SELECTED NEW DECISIONS IN POLITICAL LAW AND PUBLIC

INTERNATIONAL LAW

Attorney EDWIN REY SANDOVAL

Professor of Law
(December 3, 2002 – May 28, 2003)

Victorino Dennis M. Socrates v. The Commission on Elections

G.R. No. 154512, November 12, 2002
En Banc [Carpio]

This case involved Mayor Edward S. Hagedorn of Puerto Princesa City who ran
and won in the Special Recall Election held in that City on September 24, 2002.
Hagedorn was elected for three consecutive terms in the 1992, 1995 and 1998
elections and served in full his three consecutive terms as Mayor of Puerto Princesa.
Under the Constitution and the Local Government Code, Hagedorn could no longer
run for mayor in the 2001 elections. The Constitution and the Local Government
Code disqualified Hagedorn, who had reached the maximum three-term limit, from
running for a fourth consecutive term as mayor. In the 2001 elections, he ran for
Governor of the Province of Palawan and lost. Socrates ran and won as Mayor of
Puerto Princesa in that election. After Hagedorn ceased to be mayor on June 30,
2001, he became a private citizen. On July 2, 2002, the Preparatory Recall Assembly
(PRA) of Puerto Princesa City adopted a Resolution calling for the recall of the
incumbent Mayor Socrates. The COMELEC scheduled a special recall election for
Mayor on September 24, 2002.

Is Mayor Hagedorn qualified to run again for Mayor of that City considering the
circumstances?

Held:

The three-term limit rule for elective local officials is found in Section 8, Article
X of the Constitution x x x.

This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160,

otherwise known as the Local Government Code x x x.

These constitutional and statutory provisions have two parts. The first part
provides that an elective local official cannot serve for more than three consecutive
terms. The clear intent is that only consecutive terms count in determining the
three-term limit rule. The second part states that voluntary renunciation of office for
any length of time does not interrupt the continuity of service. The clear intent is
that involuntary severance from office for any length of time interrupts continuity of
service and prevents the service before and after the interruption from being joined
together to form a continuous service or consecutive terms.

After three consecutive terms, an elective local official cannot seek immediate
reelection for a fourth term. The prohibited election refers to the next regular
election for the same office following the end of the third consecutive term. Any
subsequent election, like a recall election, is no longer covered by the prohibition for
two reasons. First, a subsequent election like a recall election is no longer an
immediate reelection after three consecutive terms. Second, the intervening period
constitutes an involuntary interruption in the continuity of service.

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Clearly, what the Constitution prohibits is an immediate reelection for a fourth

term following three consecutive terms. The Constitution, however, does not prohibit
a subsequent reelection for a fourth term as long as the reelection is not immediately
after the end of the third consecutive term. A recall election mid-way in the term
following the third consecutive term is a subsequent election but not an immediate
reelection after the third term.

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 Neither does the Constitution prohibit one barred from seeking immediate
reelection to run in any other subsequent election involving the same term of office.
What the Constitution prohibits is a consecutive fourth term. The debates in the
Constitutional Commission evidently show that the prohibited election referred to by
the framers of the Constitution is the immediate reelection after the third term, not
any other subsequent election.

If the prohibition on elective local officials is applied to any election within the
three-year full term following the three-term limit, then Senators should also be
prohibited from running in any election within the six-year full term following their
two-term limit. The constitutional provision on the term limit of Senators is worded
exactly like the term limit of elective local officials x x x.

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In the case of Hagedorn, his candidacy in the recall election on September 24,
2002 is not an immediate reelection after his third consecutive term which ended on
June 30, 2001. The immediate reelection that the Constitution barred Hagedorn from
seeking referred to the regular elections in 2001. Hagedorn did not seek reelection
in the 2001 elections.

Hagedorn was elected for three consecutive terms in the 1992, 1995 and
1998 elections and served in full his three consecutive terms as mayor of Puerto
Princesa. Under the Constitution and the Local Government Code, Hagedorn could
no longer run for mayor in the 2001 elections. The Constitution and the Local
Government Code disqualified Hagedorn, who had reached the maximum three-term
limit, from running for a fourth consecutive term as mayor. Thus, Hagedorn did not
run for mayor in the 2001 elections. Socrates ran and won as mayor of Puerto
Princesa in the 2001 elections. After Hagedorn ceased to be mayor on June 30, 2001,
he became a private citizen until the recall election of September 24, 2002 when he
won by 3,018 votes over his closest opponent, Socrates.

From June 30, 2001 until the recall election on September 24, 2002, the
mayor of Puerto Princesa was Socrates. This period is clearly an interruption in the
continuity of Hagedorn’s service as mayor, not because of his voluntary renunciation,
but because of a legal prohibition. Hagedorn’s three consecutive terms ended on
June 30, 2001. Hagedorn’s new recall term from September 24, 2002 to June 30,
2004 is not a seamless continuation of his previous three consecutive terms as
mayor. One cannot stitch together Hagedorn’s previous three-terms with his new
recall term to make the recall term a fourth consecutive term because factually it is
not. An involuntary interruption occurred from June 30, 2001 to September 24, 2002
which broke the continuity or consecutive character of Hagedorn’s service as mayor.

In Lonzanida v. Comelec (311 SCRA 602 [1999]), the Court had occasion to
explain interruption of continuity of service in this manner:

“x x x The second sentence of the constitutional provision under scrutiny

states, ‘Voluntary renunciation of office for any length of time shall not be
considered as an interruption in the continuity of service for the full term for
which he was elected.’ The clear intent of the framers of the constitution to
bar any attempt to circumvent the three-term limit by a voluntary
renunciation of office and at the same time respect the people’s choice and
grant their elected official full service of a term is evident in this provision.
Voluntary renunciation of a term does not cancel the renounced term in the
computation of the three-term limit; conversely, involuntary severance from
office for any length of time short of the full term provided by law amounts to
an interruption of continuity of service. x x x.”) (Emphasis supplied)

In Hagedorn’s case, the nearly 15-month period he was out of office, although short
of a full term of three years, constituted an interruption in the continuity of his
service as mayor. The Constitution does not require the interruption or hiatus to be a
full term of three years. The clear intent is that interruption “for any length of
time,” as long as the cause is involuntary, is sufficient to break an elective
local official’s continuity of service.

In the recent case of Adormeo v. Comelec and Talaga (G.R. No. 147927,
February 4, 2002), a unanimous Court reiterated the rule that an interruption

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consisting of a portion of a term of office breaks the continuity of service of an
elective local official. In Adormeo, Ramon Y. Talaga, Jr. had served two consecutive
full terms as mayor of Lucena city. In his third bid for election as mayor in 1998,
Talaga lost to Bernard G. Tagarao. However, in the recall election of May 12, 2000,
Talaga won and served the unexpired term of Tagarao from May 12, 2000 to June 30,
2001. When Talaga ran again for mayor in the 2001 elections, Raymundo Adormeo,
the other candidate for mayor, petitioned for Talaga’s disqualification on the ground
that Talaga had already served three consecutive terms as mayor.

Thus, the issue in Adormeo was whether Talaga’s recall term was a
continuation of his previous two terms so that he was deemed to have already served
three consecutive terms as mayor. The Court ruled that Talaga was qualified to run
in the 2001 elections, stating that the period from June 30, 1998 to May 12, 2000
when Talaga was out of office interrupted the continuity of his service as mayor.
Talaga’s recall term as mayor was not consecutive to his previous two terms because
of this interruption, there having been a break of almost two years during which time
Tagarao was the mayor.

We held in Adormeo that the period an elective local official is out of office
interrupts the continuity of his service and prevents his recall term from being
stitched together as a seamless continuation of his previous two consecutive terms.
In the instant case, we likewise hold that the nearly 15 months Hagedorn was out of
office interrupted his continuity of service and prevents his recall term from being
stitched together as a seamless continuation of his previous three consecutive terms.
The only difference between Adormeo and the instant case is the time of the
interruption. In Adormeo, the interruption occurred after the first two consecutive
terms. In the instant case, the interruption happened after the first three
consecutive terms. In both cases, the respondents were seeking election for a fourth
term.

In Adormeo, the recall term of Talaga began only from the date he assumed
office after winning the recall election. Talaga’s recall term did not retroact to
include the tenure in office of his predecessor. If Talaga’s recall term was made to so
retroact, then he would have been disqualified to run in the 2001 elections because
he would already have served three consecutive terms prior to the 2001 elections.
One who wins and serves a recall term does not serve the full term of his
predecessor but only the unexpired term. The period of time prior to the recall term,
when another elective official holds office, constitutes an interruption in continuity of
service. Clearly, Adormeo established the rule that the winner in the recall election
cannot be charged or credited with the full term of three years for purposes of
counting the consecutiveness of an elective official’s terms in office.

In the same manner, Hagedorn’s recall term does not retroact to include the
tenure in office of Socrates. Hagedorn can only be disqualified to run in the
September 24, 2002 recall election if the recall term is made to retroact to June 30,
2001, for only then can the recall term constitute a fourth consecutive term. But to
consider Hagedorn’s recall term as a full term of three years, retroacting to June 30,
2001, despite the fact that he won his recall term only last September 24, 2002, is to
ignore reality. This Court cannot declare as consecutive or successive terms of office
which historically and factually are not.

Worse, to make Hagedorn’s term retroact to June 30, 2001 creates a legal
fiction that unduly curtails the freedom of the people to choose their leaders through
popular elections. The concept of term limits is in derogation of the sovereign will of
the people to elect the leaders of their own choosing. Term limits must be construed
strictly to give the fullest possible effect to the sovereign will of the people. X x x

A necessary consequence of the interruption of continuity of service is the

start of a new term following the interruption. An official elected in recall election
serves the unexpired term of the recalled official. This unexpired term is in itself
one term for purposes of counting the three-term limit. This is clear from the
following discussion in the Constitutional Commission x x x.

Although the discussion referred to special elections for Senators and

Representatives of the House, the same principle applies to a recall election of local
officials. Otherwise, an elective local official who serves a recall term can serve for
more than nine consecutive years comprising of the recall term plus the regular three

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full terms. A local official who serves a recall term should know that the recall term is
in itself one term although less than three years. This is the inherent limitation he
takes by running and winning in the recall election.

Collateral Issue

Socrates also claims that the PRA members had no authority to adopt the
Recall Resolution on July 2, 2002 because a majority of PRA members were seeking a
new electoral mandate in the barangay elections scheduled on July 15, 2002.

Held:

This argument deserves scant consideration considering that when the PRA
members adopted the Recall Resolution their terms of office had not yet expired.
They were all de jure sangguniang barangay members with no legal disqualification
to participate in the recall assembly under Section 70 of the Local Government Code.

Melanio L. Mendoza and Mario E. Ibarra v. Commission on Elections

and Leonardo B. Roman
G.R. No. 149736, December 17, 2002
En Banc

For resolution is a petition for certiorari filed by petitioners x x x seeking to set

aside the resolution of the Commission on Elections x x x and to declare respondent
Leonardo B. Roman’s election as governor of Bataan on May 14, 2001 as null and
void for allegedly being contrary to Art. X, Sec. 8 of the Constitution x x x.

After due deliberation, the Court voted 8 to 7 to DISMISS the petition.

VITUG, J., joined by YNARES-SANTIAGO, J., voted to dismiss the petition. He

contended that as revealed by the records of the Constitutional Commission, the
Constitution envisions a continuous and an uninterrupted service for three full terms
before the proscription applies. Therefore, not being a full term, a recall term should
not be counted or used as a basis for the disqualification whether served prior (as in
this case) or subsequent (as in the Socrates case) to the nine-year, full three-term
limit.

MENDOZA, J., in whose opinion QUISUMBING, J., joined, voted to dismiss the
petition on the ground that, in accordance with the ruling in Borja, Jr. v. COMELEC,
295 SCRA 157 [1998]; Arcos v. COMELEC, G.R. No. 133639, Oct. 6, 1998 (res.);
Lonzanida v. COMELEC, 311 SCRA 602 [1999]; and Adormeo v. COMELEC, G.R. No.
147927, Feb. 4, 2002, a term during which succession to a local elective office takes
place or a recall election is held should not be counted in determining whether an
elective local official has served more than three consecutive terms. He argued that
the Constitution does not prohibit elective local officials from serving for more than
three consecutive terms because, in fact, it excludes from the three-term limit
interruptions in the continuity of service, so long as such interruptions are not due to
the voluntary renunciation of the office by the incumbent. Hence, the period from
June 28, 1994 to June 30, 1995, during which respondent Leonardo B. Roman served
as governor of Bataan by virtue of a recall election held in 1993, should not be
counted. Since on May 14, 2001 respondent had previously served as governor of
Bataan for only two consecutive terms (1995-1998 and 1998-2001), his election on
that day was actually only his third term for the same position.

PANGANIBAN, J., joined by PUNO, J., also voted to dismiss the petition. He
argued that a recall term should not be considered as one full term, because a
contrary interpretation would in effect cut short the elected official’s service to less
than nine years and shortchange his constituents. The desire to prevent monopoly of
political power should be balanced against the need to uphold the voters’ obvious
preference who, in the present case, is Roman who received 97 percent of the votes
cast. He explained that, in Socrates, he also voted to affirm the clear choice of the
electorate, because in a democracy the people should, as much as legally possible,
be governed by leaders freely chosen by them in credible elections. He concluded
that, in election cases, when two conflicting legal positions are of almost equal
weight, the scales of justice should be tilted in favor of the people’s overwhelming
choice.

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 AZCUNA, J., joined by BELLOSILLO, J., also voted to dismiss, arguing that it is
clear from the constitutional provision that the disqualification applies only if the
terms are consecutive and the service is full and continuous. Hence, service for less
than a term, except only in case of voluntary renunciation, should not count to
disqualify an elective local official from running for the same position. This case is
different from Socrates, where the full three consecutive terms had been
continuously served so that disqualification had clearly attached.

On the other hand, SANDOVAL-GUTIERREZ, J., with whom DAVIDE, C.J., and
AUSTRIA-MARTINEZ, CORONA, and CALLEJO, SR., JJ., concurred, holds the view that
the recall term served by respondent Roman, comprising the period June 28, 1994 to
June 30, 1995, should be considered as one term. Since he thereafter served for two
consecutive terms from 1995 to 1998 and from 1998 to 2001, his election on May 14,
2001 was actually his fourth term and contravenes Art. X, Sec. 8 of the Constitution.
For this reason, she voted to grant the petition and to declare respondent’s election
on May 14, 2002 as null and void.

CARPIO, J., joined by CARPI0-MORALES, J., also dissented and voted to grant
the petition. He held that a recall term constitutes one term and that to totally
ignore a recall term in determining the three-term limit would allow local
officials to serve for more than nine consecutive years contrary to the
manifest intent of the framers of the Constitution. He contended that
respondent Roman’s election in 2001 cannot exempt him from the three-term limit
imposed by the Constitution.

WHEREFORE, THE PETITION FOR CERTIORARI IS DISMISSED.

THE SEPARATE OPINIONS OF THE JUSTICES ARE HERETO ATTACHED AS PART

OF THIS RESOLUTION.

Separate Opinion, Vitug, J.

Petitioners would seek the disqualification of respondent Leonardo B. Roman

on the ground of his having transgressed the three-term limit under Section 8, Article
X, of the 1987 Constitution and Section 43 of Republic Act No. 7160 (Local
Government Code) x x x.

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The focal issue presented before the Court x x x would revolve on the
question of whether or not private respondent Roman exceeded the three-term limit
for elective local officials, expressed in the Constitution and the Local Government
Code, when he again ran for the position of Governor in the 14th of May 2001
elections, having occupied and served in that position following the 1993 recall
elections, as well as the 1995 and 1998 regular elections, immediately prior to the
2001 elections. In fine, should respondent’s incumbency to the post of Governor
following the recall elections be included in determining the three-consecutive term
limit fixed by law?

In order that the three-consecutive term limit can apply, two conditions must
concur, i.e., (1) that the elective local official concerned has been elected for three
consecutive terms to the same local government position, and (2) that he has served
three consecutive full terms, albeit a voluntary renunciation of the office for any
length of time shall not be deemed to be an interruption in the continuity of the
service for the full term for which he is elected. The constitutional provision does not
appear to be all that imprecise for and in its application. Section 8, Article X, of the
Constitution is explicit that the “term of office of elective local officials x x x shall be
three years” which phrase is forthwith followed by its mandate that “no such official
shall serve for more than three consecutive terms,” and that “[v]oluntary
renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for which he [is]
elected.” The law evidently contemplates a continuous full three-year term before
the proscription can apply.

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 The Constitutional Commission, in its deliberations, referred to a full nine (9)
years of service for each elective local government official in the application of the
prohibition, envisioning at the same time a continuous and uninterrupted period of
nine years by providing for only one exception, i.e., when an incumbent voluntarily
gives up the office.

Xxx

A winner who dislodges in a recall election an incumbent elective local official

merely serves the balance of the latter’s term of office; it is not a full three-year
term. It also goes without saying that an incumbent elective local official against
whom a recall election is initiated and who nevertheless wins in a recall election must
be viewed as being a continuing term of office and not as a break in reckoning his
three consecutive terms. X x x

If involuntary severance from the service which results in the incumbent’s

being unable to finish his term of office because of his ouster through valid recall
proceedings negates “one term” for purposes of applying the three-term limit, as so
intimated in Lonzanida, it stands to reason that the balance of the term assumed by
the newly elected local official in a recall election should not also be held to be one
term in reckoning the three-term limit. In both situations, neither the elective local
official who is unable to finish his term nor the elected local official who only assumes
the balance of the term of the ousted local official following the recall election could
be considered to have served a full three-year term set by the Constitution.

This view is not inconsistent, but indeed in line, with the conclusion ultimately
reached in Socrates v. Commission on Elections, where the Court has considered
Hagedorn, following his three full terms of nine years, still qualified to run in a recall
election conducted about a year and a half after the most recent regular local
elections. A recall term then, not being a full three-year term, is not to be counted or
used as a basis for disqualification whether it is held prior or subsequent to the nine
year full three-term limit.

This same issue has been passed and ruled upon by the Commission on
Elections no less than five times. Consistently, it has held that the term of a
newcomer in recall elections cannot be counted as a full term and may not thus be
included in counting the three-term limit prescribed under the law. The Commission
on Elections, with its fact-finding facilities, its familiarity with political realities, and its
peculiar expertise in dealing with election controversies, should be in a good vantage
point to resolve issues of this nature. Concededly, no ready made formulae are
always extant to address occasional complex issues, allowing time and experience to
merely evolve and ultimately provide acceptable solutions. In the administration of
election laws, it would be unsound by an excessive zeal to remove from the
Commission on Elections the initiative it takes on such questions which, in fact, by
legal mandate properly belong to it (See Loong v. COMELEC, 305 SCRA 832,
Pangandaman v. COMELEC, 319 SCRA 283).

Nor should it be ignored that the law here involved is a limitation on the right
of suffrage not only on the candidate for office but also, and most importantly, on the
electorate. Respondent Roman has won the election to the post of Governor of
Bataan with a comfortable margin against his closest opponent. Where a candidate
appears to be the clear choice of the people, doubts on the candidate’s eligibility,
even only as a practical matter, must be so resolved as to respect and carry out, not
defeat, the paramount will of the electorate. While the Constitution would attempt to
prevent the monopolization of political power, indeed a wise rule, the precept of
preserving the freedom of choice of the people on who shall rightfully hold the reins
of government for them is no less than fundamental in looking at its overriding
intent.

WHEREFORE, I vote to DISMISS the instant petition on the foregoing theses.

Government of the United States of America v. Hon. Guillermo

Purganan
G.R. No. 148571, September 24, 2002
En Banc [Panganiban]

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 The United States Government requested the Philippine Government for the
extradition of Mark Jimenez pursuant to the provisions of the RP-US Extradition Treaty
to face trial for his alleged criminal offenses in the United States. The Department of
Justice (DOJ) filed a Petition for his extradition with the RTC of Manila in accordance
with the provisions of PD 1069 (The Philippine Extradition Law) and the RP-US
Extradition Treaty.

Issues, Resolution, Principles and Guidelines in Extradition:

A. In extradition proceedings, are prospective extraditees entitled to

notice and hearing before their warrants for their arrest can be issued?
Equally important, are they entitled to the right to bail and provisional
liberty while the extradition proceedings are pending? In general, the
answer to these two novel questions is “No.”

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B. Five Postulates of Extradition

1. Extradition Is a Major Instrument for the Suppression of Crime.

First, extradition treaties are entered into for the purpose of

suppressing crime by facilitating the arrest and custodial transfer
(Bassiouni, International Extradition, 1987 ed., p. 68) of a fugitive from one
state to the other.

With the advent of easier and faster means of international travel, the flight of
affluent criminals from one country to another for the purpose of committing crime
and evading prosecution has become more frequent. Accordingly, governments are
adjusting their methods of dealing with criminals and crimes that transcend
international boundaries.

Today, “a majority of nations in the world community have come to look upon
extradition as the major effective instrument of international co-operation in the
suppression of crime.” (Bassiouni, supra, p. 21) It is the only regular system that has
been devised to return fugitives to the jurisdiction of a court competent to try them
in accordance with municipal and international law (Id., p. 67).

Xxx

Indeed, in this era of globalization, easier and faster international travel, and
an expanding ring of international crimes and criminals, we cannot afford to be an
isolationist state. We need to cooperate with other states in order to improve our
chances of suppressing crime in our country.

2. The Requesting State Will Accord Due Process to the Accused.

Second, an extradition treaty presupposes that both parties thereto have

examined, and that both accept and trust, each other’s legal system and judicial
process (Coquia, “On Implementation of the RP-US Extradition Treaty,” The Lawyers
Review, August 31, 2000, p. 4). More pointedly, our duly authorized representative’s
signature on an extradition treaty signifies our confidence in the capacity and
willingness of the other state to protect the basic rights of the person sought to be
extradited (See Bassiouni, p. 546; citing 221 US 508, 512 [1910]). That signature
signifies our full faith that the accused will be given, upon extradition to the
requesting state, all relevant and basic rights in the criminal proceedings that will
take place therein; otherwise, the treaty would not have been signed, or would have
been directly attacked for its unconstitutionality.

3. The Proceedings Are Sui Generis.

Third, as pointed out in Secretary of Justice v. Lantion (Supra), extradition

proceedings are not criminal in nature. In criminal proceedings, the
constitutional rights of the accused are at fore; in extradition which is sui
generis – in a class by itself – they are not.

Xxx

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 Given the foregoing, it is evident that the extradition court is not called upon
to ascertain the guilt or the innocence of the person sought to be extradited
(Secretary of Justice v. Lantion, supra.). Such determinatio0n during the extradition
proceedings will only result in needless duplication and delay. Extradition is merely a
measure of international judicial assistance through which a person charged with or
convicted of a crime is restored to a jurisdiction with the best claim to try that
person. It is not part of the function of the assisting authorities to enter into
questions that are the prerogative of that jurisdiction (Shearer, Extradition in
International Law, 1971 ed., p. 157). The ultimate purpose of extradition
proceedings in court is only to determine whether the extradition request complies
with the Extradition Treaty, and whether the person sought is extraditable (Id., p.
545).

4. Compliance Shall Be in Good Faith.

Fourth, our executive branch of government voluntarily entered into the

Extradition Treaty, and our legislative branch ratified it. Hence, the Treaty carries
the presumption that its implementation will serve the national interest.

Fulfilling our obligations under the Extradition Treaty promotes comity (In line
with the Philippine policy of cooperation and amity with all nations set forth in Article
II, Section 2, Constitution). On the other hand, failure to fulfill our obligations
thereunder paints at bad image of our country before the world community. Such
failure would discourage other states from entering into treaties with us, particularly
an extradition treaty that hinges on reciprocity.

Verily, we are bound by pacta sunt servanda to comply in good faith with our
obligations under the Treaty (Secretary of Justice v. Lantion, supra.). This principle
requires that we deliver the accused to the requesting country if the conditions
precedent to extradition, as set forth in the Treaty, are satisfied. In other words,
“[t]he demanding government, when it has done all that the treaty and the law
require it to do, is entitled to the delivery of the accused on the issue of the proper
warrant, and the other government is under obligation to make the surrender.”
(Wright v. Henkel, 190 U.S. 40, 62, March 23, 1903) Accordingly, the Philippines
must be ready and in a position to deliver the accused, should it be found proper.

5. There Is an Underlying Risk of Flight.

Fifth, persons to be extradited are presumed to be flight risks. This prima

facie presumption finds reinforcement in the experience of the executive branch:
nothing short of confinement can ensure that the accused will not flee the jurisdiction
of the requested state in order to thwart their extradition to the requesting state.

The present extradition case further validates the premise that persons
sought to be extradited have a propensity to flee. Indeed, extradition hearings would
not even begin, if only the accused were willing to submit to trial in the requesting
country (Persily, “International Extradition and the Right to Bail,” 34 Stan. J. Int’l L.
407 [Summer 1988]). Prior acts of herein respondent – (1) leaving the requesting
state right before the conclusion of his indictment proceedings there; and (2)
remaining in the requested state despite learning that the requesting state is seeking
his return and that the crimes he is charged with are bailable – eloquently speak of
his aversion to the processes in the requesting state, as well as his predisposition to
avoid them at all cost. These circumstances point to an ever-present, underlying
high risk of flight. He has demonstrated that he has the capacity and the will to flee.
Having fled once, what is there to stop him, given sufficient opportunity, from fleeing
a second time?

C. Is Respondent entitled to Notice and Hearing Before the Issuance

of a Warrant of Arrest (in an Extradition proceeding)?

Both parties cite Section 6 of PD 1069 in support of their arguments. X x x

Does this provision sanction RTC Judge Purganan’s act of immediately setting
for hearing the issuance of a warrant of arrest? We rule in the negative.

1. On the Basis of the Extradition Law

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 It is significant to note that Section 6 of PD 1069, our Extradition Law, uses
the word “immediate” to qualify the arrest of the accused. This qualification would
be rendered nugatory by setting for hearing the issuance of the arrest warrant.
Hearing entails sending notices to the opposing parties, receiving facts and
arguments from them, and giving them time to prepare and present such facts and
arguments. Arrest subsequent to a hearing can no longer be considered
“immediate.” The law could not have intended the word as a mere superfluity but,
on the whole, as a means of impairing a sense of urgency and swiftness in the
determination of whether a warrant of arrest should be issued.

By using the phrase “if it appears,” the law further conveys that accuracy is
not as important as speed at such early stage. The trial court is not expected to
make an exhaustive determination to ferret out the true and actual situation,
immediately upon the filing of the petition. From the knowledge and the material
then available to it, the court is expected merely to get a good first impression – a
prima facie finding – sufficient to make a speedy initial determination as regards the
arrest and detention of the accused.

Xxx

It is evident that respondent judge could have already gotten an impression

from these records adequate for him to make an initial determination of whether the
accused was someone who should immediately be arrested in order to “best serve
the ends of justice.” He could have determined whether such facts and
circumstances existed as would lead a reasonably discreet and prudent person to
believe that the extradition request was prima facie meritorious. In point of fact, he
actually concluded from these supporting documents that “probable cause” did
exist. X x x

We stress that the prima facie existence of probable cause for hearing the
petition and, a priori, for issuing an arrest warrant was already evident from the
Petition itself and its supporting documents. Hence, after having already determined
therefrom that a prima facie finding did exist, respondent judge gravely abused his
discretion when he set the matter for hearing upon motion of Jimenez.

Moreover, the law specifies that the court sets a hearing upon receipt of the
answer or upon failure of the accused to answer after receiving the summons. In
connection with the matter of immediate arrest, however, the word “hearing” is
notably absent from the provision. Evidently, had the holding of a hearing at that
stage been intended, the law could have easily so provided. It also bears
emphasizing at this point that extradition proceedings are summary (See Sec. 9, PD
1069) in nature. Hence, the silence of the Law and the Treaty leans to the more
reasonable interpretation that there is no intention to punctuate with a hearing every
little step in the entire proceedings.

Xxx

Verily x x x sending to persons sought to be extradited a notice of the request

for their arrest and setting it for hearing at some future date would give them ample
opportunity to prepare and execute an escape. Neither the Treaty nor the Law could
have intended that consequence, for the very purpose of both would have been
defeated by the escape of the accused from the requested state.

2. On the Basis of the Constitution

Even Section 2 of Article III of our Constitution, which is invoked by Jimenez,

does not require a notice or a hearing before the issuance of a warrant of arrest. X x
x

To determine probable cause for the issuance of arrest warrants, the

Constitution itself requires only the examination – under oath or affirmation – of
complainants and the witnesses they may produce. There is no requirement to notify
and hear the accused before the issuance of warrants of arrest.

In Ho v. People (280 SCRA 365, October 9, 1997) and in all the cases cited
therein, never was a judge required to go to the extent of conducting a hearing just

9
for the purpose of personally determining probable cause for the issuance of a
warrant of arrest. All we required was that the “judge must have sufficient
supporting documents upon which to make his independent judgment, or at the very
least, upon which to verify the findings of the prosecutor as to the existence of
probable cause.”

In Webb v. De Leon (247 SCRA 652, 680, per Puno, J.), the Court categorically
stated that a judge was not supposed to conduct a hearing before issuing a warrant
of arrest x x x.

At most, in cases of clear insufficiency of evidence on record, judges merely

further examine complainants and their witnesses (Ibid; citing Allado v. Diokno, 233
SCRA 192, May 5, 1994). In the present case, validating the act of respondent judge
and instituting the practice of hearing the accused and his witnesses at this early
stage would be discordant with the rationale for the entire system. If the accused
were allowed to be heard and necessarily to present evidence during the prima facie
determination for the issuance of a warrant of arrest, what would stop him from
presenting his entire plethora of defenses at this stage – if he so desires – in his effort
to negate a prima facie finding? Such a procedure could convert the determination
of a prima facie case into a full-blown trial of the entire proceedings and possibly
make trial of the main case superfluous. This scenario is also anathema to the
summary nature of extraditions.

That the case under consideration is an extradition and not a criminal action is
not sufficient to justify the adoption of a set of procedures more protective of the
accused. If a different procedure were called for at all, a more restrictive one – not
the opposite – would be justified in view of respondent’s demonstrated predisposition
to flee.

Xxx

D. Procedure to be Followed Once Extradition Petition is Filed in

Court.

Since this is a matter of first impression, we deem it wise to restate the proper
procedure.

Upon receipt of a petition for extradition and its supporting documents, the
judge must study them and make, as soon as possible, a prima facie finding whether
(a) they are sufficient in form and substance, (b) they show compliance with the
Extradition Treaty and Law, and (c) the person sought is extraditable. At his
discretion, the judge may require the submission of further documentation or may
personally examine the affiants and witnesses of the petitioner. If, in spite of this
study and examination, no prima facie finding (Prima facie finding, not probable
cause, is the more precise terminology because an extradition case is not a criminal
proceeding in which the latter phrase is commonly used.) is possible, the petition
may be dismissed at the discretion of the judge.

On the other hand, if the presence of a prima facie case is determined, then
the magistrate must immediately issue a warrant for the arrest of the extraditee, who
is at the same time summoned to answer the petition and to appear at scheduled
summary hearings. Prior to the issuance of the warrant, the judge must not inform or
notify the potential extraditee of the pendency of the petition, lest the latter be given
the opportunity to escape and frustrate the proceedings. In our opinion, the
foregoing procedure will “best serve the ends of justice” in extradition cases.

E. Is Respondent Entitled to Bail (in Extradition Proceedings)?

Extradition Different from Ordinary Criminal Proceedings

We agree with petitioner. As suggested by the use of the word “conviction,”

the constitutional provision on bail x x x, as well as Section 4 of Rule 114 of the Rules
of Court, applies only when a person has been arrested and detained for
violation of Philippine criminal laws. It does not apply to extradition
proceedings, because extradition courts do not render judgments of
conviction or acquittal.

10
 Moreover, the constitutional right to bail “flows from the presumption
of innocence in favor of every accused who should not be subjected to the
loss of freedom as thereafter he would be entitled to acquittal, unless his
guilt be proved beyond reasonable doubt.” (De la Camara v. Enage, 41 SCRA 1,
6, September 17, 1971, per Fernando, Jr. [later CJ]) It follows that the constitutional
provision on bail will not apply to a case like extradition, where the presumption of
innocence is not an issue.

The provision in the Constitution stating that the right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is suspended” does
not detract from the rule that the constitutional right to bail is available only in
criminal proceedings. It must be noted that the suspension of the privilege of the
writ of habeas corpus finds application “only to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion.” (Sec. 18, Article
VII, Constitution) Hence, the second sentence in the constitutional provision on bail
merely emphasizes the right to bail in criminal proceedings for the aforementioned
offenses. It cannot be taken to mean that the right is available even in extradition
proceedings that are not criminal in nature.

That the offenses for which Jimenez is sought to be extradited are bailable in
the United States is not an argument to grant him one in the present case. To
stress, extradition proceedings are separate and distinct from the trial for
the offenses for which he is charged. He should apply for bail before the
courts trying the criminal cases against him, not before the extradition
court.

No Violation of Due Process

Xxx

Contrary to his contention, his detention prior to the conclusion of the

extradition proceedings does not amount to a violation of his right to due process.
We iterate the familiar doctrine that the essence of due process is the opportunity to
be heard (Garcia v. NLRC, GR No. 110494, November 18, 1996; Paat v. Court of
Appeals, January 10, 1997) but, at the same time, point out that the doctrine does
not always call for a prior opportunity to be heard (See Central Bank of the
Philippines v. Court of Appeals, 220 SCRA 536, March 20, 1993). Where the
circumstances – such as those present in an extradition case – call for it, a
subsequent opportunity to be heard is enough (Ibid. See also Busuego v. Court of
Appeals, 304 SCRA 473, March 11, 1999). In the present case, respondent will be
given full opportunity to be heard subsequently, when the extradition court hears the
Petition for Extradition. Hence, there is no violation of his right to due process and
fundamental fairness.

Contrary to the contention of Jimenez, we find no arbitrariness, either, in the

immediate deprivation of his liberty prior to his being heard. That his arrest and
detention will not be arbitrary is sufficiently ensured by (1) the DOJ’s filing in court
the Petition with its supporting documents after a determination that the extradition
request meets the requirements of the law and the relevant treaty; (2) the
extradition judge’s independent prima facie determination that his arrest will best
serve the ends of justice before the issuance of a warrant for his arrest; and (3) his
opportunity, once he is under the court’s custody, to apply for bail as an exception to
the no-initial-bail rule.

It is also worth noting that before the US government requested the

extradition of respondent, proceedings had already been conducted in that country.
But because he left the jurisdiction of the requesting state before those proceedings
could be completed, it was hindered from continuing with the due processes
prescribed under its laws. His invocation of due process now had thus become
hollow. He already had that opportunity in the requesting state; yet, instead of
taking it, he ran away.

In this light, would it be proper and just for the government to increase the
risk of violating its treaty obligations in order to accord Respondent Jimenez his
personal liberty in the span of time that it takes to resolve the Petition for
Extradition? His supposed immediate deprivation of liberty without due process that
he had previously shunned pales against the government’s interest in fulfilling its

11
Extradition Treaty obligations and in cooperating with the world community in the
suppression of crime. Indeed, “[c]onstitutional liberties do not exist in a vacuum; the
due process rights accorded to individuals must be carefully balanced against
exigent and palpable government interest.” (Coquia, “On the Implementation of the
US-RP Extradition Treaty,” supra; citing Kelso v. US Department of State, 13 F Supp.
291 [DDC 1998])

Too, we cannot allow our country to be a haven for fugitives, cowards and
weaklings who, instead of facing the consequences of their actions, choose to run
and hide. Hence, it would not be good policy to increase the risk of violating our
treaty obligations if, through overprotection or excessively liberal treatment, persons
sought to be extradited are able to evade arrest or escape from our custody. In the
absence of any provision – in the Constitution, the law or the treaty – expressly
guaranteeing the right to bail in extradition proceedings, adopting the practice of not
granting them bail, as a general rule, would be a step towards deterring fugitives
from coming to the Philippines to hide from or evade their prosecutors.

The denial of bail as a matter of course in extradition cases falls into place
with and gives life to Article 14 (It states: “If the person sought consents in writing to
surrender to the Requesting State, the Requested State may surrender the person as
expeditiously as possible without further proceedings.”) of the Treaty, since this
practice would encourage the accused to voluntarily surrender to the requesting
state to cut short their detention here. Likewise, their detention pending the
resolution of extradition proceedings would fall into place with the emphasis of the
Extradition Law on the summary nature of extradition cases and the need for their
speedy disposition.

F. Exceptions to the “No Bail” Rule

The rule x x x is that bail is not a matter of right in extradition cases.

However, the judiciary has the constitutional duty to curb grave abuse of discretion
and tyranny, as well as the power to promulgate rules to protect and enforce
constitutional rights. Furthermore, we believe that the right to due process is broad
enough to include the grant of basic fairness to extraditees. Indeed, the right to due
process extends to the “life, liberty or property” of every person. It is “dynamic and
resilient, adaptable to every situation calling for its application.” (I.A. Cruz,
Constitutional Law, 1998 ed., p. 98)

Accordingly and to best serve the ends of justice, we believe and so hold that,
after a potential extraditee has been arrested or placed under the custody of the law,
bail may be applied for and granted as an exception, only upon a clear and
convincing showing (1) that, once granted bail, the applicant will not be a flight risk
or a danger to the community; and (2) that there exist special, humanitarian and
compelling circumstances including, as a matter of reciprocity, those cited by the
highest court in the requesting state when it grants provisional liberty in extradition
cases therein.

Since this exception has no express or specific statutory basis, and since it is
derived essentially from general principles of justice and fairness, the applicant bears
the burden of proving the above two-tiered requirement with clarity, precision and
emphatic forcefulness. The Court realizes that extradition is basically an executive,
not a judicial, responsibility arising from the presidential power to conduct foreign
relations. In its barest concept, it partakes of the nature of police assistance
amongst states, which is not normally a judicial prerogative. Hence, any intrusion by
the courts into the exercise of this power should be characterized by caution, so that
the vital international and bilateral interests of our country will not be unreasonably
impeded or compromised. In short, while this Court is ever protective of “the
sporting idea of fair play,” it also recognizes the limits of its own prerogatives and the
need to fulfill international obligations.

G. Are There Special Circumstances Compelling Enough for the Court

to Grant Jimenez’s Request for Provisional Release on Bail?

Along this line, Jimenez contends that there are special circumstances that are
compelling enough for the Court to grant his request for provisional release on bail.
We have carefully examined these circumstances and shall now discuss them.

12
 1. Alleged Disenfranchisement

While his extradition was pending, Respondent Jimenez was elected as a

member of the House of Representatives. On that basis, he claims that his detention
will disenfranchise his Manila district of 600,000 residents. We are not persuaded. In
People v. Jalosjos (324 SCRA 689, February 3, 2000, per Ynares-Santiago, J.), the
Court has already debunked the disenfranchisement argument x x x.

It must be noted that even before private respondent ran for and won a
congressional seat in Manila, it was already of public knowledge that the United
States was requesting his extradition. Hence, his constituents were or should have
been prepared for the consequences of the extradition case against their
representative, including his detention pending the final resolution of the case.
Premises considered and in line with Jalosjos, we are constrained to rule against his
claim that his election to public office is by itself a compelling reason to grant him
bail.

2. Anticipated Delay

Respondent Jimenez further contends that because the extradition

proceedings are lengthy, it would be unfair to confine him during the pendency of the
case. Again we are not convinced. We must emphasize that extradition cases are
summary in nature. They are resorted to merely to determine whether the
extradition petition and its annexes conform to the Extradition Treaty, not to
determine his guilt or innocence. Neither is it, as a rule, intended to address issues
relevant to the constitutional rights available to the accused in a criminal action.

We are not overruling the possibility that petitioner may, in bad faith, unduly
delay the proceedings. This is quite another matter that is not at issue here. Thus,
any further discussion of this point would be merely anticipatory and academic.

However, if the delay is due to maneuverings of respondent, with all the more
reason would the grant of bail not be justified. Giving premium to delay by
considering it as a special circumstance for the grant of bail would be tantamount to
giving him the power to grant bail to himself. It would also encourage him to stretch
out and unreasonably delay the extradition proceedings even more. This we cannot
allow.

3. Not a Flight Risk?

Jimenez further claims that he is not a flight risk. To support this claim, he
stresses that he learned of the extradition request in June 1999; yet, he has not fled
the country. True, he has not actually fled during the preliminary stages of the
request for his extradition. Yet, this fact cannot be taken to mean that he will not
flee as the process moves forward to its conclusion, as he hears the footsteps of the
requesting government inching closer and closer. That he has not yet fled from the
Philippines cannot be taken to mean that he will stand his ground and still be within
reach of our government if and when it matters; that is, upon the resolution of the
Petition for Extradition.

In any event, it is settled that bail may be applied for and granted by the trial
court at anytime after the applicant has been taken into custody and prior to
judgment, even after bail has been previously denied. In the present case, the
extradition court may continue hearing evidence on the application for bail, which
may be granted in accordance with the guidelines in this Decision.

H. Ten Points to Consider in Extradition Proceedings

As we draw to a close, it is now time to summarize and stress these ten

points:

1. The ultimate purpose of extradition proceedings is to determine whether

the request expressed in the petition, supported by its annexes and the evidence
that may be adduced during the hearing of the petition, complies with the Extradition
Treaty and Law; and whether the person sought is extraditable. The proceedings are
intended merely to assist the requesting state in bringing the accused – or the

13
fugitive who has illegally escaped – back to its territory, so that the criminal process
may proceed therein.

2. By entering into an extradition treaty, the Philippines is deemed to have

reposed its trust in the reliability or soundness of the legal and judicial system of its
treaty partner; as well as in the ability and the willingness of the latter to grant basic
rights to the accused in the pending criminal case therein.

3. By nature then, extradition proceedings are not equivalent to a criminal

case in which guilt or innocence is determined. Consequently, an extradition case is
not one in which the constitutional rights of the accused are necessarily available. It
is more akin, if at all, to a court’s request to police authorities for the arrest of the
accused who is at large or has escaped detention or jumped bail. Having once
escaped the jurisdiction of the requesting state, the reasonable prima facie
presumption is that the person would escape again if given the opportunity.

4. Immediately upon receipt of the petition for extradition and its supporting
documents, the judge shall make a prima facie finding whether the petition is
sufficient in form and substance, whether it complies with the Extradition Treaty and
Law, and whether the person sought is extraditable. The magistrate has discretion to
require the petitioner to submit further documentation, or to personally examine the
affiants or witnesses. If convinced that a prima facie case exists, the judge
immediately issues a warrant for the arrest of the potential extraditee and summons
him or her to answer and to appear at scheduled hearings on the petition.

5. After being taken into custody, potential extraditees may apply for bail.
Since the applicants have a history of absconding, they have the burden of showing
that (a) there is no flight risk and no danger to the community; and (b) there exist
special, humanitarian or compelling circumstances. The grounds used by the highest
court in the requesting state for the grant of bail therein may be considered, under
the principle of reciprocity as a special circumstance. In extradition cases, bail is not
a matter of right; it is subject to judicial discretion in the context of the peculiar facts
of each case.

6. Potential extraditees are entitled to the rights to due process and to

fundamental fairness. Due process does not always call for a prior opportunity to be
heard. A subsequent opportunity is sufficient due to the flight risk involved. Indeed,
available during the hearings on the petition and the answer is the full chance to be
heard and to enjoy fundamental fairness that is compatible with the summary nature
of extradition.

7. This Court will always remain a protector of human rights, a bastion of

liberty, a bulwark of democracy and the conscience of society. But it is also well
aware of the limitations of its authority and of the need for respect for the
prerogatives of the other co-equal and co-independent organs of government.

8. We realize that extradition is essentially an executive, not a judicial,

responsibility arising out of the presidential power to conduct foreign relations and to
implement treaties. Thus, the Executive Department of government has broad
discretion in its duty and power of implementation.

9. On the other hand, courts merely perform oversight functions and exercise
review authority to prevent or excise grave abuse and tyranny. They should not
allow contortions, delays and “over-due process” every little step of the way, lest
these summary extradition proceedings become not only inutile but also sources of
international embarrassment due to our inability to comply in good faith with a treaty
partner’s simple request to return a fugitive. Worse, our country should not be
converted into a dubious haven where fugitives and escapees can unreasonably
delay, mummify, mock, frustrate, checkmate and defeat the quest for bilateral justice
and international cooperation.

10. At bottom, extradition proceedings should be conducted with all

deliberate speed to determine compliance with the Extradition Treaty and Law; and,
while safeguarding basic individual rights, to avoid the legalistic contortions, delays
and technicalities that may negate that purpose.

14
Resolution of the Motion for Reconsideration
G.R. No. 148571, December 17, 2002
En Banc

First, private respondent insists that the Extradition Court acted properly in
granting bail to him. We have already exhaustively discussed this issue in our
Decision and in the Concurring Opinion of Mr. Justice Antonio T. Carpio. Thus, we will
not belabor our ruling on this point. Suffice it to say that petitioner’s repeated
invocation of the Extradition Court’s grant of bail has not convinced us that he
deserves bail under the exception laid down in our Decision x x x.

There has been no clear and convincing showing as to the absence of flight
risk and the non-endangerment of the community, or as to the existence of special,
humanitarian and compelling circumstances justifying grant of bail.

Second, private respondent claims that our Decision did not make an express
finding of grave abuse of discretion on the part of the lower court. This is incorrect.
Xxx

Further, contrary to Jimenez’s claims, the Extradition Court did not negate the
flight risk posed by him. It did not make a finding on flight risk as it considered the
issue irrelevant, having already determined bail to be a matter of right. X x x

And in any event, in his Memorandum, private respondent submitted factual

issues – i.e., existence of special circumstances and absence of flight risk – for the
consideration of this Court. He even reiterated some of those factual submissions in
his Motion for Reconsideration. He is therefore deemed estopped to claim that this
Court cannot, on certiorari, address factual issues and review and reverse the factual
findings of the Extradition Court.

Third, private respondent’s arguments (1) that the Extradition Court exercised
due discretion in its grant of bail and (2) that our “ruling that bail is not a matter of
right in extradition cases is contrary to prevailing law and jurisprudence” are neither
novel nor deserving of further rebuttal. Again, they have been extensively taken up
in our Decision as well as in Concurring, Separate and Dissenting Opinions.

Fourth, private respondent argues that allegedly our Decision violated his due
process rights. Again, we have discussed this matter in our Decision saying that, in
its simplest concept, due process is merely the opportunity to be heard – which
opportunity need not always be a prior one. In point of fact, private respondent has
been given more than enough opportunity to be heard in this Court as well as in the
Extradition Court. Even his Motion for Reconsideration has been given all the
chances to persuade by way of allowing “additional arguments” in his Motion x x x
and Reply. These latter pleadings are normally not allowed, but precisely because
this Court wanted to give him more than enough opportunity to be heard and to
argue, we have bent backwards and admitted these additional pleadings.

Finally, private respondent contends that as a member of Congress, he is

immune from arrest “arising from offenses punishable by not more than six (6) years
imprisonment,” saying that he cannot be prevented from performing his legislative
duties because his constituents would be disenfranchised. He perorates that a
member of Congress may be suspended or removed from office only by two-thirds
vote of the House of Representatives. Citing People v. Jalosjos, our Decision has
already debunked the disenfranchisement argument. Furthermore, our Decision
does not in any manner suspend or remove him from office. Neither his arrest or
detention arising from the extradition proceeding will constitute his suspension or
removal form office. That is clear enough.

While equal protection and reasonable classifications are not directly in issue
in this case, we nevertheless stress, paraphrasing Jalosjos, that respondent’s election
to the position of congressman, with the concomitant duty to discharge legislative
functions, does not constitute a substantial differentiation which warrants placing him
in a classification or category apart from all other persons confined and deprived of
their liberty pending resolution of their extradition cases. We reiterate that lawful
arrest and temporary confinement of a potential extraditee are germane to the
purposes of the law and apply to all those belonging to the same class.

15
 As we have stated, the procedure adopted by the Extradition Court of first
notifying and hearing a prospective extraditee before the actual issuance of the
warrant for his arrest, is tantamount to giving notice to flee and avoid extradition.
Whether a candidate for extradition does in fact go into hiding or not is beside the
point. In the final analysis, the method adopted by the lower court was completely at
loggerheads with the purpose, object and rationale of the law, and overlooked the
evils to be remedied.

As already suggested in our Decision (p. 32), private respondent can avoid
arrest and detention which are the consequences of the extradition proceeding
simply by applying for bail before the courts trying the criminal cases against him in
the USA. He himself has repeatedly told us that the indictments against him in the
United States are bailable. Furthermore, he is capable, financially and otherwise, of
producing the necessary bail in the US. Why then has he not done so?

Otherwise stated, Respondent Jimenez has the actual power to lift his arrest
and detention arising from his extradition by simply and voluntarily going to and
filing bail in the USA.

AT BOTTOM, private respondent’s Motion for Reconsideration presents no new

or substantial arguments which have not been presented in his prior pleadings and
which have not been taken up in our Decision. His present allegations and
asseverations are mere rehashes of arguments previously presented to us or are
mere restatements of the Separate and Dissenting Opinions which were already
adequately discussed in our Decision. In short, private respondent has not given any
compelling reason to warrant a reversal or modification of our earlier rulings.

Separate Opinion, Vitug, J.

Extradition is an exceptional measure running against the tradition of asylum.

International Extradition is a process under which a sovereign state surrenders to
another sovereign state a person accused in a case or a fugitive offender in the latter
state [1]. The practice has its origins as early as the ancient Egyptian, Chinese,
Chaldean and Assyro-Babylonian civilizations [2]. The surrender of a person who has
been granted the privilege of presence or refuge in the requested state is deemed to
be an exceptional measure running against the tradition of asylum and hospitality of
the requesting state, and it has given rise to the speculation that the term
“extradition” evolved from what used to be then known as “extra-tradition.” [3] The
widely accepted explanation for the term still appears to be the Latin original
extradere on pacts and treaties. The first recorded extradition treaty in the world
dates circa 1280 BC, where Rameses II, Pharaoh of Egypt, and King Hattusili III of the
Hittites signed a peace treaty expressly providing for the return of persons sought by
each sovereign taking refuge in the territory of the other. Since then, however, only
the practice of Greece and Rome on extradition arrangements evidently found their
way into European texts of international law [4]. The participants of the process
remained the same over time – the two states and the individual sought to be
extradited. But while, historically, extradition was for the purpose of obtaining the
surrender of political offenders, the trend, starting in the 19th century, has been to
refuse the extradition of a person sought for political crimes. This shift can be
explained partly to the emergence of humanitarian international law which has given
impetus to a new legal status of one of the participants, i.e., the individual, thus
placing some limitations on the power of the respective sovereigns that did not
historically exist [5].

Extradition, nevertheless, does not find basis in Customary International Law.

International customary law is, as its name suggests, created by custom. It is

one of the two (the other being treaties) primary law-creating processes of
international law. Its evolution, according to Schwarzenberger [6], can be traced to
the early development of a global society when international law consisted primarily
of express agreements, which the parties freely accepted as legally binding between
or among themselves. Little was taken for granted, and everything that was
considered if only remotely relevant had been incorporated into the text of these
treaties. Some of the rules were found to be so convenient and generally acceptable
that their inclusion in the succeeding agreements gradually became non-essential.
Time hardened them into customary international law. International customary law
has two constitutive elements: (1) a general practice of sovereign states and (2) the

16
acceptance of the states of this general practice as law [7]. In the Lotus (1927) and
Asylum (1950) cases, the World Court ruled that to prove the existence of a rule in
international customary law, it is necessary to establish not only that States act a
certain way but that they do so because they recognize a legal obligation to this
effect, i.e., with or without a treaty [8].

Despite its ancient roots, extradition, as it is presently exercised by states,

adopts the view represented by Puffendorf who argues that the duty to extradite is
only an imperfect obligation which requires an explicit agreement in order to become
fully binding under international law and secure reciprocal rights and duties of the
contracting states [9]. The exception would be with respect to international crimes,
such as terrorism and genocide, in which extradition is seen as being a definite legal
duty. As D.W. Grieg so bluntly puts it, there exists no duty to extradite under
customary international law [10]. Prevailing practice among states indeed supports
the conclusion that the duty to extradite can be demanded only by virtue of a treaty,
whether bilateral or multilateral [11]; conversely, in its absence, there is no legal
right to demand and no corresponding obligation to extradite. Once, however, of
course, an extradition treaty is concluded, respect for and compliance with the treaty
obligation is, under the international principle of pacta sunt servanda, expected from
the states that enter into the agreement.

Neither can extradition be considered a generally accepted principle of

international law.

Article 38(1)(c) of the Statute of the International Court of Justice refers to the
“general principles of law” recognized by civilized nations as being a source of law
which comes after customary law, international conventions and treaties, all of which
are based on the consent of nations [12]. Article 38(1)(c) is identified as being a
“secondary source” of international law and therefore, not ranked at par with treaties
and customary international law [13]. The phrase is innately vague, and its exact
meaning still eludes any general consensus. The widely preferred opinion, however,
appears to be that of Oppenheim which views “general principles of law” as being
inclusive of principles of private or municipal law when these are applicable to
international relations [14]. Where, in certain cases, there is no applicable treaty nor
a generality of state practice giving rise to customary law, the international court is
expected to rely upon certain legal notions of justice and equity in order to deduce a
new rule for application to a novel situation [15]. This reliance or “borrowing” by the
international tribunal from general principles of municipal jurisprudence is explained
in many ways by the fact that municipal or private law has s higher level of
development compared to international law. Brownlie submits that the term
“generally-accepted principles of international law” could also refer to rules of
customary law, to general principles of law, or to logical propositions resulting from
judicial reasoning on the basis of existing international law and municipal law
analogies [16].

In order to qualify as a product of the subsidiary law-creating process, a

principle of law must fulfill three requirements: (1) it must be a general principle of
law as distinct from a legal rule of more limited functional scope, (2) it must be
recognized by civilized nations, and (3) it must be shared by a fair number of states
in the community of nations [17]. Examples of these principles, most of which are
drawn from Roman law, encompasses rules on prescription, estoppel, res judicata
[18], consent and pacta sunt servanda. It can also include generally accepted
principles enshrined under the Universal Declaration of Human Rights, such as the
basic human right to life and liberty without distinction as to race, color, sex, race
language or religion, political or other opinion, nationality, social origin, property,
birth or other status [19]. At the moment, extradition, at most a process resorted to
by states under the policy of cooperation and comity with each other, does not
qualify as a generally accepted principle of international law nor as being thereby
incorporated and deemed part of the law of the land under Section 2, Article II, of the
1987 Philippine Constitution [20].

Clarifying the term “generally-accepted principles of international law” during

the deliberations of the 1987 Constitutional Commission, Commissioner Rodolfo
Azcuna points out that “[w]hen we talk of generally-accepted principles of
international as part of the law of the land, we mean that it is part of the statutory
part of laws, not of the Constitution [21].

17
 The remark is shared by Professor Merlin M. Magallona who expresses that the
phrase “as part of the law of the land” in the incorporation clause refers to the levels
of legal rules below the Constitution such as legislative acts and judicial decisions.
Thus, he contends, it is incorrect to so interpret this phrase as including the
Constitution itself because it would mean that the “generally-accepted principles of
international law” falls in parity with the Constitution [22]. A treaty being the primary
source of the obligation to extradite has given occasion to a lack of cohesive and
uniform standards on extradition.

Not finding basis in customary law, and failing to qualify as a generally-

accepted principle of international law, the present state of international law on the
return of fugitives for trial is hypothesized by Brownlie: “With the exception of
alleged crimes under international law, surrender of an alleged criminal cannot be
demanded of right in the absence of treaty.” [23] The result has been a failure of
consistency in extradition practice among states. Indeed, the reality is that there is
to date no uniform standard applicable to all states. D.W. Gregg [24] attributes this
lack of “universal” and cohesive standards in the extradition process to the adoption
of a variety of procedures which can be as diverse as the contracting states would
want them to be. In formulating their extradition treaties, contracting states insert
particular provisions and stipulations to address specific particularities in their
relationships. Thus, extradition under American law is different from that under
English law; to illustrate, the English Extradition Act of 1870 requires that the offense,
for which a fugitive is to be extradited, be also considered a crime under English law.
No such requirement, upon the other hand, exists under the US Extradition Act, which
limits “extraditable crimes” to those enumerated under the treaty, regardless of
whether the same are considered crimes under its laws. While both England and the
United States are amenable to extraditing their own nationals, France and Belgium
absolutely refuse to do so. This refusal to surrender one’s own nationals is likewise
adopted by most states in Continental Europe which, under their own municipal laws,
are obliged to unconditionally reject any request for the surrender of their own
nationals, preferring to try them under their own laws even though the offense is
committed abroad. While Common Law countries require a prima facie showing of
guilt before they surrender a fugitive, almost all other legal systems require only that
the offense be committed in the jurisdiction of the demanding state [25]. In the
United States, extradition is demanded with an opportunity for a judicial hearing,
while in other countries, extradition is exclusively an administrative function [26]. It
may also happen that a single estate may have as many extradition processes as the
number of extradition treaties it has with other countries. Thus, while the general
extradition process with England is governed by the Extradition Act of 1870, any
extradition it may undertake with member states of the British Commonwealth is
governed by the Fugitive Act of 1967 [27]. Fenwick, another recognized authority in
international law, concludes --- “Since extradition is effected as the result of the
provisions of treaties entered into by nations two by two, it is impossible to formulate
any general rule of law upon the subject.” [28]

The elevated status of a treaty over that of an ordinary statute is taking

ground.

The International Tribunal, has consistently held that, in consonance with the
Vienna Convention, a state cannot plead provisions of its own laws or deficiencies in
that law in an answer to a claim against it for an alleged breach of its obligations
under international law [29]. From the standpoint of International Law and of the
International Court, municipal laws are merely expressions of the will and constitute
the activities of the states within its boundaries in the same manner as do ordinary
legal decisions or administrative measures [30]. But, viewed domestically, reactions
have been varied. Differing internal laws among the members of the international
community has resulted in the divergence of responses when treaty law clashes with
ordinary municipal law.

In the United Kingdom, despite pronouncements that the law of nations is

“adopted in its full extent by common law and is held to be part of the law of the
land,” cases decided since 1876 point to the displacement of the doctrine of
incorporation by that of transformation, viz.: customary law is part of the law of
England only insofar as the rules have been clearly adopted and made part of
England by legislation, judicial decision, or established usage [31]. In the United
States, there has not been much hesitation in recognizing the priority of legislative
enactment when passed not only in contravention of established custom but even of

18
the provisions of a specific treaty [32]. Meeting objection to the validity of a tax on
immigrants as a violation of the “numerous treaties of the US government with
friendly nations,” the United States Supreme Court, in the Head Money Cases (112
US 580 [1884]), observed: A treaty, then, is a law of the land as an act of Congress
whenever its provisions prescribe a rule by which the rights of the private citizen or
subject may be determined, and when such rights are of a nature to be enforced in a
court of justice, courts resort to treaties for a rule of decision of the case as it would
to a statute. Nevertheless, added the Court, “so far as a treaty made by the US with
any foreign nation can become subject of judicial cognizance in the courts of this
country, it is subject to such acts as Congress may pass for its enforcement,
modification or repeal.” In France, a treaty has supremacy over an inconsistent prior
statute as long as the other state party to the agreements accords a similar
superiority in its domestic forum. French precedent also exists for treaty supremacy
over a subsequent inconsistent statute [33]. The European Court once ruled that the
European Economic Community Treaty has precedence over national law, even if the
national law were later in time [34].

This ambivalent attitude towards the relationship between international and

municipal law exemplifies the still on-going debate between two schools of thought –
“monism” and “dualism”. Monists believe that international law and domestic law
are part of a single legal order; international law is automatically incorporated into
each nation’s legal system and that international is supreme over domestic law [35].
Monism requires that domestic courts “give effect to international law,
notwithstanding inconsistent domestic law, even constitutional law of a constitutional
character.” [36] Dualists, however, contend that international law and domestic law
are distinct, each nation ascertaining for itself when and to what extent international
law is incorporated into its legal system, and that the status of international law in
the domestic system is determined by domestic law [37]. Under this view, “when
municipal law provides that international law applies in whole or in part within our
jurisdiction, it is but an exercise of the authority of municipal law, an adoption or
transformation of the rules of international law.” [38]

In the Philippines, while specific rules on how to resolve conflicts between a

treaty law and an act of Congress, whether made prior or subsequent to its
execution, have yet to be succinctly defined, the established pattern, however, would
show a leaning towards the dualist model. The Constitution exemplified by its
incorporation clause (Article II, Section 2), as well as statutes such as those founding
some provisions of the Civil Code and of the Revised Penal Code [39], would exhibit a
remarkable textual commitment towards “internalizing” international law. The
Supreme Court itself has recognized that “the principles of international law” are
deemed part of the law of the land as a condition and as a consequence of our
admission in the society of nations [40].

The principle being that treaties create rights and duties only for those who
are parties thereto – pacta tertiis nec nocre nec prodesse possunt – it is considered
necessary to transform a treaty into a national law in order to make it binding upon
affected state organs, line the courts, and private individuals who could, otherwise,
be seen as non-parties [41]. The US-RP Extradition Treaty in particular, undoubtedly
affects not only state organs but also private individuals as well. It is said that, in
treaties of this nature, it should behoove the state to undertake or adopt the
necessary steps to make the treaty binding upon said subjects either by
incorporation or transformation [42]. Article II, Section 2 of the 1987 Constitution
provides for an adherence to general principles of international law as part of the law
of the land. One of these principles is the basic rule of pacta sunt servanda or the
performance in good faith of a state’s treaty obligations. Pacta sunt servanda is the
foundation of all conventional international law, for without it, the superstructure of
treaties, both bilateral and multilateral, which comprise a great part of international
law, could well be inconsequential. Existing legislation contrary to the provisions of
the treaty becomes invalid, but legislation is necessary to put the treaty into effect
[43]. The constitutional requirement that the treaty be concurred in by no less than
two-thirds of all members of the Senate (Section 21, Article VII) is, for legal intent and
purposes, an equivalent to the required transformation of treaty into municipal law.

In preserving harmony between treaty law and municipal law, it is submitted –

1) That treaty law has the effect of amending, or even repealing an inconsistent
municipal statute, a later enactment being controlling, 2) but that an inconsistent
municipal statute subsequently passed cannot modify treaty law, without the

19
concurrence of the other state party thereto, following the generally accepted
principle of pacta sunt servanda. As so observed by Fenwick: “Legislation passed, or
administrative action taken subsequent to the adoption of the treaty and in violation
of its provisions is invalid, but this should be declared so by the appropriate agency
of national government.” In like manner, in doubtful cases where the national
legislation or administrative ruling is open to different interpretations, the courts of
the state will give the benefit of the doubt to the provisions of the treaty.

A treaty, nevertheless, cannot override the Constitution; in case of conflict,

the Constitution must prevail.

When a controversy calls for a determination of the validity of a treaty in the

light of the Constitution, there is no question but that the Constitution is given
primary consideration [44]. The deference to the interpretation of the national law
by competent organs of a state, was exhibited by the Permanent Court of
International Justice in the case of Serbian Loans [45] where it held that the
construction given by the Highest Court of France on French law should be followed.
When a state, through its government, concludes a treaty with another state, the
government of the latter has no reason and is not entitled to question the
constitutionality of the act of the former [46]. But this rule does not prevent the
government of a state, after having concluded a treaty with another state, from
declaring the treaty null and void because it is made in violation of its own
constitution [47].

In the United States, treaties are regarded as part of the law of the land but
this general rule is qualified by the stipulation that a treaty must not be violative of
the Constitution [48]. The United States government, in carrying out its treaty
obligations, must conform its conduct to the requirements of the Constitution which
override the provisions of a treaty that may be contrary to any specific constitutional
right [49]. In Reyes v. Bagatsing [50], this Court has had the occasion to resolve the
see-sawing interests of preserving fundamental freedoms such as free speech and
assembly, as espoused by the members of the Anti-Bases Coalition seeking permit to
hold a rally in front of the American Embassy and the corresponding international
obligation of the state to protect the integrity and safety of diplomatic missions and
premises under the Vienna Convention. While holding that the prohibition against
holding rallies within a 500 meter radius from any foreign mission is valid, the
ponencia sees a possible scenario – that in case a treaty or a general principle of
international law is found to be in irreconcilable conflict with Constitutional
mandates, the Court would uphold the latter every time, even to the possible
detriment of its obligations under international law. This preeminence of the
Constitution over any treaty is not hard to explain. The Constitution is the act of the
people from whom sovereignty emanates. It reflects the popular will. A treaty, on
the other hand, is merely negotiated by the treaty-making authority. Surely a few
good men, themselves mere delegates of the sovereign people, cannot be permitted
to thwart the intent of the Constitution. An agent could never go beyond the
mandate of the agency under whose authority he acts.

The 1987 Constitution has its own standards for the grant of bail.

No country is under any legal obligation to adopt, or blindly be in conformity

with, procedures from other jurisdictions. The proposed solution of developing a
“special circumstances standard” in determining whether bail should be granted or
not, following what could be considered to be mere pro hac vice pronouncements of
some foreign courts, might not be apropos. Indeed, setting up the so-called “special
circumstances standard” would be to ignore our own constitutional mandate on bail.

Section 13, Article III of the 1987 Constitution clearly sets the parameters for
the judicial exercise of the grant of bail x x x. Starting with the declaration that the
right to bail is available to all persons, the Constitution proceeds to define its
exceptions and qualifications --- 1) when a criminal offense is a capital one and the
evidence of guilt is strong, and 2) when granted the bail shall not be excessive. The
circumstance of “high risk of flight” upon which the main decision anchors its refusal
to grant bail is conspicuously absent from the recital. The English Amendment of the
US Federal Constitution, unlike the Philippine Constitution, does not categorically
provide for bail as a matter of right. Thus, wrestling with the compatibility of the
grant of bail in extradition proceedings with basic constitutional guarantees, which
US judges have been faced with, should not be our dilemma.

20
 Extradition proceedings are part of the criminal process.

Verily, an extradition proceeding before the extradition court forms a part of

the criminal process. It is predicated on a criminal indictment of an extraditee. Like
any criminal proceeding, it ultimately ends in either conviction or acquittal for the
potential extraditee. Except for the reality that it involves two sovereign states, at
least, extradition proceedings before the extradition court can be likened to the
preliminary investigation conduced before an investigating fiscal. Like the
investigating fiscal, the judge acting in an extradition proceeding does not rule on the
issue of guilt or innocence of the potential extraditee, his main concern being the
determination of whether a prima facie cases exists against the potential extraditee
[51]. Stated otherwise, both proceedings are an inquiry into whether a person should
stand trial [52]. The right to a preliminary investigation is a component part of due
process in the criminal justice system. The initial findings of the investigating fiscal,
which may result in a dismissal of the case, could spare the respondent from hasty
malicious prosecution, as well as the resultant prolonged anxiety, aggravation and
humiliation, that a protracted trial brings. In the same vein, the extradition process
can result in an extended restraint of liberty following arrest that can even be more
severe than the accompanying detention within a single state [53]. Extradition
involves, at minimum, administrative proceedings in both the asylum state and the
demanding state and a forced transportation in between [54]. Thus, the rules
governing the extradition process should not be viewed as existing in a vacuum,
totally divergent and isolated from the entire criminal process of which it, in fact,
forms part. Indubitably, bail is available in this country even in the preliminary
investigation stage. The eligibility for bail exists once the person is placed under
legal custody regardless of whether a complaint or information has been filed or yet
to be filed in court against him [55].

In sum, I yield to the following submissions:

a) The obligation to extradite does not find basis in customary international

law, nor is it a generally accepted principle of international law, the commitment to
extradite being dependent, by and large, on an extradition treaty between two
sovereign states.

b) There is an absence of a “universal” or “uniform” extradition practice

applicable to all states. This lack of a “standard” extradition procedure should mean
that the Philippines is not obligated to follow extradition practices from other
jurisdictions, particularly when its own Constitution itself has provided for such
standards.

c) A treaty, entered into by the delegated authority, although occupying an

elevated status in the hierarchy of laws predicated on the principle of pacta sunt
servanda, cannot override the Constitution, the latter being the ultimate expression
of the will of the People, from whom all sovereignty emanates. In case of conflict, the
Constitution must prevail.

WHEREFORE, I vote to grant the motion for reconsideration.

Republic of the Philippines v. Manila Electric Company

G.R. No. 141314, November 15, 2002
3rd Div. [Puno]

In third world countries like the Philippines, equal justice will have a synthetic
ring unless the economic rights of the people, especially the poor, are protected with
the same resoluteness as their right to liberty. The cases at bar are of utmost
significance for they concern the right of our people to electricity and to be
reasonably charged for their consumption. In configuring the contours of this
economic right to a basic necessity of life, the Court shall define the limits of the
power of respondent MERALCO, a giant public utility and a monopoly, to charge our
people for their electric consumption. The question is: should public interest prevail
over private profits?

Xxx

21
 We grant the petition.

The regulation of rates to be charged by public utilities is founded upon the

police power of the State and statutes prescribing rules for the control and
regulations of public utilities are a valid exercise thereof. When private property
is used for a public purpose and is affected with public interest, it ceases to
be juris privati only and becomes subject to regulation. The regulation is to
promote the common good. Submission to regulation may be withdrawn by the
owner by discontinuing use; but as long as the use of the property is continued, the
same is subject to public regulation (Munn v. People of the State of Illinois, 94 U.S.
113, 126 [1877]).

In regulating rates charged by public utilities, the State protects the public
against arbitrary and excessive rates while maintaining the efficiency and quality of
services rendered. However, the power to regulate rates does not give the State the
right to prescribe rates which are so low as to deprive the public utility of a
reasonable return on investment. Thus, the rates prescribed by the State must
be one that yields a fair return on the public utility upon the value of the
property performing the service and one that is reasonable to the public for
the service rendered (IV A.F. Agbayani, Commentaries and Jurisprudence on the
Commercial Laws of the Philippines 500 [1993]). The fixing of just and reasonable
rates involves a balancing of the investor and the consumer interests (Federal
Power Commission v. Hope Natural Gas Co., 320 U.S. 591).

In his famous dissenting opinion in the 1923 case of Southwestern Bell Tel.
Co. v. Public Service Commission (262 U.S. 290-291, 43 S. Ct. 544, 547 [1923]), Mr.
Justice Brandeis wrote:

“The thing devoted by the investor to the public use is not specific
property, tangible and intangible, but capital embarked in an enterprise.
Upon the capital so invested, the Federal Constitution guarantees to the utility
the opportunity to earn a fair return x x x. The Constitution does not
guarantee to the utility the opportunity to earn a return on the value of all
items of property used by the utility, or of any of them.

Xxx

The investor agrees, by embarking capital in a utility, that its charges

to the public shall be reasonable. His company is the substitute for
the State in the performance of the public service, thus becoming a
public servant. The compensation which the Constitution guarantees an
opportunity to earn is the reasonable cost of conducting the business.”

While the power to fix rates is a legislative function, whether exercised by the
legislature itself or delegated through an administrative agency, a determination of
whether the rates so fixed are reasonable and just is a purely judicial question and is
subject to the review of the courts (IV A.F. Agbayani, Commentaries and
Jurisprudence on the Commercial Laws of the Philippines 500 [1993], citing Ynchausti
SS Co. v. Public Utility Commission, 42 Phil. 624 and Manila Electric Co. v. De Vera, et
al., 66 Phil. 161).

The ERB was created under Executive Order No. 172 to regulate, among
others, the distribution of energy resources and to fix rates to be charged by public
utilities involved in the distribution of electricity. In the fixing of rates, the only
standard which the legislature is required to prescribe for the guidance of the
administrative authority is that the rate be reasonable and just. It has been held
that even in the absence of an express requirement as to reasonableness, this
standard may be implied (Philippine Communications Satellite Corporation v. Alcuaz,
et al., 180 SCRA 218, 226 [1989]). What is a just and reasonable rate is a
question of fact calling for the exercise of discretion, good sense, and a
fair, enlightened and independent judgment. The requirement of
reasonableness comprehends such rates which must not be so low as to be
confiscatory, or too high as to be oppressive. In determining whether a rate is
confiscatory, it is essential also to consider the given situation, requirements and
opportunities of the utility (Id. at 232).

22
 Settled jurisprudence holds that factual findings of administrative bodies on
technical matters within their area of competence should be accorded not only
respect but even finality if they are supported by substantial evidence even if not
overwhelming or preponderant (Casa Filipina Realty Corporation v. Office of the
President, 241 SCRA 165 [1995]). In one case (Batangas Transportation Company, et
al. v. Laguna Transportation Company, 104 Phil. 992 [1958]), we cautioned that
courts should “refrain from substituting their discretion on the weight of the evidence
for the discretion of the Public Service Commission on questions of fact and will only
reverse or modify such orders of the Public Service Commission when it really
appears that the evidence is insufficient to support their conclusions.” (Id., citing
Manila Yellow Taxicab Co. and Acro Taxicab Co. v. Danon, 58 Phil. 75 [1993])

In the cases at bar, findings and conclusions of the ERB on the rate that can
be charged by MERALCO to the public should be respected (Province of Zamboanga
del Norte v. Court of Appeals, 342 SCRA 549, 560 [2000]). The function of the court,
in exercising its power of judicial review, is to determine whether under the facts and
circumstances, the final order entered by the administrative agency is unlawful or
unreasonable (City of Cincinnati v. Public Utilities Commission, 90 N.E. 2d 681
[1950]). Thus, to the extent that the administrative agency has not been arbitrary or
capricious in the exercise of its power, the time-honored principle is that courts
should not interfere. The principle of separation of powers dictates that courts
should hesitate to review the acts of administrative officers except in clear cases of
grave abuse of discretion (A. Sibal, Administrative Law 145 [1999]).

In determining the just and reasonable rates to be charged by a

public utility, three major factors are considered by the regulating agency:
a) rate of return; b) rate base and c) the return itself or the computed
revenue to be earned by the public utility based on the rate of return and
rate base (P. Garfield and W. Lovejoy, Public Utility, p. 116). The rate of return is a
judgment percentage which, if multiplied with the rate base, provides a fair return on
the public utility for the use of its property or service to the public (Nichols and
Welch, Ruling Principles of Utility Regulations, Rate of Return, Supp. A, 1 [1964]).
The rate of return of a public utility is not prescribed by statute but by administrative
and judicial pronouncements. This Court has consistently adopted a 12% rate of
return for public utilities (Manila Electric Company v. Public Service Commission, 18
SCRA 651, 665-666 [1966]). The rate base, on the other hand, is an evaluation of the
property devoted by the public utility to the public service or the value of invested
capital or property which the utility is entitled to a return (Susan F. Fendell, Public
Ownership of Public Utilities: Have Stockholders Outlived Their Useful Economic
Lives?, 43 Ohio St. L. J. 821 [1982]; 64 Am Jur 2d Sec. 138).

In the cases at bar, the resolution of the issues involved hinges on

the determination of the kind and the amount of operating expenses that
should be allowed to a public utility to generate a fair return and the
proper valuation of the rate base or the value of the property entitled to a
return.

Income Tax as Operating Expense Cannot be Allowed For Rate-Determination

Purposes

In determining whether or not a rate yields a fair return to the utility, the
operating expenses of the utility must be considered. The return allowed to a public
utility in accordance with the prescribed rate must be sufficient to provide for the
payment of such reasonable operating expenses incurred by the public utility in the
provision of its service to the public. Thus, the public utility is allowed a return on
capital over and above operating expenses. However, only such expenses and in
such amounts as are reasonable for the efficient operation of the utility should be
allowed for determination of the rates to be charged by a public utility.

The ERB correctly ruled that income tax should not be included in the
computation of operating expenses of a public utility. Income tax paid by a
public utility is consistent with the nature of operating expenses. In general,
operating expenses are those which are reasonably incurred in connection with
business operations to yield revenue or income. They are items of expenses which
contribute or are attributable to the production of income or revenue. As correctly

23
put by the ERB, operating expenses “should be a requisite of or necessary in the
operation of a utility, recurring, and that it redounds to the service or benefit of
customers.”

Income tax, it should be stressed, is imposed on an individual or entity as a

form of excise tax or a tax on the privilege of earning income (H. De Leon, The
Fundamentals of Taxation 79 [1993]). In exchange for the protection extended by
the State to the taxpayer, the government collects taxes as a source of revenue to
finance its activities. Clearly, by its nature, income tax payments of a public utility
are not expenses which contribute to or are incurred in connection with the
production of profit of a public utility. Income tax should be borne by the taxpayer
alone as they are payments made in exchange for benefits received by the taxpayer
from the State. No benefit is derived by the customers of a public utility for the taxes
paid by such entity and no direct contribution is made by the payment of income tax
to the operation of a public utility for purposes of generating revenue or profit.
Accordingly, the burden of paying income tax should be MERALCO’s alone
and should not be shifted to the consumers by including the same in the
computation of its operating expenses.

The principle behind the inclusion of operating expenses in the determination

of a just and reasonable rate is to allow the public utility to recoup the reasonable
amount of expenses it has incurred in connection with the services it provides. It
does not give the public utility the license to indiscriminately charge any and all
types of expenses incurred without regard to the nature thereof, i.e., whether or not
the expense is attributable to the production of services to the public utility. To
charge consumers for expenses incurred by a public utility which are not related to
the service or benefit derived by the customers from the public utility is unjustified
and inequitable.

While the public utility is entitled to a reasonable return on the fair value of
the property being used for the service of the public, no less than the Federal
Supreme Court of the United States emphasized: “[t]he public cannot properly be
subjected to unreasonable rates in order simply that stockholders may earn
dividends x x x. If a corporation cannot maintain such a [facility] and earn dividends
for stockholders, it is a misfortune for it and them which the Constitution does not
require to be remedied by imposing burdens on the public.” (Smyth v. Ames, 169
U.S. 466, 545 [1898])

We are not impressed by the reliance by MERALCO on some American case

law allowing the treatment of income tax paid by a public utility as operating
expense for rate-making purposes. Suffice to state that with regard to rate-
determination, the government is not hidebound to apply any particular method or
formula (Republic v. Medina, 41 SCRA 643, 662 [1971]; 64 Am Jur 2d 666). The
question of what constitutes a reasonable return for the public utility is necessarily
determined and controlled by its peculiar environmental milieu. Aside from the
financial condition of the public utility, there are other critical factors to consider for
purposes of rate regulation. Among others, they are: particular reasons involved for
the request of the rate increase, the quality of services rendered by the public utility,
the existence of competition, the element of risk of hazard involved in the
investment, the capacity of consumers, etc. (II O Pond, Public Utilities 1037-1038
[1932]). Rate regulation is the art of reaching a result that is good for the public
utility and is best for the public.

For these reasons, the Court cannot give in to the importunings of MERALCO
that we blindly apply the rulings of American courts on the treatment of income tax
as operating expenses in rate regulation cases. An approach allowing the
indiscriminate inclusion of income tax payments as operating expenses may create
an undesirable precedent and serve as a blanket authority for public utilities to
charge their income tax payments to operating expenses and unjustly shift the tax
burden to the customer. To be sure, public utility taxation in the United States is
going through the eye of criticism. Some commentators are of the view that by
allowing the public utility to collect its income tax payment from its customers, a
form of “sales tax” is, in effect, imposed on the public for consumption. By charging
their income tax payments to their customers, public utilities virtually become “tax
collectors” rather than taxpayers (P. Garfield and W. Lovejoy, Public Utility Economics
386, 393 [1964]). In the cases at bar, MERALCO has not justified why its income tax

24
should be treated as an operating expense to enable it to derive a fair return for its
services.

It is also noteworthy that under American laws, public utilities are taxed
differently from other types of corporations and thus carry a heavier tax burden.
Moreover, different types of taxes, charged, tolls or fees are assessed on a public
utility depending on the state or locality where it operates. At a federal level, public
utilities are subject to corporate income taxes and Social Security taxes – in the same
manner as other business corporations. At the state and local levels, public utilities
are subject to a wide variety of taxes, not all of which are imposed on each state.
Thus, it is not unusual to find different taxes or combinations of taxes applicable to
respective utility industries within a particular state (Id. at 385-386). A significant
aspect of state and local taxation of public utilities in the United States is that they
have been singled out for special taxation, i.e., they are required to pay one or more
taxes that are not levied upon other industries. In contrast, in this jurisdiction, public
utilities are subject to the same tax treatment as any other corporation and local
taxes paid by it to various local government units are substantially the same. The
reason for this is that the power to tax resides in our legislature which may prescribe
the limits of both national and local taxation, unlike in the federal system of the
United States where state legislature may prescribe taxes to be levied in their
respective jurisdictions.

MERALCO likewise cites decisions of the ERB (Cotabato Light & Power Plant
[ERB Case No. 91-70]; Davao Light & Power Co., Inc. [ERB Case No. 92-105]; and San
Fernando Electric Light & Power Co., Inc. [ERB Case No. 97-11]) allowing the
application of a tax recovery clause for the imposition of an additional charge on
consumers for taxes paid by the public utility. A close look at these decisions will
show they are inappropos. In the said cases, the ERB approved the adoption of a
formula which will allow the public utility to recover from its customers taxes already
paid by it. However, in the cases at bar, the income tax component added to the
operating expenses of a public utility is based on an estimate or approximate
figure of income tax to be paid by the public utility. It is this estimated amount of
income tax to be paid by MERALCO which is included in the amount of operating
expenses and used as basis in determining the reasonable rate to be charged to the
customers. Accordingly, the varying factual circumstances in the said cases prohibit
a square application of the rule under the previous ERB decisions.

II

Use of “Net Average Investment Method” is Not Unreasonable

In the determination of the rate base, property used in the operation of the
public utility must be subject to appraisal and evaluation to determine the fair value
thereof entitled to a fair return. With respect to those properties which have not
been used by the public utility for the entire duration of the test year, i.e., the year
subject to audit examination for rate-making purposes, a valuation methods must be
adopted to determine the proportionate value of the property. Petitioners maintain
that the net average investment method (also known as “actual number of
months use method”) recommended by COA and adopted by the ERB should be
used, while MERALCO argues that the average investment method (also known as
the “trending method”) to determine the proportionate value of properties should be
applied.

Under the “net average investment method,” properties and equipment

used in the operation of a public utility are entitled to a return only on the actual
number of months they are in service during the period (Section 608 [7], Article IX of
the National Accounting and Auditing Manual). In contrast, the “average investment
method” computes the proportionate value of the property by adding the value of
the property at the beginning and at the end of the test year with the resulting sum
divided by two.

The ERB did not abuse its discretion when it applied the net average
investment method. The reasonableness of net average investment method is borne
by the records of the case. In its report, the COA explained that the computation of
the proportionate value of the property and equipment in accordance with the actual
number of months such property or equipment is in service for purposes of
determining the rate base is favored, as against the trending method employed by

25
MERALCO, “to reflect the real status of the property.” By using the net average
investment method, the ERB and the COA considered for determination of the rate
base the value of properties and equipment used by MERALCO in proportion to the
period that the same were actually used during the period in question. This
treatment is consistent with the settled rule in rate regulations that the
determination of the rate base of a public utility entitled to a return must be based on
properties and equipment actually being used or are useful to the operations of the
public utility (II O. Pond, Public Utilities 1154 [1932]).

MERALCO does not seriously contest this treatment of actual usage of

property but opposes the method of computation or valuation thereof adopted by the
ERB and the COA on the ground that the net average investment method “assumes
an ideal situation where a utility, like MERALCO, is able to record in its books within
any given month the value of all the properties actually placed in service during that
month.” MERALCO contends that immediate recordal in its books of the property and
equipment is not possible as MERALCO’s franchise covers a wide area and that due to
the volume of properties and equipment put into service and the amount of paper
work required to be accomplished for recording in the books of the company, “it
takes three to six months (often longer) before an asset placed in service is recorded
in the books” of MERALCO. Hence, MERALCO adopted the “average investment
method” or the “trending method” which computes the average value of the
property at the beginning and at the end of the test year to compensate for the
irregular recording in its books.

MERALCO’s stance is belied by the COA Report which states that the
“verification of the records, as confirmed by the Management Staff, disclosed that
properties are recorded in the books as these are actually placed in
service.” Moreover, while the case was pending trial before the ERB, the ERB
conducted an ocular inspection to examine the assets in service, records and books
of accounts of MERALCO to ascertain the physical existence, ownership, valuation
and usefulness of the assets contained in the COA Report. Thus, MERALCO’s
contention that the date of recordal in the books does not reflect the date when the
asset is placed in service is baseless.

Further, computing the proportionate value of assets used in service in

accordance with the actual number of months the same is used during the test year
is a more accurate method of determining the value of the properties of a public
utility entitled to a return. If, as determined by COA, the date of recordal in the
books of MERALCO reflects the actual date the equipment or property is used in
service, there is no reason for the ERB to adopt the trending method applied by
MERALCO if a more precise method is available for determining the proportionate
value of the assets placed in service.

If we were to sustain the application of the “trending method,” the public

utility may easily manipulate the valuation of its property entitled to a return (rate
base) by simply including a highly capitalized asset in the computation of the rate
base even if the same was used for a limited period of time during the test year.
With the inexactness of the trending method and the possibility that the valuation of
certain properties may be subject to the control of and abuse by the public utility, the
Court finds no reasonable basis to overturn the recommendation of COA and the
decision of the ERB.

MERALCO further insists that the Court should sustain the “trending method”
in view of previous decisions by the Public Service Commission and of this Court
which “upheld” the use of this method. By refusing to adopt the trending method,
MERALCO argues that the ERB violated the rule on stare decisis.

Again, we are not impressed. It is a settled rule that the goal of rate-making
is to arrive at a just and reasonable rate for both the public utility and the public
which avails of the former’s products and services (Rate-Making for Public Utilities,
169 SCRA 175, 192 [1989]). However, what is a just and reasonable rate cannot be
fixed by any immutable method or formula. Hence, it has been held that no public
utility has a vested right to any particular method of valuation (64 Am Jur 2d, 666-
667). Accordingly, with respect to a determination of the proper method to be used
in the valuation of property and equipment used by a public utility for rate-making
purposes, the administrative agency is not bound to apply any one particular formula
or method simply because the same method has been previously used and applied.

26
In fact, nowhere in the previous decisions cited by MERALCO which applied the
trending method did the Court rule that the same should be the only method to be
applied in all instances.

At any rate, MERALCO has not adequately shown that the rates prescribed by
the ERB are unjust or confiscatory as to deprive its stockholders a reasonable return
on investment. In the early case of Ynchausti S.S. Co. v. Public Utility Commissioner,
this Court held: “[t]here is a legal presumption that the rates fixed by an
administrative agency are reasonable, and it must be conceded that the fixing of
rates by the Government, through its authorized agents, involves the exercise of
reasonable discretion and, unless there is an abuse of that discretion, the courts will
not interfere.” (42 Phil. 621 [1922]) Thus, the burden is upon the oppositor,
MERALCO, to prove that the rates fixed by the ERB are unreasonable or otherwise
confiscatory as to merit the reversal of the ERB. In the instant cases, MERALCO was
unable to discharge this burden.

Atty. Miguel M. Lingating v. Commission on Elections and Cesar B.

Sulong
G.R. No. 153475, November 13, 2002
En Banc [Mendoza]

On May 3, 2001, petitioner filed with the Provincial Election Supervision (sic)
in Pagadian City a petition for the disqualification of respondent Sulong, pursuant to
Sec. 40[b] of Republic Act No. 7160 (Local Government Code), which disqualifies from
running for any elective local position “those removed from office as a result of an
administrative case.” It appears that respondent Sulong had previously won as
mayor of Lapuyan on January 18, 1988. In the May 11, 1992, and again in the May 8,
1995 elections, he was reelected. In a petition for disqualification, petitioner alleged
that in 1991, during his first term as mayor of Lapuyan, respondent Sulong, along
with a municipal councilor of Lapuyan and several other individuals, was
administratively charged (AC No. 12-91) with various offenses, and that, on February
4, 1992, the Sangguniang Panlalawigan of Zamboanga del Sur found him guilty of the
charges and ordered his removal from office. Petitioner claimed that this decision
had become final and executory, and consequently the then vice-mayor of Lapuyan,
Vicente Imbing, took his oath as mayor vice respondent Sulong on March 3, 1992.

Respondent Sulong denied that the decision in AC No. 12-91 had become final
and executory. He averred that after receiving a copy of the decision on February
17, 1992, he filed a motion for reconsideration and/or notice of appeal thereof on
February 18, 1992; that on February 27, 1992, the Sangguniang Panlalawigan
required Jim Lingating, the complainant in AC No. 12-91, to comment on respondent
Sulong’s motion for reconsideration and/or notice of appeal; that the said
complainant had not yet complied therewith and his (respondent Sulong’s) motion
had consequently remained pending. Respondent Sulong denied he had been
removed from office by virtue of the decision in AC No. 12-91.

Xxx

Petitioner contends that the COMELEC en banc erred in applying the ruling in
Aguinaldo v. Commission on Elections (212 SCRA 768 [1992]) in holding that the
reelection of respondent Sulong in 1992 and 1995 as mayor of Lapuyan had the
effect of condoning the misconduct for which he was ordered dismissed by the
Sangguniang Panlalawigan of Zamboanga del Sur. Petitioner cites Reyes v.
Commission on Elections (254 SCRA 514, 525-526 [1996]) in which we held that an
elective local executive officer, who is removed before the expiration of the term for
which he was elected, is disqualified from being a candidate for a local elective
position under Section 40[b] of the Local Government Code.

We stated in Reyes:

Petitioner invokes the ruling in Aguinaldo v. COMELEC, in which it was

held that a public official could not be removed for misconduct committed
during a prior term and that his reelection operated as a condonation of the
officer’s previous misconduct to the extent of cutting-off the right to remove
him therefore. But that was because in that case, before the petition
questioning the validity of the administrative decision removing petitioner

27
 could be decided, the term of office during which the alleged misconduct was
committed expired. Removal cannot extend beyond the term during which
the alleged misconduct was committed. If a public official is not removed
before his term of office expires, he can no longer be removed if he is
thereafter reelected [for] another term. This is the rationale for the ruling in
the two Aguinaldo cases.

The case at bar is the very opposite of those cases. Here, x x x the
decision in the administrative case x x x was served on petitioner and it
thereafter became final on April 3, 1995, because petitioner failed to appeal to
the Office of the President. He was thus validly removed from office and,
pursuant to Sec. 40[b] of the Local Government Code, he was disqualified
from running for reelection.

It is noteworthy that at the time the Aguinaldo cases were decided

there was no provision similar to Sec. 40[b] which disqualified any person
from running for any elective position on the ground that he has been
removed as a result of an administrative case. The Local Government Code of
1991 (R.A. No. 7160) could not be given retroactive effect.

However, Reyes cannot be applied to this case because it appears that the 1992
decision of the Sangguniang Panlalawigan, finding respondent Sulong guilty of
dishonesty, falsification and malversation of public funds, has not until now become
final. X x x. The filing of his motion for reconsideration prevented the decision of
Sangguniang Panlalawigan from becoming final.

While R.A. No. 7160 on disciplinary actions is silent on the filing of a motion
for reconsideration, the same cannot be interpreted as a prohibition against the filing
of a motion for reconsideration. Thus, it was held (Halimao v. Villanueva, 253 SCRA
196 [1996]) that a party in a disbarment proceeding under Rule 139-B, Sec. 12[c] can
move for a reconsideration of a resolution of the Integrated Bar of the Philippines
although Rule 139-B does not so provide x x x.

There is thus no decision finding respondent guilty to speak of. As Provincial

Secretary of Zamboanga del Sur Wilfredo Cimafranca attested, the Sangguniang
Panlalawigan simply considered the matter as having become moot and academic
because it was “overtaken by the local elections of May [11], 1992.”

Neither can the succession of the then vice-mayor of Lapuyan x x x and the
highest ranking municipal councilor of Lapuyan x x x to the offices of mayor and vice-
mayor, respectively, be considered proof that the decision in AC No. 12-91 had
become final because it appears to have been made pursuant to Sec. 68 of the Local
Government Code, which makes decisions in administrative cases immediately
executory.

Indeed, considering the failure of the Sangguniang Panlalawigan to resolve

respondent’s motion, it is unfair to the electorate to be told after they have voted for
respondent Sulong that after all he is disqualified, especially since at the time of the
elections on May 14, 2001, the decision of the Sangguniang Panlalawigan had been
rendered nearly ten years ago.

Xxx

WHEREFORE, the petition for certiorari is DISMISSED and the resolution, dated
April 4, 2002, of the COMELEC en banc, dismissing petitioner’s petition for
disqualification, is AFFIRMED.

Commission on Elections v. Judge Ma. Luisa Quijano-Padilla

G.R. No. 151992, September 18, 2002
En Banc [Sandoval-Gutierrez]

The case at bar provides us with another occasion to stress that with respect
to government contracts, statutes take precedence over the public officers’ freedom
to contract. Here, the primordial question to be resolved is – may a successful bidder
compel a government agency to formalize a contract with it notwithstanding that its
bid exceeds the amount appropriated by Congress for the project?

28
 Xxx

Enshrined in the 1987 Philippine Constitution is the mandate that “no money
shall be paid out of the Treasury except in pursuance of an appropriation made by
law.” (Sec. 29[1], Article VI of the 1987 Constitution) Thus, in the execution of
government contracts, the precise import of this constitutional restriction is to
require the various agencies to limit their expenditures within the appropriations
made by law for each fiscal year.

Complementary to the foregoing constitutional injunction are pertinent

provisions of law and administrative issuances that are designed to effectuate the
above mandate in a detailed manner x x x.

It is quite evident from the tenor of the language of the law that the existence
of appropriations and the availability of funds are indispensable pre-requisites to or
conditions sine qua non for the execution of government contracts. The obvious
intent is to impose such conditions as a priori requisites to the validity of the
proposed contract (Fernandez, A Treatise on Government Contracts Under Philippine
Law, 2001, pp. 40-41). Using this as our premise, we cannot accede to PHOTOKINA’s
contention that there is already a perfected contract. While we held in Metropolitan
Manila Development Authority v. Jancom Environmental Corporation (Supra) that “the
effect of an unqualified acceptance of the offer or proposal of the bidder is to perfect
a contract, upon notice of the award to the bidder,” however, such statement would
be inconsequential in a government where the acceptance referred to is yet to meet
certain conditions. To hold otherwise is to allow a public officer to execute a binding
contract that would obligate the government in an amount in excess of the
appropriations for the purpose for which the contract was attempted to be made (64
Am Jur 2d Sec. 11). This is a dangerous precedent.

In the case at bar, there seems to be an oversight of the legal requirements

as early as the bidding stage. The first step of a Bids and Awards Committee (BAC) is
to determine whether the bids comply with the requirements. The BAC shall rate a
bid “passed” only if it complies with all the requirements and the submitted price
does not exceed the approved budget for the contract.” (Implementing Rules and
Regulations [IRR] for Executive Order No. 262, supra.)

Extant on the record is the fact that the VRIS Project was awarded to
PHOTOKINA on account of its bid in the amount of P6.588 Billion Pesos. However,
under Republic Act No. 8760 (General Appropriations Act, FY 2000, p. 1018, supra.),
the only fund appropriated for the project was P1 Billion Pesos and under the
Certification of Available Funds (CAF) only P1.2 Billion Pesos was available. Clearly,
the amount appropriated is insufficient to cover the cost of the entire VRIS Project.
There is no way that the COMELEC could enter into a contract with PHOTOKINA
whose accepted bid was way beyond the amount appropriated by law for the project.
This being the case, the BAC should have rejected the bid for being excessive or
should have withdrawn the Notice of Award on the ground that in the eyes of the law,
the same is null and void.

The objections of then Chairman Demetriou to the implementation of the VRIS

Project, ardently carried on by her successor Chairman Benipayo, are therefore in
order.

Even the draft contract submitted by Commissioner Sadain, that provides for
a contract price in the amount of P1.2 Billion Pesos is unacceptable. Indeed, we
share the observation of former Chairman Demetriou that it circumvents the
statutory requirements on government contracts. While the contract price under the
draft contract is only P1.2 Billion and, thus, within the certified available funds, the
same covers only Phase I of the VRIS Project, i.e., the issuance of identification cards
for only 1,000,000 voters in specified areas (Ibid., p. 382). In effect, the
implementation of the VRIS Project will be “segmented” or “chopped” into several
phases. Not only is such arrangement disallowed by our budgetary laws and
practices, it is also disadvantageous to the COMELEC because of the uncertainty that
will loom over its modernization project for an indefinite period of time. Should
Congress fail to appropriate the amount necessary for the completion of the entire
project, what good will the accomplished Phase I serve? As expected, the project
failed “to sell” with the Department of Budget and Management. Thus, Secretary

29
Benjamin Diokno, per his letter of December 1, 2000, declined the COMELEC’s
request for the issuance of the Notice of Cash Availability (NCA) and a multi-year
obligatory authority to assume payment of the total VRIS Project for lack of legal
basis. Corollarily, under Section 33 of R.A. No. 8760, no agency shall enter into a
multi-year contract without a multi-year obligational authority, thus:

“SECTION 33. Contracting Multi-Year Projects. - In the implementation

of multi-year projects, no agency shall enter into a multi-year contract without
a multi-year Obligational Authority issued by the Department of Budget and
Management for the purpose. Notwithstanding the issuance of the multi-year
Obligational Authority, the obligation to be incurred in any given calendar
year, shall in no case exceed the amount programmed for implementation
during said calendar year.”

Petitioners are justified in refusing to formalize the contract with PHOTOKINA.

Prudence dictated them not to enter into a contract not backed up by sufficient
appropriation and available funds. Definitely, to act otherwise would be a futile
exercise for the contract would inevitably suffer the vice of nullity. In Osmena v.
Commission on Audit (230 SCRA 585, 589-590 [1994]), this Court held:

“The Auditing Code of the Philippines (P.D. 1445) further provides that
no contract involving the expenditure of public funds shall be entered into
unless there is an appropriation therefore and the proper accounting official of
the agency concerned shall have certified to the officer entering into the
obligation that funds have been duly appropriated for the purpose and the
amount necessary to cover the proposed contract for the current fiscal year is
available for expenditure on account thereof. Any contract entered into
contrary to the foregoing requirements shall be VOID.

“Clearly then, the contract entered into by the former Mayor Duterte
was void from the very beginning since the agreed cost for the project
(P8,368,920.00) was way beyond the appropriated amount (P5,419,180.00) as
certified by the City Treasurer. Hence, the contract was properly declared
void and unenforceable in COA’s 2nd Indorsement, dated September 4, 1986.
The COA declared and we agree, that:

‘The prohibition contained in Sec. 85 of PD 1445 (Government

Auditing Code) is explicit and mandatory. Fund availability is, as it has
always been, an indispensable prerequisite to the execution of any
government contract involving the expenditure of public funds by all
government agencies at all levels. Such contracts are not to be
considered as final or binding unless such a certification as to funds
availability is issued (Letter of Instruction No. 767, s. 1978).
Antecedent of advance appropriation is thus essential to government
liability on contracts (Zobel v. City of Manila, 47 Phil. 169). This
contract being violative of the legal requirements aforequoted, the
same contravenes Sec. 85 of PD 1445 and is null and void by virtue of
Sec. 87.’”

Verily, the contract, as expressly declared by law, is inexistent and void ab

initio (Article 1409 of the Civil Code of the Philippines). This is to say that the
proposed contract is without force and effect from the very beginning or from its
incipiency, as if it had never been entered into, and hence, cannot be validated either
by lapse of time or ratification (Manila Lodge v. Court of Appeals, 73 SCRA 162
[1976]; See also Tongoy v. Court of Appeals, 123 SCRA 99 [1983]).

Of course, we are not saying that the party who contracts with the
government has no other recourse in law. The law itself affords him the remedy.
Section 48 of E.O. No. 292 explicitly provides that any contract entered into contrary
to the above-mentioned requirements shall be void, and “the officers entering into
the contract shall be liable to the Government or other contracting party for any
consequent damage to the same as if the transaction had been wholly between
private parties.” So when the contracting officer transcends his lawful and legitimate
powers by acting in excess of or beyond the limits of his contracting authority, the
Government is not bound under the contract. It would be as if the contract in such
case were a private one, whereupon, he binds himself, and thus, assumes personal
liability thereunder. (Fernandez, a Treatise on Government Contracts Under

30
Philippine Law, 2001, supra., pp. 22-23). Otherwise stated, the proposed contract is
unenforceable as to the Government.

While this is not the proceeding to determine where the culpability lies,
however, the constitutional mandate cited above constrains us to remind all public
officers that public office is a public trust and all public officers must at all times be
accountable to the people. The authority of public officers to enter into government
contracts is circumscribed with a heavy burden of responsibility. In the exercise of
their contracting prerogative, they should be the first judges of the legality, propriety
and wisdom of the contract they entered into. They must exercise a high degree of
caution so that the Government may not be the victim of ill-advised or improvident
action (Rivera v. Maclang, 7 SCRA 57 [1963]).

In fine, we rule that PHOTOKINA, though the winning bidder, cannot compel
the COMELEC to formalize the contract. Since PHOTOKINA’s bid is beyond the
amount appropriated by Congress for the VRIS Project, the proposed contract is not
binding upon the COMELEC and is considered void x x x.

Arthur D. Lim and Paulino R. Ersando v. Honorable Executive

Secretary
G.R. No. 151445, April 11, 2002
En Banc [De Leon]

This case involves a petition for certiorari and prohibition as well as a petition-
in-intervention, praying that respondents be restrained from proceeding with the so-
called “Balikatan 02-1” and that after due notice and hearing, that judgment be
rendered issuing a permanent writ of injunction and/or prohibition against the
deployment of U.S. troops in Basilan and Mindanao for being illegal and in violation of
the Constitution.

Xxx

Beginning January of this year 2002, personnel from the armed forces of the
United States of America started arriving in Mindanao to take part, in conjunction
with the Philippine military, in “Balikatan 02-1.” These so-called “Balikatan”
exercises are the largest combined training operations involving Filipino and
American troops. In theory, they are a simulation of joint military maneuvers
pursuant to the Mutual Defense Treaty, a bilateral defense agreement entered into
by the Philippine and the United States in 1951.

Prior to the year 2002, the last “Balikatan” was held in 1995. This was due to
the paucity of any formal agreement relative to the treatment of United States
personnel visiting the Philippines. In the meantime, the respective governments of
the two countries agreed to hold joint exercises on a reduced scale. The lack of
consensus was eventually cured when the two nations concluded the Visiting Forces
Agreement (VFA) in 1999.

The entry of American troops into Philippine soil is proximately rooted in the
international anti-terrorism campaign declared by President George W. Bush in
reaction to the tragic events that occurred on September 11, 2001. On that day,
three (3) commercial aircrafts were hijacked, flown and smashed into the twin towers
of the World Trade Center in New York City and the Pentagon building in Washington,
D.C. by terrorists with alleged links to the al-Qaeda (“the Base”), a Muslim extremist
organization headed by the infamous Osama Bin Laden. Of no comparable historical
parallels, these acts caused billions of dollars worth of destruction of property and
incalculable loss of hundreds of lives.

Xxx

The holding of “Balikatan 02-1” must be studied in the framework of the

treaty antecedents to which the Philippines bound itself. The first of these is the
Mutual Defense Treaty (MDT, for brevity). The MDT has been described as the “core”
of the defense relationship between the Philippines and its traditional ally, the United
States. Its aim is to enhance the strategic and technological capabilities of our
armed forces through joint training with its American counterparts; the “Balikatan” is
the largest such training exercise directly supporting the MDT’s objectives. It is this

31
treaty to which the VFA adverts and the obligations thereunder which it seeks to
reaffirm.

The lapse of the US-Philippine Bases Agreement in 1992 and the decision not
to renew it created a vacuum in US-Philippine defense relations, that is, until it was
replaced by the Visiting Forces Agreement. It should be recalled that on October 10,
2000, by a vote of eleven to three, this Court upheld the validity of the VFA (BAYAN,
et. Al. v. Zamora, et. al., 342 SCRA 449 [2000]). The VFA provides the “regulatory
mechanism” by which “United States military and civilian personnel [may visit]
temporarily in the Philippines in connection with activities approved by the Philippine
Government.” It contains provisions relative to entry and departure of American
personnel, driving and vehicle registration, criminal jurisdiction, claims, importation
and exportation, movement of vessels and aircraft, as well as the duration of the
agreement and its termination. It is the VFA which gives continued relevance to the
MDT despite the passage of years. Its primary goal is to facilitate the promotion of
optimal cooperation between American and Philippine military forces in the event of
an attack by a common foe.

The first question that should be addressed is whether “Balikatan 02-1” is

covered by the Visiting Forces Agreement. To resolve this, it is necessary to refer to
the VFA itself. Not much help can be had therefrom, unfortunately, since the
terminology employed is itself the source of the problem. The VFA permits United
States personnel to engage, on an impermanent basis, in “activities,” the exact
meaning of which was left undefined. The expression is ambiguous, permitting a
wide scope of undertakings subject only to the approval of the Philippine
government. The sole encumbrance placed on its definition is couched in the
negative, in that United States personnel must “abstain from any activity inconsistent
with the spirit of this agreement, and in particular, from any political activity.” All
other activities, in other words, are fair game.

We are not completely unaided, however. The Vienna Convention on the Law
of Treaties, which contains provisos governing interpretations of international
agreements, state x x x.

It is clear from the foregoing that the cardinal rule of interpretation must
involve an examination of the text, which is presumed to verbalize the parties’
intentions. The Convention likewise dictates what may be used as aids to deduce the
meaning of terms, which it refers to as the context of the treaty, as well as other
elements may be taken into account alongside the aforesaid context. X x x

The Terms of Reference rightly fall within the context of the VFA.

After studied reflection, it appeared farfetched that the ambiguity surrounding

the meaning of the word “activities” arose from accident. In our view, it was
deliberately made that way to give both parties a certain leeway in negotiation. In
this manner, visiting US forces may sojourn in Philippine territory for purposes other
than military. As conceived, the joint exercises may include training on new
techniques of patrol and surveillance to protect the nation’s marine resources, sea
search-and-destroy operations to assist vessels in distress, disaster relief operations,
civic action projects such as the building of school houses, medical and humanitarian
missions, and the like.

Under these auspices, the VFA gives legitimacy to the current Balikatan
exercises. It is only logical to assume that “Balikatan 02-1,” a “mutual anti-terrorism
advising, assisting and training exercise,” falls under the umbrella of sanctioned or
allowable activities in the context of the agreement. Both the history and intent of
the Mutual Defense Treaty and the VFA support the conclusion that combat-related
activities – as opposes to combat itself – such as the one subject of the instant
petition, are indeed authorized.

That is not the end of the matter, though. Granted that “Balikatan 02-1” is
permitted under the terms of the VFA, what may US forces legitimately do in
furtherance of their aim to provide advice, assistance and training in the global effort
against terrorism? Differently phrased, may American troops actually engage in
combat in Philippine territory? The Terms of Reference are explicit enough.
Paragraph 8 of section I stipulates that US exercise participants may not engage in
combat “except in self-defense.” We wryly note that this sentiment is admirable

32
in the abstract but difficult in implementation. The target of “Balikatan 02-1,” the
Abu Sayyaf, cannot reasonably be expected to sit idly while the battle is brought to
their very doorstep. They cannot be expected to pick and choose their targets for
they will not have the luxury of doing so. We state this point if only to signify our
awareness that the parties straddle a fine line, observing the honored legal maxim
“Nemo potest facere per alium quod non potest facere per directum.” (“No one is
allowed to do indirectly what he is prohibited to do directly.”) The indirect violation is
actually petitioners’ worry, that in reality, “Balikatan 02-1” is actually a war
principally conducted by the United States government, and that the provision on
self-defense serves only as camouflage to conceal the true nature of the exercise. A
clear pronouncement on this matter thereby becomes crucial.

In our considered opinion, neither the MDT nor the VFA allow foreign troops to
engage in an offensive war on Philippine territory. We bear in mind the salutary
proscription stated in the Charter of the United Nations x x x.

In the same manner, both the Mutual Defense Treaty and the Visiting Forces
Agreement, as in all other treaties and international agreements to which the
Philippines is a party, must be read in the context of the 1987 Constitution. In
particular, the Mutual Defense Treaty was concluded way before the present Charter,
though it nevertheless remains in effect as a valid source of international obligation.
The present Constitution contains key provisions useful in determining the extent to
which foreign military troops are allowed in Philippine territory. X x x

The Constitution also regulates the foreign relations powers of the Chief
Executive when it provides that “[n]o treaty or international agreement shall be valid
and effective unless concurred in by at least two-thirds of all the members of the
Senate.” (Sec. 21, Art. VII) Even more pointedly, the Transitory Provisions state:

Sec. 25. After the expiration in 1991 of the Agreement between the
Republic of the Philippines and the United States of America concerning
Military Bases, foreign military bases, troops or facilities shall not be allowed
in the Philippines except under a treaty duly concurred in by the Senate and,
when the Congress so requires, ratified in a majority of the votes cast by the
people in a national referendum held for that purpose, and recognized as a
treaty by the other contracting state.

The aforequoted provisions betray a marked antipathy towards foreign

military presence in the county, or of foreign influence in general. Hence, foreign
troops are allowed entry into the Philippines only by way of direct exception. Conflict
arises then between the fundamental law and our obligations arising from
international agreements.

A recent formulation of the relation of international law vis-à-vis municipal law

was expressed in Philip Morris, Inc. v. Court of Appeals (224 SCRA 576, 593 [1993]),
to wit:

x x x Withal, the fact that international law has been made part of the
law of the land does not by any means imply the primacy of international law
over national law in the municipal sphere. Under the doctrine of incorporation
as applied in most countries, rules of international law are given a standing
equal, not superior, to national legislation.

This is not exactly helpful in solving the problem at hand since in trying to find a
middle ground, it favors neither one law nor the other, which only leaves the hapless
seeker with an unsolved dilemma. Other more traditional approaches may offer
valuable insights.

From the perspective of public international law, a treaty is favored over

municipal law pursuant to the principle of pacta sunt servanda. Hence, “[e]very
treaty in force is binding upon the parties to it and must be performed by them in
good faith.” (Vienna Convention on the Law of Treaties, Art. 26) Further, a party to a
treaty is not allowed to “invoke the provisions of its internal law as justification for its
failure to perform a treaty.” (Id., Art. 27. However, this is without prejudice to the
provisions of Art. 46 of the Convention x x x.)

33
 Our Constitution espouses the opposing view. Witness our jurisdiction as
stated in Section 5 of Article VIII x x x.

In Ichong v. Hernandez (101 Phil. 1155, 1191 [1957]), we ruled that

provisions of a treaty are always subject to qualification or amendment by a
subsequent law, or that it is subject to the police power of the State. In Gonzales v.
Hechanova (9 SCRA 230, 242 [1963]),

x x x as regards the question whether an international agreement may

be invalidated by our courts, suffice it to say that the Constitution of the
Philippines has clearly settled it in the affirmative, by providing, in Section 2 of
Article VIII thereof, that the Supreme Court may not be deprived “of its
jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari,
or writ of error as the law or the rules of court may provide, final judgments
and decrees of inferior courts in – (1) All cases in which the constitutionality or
validity of any treaty, law, ordinance, or executive order or regulation is in
question.” In other words, our Constitution authorizes the nullification of a
treaty, not only when it conflicts with the fundamental law, but, also, when it
runs counter to an act of Congress.

The foregoing premises leave no doubt that US forces are prohibited from
engaging in an offensive war on Philippine territory.

Yet a nagging question remains: Are American troops actively engaged in

combat alongside Filipino soldiers under the guise of an alleged training and
assistance exercise? Contrary to what petitioners would have us to do, we cannot
take judicial notice of the events transpiring down south, as reported from the
saturation coverage of the media. As a rule, we do not take cognizance of
newspaper or electronic reports per se, not because of any issue as to their truth,
accuracy, or impartiality, but for the simple reason that facts must be established in
accordance with the rules of evidence. As a result, we cannot accept, in the absence
of concrete proof, petitioners’ allegation that the Arroyo government is engaged in
“doublespeak” in trying to pass off as a mere training exercise an offensive effort by
foreign troops on native soil. The petitions invite us to speculate on what is really
happening in Mindanao, to issue, make factual findings on matters well beyond our
immediate perception, and this we are understandably loath to do.

It is all too apparent that the determination thereof involves basically a

question of fact. On this point, we must concur with the Solicitor General that the
present subject matter is not a fit topic for a special civil action for certiorari. We
have held in too many instances that questions of fact are not entertained in such a
remedy. The sole object of the writ is to correct errors of jurisdiction or grave abuse
of discretion. X x x

In this connection, it will not be amiss to add that the Supreme Court is not a
trier of facts (Hervas v. Court of Appeals, 319 SCRA 776 [1999]; Valmonte v. Court of
Appeals, 303 SCRA 278 [1999]).

Under the expanded concept of judicial power under the Constitution, courts
are charged with the duty “to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government.” (Article VIII, Section 1) From the facts
obtaining, we find that the holding of “Balikatan 02-1” joint military exercise has not
intruded into that penumbra of error that would otherwise call for correction on our
part. In other words, respondents in the case at bar have not committed grave abuse
of discretion amounting to lack or excess of jurisdiction.

Dissenting Opinion
Justice Santiago M. Kapunan, joined by Justices Consuelo Ynares-Santiago and
Angelina Sandoval-Gutierrez

The petition is impressed with merit.

There is no treaty allowing US troops to engage in combat.

The Constitution prohibits foreign military bases, troops or facilities unless a

treaty permits the same. X x x

34
 There is no treaty allowing foreign military troops to engage in combat with
internal elements.

The Mutual Defense Treaty (MDT) between the Republic of the Philippines and
the United States of America does not authorize US military troops to engage the
ASG in combat. The MDT contemplates only an “external armed attack.” Article III
of the treaty cannot be more explicit x x x. Supporting this conclusion is the third
paragraph of the MDT preamble x x x.

There is no evidence that the ASG is connected with “global terrorism.”

There is no empirical basis for the allegation that the “terrorism” which the
ASG is accused of constitutes an “external armed attack.” The ASG has committed
mostly crimes of kidnapping for ransom and murder – common crimes that are
punishable under the penal code but which, by themselves, hardly constitute
“terrorism.”

Parenthetically, there is lack of agreement as to the precise definition of

terrorism. Indeed, one man’s terrorist may be another man’s freedom fighter. The
divergent interests of States have caused contradicting definitions and conflicting
perceptions of what constitutes “terrorist acts” that make it difficult for the United
Nations to reach a decision on the definition of terrorism. Because of this
“definitional predicament,” the power of definition is easily exercised by a
superpower which, by reason of its unchallenged hegemony, could draw lists of what
it considers terrorist organizations or states sponsoring terrorism based on criteria
determined by the hegemon’s own strategic interests.

In any case, ties between the ASG and so-called international “terrorist”
organizations have not been established. Even assuming that such ties do exist, it
does not necessarily make the “attacks” by the ASG “external” as to fall within the
ambit of the MDT.

Balikatan exercises are not covered by VFA as US troops are not allowed to
engage in combat.

Neither is the present situation covered by the so-called Visiting Forces

Agreement (VFA). The VFA was concluded after the removal of the US military bases,
troops and facilities in the aftermath of the termination of the treaty allowing the
presence of American military bases in the Philippines. The VFA is nothing more than
what its formal name suggests: an “Agreement between the Government of the
Republic of the Philippines and the Government of the United States of America
regarding the Treatment of United States Armed Forces Visiting the Philippines.”
The last paragraph of the VFA preamble also “recogniz[es] the desirability of defining
the treatment of United States personnel visiting the Republic of the Philippines.”

The VFA was entered into to enable American troops to enter the country
again after the removal of the American military bases so they can participate in
military exercises under the auspices of the Mutual Defense Treaty. It provided the
legal framework under which American soldiers will be treated while they remain in
the country.

The military exercises contemplated in the VFA are those in accordance with
the National Defense Plan (NDP) of the Philippines. The NDP was previously
approved and adopted by the Mutual Defense Board, jointly chaired by the Chief of
Staff of the Armed Forces of the Philippines and the Commander in the Pacific of the
United States Armed Forces.

The NDP is directed against potential foreign aggressors, not designed to deal
with internal disorders. This was what the Senate understood when it ratified the
VFA in Senate Resolution No. 18 x x x.

The VFA’s ambiguous reference to “activities” is not a loophole that

legitimizes the presence of US troops in Basilan. In the treaty’s preamble, the parties
“reaffirm their obligations under the Mutual Defense Treaty of August 30, 1951.” As
the preamble comprises part of a treaty’s context for the purpose of interpretation,
the VFA must be read in light of the provisions of the MDT. As stated earlier, the MDT

35
contemplates only an external armed attack; consequently, the “activities” referred
to in the VFA cannot thus be interpreted to include armed confrontation with or
suppression of the ASG members who appear to be mere local bandits, mainly
engaged in kidnapping for ransom and murder – even arson, extortion and illegal
possession of firearms, all of which are common offenses under our criminal laws.
These activities involve purely police matters and domestic law and order problems;
they are hardly “external” attacks within the contemplation of the MDT and the VFA.
To construe the vagueness of the term “activities” in the VFA as authorizing
American troops to confront the ASG in armed conflict would, therefore, contravene
both spirit and letter of the MDT.

Respondents maintain that the American troops are not here to fight the ASG
but merely to engage in “training exercises.” To allay fears that the American troops
are here to engage the ASG in combat, the TOR [Terms of Reference] professes that
the present exercise “is a mutual counter-terrorism advising, assisting and training
Exercise relative to Philippine efforts against the ASG, and will be conducted on the
Island of Basilan.” The TOR further provides that the “exercise” shall involve the
conduct of “mutual military assisting, advising and training of RP and US Forces
with the primary objective of enhancing the operational capabilities of both forces to
combat terrorism.”

These avowals of assistance, advice, and training, however, fly in the face of
the presence of US troops in the heart of the ASG’s stronghold. Such presence is an
act of provocation that makes an armed confrontation between US soldiers and ASG
members inevitable.

The US troops in Basilan have been described as being “on a slippery slope
between training and fighting.” Their very presence makes them a target for
terrorist and for the local Muslim populace, which has been bitterly anti-American
since colonial times. Though they are called advisers, the Americans will be going on
risky missions deep into the jungle. A former Green Beret who is an analyst of
Washington’s Center for Strategies and Budgetary Assessments notes that “when
troops go out on patrol, they come as close as they can to direct combat.” (McGeary,
Next Stop Mindanao, Time Magazine, January 28, 2002, p. 22)

“Advising” or “training” Filipino soldiers hardly describes the involvement of

US troops (unaccompanied by Filipino counterparts) on board combat helicopters
which land on the battlegrounds to evacuate Filipino soldiers wounded while fighting
the ASG. For example, on April 5, 2002, US troops on board a Pave Hawk helicopter
flew to the scene of a night battle on Basilan Island to evacuate a wounded Filipino
soldier. This was reportedly the third time in recent weeks that chopper-borne US
forces had evacuated Filipino soldiers fighting the ASG (Philippine Daily Inquirer, April
6, 2002).

Whatever euphemisms may be conjured to characterize American

involvement, the RP-US Balikatan 02-1 Exercises are aimed at seeking out
the ASG and exterminating it.

The prohibition contained in the TOR against US exercise participants from

engaging in combat but “without prejudice to their right to self-defense”
provides little consolation. Combat muddles the distinction between aggression and
self-defense. US troops can always say they did not fire first and no one would dare
say otherwise. The ASG has been so demonized that no one cares how it is
exorcised. Significantly, the TOR does not define the parameters of “self-defense.”
Militarily, a pre0emptive strike could be interpreted as an act of self-defense.

What I fear most is that the country would be dragged into a more
devastating and protracted conflict as a result of the continued presence of US
military troops in Basilan. A single ASG sniper’s bullet felling an American soldier
could be used as an excuse for massive retaliation by US ground and air forces to
attack and bomb out every suspected ASG lair, all in the name of “self-defense.”

Apprehensions over possible catastrophic consequence of US military

involvement in our country are not without historical basis.

Xxx

36
US military presence is essentially indefinite and open-ended.

Already, there are indications that the US intends to reestablish a

more enduring presence in the country. Defense Secretary Angelo Reyes was
quoted to have declared on March 20, 2002 that 2,665 US soldiers will take part in
the RP-US Balikatan 02-2 starting next month in Central Luzon and that 10 more
military exercises will be held this year. How many more war exercises are needed
for “training and advising” Filipino soldiers? What conditions must be satisfied for
the United States to consider the “war against terrorism” in Mindanao terminated?
The endless frequency and successive repetition of the war exercises covering the
two largest islands of the country amount, in a real sense, to the permanent
presence of foreign military troops here sans a treaty in blatant violation of the
constitutional proscription.

Xxx

The declarations of the two Presidents on the war against terrorism and their
avowal to secure the world against the terrorists would ineluctably suggest a long-
drawn conflict without a foreseeable end. Worse, it is not unlikely that this war
could expand and escalate to include as protagonists the Moro Islamic
Liberation Front and the Moro National Liberation Front and – not
improbably – the New People’s Army, all lumped-up as “terrorists” in a
unilateral characterization.

Xxx

US military intervention is not the solution to the Mindanao problem.

Assuming that the ASG is a terrorist organization, U.S. military intervention is

not the solution to achieve peace. The annihilation of the rebel bandits would be a
futile quest so long as the root causes of their criminality are not addressed. A study
by the United Nations Secretariat, however, acknowledges that international
terrorism springs from “misery, frustration, grievance and despair,” elements which,
many believe, are present in Basilan. Two veteran Philippine journalists have
described the province as Mindanao’s “war laboratory,” where lawlessness,
government neglect, religious strife, poverty, and power struggle are rampant.

If indeed acts of terrorism are cries of desperation, if terrorism is but a

symptom of the greater maladies of “misery, frustration, grievance and despair,”
then it cannot be remedied alone by ASG’s physical extermination, which appears to
be the object of President Bush and President Macapagal-Arroyo’s joint campaign
against global terrorism. Admittedly, the State has the right to use force as a means
of self-preservation. But perhaps we should all consider that a military solution is but
a first-aid measure, not the prescription to these diseases. X x x

The presence of US troops in Basilan, whether from the legal, philosophical –

or even from the practical perspective cannot be justified. On the contrary, it is
counterproductive. It serves to fuel an already volatile situation. US troops are likely
less able, if not less willing, to distinguish between the innocent and the enemy. The
inevitable “collateral damage,” the killing of women and children, Muslims and
Christians, the destruction of homes, schools and hospitals would fan the flames of
fanaticism and transform mere rogues into martyrs.

The Filipino soldier has proven himself brave, courageous, fearless and
tenacious in the field of battle as shown in Bataan and Corregidor, in the four long
years of guerilla warfare thereafter against the Japanese, and in the struggle for
independence against Spain and the United States at the turn of the last century.
The local army and police have successfully battled in the past Communist and other
insurgents which were more organized and numerous, operating in larger parts of the
country and fighting for their political beliefs. If our troops need training by US
advisers or have to conduct joint exercises with US troops to improve their fighting
capability, these could be more effectively achieved if done outside Basilan or away
from the danger zones. Instead of bringing troops to the combat zones, the US can
do more by supplying our soldiers with modern and high tech weaponry.

Prescinding from the foregoing disquisitions, it is totally erroneous to argue

that petitioners do not have legal standing or that the issues raised by them are

37
premature and not based on sufficient facts. The issues raised are of transcendental
importance (Bayan v. Zamora, 342 SCRA 449 [2002]). The Balikatan exercises pose
direct injury to some of the petitioners (intervenors) who live in the affected areas.
The presence of US troops in the combat zones “assisting” and “advising” our troops
in combat against the ASG is a blatant violation of the Constitutional proscription
against the stationing of foreign troops to fight a local insurgency and puts the
country in peril of becoming a veritable killing field. If the time is not ripe to
challenge the continuing affront against the Constitution and the safety of the
people, when is the right time? When the countryside has been devastated and
numerous lives lost?

Republic of the Philippines v. The Hon. Court of Appeals

G.R. No. 146587, July 2, 2002
First Division [Vitug]

Nature of the Right of Eminent Domain; Limitations

The right of eminent domain is usually understood to be an ultimate right of

the sovereign power to appropriate any property within its territorial sovereignty for
a public purpose (Bernas, 1987 Edition, p. 276, quoting Justice Story in Charles River
Bridge v. Warren Bridge). Fundamental to the independent existence of a State, it
requires no recognition by the Constitution, whose provisions are taken as being
merely confirmatory of its presence and as being regulatory, at most, in the due
exercise of the power. In the hands of the legislature, the power is inherent, its
scope matching that of taxation, even that of police power itself, in many respects. It
reaches to every form of property the State needs for public use and, as an old case
so puts it, all separate interests of individuals in property are held under a tacit
agreement or implied reservation vesting upon the sovereign the right to resume the
possession of the property whenever the public interest so requires it (US v. Certain
Lands in Highlands [DY NY] 48 F Supp 306).

The ubiquitous character of eminent domain is manifest in the nature of the

expropriation proceedings. Expropriation proceedings are not adversarial in the
conventional sense, for the condemning authority is not required to assert any
conflicting interest in the property. Thus, by filing the action, the condemnor in
effect merely serves notice that it is taking title and possession of the property, and
the defendant asserts title or interest in the property, not to prove a right to
possession, but to prove a right to compensation for the taking (US v. Certain Lands
in Highlands [DY NY] 48 F Supp 306; San Bernardino Valley Municipal Water District
v. Gage Canal Co. [4th Dist] Cal App 2d 206, 37 Cal Rptr 856).

Obviously, however, the power is not without its limits: first, the taking must
be for public use, and second, that just compensation must be given to the private
owner of the property (Sena v. Manila Railroad Co., 42 Phil. 102). These twin
proscriptions have their origin in the recognition of the necessity for achieving
balance between the State interests, on the one hand, and private rights, upon the
other hand, by effectively restraining the former and affording protection to the latter
(Visayan Refining Co. v. Camus, 40 Phil. 550). In determining “public use,” two
approaches are utilized – the first is public employment or the actual use by the
public, and the second is public advantage or benefit (Thornton Development
authority v. Upah [DC Colo] 640 F Supp 1071). It is also useful to view the matter as
being subject to constant growth, which is to say that as society advances, its
demands upon the individual so increases, and each demand is a new use to which
the resources of the individual may be devoted (Visayan Refining, supra)

Return of the Expropriated Property

In insisting on the return of the expropriated property, respondents would

exhort on the pronouncement in Provincial Government of Sorsogon v. Vda. De
Villaroya (153 SCRA 291) where the unpaid landowners were allowed the alternative
remedy of recovery of the property there in question. It might be borne in mind that
the case involved the municipal government of Sorsogon, to which the power of
eminent domain is not inherent, but merely delegated and of limited application. The
grant of the power of eminent domain to local governments under Republic Act No.
7160 (See Local Government Code of 1991) cannot be understood as being the
pervasive and all-encompassing power vested in the legislative branch of

38
government. For local governments to be able to wield the power, it must, by
enabling law, be delegated to it by the national legislature, but even then, this
delegated power of eminent domain is not, strictly speaking, a power of eminent, but
only of inferior, domain or only as broad or confined as the real authority would want
it to be (City of Manila v. Chinese Cemetery of Manila, 40 Phil. 349).

Thus, in Valdehueza v. Republic (17 SCRA 107) where the private landowners
had remained unpaid ten years after the termination of the expropriation
proceedings, this Court ruled –

“The points in dispute are whether such payment can still be made
and, if so, in what amount. Said lots have been the subject of expropriation
proceedings. By final and executory judgment in said proceedings, they were
condemned for public use, as part of an airport, and ordered sold to the
government. X x x It follows that both by virtue of the judgment, long final, in
the expropriation suit, as well as the annotations upon their title certificates,
plaintiffs are not entitled to recover possession of their expropriated lots –
which are still devoted to the public use for which they were expropriated –
but only to demand the fair market value of the same.

Said relief may be granted under plaintiffs’ prayer for: ‘such other
remedies, which may be deemed just and equitable under the premises’.” (At
p. 112)

The Court proceeded to reiterate its pronouncement in Alfonso v. Pasay City (106
Phil. 1017) where the recovery of possession of property taken for public use prayed
for by the unpaid landowner was denied even while no requisite expropriation
proceedings were first instituted. The landowner was merely given the relief of
recovering compensation for his property computed at its market value at the time it
was taken and appropriated by the State.

The judgment rendered by the Bulacan RTC in 1979 on the expropriation

proceedings provides not only for the payment of just compensation to herein
respondents but likewise adjudges the property condemned in favor of petitioner
over which parties, as well as their privies, are bound (Mines v. Canal Authority of the
State [Fla] 467 So2d 989, 10 FLW 230). Petitioner has occupied, utilized and, for all
intents and purposes, exercised dominion over the property pursuant to the
judgment. The exercise of such rights vested to it as the condemnee indeed has
amounted to at least a partial compliance or satisfaction of the 1979 judgment,
thereby preempting any claim of bar by prescription on grounds of non-execution. In
arguing for the return of their property on the basis of non-payment, respondents
ignore the fact that the right of the expropriatory authority is far from that of an
unpaid seller in ordinary sales, to which the remedy of rescission might perhaps
apply. An in rem proceeding, condemnation acts upon the property (Cadorette v. US
CCA [Mass] 988 F2d 215). After condemnation, the paramount title is in the public
under a new and independent title (Ibid.); thus, by giving notice to all claimants to a
disputed title, condemnation proceedings provide a judicial process for securing
better title against all the world than may be obtained by voluntary conveyance
(Ibid.).

Meaning of “Just Compensation”; “Interest” computation.

The constitutional limitation of “just compensation” is considered to be the

sum equivalent to the market value of the property, broadly described to be the price
fixed by the seller in open market in the usual and ordinary course of legal action and
competition or the fair value of the property as between one who receives, and one
who desires to sell, it fixed at the time of the actual taking by the government
(Manila Railway Co. v. Fabie, 17 Phil. 206). Thus, if property is taken for public use
before compensation is deposited with the court having jurisdiction over the case,
the final compensation must include interests on its just value to be computed from
the time the property is taken to the time when compensation is actually paid or
deposited with the court (Philippine Railway Co. v. Solon, 13 Phil. 34). In fine,
between the taking of the property and the actual payment, legal interests accrue in
order to place the owner in a position as good as (but not better than) the position he
was in before the taking occurred (Commissioner of Public Highways v. Burgos, 96
SCRA 831).

39
Joseph Ejercito Estrada v. Sandiganbayan [Third Division]
G.R. No. 148560, Nov. 19, 2001
En Banc [Bellosillo]

As concisely delineated by this Court during the oral arguments on 18

September 2001, the issues for resolution in the instant petition for certiorari are: (a)
The Plunder Law is unconstitutional for being vague; (b) The Plunder Law requires
less evidence for proving the predicate crimes of plunder and therefore violates the
rights of the accused to due process; and, (c) Whether Plunder as defined in RA 7080
is a malum prohibitum, and if so, whether it is within the power of Congress to so
classify it.

Presumption of Constitutionality of The Plunder Law (R.A. 7080, as

amended by RA 7659)

Preliminary, the whole gamut of legal concepts pertaining to the validity of

legislation is predicated on the basic principle that a legislative measure is presumed
to be in harmony with the Constitution (Lim v. Pacquing, et al., G.R. No. 115044, 27
January 1995, 240 SCRA 644). Courts invariably train their sights on this
fundamental rule whenever a legislative act is under a constitutional attack, for it is
the postulate of constitutional adjudication. This strong predilection for
constitutionality takes its bearings on the idea that it is forbidden for one branch of
the government to encroach upon the duties and powers of another. Thus it has
been said that the presumption is based on the deference the judicial branch accords
to its coordinate branch – the legislature.

If there is any reasonable basis upon which the legislation may firmly rest, the
courts must assume that the legislature is ever conscious of the borders and edges of
its plenary powers, and has passed the law with full knowledge of the facts and for
the purpose of promoting what is right and advancing the welfare of the majority.
Hence in determining whether the acts of the legislature are in tune with the
fundamental law, courts should proceed with judicial restraint and act with caution
and forbearance. Every intendment of the law must be adjudged by the courts in
favor of its constitutionality, invalidity being a measure of last resort. In construing
therefore the provisions of a statute, courts must first ascertain whether an
interpretation is fairly possible to sidestep the question of constitutionality.

In La Union Credit Cooperative, Inc. v. Yaranon (G.R. No. 87001, 4 December

1989, 179 SCRA 828) we held that as long as there is some basis for the decision of
the court, the constitutionality of the challenged law will not be touched and the case
will be decided on other available grounds. Yet the force of the presumption is not
sufficient to catapult a fundamentally deficient law into the safe environs of
constitutionality. Of course, where the law clearly and palpably transgresses the
hallowed domain of the organic law, it must be struck down on sight lest the positive
commands of the fundamental law be unduly eroded.

Verily, the onerous task of rebutting the presumption weighs heavily on the
party challenging the validity of the statute. He must demonstrate beyond any tinge
of doubt that there is indeed an infringement of the constitution, for absent such a
showing, there can be no finding of unconstitutionality. A doubt, even if well-
founded, will hardly suffice. As tersely put by Justice Malcolm, “To doubt is to
sustain.” (Yu Cong Eng v. Trinidad, 47 Phil. 385, 414 [1925]) And petitioner has
miserably failed in the instant case to discharge his burden and overcome the
presumption of constitutionality of the Plunder Law.

The Plunder Law is not vague.

As it is written, the Plunder Law contains ascertainable standards and well-

defined parameters which would enable the accused to determine the nature of his
violation. Section 2 is sufficiently explicit in its description of the acts, conduct and
conditions required or forbidden, and prescribes the elements of the crime with
reasonable certainty and particularity. X x x

As long as the law affords some comprehensible guide or rule that would
inform those who are subject to it what conduct would render them liable to its
penalties, its validity would be sustained. It must sufficiently guide the judge in its

40
application; the counsel, in defending one charged with its violation; and more
importantly, the accused, in identifying the realm of the proscribed conduct. Indeed,
it can be understood with little difficulty that what the assailed statute punishes is
the act of a public officer in amassing or accumulating ill-gotten wealth of at least
P50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par.
(d), of the Plunder Law.

In fact, the amended Information itself closely tracks the language of the law,
indicating with reasonable certainty the various elements of the offense which
petitioner is alleged to have committed x x x.

We discern nothing in the foregoing that is vague or ambiguous – as there is

obviously none – that will confuse petitioner in his defense. Although subject to
proof, these factual assertions clearly show that the elements of the crime are easily
understood and provide adequate contrast between the innocent and the prohibited
acts. Upon such unequivocal assertions, petitioner is completely informed of the
accusations against him as to enable him to prepare for an intelligent defense.

Petitioner, however, bewails the failure of the law to provide for the statutory
definition of the terms “combination” and “series” in the key phrase “a combination
or series of overt or criminal acts” found in Sec. 1, par. (d), and Sec. 2, and the word
“pattern” in Sec. 4. These omissions, according to petitioner, render the Plunder Law
unconstitutional for being impermissibly vague and overbroad and deny him the right
to be informed of the nature and cause of the accusation against him, hence,
violative of his fundamental right to due process.

The rationalization seems to us to be pure sophistry. A statute is not rendered

uncertain and void merely because general terms are used therein, or because of the
employment of terms without defining them (82 C.J.S. 68, P. 113; People v. Ring, 70
P.2d 281, 26 Cal. App. 2d Supp. 768); much less do we have to define every word we
use. Besides, there is no positive constitutional or statutory command requiring the
legislature to define each and every word in an enactment. Congress is not
restricted in the form of expression of its will, and its inability to so define the words
employed in a statute will not necessarily result in the vagueness or ambiguity of the
law so long as the legislative will is clear, or at least, can be gathered from the whole
act, which is distinctly expressed in the Plunder Law.

Moreover, it is a well-settled principle of legal hermeneutics that words of a

statute will be interpreted in their natural, plain and ordinary acceptation and
signification (Mustang Lumber, Inc. v. Court of Appeals, G.R. No. 104988, 18 June
1965, 257 SCRA 430, 448), unless it is evident that the legislature intended a
technical or special legal meaning to those words (PLDT v. Eastern
Telecommunications Phil., Inc., G.R. No. 943774, 27 August 1992, 213 SCRA 16, 26).
The intention of the lawmakers – who are, ordinarily, untrained philologists and
lexicographers – to use statutory phraseology in such a manner is always presumed.
Thus, Webster’s New Collegiate Dictionary contains the following commonly accepted
definition of the words “combination” and “series.”

Combination – the result or product of combining; the act or process of

combining. To combine is to bring into such close relationship as to obscure
individual characters.

Series – a number of things or events of the same class coming one

after another in spatial and temporal succession.

That Congress intended the words “combination” and “series” to be

understood in their popular meanings is pristinely evident from the legislative
deliberations on the bill which eventually became RA 7080 or the Plunder Law x x x.

Xxx

Thus when the Plunder Law speaks of “combination,” it is referring to at least

two (2) acts falling under different categories or enumeration provided in Sec. 1, par.
(d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar. (1), and fraudulent
conveyance of assets belonging to the National Government under Sec. 1, par. (d),
subpar. (3).

41
 On the other hand, to constitute a “series” there must be two (2) or more
overt or criminal acts falling under the same category of enumeration found in Sec. 1,
par. (d), say, misappropriation, malversation and raids on the public treasury, all of
which fall under Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a
technical or distinctive meaning for “combination” and “series,” it would have taken
greater pains in specifically providing for it in the law.

As for “pattern,” we agree with the observations of the Sandiganbayan that

this term is sufficiently defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 –

x x x under Sec. 1 (d) of the law, a ‘pattern’ consists of at least a

combination or series of overt or criminal acts enumerated in
subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the
law, the pattern of overt or criminal acts is directed towards a common
purpose or goal which is to enable the public officer to amass,
accumulate or acquire ill-gotten wealth. And thirdly, there must either
be an ‘overall unlawful scheme’ or ‘conspiracy’ to achieve said common
goal. As commonly understood, the term ‘overall unlawful scheme’ indicates
a ‘general plan of action or method’ which the principal accused and public
officer and others conniving with him follow to achieve the aforesaid common
goal. In the alternative, if there is no such overall scheme or where the
schemes or methods used by multiple accused vary, the overt or criminal acts
must form part of a conspiracy to attain a common goal.

The “Void-for-Vagueness” Doctrine

Hence, it cannot plausibly be contended that the law does not give a fair
warning and sufficient notice of what it seeks to penalize. Under the circumstances,
petitioner’s reliance on the “void-for-vagueness” doctrine is manifestly misplaced.
The doctrine has been formulated in various ways, but is commonly stated to the
effect that a statute establishing a criminal offense must define the offense with
sufficient definiteness that persons of ordinary intelligence can understand what
conduct is prohibited by the statute. It can only be invoked against that specie of
legislation that is utterly vague on its face, i.e., that which cannot be clarified either
by a saving clause or by construction.

A statute or act may be said to be vague when it lacks comprehensible

standards that men of common intelligence must necessarily guess at its meaning
and differ in its application. In such instance, the statute is repugnant to the
Constitution in two (2) respects – it violated due process for failure to accord persons,
especially the parties targeted by it, fair notice of what conduct to avoid; and, it
leaves law enforcers unbridled discretion in carrying out its provisions and becomes
an arbitrary flexing of the Government muscle (See People v. Nazario, No. L-44143,
31 August 1988, 165 SCRA 186, 195-196). But the doctrine does not apply as against
legislations that are merely couched in imprecise language but which nonetheless
specify a standard though defectively phrased; or to those that are apparently
ambiguous yet fairly applicable to certain types of activities. The first may be
“saved” by proper construction, while no challenge may be mounted as against the
second whenever directed against such activities (Ibid.) With more reason, the
doctrine cannot be invoked where the assailed statute is clear and free from
ambiguity, as in this case.

The test in determining whether a criminal statute is void for uncertainty is

whether the language conveys a sufficiently definite warning as to the proscribed
conduct when measured by common understanding and practice (State v. Hill, 189
Kan 403, 369 P2d 365, 91 ALR 2d 750). It must be stressed, however, that the
“vagueness” doctrine merely requires a reasonable degree of certainty for the
statute to be upheld – not absolute precision or mathematical exactitude, as
petitioner seems to suggest. Flexibility, rather than meticulous specificity, is
permissible as long as the metes and bounds of the statute are clearly delineated.
An act will not be held invalid merely because it might have been more explicit in its
wordings or detailed in its provisions, especially where, because of the nature of the
act, it would be impossible to provide all the details in advance as in all other
statutes.

42
 Moreover, we agree with, hence we adopt, the observations of Mr. Justice
Vicente V. Mendoza during the deliberations of the Court that the allegations that the
Plunder Law is vague and overbroad do not justify a facial review of its validity –

The void-for-vagueness doctrine states that “a statute which either

forbids or requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its
application violates the first essential of due process of law.” (Connally v.
General Constr. Co., 269 U.S. 385, 391, 70 L. Ed. 328 [1926] cited in Ermita-
Malate Hotel and Motel Operators Ass’n. v. City Mayor, 20 SCRA 849, 867
[1967]) The overbreadth doctrine, on the other hand, decrees that “a
governmental purpose may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms.”
(NAACP v. Alabama, 377 U.S. 288, 307, 12, 2 L. Ed 325, 338 [1958]; Shelton v.
Tucker, 364 U.S. 479, 5 L. Ed. 2d 231 [1960])

A facial challenge is allowed to be made to a vague statute and to one

which is overbroad because of possible “chilling effect” upon protected
speech. The theory is that “[w]hen statutes regulate or proscribe speech and
no readily apparent construction suggests itself as a vehicle for rehabilitating
the statutes in a single prosecution, the transcendent value to all society of
constitutionally protected expression is deemed to justify allowing attacks on
overly broad statutes with no requirement that the person making the attack
demonstrate that his own conduct could not be regulated by a statute drawn
with narrow specificity.” (Gooding v. Wilson, 405 U.S. 518, 521, 31 L. Ed. 2d
408, 413 [1972] [internal quotation marks omitted]) The possible harm to
society in permitting some unprotected speed to go unpunished is outweighed
by the possibility that the protected speech of others may be deterred and
perceived grievances left to fester because of possible inhibitory effects of
overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may well be prevented
from enacting laws against socially harmful conduct. In the area of criminal
law, the law cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrine then have special application

only to free speech cases. They are inapt for testing the validity of penal
statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice
Rehnquist, “we have not recognized an ‘overbreadth’ doctrine outside the
limited context of the First Amendment.” In Broadwick v. Oklahoma (413 U.S.
601, 612-613, 37 L Ed. 2d 830, 840-841 [1973]), the Court ruled that “claims
of facial overbreadth have been entertained in cases involving statutes which,
by their terms, seek to regulate only spoken words” and, again, that
“overbreadth claims, if entertained at all, have been curtailed when invoked
against ordinary criminal laws that are sought to be applied to protected
conduct.” For this reason, it has been held that “a facial challenge to a
legislative act is the most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists under which the
Act would be valid.” (United States v. Salerno, supra.) As for the vagueness
doctrine, it is said that a litigant may challenge a statute on its face only if it is
vague in all its possible applications. “A plaintiff who engages in some
conduct that is clearly proscribed cannot complain of the vagueness of the law
as applied to the conduct of others.” (Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L Ed. 2d 362, 369 [1982])

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness

are analytical tools developed for testing “on their faces” statutes in free
speech cases or, as they are called in American law, First Amendment cases.
They cannot be made to do service when what is involved is a criminal
statute. With respect to such statute, the established rule is that “one to
whom application of a statute is constitutional will not be heard to attack the
statute on the ground that impliedly it might also be taken as applying to
other persons or other situations in which its application might be
unconstitutional.” (United States v. Raines, 362 U.S. 17, 21, 4 L. Ed. 2d 524,
529 [1960]. The paradigmatic case is Yazoo & Mississippi Valley RR. v.

43
 Jackson Vinegar Co., 226 U.S. 217, 57 l. Ed. 193 [1912]) As has been pointed
out, “vagueness challenges in the First Amendment context, like overbreadth
challenges typically produce facial invalidation, while statutes found to be
vague as a matter of due process typically are invalidated [only] ‘as applied’
to a particular defendant.” (G. Gunther & K. Sullivan, Constitutional Law 1299
[2001]) Consequently, there is no basis for petitioner’s claim that this Court
review the Anti-Plunder Law on its face and in its entirety.

Indeed, “on its face” invalidation of statutes results in striking them

down entirely on the ground that they might be applied to parties not before
the Court whose activities are constitutionally protected (Id. at 1328). It
constitutes a departure from the case and controversy requirement of the
Constitution and permits decisions to be made without concrete factual
settings and in sterile abstract contexts (Constitution, Art. VIII, Sections 1 and
5. Compare Angara v. Electoral Commission, 63 Phil. 139, 158 [1936]). But,
as the U.S. Supreme Court pointed out in Younger v. Harris (401 U.S. 37, 52-
53, 27 L. Ed. 2d 669, 680 [1971]; others omitted.)

[T]he task of analyzing a proposed statute, pinpointing its

deficiencies, and requiring correction of these deficiencies before the
statute is put into effect, is rarely if ever an appropriate task for the
judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought,
and above all the speculative and amorphous nature of the required
line-by-line analysis of detailed statutes, x x x ordinarily results in a
kind of case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided.

For these reasons, “on its face” invalidation of statutes has been described as
“manifestly strong medicine,” to be employed “sparingly and only as a last
resort,” (Broadwick v. Oklahoma, 413 U.S. at 613, 37 L.Ed.2d at 841; National
Endowment for the Arts v. Finley, 524 U.S. 569, 580 [1998]) and is generally
disfavored (FW/PBS, Inc. v. City of Dallas, 493 U.S. 223, 107 L.Ed.2d 603
[1990]; Cruz v. Secretary of Environment and Natural Resources, G.R. No.
135385, 6 December 2000 [Mendoza, J., Separate Opinion]). In determining
the constitutionality of a statute, therefore, its provisions which are alleged to
have been violated in a case must be examined in the light of the conduct
with which the defendant is charged (United States v. National Dairy Prod.
Corp., 372 U.S. 29, 32-33, 9 L.Ed.2d 561, 565-6 [1963]).

In light of the foregoing disquisition, it is evident that the purported ambiguity

of the Plunder Law, so tenaciously claimed and argued at length by petitioner, is
more imagined than real. Ambiguity, where none exists, cannot be created by
dissecting parts and words in the statute to furnish support to critics who cavil at the
want of scientific precision in the law. Every provision of the law should be construed
in relation and with reference to every other part. To be sure, it will take more than
nitpicking to overturn the well-entrenched presumption of constitutionality and
validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance of what the
Plunder Law is all about. Being one of the Senators who voted for its passage,
petitioner must be aware that the law was extensively deliberated upon by the
Senate and its appropriate committees by reason of which he even registered his
affirmative vote with full knowledge of its legal implications and sound constitutional
anchorage.

Xxx

Criminal Due Process; The Right to be Presumed Innocent

On the second issue, petitioner advances the highly stretched theory that Sec.
4 of the Plunder Law circumvents the immutable obligation of the prosecution to
prove beyond reasonable doubt the predicate acts constituting the crime of plunder
when it requires only proof of a pattern of overt or criminal acts showing unlawful
scheme or conspiracy –

SEC. 4. Rule of Evidence – For purposes of establishing the crime of

plunder, it shall not be necessary to proven each and every criminal act done
by the accused in furtherance of the scheme or conspiracy to amass,

44
 accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond
reasonable doubt a pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy.

The running fault in this reasoning is obvious even to the simplistic mind. In a
criminal prosecution for plunder, as in all other crimes, the accused has always in his
favor the presumption of innocence which is guaranteed by the Bill of Rights, and
unless the State succeeds in demonstrating by proof beyond reasonable doubt that
culpability lies, the accused is entitled to an acquittal (People v. Ganguso, G.R. No.
115430, 23 November 1995, 250 SCRA 268, 274-275). The use of the “reasonable
doubt” standard is indispensable to command the respect and confidence of the
community in the application of criminal law. It is critical that the moral force of
criminal law be not diluted by a standard of proof that leaves people in doubt
whether innocent men are being condemned. It is also important in our free society
that every individual going about his ordinary affairs has confidence that his
government cannot adjudge him guilty of a criminal offense without convincing a
proper factfinder of his guilt with utmost certainty. This “reasonable doubt” standard
has acquired such exalted stature in the realm of constitutional law as it gives life to
the Due Process Clause which protects the accused against conviction except upon
proof beyond reasonable doubt of every fact necessary to constitute the crime with
which he is charged (People v. Garcia, G.R. No. 94187, 4 November 1992, 215 SCRA
349, 360). The following exchanges between Rep. Rodolfo Albano and Rep. Pablo
Garcia on this score during the deliberations in the floor of the House of
Representatives are elucidating x x x.

Xxx

It is thus plain from the foregoing that the legislature did not in any manner
refashion the standard quantum of proof in the crime of plunder. The burden still
remains with the prosecution to prove beyond any iota of doubt every fact or
element necessary to constitute the crime.

The thesis that Sec. 4 does away with proof of each and every component of
the crime suffers from a dismal misconception of the import of that provision. What
the prosecution needs to prove beyond reasonable doubt is only a number of acts
sufficient to form a combination or series which would constitute a pattern and
involving an amount of at least P50,000,000.00. There is no need to prove each and
every other act alleged in the Information to have been committed by the accused in
furtherance of the overall unlawful scheme or conspiracy to amass, accumulate or
acquire ill-gotten wealth. To illustrate, supposing that the accused is charged in an
Information for plunder with having committed fifty (50) raids on the public treasury.
The prosecution need not prove all these fifty (50) raids, it being sufficient to prove
by pattern at least two (2) of the raids beyond reasonable doubt provided only that
they amounted to at least P50,000,000.00.

A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical

conclusion that “pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy” inheres in the very acts of accumulating, acquiring or
amassing hidden wealth. Stated otherwise, such pattern arises where the
prosecution is able to prove beyond reasonable doubt the predicate acts as defined
in Sec. 1, par. (d). Pattern is merely a by-product of the proof of the predicate acts.
This conclusion is consistent with reason and common sense. There would be no
other explanation for a combination or series of overt or criminal acts to stash
P50,000,000.00 or more, than “a scheme or conspiracy to amass, accumulate or
acquire ill gotten wealth.” The prosecution is therefore not required to make a
deliberate and conscious effort to prove pattern as it necessarily follows with the
establishment of a series or combination of the predicate acts.

Relative to petitioner’s contentions on the purported defect of Sec. 4 is his

submission that “pattern” is “a very important element of the crime of plunder,” and
that Sec. 4 is “two pronged, (as) it contains a rule of evidence and a substantive
element of the crime,” such that without it the accused cannot be convicted of
plunder x x x.

We do not subscribe to petitioner’s stand. Primarily, all the essential elements

of plunder can be culled and understood from its definition in Sec. 2, in relation to

45
Sec. 1, par. (d), and “pattern” is not one of them. Moreover, the epigraph and
opening clause of Sec. 4 is clear and unequivocal:

SEC 4. Rule of Evidence. – For purposes of establishing the crime of

plunder x x x.

It purports to do no more than prescribe a rule of procedure for the

prosecution of a criminal case for plunder. Being a purely procedural measure, Sec.
4 does not define or establish any substantive right in favor of the accused but only
operates in furtherance of a remedy. It is only a means to an end, an aid to
substantive law. Indubitably, even without invoking Sec. 4, a conviction for plunder
may be had, for what is crucial for the prosecution is to present sufficient evidence to
engender that moral certitude exacted by the fundamental law to prove the guilt of
the accused beyond reasonable doubt. Thus, even granting for the sake argument
that Sec. 4 is flawed and vitiated for the reasons advanced by petitioner, it may
simply be severed from the rest of the provisions without necessarily resulting in the
demise of the law; after all, the existing rules on evidence can supplant Sec. 4 more
than enough. Besides Sec. 7 of RA 7080 provides for a separability clause x x x.

Implicit in the foregoing section is that to avoid the whole act from being
declared invalid as a result of the nullity of some of its provisions, assuming that to
be the case although it is not really so, all the provisions thereof should accordingly
be treated independently of each other, especially if by doing so, the objectives of
the statute can best be achieved.

Dissenting Opinion
Justice Santiago M. Kapunan
(Internal citations omitted)

On the Rule of Law and Due Process

The primary duty of the Court is to render justice. The resolution of the issues
brought before it must be grounded on law, justice and the basic tenets of due
process, unswayed by the passion of the day or the clamor of the multitudes, guided
only by its members’ honest conscience, clean hearts and their unsullied conviction
to do what is right under the law.

The issues posed by the instant petition are quite difficult. The task of the
Court to resolve the same is made more daunting because the case involves a former
President of the Republic who, in the eyes of certain sectors of society, deserves to
be punished. But the mandate of the Court is to decide these issues solely on the
basis of law and due process, and regardless of the personalities involved. For
indeed, the rule of law and the right to due process are immutable principles that
should apply to all, even to those we hate. As Fr. Joaquin G. Bernas, S.J., a noted
constitutionalist, aptly puts it –

x x x the greater disaster would be if the Supreme Court should heed the
clamor for conviction and convict Estrada even under an unconstitutional law
but of the belief that Estrada deserves to be punished. That would be
tantamount to a rule of men and not of law (Joaquin G. Bernas, S.J., Prejudging
the Supreme Court, in his column “Sounding Board”, Today, September 26,
2001, p. 6)

xxx

I believe there is merit in the petition.

A penal statute which violates constitutional guarantees of individual

rights is void.

Every law enacted by Congress enjoys a presumption of constitutionality, and

the presumption prevails in the absence of contrary evidence. A criminal statute is
generally valid if it does not violate constitutional guarantees of individual rights.
Conversely, when a constitutionally protected right of an individual is in
danger of being trampled upon by a criminal statute, such law must be
struck down for being void.

46
 One of the fundamental requirements imposed by the Constitution upon
criminal statutes is that pertaining to clarity and definiteness. Statutes, particularly
penal laws, that fall short of this requirement have been declared unconstitutional for
being vague. This “void-for-vagueness” doctrine is rooted in the basic concept of
fairness as well as the due process clause of the Constitution.

The Constitution guarantees both substantive and procedural due process as

well as the right of the accused to be informed of the nature and cause of the
accusation against him. A criminal statute should not be so vague and uncertain that
“men of common intelligence must necessarily guess as to its meaning and differ as
to its application.”

There are three distinct considerations for the vagueness doctrine. First, the
doctrine is designed to ensure that individuals are properly warned ex ante of the
criminal consequence of their conduct. This “fair notice” rationale was articulated in
United States v. Harris (3457 U.S. 612 [1954]):

The constitutional requirement of definiteness is violated by a criminal

statute that fails to give a person of ordinary intelligence fair notice that his
contemplated conduct is forbidden by the statute. The underlying principle is
that no man shall be held criminally responsible for conduct which he could
not reasonably understand to be proscribed (Id., at 617)

Second, and viewed as more important, the doctrine is intended to prevent

arbitrary and discriminatory law enforcement. Vague laws are invariably
“standardless” and as such, they afford too great an opportunity for criminal
enforcement to be left to the unfettered discretion of police officers and prosecutors.
Third, vague laws fail to provide sufficient guidance to judges who are charged with
interpreting statutes. Where a statute is too vague to provide sufficient guidance,
the judiciary is arguably placed in the position of usurping the proper function of the
legislature by “making the law” rather than interpreting it.

While the dictum that laws be clear and definite does not require Congress to
spell out with mathematical certainty the standards to which an individual must
conform his conduct, it is necessary that statutes provide reasonable standards to
guide prospective conduct. And where a statute imposes criminal sanctions,
the standard of certainty is higher. The penalty imposable on the person found
guilty of violating R.A. No. 7080 is reclusion perpetua to death. Given such penalty,
the standard of clarity and definiteness required of R.A. No. 7080 is unarguably
higher than that of other laws.

Void-for-vagueness doctrine applies to criminal laws.

A view has been proffered that “vagueness and overbreadth doctrines are not
applicable to penal laws.” These two concepts, while related, are distinct from each
other. On one hand, the doctrine of overbreadth applies generally to statutes that
infringe upon freedom of speech. On the other hand, the “void-for-vagueness”
doctrine applies to criminal laws, not merely those that regulate speech or other
fundamental constitutional rights. The fact that a particular criminal statute does not
infringe upon free speech does not mean that a facial challenge to the statute on
vagueness grounds cannot succeed.

Development Bank of the Philippines v. Commission on Audit

373 SCRA 356, January 16, 2002
En Banc [Carpio]

X x x This petition raises a question of first impression, whether or not the

constitutional power of the COA to examine and audit the DBP is exclusive and
precludes a concurrent audit of the DBP by a private external auditor.

Xxx

The resolution of the primordial issue of whether or not the COA has the sole
and exclusive power to examine and audit government banks involves an
interpretation of Section 2, Article IX-D of the 1987 Constitution. This Section
provides as follows:

47
 “Sec. 2. (1) The Commission on Audit shall have the power, authority,
and duty to examine, audit, and settle all accounts pertaining to the revenue
and receipts of, and expenditures or uses of funds and property, owned and
held in trust by, or pertaining to, the Government, or any of its subdivisions,
agencies, or instrumentalities, including government-owned or controlled
corporations with original charters, x x x.

“(2) The Commission shall have the exclusive authority, subject to the
limitations in this Article, to define the scope of its audit and examination,
establish the techniques and methods required therefore, and promulgate
accounting and auditing rules and regulations, including those for the
prevention and disallowance of irregular, unnecessary, excessive,
extravagant, or unconscionable expenditures, or uses of government funds
and properties.” (Emphasis supplied)

The COA vigorously asserts that under the first paragraph of Section 2, the
COA enjoys the sole and exclusive power to examine and audit all government
agencies, including the DBP. The COA contends this is similar to its sole and
exclusive authority, under the same paragraph of the same section, to define the
scope of its audit, promulgate auditing rules and regulations, including rules on the
disallowance of unnecessary expenditures of government agencies. The bare
language of Section 2, however, shows that the COA’s power under the first
paragraph is not declared exclusive, while its authority under the second paragraph
is expressly declared “exclusive.” There is a significant reason for this marked
difference in language.

During the deliberations of the Constitutional Commission, Commissioner

Serafin Guingona proposed the addition of the word “exclusive” in the first paragraph
of Section 2, thereby granting the COA the sole and exclusive power to examine and
audit all government agencies. However, the Constitutional Commission rejected the
addition of the word “exclusive” in the first paragraph of Section 2 and Guingona was
forced to withdraw his proposal. X x x.

Xxx

In sharp contrast, the Constitutional Commission placed the word “exclusive”

to qualify the authority of the COA under the second paragraph of the same Section
2. This word “exclusive” did not appear in the counterpart provisions of Section 2 in
the 1935 and 1973 Constitutions. There is no dispute that the COA’s authority under
the second paragraph of Section 2 is exclusive as the language of the Constitution
admits of no other meaning. Thus, the COA has the exclusive authority to decide on
disallowances of unnecessary government expenditures. Other government
agencies and their officials, as well as private auditors engaged by them, cannot in
any way intrude into this exclusive function of the COA.

The qualifying word “exclusive” in the second paragraph of Section 2 cannot

be applied to the first paragraph which is another sub-section of Section 2. A
qualifying word is intended to refer only to the phrase to which it is immediately
associated, and not to a phrase distantly located in another paragraph or sub-section
(Felipe v. De la Cruz, 99 Phil. 940 [1956]; Tirona v. Cudiamat, 14 SCRA 264 [1965]).
Thus, the first paragraph of Section 2 must be read the way it appears, without the
word “exclusive,” signifying that non-COA auditors can also examine and audit
government agencies. Besides, the framers of the Constitution intentionally omitted
the word “exclusive” in the first paragraph of Section 2 precisely to allow concurrent
audit by private external auditors.

The clear and unmistakable conclusion from a reading of the entire Section 2
is that the COA’s power to examine and audit is non-exclusive. On the other hand,
the COA’s authority to define the scope of its audit, promulgate auditing rules and
regulations, and disallow unnecessary expenditures is exclusive.

Moreover, as the constitutionally-mandated auditor of all government

agencies, the COA’s findings and conclusions necessarily prevail over those of private
auditors, at least insofar as government agencies and officials are concerned. The
superiority or preponderance of the COA audit over private audit can be gleaned
from the records of the Constitutional Commission x x x. The findings and

48
conclusions of the private auditor may guide private investors or creditors who
require such private audit. Government agencies and officials, however, remain
bound by the findings and conclusions of the COA, whether the matter falls under the
first or second paragraph of Section 2, unless of course such findings and conclusions
are modified or reversed by the courts.

The power of the COA to examine and audit government agencies, while non-
exclusive, cannot be taken away from the COA. Section 3, Article IX-C of the
Constitution mandates that:

“Sec. 3. No law shall be passed exempting any entity of the

Government or its subsidiary in any guise whatsoever, or any investment of
public funds, from the jurisdiction of the Commission on Audit.”

The mere fact that private auditors may audit government agencies does not divest
the COA of its power to examine and audit the same government agencies. The COA
is neither by-passed nor ignored since even with a private audit the COA will still
conduct its usual examination and audit, and its findings and conclusions will still
bind government agencies and their officials. A concurrent private audit poses no
danger whatsoever of public funds or assets escaping the usual scrutiny of a COA
audit.

Manifestly, the express language of the Constitution, and the clear intent of its
framers, point to only one indubitable conclusion – the COA does not have the
exclusive power to examine and audit government agencies. The framers of the
Constitution were fully aware of the need to allow independent private audit of
certain government agencies in addition to the COA audit, as when there is a private
investment in a government-controlled corporation, or when a government
corporation is privatized or publicly listed, or as in the case at bar when the
government borrows money from abroad.

In these instances the government enters the marketplace and competes with
the rest of the world in attracting investments or loans. To succeed, the government
must abide with the reasonable business practices of the marketplace. Otherwise no
investor or creditor will do business with the government, frustrating government
efforts to attract investments or secure loans that may be critical to stimulate
moribund industries or resuscitate a badly shattered national economy as in the case
at bar. By design the Constitution is flexible enough to meet these exigencies. Any
attempt to nullify this flexibility in the instances mentioned, or in similar instances,
will be ultra vires, in the absence of a statute limiting or removing such flexibility.

The deliberations of the Constitutional Commission reveal eloquently the

intent of Section 2, Article IX-D of the Constitution. As this Court has ruled
repeatedly, the intent of the law is the controlling factor in the interpretation of the
law (People v. Purisima, 86 SCRA 542 [1978]; others omitted). If a law needs
interpretation, the most dominant influence is the intent of the law (De Jesus v. City
of Manila, 29 Phil. 73 [1914]). The intent of the law is that which is expressed in the
words of the law, which should be discovered within its four corners aided, if
necessary, by its legislative history (Manila Lodge No. 761 v. Court of Appeals, 73
SCRA 162 [1976]). In the case of Section 2, Article IX-D of the Constitution, the intent
of the framers of the Constitution is evident from the bare language of Section 2
itself. The deliberations of the Constitutional Commission confirm expressly and
even elucidate further this intent beyond any doubt whatsoever.

There is another constitutional barrier to the COA’s insistence of exclusive

power to examine and audit all government agencies. The COA’s claim clashes
directly with the Central Bank’s constitutional power of “supervision” over banks
under Section 20, Article XII of the Constitution. X x x

Historically, the Central Bank has been conducting periodic and special
examination and audit of banks to determine the soundness of their operations and
the safety of the deposits of the public. Undeniably, the Central Bank’s power of
“supervision” includes the power to examine and audit banks, as the banking laws
have always recognized this power of the Central Bank. Hence, the COA’s power to
examine and audit government banks must be reconciled with the Central Bank’s
power to supervise the same banks. The inevitable conclusion is that the COA and

49
the Central Bank have concurrent jurisdiction, under the Constitution, to examine and
audit government banks.

However, despite the Central Bank’s concurrent jurisdiction over government

banks, the COA’s audit still prevails over that of the Central Bank since the COA is the
constitutionally mandated auditor of government banks. And in matters falling under
the second paragraph of Section 2, Article IX-D of the Constitution, the COA’s
jurisdiction is exclusive. Thus, the Central Bank is devoid of authority to allow or
disallow expenditures of government banks since this function belongs exclusively to
the COA.

Second Issue: Statutes Prohibiting or Authorizing Private Auditors

The COA argues that Sections 26, 31 and 32 of PD No. 1445, otherwise known
as the Government Auditing Code of the Philippines, prohibit the hiring of private
auditors by government agencies. X x x

Section 26 defines the extent and scope of the powers of the COA.
Considering the comprehensive definition in Section 26, the COA’s jurisdiction covers
all government agencies, offices, bureaus and units, including government-owned or
controlled corporations, ad even non-government entities enjoying subsidy from the
government. However, there is nothing in Section 26 that states, expressly or
impliedly, that the COA’s power to examine and audit government banks is exclusive,
thereby preventing private audit of government agencies concurrently with the COA
audit.

Section 26 is a definition of the COA’s “general jurisdiction.” Jurisdiction may

be exclusive or concurrent. Section 26 of PD No. 1445 does not state that the COA’s
jurisdiction is exclusive, and there are other laws providing for concurrent
jurisdiction. Thus, Section 26 must be applied in harmony with Section 58
(previously, Section 6-D of the General Banking Act [RA No. 337]) of the General
Banking Law of 2000 (RA No. 8791) which authorizes unequivocally the Monetary
Board to require banks to hire independent auditors. X x x

Moreover, Section 26 must also be applied in conformity with Sections 25 and

28 (Previously, Sections 25 and 28 of the Central Bank Act [RA No. 265]) od the New
Central Bank Act (RA No. 7653) which authorize expressly the Monetary Board to
conduct periodic or special examination of all banks. X x x

The power vested in the Monetary Board under Section 58 of the General
Banking Law of 2000, and Sections 25 and 28 of the New Central Bank Act, emanates
from the Central Bank’s explicit constitutional mandate to exercise “supervision over
the operations of banks.” X x x

Clearly, under existing laws, the COA does not have the sole and exclusive
power to examine and audit government banks. The Central Bank has concurrent
jurisdiction to examine and audit, or cause the examination and audit, of government
banks.

Section 31 of PD No. 1445, another provision of law claimed by the COA to

prohibit the hiring of private auditors by government agencies, provides as follows x
x x. According to the COA, Section 31 is the maximum extent that private auditors
can participate in auditing government agencies and anything beyond this is without
legal basis. Hence, the COA maintains that the hiring of private auditors who act in
their own name and operate independently of the COA is unlawful.

Section 31 is bereft of any language that prohibits, expressly or impliedly, the

hiring of private auditors by government agencies. This provision of law merely
grants authority to the COA to hire and deputize private auditors to assist the COA in
the auditing of government agencies. Such private auditors operate under the
authority of the COA. By no stretch of statutory construction can this provision be
interpreted as an absolute statutory ban on the hiring of private auditors by
government agencies. Evidently, the language of the law does not support the COA’s
claim.

50
 Moreover, the COA further contends that Section 32 of PD No. 1445 is another
provision of law that prohibits the hiring of private auditors by government agencies.
Xxx

Section 32 refers to contracts for studies and services “relating to government

auditing” which the COA may or may not want to undertake itself for a government
agency. Stated another way, Section 32 speaks of studies and services that the COA
may choose not to render to a government agency. Obviously, the subject of these
contracts is not the audit itself of a government agency because the COA is
compelled to undertake such audit and cannot choose not to conduct such audit.
The Constitution and existing law mandate the COA to audit all government agencies.
Section 2, Article IX-D of the Constitution commands that the COA “shall have the x x
x duty to examine, audit, and settle all accounts” of government agencies (Emphasis
supplied). Similarly, the Revised Administrative Code of 1987 directs that the
“Commission on Audit shall have the x x x duty to examine, audit, and settle all
accounts” of government agencies (Emphasis supplied). Hence, the COA cannot
refuse to audit government agencies under any circumstance.

The subject of the contracts referred to in Section 32 is necessarily limited to

studies, seminars, workshops, researches and other services on government auditing
which the COA may or may not undertake at its discretion, thereby excluding the
audit itself of government agencies. Since the COA personnel have the experience
on government auditing and are in fact the experts on this subject, it is only proper
for the COA to be granted the right of first refusal to undertake such services if
required by government agencies. This is what Section 32 is all about and nothing
more. Plainly, there is nothing in Section 32 which prohibits the hiring of private
auditors to audit government agencies concurrently with the COA audit.

On the other hand, the DBP cites Central Bank Circular No. 1124 as legal basis
for hiring a private auditor. This Circular amended Subsection 1165.5 (Book I) of the
Manual of Regulations for Banks and other Financial Intermediaries to require “[E]ach
bank, whether government-owned or controlled or private, x x x (to) cause an annual
financial audit to be conducted by an external auditor x x x.” Moreover, the Circular
states that the “audit of a government-owned or controlled bank by an external
independent auditor shall be in addition to and without prejudice to that conducted
by the Commission on Audit in the discharge of its mandate under existing law.”
Furthermore, the Circular provides that the “requirement for an annual audit by an
external independent auditor shall extend to specialized and unique government
banks such as the Land Bank of the Philippines and the Development Bank of the
Philippines.”

The Central Bank promulgated Circular No. 1124 on December 5, 1986

pursuant to its power under the Freedom Constitution, the fundamental law then in
force, as well as pursuant to its general rule making authority under the General
Banking Act (RA No. 337), the banking law then in effect at that time. Under the
Freedom Constitution, the Central Bank exercised supervisory authority over the
banking system. Section 14, Article XV of the 1973 Constitution, which was re-
adopted in the Freedom constitution, provides x x x. Section 6-D of the General
Banking Act (RA No. 337) vested the Monetary Board with the specific power to
“require a bank to engage the services of an independent auditor to be chosen by
the bank concerned from a list of certified public accountants acceptable to the
Monetary Board.”

The 1987 Constitution created an independent central monetary authority

with substantially the same powers as the Central Bank under the 1973 Constitution
and the Freedom Constitution. Section 20, Article XII of the 1987 Constitution
provides that the Monetary Board “shall have supervision over the operations of
banks.” The specific power of the Central Bank under the General Banking Act (RA
No. 337) to require an independent audit of banks was re-enacted in Section 58 of
the General Banking Law of 2000 (RA No. 8791).

Indubitably, the Central Bank had the express constitutional and statutory
power to promulgate Circular No. 1124 on December 5, 1986. The power granted to
the Central Bank to issue Circular No. 1124 with respect to the independent audit of
banks is direct, unambiguous, and beyond dispute. The Bangko Sentral ng Pilipinas,
which succeeded the Central Bank, retained under the 1987 Constitution and the
General Banking Law of 2000 (RA No. 8791) the same constitutional and statutory

51
power of the Central Bank had under the Freedom Constitution and the General
Banking Act (RA No. 337) with respect to the independent audit of banks.

Circular No. 1124 has the force and effect of law. In a long line of decisions
(Banco Filipino Savings & Mortgage Bank v.Navarro, 152 SCRA 346 [1987]; others
omitted), this Court has held consistently that the rules and regulations issued by the
Central Bank pursuant to its supervisory and regulatory powers have the force and
effect of law. The DBP, being a bank under the constitutional and statutory
supervision of the Central Bank, was under a clear legal obligation to comply with the
requirement of Circular No. 1124 on the private audit of banks. Refusal by the DBP
to comply with the Circular would have rendered the DBP and its officers liable to the
penal provisions of the General Banking Act (Section 87 of RA No. 337), as well as the
administrative and penal sanctions under the Central Bank Act (Section 34 of RA No.
265).

The DBP also relies on Section 8 of PD No. 2029 as its statutory basis for hiring
a private auditor. This Section states in part as follows:

“The audit of government corporations by the Commission on Audit

shall not preclude government corporations from engaging the services of
private auditing firms: Provided, however, that even if the services of the
latter are availed of, the audit report of the Commission on Audit shall serve
as the report for purposes of compliance with audit requirements as required
of government corporations under applicable law.”

Section 8 of PD No. 2029, however, also provides that the “policy of

withdrawal of resident auditors shall be fully implemented x x x.” Section 2 of the
same decree also excludes from the term “government-owned or controlled
corporation” two classes of corporations. The first are originally private corporations
the majority of the shares of stock of which are acquired by government financial
institutions through foreclosure or dacion en pago. The second are subsidiary
corporations of government corporations, which subsidiaries are organized
exclusively to own, manage or lease physical assets acquired by government
financial institutions through foreclosure or dacion en pago. Claiming that PD No.
2029 operates to exempt certain government-owned corporations from the COA’s
jurisdiction in violation of Section 3, Article IX-D of the Constitution, the COA is
questioning the constitutionality of PD No. 2029.

There is, however, no compelling need to pass upon the constitutionality of PD

No. 2029 because the Constitution and existing banking laws allow such hiring. The
issues raised in this case can be resolved adequately without resolving the
constitutionality of PD No. 2029. This Court will leave the issue of the
constitutionality of PD No. 2029 to be settled in another case where its resolution is
an absolute necessity (Alger v. Court of Appeals, 135 SCRA 37 [1985]).

Republic v. Express Telecommunication Co., Inc.

373 SCRA 316, January 15, 2002
1st Div. [Ynares-Santiago]

At the outset, it is well to discuss the nature and functions of the NTC, and
analyze its powers and authority as well as the laws, rules and regulations that
govern its existence and operations.

The NTC was created pursuant to Executive Order No. 546, promulgated on
July 23, 1979. It assumed the functions formerly assigned to the Board of
Communications and the Communications Control Bureau, which were both abolished
under the said Executive Order. Previously, the NTC’s function were merely those of
the defunct Public Service Commission (PSC), created under Commonwealth Act No.
146, as amended, otherwise known as the Public Service Act, considering that the
Board of Communications was the successor-in-interest of the PSC. Under Executive
Order No. 125-A, issued in April 1987, the NTC became an attached agency of the
Department of Transportation and Communications.

In the regulatory communications industry, the NTC has the sole authority to
issue Certificates of Public Convenience and Necessity (CPCN) for the installation,
operation, and maintenance of communications facilities and services, radio

52
communications systems, telephone and telegraph systems. Such power includes
the authority to determine the areas of operations of applicants for
telecommunications services. Specifically, Section 16 of the Public Service Act
authorizes the then PSC, upon notice and hearing, to issue Certificates of Public
Convenience for the operation of public services within the Philippines “whenever the
Commission finds that the operation of the public service proposed and the
authorization to do business will promote the public interests in a proper and suitable
manner.” (Commonwealth Act No. 146, Section 16[a]) The procedure governing the
issuance of such authorizations is set forth in Section 29 of the said Act x x x.

In granting Bayantel the provisional authority to operate a CMTS, the NTC

applied Rule 15, Section 3 of its 1978 Rules of Practice and Procedure, which
provides:

Sec. 3. Provisional Relief. – Upon the filing of an application, complaint

or petition or at any stage thereafter, the Board may grant on motion of the
pleader or on its own initiative, the relief prayed for, based on the pleading,
together with the affidavits and supporting documents attached thereto,
without prejudice to a final decision after completion of the hearing which
shall be called within thirty (30) days from grant of authority asked for. (italics
ours)

Respondent Extelcom, however, contends that the NTC should have applied
the Revised Rules which were filed with the Office of the National Administrative
Register on February 3, 1993. These Revised Rules deleted the phrase “on its own
initiative”; accordingly, a provisional authority may be issued only upon filing of the
proper motion before the Commission.

In answer to this argument, the NTC, through the Secretary of the

Commission, issued a certification to the effect that inasmuch as the 1993 Revised
Rules have not been published in a newspaper of general circulation, the NTC has
been applying the 1978 Rules.

The absence of publication, coupled with the certification by the

Commissioner of the NTC stating that the NTC was still governed by the 1987 Rules,
clearly indicate that the 1993 Revised Rules have not taken effect at the time of the
grant of the provisional authority to Bayantel. The fact that the 1993 Revised Rules
were filed with the UP Law Center on February 3, 1993 is of no moment. There is
nothing in the Administrative Code of 1987 which implies that the filing of the rules
with the UP Law Center is the operative act that gives the rules force and effect.
Book VII, Chapter 2, Section 3 thereof merely states:

Filing. – (1) Every agency shall file with the University of the Philippines
Law Center three (3) certified copies of every rule adopted by it. Rules in
force on the date of effectivity of this Code which are not filed within three (3)
months from the date shall not thereafter be the basis of any sanction against
any party or persons.

(2) The records officer of the agency, or his equivalent functionary,

shall carry out the requirements of this section under pain of disciplinary
action.

(3) A permanent register of all rules shall be kept by the issuing

agency and shall be open to public inspection.

The National Administrative Register is merely a bulletin of codified rules and

it is furnished only to the Office of the President, Congress, all appellate courts, the
National Library, other public offices or agencies as the Congress may select, and to
other persons at a price sufficient to cover publication and mailing or distribution
costs (Administrative Code of 1987, Book VII, Chapter 2, Section 7). In a similar case,
we held:

This does not imply, however, that the subject Administrative Order is
a valid exercise of such quasi-legislative power. The original Administrative
Order issued on August 30, 1989, under which the respondents filed their
applications for importations, was not published in the Official Gazette or in a
newspaper of general circulation. The questioned Administrative Order,

53
 legally, until it is published, is invalid within the context of Article 2 of Civil
Code, which reads:

“Article 2. Laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette (or in a
newspaper of general circulation in the Philippines), unless it is
otherwise provided. X x x”

The fact that the amendments to Administrative Order No. SOCPEC 89-
08-01 were filed with, and published by the UP Law Center in the National
Administrative Register, does not cure the defect related to the effectivity of
the Administrative Order.

This Court, in Tanada v. Tuvera (G.R. No. L-63915, December 29, 1986,
146 SCRA 446) stated, thus:

“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 is fixed by the legislature.

Covered by this rule are presidential decrees and executive

orders promulgated by the President in the exercise of legislative
power 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.

Xxx

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.”

The Administrative Order under consideration is one of those issuances

which should be published for its effectivity, since its purpose is to enforce
and implement an existing law pursuant to a valid delegation, i.e., P.D. 1071,
in relation to LOI 444 and EO 133 (Philippine International Trading Corp. v.
Angeles, 263 SCRA 421, 446-447 [1996]).

Thus, publication in the Official Gazette or a newspaper of general circulation

is a condition sine qua non before statutes, rules or regulations can take effect. This
is explicit from Executive Order No. 200, which repealed Article 2 of the Civil Code,
and which states that:

Laws shall take effect after fifteen days following the completion of
their publication either in the Official Gazette or in a newspaper of general
circulation in the Philippines, unless it is otherwise provided (E.O. 200, Section
1).

The Rules of Practice and Procedure of the NTC, which implements Section 29
of the Public Service Act (C.A. 146, as amended), fall squarely within the scope of
these laws, as explicitly mentioned in the case of Tanada v. Tuvera (146 SCRA 446
[1986]).

Our pronouncement in Tanada v. Tuvera is clear and categorical.

Administrative rules and regulations must be published if their purpose is to
enforce or implement existing law pursuant to a valid delegation. The only
exception are interpretative regulations, those merely internal in nature, or
those so-called letters of instructions issued by administrative superiors

54
 concerning the rules and guidelines to be followed by their subordinates in the
performance of their duties (PHILSA International Placement & Services Corp.
v. Secretary of Labor, G.R. No. 103144, April 4, 2001, 356 SCRA 174).

Hence, the 1993 Revised Rules should be published in the Official Gazette or
in a newspaper of general circulation before it can take effect. Even the 1993
Revised Rules itself mandates that said Rules shall take effect only after their
publication in a newspaper of general circulation (Section 20 thereof). In the absence
of such publication, therefore, it is the 1978 Rules that governs.

Lacson v. Perez
357 SCRA 756, May 10, 2001
En Banc [Melo]

On May 1, 2001, President Macapagal-Arroyo, faced by an “angry and violent

mob armed with explosives, firearms, bladed weapons, clubs, stones and other
deadly weapons” assaulting and attempting to break into Malacanang, issued
Proclamation No. 38 declaring that there was a state of rebellion in the National
Capital Region. She likewise issued General Order No. 1 directing the Armed Forces
of the Philippines and the Philippine National Police to suppress the rebellion in the
National Capital Region. Warrantless arrests of several alleged leaders and
promoters of the “rebellion” were thereafter effected.

Xxx

All the foregoing petitions assail the declaration of state of rebellion by

President Gloria Macapagal-Arroyo and the warrantless arrests allegedly effected by
virtue thereof, as having no basis both in fact and in law. Significantly, on May 6,
2001, President Macapagal-Arroyo ordered the lifting of the declaration of a “state of
rebellion” in Metro Manila. Accordingly, the instant petitions have been rendered
moot and academic. As to petitioners’ claim that the proclamation of a “state of
rebellion” is being used by the authorities to justify warrantless arrests, the Secretary
of Justice denies that it has issued a particular order to arrest specific persons in
connection with the “rebellion.” He states that what is extant are general
instructions to law enforcement officers and military agencies to implement
Proclamation No. 38. x x x With this declaration, petitioners’ apprehensions as to
warrantless arrests should be laid to rest.

In quelling or suppressing the rebellion, the authorities may only resort to

warrantless arrests of persons suspected of rebellion, as provided under Section 5,
Rule 113 of the Rules of Court, if the circumstances so warrant. The warrantless
arrest feared by petitioners is, thus, not based on the declaration of a “state of
rebellion.”

Xxx

Dissenting Opinion
Justice Santiago M. Kapunan

The right against unreasonable searches and seizure has been characterized
as belonging “in the catalog of indispensable freedoms.”

Among deprivation of rights, none is so effective in cowing a

population, crushing the spirit of the individual and putting terror in every
heart. Uncontrolled search and seizure is one of the first and most effective
weapons in the arsenal of every arbitrary government. And one need only
briefly to have dwelt and worked among a people possessed of many
admirable qualities but deprived of these rights to know that the human
personality deteriorates and dignity and self-reliance disappear where homes,
persons and possessions are subject at any hour to unheralded search and
seizure by the police. (Dissenting Opinion, J. Jackson, in Brinegar v. United
States, 338 U.S. 2084 [1949])

Xxx

55
 Pursuant to the proclamation, several key leaders of the opposition were
ordered arrested. X x x

The basic issue raised by the consolidated petitions is whether the arrest or
impending arrest without warrant, pursuant to a declaration of “state of rebellion” by
the President of the above-mentioned persons and unnamed other persons similarly
situated suspected of having committed rebellion is illegal, being unquestionably a
deprivation of liberty and violative of the Bill of Rights under the Constitution.

The declaration of a “state of rebellion” is supposedly based on Section 18,

Article VII of the Constitution x x x.

Section 18 grants the President, as Commander-in-Chief, the power to call out

the armed forces in cases of (1) lawless violence, (2) rebellion and (3) invasion. In
the latter two cases, i.e., rebellion or invasion, the President may, when public safety
requires, also (a) suspend the privilege of the writ of habeas corpus, or (b) place the
Philippines or any part thereof under martial law. However, in the exercise of this
calling out power as Commander-in-Chief of the armed forces, the Constitution does
not require the President to make a declaration of a “state of rebellion” (or, for that
matter, of lawless violence or invasion). The term “state of rebellion” has no legal
significance. It is vague and amorphous and does not give the President more power
than what the Constitution says, i.e., whenever it becomes necessary, he may call
out such armed forces to prevent or suppress lawless violence, invasion or rebellion.
As Justice Mendoza observed during the hearing of this case, such a declaration is
“legal surplusage.” But whatever the term means, it cannot diminish or violate
constitutionally-protected rights, such as the right to due process, the rights of free
speech and peaceful assembly to petition the government for redress of grievances,
and the right against unreasonable searches and seizures, among others.

Xxx

On the other hand, if the motive behind the declaration of a “state of

rebellion” is to arrest persons without warrant and detain them without bail and,
thus, skirt the Constitutional safeguards for the citizens’ civil liberties, the so-called
“state of rebellion” partakes the nature of martial law without declaring it as such. It
is a truism that a law or rule may itself be fair or innocuous on its face, yet, if it is
applied and administered by public authority with an evil eye so as to practically
make it unjust and oppressive, it is within the prohibition of the Constitution (See
Yick Wo v. Hopkins, 118 U.S. 356). In an ironic sense, a “state of rebellion” declared
as a subterfuge to effect warrantless arrest and detention for an unbailable offense
places a heavier burden on the people’s civil liberties than the suspension of the
privilege of the writ of habeas corpus and the declaration of martial law because in
the latter case, built-in safeguards are automatically set on motion: (1) The period of
martial law or suspension is limited to a period not exceeding sixty day; (2) The
President is mandated to submit a report to Congress within forty-eight hours from
the proclamation or suspension; (3) The proclamation or suspension is subject to
review by Congress, which may revoke such proclamation or suspension. If Congress
is not in session, it shall convene in 24 hours without need for call; and (4) The
sufficiency of the factual basis thereof or its extension is subject to review by the
Supreme Court in an appropriate proceeding.

No right is more fundamental than the right to life and liberty. Without these
rights, all other individual rights may not exist. X x x

Indeed, there is nothing in Section 18 which authorizes the President or any

person acting under her direction to make unwarranted arrests. The existence of
“lawless violence, invasion or rebellion” only authorizes the President to call out the
“armed forces to prevent or suppress lawless violence, invasion or rebellion.”

Not even the suspension of the privilege of the writ of habeas corpus or the
declaration of martial law authorizes the President to order the arrest of any person.
The only significant consequence of the suspension of the writ of habeas corpus is to
divest the courts of the power to issue the writ whereby the detention of the person
is put in issue. It does not by itself authorize the President to order the arrest of a
person. And even then, the Constitution in Section 18 makes the following
qualifications x x x.

56
 In the instant case, the President did not suspend the writ of habeas corpus.
Nor did she declare martial law. A declaration of a “state of rebellion,” at most, only
gives notice to the nation that it exists, and that the armed forces may be called to
prevent or suppress it, as in fact she did. Such declaration does not justify any
deviation from the Constitutional proscription against unreasonable searches and
seizures.

As a general rule, an arrest may be made only upon a warrant issued by a

court in very circumscribed instances, however, the Rules of Court allow warrantless
arrests. X x x

It must be noted that the above are exceptions to the constitutional norm
enshrined in the Bill of Rights that a person may only be arrested on the strength of a
warrant of arrest issued by a “judge” after determining ‘personally’ the existence of
“probable cause” after examination under oath or affirmation of the complainant and
the witness he may produce. Its requirements should, therefore, be scrupulously met
x x x.

A warrantless arrest may be justified only if the police officer had facts and
circumstances before him which, had they been before a judge, would constitute
adequate basis for a finding of probable cause of the commission of an offense and
that the person arrested is probably guilty of committing the offense. That is why the
Rules of Criminal Procedure require that when arrested, the person “arrested has
committed, is actually committing, or is attempting to commit an offense” in the
presence of the arresting officer. Or if it be a case of an offense which had “just been
committed,” that the police officer making the arrest “has personal knowledge of
facts or circumstances that the person to be arrested has committed it.”

Petitioners were arrested or sought to be arrested without warrant for acts of

rebellion ostensibly under Section 5 of Rule 113. Respondents’ theory is based on
Umil v. Ramos (187 SCRA 311 [1990]), where this Court held:

The crimes of rebellion, subversion, conspiracy or proposal to commit

such crimes, and crimes or offenses committed in furtherance thereof or in
connection therewith constitute direct assault against the State and are in the
nature of continuing crimes (Id., at 318)

Following this theory, it is argued that under Section 5(a), a person who “has
committed, is actually committing, or is attempting to commit” rebellion and may be
arrested without a warrant at any time so long as the rebellion persists.

Reliance on Umil is misplaced. The warrantless arrests therein, although

effected a day or days after the commission of the violent acts of petitioners therein,
were upheld by the Court because at the time of their respective arrests, they were
members of organizations such as the Communist Party of the Philippines, the New
Peoples Army and the National United Front Commission, then outlawed groups
under the Anti-Subversion Act. Their mere membership in said illegal organizations
amounted to committing the offense of subversion (187 SCRA 311, 321, 323-24
[1990]) which justified their arrests without warrants.

In contrast, it has not been alleged that the persons to be arrested for their
alleged participation in the “rebellion” on May 1, 2001 are members of an outlawed
organization intending to overthrow the government. Therefore, to justify a
warrantless arrest under Section 5(a), there must be a showing that the persons
arrested or to be arrested has committed, is actually committing or is attempting to
commit the offense of rebellion. In other words, there must be an overt act
constitutive of rebellion taking place in the presence of the arresting officer. In
United States v. Samonte (16 Phil. 516 [1910]), the term “in his [the arresting
officer’s] presence” was defined thus:

An offense is said to be committed in the presence or within the view

of an arresting officer or private citizen when such officer or person sees the
offense, even though at a distance, or hears the disturbance created thereby
and proceeds at once to the scene thereof, or the offense is continuing, or has
not been consummated, at the time the arrest is made (Id., at 519).

57
 This requirement was not complied with particularly in the arrest of Senator
Enrile. In the Court’s Resolution of May 5, 2001 in the petition for habeas corpus filed
by Senator Enrile, the Court noted that the sworn statements of the policemen who
purportedly arrested him were hearsay (G.R. No. 147785, En Banc, May 5, 2001
[minute resolution]). Senator Enrile was arrested two (2) days after he delivered
allegedly seditious speeches. Consequently, his arrest without warrant cannot be
justified under Section 5(b) which states that an arrest without a warrant is lawful
when made after an offense has just been committed and the arresting officer or
private person has probable cause to believe based on personal knowledge of facts
and circumstance that the person arrested has committed the offense.

At this point, it must be stressed that apart from being inapplicable to the
case at bar, Umil is not without any strong dissents. It merely re-affirmed Garcia-
Padilla v. Enrile (121 SCRA 472 [1983]), a case decided during the Marcos martial law
regime. It cannot apply when the country is supposed to be under the regime of
freedom and democracy. X x x

Xxx

It is observed that a sufficient period has lapsed between the fateful day of
May 1, 2001 up to the present. If respondents have ample evidence against
petitioners, then they should forthwith file the necessary criminal complaints in order
that the regular procedure can be followed and the warrants of arrest issued by the
courts in the normal course. When practicable, resort to the warrant process is
always to be preferred because “it interposes an orderly procedure involving ‘judicial
impartiality’ whereby a neutral and detached magistrate can make informed and
deliberate determination on the issue of probable cause.” (LAFAVE, I SEARCH AND
SEIZURE: A TREATISE ON THE FOURTH AMENDMENT (1987), pp. 548-549. citations
omitted.)

The neutrality, detachment and independence that judges are supposed to

possess is precisely the reason the framers of the 1987 Constitution have reposed
upon them alone the power to issue warrants of arrest. To vest the same to a branch
of government, which is also charged with prosecutorial powers, would make such
branch the accused’s adversary and accuser, his judge and jury. (Presidential Anti-
Dollar Salting Task Force v. CA, 171 SCRA 348 [1989])

A declaration of a state of rebellion does not relieve the State of its burden of
proving probable cause. The declaration does not constitute a substitute for proof. It
does not in any way bind the courts, which must still judge for itself the existence of
probable cause. Under Section 18, Article VII, the determination of the existence of a
state of rebellion for purposes of proclaiming martial law or the suspension of the
privilege of the writ of habeas corpus rests for which the President is granted ample,
though not absolute, discretion. Under Section 2, Article II, the determination of
probable cause is a purely legal question of which courts are the final arbiters.

Justice Secretary Hernando Perez is reported to have announced that the

lifting of the “state of rebellion” on May 7, 2001 does not stop the police from making
warrantless arrests. If this is so, the pernicious effects of the declaration on the
people’s civil liberties have not abated despite the lifting thereof. No one exactly
knows who are in the list or who prepared the list of those to be arrested for alleged
complicity in the “continuing” crime of “rebellion” defined as such by executive fiat.
The list of the perceived leaders, financiers and supporters of the “rebellion” to be
arrested and incarcerated could expand depending on the appreciation of the police.
The coverage and duration of effectivity of the orders of arrest are thus so open-
ended and limitless as to place in constant and continuing peril the people’s Bill of
Rights. It is of no small significance that four of the petitioners are opposition
candidates for the Senate. Their campaign activities have been to a large extent
immobilized. If the arrests and orders of arrest against them are illegal, then their
Constitutional right to seek public office, as well as the right of the people to choose
their officials, is violated.

In view of the transcendental importance and urgency of the issues raised in

these cases affecting as they do the basic liberties of the citizens enshrined in our
Constitution, it behooves us to rule thereon now, instead of relegating the cases to
trial courts which unavoidably may come up with conflicting dispositions, the same to

58
reach this Court inevitably for final ruling. As we aptly pronounced in Salonga v.
Cruz-Pano (134 SCRA 438 [1985]):

The Court also has the duty to formulate guiding and controlling
constitutional principles, precepts, doctrines, or rules. It has the symbolic
function of educating bench and bar on the extent of protection given by
constitutional guarantees.

Petitioners look up in urgent supplication to the Court, considered the last

bulwark of democracy, for relief. If we do not act promptly, justly and fearlessly, to
whom will they turn to?

Philsa International Placement and Services Corporation v. Secretary of

Labor and Employment
356 SCRA 174, April 4, 2001, 3rd Div., [Gonzaga-Reyes]

Petitioner insists, however, that it cannot be held liable for illegal exaction as
POEA Memorandum Circular No. II, Series of 1983, which enumerated the allowable
fees which may be collected from applicants, is void for lack of publication.

There is merit in the argument.

In Tanada v. Tuvera (136 SCRA 27 [1985]), the Court held, as follows:

“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.

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
to a valid delegation.

Interpretative regulations and those merely internal in nature, that is,

regulating only the personnel of the administrative agency and the public,
need not be published. Neither is publication required of the so-called letter
of instructions issued by the administrative superiors concerning the rules or
guidelines to be followed by their subordinates in the performance of their
duties.”

Applying this doctrine, we have previously declared as having no force and

effect the following administrative issuances: a) Rules and Regulations issued by the
Joint Ministry of Health-Ministry of Labor and Employment Accreditation Committee
regarding the accreditation of hospitals, medical clinics and laboratories (Joint
Ministry of Health-Ministry of Labor and Employment Accreditation Committee v.
Court of Appeals, 196 SCRA 263 [1991]); b) Letter of Instruction No. 416 ordering the
suspension of payments due and payable by distressed copper mining companies to
the national government (Caltex Philippines, Inc. v. Court of Appeals, 208 SCRA 726
[1992]); c) Memorandum Circulars issued by the POEA regulating the recruitment of
domestic helpers to Hong Kong (Phil. Association of Service Exporters v. Torres, 212
SCRA 298 [1992]); d) Administrative Order No. SOCPEC 89-08-01 issued by the
Philippine International Trading Corporation regulating applications for importation
from the People’s Republic of China (Philippine International Trading Corporation v.
Angeles, 263 SCRA 421 [1996]); and e) Corporate Compensation Circular No. 10
issued by the Department of Budget and Management discontinuing the payment of
other allowances and fringe benefits to government officials and employees (De
Jesus v. Commission on Audit, 294 SCRA 152 [1998). In all these cited cases, the
administrative issuances questioned therein were uniformly struck down as they
were not published or filed with the National Administrative Register as required by
the Administrative Code of 1987 (Administrative Code of 1987, Book VII, chapter 2,
Section 3).

59
 POEA memorandum Circular No. 2, Series of 1983 must likewise be declared
ineffective as the same was never published or filed with the National Administrative
Register.

POEA Memorandum Circular No. 2, Series of 1983 provides for the applicable
schedule of placement and documentation fees for private employment agencies or
authority holders. Under the said Order, the maximum amount which may be
collected from prospective Filipino overseas workers is P2,500.00. The said circular
was apparently issued in compliance with the provisions of Article 32 of the Labor
Code x x x.

It is thus clear that the administrative circular under consideration is one of

those issuances which should be published for its effectivity, since its purpose is to
enforce and implement an existing law pursuant to a valid delegation (Philippine
International Trading Corporation v. Angeles, supra.). Considering that POEA
Administrative Circular No. 2, Series of 1983 has not as yet been published or filed
with the National Administrative Register, the same is ineffective and may not be
enforced.

Xxx

The Office of the Solicitor General likewise argues that the questioned
administrative circular is not among those requiring publication contemplated by
Tanada v. Tuvera as it is addressed only to a specific group of persons and not to the
general public.

Again, there is no merit in this argument.

The fact that the said circular is addressed only to a specified group, namely
private employment agencies or authority holders, does not take it away from the
ambit of our ruling in Tanada v. Tuvera. In the case of Phil. Association of Service
Exporters v. Torres ((212 SCRA 298 [1992]), the administrative circulars questioned
therein were addressed to an even smaller group, namely Philippine and Hong Kong
agencies engaged in the recruitment of workers for Hong Kong, and still the Court
ruled therein that, for lack of proper publication, the said circulars may not be
enforced or implemented.

Our pronouncement in Tanada v. Tuvera is clear and categorical.

Administrative rules and regulations must be published if their purpose is to enforce
or implement existing law pursuant to a valid delegation. The only exceptions are
interpretative regulations, those merely internal in nature, or those so-called letters
of instructions issued by administrative superiors concerning the rules and guidelines
to be followed by their subordinates in the performance of their duties.
Administrative Circular No. 2, Series of 1983 has not been shown to fall under any of
these exceptions.

In this regard, the Solicitor General’s reliance on the case of Yaokasin v.

Commissioner of Customs (180 SCRA 599 [1989]) is misplaced. In the said case, the
validity of certain Customs Memorandum Orders were upheld despite their lack of
publication as they were addressed to a particular class of persons, the customs
collectors, who were also the subordinates of the Commissioner of the Bureau of
Customs. As such, the said Memorandum Orders clearly fall under one of the
exceptions to the publication requirement, namely those dealing with instructions
from an administrative superior to a subordinate regarding the performance of their
duties, a circumstance which does not obtain in the case at bench.

Xxx

To summarize, petitioner should be absolved from the three (3) counts of

exaction as POEA Administrative Circular No. 2, Series of 1983 could not be the basis
of administrative sanctions against petitioner for lack of publication. X x x

Santiago v. Sandiganbayan
356 SCRA 636, April 18, 2001
En Banc [Vitug]

60
 X x x The petition assails the authority of the Sandiganbayan to decree a
ninety-day preventive suspension of Mme. Miriam Defensor-Santiago, a Senator of
the Republic of the Philippines, from any government position, and furnishing a copy
thereof to the Senate of the Philippines for the implementation of the suspension
order.

The authority of the Sandiganbayan to order the preventive suspension of an

incumbent public official charged with violation of the provisions of Republic Act No.
3019 has both legal and jurisprudential support. X x x

In the relatively recent case of Segovia v. Sandiganbayan (288 SCRA 328

[1998]), the Court reiterated:

“The validity of Section 13, R.A. 3019, as amended – treating of the

suspension pendente lite of an accused public officer – may no longer be put
at issue, having been repeatedly upheld by this Court.

“X x x

“The provision of suspension pendente lite applies to all persons

indicted upon a valid information under the Act, whether they be appointive or
elective officials; or permanent or temporary employees, or pertaining to the
career or non-career service.” (At pp. 336-337)

It would appear, indeed, to be a ministerial duty of the court to issue an order

of suspension upon determination of the validity of the information filed before it.
Once the information is found to be sufficient in form and substance, the court is
bound to issue an order of suspension as a matter of course, and there seems to be
“no ifs and buts about it.” (Libanan v. Sandiganbayan, 163 SCRA 163 [1988])
Explaining the nature of the preventive suspension, the Court in the case of Bayot v.
Sandiganbayan (128 SCRA 383 [1984]) observed:

“x x x It is not a penalty because it is not imposed as a result of judicial

proceedings. In fact, if acquitted, the official concerned shall be entitled to
reinstatement and to the salaries and benefits which he failed to receive
during suspension.” (At p. 386)

In issuing the preventive suspension of petitioner, the Sandiganbayan merely

adhered to the clear and unequivocal mandate of the law, as well as the
jurisprudence in which the Court has, more than once, upheld Sandiganbayan’s
authority to decree the suspension of public officials and employees indicted before
it.

Section 13 of Republic Act No. 3019 does not state that the public officer
concerned must be suspended only in the office where he is alleged to have
committed the acts with which he has been charged. Thus, it has been held that the
use of the word “office” would indicate that it applies to any office which the officer
charged may be holding, and not only the particular office under which he stands
accused. (Bayot v. Sandiganbayan, supra; Segovia v. Sandiganbayan, supra.)

En passant, while the imposition of suspension is not automatic or self-

operative as the validity of the information must be determined in a pre-suspension
hearing, there is no hard and fast rule as to the conduct thereof. It has been said
that –

“ ‘x x x No specific rules need be laid down for such pre-suspension

hearing. Suffice it to state that the accused should be given a fair and
adequate opportunity to challenge the VALIDITY OF THE CRIMINAL
PROCEEDINGS against him, e.g., that he has not been afforded the right of
due preliminary investigation; that the acts for which he stands charged do
not constitute a violation of the provisions of Republic Act 3019 or the bribery
provisions of the Revised Penal Code which would warrant his mandatory
suspension from office under Section 13 of the Act; or he may present a
motion to quash the information on any of the grounds provided for in Rule
117 of the Rules of Court x x x.’

“x x x

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 “Likewise, he is accorded the right to challenge the propriety of his
prosecution on the ground that the acts for which he is charged do not
constitute a violation of Rep. Act 3019, or of the provisions on bribery of the
Revised Penal Code, and the right to present a motion to quash the
information on any other grounds provided in Rule 117 of the Rules of Court.

“However, a challenge to the validity of the criminal proceedings on

the ground that the acts for which the accused is charged do not constitute a
violation of the provisions of Rep. Act No. 3019, or of the provisions on bribery
of the Revised Penal Code, should be treated only in the same manner as a
challenge to the criminal proceeding by way of a motion to quash on the
ground provided in Paragraph (a), Section 2 of Rule 117 of the Rules of Court,
i.e., that the facts charged do not constitute an offense. In other words, a
resolution of the challenge to the validity of the criminal proceeding, on such
ground, should be limited to an inquiry whether the facts alleged in the
information, if hypothetically admitted, constitute the elements of an offense
punishable under Rep. Act 3019 or the provisions on bribery of the Revised
Penal Code.” (Luciano v. Mariano, 40 SCRA 187 [1971]; People v. Albano, 163
SCRA 511, 517-519 [1988])

The law does not require that the guilt of the accused must be established in a
pre-suspension proceeding before trial on the merits proceeds. Neither does it
contemplate a proceeding to determine (1) the strength of the evidence of culpability
against him, (2) the gravity of the offense charged, or (3) whether or not his
continuance in office could influence the witnesses or pose a threat to the safety and
integrity of the records and other evidence before the court could have a valid basis
in decreeing preventive suspension pending the trial of the case. All it secures to the
accused is adequate opportunity to challenge the validity or regularity of the
proceedings against him, such as, that he has not been afforded the right to due
preliminary investigation, that the acts imputed to him do not constitute a specific
crime warranting his mandatory suspension from office under Section 13 of Republic
Act No. 3019, or that the information is subject to quashal on any of the grounds set
out in Section 3, Rule 117, of the Revised Rules on Criminal Procedure (Segovia v.
Sandiganbayan, supra; Resolution of the Supreme Court in A.M. No. 00-05-03-SC,
dated 03 October 2000, which became effective on 01 December 2000)

Xxx

The pronouncement, upholding the validity of the information filed against

petitioner, behooved Sandiganbayan to discharge its mandated duty to forthwith
issue the order of preventive suspension.

The order of suspension prescribed by Republic Act No. 3019 is distinct from
the power of Congress to discipline its own ranks under the Constitution which
provides that each –

“x x x house may determine the rules of its proceedings, punish its

Members for disorderly behavior, and, with the concurrence of two-thirds of all
its Members, suspend or expel a Member. A penalty of suspension, when
imposed, shall not exceed sixty days.” (Section 16[3], Article VI, 1987
Constitution)

The suspension contemplated in the above constitutional provision is a

punitive measure that is imposed upon determination by the Senate or the House of
Representatives, as the case may be, upon an erring member. Thus, in its resolution
in the case of Ceferino Paredes, Jr. v. Sandiganbayan, et al. (G.R. No. 118364, 08
August 1995), the Court affirmed the order of suspension of Congressman Paredes by
the Sandiganbayan, despite his protestations on the encroachment by the court on
the prerogatives of Congress. The Court ruled:

“x x x. Petitioner’s invocation of Section 16 (3), Article VI of the

Constitution – which deals with the power of each House of Congress inter alia
to ‘punish its Members for disorderly behavior,’ and ‘suspend or expel a
Member’ by a vote of two-thirds of all its Members subject to the qualification
that the penalty of suspension, when imposed, should not exceed sixty days –
in unavailing, as it appears to be quite distinct from the suspension spoken of

62
 in Section 13 of RA 3019, which is not a penalty but a preliminary, preventive
measure, prescinding from the fact that the latter is not being imposed on
petitioner for misbehavior as a Member of the House of Representatives.”

The doctrine of separation of powers by itself may not be deemed to have

effectively excluded Members of Congress from Republic Act No. 3019 nor from its
sanctions. The maxim simply recognizes each of the three co-equal and
independent, albeit coordinate, branches of the government – the Legislative, the
Executive and the Judiciary – has exclusive prerogatives and cognizance within its
own sphere of influence and effectively prevents one branch from unduly intruding
into the internal affairs of either branch.

Parenthetically, it might be well to elaborate a bit. Section 1, Article VIII, of

the 1987 Constitution, empowers the Court to act not only in the settlement of
“actual controversies involving rights which are legally demandable and
enforceable,” but also in the determination of “whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the government.” The provision allowing the Court
to look into any possible grave abuse of discretion committed by any government
instrumentality has evidently been couched in general terms in order to make it
malleable to judicial interpretation in the light of any emerging milieu. In its normal
concept, the term has been said to imply an arbitrary, despotic, capricious or
whimsical exercise of judgment amounting to lack or excess of jurisdiction. When the
question, however, pertains to an affair internal to either of Congress or the
Executive, the Court subscribes to the view that unless an infringement of any
specific Constitutional proscription thereby inheres the Court should not deign
substitute its own judgment over that of any of the other two branches of
government. It is an impairment or a clear disregard of a specific constitutional
precept or provision that can unbolt the steel door for judicial intervention. If any
part of the Constitution is not, or ceases to be, responsive to contemporary needs, it
is the people, not the Court, who must promptly react in the manner prescribed by
the Charter itself.

Republic Act No. 3019 does not exclude from its coverage the members of
Congress and that, therefore, the Sandiganbayan did not err in thus decreeing the
assailed preventive suspension order.

Attention might be called to the fact that Criminal Case No. 16698 has been
decided by the First Division of the Sandiganbayan on 06 December 1999, acquitting
herein petitioner. The Court, nevertheless, deems it appropriate to render this
decision for future guidance on the significant issue raised by petitioner.

63