9, 1968 the instant complaint dated August 6, 1968
alleging four causes of action, to wit: [1] that respondent Judge Asuncion violated Article 1491, paragraph
5, of the New Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was one of those
properties involved in Civil Case No. 3010 decided by him; [2] that he likewise violated Article 14,
paragraphs I and 5 of the Code of Commerce, Section 3, paragraph H, of R.A. 3019, otherwise known as
the Anti-Graft and Corrupt Practices Act, Section 12, Rule XVIII of the Civil Service Rules, and Canon 25
of the Canons of Judicial Ethics, by associating himself with the Traders Manufacturing and Fishing
Industries, Inc., as a stockholder and a ranking officer while he was a judge of the Court of First Instance
of Leyte; [3] that respondent was guilty of coddling an impostor and acted in disregard of judicial decorum
by closely fraternizing with a certain Dominador Arigpa Tan who openly and publicly advertised himself as
a practising attorney when in truth and in fact his name does not appear in the Rolls of Attorneys and is
not a member of the Philippine Bar; and [4] that there was a culpable defiance of the law and utter
disregard for ethics by respondent Judge (pp. 1-7, rec.).
Respondent Judge Asuncion filed on September 24, 1968 his answer to which a reply was filed on
October 16, 1968 by herein complainant. In Our resolution of October 28, 1968, We referred this case to
then Justice Cecilia Muñoz Palma of the Court of Appeals, for investigation, report and recommendation.
After hearing, the said Investigating Justice submitted her report dated May 27, 1971 recommending that
respondent Judge should be reprimanded or warned in connection with the first cause of action alleged in
the complaint, and for the second cause of action, respondent should be warned in case of a finding that
he is prohibited under the law to engage in business. On the third and fourth causes of action, Justice
Palma recommended that respondent Judge be exonerated.

The records also reveal that on or about November 9 or 11, 1968 (pp. 481, 477, rec.), complainant herein
instituted an action before the Court of First Instance of Leyte, entitled "Bernardita R. Macariola, plaintiff,
versus Sinforosa R. Bales, et al., defendants," which was docketed as Civil Case No. 4235, seeking the
annulment of the project of partition made pursuant to the decision in Civil Case No. 3010 and the two
orders issued by respondent Judge approving the same, as well as the partition of the estate and the
subsequent conveyances with damages. It appears, however, that some defendants were dropped from
the civil case. For one, the case against Dr. Arcadio Galapon was dismissed because he was no longer a
real party in interest when Civil Case No. 4234 was filed, having already conveyed on March 6, 1965 a
portion of lot 1184-E to respondent Judge and on August 31, 1966 the remainder was sold to the Traders
Manufacturing and Fishing Industries, Inc. Similarly, the case against defendant Victoria Asuncion was
dismissed on the ground that she was no longer a real party in interest at the time the aforesaid Civil
Case No. 4234 was filed as the portion of Lot 1184 acquired by her and respondent Judge from Dr.
Arcadio Galapon was already sold on August 31, 1966 to the Traders Manufacturing and Fishing
industries, Inc. Likewise, the cases against defendants Serafin P. Ramento, Catalina Cabus, Ben Barraza
Go, Jesus Perez, Traders Manufacturing and Fishing Industries, Inc., Alfredo R. Celestial and Pilar P.
Celestial, Leopoldo Petilla and Remedios Petilla, Salvador Anota and Enriqueta Anota and Atty. Zotico A.
Tolete were dismissed with the conformity of complainant herein, plaintiff therein, and her counsel.

On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First Instance of Leyte, who was
directed and authorized on June 2, 1969 by the then Secretary (now Minister) of Justice and now Minister
of National Defense Juan Ponce Enrile to hear and decide Civil Case No. 4234, rendered a decision, the
dispositive portion of which reads as follows:

A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION

(1) declaring that only Branch IV of the Court of First Instance of Leyte has jurisdiction to
take cognizance of the issue of the legality and validity of the Project of Partition [Exhibit
"B"] and the two Orders [Exhibits "C" and "C- 3"] approving the partition;

(2) dismissing the complaint against Judge Elias B. Asuncion;

(3) adjudging the plaintiff, Mrs. Bernardita R. Macariola to pay defendant Judge Elias B.
Asuncion,

(a) the sum of FOUR HUNDRED THOUSAND PESOS [P400,000.00] for

moral damages;

(b) the sum of TWO HUNDRED THOUSAND PESOS [P200,000.001 for

exemplary damages;

(c) the sum of FIFTY THOUSAND PESOS [P50,000.00] for nominal

damages; and

(d) he sum of TEN THOUSAND PESOS [PI0,000.00] for Attorney's Fees.

 B. IN THE CASE AGAINST THE DEFENDANT MARIQUITA VILLASIN,
FOR HERSELF AND FOR THE HEIRS OF THE DECEASED
GERARDO VILLASIN —

(1) Dismissing the complaint against the defendants Mariquita Villasin and the heirs of
the deceased Gerardo Villasin;

(2) Directing the plaintiff to pay the defendants Mariquita Villasin and the heirs of Gerardo
Villasin the cost of the suit.

C. IN THE CASE AGAINST THE DEFENDANT SINFOROSA R. BALES,

ET AL., WHO WERE PLAINTIFFS IN CIVIL CASE NO. 3010 —

(1) Dismissing the complaint against defendants Sinforosa R. Bales, Adela R. Herrer,
Priscilla R. Solis, Luz R. Bakunawa, Anacorita R. Eng and Ruperto O. Reyes.

D. IN THE CASE AGAINST DEFENDANT BONIFACIO RAMO —

(1) Dismissing the complaint against Bonifacio Ramo;

(2) Directing the plaintiff to pay the defendant Bonifacio Ramo the cost of the suit.

SO ORDERED [pp. 531-533, rec.]

It is further disclosed by the record that the aforesaid decision was elevated to the Court of Appeals upon
perfection of the appeal on February 22, 1971.

WE find that there is no merit in the contention of complainant Bernardita R. Macariola, under her first
cause of action, that respondent Judge Elias B. Asuncion violated Article 1491, paragraph 5, of the New
Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was one of those properties
involved in Civil Case No. 3010. 'That Article provides:

Article 1491. The following persons cannot acquire by purchase, even at a public or
judicial action, either in person or through the mediation of another:

xxx xxx xxx

(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and
other officers and employees connected with the administration of justice, the property
and rights in litigation or levied upon an execution before the court within whose
jurisdiction or territory they exercise their respective functions; this prohibition includes
the act of acquiring by assignment and shall apply to lawyers, with respect to the property
and rights which may be the object of any litigation in which they may take part by virtue
of their profession [emphasis supplied].

The prohibition in the aforesaid Article applies only to the sale or assignment of the property which is the
subject of litigation to the persons disqualified therein. WE have already ruled that "... for the prohibition to
operate, the sale or assignment of the property must take place during the pendency of the litigation
involving the property" (The Director of Lands vs. Ababa et al., 88 SCRA 513, 519 [1979], Rosario vda. de
Laig vs. Court of Appeals, 86 SCRA 641, 646 [1978]).
In the case at bar, when the respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E, the
decision in Civil Case No. 3010 which he rendered on June 8, 1963 was already final because none of
the parties therein filed an appeal within the reglementary period; hence, the lot in question was no longer
subject of the litigation. Moreover, at the time of the sale on March 6, 1965, respondent's order
dated October 23, 1963 and the amended order dated November 11, 1963 approving the October 16,
1963 project of partition made pursuant to the June 8, 1963 decision, had long become final for there was
no appeal from said orders.

Furthermore, respondent Judge did not buy the lot in question on March 6, 1965 directly from the plaintiffs
in Civil Case No. 3010 but from Dr. Arcadio Galapon who earlier purchased on July 31, 1964 Lot 1184-E
from three of the plaintiffs, namely, Priscilla Reyes, Adela Reyes, and Luz R. Bakunawa after the finality
of the decision in Civil Case No. 3010. It may be recalled that Lot 1184 or more specifically one-half
thereof was adjudicated in equal shares to Priscilla Reyes, Adela Reyes, Luz Bakunawa, Ruperto Reyes
and Anacorita Reyes in the project of partition, and the same was subdivided into five lots denominated
as Lot 1184-A to 1184-E. As aforestated, Lot 1184-E was sold on July 31, 1964 to Dr. Galapon for which
he was issued TCT No. 2338 by the Register of Deeds of Tacloban City, and on March 6, 1965 he sold a
portion of said lot to respondent Judge and his wife who declared the same for taxation purposes only.
The subsequent sale on August 31, 1966 by spouses Asuncion and spouses Galapon of their respective
shares and interest in said Lot 1184-E to the Traders Manufacturing and Fishing Industries, Inc., in which
respondent was the president and his wife was the secretary, took place long after the finality of the
decision in Civil Case No. 3010 and of the subsequent two aforesaid orders therein approving the project
of partition.

While it appears that complainant herein filed on or about November 9 or 11, 1968 an action before the
Court of First Instance of Leyte docketed as Civil Case No. 4234, seeking to annul the project of partition
and the two orders approving the same, as well as the partition of the estate and the subsequent
conveyances, the same, however, is of no moment.

The fact remains that respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E from Dr.
Arcadio Galapon; hence, after the finality of the decision which he rendered on June 8, 1963 in Civil Case
No. 3010 and his two questioned orders dated October 23, 1963 and November 11, 1963. Therefore, the
property was no longer subject of litigation.

The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234 can no longer alter, change or
affect the aforesaid facts — that the questioned sale to respondent Judge, now Court of Appeals Justice,
was effected and consummated long after the finality of the aforesaid decision or orders.

Consequently, the sale of a portion of Lot 1184-E to respondent Judge having taken place over one year
after the finality of the decision in Civil Case No. 3010 as well as the two orders approving the project of
partition, and not during the pendency of the litigation, there was no violation of paragraph 5, Article 1491
of the New Civil Code.

It is also argued by complainant herein that the sale on July 31, 1964 of Lot 1184-E to Dr. Arcadio
Galapon by Priscilla Reyes, Adela Reyes and Luz R. Bakunawa was only a mere scheme to conceal the
illegal and unethical transfer of said lot to respondent Judge as a consideration for the approval of the
project of partition. In this connection, We agree with the findings of the Investigating Justice thus:

And so we are now confronted with this all-important question whether or not the
acquisition by respondent of a portion of Lot 1184-E and the subsequent transfer of the
whole lot to "TRADERS" of which respondent was the President and his wife the
Secretary, was intimately related to the Order of respondent approving the project of
partition, Exh. A.
 Respondent vehemently denies any interest or participation in the transactions between
the Reyeses and the Galapons concerning Lot 1184-E, and he insists that there is no
evidence whatsoever to show that Dr. Galapon had acted, in the purchase of Lot 1184-E,
in mediation for him and his wife. (See p. 14 of Respondent's Memorandum).

xxx xxx xxx

On this point, I agree with respondent that there is no evidence in the record showing that
Dr. Arcadio Galapon acted as a mere "dummy" of respondent in acquiring Lot 1184-E
from the Reyeses. Dr. Galapon appeared to this investigator as a respectable citizen,
credible and sincere, and I believe him when he testified that he bought Lot 1184-E in
good faith and for valuable consideration from the Reyeses without any intervention of, or
previous understanding with Judge Asuncion (pp. 391- 394, rec.).

On the contention of complainant herein that respondent Judge acted illegally in approving the project of
partition although it was not signed by the parties, We quote with approval the findings of the Investigating
Justice, as follows:

1. I agree with complainant that respondent should have required the signature of the
parties more particularly that of Mrs. Macariola on the project of partition submitted to him
for approval; however, whatever error was committed by respondent in that respect was
done in good faith as according to Judge Asuncion he was assured by Atty. Bonifacio
Ramo, the counsel of record of Mrs. Macariola, That he was authorized by his client to
submit said project of partition, (See Exh. B and tsn p. 24, January 20, 1969). While it is
true that such written authority if there was any, was not presented by respondent in
evidence, nor did Atty. Ramo appear to corroborate the statement of respondent, his
affidavit being the only one that was presented as respondent's Exh. 10, certain
actuations of Mrs. Macariola lead this investigator to believe that she knew the contents
of the project of partition, Exh. A, and that she gave her conformity thereto. I refer to the
following documents:

1) Exh. 9 — Certified true copy of OCT No. 19520 covering Lot 1154 of the Tacloban
Cadastral Survey in which the deceased Francisco Reyes holds a "1/4 share" (Exh. 9-a).
On tills certificate of title the Order dated November 11, 1963, (Exh. U) approving the
project of partition was duly entered and registered on November 26, 1963 (Exh. 9-D);

2) Exh. 7 — Certified copy of a deed of absolute sale executed by Bernardita Reyes

Macariola on October 22, 1963, conveying to Dr. Hector Decena the one-fourth share of
the late Francisco Reyes-Diaz in Lot 1154. In this deed of sale the vendee stated that she
was the absolute owner of said one-fourth share, the same having been adjudicated to
her as her share in the estate of her father Francisco Reyes Diaz as per decision of the
Court of First Instance of Leyte under case No. 3010 (Exh. 7-A). The deed of sale was
duly registered and annotated at the back of OCT 19520 on December 3, 1963 (see Exh.
9-e).

In connection with the abovementioned documents it is to be noted that in the project of

partition dated October 16, 1963, which was approved by respondent on October 23,
1963, followed by an amending Order on November 11, 1963, Lot 1154 or rather 1/4
thereof was adjudicated to Mrs. Macariola. It is this 1/4 share in Lot 1154 which
complainant sold to Dr. Decena on October 22, 1963, several days after the preparation
of the project of partition.

Counsel for complainant stresses the view, however, that the latter sold her one-fourth
share in Lot 1154 by virtue of the decision in Civil Case 3010 and not because of the
 project of partition, Exh. A. Such contention is absurd because from the decision, Exh. C,
it is clear that one-half of one- fourth of Lot 1154 belonged to the estate of Francisco
Reyes Diaz while the other half of said one-fourth was the share of complainant's mother,
Felisa Espiras; in other words, the decision did not adjudicate the whole of the one-fourth
of Lot 1154 to the herein complainant (see Exhs. C-3 & C-4). Complainant became the
owner of the entire one-fourth of Lot 1154 only by means of the project of partition, Exh.
A. Therefore, if Mrs. Macariola sold Lot 1154 on October 22, 1963, it was for no other
reason than that she was wen aware of the distribution of the properties of her deceased
father as per Exhs. A and B. It is also significant at this point to state that Mrs. Macariola
admitted during the cross-examination that she went to Tacloban City in connection with
the sale of Lot 1154 to Dr. Decena (tsn p. 92, November 28, 1968) from which we can
deduce that she could not have been kept ignorant of the proceedings in civil case 3010
relative to the project of partition.

Complainant also assails the project of partition because according to her the properties
adjudicated to her were insignificant lots and the least valuable. Complainant, however,
did not present any direct and positive evidence to prove the alleged gross inequalities in
the choice and distribution of the real properties when she could have easily done so by
presenting evidence on the area, location, kind, the assessed and market value of said
properties. Without such evidence there is nothing in the record to show that there were
inequalities in the distribution of the properties of complainant's father (pp. 386389, rec.).

Finally, while it is. true that respondent Judge did not violate paragraph 5, Article 1491 of the New Civil
Code in acquiring by purchase a portion of Lot 1184-E which was in litigation in his court, it was, however,
improper for him to have acquired the same. He should be reminded of Canon 3 of the Canons of Judicial
Ethics which requires that: "A judge's official conduct should be free from the appearance of impropriety,
and his personal behavior, not only upon the bench and in the performance of judicial duties, but also in
his everyday life, should be beyond reproach." And as aptly observed by the Investigating Justice: "... it
was unwise and indiscreet on the part of respondent to have purchased or acquired a portion of a piece
of property that was or had been in litigation in his court and caused it to be transferred to a corporation of
which he and his wife were ranking officers at the time of such transfer. One who occupies an exalted
position in the judiciary has the duty and responsibility of maintaining the faith and trust of the citizenry in
the courts of justice, so that not only must he be truly honest and just, but his actuations must be such as
not give cause for doubt and mistrust in the uprightness of his administration of justice. In this particular
case of respondent, he cannot deny that the transactions over Lot 1184-E are damaging and render his
actuations open to suspicion and distrust. Even if respondent honestly believed that Lot 1184-E was no
longer in litigation in his court and that he was purchasing it from a third person and not from the parties
to the litigation, he should nonetheless have refrained from buying it for himself and transferring it to a
corporation in which he and his wife were financially involved, to avoid possible suspicion that his
acquisition was related in one way or another to his official actuations in civil case 3010. The conduct of
respondent gave cause for the litigants in civil case 3010, the lawyers practising in his court, and the
public in general to doubt the honesty and fairness of his actuations and the integrity of our courts of
justice" (pp. 395396, rec.).

II

With respect to the second cause of action, the complainant alleged that respondent Judge violated
paragraphs 1 and 5, Article 14 of the Code of Commerce when he associated himself with the Traders
Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, said corporation having
been organized to engage in business. Said Article provides that:

Article 14 — The following cannot engage in commerce, either in person or by proxy, nor
can they hold any office or have any direct, administrative, or financial intervention in
commercial or industrial companies within the limits of the districts, provinces, or towns in
which they discharge their duties:
 1. Justices of the Supreme Court, judges and officials of the department of public
prosecution in active service. This provision shall not be applicable to mayors, municipal
judges, and municipal prosecuting attorneys nor to those who by chance are temporarily
discharging the functions of judge or prosecuting attorney.

xxx xxx xxx

5. Those who by virtue of laws or special provisions may not engage in commerce in a
determinate territory.

It is Our considered view that although the aforestated provision is incorporated in the Code of Commerce
which is part of the commercial laws of the Philippines, it, however, partakes of the nature of a political
law as it regulates the relationship between the government and certain public officers and employees,
like justices and judges.

Political Law has been defined as that branch of public law which deals with the organization and
operation of the governmental organs of the State and define the relations of the state with the inhabitants
of its territory (People vs. Perfecto, 43 Phil. 887, 897 [1922]). It may be recalled that political law
embraces constitutional law, law of public corporations, administrative law including the law on public
officers and elections. Specifically, Article 14 of the Code of Commerce partakes more of the nature of an
administrative law because it regulates the conduct of certain public officers and employees with respect
to engaging in business: hence, political in essence.

It is significant to note that the present Code of Commerce is the Spanish Code of Commerce of 1885,
with some modifications made by the "Commission de Codificacion de las Provincias de Ultramar," which
was extended to the Philippines by the Royal Decree of August 6, 1888, and took effect as law in this
jurisdiction on December 1, 1888.

Upon the transfer of sovereignty from Spain to the United States and later on from the United States to
the Republic of the Philippines, Article 14 of this Code of Commerce must be deemed to have been
abrogated because where there is change of sovereignty, the political laws of the former sovereign,
whether compatible or not with those of the new sovereign, are automatically abrogated, unless they are
expressly re-enacted by affirmative act of the new sovereign.

Thus, We held in Roa vs. Collector of Customs (23 Phil. 315, 330, 311 [1912]) that:

By well-settled public law, upon the cession of territory by one nation to another, either
following a conquest or otherwise, ... those laws which are political in their nature and
pertain to the prerogatives of the former government immediately cease upon the transfer
of sovereignty. (Opinion, Atty. Gen., July 10, 1899).

While municipal laws of the newly acquired territory not in conflict with the, laws of the
new sovereign continue in force without the express assent or affirmative act of the
conqueror, the political laws do not. (Halleck's Int. Law, chap. 34, par. 14). However, such
political laws of the prior sovereignty as are not in conflict with the constitution or
institutions of the new sovereign, may be continued in force if the conqueror shall so
declare by affirmative act of the commander-in-chief during the war, or by Congress in
time of peace. (Ely's Administrator vs. United States, 171 U.S. 220, 43 L. Ed. 142). In the
case of American and Ocean Ins. Cos. vs. 356 Bales of Cotton (1 Pet. [26 U.S.] 511, 542,
7 L. Ed. 242), Chief Justice Marshall said:

On such transfer (by cession) of territory, it has never been held that the
relations of the inhabitants with each other undergo any change. Their
relations with their former sovereign are dissolved, and new relations are
 created between them and the government which has acquired their
territory. The same act which transfers their country, transfers the
allegiance of those who remain in it; and the law which may be
denominated political, is necessarily changed, although that which
regulates the intercourse and general conduct of individuals, remains in
force, until altered by the newly- created power of the State.

Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated that: "It is a general principle
of the public law that on acquisition of territory the previous political relations of the ceded region are
totally abrogated. "

There appears no enabling or affirmative act that continued the effectivity of the aforestated provision of
the Code of Commerce after the change of sovereignty from Spain to the United States and then to the
Republic of the Philippines. Consequently, Article 14 of the Code of Commerce has no legal and binding
effect and cannot apply to the respondent, then Judge of the Court of First Instance, now Associate
Justice of the Court of Appeals.

It is also argued by complainant herein that respondent Judge violated paragraph H, Section 3 of
Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which provides that:

Sec. 3. Corrupt practices of public officers. — In addition to acts or omissions of public

officers already penalized by existing law, the following shall constitute corrupt practices
of any public officer and are hereby declared to be unlawful:

xxx xxx xxx

(h) Directly or indirectly having financial or pecuniary interest in any

business, contract or transaction in connection with which he intervenes
or takes part in his official capacity, or in which he is prohibited by the
Constitution or by any Iaw from having any interest.

Respondent Judge cannot be held liable under the aforestated paragraph because there is no showing
that respondent participated or intervened in his official capacity in the business or transactions of the
Traders Manufacturing and Fishing Industries, Inc. In the case at bar, the business of the corporation in
which respondent participated has obviously no relation or connection with his judicial office. The
business of said corporation is not that kind where respondent intervenes or takes part in his capacity as
Judge of the Court of First Instance. As was held in one case involving the application of Article 216 of the
Revised Penal Code which has a similar prohibition on public officers against directly or indirectly
becoming interested in any contract or business in which it is his official duty to intervene, "(I)t is not
enough to be a public official to be subject to this crime; it is necessary that by reason of his office, he has
to intervene in said contracts or transactions; and, hence, the official who intervenes in contracts or
transactions which have no relation to his office cannot commit this crime.' (People vs. Meneses, C.A. 40
O.G. 11th Supp. 134, cited by Justice Ramon C. Aquino; Revised Penal Code, p. 1174, Vol. 11 [1976]).

It does not appear also from the records that the aforesaid corporation gained any undue advantage in its
business operations by reason of respondent's financial involvement in it, or that the corporation benefited
in one way or another in any case filed by or against it in court. It is undisputed that there was no case
filed in the different branches of the Court of First Instance of Leyte in which the corporation was either
party plaintiff or defendant except Civil Case No. 4234 entitled "Bernardita R. Macariola, plaintiff, versus
Sinforosa O. Bales, et al.," wherein the complainant herein sought to recover Lot 1184-E from the
aforesaid corporation. It must be noted, however, that Civil Case No. 4234 was filed only on November 9
or 11, 1968 and decided on November 2, 1970 by CFI Judge Jose D. Nepomuceno when respondent
Judge was no longer connected with the corporation, having disposed of his interest therein on January
31, 1967.
Furthermore, respondent is not liable under the same paragraph because there is no provision in both the
1935 and 1973 Constitutions of the Philippines, nor is there an existing law expressly prohibiting
members of the Judiciary from engaging or having interest in any lawful business.

It may be pointed out that Republic Act No. 296, as amended, also known as the Judiciary Act of 1948,
does not contain any prohibition to that effect. As a matter of fact, under Section 77 of said law, municipal
judges may engage in teaching or other vocation not involving the practice of law after office hours but
with the permission of the district judge concerned.

Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging in commerce is, as
heretofore stated, deemed abrogated automatically upon the transfer of sovereignty from Spain to
America, because it is political in nature.

Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil Code against the purchase by
judges of a property in litigation before the court within whose jurisdiction they perform their duties, cannot
apply to respondent Judge because the sale of the lot in question to him took place after the finality of his
decision in Civil Case No. 3010 as well as his two orders approving the project of partition; hence, the
property was no longer subject of litigation.

In addition, although Section 12, Rule XVIII of the Civil Service Rules made pursuant to the Civil Service
Act of 1959 prohibits an officer or employee in the civil service from engaging in any private business,
vocation, or profession or be connected with any commercial, credit, agricultural or industrial undertaking
without a written permission from the head of department, the same, however, may not fall within the
purview of paragraph h, Section 3 of the Anti-Graft and Corrupt Practices Act because the last portion of
said paragraph speaks of a prohibition by the Constitution or law on any public officer from having any
interest in any business and not by a mere administrative rule or regulation. Thus, a violation of the
aforesaid rule by any officer or employee in the civil service, that is, engaging in private business without
a written permission from the Department Head may not constitute graft and corrupt practice as defined
by law.

On the contention of complainant that respondent Judge violated Section 12, Rule XVIII of the Civil
Service Rules, We hold that the Civil Service Act of 1959 (R.A. No. 2260) and the Civil Service Rules
promulgated thereunder, particularly Section 12 of Rule XVIII, do not apply to the members of the
Judiciary. Under said Section 12: "No officer or employee shall engage directly in any private business,
vocation, or profession or be connected with any commercial, credit, agricultural or industrial undertaking
without a written permission from the Head of Department ..."

It must be emphasized at the outset that respondent, being a member of the Judiciary, is covered by
Republic Act No. 296, as amended, otherwise known as the Judiciary Act of 1948 and by Section 7,
Article X, 1973 Constitution.

Under Section 67 of said law, the power to remove or dismiss judges was then vested in the President of
the Philippines, not in the Commissioner of Civil Service, and only on two grounds, namely, serious
misconduct and inefficiency, and upon the recommendation of the Supreme Court, which alone is
authorized, upon its own motion, or upon information of the Secretary (now Minister) of Justice to conduct
the corresponding investigation. Clearly, the aforesaid section defines the grounds and prescribes the
special procedure for the discipline of judges.

And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the Supreme Court can discipline
judges of inferior courts as well as other personnel of the Judiciary.

It is true that under Section 33 of the Civil Service Act of 1959: "The Commissioner may, for ... violation of
the existing Civil Service Law and rules or of reasonable office regulations, or in the interest of the
service, remove any subordinate officer or employee from the service, demote him in rank, suspend him
for not more than one year without pay or fine him in an amount not exceeding six months' salary." Thus,
a violation of Section 12 of Rule XVIII is a ground for disciplinary action against civil service officers and
employees.

However, judges cannot be considered as subordinate civil service officers or employees subject to the
disciplinary authority of the Commissioner of Civil Service; for, certainly, the Commissioner is not the
head of the Judicial Department to which they belong. The Revised Administrative Code (Section 89) and
the Civil Service Law itself state that the Chief Justice is the department head of the Supreme Court (Sec.
20, R.A. No. 2260) [1959]); and under the 1973 Constitution, the Judiciary is the only other or second
branch of the government (Sec. 1, Art. X, 1973 Constitution). Besides, a violation of Section 12, Rule
XVIII cannot be considered as a ground for disciplinary action against judges because to recognize the
same as applicable to them, would be adding another ground for the discipline of judges and, as
aforestated, Section 67 of the Judiciary Act recognizes only two grounds for their removal, namely,
serious misconduct and inefficiency.

Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the Commissioner of Civil Service who
has original and exclusive jurisdiction "(T)o decide, within one hundred twenty days, after submission to it,
all administrative cases against permanent officers and employees in the competitive service, and, except
as provided by law, to have final authority to pass upon their removal, separation, and suspension and
upon all matters relating to the conduct, discipline, and efficiency of such officers and employees; and
prescribe standards, guidelines and regulations governing the administration of discipline" (emphasis
supplied). There is no question that a judge belong to the non-competitive or unclassified service of the
government as a Presidential appointee and is therefore not covered by the aforesaid provision. WE have
already ruled that "... in interpreting Section 16(i) of Republic Act No. 2260, we emphasized that only
permanent officers and employees who belong to the classified service come under the exclusive
jurisdiction of the Commissioner of Civil Service" (Villaluz vs. Zaldivar, 15 SCRA 710,713 [1965], Ang-
Angco vs. Castillo, 9 SCRA 619 [1963]).

Although the actuation of respondent Judge in engaging in private business by joining the Traders
Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, is not violative of the
provissions of Article 14 of the Code of Commerce and Section 3(h) of the Anti-Graft and Corrupt
Practices Act as well as Section 12, Rule XVIII of the Civil Service Rules promulgated pursuant to the
Civil Service Act of 1959, the impropriety of the same is clearly unquestionable because Canon 25 of the
Canons of Judicial Ethics expressly declares that:

A judge should abstain from making personal investments in enterprises which are apt to
be involved in litigation in his court; and, after his accession to the bench, he should not
retain such investments previously made, longer than a period sufficient to enable him to
dispose of them without serious loss. It is desirable that he should, so far as reasonably
possible, refrain from all relations which would normally tend to arouse the suspicion that
such relations warp or bias his judgment, or prevent his impartial attitude of mind in the
administration of his judicial duties. ...

WE are not, however, unmindful of the fact that respondent Judge and his wife had withdrawn on January
31, 1967 from the aforesaid corporation and sold their respective shares to third parties, and it appears
also that the aforesaid corporation did not in anyway benefit in any case filed by or against it in court as
there was no case filed in the different branches of the Court of First Instance of Leyte from the time of
the drafting of the Articles of Incorporation of the corporation on March 12, 1966, up to its incorporation on
January 9, 1967, and the eventual withdrawal of respondent on January 31, 1967 from said corporation.
Such disposal or sale by respondent and his wife of their shares in the corporation only 22 days after the
incorporation of the corporation, indicates that respondent realized that early that their interest in the
corporation contravenes the aforesaid Canon 25. Respondent Judge and his wife therefore deserve the
commendation for their immediate withdrawal from the firm after its incorporation and before it became
involved in any court litigation
III

With respect to the third and fourth causes of action, complainant alleged that respondent was guilty of
coddling an impostor and acted in disregard of judicial decorum, and that there was culpable defiance of
the law and utter disregard for ethics. WE agree, however, with the recommendation of the Investigating
Justice that respondent Judge be exonerated because the aforesaid causes of action are groundless, and
WE quote the pertinent portion of her report which reads as follows:

The basis for complainant's third cause of action is the claim that respondent associated
and closely fraternized with Dominador Arigpa Tan who openly and publicly advertised
himself as a practising attorney (see Exhs. I, I-1 and J) when in truth and in fact said
Dominador Arigpa Tan does not appear in the Roll of Attorneys and is not a member of
the Philippine Bar as certified to in Exh. K.

The "respondent denies knowing that Dominador Arigpa Tan was an "impostor" and
claims that all the time he believed that the latter was a bona fide member of the bar. I
see no reason for disbelieving this assertion of respondent. It has been shown by
complainant that Dominador Arigpa Tan represented himself publicly as an attorney-at-
law to the extent of putting up a signboard with his name and the words "Attorney-at Law"
(Exh. I and 1- 1) to indicate his office, and it was but natural for respondent and any
person for that matter to have accepted that statement on its face value. "Now with
respect to the allegation of complainant that respondent is guilty of fraternizing with
Dominador Arigpa Tan to the extent of permitting his wife to be a godmother of Mr. Tan's
child at baptism (Exh. M & M-1), that fact even if true did not render respondent guilty of
violating any canon of judicial ethics as long as his friendly relations with Dominador A.
Tan and family did not influence his official actuations as a judge where said persons
were concerned. There is no tangible convincing proof that herein respondent gave any
undue privileges in his court to Dominador Arigpa Tan or that the latter benefitted in his
practice of law from his personal relations with respondent, or that he used his influence,
if he had any, on the Judges of the other branches of the Court to favor said Dominador
Tan.

Of course it is highly desirable for a member of the judiciary to refrain as much as

possible from maintaining close friendly relations with practising attorneys and litigants in
his court so as to avoid suspicion 'that his social or business relations or friendship
constitute an element in determining his judicial course" (par. 30, Canons of Judicial
Ethics), but if a Judge does have social relations, that in itself would not constitute a
ground for disciplinary action unless it be clearly shown that his social relations be
clouded his official actuations with bias and partiality in favor of his friends (pp. 403-405,
rec.).

In conclusion, while respondent Judge Asuncion, now Associate Justice of the Court of Appeals, did not
violate any law in acquiring by purchase a parcel of land which was in litigation in his court and in
engaging in business by joining a private corporation during his incumbency as judge of the Court of First
Instance of Leyte, he should be reminded to be more discreet in his private and business activities,
because his conduct as a member of the Judiciary must not only be characterized with propriety but must
always be above suspicion.

WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF APPEALS IS HEREBY

REMINDED TO BE MORE DISCREET IN HIS PRIVATE AND BUSINESS ACTIVITIES.

SO ORDERED.

Teehankee, Guerrero, De Castro, Melencio-Herrera, Plana, Vasquez, Relova and Gutierrez, JJ., concur.
Concepcion Jr., J., is on leave.

Fernando, C.J., Abad Santos and Esolin JJ., took no part.

Separate Opinions

AQUINO, J., concurring and dissenting:

I vote for respondent's unqualified exoneration.

BARREDO, J., concurring and dissenting:

I vote with Justice Aquino.

Separate Opinions

AQUINO, J., concurring and dissenting:

I vote for respondent's unqualified exoneration.

BARREDO, J., concurring and dissenting:

I vote with Justice Aquino.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 78059 August 31, 1987

ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C. TOLENTINO,

ROGELIO J. DE LA ROSA and JOSE M. RESURRECCION, petitioners,
vs.
HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the Province of Rizal, HON.
ROMEO C. DE LEON, in his capacity as OIC Mayor of the Municipality of Taytay, Rizal,
FLORENTINO G. MAGNO, REMIGIO M. TIGAS, RICARDO Z. LACANIENTA, TEODORO V. MEDINA,
ROSENDO S. PAZ, and TERESITA L. TOLENTINO, respondents.

MELENCIO-HERRERA, J.:

An original action for Prohibition instituted by petitioners seeking to enjoin respondents from replacing
them from their respective positions as Barangay Captain and Barangay Councilmen of Barangay
Dolores, Municipality of Taytay, Province of Rizal.

As required by the Court, respondents submitted their Comment on the Petition, and petitioner's their
Reply to respondents' Comment.

In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was elected Barangay
Captain and the other petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de la
Rosa and Jose M. Resurreccion, as Barangay Councilmen of Barangay Dolores, Taytay, Rizal under
Batas Pambansa Blg. 222, otherwise known as the Barangay Election Act of 1982.

On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedated December 1,

1986 but signed by respondent OIC Governor Benjamin Esguerra on February 8, 1987 designating
respondent Florentino G. Magno as Barangay Captain of Barangay Dolores, Taytay, Rizal. The
designation made by the OIC Governor was "by authority of the Minister of Local Government."

Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated December 1,
1986 designating respondents Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro V. Medina, Roberto S.
Paz and Teresita L. Tolentino as members of the Barangay Council of the same Barangay and
Municipality.

That the Memoranda had been antedated is evidenced by the Affidavit of respondent OIC Governor, the
pertinent portions of which read:

xxx xxx xxx

That I am the OIC Governor of Rizal having been appointed as such on March 20, 1986;

That as being OIC Governor of the Province of Rizal and in the performance of my duties
thereof, I among others, have signed as I did sign the unnumbered memorandum
ordering the replacement of all the barangay officials of all the barangay(s) in the
Municipality of Taytay, Rizal;
 That the above cited memorandum dated December 1, 1986 was signed by me
personally on February 8,1987;

That said memorandum was further deciminated (sic) to all concerned the following day,
February 9. 1987.

FURTHER AFFIANT SAYETH NONE.

Pasig, Metro Manila, March 23, 1987.

Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be declared null and
void and that respondents be prohibited from taking over their positions of Barangay Captain and
Barangay Councilmen, respectively. Petitioners maintain that pursuant to Section 3 of the Barangay
Election Act of 1982 (BP Blg. 222), their terms of office "shall be six (6) years which shall commence on
June 7, 1982 and shall continue until their successors shall have elected and shall have qualified," or up
to June 7, 1988. It is also their position that with the ratification of the 1987 Constitution, respondent OIC
Governor no longer has the authority to replace them and to designate their successors.

On the other hand, respondents rely on Section 2, Article III of the Provisional Constitution, promulgated
on March 25, 1986, which provided:

SECTION 2. All elective and appointive officials and employees under the 1973
Constitution shall continue in office until otherwise provided by proclamation or executive
order or upon the designation or appointment and qualification of their successors, if such
appointment is made within a period of one year from February 25,1986.

By reason of the foregoing provision, respondents contend that the terms of office of elective and
appointive officials were abolished and that petitioners continued in office by virtue of the aforequoted
provision and not because their term of six years had not yet expired; and that the provision in the
Barangay Election Act fixing the term of office of Barangay officials to six (6) years must be deemed to
have been repealed for being inconsistent with the aforequoted provision of the Provisional Constitution.

Examining the said provision, there should be no question that petitioners, as elective officials under the
1973 Constitution, may continue in office but should vacate their positions upon the occurrence of any of
the events mentioned. 1

Since the promulgation of the Provisional Constitution, there has been no proclamation or executive order
terminating the term of elective Barangay officials. Thus, the issue for resolution is whether or not the
designation of respondents to replace petitioners was validly made during the one-year period which
ended on February 25, 1987.

Considering the candid Affidavit of respondent OIC Governor, we hold that February 8, 1977, should be
considered as the effective date of replacement and not December 1,1986 to which it was ante dated, in
keeping with the dictates of justice.

But while February 8, 1987 is ostensibly still within the one-year deadline, the aforequoted provision in the
Provisional Constitution must be deemed to have been overtaken by Section 27, Article XVIII of the 1987
Constitution reading.

SECTION 27. This Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite held for the purpose and shall supersede all
previous Constitutions.
The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore, the
Provisional Constitution must be deemed to have been superseded. Having become inoperative,
respondent OIC Governor could no longer rely on Section 2, Article III, thereof to designate respondents
to the elective positions occupied by petitioners.

Petitioners must now be held to have acquired security of tenure specially considering that the Barangay
Election Act of 1982 declares it "a policy of the State to guarantee and promote the autonomy of the
barangays to ensure their fullest development as self-reliant communities. Similarly, the 1987
2

Constitution ensures the autonomy of local governments and of political subdivisions of which the
barangays form a part, and limits the President's power to "general supervision" over local
3

governments. Relevantly, Section 8, Article X of the same 1987 Constitution further provides in part:
4

Sec. 8. The term of office of elective local officials, except barangay officials, which shall
be determined by law, shall be three years ...

Until the term of office of barangay officials has been determined by law, therefore, the term of office of
six (6) years provided for in the Barangay Election Act of 1982 should still govern.
5

Contrary to the stand of respondents, we find nothing inconsistent between the term of six (6) years for
elective Barangay officials and the 1987 Constitution, and the same should, therefore, be considered as
still operative, pursuant to Section 3, Article XVIII of the 1987 Constitution, reading:

Sec. 3. All existing laws, decrees, executive orders, proclamations letters of instructions,
and other executive issuances not inconsistent, with this Constitution shall remain
operative until amended, repealed or revoked.

WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February 8, 1987
designating respondents as the Barangay Captain and Barangay Councilmen, respectively, of Barangay
Dolores, Taytay, Rizal, are both declared to be of no legal force and effect; and (2) the Writ of Prohibition
is granted enjoining respondents perpetually from proceeding with the ouster/take-over of petitioners'
positions subject of this Petition. Without costs.

SO ORDERED.

Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes, JJ., concur.

Separate Opinions

TEEHANKEE, CJ., concurring:

The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect on February
2, 1987, the date that the plebiscite for its ratification was held or whether it took effect on February 11,
1987, the date its ratification was proclaimed per Proclamation No. 58 of the President of the Philippines,
Corazon C. Aquino.
The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the provision
of Article XVIII, Section 27 of the 1987 Constitution that it "shall take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite held for the purpose," the 1987 Constitution took
effect on February 2, 1987, the date of its ratification in the plebiscite held on that same date.

The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its
ratification shall have been ascertained and not at the time the people cast their votes to approve or reject
it." This view was actually proposed at the Constitutional Commission deliberations, but was withdrawn by
its proponent in the face of the "overwhelming" contrary view that the Constitution "will be effective on the
very day of the plebiscite."

The record of the proceedings and debates of the Constitutional Commission fully supports the Court's
judgment. It shows that the clear, unequivocal and express intent of the Constitutional Conunission in
unanimously approving (by thirty-five votes in favor and none against) the aforequoted Section 27 of
Transitory Article XVIII of the 1987 Constitution was that "the act of ratification is the act of voting by the
people. So that is the date of the ratification" and that "the canvass thereafter [of the votes] is merely the
mathematical confirmation of what was done during the date of the plebiscite and the proclamation of the
President is merely the official confirmatory declaration of an act which was actually done by the Filipino
people in adopting the Constitution when they cast their votes on the date of the plebiscite."

The record of the deliberations and the voting is reproduced hereinbelow: 1

MR. MAAMBONG. Madam President, may we now put to a vote the original formulation
of the committee as indicated in Section 12, unless there are other commissioners who
would like to present amendments.

MR. DAVIDE. Madam President.

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. May I propose the following amendments.

On line 2, delete the words "its ratification" and in lieu thereof insert the following-. "THE
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And on the
last line, after "constitutions," add the following: "AND THEIR AMENDMENTS."

MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is going to

propose an additional sentence, the committee would suggest that we take up first his
amendment to the first sentence as originally formulated. We are now ready to comment
on that proposed amendment.

The proposed amendment would be to delete the words "its ratification and in lieu thereof
insert the words "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN
RATIFIED." And the second amendment would be: After the word "constitutions," add the
words" AND THEIR AMENDMENTS,"

The committee accepts the first proposed amendment. However, we regret that we
cannot accept the second proposed amendment after the word "constitutions" because
the committee feels that when we talk of all previous Constitutions, necessarily it includes
"AND THEIR AMENDMENTS."
MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam
President, may I request that I be allowed to read the second amendment so the
Commission would be able to appreciate the change in the first.

MR. MAAMBONG. Yes, Madam President, we can now do that.

MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE MADE
WITHIN FIVE DAYS FOLLOWING THE COMPLETION OF THE CANVASS BY THE
COMMISSION ON ELECTIONS OF THE RESULTS OF SUCH PLEBISCITE."

MR. MAAMBONG. Madam President, after conferring with our chairman, the committee
feels that the second proposed amendment in the form of a new sentence would not be
exactly necessary and the committee feels that it would be too much for us to impose a
time frame on the President to make the proclamation. As we would recall, Madam
President, in the approved Article on the Executive, there is a provision which says that
the President shall make certain that all laws shall be faithfully complied. When we
approve this first sentence, and it says that there will be a proclamation by the President
that the Constitution has been ratified, the President will naturally comply with the law in
accordance with the provisions in the Article on the Executive which we have cited. It
would be too much to impose on the President a time frame within which she will make
that declaration. It would be assumed that the President would immediately do that after
the results shall have been canvassed by the COMELEC.

Therefore, the committee regrets that it cannot accept the second sentence which the
Gentleman is proposing, Madam President.

MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will be
an immediate proclamation of the results by the President.

MR. MAAMBONG. With that understanding, Madam President.

MR. DAVIDE. I will not insist on the second sentence.

FR. BERNAS. Madam President.

THE PRESIDENT. Commissioner Bernas is recognized.

FR. BERNAS. I would ask the committee to reconsider its acceptance of the amendment
which makes the effectivity of the new Constitution dependent upon the proclamation of
the President. The effectivity of the Constitution should commence on the date of the
ratification, not on the date of the proclamation of the President. What is confusing, I
think, is what happened in 1976 when the amendments of 1976 were ratified. In that
particular case, the reason the amendments of 1976 were effective upon the
proclamation of the President was that the draft presented to the people said that the
amendment will be effective upon the proclamation made by the President. I have a
suspicion that was put in there precisely to give the President some kind of leeway on
whether to announce the ratification or not. Therefore, we should not make this
dependent on the action of the President since this will be a manifestation of the act of
the people to be done under the supervision of the COMELEC and it should be the
COMELEC who should make the announcement that, in fact, the votes show that the
Constitution was ratified and there should be no need to wait for any proclamation on the
part of the President.
MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions?

FR. BERNAS. Willingly, Madam President.

MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly
when the Constitution is supposed to be ratified.

FR. BERNAS. I would say that the ratification of the Constitution is on the date the votes
were supposed to have been cast.

MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President. We
present the Constitution to a plebiscite, the people exercise their right to vote, then the
votes are canvassed by the Commission on Elections. If we delete the suggested
amendment which says: "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS
BEEN RATIFIED," what would be, in clear terms, the date when the Constitution is
supposed to be ratified or not ratified, as the case may be?

FR. BERNAS. The date would be the casting of the ballots. if the President were to say
that the plebiscite would be held, for instance, on January 19, 1987, then the date for the
effectivity of the new Constitution would be January 19, 1987.

MR. MAAMBONG. In other words, it would not depend on the actual issuance of the
results by the Commission on Elections which will be doing the canvass? That is
immaterial Madam President

FR. BERNAS. It would not, Madam President, because "ratification" is the act of saying
"yes" is done when one casts his ballot.

MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President?

FR. BERNAS. Yes, Madam President.

MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to know
from the proponent, Commissioner Davide, if he is insisting on his amendment.

MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot

subscribe to the view of Commissioner Bernas, that the date of the ratification is
reckoned from the date of the casting of the ballots. That cannot be the date of reckoning
because it is a plebiscite all over the country. We do not split the moment of casting by
each of the voters. Actually and technically speaking, it would be all right if it would be
upon the announcement of the results of the canvass conducted by the COMELEC or the
results of the plebiscite held all over the country. But it is necessary that there be a body
which will make the formal announcement of the results of the plebiscite. So it is either
the President or the COMELEC itself upon the completion of the canvass of the results of
the plebiscite, and I opted for the President.

xxx xxx xxx

MR. NOLLEDO. Madam President.

THE PRESIDENT. Commissioner Nolledo is recognized.

MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner
Davide. I support the stand of Commissioner Bernas because it is really the date of the
casting of the "yes" votes that is the date of the ratification of the Constitution The
announcement merely confirms the ratification even if the results are released two or
three days after. I think it is a fundamental principle in political law, even in civil law,
because an announcement is a mere confirmation The act of ratification is the act of
voting by the people. So that is the date of the ratification. If there should be any need for
presidential proclamation, that proclamation will merely confirm the act of ratification.

Thank you, Madam President.

THE PRESIDENT. Does Commissioner Regalado want to contribute?

MR. REGALADO. Madam President, I was precisely going to state the same support for
Commissioner Bernas, because the canvass thereafter is merely the mathematical
confirmation of what was done during the date of the plebiscite and the proclamation of
the President is merely the official confirmatory declaration of an act which was actually
done by the Filipino people in adopting the Constitution when they cast their votes on the
date of the plebiscite.

MR. LERUM. Madam President, may I be recognized.

THE PRESIDENT. Commissioner Lerum is recognized.

MR. LERUM. I am in favor of the Davide amendment because we have to fix a date for
the effectivity of the Constitution. Suppose the announcement is delayed by, say, 10 days
or a month, what happens to the obligations and rights that accrue upon the approval of
the Constitution? So I think we must have a definite date. I am, therefore, in favor of the
Davide amendment.

MR. MAAMBONG. Madam President.

THE PRESIDENT. Commissioner Maambong is recognized.

MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity for
the Commission on Elections to declare the results of the canvass?

FR. BERNAS. There would be because it is the Commission on Elections which makes
the official announcement of the results.

MR. MAAMBONG. My next question which is the final one is: After the Commision on
Elections has declared the results of the canvass, will there be a necessity for the
President to make a proclamation of the results of the canvass as submitted by the
Commission on Elections?

FR. BERNAS. I would say there would be no necessity, Madam President.

MR. MAAMBONG. In other words, the President may or may not make the proclamation
whether the Constitution has been ratified or not.

FR. BERNAS. I would say that the proclamation made by the President would be
immaterial because under the law, the administration of all election laws is under an
independent Commission on Elections. It is the Commission on Elections which
announces the results.

MR. MAAMBONG. But nevertheless, the President may make the proclamation.

FR. BERNAS. Yes, the President may. And if what he says contradicts what the
Commission on Elections says, it would have no effect. I would only add that when we
say that the date of effectivity is on the day of the casting of the votes, what we mean is
that the Constitution takes effect on every single minute and every single second of that
day, because the Civil Code says a day has 24 hours.So that even if the votes are cast in
the morning, the Constitution is really effective from the previous midnight.

So that when we adopted the new rule on citizenship, the children of Filipino mothers or
anybody born on the date of effectivity of the 1973 Constitution, which is January 17,
1973, are natural-born citizens, no matter what time of day or night.

MR. MAAMBONG. Could we, therefore, safely say that whatever date is the publication
of the results of the canvass by the COMELEC retroacts to the date of the plebiscite?

FR. BERNAS. Yes, Madam President.

MR. MAAMBONG. I thank the Commissioner.

MR. GUINGONA. Madam President.

THE PRESIDENT. Commissioner Guingona is recognized.

MR. GUINGONA. Mention was made about the need for having a definite date. I think it
is precisely the proposal of Commissioner Bernas which speaks of the date (of ratification
that would have a definite date, because there would be no definite date if we depend
upon the canvassing by the COMELEC.

Thank you,

THE PRESIDENT. Commissioner Concepcion is recognized.

MR. CONCEPCION. Thank you, Madam President.

Whoever makes the announcement as to the result of the plebiscite, be it the COMELEC
or the President, would announce that a majority of the votes cast on a given date was in
favor of the Constitution. And that is the date when the Constitution takes effect, apart
from the fact that the provision on the drafting or amendment of the Constitution provides
that a constitution becomes effective upon ratification by a majority of the votes cast,
although I would not say from the very beginning of the date of election because as of
that time it is impossible to determine whether there is a majority. At the end of the day of
election or plebiscite, the determination is made as of that time-the majority of the votes
cast in a plebiscite held on such and such a date. So that is the time when the new
Constitution will be considered ratified and, therefore, effective.

THE PRESIDENT. May we now hear Vice-President Padilla.

MR. PADILLA. Madam President, I am against the proposed amendment of

Commissioner Davide and I support the view of Commissioner Bernas and the others
 because the ratification of the Constitution is on the date the people, by a majority vote,
have cast their votes in favor of the Constitution. Even in civil law, if there is a contract,
say, between an agent and a third person and that contract is confirmed or ratified by the
principal, the validity does not begin on the date of ratification but it retroacts from the
date the contract was executed.

Therefore, the date of the Constitution as ratified should retroact to the date that the
people have cast their affirmative votes in favor of the Constitution.

MR. MAAMBONG. Madam President.

THE PRESIDENT. Commissioner Maambong is recognized

MR. MAAMBONG. We will now ask once more Commissioner Davide if he is insisting on
his amendment

MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion that it
will be effective on the very day of the plebiscite, I am withdrawing my amendment on the
assumption that any of the following bodies the Office of the President or the COMELEC
will make the formal announcement of the results.

MR. RAMA. Madam President, we are now ready to vote on the original provision as
stated by the committee.

MR. MAAMBONG. The committee will read again the formulation indicated in the original
committee report as Section 12.

This Constitution shall take effect immediately upon its ratification by a majority of the
votes cast in a plebiscite called for the purpose and shall supersede all previous
Constitutions.

We ask for a vote, Madam President.

VOTING

THE PRESIDENT. As many as are in favor, please raise their hand. (Several Members
raised their hands.)

As many as are against, please raise their hand. (No Member raised his hand.)

The results show 35 votes in favor and none against; Section 12 is approved. 2

The Court next holds as a consequence of its declaration at bar that the Constitution took effect on the
date of its ratification in the plebiscite held on February 2, 1987, that: (1) the Provisional Constitution
promulgated on March 25, 1986 must be deemed to have been superseded by the 1987 Constitution on
the same date February 2, 1987 and (2) by and after said date, February 2, 1987, absent any saying
clause to the contrary in the Transitory Article of the Constitution, respondent OIC Governor could no
longer exercise the power to replace petitioners in their positions as Barangay Captain and Councilmen.
Hence, the attempted replacement of petitioners by respondent OIC Governor's designation on February
8, 1987 of their successors could no longer produce any legal force and effect. While the Provisional
Constitution provided for a one-year period expiring on March 25, 1987 within which the power of
replacement could be exercised, this period was shortened by the ratification and effectivity on February
2, 1987 of the Constitution. Had the intention of the framers of the Constitution been otherwise, they
would have so provided for in the Transitory Article, as indeed they provided for multifarious transitory
provisions in twenty six sections of Article XVIII, e.g. extension of the six-year term of the incumbent
President and Vice-President to noon of June 30, 1992 for purposes of synchronization of elections, the
continued exercise of legislative powers by the incumbent President until the convening of the first
Congress, etc.

A final note of clarification, as to the statement in the dissent that "the appointments of some seven Court
of Appeals Justices, 71 provincial fiscals and 55 city fiscals reported extended (by) the President on
February 2, 1987 . . . could be open to serious questions," in view of the provisions of Sections 8 (1) and
9, Article VIII of the Constitution which require prior endorsement thereof by the Judicial and Bar Council
created under the Constitution. It should be stated for the record that the reported date of the
appointments, February 2, 1987, is incorrect. The official records of the Court show that the appointments
of the seven Court of Appeals Justices were transmitted to this Court on February 1, 1987 and they were
all appointed on or before January 31, 1987. (Similarly, the records of the Department of Justice likewise
3

show that the appointment papers of the last batch of provincial and city fiscals signed by the President in
completion of the reorganization of the prosecution service were made on January 31, 1987 and
transmitted to the Department on February 1, 1987.) It is also a matter of record that since February 2,
1987, no appointments to the Judiciary have been extended by the President, pending the constitution of
the Judicial and Bar Council, indicating that the Chief Executive has likewise considered February 2, 1987
as the effective date of the Constitution, as now expressly declared by the Court.

CRUZ, J., concurring.

In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling effect than
the tones of thunder. She has written another persuasive opinion, and I am delighted to concur. I note
that it in effect affirms my dissents in the De la Serna, Zamora, Duquing and Bayas cases, where I
submitted that the local OICs may no longer be summarily replaced, having acquired security of tenure
under the new Constitution. Our difference is that whereas I would make that right commence on
February 25, 1987, after the deadline set by the Freedom Constitution, Justice Herrera would opt for
February 2, 1987, when the new Constitution was ratified. I yield to that better view and agree with
her ponencia completely.

SARMIENTO, J., Dissenting.

With due respect to the majority I register this dissent.

While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional Constitution
with respect to the tenure of government functionaries, as follows:

SECTION 2. All elective and appointive officials and employees under the 1973
Constitution shall continue in office until otherwise provided by proclamation or executive
order or upon the designation or appointment and qualification of their successors, if such
appointment is made within a period of one year from February 25, 1986.

was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not that
cut-off period began on February 2, 1987, the date of the plebiscite held to approve the new Charter. To
my mind the 1987 constitution took effect on February 11, 1987, the date the same was proclaimed
ratified pursuant to Proclamation No. 58 of the President of the Philippines, and not February 2, 1987,
plebiscite day.

I rely, first and foremost, on the language of the 1987 Charter itself, thus:
 Sec. 27. This Constitution shag take effect immediately upon its ratification by a majority
of the votes cast in a plebiscite held for the purpose and shall supersede all previous
Constitutions.

It is my reading of this provision that the Constitution takes effect on the date its ratification shall have
been ascertained, and not at the time the people cast their votes to approve or reject it. For it cannot be
logically said that Constitution was ratified during such a plebiscite, when the will of the people as of that
time, had not, and could not have been, vet determined.

Other than that, pragmatic considerations compel me to take the view.

I have no doubt that between February 2, and February 11, 1987 the government performed acts that
would have been valid under the Provisional Constitution but would otherwise have been void under the
1987 Charter. I recall, in particular, the appointments of some seven Court of Appeals Justices, 71
provincial fiscals, and 55 city fiscals the President reportedly extended on February 2, 1987. 1 Under Sections
8 (1) and 9, Article VIII, of the l987 Constitution, as follows:

xxx xxx xxx

Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the
Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of
Justice, and a representative of the Congress as ex oficio Members, a representative of
the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a
representative of the private sector.

xxx xxx xxx

Sec. 9. The Members of the Supreme Court and judges of lower courts shall be
appointed by the President from a list of at least three nominees prepared by the Judicial
and Bar Council for every vacancy, Such appointments need no confirmation.

xxx xxx xxx

such appointments could be open to serious questions.

Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as the
amendments thereto from the date it is proclaimed ratified.

In Magtoto v. Manguera, we held that the 1973 Constitution became in force and effect on January 17,
2

1973, the date Proclamation No. 1102, "Announcing the Ratification by the Filipino People of the
Constitution Proposed by the 1971 Constitutional Convention," was issued, although Mr. Justice, now
Chief Justice, Teehankee would push its effectivity date further to April 17, 1973, the date our decision
in Javellana v. Executive Secretary, became final. And this was so notwithstanding Section 16, Article
3

XVII, of the 1973 Constitution, thus:

SEC. 16. This Constitution shall take effect immediately upon its ratification by a majority
of the votes cast in a plebiscite called for the purpose and, except as herein provided,
shall supersede the Constitution of nineteen-hundred and thirty- five and all amendments
thereto.

On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming the
ratification of the 1976 amendments submitted in the plebiscite of October 16- 17, 1976. The
Proclamation states, inter alia, that.
By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in this
certificate as duly ratified by the Filipino people in the referendum- plebiscite held Oct. 16-17, 1976 and
are therefore effective and in full force and effect as of this date.

It shall be noted that under Amendment No. 9 of the said 1976 amendments.

These amendments shall take effect after the incumbent President shall have proclaimed
that they have been ratified by a majority of the votes cast in the referendum-plebiscite.

On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the Ratification by
the Filipino People of the Amendments of Section 7, Article X of the Constitution" (lengthening the terms
of office of judges and justices). The Proclamation provides:

[t]he above-quoted amendment has been duly ratified by a majority of the votes cast in
the plebiscite held, together with the election for local officials, on January 30, 1980, and
that said amendment is hereby declared to take effect immediately.

It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed amendment shall
take effect on the date the incumbent President/Prime Minister shall proclaim its ratification.

On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of April
7, 1981 of the Amendments to the Constitution Embodied in Batas Pambansa Blg. 122 and Declaring
Them Therefore Effective and in Full Force and Effect." The Proclamation, in declaring the said
amendments duly approved, further declared them "[e]ffective and in full force and in effect as of the date
of this Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I and 2 of the
Batasang Pambansa, Third Regular Session, Sitting as a Constituent Assembly, which parented these
amendments, the same:

. . .shall become valid as part of the Constitution when approved by a majority of the
votes cast in a plebiscite to be held pursuant to Section 2, Article XVI of the Constitution.

On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for Ratification or
Rejection, the Amendment to the Constitution of the Philippines, Proposed by the Batasang Pambansa,
Sitting as a Constituent Assembly, in its Resolutions Numbered Three, Two, and One, and to Appropriate
Funds Therefore," provides, as follows:

SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim the
result of the plebiscite using the certificates submitted to it, duly authenticated and
certified by the Board of Canvassers of each province or city.

We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of January 27,
1984, of the Amendments to the Constitution Embodied in Batasang Pambansa Resolutions Nos. 104,
105, 110, 111, 112 and 113." It states that the amendments:

....are therefore effective and in full force and effect as of the date of this Proclamation.

It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9, Batas Blg.
643), which states, that:

The proposed amendments shall take effect on the date the President of the Philippines
shall proclaim that they have been ratified by a majority of the votes cast in the plebiscite
held for the purpose, but not later than three months from the approval of the
amendments.
albeit Resolutions Nos. 105, 111, and 113 provide, that:

These amendments shall be valid as a part of the Constitution when approved by a

majority of the votes cast in an election/plebiscite at which it is submitted to the people for
their ratification pursuant to Section 2 of Article XVI of the Constitution, as amended.

That a Constitution or amendments thereto take effect upon proclamation of their ratification and not at
the time of the plebiscite is a view that is not peculiar to the Marcos era.

The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite called
pursuant to Republic Act No. 73 and the Resolution of Both Houses (of Congress) adopted on September
18, 1946, was adopted on April 9,1947. The April 9, 1947 Resolution makes no mention of a retroactive
application.

Accordingly, when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on February 11, 1987,
at Malacanang Palace:

... that the Constitution of the Republic of the Philippines adopted by the Constitutional
Commission of 1986, including the Ordinance appended thereto, has been duly ratified
by the Filipino people and is therefore effective and in full force and effect. 4

the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other time.

I submit that our ruling in Ponsica v. Ignalaga in which we declared, in passing, that the new Charter was
5

ratified on February 2, 1987, does not in any way weaken this dissent. As I stated, the remark was said in
passing-we did not resolve the case on account of a categorical holding that the 1987 Constitution came
to life on February 2, 1987. In any event, if we did, I now call for its re-examination.

I am therefore of the opinion, consistent with the views expressed above, that the challenged dismissals
done on February 8, 1987 were valid, the 1987 Constitution not being then as yet in force.

Separate Opinions

TEEHANKEE, CJ., concurring:

The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect on February
2, 1987, the date that the plebiscite for its ratification was held or whether it took effect on February 11,
1987, the date its ratification was proclaimed per Proclamation No. 58 of the President of the Philippines,
Corazon C. Aquino.

The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the provision
of Article XVIII, Section 27 of the 1987 Constitution that it "shall take effect immediately upon its
ratification by a majority of the votes cast in a plebiscite held for the purpose," the 1987 Constitution took
effect on February 2, 1987, the date of its ratification in the plebiscite held on that same date.

The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its
ratification shall have been ascertained and not at the time the people cast their votes to approve or reject
it." This view was actually proposed at the Constitutional Commission deliberations, but was withdrawn by
its proponent in the face of the "overwhelming" contrary view that the Constitution "will be effective on the
very day of the plebiscite."

The record of the proceedings and debates of the Constitutional Commission fully supports the Court's
judgment. It shows that the clear, unequivocal and express intent of the Constitutional Conunission in
unanimously approving (by thirty-five votes in favor and none against) the aforequoted Section 27 of
Transitory Article XVIII of the 1987 Constitution was that "the act of ratification is the act of voting by the
people. So that is the date of the ratification" and that "the canvass thereafter [of the votes] is merely the
mathematical confirmation of what was done during the date of the plebiscite and the proclamation of the
President is merely the official confirmatory declaration of an act which was actually done by the Filipino
people in adopting the Constitution when they cast their votes on the date of the plebiscite."

The record of the deliberations and the voting is reproduced hereinbelow: 1

MR. MAAMBONG. Madam President, may we now put to a vote the original formulation
of the committee as indicated in Section 12, unless there are other commissioners who
would like to present amendments.

MR. DAVIDE. Madam President.

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. May I propose the following amendments.

On line 2, delete the words "its ratification" and in lieu thereof insert the following-. "THE
PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And on the
last line, after "constitutions," add the following: "AND THEIR AMENDMENTS."

MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is going to

propose an additional sentence, the committee would suggest that we take up first his
amendment to the first sentence as originally formulated. We are now ready to comment
on that proposed amendment.

The proposed amendment would be to delete the words "its ratification and in lieu thereof
insert the words "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN
RATIFIED." And the second amendment would be: After the word "constitutions," add the
words" AND THEIR AMENDMENTS,"

The committee accepts the first proposed amendment. However, we regret that we
cannot accept the second proposed amendment after the word "constitutions" because
the committee feels that when we talk of all previous Constitutions, necessarily it includes
"AND THEIR AMENDMENTS."

MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam
President, may I request that I be allowed to read the second amendment so the
Commission would be able to appreciate the change in the first.

MR. MAAMBONG. Yes, Madam President, we can now do that.

MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE MADE
WITHIN FIVE DAYS FOLLOWING THE COMPLETION OF THE CANVASS BY THE
COMMISSION ON ELECTIONS OF THE RESULTS OF SUCH PLEBISCITE."
MR. MAAMBONG. Madam President, after conferring with our chairman, the committee
feels that the second proposed amendment in the form of a new sentence would not be
exactly necessary and the committee feels that it would be too much for us to impose a
time frame on the President to make the proclamation. As we would recall, Madam
President, in the approved Article on the Executive, there is a provision which says that
the President shall make certain that all laws shall be faithfully complied. When we
approve this first sentence, and it says that there will be a proclamation by the President
that the Constitution has been ratified, the President will naturally comply with the law in
accordance with the provisions in the Article on the Executive which we have cited. It
would be too much to impose on the President a time frame within which she will make
that declaration. It would be assumed that the President would immediately do that after
the results shall have been canvassed by the COMELEC.

Therefore, the committee regrets that it cannot accept the second sentence which the
Gentleman is proposing, Madam President.

MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will be
an immediate proclamation of the results by the President.

MR. MAAMBONG. With that understanding, Madam President.

MR. DAVIDE. I will not insist on the second sentence.

FR. BERNAS. Madam President.

THE PRESIDENT. Commissioner Bernas is recognized.

FR. BERNAS. I would ask the committee to reconsider its acceptance of the amendment
which makes the effectivity of the new Constitution dependent upon the proclamation of
the President. The effectivity of the Constitution should commence on the date of the
ratification, not on the date of the proclamation of the President. What is confusing, I
think, is what happened in 1976 when the amendments of 1976 were ratified. In that
particular case, the reason the amendments of 1976 were effective upon the
proclamation of the President was that the draft presented to the people said that the
amendment will be effective upon the proclamation made by the President. I have a
suspicion that was put in there precisely to give the President some kind of leeway on
whether to announce the ratification or not. Therefore, we should not make this
dependent on the action of the President since this will be a manifestation of the act of
the people to be done under the supervision of the COMELEC and it should be the
COMELEC who should make the announcement that, in fact, the votes show that the
Constitution was ratified and there should be no need to wait for any proclamation on the
part of the President.

MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions?

FR. BERNAS. Willingly, Madam President.

MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly
when the Constitution is supposed to be ratified.

FR. BERNAS. I would say that the ratification of the Constitution is on the date the votes
were supposed to have been cast.
MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President. We
present the Constitution to a plebiscite, the people exercise their right to vote, then the
votes are canvassed by the Commission on Elections. If we delete the suggested
amendment which says: "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS
BEEN RATIFIED," what would be, in clear terms, the date when the Constitution is
supposed to be ratified or not ratified, as the case may be?

FR. BERNAS. The date would be the casting of the ballots. if the President were to say
that the plebiscite would be held, for instance, on January 19, 1987, then the date for the
effectivity of the new Constitution would be January 19, 1987.

MR. MAAMBONG. In other words, it would not depend on the actual issuance of the
results by the Commission on Elections which will be doing the canvass? That is
immaterial Madam President

FR. BERNAS. It would not, Madam President, because "ratification" is the act of saying
"yes" is done when one casts his ballot.

MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President?

FR. BERNAS. Yes, Madam President.

MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to know
from the proponent, Commissioner Davide, if he is insisting on his amendment.

MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot

subscribe to the view of Commissioner Bernas, that the date of the ratification is
reckoned from the date of the casting of the ballots. That cannot be the date of reckoning
because it is a plebiscite all over the country. We do not split the moment of casting by
each of the voters. Actually and technically speaking, it would be all right if it would be
upon the announcement of the results of the canvass conducted by the COMELEC or the
results of the plebiscite held all over the country. But it is necessary that there be a body
which will make the formal announcement of the results of the plebiscite. So it is either
the President or the COMELEC itself upon the completion of the canvass of the results of
the plebiscite, and I opted for the President.

xxx xxx xxx

MR. NOLLEDO. Madam President.

THE PRESIDENT. Commissioner Nolledo is recognized.

MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner
Davide. I support the stand of Commissioner Bernas because it is really the date of the
casting of the "yes" votes that is the date of the ratification of the Constitution The
announcement merely confirms the ratification even if the results are released two or
three days after. I think it is a fundamental principle in political law, even in civil law,
because an announcement is a mere confirmation The act of ratification is the act of
voting by the people. So that is the date of the ratification. If there should be any need for
presidential proclamation, that proclamation will merely confirm the act of ratification.

Thank you, Madam President.

THE PRESIDENT. Does Commissioner Regalado want to contribute?

MR. REGALADO. Madam President, I was precisely going to state the same support for
Commissioner Bernas, because the canvass thereafter is merely the mathematical
confirmation of what was done during the date of the plebiscite and the proclamation of
the President is merely the official confirmatory declaration of an act which was actually
done by the Filipino people in adopting the Constitution when they cast their votes on the
date of the plebiscite.

MR. LERUM. Madam President, may I be recognized.

THE PRESIDENT. Commissioner Lerum is recognized.

MR. LERUM. I am in favor of the Davide amendment because we have to fix a date for
the effectivity of the Constitution. Suppose the announcement is delayed by, say, 10 days
or a month, what happens to the obligations and rights that accrue upon the approval of
the Constitution? So I think we must have a definite date. I am, therefore, in favor of the
Davide amendment.

MR. MAAMBONG. Madam President.

THE PRESIDENT. Commissioner Maambong is recognized.

MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity for
the Commission on Elections to declare the results of the canvass?

FR. BERNAS. There would be because it is the Commission on Elections which makes
the official announcement of the results.

MR. MAAMBONG. My next question which is the final one is: After the Commision on
Elections has declared the results of the canvass, will there be a necessity for the
President to make a proclamation of the results of the canvass as submitted by the
Commission on Elections?

FR. BERNAS. I would say there would be no necessity, Madam President.

MR. MAAMBONG. In other words, the President may or may not make the proclamation
whether the Constitution has been ratified or not.

FR. BERNAS. I would say that the proclamation made by the President would be
immaterial because under the law, the administration of all election laws is under an
independent Commission on Elections. It is the Commission on Elections which
announces the results.

MR. MAAMBONG. But nevertheless, the President may make the proclamation.

FR. BERNAS. Yes, the President may. And if what he says contradicts what the
Commission on Elections says, it would have no effect. I would only add that when we
say that the date of effectivity is on the day of the casting of the votes, what we mean is
that the Constitution takes effect on every single minute and every single second of that
day, because the Civil Code says a day has 24 hours.
So that even if the votes are cast in the morning, the Constitution is really effective from
the previous midnight. So that when we adopted the new rule on citizenship, the children
of Filipino mothers or anybody born on the date of effectivity of the 1973 Constitution,
which is January 17, 1973, are natural-born citizens, no matter what time of day or night.

MR. MAAMBONG. Could we, therefore, safely say that whatever date is the publication
of the results of the canvass by the COMELEC retroacts to the date of the plebiscite?

FR. BERNAS. Yes, Madam President.

MR. MAAMBONG. I thank the Commissioner.

MR. GUINGONA. Madam President.

THE PRESIDENT. Commissioner Guingona is recognized.

MR. GUINGONA. Mention was made about the need for having a definite date. I think it
is precisely the proposal of Commissioner Bernas which speaks of the date (of ratification
that would have a definite date, because there would be no definite date if we depend
upon the canvassing by the COMELEC.

Thank you,

THE PRESIDENT. Commissioner Concepcion is recognized.

MR. CONCEPCION. Thank you, Madam President.

Whoever makes the announcement as to the result of the plebiscite, be it the COMELEC
or the President, would announce that a majority of the votes cast on a given date was in
favor of the Constitution. And that is the date when the Constitution takes effect, apart
from the fact that the provision on the drafting or amendment of the Constitution provides
that a constitution becomes effective upon ratification by a majority of the votes cast,
although I would not say from the very beginning of the date of election because as of
that time it is impossible to determine whether there is a majority. At the end of the day of
election or plebiscite, the determination is made as of that time-the majority of the votes
cast in a plebiscite held on such and such a date. So that is the time when the new
Constitution will be considered ratified and, therefore, effective.

THE PRESIDENT. May we now hear Vice-President Padilla.

MR. PADILLA. Madam President, I am against the proposed amendment of

Commissioner Davide and I support the view of Commissioner Bernas and the others
because the ratification of the Constitution is on the date the people, by a majority vote,
have cast their votes in favor of the Constitution. Even in civil law, if there is a contract,
say, between an agent and a third person and that contract is confirmed or ratified by the
principal, the validity does not begin on the date of ratification but it retroacts from the
date the contract was executed.

Therefore, the date of the Constitution as ratified should retroact to the date that the
people have cast their affirmative votes in favor of the Constitution.

MR. MAAMBONG. Madam President.

 THE PRESIDENT. Commissioner Maambong is recognized

MR. MAAMBONG. We will now ask once more Commissioner Davide if he is insisting on
his amendment

MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion that it
will be effective on the very day of the plebiscite, I am withdrawing my amendment on the
assumption that any of the following bodies the Office of the President or the COMELEC
will make the formal announcement of the results.

MR. RAMA. Madam President, we are now ready to vote on the original provision as
stated by the committee.

MR. MAAMBONG. The committee will read again the formulation indicated in the original
committee report as Section 12.

This Constitution shall take effect immediately upon its ratification by a majority of the
votes cast in a plebiscite called for the purpose and shall supersede all previous
Constitutions.

We ask for a vote, Madam President.

VOTING

THE PRESIDENT. As many as are in favor, please raise their hand. (Several Members
raised their hands.)

As many as are against, please raise their hand. (No Member raised his hand.)

The results show 35 votes in favor and none against; Section 12 is approved. 2

The Court next holds as a consequence of its declaration at bar that the Constitution took effect on the
date of its ratification in the plebiscite held on February 2, 1987, that: (1) the Provisional Constitution
promulgated on March 25, 1986 must be deemed to have been superseded by the 1987 Constitution on
the same date February 2, 1987 and (2) by and after said date, February 2, 1987, absent any saying
clause to the contrary in the Transitory Article of the Constitution, respondent OIC Governor could no
longer exercise the power to replace petitioners in their positions as Barangay Captain and Councilmen.
Hence, the attempted replacement of petitioners by respondent OIC Governor's designation on February
8, 1987 of their successors could no longer produce any legal force and effect. While the Provisional
Constitution provided for a one-year period expiring on March 25, 1987 within which the power of
replacement could be exercised, this period was shortened by the ratification and effectivity on February
2, 1987 of the Constitution. Had the intention of the framers of the Constitution been otherwise, they
would have so provided for in the Transitory Article, as indeed they provided for multifarious transitory
provisions in twenty six sections of Article XVIII, e.g. extension of the six-year term of the incumbent
President and Vice-President to noon of June 30, 1992 for purposes of synchronization of elections, the
continued exercise of legislative powers by the incumbent President until the convening of the first
Congress, etc.

A final note of clarification, as to the statement in the dissent that "the appointments of some seven Court
of Appeals Justices, 71 provincial fiscals and 55 city fiscals reported extended (by) the President on
February 2, 1987 . . . could be open to serious questions," in view of the provisions of Sections 8 (1) and
9, Article VIII of the Constitution which require prior endorsement thereof by the Judicial and Bar Council
created under the Constitution. It should be stated for the record that the reported date of the
appointments, February 2, 1987, is incorrect. The official records of the Court show that the appointments
of the seven Court of Appeals Justices were transmitted to this Court on February 1, 1987 and they were
all appointed on or before January 31, 1987. (Similarly, the records of the Department of Justice likewise
3

show that the appointment papers of the last batch of provincial and city fiscals signed by the President in
completion of the reorganization of the prosecution service were made on January 31, 1987 and
transmitted to the Department on February 1, 1987.) It is also a matter of record that since February 2,
1987, no appointments to the Judiciary have been extended by the President, pending the constitution of
the Judicial and Bar Council, indicating that the Chief Executive has likewise considered February 2, 1987
as the effective date of the Constitution, as now expressly declared by the Court.

CRUZ, J., concurring.

In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling effect than
the tones of thunder. She has written another persuasive opinion, and I am delighted to concur. I note
that it in effect affirms my dissents in the De la Serna, Zamora, Duquing and Bayas cases, where I
submitted that the local OICs may no longer be summarily replaced, having acquired security of tenure
under the new Constitution. Our difference is that whereas I would make that right commence on
February 25, 1987, after the deadline set by the Freedom Constitution, Justice Herrera would opt for
February 2, 1987, when the new Constitution was ratified. I yield to that better view and agree with
her ponencia completely.

SARMIENTO, J., Dissenting.

With due respect to the majority I register this dissent.

While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional Constitution
with respect to the tenure of government functionaries, as follows:

SECTION 2. All elective and appointive officials and employees under the 1973
Constitution shall continue in office until otherwise provided by proclamation or executive
order or upon the designation or appointment and qualification of their successors, if such
appointment is made within a period of one year from February 25, 1986.

was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not that
cut-off period began on February 2, 1987, the date of the plebiscite held to approve the new Charter. To
my mind the 1987 constitution took effect on February 11, 1987, the date the same was proclaimed
ratified pursuant to Proclamation No. 58 of the President of the Philippines, and not February 2, 1987,
plebiscite day.

I rely, first and foremost, on the language of the 1987 Charter itself, thus:

Sec. 27. This Constitution shag take effect immediately upon its ratification by a majority
of the votes cast in a plebiscite held for the purpose and shall supersede all previous
Constitutions.

It is my reading of this provision that the Constitution takes effect on the date its ratification shall have
been ascertained, and not at the time the people cast their votes to approve or reject it. For it cannot be
logically said that Constitution was ratified during such a plebiscite, when the will of the people as of that
time, had not, and could not have been, vet determined.

Other than that, pragmatic considerations compel me to take the view.

I have no doubt that between February 2, and February 11, 1987 the government performed acts that
would have been valid under the Provisional Constitution but would otherwise have been void under the
1987 Charter. I recall, in particular, the appointments of some seven Court of Appeals Justices, 71
provincial fiscals, and 55 city fiscals the President reportedly extended on February 2, 1987. 1 Under Sections
8 (1) and 9, Article VIII, of the l987 Constitution, as follows:

xxx xxx xxx

Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the
Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of
Justice, and a representative of the Congress as ex oficio Members, a representative of
the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a
representative of the private sector.

xxx xxx xxx

2Sec. 9. The Members of the Supreme Court and judges of lower courts shall be
appointed by the President from a list of at least three nominees prepared by the Judicial
and Bar Council for every vacancy, Such appointments need no confirmation.

xxx xxx xxx

such appointments could be open to serious questions.

Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as the
amendments thereto from the date it is proclaimed ratified.

In Magtoto v. Manguera, we held that the 1973 Constitution became in force and effect on January 17,
2

1973, the date Proclamation No. 1102, "Announcing the Ratification by the Filipino People of the
Constitution Proposed by the 1971 Constitutional Convention," was issued, although Mr. Justice, now
Chief Justice, Teehankee would push its effectivity date further to April 17, 1973, the date our decision
in Javellana v. Executive Secretary, became final. And this was so notwithstanding Section 16, Article
3

XVII, of the 1973 Constitution, thus:

SEC. 16. This Constitution shall take effect immediately upon its ratification by a majority
of the votes cast in a plebiscite called for the purpose and, except as herein provided,
shall supersede the Constitution of nineteen-hundred and thirty- five and all amendments
thereto.

On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming the
ratification of the 1976 amendments submitted in the plebiscite of October 16- 17, 1976. The
Proclamation states, inter alia, that.

By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in this
certificate as duly ratified by the Filipino people in the referendum — plebiscite held Oct. 16-17, 1976 and
are therefore effective and in full force and effect as of this date.

It shall be noted that under Amendment No. 9 of the said 1976 amendments.

These amendments shall take effect after the incumbent President shall have proclaimed
that they have been ratified by a majority of the votes cast in the referendum-plebiscite.
On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the Ratification by
the Filipino People of the Amendments of Section 7, Article X of the Constitution" (lengthening the terms
of office of judges and justices). The Proclamation provides:

[t]he above-quoted amendment has been duly ratified by a majority of the votes cast in
the plebiscite held, together with the election for local officials, on January 30, 1980, and
that said amendment is hereby declared to take effect immediately.

It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed amendment shall
take effect on the date the incumbent President/Prime Minister shall proclaim its ratification.

On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of April
7, 1981 of the Amendments to the Constitution Embodied in Batas Pambansa Blg. 122 and Declaring
Them Therefore Effective and in Full Force and Effect." The Proclamation, in declaring the said
amendments duly approved, further declared them "[e]ffective and in full force and in effect as of the date
of this Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I and 2 of the
Batasang Pambansa, Third Regular Session, Sitting as a Constituent Assembly, which parented these
amendments, the same:

... shall become valid as part of the Constitution when approved by a majority of the votes
cast in a plebiscite to be held pursuant to Section 2, Article XVI of the Constitution.

On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for Ratification or
Rejection, the Amendment to the Constitution of the Philippines, Proposed by the Batasang Pambansa,
Sitting as a Constituent Assembly, in its Resolutions Numbered Three, Two, and One, and to Appropriate
Funds Therefore," provides, as follows:

SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim the
result of the plebiscite using the certificates submitted to it, duly authenticated and
certified by the Board of Canvassers of each province or city.

We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of January 27,
1984, of the Amendments to the Constitution Embodied in Batasang Pambansa Resolutions Nos. 104,
105, 110, 111, 112 and 113." It states that the amendments:

....are therefore effective and in full force and effect as of the date of this Proclamation.

It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9, Batas Blg.
643), which states, that:

The proposed amendments shall take effect on the date the President of the Philippines
shall proclaim that they have been ratified by a majority of the votes cast in the plebiscite
held for the purpose, but not later than three months from the approval of the
amendments.

albeit Resolutions Nos. 105, 111, and 113 provide, that:

These amendments shall be valid as a part of the Constitution when approved by a majority of the votes
cast in an election/plebiscite at which it is submitted to the people for their ratification pursuant to Section
2 of Article XVI of the Constitution, as amended.

That a Constitution or amendments thereto take effect upon proclamation of their ratification and not at
the time of the plebiscite is a view that is not peculiar to the Marcos era.
The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite called
pursuant to Republic Act No. 73 and the Resolution of Both Houses (of Congress) adopted on September
18, 1946, was adopted on April 9,1947. The April 9, 1947 Resolution makes no mention of a retroactive
application. Accordingly, when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on
February 11, 1987, at Malacanang Palace:

... that the Constitution of the Republic of the Philippines adopted by the Constitutional
Commission of 1986, including the Ordinance appended thereto, has been duly ratified
by the Filipino people and is therefore effective and in full force and effect. 4

the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other time.

I submit that our ruling in Ponsica v. Ignalaga in which we declared, in passing, that the new Charter was
5

ratified on February 2, 1987, does not in any way weaken this dissent. As I stated, the remark was said in
passing-we did not resolve the case on account of a categorical holding that the 1987 Constitution came
to life on February 2, 1987. In any event, if we did, I now call for its re-examination.

I am therefore of the opinion, consistent with the views expressed above, that the challenged dismissals
done on February 8, 1987 were valid, the 1987 Constitution not being then as yet in force.

Footnotes

1 Topacio, Jr. vs. Pimentel G.R. No. 73770, April 10, 1986.

2 Section 2, BP Blg. 222.

3 Article 11, Section 25 and Article X, Sections 1, 2, 14, among others.

4 Article X, Section 4.

5 Section 3, BP Blg. 222.

Teehankee, C.J., concurring:

1 Volume Five, Record of the Constitutional Commission Proceedings and Debates,

pages 620-623; emphasis supplied.

2 The entire draft Constitution was approved on October 12, 1986 forty forty-five votes in
favor and two against.

3 The seven Court of Appeals Justices referred to are Justices Alfredo L. Benipayo,
Minerva G. Reyes, Magdangal B. Elma, Cecilio PE, Jesus Elbinias, Nicolas Lapena Jr.
and Justo P. Torres, Jr., and their appointments bear various dates from January 9, 1987
to January 31, 1987.

Sarmiento, J., dissenting:

1 Manila Bulletin, Feb. 3, 1987, p. 1, cols. 6-7 Philippine Daily Inquirer, Feb. 3,1987, p. 1,
cot 1; Malaya, Feb. 3, 1987, p. 1, col. 1.

2 Nos. 3720102 March 3, 1975, 63 SCRA 4 (1975).

3 Nos. L-36142, March 31, 1973, 50 SCRA 30 (1973).

4 Proclamation No. 58 (1987).

5 G.R. No. 72301.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-63915 April 24, 1985

LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR

BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN
VENUS, in his capacity as Deputy Executive Assistant to the President , MELQUIADES P. DE LA
CRUZ, in his capacity as Director, Malacañang Records Office, and FLORENDO S. PABLO, in his
capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J.:

Invoking the people's right to be informed on matters of public concern, a right recognized in Section 6,
Article IV of the 1973 Philippine Constitution, as well as the principle that laws to be valid and
1

enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners
seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in
the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations,
executive orders, letter of implementation and administrative orders.

Specifically, the publication of the following presidential issuances is sought:

a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234,
265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406,
415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594,
599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030,
1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644,
1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847.

b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155,
161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228,
231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293,
297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382,
385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576,
587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-
839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-1278.

c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.

d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529,
1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-
1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-
1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 1802-
1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-
 1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889,
1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-
2044, 2046-2145, 2147-2161, 2163-2244.

e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507,
509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568,
570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-786, 788-
852, 854-857.

f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92,
94, 95, 107, 120, 122, 123.

g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.

The respondents, through the Solicitor General, would have this case dismissed outright on the ground
that petitioners have no legal personality or standing to bring the instant petition. The view is submitted
that in the absence of any showing that petitioners are personally and directly affected or prejudiced by
the alleged non-publication of the presidential issuances in question said petitioners are without the
2

requisite legal personality to institute this mandamus proceeding, they are not being "aggrieved parties"
within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:

SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or person

unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station, or unlawfully excludes another from the use a rd
enjoyment of a right or office to which such other is entitled, and there is no other plain,
speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby
may file a verified petition in the proper court alleging the facts with certainty and praying
that judgment be rendered commanding the defendant, immediately or at some other
specified time, to do the act required to be done to Protect the rights of the petitioner, and
to pay the damages sustained by the petitioner by reason of the wrongful acts of the
defendant.

Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right and
its object is to compel the performance of a public duty, they need not show any specific interest for their
petition to be given due course.

The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor
General, this Court held that while the general rule is that "a writ of mandamus would be granted to a
3

private individual only in those cases where he has some private or particular interest to be subserved, or
some particular right to be protected, independent of that which he holds with the public at large," and "it
is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell
vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the
mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in
interest and the relator at whose instigation the proceedings are instituted need not show that he has any
legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested
in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].

Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party
to the mandamus proceedings brought to compel the Governor General to call a special election for the
position of municipal president in the town of Silay, Negros Occidental. Speaking for this Court, Mr.
Justice Grant T. Trent said:

We are therefore of the opinion that the weight of authority supports the proposition that
the relator is a proper party to proceedings of this character when a public right is sought
 to be enforced. If the general rule in America were otherwise, we think that it would not
be applicable to the case at bar for the reason 'that it is always dangerous to apply a
general rule to a particular case without keeping in mind the reason for the rule, because,
if under the particular circumstances the reason for the rule does not exist, the rule itself
is not applicable and reliance upon the rule may well lead to error'

No reason exists in the case at bar for applying the general rule insisted upon by counsel
for the respondent. The circumstances which surround this case are different from those
in the United States, inasmuch as if the relator is not a proper party to these proceedings
no other person could be, as we have seen that it is not the duty of the law officer of the
Government to appear and represent the people in cases of this character.

The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned
case apply squarely to the present petition. Clearly, the right sought to be enforced by petitioners herein
is a public right recognized by no less than the fundamental law of the land. If petitioners were not
allowed to institute this proceeding, it would indeed be difficult to conceive of any other person to initiate
the same, considering that the Solicitor General, the government officer generally empowered to
represent the people, has entered his appearance for respondents in this case.

Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for
the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus
submitted that since the presidential issuances in question contain special provisions as to the date they
are to take effect, publication in the Official Gazette is not indispensable for their effectivity. The point
stressed is anchored on Article 2 of the Civil Code:

Art. 2. Laws shall take effect after fifteen days following the completion of their publication
in the Official Gazette, unless it is otherwise provided, ...

The interpretation given by respondent is in accord with this Court's construction of said article. In a long
line of decisions, this Court has ruled that publication in the Official Gazette is necessary in those cases
4

where the legislation itself does not provide for its effectivity date-for then the date of publication is
material for determining its date of effectivity, which is the fifteenth day following its publication-but not
when the law itself provides for the date when it goes into effect.

Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws with
the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the
conclusion is easily reached that said Article 2 does not preclude the requirement of publication in the
Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:

Section 1. There shall be published in the Official Gazette [1] all important legisiative acts
and resolutions of a public nature of the, Congress of the Philippines; [2] all executive
and administrative orders and proclamations, except such as have no general
applicability; [3] decisions or abstracts of decisions of the Supreme Court and the Court
of Appeals as may be deemed by said courts of sufficient importance to be so published;
[4] such documents or classes of documents as may be required so to be published by
law; and [5] such documents or classes of documents as the President of the Philippines
shall determine from time to time to have general applicability and legal effect, or which
he may authorize so to be published. ...

The clear object of the above-quoted provision is to give the general public adequate notice of the various
laws which are to regulate their actions and conduct as citizens. Without such notice and publication,
there would be no basis for the application of the maxim "ignorantia legis non excusat." It would be the
height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had
no notice whatsoever, not even a constructive one.

Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so
vital significance that at this time when the people have bestowed upon the President a power heretofore
enjoyed solely by the legislature. While the people are kept abreast by the mass media of the debates
and deliberations in the Batasan Pambansa—and for the diligent ones, ready access to the legislative
records—no such publicity accompanies the law-making process of the President. Thus, without
publication, the people have no means of knowing what presidential decrees have actually been
promulgated, much less a definite way of informing themselves of the specific contents and texts of such
decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes, se comprenden
tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de
conformidad con las mismas por el Gobierno en uso de su potestad. 5

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the
Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative duty.
That duty must be enforced if the Constitutional right of the people to be informed on matters of public
concern is to be given substance and reality. The law itself makes a list of what should be published in
the Official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to
what must be included or excluded from such publication.

The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated
by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or
otherwise impose a burden or. the people, such as tax and revenue measures, fall within this category.
Other presidential issuances which apply only to particular persons or class of persons such as
administrative and executive orders need not be published on the assumption that they have been
circularized to all concerned. 6

It is needless to add that the publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a person may be bound by
law, he must first be officially and specifically informed of its contents. As Justice Claudio Teehankee said
in Peralta vs. COMELEC : 7

In a time of proliferating decrees, orders and letters of instructions which all form part of
the law of the land, the requirement of due process and the Rule of Law demand that the
Official Gazette as the official government repository promulgate and publish the texts of
all such decrees, orders and instructions so that the people may know where to obtain
their official and specific contents.

The Court therefore declares that presidential issuances of general application, which have not been
published, shall have no force and effect. Some members of the Court, quite apprehensive about the
possible unsettling effect this decision might have on acts done in reliance of the validity of those
presidential decrees which were published only during the pendency of this petition, have put the
question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced or
implemented prior to their publication. The answer is all too familiar. In similar situations in the past this
Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter
Bank to wit:
8

The courts below have proceeded on the theory that the Act of Congress, having been
found to be unconstitutional, was not a law; that it was inoperative, conferring no rights
and imposing no duties, and hence affording no basis for the challenged decree. Norton
v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559,
566. It is quite clear, however, that such broad statements as to the effect of a
determination of unconstitutionality must be taken with qualifications. The actual
 existence of a statute, prior to such a determination, is an operative fact and may have
consequences which cannot justly be ignored. The past cannot always be erased by a
new judicial declaration. The effect of the subsequent ruling as to invalidity may have to
be considered in various aspects-with respect to particular conduct, private and official.
Questions of rights claimed to have become vested, of status, of prior determinations
deemed to have finality and acted upon accordingly, of public policy in the light of the
nature both of the statute and of its previous application, demand examination. These
questions are among the most difficult of those which have engaged the attention of
courts, state and federal and it is manifest from numerous decisions that an all-inclusive
statement of a principle of absolute retroactive invalidity cannot be justified.

Consistently with the above principle, this Court in Rutter vs. Esteban sustained the right of a party
9

under the Moratorium Law, albeit said right had accrued in his favor before said law was declared
unconstitutional by this Court.

Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official
Gazette is "an operative fact which may have consequences which cannot be justly ignored. The past
cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified."

From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees
sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030,
inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. Neither the subject matters
10

nor the texts of these PDs can be ascertained since no copies thereof are available. But whatever their
subject matter may be, it is undisputed that none of these unpublished PDs has ever been implemented
or enforced by the government. In Pesigan vs. Angeles, the Court, through Justice Ramon Aquino, ruled
11

that "publication is necessary to apprise the public of the contents of [penal] regulations and make the
said penalties binding on the persons affected thereby. " The cogency of this holding is apparently
recognized by respondent officials considering the manifestation in their comment that "the government,
as a matter of policy, refrains from prosecuting violations of criminal laws until the same shall have been
published in the Official Gazette or in some other publication, even though some criminal laws provide
that they shall take effect immediately.

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished
presidential issuances which are of general application, and unless so published, they shall have no
binding force and effect.

SO ORDERED.

Relova, J., concurs.

Aquino, J., took no part.

Concepcion, Jr., J., is on leave.

Separate Opinions
FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice
Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the requirement of
publication in the Official Gazette for unpublished "presidential issuances" to have binding force and
effect.

I shall explain why.

1. It is of course true that without the requisite publication, a due process question would arise if made to
apply adversely to a party who is not even aware of the existence of any legislative or executive act
having the force and effect of law. My point is that such publication required need not be confined to the
Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It conduces to
certainty. That is too be admitted. It does not follow, however, that failure to do so would in all cases and
under all circumstances result in a statute, presidential decree or any other executive act of the same
category being bereft of any binding force and effect. To so hold would, for me, raise a constitutional
question. Such a pronouncement would lend itself to the interpretation that such a legislative or
presidential act is bereft of the attribute of effectivity unless published in the Official Gazette. There is no
such requirement in the Constitution as Justice Plana so aptly pointed out. It is true that what is decided
now applies only to past "presidential issuances". Nonetheless, this clarification is, to my mind, needed to
avoid any possible misconception as to what is required for any statute or presidential act to be
impressed with binding force or effectivity.

2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first paragraph
sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The Philippine
Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some
Constitutions elsewhere. It may be said though that the guarantee of due process requires notice of laws
to affected Parties before they can be bound thereby; but such notice is not necessarily by publication in
the Official Gazette. The due process clause is not that precise. I am likewise in agreement with its
1

closing paragraph: "In fine, I concur in the majority decision to the extent that it requires notice before
laws become effective, for no person should be bound by a law without notice. This is elementary
fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the
Official Gazette.2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government "must
be ascertainable in some form if it is to be enforced at all. It would indeed be to reduce it to the level of
3

mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. Publication, to repeat,
4

is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the Official
Gazette. To be sure once published therein there is the ascertainable mode of determining the exact date
of its effectivity. Still for me that does not dispose of the question of what is the jural effect of past
presidential decrees or executive acts not so published. For prior thereto, it could be that parties aware of
their existence could have conducted themselves in accordance with their provisions. If no legal
consequences could attach due to lack of publication in the Official Gazette, then serious problems could
arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters
deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated
by our decision. Where such presidential decree or executive act is made the basis of a criminal
prosecution, then, of course, its ex post facto character becomes evident. In civil cases though,
5

retroactivity as such is not conclusive on the due process aspect. There must still be a showing of
arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the
police power, the non-impairment clause of the Constitution may not always be successfully invoked.
There must still be that process of balancing to determine whether or not it could in such a case be
tainted by infirmity. In traditional terminology, there could arise then a question of unconstitutional
6

application. That is as far as it goes.

4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication is
essential to the effectivity of a legislative or executive act of a general application. I am not in agreement
with the view that such publication must be in the Official Gazette. The Civil Code itself in its Article 2
expressly recognizes that the rule as to laws taking effect after fifteen days following the completion of
their publication in the Official Gazette is subject to this exception, "unless it is otherwise provided."
Moreover, the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and
cannot have the juridical force of a constitutional command. A later legislative or executive act which has
the force and effect of law can legally provide for a different rule.

5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential
decrees and executive acts not thus previously published in the Official Gazette would be devoid of any
legal character. That would be, in my opinion, to go too far. It may be fraught, as earlier noted, with
undesirable consequences. I find myself therefore unable to yield assent to such a pronouncement.

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice Herrera.
The Rule of Law connotes a body of norms and laws published and ascertainable and of equal
application to all similarly circumstances and not subject to arbitrary change but only under certain set
procedures. The Court has consistently stressed that "it is an elementary rule of fair play and justice that
a reasonable opportunity to be informed must be afforded to the people who are commanded to obey
before they can be punished for its violation, citing the settled principle based on due process enunciated
1

in earlier cases that "before the public is bound by its contents, especially its penal provisions, a law,
regulation or circular must first be published and the people officially and specially informed of said
contents and its penalties.

Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3 of
the Civil Code (based on constructive notice that the provisions of the law are ascertainable from the
public and official repository where they are duly published) that "Ignorance of the law excuses no one
from compliance therewith.

Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are
silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is manifestly
untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after fifteen days
following the completion of their publication in the Official Gazette, unless it is otherwise provided, " i.e. a
different effectivity date is provided by the law itself. This proviso perforce refers to a law that has been
duly published pursuant to the basic constitutional requirements of due process. The best example of this
is the Civil Code itself: the same Article 2 provides otherwise that it "shall take effect [only] one year [not
15 days] after such publication. To sustain respondents' misreading that "most laws or decrees specify
2

the date of their effectivity and for this reason, publication in the Official Gazette is not necessary for their
effectivity would be to nullify and render nugatory the Civil Code's indispensable and essential
3

requirement of prior publication in the Official Gazette by the simple expedient of providing for immediate
effectivity or an earlier effectivity date in the law itself before the completion of 15 days following its
publication which is the period generally fixed by the Civil Code for its proper dissemination.
MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to
be published. What I would like to state in connection with that proposition is that when a date of
effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after its
publication in the Official Gazette, it will not mean that the decree can have retroactive effect to the date
of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity will run
counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires notice of laws to
affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette. The due process
clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite for their effectivity,
if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the completion
of their publication in the Official Gazette, unless it is otherwise provided " Two things may be said of this
provision: Firstly, it obviously does not apply to a law with a built-in provision as to when it will take effect.
Secondly, it clearly recognizes that each law may provide not only a different period for reckoning its
effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall be published
elsewhere than in the Official Gazette.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity, laws
must be published in the Official Gazette. The said law is simply "An Act to Provide for the Uniform
Publication and Distribution of the Official Gazette." Conformably therewith, it authorizes the publication of
the Official Gazette, determines its frequency, provides for its sale and distribution, and defines the
authority of the Director of Printing in relation thereto. It also enumerates what shall be published in the
Official Gazette, among them, "important legislative acts and resolutions of a public nature of the
Congress of the Philippines" and "all executive and administrative orders and proclamations, except such
as have no general applicability." It is noteworthy that not all legislative acts are required to be published
in the Official Gazette but only "important" ones "of a public nature." Moreover, the said law does not
provide that publication in the Official Gazette is essential for the effectivity of laws. This is as it should be,
for all statutes are equal and stand on the same footing. A law, especially an earlier one of general
application such as Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent
statute that has a provision of its own as to when and how it will take effect. Only a higher law, which is
the Constitution, can assume that role.

In fine, I concur in the majority decision to the extent that it requires notice before laws become effective,
for no person should be bound by a law without notice. This is elementary fairness. However, I beg to
disagree insofar as it holds that such notice shall be by publication in the Official Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such publication
being in the Official Gazette.
DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice
Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the requirement of
publication in the Official Gazette for unpublished "presidential issuances" to have binding force and
effect.

I shall explain why.

1. It is of course true that without the requisite publication, a due process question would arise if made to
apply adversely to a party who is not even aware of the existence of any legislative or executive act
having the force and effect of law. My point is that such publication required need not be confined to the
Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It conduces to
certainty. That is too be admitted. It does not follow, however, that failure to do so would in all cases and
under all circumstances result in a statute, presidential decree or any other executive act of the same
category being bereft of any binding force and effect. To so hold would, for me, raise a constitutional
question. Such a pronouncement would lend itself to the interpretation that such a legislative or
presidential act is bereft of the attribute of effectivity unless published in the Official Gazette. There is no
such requirement in the Constitution as Justice Plana so aptly pointed out. It is true that what is decided
now applies only to past "presidential issuances". Nonetheless, this clarification is, to my mind, needed to
avoid any possible misconception as to what is required for any statute or presidential act to be
impressed with binding force or effectivity.

2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first paragraph
sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The Philippine
Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some
Constitutions elsewhere. It may be said though that the guarantee of due process requires notice of laws
to affected Parties before they can be bound thereby; but such notice is not necessarily by publication in
the Official Gazette. The due process clause is not that precise. I am likewise in agreement with its
1

closing paragraph: "In fine, I concur in the majority decision to the extent that it requires notice before
laws become effective, for no person should be bound by a law without notice. This is elementary
fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the
Official Gazette.2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government "must
be ascertainable in some form if it is to be enforced at all. It would indeed be to reduce it to the level of
3

mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. Publication, to repeat,
4

is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the Official
Gazette. To be sure once published therein there is the ascertainable mode of determining the exact date
of its effectivity. Still for me that does not dispose of the question of what is the jural effect of past
presidential decrees or executive acts not so published. For prior thereto, it could be that parties aware of
their existence could have conducted themselves in accordance with their provisions. If no legal
consequences could attach due to lack of publication in the Official Gazette, then serious problems could
arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters
deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated
by our decision. Where such presidential decree or executive act is made the basis of a criminal
prosecution, then, of course, its ex post facto character becomes evident. In civil cases though,
5

retroactivity as such is not conclusive on the due process aspect. There must still be a showing of
arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the
police power, the non-impairment clause of the Constitution may not always be successfully invoked.
There must still be that process of balancing to determine whether or not it could in such a case be
tainted by infirmity. In traditional terminology, there could arise then a question of unconstitutional
6

application. That is as far as it goes.

4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication is
essential to the effectivity of a legislative or executive act of a general application. I am not in agreement
with the view that such publication must be in the Official Gazette. The Civil Code itself in its Article 2
expressly recognizes that the rule as to laws taking effect after fifteen days following the completion of
their publication in the Official Gazette is subject to this exception, "unless it is otherwise provided."
Moreover, the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and
cannot have the juridical force of a constitutional command. A later legislative or executive act which has
the force and effect of law can legally provide for a different rule.

5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential
decrees and executive acts not thus previously published in the Official Gazette would be devoid of any
legal character. That would be, in my opinion, to go too far. It may be fraught, as earlier noted, with
undesirable consequences. I find myself therefore unable to yield assent to such a pronouncement.

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice Herrera.
The Rule of Law connotes a body of norms and laws published and ascertainable and of equal
application to all similarly circumstances and not subject to arbitrary change but only under certain set
procedures. The Court has consistently stressed that "it is an elementary rule of fair play and justice that
a reasonable opportunity to be informed must be afforded to the people who are commanded to obey
before they can be punished for its violation, citing the settled principle based on due process enunciated
1

in earlier cases that "before the public is bound by its contents, especially its penal provisions, a law,
regulation or circular must first be published and the people officially and specially informed of said
contents and its penalties.

Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3 of
the Civil Code (based on constructive notice that the provisions of the law are ascertainable from the
public and official repository where they are duly published) that "Ignorance of the law excuses no one
from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are
silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is manifestly
untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after fifteen days
following the completion of their publication in the Official Gazette, unless it is otherwise provided, " i.e. a
different effectivity date is provided by the law itself. This proviso perforce refers to a law that has been
duly published pursuant to the basic constitutional requirements of due process. The best example of this
is the Civil Code itself: the same Article 2 provides otherwise that it "shall take effect [only] one year [not
15 days] after such publication. To sustain respondents' misreading that "most laws or decrees specify
2

the date of their effectivity and for this reason, publication in the Official Gazette is not necessary for their
effectivity would be to nullify and render nugatory the Civil Code's indispensable and essential
3

requirement of prior publication in the Official Gazette by the simple expedient of providing for immediate
effectivity or an earlier effectivity date in the law itself before the completion of 15 days following its
publication which is the period generally fixed by the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to
be published. What I would like to state in connection with that proposition is that when a date of
effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after its
publication in the Official Gazette, it will not mean that the decree can have retroactive effect to the date
of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity will run
counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires notice of laws to
affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette. The due process
clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite for their effectivity,
if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the completion
of their publication in the Official Gazette, unless it is otherwise provided " Two things may be said of this
provision: Firstly, it obviously does not apply to a law with a built-in provision as to when it will take effect.
Secondly, it clearly recognizes that each law may provide not only a different period for reckoning its
effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall be published
elsewhere than in the Official Gazette.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity, laws
must be published in the Official Gazette. The said law is simply "An Act to Provide for the Uniform
Publication and Distribution of the Official Gazette." Conformably therewith, it authorizes the publication of
the Official Gazette, determines its frequency, provides for its sale and distribution, and defines the
authority of the Director of Printing in relation thereto. It also enumerates what shall be published in the
Official Gazette, among them, "important legislative acts and resolutions of a public nature of the
Congress of the Philippines" and "all executive and administrative orders and proclamations, except such
as have no general applicability." It is noteworthy that not all legislative acts are required to be published
in the Official Gazette but only "important" ones "of a public nature." Moreover, the said law does not
provide that publication in the Official Gazette is essential for the effectivity of laws. This is as it should be,
for all statutes are equal and stand on the same footing. A law, especially an earlier one of general
application such as Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent
statute that has a provision of its own as to when and how it will take effect. Only a higher law, which is
the Constitution, can assume that role.

In fine, I concur in the majority decision to the extent that it requires notice before laws become effective,
for no person should be bound by a law without notice. This is elementary fairness. However, I beg to
disagree insofar as it holds that such notice shall be by publication in the Official Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such publication
being in the Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.

Footnotes

1 Section 6. The right of the people to information on matters of public concern shag be
recognized, access to official records, and to documents and papers pertaining to official
acts, transactions, or decisions, shag be afforded the citizens subject to such limitation as
may be provided by law.

2 Anti-Chinese League vs. Felix, 77 Phil. 1012; Costas vs. Aidanese, 45 Phil. 345;
Almario vs. City Mayor, 16 SCRA 151;Parting vs. San Jose Petroleum, 18 SCRA 924;
Dumlao vs. Comelec, 95 SCRA 392.

3 16 Phil. 366, 378.

4 Camacho vs. Court of Industrial Relations, 80 Phil 848; Mejia vs. Balolong, 81 Phil.
486; Republic of the Philippines vs. Encamacion, 87 Phil. 843; Philippine Blooming Mills,
Inc. vs. Social Security System, 17 SCRA 1077; Askay vs. Cosalan, 46 Phil. 179.

5 1 Manresa, Codigo Civil 7th Ed., p. 146.

6 People vs. Que Po Lay, 94 Phil. 640; Balbuena et al. vs. Secretary of Education, et al.,
110 Phil. 150.

7 82 SCRA 30, dissenting opinion.

8 308 U.S. 371, 374.

9 93 Phil.. 68,.
10 The report was prepared by the Clerk of Court after Acting Director Florendo S. Pablo
Jr. of the Government Printing Office, failed to respond to her letter-request regarding the
respective dates of publication in the Official Gazette of the presidential issuances listed
therein. No report has been submitted by the Clerk of Court as to the publication or non-
publication of other presidential issuances.

11 129 SCRA 174.

Fernando, CJ.:

1 Separate Opinion of Justice Plana, first paragraph. He mentioned in tills connection

Article 7, Sec. 21 of the Wisconsin Constitution and State ex rel. White v. Grand Superior
Ct., 71 ALR 1354, citing the Constitution of Indiana, U.S.A

2 Ibid, closing paragraph.

3 Learned Hand, The Spirit of Liberty 104 (1960).

4 Cardozo, The Growth of the Law, 3 (1924).

5 Cf. Nunez v. Sandiganbayan, G.R. No. 50581-50617, January 30, 1982, 111 SCRA
433.

6 Cf. Alalayan v. National Power Corporation, L-24396, July 29, 1968, 24 SCRA 172.

Teehankee, J.:

1 People vs. de Dios, G.R. No. 11003, Aug. 3l, 1959, per the late Chief Justice Paras.

2 Notes in brackets supplied.

3 Respondents: comment, pp. 14-15.

Plana, J.:

* See e.g., Wisconsin Constitution, Art. 7, Sec. 21: "The legislature shall provide
publication of all statute laws ... and no general law shall be in force until published." See
also S ate ex rel. White vs. Grand Superior Ct., 71 ALR 1354, citing Constitution of
Indiana, U.S.A.
 EN BANC

[G.R. No. L-63915. December 29, 1986.]

LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR

BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI), Petitioners, v. HON. JUAN C. TUVERA.
in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as Deputy
Executive Assistant to the President, MELQUIADES P. DE LA CRUZ, ETC., ET AL., Respondents.

SYLLABUS

FERNAN, J., concurring:chanrob1es virtual 1aw library

1. CIVIL LAW; EFFECT AND APPLICATION OF LAWS; ARTICLE 2, CIVIL CODE; PUBLICATION OF LAWS
MADE TO ENSURE CONSTITUTIONAL RIGHT TO DUE PROCESS AND TO INFORMATION. — The
categorical statement by this Court on the need for publication before any law be made effective seeks to prevent
abuses on the part if the lawmakers and, at the time, ensure to the people their constitutional right to due process
and to information on matter of public concern.chanroblesvirtuallawlibrary:red

RESOLUTION

CRUZ, J.:

Due process was invoked by the petitioners in demanding the disclosure or a number of presidential decrees
which they claimed had not been published as required by law. The government argued that while publication
was necessary as a rule, it was not so when it was "otherwise provided," as when the decrees themselves
declared that they were to become effective immediately upon their approval. In the decision of this case on April
24, 1985, the Court affirmed the necessity for the publication of some of these decrees, declaring in the
dispositive portion as follows:jgc:chanrobles.com.ph

"WHEREFORE, the Court hereby orders respondents to publish to the Official Gazette all unpublished
presidential issuances which are of general application, and unless so published, they shall have no binding force
and effect."cralaw virtua1aw library

The petitioners are now before us again, this time to move for reconsideration/clarification of that decision. 1
Specifically, they ask the following questions:chanrob1es virtual 1aw library

1. What is meant by "law of public nature" or "general applicability" ?

2. Must a distinction be made between laws of general applicability and laws which are not?

3. What is meant by "publication" ?

4. Where is the publication to be made?

5. When is the publication to be made?

Resolving their own doubts, the petitioners suggest that there should be no distinction between laws of general
applicability and those which are not; that publication means complete publication; and that the publication must
be made forthwith in the Official Gazette. 2
In the Comment 3 required of the then Solicitor General, he claimed first that the motion was a request for an
advisory opinion and should therefore be dismissed, and, on the merits, that the clause "unless it is otherwise
provided" in Article 2 of the Civil Code meant that the publication required therein was not always imperative; that
publication, when necessary, did not have to be made in the Official Gazette; and that in any case the subject
decision was concurred in only by three justices and consequently not binding. This elicited a Reply 4 refuting
these arguments. Came next the February Revolution and the Court required the new Solicitor General to file a
Rejoinder in view of the supervening events, under Rule 3, Section 18, of the Rules of Court. Responding, he
submitted that issuances intended only for the interval administration of a government agency or for particular
persons did not have to be published; that publication when necessary must be in full and in the Official Gazette;
and that, however, the decision under reconsideration was not binding because it was not supported by eight
members of this Court. 5

The subject of contention is Article 2 of the Civil Code providing as follows:jgc:chanrobles.com.ph

"ART. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official
Gazette, unless it is otherwise provided. This Code shall take effect one year after such publication."cralaw
virtua1aw library

After a careful study of this provision and of the arguments of the parties, both on the original petition and on the
instant motion, we have come to the conclusion, and so hold, that the clause "unless it is otherwise provided"
refers to the date of effectivity and not to the requirement of publication itself, which cannot in any event be
omitted. This clause does not mean that the legislature may make the law effective immediately upon approval,
or on any other date, without its previous publication.chanrobles virtual lawlibrary

Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-
day period shall be shortened or extended. An example, as pointed out by the present Chief Justice in his
separate concurrence in the original decision, 6 is the Civil Code which did not become effective after fifteen days
from its publication in the Official Gazette but "one year after such publication." The general rule did not apply
because it was "otherwise provided."cralaw virtua1aw library

It is not correct to say that under the disputed clause publication may be dispensed with altogether. The reason is
that such omission would offend due process insofar as it would deny the public knowledge of the laws that are
supposed to govern it. Surely, if the legislature could validly provide that a law shall become effective
immediately upon its approval notwithstanding the lack of publication (or after an unreasonably short period after
publication), it is not unlikely that persons not aware of it would be prejudiced as a result; and they would be so
not because of a failure to comply with it but simply because they did not know of its existence. Significantly, this
is not true only of penal laws as is commonly supposed. One can think of many non-penal measures, like a law
on prescription, which must also be communicated to the persons they may affect before they can begin to
operate.cralawnad

We note at this point the conclusive presumption that every person knows the law, which of course presupposes
that the law has been published if the presumption is to have any legal justification at all. It is no less important to
remember that Section 6 of the Bill of Rights recognizes "the right of the people to information on matters of
public concern," and this certainly applies to, among others, and indeed especially, the legislative enactments of
the government.

The term "laws" should refer to all laws and not only to those of general application, for strictly speaking all laws
relate to the people in general albeit there are some that do not apply to them directly. An example is a law
granting citizenship to a particular individual, like a relative of President Marcos who was decreed instant
naturalization. It surely cannot be said that such a law does not affect the public although it unquestionably does
not apply directly to all the people. The subject of such law is a matter of public interest which any member of the
body politic may question in the political forums or, if he is a proper party, even in the courts of justice. In fact, a
law without any bearing on the public would be invalid as an intrusion of privacy or as class legislation or as an
ultra vires act of the legislature. To be valid, the law must invariably affect the public interest even if it might be
directly applicable only to one individual, or some of the people only, and not to the public as a whole.

We hold therefore that all statutes, including those of local application and private laws, shall be published as a
condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is
fixed by the legislature.chanrobles.com:cralaw:red

Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise
of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred
by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or
implement existing law pursuant also to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the
administrative agency and not the public, need not be published. Neither is publication required of the so-called
letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their
subordinates in the performance of their duties.chanroblesvirtuallawlibrary

Accordingly, even the charter of a city must be published notwithstanding that it applies to only a portion of the
national territory and directly affects only the inhabitants of that place. All presidential decrees must be published,
including even, say, those naming a public place after a favored individual or exempting him from certain
prohibitions or requirements. The circulars issued by the Monetary Board must be published if they are meant not
merely to interpret but to "fill in the details" of the Central Bank Act which that body is supposed to enforce.

However, no publication is required of the instructions issued by, say, the Minister of Social Welfare on the case
studies to be made in petitions for adoption or the rules laid down by the head of a government agency on the
assignments or workload of his personnel or the wearing of office uniforms. Parenthetically, municipal ordinances
are not covered by this rule but by the Local Government Code.

We agree that the publication must be in full or it is no publication at all since its purpose is to inform the public of
the contents of the laws. As correctly pointed out by the petitioners, the mere mention of the number of the
presidential decree, the title of such decree, its whereabouts (e.g., "with Secretary Tuvera"), the supposed date
of effectivity, and in a mere supplement of the Official Gazette cannot satisfy the publication requirement. This is
not even substantial compliance. This was the manner, incidentally, in which the General Appropriations Act for
FY 1975, a presidential decree undeniably of general applicability and interest, was "published" by the Marcos
administration. 7 The evident purpose was to withhold rather than disclose information on this vital law.

Coming now to the original decision, it is true that only four justices were categorically for publication in the
Official Gazette 8 and that six others felt that publication could be made elsewhere as long as the people were
sufficiently informed. 9 One reserved his vote 10 and another merely acknowledged the need for due publication
without indicating where it should be made, 11 It is therefore necessary for the present membership of this Court
to arrive at a clear consensus on this matter and to lay down a binding decision supported by the necessary vote.

There is much to be said of the view that the publication need not be made in the Official Gazette, considering its
erratic releases and limited readership. Undoubtedly, newspapers of general circulation could better perform the
function of communicating the laws to the people as such periodicals are more easily available, have a wider
readership, and come out regularly. The trouble, though, is that this kind of publication is not the one required or
authorized by existing law. As far as we know, no amendment has been made of Article 2 of the Civil Code. The
Solicitor General has not pointed to such a law, and we have no information that it exists. If it does, it obviously
has not yet been published.

At any rate, this Court is not called upon to rule upon the wisdom of a law or to repeal or modify it if we find it
impractical. That is not our function. That function belongs to the legislature. Our task is merely to interpret and
apply the law as conceived and approved by the political departments of the government in accordance with the
prescribed procedure. Consequently, we have no choice but to pronounce that under Article 2 of the Civil Code,
the publication of laws must be made in the Official Gazette, and not elsewhere, as a requirement for their
effectivity after fifteen days from such publication or after a different period provided by the legislature.chanrobles
law library

We also hold that the publication must be made forthwith, or at least as soon as possible, to give effect to the law
pursuant to the said Article 2. There is that possibility, of course, although not suggested by the parties that a law
could be rendered unenforceable by a mere refusal of the executive, for whatever reason, to cause its publication
as required. This is a matter, however, that we do not need to examine at this time.

Finally, the claim of the former Solicitor General that the instant motion is a request for an advisory opinion is
untenable, to say the least, and deserves no further comment.

The days of the secret laws and the unpublished decrees are over. This is once again an open society, with all
the acts of the government subject to public scrutiny and available always to public cognizance. This has to be so
if our country is to remain democratic, with sovereignty residing in the people and all government authority
emanating from them.

Although they have delegated the power of legislation, they retain the authority to review the work of their
delegates and to ratify or reject it according to their lights, through their freedom of expression and their right of
suffrage. This they cannot do if the acts of the legislature are concealed.

Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with their dark,
deep secrets. Mysterious pronouncements and rumored rules cannot be recognized as binding unless their
existence and contents are confirmed by a valid publication intended to make full disclosure and give proper
notice to the people. The furtive law is like a scabbarded saber that cannot feint, parry or cut unless the naked
blade is drawn.

WHEREFORE, it is hereby declared that all laws as above defined shall immediately upon their approval, or as
soon thereafter as possible, be published in full in the Official Gazette, to become effective only after fifteen days
from their publication, or on another date specified by the legislature, in accordance with Article 2 of the Civil
Code.chanroblesvirtual|awlibrary

SO ORDERED.

Teehankee, C.J., Feria, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr ., and Paras, JJ., concur.

Separate Opinions

FERNAN, J., concurring:chanrob1es virtual 1aw library

While concurring in the Court’s opinion penned by my distinguished colleague, Mr. Justice Isagani A. Cruz, I
would like to add a few observations. Even as a Member of the defunct Batasang Pambansa, I took a strong
stand against the insidious manner by which the previous dispensation had promulgated and made effective
thousands of decrees, executive orders, letters of instructions, etc. Never has the law-making power which
traditionally belongs to the legislature been used and abused to satisfy the whims and caprices of a one-man
legislative mill as it happened in the past regime. Thus, in those days, it was not surprising to witness the sad
spectacle of two presidential decrees bearing the same number, although covering two different subject matters.
In point is the case of two presidential decrees bearing number 1686 issued on March 19, 1980, one granting
Philippine citizenship to Michael M. Keon, the then President’s nephew and the other imposing a tax on every
motor vehicle equipped with air-conditioner. This was further exacerbated by the issuance of PD No. 1686-A also
on March 19, 1980 granting Philippine citizenship to basketball players Jeffrey Moore and Dennis George
Still.chanroblesvirtualawlibrary

The categorical statement by this Court on the need for publication before any law may be made effective seeks
to prevent abuses on the part of the lawmakers and, at the same time, ensures to the people their constitutional
right to due process and to information on matters of public concern.

FELICIANO, J., concurring:chanrob1es virtual 1aw library

I agree entirely with the opinion of the court so eloquently written by Mr. Justice Isagani A. Cruz. At the same
time, I wish to add a few statements to reflect my understanding of what the Court is saying.chanrobles virtual
lawlibrary

A statute which by its terms provides for its coming into effect immediately upon approval thereof, is properly
interpreted as coming into effect immediately upon publication thereof in the Official Gazette as provided in
Article 2 of the Civil Code. Such statute, in other words, should not be regarded as purporting literally to come
into effect immediately upon its approval or enactment and without need of publication. For so to interpret such
statute would be to collide with the constitutional obstacle posed by the due process clause. The enforcement of
prescriptions which are both unknown to and unknowable by those subjected to the statute, has been throughout
history a common tool of tyrannical governments. Such application and enforcement constitutes at bottom a
negation of the fundamental principle of legality in the relations between a government and its people.

At the same time, it is clear that the requirement of publication of a statute in the Official Gazette, as
distinguished from any other medium such as a newspaper of general circulation, is embodied in a statutory
norm and is not a constitutional command. The statutory norm is set out in Article 2 of the Civil Code and is
supported and reinforced by Section 1 of Commonwealth Act No. 638 and Section 35 of the Revised
Administrative Code. A specification of the Official Gazette as the prescribed medium of publication may
therefore be changed. Article 2 of the Civil Code could, without creating a constitutional problem, be amended by
a subsequent statute providing, for instance, for publication either in the Official Gazette or in a newspaper of
general circulation in the country. Until such an amendatory statute is in fact enacted, Article 2 of the Civil Code
must be obeyed and publication effected in the Official Gazette and not in any other medium.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 164763 February 12, 2008

ZENON R. PEREZ, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN, respondents.

DECISION

REYES, R.T., J.:

PETITIONER Zenon R. Perez seeks a review1 of his conviction by the Sandiganbayan2 for
malversation of public funds3 under Article 217 of the Revised Penal Code.

This is not a big case but its implications are wide-ranging and the issues We resolve include
the rights to speedy trial and speedy disposition of a criminal case, the balancing test, due
process, and cruel and unusual punishment.

The Facts

On December 28, 1988, an audit team headed by Auditor I Arlene R. Mandin, Provincial
Auditor’s Office, Bohol,4conducted a cash examination on the account of petitioner, who was
then the acting municipal treasurer of Tubigon, Bohol.

Petitioner was absent on the first scheduled audit at his office on December 28, 1988. A radio
message was sent to Loon, the town where he resided, to apprise him of the on-going audit.
The following day, the audit team counted the cash contained in the safe of petitioner in his
presence. In the course of the audit, the amount of P21,331.79 was found in the safe of
petitioner.

The audit team embodied their findings in the Report of Cash Examination,5 which also
contained an inventory of cash items. Based on the said audit, petitioner was supposed to have
on hand the total amount of P94,116.36, instead of the P21,331.79, incurring a shortage
of P72,784.57.6

The report also contained the Cash Production Notice7 dated January 4, 1989, where petitioner
was informed and required to produce the amount of P72,784.57, and the cash count sheet
signed and acknowledged by petitioner indicating the correctness of the amount of P21,331.79
found in his safe and counted in his presence. A separate demand letter8 dated January 4, 1989
requiring the production of the missing funds was sent and received by petitioner on January 5,
1989.
When asked by the auditing team as to the location of the missing funds, petitioner verbally
explained that part of the money was used to pay for the loan of his late brother, another portion
was spent for the food of his family, and the rest for his medicine.9

As a result of the audit, Arlene R. Mandin prepared a memorandum10 dated January 13, 1989
addressed to the Provincial Auditor of Bohol recommending the filing of the appropriate criminal
case against petitioner.

On January 16, 1989, petitioner remitted to the Office of the Provincial Treasurer of Bohol the
amounts of P10,000.00 and P15,000.00, respectively. On February 14, 1989, petitioner again
remitted to the Provincial Treasurer an additional amount of P35,000.00, followed by
remittances made on February 16, 1989 in the amounts of P2,000.00 and P2,784.00.

An administrative case was filed against petitioner on February 13, 1989. He filed an
Answer11 dated February 22, 1989 reiterating his earlier verbal admission before the audit team.

On April 17, 1989, petitioner again remitted the amount of P8,000.00 to the Provincial Treasurer
of Bohol. Petitioner had then fully restituted his shortage in the amount of P72,784.57. The full
restitution of the missing money was confirmed and shown by the following receipts:12

Official Receipt Date Issued and Amount

No. Received
8266659 January 16, 1989 P10,000.00
8266660 January 16, 1989 P15,000.00
8266662 February 14, 1989 P35,000.00
8266667 February 16, 1989 P 2,000.00
8266668 February 16, 1989 P 2,784.00
8266675 April 17, 1989 P 8,000.00
TOTAL - P72,784.57

Later, petitioner was charged before the Sandiganbayan with malversation of public funds,
defined and penalized by Article 217 of the Revised Penal Code in an Information that read:

That on or about the period covering from December 28, 1988 to January 5, 1989, and
for sometime prior thereto, in the Municipality of Tubigon, Province of Bohol, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused Zenon R.
Perez, a public officer being then Acting Municipal Treasury of the said Municipality, by
reason of the duties of his official position was accountable for the public funds collected
and received by him, with grave abuse of confidence did then and there willfully,
unlawfully and feloniously misappropriate, misapply, embezzle and take away from the
said funds the total amount of SEVENTY-TWO THOUSAND SEVEN HUNDRED
EIGHTY-FOUR PESOS and 57/100 (P72,784.57), which said fund was appropriated
and converted by the said accused to his own personal use and benefit to the damage
and prejudice of the government in the aforementioned amount.

CONTRARY TO LAW.13 (Underscoring supplied)

On March 1, 1990, petitioner, duly assisted by counsel de parte, entered a plea of "not guilty."14

Pre-trial was initially set on June 4-5, 1990 but petitioner’s counsel moved for postponement.
The Sandiganbayan, however, proceeded to hear the case on June 5, 1990, as previously
scheduled, due to the presence of prosecution witness Arlene R. Mandin, who came all the way
from Bohol.

On said date, the Sandiganbayan dispensed with pre-trial and allowed the prosecution to
present its witness. Arlene R. Mandin testified as narrated above.

The defense presented evidence through petitioner Zenon R. Perez himself. He denied the
contents of his first Answer15 to the administrative case filed against him by the audit team. He
claimed it was prepared without the assistance of counsel and that at the time of its preparation
and submission, he was not in peak mental and physical condition, having been stricken with
diabetes mellitus.16

He then revoked his Answer dated February 22, 1989 and filed his second Answer dated March
2, 1989.17 In the latter, he vehemently denied that he incurred a cash shortage P72,784.57.

According to petitioner, the alleged shortage was in the possession and custody of his
accountable personnel at the time of the audit examination. Several amounts
totalling P64,784.00 were remitted to him on separate dates by his accountable officer, starting
January 16, 1989 to February 16, 1989. The same were turned over by him to the Office of the
Provincial Treasurer, leaving an unremitted sum of P8,000.00 as of February 16, 1989.18 He
remitted the P8,000.00 on April 17, 1989 to the Provincial Treasurer of Bohol, fully restoring the
cash shortage.

Petitioner further testified that on July 30, 1989, he submitted his Position Paper19 before the
Office of the Ombudsman, Cebu City and maintained that the alleged cash shortage was only
due to oversight. Petitioner argued that the government did not suffer any damage or prejudice
since the alleged cash shortage was actually deposited with the Office of the Provincial
Treasurer as evidenced by official receipts.20

Petitioner completed his testimony on September 20, 1990. He rested his case on October 20,
1990.21

Sandiganbayan Disposition

On September 24, 2003, the Sandiganbayan rendered a judgment of conviction with

a fallo reading:

WHEREFORE, judgment is hereby rendered finding the accused ZENON R.

PEREZ, GUILTY beyond reasonable doubt of the crime of Malversation of Public Funds
as defined in and penalized by Article 217 of the Revised Penal Code and, there being
one mitigating circumstance without any aggravating circumstance to offset the same, is
hereby sentenced to suffer an indeterminate penalty of from TEN (10) YEARS and ONE
(1) DAY of prision mayor as the minimum to FOURTEEN (14) YEARS and EIGHT (8)
MONTHS of reclusion temporal as the maximum and to suffer perpetual special
disqualification. The accused Zenon R. Perez is likewise ordered to pay a FINE equal to
 the total amount of the funds malversed, which is Seventy-Two Thousand Seven
Hundred Eighty-Four Pesos and Fifty-Seven Centavos (P72, 784.57).

SO ORDERED.22 (Emphasis in the original)

On January 13, 2004, petitioner filed a motion for reconsideration23 which the prosecution
opposed on January 28, 2004.24 Petitioner replied25 to the opposition. On August 6, 2004,
petitioner’s motion was denied with finality.

On September 23, 2004, petitioner resorted to the instant appeal26 raising the following issues,
to wit:

I. THE HON. SANDIGANBAYAN BY UNDULY AND UNREASONABLY DELAYING THE

DECISION OF THE CASE FOR OVER THIRTEEN (13) YEARS VIOLATED THE
PETITIONER’S RIGHT TO SPEEDY DISPOSITION OF HIS CASE AND DUE
PROCESS.

II. THE LAW RELIED UPON IN CONVICTING THE PETITIONER AND THE
SENTENCE IMPOSED IS CRUEL AND THEREFORE VIOLATES SECTION 19 OF
ARTICLE III (BILL OF RIGHTS) OF THE CONSTITUTION.27 (Underscoring supplied)

Our Ruling

Before addressing petitioner’s twin assignment of errors, We first tackle the propriety of
petitioner’s conviction for malversation of public funds.

I. Petitioner was correctly convicted of malversation.

Malversation is defined and penalized under Article 217 of the Revised Penal Code. The acts
punished as malversation are: (1) appropriating public funds or property, (2) taking or
misappropriating the same, (3) consenting, or through abandonment or negligence,
permitting any other person to take such public funds or property, and (4) being otherwise guilty
of the misappropriation or malversation of such funds or property.28

There are four elements that must concur in order that one may be found guilty of the crime.
They are:

(a) That the offender be a public officer;

(b) That he had the custody or control of funds or property by reason of the duties of his
office;

(c) That those funds or property involved were public funds or property for which he is
accountable; and

(d) That he has appropriated, took or misappropriated or consented or, through

abandonment or negligence, permitted another person to take them. 29
Evidently, the first three elements are present in the case at bar. At the time of the commission
of the crime charged, petitioner was a public officer, being then the acting municipal treasurer of
Tubigon, Bohol. By reason of his public office, he was accountable for the public funds under his
custody or control.

The question then is whether or not petitioner has appropriated, took or misappropriated, or
consented or through abandonment or negligence, permitted another person to take such funds.

We rule in the affirmative.

In malversation, all that is necessary to prove is that the defendant received in his possession
public funds; that he could not account for them and did not have them in his possession; and
that he could not give a reasonable excuse for its disappearance. An accountable public officer
may be convicted of malversation even if there is no direct evidence of misappropriation and the
only evidence is shortage in his accounts which he has not been able to explain satisfactorily.30

Verily, an accountable public officer may be found guilty of malversation even if there is no
direct evidence of malversation because the law establishes a presumption that mere failure of
an accountable officer to produce public funds which have come into his hands on demand by
an officer duly authorized to examine his accounts is prima facie case of conversion.31

Because of the prima facie presumption in Article 217, the burden of evidence is shifted to the
accused to adequately explain the location of the funds or property under his custody or control
in order to rebut the presumption that he has appropriated or misappropriated for himself the
missing funds. Failing to do so, the accused may be convicted under the said provision.

However, the presumption is merely prima facie and a rebuttable one. The accountable officer
may overcome the presumption by proof to the contrary. If he adduces evidence showing that,
in fact, he has not put said funds or property to personal use, then that presumption is at end
and the prima facie case is destroyed.32

In the case at bar, petitioner was not able to present any credible evidence to rebut the
presumption that he malversed the missing funds in his custody or control. What is extant in the
records is that the prosecution, through witness Arlene R. Mandin, was able to prove that
petitioner malversed the funds under his custody and control. As testified by Mandin:

Atty. Caballero:

Q: Was Mr. Zenon Perez actually and physically present during the time of your cash
examination?

Witness:

A. Yes, Sir.

Q: From December 28, to January 5, 1989?

A: He was present on December 28, 1988 and January 4 and 5, 1989, Sir.
 Q: Did he not make any verbal explanation as the reason why he was short of
about P72,000.00, after you conducted the cash count on January 5, 1989?

A: Yes, Sir, he did.

Q: What did he tell you?

A: He told us that he used some of the money to pay for the loan of his brother
and the other portion was spent for food of his family; and the rest for his
medicine.33 (Emphasis supplied)

Petitioner gave himself away with his first Answer filed at the Office of the Provincial Treasurer
of Bohol in the administrative case filed against him.

In that Answer, petitioner narrated how he disposed of the missing funds under his custody and
control, to wit: (1) about P30,000.00 was used to pay the commercial loan of his late brother; (2)
he spent P10,000.00 for the treatment of his toxic goiter; and (3) about P32,000.00 was spent
for food and clothing of his family, and the education of his children. He there stated:

1. That the circumstances surrounding the cash shortage in the total amount
of P72,784.57 during the examination of the respondent’s cash accounts by the
Commission on Audit on December 28-29, 1988 and January 4-5, 1989 are as follows,
to wit:

(a) That respondent paid the amount of about P30,000.00 to the Philippine
National Bank, Tagbilaran Branch as interests of the commercial loan of his
late brother Carino R. Perez using respondent’s house and lot as collateral
thereof. If the interests would not be paid, the loan would be foreclosed to
respondent’s great prejudice and disadvantage considering that he and his family
are residing in said house used as collateral;

(b) That respondent spent the amount of P10,000.00 in connection with the
treatment of his toxic goiter;

(c) That the rest of the amount amounting to about P32,000.00 was spent by
him for his family’s foods, clothings (sic), and education of his
children because his monthly salary is not enough for the needs of his family.34

By the explicit admission of petitioner, coupled with the testimony of Arlene R. Mandin, the
fourth element of the crime of malversation was duly established. His conviction thus stands
in terra firma.

True it is that petitioner filed another Answer on March 2, 1989 with the Office of the Provincial
Treasurer of Bohol, substantially changing the contents of his earlier answer of February 22,
1989. His second Answer averred:

3. That the truth of the matter is that the alleged total cash shortage of P72,784.57 were
still in the possession and custody of his accountable personnel at the time of the
examination held by the auditor of the Commission on Audit;
 4. That out of the alleged cash shortage of P72,784.57, almost all of said amount were
already remitted to him by his accountable personnel after January 5, 1989, and only the
remaining amount of P8,000.00 remains to be remitted to him by his accountable
personnel.35

The sudden turnaround of petitioner fails to convince Us. To Our mind, petitioner only changed
his story to exonerate himself, after realizing that his first Answer put him in a hole, so to speak.

It is contended that petitioner’s first Answer of February 22, 1989 should not have been given
probative weight because it was executed without the assistance of counsel.36

There is no law, jurisprudence or rule which mandates that an employee should be assisted by
counsel in an administrative case. On the contrary, jurisprudence is in unison in saying
that assistance of counsel is not indispensable in administrative proceedings.

Walang batas, hurisprudensiya, o tuntunin na nagsasabi na ang isang kawani ay dapat

may tulong ng abogado sa isang kasong administratibo. Sa katunayan, ang
hurisprudensiya ay iisa ang sinasabi na ang pagtulong ng isang abogado ay hindi
kailangang-kailangan sa kasong administratibo.

The right to counsel, which cannot be waived unless the waiver is in writing and in the presence
of counsel, is a right afforded a suspect or accused during custodial investigation. It is not an
absolute right and may be invoked or rejected in a criminal proceeding and, with more reason,
in an administrative inquiry.37

Ang karapatang magkaroon ng abogado, na hindi maaaring talikdan malibang

ang waiver ay nakasulat at sa harap ng abogado, ay karapatang ibinibigay
sa suspek o nasasakdal sa isang custodial investigation. Ito ay hindi lubos na karapatan
at maaring hingin o tanggihan sa isang prosesong kriminal, at lalo na sa isang
administratibong pagsisiyasat.

While investigations conducted by an administrative body may at times be akin to a criminal

proceeding, the fact remains that under existing laws, a party in an administrative inquiry may or
may not be assisted by counsel, irrespective of the nature of the charges and of respondent’s
capacity to represent himself, and no duty rests on such body to furnish the person being
investigated with counsel.38

Thus, the right to counsel is not imperative in administrative investigations because such
inquiries are conducted merely to determine whether there are facts that merit disciplinary
measures against erring public officers and employees, with the purpose of maintaining the
dignity of government service.39

Kung gayon, ang karapatang magkaroon ng abogado ay hindi sapilitan sa isang

administratibong imbestigasyon sapagkat ito ay ginagawa lamang upang malaman kung
may sapat na batayan na patawan ng disiplina ang nagkasalang opisyal o empleyado,
para mapanatili ang dignidad ng paglilingkod sa pamahalaan.

There is nothing in the Constitution that says that a party in a non-litigation proceeding is
entitled to be represented by counsel and that, without such representation, he shall not be
bound by such proceedings. The assistance of lawyers, while desirable, is not indispensable.
The legal profession was not engrafted in the due process clause such that without the
participation of its members, the safeguard is deemed ignored or violated. The ordinary citizen
is not that helpless that he cannot validly act at all except only with a lawyer at his side.40

More than that, petitioner’s first Answer may be taken against him, as he executed it in the
course of the administrative proceedings below. This is pursuant to Rule 130, Section 26 of the
Rules of Court which provides that the "act, declaration or omission of a party as to a relevant
fact may be given against him." In People v. Lising,41 the Court held:

Extrajudicial statements are as a rule, admissible as against their respective declarants,

pursuant to the rule that the act, declaration or omission of a party as to a relevant fact
may be given against him. This is based upon the presumption that no man would
declare anything against himself, unless such declarations were true. A man’s act,
conduct and declarations wherever made, provided they be voluntary, are admissible
against him, for the reason that it is fair to presume that they correspond with the truth
and it is his fault if they are not.

There is also no merit in the contention that petitioner’s sickness affected the preparation of his
first Answer. He presented no convincing evidence that his disease at the time he formulated
that answer diminished his capacity to formulate a true, clear and coherent response to any
query. In fact, its contents merely reiterated his verbal explanation to the auditing team on
January 5, 1989 on how he disposed of the missing funds.

II. There is no violation of the rights to a speedy disposition of the case and to due
process of law.

We now discuss the right to a speedy trial and disposition, the balancing test, due process, and
cruel and unusual punishment.

Petitioner asserts that his right to due process of law and to speedy disposition of his case was
violated because the decision of the Sandiganbayan was handed down after the lapse of more
than twelve years. The years that he had to wait for the outcome of his case were allegedly
spent in limbo, pain and agony.42

We are not persuaded.

Due process of law as applied to judicial proceedings has been interpreted to mean "a law
which hears before it condemns, which proceeds on inquiry, and renders judgment only after
trial."43 Petitioner cannot complain that his right to due process has been violated. He was given
all the chances in the world to present his case, and the Sandiganbayan rendered its decision
only after considering all the pieces of evidence presented before it.

Petitioner’s claim of violation of his right to a speedy disposition of his case must also fail.

The 1987 Constitution44 guarantees the right of an accused to speedy trial. Both the 1973
Constitution in Section 16 of Article IV and the 1987 Constitution in Section 16 of Article III, Bill
of Rights, are also explicit in granting to the accused the right to speedy disposition of his
case.45
In Barker v. Wingo,46 the United States Supreme Court was confronted for the first time
with two "rigid approaches" on speedy trial as "ways of eliminating some of the uncertainty
which courts experience protecting the right."47

The first approach is the "fixed-time period" which holds the view that "the Constitution
requires a criminal defendant to be offered a trial within a specified time period."48 The second
approach is the "demand-waiver rule" which provides that "a defendant waives any
consideration of his right to speedy trial for any period prior to which he has not demanded trial.
Under this rigid approach, a prior demand is a necessary condition to the consideration of the
speedy trial right."49

The fixed-time period was rejected because there is "no constitutional basis for holding that the
speedy trial can be quantified into a specific number of days or months."50 The demand-waiver
rule was likewise rejected because aside from the fact that it is "inconsistent with this Court’s
pronouncements on waiver of constitutional rights,"51 "it is insensitive to a right which we have
deemed fundamental."52

The Court went on to adopt a middle ground: the "balancing test," in which "the conduct of
both the prosecution and defendant are weighed."53 Mr. Justice Powell, ponente, explained the
concept, thus:

A balancing test necessarily compels courts to approach speedy trial cases on

an ad hoc basis. We can do little more than identify some of the factors which courts
should assess in determining whether a particular defendant has been deprived of his
right. Though some might express them in different ways, we identify four such
factors: Length of delay, the reason for the delay, the defendant’s assertion of his
right, and prejudice to the defendant.

The length of the delay is to some extent a triggering mechanism. Until there is some
delay which is presumptively prejudicial, there is no necessity for inquiry into the other
factors that go into the balance. Nevertheless, because of the imprecision of the
right to speedy trial, the length of delay that will provoke such an inquiry is
necessarily dependent upon the peculiar circumstances of the case. To take but
one example, the delay that can be tolerated for an ordinary street crime is considerably
less than for a serious, complex conspiracy charge.

Closely related to length of delay is the reason the government assigns to justify
the delay. Here, too, different weights should be assigned to different reasons. A
deliberate attempt to delay the trial in order to hamper the defense should be weighted
heavily against the government. A more neutral reason such as negligence or
overcrowded courts should be weighted less heavily but nevertheless should be
considered since the ultimate responsibility for such circumstances must rest with the
government rather than with the defendant. Finally, a valid reason, such as a missing
witness, should serve to justify appropriate delay. We have already discussed the
third factor, the defendant’s responsibility to assert his right. Whether and how a
defendant asserts his right is closely related to the other factors we have
mentioned. The strength of his efforts will be affected by the length of the delay, to
some extent by the reason for the delay, and most particularly by the personal
prejudice, which is not always readily identifiable, that he experiences. The more
serious the deprivation, the more likely a defendant is to complain. The defendant’s
 assertion of his speedy trial right, then, is entitled to strong evidentiary weight in
determining whether the defendant is being deprived of the right. We emphasize that
failure to assert the right will make it difficult for a defendant to prove that he was
denied a speedy trial.

A fourth factor is prejudice to the defendant. Prejudice, of course, should be

assessed in the light of the interests of defendants which the speedy trial right
was designed to protect. This Court has identified three such interests: (i) to prevent
oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the
accused; and (iii) to limit the possibility that the defense will be impaired. Of these,
the most serious is the last, because the inability of a defendant adequately to prepare
his case skews the fairness of the entire system. If witnesses die or disappear during a
delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable
to recall accurately events of the distant past. Loss of memory, however, is not always
reflected in the record because what has been forgotten can rarely be
shown.54 (Emphasis supplied)

Philippine jurisprudence has, on several occasions, adopted the balancing test.

In 1991, in Gonzales v. Sandiganbayan,55 this Court ruled:

It must be here emphasized that the right to a speedy disposition of a case, like the right
to speedy trial, is deemed violated only when the proceeding is attended by vexatious,
capricious, and oppressive delays; or when unjustified postponements of the trial are
asked for and secured, or when without cause or justifiable motive a long period of time
is allowed to elapse without the party having his case tried. Equally applicable is the
balancing test used to determine whether a defendant has been denied his right to a
speedy trial, or a speedy disposition of a case for that matter, in which the conduct of
both the prosecution and the defendant are weighed, and such factors as length of the
delay, reason for the delay, the defendant’s assertion or non-assertion of his right, and
prejudice to the defendant resulting from the delay, are considered. (Underscoring
supplied)

Subsequently, in Dela Peña v. Sandiganbayan,56 this Court again enumerated the factors that
should be considered and balanced, namely: (1) length of delay; (2) reasons for the delay; (3)
assertion or failure to assert such right by the accused; and (4) prejudice caused by the delay. 57

Once more, in Mendoza-Ong v. Sandiganbayan,58 this Court reiterated that the right to speedy
disposition of cases, like the right to speedy trial, is violated only when the proceedings are
attended by vexatious, capricious and oppressive delays.59 In the determination of whether said
right has been violated, particular regard must be taken of the facts and circumstances peculiar
to each case.60 The conduct of both the prosecution and defendant, the length of the delay, the
reasons for such delay, the assertion or failure to assert such right by accused, and the
prejudice caused by the delay are the factors to consider and balance.61

Moreover, the determination of whether the delays are of said nature is relative and cannot be
based on a mere mathematical reckoning of time.62

Measured by the foregoing yardstick, We rule that petitioner was not deprived of his right to a
speedy disposition of his case.
More important than the absence of serious prejudice, petitioner himself did not want a speedy
disposition of his case.63 Petitioner was duly represented by counsel de parte in all stages of the
proceedings before the Sandiganbayan. From the moment his case was deemed submitted for
decision up to the time he was found guilty by the Sandiganbayan, however, petitioner has not
filed a single motion or manifestation which could be construed even remotely as an indication
that he wanted his case to be dispatched without delay.

Petitioner has clearly slept on his right. The matter could have taken a different dimension if
during all those twelve years, petitioner had shown signs of asserting his right to a speedy
disposition of his case or at least made some overt acts, like filing a motion for early resolution,
to show that he was not waiving that right.64

Currit tempus contra decides et sui juris contempores: Time runs against the slothful and those
who neglect their rights. Ang panahon ay hindi panig sa mga tamad at pabaya sa kanilang
karapatan. Vigilantis sed non dormientibus jura in re subveniunt. The law aids the vigilant and
not those who slumber in their rights. Ang batas ay tumutulong sa mga mapagbantay at
hindi sa mga humihimbing sa kanilang karapatan.

Pending his conviction by the Sandiganbayan, petitioner may have truly lived in suspicion and
anxiety for over twelve years. However, any prejudice that may have been caused to him in all
those years was only minimal. The supposed gravity of agony experienced by petitioner is more
imagined than real.

This case is analogous to Guerrero v. Court of Appeals.65 There, the Court ruled that there was
no violation of petitioner’s right to speedy trial and disposition of his case inasmuch as he failed
seasonably to assert his rights:

In the present case, there is no question that petitioner raised the violation against his
own right to speedy disposition only when the respondent trial judge reset the case for
rehearing. It is fair to assume that he would have just continued to sleep on his right – a
situation amounting to laches – had the respondent judge not taken the initiative of
determining the non-completion of the records and of ordering the remedy precisely so
he could dispose of the case. The matter could have taken a different dimension if
during all those ten years between 1979 when accused filed his memorandum and 1989
when the case was re-raffled, the accused showed signs of asserting his right which was
granted him in 1987 when the new Constitution took effect, or at least made some overt
act (like a motion for early disposition or a motion to compel the stenographer to
transcribe stenographic notes) that he was not waiving it. As it is, his silence would have
to be interpreted as a waiver of such right.

While this Court recognizes the right to speedy disposition quite distinctly from the right
to a speedy trial, and although this Court has always zealously espoused protection from
oppressive and vexatious delays not attributable to the party involved, at the same time,
we hold that a party’s individual rights should not work against and preclude the people’s
equally important right to public justice. In the instant case, three people died as a result
of the crash of the airplane that the accused was flying. It appears to us that the delay in
the disposition of the case prejudiced not just the accused but the people as well. Since
the accused has completely failed to assert his right seasonably and inasmuch as the
respondent judge was not in a position to dispose of the case on the merits due to the
 absence of factual basis, we hold it proper and equitable to give the parties fair
opportunity to obtain (and the court to dispense) substantial justice in the premises.

III. The law relied upon in convicting petitioner is not cruel and unusual. It does not
violate Section 19, Article III of the Bill of Rights.

What constitutes cruel and unusual punishment has not been exactly defined.66 The Eighth
Amendment of the United States Constitution,67 the source of Section 19, Article III of the Bill of
Rights68 of our own Constitution, has yet to be put to the test to finally determine what
constitutes cruel and inhuman punishment.69

Cases that have been decided described, rather than defined, what is meant by cruel and
unusual punishment. This is explained by the pronouncement of the United States Supreme
Court that "[t]he clause of the Constitution, in the opinion of the learned commentators, may be
therefore progressive, and is not fastened to the obsolete, but may acquire meaning as public
opinion becomes enlightened by a humane justice."70

In Wilkerson v. Utah,71 Mr. Justice Clifford of the United States Supreme Court opined that
"[d]ifficulty would attend the effort to define with exactness the extent of the constitutional
provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe
to affirm that punishments of torture, x x x and all others in the same line of unnecessary cruelty,
are forbidden by that amendment to the constitution."72

In In Re: Kemmler,73 Mr. Chief Justice Fuller of that same Court stated that "[p]unishments are
cruel when they involve torture or a lingering death; but the punishment of death is not cruel
within the meaning of that word as used in the constitution. It implies x x x something more
inhuman and barbarous, something more than the mere extinguishment of life."74

Again, in Weems v. U.S.,75 Mr. Justice McKenna held for the Court that cadena temporal and its
accessory penalties "has no fellow in American legislation. Let us remember that it has come to
us from a government of a different form and genus from ours. It is cruel in its excess of
imprisonment and that which accompanies and follows imprisonment. It is unusual in character.
Its punishments come under the condemnation of the Bill of Rights, both on account of their
degree and kind. And they would have those bad attributes even if they were found in a Federal
enactment, and not taken from an alien source."

In Echegaray v. Executive Secretary,76 this Court in a per curiam Decision held that Republic
Act No. 8177,77even if it does not provide in particular the details involved in the execution by
lethal injection, is not cruel, degrading or inhuman, and is thus constitutional. Any infliction of
pain in lethal injection is merely incidental in carrying out the execution of the death penalty and
does not fall within the constitutional proscription against cruel, degrading or inhuman
punishment.78

The Court adopted the American view that what is cruel and unusual is not fastened to the
obsolete but may acquire meaning as public opinion becomes enlightened by humane justice
and must draw its meaning from the evolving standards of decency that mark the progress of a
maturing society.79

In his last ditch effort to exculpate himself, petitioner argues that the penalty meted for the crime
of malversation of public funds "that ha[ve] been replenished, remitted and/or returned" to the
government is cruel and therefore unconstitutional, "as government has not suffered any
damage."80

The argument is specious on two grounds.

First. What is punished by the crime of malversation is the act of a public officer who, by reason
of the duties of his office, is accountable for public funds or property, shall appropriate the same,
or shall take and misappropriate or shall consent, or through abandonment or negligence shall
permit any other person to take such public funds or property, wholly or partially, or shall
otherwise be guilty of the misappropriation or malversation of such funds or property. 81

Payment or reimbursement is not a defense for exoneration in malversation; it may only be

considered as a mitigating circumstance. This is because damage is not an element of
malversation.

Second. There is strong presumption of constitutionality accorded to statutes.

It is established doctrine that a statute should be construed whenever possible in harmony with,
rather than in violation of, the Constitution.82 The presumption is that the legislature intended to
enact a valid, sensible and just law and one which operates no further than may be necessary
to effectuate the specific purpose of the law.83 It is presumed that the legislature has acted
within its constitutional powers. So, it is the generally accepted rule that every statute, or
regularly accepted act, is, or will be, or should be, presumed to be valid and constitutional.84

He who attacks the constitutionality of a law has the onus probandi to show why such law is
repugnant to the Constitution. Failing to overcome its presumption of constitutionality, a claim
that a law is cruel, unusual, or inhuman, like the stance of petitioner, must fail.

IV. On the penalty

The Sandiganbayan sentenced petitioner to an indeterminate sentence of ten (10) years and
one (1) day of prision mayor, as minimum, to fourteen (14) years and eight (8) months
of reclusion temporal, as maximum. In imposing the penalty, it found that petitioner was entitled
to the mitigating circumstance of payment which is akin to voluntary surrender.

Article 217 penalizes malversation in the following tenor:

Article 217. Malversation of public funds or property. – Presumption of malversation. –

Any public officer who, by reason of the duties of his office, is accountable for public
funds or property, shall appropriate the same, or shall take and misappropriate or shall
consent, or through abandonment or negligence shall permit any other person to take
such public funds or property, wholly or partially, or shall otherwise be guilty of the
misappropriation or malversation of such funds or property.

xxxx

4. The penalty of reclusion temporal in its medium and maximum periods, if the
amount involved is more than 12,000 but is less than 22,000 pesos. If the
 amount exceeds the latter, the penalty shall be reclusion temporal in its
maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual
special disqualification and a fine equal to the amount of the funds malversed or equal to
the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with
which he is chargeable upon demand by any duly authorized officer, shall be prima
facie evidence that he has put such missing funds or property to personal uses.
(Underscoring supplied)

The amount malversed totalled P72,784.57. The prescribed penalty is reclusion temporal in its
maximum period to reclusion perpetua, which has a range of seventeen (17) years, four (4)
months and one (1) day to forty (40) years.

However, the commission of the crime was attended by the mitigating circumstance akin to
voluntary surrender. As correctly observed by the Sandiganbayan, petitioner restituted the full
amount even before the prosecution could present its evidence. That is borne by the records.

It bears stressing that the full restitution of the amount malversed will not in any way exonerate
an accused, as payment is not one of the elements of extinction of criminal liability. Under the
law, the refund of the sum misappropriated, even before the commencement of the criminal
prosecution, does not exempt the guilty person from liability for the crime.85 At most, then,
payment of the amount malversed will only serve as a mitigating circumstance86 akin to
voluntary surrender, as provided for in paragraph 7 of Article 1387 in relation to paragraph 1088 of
the same Article of the Revised Penal Code.

But the Court also holds that aside from voluntary surrender, petitioner is entitled to the
mitigating circumstance of no intention to commit so grave a wrong,89 again in relation to
paragraph 10 of Article 13.90

The records bear out that petitioner misappropriated the missing funds under his custody and
control because he was impelled by the genuine love for his brother and his family. Per his
admission, petitioner used part of the funds to pay off a debt owed by his brother. Another
portion of the misappropriated funds went to his medications for his debilitating diabetes.

Further, as shown earlier, petitioner restituted all but Eight Thousand Pesos (P8,000.00) of the
funds in less than one month and a half and said small balance in three (3) months from receipt
of demand of COA on January 5, 1999. Evidently, there was no intention to commit so grave a
wrong.

Of course, the end does not justify the means. To condone what petitioner has done because of
the nobility of his purpose or financial emergencies will become a potent excuse for malefactors
and open the floodgates for more corruption in the government, even from "small fry" like him.

The bottom line is a guilty person deserves the penalty given the attendant circumstances and
commensurate with the gravity of the offense committed. Thus, a reduction in the imposable
penalty by one degree is in order. Article 64 of the Revised Penal Code is explicit:
 Art. 64. Rules for the application of penalties which contain three periods. – In cases in
which the penalties prescribed by law contains three periods, whether it be a single
divisible penalty or composed of three difference penalties, each one of which forms a
period in accordance with the provisions of Articles 76 and 77, the courts shall observe
for the application of the penalty, the following rules, according to whether there are no
mitigating or aggravating circumstances:

xxxx

5. When there are two or more mitigating circumstances and no aggravating

circumstances are present, the court shall impose the penalty next lower to that
prescribed by law, in the period that it may deem applicable, according to the
number and nature of such circumstances. (Underscoring supplied)

Considering that there are two mitigating circumstances, the prescribed penalty is reduced
to prision mayor in its maximum period to reclusion temporal in its medium period, to be
imposed in any of its periods. The new penalty has a range of ten (10) years and one (1) day to
seventeen (17) years and four (4) months. Applying the Indeterminate Sentence
Law,91 the maximum term could be ten (10) years and one (1) day of prision mayor maximum,
while the minimum term is again one degree lower92 and could be four (4) years, two (2) months
and one (1) day of prision correccional maximum.

In the 1910 case of U.S. v. Reyes,93 the trial judge entered a judgment of conviction against the
accused and meted to him the penalty of "three years’ imprisonment, to pay a fine of P1,500.00,
and in case of insolvency to suffer subsidiary imprisonment at the rate of one day for
every P2.50 that he failed to pay, which subsidiary imprisonment, however, should not exceed
one third of the principal penalty" and to be "perpetually disqualified for public office and to pay
the costs." This was well within the imposable penalty then under Section 1 of Act No.
1740,94 which is "imprisonment for not less than two months nor more than ten years and, in the
discretion of the court, by a fine of not more than the amount of such funds and the value of
such property."

On appeal to the Supreme Court, the accused’s conviction was affirmed but his sentence was
modified and reduced to six months. The court, per Mr. Justice Torres, reasoned thus:

For the foregoing reasons the several unfounded errors assigned to the judgment
appealed from have been fully refuted, since in conclusion it is fully shown that the
accused unlawfully disposed of a portion of the municipal funds, putting the same to his
own use, and to that of other persons in violation of Act. No. 1740, and consequently he
has incurred the penalty therein established as principal of the crime of
misappropriation; and even though in imposing it, it is not necessary to adhere to the
rules of the Penal Code, the court in using its discretional powers as authorized by law,
believes that the circumstances present in the commission of crimes should be taken
into consideration, and in the present case the amount misappropriated was refunded at
the time the funds were counted.95 (Underscoring supplied)

We opt to exercise an analogous discretion.

WHEREFORE, the Decision of the Sandiganbayan dated September 24, 2003

is AFFIRMED with the MODIFICATION that petitioner is hereby sentenced to suffer the
indeterminate penalty of four (4) years, two (2) months and one (1) day of prision correccional,
as minimum term, to ten (10) years and one (1) day of prision mayor, as maximum term, with
perpetual special disqualification. He is likewise ORDERED to pay a fine of P72,784.57, the
amount equal to the funds malversed.

Costs against petitioner.

SO ORDERED.

RUBEN T. REYES
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MA. ALICIA AUSTRIA-MARTINEZ *RENATO C. CORONA

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court’s Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s
Attestation, I certify that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-28196 November 9, 1967

RAMON A. GONZALES, petitioner,

vs.
COMMISSION ON ELECTIONS, DIRECTOR OF PRINTING and AUDITOR
GENERAL, respondents.

G.R. No. L-28224 November 9, 1967

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

No. 28196:
Ramon A. Gonzales for and in his own behalf as petitioner.
Juan T. David as amicus curiae
Office of the Solicitor General for respondents.

No. 28224:
Salvador Araneta for petitioner.
Office of the Solicitor General for respondent.

CONCEPCION, C.J.:

G. R. No. L-28196 is an original action for prohibition, with preliminary injunction.

Petitioner therein prays for judgment:

1) Restraining: (a) the Commission on Elections from enforcing Republic Act No. 4913, or from
performing any act that will result in the holding of the plebiscite for the ratification of the
constitutional amendments proposed in Joint Resolutions Nos. 1 and 3 of the two Houses of
Congress of the Philippines, approved on March 16, 1967; (b) the Director of Printing from
printing ballots, pursuant to said Act and Resolutions; and (c) the Auditor General from passing
in audit any disbursement from the appropriation of funds made in said Republic Act No. 4913;
and

2) declaring said Act unconstitutional and void.

The main facts are not disputed. On March 16, 1967, the Senate and the House of
Representatives passed the following resolutions:

1. R. B. H. (Resolution of Both Houses) No. 1, proposing that Section 5, Article VI, of the
Constitution of the Philippines, be amended so as to increase the membership of the House of
Representatives from a maximum of 120, as provided in the present Constitution, to a maximum
of 180, to be apportioned among the several provinces as nearly as may be according to the
number of their respective inhabitants, although each province shall have, at least, one (1)
member;

2. R. B. H. No. 2, calling a convention to propose amendments to said Constitution, the

convention to be composed of two (2) elective delegates from each representative district, to be
"elected in the general elections to be held on the second Tuesday of November, 1971;" and

3. R. B. H. No. 3, proposing that Section 16, Article VI, of the same Constitution, be amended so
as to authorize Senators and members of the House of Representatives to become delegates to
the aforementioned constitutional convention, without forfeiting their respective seats in
Congress.

Subsequently, Congress passed a bill, which, upon approval by the President, on June 17,
1967, became Republic Act No. 4913, providing that the amendments to the Constitution
proposed in the aforementioned Resolutions No. 1 and 3 be submitted, for approval by the
people, at the general elections which shall be held on November 14, 1967.

The petition in L-28196 was filed on October 21, 1967. At the hearing thereof, on October 28,
1967, the Solicitor General appeared on behalf of respondents. Moreover, Atty. Juan T. David
and counsel for the Philippine Constitution Association — hereinafter referred to as the
PHILCONSA — were allowed to argue as amici curiae. Said counsel for the PHILCONSA, Dr.
Salvador Araneta, likewise prayed that the decision in this case be deferred until after a
substantially identical case brought by said organization before the Commission on
Elections,1 which was expected to decide it any time, and whose decision would, in all
probability, be appealed to this Court — had been submitted thereto for final determination, for a
joint decision on the identical issues raised in both cases. In fact, on October 31, 1967, the
PHILCONSA filed with this Court the petition in G. R. No. L-28224, for review by certiorari of the
resolution of the Commission on Elections2 dismissing the petition therein. The two (2) cases
were deemed submitted for decision on November 8, 1967, upon the filing of the answer of
respondent, the memorandum of the petitioner and the reply memorandum of respondent in L-
28224.

Ramon A. Gonzales, the petitioner in L-28196, is admittedly a Filipino citizen, a taxpayer, and a
voter. He claims to have instituted case L-28196 as a class unit, for and in behalf of all citizens,
taxpayers, and voters similarly situated. Although respondents and the Solicitor General have
filed an answer denying the truth of this allegation, upon the ground that they have no
knowledge or information to form a belief as to the truth thereof, such denial would appear to be
a perfunctory one. In fact, at the hearing of case L-28196, the Solicitor General expressed
himself in favor of a judicial determination of the merits of the issued raised in said case.

The PHILCONSA, petitioner in L-28224, is admittedly a corporation duly organized and existing
under the laws of the Philippines, and a civic, non-profit and non-partisan organization the
objective of which is to uphold the rule of law in the Philippines and to defend its Constitution
against erosions or onslaughts from whatever source. Despite his aforementioned statement in
L-28196, in his answer in L-28224 the Solicitor General maintains that this Court has no
jurisdiction over the subject-matter of L-28224, upon the ground that the same is "merely
political" as held in Mabanag vs. Lopez Vito.3 Senator Arturo M. Tolentino, who appeared before
the Commission on Elections and filed an opposition to the PHILCONSA petition therein, was
allowed to appear before this Court and objected to said petition upon the ground: a) that the
Court has no jurisdiction either to grant the relief sought in the petition, or to pass upon the
legality of the composition of the House of Representatives; b) that the petition, if granted,
would, in effect, render in operational the legislative department; and c) that "the failure of
Congress to enact a valid reapportionment law . . . does not have the legal effect of rendering
illegal the House of Representatives elected thereafter, nor of rendering its acts null and void."

JURISDICTION

As early as Angara vs. Electoral Commission,4 this Court — speaking through one of the
leading members of the Constitutional Convention and a respected professor of Constitutional
Law, Dr. Jose P. Laurel — declared that "the judicial department is the only constitutional organ
which can be called upon to determine the proper allocation of powers between the several
departments and among the integral or constituent units thereof." It is true that in Mabanag vs.
Lopez Vito,5 this Court characterizing the issue submitted thereto as a political one, declined to
pass upon the question whether or not a given number of votes cast in Congress in favor of a
proposed amendment to the Constitution — which was being submitted to the people for
ratification — satisfied the three-fourths vote requirement of the fundamental law. The force of
this precedent has been weakened, however, by Suanes vs. Chief Accountant of the
Senate,6 Avelino vs. Cuenco,7 Tañada vs. Cuenco,8 and Macias vs. Commission on
Elections.9 In the first, we held that the officers and employees of the Senate Electoral Tribunal
are under its supervision and control, not of that of the Senate President, as claimed by the
latter; in the second, this Court proceeded to determine the number of Senators necessary for
a quorum in the Senate; in the third, we nullified the election, by Senators belonging to the party
having the largest number of votes in said chamber, purporting to act on behalf of the party
having the second largest number of votes therein, of two (2) Senators belonging to the first
party, as members, for the second party, of the, Senate Electoral Tribunal; and in the fourth, we
declared unconstitutional an act of Congress purporting to apportion the representative districts
for the House of Representatives, upon the ground that the apportionment had not been made
as may be possible according to the number of inhabitants of each province. Thus we rejected
the theory, advanced in these four (4) cases, that the issues therein raised were political
questions the determination of which is beyond judicial review.

Indeed, the power to amend the Constitution or to propose amendments thereto is not included
in the general grant of legislative powers to Congress.10 It is part of the inherent powers of the
people — as the repository of sovereignty in a republican state, such as ours11 — to make, and,
hence, to amend their own Fundamental Law. Congress may propose amendments to the
Constitution merely because the same explicitly grants such power.12Hence, when exercising
the same, it is said that Senators and Members of the House of Representatives act, not as
members of Congress, but as component elements of a constituent assembly. When acting as
such, the members of Congress derive their authority from the Constitution, unlike the people,
when performing the same function,13 for their authority does not emanate from the Constitution
— they are the very source of all powers of government, including the Constitution itself .

Since, when proposing, as a constituent assembly, amendments to the Constitution, the

members of Congress derive their authority from the Fundamental Law, it follows, necessarily,
that they do not have the final say on whether or not their acts are within or beyond
constitutional limits. Otherwise, they could brush aside and set the same at naught, contrary to
the basic tenet that ours is a government of laws, not of men, and to the rigid nature of our
Constitution. Such rigidity is stressed by the fact that, the Constitution expressly confers upon
the Supreme Court,14 the power to declare a treaty unconstitutional,15 despite the eminently
political character of treaty-making power.

In short, the issue whether or not a Resolution of Congress — acting as a constituent assembly
— violates the Constitution essentially justiciable, not political, and, hence, subject to judicial
review, and, to the extent that this view may be inconsistent with the stand taken in Mabanag
vs. Lopez Vito,16 the latter should be deemed modified accordingly. The Members of the Court
are unanimous on this point.

THE MERITS

Section 1 of Article XV of the Constitution, as amended, reads:

The Congress in joint session assembled by a vote of three-fourths of all the Members of
the Senate and of the House of Representatives voting separately, may propose
amendments to this Constitution or call a convention for that purpose. Such
amendments shall be valid as part of this Constitution when approved by a majority of
the votes cast at an election at which the amendments are submitted to the people for
their ratification.

Pursuant to this provision, amendments to the Constitution may be proposed, either by

Congress, or by a convention called by Congress for that purpose. In either case, the vote of
"three-fourths of all the members of the Senate and of the House of Representatives voting
separately" is necessary. And, "such amendments shall be valid as part of" the "Constitution
when approved by a majority of the votes cast at an election at which the amendments are
submitted to the people for their ratification."

In the cases at bar, it is conceded that the R. B. H. Nos. 1 and 3 have been approved by a vote
of three-fourths of all the members of the Senate and of the House of Representatives voting
separately. This, notwithstanding, it is urged that said resolutions are null and void because:

1. The Members of Congress, which approved the proposed amendments, as well as the
resolution calling a convention to propose amendments, are, at best, de facto Congressmen;

2. Congress may adopt either one of two alternatives propose — amendments or call a
convention therefore but may not avail of both — that is to say, propose amendment and call a
convention — at the same time;

3. The election, in which proposals for amendment to the Constitution shall be submitted for
ratification, must be a special election, not a general election, in which officers of the national
and local governments — such as the elections scheduled to be held on November 14, 1967 —
will be chosen; and

4. The spirit of the Constitution demands that the election, in which proposals for amendment
shall be submitted to the people for ratification, must be held under such conditions — which,
allegedly, do not exist — as to give the people a reasonable opportunity to have a fair grasp of
the nature and implications of said amendments.

Legality of Congress and Legal Status of the Congressmen

The first objection is based upon Section 5, Article VI, of the Constitution, which provides:

The House of Representatives shall be composed of not more than one hundred and
twenty Members who shall be apportioned among the several provinces as nearly as
may be according to the number of their respective inhabitants, but each province shall
have at least one Member. The Congress shall by law make an apportionment within
three years after the return of every enumeration, and not otherwise. Until such
apportionment shall have been made, the House of Representatives shall have the
same number of Members as that fixed by law for the National Assembly, who shall be
elected by the qualified electors from the present Assembly districts. Each
representative district shall comprise, as far as practicable, contiguous and compact
territory.

It is urged that the last enumeration or census took place in 1960; that, no apportionment having
been made within three (3) years thereafter, the Congress of the Philippines and/or the election
of its Members became illegal; that Congress and its Members, likewise, became a de
facto Congress and/or de facto congressmen, respectively; and that, consequently, the disputed
Resolutions, proposing amendments to the Constitution, as well as Republic Act No. 4913, are
null and void.

It is not true, however, that Congress has not made an apportionment within three years after
the enumeration or census made in 1960. It did actually pass a bill, which became Republic Act
No. 3040,17 purporting to make said apportionment. This Act was, however, declared
unconstitutional, upon the ground that the apportionment therein undertaken had not been
made according to the number of inhabitants of the different provinces of the Philippines.18

Moreover, we are unable to agree with the theory that, in view of the failure of Congress to
make a valid apportionment within the period stated in the Constitution, Congress became an
"unconstitutional Congress" and that, in consequence thereof, the Members of its House of
Representatives are de facto officers. The major premise of this process of reasoning is that the
constitutional provision on "apportionment within three years after the return of every
enumeration, and not otherwise," is mandatory. The fact that Congress is under legal obligation
to make said apportionment does not justify, however, the conclusion that failure to comply with
such obligation rendered Congress illegal or unconstitutional, or that its Members have
become de facto officers.

It is conceded that, since the adoption of the Constitution in 1935, Congress has not made a
valid apportionment as required in said fundamental law. The effect of this omission has been
envisioned in the Constitution, pursuant to which:

. . . Until such apportionment shall have been made, the House of Representatives shall
have the same number of Members as that fixed by law for the National Assembly, who
shall be elected by the qualified electors from the present Assembly districts. . . . .

The provision does not support the view that, upon the expiration of the period to make the
apportionment, a Congress which fails to make it is dissolved or becomes illegal. On the
contrary, it implies necessarily that Congress shall continue to function with the representative
districts existing at the time of the expiration of said period.
It is argued that the above-quoted provision refers only to the elections held in 1935. This theory
assumes that an apportionment had to be made necessarily before the first elections to be held
after the inauguration of the Commonwealth of the Philippines, or in 1938.19 The assumption, is,
however, unwarranted, for there had been no enumeration in 1935, and nobody could foretell
when it would be made. Those who drafted and adopted the Constitution in 1935 could be
certain, therefore, that the three-year period, after the earliest possible enumeration, would
expire after the elections in 1938.

What is more, considering that several provisions of the Constitution, particularly those on the
legislative department, were amended in 1940, by establishing a bicameral Congress, those
who drafted and adopted said amendment, incorporating therein the provision of the original
Constitution regarding the apportionment of the districts for representatives, must have known
that the three-year period therefor would expire after the elections scheduled to be held and
actually held in 1941.

Thus, the events contemporaneous with the framing and ratification of the original Constitution
in 1935 and of the amendment thereof in 1940 strongly indicate that the provision concerning
said apportionment and the effect of the failure to make it were expected to be applied to
conditions obtaining after the elections in 1935 and 1938, and even after subsequent elections.

Then again, since the report of the Director of the Census on the last enumeration was
submitted to the President on November 30, 1960, it follows that the three-year period to make
the apportionment did not expire until 1963, or after the Presidential elections in 1961. There
can be no question, therefore, that the Senate and the House of Representatives organized or
constituted on December 30, 1961, were de jure bodies, and that the Members thereof were de
jure officers. Pursuant to the theory of petitioners herein, upon expiration of said period of three
years, or late in 1963, Congress became illegal and its Members, or at least, those of the House
of Representatives, became illegal holder of their respective offices, and were de facto officers.

Petitioners do not allege that the expiration of said three-year period without a reapportionment,
had the effect of abrogating or repealing the legal provision creating Congress, or, at least, the
House of Representatives, and are not aware of any rule or principle of law that would warrant
such conclusion. Neither do they allege that the term of office of the members of said House
automatically expired or that they ipso facto forfeited their seats in Congress, upon the lapse of
said period for reapportionment. In fact, neither our political law, nor our law on public officers, in
particular, supports the view that failure to discharge a mandatory duty, whatever it may be,
would automatically result in the forfeiture of an office, in the absence of a statute to this effect.

Similarly, it would seem obvious that the provision of our Election Law relative to the election of
Members of Congress in 1965 were not repealed in consequence of the failure of said body to
make an apportionment within three (3) years after the census of 1960. Inasmuch as the
general elections in 1965 were presumably held in conformity with said Election Law, and the
legal provisions creating Congress — with a House of Representatives composed of members
elected by qualified voters of representative districts as they existed at the time of said elections
— remained in force, we can not see how said Members of the House of Representatives can
be regarded as de facto officers owing to the failure of their predecessors in office to make a
reapportionment within the period aforementioned.

Upon the other hand, the Constitution authorizes the impeachment of the President, the Vice-
President, the Justices of the Supreme Court and the Auditor General for, inter alia, culpable
violation of the Constitution,20 the enforcement of which is, not only their mandatory duty, but
also, their main function. This provision indicates that, despite the violation of such mandatory
duty, the title to their respective offices remains unimpaired, until dismissal or ouster pursuant to
a judgment of conviction rendered in accordance with Article IX of the Constitution. In short, the
loss of office or the extinction of title thereto is not automatic.

Even if we assumed, however, that the present Members of Congress are merely de
facto officers, it would not follow that the contested resolutions and Republic Act No. 4913 are
null and void. In fact, the main reasons for the existence of the de facto doctrine is that public
interest demands that acts of persons holding, under color of title, an office created by a valid
statute be, likewise, deemed valid insofar as the public — as distinguished from the officer in
question — is concerned.21 Indeed, otherwise, those dealing with officers and employees of the
Government would be entitled to demand from them satisfactory proof of their title to the
positions they hold, before dealing with them, or before recognizing their authority or obeying
their commands, even if they should act within the limits of the authority vested in their
respective offices, positions or employments.22 One can imagine this great inconvenience,
hardships and evils that would result in the absence of the de facto doctrine.

As a consequence, the title of a de facto officer cannot be assailed collaterally.23 It may not be
contested except directly, by quo warranto proceedings. Neither may the validity of his acts be
questioned upon the ground that he is merely a de facto officer.24 And the reasons are obvious:
(1) it would be an indirect inquiry into the title to the office; and (2) the acts of a de facto officer,
if within the competence of his office, are valid, insofar as the public is concerned.

It is argued that the foregoing rules do not apply to the cases at bar because the acts therein
involved have not been completed and petitioners herein are not third parties. This pretense is
untenable. It is inconsistent with Tayko vs. Capistrano.25 In that case, one of the parties to a suit
being heard before Judge Capistrano objected to his continuing to hear the case, for the reason
that, meanwhile, he had reached the age of retirement. This Court held that the objection could
not be entertained, because the Judge was at least, a de facto Judge, whose title can not be
assailed collaterally. It should be noted that Tayko was not a third party insofar as the Judge
was concerned. Tayko was one of the parties in the aforementioned suit. Moreover, Judge
Capistrano had not, as yet, finished hearing the case, much less rendered decision therein. No
rights had vested in favor of the parties, in consequence of the acts of said Judge. Yet, Tayko's
objection was overruled. Needless to say, insofar as Congress is concerned, its acts, as regards
the Resolutions herein contested and Republic Act No. 4913, are complete. Congress has
nothing else to do in connection therewith.

The Court is, also, unanimous in holding that the objection under consideration is untenable.

Available Alternatives to Congress

Atty. Juan T. David, as amicus curiae, maintains that Congress may either propose
amendments to the Constitution or call a convention for that purpose, but it can not do both, at
the same time. This theory is based upon the fact that the two (2) alternatives are connected in
the Constitution by the disjunctive "or." Such basis is, however, a weak one, in the absence of
other circumstances — and none has brought to our attention — supporting the conclusion
drawn by the amicus curiae. In fact, the term "or" has, oftentimes, been held to mean "and," or
vice-versa, when the spirit or context of the law warrants it.26
It is, also, noteworthy that R. B. H. Nos. 1 and 3 propose amendments to the constitutional
provision on Congress, to be submitted to the people for ratification on November 14, 1967,
whereas R. B. H. No. 2 calls for a convention in 1971, to consider proposals for amendment to
the Constitution, in general. In other words, the subject-matter of R. B. H. No. 2 is different from
that of R B. H. Nos. 1 and 3. Moreover, the amendments proposed under R. B. H. Nos. 1 and 3,
will be submitted for ratification several years before those that may be proposed by the
constitutional convention called in R. B. H. No. 2. Again, although the three (3) resolutions were
passed on the same date, they were taken up and put to a vote separately, or one after the
other. In other words, they were not passed at the same time.

In any event, we do not find, either in the Constitution, or in the history thereof anything that
would negate the authority of different Congresses to approve the contested Resolutions, or of
the same Congress to pass the same in, different sessions or different days of the same
congressional session. And, neither has any plausible reason been advanced to justify the
denial of authority to adopt said resolutions on the same day.

Counsel ask: Since Congress has decided to call a constitutional convention to propose
amendments, why not let the whole thing be submitted to said convention, instead of, likewise,
proposing some specific amendments, to be submitted for ratification before said convention is
held? The force of this argument must be conceded. but the same impugns the wisdom of the
action taken by Congress, not its authority to take it. One seeming purpose thereof to permit
Members of Congress to run for election as delegates to the constitutional convention and
participate in the proceedings therein, without forfeiting their seats in Congress. Whether or not
this should be done is a political question, not subject to review by the courts of justice.

On this question there is no disagreement among the members of the Court.

May Constitutional Amendments Be Submitted for Ratification in a General Election?

Article XV of the Constitution provides:

. . . The Congress in joint session assembled, by a vote of three-fourths of all the

Members of the Senate and of the House of Representatives voting separately, may
propose amendments to this Constitution or call a contention for that purpose. Such
amendments shall be valid as part of this Constitution when approved by a majority of
the votes cast at an election at which the amendments are submitted to the people for
their ratification.

There is in this provision nothing to indicate that the "election" therein referred to is a "special,"
not a general, election. The circumstance that three previous amendments to the Constitution
had been submitted to the people for ratification in special elections merely shows that
Congress deemed it best to do so under the circumstances then obtaining. It does not negate its
authority to submit proposed amendments for ratification in general elections.

It would be better, from the viewpoint of a thorough discussion of the proposed amendments,
that the same be submitted to the people's approval independently of the election of public
officials. And there is no denying the fact that an adequate appraisal of the merits and demerits
proposed amendments is likely to be overshadowed by the great attention usually commanded
by the choice of personalities involved in general elections, particularly when provincial and
municipal officials are to be chosen. But, then, these considerations are addressed to the
wisdom of holding a plebiscite simultaneously with the election of public officer. They do not
deny the authority of Congress to choose either alternative, as implied in the term "election"
used, without qualification, in the abovequoted provision of the Constitution. Such authority
becomes even more patent when we consider: (1) that the term "election," normally refers to the
choice or selection of candidates to public office by popular vote; and (2) that the word used in
Article V of the Constitution, concerning the grant of suffrage to women is, not "election," but
"plebiscite."

Petitioners maintain that the term "election," as used in Section 1 of Art. XV of the Constitution,
should be construed as meaning a special election. Some members of the Court even feel that
said term ("election") refers to a "plebiscite," without any "election," general or special, of public
officers. They opine that constitutional amendments are, in general, if not always, of such
important, if not transcendental and vital nature as to demand that the attention of the people be
focused exclusively on the subject-matter thereof, so that their votes thereon may reflect no
more than their intelligent, impartial and considered view on the merits of the proposed
amendments, unimpaired, or, at least, undiluted by extraneous, if not insidious factors, let alone
the partisan political considerations that are likely to affect the selection of elective officials.

This, certainly, is a situation to be hoped for. It is a goal the attainment of which should be
promoted. The ideal conditions are, however, one thing. The question whether the
Constitution forbids the submission of proposals for amendment to the people except under
such conditions, is another thing. Much as the writer and those who concur in this opinion
admire the contrary view, they find themselves unable to subscribe thereto without, in effect,
reading into the Constitution what they believe is not written thereon and can not fairly be
deduced from the letter thereof, since the spirit of the law should not be a matter of sheer
speculation.

The majority view — although the votes in favor thereof are insufficient to declare Republic Act
No. 4913 unconstitutional — as ably set forth in the opinion penned by Mr. Justice Sanchez, is,
however, otherwise.

Would the Submission now of the Contested Amendments to the People Violate the Spirit of the
Constitution?

It should be noted that the contested Resolutions were approved on March 16, 1967, so that, by
November 14, 1967, our citizenry shall have had practically eight (8) months to be informed on
the amendments in question. Then again, Section 2 of Republic Act No. 4913 provides:

(1) that "the amendments shall be published in three consecutive issues of the Official Gazette,
at least twenty days prior to the election;"

(2) that "a printed copy of the proposed amendments shall be posted in a conspicuous place in
every municipality, city and provincial office building and in every polling place not later than
October 14, 1967," and that said copy "shall remain posted therein until after the election;"

(3) that "at least five copies of said amendment shall be kept in each polling place, to be made
available for examination by the qualified electors during election day;"

(4) that "when practicable, copies in the principal native languages, as may be determined by
the Commission on Elections, shall be kept in each polling place;"
(5) that "the Commission on Elections shall make available copies of said amendments in
English, Spanish and, whenever practicable, in the principal native languages, for free
distributing:" and

(6) that the contested Resolutions "shall be printed in full" on the back of the ballots which shall
be used on November 14, 1967.

We are not prepared to say that the foregoing measures are palpably inadequate to comply with
the constitutional requirement that proposals for amendment be "submitted to the people for
their ratification," and that said measures are manifestly insufficient, from a constitutional
viewpoint, to inform the people of the amendment sought to be made.

These were substantially the same means availed of to inform the people of the subject
submitted to them for ratification, from the original Constitution down to the Parity Amendment.
Thus, referring to the original Constitution, Section 1 of Act No. 4200, provides:

Said Constitution, with the Ordinance appended thereto, shall be published in the Official
Gazette, in English and in Spanish, for three consecutive issues at least fifteen days
prior to said election, and a printed copy of said Constitution, with the Ordinance
appended thereto, shall be posted in a conspicuous place in each municipal and
provincial government office building and in each polling place not later than the twenty-
second day of April, nineteen hundred and thirty-five, and shall remain posted therein
continually until after the termination of the election. At least ten copies of the
Constitution with the Ordinance appended thereto, in English and in Spanish, shall be
kept at each polling place available for examination by the qualified electors during
election day. Whenever practicable, copies in the principal local dialects as may be
determined by the Secretary of the Interior shall also be kept in each polling place.

The provision concerning woman's suffrage is Section 1 of Commonwealth Act No. 34, reading:

Said Article V of the Constitution shall be published in the Official Gazette, in English
and in Spanish, for three consecutive issues at least fifteen days prior to said election,
and the said Article V shall be posted in a conspicuous place in each municipal and
provincial office building and in each polling place not later than the twenty-second day
of April, nineteen and thirty-seven, and shall remain posted therein continually until after
the termination of the plebiscite. At least ten copies of said Article V of the Constitution,
in English and in Spanish, shall be kept at each polling place available for examination
by the qualified electors during the plebiscite. Whenever practicable, copies in the
principal native languages, as may be determined by the Secretary of the Interior, shall
also be kept in each polling place.

Similarly, Section 2, Commonwealth Act No. 517, referring to the 1940 amendments, is of the
following tenor:

The said amendments shall be published in English and Spanish in three consecutive
issues of the Official Gazette at least twenty days prior to the election. A printed copy
thereof shall be posted in a conspicuous place in every municipal, city, and provincial
government office building and in every polling place not later than May eighteen,
nineteen hundred and forty, and shall remain posted therein until after the election. At
least ten copies of said amendments shall be kept in each polling place to be made
 available for examination by the qualified electors during election day. When practicable,
copies in the principal native languages, as may be determined by the Secretary of the
Interior, shall also be kept therein.

As regards the Parity Amendment, Section 2 of Republic Act No. 73 is to the effect that:

The said amendment shall be published in English and Spanish in three consecutive
issues of the Official Gazette at least twenty days prior to the election. A printed copy
thereof shall be posted in a conspicuous place in every municipal, city, and provincial
government office building and in every polling place not later than February eleven,
nineteen hundred and forty-seven, and shall remain posted therein until after the
election. At least, ten copies of the said amendment shall be kept in each polling place to
be made available for examination by the qualified electors during election day. When
practicable, copies in the principal native languages, as may be determined by the
Commission on Elections, shall also be kept in each polling place.

The main difference between the present situation and that obtaining in connection with the
former proposals does not arise from the law enacted therefor. The difference springs from the
circumstance that the major political parties had taken sides on previous amendments to the
Constitution — except, perhaps, the woman's suffrage — and, consequently, debated thereon
at some length before the plebiscite took place. Upon the other hand, said political parties have
not seemingly made an issue on the amendments now being contested and have, accordingly,
refrained from discussing the same in the current political campaign. Such debates or polemics
as may have taken place — on a rather limited scale — on the latest proposals for amendment,
have been due principally to the initiative of a few civic organizations and some militant
members of our citizenry who have voiced their opinion thereon. A legislation cannot, however,
be nullified by reason of the failure of certain sectors of the community to discuss it sufficiently.
Its constitutionality or unconstitutionality depends upon no other factors than those existing at
the time of the enactment thereof, unaffected by the acts or omissions of law enforcing
agencies, particularly those that take place subsequently to the passage or approval of the law.

Referring particularly to the contested proposals for amendment, the sufficiency or insufficiency,
from a constitutional angle, of the submission thereof for ratification to the people on November
14, 1967, depends — in the view of those who concur in this opinion, and who, insofar as this
phase of the case, constitute the minority — upon whether the provisions of Republic Act No.
4913 are such as to fairly apprise the people of the gist, the main idea or the substance of said
proposals, which is — under R. B. H. No. 1 — the increase of the maximum number of seats in
the House of Representatives, from 120 to 180, and — under R. B. H. No. 3 — the authority
given to the members of Congress to run for delegates to the Constitutional Convention and, if
elected thereto, to discharge the duties of such delegates, without forfeiting their seats in
Congress. We — who constitute the minority — believe that Republic Act No. 4913 satisfies
such requirement and that said Act is, accordingly, constitutional.

A considerable portion of the people may not know how over 160 of the proposed maximum of
representative districts are actually apportioned by R. B. H. No. 1 among the provinces in the
Philippines. It is not improbable, however, that they are not interested in the details of the
apportionment, or that a careful reading thereof may tend in their simple minds, to impair a clear
vision thereof. Upon the other hand, those who are more sophisticated, may enlighten
themselves sufficiently by reading the copies of the proposed amendments posted in public
places, the copies kept in the polling places and the text of contested resolutions, as printed in
full on the back of the ballots they will use.

It is, likewise, conceivable that as many people, if not more, may fail to realize or envisage the
effect of R. B. H. No. 3 upon the work of the Constitutional Convention or upon the future of our
Republic. But, then, nobody can foretell such effect with certainty. From our viewpoint, the
provisions of Article XV of the Constitution are satisfied so long as the electorate knows that R.
B. H. No. 3 permits Congressmen to retain their seats as legislators, even if they should run for
and assume the functions of delegates to the Convention.

We are impressed by the factors considered by our distinguished and esteemed brethren, who
opine otherwise, but, we feel that such factors affect the wisdom of Republic Act No. 4913 and
that of R. B. H. Nos. 1 and 3, not the authority of Congress to approve the same.

The system of checks and balances underlying the judicial power to strike down acts of the
Executive or of Congress transcending the confines set forth in the fundamental laws is not in
derogation of the principle of separation of powers, pursuant to which each department is
supreme within its own sphere. The determination of the conditions under which the proposed
amendments shall be submitted to the people is concededly a matter which falls within the
legislative sphere. We do not believe it has been satisfactorily shown that Congress has
exceeded the limits thereof in enacting Republic Act No. 4913. Presumably, it could have done
something better to enlighten the people on the subject-matter thereof. But, then, no law is
perfect. No product of human endeavor is beyond improvement. Otherwise, no legislation would
be constitutional and valid. Six (6) Members of this Court believe, however, said Act and R. B.
H. Nos. 1 and 3 violate the spirit of the Constitution.

Inasmuch as there are less than eight (8) votes in favor of declaring Republic Act 4913 and R.
B. H. Nos. 1 and 3 unconstitutional and invalid, the petitions in these two (2) cases must be, as
they are hereby, dismiss and the writs therein prayed for denied, without special pronouncement
as to costs. It is so ordered.

Makalintal and Bengzon, J.P., JJ., concur.

Fernando, J., concurs fully with the above opinion, adding a few words on the question of
jurisdiction.

Separate Opinions

MAKALINTAL, J., concurring:

I concur in the foregoing opinion of the Chief Justice. I would make some additional
observations in connection with my concurrence. Sections 2 and 4 of Republic Act No. 4913
provide:

Sec. 2. The amendments shall be published in three consecutive issues of the Official
Gazette at least twenty days prior to the election. A printed copy thereof shall be posted
in a conspicuous place in every municipality, city and provincial office building and in
every polling place not later than October fourteen, nineteen hundred and sixty-seven,
 and shall remain posted therein until after the election. At least five copies of the said
amendments shall be kept in each polling place to be made available for examination by
the qualified electors during election day. When practicable, copies in the principal native
languages, as may be determined by the Commission on Elections, shall be kept in each
polling place. The Commission on Elections shall make available copies of each
amendments in English, Spanish and, whenever practicable, in the principal native
languages, for free distribution.

xxx xxx xxx

Sec. 4. The ballots which shall be used in the election for the approval of said
amendments shall be printed in English and Pilipino and shall be in the size and form
prescribed by the Commission on Elections: Provided, however, That at the back of said
ballot there shall be printed in full Resolutions of both Houses of Congress Numbered
One and Three, both adopted on March sixteen, nineteen hundred and sixty-seven,
proposing the amendments: Provided, further, That the questionnaire appearing on the
face of the ballot shall be as follows:

Are you in favor of the proposed amendment to Section five of Article VI of our
Constitution printed at the back of this ballot?

Are you in favor of the proposed amendment to section sixteen of Article VI of our
Constitution printed at the back of this ballot?

To vote for the approval of the proposed amendments, the voter shall write the word
"yes" or its equivalent in Pilipino or in the local dialect in the blank space after each
question; to vote for the rejection thereof, he shall write the word "No" or its equivalent in
Pilipino or in the local dialect.

I believe that intrinsically, that is, considered in itself and without reference to extraneous factors
and circumstances, the manner prescribed in the aforesaid provisions is sufficient for the
purpose of having the proposed amendments submitted to the people for their ratification, as
enjoined in Section 1, Article XV of the Constitution. I am at a loss to say what else should have
been required by the Act to make it adhere more closely to the constitutional requirement.
Certainly it would have been out of place to provide, for instance, that government officials and
employees should go out and explain the amendments to the people, or that they should be the
subject of any particular means or form of public discussion.

The objection of some members of the Court to Republic Act No. 4913 seems to me predicated
on the fact that there are so many other issues at stake in the coming general election that the
attention of the electorate, cannot be entirely focused on the proposed amendments, such that
there is a failure to properly submit them for ratification within the intendment of the Constitution.
If that is so, then the defect is not intrinsic in the law but in its implementation. The same
manner of submitting the proposed amendments to the people for ratification may, in a different
setting, be sufficient for the purpose. Yet I cannot conceive that the constitutionality or
unconstitutionality of a law may be made to depend willy-nilly on factors not inherent in its
provisions. For a law to be struck down as unconstitutional it must be so by reason of some
irreconcilable conflict between it and the Constitution. Otherwise a law may be either valid or
invalid, according to circumstances not found in its provisions, such as the zeal with which they
are carried out. To such a thesis I cannot agree. The criterion would be too broad and relative,
and dependent upon individual opinions that at best are subjective. What one may regard as
sufficient compliance with the requirement of submission to the people, within the context of the
same law, may not be so to another. The question is susceptible of as many views as there are
viewers; and I do not think this Court would be justified in saying that its own view on the matter
is the correct one, to the exclusion of the opinions of others.

On the other hand, I reject the argument that the ratification must necessarily be in a special
election or plebiscite called for that purpose alone. While such procedure is highly to be
preferred, the Constitution speaks simply of "an election at which the amendments are
submitted to the people for their ratification," and I do not subscribe to the restrictive
interpretation that the petitioners would place on this provision, namely, that it means only a
special election.

BENGZON, J.P., J., concurring:

It is the glory of our institutions that they are founded upon law, that no one can exercise any
authority over the rights and interests of others except pursuant to and in the manner authorized
by law.1 Based upon this principle, petitioners Ramon A. Gonzales and Philippine Constitution
Association (PHILCONSA) come to this Court in separate petitions.

Petitioner Gonzales, as taxpayer, voter and citizen, and allegedly in representation thru class
suit of all citizens of this country, filed this suit for prohibition with preliminary injunction to
restrain the Commission on Elections, Director of Printing and Auditor General from
implementing and/or complying with Republic Act 4913, assailing said law as unconstitutional.

Petitioner PHILCONSA, as a civic, non-profit and non-partisan corporation, assails the

constitutionality not only of Republic Act 4913 but also of Resolutions of Both Houses Nos. 1
and 3 of March 16, 1967.

Republic Act 4913, effective June 17, 1967, is an Act submitting to the Filipino people for
approval the amendments to the Constitution of the Philippines proposed by the Congress of
the Philippines in Resolutions of Both Houses Numbered 1 and 3, adopted on March 16, 1967.
Said Republic Act fixes the date and manner of the election at which the aforesaid proposed
amendments shall be voted upon by the people, and appropriates funds for said election.
Resolutions of Both Houses Nos. 1 and 3 propose two amendments to the Constitution: the first,
to amend Sec. 5, Art. VI, by increasing the maximum membership of the House of
Representatives from 120 to 180, apportioning 160 of said 180 seats and eliminating the
provision that Congress shall by law make an apportionment within three years after the return
of every enumeration; the second, to amend Sec. 16, Art. VI, by allowing Senators and
Representatives to be delegates to a constitutional convention without forfeiting their seats.

Since both petitions relate to the proposed amendments, they are considered together herein.

Specifically and briefly, petitioner Gonzales' objections are as follows: (1) Republic Act 4913
violates Sec. 1, Art. XV of the Constitution, in submitting the proposed amendments to the
Constitution, to the people for approval, at the general election of 1967 instead of at a special
election solely for that purpose; (2) Republic Act 4913 violates Sec. 1, Art. XV of the
Constitution, since it was not passed with the 3/4 vote in joint session required when Congress
proposes amendments to the Constitution, said Republic Act being a step in or part of the
process of proposing amendments to the Constitution; and (3) Republic Act 4913 violates the
due process clause of the Constitution (Sec. 1, Subsec. 1, Art. III), in not requiring that the
substance of the proposed amendments be stated on the face of the ballot or otherwise
rendering clear the import of the proposed amendments, such as by stating the provisions
before and after said amendments, instead of printing at the back of the ballot only the proposed
amendments.

Since observance of Constitutional provisions on the procedure for amending the Constitution is
concerned, the issue is cognizable by this Court under its powers to review an Act of Congress
to determine its conformity to the fundamental law. For though the Constitution leaves Congress
free to propose whatever Constitutional amendment it deems fit, so that
the substance or content of said proposed amendment is a matter of policy and wisdom and
thus a political question, the Constitution nevertheless imposes requisites as to
the manner or procedure of proposing such amendments, e.g., the three-fourths vote
requirement. Said procedure or manner, therefore, from being left to the discretion of Congress,
as a matter of policy and wisdom, is fixed by the Constitution. And to that extent, all questions
bearing on whether Congress in proposing amendments followed the procedure required by the
Constitution, is perforce justiciable, it not being a matter of policy or wisdom.

Turning then to petitioner Gonzales' first objection, Sec. 1, Art. XV clearly does not bear him on
the point. It nowhere requires that the ratification be thru an election solely for that purpose. It
only requires that it be at "an election at which the amendments are submitted to the people for
their ratification." To join it with an election for candidates to public office, that is, to make it
concurrent with such election, does not render it any less an election at which the proposed
amendments are submitted to the people for their ratification. To prohibition being found in the
plain terms of the Constitution, none should be inferred. Had the framers of requiring
Constitution thought of requiring a special election for the purpose only of the proposed
amendments, they could have said so, by qualifying the phrase with some word such as
"special" or "solely" or "exclusively". They did not.

It is not herein decided that such concurrence of election is wise, or that it would not have been
better to provide for a separate election exclusively for the ratification of the proposed
amendments. The point however is that such separate and exclusive election, even if it may be
better or wiser, which again, is not for this Court to decide, is not included in the procedure
required by the Constitution to amend the same. The function of the Judiciary is "not to pass
upon questions of wisdom, justice or expediency of legislation".2 It is limited to determining
whether the action taken by the Legislative Department has violated the Constitution or not. On
this score, I am of the opinion that it has not.

Petitioner Gonzales' second point is that Republic Act 4913 is deficient for not having been
passed by Congress in joint session by 3/4 vote.

Sec. 1, Art. XV of the Constitution provides:

Sec. 1. The Congress in joint session assembled, by a vote of three-fourths of all the
members of the Senate and of the House of Representatives voting separately, may
propose amendments to this Constitution or call a convention for that purpose. Such
amendments shall be valid as part of this Constitution when approved by a majority of
 the votes cast at an election to which the amendments are submitted to the people for
their ratification.

Does Republic Act 4913 propose amendments to the Constitution? If by the term "propose
amendment" is meant to determine WHAT said amendment shall be, then Republic Act 4913
does not; Resolutions of Both Houses 1 and 3 already did that. If, on the other hand, it means,
or also means, to provide for how, when, and by what means the amendments shall
be submitted to the people for approval, then it does.

A careful reading of Sec. 1, Art. XV shows that the first sense. is the one intended. Said Section
has two sentences: in the first, it requires the 3/4 voting in joint session, for Congress to
"propose amendments". And then in the second sentence, it provides that "such amendments . .
. shall be submitted to the people for their ratification". This clearly indicates that by the term
"propose amendments" in the first sentence is meant to frame the substance or the content or
the WHAT-element of the amendments; for it is this and this alone that is submitted to the
people for their ratification. The details of when the election shall be held for approval or
rejection of the proposed amendments, or the manner of holding it, are not submitted for
ratification to form part of the Constitution. Stated differently, the plain language of Section 1,
Art. XV, shows that the act of proposing amendments is distinct from — albeit related to — that
of submitting the amendments to the people for their ratification; and that the 3/4 voting
requirement applies only to the first step, not to the second one.

It follows that the submission of proposed amendments can be done thru an ordinary statute
passed by Congress. The Constitution does not expressly state by whom the submission shall
be undertaken; the rule is that a power not lodged elsewhere under the Constitution is deemed
to reside with the legislative body, under the doctrine of residuary powers. Congress therefore
validly enacted Republic Act 4913 to fix the details of the date and manner of submitting the
proposed amendments to the people for their ratification. Since it does not "propose
amendments" in the sense referred to by Sec. 1, Art. XV of the Constitution, but merely provides
for how and when the amendments, already proposed, are going to be voted upon, the same
does not need the 3/4 vote in joint session required in Sec. 1, Art. XV of the Constitution.
Furthermore, Republic Act 4913 is an appropriation measure. Sec. 6 thereof appropriates
P1,000,000 for carrying out its provisions. Sec. 18, Art. VI of the Constitution states that "All
appropriation . . . bills shall originate exclusively in the House of Representatives". Republic Act
4913, therefore, could not have been validly adopted in a joint session, reinforcing the view that
Sec. 1, Art. XV does not apply to such a measure providing for the holding of the election to
ratify the proposed amendments, which must perforce appropriate funds for its purpose.

Petitioner Gonzales contends, thirdly, that Republic Act 4913 offends against substantive due
process. An examination of the provisions of the law shows no violation of the due process
clause of the Constitution. The publication in the Official Gazette at least 20 days before the
election, the posting of notices in public buildings not later than October 14, 1967, to remain
posted until after the elections, the placing of copies of the proposed amendments in the polling
places, aside from printing the same at the back of the ballot, provide sufficient opportunity to
the voters to cast an intelligent vote on the proposal. Due process refers only to providing fair
opportunity; it does not guarantee that the opportunity given will in fact be availed of; that is the
look-out of the voter and the responsibility of the citizen. As long as fair and reasonable
opportunity to be informed is given, and it is, the due process clause is not infringed.
Non-printing of the provisions to be amended as they now stand, and the printing of the full
proposed amendments at the back of the ballot instead of the substance thereof at the face of
the ballot, do not deprive the voter of fair opportunity to be informed. The present wording of the
Constitution is not being veiled or suppressed from him; he is conclusively presumed to know
them and they are available should he want to check on what he is conclusively presumed to
know. Should the voters choose to remain ignorant of the present Constitution, the fault does
not lie with Congress. For opportunity to familiarize oneself with the Constitution as it stands has
been available thru all these years. Perhaps it would have been more convenient for the voters
if the present wording of the provisions were also to be printed on the ballot. The same however
is a matter of policy. As long as the method adopted provides sufficiently reasonable chance to
intelligently vote on the amendments, and I think it does in this case, it is not constitutionally
defective.

Petitioner Gonzales' other arguments touch on the merits or wisdom of the proposed
amendments. These are for the people in their sovereign capacity to decide, not for this Court.

Two arguments were further advanced: first, that Congress cannot both call a convention and
propose amendments; second, that the present Congress is a de facto one, since no
apportionment law was adopted within three years from the last census of 1960, so that the
Representatives elected in 1961 are de facto officers only. Not being de jure, they cannot
propose amendments, it is argued.

As to the first point, Sec. 1 of Art. XV states that Congress "may propose amendments or call a
convention for that purpose". The term "or", however, is frequently used as having the same
meaning as "and" particularly in permissive, affirmative sentences so that the interpretation of
the word "or" as "and" in the Constitution in such use will not change its meaning (Vicksburg S.
& P. R. Co. v. Goodenough, 32 So. 404, 411, 108 La, 442). And it should be pointed out that the
resolutions proposing amendments (R.B.H. Nos. 1 and 3) are different from that calling for a
convention (R.B.H. No. 2). Surely, if Congress deems it better or wise to amend the Constitution
before a convention called for is elected, it should not be fettered from doing so. For our
purposes in this case, suffice it to note that the Constitution does not prohibit it from doing so.

As to the second argument, it is also true that Sec. 5 of Art. VI of the Constitution provides in
part that "The Congress shall by law make an apportionment within three years after the return
of every enumeration, and not otherwise". It however further states in the next sentence: "Until
such apportionment shall have been made, the House of Representatives shall have the same
number of Members as that fixed by law for the National Assembly, who shall be elected by the
qualified electors from the present assembly districts." The failure of Congress, therefore, to
pass a valid redistricting law since the time the above provision was adopted, does not render
the present districting illegal or unconstitutional. For the Constitution itself provides for its
continuance in such case, rendering legal and de jure the status quo.

For the above reasons, I vote to uphold the constitutionality of Republic Act 4913, and fully
concur with the opinion of the Chief Justice.

FERNANDO, J., concurring:

At the outset, we are faced with a question of jurisdiction. The opinion prepared by the Chief
Justice discusses the matter with a fullness that erases doubts and misgivings and clarifies the
applicable principles. A few words may however be added.

We start from the premise that only where it can be shown that the question is to be solved by
public opinion or where the matter has been left by the Constitution to the sole discretion of any
of the political branches, as was so clearly stated by the then Justice Concepcion in Tañada v.
Cuenco,1 may this Court avoid passing on the issue before it. Whatever may be said about the
present question, it is hard to speak with certitude considering Article XV, that Congress may be
entrusted with the full and uncontrolled discretion on the procedure leading to proposals for an
amendment of the Constitution.

It may be said however that in Mabanag v. Lopez Vito,2 this Court through Justice Tuason
followed Coleman v. Miller,3 in its holding that certain aspects of the amending process may be
considered political. His opinion quoted with approval the view of Justice Black, to which three
other members of the United States Supreme Court agreed, that the process itself is political in
its entirety, "from submission until an amendment becomes part of the Constitution, and is not
subject to judicial guidance, control or interference at any point." In a sense that would solve the
matter neatly. The judiciary would be spared the at times arduous and in every case soul-
searching process of determining whether the procedure for amendments required by the
Constitution has been followed.

At the same time, without impugning the motives of Congress, which cannot be judicially
inquired into at any rate, it is not beyond the realm of possibility that a failure to observe the
requirements of Article XV would occur. In the event that judicial intervention is sought, to rely
automatically on the theory of political question to avoid passing on such a matter of delicacy
might under certain circumstances be considered, and rightly so, as nothing less than judicial
abdication or surrender.

What appears regrettable is that a major opinion of an esteemed jurist, the late Justice Tuason,
would no longer be controlling. There is comfort in the thought that the view that then prevailed
was itself a product of the times. It could very well be that considering the circumstances
existing in 1947 as well as the particular amendment sought to be incorporated in the
Constitution, the parity rights ordinance, the better part of wisdom in view of the grave economic
situation then confronting the country would be to avoid the existence of any obstacle to its
being submitted for ratification. Moreover, the Republic being less than a year old, American
Supreme Court opinions on constitutional questions were-invariably accorded uncritical
acceptance. Thus the approach followed by Justice Tuason is not difficult to understand. It may
be said that there is less propensity now, which is all to the good, for this Court to accord that
much deference to constitutional views coming from the quarter.

Nor is this mode of viewing the opinion of Justice Tuason to do injustice to his memory. For as
he stated in another major opinion in Araneta v. Dinglasan,4 in ascertaining the meaning to be
given the Emergency Powers Act,5 one should not ignore what would ensue if a particular mode
of construction were followed. As he so emphatically stated, "We test a rule by its results."

The consequences of a judicial veto on the then proposed amendment on the economic survival
of the country, an erroneous appraisal it turned out later, constituted an effective argument for
its submission. Why not then consider the question political and let the people decide? That
assumption could have been indulged in. It could very well be the inarticulate major premise.
For many it did bear the stamp of judicial statesmanship.

The opinion of Chief Justice Concepcion renders crystal-clear why as of this date and in the
foreseeable future judicial inquiry to assure the utmost compliance with the constitutional
requirement would be a more appropriate response.

SANCHEZ, J., in separate opinion:

Right at the outset, the writer expresses his deep appreciation to Mr. Justice Calixto O. Zaldivar
and Mr. Justice Fred Ruiz Castro for their invaluable contribution to the substance and form of
the opinion which follows.

Directly under attack in this, a petition for prohibition, is the constitutionality of Republic Act
4913, approved on June 17, 1967. This Act seeks to implement Resolutions 1 and 3 adopted by
the Senate and the House of Representatives on March 16, 1967 with the end in view of
amending vital portions of the Constitution.

Since the problem here presented has its roots in the resolutions aforesaid of both houses of
Congress, it may just as well be that we recite in brief the salient features thereof. Resolution
No. 1 increases the membership of the House of Representatives from 120 to 180 members,
and immediately apportions 160 seats. A companion resolution is Resolution No. 3 which
permits Senators and Congressmen — without forfeiting their seats in Congress — to be
members of the Constitutional Convention1 to be convened, as provided in another resolution —
Resolution No. 2. Parenthetically, two of these proposed amendments to the Constitution
(Resolutions I and 3) are to be submitted to the people for their ratification next November 14,
1967. Resolution No. 2 just adverted to calls for a constitutional convention also to propose
amendments to the Constitution. The delegates thereto are to be elected on the second
Tuesday of November 1970; the convention to sit on June 1, 1971; and the amendments
proposed by the convention to be submitted to the people thereafter for their ratification.

Of importance now are the proposed amendments increasing the number of members of the
House of representatives under Resolution No. 1, and that in Resolution No. 3 which gives
Senators and Congressmen the right to sit as members of the constitutional convention to be
convened on June 1, 1971. Because, these are the two amendments to be submitted to the
people in the general elections soon to be held on November 14, 1967, upon the provisions of
Section 1, Republic Act 4913, which reads:

The amendments to the Constitution of the Philippines proposed by the Congress of the
Philippines in Resolutions of both Houses Numbered One and Three, both adopted on
March sixteen, nineteen hundred and sixty- seven, shall be submitted to the people for
approval at the general election which shall be held on November fourteen, nineteen
hundred and sixty- seven, in accordance with the provisions of this Act.

Republic Act 4913 projects the basic angle of the problem thrust upon us — the manner in
which the amendments proposed by Congress just adverted to be brought to the people's
attention.
First, to the controlling constitutional precept. In order that proposed amendments to the
Constitution may become effective, Section 1, Article XV thereof commands that such
amendments must be "approved by a majority of the votes cast at an election at which
amendments are submitted to the people for their ratification."2The accent is on two words
complementing each other, namely, "submitted" and "ratification."

1. We are forced to take a long hard look at the core of the problem facing us. And this, because
the amendments submitted are transcendental and encompassing. The ceiling of the number of
Congressmen is sought to be elevated from 120 to 180 members; and Senators and
Congressmen may run in constitutional conventions without forfeiting their seats. These
certainly affect the people as a whole. The increase in the number of Congressmen has its
proportional increase in the people's tax burdens. They may not look at this with favor, what with
the constitutional provision (Section 5, Article VI) that Congress "shall by law make an
apportionment", without the necessity of disturbing the present constitutionally provided number
of Congressmen. People in Quezon City, for instance, may balk at the specific apportionment of
the 160 seats set forth in Resolution No. 1, and ask for a Congressman of their own, on the
theory of equal representation. And then, people may question the propriety of permitting the
increased 180 Congressmen from taking part in the forthcoming constitutional convention and
future conventions for fear that they may dominate its proceedings. They may entertain the
belief that, if at all, increase in the number of Congressmen should be a proper topic for
deliberation in a constitutional convention which, anyway, will soon take place. They probably
would ask: Why the hurry? These ponderables require the people's close scrutiny.

2. With these as backdrop, we perforce go into the philosophy behind the constitutional directive
that constitutional amendments be submitted to the people for their ratification.

A constitutional amendment is not a temporary expedient. Unlike a statute which may suffer
amendments three or more times in the same year, it is intended to stand the test of time. It is
an expression of the people's sovereign will.

And so, our approach to the problem of the mechanics of submission for ratification of
amendments is that reasoning on the basis of the spirit of the Constitution is just as important as
reasoning by a strict adherence to the phraseology thereof. We underscore this, because it is
within the realm of possibility that a Constitution maybe overhauled. Supposing three-fourths of
the Constitution is to be amended. Or, the proposal is to eliminate the all important; Bill of Rights
in its entirety. We believe it to be beyond debate that in some such situations the amendments
ought to call for a constitutional convention rather than a legislative proposal. And yet, nothing
there is in the books or in the Constitution itself. which would require such amendments to be
adopted by a constitutional convention. And then, too, the spirit of the supreme enactment, we
are sure, forbids that proposals therefor be initiated by Congress and thereafter presented to the
people for their ratification.

In the context just adverted to, we take the view that the words "submitted to the people for their
ratification", if construed in the light of the nature of the Constitution — a fundamental charter
that is legislation direct from the people, an — expression of their sovereign will — is that it can
only be amended by the people expressing themselves according to the procedure ordained by
the Constitution. Therefore, amendments must be fairly laid before the people for their blessing
or spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They
must be afforded ample opportunity to mull over the original provisions compare them with the
proposed amendments, and try to reach a conclusion as the dictates of their conscience
suggest, free from the incubus of extraneous or possibly in insidious influences. We believe, the
word "submitted" can only mean that the government, within its maximum capabilities, should
strain every effort to inform very citizen of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. By this, we are not to be understood
as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be reached, then there is
no submission within the meaning of the word as intended by the framers of the Constitution.
What the Constitution in effect directs is that the government, in submitting an amendment for
ratification, should put every instrumentality or agency within its structural framework to
enlighten the people, educate them with respect to their act of ratification or rejection. For, as
we have earlier stated, one thing is submission and another is ratification. There must be fair
submission, intelligent, consent or rejection. If with all these safeguards the people still approve
the amendment no matter how prejudicial it is to them, then so be it. For, the people decree
their own fate.

Aptly had it been said:

. . . The great men who builded the structure of our state in this respect had the mental
vision of a good Constitution voiced by Judge Cooley, who has said "A good Constitution
should beyond the reach of temporary excitement and popular caprice or passion. It is
needed for stability and steadiness; it must yield to the thought of the people; not to the
whim of the people, or the thought evolved the excitement or hot blood, but the sober
second thought, which alone, if the government is to be safe, can be allowed efficiency. .
. . Changes in government are to be feared unless the benefit is certain. As Montaign
says: "All great mutations shake and disorder a state. Good does not necessarily
succeed evil; another evil may succeed and a worse." Am. Law Rev. 1889, p. 3113

3. Tersely put, the issue before us funnels down to this proposition: If the people are not
sufficiently informed of the amendments to be voted upon, to conscientiously deliberate thereon,
to express their will in a genuine manner can it be said that in accordance with the constitutional
mandate, "the amendments are submitted to the people for their ratification?" Our answer is
"No".

We examine Republic Act 4913, approved on June 17, 1967 — the statute that submits to the
people the constitutional amendments proposed by Congress in Resolutions 1 and 3. Section 2
of the Act provides the manner of propagation of the nature of the amendments throughout the
country. There are five parts in said Section 2, viz:

(1) The amendment shall be published in three consecutive issues of the Official Gazette
at least twenty days prior to the election.

(2) A printed copy thereof shall be posted in a conspicuous place in every municipality,
city and provincial office building and in every polling place not later than October
fourteen, nineteen hundred and sixty-seven, and shall remain posted therein until after
the election.

(3) At least five copies of the said amendments shall be kept in each polling place to be
made available for examination by the qualified electors during election day.

(4) When practicable, copies in the principal native languages, as may be determined by
the Commission on Elections, shall be kept in each polling place.
 (5) The Commission on Elections shall make available copies of said amendments in
English, Spanish and, whenever practicable, in the principal native languages, for free
distribution.

A question that comes to mind is whether the procedure for dissemination of information
regarding the amendments effectively brings the matter to the people. A dissection of the
mechanics yields disturbing thoughts. First, the Official Gazette is not widely read. It does not
reach the barrios. And even if it reaches the barrios, is it available to all? And if it is, would all
under stand English? Second, it should be conceded that many citizens, especially those in the
outlying barrios, do not go to municipal, city and/or provincial office buildings, except on special
occasions like paying taxes or responding to court summonses. And if they do, will they notice
the printed amendments posted on the bulletin board? And if they do notice, such copy again is
in English (sample submitted to this Court by the Solicitor General) for, anyway, the statute does
not require that it be in any other language or dialect. Third, it would not help any if at least five
copies are kept in the polling place for examination by qualified electors during election day. As
petitioner puts it, voting time is not study time. And then, who can enter the polling place, except
those who are about to vote? Fourth, copies in the principal native languages shall be kept in
each polling place. But this is not, as Section 2 itself implies, in the nature of a command
because such copies shall be kept therein only "when practicable" and "as may be determined
by the Commission on Elections." Even if it be said that these are available before election, a
citizen may not intrude into the school building where the polling places are usually located
without disturbing the school classes being held there. Fifth, it is true that the Comelec is
directed to make available copies of such amendments in English, Spanish or whenever
practicable, in the principal native languages, for free distribution. However, Comelec is not
required to actively distribute them to the people. This is significant as to people in the
provinces, especially those in the far-flung barrios who are completely unmindful of the
discussions that go on now and then in the cities and centers of population on the merits and
demerits of the amendments. Rather, Comelec, in this case, is but a passive agency which may
hold copies available, but which copies may not be distributed at all. Finally, it is of common
knowledge that Comelec has more than its hands full in these pre-election days. They cannot
possibly make extensive distribution.

Voters will soon go to the polls to say "yes" or "no". But even the official sample ballot submitted
to this Court would show that only the amendments are printed at the back. And this, in
pursuance to Republic Act 4913 itself.

Surely enough, the voters do not have the benefit of proper notice of the proposed amendments
thru dissemination by publication in extenso. People do not have at hand the necessary data on
which to base their stand on the merits and demerits of said amendments.

We, therefore, hold that there is no proper submission of the proposed constitutional
amendments within the meaning and intendment of Section 1, Article XV of the Constitution.

4. Contemporary history is witness to the fact that during the present election campaign the
focus is on the election of candidates. The constitutional amendments are crowded out.
Candidates on the homestretch, and their leaders as well as the voters, gear their undivided
efforts to the election of officials; the constitutional amendments cut no ice with them. The truth
is that even in the ballot itself, the space accorded to the casting of "yes" or "no" vote would give
one the impression that the constitutional amendments are but a bootstrap to the electoral
ballot. Worse still, the fortunes of many elective officials, on the national and local levels, are
inextricably intertwined with the results of the votes on the plebiscite. In a clash between votes
for a candidate and conscience on the merits and demerits of the constitutional amendments,
we are quite certain that it is the latter that will be dented.

5. That proper submission of amendments to the people to enable them to equally ratify them
properly is the meat of the constitutional requirement, is reflected in the sequence of uniform
past practices. The Constitution had been amended thrice — in 1939, 1940 and 1947. In each
case, the amendments were embodied in resolutions adopted by the Legislature, which
thereafter fixed the dates at which the proposed amendments were to be ratified or rejected.
These plebiscites have been referred to either as an "election" or "general election". At no time,
however, was the vote for the amendments of the Constitution held simultaneously with the
election officials, national or local. Even with regard to the 1947 parity amendment; the record
shows that the sole issue was the 1947 parity amendment; and the special elections
simultaneously held in only three provinces, Iloilo, Pangasinan and Bukidnon, were
merely incidental thereto.

In the end we say that the people are the last ramparts that guard against indiscriminate
changes in the Constitution that is theirs. Is it too much to ask that reasonable guarantee be
made that in the matter of the alterations of the law of the land, their true voice be heard? The
answer perhaps is best expressed in the following thoughts: "It must be remembered that the
Constitution is the people's enactment. No proposed change can become effective unless they
will it so through the compelling force of need of it and desire for it."4

For the reasons given, our vote is that Republic Act 4913 must be stricken down as in violation
of the Constitution.

Zaldivar and Castro, JJ., concur.

Reyes, J.B.L., Dizon and Angeles, JJ., concur in the result.

REYES, J.B.L., J., concurring:

I concur in the result with the opinion penned by Mr. Justice Sanchez. To approve a mere
proposal to amend the Constitution requires (Art. XV) a three-fourths (3/4) vote of all the
members of each legislative chamber, the highest majority ever demanded by the fundamental
charter, one higher even than that required in order to declare war (Sec. 24, Article VI), with all
its dire consequences. If such an overwhelming majority, that was evidently exacted in order to
impress upon all and sundry the seriousness of every constitutional amendment, is asked for a
proposal to amend the Constitution, I find it impossible to believe that it was ever intended by its
framers that such amendment should be submitted and ratified by just "a majority of the votes
cast at an election at which the amendments are submitted to the people for their ratification", if
the concentration of the people's attention thereon to be diverted by other extraneous issues,
such as the choice of local and national officials. The framers of the Constitution, aware of the
fundamental character thereof, and of the need of giving it as much stability as is practicable,
could have only meant that any amendments thereto should be debated, considered and voted
upon at an election wherein the people could devote undivided attention to the subject. That this
was the intention and the spirit of the provision is corroborated in the case of all other
constitutional amendments in the past, that were submitted to and approved in special elections
exclusively devoted to the issue whether the legislature's amendatory proposals should be
ratified or not.

Dizon, Angeles, Zaldivar and Castro, JJ., concur.

 EN BANC

[G.R. No. 127325. March 19, 1997]

MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA and MARIA ISABEL ONGPIN, petitioners,
vs. COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN
PEDROSA, in their capacities as founding members of the Peoples Initiative for Reforms,
Modernization and Action (PIRMA), respondents, SENATOR RAUL S. ROCO,
DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS
FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC. (MABINI), INTEGRATED BAR
OF THE PHILIPPINES (IBP) and LABAN NG DEMOKRATIKONG PILIPINO
(LABAN), petitioners-intervenors.

DECISION
DAVIDE, JR., J.:

The heart of this controversy brought to us by way of a petition for prohibition under Rule 65 of the
Rules of Court is the right of the people to directly propose amendments to the Constitution through the
system of initiative under Section 2 of Article XVII of the 1987 Constitution. Undoubtedly, this demands
special attention, as this system of initiative was unknown to the people of this country, except perhaps to
a few scholars, before the drafting of the 1987 Constitution. The 1986 Constitutional Commission itself,
through the original proponent[1] and the main sponsor[2] of the proposed Article on Amendments or
Revision of the Constitution, characterized this system as innovative. [3] Indeed it is, for both under the
1935 and 1973 Constitutions, only two methods of proposing amendments to, or revision of, the
Constitution were recognized, viz., (1) by Congress upon a vote of three-fourths of all its members and (2)
by a constitutional convention.[4] For this and the other reasons hereafter discussed, we resolved to give
due course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent
Commission on Elections (hereafter, COMELEC) a Petition to Amend the Constitution, to Lift Term Limits
of Elective Officials, by Peoples Initiative (hereafter, Delfin Petition)[5] wherein Delfin asked the COMELEC
for an order
1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached Petition for Initiative on
the 1987 Constitution, in newspapers of general and local circulation;
3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist Petitioners
and volunteers, in establishing signing stations at the time and on the dates designated for
the purpose.
Delfin alleged in his petition that he is a founding member of the Movement for Peoples Initiative, [6] a
group of citizens desirous to avail of the system intended to institutionalize people power; that he and the
members of the Movement and other volunteers intend to exercise the power to directly propose
amendments to the Constitution granted under Section 2, Article XVII of the Constitution; that the
exercise of that power shall be conducted in proceedings under the control and supervision of the
COMELEC; that, as required in COMELEC Resolution No. 2300, signature stations shall be established
all over the country, with the assistance of municipal election registrars, who shall verify the signatures
affixed by individual signatories; that before the Movement and other volunteers can gather signatures, it
is necessary that the time and dates to be designated for the purpose be first fixed in an order to be
issued by the COMELEC; and that to adequately inform the people of the electoral process involved, it is
likewise necessary that the said order, as well as the Petition on which the signatures shall be affixed, be
published in newspapers of general and local circulation, under the control and supervision of the
COMELEC.
The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7 of
Article VI,[7] Section 4 of Article VII,[8] and Section 8 of Article X[9] of the Constitution.Attached to the
petition is a copy of a Petition for Initiative on the 1987 Constitution [10] embodying the proposed
amendments which consist in the deletion from the aforecited sections of the provisions concerning term
limits, and with the following proposition:

DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE GOVERNMENT OFFICIALS,
AMENDING FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI, SECTION 4 OF ARTICLE VII,
AND SECTION 8 OF ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION?

According to Delfin, the said Petition for Initiative will first be submitted to the people, and after it is
signed by at least twelve per cent of the total number of registered voters in the country it will be formally
filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-037
(INITIATIVE), the COMELEC, through its Chairman, issued an Order [11] (a) directing Delfin to cause the
publication of the petition, together with the attached Petition for Initiative on the 1987 Constitution
(including the proposal, proposed constitutional amendment, and the signature form), and the notice of
hearing in three (3) daily newspapers of general circulation at his own expense not later than 9 December
1996; and (b) setting the case for hearing on 12 December 1996 at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following appeared: Delfin and Atty.
Pete Q. Quadra; representatives of the Peoples Initiative for Reforms, Modernization and Action (PIRMA);
intervenor-oppositor Senator Raul S. Roco, together with his two other lawyers; and representatives of, or
counsel for, the Integrated Bar of the Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon (DIK),
Public Interest Law Center, and Laban ng Demokratikong Pilipino (LABAN). [12] Senator Roco, on that
same day, filed a Motion to Dismiss the Delfin Petition on the ground that it is not the initiatory petition
properly cognizable by the COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the oppositors to file their
memoranda and/or oppositions/memoranda within five days.[13]
On 18 December 1996, the petitioners herein -- Senator Miriam Defensor Santiago, Alexander
Padilla, and Maria Isabel Ongpin -- filed this special civil action for prohibition raising the following
arguments:

(1) The constitutional provision on peoples initiative to amend the Constitution can only be implemented
by law to be passed by Congress. No such law has been passed; in fact, Senate Bill No. 1290 entitled An
Act Prescribing and Regulating Constitutional Amendments by Peoples Initiative, which petitioner Senator
Santiago filed on 24 November 1995, is still pending before the Senate Committee on Constitutional
Amendments.

(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely, initiative on the
Constitution, on statutes, and on local legislation. However, it failed to provide any subtitle on initiative on
the Constitution, unlike in the other modes of initiative, which are specifically provided for in Subtitle II and
Subtitle III. This deliberate omission indicates that the matter of peoples initiative to amend the
Constitution was left to some future law. Former Senator Arturo Tolentino stressed this deficiency in the
law in his privilege speech delivered before the Senate in 1994: There is not a single word in that law
which can be considered as implementing [the provision on constitutional initiative]. Such implementing
provisions have been obviously left to a separate law.
(3) Republic Act No. 6735 provides for the effectivity of the law after publication in print media. This
indicates that the Act covers only laws and not constitutional amendments because the latter take effect
only upon ratification and not after publication.

(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern the conduct of initiative on
the Constitution and initiative and referendum on national and local laws, is ultra vires insofar
as initiative on amendments to the Constitution is concerned, since the COMELEC has no power to
provide rules and regulations for the exercise of the right of initiative to amend the Constitution. Only
Congress is authorized by the Constitution to pass the implementing law.

(5)The peoples initiative is limited to amendments to the Constitution, not to revision thereof. Extending or
lifting of term limits constitutes a revision and is, therefore, outside the power of the peoples initiative.

(6) Finally, Congress has not yet appropriated funds for peoples initiative; neither the COMELEC nor any
other government department, agency, or office has realigned funds for the purpose.

To justify their recourse to us via the special civil action for prohibition, the petitioners allege that in
the event the COMELEC grants the Delfin Petition, the peoples initiative spearheaded by PIRMA would
entail expenses to the national treasury for general re-registration of voters amounting to at least P180
million, not to mention the millions of additional pesos in expenses which would be incurred in the conduct
of the initiative itself. Hence, the transcendental importance to the public and the nation of the issues
raised demands that this petition for prohibition be settled promptly and definitely, brushing aside
technicalities of procedure and calling for the admission of a taxpayers and legislators suit. [14] Besides,
there is no other plain, speedy, and adequate remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to comment on the petition within a
non-extendible period of ten days from notice; and (b) issued a temporary restraining order, effective
immediately and continuing until further orders, enjoining public respondent COMELEC from proceeding
with the Delfin Petition, and private respondents Alberto and Carmen Pedrosa from conducting a
signature drive for peoples initiative to amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their Comment [15] on the
petition. They argue therein that:

1. IT IS NOT TRUE THAT IT WOULD ENTAIL EXPENSES TO THE NATIONAL TREASURY FOR
GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED
EIGHTY MILLION (P180,000,000.00) IF THE COMELEC GRANTS THE PETITION FILED BY
RESPONDENT DELFIN BEFORE THE COMELEC.

2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT IF THE

COMELEC GRANTS THE PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN THE
SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN AND HIS
VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO THE
COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM OF THE SUPERVISING SCHOOL
TEACHERS IN THE SIGNATURE GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN AND
HIS VOLUNTEERS IS P2,571, 200.00;

3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE GATHERING
WHICH BY LAW COMELEC IS DUTY BOUND TO SUPERVISE CLOSELY PURSUANT TO ITS
INITIATORY JURISDICTION UPHELD BY THE HONORABLE COURT IN ITS RECENT SEPTEMBER
26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET
AL. G.R. NO. 125416;

4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW IMPLEMENTING
THE POWER OF PEOPLE INITIATIVE TO PROPOSE AMENDMENTS TO THE
CONSTITUTION. SENATOR DEFENSOR-SANTIAGOS SENATE BILL NO. 1290 IS A DUPLICATION
OF WHAT ARE ALREADY PROVIDED FOR IN REP. ACT NO. 6735;

5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991 PURSUANT TO REP.
ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN THE RECENT SEPTEMBER 26, 1996
DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R.
NO. 125416 WHERE THE HONORABLE COURT SAID: THE COMMISSION ON ELECTIONS CAN DO
NO LESS BY SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES AND RULES FOR
BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF THESE LAWS.

6. EVEN SENATOR DEFENSOR-SANTIAGOS SENATE BILL NO. 1290 CONTAINS A PROVISION

DELEGATING TO THE COMELEC THE POWER TO PROMULGATE SUCH RULES AND
REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF THIS ACT. (SEC. 12,
S.B. NO. 1290, ENCLOSED AS ANNEX E, PETITION);

7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE OFFICIALS

PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A REVISION OF THE CONSTITUTION. IT IS
ONLY AN AMENDMENT. AMENDMENT ENVISAGES AN ALTERATION OF ONE OR A FEW SPECIFIC
PROVISIONS OF THE CONSTITUTION. REVISION CONTEMPLATES A RE-EXAMINATION OF THE
ENTIRE DOCUMENT TO DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED. (PP.
412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS, S.J.).

Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment[16] which starts
off with an assertion that the instant petition is a knee-jerk reaction to a draft Petition for Initiative on the
1987 Constitution ... which is not formally filed yet. What he filed on 6 December 1996 was an Initiatory
Pleading or Initiatory Petition, which was legally necessary to start the signature campaign to amend the
Constitution or to put the movement to gather signatures under COMELEC power and function. On the
substantive allegations of the petitioners, Delfin maintains as follows:

(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which governs the conduct
of initiative to amend the Constitution. The absence therein of a subtitle for such initiative is not fatal,
since subtitles are not requirements for the validity or sufficiency of laws.

(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in an initiative to amend the
Constitution approved by the majority of the votes cast in the plebiscite shall become effective as of the
day of the plebiscite.

(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a) Section 2, Article
IX-C of the Constitution, which grants the COMELEC the power to enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall; and (b)
Section 20 of R.A. 6735, which empowers the COMELEC to promulgate such rules and regulations as
may be necessary to carry out the purposes of the Act.

(4) The proposed initiative does not involve a revision of, but mere amendment to, the Constitution
because it seeks to alter only a few specific provisions of the Constitution, or more specifically, only those
which lay term limits. It does not seek to reexamine or overhaul the entire document.

As to the public expenditures for registration of voters, Delfin considers petitioners estimate of P180
million as unreliable, for only the COMELEC can give the exact figure. Besides, if there will be a plebiscite
it will be simultaneous with the 1997 Barangay Elections. In any event, fund requirements for initiative will
be a priority government expense because it will be for the exercise of the sovereign power of the people.
In the Comment[17] for the public respondent COMELEC, filed also on 2 January 1997, the Office of
the Solicitor General contends that:
(1) R.A. No. 6735 deals with, inter alia, peoples initiative to amend the Constitution. Its Section 2 on
Statement of Policy explicitly affirms, recognizes, and guarantees that power; and its Section 3, which
enumerates the three systems of initiative, includes initiative on the Constitution and defines the same as
the power to propose amendments to the Constitution. Likewise, its Section 5 repeatedly
mentions initiative on the Constitution.

(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No. 6735 because, being
national in scope, that system of initiative is deemed included in the subtitle on National Initiative and
Referendum; and Senator Tolentino simply overlooked pertinent provisions of the law when he claimed
that nothing therein was provided for initiative on the Constitution.

(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No. 6735 does not deal
with initiative on the Constitution.

(4) Extension of term limits of elected officials constitutes a mere amendment to the Constitution, not a
revision thereof.

(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No. 6735 and under the
Omnibus Election Code. The rule-making power of the COMELEC to implement the provisions of R.A.
No. 6735 was in fact upheld by this Court in Subic Bay Metropolitan Authority vs. COMELEC .

On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining order; (b)
noted the aforementioned Comments and the Motion to Lift Temporary Restraining Order filed by private
respondents through Atty. Quadra, as well as the latters Manifestation stating that he is the counsel for
private respondents Alberto and Carmen Pedrosa only and the Comment he filed was for the Pedrosas;
and (c) granted the Motion for Intervention filed on 6 January 1997 by Senator Raul Roco and allowed
him to file his Petition in Intervention not later than 20 January 1997; and (d) set the case for hearing on
23 January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Movement of
Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a Motion for
Intervention. Attached to the motion was their Petition in Intervention, which was later replaced by an
Amended Petition in Intervention wherein they contend that:

(1) The Delfin proposal does not involve a mere amendment to, but a revision of, the Constitution
because, in the words of Fr. Joaquin Bernas, S.J.,[18] it would involve a change from a political philosophy
that rejects unlimited tenure to one that accepts unlimited tenure; and although the change might appear
to be an isolated one, it can affect other provisions, such as, on synchronization of elections and on the
State policy of guaranteeing equal access to opportunities for public service and prohibiting political
dynasties.[19] A revision cannot be done by initiative which, by express provision of Section 2 of Article
XVII of the Constitution, is limited to amendments.

(2) The prohibition against reelection of the President and the limits provided for all other national and
local elective officials are based on the philosophy of governance, to open up the political arena to as
many as there are Filipinos qualified to handle the demands of leadership, to break the concentration of
political and economic powers in the hands of a few, and to promote effective proper empowerment for
participation in policy and decision-making for the common good; hence, to remove the term limits is to
negate and nullify the noble vision of the 1987 Constitution.

(3) The Delfin proposal runs counter to the purpose of initiative, particularly in a conflict-of-interest
situation. Initiative is intended as a fallback position that may be availed of by the people only if they are
dissatisfied with the performance of their elective officials, but not as a premium for good performance. [20]
(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law that implements the
peoples initiative on amendments to the Constitution. It fails to state (a) the proper parties who may file
the petition, (b) the appropriate agency before whom the petition is to be filed, (c) the contents of the
petition, (d) the publication of the same, (e) the ways and means of gathering the signatures of the voters
nationwide and 3% per legislative district, (f) the proper parties who may oppose or question the veracity
of the signatures, (g) the role of the COMELEC in the verification of the signatures and the sufficiency of
the petition, (h) the appeal from any decision of the COMELEC, (I) the holding of a plebiscite, and (g) the
appropriation of funds for such peoples initiative. Accordingly, there being no enabling law, the
COMELEC has no jurisdiction to hear Delfins petition.

(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC Resolution No. 2300,
since the COMELEC is without authority to legislate the procedure for a peoples initiative under Section 2
of Article XVII of the Constitution. That function exclusively pertains to Congress. Section 20 of R.A. No.
6735 does not constitute a legal basis for the Resolution, as the former does not set a sufficient standard
for a valid delegation of power.

On 20 January 1997, Senator Raul Roco filed his Petition in Intervention. [21] He avers that R.A. No.
6735 is the enabling law that implements the peoples right to initiate constitutional amendments. This law
is a consolidation of Senate Bill No. 17 and House Bill No. 21505; he co-authored the House Bill and
even delivered a sponsorship speech thereon. He likewise submits that the COMELEC was empowered
under Section 20 of that law to promulgate COMELEC Resolution No. 2300. Nevertheless, he contends
that the respondent Commission is without jurisdiction to take cognizance of the Delfin Petition and to
order its publication because the said petition is not the initiatory pleading contemplated under the
Constitution, Republic Act No. 6735, and COMELEC Resolution No. 2300. What vests jurisdiction upon
the COMELEC in an initiative on the Constitution is the filing of a petition for initiative which is signed by
the required number of registered voters. He also submits that the proponents of a constitutional
amendment cannot avail of the authority and resources of the COMELEC to assist them is securing the
required number of signatures, as the COMELECs role in an initiative on the Constitution is limited to the
determination of the sufficiency of the initiative petition and the call and supervision of a plebiscite, if
warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it attached a Petition in Intervention
raising the following arguments:

(1) Congress has failed to enact an enabling law mandated under Section 2, Article XVII of the 1987
Constitution.

(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing law on the initiative to
amend the Constitution.

(3) The Petition for Initiative suffers from a fatal defect in that it does not have the required number of
signatures.

(4) The petition seeks, in effect a revision of the Constitution, which can be proposed only by Congress or
a constitutional convention.[22]

On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Intervention filed by
the DIK and MABINI and by the IBP, as well as the Motion for Leave to Intervene filed by LABAN; (b)
admitting the Amended Petition in Intervention of DIK and MABINI, and the Petitions in Intervention of
Senator Roco and of the IBP; (c) requiring the respondents to file within a nonextendible period of five
days their Consolidated Comments on the aforesaid Petitions in Intervention; and (d) requiring LABAN to
file its Petition in Intervention within a nonextendible period of three days from notice, and the
respondents to comment thereon within a nonextendible period of five days from receipt of the said
Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the following pivotal issues,
which the Court formulated in light of the allegations and arguments raised in the pleadings so far filed:

1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and Referendum and
Appropriating Funds Therefor, was intended to include or cover initiative on amendments to the
Constitution; and if so, whether the Act, as worded, adequately covers such initiative.

2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and Regulations Governing the
Conduct of Initiative on the Constitution, and Initiative and Referendum on National and Local Laws)
regarding the conduct of initiative on amendments to the Constitution is valid, considering the absence in
the law of specific provisions on the conduct of such initiative.

3. Whether the lifting of term limits of elective national and local officials, as proposed in the draft Petition
for Initiative on the 1987 Constitution, would constitute a revision of, or an amendment to, the
Constitution.

4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition solely intended to
obtain an order (a) fixing the time and dates for signature gathering; (b) instructing municipal election
officers to assist Delfin's movement and volunteers in establishing signature stations; and (c) directing or
causing the publication of, inter alia, the unsigned proposed Petition for Initiative on the 1987 Constitution.

5. Whether it is proper for the Supreme Court to take cognizance of the petition when there is a pending
case before the COMELEC.

After hearing them on the issues, we required the parties to submit simultaneously their respective
memoranda within twenty days and requested intervenor Senator Roco to submit copies of the
deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the allegations and
arguments in the main Petition. It further submits that the COMELEC should have dismissed the Delfin
Petition for failure to state a sufficient cause of action and that the Commissions failure or refusal to do so
constituted grave abuse of discretion amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and the Record
of the House of Representatives relating to the deliberations of House Bill No. 21505, as well as the
transcripts of stenographic notes on the proceedings of the Bicameral Conference Committee, Committee
on Suffrage and Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the
Petitions in Intervention of Senator Roco, DIK and MABINI, and IBP. [23] The parties thereafter filed, in due
time, their separate memoranda.[24]
As we stated in the beginning, we resolved to give due course to this special civil action.
For a more logical discussion of the formulated issues, we shall first take up the fifth issue which
appears to pose a prejudicial procedural question.
I

THE INSTANT PETITION IS VIABLE DESPITE THE

PENDENCY IN THE COMELEC OF THE DELFIN
PETITION.
 Except for the petitioners and intervenor Roco, the parties paid no serious attention to the fifth
issue, i.e., whether it is proper for this Court to take cognizance of this special civil action when there is a
pending case before the COMELEC. The petitioners provide an affirmative answer. Thus:

28. The Comelec has no jurisdiction to take cognizance of the petition filed by private respondent Delfin.
This being so, it becomes imperative to stop the Comelec from proceeding any further, and under the
Rules of Court, Rule 65, Section 2, a petition for prohibition is the proper remedy.

29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and
directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction
with which it is not legally vested. (People v. Vera, supra., p. 84). In this case the writ is an urgent
necessity, in view of the highly divisive and adverse environmental consequences on the body politic of
the questioned Comelec order. The consequent climate of legal confusion and political instability begs for
judicial statesmanship.

30. In the final analysis, when the system of constitutional law is threatened by the political ambitions of
man, only the Supreme Court can save a nation in peril and uphold the paramount majesty of the
Constitution.[25]

It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin
Petition on the ground that the COMELEC has no jurisdiction or authority to entertain the petition. [26] The
COMELEC made no ruling thereon evidently because after having heard the arguments of Delfin and the
oppositors at the hearing on 12 December 1996, it required them to submit within five days their
memoranda or oppositions/memoranda.[27] Earlier, or specifically on 6 December 1996, it practically gave
due course to the Delfin Petition by ordering Delfin to cause the publication of the petition, together with
the attached Petition for Initiative, the signature form, and the notice of hearing; and by setting the case
for hearing. The COMELECs failure to act on Rocos motion to dismiss and its insistence to hold on to the
petition rendered ripe and viable the instant petition under Section 2 of Rule 65 of the Rules of Court,
which provides:

SEC. 2. Petition for prohibition. -- Where the proceedings of any tribunal, corporation, board, or person,
whether exercising functions judicial or ministerial, are without or in excess of its or his jurisdiction, or with
grave abuse of discretion, and there is no appeal or any other plain, speedy and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court alleging
the facts with certainty and praying that judgment be rendered commanding the defendant to desist from
further proceedings in the action or matter specified therein.

It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the
Delfin Petition because the said petition is not supported by the required minimum number of signatures
of registered voters. LABAN also asserts that the COMELEC gravely abused its discretion in refusing to
dismiss the Delfin Petition, which does not contain the required number of signatures. In light of these
claims, the instant case may likewise be treated as a special civil action for certiorari under Section I of
Rule 65 of the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may brush
aside technicalities of procedure in cases of transcendental importance. As we stated in Kilosbayan, Inc.
v. Guingona, Jr.:[28]

A partys standing before this Court is a procedural technicality which it may, in the exercise of its
discretion, set aside in view of the importance of issues raised. In the landmark Emergency Powers
Cases, this Court brushed aside this technicality because the transcendental importance to the public of
these cases demands that they be settled promptly and definitely, brushing aside, if we must,
technicalities of procedure.
 II

R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM

OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, BUT IS, UNFORTUNATELY,
INADEQUATE TO COVER THAT SYSTEM.

Section 2 of Article XVII of the Constitution provides:

SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of the total number of registered voters, of which
every legislative district must be represented by at least three per centum of the registered voters
therein. No amendment under this section shall be authorized within five years following the ratification of
this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

This provision is not self-executory. In his book,[29] Joaquin Bernas, a member of the 1986
Constitutional Commission, stated:

Without implementing legislation Section 2 cannot operate. Thus, although this mode of amending the
Constitution is a mode of amendment which bypasses congressional action, in the last analysis it still is
dependent on congressional action.

Bluntly stated, the right of the people to directly propose amendments to the Constitution through the
system of initiative would remain entombed in the cold niche of the Constitution until Congress provides
for its implementation. Stated otherwise, while the Constitution has recognized or granted that right, the
people cannot exercise it if Congress, for whatever reason, does not provide for its implementation.
This system of initiative was originally included in Section 1 of the draft Article on Amendment or
Revision proposed by the Committee on Amendments and Transitory Provisions of the 1986
Constitutional Commission in its Committee Report No. 7 (Proposed Resolution No. 332). [30] That section
reads as follows:

SECTION 1. Any amendment to, or revision of, this Constitution may be proposed:

(a) by the National Assembly upon a vote of three-fourths of all its members; or

(b) by a constitutional convention; or

(c) directly by the people themselves thru initiative as provided for in Article ____ Section ____ of the
Constitution.[31]

After several interpellations, but before the period of amendments, the Committee submitted a new
formulation of the concept of initiative which it denominated as Section 2; thus:

MR. SUAREZ. Thank you, Madam President. May we respectfully call attention of the Members of the
Commission that pursuant to the mandate given to us last night, we submitted this afternoon a complete
Committee Report No. 7 which embodies the proposed provision governing the matter of initiative. This is
now covered by Section 2 of the complete committee report. With the permission of the Members, may I
quote Section 2:
The people may, after five years from the date of the last plebiscite held, directly propose amendments to
this Constitution thru initiative upon petition of at least ten percent of the registered voters.

This completes the blanks appearing in the original Committee Report No. 7.[32]

The interpellations on Section 2 showed that the details for carrying out Section 2 are left to the
legislature. Thus:

FR. BERNAS. Madam President, just two simple, clarificatory questions.

First, on Section 1 on the matter of initiative upon petition of at least 10 percent, there are no details in the
provision on how to carry this out. Do we understand, therefore, that we are leaving this matter to the
legislature?

MR. SUAREZ. That is right, Madam President.

FR. BERNAS. And do we also understand, therefore, that for as long as the legislature does not pass the
necessary implementing law on this, this will not operate?

MR. SUAREZ. That matter was also taken up during the committee hearing, especially with respect to the
budget appropriations which would have to be legislated so that the plebiscite could be called. We
deemed it best that this matter be left to the legislature. The Gentleman is right. In any event, as
envisioned, no amendment through the power of initiative can be called until after five years from the date
of the ratification of this Constitution. Therefore, the first amendment that could be proposed through the
exercise of this initiative power would be after five years. It is reasonably expected that within that five-
year period, the National Assembly can come up with the appropriate rules governing the exercise of this
power.

FR. BERNAS. Since the matter is left to the legislature - the details on how this is to be carried out - is it
possible that, in effect, what will be presented to the people for ratification is the work of the legislature
rather than of the people? Does this provision exclude that possibility?

MR. SUAREZ. No, it does not exclude that possibility because even the legislature itself as a body could
propose that amendment, maybe individually or collectively, if it fails to muster the three-fourths vote in
order to constitute itself as a constituent assembly and submit that proposal to the people for ratification
through the process of an initiative.

xxx

MS. AQUINO. Do I understand from the sponsor that the intention in the proposal is to vest constituent
power in the people to amend the Constitution?

MR. SUAREZ. That is absolutely correct, Madam President.

MS. AQUINO. I fully concur with the underlying precept of the proposal in terms of institutionalizing
popular participation in the drafting of the Constitution or in the amendment thereof, but I would have a lot
of difficulties in terms of accepting the draft of Section 2, as written. Would the sponsor agree with me that
in the hierarchy of legal mandate, constituent power has primacy over all other legal mandates?

MR. SUAREZ. The Commissioner is right, Madam President.

MS. AQUINO. And would the sponsor agree with me that in the hierarchy of legal values, the Constitution
is source of all legal mandates and that therefore we require a great deal of circumspection in the drafting
and in the amendments of the Constitution?

MR. SUAREZ. That proposition is nondebatable.

MS. AQUINO. Such that in order to underscore the primacy of constituent power we have a separate
article in the constitution that would specifically cover the process and the modes of amending the
Constitution?

MR. SUAREZ. That is right, Madam President.

MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted now, to again concede to
the legislature the process or the requirement of determining the mechanics of amending the Constitution
by people's initiative?

MR. SUAREZ. The matter of implementing this could very well be placed in the hands of the National
Assembly, not unless we can incorporate into this provision the mechanics that would adequately cover
all the conceivable situations.[33]

It was made clear during the interpellations that the aforementioned Section 2 is limited to proposals
to AMEND -- not to REVISE -- the Constitution; thus:

MR. SUAREZ. ... This proposal was suggested on the theory that this matter of initiative, which came
about because of the extraordinary developments this year, has to be separated from the traditional
modes of amending the Constitution as embodied in Section 1. The committee members felt that this
system of initiative should not extend to the revision of the entire Constitution, so we removed it from the
operation of Section 1 of the proposed Article on Amendment or Revision.[34]

xxx

MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative as a separate
section in the Article on Amendment. Would the sponsor be amenable to accepting an amendment in
terms of realigning Section 2 as another subparagraph (c) of Section 1, instead of setting it up as another
separate section as if it were a self-executing provision?

MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this process of initiative is
limited to the matter of amendment and should not expand into a revision which contemplates a total
overhaul of the Constitution. That was the sense that was conveyed by the Committee.

MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of modes (a)
and (b) in Section 1 to include the process of revision; whereas the process of initiation to amend, which
is given to the public, would only apply to amendments?

MR. SUAREZ.That is right. Those were the terms envisioned in the Committee.[35]

Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario G.
Davide, Jr., which the Committee accepted. Thus:

MR. DAVIDE. Thank you Madam President. I propose to substitute the entire Section 2 with the following:

xxx
MR. DAVIDE. Madam President, I have modified the proposed amendment after taking into account the
modifications submitted by the sponsor himself and the honorable Commissioners Guingona, Monsod,
Rama, Ople, de los Reyes and Romulo. The modified amendment in substitution of the proposed Section
2 will now read as follows: "SECTION 2. -- AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE
BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT
LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY
LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE
REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE
AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR
OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE
EXERCISE OF THIS RIGHT.

MR. SUAREZ. Madam President, considering that the proposed amendment is reflective of the sense
contained in Section 2 of our completed Committee Report No. 7, we accept the proposed amendment. [36]

The interpellations which ensued on the proposed modified amendment to Section 2 clearly
showed that it was a legislative act which must implement the exercise of the right. Thus:

MR. ROMULO. Under Commissioner Davide's amendment, is it possible for the legislature to set forth
certain procedures to carry out the initiative...?

MR. DAVIDE. It can.

xxx

MR. ROMULO. But the Commissioners amendment does not prevent the legislature from asking another
body to set the proposition in proper form.

MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this particular right
would be subject to legislation, provided the legislature cannot determine anymore the percentage of the
requirement.

MR. ROMULO. But the procedures, including the determination of the proper form for submission to the
people, may be subject to legislation.

MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other words, none of the
procedures to be proposed by the legislative body must diminish or impair the right conceded here.

MR. ROMULO. In that provision of the Constitution can the procedures which I have discussed be
legislated?

MR. DAVIDE. Yes.[37]

Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to
AMENDMENTS to -- NOT REVISION of -- the Constitution. Thus:

MR. DAVIDE. With pleasure, Madam President.

MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1 refers to
"amendment." Does it not cover the word "revision" as defined by Commissioner Padilla when he made
the distinction between the words "amendments" and "revision"?
MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by Section 1. So
insofar as initiative is concerned, it can only relate to "amendments" not "revision." [38]

Commissioner Davide further emphasized that the process of proposing amendments

through initiative must be more rigorous and difficult than the initiative on legislation. Thus:

MR. DAVIDE. A distinction has to be made that under this proposal, what is involved is an amendment to
the Constitution. To amend a Constitution would ordinarily require a proposal by the National Assembly
by a vote of three-fourths; and to call a constitutional convention would require a higher
number. Moreover, just to submit the issue of calling a constitutional convention, a majority of the
National Assembly is required, the import being that the process of amendment must be made more
rigorous and difficult than probably initiating an ordinary legislation or putting an end to a law proposed by
the National Assembly by way of a referendum. I cannot agree to reducing the requirement approved by
the Committee on the Legislative because it would require another voting by the Committee, and the
voting as precisely based on a requirement of 10 percent. Perhaps, I might present such a proposal, by
way of an amendment, when the Commission shall take up the Article on the Legislative or on the
National Assembly on plenary sessions.[39]

The Davide modified amendments to Section 2 were subjected to amendments, and the final
version, which the Commission approved by a vote of 31 in favor and 3 against, reads as follows:

MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads as follows: "AMENDMENT TO
THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH
INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF
REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY
AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER
THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF
THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE
EXERCISE OF THIS RIGHT.[40]

The entire proposed Article on Amendments or Revisions was approved on second reading on 9 July
1986.[41] Thereafter, upon his motion for reconsideration, Commissioner Gascon was allowed to introduce
an amendment to Section 2 which, nevertheless, was withdrawn. In view thereof, the Article was again
approved on Second and Third Readings on 1 August 1986.[42]
However, the Committee on Style recommended that the approved Section 2 be amended by
changing percent to per centum and thereof to therein and deleting the phrase by law in the second
paragraph so that said paragraph reads: The Congress[43] shall provide for the implementation of the
exercise of this right.[44] This amendment was approved and is the text of the present second paragraph
of Section 2.
The conclusion then is inevitable that, indeed, the system of initiative on the Constitution under
Section 2 of Article XVII of the Constitution is not self-executory.
Has Congress provided for the implementation of the exercise of this right? Those who answer the
question in the affirmative, like the private respondents and intervenor Senator Roco, point to us R.A. No.
6735.
There is, of course, no other better way for Congress to implement the exercise of the right than
through the passage of a statute or legislative act. This is the essence or rationale of the last minute
amendment by the Constitutional Commission to substitute the last paragraph of Section 2 of Article XVII
then reading:

The Congress[45] shall by law provide for the implementation of the exercise of this right.
 with

The Congress shall provide for the implementation of the exercise of this right.

This substitute amendment was an investiture on Congress of a power to provide for the rules
implementing the exercise of the right. The rules means the details on how [the right] is to be carried
out.[46]
We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose
amendments to the Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill No.
17. The former was prepared by the Committee on Suffrage and Electoral Reforms of the House of
Representatives on the basis of two House Bills referred to it, viz., (a) House Bill No. 497,[47] which dealt
with the initiative and referendum mentioned in Sections 1 and 32 of Article VI of the Constitution; and (b)
House Bill No. 988,[48] which dealt with the subject matter of House Bill No. 497, as well as with initiative
and referendum under Section 3 of Article X (Local Government) and initiative provided for in Section 2 of
Article XVII of the Constitution. Senate Bill No. 17[49] solely dealt with initiative and referendum concerning
ordinances or resolutions of local government units. The Bicameral Conference Committee consolidated
Senate Bill No. 17 and House Bill No. 21505 into a draft bill, which was subsequently approved on 8 June
1989 by the Senate[50] and by the House of Representatives.[51] This approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of Congress to provide for the
implementation of the exercise of the right?
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not
suggest an initiative on amendments to the Constitution. The said section reads:

SECTION 2. Statement and Policy. -- The power of the people under a system of initiative and
referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws,
ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this
Act is hereby affirmed, recognized and guaranteed. (Underscoring supplied).

The inclusion of the word Constitution therein was a delayed afterthought. That word is neither germane
nor relevant to said section, which exclusively relates to initiative and referendum on national laws and
local laws, ordinances, and resolutions. That section is silent as to amendments on the Constitution. As
pointed out earlier, initiative on the Constitution is confined only to proposals to AMEND. The people are
not accorded the power to directly propose, enact, approve, or reject, in whole or in part, the Constitution
through the system of initiative. They can only do so with respect to laws, ordinances, or resolutions.
The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1
of Senate Bill No. 17, which solely referred to a statement of policy on local initiative and referendum and
appropriately used the phrases propose and enact, approve or reject and in whole or in part.[52]
Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on amendments to
the Constitution and mentions it as one of the three systems of initiative, and that Section 5
(Requirements) restates the constitutional requirements as to the percentage of the registered voters who
must submit the proposal. But unlike in the case of the other systems of initiative, the Act does not
provide for the contents of a petition for initiative on the Constitution. Section 5, paragraph (c) requires,
among other things, statement of the proposed law sought to be enacted, approved or rejected, amended
or repealed, as the case may be. It does not include, as among the contents of the petition, the provisions
of the Constitution sought to be amended, in the case of initiative on the Constitution. Said paragraph (c)
reads in full as follows:

(c) The petition shall state the following:

c.1 contents or text of the proposed law sought to be enacted, approved or rejected, amended or
repealed, as the case may be;

c.2 the proposition;

c.3 the reason or reasons therefor;

c.4 that it is not one of the exceptions provided therein;

c.5 signatures of the petitioners or registered voters; and

c.6 an abstract or summary proposition is not more than one hundred (100) words which shall be legibly
written or printed at the top of every page of the petition. (Underscoring supplied).

The use of the clause proposed laws sought to be enacted, approved or rejected, amended or repealed
only strengthens the conclusion that Section 2, quoted earlier, excludes initiative on amendments to the
Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for
Local Initiative and Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution. This
conspicuous silence as to the latter simply means that the main thrust of the Act is initiative and
referendum on national and local laws. If Congress intended R.A. No. 6735 to fully provide for the
implementation of the initiative on amendments to the Constitution, it could have provided for a subtitle
therefor, considering that in the order of things, the primacy of interest, or hierarchy of values, the right of
the people to directly propose amendments to the Constitution is far more important than the initiative on
national and local laws.
We cannot accept the argument that the initiative on amendments to the Constitution is subsumed
under the subtitle on National Initiative and Referendum because it is national in scope. Our reading of
Subtitle II (National Initiative and Referendum) and Subtitle III (Local Initiative and Referendum) leaves no
room for doubt that the classification is not based on the scope of the initiative involved, but on
its nature and character. It is national initiative, if what is proposed to be adopted or enacted is a national
law, or a law which only Congress can pass.It is local initiative if what is proposed to be adopted or
enacted is a law, ordinance, or resolution which only the legislative bodies of the governments of the
autonomous regions, provinces, cities, municipalities, and barangays can pass. This classification of
initiative into national and local is actually based on Section 3 of the Act, which we quote for emphasis
and clearer understanding:

SEC. 3. Definition of terms --

xxx

There are three (3) systems of initiative, namely:

a.1 Initiative on the Constitution which refers to a petition proposing amendments to the Constitution;

a.2 Initiative on Statutes which refers to a petition proposing to enact a national legislation; and

a.3 Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city,
municipal, or barangay law, resolution or ordinance. (Underscoring supplied).

Hence, to complete the classification under subtitles there should have been a subtitle on initiative
on amendments to the Constitution.[53]
 A further examination of the Act even reveals that the subtitling is not accurate. Provisions not
germane to the subtitle on National Initiative and Referendum are placed therein, like (1) paragraphs (b)
and (c) of Section 9, which reads:

(b) The proposition in an initiative on the Constitution approved by the majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite.

(c) A national or local initiative proposition approved by majority of the votes cast in an election called for
the purpose shall become effective fifteen (15) days after certification and proclamation of the
Commission. (Underscoring supplied).

(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative bodies of
local governments; thus:

SEC. 11. Indirect Initiative. -- Any duly accredited peoples organization, as defined by law, may file a
petition for indirect initiative with the House of Representatives, and other legislative bodies....

and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings of sufficiency
or insufficiency of the petition for initiative or referendum, which could be petitions for both national and
local initiative and referendum.
Upon the other hand, Section 18 on Authority of Courts under subtitle III on Local Initiative and
Referendum is misplaced,[54] since the provision therein applies to both national and local initiative and
referendum. It reads:

SEC. 18. Authority of Courts. -- Nothing in this Act shall prevent or preclude the proper courts from
declaring null and void any proposition approved pursuant to this Act for violation of the Constitution or
want of capacity of the local legislative body to enact the said measure.

Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in
the implementation of initiative and referendum on national and local legislation thereby giving them
special attention, it failed, rather intentionally, to do so on the system of initiative on amendments to the
Constitution. Anent the initiative on national legislation, the Act provides for the following:

(a) The required percentage of registered voters to sign the petition and the contents of the petition;

(b) The conduct and date of the initiative;

(c) The submission to the electorate of the proposition and the required number of votes for its approval;

(d) The certification by the COMELEC of the approval of the proposition;

(e) The publication of the approved proposition in the Official Gazette or in a newspaper of general
circulation in the Philippines; and

(f) The effects of the approval or rejection of the proposition.[55]

As regards local initiative, the Act provides for the following:

(a) The preliminary requirement as to the number of signatures of registered voters for the petition;

(b) The submission of the petition to the local legislative body concerned;
(c) The effect of the legislative bodys failure to favorably act thereon, and the invocation of the power of
initiative as a consequence thereof;

(d) The formulation of the proposition;

(e) The period within which to gather the signatures;

(f) The persons before whom the petition shall be signed;

(g) The issuance of a certification by the COMELEC through its official in the local government unit
concerned as to whether the required number of signatures have been obtained;

(h) The setting of a date by the COMELEC for the submission of the proposition to the registered voters
for their approval, which must be within the period specified therein;

(i) The issuance of a certification of the result;

(j) The date of effectivity of the approved proposition;

(k) The limitations on local initiative; and

(l) The limitations upon local legislative bodies.[56]

Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of its
twenty-three sections, merely (a) mentions, the word Constitution in Section 2; (b) defines initiative on the
Constitution and includes it in the enumeration of the three systems of initiative in Section 3; (c) speaks of
plebiscite as the process by which the proposition in an initiative on the Constitution may be approved or
rejected by the people; (d) reiterates the constitutional requirements as to the number of voters who
should sign the petition; and (e) provides for the date of effectivity of the approved proposition.
There was, therefore, an obvious downgrading of the more important or the paramount system of
initiative. R.A. No. 6735 thus delivered a humiliating blow to the system of initiative on amendments to the
Constitution by merely paying it a reluctant lip service.[57]
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting in
essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its
lacunae on this substantive matter are fatal and cannot be cured by empowering the COMELEC to
promulgate such rules and regulations as may be necessary to carry out the purposes of [the] Act. [58]
The rule is that what has been delegated, cannot be delegated or as expressed in a Latin
maxim: potestas delegata non delegari potest.[59] The recognized exceptions to the rule are as follows:

(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the Constitution;

(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the Constitution;

(3) Delegation to the people at large;

(4) Delegation to local governments; and

(5) Delegation to administrative bodies.[60]

 Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to
promulgate rules and regulations is a form of delegation of legislative authority under no. 5
above. However, in every case of permissible delegation, there must be a showing that the delegation
itself is valid. It is valid only if the law (a) is complete in itself, setting forth therein the policy to be
executed, carried out, or implemented by the delegate; and (b) fixes a standard -- the limits of which are
sufficiently determinate and determinable -- to which the delegate must conform in the performance of his
functions.[61] A sufficient standard is one which defines legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to apply it. It indicates the circumstances under which the
legislative command is to be effected.[62]
Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735
miserably failed to satisfy both requirements in subordinate legislation. The delegation of the power to the
COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND
REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement
the exercise of the right of the people to directly propose amendments to the Constitution through the
system of initiative. It does not have that power under R.A. No. 6735. Reliance on the COMELECs power
under Section 2(1) of Article IX-C of the Constitution is misplaced, for the laws and regulations referred to
therein are those promulgated by the COMELEC under (a) Section 3 of Article IX-C of the Constitution, or
(b) a law where subordinate legislation is authorized and which satisfies the completeness and the
sufficient standard tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN
ENTERTAINING THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of Congress
to implement the right to initiate constitutional amendments, or that it has validly vested upon the
COMELEC the power of subordinate legislation and that COMELEC Resolution No. 2300 is valid, the
COMELEC acted without jurisdiction or with grave abuse of discretion in entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a petition for
initiative on the Constitution must be signed by at least 12% of the total number of registered voters of
which every legislative district is represented by at least 3% of the registered voters therein. The Delfin
Petition does not contain signatures of the required number of voters. Delfin himself admits that he has
not yet gathered signatures and that the purpose of his petition is primarily to obtain assistance in his
drive to gather signatures. Without the required signatures, the petition cannot be deemed validly
initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition then
is the initiatory pleading. Nothing before its filing is cognizable by the COMELEC, sitting en banc. The
only participation of the COMELEC or its personnel before the filing of such petition are (1) to prescribe
the form of the petition;[63] (2) to issue through its Election Records and Statistics Office a certificate on
the total number of registered voters in each legislative district;[64] (3) to assist, through its election
registrars, in the establishment of signature stations;[65] and (4) to verify, through its election registrars, the
signatures on the basis of the registry list of voters, voters affidavits, and voters identification cards used
in the immediately preceding election.[66]
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution
No. 2300, it cannot be entertained or given cognizance of by the COMELEC. The latter knew that the
petition does not fall under any of the actions or proceedings under the COMELEC Rules of Procedure or
under Resolution No. 2300, for which reason it did not assign to the petition a docket number. Hence, the
said petition was merely entered as UND, meaning, undocketed. That petition was nothing more than a
mere scrap of paper, which should not have been dignified by the Order of 6 December 1996, the hearing
on 12 December 1996, and the order directing Delfin and the oppositors to file their memoranda or
oppositions. In so dignifying it, the COMELEC acted without jurisdiction or with grave abuse of discretion
and merely wasted its time, energy, and resources.
The foregoing considered, further discussion on the issue of whether the proposal to lift the term
limits of the elective national and local officials is an amendment to, and not a revisionof, the Constitution
is rendered unnecessary, if not academic.

CONCLUSION

This petition must then be granted, and the COMELEC should be permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments on the Constitution until a
sufficient law shall have been validly enacted to provide for the implementation of the system.
We feel, however, that the system of initiative to propose amendments to the Constitution should no
longer be kept in the cold; it should be given flesh and blood, energy and strength.Congress should not
tarry any longer in complying with the constitutional mandate to provide for the implementation of the right
of the people under that system.
WHEREFORE, judgment is hreby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the
Constitution, and to have failed to provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolutions No. 2300 of the Commission on Elections
prescribing rules and regulations on the conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-
037).
The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the
Commission on Elections, but is LIFTED against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
Narvasa, C.J., Regalado, Romero, Bellosillo,Kapunan, Hermosisima, Jr. and Torres Jr., JJ., concur.
Padilla, J., took no part; related to a co-petitioner and co-counsel of the petitioners.
Melo and Mendoza, JJ., joins the separate, concurring opinions of Justices Puno, Francisco and
Panganiban.
Puno, Vitug, , Francisco and Panganiban, JJ., has separate opinions.