Poli 51-120

51
Republic of the Philippines

SUPREME COURT
EN BANC
G.R. No. 168056 September 1, 2005
ABAKADA GURO PARTY LIST (Formerly AASJAS) OFFICERS SAMSON S. ALCANTARA and
ED VINCENT S. ALBANO, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY EDUARDO ERMITA; HONORABLE SECRETARY
OF THE DEPARTMENT OF FINANCE CESAR PURISIMA; and HONORABLE COMMISSIONER
OF INTERNAL REVENUE GUILLERMO PARAYNO, JR., Respondent.
x-------------------------x
G.R. No. 168207
AQUILINO Q. PIMENTEL, JR., LUISA P. EJERCITO-ESTRADA, JINGGOY E. ESTRADA, PANFILO

M. LACSON, ALFREDO S. LIM, JAMBY A.S. MADRIGAL, AND SERGIO R. OSMEÑA III,
Petitioners,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, CESAR V. PURISIMA, SECRETARY OF
FINANCE, GUILLERMO L. PARAYNO, JR., COMMISSIONER OF THE BUREAU OF INTERNAL
REVENUE, Respondent.
x-------------------------x
G.R. No. 168461
ASSOCIATION OF PILIPINAS SHELL DEALERS, INC. represented by its President, ROSARIO

ANTONIO; PETRON DEALERS’ ASSOCIATION represented by its President, RUTH E. BARBIBI;
ASSOCIATION OF CALTEX DEALERS’ OF THE PHILIPPINES represented by its President,
MERCEDITAS A. GARCIA; ROSARIO ANTONIO doing business under the name and style of "ANB
NORTH SHELL SERVICE STATION"; LOURDES MARTINEZ doing business under the name and
style of "SHELL GATE – N. DOMINGO"; BETHZAIDA TAN doing business under the name and style
of "ADVANCE SHELL STATION"; REYNALDO P. MONTOYA doing business under the name and
style of "NEW LAMUAN SHELL SERVICE STATION"; EFREN SOTTO doing business under the
name and style of "RED FIELD SHELL SERVICE STATION"; DONICA CORPORATION
represented by its President, DESI TOMACRUZ; RUTH E. MARBIBI doing business under the name
and style of "R&R PETRON STATION"; PETER M. UNGSON doing business under the name and
style of "CLASSIC STAR GASOLINE SERVICE STATION"; MARIAN SHEILA A. LEE doing
business under the name and style of "NTE GASOLINE & SERVICE STATION"; JULIAN CESAR P.
POSADAS doing business under the name and style of "STARCARGA ENTERPRISES";
ADORACION MAÑEBO doing business under the name and style of "CMA MOTORISTS CENTER";
SUSAN M. ENTRATA doing business under the name and style of "LEONA’S GASOLINE STATION
and SERVICE CENTER"; CARMELITA BALDONADO doing business under the name and style of
"FIRST CHOICE SERVICE CENTER"; MERCEDITAS A. GARCIA doing business under the name
and style of "LORPED SERVICE CENTER"; RHEAMAR A. RAMOS doing business under the name
and style of "RJRAM PTT GAS STATION"; MA. ISABEL VIOLAGO doing business under the name
and style of "VIOLAGO-PTT SERVICE CENTER"; MOTORISTS’ HEART CORPORATION
represented by its Vice-President for Operations, JOSELITO F. FLORDELIZA; MOTORISTS’
HARVARD CORPORATION represented by its Vice-President for Operations, JOSELITO F.
FLORDELIZA; MOTORISTS’ HERITAGE CORPORATION represented by its Vice-President for
Operations, JOSELITO F. FLORDELIZA; PHILIPPINE STANDARD OIL CORPORATION
represented by its Vice-President for Operations, JOSELITO F. FLORDELIZA; ROMEO MANUEL
doing business under the name and style of "ROMMAN GASOLINE STATION"; ANTHONY ALBERT
CRUZ III doing business under the name and style of "TRUE SERVICE STATION", Petitioners,
vs.
CESAR V. PURISIMA, in his capacity as Secretary of the Department of Finance and
GUILLERMO L. PARAYNO, JR., in his capacity as Commissioner of Internal
Revenue, Respondent.
x-------------------------x
G.R. No. 168463
FRANCIS JOSEPH G. ESCUDERO, VINCENT CRISOLOGO, EMMANUEL JOEL J. VILLANUEVA,

RODOLFO G. PLAZA, DARLENE ANTONINO-CUSTODIO, OSCAR G. MALAPITAN, BENJAMIN C.
AGARAO, JR. JUAN EDGARDO M. ANGARA, JUSTIN MARC SB. CHIPECO, FLORENCIO G.
NOEL, MUJIV S. HATAMAN, RENATO B. MAGTUBO, JOSEPH A. SANTIAGO, TEOFISTO DL.
GUINGONA III, RUY ELIAS C. LOPEZ, RODOLFO Q. AGBAYANI and TEODORO A. CASIÑO,
Petitioners,
vs.
CESAR V. PURISIMA, in his capacity as Secretary of Finance, GUILLERMO L. PARAYNO, JR.,
in his capacity as Commissioner of Internal Revenue, and EDUARDO R. ERMITA, in his
capacity as Executive Secretary,Respondent.
x-------------------------x
G.R. No. 168730
BATAAN GOVERNOR ENRIQUE T. GARCIA, JR. Petitioner,

vs.
HON. EDUARDO R. ERMITA, in his capacity as the Executive Secretary; HON. MARGARITO
TEVES, in his capacity as Secretary of Finance; HON. JOSE MARIO BUNAG, in his capacity as the
OIC Commissioner of the Bureau of Internal Revenue; and HON. ALEXANDER AREVALO, in his
capacity as the OIC Commissioner of the Bureau of Customs, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
The expenses of government, having for their object the interest of all, should be borne by everyone,
and the more man enjoys the advantages of society, the more he ought to hold himself honored in
contributing to those expenses.
-Anne Robert Jacques Turgot (1727-1781)
French statesman and economist

Mounting budget deficit, revenue generation, inadequate fiscal allocation for education, increased
emoluments for health workers, and wider coverage for full value-added tax benefits … these are the
reasons why Republic Act No. 9337 (R.A. No. 9337)1 was enacted. Reasons, the wisdom of which,
the Court even with its extensive constitutional power of review, cannot probe. The petitioners in
these cases, however, question not only the wisdom of the law, but also perceived constitutional
infirmities in its passage.
Every law enjoys in its favor the presumption of constitutionality. Their arguments notwithstanding,
petitioners failed to justify their call for the invalidity of the law. Hence, R.A. No. 9337 is not
unconstitutional.
LEGISLATIVE HISTORY
R.A. No. 9337 is a consolidation of three legislative bills namely, House Bill Nos. 3555 and 3705,
and Senate Bill No. 1950.
House Bill No. 35552 was introduced on first reading on January 7, 2005. The House Committee on
Ways and Means approved the bill, in substitution of House Bill No. 1468, which Representative
(Rep.) Eric D. Singson introduced on August 8, 2004. The President certified the bill on January 7,
2005 for immediate enactment. On January 27, 2005, the House of Representatives approved the
bill on second and third reading.
House Bill No. 37053 on the other hand, substituted House Bill No. 3105 introduced by Rep.
Salacnib F. Baterina, and House Bill No. 3381 introduced by Rep. Jacinto V. Paras. Its "mother bill"
is House Bill No. 3555. The House Committee on Ways and Means approved the bill on February 2,
2005. The President also certified it as urgent on February 8, 2005. The House of Representatives
approved the bill on second and third reading on February 28, 2005.
Meanwhile, the Senate Committee on Ways and Means approved Senate Bill No. 19504 on March
7, 2005, "in substitution of Senate Bill Nos. 1337, 1838 and 1873, taking into consideration House
Bill Nos. 3555 and 3705." Senator Ralph G. Recto sponsored Senate Bill No. 1337, while Senate Bill
Nos. 1838 and 1873 were both sponsored by Sens. Franklin M. Drilon, Juan M. Flavier and Francis
N. Pangilinan. The President certified the bill on March 11, 2005, and was approved by the Senate
on second and third reading on April 13, 2005.
On the same date, April 13, 2005, the Senate agreed to the request of the House of Representatives
for a committee conference on the disagreeing provisions of the proposed bills.
Before long, the Conference Committee on the Disagreeing Provisions of House Bill No. 3555,
House Bill No. 3705, and Senate Bill No. 1950, "after having met and discussed in full free and
conference," recommended the approval of its report, which the Senate did on May 10, 2005, and
with the House of Representatives agreeing thereto the next day, May 11, 2005.
On May 23, 2005, the enrolled copy of the consolidated House and Senate version was transmitted
to the President, who signed the same into law on May 24, 2005. Thus, came R.A. No. 9337.
July 1, 2005 is the effectivity date of R.A. No. 9337.5 When said date came, the Court issued a
temporary restraining order, effective immediately and continuing until further orders, enjoining
respondents from enforcing and implementing the law.
Oral arguments were held on July 14, 2005. Significantly, during the hearing, the Court speaking
through Mr. Justice Artemio V. Panganiban, voiced the rationale for its issuance of the temporary
restraining order on July 1, 2005, to wit:
J. PANGANIBAN : . . . But before I go into the details of your presentation, let me just tell you a little
background. You know when the law took effect on July 1, 2005, the Court issued a TRO at about 5
o’clock in the afternoon. But before that, there was a lot of complaints aired on television and on
radio. Some people in a gas station were complaining that the gas prices went up by 10%. Some
people were complaining that their electric bill will go up by 10%. Other times people riding in
domestic air carrier were complaining that the prices that they’ll have to pay would have to go up by
10%. While all that was being aired, per your presentation and per our own understanding of the law,
that’s not true. It’s not true that the e-vat law necessarily increased prices by 10% uniformly isn’t it?
ATTY. BANIQUED : No, Your Honor.
J. PANGANIBAN : It is not?
ATTY. BANIQUED : It’s not, because, Your Honor, there is an Executive Order that granted the
Petroleum companies some subsidy . . . interrupted
J. PANGANIBAN : That’s correct . . .
ATTY. BANIQUED : . . . and therefore that was meant to temper the impact . . . interrupted
J. PANGANIBAN : . . . mitigating measures . . .
ATTY. BANIQUED : Yes, Your Honor.
J. PANGANIBAN : As a matter of fact a part of the mitigating measures would be the elimination of
the Excise Tax and the import duties. That is why, it is not correct to say that the VAT as to
petroleum dealers increased prices by 10%.
J. PANGANIBAN : And therefore, there is no justification for increasing the retail price by 10% to
cover the E-Vat tax. If you consider the excise tax and the import duties, the Net Tax would probably
be in the neighborhood of 7%? We are not going into exact figures I am just trying to deliver a point
that different industries, different products, different services are hit differently. So it’s not correct to
say that all prices must go up by 10%.
ATTY. BANIQUED : You’re right, Your Honor.
J. PANGANIBAN : Now. For instance, Domestic Airline companies, Mr. Counsel, are at present
imposed a Sales Tax of 3%. When this E-Vat law took effect the Sales Tax was also removed as a
mitigating measure. So, therefore, there is no justification to increase the fares by 10% at best 7%,
correct?
ATTY. BANIQUED : I guess so, Your Honor, yes.
J. PANGANIBAN : There are other products that the people were complaining on that first day, were
being increased arbitrarily by 10%. And that’s one reason among many others this Court had to
issue TRO because of the confusion in the implementation. That’s why we added as an issue in this
case, even if it’s tangentially taken up by the pleadings of the parties, the confusion in the
implementation of the E-vat. Our people were subjected to the mercy of that confusion of an across
the board increase of 10%, which you yourself now admit and I think even the Government will admit
is incorrect. In some cases, it should be 3% only, in some cases it should be 6% depending on these
mitigating measures and the location and situation of each product, of each service, of each
company, isn’t it?
J. PANGANIBAN : Alright. So that’s one reason why we had to issue a TRO pending the clarification
of all these and we wish the government will take time to clarify all these by means of a more
detailed implementing rules, in case the law is upheld by this Court. . . .6
The Court also directed the parties to file their respective Memoranda.
G.R. No. 168056
Before R.A. No. 9337 took effect, petitioners ABAKADA GURO Party List, et al., filed a petition for
prohibition on May 27, 2005. They question the constitutionality of Sections 4, 5 and 6 of R.A. No.
9337, amending Sections 106, 107 and 108, respectively, of the National Internal Revenue Code
(NIRC). Section 4 imposes a 10% VAT on sale of goods and properties, Section 5 imposes a 10%
VAT on importation of goods, and Section 6 imposes a 10% VAT on sale of services and use or
lease of properties. These questioned provisions contain a uniform proviso authorizing the
President, upon recommendation of the Secretary of Finance, to raise the VAT rate to 12%, effective
January 1, 2006, after any of the following conditions have been satisfied, to wit:
. . . That the President, upon the recommendation of the Secretary of Finance, shall, effective
January 1, 2006, raise the rate of value-added tax to twelve percent (12%), after any of the following
conditions has been satisfied:
(i) Value-added tax collection as a percentage of Gross Domestic Product (GDP) of the previous
year exceeds two and four-fifth percent (2 4/5%); or
(ii) National government deficit as a percentage of GDP of the previous year exceeds one and one-
half percent (1 ½%).
Petitioners argue that the law is unconstitutional, as it constitutes abandonment by Congress of its
exclusive authority to fix the rate of taxes under Article VI, Section 28(2) of the 1987 Philippine
Constitution.
G.R. No. 168207
On June 9, 2005, Sen. Aquilino Q. Pimentel, Jr., et al., filed a petition for certiorari likewise assailing
the constitutionality of Sections 4, 5 and 6 of R.A. No. 9337.
Aside from questioning the so-called stand-by authority of the President to increase the VAT rate to
12%, on the ground that it amounts to an undue delegation of legislative power, petitioners also
contend that the increase in the VAT rate to 12% contingent on any of the two conditions being
satisfied violates the due process clause embodied in Article III, Section 1 of the Constitution, as it
imposes an unfair and additional tax burden on the people, in that: (1) the 12% increase is
ambiguous because it does not state if the rate would be returned to the original 10% if the
conditions are no longer satisfied; (2) the rate is unfair and unreasonable, as the people are unsure
of the applicable VAT rate from year to year; and (3) the increase in the VAT rate, which is supposed
to be an incentive to the President to raise the VAT collection to at least 2 4/5 of the GDP of the
previous year, should only be based on fiscal adequacy.
Petitioners further claim that the inclusion of a stand-by authority granted to the President by the
Bicameral Conference Committee is a violation of the "no-amendment rule" upon last reading of a
bill laid down in Article VI, Section 26(2) of the Constitution.
G.R. No. 168461
Thereafter, a petition for prohibition was filed on June 29, 2005, by the Association of Pilipinas Shell
Dealers, Inc., et al., assailing the following provisions of R.A. No. 9337:
1) Section 8, amending Section 110 (A)(2) of the NIRC, requiring that the input tax on depreciable
goods shall be amortized over a 60-month period, if the acquisition, excluding the VAT components,
exceeds One Million Pesos (₱1, 000,000.00);
2) Section 8, amending Section 110 (B) of the NIRC, imposing a 70% limit on the amount of input tax
to be credited against the output tax; and
3) Section 12, amending Section 114 (c) of the NIRC, authorizing the Government or any of its
political subdivisions, instrumentalities or agencies, including GOCCs, to deduct a 5% final
withholding tax on gross payments of goods and services, which are subject to 10% VAT under
Sections 106 (sale of goods and properties) and 108 (sale of services and use or lease of
properties) of the NIRC.
Petitioners contend that these provisions are unconstitutional for being arbitrary, oppressive,
excessive, and confiscatory.
Petitioners’ argument is premised on the constitutional right of non-deprivation of life, liberty or

property without due process of law under Article III, Section 1 of the Constitution. According to
petitioners, the contested sections impose limitations on the amount of input tax that may be
claimed. Petitioners also argue that the input tax partakes the nature of a property that may not be
confiscated, appropriated, or limited without due process of law. Petitioners further contend that like
any other property or property right, the input tax credit may be transferred or disposed of, and that
by limiting the same, the government gets to tax a profit or value-added even if there is no profit or
value-added.
Petitioners also believe that these provisions violate the constitutional guarantee of equal protection
of the law under Article III, Section 1 of the Constitution, as the limitation on the creditable input tax
if: (1) the entity has a high ratio of input tax; or (2) invests in capital equipment; or (3) has several
transactions with the government, is not based on real and substantial differences to meet a valid
classification.
Lastly, petitioners contend that the 70% limit is anything but progressive, violative of Article VI,
Section 28(1) of the Constitution, and that it is the smaller businesses with higher input tax to output
tax ratio that will suffer the consequences thereof for it wipes out whatever meager margins the
petitioners make.
G.R. No. 168463
Several members of the House of Representatives led by Rep. Francis Joseph G. Escudero filed
this petition for certiorari on June 30, 2005. They question the constitutionality of R.A. No. 9337 on
the following grounds:
1) Sections 4, 5, and 6 of R.A. No. 9337 constitute an undue delegation of legislative power, in
violation of Article VI, Section 28(2) of the Constitution;
2) The Bicameral Conference Committee acted without jurisdiction in deleting the no pass
on provisions present in Senate Bill No. 1950 and House Bill No. 3705; and
3) Insertion by the Bicameral Conference Committee of Sections 27, 28, 34, 116, 117, 119, 121,
125,7 148, 151, 236, 237 and 288, which were present in Senate Bill No. 1950, violates Article VI,
Section 24(1) of the Constitution, which provides that all appropriation, revenue or tariff bills shall
originate exclusively in the House of Representatives
G.R. No. 168730
On the eleventh hour, Governor Enrique T. Garcia filed a petition for certiorari and prohibition on July
20, 2005, alleging unconstitutionality of the law on the ground that the limitation on the creditable
input tax in effect allows VAT-registered establishments to retain a portion of the taxes they collect,
thus violating the principle that tax collection and revenue should be solely allocated for public
purposes and expenditures. Petitioner Garcia further claims that allowing these establishments to
pass on the tax to the consumers is inequitable, in violation of Article VI, Section 28(1) of the
Constitution.
RESPONDENTS’ COMMENT
The Office of the Solicitor General (OSG) filed a Comment in behalf of respondents. Preliminarily,
respondents contend that R.A. No. 9337 enjoys the presumption of constitutionality and petitioners
failed to cast doubt on its validity.
Relying on the case of Tolentino vs. Secretary of Finance, 235 SCRA
630 (1994), respondents argue that the procedural issues raised by petitioners, i.e., legality of the
bicameral proceedings, exclusive origination of revenue measures and the power of the Senate
concomitant thereto, have already been settled. With regard to the issue of undue delegation of
legislative power to the President, respondents contend that the law is complete and leaves no
discretion to the President but to increase the rate to 12% once any of the two conditions provided
therein arise.
Respondents also refute petitioners’ argument that the increase to 12%, as well as the 70%
limitation on the creditable input tax, the 60-month amortization on the purchase or importation of
capital goods exceeding ₱1,000,000.00, and the 5% final withholding tax by government agencies,
is arbitrary, oppressive, and confiscatory, and that it violates the constitutional principle on
progressive taxation, among others.
Finally, respondents manifest that R.A. No. 9337 is the anchor of the government’s fiscal reform
agenda. A reform in the value-added system of taxation is the core revenue measure that will tilt the
balance towards a sustainable macroeconomic environment necessary for economic growth.
ISSUES
The Court defined the issues, as follows:
PROCEDURAL ISSUE
Whether R.A. No. 9337 violates the following provisions of the Constitution:
a. Article VI, Section 24, and
b. Article VI, Section 26(2)
SUBSTANTIVE ISSUES
1. Whether Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and 108 of the NIRC,
violate the following provisions of the Constitution:
a. Article VI, Section 28(1), and
2. Whether Section 8 of R.A. No. 9337, amending Sections 110(A)(2) and 110(B) of the NIRC; and
Section 12 of R.A. No. 9337, amending Section 114(C) of the NIRC, violate the following provisions
of the Constitution:
b. Article III, Section 1
RULING OF THE COURT
As a prelude, the Court deems it apt to restate the general principles and concepts of value-added
tax (VAT), as the confusion and inevitably, litigation, breeds from a fallacious notion of its nature.
The VAT is a tax on spending or consumption. It is levied on the sale, barter, exchange or lease of
goods or properties and services.8 Being an indirect tax on expenditure, the seller of goods or
services may pass on the amount of tax paid to the buyer,9 with the seller acting merely as a tax
collector.10 The burden of VAT is intended to fall on the immediate buyers and ultimately, the end-
consumers.
In contrast, a direct tax is a tax for which a taxpayer is directly liable on the transaction or business it
engages in, without transferring the burden to someone else.11 Examples are individual and
corporate income taxes, transfer taxes, and residence taxes.12
In the Philippines, the value-added system of sales taxation has long been in existence, albeit in a
different mode. Prior to 1978, the system was a single-stage tax computed under the "cost deduction
method" and was payable only by the original sellers. The single-stage system was subsequently
modified, and a mixture of the "cost deduction method" and "tax credit method" was used to
determine the value-added tax payable.13 Under the "tax credit method," an entity can credit against
or subtract from the VAT charged on its sales or outputs the VAT paid on its purchases, inputs and
imports.14
It was only in 1987, when President Corazon C. Aquino issued Executive Order No. 273, that the
VAT system was rationalized by imposing a multi-stage tax rate of 0% or 10% on all sales using the
"tax credit method."15
E.O. No. 273 was followed by R.A. No. 7716 or the Expanded VAT Law,16 R.A. No. 8241 or the
Improved VAT Law,17 R.A. No. 8424 or the Tax Reform Act of 1997,18 and finally, the presently
beleaguered R.A. No. 9337, also referred to by respondents as the VAT Reform Act.
The Court will now discuss the issues in logical sequence.
PROCEDURAL ISSUE
I.
Whether R.A. No. 9337 violates the following provisions of the Constitution:
a. Article VI, Section 24, and
A. The Bicameral Conference Committee
Petitioners Escudero, et al., and Pimentel, et al., allege that the Bicameral Conference Committee
exceeded its authority by:
1) Inserting the stand-by authority in favor of the President in Sections 4, 5, and 6 of R.A. No. 9337;
2) Deleting entirely the no pass-on provisions found in both the House and Senate bills;
3) Inserting the provision imposing a 70% limit on the amount of input tax to be credited against the
output tax; and
4) Including the amendments introduced only by Senate Bill No. 1950 regarding other kinds of taxes
in addition to the value-added tax.
Petitioners now beseech the Court to define the powers of the Bicameral Conference Committee.
It should be borne in mind that the power of internal regulation and discipline are intrinsic in any
legislative body for, as unerringly elucidated by Justice Story, "[i]f the power did not exist, it would
be utterly impracticable to transact the business of the nation, either at all, or at least with
decency, deliberation, and order."19 Thus, Article VI, Section 16 (3) of the Constitution provides
that "each House may determine the rules of its proceedings." Pursuant to this inherent
constitutional power to promulgate and implement its own rules of procedure, the respective rules of
each house of Congress provided for the creation of a Bicameral Conference Committee.
Thus, Rule XIV, Sections 88 and 89 of the Rules of House of Representatives provides as follows:
Sec. 88. Conference Committee. – In the event that the House does not agree with the Senate on
the amendment to any bill or joint resolution, the differences may be settled by the conference
committees of both chambers.
In resolving the differences with the Senate, the House panel shall, as much as possible, adhere to
and support the House Bill. If the differences with the Senate are so substantial that they materially
impair the House Bill, the panel shall report such fact to the House for the latter’s appropriate action.
Sec. 89. Conference Committee Reports. – . . . Each report shall contain a detailed, sufficiently
explicit statement of the changes in or amendments to the subject measure.
...
The Chairman of the House panel may be interpellated on the Conference Committee Report prior
to the voting thereon. The House shall vote on the Conference Committee Report in the same
manner and procedure as it votes on a bill on third and final reading.
Rule XII, Section 35 of the Rules of the Senate states:
Sec. 35. In the event that the Senate does not agree with the House of Representatives on the
provision of any bill or joint resolution, the differences shall be settled by a conference committee of
both Houses which shall meet within ten (10) days after their composition. The President shall
designate the members of the Senate Panel in the conference committee with the approval of the
Senate.
Each Conference Committee Report shall contain a detailed and sufficiently explicit statement of the
changes in, or amendments to the subject measure, and shall be signed by a majority of the
members of each House panel, voting separately.
A comparative presentation of the conflicting House and Senate provisions and a reconciled version
thereof with the explanatory statement of the conference committee shall be attached to the report.
...
The creation of such conference committee was apparently in response to a problem, not addressed
by any constitutional provision, where the two houses of Congress find themselves in disagreement
over changes or amendments introduced by the other house in a legislative bill. Given that one of
the most basic powers of the legislative branch is to formulate and implement its own rules of
proceedings and to discipline its members, may the Court then delve into the details of how
Congress complies with its internal rules or how it conducts its business of passing legislation? Note
that in the present petitions, the issue is not whether provisions of the rules of both houses creating
the bicameral conference committee are unconstitutional, but whether the bicameral conference
committee has strictly complied with the rules of both houses, thereby remaining within the
jurisdiction conferred upon it by Congress.
In the recent case of Fariñas vs. The Executive Secretary,20 the Court En
Banc, unanimously reiterated and emphasized its adherence to the "enrolled bill doctrine," thus,
declining therein petitioners’ plea for the Court to go behind the enrolled copy of the bill. Assailed in
said case was Congress’s creation of two sets of bicameral conference committees, the lack of
records of said committees’ proceedings, the alleged violation of said committees of the rules of both
houses, and the disappearance or deletion of one of the provisions in the compromise bill submitted
by the bicameral conference committee. It was argued that such irregularities in the passage of the
law nullified R.A. No. 9006, or the Fair Election Act.
Striking down such argument, the Court held thus:
Under the "enrolled bill doctrine," the signing of a bill by the Speaker of the House and the Senate
President and the certification of the Secretaries of both Houses of Congress that it was passed are
conclusive of its due enactment. A review of cases reveals the Court’s consistent adherence to the
rule. The Court finds no reason to deviate from the salutary rule in this case where the
irregularities alleged by the petitioners mostly involved the internal rules of Congress, e.g.,
creation of the 2nd or 3rd Bicameral Conference Committee by the House. This Court is not
the proper forum for the enforcement of these internal rules of Congress, whether House or
Senate. Parliamentary rules are merely procedural and with their observance the courts have
no concern. Whatever doubts there may be as to the formal validity of Rep. Act No. 9006 must
be resolved in its favor.The Court reiterates its ruling in Arroyo vs. De Venecia, viz.:
But the cases, both here and abroad, in varying forms of expression, all deny to the courts the
power to inquire into allegations that, in enacting a law, a House of Congress failed to comply
with its own rules, in the absence of showing that there was a violation of a constitutional
provision or the rights of private individuals. In Osmeña v. Pendatun, it was held: "At any rate,
courts have declared that ‘the rules adopted by deliberative bodies are subject to revocation,
modification or waiver at the pleasure of the body adopting them.’ And it has been said that
"Parliamentary rules are merely procedural, and with their observance, the courts have no
concern. They may be waived or disregarded by the legislative body." Consequently, "mere
failure to conform to parliamentary usage will not invalidate the action (taken by a
deliberative body) when the requisite number of members have agreed to a particular
measure."21 (Emphasis supplied)
The foregoing declaration is exactly in point with the present cases, where petitioners allege
irregularities committed by the conference committee in introducing changes or deleting provisions in
the House and Senate bills. Akin to the Fariñas case,22 the present petitions also raise an issue
regarding the actions taken by the conference committee on matters regarding Congress’
compliance with its own internal rules. As stated earlier, one of the most basic and inherent power of
the legislature is the power to formulate rules for its proceedings and the discipline of its members.
Congress is the best judge of how it should conduct its own business expeditiously and in the most
orderly manner. It is also the sole
concern of Congress to instill discipline among the members of its conference committee if it
believes that said members violated any of its rules of proceedings. Even the expanded jurisdiction
of this Court cannot apply to questions regarding only the internal operation of Congress, thus, the
Court is wont to deny a review of the internal proceedings of a co-equal branch of government.
Moreover, as far back as 1994 or more than ten years ago, in the case of Tolentino vs. Secretary of
Finance,23 the Court already made the pronouncement that "[i]f a change is desired in the practice
[of the Bicameral Conference Committee] it must be sought in Congress since this question
is not covered by any constitutional provision but is only an internal rule of each house." 24 To
date, Congress has not seen it fit to make such changes adverted to by the Court. It seems,
therefore, that Congress finds the practices of the bicameral conference committee to be very useful
for purposes of prompt and efficient legislative action.
Nevertheless, just to put minds at ease that no blatant irregularities tainted the proceedings of the
bicameral conference committees, the Court deems it necessary to dwell on the issue. The Court
observes that there was a necessity for a conference committee because a comparison of the
provisions of House Bill Nos. 3555 and 3705 on one hand, and Senate Bill No. 1950 on the other,
reveals that there were indeed disagreements. As pointed out in the petitions, said disagreements
were as follows:
House Bill No. 3555 House Bill No.3705 Senate Bill No. 1950
With regard to "Stand-By Authority" in favor of President
Provides for 12% VAT on Provides for 12% VAT in general Provides for a single rate of
every sale of goods or on sales of goods or properties 10% VAT on sale of goods or
properties (amending Sec. and reduced rates for sale of properties (amending Sec.
106 of NIRC); 12% VAT on certain locally manufactured 106 of NIRC), 10% VAT on
importation of goods goods and petroleum products sale of services including
(amending Sec. 107 of and raw materials to be used in sale of electricity by
NIRC); and 12% VAT on the manufacture thereof generation companies,
sale of services and use or (amending Sec. 106 of NIRC); transmission and distribution
lease of properties 12% VAT on importation of companies, and use or lease
(amending Sec. 108 of goods and reduced rates for of properties (amending Sec.
NIRC) certain imported products 108 of NIRC)
including petroleum products
(amending Sec. 107 of NIRC);
and 12% VAT on sale of
services and use or lease of
properties and a reduced rate for
certain services including power
generation (amending Sec. 108
of NIRC)
With regard to the "no pass-on" provision
No similar provision Provides that the VAT imposed Provides that the VAT
on power generation and on the imposed on sales of
sale of petroleum products shall electricity by generation
be absorbed by generation companies and services of
companies or sellers, transmission companies and
respectively, and shall not be distribution companies, as
passed on to consumers well as those of franchise
grantees of electric utilities
shall not apply to residential
end-users. VAT shall be

absorbed by generation,
transmission, and distribution
companies.
With regard to 70% limit on input tax credit
Provides that the input tax No similar provision Provides that the input tax
credit for capital goods on credit for capital goods on
which a VAT has been paid which a VAT has been paid
shall be equally distributed shall be equally distributed
over 5 years or the over 5 years or the
depreciable life of such depreciable life of such
capital goods; the input tax capital goods; the input tax
credit for goods and services credit for goods and services
other than capital goods other than capital goods shall
shall not exceed 5% of the
total amount of such goods not exceed 90% of the output
and services; and for VAT.
persons engaged in retail
trading of goods, the
allowable input tax credit
shall not exceed 11% of the
total amount of goods
purchased.
With regard to amendments to be made to NIRC provisions regarding income and excise
taxes
No similar provision No similar provision Provided for amendments to
several NIRC provisions
regarding corporate income,
percentage, franchise and
excise taxes
The disagreements between the provisions in the House bills and the Senate bill were with regard to
(1) what rate of VAT is to be imposed; (2) whether only the VAT imposed on electricity generation,
transmission and distribution companies should not be passed on to consumers, as proposed in the
Senate bill, or both the VAT imposed on electricity generation, transmission and distribution
companies and the VAT imposed on sale of petroleum products should not be passed on to
consumers, as proposed in the House bill; (3) in what manner input tax credits should be limited; (4)
and whether the NIRC provisions on corporate income taxes, percentage, franchise and excise
taxes should be amended.
There being differences and/or disagreements on the foregoing provisions of the House and Senate
bills, the Bicameral Conference Committee was mandated by the rules of both houses of Congress
to act on the same by settling said differences and/or disagreements. The Bicameral Conference
Committee acted on the disagreeing provisions by making the following changes:
1. With regard to the disagreement on the rate of VAT to be imposed, it would appear from the
Conference Committee Report that the Bicameral Conference Committee tried to bridge the gap in
the difference between the 10% VAT rate proposed by the Senate, and the various rates with 12%
as the highest VAT rate proposed by the House, by striking a compromise whereby the present 10%
VAT rate would be retained until certain conditions arise, i.e., the value-added tax collection as a
percentage of gross domestic product (GDP) of the previous year exceeds 2 4/5%, or National
Government deficit as a percentage of GDP of the previous year exceeds 1½%, when the President,
upon recommendation of the Secretary of Finance shall raise the rate of VAT to 12% effective
January 1, 2006.
2. With regard to the disagreement on whether only the VAT imposed on electricity generation,
transmission and distribution companies should not be passed on to consumers or whether both the
VAT imposed on electricity generation, transmission and distribution companies and the VAT
imposed on sale of petroleum products may be passed on to consumers, the Bicameral Conference
Committee chose to settle such disagreement by altogether deleting from its Report any no pass-
on provision.
3. With regard to the disagreement on whether input tax credits should be limited or not, the
Bicameral Conference Committee decided to adopt the position of the House by putting a limitation
on the amount of input tax that may be credited against the output tax, although it crafted its own
language as to the amount of the limitation on input tax credits and the manner of computing the
same by providing thus:
(A) Creditable Input Tax. – . . .
...
Provided, The input tax on goods purchased or imported in a calendar month for use in trade or
business for which deduction for depreciation is allowed under this Code, shall be spread evenly
over the month of acquisition and the fifty-nine (59) succeeding months if the aggregate acquisition
cost for such goods, excluding the VAT component thereof, exceeds one million Pesos
(₱1,000,000.00): PROVIDED, however, that if the estimated useful life of the capital good is less
than five (5) years, as used for depreciation purposes, then the input VAT shall be spread over such
shorter period: . . .
(B) Excess Output or Input Tax. – If at the end of any taxable quarter the output tax exceeds the
input tax, the excess shall be paid by the VAT-registered person. If the input tax exceeds the output
tax, the excess shall be carried over to the succeeding quarter or quarters: PROVIDED that the input
tax inclusive of input VAT carried over from the previous quarter that may be credited in every
quarter shall not exceed seventy percent (70%) of the output VAT: PROVIDED, HOWEVER, THAT
any input tax attributable to zero-rated sales by a VAT-registered person may at his option be
refunded or credited against other internal revenue taxes, . . .
4. With regard to the amendments to other provisions of the NIRC on corporate income tax,
franchise, percentage and excise taxes, the conference committee decided to include such
amendments and basically adopted the provisions found in Senate Bill No. 1950, with some changes
as to the rate of the tax to be imposed.
Under the provisions of both the Rules of the House of Representatives and Senate Rules, the
Bicameral Conference Committee is mandated to settle the differences between the disagreeing
provisions in the House bill and the Senate bill. The term "settle" is synonymous to "reconcile" and
"harmonize."25 To reconcile or harmonize disagreeing provisions, the Bicameral Conference
Committee may then (a) adopt the specific provisions of either the House bill or Senate bill, (b)
decide that neither provisions in the House bill or the provisions in the Senate bill would
be carried into the final form of the bill, and/or (c) try to arrive at a compromise between the
disagreeing provisions.
In the present case, the changes introduced by the Bicameral Conference Committee on
disagreeing provisions were meant only to reconcile and harmonize the disagreeing provisions for it
did not inject any idea or intent that is wholly foreign to the subject embraced by the original
provisions.
The so-called stand-by authority in favor of the President, whereby the rate of 10% VAT wanted by
the Senate is retained until such time that certain conditions arise when the 12% VAT wanted by the
House shall be imposed, appears to be a compromise to try to bridge the difference in the rate of
VAT proposed by the two houses of Congress. Nevertheless, such compromise is still totally within
the subject of what rate of VAT should be imposed on taxpayers.
The no pass-on provision was deleted altogether. In the transcripts of the proceedings of the
Bicameral Conference Committee held on May 10, 2005, Sen. Ralph Recto, Chairman of the Senate
Panel, explained the reason for deleting the no pass-on provision in this wise:
. . . the thinking was just to keep the VAT law or the VAT bill simple. And we were thinking that no
sector should be a beneficiary of legislative grace, neither should any sector be discriminated on.
The VAT is an indirect tax. It is a pass on-tax. And let’s keep it plain and simple. Let’s not confuse
the bill and put a no pass-on provision. Two-thirds of the world have a VAT system and in this two-
thirds of the globe, I have yet to see a VAT with a no pass-though provision. So, the thinking of the
Senate is basically simple, let’s keep the VAT simple.26 (Emphasis supplied)
Rep. Teodoro Locsin further made the manifestation that the no pass-on provision "never really
enjoyed the support of either House."27
With regard to the amount of input tax to be credited against output tax, the Bicameral Conference
Committee came to a compromise on the percentage rate of the limitation or cap on such input tax
credit, but again, the change introduced by the Bicameral Conference Committee was totally within
the intent of both houses to put a cap on input tax that may be
credited against the output tax. From the inception of the subject revenue bill in the House of
Representatives, one of the major objectives was to "plug a glaring loophole in the tax policy and
administration by creating vital restrictions on the claiming of input VAT tax credits . . ." and "[b]y
introducing limitations on the claiming of tax credit, we are capping a major leakage that has placed
our collection efforts at an apparent disadvantage."28
As to the amendments to NIRC provisions on taxes other than the value-added tax proposed in
Senate Bill No. 1950, since said provisions were among those referred to it, the conference
committee had to act on the same and it basically adopted the version of the Senate.
Thus, all the changes or modifications made by the Bicameral Conference Committee were germane
to subjects of the provisions referred
to it for reconciliation. Such being the case, the Court does not see any grave abuse of discretion
amounting to lack or excess of jurisdiction committed by the Bicameral Conference Committee. In
the earlier cases of Philippine Judges Association vs. Prado29 and Tolentino vs. Secretary of
Finance,30 the Court recognized the long-standing legislative practice of giving said conference
committee ample latitude for compromising differences between the Senate and the House. Thus, in
the Tolentino case, it was held that:
. . . it is within the power of a conference committee to include in its report an entirely new provision
that is not found either in the House bill or in the Senate bill. If the committee can propose an
amendment consisting of one or two provisions, there is no reason why it cannot propose several
provisions, collectively considered as an "amendment in the nature of a substitute," so long as such
amendment is germane to the subject of the bills before the committee. After all, its report was not
final but needed the approval of both houses of Congress to become valid as an act of the legislative
department. The charge that in this case the Conference Committee acted as a third legislative
chamber is thus without any basis.31 (Emphasis supplied)
B. R.A. No. 9337 Does Not Violate Article VI, Section 26(2) of the Constitution on the "No-
Amendment Rule"
Article VI, Sec. 26 (2) of the Constitution, states:
No bill passed by either House shall become a law unless it has passed three readings on separate
days, and printed copies thereof in its final form have been distributed to its Members three days
before its passage, except when the President certifies to the necessity of its immediate enactment
to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall
be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays
entered in the Journal.
Petitioners’ argument that the practice where a bicameral conference committee is allowed to add or
delete provisions in the House bill and the Senate bill after these had passed three readings is in
effect a circumvention of the "no amendment rule" (Sec. 26 (2), Art. VI of the 1987 Constitution), fails
to convince the Court to deviate from its ruling in the Tolentino case that:
Nor is there any reason for requiring that the Committee’s Report in these cases must have
undergone three readings in each of the two houses. If that be the case, there would be no end to
negotiation since each house may seek modification of the compromise bill. . . .
Art. VI. § 26 (2) must, therefore, be construed as referring only to bills introduced for the first
time in either house of Congress, not to the conference committee report.32 (Emphasis
supplied)
The Court reiterates here that the "no-amendment rule" refers only to the procedure to be
followed by each house of Congress with regard to bills initiated in each of said respective
houses, before said bill is transmitted to the other house for its concurrence or amendment.
Verily, to construe said provision in a way as to proscribe any further changes to a bill after one
house has voted on it would lead to absurdity as this would mean that the other house of Congress
would be deprived of its constitutional power to amend or introduce changes to said bill. Thus, Art.
VI, Sec. 26 (2) of the Constitution cannot be taken to mean that the introduction by the Bicameral
Conference Committee of amendments and modifications to disagreeing provisions in bills that have
been acted upon by both houses of Congress is prohibited.
C. R.A. No. 9337 Does Not Violate Article VI, Section 24 of the Constitution on Exclusive Origination
of Revenue Bills
Coming to the issue of the validity of the amendments made regarding the NIRC provisions on
corporate income taxes and percentage, excise taxes. Petitioners refer to the following provisions, to
wit:
Section 27 Rates of Income Tax on Domestic Corporation

28(A)(1) Tax on Resident Foreign Corporation
28(B)(1) Inter-corporate Dividends
34(B)(1) Inter-corporate Dividends
116 Tax on Persons Exempt from VAT
117 Percentage Tax on domestic carriers and keepers of Garage
119 Tax on franchises
121 Tax on banks and Non-Bank Financial Intermediaries
148 Excise Tax on manufactured oils and other fuels
151 Excise Tax on mineral products
236 Registration requirements
237 Issuance of receipts or sales or commercial invoices
288 Disposition of Incremental Revenue
Petitioners claim that the amendments to these provisions of the NIRC did not at all originate from
the House. They aver that House Bill No. 3555 proposed amendments only regarding Sections 106,
107, 108, 110 and 114 of the NIRC, while House Bill No. 3705 proposed amendments only to
Sections 106, 107,108, 109, 110 and 111 of the NIRC; thus, the other sections of the NIRC which
the Senate amended but which amendments were not found in the House bills are not intended to
be amended by the House of Representatives. Hence, they argue that since the proposed
amendments did not originate from the House, such amendments are a violation of Article VI,
Section 24 of the Constitution.
The argument does not hold water.
Article VI, Section 24 of the Constitution reads:
Sec. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of
local application, and private bills shall originate exclusively in the House of Representatives but the
Senate may propose or concur with amendments.
In the present cases, petitioners admit that it was indeed House Bill Nos. 3555 and 3705 that
initiated the move for amending provisions of the NIRC dealing mainly with the value-added tax.
Upon transmittal of said House bills to the Senate, the Senate came out with Senate Bill No. 1950
proposing amendments not only to NIRC provisions on the value-added tax but also amendments to
NIRC provisions on other kinds of taxes. Is the introduction by the Senate of provisions not dealing
directly with the value- added tax, which is the only kind of tax being amended in the House bills, still
within the purview of the constitutional provision authorizing the Senate to propose or concur with
amendments to a revenue bill that originated from the House?
The foregoing question had been squarely answered in the Tolentino case, wherein the Court held,
thus:
. . . To begin with, it is not the law – but the revenue bill – which is required by the Constitution to
"originate exclusively" in the House of Representatives. It is important to emphasize this, because a
bill originating in the House may undergo such extensive changes in the Senate that the result may
be a rewriting of the whole. . . . At this point, what is important to note is that, as a result of the
Senate action, a distinct bill may be produced. To insist that a revenue statute – and not only the
bill which initiated the legislative process culminating in the enactment of the law – must
substantially be the same as the House bill would be to deny the Senate’s power not only to
"concur with amendments" but also to "propose amendments." It would be to violate the
coequality of legislative power of the two houses of Congress and in fact make the House superior to
the Senate.
…Given, then, the power of the Senate to propose amendments, the Senate can propose its
own version even with respect to bills which are required by the Constitution to originate in
the House.
...
Indeed, what the Constitution simply means is that the initiative for filing revenue, tariff or tax bills,
bills authorizing an increase of the public debt, private bills and bills of local application must come
from the House of Representatives on the theory that, elected as they are from the districts, the
members of the House can be expected to be more sensitive to the local needs and
problems. On the other hand, the senators, who are elected at large, are expected to
approach the same problems from the national perspective. Both views are thereby made to
bear on the enactment of such laws.33 (Emphasis supplied)
Since there is no question that the revenue bill exclusively originated in the House of
Representatives, the Senate was acting within its
constitutional power to introduce amendments to the House bill when it included provisions in
Senate Bill No. 1950 amending corporate income taxes, percentage, excise and franchise taxes.
Verily, Article VI, Section 24 of the Constitution does not contain any prohibition or limitation on the
extent of the amendments that may be introduced by the Senate to the House revenue bill.
Furthermore, the amendments introduced by the Senate to the NIRC provisions that had not been
touched in the House bills are still in furtherance of the intent of the House in initiating the subject
revenue bills. The Explanatory Note of House Bill No. 1468, the very first House bill introduced on
the floor, which was later substituted by House Bill No. 3555, stated:
One of the challenges faced by the present administration is the urgent and daunting task of solving
the country’s serious financial problems. To do this, government expenditures must be strictly
monitored and controlled and revenues must be significantly increased. This may be easier said
than done, but our fiscal authorities are still optimistic the government will be operating on a
balanced budget by the year 2009. In fact, several measures that will result to significant expenditure
savings have been identified by the administration. It is supported with a credible package of
revenue measures that include measures to improve tax administration and control the
leakages in revenues from income taxes and the value-added tax (VAT). (Emphasis supplied)
Rep. Eric D. Singson, in his sponsorship speech for House Bill No. 3555, declared that:
In the budget message of our President in the year 2005, she reiterated that we all acknowledged
that on top of our agenda must be the restoration of the health of our fiscal system.
In order to considerably lower the consolidated public sector deficit and eventually achieve a
balanced budget by the year 2009, we need to seize windows of opportunities which might
seem poignant in the beginning, but in the long run prove effective and beneficial to the
overall status of our economy. One such opportunity is a review of existing tax rates,
evaluating the relevance given our present conditions.34 (Emphasis supplied)
Notably therefore, the main purpose of the bills emanating from the House of Representatives is to
bring in sizeable revenues for the government
to supplement our country’s serious financial problems, and improve tax administration and control
of the leakages in revenues from income taxes and value-added taxes. As these house bills were
transmitted to the Senate, the latter, approaching the measures from the point of national
perspective, can introduce amendments within the purposes of those bills. It can provide for ways
that would soften the impact of the VAT measure on the consumer, i.e., by distributing the burden
across all sectors instead of putting it entirely on the shoulders of the consumers. The sponsorship
speech of Sen. Ralph Recto on why the provisions on income tax on corporation were included is
worth quoting:
All in all, the proposal of the Senate Committee on Ways and Means will raise ₱64.3 billion in
additional revenues annually even while by mitigating prices of power, services and petroleum
products.
However, not all of this will be wrung out of VAT. In fact, only ₱48.7 billion amount is from the VAT
on twelve goods and services. The rest of the tab – ₱10.5 billion- will be picked by corporations.
What we therefore prescribe is a burden sharing between corporate Philippines and the consumer.
Why should the latter bear all the pain? Why should the fiscal salvation be only on the burden of the
consumer?
The corporate world’s equity is in form of the increase in the corporate income tax from 32 to 35
percent, but up to 2008 only. This will raise ₱10.5 billion a year. After that, the rate will slide back,
not to its old rate of 32 percent, but two notches lower, to 30 percent.
Clearly, we are telling those with the capacity to pay, corporations, to bear with this emergency
provision that will be in effect for 1,200 days, while we put our fiscal house in order. This fiscal
medicine will have an expiry date.
For their assistance, a reward of tax reduction awaits them. We intend to keep the length of their
sacrifice brief. We would like to assure them that not because there is a light at the end of the tunnel,
this government will keep on making the tunnel long.
The responsibility will not rest solely on the weary shoulders of the small man. Big business will be
there to share the burden.35
As the Court has said, the Senate can propose amendments and in fact, the amendments made on
provisions in the tax on income of corporations are germane to the purpose of the house bills which
is to raise revenues for the government.
Likewise, the Court finds the sections referring to other percentage and excise taxes germane to the
reforms to the VAT system, as these sections would cushion the effects of VAT on consumers.
Considering that certain goods and services which were subject to percentage tax and excise tax
would no longer be VAT-exempt, the consumer would be burdened more as they would be paying
the VAT in addition to these taxes. Thus, there is a need to amend these sections to soften the
impact of VAT. Again, in his sponsorship speech, Sen. Recto said:
However, for power plants that run on oil, we will reduce to zero the present excise tax on bunker
fuel, to lessen the effect of a VAT on this product.
For electric utilities like Meralco, we will wipe out the franchise tax in exchange for a VAT.
And in the case of petroleum, while we will levy the VAT on oil products, so as not to destroy the
VAT chain, we will however bring down the excise tax on socially sensitive products such as diesel,
bunker, fuel and kerosene.
...
What do all these exercises point to? These are not contortions of giving to the left hand what was
taken from the right. Rather, these sprang from our concern of softening the impact of VAT, so that
the people can cushion the blow of higher prices they will have to pay as a result of VAT.36
The other sections amended by the Senate pertained to matters of tax administration which are
necessary for the implementation of the changes in the VAT system.
To reiterate, the sections introduced by the Senate are germane to the subject matter and purposes
of the house bills, which is to supplement our country’s fiscal deficit, among others. Thus, the Senate
acted within its power to propose those amendments.
SUBSTANTIVE ISSUES
I.
Whether Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and 108 of the NIRC,
violate the following provisions of the Constitution:
A. No Undue Delegation of Legislative Power
Petitioners ABAKADA GURO Party List, et al., Pimentel, Jr., et al., and Escudero, et al. contend in
common that Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and 108,
respectively, of the NIRC giving the President the stand-by authority to raise the VAT rate from 10%
to 12% when a certain condition is met, constitutes undue delegation of the legislative power to tax.
The assailed provisions read as follows:
SEC. 4. Sec. 106 of the same Code, as amended, is hereby further amended to read as follows:
SEC. 106. Value-Added Tax on Sale of Goods or Properties. –
(A) Rate and Base of Tax. – There shall be levied, assessed and collected on every sale, barter or
exchange of goods or properties, a value-added tax equivalent to ten percent (10%) of the gross
selling price or gross value in money of the goods or properties sold, bartered or exchanged, such
tax to be paid by the seller or transferor: provided, that the President, upon the recommendation
of the Secretary of Finance, shall, effective January 1, 2006, raise the rate of value-added tax
to twelve percent (12%), after any of the following conditions has been satisfied.
(i) value-added tax collection as a percentage of Gross Domestic Product (GDP) of the
previous year exceeds two and four-fifth percent (2 4/5%) or
(ii) national government deficit as a percentage of GDP of the previous year exceeds one and
one-half percent (1 ½%).
SEC. 5. Section 107 of the same Code, as amended, is hereby further amended to read as follows:
SEC. 107. Value-Added Tax on Importation of Goods. –
(A) In General. – There shall be levied, assessed and collected on every importation of goods a
value-added tax equivalent to ten percent (10%) based on the total value used by the Bureau of
Customs in determining tariff and customs duties, plus customs duties, excise taxes, if any, and
other charges, such tax to be paid by the importer prior to the release of such goods from customs
custody: Provided, That where the customs duties are determined on the basis of the quantity or
volume of the goods, the value-added tax shall be based on the landed cost plus excise taxes, if
any: provided, further, that the President, upon the recommendation of the Secretary of
Finance, shall, effective January 1, 2006, raise the rate of value-added tax to twelve percent
(12%) after any of the following conditions has been satisfied.
one-half percent (1 ½%).
SEC. 6. Section 108 of the same Code, as amended, is hereby further amended to read as follows:
SEC. 108. Value-added Tax on Sale of Services and Use or Lease of Properties –
(A) Rate and Base of Tax. – There shall be levied, assessed and collected, a value-added tax
equivalent to ten percent (10%) of gross receipts derived from the sale or exchange of
services: provided, that the President, upon the recommendation of the Secretary of Finance,
shall, effective January 1, 2006, raise the rate of value-added tax to twelve percent (12%),
after any of the following conditions has been satisfied.
one-half percent (1 ½%). (Emphasis supplied)
Petitioners allege that the grant of the stand-by authority to the President to increase the VAT rate is
a virtual abdication by Congress of its exclusive power to tax because such delegation is not within
the purview of Section 28 (2), Article VI of the Constitution, which provides:
The Congress may, by law, authorize the President to fix within specified limits, and may impose,
tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within
the framework of the national development program of the government.
They argue that the VAT is a tax levied on the sale, barter or exchange of goods and properties as
well as on the sale or exchange of services, which cannot be included within the purview of tariffs
under the exempted delegation as the latter refers to customs duties, tolls or tribute payable upon
merchandise to the government and usually imposed on goods or merchandise imported or
exported.
Petitioners ABAKADA GURO Party List, et al., further contend that delegating to the President the
legislative power to tax is contrary to republicanism. They insist that accountability, responsibility and
transparency should dictate the actions of Congress and they should not pass to the President the
decision to impose taxes. They also argue that the law also effectively nullified the President’s power
of control, which includes the authority to set aside and nullify the acts of her subordinates like the
Secretary of Finance, by mandating the fixing of the tax rate by the President upon the
recommendation of the Secretary of Finance.
Petitioners Pimentel, et al. aver that the President has ample powers to cause, influence or create
the conditions provided by the law to bring about either or both the conditions precedent.
On the other hand, petitioners Escudero, et al. find bizarre and revolting the situation that the
imposition of the 12% rate would be subject to the whim of the Secretary of Finance, an unelected
bureaucrat, contrary to the principle of no taxation without representation. They submit that the
Secretary of Finance is not mandated to give a favorable recommendation and he may not even give
his recommendation. Moreover, they allege that no guiding standards are provided in the law on
what basis and as to how he will make his recommendation. They claim, nonetheless, that any
recommendation of the Secretary of Finance can easily be brushed aside by the President since the
former is a mere alter ego of the latter, such that, ultimately, it is the President who decides whether
to impose the increased tax rate or not.
A brief discourse on the principle of non-delegation of powers is instructive.
The principle of separation of powers ordains that each of the three great branches of government
has exclusive cognizance of and is supreme in matters falling within its own constitutionally allocated
sphere.37 A logical
corollary to the doctrine of separation of powers is the principle of non-delegation of powers, as

expressed in the Latin maxim: potestas delegata non delegari potest which means "what has been
delegated, cannot be delegated."38 This doctrine is based on the ethical principle that such as
delegated power constitutes not only a right but a duty to be performed by the delegate through the
instrumentality of his own judgment and not through the intervening mind of another.39
With respect to the Legislature, Section 1 of Article VI of the Constitution provides that "the
Legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate
and a House of Representatives." The powers which Congress is prohibited from delegating are
those which are strictly, or inherently and exclusively, legislative. Purely legislative power, which can
never be delegated, has been described as the authority to make a complete law – complete as
to the time when it shall take effect and as to whom it shall be applicable – and to determine
the expediency of its enactment.40 Thus, the rule is that in order that a court may be justified in
holding a statute unconstitutional as a delegation of legislative power, it must appear that the power
involved is purely legislative in nature – that is, one appertaining exclusively to the legislative
department. It is the nature of the power, and not the liability of its use or the manner of its exercise,
which determines the validity of its delegation.
Nonetheless, the general rule barring delegation of legislative powers is subject to the following
recognized limitations or exceptions:
(1) Delegation of tariff powers to the President under Section 28 (2) of Article VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23 (2) of Article VI of the
Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies.
In every case of permissible delegation, there must be a showing that the delegation itself is valid. It
is valid only if the law (a) is complete in itself, setting forth therein the policy to be executed, carried
out, or implemented by the delegate;41 and (b) fixes a standard — the limits of which are sufficiently
determinate and determinable — to which the delegate must conform in the performance of his
functions.42 A sufficient standard is one which defines legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to apply it. It indicates the circumstances under which
the legislative command is to be effected.43 Both tests are intended to prevent a total transference of
legislative authority to the delegate, who is not allowed to step into the shoes of the legislature and
exercise a power essentially legislative.44
In People vs. Vera,45 the Court, through eminent Justice Jose P. Laurel, expounded on the concept
and extent of delegation of power in this wise:
In testing whether a statute constitutes an undue delegation of legislative power or not, it is usual to
inquire whether the statute was complete in all its terms and provisions when it left the hands of the
legislature so that nothing was left to the judgment of any other appointee or delegate of the
legislature.
...
‘The true distinction’, says Judge Ranney, ‘is between the delegation of power to make the
law, which necessarily involves a discretion as to what it shall be, and conferring an authority
or discretion as to its execution, to be exercised under and in pursuance of the law. The first
cannot be done; to the latter no valid objection can be made.’
...
It is contended, however, that a legislative act may be made to the effect as law after it leaves the
hands of the legislature. It is true that laws may be made effective on certain contingencies, as by
proclamation of the executive or the adoption by the people of a particular community. In Wayman
vs. Southard, the Supreme Court of the United States ruled that the legislature may delegate a
power not legislative which it may itself rightfully exercise. The power to ascertain facts is such a
power which may be delegated. There is nothing essentially legislative in ascertaining the
existence of facts or conditions as the basis of the taking into effect of a law. That is a mental
process common to all branches of the government. Notwithstanding the apparent tendency,
however, to relax the rule prohibiting delegation of legislative authority on account of the complexity
arising from social and economic forces at work in this modern industrial age, the orthodox
pronouncement of Judge Cooley in his work on Constitutional Limitations finds restatement in Prof.
Willoughby's treatise on the Constitution of the United States in the following language — speaking
of declaration of legislative power to administrative agencies: The principle which permits the
legislature to provide that the administrative agent may determine when the circumstances
are such as require the application of a law is defended upon the ground that at the time this
authority is granted, the rule of public policy, which is the essence of the legislative act, is
determined by the legislature. In other words, the legislature, as it is its duty to do,
determines that, under given circumstances, certain executive or administrative action is to
be taken, and that, under other circumstances, different or no action at all is to be taken.
What is thus left to the administrative official is not the legislative determination of what
public policy demands, but simply the ascertainment of what the facts of the case require to
be done according to the terms of the law by which he is governed. The efficiency of an Act
as a declaration of legislative will must, of course, come from Congress, but the
ascertainment of the contingency upon which the Act shall take effect may be left to such
agencies as it may designate. The legislature, then, may provide that a law shall take effect
upon the happening of future specified contingencies leaving to some other person or body
the power to determine when the specified contingency has arisen. (Emphasis supplied).46
In Edu vs. Ericta,47 the Court reiterated:
What cannot be delegated is the authority under the Constitution to make laws and to alter and
repeal them; the test is the completeness of the statute in all its terms and provisions when it leaves
the hands of the legislature. To determine whether or not there is an undue delegation of legislative
power, the inquiry must be directed to the scope and definiteness of the measure enacted. The
legislative does not abdicate its functions when it describes what job must be done, who is to
do it, and what is the scope of his authority. For a complex economy, that may be the only way in
which the legislative process can go forward. A distinction has rightfully been made between
delegation of power to make the laws which necessarily involves a discretion as to what it
shall be, which constitutionally may not be done, and delegation of authority or discretion as
to its execution to be exercised under and in pursuance of the law, to which no valid
objection can be made. The Constitution is thus not to be regarded as denying the legislature the
necessary resources of flexibility and practicability. (Emphasis supplied).48
Clearly, the legislature may delegate to executive officers or bodies the power to determine certain
facts or conditions, or the happening of contingencies, on which the operation of a statute is, by its
terms, made to depend, but the legislature must prescribe sufficient standards, policies or limitations
on their authority.49 While the power to tax cannot be delegated to executive agencies, details as to
the enforcement and administration of an exercise of such power may be left to them, including the
power to determine the existence of facts on which its operation depends.50
The rationale for this is that the preliminary ascertainment of facts as basis for the enactment of
legislation is not of itself a legislative function, but is simply ancillary to legislation. Thus, the duty of
correlating information and making recommendations is the kind of subsidiary activity which the
legislature may perform through its members, or which it may delegate to others to perform.
Intelligent legislation on the complicated problems of modern society is impossible in the absence of
accurate information on the part of the legislators, and any reasonable method of securing such
information is proper.51 The Constitution as a continuously operative charter of government does not
require that Congress find for itself
every fact upon which it desires to base legislative action or that it make for itself detailed
determinations which it has declared to be prerequisite to application of legislative policy to particular
facts and circumstances impossible for Congress itself properly to investigate.52
In the present case, the challenged section of R.A. No. 9337 is the common proviso in Sections 4, 5
and 6 which reads as follows:
That the President, upon the recommendation of the Secretary of Finance, shall, effective January 1,
2006, raise the rate of value-added tax to twelve percent (12%), after any of the following conditions
has been satisfied:
(i) Value-added tax collection as a percentage of Gross Domestic Product (GDP) of the previous
year exceeds two and four-fifth percent (2 4/5%); or
(ii) National government deficit as a percentage of GDP of the previous year exceeds one and one-
half percent (1 ½%).
The case before the Court is not a delegation of legislative power. It is simply a delegation of
ascertainment of facts upon which enforcement and administration of the increase rate under the law
is contingent. The legislature has made the operation of the 12% rate effective January 1, 2006,
contingent upon a specified fact or condition. It leaves the entire operation or non-operation of the
12% rate upon factual matters outside of the control of the executive.
No discretion would be exercised by the President. Highlighting the absence of discretion is the fact
that the word shall is used in the common proviso. The use of the word shall connotes a mandatory
order. Its use in a statute denotes an imperative obligation and is inconsistent with the idea of
discretion.53 Where the law is clear and unambiguous, it must be taken to mean exactly what it says,
and courts have no choice but to see to it that the mandate is obeyed.54
Thus, it is the ministerial duty of the President to immediately impose the 12% rate upon the
existence of any of the conditions specified by Congress. This is a duty which cannot be evaded by
the President. Inasmuch as the law specifically uses the word shall, the exercise of discretion by the
President does not come into play. It is a clear directive to impose the 12% VAT rate when the
specified conditions are present. The time of taking into effect of the 12% VAT rate is based on the
happening of a certain specified contingency, or upon the ascertainment of certain facts or
conditions by a person or body other than the legislature itself.
The Court finds no merit to the contention of petitioners ABAKADA GURO Party List, et al. that the
law effectively nullified the President’s power of control over the Secretary of Finance by mandating
the fixing of the tax rate by the President upon the recommendation of the Secretary of Finance. The
Court cannot also subscribe to the position of petitioners
Pimentel, et al. that the word shall should be interpreted to mean may in view of the phrase "upon
the recommendation of the Secretary of Finance." Neither does the Court find persuasive the
submission of petitioners Escudero, et al. that any recommendation by the Secretary of Finance can
easily be brushed aside by the President since the former is a mere alter ego of the latter.
When one speaks of the Secretary of Finance as the alter ego of the President, it simply means that
as head of the Department of Finance he is the assistant and agent of the Chief Executive. The
multifarious executive and administrative functions of the Chief Executive are performed by and
through the executive departments, and the acts of the secretaries of such departments, such as the
Department of Finance, performed and promulgated in the regular course of business, are, unless
disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief
Executive. The Secretary of Finance, as such, occupies a political position and holds office in an
advisory capacity, and, in the language of Thomas Jefferson, "should be of the President's bosom
confidence" and, in the language of Attorney-General Cushing, is "subject to the direction of the
President."55
In the present case, in making his recommendation to the President on the existence of either of the
two conditions, the Secretary of Finance is not acting as the alter ego of the President or even her
subordinate. In such instance, he is not subject to the power of control and direction of the President.
He is acting as the agent of the legislative department, to determine and declare the event upon
which its expressed will is to take effect.56 The Secretary of Finance becomes the means or tool by
which legislative policy is determined and implemented, considering that he possesses all the
facilities to gather data and information and has a much broader perspective to properly evaluate
them. His function is to gather and collate statistical data and other pertinent information and verify if
any of the two conditions laid out by Congress is present. His personality in such instance is in
reality but a projection of that of Congress. Thus, being the agent of Congress and not of the
President, the President cannot alter or modify or nullify, or set aside the findings of the Secretary of
Finance and to substitute the judgment of the former for that of the latter.
Congress simply granted the Secretary of Finance the authority to ascertain the existence of a fact,
namely, whether by December 31, 2005, the value-added tax collection as a percentage of Gross
Domestic Product (GDP) of the previous year exceeds two and four-fifth percent (24/5%) or the
national government deficit as a percentage of GDP of the previous year exceeds one and one-half
percent (1½%). If either of these two instances has occurred, the Secretary of Finance, by legislative
mandate, must submit such information to the President. Then the 12% VAT rate must be imposed
by the President effective January 1, 2006. There is no undue delegation of legislative power but
only of the discretion as to the execution of a law. This is constitutionally
permissible.57 Congress does not abdicate its functions or unduly delegate power when it describes
what job must be done, who must do it, and what is the scope of his authority; in our complex
economy that is frequently the only way in which the legislative process can go forward.58
As to the argument of petitioners ABAKADA GURO Party List, et al. that delegating to the President
the legislative power to tax is contrary to the principle of republicanism, the same deserves scant
consideration. Congress did not delegate the power to tax but the mere implementation of the law.
The intent and will to increase the VAT rate to 12% came from Congress and the task of the
President is to simply execute the legislative policy. That Congress chose to do so in such a manner
is not within the province of the Court to inquire into, its task being to interpret the law.59
The insinuation by petitioners Pimentel, et al. that the President has ample powers to cause,
influence or create the conditions to bring about either or both the conditions precedent does not
deserve any merit as this argument is highly speculative. The Court does not rule on allegations
which are manifestly conjectural, as these may not exist at all. The Court deals with facts, not
fancies; on realities, not appearances. When the Court acts on appearances instead of realities,
justice and law will be short-lived.
B. The 12% Increase VAT Rate Does Not Impose an Unfair and Unnecessary Additional Tax Burden
Petitioners Pimentel, et al. argue that the 12% increase in the VAT rate imposes an unfair and
additional tax burden on the people. Petitioners also argue that the 12% increase, dependent on any
of the 2 conditions set forth in the contested provisions, is ambiguous because it does not state if the
VAT rate would be returned to the original 10% if the rates are no longer satisfied. Petitioners also
argue that such rate is unfair and unreasonable, as the people are unsure of the applicable VAT rate
from year to year.
Under the common provisos of Sections 4, 5 and 6 of R.A. No. 9337, if any of the two conditions set
forth therein are satisfied, the President shall increase the VAT rate to 12%. The provisions of the
law are clear. It does not provide for a return to the 10% rate nor does it empower the President to
so revert if, after the rate is increased to 12%, the VAT collection goes below the 24/5 of the GDP of
the previous year or that the national government deficit as a percentage of GDP of the previous
year does not exceed 1½%.
Therefore, no statutory construction or interpretation is needed. Neither can conditions or limitations

be introduced where none is provided for. Rewriting the law is a forbidden ground that only
Congress may tread upon.60
Thus, in the absence of any provision providing for a return to the 10% rate, which in this case the
Court finds none, petitioners’ argument is, at best, purely speculative. There is no basis for
petitioners’ fear of a fluctuating VAT rate because the law itself does not provide that the rate should
go back to 10% if the conditions provided in Sections 4, 5 and 6 are no longer present. The rule is
that where the provision of the law is clear and unambiguous, so that there is no occasion for the
court's seeking the legislative intent, the law must be taken as it is, devoid of judicial addition or
subtraction.61
Petitioners also contend that the increase in the VAT rate, which was allegedly an incentive to the
President to raise the VAT collection to at least 2 4/5 of the GDP of the previous year, should be
based on fiscal adequacy.
Petitioners obviously overlooked that increase in VAT collection is not the only condition. There is
another condition, i.e., the national government deficit as a percentage of GDP of the previous year
exceeds one and one-half percent (1 ½%).
Respondents explained the philosophy behind these alternative conditions:
1. VAT/GDP Ratio > 2.8%
The condition set for increasing VAT rate to 12% have economic or fiscal meaning. If VAT/GDP is
less than 2.8%, it means that government has weak or no capability of implementing the VAT or that
VAT is not effective in the function of the tax collection. Therefore, there is no value to increase it to
12% because such action will also be ineffectual.
2. Nat’l Gov’t Deficit/GDP >1.5%
The condition set for increasing VAT when deficit/GDP is 1.5% or less means the fiscal condition of
government has reached a relatively sound position or is towards the direction of a balanced budget
position. Therefore, there is no need to increase the VAT rate since the fiscal house is in a relatively
healthy position. Otherwise stated, if the ratio is more than 1.5%, there is indeed a need to increase
the VAT rate.62
That the first condition amounts to an incentive to the President to increase the VAT collection does
not render it unconstitutional so long as there is a public purpose for which the law was passed,
which in this case, is mainly to raise revenue. In fact, fiscal adequacy dictated the need for a raise in
revenue.
The principle of fiscal adequacy as a characteristic of a sound tax system was originally stated by
Adam Smith in his Canons of Taxation (1776), as:
IV. Every tax ought to be so contrived as both to take out and to keep out of the pockets of the
people as little as possible over and above what it brings into the public treasury of the state.63
It simply means that sources of revenues must be adequate to meet government expenditures and
their variations.64
The dire need for revenue cannot be ignored. Our country is in a quagmire of financial woe. During
the Bicameral Conference Committee hearing, then Finance Secretary Purisima bluntly depicted the
country’s gloomy state of economic affairs, thus:
First, let me explain the position that the Philippines finds itself in right now. We are in a position
where 90 percent of our revenue is used for debt service. So, for every peso of revenue that we
currently raise, 90 goes to debt service. That’s interest plus amortization of our debt. So clearly, this
is not a sustainable situation. That’s the first fact.
The second fact is that our debt to GDP level is way out of line compared to other peer countries that
borrow money from that international financial markets. Our debt to GDP is approximately equal to
our GDP. Again, that shows you that this is not a sustainable situation.
The third thing that I’d like to point out is the environment that we are presently operating in is not as
benign as what it used to be the past five years.
What do I mean by that?
In the past five years, we’ve been lucky because we were operating in a period of basically global
growth and low interest rates. The past few months, we have seen an inching up, in fact, a rapid
increase in the interest rates in the leading economies of the world. And, therefore, our ability to
borrow at reasonable prices is going to be challenged. In fact, ultimately, the question is our ability to
access the financial markets.
When the President made her speech in July last year, the environment was not as bad as it is now,
at least based on the forecast of most financial institutions. So, we were assuming that raising 80
billion would put us in a position where we can then convince them to improve our ability to borrow at
lower rates. But conditions have changed on us because the interest rates have gone up. In fact, just
within this room, we tried to access the market for a billion dollars because for this year alone, the
Philippines will have to borrow 4 billion dollars. Of that amount, we have borrowed 1.5 billion. We
issued last January a 25-year bond at 9.7 percent cost. We were trying to access last week and the
market was not as favorable and up to now we have not accessed and we might pull back because
the conditions are not very good.
So given this situation, we at the Department of Finance believe that we really need to front-end our
deficit reduction. Because it is deficit that is causing the increase of the debt and we are in what we
call a debt spiral. The more debt you have, the more deficit you have because interest and debt
service eats and eats more of your revenue. We need to get out of this debt spiral. And the only way,
I think, we can get out of this debt spiral is really have a front-end adjustment in our revenue base.65
The image portrayed is chilling. Congress passed the law hoping for rescue from an inevitable
catastrophe. Whether the law is indeed sufficient to answer the state’s economic dilemma is not for
the Court to judge. In the Fariñas case, the Court refused to consider the various arguments raised
therein that dwelt on the wisdom of Section 14 of R.A. No. 9006 (The Fair Election Act), pronouncing
that:
. . . policy matters are not the concern of the Court. Government policy is within the exclusive
dominion of the political branches of the government. It is not for this Court to look into the wisdom
or propriety of legislative determination. Indeed, whether an enactment is wise or unwise, whether it
is based on sound economic theory, whether it is the best means to achieve the desired results,
whether, in short, the legislative discretion within its prescribed limits should be exercised in a
particular manner are matters for the judgment of the legislature, and the serious conflict of opinions
does not suffice to bring them within the range of judicial cognizance.66
In the same vein, the Court in this case will not dawdle on the purpose of Congress or the executive
policy, given that it is not for the judiciary to "pass upon questions of wisdom, justice or expediency
of legislation."67
II.
Whether Section 8 of R.A. No. 9337, amending Sections 110(A)(2) and 110(B) of the NIRC; and
Section 12 of R.A. No. 9337, amending Section 114(C) of the NIRC, violate the following provisions
of the Constitution:
b. Article III, Section 1

A. Due Process and Equal Protection Clauses
Petitioners Association of Pilipinas Shell Dealers, Inc., et al. argue that Section 8 of R.A. No. 9337,
amending Sections 110 (A)(2), 110 (B), and Section 12 of R.A. No. 9337, amending Section 114 (C)
of the NIRC are arbitrary, oppressive, excessive and confiscatory. Their argument is premised on
the constitutional right against deprivation of life, liberty of property without due process of law, as
embodied in Article III, Section 1 of the Constitution.
Petitioners also contend that these provisions violate the constitutional guarantee of equal protection
of the law.
The doctrine is that where the due process and equal protection clauses are invoked, considering
that they are not fixed rules but rather broad standards, there is a need for proof of such persuasive
character as would lead to such a conclusion. Absent such a showing, the presumption of validity
must prevail.68
Section 8 of R.A. No. 9337, amending Section 110(B) of the NIRC imposes a limitation on the
amount of input tax that may be credited against the output tax. It states, in part: "[P]rovided, that the
input tax inclusive of the input VAT carried over from the previous quarter that may be credited in
every quarter shall not exceed seventy percent (70%) of the output VAT: …"
Input Tax is defined under Section 110(A) of the NIRC, as amended, as the value-added tax
due from or paid by a VAT-registered person on the importation of goods or local purchase of good
and services, including lease or use of property, in the course of trade or business, from a VAT-
registered person, and Output Tax is the value-added tax due on the sale or lease of taxable goods
or properties or services by any person registered or required to register under the law.
Petitioners claim that the contested sections impose limitations on the amount of input tax that may
be claimed. In effect, a portion of the input tax that has already been paid cannot now be credited
against the output tax.
Petitioners’ argument is not absolute. It assumes that the input tax exceeds 70% of the output tax,
and therefore, the input tax in excess of 70% remains uncredited. However, to the extent that the
input tax is less than 70% of the output tax, then 100% of such input tax is still creditable.
More importantly, the excess input tax, if any, is retained in a business’s books of accounts and
remains creditable in the succeeding quarter/s. This is explicitly allowed by Section 110(B), which
provides that "if the input tax exceeds the output tax, the excess shall be carried over to the
succeeding quarter or quarters." In addition, Section 112(B) allows a VAT-registered person to apply
for the issuance of a tax credit certificate or refund for any unused input taxes, to the extent that
such input taxes have not been applied against the output taxes. Such unused input tax may be
used in payment of his other internal revenue taxes.
The non-application of the unutilized input tax in a given quarter is not ad infinitum, as petitioners
exaggeratedly contend. Their analysis of the effect of the 70% limitation is incomplete and one-
sided. It ends at the net effect that there will be unapplied/unutilized inputs VAT for a given quarter. It
does not proceed further to the fact that such unapplied/unutilized input tax may be credited in the
subsequent periods as allowed by the carry-over provision of Section 110(B) or that it may later on
be refunded through a tax credit certificate under Section 112(B).
Therefore, petitioners’ argument must be rejected.

On the other hand, it appears that petitioner Garcia failed to comprehend the operation of the 70%
limitation on the input tax. According to petitioner, the limitation on the creditable input tax in effect
allows VAT-registered establishments to retain a portion of the taxes they collect, which violates the
principle that tax collection and revenue should be for public purposes and expenditures
As earlier stated, the input tax is the tax paid by a person, passed on to him by the seller, when he
buys goods. Output tax meanwhile is the tax due to the person when he sells goods. In computing
the VAT payable, three possible scenarios may arise:
First, if at the end of a taxable quarter the output taxes charged by the seller are equal to the input
taxes that he paid and passed on by the suppliers, then no payment is required;
Second, when the output taxes exceed the input taxes, the person shall be liable for the excess,
which has to be paid to the Bureau of Internal Revenue (BIR);69 and
Third, if the input taxes exceed the output taxes, the excess shall be carried over to the succeeding
quarter or quarters. Should the input taxes result from zero-rated or effectively zero-rated
transactions, any excess over the output taxes shall instead be refunded to the taxpayer or credited
against other internal revenue taxes, at the taxpayer’s option.70
Section 8 of R.A. No. 9337 however, imposed a 70% limitation on the input tax. Thus, a person can
credit his input tax only up to the extent of 70% of the output tax. In layman’s term, the value-added
taxes that a person/taxpayer paid and passed on to him by a seller can only be credited up to 70%
of the value-added taxes that is due to him on a taxable transaction. There is no retention of any tax
collection because the person/taxpayer has already previously paid the input tax to a seller, and the
seller will subsequently remit such input tax to the BIR. The party directly liable for the payment of
the tax is the seller.71 What only needs to be done is for the person/taxpayer to apply or credit these
input taxes, as evidenced by receipts, against his output taxes.
Petitioners Association of Pilipinas Shell Dealers, Inc., et al. also argue that the input tax partakes
the nature of a property that may not be confiscated, appropriated, or limited without due process of
law.
The input tax is not a property or a property right within the constitutional purview of the due process
clause. A VAT-registered person’s entitlement to the creditable input tax is a mere statutory
privilege.
The distinction between statutory privileges and vested rights must be borne in mind for persons
have no vested rights in statutory privileges. The state may change or take away rights, which were
created by the law of the state, although it may not take away property, which was vested by virtue
of such rights.72
Under the previous system of single-stage taxation, taxes paid at every level of distribution are not
recoverable from the taxes payable, although it becomes part of the cost, which is deductible from
the gross revenue. When Pres. Aquino issued E.O. No. 273 imposing a 10% multi-stage tax on all
sales, it was then that the crediting of the input tax paid on purchase or importation of goods and
services by VAT-registered persons against the output tax was introduced.73 This was adopted by
the Expanded VAT Law (R.A. No. 7716),74 and The Tax Reform Act of 1997 (R.A. No. 8424).75 The
right to credit input tax as against the output tax is clearly a privilege created by law, a privilege that
also the law can remove, or in this case, limit.
Petitioners also contest as arbitrary, oppressive, excessive and confiscatory, Section 8 of R.A. No.
9337, amending Section 110(A) of the NIRC, which provides:
SEC. 110. Tax Credits. –
(A) Creditable Input Tax. – …
Provided, That the input tax on goods purchased or imported in a calendar month for use in trade or
business for which deduction for depreciation is allowed under this Code, shall be spread evenly
over the month of acquisition and the fifty-nine (59) succeeding months if the aggregate acquisition
cost for such goods, excluding the VAT component thereof, exceeds One million pesos
(₱1,000,000.00): Provided, however, That if the estimated useful life of the capital goods is less than
five (5) years, as used for depreciation purposes, then the input VAT shall be spread over such a
shorter period: Provided, finally, That in the case of purchase of services, lease or use of properties,
the input tax shall be creditable to the purchaser, lessee or license upon payment of the
compensation, rental, royalty or fee.
The foregoing section imposes a 60-month period within which to amortize the creditable input tax
on purchase or importation of capital goods with acquisition cost of ₱1 Million pesos, exclusive of the
VAT component. Such spread out only poses a delay in the crediting of the input tax. Petitioners’
argument is without basis because the taxpayer is not permanently deprived of his privilege to credit
the input tax.
It is worth mentioning that Congress admitted that the spread-out of the creditable input tax in this
case amounts to a 4-year interest-free loan to the government.76 In the same breath, Congress also
justified its move by saying that the provision was designed to raise an annual revenue of 22.6
billion.77 The legislature also dispelled the fear that the provision will fend off foreign investments,
saying that foreign investors have other tax incentives provided by law, and citing the case of China,
where despite a 17.5% non-creditable VAT, foreign investments were not deterred.78 Again, for
whatever is the purpose of the 60-month amortization, this involves executive economic policy and
legislative wisdom in which the Court cannot intervene.
With regard to the 5% creditable withholding tax imposed on payments made by the government for
taxable transactions, Section 12 of R.A. No. 9337, which amended Section 114 of the NIRC, reads:
SEC. 114. Return and Payment of Value-added Tax. –
(C) Withholding of Value-added Tax. – The Government or any of its political subdivisions,
instrumentalities or agencies, including government-owned or controlled corporations (GOCCs)
shall, before making payment on account of each purchase of goods and services which are subject
to the value-added tax imposed in Sections 106 and 108 of this Code, deduct and withhold a final
value-added tax at the rate of five percent (5%) of the gross payment thereof: Provided, That the
payment for lease or use of properties or property rights to nonresident owners shall be subject to
ten percent (10%) withholding tax at the time of payment. For purposes of this Section, the payor or
person in control of the payment shall be considered as the withholding agent.
The value-added tax withheld under this Section shall be remitted within ten (10) days following the
end of the month the withholding was made.
Section 114(C) merely provides a method of collection, or as stated by respondents, a more

simplified VAT withholding system. The government in this case is constituted as a withholding
agent with respect to their payments for goods and services.
Prior to its amendment, Section 114(C) provided for different rates of value-added taxes to be
withheld -- 3% on gross payments for purchases of goods; 6% on gross payments for services
supplied by contractors other than by public works contractors; 8.5% on gross payments for services
supplied by public work contractors; or 10% on payment for the lease or use of properties or
property rights to nonresident owners. Under the present Section 114(C), these different rates,
except for the 10% on lease or property rights payment to nonresidents, were deleted, and a uniform
rate of 5% is applied.
The Court observes, however, that the law the used the word final. In tax usage, final, as opposed to
creditable, means full. Thus, it is provided in Section 114(C): "final value-added tax at the rate of five
percent (5%)."
In Revenue Regulations No. 02-98, implementing R.A. No. 8424 (The Tax Reform Act of 1997), the
concept of final withholding tax on income was explained, to wit:
SECTION 2.57. Withholding of Tax at Source
(A) Final Withholding Tax. – Under the final withholding tax system the amount of income tax
withheld by the withholding agent is constituted as full and final payment of the income tax due
from the payee on the said income. The liability for payment of the tax rests primarily on the payor as
a withholding agent. Thus, in case of his failure to withhold the tax or in case of underwithholding,
the deficiency tax shall be collected from the payor/withholding agent. …
(B) Creditable Withholding Tax. – Under the creditable withholding tax system, taxes withheld on
certain income payments are intended to equal or at least approximate the tax due of the payee on
said income. … Taxes withheld on income payments covered by the expanded withholding tax
(referred to in Sec. 2.57.2 of these regulations) and compensation income (referred to in Sec. 2.78
also of these regulations) are creditable in nature.
As applied to value-added tax, this means that taxable transactions with the government are subject
to a 5% rate, which constitutes as full payment of the tax payable on the transaction. This represents
the net VAT payable of the seller. The other 5% effectively accounts for the standard input VAT
(deemed input VAT), in lieu of the actual input VAT directly or attributable to the taxable
transaction.79
The Court need not explore the rationale behind the provision. It is clear that Congress intended to
treat differently taxable transactions with the government.80 This is supported by the fact that under
the old provision, the 5% tax withheld by the government remains creditable against the tax liability
of the seller or contractor, to wit:
SEC. 114. Return and Payment of Value-added Tax. –
(C) Withholding of Creditable Value-added Tax. – The Government or any of its political
subdivisions, instrumentalities or agencies, including government-owned or controlled corporations
(GOCCs) shall, before making payment on account of each purchase of goods from sellers and
services rendered by contractors which are subject to the value-added tax imposed in Sections 106
and 108 of this Code, deduct and withhold the value-added tax due at the rate of three percent (3%)
of the gross payment for the purchase of goods and six percent (6%) on gross receipts for services
rendered by contractors on every sale or installment payment which shall be creditable against the
value-added tax liability of the seller or contractor: Provided, however, That in the case of
government public works contractors, the withholding rate shall be eight and one-half percent
(8.5%): Provided, further, That the payment for lease or use of properties or property rights to
nonresident owners shall be subject to ten percent (10%) withholding tax at the time of payment. For
this purpose, the payor or person in control of the payment shall be considered as the withholding
agent.
The valued-added tax withheld under this Section shall be remitted within ten (10) days following the
end of the month the withholding was made. (Emphasis supplied)
As amended, the use of the word final and the deletion of the word creditable exhibits Congress’s
intention to treat transactions with the government differently. Since it has not been shown that the
class subject to the 5% final withholding tax has been unreasonably narrowed, there is no reason to
invalidate the provision. Petitioners, as petroleum dealers, are not the only ones subjected to the 5%
final withholding tax. It applies to all those who deal with the government.
Moreover, the actual input tax is not totally lost or uncreditable, as petitioners believe. Revenue
Regulations No. 14-2005 or the Consolidated Value-Added Tax Regulations 2005 issued by the BIR,
provides that should the actual input tax exceed 5% of gross payments, the excess may form part of
the cost. Equally, should the actual input tax be less than 5%, the difference is treated as income.81
Petitioners also argue that by imposing a limitation on the creditable input tax, the government gets
to tax a profit or value-added even if there is no profit or value-added.
Petitioners’ stance is purely hypothetical, argumentative, and again, one-sided. The Court will not
engage in a legal joust where premises are what ifs, arguments, theoretical and facts, uncertain. Any
disquisition by the Court on this point will only be, as Shakespeare describes life in Macbeth,82 "full of
sound and fury, signifying nothing."
What’s more, petitioners’ contention assumes the proposition that there is no profit or value-added. It
need not take an astute businessman to know that it is a matter of exception that a business will sell
goods or services without profit or value-added. It cannot be overstressed that a business is created
precisely for profit.
The equal protection clause under the Constitution means that "no person or class of persons shall
be deprived of the same protection of laws which is enjoyed by other persons or other classes in the
same place and in like circumstances."83
The power of the State to make reasonable and natural classifications for the purposes of taxation
has long been established. Whether it relates to the subject of taxation, the kind of property, the
rates to be levied, or the amounts to be raised, the methods of assessment, valuation and collection,
the State’s power is entitled to presumption of validity. As a rule, the judiciary will not interfere with
such power absent a clear showing of unreasonableness, discrimination, or arbitrariness.84
Petitioners point out that the limitation on the creditable input tax if the entity has a high ratio of input
tax, or invests in capital equipment, or has several transactions with the government, is not based on
real and substantial differences to meet a valid classification.
The argument is pedantic, if not outright baseless. The law does not make any classification in the
subject of taxation, the kind of property, the rates to be levied or the amounts to be raised, the
methods of assessment, valuation and collection. Petitioners’ alleged distinctions are based on
variables that bear different consequences. While the implementation of the law may yield varying
end results depending on one’s profit margin and value-added, the Court cannot go beyond what the
legislature has laid down and interfere with the affairs of business.
The equal protection clause does not require the universal application of the laws on all persons or
things without distinction. This might in fact sometimes result in unequal protection. What the clause
requires is equality among equals as determined according to a valid classification. By classification
is meant the grouping of persons or things similar to each other in certain particulars and different
from all others in these same particulars.85
Petitioners brought to the Court’s attention the introduction of Senate Bill No. 2038 by Sens. S.R.
Osmeña III and Ma. Ana Consuelo A.S. – Madrigal on June 6, 2005, and House Bill No. 4493 by
Rep. Eric D. Singson. The proposed legislation seeks to amend the 70% limitation by increasing the
same to 90%. This, according to petitioners, supports their stance that the 70% limitation is arbitrary
and confiscatory. On this score, suffice it to say that these are still proposed legislations. Until
Congress amends the law, and absent any unequivocal basis for its unconstitutionality, the 70%
limitation stays.
B. Uniformity and Equitability of Taxation
Article VI, Section 28(1) of the Constitution reads:
The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system
of taxation.
Uniformity in taxation means that all taxable articles or kinds of property of the same class shall be
taxed at the same rate. Different articles may be taxed at different amounts provided that the rate is
uniform on the same class everywhere with all people at all times.86
In this case, the tax law is uniform as it provides a standard rate of 0% or 10% (or 12%) on all goods
and services. Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and 108,
respectively, of the NIRC, provide for a rate of 10% (or 12%) on sale of goods and properties,
importation of goods, and sale of services and use or lease of properties. These same sections also
provide for a 0% rate on certain sales and transaction.
Neither does the law make any distinction as to the type of industry or trade that will bear the 70%
limitation on the creditable input tax, 5-year amortization of input tax paid on purchase of capital
goods or the 5% final withholding tax by the government. It must be stressed that the rule of uniform
taxation does not deprive Congress of the power to classify subjects of taxation, and only demands
uniformity within the particular class.87
R.A. No. 9337 is also equitable. The law is equipped with a threshold margin. The VAT rate of 0% or
10% (or 12%) does not apply to sales of goods or services with gross annual sales or receipts not
exceeding ₱1,500,000.00.88Also, basic marine and agricultural food products in their original state
are still not subject to the tax,89 thus ensuring that prices at the grassroots level will remain
accessible. As was stated in Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs.
Tan:90
The disputed sales tax is also equitable. It is imposed only on sales of goods or services by persons
engaged in business with an aggregate gross annual sales exceeding ₱200,000.00. Small
corner sari-sari stores are consequently exempt from its application. Likewise exempt from the tax
are sales of farm and marine products, so that the costs of basic food and other necessities, spared
as they are from the incidence of the VAT, are expected to be relatively lower and within the reach of
the general public.
It is admitted that R.A. No. 9337 puts a premium on businesses with low profit margins, and unduly
favors those with high profit margins. Congress was not oblivious to this. Thus, to equalize the
weighty burden the law entails, the law, under Section 116, imposed a 3% percentage tax on VAT-
exempt persons under Section 109(v), i.e., transactions with gross annual sales and/or receipts not
exceeding ₱1.5 Million. This acts as a equalizer because in effect, bigger businesses that qualify for
VAT coverage and VAT-exempt taxpayers stand on equal-footing.
Moreover, Congress provided mitigating measures to cushion the impact of the imposition of the tax
on those previously exempt. Excise taxes on petroleum products91 and natural gas92 were reduced.
Percentage tax on domestic carriers was removed.93 Power producers are now exempt from paying
franchise tax.94
Aside from these, Congress also increased the income tax rates of corporations, in order to
distribute the burden of taxation. Domestic, foreign, and non-resident corporations are now subject
to a 35% income tax rate, from a previous 32%.95 Intercorporate dividends of non-resident foreign
corporations are still subject to 15% final withholding tax but the tax credit allowed on the
corporation’s domicile was increased to 20%.96 The Philippine Amusement and Gaming Corporation
(PAGCOR) is not exempt from income taxes anymore.97 Even the sale by an artist of his works or
services performed for the production of such works was not spared.
All these were designed to ease, as well as spread out, the burden of taxation, which would
otherwise rest largely on the consumers. It cannot therefore be gainsaid that R.A. No. 9337 is
equitable.
C. Progressivity of Taxation
Lastly, petitioners contend that the limitation on the creditable input tax is anything but regressive. It
is the smaller business with higher input tax-output tax ratio that will suffer the consequences.
Progressive taxation is built on the principle of the taxpayer’s ability to pay. This principle was also
lifted from Adam Smith’s Canons of Taxation, and it states:
I. The subjects of every state ought to contribute towards the support of the government, as nearly
as possible, in proportion to their respective abilities; that is, in proportion to the revenue which they
respectively enjoy under the protection of the state.
Taxation is progressive when its rate goes up depending on the resources of the person affected.98
The VAT is an antithesis of progressive taxation. By its very nature, it is regressive. The principle of
progressive taxation has no relation with the VAT system inasmuch as the VAT paid by the
consumer or business for every goods bought or services enjoyed is the same regardless of income.
In
other words, the VAT paid eats the same portion of an income, whether big or small. The disparity
lies in the income earned by a person or profit margin marked by a business, such that the higher
the income or profit margin, the smaller the portion of the income or profit that is eaten by VAT. A
converso, the lower the income or profit margin, the bigger the part that the VAT eats away. At the
end of the day, it is really the lower income group or businesses with low-profit margins that is
always hardest hit.
Nevertheless, the Constitution does not really prohibit the imposition of indirect taxes, like the VAT.
What it simply provides is that Congress shall "evolve a progressive system of taxation." The Court
stated in the Tolentino case, thus:
The Constitution does not really prohibit the imposition of indirect taxes which, like the VAT, are
regressive. What it simply provides is that Congress shall ‘evolve a progressive system of taxation.’
The constitutional provision has been interpreted to mean simply that ‘direct taxes are . . . to be
preferred [and] as much as possible, indirect taxes should be minimized.’ (E. FERNANDO, THE
CONSTITUTION OF THE PHILIPPINES 221 (Second ed. 1977)) Indeed, the mandate to Congress
is not to prescribe, but to evolve, a progressive tax system. Otherwise, sales taxes, which perhaps
are the oldest form of indirect taxes, would have been prohibited with the proclamation of Art. VIII,
§17 (1) of the 1973 Constitution from which the present Art. VI, §28 (1) was taken. Sales taxes are
also regressive.
Resort to indirect taxes should be minimized but not avoided entirely because it is difficult, if not
impossible, to avoid them by imposing such taxes according to the taxpayers' ability to pay. In the
case of the VAT, the law minimizes the regressive effects of this imposition by providing for zero
rating of certain transactions (R.A. No. 7716, §3, amending §102 (b) of the NIRC), while granting
exemptions to other transactions. (R.A. No. 7716, §4 amending §103 of the NIRC)99
CONCLUSION
It has been said that taxes are the lifeblood of the government. In this case, it is just an enema, a
first-aid measure to resuscitate an economy in distress. The Court is neither blind nor is it turning a
deaf ear on the plight of the masses. But it does not have the panacea for the malady that the law
seeks to remedy. As in other cases, the Court cannot strike down a law as unconstitutional simply
because of its yokes.
Let us not be overly influenced by the plea that for every wrong there is a remedy, and that the
judiciary should stand ready to afford relief. There are undoubtedly many wrongs the judicature may
not correct, for instance, those involving political questions. . . .
Let us likewise disabuse our minds from the notion that the judiciary is the repository of remedies for
all political or social ills; We should not forget that the Constitution has judiciously allocated the
powers of government to three distinct and separate compartments; and that judicial interpretation
has tended to the preservation of the independence of the three, and a zealous regard of the
prerogatives of each, knowing full well that one is not the guardian of the others and that, for official
wrong-doing, each may be brought to account, either by impeachment, trial or by the ballot box.100
The words of the Court in Vera vs. Avelino101 holds true then, as it still holds true now. All things
considered, there is no raison d'être for the unconstitutionality of R.A. No. 9337.
WHEREFORE, Republic Act No. 9337 not being unconstitutional, the petitions in G.R. Nos. 168056,
168207, 168461, 168463, and 168730, are hereby DISMISSED.
There being no constitutional impediment to the full enforcement and implementation of R.A. No.
9337, the temporary restraining order issued by the Court on July 1, 2005 is LIFTED upon finality of
herein decision.
SO ORDERED.
52

SUPREME COURT
Manila
EN BANC
G.R. No. 175368 April 11, 2013
LEAGUE OF PROVINCES OF THE PHILIPPINES, Petitioner,

vs.
DEPARTMENT OF ENVIRONMENT and NATURAL RESOURCES and HON. ANGELO T. REYES,
in his capacity as Secretary of DENR, Respondents.
DECISION
PERALTA, J.:
This is a petition for certiorari, prohibition and mandamus,1 praying that this Court order the following:
( 1) declare as unconstitutional Section 17(b)(3)(iii) of Republic Act (R.A.) No. 7160, otherwise
known as The Local Government Code of 1991 and Section 24 of Republic Act (R.A.) No. 7076,
otherwise known as the People's Small-Scale Mining Act of 1991; (2) prohibit and bar respondents
from exercising control over provinces; and (3) declare as illegal the respondent Secretary of the
Department of Energy and Natural Resources' (DENR) nullification, voiding and cancellation of the
Small-Scale Mining permits issued by the Provincial Governor of Bulacan.
The Facts are as follows:
On March 28, 1996, Golden Falcon Mineral Exploration Corporation (Golden Falcon) filed with the
DENR Mines and Geosciences Bureau Regional Office No. III (MGB R-III) an Application for
Financial and Technical Assistance Agreement (FTAA) covering an area of 61,136 hectares situated
in the Municipalities of San Miguel, San Ildefonso, Norzagaray and San Jose del Monte, Bulacan.2
On April 29, 1998, the MGB R-III issued an Order denying Golden Falcon's Application for Financial
and Technical Assistance Agreement for failure to secure area clearances from the Forest
Management Sector and Lands Management Sector of the DENR Regional Office No. III.3
On November 11, 1998, Golden Falcon filed an appeal with the DENR Mines and Geosciences
Bureau Central Office (MGB-Central Office), and sought reconsideration of the Order dated April 29,
1998.4
On February 10, 2004, while Golden Falcon's appeal was pending, Eduardo D. Mercado, Benedicto
S. Cruz, Gerardo R. Cruz and Liberato Sembrano filed with the Provincial Environment and Natural
Resources Office (PENRO) of Bulacan their respective Applications for Quarry Permit (AQP), which
covered the same area subject of Golden Falcon's Application for Financial and Technical
Assistance Agreement.5
On July 16, 2004, the MGB-Central Office issued an Order denying Golden Falcon's appeal and
affirming the MGB R-III's Order dated April 29, 1998.
On September 13, 2004, Atlantic Mines and Trading Corporation (AMTC) filed with the PENRO of
Bulacan an Application for Exploration Permit (AEP) covering 5,281 hectares of the area covered by
Golden Falcon's Application for Financial and Technical Assistance Agreement.6
On October 19, 2004, DENR-MGB Director Horacio C. Ramos, in response to MGB R-III Director
Arnulfo V. Cabantog's memorandum query dated September 8, 2004, categorically stated that the
MGB-Central Office's Order dated July 16, 2004 became final on August 11, 2004, fifteen (15) days
after Golden Falcon received the said Order, per the Certification dated October 8, 2004 issued by
the Postmaster II of the Philippine Postal Corporation of Cainta, Rizal.7
Through letters dated May 5 and May 10, 2005, AMTC notified the PENRO of Bulacan and the MGB
R-III Director, respectively, that the subject Applications for Quarry Permit fell within its (AMTC's)
existing valid and prior Application for Exploration Permit, and the the former area of Golden Falcon
was open to mining location only on August 11, 2004 per the Memorandum dated October 19, 2004
of the MGB Director, Central Office.8
On June 24, 2005, Ricardo Medina, Jr., PENRO of Bulacan, indorsed AMTC's letter to the Provincial
Legal Officer, Atty. Eugenio F. Resurreccion, for his legal opinion on which date of denial of Golden
Falcon's application/appeal – April 29, 1998 or July 16, 2004 − is to be considered in the deliberation
of the Provincial Mining Regulatory Board (PMRB) for the purpose of determining when the land
subject of the Applications for Quarry Permit could be considered open for application.
On June 28, 2005, Provincial Legal Officer Eugenio Resurreccion issued a legal opinion stating that
the Order dated July 16, 2004 of the MGB-Central Office was a mere reaffirmation of the Order
dated April 29, 1998 of the MGB R-III; hence, the Order dated April 29, 1998 should be the
reckoning period of the denial of the application of Golden Falcon.
On July 22, 2005, AMTC filed with the PMRB of Bulacan a formal protest against the aforesaid
Applications for Quarry Permit on the ground that the subject area was already covered by its
Application for Exploration Permit.9
On August 8, 2005, MGB R-III Director Cabantog, who was the concurrent Chairman of the PMRB,
endorsed to the Provincial Governor of Bulacan, Governor Josefina M. dela Cruz, the aforesaid
Applications for Quarry Permit that had apparently been converted to Applications for Small-Scale
Mining Permit of Eduardo D. Mercado, Benedicto S. Cruz, Gerardo R. Cruz and Lucila S. Valdez
(formerly Liberato Sembrano).10
On August 9, 2005, the PENRO of Bulacan issued four memoranda recommending to Governor
Dela Cruz the approval of the aforesaid Applications for Small-Scale Mining Permit.11
On August 10, 2005, Governor Dela Cruz issued the corresponding Small-Scale Mining Permits in
favor of Eduardo D. Mercado, Benedicto S. Cruz, Gerardo R. Cruz and Lucila S. Valdez.12
Subsequently, AMTC appealed to respondent DENR Secretary the grant of the aforesaid Small-
Scale Mining Permits, arguing that: (1) The PMRB of Bulacan erred in giving due course to the
Applications for Small-Scale Mining Permit without first resolving its formal protest; (2) The areas
covered by the Small-Scale Mining Permits fall within the area covered by AMTC's valid prior
Application for Exploration Permit; (3) The Applications for Quarry Permit were illegally converted to
Applications for Small-Scale Mining Permit; (4) DENR-MGB Director Horacio C. Ramos' ruling that
the subject areas became open for mining location only on August 11, 2004 was controlling; (5) The
Small-Scale Mining Permits were null and void because they covered areas that were never
declared People's Small-Scale Mining Program sites as mandated by Section 4 of the People's
Small-Scale Mining Act of 1991; and (6) Iron ore is not considered as one of the quarry resources,
as defined by Section 43 of the Philippine Mining Act of 1995, which could be subjects of an
Application for Quarry Permit.13
On August 8, 2006, respondent DENR Secretary rendered a Decision14 in favor of AMTC. The
DENR Secretary agreed with MGB Director Horacio C. Ramos that the area was open to mining
location only on August 11, 2004, fifteen (15) days after the receipt by Golden Falcon on July 27,
2004 of a copy of the MGB-Central Office's Order dated July 16, 2004, which Order denied Golden
Falcon's appeal. According to the DENR Secretary, the filing by Golden Falcon of the letter-appeal
suspended the finality of the Order of denial issued on April 29, 1998 by the Regional Director until
the resolution of the appeal on July 16, 2004 by the MGB-Central Office. He stated that the
Applications for Quarry Permit were filed on February 10, 2004 when the area was still closed to
mining location; hence, the Small-Scale Mining Permits granted by the PMRB and the Governor
were null and void. On the other hand, the DENR Secretary declared that AMTC filed its Application
for Exploration Permit when the area was already open to other mining applicants; thus, AMTC’s
Application for Exploration Permit was valid. Moreover, the DENR Secretary held that the questioned
Small-Scale Mining Permits were issued in violation of Section 4 of R.A. No. 7076 and beyond the
authority of the Provincial Governor pursuant to Section 43 of R.A. No. 7942, because the area was
never proclaimed to be under the People's Small-Scale Mining Program. Further, the DENR
Secretary stated that iron ore mineral is not considered among the quarry resources.
The dispositive portion of the DENR Secretary’s Decision reads:
WHEREFORE, the Application for Exploration Permit, AEP-III-02-04 of Atlantic Mines and Trading
Corp. is declared valid and may now be given due course. The Small-Scale Mining Permits, SSMP-
B-002-05 of Gerardo Cruz, SSMP-B-003-05 of Eduardo D. Mercado, SSMP-B-004-05 of Benedicto
S. Cruz and SSMP-B-005-05 of Lucila S. Valdez are declared NULL AND VOID. Consequently, the
said permits are hereby CANCELLED.15
Hence, petitioner League of Provinces filed this petition.
Petitioner is a duly organized league of local governments incorporated under R.A. No. 7160.
Petitioner declares that it is composed of 81 provincial governments, including the Province of
Bulacan. It states that this is not an action of one province alone, but the collective action of all
provinces through the League, as a favorable ruling will not only benefit one province, but all
provinces and all local governments.
Petitioner raises these issues:
WHETHER OR NOT SECTION 17(B)(3)(III) OF THE, 1991 LOCAL GOVERNMENT CODE AND
SECTION 24 OF THE PEOPLE'S SMALL-SCALE MINING ACT OF 1991 ARE
UNCONSTITUTIONAL FOR PROVIDING FOR EXECUTIVE CONTROL AND INFRINGING UPON
THE LOCAL AUTONOMY OF PROVINCES.
II
WHETHER OR NOT THE ACT OF RESPONDENT [DENR] IN NULLIFYING, VOIDING AND

CANCELLING THE SMALL-SCALE MINING PERMITS AMOUNTS TO EXECUTIVE CONTROL,
NOT MERELY SUPERVISION AND USURPS THE DEVOLVED POWERS OF ALL PROVINCES.16
To start, the Court finds that petitioner has legal standing to file this petition because it is tasked
under Section 504 of the Local Government Code of 1991 to promote local autonomy at the
provincial level;17 adopt measures for the promotion of the welfare of all provinces and its officials
and employees;18 and exercise such other powers and perform such other duties and functions as
the league may prescribe for the welfare of the provinces.19
Before this Court determines the validity of an act of a co-equal and coordinate branch of the
Government, it bears emphasis that ingrained in our jurisprudence is the time-honored principle that
a statute is presumed to be valid.20This presumption is rooted in the doctrine of separation of powers
which enjoins upon the three coordinate departments of the Government a becoming courtesy for
each other's acts.21 This Court, however, may declare a law, or portions thereof, unconstitutional
where a petitioner has shown a clear and unequivocal breach of the Constitution,22 leaving no doubt
or hesitation in the mind of the Court.23
In this case, petitioner admits that respondent DENR Secretary had the authority to nullify the Small-
Scale Mining Permits issued by the Provincial Governor of Bulacan, as the DENR Secretary has
control over the PMRB, and the implementation of the Small-Scale Mining Program is subject to
control by respondent DENR.
Control of the DENR/DENR Secretary over small-scale mining in the provinces is granted by three
statutes: (1) R.A. No. 7061 or The Local Government Code of 1991; (2) R.A. No. 7076 or the
People's Small Scale Mining Act of 1991; and (3) R.A. No. 7942, otherwise known as the Philippine
Mining Act of 1995.24 The pertinent provisions of law sought to be declared as unconstitutional by
petitioner are as follows:
R.A. No. 7061 (The Local Government Code of 1991)
SEC. 17. Basic Services and Facilities. - (a) Local government units shall endeavor to be self-reliant
and shall continue exercising the powers and discharging the duties and functions currently vested
upon them. They shall also discharge the functions and responsibilities of national agencies and
offices devolved to them pursuant to this Code. Local government units shall likewise exercise such
other powers and discharge such other functions and responsibilities as are necessary, appropriate,
or incidental to efficient and effective provision of the basic services and facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, the following:
xxxx
(3) For a Province:c
xxxx
(iii) Pursuant to national policies and subject to supervision, control and review of the DENR,
enforcement of forestry laws limited to community-based forestry projects, pollution control law,
small-scale mining law, and other laws on the protection of the environment; and mini-hydro electric
projects for local purposes; x x x25
R.A. No. 7076 (People's Small-Scale Mining Act of 1991)
Sec. 24. Provincial/City Mining Regulatory Board. - There is hereby created under the direct
supervision and control of the Secretary a provincial/city mining regulatory board, herein called the
Board, which shall be the implementing agency of the Department, and shall exercise the following
powers and functions, subject to review by the Secretary:
(a) Declare and segregate existing gold-rush areas for small-scale mining;
(b) Reserve future gold and other mining areas for small-scale mining;
(c) Award contracts to small-scale miners;
(d) Formulate and implement rules and regulations related to small-scale mining;
(e) Settle disputes, conflicts or litigations over conflicting claims within a people’s small-scale
mining area, an area that is declared a small-mining; and
(f) Perform such other functions as may be necessary to achieve the goals and objectives of
this Act.26
Petitioner contends that the aforecited laws and DENR Administrative Order No. 9640 (the
Implementing Rules and Regulations of the Philippine Mining Act of 1995) did not explicitly confer
upon respondents DENR and the DENR Secretary the power to reverse, abrogate, nullify, void, or
cancel the permits issued by the Provincial Governor or small-scale mining contracts entered into by
the PMRB. The statutes are also silent as to the power of respondent DENR Secretary to substitute
his own judgment over that of the Provincial Governor and the PMRB.
Moreover, petitioner contends that Section 17 (b)(3)(iii) of the Local Government Code of 1991 and
Section 24 of R.A. No. 7076, which confer upon respondents DENR and the DENR Secretary the
power of control are unconstitutional, as the Constitution states that the President (and Executive
Departments and her alter-egos) has the power of supervision only, not control, over acts of the local
government units, and grants the local government units autonomy, thus:
The 1987 Constitution:
Article X, Section 4. The President of the Philippines shall exercise general supervision over local
governments. Provinces with respect to component cities and municipalities, and cities and
municipalities with respect to component barangays, shall ensure that the acts of their component
units are within the scope of their prescribed powers and functions.27
Petitioner contends that the policy in the above-cited constitutional provision is mirrored in the Local
Government Code, which states:
SEC. 25. National Supervision over Local Government Units. - (a) Consistent with the basic policy
on local autonomy, the President shall exercise general supervision over local government units to
ensure that their acts are within the scope of their prescribed powers and functions.
The President shall exercise supervisory authority directly over provinces, highly urbanized cities,
and independent component cities; through the province with respect to component cities and
municipalities; and through the city and municipality with respect to barangays.28
Petitioner contends that the foregoing provisions of the Constitution and the Local Government Code
of 1991 show that the relationship between the President and the Provinces or respondent DENR,
as the alter ego of the President, and the Province of Bulacan is one of executive supervision, not
one of executive control. The term "control" has been defined as the power of an officer to alter or
modify or set aside what a subordinate officer had done in the performance of his/her duties and to
substitute the judgment of the former for the latter, while the term "supervision" is the power of a
superior officer to see to it that lower officers perform their function in accordance with law.29
Petitioner argues that respondent DENR Secretary went beyond mere executive supervision and
exercised control when he nullified the small-scale mining permits granted by the Provincial
Governor of Bulacan, as the former substituted the judgment of the latter.
Petitioner asserts that what is involved here is a devolved power.
Under the Local Government Code of 1991, the power to regulate small-scale mining has been
devolved to all provinces. In the exercise of devolved powers, departmental approval is not
necessary.30
Petitioner contends that if the provisions in Section 24 of R.A. No. 7076 and Section 17 (b)(3)(iii) of
the Local Government Code of 1991 granting the power of control to the DENR/DENR Secretary are
not nullified, nothing would stop the DENR Secretary from nullifying, voiding and canceling the small-
scale mining permits that have been issued by a Provincial Governor.
Petitioner submits that the statutory grant of power of control to respondents is unconstitutional, as
the Constitution only allows supervision over local governments and proscribes control by the
executive departments.
In its Comment, respondents, represented by the Office of the Solicitor General, stated that contrary
to the assertion of petitioner, the power to implement the small-scale mining law is expressly limited
in Section 17 (b)(3)(iii) of the Local Government Code, which provides that it must be carried out
"pursuant to national policies and subject to supervision, control and review of the DENR." Moreover,
the fact that the power to implement the small-scale mining law has not been fully devolved to
provinces is further amplified by Section 4 of the People's Small-Scale Mining Act of 1991, which
provides, among others, that the People's Small-Scale Mining Program shall be implemented by the
DENR Secretary.
The petition lacks merit.
Paragraph 1 of Section 2, Article XII (National Economy and Patrimony) of the

Constitution31 provides that "the exploration, development and utilization of natural resources shall
be under the full control and supervision of the State."
Moreover, paragraph 3 of Section 2, Article XII of the Constitution provides that "the Congress may,
by law, allow small-scale utilization of natural resources by Filipino citizens x x x."
Pursuant to Section 2, Article XII of the Constitution, R.A. No. 7076 or the People's Small-Scale
Mining Act of 1991, was enacted, establishing under Section 4 thereof a People's Small-Scale
Mining Program to be implemented by the DENR Secretary in coordination with other concerned
government agencies.
The People's Small-Scale Mining Act of 1991 defines "small-scale mining" as "refer[ring] to mining
activities, which rely heavily on manual labor using simple implement and methods and do not use
explosives or heavy mining equipment."32
It should be pointed out that the Administrative Code of 198733 provides that the DENR is, subject
to law and higher authority, in charge of carrying out the State's constitutional mandate, under
Section 2, Article XII of the Constitution, to control and supervise the exploration, development,
utilization and conservation of the country's natural resources. Hence, the enforcement of small-
scale mining law in the provinces is made subject to the supervision, control and review of the DENR
under the Local Government Code of 1991, while the People’s Small-Scale Mining Act of 1991
provides that the People’s Small-Scale Mining Program is to be implemented by the DENR
Secretary in coordination with other concerned local government agencies.
Indeed, Section 4, Article X (Local Government) of the Constitution states that "[t]he President of the
Philippines shall exercise general supervision over local governments," and Section 25 of the Local
Government Code reiterates the same. General supervision by the President means no more than
seeing to it that laws are faithfully executed or that subordinate officers act within the law.34
The Court has clarified that the constitutional guarantee of local autonomy in the Constitution Art. X,
Sec. 2 refers to the administrative autonomy of local government units or, cast in more technical
language, the decentralization of government authority.35 It does not make local governments
sovereign within the State.36 Administrative autonomy may involve devolution of powers, but subject
to limitations like following national policies or standards,37 and those provided by the Local
Government Code, as the structuring of local governments and the allocation of powers,
responsibilities, and resources among the different local government units and local officials have
been placed by the Constitution in the hands of Congress38 under Section 3, Article X of the
Constitution.
Section 3, Article X of the Constitution mandated Congress to "enact a local government code which
shall provide for a more responsive and accountable local government structure instituted through a
system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate
among the different local government units their powers, responsibilities, and resources, and provide
for the qualifications, election, appointment and removal, term, salaries, powers and functions and
duties of local officials, and all other matters relating to the organization and operation of the local
units."
In connection with the enforcement of the small-scale mining law in the province, Section 17 of the
Local Government Code provides:
SEC. 17. Basic Services and Facilities. - (a) Local government units shall endeavor to be self-reliant
and shall continue exercising the powers and discharging the duties and functions currently vested
upon them. They shall also discharge the functions and responsibilities of national agencies and
offices devolved to them pursuant to this Code. Local government units shall likewise exercise such
other powers and discharge such other functions and responsibilities as are necessary, appropriate,
or incidental to efficient and effective provision of the basic services and facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, the following:
xxxx
(3) For a Province:c
xxxx
(iii) Pursuant to national policies and subject to supervision, control and review of the DENR,
enforcement of forestry laws limited to community-based forestry projects, pollution control law,
small-scale mining law, and other laws on the protection of the environment; and mini-hydro electric
projects for local purposes;39
Clearly, the Local Government Code did not fully devolve the enforcement of the small-scale mining
law to the provincial government, as its enforcement is subject to the supervision, control and review
of the DENR, which is in charge, subject to law and higher authority, of carrying out the State's
constitutional mandate to control and supervise the exploration, development, utilization of the
country's natural resources.40
Section 17 (b)(3)(iii) of the Local Government Code of 1991 is in harmony with R.A. No. 7076 or the
People's Small-Scale Mining Act of 1991,41 which established a People's Small-Scale Mining
Program to be implemented by the Secretary of the DENR, thus:
Sec. 2. Declaration of Policy. – It is hereby declared of the State to promote, develop, protect and
rationalize viable small-scale mining activities in order to generate more employment opportunities
and provide an equitable sharing of the nation's wealth and natural resources, giving due regard to
existing rights as herein provided.
xxxx
Sec. 4. People's Small-Scale Mining Program. - For the purpose of carrying out the declared policy
provided in Section 2 hereof, there is hereby established a People's Small-Scale Mining Program to
be implemented by the Secretary of the Department of Environment and Natural Resources,
hereinafter called the Department, in coordination with other concerned government agencies,
designed to achieve an orderly, systematic and rational scheme for the small-scale development and
utilization of mineral resources in certain mineral areas in order to address the social, economic,
technical, and environmental problems connected with small-scale mining activities.
xxxx
Sec. 24. Provincial/City Mining Regulatory Board. – There is hereby created under the direct
(a) Declare and segregate existing gold-rush areas for small-scale mining;
(b) Reserve future gold and other mining areas for small-scale mining;
(c) Award contracts to small-scale miners;
(d) Formulate and implement rules and regulations related to small-scale mining;
(e) Settle disputes, conflicts or litigations over conflicting claims within a people’s small-scale
mining area, an area that is declared a small-mining; and
(f) Perform such other functions as may be necessary to achieve the goals and objectives of
this Act.42
DENR Administrative Order No. 34, series of 1992, containing the Rules and Regulations to
implement R.A. No. 7076, provides:
SEC. 21. Administrative Supervision over the People's Small-Scale Mining Program. − The following
DENR officials shall exercise the following supervisory functions in the implementation of the
Program:
21.1 DENR Secretrary – direct supervision and control over the program and activities of the
small-scale miners within the people's small-scale mining area;
21.2 Director − the Director shall:
a. Recommend the depth or length of the tunnel or adit taking into account the: (1)
size of membership and capitalization of the cooperative; (2) size of mineralized
areas; (3) quantity of mineral deposits; (4) safety of miners; and (5) environmental
impact and other considerations;
b. Determine the right of small-scale miners to existing facilities in consultation with

the operator, claimowner, landowner or lessor of an affected area upon declaration of
a small-scale mining area;
c. Recommend to the Secretary the withdrawal of the status of the people's small-
scale mining area when it can no longer be feasibly operated on a small-scale basis;
and
d. See to it that the small-scale mining contractors abide by small-scale mines safety
rules and regulations.
xxxx
SEC. 22. Provincial/City Mining Regulatory Board. − The Provincial/City Mining Regulatory Board
created under R.A. 7076 shall exercise the following powers and functions, subject to review by the
Secretary:
22.1 Declares and segregates existing gold rush area for small-scale mining;
22.2 Reserves for the future, mineralized areas/mineral lands for people's small-scale
mining;
22.3 Awards contracts to small-scale miners’ cooperative;
22.4 Formulates and implements rules and regulations related to R.A. 7076;
22.5 Settles disputes, conflicts or litigations over conflicting claims within ninety (90) days
upon filing of protests or complaints; Provided, That any aggrieved party may appeal within
five (5) days from the Board's decision to the Secretary for final resolution otherwise the
same is considered final and executory; and
22.6 Performs such other functions as may be necessary to achieve the goals and objectives
of R.A. 7076.
SEC. 6. Declaration of People's Small-Scale Mining Areas. – The Board created under R.A. 7076
shall have the authority to declare and set aside People's Small-Scale Mining Areas in sites onshore
suitable for small-scale mining operations subject to review by the DENR Secretary thru the
Director.43
DENR Administrative Order No. 23, otherwise known as the Implementing Rules and Regulations of
R.A. No. 7942, otherwise known as the Philippine Mining Act of 1995, adopted on August 15, 1995,
provides under Section 12344thereof that small-scale mining applications should be filed with the
PMRB45 and the corresponding permits shall be issued by the Provincial Governor, except small-
scale mining applications within the mineral reservations.
Thereafter, DENR Administrative Order No. 96-40, otherwise known as the Revised Implementing
Rules and Regulations of R.A. No. 7942, otherwise known as the Philippine Mining Act of 1995,
adopted on December 19, 1996, provides that applications for Small-Scale Mining Permits shall be
filed with the Provincial Governor/City Mayor through the concerned Provincial/City Mining
Regulatory Board for areas outside the Mineral Reservations and with the Director though the
Bureau for areas within the Mineral Reservations.46 Moreover, it provides that Local Government
Units shall, in coordination with the Bureau/ Regional Offices and subject to valid and existing mining
rights, "approve applications for small-scale mining, sand and gravel, quarry x x x and gravel permits
not exceeding five (5) hectares."47
Petitioner contends that the Local Government Code of 1991, R.A. No. 7076, DENR Administrative
Orders Nos. 95-23 and 96-40 granted the DENR Secretary the broad statutory power of control, but
did not confer upon the respondents DENR and DENR Secretary the power to reverse, abrogate,
nullify, void, cancel the permits issued by the Provincial Governor or small-scale mining contracts
entered into by the Board.
The contention does not persuade.
The settlement of disputes over conflicting claims in small-scale mining is provided for in Section 24
of R.A. No. 7076, thus:
Sec. 24. Provincial/City Mining Regulatory Board. − There is hereby created under the direct
xxxx
(e) Settle disputes, conflicts or litigations over conflicting claims within a people's small-scale mining
area, an area that is declared a small mining area; x x x
Section 24, paragraph (e) of R.A. No. 7076 cited above is reflected in Section 22, paragraph 22.5 of
the Implementing Rules and Regulations of R.A. No. 7076, to wit:
SEC. 22. Provincial/City Mining Regulatory Board. – The Provincial/City Mining Regulatory Board
created under R.A. No. 7076 shall exercise the following powers and functions, subject to review by
the Secretary:
xxxx
22.5 Settles disputes, conflicts or litigations over conflicting claims within ninety (90) days upon filing
of protests or complaints; Provided, That any aggrieved party may appeal within five (5) days from
the Board's decision to the Secretary for final resolution otherwise the same is considered final and
executory; x x x
In this case, in accordance with Section 22, paragraph 22.5 of the Implementing Rules and
Regulations of R.A. No. 7076, the AMTC filed on July 22, 2005 with the PMRB of Bulacan a formal
protest against the Applications for Quarry Permits of Eduardo Mercado, Benedicto Cruz, Liberato
Sembrano (replaced by Lucila Valdez) and Gerardo Cruz on the ground that the subject area was
already covered by its Application for Exploration Permit.48 However, on August 8, 2005, the PMRB
issued Resolution Nos. 05-8, 05-9, 05-10 and 05-11, resolving to submit to the Provincial Governor
of Bulacan the Applications for Small-Scale Mining Permits of Eduardo Mercado, Benedicto Cruz,
Lucila Valdez and Gerardo Cruz for the granting/issuance of the said permits.49 On August 10, 2005,
the Provincial Governor of Bulacan issued the Small-Scale Mining Permits to Eduardo Mercado,
Benedicto Cruz, Lucila Valdez and Gerardo Cruz based on the legal opinion of the Provincial Legal
Officer and the Resolutions of the PMRB of Bulacan.
Hence, AMTC filed an appeal with respondent DENR Secretary, appealing from Letter-Resolution
No. 05-1317 and Resolution Nos. 05-08, 05-09, 05-10 and 05-11, all dated August 8, 2005, of the
PMRB of Bulacan, which resolutions gave due course and granted, on August 10, 2005, Small-Scale
Mining Permits to Eduardo D. Mercado, Benedicto S. Cruz, Lucila Valdez and Gerardo Cruz
involving parcels of mineral land situated at Camachin, Doña Remedios Trinidad, Bulacan.
The PMRB of Bulacan filed its Answer, stating that it is an administrative body, created under R.A.
No. 7076, which cannot be equated with the court wherein a full-blown hearing could be conducted,
but it is enough that the parties were given the opportunity to present evidence. It asserted that the
questioned resolutions it issued were in accordance with the mining laws and that the Small-Scale
Mining Permits granted were registered ahead of AMTC's Application for Exploration Permit. Further,
the Board stated that the Governor of Bulacan had the power to approve the Small-Scale Mining
Permits under R.A. No. 7160.
The DENR Secretary found the appeal meritorious, and resolved these pivotal issues: (1) when is
the subject mining area open for mining location by other applicants; and (2) who among the
applicants have valid applications. The pertinent portion of the decision of the DENR Secretary
1âwphi 1
reads:
We agree with the ruling of the MGB Director that the area is open only to mining location on August
11, 2004, fifteen (15) days after the receipt by Golden Falcon on July 27, 2004 of a copy of the
subject Order of July 16, 2004. The filing by Golden Falcon of the letter-appeal suspended the
1âwphi1
finality of the Order of Denial issued on April 29, 1998 by the Regional Director until the Resolution
thereof on July 16, 2004.
Although the subject AQPs/SSMPs were processed in accordance with the procedures of the
PMRB, however, the AQPs were filed on February 10, 2004 when the area is still closed to mining
location. Consequently, the SSMPs granted by the PMRB and the Governor are null and void
making thereby AEP No. III-02-04 of the AMTC valid, it having been filed when the area is already
open to other mining applicants.
Records also show that the AQPs were converted into SSMPs. These are two (2) different
applications. The questioned SSMPs were issued in violation of Section 4 of RA 7076 and beyond
the authority of the Provincial Governor pursuant to Section 43 of RA 7942 because the area was
never proclaimed as "People's Small-Scale Mining Program." Moreover, iron ore mineral is not
considered among the quarry resources.
xxxx
WHEREFORE, the Application for Exploration Permit, AEP-III-02-04 of Atlantic Mines and Trading
Corp. is declared valid and may now be given due course. The Small-Scale Mining Permits, SSMP-
B-002-05 of Gerardo Cruz, SSMP-B-003-05 of Eduardo D. Mercado, SSMP-B-004-05 of Benedicto
S. Cruz and SSMP-B-005-05 of Lucila S. Valdez are declared NULL AND VOID. Consequently, the
said permits are hereby CANCELLED.50
The Court finds that the decision of the DENR Secretary was rendered in accordance with the power
of review granted to the DENR Secretary in the resolution of disputes, which is provided for in
Section 24 of R.A. No. 707651 and Section 22 of its Implementing Rules and Regulations.52 It is
noted that although AMTC filed a protest with the PMRB regarding its superior and prior Application
for Exploration Permit over the Applications for Quarry Permit, which were converted to Small-Scale
Mining Permits, the PMRB did not resolve the same, but issued Resolution Nos. 05-08 to 05-11 on
August 8, 2005, resolving to submit to the Provincial Governor of Bulacan the Applications for Small-
Scale Mining Permits of Eduardo Mercado, Benedicto Cruz, Lucila Valdez and Gerardo Cruz for the
granting of the said permits. After the Provincial Governor of Bulacan issued the Small-Scale Mining
Permits on August 10, 2005, AMTC appealed the Resolutions of the PMRB giving due course to the
granting of the Small-Scale Mining Permits by the Provincial Governor.
Hence, the decision of the DENR Secretary, declaring that the Application for Exploration Permit of
AMTC was valid and may be given due course, and canceling the Small-Scale Mining Permits
issued by the Provincial Governor, emanated from the power of review granted to the DENR
Secretary under R.A. No. 7076 and its Implementing Rules and Regulations. The DENR Secretary's
power to review and, therefore, decide, in this case, the issue on the validity of the issuance of the
Small-Scale Mining Permits by the Provincial Governor as recommended by the PMRB, is a quasi-
judicial function, which involves the determination of what the law is, and what the legal rights of the
contending parties are, with respect to the matter in controversy and, on the basis thereof and the
facts obtaining, the adjudication of their respective rights.53 The DENR Secretary exercises quasi-
judicial function under R.A. No. 7076 and its Implementing Rules and Regulations to the extent
necessary in settling disputes, conflicts or litigations over conflicting claims. This quasi-judicial
function of the DENR Secretary can neither be equated with "substitution of judgment" of the
Provincial Governor in issuing Small-Scale Mining Permits nor "control" over the said act of the
Provincial Governor as it is a determination of the rights of AMTC over conflicting claims based on
the law.
In determining whether Section 17 (b)(3)(iii) of the Local Government Code of 1991 and Section 24
of R.A. No. 7076 are unconstitutional, the Court has been guided by Beltran v. The Secretary of
Health, 54 which held:
The fundamental criterion is that all reasonable doubts should be resolved in favor of the
constitutionality of a statute. Every law has in its favor the presumption of constitutionality. For a law
to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution. The
ground for nullity must be clear and beyond reasonable doubt. Those who petition this Court to
declare a law, or parts thereof, unconstitutional must clearly establish the basis therefor. Otherwise,
the petition must fail. 55
In this case, the Court finds that the grounds raised by petitioner to challenge the constitutionality of
Section 17 (b )(3)(iii) of the Local Government Code of 1991 and Section 24 'of R.A. No.7076 failed
to overcome the constitutionality of the said provisions of law.
WHEREFORE, the petition is DISMISSED for lack of merit.

No costs.
SO ORDERED.
53
G.R. No. 170165 August 15, 2006
B/GEN. (RET.) FRANCISCO V. GUDANI AND LT. COL. ALEXANDER F. BALUTAN Petitioners,
vs.
LT./GEN. GENEROSO S. SENGA CORONA, AS CHIEF OF STAFF OF THE CARPIO-MORALES,
ARMED FORCES OF THE CALLEJO, SR., PHILIPPINES, COL. GILBERTO AZCUNA, JOSE C.
ROA AS THE PRE-TRIAL TINGA, INVESTIGATING OFFICER, THE CHICO-NAZARIO, PROVOST
MARSHALL GENERAL GARCIA, and OF THE ARMED FORCES OF THE PHILIPPINES AND
THE GENERAL COURT-MARTIAL, Respondents.
DECISION
TINGA, J.:
A most dangerous general proposition is foisted on the Court — that soldiers who defy orders of
their superior officers are exempt
from the strictures of military law and discipline if such defiance is predicated on an act otherwise
valid under civilian law. Obedience and deference to the military chain of command and the
President as commander-in-chief are the cornerstones of a professional military in the firm cusp of
civilian control. These values of obedience and deference expected of military officers are content-
neutral, beyond the sway of the officer’s own sense of what is prudent or rash, or more elementally,
of right or wrong. A self-righteous military invites itself as the scoundrel’s activist solution to the "ills"
of participatory democracy.
Petitioners seek the annulment of a directive from President Gloria Macapagal-Arroyo1 enjoining
them and other military officers from testifying before Congress without the President’s consent.
Petitioners also pray for injunctive relief against a pending preliminary investigation against them, in
preparation for possible court-martial proceedings, initiated within the military justice system in
connection with petitioners’ violation of the aforementioned directive.
The Court is cognizant that petitioners, in their defense, invoke weighty constitutional principles that
center on fundamental freedoms enshrined in the Bill of Rights. Although these concerns will not be
addressed to the satisfaction of petitioners, the Court recognizes these values as of paramount
importance to our civil society, even if not determinative of the resolution of this petition. Had the
relevant issue before us been the right of the Senate to compel the testimony of petitioners, the
constitutional questions raised by them would have come to fore. Such a scenario could have very
well been presented to the Court in such manner, without the petitioners having had to violate a
direct order from their commanding officer. Instead, the Court has to resolve whether petitioners may
be subjected to military discipline on account of their defiance of a direct order of the AFP Chief of
Staff.
The solicited writs of certiorari and prohibition do not avail; the petition must be denied.
I.
The petitioners are high-ranking officers of the Armed Forces of the Philippines (AFP). Both
petitioners, Brigadier General Francisco Gudani (Gen. Gudani) and Lieutenant Colonel Alexander
Balutan (Col. Balutan), belonged to the Philippine Marines. At the time of the subject incidents, both
Gen. Gudani and Col. Balutan were assigned to the Philippine Military Academy (PMA) in Baguio
City, the former as the PMA Assistant Superintendent, and the latter as the Assistant Commandant
of Cadets.2
On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited several senior officers of the
AFP to appear at a public hearing before the Senate Committee on National Defense and Security
(Senate Committee) scheduled on 28 September 2005. The hearing was scheduled after topics
concerning the conduct of the 2004 elections emerged in the public eye, particularly allegations of
massive cheating and the surfacing of copies of an audio excerpt purportedly of a phone
conversation between President Gloria Macapagal Arroyo and an official of the Commission on
Elections (COMELEC) widely reputed as then COMELEC Commissioner Virgilio Garcillano. At the
time of the 2004 elections, Gen. Gudani had been designated as commander, and Col. Balutan a
member, of "Joint Task Force Ranao" by the AFP Southern Command. "Joint Task Force Ranao"
was tasked with the maintenance of peace and order during the 2004 elections in the provinces of
Lanao del Norte and Lanao del Sur.3 `
Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso Senga (Gen.
Senga) were among the several AFP officers who received a letter invitation from Sen. Biazon to
attend the 28 September 2005 hearing. On 23 September 2005, Gen. Senga replied through a letter
to Sen. Biazon that he would be unable to attend the hearing due to a previous commitment in
Brunei, but he nonetheless "directed other officers from the AFP who were invited to attend the
hearing."4
On 26 September 2005, the Office of the Chief of Staff of the AFP issued a Memorandum addressed
to the Superintendent of the PMA Gen. Cristolito P. Baloing (Gen. Baloing). It was signed by Lt. Col.
Hernando DCA Iriberri in behalf of Gen. Senga.5 Noting that Gen. Gudani and Col. Balutan had been
invited to attend the Senate Committee hearing on 28 September 2005, the Memorandum directed
the two officers to attend the hearing.6Conformably, Gen. Gudani and Col. Balutan filed their
respective requests for travel authority addressed to the PMA Superintendent.
On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, requesting the postponement of
the hearing scheduled for the following day, since the AFP Chief of Staff was himself unable to
attend said hearing, and that some of the invited officers also could not attend as they were
"attending to other urgent operational matters." By this time, both Gen. Gudani and Col. Balutan had
already departed Baguio for Manila to attend the hearing.
Then on the evening of 27 September 2005, at around 10:10 p.m., a message was transmitted to
the PMA Superintendent from the office of Gen. Senga, stating as follows:
PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP PERSONNEL SHALL

APPEAR BEFORE ANY CONGRESSIONAL OR SENATE HEARING WITHOUT HER
APPROVAL. INFORM BGEN FRANCISCO F GUDANI AFP AND LTC ALEXANDER
BALUTAN PA (GSC) ACCORDINGLY.7
The following day, Gen. Senga sent another letter to Sen. Biazon, this time informing the senator
that "no approval has been granted by the President to any AFP officer to appear" before the
hearing scheduled on that day. Nonetheless, both Gen. Gudani and Col. Balutan were present as
the hearing started, and they both testified as to the conduct of the 2004 elections.
The Office of the Solicitor General (OSG), representing the respondents before this Court, has
offered additional information surrounding the testimony of Gen. Gudani and Col. Balutan. The OSG
manifests that the couriers of the AFP Command Center had attempted to deliver the radio message
to Gen. Gudani’s residence in a subdivision in Parañaque City late in the night of 27 September
2005, but they were not permitted entry by the subdivision guards. The next day, 28 September
2005, shortly before the start of the hearing, a copy of Gen. Senga’s letter to Sen. Biazon sent
earlier that day was handed at the Senate by Commodore Amable B. Tolentino of the AFP Office for
Legislative Affairs to Gen. Gudani, who replied that he already had a copy. Further, Gen. Senga
called Commodore Tolentino on the latter’s cell phone and asked to talk to Gen. Gudani, but Gen.
Gudani refused. In response, Gen. Senga instructed Commodore Tolentino to inform Gen. Gudani
that "it was an order," yet Gen. Gudani still refused to take Gen. Senga’s call.8
A few hours after Gen. Gudani and Col. Balutan had concluded their testimony, the office of Gen.
Senga issued a statement which noted that the two had appeared before the Senate Committee "in
spite of the fact that a guidance has been given that a Presidential approval should be sought prior
to such an appearance;" that such directive was "in keeping with the time[-]honored principle of the
Chain of Command;" and that the two officers "disobeyed a legal order, in violation of A[rticles of]
W[ar] 65 (Willfully Disobeying Superior Officer), hence they will be subjected to General Court
Martial proceedings x x x" Both Gen. Gudani and Col. Balutan were likewise relieved of their
assignments then.9
On the very day of the hearing, 28 September 2005, President Gloria-Macapagal-Arroyo issued
Executive Order No. 464 (E.O. 464). The OSG notes that the E.O. "enjoined officials of the executive
department including the military establishment from appearing in any legislative inquiry without her
approval."10 This Court subsequently ruled on the constitutionality of the said executive order
in Senate v. Ermita.11 The relevance of E.O. 464 and Senate to the present petition shall be
discussed forthwith.
In the meantime, on 30 September 2005, petitioners were directed by General Senga, through Col.
Henry A. Galarpe of the AFP Provost Marshal General, to appear before the Office of the Provost
Marshal General (OPMG) on 3 October 2005 for investigation. During their appearance before Col.
Galarpe, both petitioners invoked their right to remain silent.12 The following day, Gen. Gudani was
compulsorily retired from military service, having reached the age of 56.13
In an Investigation Report dated 6 October 2005, the OPMG recommended that petitioners be
charged with violation of Article of War 65, on willfully disobeying a superior officer, in relation to
Article of War 97, on conduct prejudicial to the good order and military discipline.14 As
recommended, the case was referred to a Pre-Trial Investigation Officer (PTIO) preparatory to trial
by the General Court Martial (GCM).15 Consequently, on 24 October 2005, petitioners were
separately served with Orders respectively addressed to them and signed by respondent Col. Gilbert
Jose C. Roa, the Pre-Trial Investigating Officer of the PTIO. The Orders directed petitioners to
appear in person before Col. Roa at the Pre-Trial Investigation of the Charges for violation of Articles
6516 and 9717 of Commonwealth Act No. 408,18 and to submit their counter-affidavits and affidavits of
witnesses at the Office of the Judge Advocate General.19 The Orders were accompanied by
respective charge sheets against petitioners, accusing them of violating Articles of War 65 and 97.
It was from these premises that the present petition for certiorari and prohibition was filed,
particularly seeking that (1) the order of President Arroyo coursed through Gen. Senga preventing
petitioners from testifying before Congress without her prior approval be declared unconstitutional;
(2) the charges stated in the charge sheets against petitioners be quashed; and (3) Gen. Senga,
Col. Galarpe, Col. Roa, and their successors-in-interest or persons acting for and on their behalf or
orders, be permanently enjoined from proceeding against petitioners, as a consequence of their
having testified before the Senate on 28 September 2005.20
Petitioners characterize the directive from President Arroyo requiring her prior approval before any
AFP personnel appear before Congress as a "gag order," which violates the principle of separation
of powers in government as it interferes with the investigation of the Senate Committee conducted in
aid of legislation. They also equate the "gag order" with culpable violation of the Constitution,
particularly in relation to the public’s constitutional right to information and transparency in matters of
public concern. Plaintively, petitioners claim that "the Filipino people have every right to hear the
[petitioners’] testimonies," and even if the "gag order" were unconstitutional, it still was tantamount to
"the crime of obstruction of justice." Petitioners further argue that there was no law prohibiting them
from testifying before the Senate, and in fact, they were appearing in obeisance to the authority of
Congress to conduct inquiries in aid of legislation.
Finally, it is stressed in the petition that Gen. Gudani was no longer subject to military jurisdiction on
account of his compulsory retirement on 4 October 2005. It is pointed out that Article 2, Title I of the
Articles of War defines persons subject to military law as "all officers and soldiers in the active
service" of the AFP.
II.
We first proceed to define the proper litigable issues. Notably, the guilt or innocence of petitioners in
violating Articles 65 and 97 of the Articles of War is not an issue before this Court, especially
considering that per records, petitioners have not yet been subjected to court martial proceedings.
Owing to the absence of such proceedings, the correct inquiry should be limited to whether
respondents could properly initiate such proceedings preparatory to a formal court-martial, such as
the aforementioned preliminary investigation, on the basis of petitioners’ acts surrounding their
testimony before the Senate on 28 September 2005. Yet this Court, consistent with the principle that
it is not a trier of facts at first instance,21 is averse to making any authoritative findings of fact, for that
function is first for the court-martial court to fulfill.
Thus, we limit ourselves to those facts that are not controverted before the Court, having been
commonly alleged by petitioners and the OSG (for respondents). Petitioners were called by the
Senate Committee to testify in its 28 September 2005 hearing. Petitioners attended such hearing
and testified before the Committee, despite the fact that the day before, there was an order from
Gen. Senga (which in turn was sourced "per instruction" from President Arroyo) prohibiting them
from testifying without the prior approval of the President. Petitioners do not precisely admit before
this Court that they had learned of such order prior to their testimony, although the OSG asserts that
at the very least, Gen. Gudani already knew of such order before he testified.22 Yet while this fact
may be ultimately material in the court-martial proceedings, it is not determinative of this petition,
which as stated earlier, does not proffer as an issue whether petitioners are guilty of violating the
Articles of War.
What the Court has to consider though is whether the violation of the aforementioned order of Gen.
Senga, which emanated from the President, could lead to any investigation for court-martial of
petitioners. It has to be acknowledged as a general principle23 that AFP personnel of whatever rank
are liable under military law for violating a direct order of an officer superior in rank. Whether
petitioners did violate such an order is not for the Court to decide, but it will be necessary to assume,
for the purposes of this petition, that petitioners did so.
III.
Preliminarily, we must discuss the effect of E.O. 464 and the Court’s ruling in Senate on the present
petition. Notably, it is not alleged that petitioners were in any way called to task for violating
E.O. 464, but instead, they were charged for violating the direct order of Gen. Senga not to
appear before the Senate Committee, an order that stands independent of the executive
order. Distinctions are called for, since Section 2(b) of E.O. 464 listed "generals and flag officers of
the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff
are covered by the executive privilege," as among those public officials required in Section 3 of E.O.
464 "to secure prior consent of the President prior to appearing before either House of Congress."
The Court in Senate declared both Section 2(b) and Section 3 void,24 and the impression may have
been left following Senate that it settled as doctrine, that the President is prohibited from requiring
military personnel from attending congressional hearings without having first secured prior
presidential consent. That impression is wrong.
Senate turned on the nature of executive privilege, a presidential prerogative which is encumbered
by significant limitations. Insofar as E.O. 464 compelled officials of the executive branch to seek prior
presidential approval before appearing before Congress, the notion of executive control also comes
into consideration.25 However, the ability of the President to require a military official to secure prior
consent before appearing before Congress pertains to a wholly different and independent specie of
presidential authority—the commander-in-chief powers of the President. By tradition and
jurisprudence, the commander-in-chief powers of the President are not encumbered by the same
degree of restriction as that which may attach to executive privilege or executive control.
During the deliberations in Senate, the Court was very well aware of the pendency of this petition as
well as the issues raised herein. The decision in Senate was rendered with the comfort that the
nullification of portions of E.O. 464 would bear no impact on the present petition since petitioners
herein were not called to task for violating the executive order. Moreover, the Court was then
cognizant that Senate and this case would ultimately hinge on disparate legal issues.
Relevantly, Senate purposely did not touch upon or rule on the faculty of the President, under the
aegis of the commander-in-chief powers26 to require military officials from securing prior consent
before appearing before Congress. The pertinent factors in considering that question are markedly
outside of those which did become relevant in adjudicating the issues raised in Senate. It is in this
petition that those factors come into play.
At this point, we wish to dispose of another peripheral issue before we strike at the heart of the
matter. General Gudani argues that he can no longer fall within the jurisdiction of the court-martial,
considering his retirement last 4 October 2005. He cites Article 2, Title I of Commonwealth Act No.
408, which defines persons subject to military law as, among others, "all officers and soldiers in the
active service of the [AFP]," and points out that he is no longer in the active service.
This point was settled against Gen. Gudani’s position in Abadilla v. Ramos,27 where the Court
declared that an officer whose name was dropped from the roll of officers cannot be considered to
be outside the jurisdiction of military authorities when military justice proceedings were initiated
against him before the termination of his service. Once jurisdiction has been acquired over the
officer, it continues until his case is terminated. Thus, the Court held:
The military authorities had jurisdiction over the person of Colonel Abadilla at the time of the alleged
offenses. This jurisdiction having been vested in the military authorities, it is retained up to the end of
the proceedings against Colonel Abadilla. Well-settled is the rule that jurisdiction once acquired is
not lost upon the instance of the parties but continues until the case is terminated.28
Citing Colonel Winthrop’s treatise on Military Law, the Court further stated:
We have gone through the treatise of Colonel Winthrop and We find the following passage which
goes against the contention of the petitioners, viz —
3. Offenders in general — Attaching of jurisdiction. It has further been held, and is now settled law, in
regard to military offenders in general, that if the military jurisdiction has once duly attached to them
previous to the date of the termination of their legal period of service, they may be brought to trial by
court-martial after that date, their discharge being meanwhile withheld. This principle has mostly
been applied to cases where the offense was committed just prior to the end of the term. In such
cases the interests of discipline clearly forbid that the offender should go unpunished. It is held
therefore that if before the day on which his service legally terminates and his right to a
discharge is complete, proceedings with a view to trial are commenced against him — as by
arrest or the service of charges, — the military jurisdiction will fully attach and once attached
may be continued by a trial by court-martial ordered and held after the end of the term of the
enlistment of the accused x x x 29
Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the acts complained of
and the initiation of the proceedings against him occurred before he compulsorily retired on 4
October 2005. We see no reason to unsettle the Abadilla doctrine. The OSG also points out that
under Section 28 of Presidential Decree No. 1638, as amended, "[a]n officer or enlisted man carried
in the retired list [of the Armed Forces of the Philippines] shall be subject to the Articles of War x x
x"30 To this citation, petitioners do not offer any response, and in fact have excluded the matter of
Gen. Gudani’s retirement as an issue in their subsequent memorandum.
IV.
We now turn to the central issues.
Petitioners wish to see annulled the "gag order" that required them to secure presidential consent
prior to their appearance before the Senate, claiming that it violates the constitutional right to
information and transparency in matters of public concern; or if not, is tantamount at least to the
criminal acts of obstruction of justice and grave coercion. However, the proper perspective from
which to consider this issue entails the examination of the basis and authority of the President to
issue such an order in the first place to members of the AFP and the determination of whether such
an order is subject to any limitations.
The vitality of the tenet that the President is the commander-in-chief of the Armed Forces is most
crucial to the democratic way of life, to civilian supremacy over the military, and to the general
stability of our representative system of government. The Constitution reposes final authority, control
and supervision of the AFP to the President, a civilian who is not a member of the armed forces, and
whose duties as commander-in-chief represent only a part of the organic duties imposed upon the
office, the other functions being clearly civil in nature.31 Civilian supremacy over the military also
countermands the notion that the military may bypass civilian authorities, such as civil courts, on
matters such as conducting warrantless searches and seizures.32
Pursuant to the maintenance of civilian supremacy over the military, the Constitution has allocated
specific roles to the legislative and executive branches of government in relation to military affairs.
Military appropriations, as with all other appropriations, are determined by Congress, as is the power
to declare the existence of a state of war.33Congress is also empowered to revoke a proclamation of
martial law or the suspension of the writ of habeas corpus.34 The approval of the Commission on
Appointments is also required before the President can promote military officers from the rank of
colonel or naval captain.35 Otherwise, on the particulars of civilian dominance and administration
over the military, the Constitution is silent, except for the commander-in-chief clause which is fertile
in meaning and
implication as to whatever inherent martial authority the President may possess.36
The commander-in-chief provision in the Constitution is denominated as Section 18, Article VII,
which begins with the simple declaration that "[t]he President shall be the Commander-in-Chief of all
armed forces of the Philippines x x x"37 Outside explicit constitutional limitations, such as those found
in Section 5, Article XVI, the commander-in-chief clause vests on the President, as commander-in-
chief, absolute authority over the persons and actions of the members of the armed forces. Such
authority includes the ability of the President to restrict the travel, movement and speech of military
officers, activities which may otherwise be sanctioned under civilian law.
Reference to Kapunan, Jr. v. De Villa38 is useful in this regard. Lt. Col. Kapunan was ordered
confined under "house arrest" by then Chief of Staff (later President) Gen. Fidel Ramos. Kapunan
was also ordered, as a condition for his house arrest, that he may not issue any press statements or
give any press conference during his period of detention. The Court unanimously upheld such
restrictions, noting:
[T]he Court is of the view that such is justified by the requirements of military discipline. It cannot be
gainsaid that certain liberties of persons in the military service, including the freedom of
speech, may be circumscribed by rules of military discipline. Thus, to a certain degree,
individual rights may be curtailed, because the effectiveness of the military in fulfilling its
duties under the law depends to a large extent on the maintenance of discipline within its
ranks. Hence, lawful orders must be followed without question and rules must be faithfully
complied with, irrespective of a soldier's personal views on the matter. It is from this viewpoint
that the restrictions imposed on petitioner Kapunan, an officer in the AFP, have to be considered.39
Any good soldier, or indeed any ROTC cadet, can attest to the fact that the military way of life
circumscribes several of the cherished freedoms of civilian life. It is part and parcel of the military
package. Those who cannot abide by these limitations normally do not pursue a military career and
instead find satisfaction in other fields; and in fact many of those discharged from the service are
inspired in their later careers precisely by their rebellion against the regimentation of military life.
Inability or unwillingness to cope with military discipline is not a stain on character, for the military
mode is a highly idiosyncratic path which persons are not generally conscripted into, but volunteer
themselves to be part of. But for those who do make the choice to be a soldier, significant
concessions to personal freedoms are expected. After all, if need be, the men and women of the
armed forces may be commanded upon to die for country, even against their personal inclinations.
It may be so that military culture is a remnant of a less democratic era, yet it has been fully
integrated into the democratic system of governance. The constitutional role of the armed forces is
as protector of the people and of the State.40 Towards this end, the military must insist upon a
respect for duty and a discipline without counterpart in civilian life.41 The laws and traditions
governing that discipline have a long history; but they are founded on unique military exigencies as
powerful now as in the past.42 In the end, it must be borne in mind that the armed forces has a
distinct subculture with unique needs, a specialized society separate from civilian society. 43 In the
elegant prose of the eminent British military historian, John Keegan:
[Warriors who fight wars have] values and skills [which] are not those of politicians and diplomats.
They are those of a world apart, a very ancient world, which exists in parallel with the everyday world
but does not belong to it. Both worlds change over time, and the warrior world adopts in step to the
civilian. It follows it, however, at a distance. The distance can never be closed, for the culture of the
warrior can never be that of civilization itself….44
Critical to military discipline is obeisance to the military chain of command. Willful disobedience of a
superior officer is punishable by court-martial under Article 65 of the Articles of War.45 "An individual
soldier is not free to ignore the lawful orders or duties assigned by his immediate superiors. For
there would be an end of all discipline if the seaman and marines on board a ship of war [or soldiers
deployed in the field], on a distant service, were permitted to act upon their own opinion of their
rights [or their opinion of the
President’s intent], and to throw off the authority of the commander whenever they supposed it to
be unlawfully exercised."46
Further traditional restrictions on members of the armed forces are those imposed on free speech
and mobility. Kapunan is ample precedent in justifying that a soldier may be restrained by a superior
1âwphi1
officer from speaking out on certain matters. As a general rule, the discretion of a military officer to
restrain the speech of a soldier under his/her command will be accorded deference, with minimal
regard if at all to the reason for such restraint. It is integral to military discipline that the soldier’s
speech be with the consent and approval of the military commander.
The necessity of upholding the ability to restrain speech becomes even more imperative if the soldier
desires to speak freely on political matters. The Constitution requires that "[t]he armed forces shall
be insulated from partisan politics," and that ‘[n]o member of the military shall engage directly or
indirectly in any partisan political activity, except to vote."47 Certainly, no constitutional provision or
military indoctrination will eliminate a soldier’s ability to form a personal political opinion, yet it is vital
that such opinions be kept out of the public eye. For one, political belief is a potential source of
discord among people, and a military torn by political strife is incapable of fulfilling its constitutional
function as protectors of the people and of the State. For another, it is ruinous to military discipline to
foment an atmosphere that promotes an active dislike of or dissent against the President, the
commander-in-chief of the armed forces. Soldiers are constitutionally obliged to obey a President
they may dislike or distrust. This fundamental principle averts the country from going the way of
banana republics.
Parenthetically, it must be said that the Court is well aware that our country’s recent past is marked
by regime changes wherein active military dissent from the chain of command formed a key, though
not exclusive, element. The Court is not blind to history, yet it is a judge not of history but of the
Constitution. The Constitution, and indeed our modern democratic order, frown in no uncertain terms
on a politicized military, informed as they are on the trauma of absolute martial rule. Our history
might imply that a political military is part of the natural order, but this view cannot be affirmed by the
legal order. The evolutionary path of our young democracy necessitates a reorientation from this
view, reliant as our socio-political culture has become on it. At the same time, evolution mandates a
similar demand that our system of governance be more responsive to the needs and aspirations of
the citizenry, so as to avoid an environment vulnerable to a military apparatus able at will to exert an
undue influence in our polity.
Of possibly less gravitas, but of equal importance, is the principle that mobility of travel is another
necessary restriction on members of the military. A soldier cannot leave his/her post without the
consent of the commanding officer. The reasons are self-evident. The commanding officer has to be
aware at all times of the location of the troops under command, so as to be able to appropriately
respond to any exigencies. For the same reason, commanding officers have to be able to restrict the
movement or travel of their soldiers, if in their judgment, their presence at place of call of duty is
necessary. At times, this may lead to unsentimental, painful consequences, such as a soldier being
denied permission to witness the birth of his first-born, or to attend the funeral of a parent. Yet again,
military life calls for considerable personal sacrifices during the period of conscription, wherein the
higher duty is not to self but to country.
Indeed, the military practice is to require a soldier to obtain permission from the commanding officer
before he/she may leave his destination. A soldier who goes from the properly appointed place of
duty or absents from his/her command, guard, quarters, station, or camp without proper leave is
subject to punishment by court-martial.48 It is even clear from the record that petitioners had actually
requested for travel authority from the PMA in Baguio City to Manila, to attend the Senate
Hearing.49 Even petitioners are well aware that it was necessary for them to obtain permission from
their superiors before they could travel to Manila to attend the Senate Hearing.
It is clear that the basic position of petitioners impinges on these fundamental principles we have
discussed. They seek to be exempted from military justice for having traveled to the Senate to testify
before the Senate Committee against the express orders of Gen. Senga, the AFP Chief of Staff. If
petitioners’ position is affirmed, a considerable exception would be carved from the unimpeachable
right of military officers to restrict the speech and movement of their juniors. The ruinous
consequences to the chain of command and military discipline simply cannot warrant the
Court’s imprimatur on petitioner’s position.
V.
Still, it would be highly myopic on our part to resolve the issue solely on generalities surrounding
military discipline. After all, petitioners seek to impress on us that their acts are justified as they were
responding to an invitation from the Philippine Senate, a component of the legislative branch of
government. At the same time, the order for them not to testify ultimately came from the President,
the head of the executive branch of government and the commander-in-chief of the armed forces.
Thus, we have to consider the question: may the President prevent a member of the armed forces
from testifying before a legislative inquiry? We hold that the President has constitutional authority to
do so, by virtue of her power as commander-in-chief, and that as a consequence a military officer
who defies such injunction is liable under military justice. At the same time, we also hold that any
chamber of Congress which seeks the appearance before it of a military officer against the consent
of the President has adequate remedies under law to compel such attendance. Any military official
whom Congress summons to testify before it may be compelled to do so by the President. If the
President is not so inclined, the President may be commanded by judicial order to compel the
attendance of the military officer. Final judicial orders have the force of the law of the land which the
President has the duty to faithfully execute.50
Explication of these principles is in order.
As earlier noted, we ruled in Senate that the President may not issue a blanket requirement of prior
consent on executive officials summoned by the legislature to attend a congressional hearing. In
doing so, the Court recognized the considerable limitations on executive privilege, and affirmed that
the privilege must be formally invoked on specified grounds. However, the ability of the President
to prevent military officers from testifying before Congress does not turn on executive
privilege, but on the Chief Executive’s power as commander-in-chief to control the actions
and speech of members of the armed forces. The President’s prerogatives as commander-in-
chief are not hampered by the same limitations as in executive privilege.
Our ruling that the President could, as a general rule, require military officers to seek presidential
approval before appearing before Congress is based foremost on the notion that a contrary rule
unduly diminishes the prerogatives of the President as commander-in-chief. Congress holds
significant control over the armed forces in matters such as budget appropriations and the approval
of higher-rank promotions,51 yet it is on the President that the Constitution vests the title as
commander-in-chief and all the prerogatives and functions appertaining to the position. Again, the
exigencies of military discipline and the chain of command mandate that the President’s ability to
control the individual members of the armed forces be accorded the utmost respect. Where a military
officer is torn between obeying the President and obeying the Senate, the Court will without
hesitation affirm that the officer has to choose the President. After all, the Constitution prescribes
that it is the President, and not the Senate, who is the commander-in-chief of the armed forces.52
At the same time, the refusal of the President to allow members of the military to appear before
Congress is still subject to judicial relief. The Constitution itself recognizes as one of the legislature’s
functions is the conduct of inquiries in aid of legislation.53 Inasmuch as it is ill-advised for Congress to
interfere with the President’s power as commander-in-chief, it is similarly detrimental for the
President to unduly interfere with Congress’s right to conduct legislative inquiries. The impasse did
not come to pass in this petition, since petitioners testified anyway despite the presidential
prohibition. Yet the Court is aware that with its pronouncement today that the President has the right
to require prior consent from members of the armed forces, the clash may soon loom or actualize.
We believe and hold that our constitutional and legal order sanctions a modality by which members
of the military may be compelled to attend legislative inquiries even if the President desires
otherwise, a modality which does not offend the Chief Executive’s prerogatives as commander-in-
chief. The remedy lies with the courts.
The fact that the executive branch is an equal, coordinate branch of government to the legislative
creates a wrinkle to any basic rule that persons summoned to testify before Congress must do so.
There is considerable interplay between the legislative and executive branches, informed by due
deference and respect as to their various constitutional functions. Reciprocal courtesy idealizes this
relationship; hence, it is only as a last resort that one branch seeks to compel the other to a
particular mode of behavior. The judiciary, the third coordinate branch of government, does not enjoy
a similar dynamic with either the legislative or executive branches. Whatever weakness inheres on
judicial power due to its inability to originate national policies and legislation, such is balanced by the
fact that it is the branch empowered by the Constitution to compel obeisance to its rulings by the
other branches of government.
As evidenced by Arnault v. Nazareno54 and Bengzon v. Senate Blue Ribbon Committee,55 among
others, the Court has not shirked from reviewing the exercise by Congress of its power of legislative
inquiry.56 Arnault recognized that the legislative power of inquiry and the process to enforce it, "is an
essential and appropriate auxiliary to the legislative function."57 On the other
hand, Bengzon acknowledged that the power of both houses of Congress to conduct inquiries in aid
of legislation is not "absolute or unlimited", and its exercise is circumscribed by Section 21, Article VI
of the Constitution.58 From these premises, the Court enjoined the Senate Blue Ribbon Committee
from requiring the petitioners in Bengzon from testifying and producing evidence before the
committee, holding that the inquiry in question did not involve any intended legislation.
Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the constitutional scope and
limitations on the constitutional power of congressional inquiry. Thus:
As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the
necessity of information in the legislative process. If the information possessed by executive officials
on the operation of their offices is necessary for wise legislation on that subject, by parity of
reasoning, Congress has the right to that information and the power to compel the disclosure
thereof.
As evidenced by the American experience during the so-called "McCarthy era", however, the right of
Congress to conduct inquirites in aid of legislation is, in theory, no less susceptible to abuse than
executive or judicial power. It may thus be subjected to judicial review pursuant to the Court’s
certiorari powers under Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee, the inquiry itself might not properly
be in aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry could not
usurp judicial functions. Parenthetically, one possible way for Congress to avoid such result as
occurred in Bengzon is to indicate in its invitations to the public officials concerned, or to any person
for that matter, the possible needed statute which prompted the need for the inquiry. Given such
statement in its invitations, along with the usual indication of the subject of inquiry and the questions
relative to and in furtherance thereof, there would be less room for speculation on the part of the
person invited on whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes critical safeguards that proscribe the legislative power of
inquiry. The provision requires that the inquiry be done in accordance with the Senate or House’s
duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry
conducted without duly published rules of procedure. Section 21 also mandates that the rights of
persons appearing in or affected by such inquiries be respected, an imposition that obligates
Congress to adhere to the guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons
affected, even if they belong to the executive branch. Nonetheless, there may be exceptional
circumstances… wherein a clear pattern of abuse of the legislative power of inquiry might be
established, resulting in palpable violations of the rights guaranteed to members of the executive
department under the Bill of Rights. In such instances, depending on the particulars of each case,
attempts by the Executive Branch to forestall these abuses may be accorded judicial sanction59 .
In Senate, the Court ruled that the President could not impose a blanket prohibition barring executive
officials from testifying before Congress without the President’s consent notwithstanding the
invocation of executive privilege to justify such prohibition. The Court did not rule that the power to
conduct legislative inquiry ipso facto superseded the claim of executive privilege, acknowledging
instead that the viability of executive privilege stood on a case to case basis. Should neither branch
yield to the other branch’s assertion, the constitutional recourse is to the courts, as the final arbiter if
the dispute. It is only the courts that can compel, with conclusiveness, attendance or non-attendance
in legislative inquiries.
Following these principles, it is clear that if the President or the Chief of Staff refuses to allow a
member of the AFP to appear before Congress, the legislative body seeking such testimony may
seek judicial relief to compel the attendance. Such judicial action should be directed at the heads of
the executive branch or the armed forces, the persons who wield authority and control over the
actions of the officers concerned. The legislative purpose of such testimony, as well as any defenses
against the same — whether grounded on executive privilege, national security or similar concerns
— would be accorded due judicial evaluation. All the constitutional considerations pertinent to either
branch of government may be raised, assessed, and ultimately weighed against each other. And
once the courts speak with finality, both branches of government have no option but to comply with
the decision of the courts, whether the effect of the decision is to their liking or disfavor.
Courts are empowered, under the constitutional principle of judicial review, to arbitrate disputes
between the legislative and executive branches of government on the proper constitutional
parameters of power.60 This is the fair and workable solution implicit in the constitutional allocation of
powers among the three branches of government. The judicial filter helps assure that the
particularities of each case would ultimately govern, rather than any overarching principle unduly
inclined towards one branch of government at the expense of the other. The procedure may not
move as expeditiously as some may desire, yet it ensures thorough deliberation of all relevant and
cognizable issues before one branch is compelled to yield to the other. Moreover, judicial review
does not preclude the legislative and executive branches from negotiating a mutually acceptable
solution to the impasse. After all, the two branches, exercising as they do functions and
responsibilities that are political in nature, are free to smooth over the thorns in their relationship with
a salve of their own choosing.
And if emphasis be needed, if the courts so rule, the duty falls on the shoulders of the
President, as commander-in-chief, to authorize the appearance of the military officers before
Congress. Even if the President has earlier disagreed with the notion of officers appearing
before the legislature to testify, the Chief Executive is nonetheless obliged to comply with the
final orders of the courts.
Petitioners have presented several issues relating to the tenability or wisdom of the President’s order
on them and other military officers not to testify before Congress without the President’s consent.
Yet these issues ultimately detract from the main point — that they testified before the Senate
despite an order from their commanding officer and their commander-in-chief for them not to do
so,61 in contravention of the traditions of military discipline which we affirm today. The issues raised
1âw phi 1
by petitioners could have very well been raised and properly adjudicated if the proper procedure was
observed. Petitioners could have been appropriately allowed to testify before the Senate without
having to countermand their Commander-in-chief and superior officer under the setup we have
prescribed.
We consider the other issues raised by petitioners unnecessary to the resolution of this petition.
Petitioners may have been of the honest belief that they were defying a direct order of their
Commander-in-Chief and Commanding General in obeisance to a paramount idea formed within
their consciences, which could not be lightly ignored. Still, the Court, in turn, is guided by the
superlative principle that is the Constitution, the embodiment of the national conscience. The
Constitution simply does not permit the infraction which petitioners have allegedly committed, and
moreover, provides for an orderly manner by which the same result could have been achieved
without offending constitutional principles.
WHEREFORE, the petition is DENIED. No pronouncement as to costs.
SO ORDERED.
54
G.R. No. 171396 May 3, 2006
PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS, H. HARRY L. ROQUE,
JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO
BAGARES, CHRISTOPHER F.C. BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE
SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL
DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES, DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL
POLICE, Respondents.
x-------------------------------------x
G.R. No. 171409 May 3, 2006
NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., Petitioners,

vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR GENERAL
ARTURO C. LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171485 May 3, 2006
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A. CASINO, AGAPITO

A. AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN EDGARDO
ANGARA, TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA,
IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB. CHIPECO, ROILO GOLEZ,
DARLENE ANTONINO-CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G. VIRADOR,
RAFAEL V. MARIANO, GILBERT C. REMULLA, FLORENCIO G. NOEL, ANA THERESIA
HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN, NERI JAVIER
COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES
REPRESENTED BY AMADO GAT INCIONG, Petitioners,
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR., SECRETARY, DND
RONALDO V. PUNO, SECRETARY, DILG, GENEROSO SENGA, AFP CHIEF OF STAFF,
ARTURO LOMIBAO, CHIEF PNP, Respondents.
x-------------------------------------x
G.R. No. 171483 May 3, 2006
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER C. LABOG AND

SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS –
KILUSANG MAYO UNO (NAFLU-KMU), REPRESENTED BY ITS NATIONAL PRESIDENT,
JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, EMILIA P.
DAPULANG, MARTIN CUSTODIO, JR., AND ROQUE M. TAN, Petitioners,
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE HONORABLE
EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF OF STAFF, ARMED FORCES OF
THE PHILIPPINES, GENEROSO SENGA, AND THE PNP DIRECTOR GENERAL, ARTURO
LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171400 May 3, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA, AND
DIRECTOR GENERAL ARTURO LOMIBAO, Respondents.
G.R. No. 171489 May 3, 2006
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR M.

AMORADO, ALICIA A. RISOS-VIDAL, FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B.
JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND INTEGRATED BAR
OF THE PHILIPPINES (IBP), Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GENEROSO SENGA, IN HIS
CAPACITY AS AFP CHIEF OF STAFF, AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS
CAPACITY AS PNP CHIEF, Respondents.
x-------------------------------------x
G.R. No. 171424 May 3, 2006
LOREN B. LEGARDA, Petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND COMMANDER-IN-
CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS DIRECTOR-GENERAL OF THE PHILIPPINE
NATIONAL POLICE (PNP); GENEROSO SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF
THE ARMED FORCES OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS
CAPACITY AS EXECUTIVE SECRETARY, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than rigid formula are
necessary.1 Superior strength – the use of force – cannot make wrongs into rights. In this regard, the
courts should be vigilant in safeguarding the constitutional rights of the citizens, specifically their
liberty.
Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most relevant. He said: "In cases
involving liberty, the scales of justice should weigh heavily against government and in favor
of the poor, the oppressed, the marginalized, the dispossessed and the weak." Laws and
actions that restrict fundamental rights come to the courts "with a heavy presumption against their
constitutional validity."2
These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential
Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President Gloria
Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend that respondent officials
of the Government, in their professed efforts to defend and preserve democratic institutions, are
actually trampling upon the very freedom guaranteed and protected by the Constitution. Hence, such
issuances are void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern problem. How does the
Constitution of a free people combine the degree of liberty, without which, law becomes tyranny,
with the degree of law, without which, liberty becomes license?3
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I,
President Arroyo issued PP 1017 declaring a state of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and
Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me
by Section 18, Article 7 of the Philippine Constitution which states that: "The President. . . whenever
it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . .rebellion. . .,"
and in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines, prevent or suppress all
forms of lawless violence as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and to all decrees, orders and regulations promulgated by me
personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution
do hereby declare a State of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists – the historical enemies of the democratic Philippine
State – who are now in a tactical alliance and engaged in a concerted and systematic conspiracy,
over a broad front, to bring down the duly constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the President;
WHEREAS, the claims of these elements have been recklessly magnified by certain segments
of the national media;
WHEREAS, this series of actions is hurting the Philippine State – by obstructing governance
including hindering the growth of the economy and sabotaging the people’s confidence in
government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right
the opening to intensify their avowed aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and collateral effects
constitute a clear and present danger to the safety and the integrity of the Philippine State and of
the Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists - the historical enemies of the democratic Philippine State – and
who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a
broad front, to bring down the duly-constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our republican government;
WHEREAS, the claims of these elements have been recklessly magnified by certain segments of
the national media;
WHEREAS, these series of actions is hurting the Philippine State by obstructing governance,
including hindering the growth of the economy and sabotaging the people’s confidence in the
government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the
opening to intensify their avowed aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and collateral effects
constitute a clear and present danger to the safety and the integrity of the Philippine State and of the
Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of
National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me

under the Constitution as President of the Republic of the Philippines, and Commander-in-Chief of
the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do
hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine National Police
(PNP), to prevent and suppress acts of terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and
men of the AFP and PNP, to immediately carry out the necessary and appropriate actions and
measures to suppress and prevent acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of national emergency and after
all these petitions had been filed, the President lifted PP 1017. She issued Proclamation No. 1021
which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution,
Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of national
emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued
on the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), were directed to maintain law and order throughout the Philippines, prevent
and suppress all form of lawless violence as well as any act of rebellion and to undertake such
action as may be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless
violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the

Philippines, by virtue of the powers vested in me by law, hereby declare that the state of national
emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the
proximate cause behind the executive issuances was the conspiracy among some military officers,
leftist insurgents of the New People’s Army (NPA), and some members of the political opposition in a
plot to unseat or assassinate President Arroyo.4 They considered the aim to oust or assassinate the
President and take-over the reigns of government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to
the issuance of PP 1017 and G.O. No. 5. Significantly, there was no refutation from petitioners’
counsels.
The Solicitor General argued that the intent of the Constitution is to give full discretionary
powers to the President in determining the necessity of calling out the armed forces. He
emphasized that none of the petitioners has shown that PP 1017 was without factual bases. While
he explained that it is not respondents’ task to state the facts behind the questioned Proclamation,
however, they are presenting the same, narrated hereunder, for the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento,
Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in the
Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a public statement,
they vowed to remain defiant and to elude arrest at all costs. They called upon the people to "show
and proclaim our displeasure at the sham regime. Let us demonstrate our disgust, not only by going
to the streets in protest, but also by wearing red bands on our left arms." 5
On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I " which
detailed plans for bombings and attacks during the Philippine Military Academy Alumni Homecoming
in Baguio City. The plot was to assassinate selected targets including some cabinet members and
President Arroyo herself.6 Upon the advice of her security, President Arroyo decided not to attend
the Alumni Homecoming. The next day, at the height of the celebration, a bomb was found and
detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas
province. Found in his possession were two (2) flash disks containing minutes of the meetings
between members of the Magdalo Group and the National People’s Army (NPA), a tape recorder,
audio cassette cartridges, diskettes, and copies of subversive documents.7 Prior to his arrest, Lt. San
Juan announced through DZRH that the "Magdalo’s D-Day would be on February 24, 2006, the 20th
Anniversary of Edsa I."
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNP-
Special Action Force were planning to defect. Thus, he immediately ordered SAF Commanding
General Marcelino Franco, Jr. to "disavow" any defection. The latter promptly obeyed and issued a
public statement: "All SAF units are under the effective control of responsible and trustworthy officers
with proven integrity and unquestionable loyalty."
On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquino’s
brother, businessmen and mid-level government officials plotted moves to bring down the Arroyo
administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo
critic, called a U.S. government official about his group’s plans if President Arroyo is ousted. Saycon
also phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of
the Army’s elite Scout Ranger. Lim said "it was all systems go for the planned movement against
Arroyo."8
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga,
Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge number of soldiers would
join the rallies to provide a critical mass and armed component to the Anti-Arroyo protests to be held
on February 24, 2005. According to these two (2) officers, there was no way they could possibly stop
the soldiers because they too, were breaking the chain of command to join the forces foist to unseat
the President. However, Gen. Senga has remained faithful to his Commander-in-Chief and to the
chain of command. He immediately took custody of B/Gen. Lim and directed Col. Querubin to return
to the Philippine Marines Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military
and the police establishments in order to forge alliances with its members and key officials. NPA
spokesman Gregorio "Ka Roger" Rosal declared: "The Communist Party and revolutionary
movement and the entire people look forward to the possibility in the coming year of accomplishing
its immediate task of bringing down the Arroyo regime; of rendering it to weaken and unable to rule
that it will not take much longer to end it."9
On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North
Central Mindanao, publicly announced: "Anti-Arroyo groups within the military and police are growing
rapidly, hastened by the economic difficulties suffered by the families of AFP officers and enlisted
personnel who undertake counter-insurgency operations in the field." He claimed that with the forces
of the national democratic movement, the anti-Arroyo conservative political parties, coalitions, plus
the groups that have been reinforcing since June 2005, it is probable that the President’s ouster is
nearing its concluding stage in the first half of 2006.
Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan
and Bataan was also considered as additional factual basis for the issuance of PP 1017 and G.O.
No. 5. So is the raid of an army outpost in Benguet resulting in the death of three (3) soldiers. And
also the directive of the Communist Party of the Philippines ordering its front organizations to join
5,000 Metro Manila radicals and 25,000 more from the provinces in mass protests.10
By midnight of February 23, 2006, the President convened her security advisers and several cabinet
members to assess the gravity of the fermenting peace and order situation. She directed both the
AFP and the PNP to account for all their men and ensure that the chain of command remains solid
and undivided. To protect the young students from any possible trouble that might break loose on
the streets, the President suspended classes in all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the issuance of PP 1017 and
G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all programs and activities
related to the 20th anniversary celebration of Edsa People Power I; and revoked the permits to hold
rallies issued earlier by the local governments. Justice Secretary Raul Gonzales stated that political
rallies, which to the President’s mind were organized for purposes of destabilization, are
cancelled.Presidential Chief of Staff Michael Defensor announced that "warrantless arrests and take-
over of facilities, including media, can already be implemented."11
Undeterred by the announcements that rallies and public assemblies would not be allowed, groups
of protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-
Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the intention of
converging at the EDSA shrine. Those who were already near the EDSA site were violently
dispersed by huge clusters of anti-riot police. The well-trained policemen used truncheons, big fiber
glass shields, water cannons, and tear gas to stop and break up the marching groups, and scatter
the massed participants. The same police action was used against the protesters marching forward
to Cubao, Quezon City and to the corner of Santolan Street and EDSA. That same evening,
hundreds of riot policemen broke up an EDSA celebration rally held along Ayala Avenue and Paseo
de Roxas Street in Makati City.12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal
of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf
S. David, a professor at the University of the Philippines and newspaper columnist. Also arrested
was his companion, Ronald Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation
and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily
Tribune offices in Manila. The raiding team confiscated news stories by reporters, documents,
pictures, and mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon City were
stationed inside the editorial and business offices of the newspaper; while policemen from the Manila
Police District were stationed outside the building.13
A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the
premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a ‘strong
presence,’ to tell media outlets not to connive or do anything that would help the rebels in bringing
down this government." The PNP warned that it would take over any media organization that would
not follow "standards set by the government during the state of national emergency." Director
General Lomibao stated that "if they do not follow the standards – and the standards are - if they
would contribute to instability in the government, or if they do not subscribe to what is in General
Order No. 5 and Proc. No. 1017 – we will recommend a ‘takeover.’" National Telecommunications’
Commissioner Ronald Solis urged television and radio networks to "cooperate" with the government
for the duration of the state of national emergency. He asked for "balanced reporting" from
broadcasters when covering the events surrounding the coup attempt foiled by the government. He
warned that his agency will not hesitate to recommend the closure of any broadcast outfit that
violates rules set out for media coverage when the national security is threatened.14
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing
the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in
Bulacan. The police showed a warrant for his arrest dated 1985. Beltran’s lawyer explained that the
warrant, which stemmed from a case of inciting to rebellion filed during the Marcos regime, had long
been quashed. Beltran, however, is not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could
not be admitted because of PP 1017 and G.O. No. 5. Two members were arrested and detained,
while the rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a
public forum at the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art, were
taken into custody.
Retired Major General Ramon Montaño, former head of the Philippine Constabulary, was arrested
while with his wife and golfmates at the Orchard Golf and Country Club in Dasmariñas, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael
Mariano, Bayan Muna Representative Teodoro Casiño and Gabriela Representative Liza
Maza. Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office in Davao
City. Later, he was turned over to the custody of the House of Representatives where the "Batasan
5" decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran,
Satur Ocampo, et al., are not being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency
has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5
were filed with this Court against the above-named respondents. Three (3) of these petitions
impleaded President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it
encroaches on the emergency powers of Congress; (2) itis a subterfuge to avoid the constitutional
requirements for the imposition of martial law; and (3) it violates the constitutional guarantees of
freedom of the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc. challenged
the CIDG’s act of raiding the Daily Tribune offices as a clear case of "censorship" or "prior restraint."
They also claimed that the term "emergency" refers only to tsunami, typhoon, hurricane and similar
occurrences, hence, there is "absolutely no emergency" that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty
one (21) other members of the House of Representatives, including Representatives Satur Ocampo,
Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel Virador. They asserted that PP 1017 and
G.O. No. 5 constitute "usurpation of legislative powers"; "violation of freedom of expression" and "a
declaration of martial law." They alleged that President Arroyo "gravely abused her discretion in
calling out the armed forces without clear and verifiable factual basis of the possibility of lawless
violence and a showing that there is necessity to do so."
In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and
G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the power to enact
laws and decrees; (2) their issuance was without factual basis; and (3) they violate freedom of
expression and the right of the people to peaceably assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O.
No. 5 are unconstitutional because they violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and
418 of Article III, (c)Section 2319 of Article VI, and (d) Section 1720 of Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an "arbitrary
and unlawful exercise by the President of her Martial Law powers." And assuming that PP 1017 is
not really a declaration of Martial Law, petitioners argued that "it amounts to an exercise by the
President of emergency powers without congressional approval." In addition, petitioners asserted
that PP 1017 "goes beyond the nature and function of a proclamation as defined under the Revised
Administrative Code."
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP 1017 and G.O. No. 5
are "unconstitutional for being violative of the freedom of expression, including its cognate rights
such as freedom of the press and the right to access to information on matters of public concern, all
guaranteed under Article III, Section 4 of the 1987 Constitution." In this regard, she stated that these
issuances prevented her from fully prosecuting her election protest pending before the Presidential
Electoral Tribunal.
In respondents’ Consolidated Comment, the Solicitor General countered that: first, the petitions
should be dismissed for being moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424
(Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no legal
standing; third, it is not necessary for petitioners to implead President Arroyo as
respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not violate
the people’s right to free expression and redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties on the above
interlocking issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.

171400 (ALGI), 171483 (KMU et al.), 171489(Cadiz et al.), and 171424 (Legarda) have legal
standing.
B. SUBSTANTIVE:
1) Whetherthe Supreme Court can review the factual bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle

One of the greatest contributions of the American system to this country is the concept of judicial
review enunciated in Marbury v. Madison.21 This concept rests on the extraordinary simple
foundation --
The Constitution is the supreme law. It was ordained by the people, the ultimate source of all political
authority. It confers limited powers on the national government. x x x If the government
consciously or unconsciously oversteps these limitations there must be some authority
competent to hold it in control, to thwart its unconstitutional attempt, and thus to vindicate
and preserve inviolate the will of the people as expressed in the Constitution. This power the
courts exercise. This is the beginning and the end of the theory of judicial review.22
But the power of judicial review does not repose upon the courts a "self-starting capacity."23 Courts
may exercise such power only when the following requisites are present: first, there must be an
actual case or controversy; second, petitioners have to raise a question of constitutionality; third, the
constitutional question must be raised at the earliest opportunity; and fourth, the decision of the
constitutional question must be necessary to the determination of the case itself.24
Respondents maintain that the first and second requisites are absent, hence, we shall limit our
discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible
of judicial resolution. It is "definite and concrete, touching the legal relations of parties having
adverse legal interest;" a real and substantial controversy admitting of specific relief.25 The Solicitor
General refutes the existence of such actual case or controversy, contending that the present
petitions were rendered "moot and academic" by President Arroyo’s issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events,26so that a declaration thereon would be of no practical use or value.27 Generally,
courts decline jurisdiction over such case28 or dismiss it on ground of mootness.29
The Court holds that President Arroyo’s issuance of PP 1021 did not render the present petitions
moot and academic. During the eight (8) days that PP 1017 was operative, the police officers,
according to petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5
constitutional or valid? Do they justify these alleged illegal acts? These are the vital issues that
must be resolved in the present petitions. It must be stressed that "an unconstitutional act is not a
law, it confers no rights, it imposes no duties, it affords no protection; it is in legal
contemplation, inoperative."30
The "moot and academic" principle is not a magical formula that can automatically dissuade the
courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a
grave violation of the Constitution;31second, the exceptional character of the situation and the
paramount public interest is involved;32 third, when constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public;33and fourth, the case is capable of
repetition yet evading review.34
All the foregoing exceptions are present here and justify this Court’s assumption of jurisdiction over
the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the
Constitution. There is no question that the issues being raised affect the public’s interest, involving
as they do the people’s basic rights to freedom of expression, of assembly and of the press.
Moreover, the Court has the duty to formulate guiding and controlling constitutional precepts,
doctrines or rules. It has the symbolic function of educating the bench and the bar, and in the
present petitions, the military and the police, on the extent of the protection given by constitutional
guarantees.35 And lastly, respondents’ contested actions are capable of repetition. Certainly, the
petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice Artemio
V. Panganiban’s Separate Opinion in Sanlakas v. Executive Secretary.36 However, they failed to take
into account the Chief Justice’s very statement that an otherwise "moot" case may still be decided
"provided the party raising it in a proper case has been and/or continues to be prejudiced or
damaged as a direct result of its issuance." The present case falls right within this exception to the
mootness rule pointed out by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the Court deems it imperative to
have a more than passing discussion on legal standing or locus standi.
Locus standi is defined as "a right of appearance in a court of justice on a given question."37 In
private suits, standing is governed by the "real-parties-in interest" rule as contained in Section 2,
Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that "every action must be
prosecuted or defended in the name of the real party in interest." Accordingly, the "real-party-in
interest" is "the party who stands to be benefited or injured by the judgment in the suit or the
party entitled to the avails of the suit."38 Succinctly put, the plaintiff’s standing is based on his own
right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a
"public right" in assailing an allegedly illegal official action, does so as a representative of the general
public. He may be a person who is affected no differently from any other person. He could be suing
as a "stranger," or in the category of a "citizen," or ‘taxpayer." In either case, he has to adequately
show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient
interest in the vindication of the public order and the securing of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions.
The distinction was first laid down in Beauchamp v. Silk,39 where it was held that the plaintiff in a
taxpayer’s suit is in a different category from the plaintiff in a citizen’s suit. In the former, the
plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere
instrument of the public concern. As held by the New York Supreme Court in People ex rel Case
v. Collins:40 "In matter of mere public right, however…the people are the real parties…It is at
least the right, if not the duty, of every citizen to interfere and see that a public offence be
properly pursued and punished, and that a public grievance be remedied." With respect to
taxpayer’s suits, Terr v. Jordan41 held that "the right of a citizen and a taxpayer to maintain an
action in courts to restrain the unlawful use of public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial interference in any official policy or
act with which he disagreed with, and thus hinders the activities of governmental agencies engaged
in public service, the United State Supreme Court laid down the more stringent "direct
injury" test in Ex Parte Levitt,42 later reaffirmed in Tileston v. Ullman.43 The same Court ruled that for
a private individual to invoke the judicial power to determine the validity of an executive or legislative
action, he must show that he has sustained a direct injury as a result of that action, and it is
not sufficient that he has a general interest common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,44 it held that the
person who impugns the validity of a statute must have "a personal and substantial interest in the
case such that he has sustained, or will sustain direct injury as a result." The Vera doctrine
was upheld in a litany of cases, such as, Custodio v. President of the Senate,45 Manila Race Horse
Trainers’ Association v. De la Fuente,46 Pascual v. Secretary of Public Works47 and Anti-Chinese
League of the Philippines v. Felix.48
However, being a mere procedural technicality, the requirement of locus standi may be waived by
the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers
Cases, Araneta v. Dinglasan,49 where the "transcendental importance" of the cases prompted the
Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec,50 this
Court resolved to pass upon the issues raised due to the "far-reaching implications" of the petition
notwithstanding its categorical statement that petitioner therein had no personality to file the suit.
Indeed, there is a chain of cases where this liberal policy has been observed, allowing ordinary
citizens, members of Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings.51
Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury,
they have been allowed to sue under the principle of "transcendental importance." Pertinent are
the following cases:
(1) Chavez v. Public Estates Authority,52 where the Court ruled that the enforcement of the
constitutional right to information and the equitable diffusion of natural resources are
matters of transcendental importance which clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the Court held that "given the
transcendental importance of the issues involved, the Court may relax the standing
requirements and allow the suit to prosper despite the lack of direct injury to the
parties seeking judicial review" of the Visiting Forces Agreement;
(3) Lim v. Executive Secretary,54 while the Court noted that the petitioners may not file suit in
their capacity as taxpayers absent a showing that "Balikatan 02-01" involves the exercise of
Congress’ taxing or spending powers, it reiterated its ruling in Bagong Alyansang
Makabayan v. Zamora,55that in cases of transcendental importance, the cases must be
settled promptly and definitely and standing requirements may be relaxed.
By way of summary, the following rules may be culled from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided
that the following requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax
measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of the election law
in question;
(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained of infringes upon
their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Court’s attitude toward legal
standing.
In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a people’s
organization does not give it the requisite personality to question the validity of the on-line lottery
contract, more so where it does not raise any issue of constitutionality. Moreover, it cannot sue as a
taxpayer absent any allegation that public funds are being misused. Nor can it sue as a concerned
citizen as it does not allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,57 the Court
reiterated the "direct injury" test with respect to concerned citizens’ cases involving constitutional
issues. It held that "there must be a showing that the citizen personally suffered some actual or
threatened injury arising from the alleged illegal official act."
In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng Demokratikong
Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any injury to itself or to its
leaders, members or supporters.
In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners who are members of
Congress have standing to sue, as they claim that the President’s declaration of a state of
rebellion is a usurpation of the emergency powers of Congress, thus impairing their
legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society,
the Court declared them to be devoid of standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt.
The same holds true with petitioners in G.R. No. 171409, Cacho-Olivares and Tribune Publishing
Co. Inc. They alleged "direct injury" resulting from "illegal arrest" and "unlawful search" committed by
police operatives pursuant to PP 1017. Rightly so, the Solicitor General does not question their legal
standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative
powers. They also raised the issue of whether or not the concurrence of Congress is necessary
whenever the alarming powers incident to Martial Law are used. Moreover, it is in the interest of
justice that those affected by PP 1017 can be represented by their Congressmen in bringing to the
attention of the Court the alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,60 Kapatiran
Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,61 Association of Small Landowners in
the Philippines, Inc. v. Secretary of Agrarian Reform,62 Basco v. Philippine Amusement and Gaming
Corporation,63 and Tañada v. Tuvera,64 that when the issue concerns a public right, it is sufficient that
the petitioner is a citizen and has an interest in the execution of the laws.
In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5 violated its right to peaceful
assembly may be deemed sufficient to give it legal standing. Organizations may be granted
standing to assert the rights of their members.65 We take judicial notice of the announcement by
the Office of the President banning all rallies and canceling all permits for public assemblies
following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of the
Philippines (IBP) have no legal standing, having failed to allege any direct or potential injury which
the IBP as an institution or its members may suffer as a consequence of the issuance of PP No.
1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,66 the Court held that the mere
invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly
true, is not sufficient to clothe it with standing in this case. This is too general an interest which is
shared by other groups and the whole citizenry. However, in view of the transcendental importance
of the issue, this Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as
there are no allegations of illegal disbursement of public funds. The fact that she is a former Senator
is of no consequence. She can no longer sue as a legislator on the allegation that her prerogatives
as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media
personality will not likewise aid her because there was no showing that the enforcement of these
issuances prevented her from pursuing her occupation. Her submission that she has pending
electoral protest before the Presidential Electoral Tribunal is likewise of no relevance. She has not
sufficiently shown that PP 1017 will affect the proceedings or result of her case. But considering
once more the transcendental importance of the issue involved, this Court may relax the standing
rules.
It must always be borne in mind that the question of locus standi is but corollary to the bigger
question of proper exercise of judicial power. This is the underlying legal tenet of the "liberality
doctrine" on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a
judicial question which is of paramount importance to the Filipino people. To paraphrase Justice
Laurel, the whole of Philippine society now waits with bated breath the ruling of this Court on this
very critical matter. The petitions thus call for the application of the "transcendental importance"
doctrine, a relaxation of the standing requirements for the petitioners in the "PP 1017 cases." 1avv phil.net
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that
the President, during his tenure of office or actual incumbency,67 may not be sued in any civil or
criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the
dignity of the high office of the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that he be freed from any form of
harassment, hindrance or distraction to enable him to fully attend to the performance of his official
duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive
branch and anything which impairs his usefulness in the discharge of the many great and important
duties imposed upon him by the Constitution necessarily impairs the operation of the Government.
However, this does not mean that the President is not accountable to anyone. Like any other official,
he remains accountable to the people68 but he may be removed from office only in the mode
provided by law and that is by impeachment.69
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for President
Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the President’s exercise of his
Commander-in-Chief power has reached its distilled point - from the indulgent days of Barcelon v.
Baker70 and Montenegro v. Castaneda71 to the volatile era of Lansang v. Garcia,72 Aquino, Jr. v.
Enrile,73 and Garcia-Padilla v. Enrile.74 The tug-of-war always cuts across the line defining "political
questions," particularly those questions "in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government."75 Barcelon and
Montenegro were in unison in declaring that the authority to decide whether an exigency has
arisen belongs to the President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members of the Court were unanimous in the
conviction that the Court has the authority to inquire into the existence of factual bases in order to
determine their constitutional sufficiency. From the principle of separation of powers, it shifted
the focus to the system of checks and balances, "under which the President is supreme, x x x
only if and when he acts within the sphere allotted to him by the Basic Law, and the authority
to determine whether or not he has so acted is vested in the Judicial Department, which in
this respect, is, in turn, constitutionally supreme."76 In 1973, the unanimous Court
of Lansang was divided in Aquino v. Enrile.77 There, the Court was almost evenly divided on the
issue of whether the validity of the imposition of Martial Law is a political or justiciable
question.78 Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that there
is a need to re-examine the latter case, ratiocinating that "in times of war or national emergency,
the President must be given absolute control for the very life of the nation and the
government is in great peril. The President, it intoned, is answerable only to his conscience,
the People, and God."79
The Integrated Bar of the Philippines v. Zamora80 -- a recent case most pertinent to these cases at
bar -- echoed a principle similar to Lansang. While the Court considered the President’s "calling-out"
power as a discretionary power solely vested in his wisdom, it stressed that "this does not prevent
an examination of whether such power was exercised within permissible constitutional limits
or whether it was exercised in a manner constituting grave abuse of discretion."This ruling is
mainly a result of the Court’s reliance on Section 1, Article VIII of 1987 Constitution which fortifies
the authority of the courts to determine in an appropriate action the validity of the acts of the political
departments. Under the new definition of judicial power, the courts are authorized not only "to settle
actual controversies involving rights which are legally demandable and enforceable," but also "to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the government." The
latter part of the authority represents a broadening of judicial power to enable the courts of justice to
review what was before a forbidden territory, to wit, the discretion of the political departments of the
government.81 It speaks of judicial prerogative not only in terms of power but also of duty.82
As to how the Court may inquire into the President’s exercise of power, Lansang adopted the test
that "judicial inquiry can go no further than to satisfy the Court not that the President’s decision
is correct," but that "the President did not act arbitrarily." Thus, the standard laid down is not
correctness, but arbitrariness.83 In Integrated Bar of the Philippines, this Court further ruled that "it is
incumbent upon the petitioner to show that the President’s decision is totally bereft of factual
basis" and that if he fails, by way of proof, to support his assertion, then "this Court cannot
undertake an independent investigation beyond the pleadings."
Petitioners failed to show that President Arroyo’s exercise of the calling-out power, by issuing PP
1017, is totally bereft of factual basis. A reading of the Solicitor General’s Consolidated Comment
and Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with
supporting reports forming part of the records. Mentioned are the escape of the Magdalo Group,
their audacious threat of the Magdalo D-Day, the defections in the military, particularly in the
Philippine Marines, and the reproving statements from the communist leaders. There was also the
Minutes of the Intelligence Report and Security Group of the Philippine Army showing the growing
alliance between the NPA and the military. Petitioners presented nothing to refute such events.
Thus, absent any contrary allegations, the Court is convinced that the President was justified in
issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold
her arms and do nothing to prevent or suppress what she believed was lawless violence, invasion or
rebellion. However, the exercise of such power or duty must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency
This case brings to fore a contentious subject -- the power of the President in times of emergency. A
glimpse at the various political theories relating to this subject provides an adequate backdrop for
our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the English doctrine of
prerogative to cope with the problem of emergency. In times of danger to the nation, positive law
enacted by the legislature might be inadequate or even a fatal obstacle to the promptness of action
necessary to avert catastrophe. In these situations, the Crown retained a prerogative "power to act
according to discretion for the public good, without the proscription of the law and
sometimes even against it."84 But Locke recognized that this moral restraint might not suffice to
avoid abuse of prerogative powers. Who shall judge the need for resorting to the prerogative
and how may its abuse be avoided? Here, Locke readily admitted defeat, suggesting that "the
people have no other remedy in this, as in all other cases where they have no judge on earth,
but to appeal to Heaven."85
Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes
of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to circumstances, may,
in certain cases, render them disastrous and make them bring about, at a time of crisis, the ruin of
the State…
It is wrong therefore to wish to make political institutions as strong as to render it impossible to

suspend their operation. Even Sparta allowed its law to lapse...
If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation,
the method is to nominate a supreme lawyer, who shall silence all the laws and suspend for a
moment the sovereign authority. In such a case, there is no doubt about the general will, and it clear
that the people’s first intention is that the State shall not perish.86
Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as he
termed it. For him, it would more likely be cheapened by "indiscreet use." He was unwilling to rely
upon an "appeal to heaven." Instead, he relied upon a tenure of office of prescribed duration to
avoid perpetuation of the dictatorship.87
John Stuart Mill concluded his ardent defense of representative government: "I am far from
condemning, in cases of extreme necessity, the assumption of absolute power in the form of
a temporary dictatorship."88
Nicollo Machiavelli’s view of emergency powers, as one element in the whole scheme of limited
government, furnished an ironic contrast to the Lockean theory of prerogative. He recognized and
attempted to bridge this chasm in democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to extra –constitutional

measures; for although they may for a time be beneficial, yet the precedent is pernicious, for if the
practice is once established for good objects, they will in a little while be disregarded under that
pretext but for evil purposes. Thus, no republic will ever be perfect if she has not by law provided for
everything, having a remedy for every emergency and fixed rules for applying it.89
Machiavelli – in contrast to Locke, Rosseau and Mill – sought to incorporate into the constitution a
regularized system of standby emergency powers to be invoked with suitable checks and controls in
time of national danger. He attempted forthrightly to meet the problem of combining a capacious
reserve of power and speed and vigor in its application in time of emergency, with effective
constitutional restraints.90
Contemporary political theorists, addressing themselves to the problem of response to emergency

by constitutional democracies, have employed the doctrine of constitutional dictatorship.91 Frederick
M. Watkins saw "no reason why absolutism should not be used as a means for the defense of
liberal institutions," provided it "serves to protect established institutions from the danger of
permanent injury in a period of temporary emergency and is followed by a prompt return to
the previous forms of political life."92 He recognized the two (2) key elements of the problem of
emergency governance, as well as all constitutional governance: increasing administrative
powers of the executive, while at the same time "imposing limitation upon that
power."93Watkins placed his real faith in a scheme of constitutional dictatorship. These are the
conditions of success of such a dictatorship: "The period of dictatorship must be relatively
short…Dictatorship should always be strictly legitimate in character…Final authority to
determine the need for dictatorship in any given case must never rest with the dictator
himself…"94 and the objective of such an emergency dictatorship should be "strict political
conservatism."
Carl J. Friedrich cast his analysis in terms similar to those of Watkins.95 "It is a problem of
concentrating power – in a government where power has consciously been divided – to cope with…
situations of unprecedented magnitude and gravity. There must be a broad grant of powers, subject
to equally strong limitations as to who shall exercise such powers, when, for how long, and to what
end."96 Friedrich, too, offered criteria for judging the adequacy of any of scheme of emergency
powers, to wit: "The emergency executive must be appointed by constitutional means – i.e., he
must be legitimate; he should not enjoy power to determine the existence of an emergency;
emergency powers should be exercised under a strict time limitation; and last, the objective
of emergency action must be the defense of the constitutional order."97
Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great
Britain, France, Weimar, Germany and the United States, reverted to a description of a scheme of
"constitutional dictatorship" as solution to the vexing problems presented by emergency.98 Like
Watkins and Friedrich, he stated a priori the conditions of success of the "constitutional dictatorship,"
thus:
1) No general regime or particular institution of constitutional dictatorship should be initiated

unless it is necessary or even indispensable to the preservation of the State and its
constitutional order…
2) …the decision to institute a constitutional dictatorship should never be in the hands of the
man or men who will constitute the dictator…
3) No government should initiate a constitutional dictatorship without making specific

provisions for its termination…
4) …all uses of emergency powers and all readjustments in the organization of the
government should be effected in pursuit of constitutional or legal requirements…
5) … no dictatorial institution should be adopted, no right invaded, no regular procedure

altered any more than is absolutely necessary for the conquest of the particular crisis . . .
6) The measures adopted in the prosecution of the a constitutional dictatorship should never
be permanent in character or effect…
7) The dictatorship should be carried on by persons representative of every part of the

citizenry interested in the defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for every action taken under a constitutional
dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the decision to institute one
should never be in the hands of the man or men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the termination of the crisis for which
it was instituted…
11) …the termination of the crisis must be followed by a complete return as possible to the
political and governmental conditions existing prior to the initiation of the constitutional
dictatorship…99
Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers
than did Watkins. He would secure to Congress final responsibility for declaring the existence or
termination of an emergency, and he places great faith in the effectiveness of congressional
investigating committees.100
Scott and Cotter, in analyzing the above contemporary theories in light of recent experience, were
one in saying that, "the suggestion that democracies surrender the control of government to
an authoritarian ruler in time of grave danger to the nation is not based upon sound
constitutional theory." To appraise emergency power in terms of constitutional dictatorship serves
merely to distort the problem and hinder realistic analysis. It matters not whether the term "dictator"
is used in its normal sense (as applied to authoritarian rulers) or is employed to embrace all chief
executives administering emergency powers. However used, "constitutional dictatorship" cannot be
divorced from the implication of suspension of the processes of constitutionalism. Thus, they favored
instead the "concept of constitutionalism" articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of problems of emergency

powers, and which is consistent with the findings of this study, is that formulated by Charles H.
McIlwain. While it does not by any means necessarily exclude some indeterminate limitations upon
the substantive powers of government, full emphasis is placed upon procedural limitations,
and political responsibility. McIlwain clearly recognized the need to repose adequate power in
government. And in discussing the meaning of constitutionalism, he insisted that the historical and
proper test of constitutionalism was the existence of adequate processes for keeping
government responsible. He refused to equate constitutionalism with the enfeebling of government
by an exaggerated emphasis upon separation of powers and substantive limitations on
governmental power. He found that the really effective checks on despotism have consisted not in
the weakening of government but, but rather in the limiting of it; between which there is a great and
very significant difference. In associating constitutionalism with "limited" as distinguished from
"weak" government, McIlwain meant government limited to the orderly procedure of law as
opposed to the processes of force. The two fundamental correlative elements of
constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary
power and a complete political responsibility of government to the governed.101
In the final analysis, the various approaches to emergency of the above political theorists –- from
Lock’s "theory of prerogative," to Watkins’ doctrine of "constitutional dictatorship" and, eventually, to
McIlwain’s "principle of constitutionalism" --- ultimately aim to solve one real problem in emergency
governance, i.e., that of allotting increasing areas of discretionary power to the Chief
Executive, while insuring that such powers will be exercised with a sense of political
responsibility and under effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive regime, the
1986 Constitutional Commission, in drafting the 1987 Constitution, endeavored to create a
government in the concept of Justice Jackson’s "balanced power structure."102 Executive, legislative,
and judicial powers are dispersed to the President, the Congress, and the Supreme Court,
respectively. Each is supreme within its own sphere. But none has the monopoly of power in
times of emergency. Each branch is given a role to serve as limitation or check upon the
other. This system does not weaken the President, it just limits his power, using the language of
McIlwain. In other words, in times of emergency, our Constitution reasonably demands that we
repose a certain amount of faith in the basic integrity and wisdom of the Chief Executive but, at the
same time, it obliges him to operate within carefully prescribed procedural limitations.
a. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They claim that its
enforcement encroached on both unprotected and protected rights under Section 4, Article III of the
Constitution and sent a "chilling effect" to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on their
faces" statutes in free speech cases, also known under the American Law as First Amendment
cases.103
A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related
conduct. It is actually a call upon the AFP to prevent or suppress all forms
of lawless violence. In United States v. Salerno,104the US Supreme Court held that "we have not
recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment"
(freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a law that "reflects
legitimate state interest in maintaining comprehensive control over harmful, constitutionally
unprotected conduct." Undoubtedly, lawless violence, insurrection and rebellion are considered
"harmful" and "constitutionally unprotected conduct." In Broadrick v. Oklahoma,105 it was held:
It remains a ‘matter of no little difficulty’ to determine when a law may properly be held void on its
face and when ‘such summary action’ is inappropriate. But the plain import of our cases is, at the
very least, that facial overbreadth adjudication is an exception to our traditional rules of
practice and that its function, a limited one at the outset, attenuates as the otherwise
unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ toward
conduct and that conduct –even if expressive – falls within the scope of otherwise valid
criminal laws that reflect legitimate state interests in maintaining comprehensive controls
over harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms,
seek to regulate only "spoken words" and again, that "overbreadth claims, if entertained at all,
have been curtailed when invoked against ordinary criminal laws that are sought to be
applied to protected conduct."106 Here, the incontrovertible fact remains that PP 1017 pertains to a
spectrum of conduct, not free speech, which is manifestly subject to state regulation.
Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used

"sparingly and only as a last resort," and is "generally disfavored;"107 The reason for this is
obvious. Embedded in the traditional rules governing constitutional adjudication is the principle that a
person to whom a law may be applied will not be heard to challenge a law on the ground that it may
conceivably be applied unconstitutionally to others, i.e., in other situations not before the
Court.108 A writer and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an exception to
some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that
a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve
away the unconstitutional aspects of the law by invalidating its improper applications on a
case to case basis. Moreover, challengers to a law are not permitted to raise the rights of
third parties and can only assert their own interests. In overbreadth analysis, those rules give
way; challenges are permitted to raise the rights of third parties; and the court invalidates the
entire statute "on its face," not merely "as applied for" so that the overbroad law becomes
unenforceable until a properly authorized court construes it more narrowly. The factor that motivates
courts to depart from the normal adjudicatory rules is the concern with the "chilling;" deterrent effect
of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes
that an overbroad law’s "very existence may cause others not before the court to refrain from
constitutionally protected speech or expression." An overbreadth ruling is designed to remove that
deterrent effect on the speech of those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the Court to examine
PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but
on the assumption or prediction that its very existence may cause others not before the Court to
refrain from constitutionally protected speech or expression. In Younger v. Harris,109 it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of
these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the
judiciary. The combination of the relative remoteness of the controversy, the impact on the
legislative process of the relief sought, and above all the speculative and amorphous nature of
the required line-by-line analysis of detailed statutes,...ordinarily results in a kind of case that
is wholly unsatisfactory for deciding constitutional questions, whichever way they might be
decided.
And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount
successfully, since the challenger must establish that there can be no instance when the assailed
law may be valid. Here, petitioners did not even attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is
unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a law is
facially invalid if men of common intelligence must necessarily guess at its meaning and
differ as to its application."110 It is subject to the same principles governing overbreadth doctrine.
For one, it is also an analytical tool for testing "on their faces" statutes in free speech cases. And
like overbreadth, it is said that a litigant may challenge a statute on its face only if it is vague in all
its possible applications. Again, petitioners did not even attempt to show that PP 1017 is
vague in all its application. They also failed to establish that men of common intelligence cannot
understand the meaning and application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important provisions, thus:
First provision:
"by virtue of the power vested upon me by Section 18, Artilce VII … do hereby command the Armed
Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress
all forms of lawless violence as well any act of insurrection or rebellion"
Second provision:
"and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by
me personally or upon my direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby declare a State of National
Emergency."
First Provision: Calling-out Power
The first provision pertains to the President’s calling-out power. In Sanlakas v. Executive
Secretary,111 this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of the
Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ
of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight
hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in writing to the Congress. The Congress,
voting jointly, by a vote of at least a majority of all its Members in regular or special session, may
revoke such proclamation or suspension, which revocation shall not be set aside by the President.
Upon the initiative of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of
the factual bases of the proclamation of martial law or the suspension of the privilege of the writ or
the extension thereof, and must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able to function, nor automatically
suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion
or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released.
grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From the most to
the least benign, these are: the calling-out power, the power to suspend the privilege of the writ
of habeas corpus, and the power to declare Martial Law. Citing Integrated Bar of the Philippines v.
Zamora,112 the Court ruled that the only criterion for the exercise of the calling-out power is that
"whenever it becomes necessary," the President may call the armed forces "to prevent or
suppress lawless violence, invasion or rebellion." Are these conditions present in the instant
cases? As stated earlier, considering the circumstances then prevailing, President Arroyo found it
necessary to issue PP 1017. Owing to her Office’s vast intelligence network, she is in the best
position to determine the actual condition of the country.
Under the calling-out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But
every act that goes beyond the President’s calling-out power is considered illegal or ultra vires. For
this reason, a President must be careful in the exercise of his powers. He cannot invoke a greater
power when he wishes to act under a lesser power. There lies the wisdom of our Constitution, the
greater the power, the greater are the limitations.
It is pertinent to state, however, that there is a distinction between the President’s authority to
declare a "state of rebellion" (in Sanlakas) and the authority to proclaim a state of national
emergency. While President Arroyo’s authority to declare a "state of rebellion" emanates from her
powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2, Book
II of the Revised Administrative Code of 1987, which provides:
SEC. 4. – Proclamations. – Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or regulation is
made to depend, shall be promulgated in proclamations which shall have the force of an executive
order.
President Arroyo’s declaration of a "state of rebellion" was merely an act declaring a status or
condition of public moment or interest, a declaration allowed under Section 4 cited above. Such
declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not
written. In these cases, PP 1017 is more than that. In declaring a state of national emergency,
President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision calling on
the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied on Section
17, Article XII, a provision on the State’s extraordinary power to take over privately-owned public
utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of
an awesome power. Obviously, such Proclamation cannot be deemed harmless, without legal
significance, or not written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It
is no so. What defines the character of PP 1017 are its wordings. It is plain therein that what the
President invoked was her calling-out power.
The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called upon
by the executive to assist in the maintenance of law and order, and that, while the emergency lasts,
they must, upon pain of arrest and punishment, not commit any acts which will in any way render
more difficult the restoration of order and the enforcement of law."113
In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice Vicente
V. Mendoza,114an authority in constitutional law, said that of the three powers of the President as
Commander-in-Chief, the power to declare Martial Law poses the most severe threat to civil liberties.
It is a strong medicine which should not be resorted to lightly. It cannot be used to stifle or persecute
critics of the government. It is placed in the keeping of the President for the purpose of enabling him
to secure the people from harm and to restore order so that they can enjoy their individual freedoms.
In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able to function, nor automatically
suspend the privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a
call by the President to the armed forces to prevent or suppress lawless violence. As such, it cannot
be used to justify acts that only under a valid declaration of Martial Law can be done. Its use for any
other purpose is a perversion of its nature and scope, and any act done contrary to its command
is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b)
ban on public assemblies; (c) take-over of news media and agencies and press censorship; and (d)
issuance of Presidential Decrees, are powers which can be exercised by the President as
Commander-in-Chief only where there is a valid declaration of Martial Law or suspension of the writ
of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is
merely an exercise of President Arroyo’s calling-out power for the armed forces to assist her in
preventing or suppressing lawless violence.
Second Provision: "Take Care" Power

The second provision pertains to the power of the President to ensure that the laws be faithfully
executed. This is based on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He
shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested,115 the primary function of the President is to
enforce the laws as well as to formulate policies to be embodied in existing laws. He sees to it that
all laws are enforced by the officials and employees of his department. Before assuming office, he is
required to take an oath or affirmation to the effect that as President of the Philippines, he will,
among others, "execute its laws."116 In the exercise of such function, the President, if needed, may
employ the powers attached to his office as the Commander-in-Chief of all the armed forces of the
country,117 including the Philippine National Police118 under the Department of Interior and Local
Government.119
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael

Mariano, Teodoro Casiño, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional as it
arrogated upon President Arroyo the power to enact laws and decrees in violation of Section 1,
Article VI of the Constitution, which vests the power to enact laws in Congress. They assail the
clause "to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction."
Petitioners’ contention is understandable. A reading of PP 1017 operative clause shows that it was
lifted120 from Former President Marcos’ Proclamation No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the

powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place
the entire Philippines as defined in Article 1, Section 1 of the Constitution under martial law and, in
my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines, prevent or suppress all
forms of lawless violence as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and decrees, orders and regulations promulgated by me personally
or upon my direction.
We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling
clause states: "to enforce obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction." Upon the other hand, the enabling clause
of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws and to
all decrees, orders and regulations promulgated by me personally or upon my direction."
Is it within the domain of President Arroyo to promulgate "decrees"?
PP 1017 states in part: "to enforce obedience to all the laws and decrees x x x promulgated by me
personally or upon my direction."
The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292
(Administrative Code of 1987). She may issue any of the following:
Sec. 2. Executive Orders. — Acts of the President providing for rules of a general or permanent
character in implementation or execution of constitutional or statutory powers shall be promulgated
in executive orders.
Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspect of
governmental operations in pursuance of his duties as administrative head shall be promulgated in
administrative orders.
Sec. 4. Proclamations. — Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or regulation is
made to depend, shall be promulgated in proclamations which shall have the force of an executive
order.
Sec. 5. Memorandum Orders. — Acts of the President on matters of administrative detail or of

subordinate or temporary interest which only concern a particular officer or office of the Government
shall be embodied in memorandum orders.
Sec. 6. Memorandum Circulars. — Acts of the President on matters relating to internal

administration, which the President desires to bring to the attention of all or some of the
departments, agencies, bureaus or offices of the Government, for information or compliance, shall
be embodied in memorandum circulars.
Sec. 7. General or Special Orders. — Acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or special
orders.
President Arroyo’s ordinance power is limited to the foregoing issuances. She cannot
issue decrees similar to those issued by Former President Marcos under PP 1081. Presidential
Decrees are laws which are of the same category and binding force as statutes because they were
issued by the President in the exercise of his legislative power during the period of Martial Law
under the 1973 Constitution.121
This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President
Arroyo the authority to promulgate "decrees." Legislative power is peculiarly within the province
of the Legislature. Section 1, Article VI categorically states that "[t]he legislative power shall be
vested in the Congress of the Philippines which shall consist of a Senate and a House of
Representatives." To be sure, neither Martial Law nor a state of rebellion nor a state of emergency
can justify President Arroyo’s exercise of legislative power by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through the military?
As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these
decrees are void and, therefore, cannot be enforced. With respect to "laws," she cannot call the
military to enforce or implement certain laws, such as customs laws, laws governing family and
property relations, laws on obligations and contracts and the like. She can only order the military,
under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations
promulgated by me personally or upon my direction; and as provided in Section 17, Article XII of
the Constitution do hereby declare a state of national emergency.
The import of this provision is that President Arroyo, during the state of national emergency under
PP 1017, can call the military not only to enforce obedience "to all the laws and to all decrees x x x"
but also to act pursuant to the provision of Section 17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so requires, the State may, during
the emergency and under reasonable terms prescribed by it, temporarily take over or direct the
operation of any privately-owned public utility or business affected with public interest.
What could be the reason of President Arroyo in invoking the above provision when she issued PP
1017?
The answer is simple. During the existence of the state of national emergency, PP 1017 purports to
grant the President, without any authority or delegation from Congress, to take over or direct the
operation of any privately-owned public utility or business affected with public interest.
This provision was first introduced in the 1973 Constitution, as a product of the "martial law" thinking
of the 1971 Constitutional Convention.122 In effect at the time of its approval was President Marcos’
Letter of Instruction No. 2 dated September 22, 1972 instructing the Secretary of National Defense
to take over "the management, control and operation of the Manila Electric Company, the Philippine
Long Distance Telephone Company, the National Waterworks and Sewerage Authority, the
Philippine National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . .
for the successful prosecution by the Government of its effort to contain, solve and end the present
national emergency."
Petitioners, particularly the members of the House of Representatives, claim that President Arroyo’s
inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislature’s emergency
powers.
This is an area that needs delineation.
A distinction must be drawn between the President’s authority to declare "a state of national
emergency" and to exercise emergency powers. To the first, as elucidated by the Court, Section 18,
Article VII grants the President such power, hence, no legitimate constitutional objection can be
raised. But to the second, manifold constitutional issues arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled,
voting separately, shall have the sole power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by
resolution of the Congress, such powers shall cease upon the next adjournment thereof.
It may be pointed out that the second paragraph of the above provision refers not only to war but
also to "other national emergency." If the intention of the Framers of our Constitution was to
withhold from the President the authority to declare a "state of national emergency" pursuant to
Section 18, Article VII (calling-out power) and grant it to Congress (like the declaration of the
existence of a state of war), then the Framers could have provided so. Clearly, they did not intend
that Congress should first authorize the President before he can declare a "state of national
emergency." The logical conclusion then is that President Arroyo could validly declare the existence
of a state of national emergency even in the absence of a Congressional enactment.
But the exercise of emergency powers, such as the taking over of privately owned public utility or
business affected with public interest, is a different matter. This requires a delegation from
Congress.
Courts have often said that constitutional provisions in pari materia are to be construed together.
Otherwise stated, different clauses, sections, and provisions of a constitution which relate to the
same subject matter will be construed together and considered in the light of each
other.123 Considering that Section 17 of Article XII and Section 23 of Article VI, previously quoted,
relate to national emergencies, they must be read together to determine the limitation of the exercise
of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident in the tenor of
Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body
cannot delegate a power not reposed upon it. However, knowing that during grave emergencies,
it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of
our Constitution deemed it wise to allow Congress to grant emergency powers to the President,
subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress may prescribe.
(4) The emergency powers must be exercised to carry out a national policy declared by
Congress.124
Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking
over of private business affected with public interest is just another facet of the emergency powers
generally reposed upon Congress. Thus, when Section 17 states that the "the State may, during
the emergency and under reasonable terms prescribed by it, temporarily take over or direct
the operation of any privately owned public utility or business affected with public interest," it
refers to Congress, not the President. Now, whether or not the President may exercise such power
is dependent on whether Congress may delegate it to him pursuant to a law prescribing the
reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,125 held:
It is clear that if the President had authority to issue the order he did, it must be found in some
provision of the Constitution. And it is not claimed that express constitutional language grants this
power to the President. The contention is that presidential power should be implied from the
aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article
II which say that "The executive Power shall be vested in a President . . . .;" that "he shall take Care
that the Laws be faithfully executed;" and that he "shall be Commander-in-Chief of the Army and
Navy of the United States.
The order cannot properly be sustained as an exercise of the President’s military power as
Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a number of
cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of
war. Such cases need not concern us here. Even though "theater of war" be an expanding
concept, we cannot with faithfulness to our constitutional system hold that the Commander-
in-Chief of the Armed Forces has the ultimate power as such to take possession of private
property in order to keep labor disputes from stopping production. This is a job for the
nation’s lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional provisions that
grant executive power to the President. In the framework of our Constitution, the President’s
power to see that the laws are faithfully executed refutes the idea that he is to be a
lawmaker. The Constitution limits his functions in the lawmaking process to the
recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the
Constitution is neither silent nor equivocal about who shall make laws which the President is
to execute. The first section of the first article says that "All legislative Powers herein granted
shall be vested in a Congress of the United States. . ."126
Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article XII
refers to "tsunami," "typhoon," "hurricane"and"similar occurrences." This is a limited view of
"emergency."
Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the
degree of existing danger to life or well-being beyond that which is accepted as normal. Implicit in
this definitions are the elements of intensity, variety, and perception.127 Emergencies, as perceived
by legislature or executive in the United Sates since 1933, have been occasioned by a wide range of
situations, classifiable under three (3) principal heads: a)economic,128 b) natural
disaster,129 and c) national security.130
"Emergency," as contemplated in our Constitution, is of the same breadth. It may include rebellion,
economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide
proportions or effect.131 This is evident in the Records of the Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committee’s definition of "national emergency" which appears in
Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or direct the operation of
any privately owned public utility or business affected with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for

example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency."
MR. BENGZON. Unless they are of such proportions such that they would paralyze government
service.132
xxxxxx
MR. TINGSON. May I ask the committee if "national emergency" refers to military national
emergency or could this be economic emergency?"
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
MR. TINGSON. Thank you very much.133
It may be argued that when there is national emergency, Congress may not be able to convene and,
therefore, unable to delegate to the President the power to take over privately-owned public utility or
business affected with public interest.
In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through which extraordinary
measures are exercised, remains in Congress even in times of crisis.
"x x x
After all the criticisms that have been made against the efficiency of the system of the separation of
powers, the fact remains that the Constitution has set up this form of government, with all its defects
and shortcomings, in preference to the commingling of powers in one man or group of men. The
Filipino people by adopting parliamentary government have given notice that they share the faith of
other democracy-loving peoples in this system, with all its faults, as the ideal. The point is, under this
framework of government, legislation is preserved for Congress all the time, not excepting periods of
crisis no matter how serious. Never in the history of the United States, the basic features of whose
Constitution have been copied in ours, have specific functions of the legislative branch of enacting
laws been surrendered to another department – unless we regard as legislating the carrying out of a
legislative policy according to prescribed standards; no, not even when that Republic was fighting a
total war, or when it was engaged in a life-and-death struggle to preserve the Union. The truth is that
under our concept of constitutional government, in times of extreme perils more than in normal
circumstances ‘the various branches, executive, legislative, and judicial,’ given the ability to act, are
called upon ‘to perform the duties and discharge the responsibilities committed to them respectively."
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP
1017, this Court rules that such Proclamation does not authorize her during the emergency to
temporarily take over or direct the operation of any privately owned public utility or business affected
with public interest without authority from Congress.
Let it be emphasized that while the President alone can declare a state of national emergency,
however, without legislation, he has no power to take over privately-owned public utility or business
affected with public interest. The President cannot decide whether exceptional circumstances exist
warranting the take over of privately-owned public utility or business affected with public interest. Nor
can he determine when such exceptional circumstances have ceased. Likewise, without
legislation, the President has no power to point out the types of businesses affected with public
interest that should be taken over. In short, the President has no absolute authority to exercise all
the powers of the State under Section 17, Article VII in the absence of an emergency powers act
passed by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which pertains to security, is that military
necessity and the guaranteed rights of the individual are often not compatible. Our history reveals
that in the crucible of conflict, many rights are curtailed and trampled upon. Here, the right against
unreasonable search and seizure; the right against warrantless arrest; and the freedom of
speech, of expression, of the press, and of assembly under the Bill of Rights suffered the
greatest blow.
Of the seven (7) petitions, three (3) indicate "direct injury."
In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were
arrested without warrants on their way to EDSA to celebrate the 20th Anniversary of People Power
I. The arresting officers cited PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on
February 25, 2006, the CIDG operatives "raided and ransacked without warrant" their office. Three
policemen were assigned to guard their office as a possible "source of destabilization." Again, the
basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members were
"turned away and dispersed" when they went to EDSA and later, to Ayala Avenue, to celebrate the
20th Anniversary of People Power I.
A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they resulted
from the implementation, pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal
acts? In general, does the illegal implementation of a law render it unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes invalid although they may be
abused and misabused135 and may afford an opportunity for abuse in the manner of
application.136 The validity of a statute or ordinance is to be determined from its general purpose
and its efficiency to accomplish the end desired, not from its effects in a particular case.137 PP
1017 is merely an invocation of the President’s calling-out power. Its general purpose is to command
the AFP to suppress all forms of lawless violence, invasion or rebellion. It had accomplished the end
desired which prompted President Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing
the police, expressly or impliedly, to conduct illegal arrest, search or violate the citizens’
constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor
committed illegal acts? The answer is no. The criterion by which the validity of the statute or
ordinance is to be measured is the essential basis for the exercise of power, and not a mere
incidental result arising from its exertion.138 This is logical. Just imagine the absurdity of
situations when laws maybe declared unconstitutional just because the officers implementing them
have acted arbitrarily. If this were so, judging from the blunders committed by policemen in the cases
passed upon by the Court, majority of the provisions of the Revised Penal Code would have been
declared unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders are
"acts and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of
the Philippines." They are internal rules issued by the executive officer to his subordinates precisely
for the proper and efficientadministration of law. Such rules and regulations create no relation
except between the official who issues them and the official who receives them.139 They are based
on and are the product of, a relationship in which power is their source, and obedience, their
object.140 For these reasons, one requirement for these rules to be valid is that they must
be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and
appropriate actions and measures to suppress and prevent acts of terrorism and
lawless violence."
Unlike the term "lawless violence" which is unarguably extant in our statutes and the Constitution,
and which is invariably associated with "invasion, insurrection or rebellion," the phrase "acts of
terrorism" is still an amorphous and vague concept. Congress has yet to enact a law defining and
punishing acts of terrorism.
In fact, this "definitional predicament" or the "absence of an agreed definition of terrorism" confronts
not only our country, but the international community as well. The following observations are quite
apropos:
In the actual unipolar context of international relations, the "fight against terrorism" has become one
of the basic slogans when it comes to the justification of the use of force against certain states and
against groups operating internationally. Lists of states "sponsoring terrorism" and of terrorist
organizations are set up and constantly being updated according to criteria that are not always
known to the public, but are clearly determined by strategic interests.
The basic problem underlying all these military actions – or threats of the use of force as the most
recent by the United States against Iraq – consists in the absence of an agreed definition of
terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of violence either by
states, by armed groups such as liberation movements, or by individuals.
The dilemma can by summarized in the saying "One country’s terrorist is another country’s freedom
fighter." The apparent contradiction or lack of consistency in the use of the term "terrorism" may
further be demonstrated by the historical fact that leaders of national liberation movements such as
Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to
mention only a few, were originally labeled as terrorists by those who controlled the territory at the
time, but later became internationally respected statesmen.
What, then, is the defining criterion for terrorist acts – the differentia specifica distinguishing those
acts from eventually legitimate acts of national resistance or self-defense?
Since the times of the Cold War the United Nations Organization has been trying in vain to reach a
consensus on the basic issue of definition. The organization has intensified its efforts recently, but
has been unable to bridge the gap between those who associate "terrorism" with any violent act by
non-state groups against civilians, state functionaries or infrastructure or military installations, and
those who believe in the concept of the legitimate use of force when resistance against foreign
occupation or against systematic oppression of ethnic and/or religious groups within a state is
concerned.
The dilemma facing the international community can best be illustrated by reference to the
contradicting categorization of organizations and movements such as Palestine Liberation
Organization (PLO) – which is a terrorist group for Israel and a liberation movement for Arabs and
Muslims – the Kashmiri resistance groups – who are terrorists in the perception of India, liberation
fighters in that of Pakistan – the earlier Contras in Nicaragua – freedom fighters for the United
States, terrorists for the Socialist camp – or, most drastically, the Afghani Mujahedeen (later to
become the Taliban movement): during the Cold War period they were a group of freedom fighters
for the West, nurtured by the United States, and a terrorist gang for the Soviet Union. One could go
on and on in enumerating examples of conflicting categorizations that cannot be reconciled in any
way – because of opposing political interests that are at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and
the same group and its actions be explained? In our analysis, the basic reason for these striking
inconsistencies lies in the divergent interest of states. Depending on whether a state is in the
position of an occupying power or in that of a rival, or adversary, of an occupying power in a given
territory, the definition of terrorism will "fluctuate" accordingly. A state may eventually see itself as
protector of the rights of a certain ethnic group outside its territory and will therefore speak of a
"liberation struggle," not of "terrorism" when acts of violence by this group are concerned, and vice-
versa.
The United Nations Organization has been unable to reach a decision on the definition of terrorism
exactly because of these conflicting interests of sovereign states that determine in each and every
instance how a particular armed movement (i.e. a non-state actor) is labeled in regard to the
terrorists-freedom fighter dichotomy. A "policy of double standards" on this vital issue of international
affairs has been the unavoidable consequence.
This "definitional predicament" of an organization consisting of sovereign states – and not of

peoples, in spite of the emphasis in the Preamble to the United Nations Charter! – has become even
more serious in the present global power constellation: one superpower exercises the decisive role
in the Security Council, former great powers of the Cold War era as well as medium powers are
increasingly being marginalized; and the problem has become even more acute since the terrorist
attacks of 11 September 2001 I the United States.141
The absence of a law defining "acts of terrorism" may result in abuse and oppression on the part of
the police or military. An illustration is when a group of persons are merely engaged in a drinking
spree. Yet the military or the police may consider the act as an act of terrorism and immediately
arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on their part. It must be
remembered that an act can only be considered a crime if there is a law defining the same as such
and imposing the corresponding penalty thereon.
So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835 dated
January 16, 1981 enacted by President Marcos during the Martial Law regime. This decree is
entitled "Codifying The Various Laws on Anti-Subversion and Increasing The Penalties for
Membership in Subversive Organizations." The word "terrorism" is mentioned in the following
provision: "That one who conspires with any other person for the purpose of overthrowing the
Government of the Philippines x x x by force, violence, terrorism, x x x shall be punished
by reclusion temporal x x x."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the
Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws, however, do
not define "acts of terrorism." Since there is no law defining "acts of terrorism," it is President Arroyo
alone, under G.O. No. 5, who has the discretion to determine what acts constitute terrorism. Her
judgment on this aspect is absolute, without restrictions. Consequently, there can be indiscriminate
arrest without warrants, breaking into offices and residences, taking over the media enterprises,
prohibition and dispersal of all assemblies and gatherings unfriendly to the administration. All these
can be effected in the name of G.O. No. 5. These acts go far beyond the calling-out power of the
President. Certainly, they violate the due process clause of the Constitution. Thus, this Court
declares that the "acts of terrorism" portion of G.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts beyond
what are necessary and appropriate to suppress and prevent lawless violence, the limitation of
their authority in pursuing the Order. Otherwise, such acts are considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that "the right of the people to be secured in their persons, houses, papers
and effects against unreasonable search and seizure of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be searched
and the persons or things to be seized."142 The plain import of the language of the Constitution is that
searches, seizures and arrests are normally unreasonable unless authorized by a validly issued
search warrant or warrant of arrest. Thus, the fundamental protection given by this provision is that
between person and police must stand the protective authority of a magistrate clothed with power to
issue or refuse to issue search warrants or warrants of arrest.143
In the Brief Account144 submitted by petitioner David, certain facts are established: first, he was
arrested without warrant; second, the PNP operatives arrested him on the basis of PP
1017; third, he was brought at Camp Karingal, Quezon City where he was fingerprinted,
photographed and booked like a criminal suspect; fourth,he was treated brusquely by policemen
who "held his head and tried to push him" inside an unmarked car; fifth, he was charged with
Violation of Batas Pambansa Bilang No. 880145 and Inciting to Sedition; sixth, he was detained for
seven (7) hours; and seventh,he was eventually released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense.
(b) When an offense has just been committed and he has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner David’s warrantless arrest.
During the inquest for the charges of inciting to sedition and violation of BP 880, all that the
arresting officers could invoke was their observation that some rallyists were wearing t-shirts with the
invective "Oust Gloria Now" and their erroneous assumption that petitioner David was the leader of
the rally.146 Consequently, the Inquest Prosecutor ordered his immediate release on the ground of
insufficiency of evidence. He noted that petitioner David was not wearing the subject t-shirt and even
if he was wearing it, such fact is insufficient to charge him with inciting to sedition. Further, he also
stated that there is insufficient evidence for the charge of violation of BP 880 as it was not even
known whether petitioner David was the leader of the rally.147
But what made it doubly worse for petitioners David et al. is that not only was their right against
warrantless arrest violated, but also their right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right
of the people peaceably to assemble and petition the government for redress of grievances.
"Assembly" means a right on the part of the citizens to meet peaceably for consultation in respect to
public affairs. It is a necessary consequence of our republican institution and complements the right
of speech. As in the case of freedom of expression, this right is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that Congress has a right
to prevent. In other words, like other rights embraced in the freedom of expression, the right to
assemble is not subject to previous restraint or censorship. It may not be conditioned upon the prior
issuance of a permit or authorization from the government authorities except, of course, if the
assembly is intended to be held in a public place, a permit for the use of such place, and not for the
assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested while they were exercising their
right to peaceful assembly. They were not committing any crime, neither was there a showing of a
clear and present danger that warranted the limitation of that right. As can be gleaned from
circumstances, the charges of inciting to sedition and violation of BP 880 were mere afterthought.
Even the Solicitor General, during the oral argument, failed to justify the arresting officers’ conduct.
In De Jonge v. Oregon,148 it was held that peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for
peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings
cannot be branded as criminals on that score. The question, if the rights of free speech and peaceful
assembly are not to be preserved, is not as to the auspices under which the meeting was held but as
to its purpose; not as to the relations of the speakers, but whether their utterances transcend the
bounds of the freedom of speech which the Constitution protects. If the persons assembling have
committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public
peace and order, they may be prosecuted for their conspiracy or other violations of valid laws. But it
is a different matter when the State, instead of prosecuting them for such offenses, seizes
upon mere participation in a peaceable assembly and a lawful public discussion as the basis
for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal and arrest of the
members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done merely
on the basis of Malacañang’s directive canceling all permits previously issued by local government
units. This is arbitrary. The wholesale cancellation of all permits to rally is a blatant disregard of the
principle that "freedom of assembly is not to be limited, much less denied, except on a
showing of a clear and present danger of a substantive evil that the State has a right to
prevent."149 Tolerance is the rule and limitation is the exception. Only upon a showing that an
assembly presents a clear and present danger that the State may deny the citizens’ right to exercise
it. Indeed, respondents failed to show or convince the Court that the rallyists committed acts
amounting to lawless violence, invasion or rebellion. With the blanket revocation of permits, the
distinction between protected and unprotected assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local
government units. They have the power to issue permits and to revoke such permits after due
notice and hearing on the determination of the presence of clear and present danger. Here,
petitioners were not even notified and heard on the revocation of their permits.150 The first time they
learned of it was at the time of the dispersal. Such absence of notice is a fatal defect. When a
person’s right is restricted by government action, it behooves a democratic government to see to it
that the restriction is fair, reasonable, and according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the
freedom of the press. Petitioners’ narration of facts, which the Solicitor General failed to refute,
established the following: first, the Daily Tribune’s offices were searched without warrant;second, the
police operatives seized several materials for publication; third, the search was conducted at about
1:00 o’ clock in the morning of February 25, 2006; fourth, the search was conducted in the absence
of any official of the Daily Tribune except the security guard of the building; and fifth, policemen
stationed themselves at the vicinity of the Daily Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael
Defensor was quoted as saying that such raid was "meant to show a ‘strong presence,’ to tell
media outlets not to connive or do anything that would help the rebels in bringing down this
government." Director General Lomibao further stated that "if they do not follow the standards –
and the standards are if they would contribute to instability in the government, or if they do
not subscribe to what is in General Order No. 5 and Proc. No. 1017 – we will recommend
a ‘takeover.’" National Telecommunications Commissioner Ronald Solis urged television and radio
networks to "cooperate" with the government for the duration of the state of national emergency. He
warned that his agency will not hesitate to recommend the closure of any broadcast outfit
that violates rules set out for media coverage during times when the national security is
threatened.151
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in
the conduct of search and seizure. Section 4 requires that a search warrant be issued upon
probable cause in connection with one specific offence to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he may
produce. Section 8 mandates that the search of a house, room, or any other premise be made in
the presence of the lawful occupant thereof or any member of his family or in the absence of the
latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the same
locality. And Section 9 states that the warrant must direct that it be served in the daytime, unless
the property is on the person or in the place ordered to be searched, in which case a direction may
be inserted that it be served at any time of the day or night. All these rules were violated by the
CIDG operatives.
Not only that, the search violated petitioners’ freedom of the press. The best gauge of a free and
democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of
Staff152 this Court held that --
As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum" newspapers. As a consequence of the search and
seizure, these premises were padlocked and sealed, with the further result that the printing
and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of
the press guaranteed under the fundamental law, and constitutes a virtual denial of
petitioners' freedom to express themselves in print. This state of being is patently
anathematic to a democratic framework where a free, alert and even militant press is
essential for the political enlightenment and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail" and
"We Forum" newspapers in the above case, yet it cannot be denied that the CIDG operatives
exceeded their enforcement duties. The search and seizure of materials for publication, the
stationing of policemen in the vicinity of the The Daily Tribune offices, and the arrogant warning of
government officials to media, are plain censorship. It is that officious functionary of the repressive
government who tells the citizen that he may speak only if allowed to do so, and no more and no
less than what he is permitted to say on pain of punishment should he be so rash as to
disobey.153Undoubtedly, the The Daily Tribune was subjected to these arbitrary intrusions because of
its anti-government sentiments. This Court cannot tolerate the blatant disregard of a constitutional
right even if it involves the most defiant of our citizens. Freedom to comment on public affairs is
essential to the vitality of a representative democracy. It is the duty of the courts to be watchful for
the constitutional rights of the citizen, and against any stealthy encroachments thereon. The motto
should always be obsta principiis.154
Incidentally, during the oral arguments, the Solicitor General admitted that the search of
the Tribune’s offices and the seizure of its materials for publication and other papers are illegal; and
that the same are inadmissible "for any purpose," thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the policemen, when inspected the
Tribune for the purpose of gathering evidence and you admitted that the policemen were able to get
the clippings. Is that not in admission of the admissibility of these clippings that were taken from the
Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I think and I know, Your Honor,
and these are inadmissible for any purpose.155
xxxxxxxxx
SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune; all you have to do is to get those
past issues. So why do you have to go there at 1 o’clock in the morning and without any search
warrant? Did they become suddenly part of the evidence of rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my instructions.
Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not based
on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says that
the police could go and inspect and gather clippings from Daily Tribune or any other newspaper.

Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it is premature to say this, we do
not condone this. If the people who have been injured by this would want to sue them, they
can sue and there are remedies for this.156
Likewise, the warrantless arrests and seizures executed by the police were, according to the
Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I don’t know whether this will clarify. The acts, the supposed illegal or unlawful acts committed on the
occasion of 1017, as I said, it cannot be condoned. You cannot blame the President for, as you
said, a misapplication of the law. These are acts of the police officers, that is their responsibility.157
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and
"should result in no constitutional or statutory breaches if applied according to their letter."
The Court has passed upon the constitutionality of these issuances. Its ratiocination has been
exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling out by
the President of the military to prevent or suppress lawless violence, invasion or rebellion. When in
implementing its provisions, pursuant to G.O. No. 5, the military and the police committed acts which
violate the citizens’ rights under the Constitution, this Court has to declare such acts unconstitutional
and illegal.
In this connection, Chief Justice Artemio V. Panganiban’s concurring opinion, attached hereto, is
considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 – a supervening event – would have
normally rendered this case moot and academic. However, while PP 1017 was still operative, illegal
acts were committed allegedly in pursuance thereof. Besides, there is no guarantee that PP 1017, or
one similar to it, may not again be issued. Already, there have been media reports on April 30, 2006
that allegedly PP 1017 would be reimposed "if the May 1 rallies" become "unruly and violent."
Consequently, the transcendental issues raised by the parties should not be "evaded;" they must
now be resolved to prevent future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the
President for the AFP to prevent or suppress lawless violence. The proclamation is sustained by
Section 18, Article VII of the Constitution and the relevant jurisprudence discussed earlier. However,
PP 1017’s extraneous provisions giving the President express or implied power (1) to issue decrees;
(2) to direct the AFP to enforce obedience to all laws even those not related to lawless violence as
well as decrees promulgated by the President; and (3) to impose standards on media or any form of
prior restraint on the press, are ultra vires and unconstitutional. The Court also rules that under
Section 17, Article XII of the Constitution, the President, in the absence of a legislation, cannot take
over privately-owned public utility and private business affected with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President – acting as
Commander-in-Chief – addressed to subalterns in the AFP to carry out the provisions of PP 1017.
Significantly, it also provides a valid standard – that the military and the police should take only the
"necessary and appropriate actions and measures to suppress and prevent acts of lawless
violence."But the words "acts of terrorism" found in G.O. No. 5 have not been legally defined and
made punishable by Congress and should thus be deemed deleted from the said G.O. While
"terrorism" has been denounced generally in media, no law has been enacted to guide the military,
and eventually the courts, to determine the limits of the AFP’s authority in carrying out this portion of
G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1)
the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the
rallies and warrantless arrest of the KMU and NAFLU-KMU members; (3) the imposition of
standards on media or any prior restraint on the press; and (4) the warrantless search of
the Tribune offices and the whimsical seizures of some articles for publication and other materials,
are not authorized by the Constitution, the law and jurisprudence. Not even by the valid provisions of
PP 1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any civil, criminal or administrative
sanctions on the individual police officers concerned. They have not been individually identified and
given their day in court. The civil complaints or causes of action and/or relevant criminal Informations
have not been presented before this Court. Elementary due process bars this Court from making any
specific pronouncement of civil, criminal or administrative liabilities.
It is well to remember that military power is a means to an end and substantive civil rights are
ends in themselves. How to give the military the power it needs to protect the Republic
without unnecessarily trampling individual rights is one of the eternal balancing tasks of a
democratic state.During emergency, governmental action may vary in breadth and intensity from
normal times, yet they should not be arbitrary as to unduly restrain our people’s liberty.
Perhaps, the vital lesson that we must learn from the theorists who studied the various competing
political philosophies is that, it is possible to grant government the authority to cope with crises
without surrendering the two vital principles of constitutionalism: the maintenance of legal limits to
arbitrary power, and political responsibility of the government to the governed.158
WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017
is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on the
AFP to prevent or suppress lawless violence. However, the provisions of PP 1017 commanding
the AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the
President, are declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring
national emergency under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such
declaration does not authorize the President to take over privately-owned public utility or business
affected with public interest without prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP
should implement PP 1017, i.e. whatever is "necessary and appropriate actions and measures to
suppress and prevent acts of lawless violence." Considering that "acts of terrorism" have not yet
been defined and made punishable by the Legislature, such portion of G.O. No. 5 is
declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest
of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that these
petitioners were committing acts constituting lawless violence, invasion or rebellion and violating BP
880; the imposition of standards on media or any form of prior restraint on the press, as well as the
warrantless search of the Tribune offices and whimsical seizure of its articles for publication and
other materials, are declared UNCONSTITUTIONAL.
No costs.
SO ORDERED.
55

SUPREME COURT
Manila
EN BANC
G.R. No. 191618 November 23, 2010
ATTY. ROMULO B. MACALINTAL, Petitioner,

vs.
PRESIDENTIAL ELECTORAL TRIBUNAL, Respondent.
DECISION
NACHURA, J.:
Confronting us is an undesignated petition1 filed by Atty. Romulo B. Macalintal (Atty. Macalintal), that
questions the constitution of the Presidential Electoral Tribunal (PET) as an illegal and unauthorized
progeny of Section 4,2 Article VII of the Constitution:
The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice-President, and may promulgate its rules for the
purpose.
While petitioner concedes that the Supreme Court is "authorized to promulgate its rules for the
purpose," he chafes at the creation of a purportedly "separate tribunal" complemented by a budget
allocation, a seal, a set of personnel and confidential employees, to effect the constitutional
mandate. Petitioner’s averment is supposedly supported by the provisions of the 2005 Rules of the
Presidential Electoral Tribunal (2005 PET Rules),3 specifically:
(1) Rule 3 which provides for membership of the PET wherein the Chief Justice and the
Associate Justices are designated as "Chairman and Members," respectively;
(2) Rule 8(e) which authorizes the Chairman of the PET to appoint employees and
confidential employees of every member thereof;
(3) Rule 9 which provides for a separate "Administrative Staff of the Tribunal" with the
appointment of a Clerk and a Deputy Clerk of the Tribunal who, at the discretion of the PET,
may designate the Clerk of Court (en banc) as the Clerk of the Tribunal; and
(4) Rule 11 which provides for a "seal" separate and distinct from the Supreme Court seal.
Grudgingly, petitioner throws us a bone by acknowledging that the invoked constitutional provision
does allow the "appointment of additional personnel."
Further, petitioner highlights our decision in Buac v. COMELEC4 which peripherally declared that
"contests involving the President and the Vice-President fall within the exclusive original jurisdiction
of the PET, x x x in the exercise of quasi-judicial power." On this point, petitioner reiterates that the
constitution of the PET, with the designation of the Members of the Court as Chairman and Members
thereof, contravenes Section 12, Article VIII of the Constitution, which prohibits the designation of
Members of the Supreme Court and of other courts established by law to any agency performing
quasi-judicial or administrative functions.
The Office of the Solicitor General (OSG), as directed in our Resolution dated April 6, 2010, filed a
Comment5thereon. At the outset, the OSG points out that the petition filed by Atty. Macalintal is
unspecified and without statutory basis; "the liberal approach in its preparation x x x is a violation of
the well known rules of practice and pleading in this jurisdiction."
In all, the OSG crystallizes the following issues for resolution of the Court:
WHETHER x x x PETITIONER HAS LOCUS STANDI TO FILE THE INSTANT PETITION.
II
WHETHER x x x THE CREATION OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS

UNCONSTITUTIONAL FOR BEING A VIOLATION OF PARAGRAPH 7, SECTION 4 OF ARTICLE
VII OF THE 1987 CONSTITUTION.
III
WHETHER x x x THE DESIGNATION OF MEMBERS OF THE SUPREME COURT AS MEMBERS

OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS UNCONSTITUTIONAL FOR BEING A
VIOLATION OF SECTION 12, ARTICLE VIII OF THE 1987 CONSTITUTION.6
In his Reply,7 petitioner maintains that:

1. He has legal standing to file the petition given his averment of transcendental importance
of the issues raised therein;
2. The creation of the PET, a separate tribunal from the Supreme Court, violates Section 4,
Article VII of the Constitution; and
3. The PET, being a separate tribunal, exercises quasi-judicial functions contrary to Section
12, Article VIII of the Constitution.
We winnow the meanderings of petitioner into the singular issue of whether the constitution of the
PET, composed of the Members of this Court, is unconstitutional, and violates Section 4, Article VII
and Section 12, Article VIII of the Constitution.
But first, we dispose of the procedural issue of whether petitioner has standing to file the present
petition.
The issue of locus standi is derived from the following requisites of a judicial inquiry:
1. There must be an actual case or controversy;
2. The question of constitutionality must be raised by the proper party;
3. The constitutional question must be raised at the earliest possible opportunity; and
4. The decision of the constitutional question must be necessary to the determination of the
case itself.8
On more than one occasion we have characterized a proper party as one who has sustained or is in
immediate danger of sustaining an injury as a result of the act complained of.9 The dust has long
settled on the test laid down in Baker v. Carr:10 "whether the party has alleged such a personal stake
in the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult
questions."11 Until and unless such actual or threatened injury is established, the complainant is not
clothed with legal personality to raise the constitutional question.
Our pronouncements in David v. Macapagal-Arroyo12 illuminate:
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a
"public right" in assailing an allegedly illegal official action, does so as a representative of the general
public. He may be a person who is affected no differently from any other person. He could be suing
as a "stranger," or in the category of a "citizen," or "taxpayer." In either case, he has to adequately
show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient
interest in the vindication of the public order and the securing of relief as a" citizen" or "taxpayer."
xxxx
However, to prevent just about any person from seeking judicial interference in any official policy or
act with which he disagreed with, and thus hinders the activities of governmental agencies engaged
in public service, the United States Supreme Court laid down the more stringent "direct injury" test in
Ex Parte Levitt, later reaffirmed in Tileston v. Ullman. The same Court ruled that for a private
individual to invoke the judicial power to determine the validity of an executive or legislative action,
he must show that he has sustained a direct injury as a result of that action, and it is not sufficient
that he has a general interest common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held that the person
who impugns the validity of a statute must have "a personal and substantial interest in the case such
that he has sustained, or will sustain direct injury as a result." The Vera doctrine was upheld in a
litany of cases, such as, Custodio v. President of the Senate, Manila Race Horse Trainers’
Association v. De la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese League of the
Philippines v. Felix.
However, being a mere procedural technicality, the requirement of locus standi may be waived by
the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers Cases,
Araneta v. Dinglasan, where the "transcendental importance" of the cases prompted the Court to act
liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec, this Court resolved
to pass upon the issues raised due to the "far-reaching implications" of the petition notwithstanding
its categorical statement that petitioner therein had no personality to file the suit. Indeed, there is a
chain of cases where this liberal policy has been observed, allowing ordinary citizens, members of
Congress, and civic organizations to prosecute actions involving the constitutionality or validity of
laws, regulations and rulings.
xxxx
By way of summary, the following rules may be culled from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided
that the following requirements are met:
(1) cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax
(3) for voters, there must be a showing of obvious interest in the validity of the election law in
question;
(4) for concerned citizens, there must be a showing that the issues raised are of
(5) for legislators, there must be a claim that the official action complained of infringes upon
their prerogatives as legislators.
Contrary to the well-settled actual and direct injury test, petitioner has simply alleged a generalized
interest in the outcome of this case, and succeeds only in muddling the issues. Paragraph 2 of the
petition reads:
2. x x x Since the creation and continued operation of the PET involves the use of public funds and
the issue raised herein is of transcendental importance, it is petitioner’s humble submission that, as
a citizen, a taxpayer and a member of the BAR, he has the legal standing to file this petition.
But even if his submission is valid, petitioner’s standing is still imperiled by the white elephant in the
petition, i.e., his appearance as counsel for former President Gloria Macapagal-Arroyo (Macapagal-
Arroyo) in the election protest filed by 2004 presidential candidate Fernando Poe, Jr. before the
Presidential Electoral Tribunal,13 because judicial inquiry, as mentioned above, requires that the
constitutional question be raised at the earliest possible opportunity.14Such appearance as counsel
before the Tribunal, to our mind, would have been the first opportunity to challenge the
constitutionality of the Tribunal’s constitution.
Although there are recognized exceptions to this requisite, we find none in this instance. Petitioner is
unmistakably estopped from assailing the jurisdiction of the PET before which tribunal he had
ubiquitously appeared and had acknowledged its jurisdiction in 2004. His failure to raise a
seasonable constitutional challenge at that time, coupled with his unconditional acceptance of the
Tribunal’s authority over the case he was defending, translates to the clear absence of an
indispensable requisite for the proper invocation of this Court’s power of judicial review. Even on this
score alone, the petition ought to be dismissed outright.
Prior to petitioner’s appearance as counsel for then protestee Macapagal-Arroyo, we had occasion
to affirm the grant of original jurisdiction to this Court as a Presidential Electoral Tribunal in the
auspicious case of Tecson v. Commission on Elections.15 Thus -
Petitioners Tecson, et al., in G.R. No. 161434, and Velez, in G.R. No. 161634, invoke the provisions
of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the jurisdiction of the
COMELEC when it took cognizance of SPA No. 04-003 and in urging the Supreme Court to instead
take on the petitions they directly instituted before it. The Constitutional provision cited reads:
"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election,
purpose."
The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973
Constitution to designate any tribunal to be the sole judge of presidential and vice-presidential
contests, has constrained this Court to declare, in Lopez vs. Roxas, as "not (being) justiciable"
controversies or disputes involving contests on the elections, returns and qualifications of the
President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to enact
Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal to Try,
Hear and Decide Protests Contesting the Election of the President-Elect and the Vice-President-
Elect of the Philippines and Providing for the Manner of Hearing the Same." Republic Act 1793
designated the Chief Justice and the Associate Justices of the Supreme Court to be the members of
the tribunal. Although the subsequent adoption of the parliamentary form of government under the
1973 Constitution might have implicitly affected Republic Act No. 1793, the statutory set-up,
nonetheless, would now be deemed revived under the present Section 4, paragraph 7, of the 1987
Constitution.
Former Chief Justice Reynato S. Puno, in his separate opinion, was even more categorical:
The Court is unanimous on the issue of jurisdiction. It has no jurisdiction on the Tecson and Valdez
petitions. Petitioners cannot invoke Article VII, Section 4, par. 7 of the Constitution which provides:
"The Supreme Court, sitting en banc shall be the sole judge of all contests relating to the election,
returns and qualifications of the President or Vice President and may promulgate its rules for the
purpose."
The word "contest" in the provision means that the jurisdiction of this Court can only be invoked after
the election and proclamation of a President or Vice President. There can be no "contest" before a
winner is proclaimed.16
Similarly, in her separate opinion, Justice Alicia Austria-Martinez declared:
G.R. Nos. 161434 and 161634 invoke the Court’s exclusive jurisdiction under the last paragraph of
Section 4, Article VII of the 1987 Constitution. I agree with the majority opinion that these petitions
should be dismissed outright for prematurity. The Court has no jurisdiction at this point of time to
entertain said petitions.
The Supreme Court, as a Presidential Electoral Tribunal (PET), the Senate Electoral Tribunal (SET)
and House of Representatives Electoral Tribunal (HRET) are electoral tribunals, each specifically
and exclusively clothed with jurisdiction by the Constitution to act respectively as "sole judge of all
contests relating to the election, returns, and qualifications" of the President and Vice-President,
Senators, and Representatives. In a litany of cases, this Court has long recognized that these
electoral tribunals exercise jurisdiction over election contests only after a candidate has already
been proclaimed winner in an election. Rules 14 and 15 of the Rules of the Presidential Electoral
Tribunal provide that, for President or Vice-President, election protest or quo warranto may be
filed after the proclamation of the winner.17
Petitioner, a prominent election lawyer who has filed several cases before this Court involving
constitutional and election law issues, including, among others, the constitutionality of certain
provisions of Republic Act (R.A.) No. 9189 (The Overseas Absentee Voting Act of 2003),18 cannot
claim ignorance of: (1) the invocation of our jurisdiction under Section 4, Article VII of the
Constitution; and (2) the unanimous holding thereon. Unquestionably, the overarching framework
affirmed in Tecson v. Commission on Elections19 is that the Supreme Court has original jurisdiction
to decide presidential and vice-presidential election protests while concurrently acting as an
independent Electoral Tribunal.
Despite the foregoing, petitioner is adamant on his contention that the provision, as worded, does
not authorize the constitution of the PET. And although he concedes that the Supreme Court may
promulgate its rules for this purpose, petitioner is insistent that the constitution of the PET is
unconstitutional. However, petitioner avers that it allows the Court to appoint additional personnel for
the purpose, notwithstanding the silence of the constitutional provision.
Petitioner’s pastiche arguments are all hurled at the Court, hopeful that at least one might possibly
stick. But these arguments fail to elucidate on the scope of the rules the Supreme Court is allowed to
promulgate. Apparently, petitioner’s concept of this adjunct of judicial power is very restrictive.
Fortunately, thanks in no part to petitioner’s opinion, we are guided by well-settled principles of
constitutional construction.
Verba legis dictates that wherever possible, the words used in the Constitution must be given their
ordinary meaning except where technical terms are employed, in which case the significance thus
attached to them prevails. This Court, speaking through former Chief Justice Enrique Fernando, in
J.M. Tuason & Co., Inc. v. Land Tenure Administration20 instructs:
As the Constitution is not primarily a lawyer’s document, it being essential for the rule of law to
obtain that it should ever be present in the people’s consciousness, its language as much as
possible should be understood in the sense they have in common use. What it says according to the
text of the provision to be construed compels acceptance and negates the power of the courts to
alter it, based on the postulate that the framers and the people mean what they say. Thus these are
cases where the need for construction is reduced to a minimum.
However, where there is ambiguity or doubt, the words of the Constitution should be interpreted in
accordance with the intent of its framers or ratio legis et anima. A doubtful provision must be
examined in light of the history of the times, and the condition and circumstances surrounding the
framing of the Constitution.21 In following this guideline, courts should bear in mind the object sought
to be accomplished in adopting a doubtful constitutional provision, and the evils sought to be
prevented or remedied.22 Consequently, the intent of the framers and the people ratifying the
constitution, and not the panderings of self-indulgent men, should be given effect.
Last, ut magis valeat quam pereat – the Constitution is to be interpreted as a whole. We intoned thus
in the landmark case of Civil Liberties Union v. Executive Secretary:23
It is a well-established rule in constitutional construction that no one provision of the Constitution is

to be separated from all the others, to be considered alone, but that all the provisions bearing upon a
particular subject are to be brought into view and to be so interpreted as to effectuate the great
purposes of the instrument. Sections bearing on a particular subject should be considered and
interpreted together as to effectuate the whole purpose of the Constitution and one section is not to
be allowed to defeat another, if by any reasonable construction, the two can be made to stand
together.
In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the words idle
and nugatory.
We had earlier expounded on this rule of construction in Chiongbian v. De Leon, et al., 24 to wit:
[T]he members of the Constitutional Convention could not have dedicated a provision of our
Constitution merely for the benefit of one person without considering that it could also affect others.
When they adopted subsection 2, they permitted, if not willed, that said provision should function to
the full extent of its substance and its terms, not by itself alone, but in conjunction with all other
provisions of that great document.
On its face, the contentious constitutional provision does not specify the establishment of the PET.
But neither does it preclude, much less prohibit, otherwise. It entertains divergent interpretations
which, though unacceptable to petitioner, do not include his restrictive view – one which really does
not offer a solution.
Section 4, Article VII of the Constitution, the provision under scrutiny, should be read with other
related provisions of the Constitution such as the parallel provisions on the Electoral Tribunals of the
Senate and the House of Representatives.
Before we resort to the records of the Constitutional Commission, we discuss the framework of
judicial power mapped out in the Constitution. Contrary to petitioner’s assertion, the Supreme
Court’s constitutional mandate to act as sole judge of election contests involving our country’s
highest public officials, and its rule-making authority in connection therewith, is not restricted; it
includes all necessary powers implicit in the exercise thereof.
We recall the unprecedented and trailblazing case of Marcos v. Manglapus:25
The 1987 Constitution has fully restored the separation of powers of the three great branches of
government. To recall the words of Justice Laurel in Angara v. Electoral Commission, "the
Constitution has blocked but with deft strokes and in bold lines, allotment of power to the executive,
the legislative and the judicial departments of the government." Thus, the 1987 Constitution explicitly
provides that "[t]he legislative power shall be vested in the Congress of the Philippines" [Art. VI, Sec.
1], "[t]he executive power shall be vested in the President of the Philippines" [Art. VII, Sec. 1], and
"[t]he judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law" [Art. VIII, Sec. 1]. These provisions not only establish a separation of powers by
actual division but also confer plenary legislative, executive and judicial powers subject only to
limitations provided in the Constitution. For as the Supreme Court in Ocampo v. Cabangis pointed
out "a grant of the legislative power means a grant of all legislative power; and a grant of the judicial
power means a grant of all the judicial power which may be exercised under the government."
The Court could not have been more explicit then on the plenary grant and exercise of judicial
power. Plainly, the abstraction of the Supreme Court acting as a Presidential Electoral Tribunal from
the unequivocal grant of jurisdiction in the last paragraph of Section 4, Article VII of the Constitution
is sound and tenable.
The mirabile dictu of the grant of jurisdiction to this Court, albeit found in the Article on the executive
branch of government, and the constitution of the PET, is evident in the discussions of the
Constitutional Commission. On the exercise of this Court’s judicial power as sole judge of
presidential and vice-presidential election contests, and to promulgate its rules for this purpose, we
find the proceedings in the Constitutional Commission most instructive:
MR. DAVIDE. On line 25, after the words "Vice-President," I propose to add AND MAY
PROMULGATE ITS RULES FOR THE PURPOSE. This refers to the Supreme Court sitting en banc.
This is also to confer on the Supreme Court exclusive authority to enact the necessary rules while
acting as sole judge of all contests relating to the election, returns and qualifications of the President
or Vice-President.
MR. REGALADO. My personal position is that the rule-making power of the Supreme Court with
respect to its internal procedure is already implicit under the Article on the Judiciary; considering,
however, that according to the Commissioner, the purpose of this is to indicate the sole power of the
Supreme Court without intervention by the legislature in the promulgation of its rules on this
particular point, I think I will personally recommend its acceptance to the Committee.26
xxxx
MR. NOLLEDO. x x x.
With respect to Sections 10 and 11 on page 8, I understand that the Committee has also created an
Electoral Tribunal in the Senate and a Commission on Appointments which may cover membership
from both Houses. But my question is: It seems to me that the committee report does not indicate
which body should promulgate the rules that shall govern the Electoral Tribunal and the Commission
on Appointments. Who shall then promulgate the rules of these bodies?
MR. DAVIDE. The Electoral Tribunal itself will establish and promulgate its rules because it is a body
distinct and independent already from the House, and so with the Commission on Appointments
also. It will have the authority to promulgate its own rules.27
On another point of discussion relative to the grant of judicial power, but equally cogent, we listen to
former Chief Justice Roberto Concepcion:
MR. SUAREZ. Thank you.
Would the Commissioner not consider that violative of the doctrine of separation of powers?
MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between two
parties. This is a judicial power.
MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the right to declare
who will be the President of our country, which to me is a political action.
MR. CONCEPCION. There are legal rights which are enforceable under the law, and these are
essentially justiciable questions.
MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically all the
time of the Supreme Court sitting en banc would be occupied with it considering that they will be
going over millions and millions of ballots or election returns, Madam President.28
Echoing the same sentiment and affirming the grant of judicial power to the Supreme Court, Justice
Florenz D. Regalado29 and Fr. Joaquin Bernas30 both opined:
MR. VILLACORTA. Thank you very much, Madam President.
I am not sure whether Commissioner Suarez has expressed his point. On page 2, the fourth
paragraph of Section 4 provides:
The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election,
returns and qualifications of the President or Vice-President.
May I seek clarification as to whether or not the matter of determining the outcome of the contests
relating to the election returns and qualifications of the President or Vice-President is purely a
political matter and, therefore, should not be left entirely to the judiciary. Will the above-quoted
provision not impinge on the doctrine of separation of powers between the executive and the judicial
departments of the government?
MR. REGALADO. No, I really do not feel that would be a problem. This is a new provision
incidentally. It was not in the 1935 Constitution nor in the 1973 Constitution.
MR. VILLACORTA. That is right.
MR. REGALADO. We feel that it will not be an intrusion into the separation of powers guaranteed to
the judiciary because this is strictly an adversarial and judicial proceeding.
MR. VILLACORTA. May I know the rationale of the Committee because this supersedes Republic
Act 7950 which provides for the Presidential Electoral Tribunal?
FR. BERNAS. Precisely, this is necessary. Election contests are, by their nature, judicial. Therefore,
they are cognizable only by courts. If, for instance, we did not have a constitutional provision on an
electoral tribunal for the Senate or an electoral tribunal for the House, normally, as composed, that
cannot be given jurisdiction over contests.
So, the background of this is really the case of Roxas v. Lopez. The Gentleman will remember that
in that election, Lopez was declared winner. He filed a protest before the Supreme Court because
there was a republic act which created the Supreme Court as the Presidential Electoral Tribunal.
The question in this case was whether new powers could be given the Supreme Court by law. In
effect, the conflict was actually whether there was an attempt to create two Supreme Courts and the
answer of the Supreme Court was: "No, this did not involve the creation of two Supreme Courts, but
precisely we are giving new jurisdiction to the Supreme Court, as it is allowed by the Constitution.
Congress may allocate various jurisdictions."
Before the passage of that republic act, in case there was any contest between two presidential
candidates or two vice-presidential candidates, no one had jurisdiction over it. So, it became
necessary to create a Presidential Electoral Tribunal. What we have done is to constitutionalize what
was statutory but it is not an infringement on the separation of powers because the power being
given to the Supreme Court is a judicial power.31
Unmistakable from the foregoing is that the exercise of our power to judge presidential and vice-
presidential election contests, as well as the rule-making power adjunct thereto, is plenary; it is not
as restrictive as petitioner would interpret it. In fact, former Chief Justice Hilario G. Davide, Jr., who
proposed the insertion of the phrase, intended the Supreme Court to exercise exclusive authority to
promulgate its rules of procedure for that purpose. To this, Justice Regalado forthwith assented and
then emphasized that the sole power ought to be without intervention by the legislative department.
Evidently, even the legislature cannot limit the judicial power to resolve presidential and vice-
presidential election contests and our rule-making power connected thereto.
To foreclose all arguments of petitioner, we reiterate that the establishment of the PET simply
constitutionalized what was statutory before the 1987 Constitution. The experiential context of the
PET in our country cannot be denied.32
Consequently, we find it imperative to trace the historical antecedents of the PET.
Article VII, Section 4, paragraph 7 of the 1987 Constitution is an innovation. The precursors of the
present Constitution did not contain similar provisions and instead vested upon the legislature all
phases of presidential and vice-presidential elections – from the canvassing of election returns, to
the proclamation of the president-elect and the vice-president elect, and even the determination, by
ordinary legislation, of whether such proclamations may be contested. Unless the legislature
enacted a law creating an institution that would hear election contests in the Presidential and Vice-
Presidential race, a defeated candidate had no legal right to demand a recount of the votes cast for
the office involved or to challenge the ineligibility of the proclaimed candidate. Effectively,
presidential and vice-presidential contests were non-justiciable in the then prevailing milieu.
The omission in the 1935 Constitution was intentional. It was mainly influenced by the absence of a
similar provision in its pattern, the Federal Constitution of the United States. Rather, the creation of
such tribunal was left to the determination of the National Assembly. The journal of the 1935
Constitutional Convention is crystal clear on this point:
Delegate Saguin. – For an information. It seems that this Constitution does not contain any provision
with respect to the entity or body which will look into the protests for the positions of the President
and Vice-President.
President Recto. – Neither does the American constitution contain a provision over the subject.
Delegate Saguin. – But then, who will decide these protests?
President Recto. – I suppose that the National Assembly will decide on that.33
To fill the void in the 1935 Constitution, the National Assembly enacted R.A. No. 1793, establishing
an independent PET to try, hear, and decide protests contesting the election of President and Vice-
President. The Chief Justice and the Associate Justices of the Supreme Court were tasked to sit as
its Chairman and Members, respectively. Its composition was extended to retired Supreme Court
Justices and incumbent Court of Appeals Justices who may be appointed as substitutes for ill,
absent, or temporarily incapacitated regular members.
The eleven-member tribunal was empowered to promulgate rules for the conduct of its proceedings.
It was mandated to sit en banc in deciding presidential and vice-presidential contests and authorized
to exercise powers similar to those conferred upon courts of justice, including the issuance of
subpoena, taking of depositions, arrest of witnesses to compel their appearance, production of
documents and other evidence, and the power to punish contemptuous acts and bearings. The
tribunal was assigned a Clerk, subordinate officers, and employees necessary for the efficient
performance of its functions.
R.A. No. 1793 was implicitly repealed and superseded by the 1973 Constitution which replaced the
bicameral legislature under the 1935 Constitution with the unicameral body of a parliamentary
government.
With the 1973 Constitution, a PET was rendered irrelevant, considering that the President was not
directly chosen by the people but elected from among the members of the National Assembly, while
the position of Vice-President was constitutionally non-existent.
In 1981, several modifications were introduced to the parliamentary system. Executive power was
restored to the President who was elected directly by the people. An Executive Committee was
formed to assist the President in the performance of his functions and duties. Eventually, the
Executive Committee was abolished and the Office of Vice-President was installed anew.
These changes prompted the National Assembly to revive the PET by enacting, on December 3,
1985, Batas Pambansa Bilang (B.P. Blg.) 884, entitled "An Act Constituting an Independent
Presidential Electoral Tribunal to Try, Hear and Decide Election Contests in the Office of the
President and Vice-President of the Philippines, Appropriating Funds Therefor and For Other
Purposes." This tribunal was composed of nine members, three of whom were the Chief Justice of
the Supreme Court and two Associate Justices designated by him, while the six were divided equally
between representatives of the majority and minority parties in the Batasang Pambansa.
Aside from the license to wield powers akin to those of a court of justice, the PET was permitted to
recommend the prosecution of persons, whether public officers or private individuals, who in its
opinion had participated in any irregularity connected with the canvassing and/or accomplishing of
election returns.
The independence of the tribunal was highlighted by a provision allocating a specific budget from the
national treasury or Special Activities Fund for its operational expenses. It was empowered to
appoint its own clerk in accordance with its rules. However, the subordinate officers were strictly
employees of the judiciary or other officers of the government who were merely designated to the
tribunal.
After the historic People Power Revolution that ended the martial law era and installed Corazon
Aquino as President, civil liberties were restored and a new constitution was formed.
With R.A. No. 1793 as framework, the 1986 Constitutional Commission transformed the then
statutory PET into a constitutional institution, albeit without its traditional nomenclature:
FR. BERNAS. x x x.
x x x. So it became necessary to create a Presidential Electoral Tribunal. What we have done is to

constitutionalize what was statutory but it is not an infringement on the separation of powers
because the power being given to the Supreme Court is a judicial power.34
Clearly, petitioner’s bete noire of the PET and the exercise of its power are unwarranted. His
arguments that: (1) the Chief Justice and Associate Justices are referred to as "Chairman" and
"Members," respectively; (2) the PET uses a different seal; (3) the Chairman is authorized to appoint
personnel; and (4) additional compensation is allocated to the "Members," in order to bolster his
claim of infirmity in the establishment of the PET, are too superficial to merit further attention by the
Court.
Be that as it may, we hasten to clarify the structure of the PET as a legitimate progeny of Section 4,
Article VII of the Constitution, composed of members of the Supreme Court, sitting en banc. The
following exchange in the 1986 Constitutional Commission should provide enlightenment:
MR. SUAREZ. Thank you. Let me proceed to line 23, page 2, wherein it is provided, and I quote:
The Supreme Court, sitting en banc[,] shall be the sole judge of all contests relating to the election,
returns and qualifications of the President or Vice-President.
Are we not giving enormous work to the Supreme Court especially when it is directed to sit en banc
as the sole judge of all presidential and vice-presidential election contests?
MR. SUMULONG. That question will be referred to Commissioner Concepcion.
MR. CONCEPCION. This function was discharged by the Supreme Court twice and the Supreme
Court was able to dispose of each case in a period of one year as provided by law. Of course, that
was probably during the late 1960s and early 1970s. I do not know how the present Supreme Court
would react to such circumstances, but there is also the question of who else would hear the election
protests.
MR. SUAREZ. We are asking this question because between lines 23 to 25, there are no rules
provided for the hearings and there is not time limit or duration for the election contest to be decided
by the Supreme Court. Also, we will have to consider the historical background that when R.A. 1793,
which organized the Presidential Electoral Tribunal, was promulgated on June 21, 1957, at least
three famous election contests were presented and two of them ended up in withdrawal by the
protestants out of sheer frustration because of the delay in the resolution of the cases. I am referring
to the electoral protest that was lodged by former President Carlos P. Garcia against our "kabalen"
former President Diosdado Macapagal in 1961 and the vice-presidential election contest filed by the
late Senator Gerardo Roxas against Vice-President Fernando Lopez in 1965.
MR. CONCEPCION. I cannot answer for what the protestants had in mind. But when that protest of
Senator Roxas was withdrawn, the results were already available. Senator Roxas did not want to
have a decision adverse to him. The votes were being counted already, and he did not get what he
expected so rather than have a decision adverse to his protest, he withdrew the case.
xxxx
MR. SUAREZ. I see. So the Commission would not have any objection to vesting in the Supreme
Court this matter of resolving presidential and vice-presidential contests?
MR. CONCEPCION. Personally, I would not have any objection.
MR. SUAREZ. Thank you.
Would the Commissioner not consider that violative of the doctrine of separation of powers?
MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between two
parties. This is a judicial power.
MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the right to declare
who will be the President of our country, which to me is a political action.
MR. CONCEPCION. There are legal rights which are enforceable under the law, and these are
essentially justiciable questions.
MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically all the
time of the Supreme Court sitting en banc would be occupied with it considering that they will be
going over millions and millions of ballots or election returns, Madam President.
MR. CONCEPCION. The time consumed or to be consumed in this contest for President is
dependent upon they key number of teams of revisors. I have no experience insofar as contests in
other offices are concerned.
MR. SUAREZ. Although there is a requirement here that the Supreme Court is mandated to sit en
banc?
MR. CONCEPCION. Yes.
MR. SUAREZ. I see.
MR. CONCEPCION. The steps involved in this contest are: First, the ballot boxes are opened before
teams of three, generally, a representative each of the court, of the protestant and of the "protestee."
It is all a questions of how many teams are organized. Of course, that can be expensive, but it would
be expensive whatever court one would choose. There were times that the Supreme Court, with
sometimes 50 teams at the same time working, would classify the objections, the kind of problems,
and the court would only go over the objected votes on which the parties could not agree. So it is not
as awesome as it would appear insofar as the Court is concerned. What is awesome is the cost of
the revision of the ballots because each party would have to appoint one representative for every
team, and that may take quite a big amount.
MR. SUAREZ. If we draw from the Commissioner’s experience which he is sharing with us, what
would be the reasonable period for the election contest to be decided?
MR. CONCEPCION. Insofar as the Supreme Court is concerned, the Supreme Court always
manages to dispose of the case in one year.
MR. SUAREZ. In one year. Thank you for the clarification.35

Obvious from the foregoing is the intent to bestow independence to the Supreme Court as the PET,
to undertake the Herculean task of deciding election protests involving presidential and vice-
presidential candidates in accordance with the process outlined by former Chief Justice Roberto
Concepcion. It was made in response to the concern aired by delegate Jose E. Suarez that the
additional duty may prove too burdensome for the Supreme Court. This explicit grant of
independence and of the plenary powers needed to discharge this burden justifies the budget
allocation of the PET.
The conferment of additional jurisdiction to the Supreme Court, with the duty characterized as an
"awesome" task, includes the means necessary to carry it into effect under the doctrine of necessary
implication.36 We cannot overemphasize that the abstraction of the PET from the explicit grant of
power to the Supreme Court, given our abundant experience, is not unwarranted.
A plain reading of Article VII, Section 4, paragraph 7, readily reveals a grant of authority to the
Supreme Court sitting en banc. In the same vein, although the method by which the Supreme Court
exercises this authority is not specified in the provision, the grant of power does not contain any
limitation on the Supreme Court’s exercise thereof. The Supreme Court’s method of deciding
presidential and vice-presidential election contests, through the PET, is actually a derivative of the
exercise of the prerogative conferred by the aforequoted constitutional provision. Thus, the
subsequent directive in the provision for the Supreme Court to "promulgate its rules for the purpose."
The conferment of full authority to the Supreme Court, as a PET, is equivalent to the full authority
conferred upon the electoral tribunals of the Senate and the House of Representatives, i.e., the
Senate Electoral Tribunal (SET) and the House of Representatives Electoral Tribunal
(HRET),37 which we have affirmed on numerous occasions.38
Particularly cogent are the discussions of the Constitutional Commission on the parallel provisions of
the SET and the HRET. The discussions point to the inevitable conclusion that the different electoral
tribunals, with the Supreme Court functioning as the PET, are constitutional bodies, independent of
the three departments of government – Executive, Legislative, and Judiciary – but not separate
therefrom.
MR. MAAMBONG. x x x.
My questions will be very basic so we can go as fast as we can. In the case of the electoral tribunal,
either of the House or of the Senate, is it correct to say that these tribunals are constitutional
creations? I will distinguish these with the case of the Tanodbayan and the Sandiganbayan which
are created by mandate of the Constitution but they are not constitutional creations. Is that a good
distinction?
xxxx
MR. MAAMBONG. Could we, therefore, say that either the Senate Electoral Tribunal or the House
Electoral Tribunal is a constitutional body?
MR. AZCUNA. It is, Madam President.
MR. MAAMBONG. If it is a constitutional body, is it then subject to constitutional restrictions?
MR. AZCUNA. It would be subject to constitutional restrictions intended for that body.
MR. MAAMBONG. I see. But I want to find out if the ruling in the case of Vera v. Avelino, 77 Phil.
192, will still be applicable to the present bodies we are creating since it ruled that the electoral
tribunals are not separate departments of the government. Would that ruling still be valid?
MR. AZCUNA. Yes, they are not separate departments because the separate departments are the
legislative, the executive and the judiciary; but they are constitutional bodies.39
The view taken by Justices Adolfo S. Azcuna40 and Regalado E. Maambong41 is schooled by our
holding in Lopez v. Roxas, et al.:42
Section 1 of Republic Act No. 1793, which provides that:
"There shall be an independent Presidential Electoral Tribunal x x x which shall be the sole judge of
all contests relating to the election, returns, and qualifications of the president-elect and the vice-
president-elect of the Philippines."
has the effect of giving said defeated candidate the legal right to contest judicially the election of the
President-elect of Vice-President-elect and to demand a recount of the votes case for the office
involved in the litigation, as well as to secure a judgment declaring that he is the one elected
president or vice-president, as the case may be, and that, as such, he is entitled to assume the
duties attached to said office. And by providing, further, that the Presidential Electoral Tribunal "shall
be composed of the Chief Justice and the other ten Members of the Supreme Court," said legislation
has conferred upon such Court an additional original jurisdiction of an exclusive character.
Republic Act No. 1793 has not created a new or separate court. It has merely conferred upon the
Supreme Court the functions of a Presidential Electoral Tribunal. The result of the enactment may be
likened to the fact that courts of first instance perform the functions of such ordinary courts of first
instance, those of court of land registration, those of probate courts, and those of courts of juvenile
and domestic relations. It is, also, comparable to the situation obtaining when the municipal court of
a provincial capital exercises its authority, pursuant to law, over a limited number of cases which
were previously within the exclusive jurisdiction of courts of first instance.
In all of these instances, the court (court of first instance or municipal court) is only one, although the
functions may be distinct and, even, separate. Thus the powers of a court of first instance, in the
exercise of its jurisdiction over ordinary civil cases, are broader than, as well as distinct and separate
from, those of the same court acting as a court of land registration or a probate court, or as a court of
juvenile and domestic relations. So too, the authority of the municipal court of a provincial capital,
when acting as such municipal court, is, territorially more limited than that of the same court when
hearing the aforementioned cases which are primary within the jurisdiction of courts of first instance.
In other words, there is only one court, although it may perform the functions pertaining to several
types of courts, each having some characteristics different from those of the others.
Indeed, the Supreme Court, the Court of Appeals and courts of first instance, are vested with original
jurisdiction, as well as with appellate jurisdiction, in consequence of which they are both trial courts
and, appellate courts, without detracting from the fact that there is only one Supreme Court, one
Court of Appeals, and one court of first instance, clothed with authority to discharge said dual
functions. A court of first instance, when performing the functions of a probate court or a court of
land registration, or a court of juvenile and domestic relations, although with powers less broad than
those of a court of first instance, hearing ordinary actions, is not inferior to the latter, for one cannot
be inferior to itself. So too, the Presidential Electoral Tribunal is not inferior to the Supreme Court,
since it is the same Court although the functions peculiar to said Tribunal are more limited in scope
than those of the Supreme Court in the exercise of its ordinary functions. Hence, the enactment of
Republic Act No. 1793, does not entail an assumption by Congress of the power of appointment
vested by the Constitution in the President. It merely connotes the imposition of additional duties
upon the Members of the Supreme Court.
By the same token, the PET is not a separate and distinct entity from the Supreme Court, albeit it
has functions peculiar only to the Tribunal. It is obvious that the PET was constituted in
implementation of Section 4, Article VII of the Constitution, and it faithfully complies – not unlawfully
defies – the constitutional directive. The adoption of a separate seal, as well as the change in the
nomenclature of the Chief Justice and the Associate Justices into Chairman and Members of the
Tribunal, respectively, was designed simply to highlight the singularity and exclusivity of the
Tribunal’s functions as a special electoral court.
As regards petitioner’s claim that the PET exercises quasi-judicial functions in contravention of
Section 12, Article VIII of the Constitution, we point out that the issue in Buac v.
COMELEC43 involved the characterization of the enforcement and administration of a law relative to
the conduct of a plebiscite which falls under the jurisdiction of the Commission on Elections.
However, petitioner latches on to the enumeration in Buac which declared, in an obiter, that
"contests involving the President and the Vice-President fall within the exclusive original jurisdiction
of the PET, also in the exercise of quasi-judicial power."
The issue raised by petitioner is more imagined than real. Section 12, Article VIII of the Constitution
reads:
SEC. 12. The Members of the Supreme Court and of other courts established by law shall not be
designated to any agency performing quasi-judicial or administrative functions.
The traditional grant of judicial power is found in Section 1, Article VIII of the Constitution which
provides that the power "shall be vested in one Supreme Court and in such lower courts as may be
established by law." Consistent with our presidential system of government, the function of "dealing
with the settlement of disputes, controversies or conflicts involving rights, duties or prerogatives that
are legally demandable and enforceable" 44 is apportioned to courts of justice. With the advent of the
1987 Constitution, judicial power was expanded to include "the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government."45 The power was
expanded, but it remained absolute.
The set up embodied in the Constitution and statutes characterizes the resolution of electoral
contests as essentially an exercise of judicial power. 1av v phi 1
At the barangay and municipal levels, original and exclusive jurisdiction over election contests is
vested in the municipal or metropolitan trial courts and the regional trial courts, respectively.
At the higher levels – city, provincial, and regional, as well as congressional and senatorial –
exclusive and original jurisdiction is lodged in the COMELEC and in the House of Representatives
and Senate Electoral Tribunals, which are not, strictly and literally speaking, courts of law. Although
not courts of law, they are, nonetheless, empowered to resolve election contests which involve, in
essence, an exercise of judicial power, because of the explicit constitutional empowerment found in
Section 2(2), Article IX-C (for the COMELEC) and Section 17, Article VI (for the Senate and House
Electoral Tribunals) of the Constitution. Besides, when the COMELEC, the HRET, and the SET
decide election contests, their decisions are still subject to judicial review – via a petition for certiorari
filed by the proper party – if there is a showing that the decision was rendered with grave abuse of
discretion tantamount to lack or excess of jurisdiction.46
It is also beyond cavil that when the Supreme Court, as PET, resolves a presidential or vice-
presidential election contest, it performs what is essentially a judicial power. In the landmark case of
Angara v. Electoral Commission,47Justice Jose P. Laurel enucleated that "it would be inconceivable if
the Constitution had not provided for a mechanism by which to direct the course of government
along constitutional channels." In fact, Angara pointed out that "[t]he Constitution is a definition of the
powers of government." And yet, at that time, the 1935 Constitution did not contain the expanded
definition of judicial power found in Article VIII, Section 1, paragraph 2 of the present Constitution.
With the explicit provision, the present Constitution has allocated to the Supreme Court, in
conjunction with latter’s exercise of judicial power inherent in all courts,48 the task of deciding
presidential and vice-presidential election contests, with full authority in the exercise thereof. The
power wielded by PET is a derivative of the plenary judicial power allocated to courts of law,
expressly provided in the Constitution. On the whole, the Constitution draws a thin, but,
nevertheless, distinct line between the PET and the Supreme Court.
If the logic of petitioner is to be followed, all Members of the Court, sitting in the Senate and House
Electoral Tribunals would violate the constitutional proscription found in Section 12, Article VIII.
Surely, the petitioner will be among the first to acknowledge that this is not so. The Constitution
which, in Section 17, Article VI, explicitly provides that three Supreme Court Justices shall sit in the
Senate and House Electoral Tribunals, respectively, effectively exempts the Justices-Members
thereof from the prohibition in Section 12, Article VIII. In the same vein, it is the Constitution itself, in
Section 4, Article VII, which exempts the Members of the Court, constituting the PET, from the same
prohibition.
We have previously declared that the PET is not simply an agency to which Members of the Court
were designated. Once again, the PET, as intended by the framers of the Constitution, is to be an
institution independent, but not separate, from the judicial department, i.e., the Supreme Court.
McCulloch v. State of Maryland49 proclaimed that "[a] power without the means to use it, is a nullity."
The vehicle for the exercise of this power, as intended by the Constitution and specifically mentioned
by the Constitutional Commissioners during the discussions on the grant of power to this Court, is
the PET. Thus, a microscopic view, like the petitioner’s, should not constrict an absolute and
constitutional grant of judicial power.
One final note. Although this Court has no control over contrary people and naysayers, we reiterate
a word of caution against the filing of baseless petitions which only clog the Court’s docket. The
petition in the instant case belongs to that classification.
WHEREFORE, the petition is DISMISSED. Costs against petitioner.
SO ORDERED.
56

SUPREME COURT
Manila
EN BANC
G.R. No. 176951 November 18, 2008
LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P.
TREÑAS, CITY OF ILOILO represented by MAYOR JERRY P. TREÑAS, CITY OF CALBAYOG
represented by MAYOR MEL SENEN S. SARMIENTO, and JERRY P. TREÑAS in his personal
capacity as taxpayer, petitioners,
vs.
COMMISSION ON ELECTIONS; MUNICIPALITY OF BAYBAY, PROVINCE OF LEYTE;
MUNICIPALITY OF BOGO, PROVINCE OF CEBU; MUNICIPALITY OF CATBALOGAN, PROVINCE
OF WESTERN SAMAR; MUNICIPALITY OF TANDAG, PROVINCE OF SURIGAO DEL SUR;
MUNICIPALITY OF BORONGAN, PROVINCE OF EASTERN SAMAR; and MUNICIPALITY OF
TAYABAS, PROVINCE OF QUEZON, respondents.
CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY
OF TAGAYTAY, CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL
SANTOS, CITY OF ZAMBOANGA, CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN,
CITY OF SAN CARLOS, CITY OF SAN FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY
OF OROQUIETA, CITY OF URDANETA, CITY OF VICTORIAS, CITY OF CALAPAN, CITY OF
HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ, and CITY OF
TAGUM,petitioners-in-intervention.
x-----------------------------x
G.R. No. 177499 November 18, 2008
capacity as taxpayer, petitioners,
vs.
COMMISSION ON ELECTIONS; MUNICIPALITY OF LAMITAN, PROVINCE OF BASILAN;
MUNICIPALITY OF TABUK, PROVINCE OF KALINGA; MUNICIPALITY OF BAYUGAN, PROVINCE
OF AGUSAN DEL SUR; MUNICIPALITY OF BATAC, PROVINCE OF ILOCOS NORTE;
MUNICIPALITY OF MATI, PROVINCE OF DAVAO ORIENTAL; and MUNICIPALITY OF
GUIHULNGAN, PROVINCE OF NEGROS ORIENTAL, respondents.
x - - - - - - - - - - - - - - - - - - - - - - - - - - --x
G.R. No. 178056 November 18, 2008
capacity as taxpayer, petitioners
vs.
COMMISSION ON ELECTIONS; MUNICIPALITY OF CABADBARAN, PROVINCE OF AGUSAN DEL
NORTE; MUNICIPALITY OF CARCAR, PROVINCE OF CEBU; and MUNICIPALITY OF EL
SALVADOR, MISAMIS ORIENTAL,respondents.
DECISION
CARPIO, J.:
The Case
These are consolidated petitions for prohibition1 with prayer for the issuance of a writ of preliminary
injunction or temporary restraining order filed by the League of Cities of the Philippines, City of Iloilo, City
of Calbayog, and Jerry P. Treñas2 assailing the constitutionality of the subject Cityhood Laws and
enjoining the Commission on Elections (COMELEC) and respondent municipalities from conducting
plebiscites pursuant to the Cityhood Laws.
The Facts
During the 11th Congress,3 Congress enacted into law 33 bills converting 33 municipalities into cities.
However, Congress did not act on bills converting 24 other municipalities into cities.
During the 12th Congress,4 Congress enacted into law Republic Act No. 9009 (RA 9009),5 which took
effect on 30 June 2001. RA 9009 amended Section 450 of the Local Government Code by increasing the
annual income requirement for conversion of a municipality into a city from P20 million to P100 million.
The rationale for the amendment was to restrain, in the words of Senator Aquilino Pimentel, "the mad
rush" of municipalities to convert into cities solely to secure a larger share in the Internal Revenue
Allotment despite the fact that they are incapable of fiscal independence. 6
After the effectivity of RA 9009, the House of Representatives of the 12th Congress7 adopted Joint
Resolution No. 29,8which sought to exempt from the P100 million income requirement in RA 9009 the 24
municipalities whose cityhood bills were not approved in the 11th Congress. However, the 12th Congress
ended without the Senate approving Joint Resolution No. 29.
During the 13th Congress,9 the House of Representatives re-adopted Joint Resolution No. 29 as Joint
Resolution No. 1 and forwarded it to the Senate for approval. However, the Senate again failed to
approve the Joint Resolution. Following the advice of Senator Aquilino Pimentel, 16 municipalities filed,
through their respective sponsors, individual cityhood bills. The 16 cityhood bills contained a common
provision exempting all the 16 municipalities from the P100 million income requirement in RA 9009.
On 22 December 2006, the House of Representatives approved the cityhood bills. The Senate also
approved the cityhood bills in February 2007, except that of Naga, Cebu which was passed on 7 June
2007. The cityhood bills lapsed into law (Cityhood Laws 10) on various dates from March to July 2007
without the President's signature.11
The Cityhood Laws direct the COMELEC to hold plebiscites to determine whether the voters in each
respondent municipality approve of the conversion of their municipality into a city.
Petitioners filed the present petitions to declare the Cityhood Laws unconstitutional for violation of Section
10, Article X of the Constitution, as well as for violation of the equal protection clause. 12 Petitioners also
lament that the wholesale conversion of municipalities into cities will reduce the share of existing cities in
the Internal Revenue Allotment because more cities will share the same amount of internal revenue set
aside for all cities under Section 285 of the Local Government Code.13
The Issues
The petitions raise the following fundamental issues:
1. Whether the Cityhood Laws violate Section 10, Article X of the Constitution; and
2. Whether the Cityhood Laws violate the equal protection clause.
The Ruling of the Court
We grant the petitions.
The Cityhood Laws violate Sections 6 and 10, Article X of the Constitution, and are thus unconstitutional.
First, applying the P100 million income requirement in RA 9009 to the present case is a prospective, not a
retroactive application, because RA 9009 took effect in 2001 while the cityhood bills became law more
than five years later.
Second, the Constitution requires that Congress shall prescribe all the criteria for the creation of a city in
the Local Government Code and not in any other law, including the Cityhood Laws.
Third, the Cityhood Laws violate Section 6, Article X of the Constitution because they prevent a fair and
just distribution of the national taxes to local government units.
Fourth, the criteria prescribed in Section 450 of the Local Government Code, as amended by RA 9009,
for converting a municipality into a city are clear, plain and unambiguous, needing no resort to any
statutory construction.
Fifth, the intent of members of the 11th Congress to exempt certain municipalities from the coverage of RA
9009 remained an intent and was never written into Section 450 of the Local Government Code.
Sixth, the deliberations of the 11th or 12th Congress on unapproved bills or resolutions are not extrinsic
aids in interpreting a law passed in the 13th Congress.
Seventh, even if the exemption in the Cityhood Laws were written in Section 450 of the Local
Government Code, the exemption would still be unconstitutional for violation of the equal protection
clause.
Preliminary Matters
Prohibition is the proper action for testing the constitutionality of laws administered by the
COMELEC,14 like the Cityhood Laws, which direct the COMELEC to hold plebiscites in implementation of
the Cityhood Laws. Petitioner League of Cities of the Philippines has legal standing because Section 499
of the Local Government Code tasks the League with the "primary purpose of ventilating, articulating and
crystallizing issues affecting city government administration and securing, through proper and legal
means, solutions thereto."15 Petitioners-in-intervention,16 which are existing cities, have legal standing
because their Internal Revenue Allotment will be reduced if the Cityhood Laws are declared
constitutional. Mayor Jerry P. Treñas has legal standing because as Mayor of Iloilo City and as a taxpayer
he has sufficient interest to prevent the unlawful expenditure of public funds, like the release of more
Internal Revenue Allotment to political units than what the law allows.
Applying RA 9009 is a Prospective Application of the Law
RA 9009 became effective on 30 June 2001 during the 11th Congress. This law specifically amended
Section 450 of the Local Government Code, which now provides:
Section 450. Requisites for Creation. – (a) A municipality or a cluster of barangays may be
converted into a component city if it has a locally generated average annual income, as
certified by the Department of Finance, of at least One hundred million pesos
(P100,000,000.00) for the last two (2) consecutive years based on 2000 constant prices, and
if it has either of the following requisites:
(i) a contiguous territory of at least one hundred (100) square kilometers, as certified by
the Land Management Bureau; or
(ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as
certified by the National Statistics Office.
The creation thereof shall not reduce the land area, population and income of the original unit or
units at the time of said creation to less than the minimum requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and
bounds. The requirement on land area shall not apply where the city proposed to be created is
composed of one (1) or more islands. The territory need not be contiguous if it comprises two (2)
or more islands.
(c) The average annual income shall include the income accruing to the general fund, exclusive
of special funds, transfers, and non-recurring income. (Emphasis supplied)
Thus, RA 9009 increased the income requirement for conversion of a municipality into a city from P20
million to P100 million. Section 450 of the Local Government Code, as amended by RA 9009, does not
provide any exemption from the increased income requirement.
Prior to the enactment of RA 9009, a total of 57 municipalities had cityhood bills pending in Congress.
Thirty-three cityhood bills became law before the enactment of RA 9009. Congress did not act on 24
cityhood bills during the 11th Congress.
During the 12th Congress, the House of Representatives adopted Joint Resolution No. 29, exempting from
the income requirement of P100 million in RA 9009 the 24 municipalities whose cityhood bills were not
acted upon during the 11thCongress. This Resolution reached the Senate. However, the 12th Congress
adjourned without the Senate approving Joint Resolution No. 29.
During the 13th Congress, 16 of the 24 municipalities mentioned in the unapproved Joint Resolution No.
29 filed between November and December of 2006, through their respective sponsors in Congress,
individual cityhood bills containing a common provision, as follows:
Exemption from Republic Act No. 9009. - The City of x x x shall be exempted from the income
requirement prescribed under Republic Act No. 9009.
This common provision exempted each of the 16 municipalities from the income requirement
of P100 million prescribed in Section 450 of the Local Government Code, as amended by RA 9009.
These cityhood bills lapsed into law on various dates from March to July 2007 after President Gloria
Macapagal-Arroyo failed to sign them.
Indisputably, Congress passed the Cityhood Laws long after the effectivity of RA 9009. RA 9009 became
effective on 30 June 2001 or during the 11th Congress. The 13th Congress passed in December
2006 the cityhood bills which became law only in 2007. Thus, respondent municipalities cannot invoke
the principle of non-retroactivity of laws.17 This basic rule has no application because RA 9009, an earlier
law to the Cityhood Laws, is not being applied retroactively but prospectively.
Congress Must Prescribe in the Local Government Code All Criteria
Section 10, Article X of the 1987 Constitution provides:
No province, city, municipality, or barangay shall be created, divided, merged, abolished or its
boundary substantially altered, except in accordance with the criteria established in the local
government code and subject to approval by a majority of the votes cast in a plebiscite in the
political units directly affected. (Emphasis supplied)
The Constitution is clear. The creation of local government units must follow the criteria established in
the Local Government Code and not in any other law. There is only one Local Government Code.18 The
Constitution requires Congress to stipulate in the Local Government Code all the criteria necessary for
the creation of a city, including the conversion of a municipality into a city. Congress cannot write such
criteria in any other law, like the Cityhood Laws.
The criteria prescribed in the Local Government Code govern exclusively the creation of a city. No other
law, not even the charter of the city, can govern such creation. The clear intent of the Constitution is to
insure that the creation of cities and other political units must follow the same uniform, non-
discriminatory criteria found solely in the Local Government Code. Any derogation or deviation from
the criteria prescribed in the Local Government Code violates Section 10, Article X of the Constitution.
RA 9009 amended Section 450 of the Local Government Code to increase the income requirement
from P20 million to P100 million for the creation of a city. This took effect on 30 June 2001. Hence,
from that moment the Local Government Code required that any municipality desiring to become
a city must satisfy the P100 million income requirement. Section 450 of the Local Government Code,
as amended by RA 9009, does not contain any exemption from this income requirement.
In enacting RA 9009, Congress did not grant any exemption to respondent municipalities, even though
their cityhood bills were pending in Congress when Congress passed RA 9009. The Cityhood Laws, all
enacted after the effectivity of RA 9009, explicitly exempt respondent municipalities from the increased
income requirement in Section 450 of the Local Government Code, as amended by RA 9009. Such
exemption clearly violates Section 10, Article X of the Constitution and is thus patently
unconstitutional. To be valid, such exemption must be written in the Local Government Code and
not in any other law, including the Cityhood Laws.
Cityhood Laws Violate Section 6, Article X of the Constitution
Uniform and non-discriminatory criteria as prescribed in the Local Government Code are essential to
implement a fair and equitable distribution of national taxes to all local government units. Section 6,
Article X of the Constitution provides:
Local government units shall have a just share, as determined by law, in the national taxes
which shall be automatically released to them. (Emphasis supplied)
If the criteria in creating local government units are not uniform and discriminatory, there can be no fair
and just distribution of the national taxes to local government units.
A city with an annual income of only P20 million, all other criteria being equal, should not receive the
same share in national taxes as a city with an annual income of P100 million or more. The criteria of land
area, population and income, as prescribed in Section 450 of the Local Government Code, must be
strictly followed because such criteria, prescribed by law, are material in determining the "just share" of
local government units in national taxes. Since the Cityhood Laws do not follow the income criterion in
Section 450 of the Local Government Code, they prevent the fair and just distribution of the Internal
Revenue Allotment in violation of Section 6, Article X of the Constitution.
Section 450 of the Local Government Code is Clear,

Plain and Unambiguous
There can be no resort to extrinsic aids – like deliberations of Congress – if the language of the law is
plain, clear and unambiguous. Courts determine the intent of the law from the literal language of the law,
within the law's four corners.19 If the language of the law is plain, clear and unambiguous, courts simply
apply the law according to its express terms. If a literal application of the law results in absurdity,
impossibility or injustice, then courts may resort to extrinsic aids of statutory construction like the
legislative history of the law.20
Congress, in enacting RA 9009 to amend Section 450 of the Local Government Code, did not provide any
exemption from the increased income requirement, not even to respondent municipalities whose cityhood
bills were then pending when Congress passed RA 9009. Section 450 of the Local Government Code, as
amended by RA 9009, contains no exemption whatsoever. Since the law is clear, plain and unambiguous
that any municipality desiring to convert into a city must meet the increased income requirement, there is
no reason to go beyond the letter of the law in applying Section 450 of the Local Government Code, as
amended by RA 9009.
The 11th Congress' Intent was not Written into the Local Government Code
True, members of Congress discussed exempting respondent municipalities from RA 9009, as shown by
the various deliberations on the matter during the 11th Congress. However, Congress did not write this
intended exemption into law. Congress could have easily included such exemption in RA 9009 but
Congress did not. This is fatal to the cause of respondent municipalities because such exemption must
appear in RA 9009 as an amendment to Section 450 of the Local Government Code. The Constitution
requires that the criteria for the conversion of a municipality into a city, including any exemption from such
criteria, must all be written in the Local Government Code. Congress cannot prescribe such criteria or
exemption from such criteria in any other law. In short, Congress cannot create a city through a law
that does not comply with the criteria or exemption found in the Local Government Code.
Section 10 of Article X is similar to Section 16, Article XII of the Constitution prohibiting Congress from
creating private corporations except by a general law. Section 16 of Article XII provides:
The Congress shall not, except by general law, provide for the formation, organization, or
regulation of private corporations. Government-owned or controlled corporations may be
created or established by special charters in the interest of the common good and subject to the
test of economic viability. (Emphasis supplied)
Thus, Congress must prescribe all the criteria for the "formation, organization, or regulation" of private
corporations in a general law applicable to all without discrimination.21 Congress cannot create a
private corporation through a special law or charter.
Deliberations of the 11th Congress on Unapproved Bills Inapplicable

Congress is not a continuing body.22 The unapproved cityhood bills filed during the 11th Congress
became mere scraps of paper upon the adjournment of the 11th Congress. All the hearings and
deliberations conducted during the 11th Congress on unapproved bills also became worthless upon the
adjournment of the 11th Congress. These hearings and deliberations cannot be used to interpret bills
enacted into law in the 13th or subsequent Congresses.
The members and officers of each Congress are different. All unapproved bills filed in one Congress
become functus officioupon adjournment of that Congress and must be re-filed anew in order to be taken
up in the next Congress. When their respective authors re-filed the cityhood bills in 2006 during the
13th Congress, the bills had to start from square one again, going through the legislative mill just like bills
taken up for the first time, from the filing to the approval. Section 123, Rule XLIV of the Rules of the
Senate, on Unfinished Business, provides:
Sec. 123. x x x
All pending matters and proceedings shall terminate upon the expiration of one (1)
Congress, but may be taken by the succeeding Congress as if presented for the first time.
(Emphasis supplied)
Similarly, Section 78 of the Rules of the House of Representatives, on Unfinished Business, states:
Section 78. Calendar of Business. The Calendar of Business shall consist of the following:
a. Unfinished Business. This is business being considered by the House at the time of its
last adjournment. Its consideration shall be resumed until it is disposed of. The
Unfinished Business at the end of a session shall be resumed at the commencement of
the next session as if no adjournment has taken place. At the end of the term of a
Congress, all Unfinished Business are deemed terminated. (Emphasis supplied)
Thus, the deliberations during the 11th Congress on the unapproved cityhood bills, as well as the
deliberations during the 12th and 13th Congresses on the unapproved resolution exempting from RA 9009
certain municipalities, have no legal significance. They do not qualify as extrinsic aids in construing laws
passed by subsequent Congresses.
Applicability of Equal Protection Clause
If Section 450 of the Local Government Code, as amended by RA 9009, contained an exemption to
the P100 million annual income requirement, the criteria for such exemption could be scrutinized for
possible violation of the equal protection clause. Thus, the criteria for the exemption, if found in the Local
Government Code, could be assailed on the ground of absence of a valid classification. However, Section
450 of the Local Government Code, as amended by RA 9009, does not contain any exemption. The
exemption is contained in the Cityhood Laws, which are unconstitutional because such exemption must
be prescribed in the Local Government Code as mandated in Section 10, Article X of the Constitution.
Even if the exemption provision in the Cityhood Laws were written in Section 450 of the Local
Government Code, as amended by RA 9009, such exemption would still be unconstitutional for violation
of the equal protection clause. The exemption provision merely states, "Exemption from Republic Act
No. 9009 ─ The City of x x x shall be exempted from the income requirement prescribed under
Republic Act No. 9009." This one sentence exemption provision contains no classification standards or
guidelines differentiating the exempted municipalities from those that are not exempted.
Even if we take into account the deliberations in the 11th Congress that municipalities with pending
cityhood bills should be exempt from the P100 million income requirement, there is still no valid
classification to satisfy the equal protection clause. The exemption will be based solely on the fact that
the 16 municipalities had cityhood bills pending in the 11thCongress when RA 9009 was enacted.
This is not a valid classification between those entitled and those not entitled to exemption from the P100
million income requirement.
To be valid, the classification in the present case must be based on substantial distinctions, rationally
related to a legitimate government objective which is the purpose of the law,23 not limited to existing
conditions only, and applicable to all similarly situated. Thus, this Court has ruled:
The equal protection clause of the 1987 Constitution permits a valid classification under the
following conditions:
1. The classification must rest on substantial distinctions;
2. The classification must be germane to the purpose of the law;
3. The classification must not be limited to existing conditions only; and
4. The classification must apply equally to all members of the same class. 24
There is no substantial distinction between municipalities with pending cityhood bills in the 11 th Congress
and municipalities that did not have pending bills. The mere pendency of a cityhood bill in the
11th Congress is not a material difference to distinguish one municipality from another for the purpose of
the income requirement. The pendency of a cityhood bill in the 11th Congress does not affect or determine
the level of income of a municipality. Municipalities with pending cityhood bills in the 11 th Congress might
even have lower annual income than municipalities that did not have pending cityhood bills. In short, the
classification criterion − mere pendency of a cityhood bill in the 11 th Congress − is not rationally related to
the purpose of the law which is to prevent fiscally non-viable municipalities from converting into cities.
Municipalities that did not have pending cityhood bills were not informed that a pending cityhood bill in the
11th Congress would be a condition for exemption from the increased P100 million income requirement.
Had they been informed, many municipalities would have caused the filing of their own cityhood bills.
These municipalities, even if they have bigger annual income than the 16 respondent municipalities,
cannot now convert into cities if their income is less than P100 million.
The fact of pendency of a cityhood bill in the 11th Congress limits the exemption to a specific condition
existing at the time of passage of RA 9009. That specific condition will never happen again. This violates
the requirement that a valid classification must not be limited to existing conditions only. This requirement
is illustrated in Mayflower Farms, Inc. v. Ten Eyck,25 where the challenged law allowed milk dealers
engaged in business prior to a fixed date to sell at a price lower than that allowed to newcomers in the
same business. In Mayflower, the U.S. Supreme Court held:
We are referred to a host of decisions to the effect that a regulatory law may be prospective in
operation and may except from its sweep those presently engaged in the calling or activity to
which it is directed. Examples are statutes licensing physicians and dentists, which apply only to
those entering the profession subsequent to the passage of the act and exempt those then in
practice, or zoning laws which exempt existing buildings, or laws forbidding slaughterhouses
within certain areas, but excepting existing establishments. The challenged provision is unlike
such laws, since, on its face, it is not a regulation of a business or an activity in the
interest of, or for the protection of, the public, but an attempt to give an economic
advantage to those engaged in a given business at an arbitrary date as against all those
who enter the industry after that date. The appellees do not intimate that the classification
bears any relation to the public health or welfare generally; that the provision will discourage
monopoly; or that it was aimed at any abuse, cognizable by law, in the milk business. In the
absence of any such showing, we have no right to conjure up possible situations which might
justify the discrimination. The classification is arbitrary and unreasonable and denies the
appellant the equal protection of the law. (Emphasis supplied)
In the same vein, the exemption provision in the Cityhood Laws gives the 16 municipalities a unique
advantage based on an arbitrary date − the filing of their cityhood bills before the end of the
11th Congress - as against all other municipalities that want to convert into cities after the effectivity of RA
9009.
Furthermore, limiting the exemption only to the 16 municipalities violates the requirement that the
classification must apply to all similarly situated. Municipalities with the same income as the 16
respondent municipalities cannot convert into cities, while the 16 respondent municipalities can. Clearly,
as worded the exemption provision found in the Cityhood Laws, even if it were written in Section 450 of
the Local Government Code, would still be unconstitutional for violation of the equal protection clause.
WHEREFORE, we GRANT the petitions and declare UNCONSTITUTIONAL the Cityhood Laws, namely:
Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434,
9435, 9436, and 9491.
SO ORDERED.
57

SUPREME COURT
Manila
THIRD DIVISION
G.R. No.166923 November 26, 2014
PHILIPPINE MIGRANTS RIGHTS WATCH, INC., on its own behalf and on behalf of its
memberoverseas Filipino workers, JESUS REYES and RODOLFO MACOROL, Petitioners,
vs.
OVERSEAS WELFARE WORKERS ADMINISTRATION and its Board of Trustees composed of
HON. PA TRICIA A. STO. TOMAS, VIRGILIO R. ANGELO, MANUEL G. IMSON, The Secretary of
Foreign Affairs, represented by Undersecretary JOSE S. BRILLANTES, ROSALINDA BALDOZ,
The Secretary of Budget and Management, represented by Assistant Secretary EDUARDO P.
OPIDA, MINA C. FIGUEROA, VICTORINO F. BALAIS, CAROLINE R. ROGGE, GREGORIO S.
OCA, CORAZON P. CARSOLA and VIRGINIA J. PASALO,Respondents.
DECISION
PERALTA, J.:
Before the Court is a petition for review under Rule 45 of the Rules of Court seeking to reverse and
set aside the Orders dated August 31, 20041 and January 14, 20052 of the Regional Trial Court
(RTC) of Pasay City, Branch CXI (111), in Civil Case No. 04-0077 dismissing the same for lack of
jurisdiction.
The antecedent facts are as follows:

On September 19, 2003, respondent Overseas Workers Welfare Administration (OWWA) issued
Board Resolution No. 0383 entitled the OWWA Omnibus Policiesto provide guidelines on matters
concerning OWWA membership and its coverage, collection of contributions, and availment of
benefits.
On February 18, 2004, petitioners Philippine Migrants Rights Watch, Inc., on behalf of its member-
overseas Filipino workers, together with Jesus P. Reyes and Rodolfo B. Macorol, returned overseas
Filipino workers, filed a Complaint4 before the RTC of Pasay City seeking to annul the Omnibus
Policies, specifically Sections 4, 5, 6, 7, and 8 of Article II, Sections 5(C) (H) of Article III, and Articles
IV, V, VI, VII,VIII, the pertinent portions of which provide:
Article II
OWWA Mandate
xxxx
Section 7. Clientele. The clients of OWWA are its memberOFWs.
Article III
Organization and Management
xxxx
Section 5. Board Proceedings. The Board proceedings shall be guided by the following rules:
xxxx
c.) Attendance of Proxies. The Board members may designate their permanent alternate in writing
subject to the acceptance of the Board. The designated alternate shall have voting rights. His
decision shall be deemed the decision of his principal.
The Alternate cannot further delegate such representation. However, in the event that the member
and his permanent alternate are absent, any representative sent shall be on observer status.
xxxx
h.) Records Management and Archiving of Board Documents. The Board Secretary shall ensure a
thorough recording of all proceedings during a Board meeting. The minutes of the previous meeting
shall be made available for approval during the scheduled Board Meeting. The Minutes of the
Meeting shall basically contain the attendance, business arising from the minutes, major agreements
reached, corresponding resolutions, and other items noted or discussed, and instructions issued by
the Board. All minutes, tapes, and other documents pertaining to the business of the Board shall
bekept and archived pursuant to standard records management systems and procedures. The
minutes, transcripts and tapes are classified confidential and are not for public circulation unless
otherwise authorized by the Board/Administrator.
Article IV
MEMBERSHIP
Section 1. Membership. Membership in OWWA may be obtained in two ways:

(a) By enrollment upon processing of contract at the POEA; and
(b) By voluntary registration of OFWs at job-sites overseas.
Section 2. Proof of Membership. All members shall be issued Official Receipt upon payment of
contribution. They shall likewise be issued an OWWA E-Card.
POEA and OWWA are required to maintain database of member-OFWs and to update this regularly.
Section 3. Effectivity of Membership. OWWA membership, either through the compulsory or

voluntary coverages, shall be effective upon payment of membership contribution until expiration of
the employment contract.
In case of voluntary members who register on-site, membership coverage shall not exceed two (2)
years.
Section 4. Renewal of Membership. Membership shall be renewed upon payment of contribution on

contract renewal/issuance of new contract. In the case of voluntary membership, coverage shall be
renewed upon payment of contribution.
Article V
COLLECTION POLICY
Section 1. Legal Basis for Collection of Membership Contribution. Letter of Instructions (LOI) No. 537
mandates the compulsory payment of OWWA membership contribution in the amount of US$25.00
or its equivalent.
xxxx
Section 3. Frequency of Membership Collection. The membership contribution shall be collected on

a per contract basis.
xxxx
Article VIII
BENEFITS AND SERVICES
Section 1. Guiding Principle. In pursuance of its mandate, it shall deliver social insurance benefits,
loan assistance, education and training, social services and family welfare assistance subject to the
qualification requirements and availability of OWWA funds. All benefits and services shall be over
and above the provisions of the employment contract, offer of employers, or the laws of the receiving
country.
Section 2. Benefits and Services for OWWA Members.For a US$25.00 membership contribution, an
OWWA member shall be entitled to the following benefits and services: x x x5
According to petitioners, respondents acted with grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing the Omnibus Policies, the provisions of which are contrary to the
Constitution and its enabling laws. Petitioners alleged that the OWWA was created by law to provide
welfare services to all Filipino overseas contract workers, without limiting the same to member-
contributors only. However, because of the passage of the Omnibus Policies, the OWWA benefits
shall be available only to those overseas contract workers who have paid their monetary contribution
on a per contract basis. It imposed on the overseas workers the compulsory payment of OWWA
membership contribution in the amount of US$25.00, which was originally collected from their
employers. This, petitioners contend, is violative of the Equal Protection Clause of the Constitution
for it created a distinction between Filipino overseas workers who contributed to the OWWA Fund
and those who have not. Moreover, petitioners likewise assailed as invalid the provisions which
allow the OWWA Board members to designate their proxies to vote in their stead in the Board
meetings as well as those which classify the minutes, transcripts, and other documents of the
OWWA as confidential and cannot be publicly circulated without authorization from the Board.
Respondents countered that the assailed Omnibus Policies do not violate the equal protection
clause for the same is germane to the purpose of the law, which requires registration and
documentation of overseas workers for their protections from exploitation in foreign countries.
Moreover, the prescribed membership fees chargeable to the employers had long been
implemented pursuant to Letter of Instructions (LOI) No. 537 signed by then President Ferdinand E.
Marcos on May 1, 1977, which was formalized by the issuance of Presidential Decree (PD) No. 1694
on May 1, 1980, as amended by PD No. 1809 issued on January 16, 1981, creating the Welfare
Fund for Overseas Workers (hereinafter referred to as the "Welfund"). According to respondents,
these issuances expressly instructed the collection of fees for the promotion of Filipino overseas
workers’ interests. Hence, there was no undue implementation of the law. Furthermore, the Omnibus
Policies do not violate petitioners’ right to free access to information as the approved minutes and
official resolutions of the OWWA were made available upon legitimate request bythe public, pursuant
to OWWA Resolution No. 006, Series of 2004.
On August 31, 2004, the RTC promulgated its Order dismissing the complaint for lack of
jurisdiction. According to the lower court, the determination of constitutionality of the assailed
1âw phi 1
resolution rests, not within its jurisdiction, but within the jurisdiction of this Court. As such, it ruled
that the appropriate remedy to annul and set aside the subject issuance was a special civil action for
certiorari under Rule 65 of the Rules of Court. Thus, for reasons of law, comity and convenience, the
lower court held that it could not arrogate unto itself the authority to resolve the constitutionality of
the administrative act.
On February 18, 2005, petitioners filed the instant petition essentially invoking the following
argument:
I.
THE REGIONAL TRIAL COURT COMMITTED REVERSIBLE ERROR OF LAW IN DISMISSING

CIVIL CASE NO. 04-0077 ON THE GROUND OF LACK OF JURISDICTION FOR REGIONAL
TRIAL COURTS HAVE ORIGINAL JURISDICTION TO HEAR AND DECIDE CASES INVOLVING
THE CONSTITUTIONALITY OR VALIDITY OF ADMINISTRATIVE RULES AND REGULATIONS.
Petitioners fault the RTC for abruptly dismissing their complaint for lack of jurisdiction when it is well
established in law and jurisprudence that Regional Trial Courts have jurisdiction over cases involving
the constitutionality or legality of administrative rules and regulations, such as the Omnibus Policies
promulgated by respondents herein. The reliance on our ruling in Fortich v. Corona, petitioners posit,
is misplaced for the same involves a resolution issued by the Office of the President in the exercise
of its quasi-judicialfunctions. Hence, the special civil action for certiorari under Rule 65 of the Rules
of Court isnot the appropriate remedy in the instant case. In their Comment, respondents counter
that petitioners, in filing the instant action with this Court, committed serious procedural error for
violating the doctrine of judicial hierarchy of courts. According to respondents, petitioners should
have first filed an appeal before the Court of Appeals (CA), pursuant to Section 2(a), Rule 41 of the
Rules of Court.6 Respondents further reiterated the validity of the subject Omnibus Policies.
We rule in favor of petitioners.
Section 2(c), Rule 41 of the Rules ofCourt provides that the mode of appeal in all cases involving
only questions of law shall be by petition for review on certiorarito the Supreme Court in accordance
with Rule 45.7
Time and again, this Court has distinguished cases involving pure questions of law from those of
pure questions of fact in the following manner:
A question of fact exists when a doubt or difference arises as to the truth or falsity of alleged facts. If
the query requires a re-evaluation of the credibility of witnesses or the existence or relevance of
surrounding circumstances and their relation to each other, the issue in that query is factual. On the
other hand, there is a question of law when the doubt or difference arises as to what the law is on
certain state of facts and which does not call for an existence of the probative value of the evidence
presented by the parties-litigants. In a case involving a question of law, the resolution of the issue
rests solely on what the law provides on the given set of circumstances.8
In the present petition, the appeal interposed by petitioners stems from the Orders of the RTC
dismissing their complaint for lack of jurisdiction. The issue raised herein is one of jurisdiction over
the subject matter, specifically, whether or not the RTC has jurisdiction over petitioners’ complaint
challenging the constitutionality of the Omnibus Policies issued by respondents. Jurisdiction is the
right to act or the power and authority to hear and determine a case.9 It is conferred only by the
Constitution or by statute.10 The question as to whether or not the dismissal by the lower court for
lack of jurisdiction is proper involves the determination of whether, admitting the facts alleged in the
complaint to be true, the trial court has jurisdiction over the same in light of the laws governing
jurisdiction.11 As such, jurisdiction is neither a question of fact or of factand law but a matter of law.
For this reason, We have consistently held thata court’s jurisdiction over the subject matter of a case
is a question of law,12 and have, in fact, affirmed dismissals by the CA of appeals brought to them
involving pure questions of law.13 Considering that only questions of law was raised in this petition,
direct resort to this Court is proper.14
We cannot, therefore, give credenceto the lower court’s contention that the appropriate remedy to
annul and set aside the issuance subject of this case is a special civil action for certiorari under Rule
65 of the Rules of Court. Certiorari, as a special civil action, is available only if: (1) it is directed
against a tribunal, board, or officer exercising judicial or quasijudicial functions; (2) the tribunal,
board, or officer acted without or in excess of jurisdiction or with grave abuse of discretion amounting
to lack or excess of jurisdiction; and (3) there isno appeal nor any plain, speedy, and adequate
remedy in the ordinary course of law.15
In this case, respondents did not act in any judicial or quasi-judicial capacity in issuing the assailed
resolution. They were not called upon to adjudicate the rights of contending parties to exercise, in
any manner, discretion of a judicial nature. Instead, their issuance of the challenged resolution was
done in the exerciseof their quasi-legislative and administrative functions within the confines of the
granting law. Hence, contrary to the lower court’s contention, certiorari is not the proper remedy in
the instant case.
As to whether the RTC has jurisdiction over the subject matter involved in this case, it is settled in
law and jurisprudence that the RTC has jurisdiction to resolve the constitutionality of a statute,
presidential decree, executive order, or administrative regulation, as recognized in Section 2(a),
Article VIII of the 1987 Constitution, which provides:
SECTION 5. The Supreme Court shall have the following powers:
xxxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court
may provide final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validityof any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulationis in
question.16
In view of the foregoing provision, the jurisdiction of regular courts involving the validity or
constitutionality of a rule or regulation cannot be denied. We have had several occasions wherein
We affirmed the power of the RTC to take cognizance of actions assailing a specific rule or set of
rules promulgated by administrative bodies for the power of judicial review is vested by the
Constitution not only in this Court but in all Regional Trial Courts.17 It was, therefore, erroneous for
the RTC to abruptly dismiss the complaint filed by petitioners on the basis of lack of jurisdiction since
said court clearly had the power to take cognizance of the same. In so doing, the lower court failed
to ascertain factual issues necessary to determine whether the subject issuance is, indeed, invalid
and violative of the Constitution. Considering the settled rule that this Court is not a trier of facts,18 a
remand of this case to the RTC for the proper determination of the merits of the complaint is just and
proper.
WHEREFORE, premises considered, the instant petition is GRANTED. The Orders of the Regional
Trial Court, dated August 31, 2004 and January 14, 2005, in Civil Case No. 04-0077, are
REVERSED and SET ASIDE. This case is hereby REMANDED to the Regional Trial Court, Branch
CXI (111), Pasay City, for further proceedings.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
58

SUPREME COURT
Baguio City
EN BANC
G.R. No. 191002 April 20, 2010
ARTURO M. DE CASTRO, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL -
ARROYO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191032
JAIME N. SORIANO, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191057
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner,

vs.
x - - - - - - - - - - - - - - - - - - - - - - -x
A.M. No. 10-2-5-SC
IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO

APPOINTMENTS TO THE JUDICIARY, ESTELITO P. MENDOZA, Petitioner,
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191149
JOHN G. PERALTA, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC). Respondent.
PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; ALFONSO V. TAN, JR.; NATIONAL
UNION OF PEOPLE’S LAWYERS; MARLOU B. UBANO; INTEGRATED BAR OF THE
PHILIPPINES-DAVAO DEL SUR CHAPTER, represented by its Immediate Past President,
ATTY. ISRAELITO P. TORREON, and the latter in his own personal capacity as a MEMBER of
the PHILIPPINE BAR; MITCHELL JOHN L. BOISER; BAGONG ALYANSANG BAYAN (BAYAN)
CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN SECRETARY GENERAL RENATO M.
REYES, JR.; CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCE-MENT OF
GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE; KALIPUNAN NG
DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY GENERAL GLORIA ARELLANO;
ALYANSA NG NAGKAKAISANG KABATAAN NG SAMBAYANAN PARA SA KAUNLARAN
(ANAKBAYAN) CHAIRMAN KEN LEONARD RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN
PETERS; LEAGUE OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY
LACUANAN RIDON; NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP)
CHAIRMAN EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF THE PHILIPPINES (CEGP)
CHAIRMAN VIJAE ALQUISOLA; and STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES
(SCMP) CHAIRMAN MA. CRISTINA ANGELA GUEVARRA; WALDEN F. BELLO and LORETTA
ANN P. ROSALES; WOMEN TRIAL LAWYERS ORGANIZATION OF THE PHILIPPINES,
represented by YOLANDA QUISUMBING-JAVELLANA; BELLEZA ALOJADO DEMAISIP;
TERESITA GANDIONCO-OLEDAN; MA. VERENA KASILAG-VILLANUEVA; MARILYN STA.
ROMANA; LEONILA DE JESUS; and GUINEVERE DE LEON; AQUILINO Q. PIMENTEL,
JR.;Intervenors.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191342
ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern Luzon), and ATTY. ROLAND B.
INTING (IBPGovernor-Eastern Visayas), Petitioners,
vs.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191420
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.
JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-
ARROYO, Respondents.
RESOLUTION
BERSAMIN, J.:
On March 17, 2010, the Court promulgated its decision, holding:
WHEREFORE, the Court:
1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No.
191149, and the petition for mandamus in G.R. No. 191057 for being premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for lack of
merit; and
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and Bar
Council:
(a) To resume its proceedings for the nomination of candidates to fill the vacancy to
be created by the compulsory retirement of Chief Justice Reynato S. Puno by May
17, 2010;
(b) To prepare the short list of nominees for the position of Chief Justice;
(c) To submit to the incumbent President the short list of nominees for the position of
Chief Justice on or before May 17, 2010; and
(d) To continue its proceedings for the nomination of candidates to fill other
vacancies in the Judiciary and submit to the President the short list of nominees
corresponding thereto in accordance with this decision.
SO ORDERED.
Motions for Reconsideration
Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z. Tolentino and Roland B. Inting (G.R.
No. 191342), and Philippine Bar Association (G.R. No. 191420), as well as intervenors Integrated
Bar of the Philippines-Davao del Sur (IBP-Davao del Sur, et al.); Christian Robert S. Lim; Peter
Irving Corvera; Bagong Alyansang Bayan and others (BAYAN, et al.); Alfonso V. Tan, Jr.; the
Women Trial Lawyers Organization of the Philippines (WTLOP); Marlou B. Ubano; Mitchell John L.
Boiser; and Walden F. Bello and Loretta Ann P. Rosales (Bello, et al.), filed their respective motions
for reconsideration. Also filing a motion for reconsideration was Senator Aquilino Q. Pimentel, Jr.,
whose belated intervention was allowed.
We summarize the arguments and submissions of the various motions for reconsideration, in the
aforegiven order:
Soriano
1. The Court has not squarely ruled upon or addressed the issue of whether or not the power
to designate the Chief Justice belonged to the Supreme Court en banc.
2. The Mendoza petition should have been dismissed, because it sought a mere declaratory
judgment and did not involve a justiciable controversy.
3. All Justices of the Court should participate in the next deliberations. The mere fact that the
Chief Justice sits as ex officio head of the JBC should not prevail over the more compelling
state interest for him to participate as a Member of the Court.
Tolentino and Inting
1. A plain reading of Section 15, Article VII does not lead to an interpretation that exempts
judicial appointments from the express ban on midnight appointments.
2. In excluding the Judiciary from the ban, the Court has made distinctions and has created
exemptions when none exists.
3. The ban on midnight appointments is placed in Article VII, not in Article VIII, because it
limits an executive, not a judicial, power.
4. Resort to the deliberations of the Constitutional Commission is superfluous, and is

powerless to vary the terms of the clear prohibition.
5. The Court has given too much credit to the position taken by Justice Regalado. Thereby,
the Court has raised the Constitution to the level of a venerated text whose intent can only
be divined by its framers as to be outside the realm of understanding by the sovereign
people that ratified it.
6. Valenzuela should not be reversed.
7. The petitioners, as taxpayers and lawyers, have the clear legal standing to question the
illegal composition of the JBC.
Philippine Bar Association

1. The Court’s strained interpretation of the Constitution violates the basic principle that the
Court should not formulate a rule of constitutional law broader than what is required by the
precise facts of the case.
2. Considering that Section 15, Article VII is clear and straightforward, the only duty of the
Court is to apply it. The provision expressly and clearly provides a general limitation on the
appointing power of the President in prohibiting the appointment of any person to any
position in the Government without any qualification and distinction.
3. The Court gravely erred in unilaterally ignoring the constitutional safeguard against
midnight appointments.
4. The Constitution has installed two constitutional safeguards:- the prohibition against
midnight appointments, and the creation of the JBC. It is not within the authority of the Court
to prefer one over the other, for the Court’s duty is to apply the safeguards as they are, not
as the Court likes them to be.
5. The Court has erred in failing to apply the basic principles of statutory construction in
interpreting the Constitution.
6. The Court has erred in relying heavily on the title, chapter or section headings, despite
precedents on statutory construction holding that such headings carried very little weight.
7. The Constitution has provided a general rule on midnight appointments, and the only
exception is that on temporary appointments to executive positions.
8. The Court has erred in directing the JBC to resume the proceedings for the nomination of
the candidates to fill the vacancy to be created by the compulsory retirement of Chief Justice
Puno with a view to submitting the list of nominees for Chief Justice to President Arroyo on
or before May 17, 2010. The Constitution grants the Court only the power of supervision over
the JBC; hence, the Court cannot tell the JBC what to do, how to do it, or when to do it,
especially in the absence of a real and justiciable case assailing any specific action or
inaction of the JBC.
9. The Court has engaged in rendering an advisory opinion and has indulged in speculations.
10. The constitutional ban on appointments being already in effect, the Court’s directing the
JBC to comply with the decision constitutes a culpable violation of the Constitution and the
commission of an election offense.
11. The Court cannot reverse on the basis of a secondary authority a doctrine unanimously
formulated by the Court en banc.
12. The practice has been for the most senior Justice to act as Chief Justice whenever the
incumbent is indisposed. Thus, the appointment of the successor Chief Justice is not
urgently necessary.
13. The principal purpose for the ban on midnight appointments is to arrest any attempt to
prolong the outgoing President’s powers by means of proxies. The attempt of the incumbent
President to appoint the next Chief Justice is undeniably intended to perpetuate her power
beyond her term of office.
IBP-Davao del Sur, et al.
1. Its language being unambiguous, Section 15, Article VII of the Constitution applies to
appointments to the Judiciary. Hence, no cogent reason exists to warrant the reversal of the
Valenzuela pronouncement.
2. Section 16, Article VII of the Constitution provides for presidential appointments to the
Constitutional Commissions and the JBC with the consent of the Commission on
Appointments. Its phrase "other officers whose appointments are vested in him in this
Constitution" is enough proof that the limitation on the appointing power of the President
extends to appointments to the Judiciary. Thus, Section 14, Section 15, and Section 16 of
Article VII apply to all presidential appointments in the Executive and Judicial Branches of
the Government.
3. There is no evidence that the framers of the Constitution abhorred the idea of an Acting
Chief Justice in all cases.
Lim
1. There is no justiciable controversy that warrants the Court’s exercise of judicial review.
2. The election ban under Section 15, Article VII applies to appointments to fill a vacancy in
the Court and to other appointments to the Judiciary.
3. The creation of the JBC does not justify the removal of the safeguard under Section 15 of
Article VII against midnight appointments in the Judiciary.
Corvera
1. The Court’s exclusion of appointments to the Judiciary from the Constitutional ban on
midnight appointments is based on an interpretation beyond the plain and unequivocal
language of the Constitution.
2. The intent of the ban on midnight appointments is to cover appointments in both the
Executive and Judicial Departments. The application of the principle of verba legis (ordinary
meaning) would have obviated dwelling on the organization and arrangement of the
provisions of the Constitution. If there is any ambiguity in Section 15, Article VII, the intent
behind the provision, which is to prevent political partisanship in all branches of the
Government, should have controlled.
3. A plain reading is preferred to a contorted and strained interpretation based on

compartmentalization and physical arrangement, especially considering that the Constitution
must be interpreted as a whole.
4. Resort to the deliberations or to the personal interpretation of the framers of the

Constitution should yield to the plain and unequivocal language of the Constitution.
5. There is no sufficient reason for reversing Valenzuela, a ruling that is reasonable and in
accord with the Constitution.
BAYAN, et al.
1. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition did
not present a justiciable controversy. The issues it raised were not yet ripe for adjudication,
considering that the office of the Chief Justice was not yet vacant and that the JBC itself has
yet to decide whether or not to submit a list of nominees to the President.
2. The collective wisdom of Valenzuela Court is more important and compelling than the
opinion of Justice Regalado.
3. In ruling that Section 15, Article VII is in conflict with Section 4(1), Article VIII, the Court
has violated the principle of ut magis valeat quam pereat (which mandates that the
Constitution should be interpreted as a whole, such that any conflicting provisions are to be
harmonized as to fully give effect to all). There is no conflict between the provisions; they
complement each other.
4. The form and structure of the Constitution’s titles, chapters, sections, and draftsmanship
carry little weight in statutory construction. The clear and plain language of Section 15,
Article VII precludes interpretation.
Tan, Jr.
1. The factual antecedents do not present an actual case or controversy. The clash of legal
rights and interests in the present case are merely anticipated. Even if it is anticipated with
certainty, no actual vacancy in the position of the Chief Justice has yet occurred.
2. The ruling that Section 15, Article VII does not apply to a vacancy in the Court and the
Judiciary runs in conflict with long standing principles and doctrines of statutory construction.
The provision admits only one exception, temporary appointments in the Executive
Department. Thus, the Court should not distinguish, because the law itself makes no
distinction.
3. Valenzuela was erroneously reversed. The framers of the Constitution clearly intended the
ban on midnight appointments to cover the members of the Judiciary. Hence, giving more
weight to the opinion of Justice Regalado to reverse the en banc decision in Valenzuela was
unwarranted.
4. Section 15, Article VII is not incompatible with Section 4(1), Article VIII. The 90-day
mandate to fill any vacancy lasts until August 15, 2010, or a month and a half after the end of
the ban. The next President has roughly the same time of 45 days as the incumbent
President (i.e., 44 days) within which to scrutinize and study the qualifications of the next
Chief Justice. Thus, the JBC has more than enough opportunity to examine the nominees
without haste and political uncertainty. 1avv phi1
5. When the constitutional ban is in place, the 90-day period under Section 4(1), Article VIII is
suspended.
6. There is no basis to direct the JBC to submit the list of nominees on or before May 17,
2010. The directive to the JBC sanctions a culpable violation of the Constitution and
constitutes an election offense.
7. There is no pressing necessity for the appointment of a Chief Justice, because the Court
sits en banc, even when it acts as the sole judge of all contests relative to the election,
returns and qualifications of the President and Vice-President. Fourteen other Members of
the Court can validly comprise the Presidential Electoral Tribunal.
WTLOP
1. The Court exceeded its jurisdiction in ordering the JBC to submit the list of nominees for
Chief Justice to the President on or before May 17, 2010, and to continue its proceedings for
the nomination of the candidates, because it granted a relief not prayed for; imposed on the
JBC a deadline not provided by law or the Constitution; exercised control instead of mere
supervision over the JBC; and lacked sufficient votes to reverse Valenzuela.
2. In interpreting Section 15, Article VII, the Court has ignored the basic principle of statutory
construction to the effect that the literal meaning of the law must be applied when it is clear
and unambiguous; and that we should not distinguish where the law does not distinguish.
3. There is no urgency to appoint the next Chief Justice, considering that the Judiciary Act of
1948 already provides that the power and duties of the office devolve on the most senior
Associate Justice in case of a vacancy in the office of the Chief Justice.
Ubano
1. The language of Section 15, Article VII, being clear and unequivocal, needs no
interpretation
2. The Constitution must be construed in its entirety, not by resort to the organization and
arrangement of its provisions.
3. The opinion of Justice Regalado is irrelevant, because Section 15, Article VII and the
pertinent records of the Constitutional Commission are clear and unambiguous.
4. The Court has erred in ordering the JBC to submit the list of nominees to the President by
May 17, 2010 at the latest, because no specific law requires the JBC to submit the list of
nominees even before the vacancy has occurred.
Boiser
1. Under Section 15, Article VII, the only exemption from the ban on midnight appointments
is the temporary appointment to an executive position. The limitation is in keeping with the
clear intent of the framers of the Constitution to place a restriction on the power of the
outgoing Chief Executive to make appointments.
2. To exempt the appointment of the next Chief Justice from the ban on midnight
appointments makes the appointee beholden to the outgoing Chief Executive, and
compromises the independence of the Chief Justice by having the outgoing President be
continually influential.
3. The Court’s reversal of Valenzuela without stating the sufficient reason violates the
principle of stare decisis.
Bello, et al.
1. Section 15, Article VII does not distinguish as to the type of appointments an outgoing
President is prohibited from making within the prescribed period. Plain textual reading and
the records of the Constitutional Commission support the view that the ban on midnight
appointments extends to judicial appointments.
2. Supervision of the JBC by the Court involves oversight. The subordinate subject to
oversight must first act not in accord with prescribed rules before the act can be redone to
conform to the prescribed rules.
3. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition did
not present a justiciable controversy.
Pimentel
1. Any constitutional interpretative changes must be reasonable, rational, and conformable to

the general intent of the Constitution as a limitation to the powers of Government and as a
bastion for the protection of the rights of the people. Thus, in harmonizing seemingly
conflicting provisions of the Constitution, the interpretation should always be one that
protects the citizenry from an ever expanding grant of authority to its representatives.
2. The decision expands the constitutional powers of the President in a manner totally
repugnant to republican constitutional democracy, and is tantamount to a judicial amendment
of the Constitution without proper authority.
Comments
The Office of the Solicitor General (OSG) and the JBC separately represent in their respective
comments, thus:
OSG
1. The JBC may be compelled to submit to the President a short list of its nominees for the
position of Chief Justice.
2. The incumbent President has the power to appoint the next Chief Justice.
3. Section 15, Article VII does not apply to the Judiciary.
4. The principles of constitutional construction favor the exemption of the Judiciary from the
ban on midnight appointments. 1aw ph!1
5. The Court has the duty to consider and resolve all issues raised by the parties as well as
other related matters.
JBC
1. The consolidated petitions should have been dismissed for prematurity, because the JBC
has not yet decided at the time the petitions were filed whether the incumbent President has
the power to appoint the new Chief Justice, and because the JBC, having yet to interview the
candidates, has not submitted a short list to the President.
2. The statement in the decision that there is a doubt on whether a JBC short list is
necessary for the President to appoint a Chief Justice should be struck down as bereft of
constitutional and legal basis. The statement undermines the independence of the JBC.
3. The JBC will abide by the final decision of the Court, but in accord with its constitutional
mandate and its implementing rules and regulations.
For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC) submits his comment even if the
OSG and the JBC were the only ones the Court has required to do so. He states that the motions for
reconsideration were directed at the administrative matter he initiated and which the Court resolved.
His comment asserts:
1. The grounds of the motions for reconsideration were already resolved by the decision and
the separate opinion.
2. The administrative matter he brought invoked the Court’s power of supervision over the
JBC as provided by Section 8(1), Article VIII of the Constitution, as distinguished from the
Court’s adjudicatory power under Section 1, Article VIII. In the former, the requisites for
judicial review are not required, which was why Valenzuela was docketed as an
administrative matter. Considering that the JBC itself has yet to take a position on when to
submit the short list to the proper appointing authority, it has effectively solicited the exercise
by the Court of its power of supervision over the JBC.
3. To apply Section 15, Article VII to Section 4(1) and Section 9, Article VIII is to amend the
Constitution.
4. The portions of the deliberations of the Constitutional Commission quoted in the dissent of
Justice Carpio Morales, as well as in some of the motions for reconsideration do not refer to
either Section 15, Article VII or Section 4(1), Article VIII, but to Section 13, Article VII (on
nepotism).
Ruling
We deny the motions for reconsideration for lack of merit, for all the matters being thereby raised
and argued, not being new, have all been resolved by the decision of March 17, 2010.
Nonetheless, the Court opts to dwell on some matters only for the purpose of clarification and
emphasis.
First: Most of the movants contend that the principle of stare decisis is controlling, and accordingly
insist that the Court has erred in disobeying or abandoning Valenzuela.1
The contention has no basis.
Stare decisis derives its name from the Latin maxim stare decisis et non quieta movere, i.e., to
adhere to precedent and not to unsettle things that are settled. It simply means that a principle
underlying the decision in one case is deemed of imperative authority, controlling the decisions of
like cases in the same court and in lower courts within the same jurisdiction, unless and until the
decision in question is reversed or overruled by a court of competent authority. The decisions relied
upon as precedents are commonly those of appellate courts, because the decisions of the trial
courts may be appealed to higher courts and for that reason are probably not the best evidence of
the rules of law laid down. 2
Judicial decisions assume the same authority as a statute itself and, until authoritatively abandoned,
necessarily become, to the extent that they are applicable, the criteria that must control the
actuations, not only of those called upon to abide by them, but also of those duty-bound to enforce
obedience to them.3 In a hierarchical judicial system like ours, the decisions of the higher courts bind
the lower courts, but the courts of co-ordinate authority do not bind each other. The one highest
court does not bind itself, being invested with the innate authority to rule according to its best lights.4
The Court, as the highest court of the land, may be guided but is not controlled by precedent. Thus,
the Court, especially with a new membership, is not obliged to follow blindly a particular decision that
it determines, after re-examination, to call for a rectification.5 The adherence to precedents is strict
and rigid in a common-law setting like the United Kingdom, where judges make law as binding as an
Act of Parliament.6 But ours is not a common-law system; hence, judicial precedents are not always
strictly and rigidly followed. A judicial pronouncement in an earlier decision may be followed as a
precedent in a subsequent case only when its reasoning and justification are relevant, and the court
in the latter case accepts such reasoning and justification to be applicable to the case. The
application of the precedent is for the sake of convenience and stability.
For the intervenors to insist that Valenzuela ought not to be disobeyed, or abandoned, or reversed,
and that its wisdom should guide, if not control, the Court in this case is, therefore, devoid of
rationality and foundation. They seem to conveniently forget that the Constitution itself recognizes
the innate authority of the Court en banc to modify or reverse a doctrine or principle of law laid down
in any decision rendered en banc or in division.7
Second: Some intervenors are grossly misleading the public by their insistence that the
Constitutional Commission extended to the Judiciary the ban on presidential appointments during
the period stated in Section 15, Article VII.
The deliberations that the dissent of Justice Carpio Morales quoted from the records of the
Constitutional Commission did not concern either Section 15, Article VII or Section 4(1), Article VIII,
but only Section 13, Article VII, a provision on nepotism. The records of the Constitutional
Commission show that Commissioner Hilario G. Davide, Jr. had proposed to include judges and
justices related to the President within the fourth civil degree of consanguinity or affinity among the
persons whom the President might not appoint during his or her tenure. In the end, however,
Commissioner Davide, Jr. withdrew the proposal to include the Judiciary in Section 13, Article VII
"(t)o avoid any further complication,"8 such that the final version of the second paragraph of Section
13, Article VII even completely omits any reference to the Judiciary, to wit:
Section 13. xxx
The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President
shall not during his tenure be appointed as Members of the Constitutional Commissions, or the
Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or
offices, including government-owned or controlled corporations and their subsidiaries.
Last: The movants take the majority to task for holding that Section 15, Article VII does not apply to
appointments in the Judiciary. They aver that the Court either ignored or refused to apply many
principles of statutory construction.
The movants gravely err in their posture, and are themselves apparently contravening their avowed
reliance on the principles of statutory construction.
For one, the movants, disregarding the absence from Section 15, Article VII of the express extension
of the ban on appointments to the Judiciary, insist that the ban applied to the Judiciary under the
principle of verba legis. That is self-contradiction at its worst.
Another instance is the movants’ unhesitating willingness to read into Section 4(1) and Section 9,
both of Article VIII, the express applicability of the ban under Section 15, Article VII during the period
provided therein, despite the silence of said provisions thereon. Yet, construction cannot supply the
omission, for doing so would generally constitute an encroachment upon the field of the
Constitutional Commission. Rather, Section 4(1) and Section 9 should be left as they are, given that
their meaning is clear and explicit, and no words can be interpolated in them.9Interpolation of words
is unnecessary, because the law is more than likely to fail to express the legislative intent with the
interpolation. In other words, the addition of new words may alter the thought intended to be
conveyed. And, even where the meaning of the law is clear and sensible, either with or without the
omitted word or words, interpolation is improper, because the primary source of the legislative intent
is in the language of the law itself.10
Thus, the decision of March 17, 2010 has fittingly observed:
Had the framers intended to extend the prohibition contained in Section 15, Article VII to the
appointment of Members of the Supreme Court, they could have explicitly done so. They could not
have ignored the meticulous ordering of the provisions. They would have easily and surely written
the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment
of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That
such specification was not done only reveals that the prohibition against the President or Acting
President making appointments within two months before the next presidential elections and up to
the end of the President’s or Acting President’s term does not refer to the Members of the Supreme
Court.
We cannot permit the meaning of the Constitution to be stretched to any unintended point in order to
suit the purposes of any quarter.
Final Word
It has been insinuated as part of the polemics attendant to the controversy we are resolving that
because all the Members of the present Court were appointed by the incumbent President, a
majority of them are now granting to her the authority to appoint the successor of the retiring Chief
Justice.
The insinuation is misguided and utterly unfair.
The Members of the Court vote on the sole basis of their conscience and the merits of the issues.
Any claim to the contrary proceeds from malice and condescension. Neither the outgoing President
nor the present Members of the Court had arranged the current situation to happen and to evolve as
it has. None of the Members of the Court could have prevented the Members composing the Court
when she assumed the Presidency about a decade ago from retiring during her prolonged term and
tenure, for their retirements were mandatory. Yet, she is now left with an imperative duty under the
Constitution to fill up the vacancies created by such inexorable retirements within 90 days from their
occurrence. Her official duty she must comply with. So must we ours who are tasked by the
Constitution to settle the controversy.
ACCORDINGLY, the motions for reconsideration are denied with finality.
SO ORDERED.
59

SUPREME COURT
Manila
EN BANC
G.R. No. 202242 April 16, 2013
FRANCISCO I. CHAVEZ, Petitioner,

vs.
JUDICIALAND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and REP. NIEL C.
TUPAS, JR.,Respondents.
RESOLUTION
MENDOZA, J.:
This resolves the Motion for Reconsideration1 filed by the Office of the Solicitor General (OSG) on
behalf of the respondents, Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas,
Jr. (respondents), duly opposed2 by the petitioner, former Solicitor General Francisco I. Chavez
(petitioner).
By way of recapitulation, the present action stemmed from the unexpected departure of former Chief
Justice Renato C. Corona on May 29, 2012, and the nomination of petitioner, as his potential
successor. In his initiatory pleading, petitioner asked the Court to determine 1] whether the first
paragraph of Section 8, Article VIII of the 1987 Constitution allows more than one (1) member of
Congress to sit in the JBC; and 2] if the practice of having two (2) representatives from each House
of Congress with one (1) vote each is sanctioned by the Constitution.
On July 17, 2012, the Court handed down the assailed subject decision, disposing the same in the
following manner:
WHEREFORE, the petition is GRANTED. The current numerical composition of the Judicial and Bar
Council is declared UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined to
reconstitute itself so that only one (1) member of Congress will sit as a representative in its
proceedings, in accordance with Section 8(1), Article VIII of the 1987 Constitution.
This disposition is immediately executory.
SO ORDERED.
On July 31, 2012, following respondents’ motion for reconsideration and with due regard to Senate
Resolution Nos. 111,3 112,4 113,5 and 114,6 the Court set the subject motion for oral arguments on
August 2, 2012.7 On August 3, 2012, the Court discussed the merits of the arguments and agreed, in
the meantime, to suspend the effects of the second paragraph of the dispositive portion of the July
17, 2012 Decision which decreed that it was immediately executory. The decretal portion of the
August 3, 2012 Resolution8 reads:
WHEREFORE, the parties are hereby directed to submit their respective MEMORANDA within ten
(10) days from notice. Until further orders, the Court hereby SUSPENDS the effect of the second
paragraph of the dispositive portion of the Court’s July 17, 2012 Decision, which reads: "This
disposition is immediately executory."9
Pursuant to the same resolution, petitioner and respondents filed their respective memoranda.10
Brief Statement of the Antecedents
In this disposition, it bears reiterating that from the birth of the Philippine Republic, the exercise of
appointing members of the Judiciary has always been the exclusive prerogative of the executive and
legislative branches of the government. Like their progenitor of American origins, both the Malolos
Constitution11 and the 1935 Constitution12vested the power to appoint the members of the Judiciary
in the President, subject to confirmation by the Commission on Appointments. It was during these
times that the country became witness to the deplorable practice of aspirants seeking confirmation of
their appointment in the Judiciary to ingratiate themselves with the members of the legislative body.13
Then, under the 1973 Constitution,14 with the fusion of the executive and legislative powers in one
body, the appointment of judges and justices ceased to be subject of scrutiny by another body. The
power became exclusive and absolute to the Executive, subject only to the condition that the
appointees must have all the qualifications and none of the disqualifications.
Prompted by the clamor to rid the process of appointments to the Judiciary of the evils of political
pressure and partisan activities,15 the members of the Constitutional Commission saw it wise to
create a separate, competent and independent body to recommend nominees to the President.
Thus, it conceived of a body, representative of all the stakeholders in the judicial appointment
process, and called it the Judicial and Bar Council (JBC). The Framers carefully worded Section 8,
Article VIII of the 1987 Constitution in this wise:
Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a representative of the private sector.
From the moment of the creation of the JBC, Congress designated one (1) representative to sit in
the JBC to act as one of the ex-officio members.16 Pursuant to the constitutional provision that
Congress is entitled to one (1) representative, each House sent a representative to the JBC, not
together, but alternately or by rotation.
In 1994, the seven-member composition of the JBC was substantially altered. An eighth member
1âwphi1
was added to the JBC as the two (2) representatives from Congress began sitting simultaneously in
the JBC, with each having one-half (1/2) of a vote.17
In 2001, the JBC En Banc decided to allow the representatives from the Senate and the House of
Representatives one full vote each.18 It has been the situation since then.
Grounds relied upon by Respondents

Through the subject motion, respondents pray that the Court reconsider its decision and dismiss the
petition on the following grounds: 1] that allowing only one representative from Congress in the JBC
would lead to absurdity considering its bicameral nature; 2] that the failure of the Framers to make
the proper adjustment when there was a shift from unilateralism to bicameralism was a plain
oversight; 3] that two representatives from Congress would not subvert the intention of the Framers
to insulate the JBC from political partisanship; and 4] that the rationale of the Court in declaring a
seven-member composition would provide a solution should there be a stalemate is not exactly
correct.
While the Court may find some sense in the reasoning in amplification of the third and fourth
grounds listed by respondents, still, it finds itself unable to reverse the assailed decision on the
principal issues covered by the first and second grounds for lack of merit. Significantly, the
conclusion arrived at, with respect to the first and second grounds, carries greater bearing in the final
resolution of this case.
As these two issues are interrelated, the Court shall discuss them jointly.
Ruling of the Court
The Constitution evinces the direct action of the Filipino people by which the fundamental powers of
government are established, limited and defined and by which those powers are distributed among
the several departments for their safe and useful exercise for the benefit of the body politic.19 The
Framers reposed their wisdom and vision on one suprema lex to be the ultimate expression of the
principles and the framework upon which government and society were to operate. Thus, in the
interpretation of the constitutional provisions, the Court firmly relies on the basic postulate that the
Framers mean what they say. The language used in the Constitution must be taken to have been
deliberately chosen for a definite purpose. Every word employed in the Constitution must be
interpreted to exude its deliberate intent which must be maintained inviolate against disobedience
and defiance. What the Constitution clearly says, according to its text, compels acceptance and bars
modification even by the branch tasked to interpret it.
For this reason, the Court cannot accede to the argument of plain oversight in order to justify
constitutional construction. As stated in the July 17, 2012 Decision, in opting to use the singular
letter "a" to describe "representative of Congress," the Filipino people through the Framers intended
that Congress be entitled to only one (1) seat in the JBC. Had the intention been otherwise, the
Constitution could have, in no uncertain terms, so provided, as can be read in its other provisions.
A reading of the 1987 Constitution would reveal that several provisions were indeed adjusted as to
be in tune with the shift to bicameralism. One example is Section 4, Article VII, which provides that a
tie in the presidential election shall be broken "by a majority of all the Members of both Houses of the
Congress, voting separately."20 Another is Section 8 thereof which requires the nominee to replace
the Vice-President to be confirmed "by a majority of all the Members of both Houses of the
Congress, voting separately."21 Similarly, under Section 18, the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus may be revoked or continued by the
Congress, voting separately, by a vote of at least a majority of all its Members."22 In all these
provisions, the bicameral nature of Congress was recognized and, clearly, the corresponding
adjustments were made as to how a matter would be handled and voted upon by its two Houses.
Thus, to say that the Framers simply failed to adjust Section 8, Article VIII, by sheer inadvertence, to
their decision to shift to a bicameral form of the legislature, is not persuasive enough. Respondents
cannot just lean on plain oversight to justify a conclusion favorable to them. It is very clear that the
Framers were not keen on adjusting the provision on congressional representation in the JBC
because it was not in the exercise of its primary function – to legislate. JBC was created to support
the executive power to appoint, and Congress, as one whole body, was merely assigned a
contributory non-legislative function.
The underlying reason for such a limited participation can easily be discerned. Congress has two (2)
Houses. The need to recognize the existence and the role of each House is essential considering
that the Constitution employs precise language in laying down the functions which particular House
plays, regardless of whether the two Houses consummate an official act by voting jointly or
separately. Whether in the exercise of its legislative23 or its non-legislative functions such as inter
alia, the power of appropriation,24 the declaration of an existence of a state of war,25 canvassing of
electoral returns for the President and Vice-President,26 and impeachment,27 the dichotomy of each
House must be acknowledged and recognized considering the interplay between these two Houses.
In all these instances, each House is constitutionally granted with powers and functions peculiar to
its nature and with keen consideration to 1) its relationship with the other chamber; and 2) in
consonance with the principle of checks and balances, as to the other branches of government.
In checkered contrast, there is essentially no interaction between the two Houses in their
participation in the JBC. No mechanism is required between the Senate and the House of
Representatives in the screening and nomination of judicial officers. Rather, in the creation of the
JBC, the Framers arrived at a unique system by adding to the four (4) regular members, three (3)
representatives from the major branches of government - the Chief Justice as ex-officio Chairman
(representing the Judicial Department), the Secretary of Justice (representing the Executive
Department), and a representative of the Congress (representing the Legislative Department). The
total is seven (7), not eight. In so providing, the Framers simply gave recognition to the Legislature,
not because it was in the interest of a certain constituency, but in reverence to it as a major branch
of government.
On this score, a Member of Congress, Hon. Simeon A. Datumanong, from the Second District of
Maguindanao, submitted his well-considered position28 to then Chief Justice Reynato S. Puno:
I humbly reiterate my position that there should be only one representative of Congress in the JBC in
accordance with Article VIII, Section 8 (1) of the 1987 Constitution x x x.
The aforesaid provision is clear and unambiguous and does not need any further interpretation.
Perhaps, it is apt to mention that the oft-repeated doctrine that "construction and interpretation come
only after it has been demonstrated that application is impossible or inadequate without them."
Further, to allow Congress to have two representatives in the Council, with one vote each, is to
negate the principle of equality among the three branches of government which is enshrined in the
Constitution.
In view of the foregoing, I vote for the proposition that the Council should adopt the rule of single
representation of Congress in the JBC in order to respect and give the right meaning to the above-
quoted provision of the Constitution. (Emphases and underscoring supplied)
On March 14, 2007, then Associate Justice Leonardo A. Quisumbing, also a JBC Consultant,
submitted to the Chief Justice and ex-officio JBC Chairman his opinion,29 which reads:
8. Two things can be gleaned from the excerpts and citations above: the creation of the JBC is
intended to curtail the influence of politics in Congress in the appointment of judges, and the
understanding is that seven (7) persons will compose the JBC. As such, the interpretation of two
votes for Congress runs counter to the intendment of the framers. Such interpretation actually gives
Congress more influence in the appointment of judges. Also, two votes for Congress would increase
the number of JBC members to eight, which could lead to voting deadlock by reason of even-
numbered membership, and a clear violation of 7 enumerated members in the Constitution.
(Emphases and underscoring supplied)
In an undated position paper,30 then Secretary of Justice Agnes VST Devanadera opined:
As can be gleaned from the above constitutional provision, the JBC is composed of seven (7)
representatives coming from different sectors. From the enumeration it is patent that each category
of members pertained to a single individual only. Thus, while we do not lose sight of the bicameral
nature of our legislative department, it is beyond dispute that Art. VIII, Section 8 (1) of the 1987
Constitution is explicit and specific that "Congress" shall have only "xxx a representative." Thus, two
(2) representatives from Congress would increase the number of JBC members to eight (8), a
number beyond what the Constitution has contemplated. (Emphases and underscoring supplied)
In this regard, the scholarly dissection on the matter by retired Justice Consuelo Ynares-Santiago, a
former JBC consultant, is worth reiterating.31 Thus:
A perusal of the records of the Constitutional Commission reveals that the composition of the JBC
reflects the Commission’s desire "to have in the Council a representation for the major elements of
the community." xxx The ex-officio members of the Council consist of representatives from the three
main branches of government while the regular members are composed of various stakeholders in
the judiciary. The unmistakeable tenor of Article VIII, Section 8(1) was to treat each ex-officio
member as representing one co-equal branch of government. xxx Thus, the JBC was designed to
have seven voting members with the three ex-officio members having equal say in the choice of
judicial nominees.
xxx
No parallelism can be drawn between the representative of Congress in the JBC and the exercise by
Congress of its legislative powers under Article VI and constituent powers under Article XVII of the
Constitution. Congress, in relation to the executive and judicial branches of government, is
constitutionally treated as another co-equal branch in the matter of its representative in the JBC. On
the other hand, the exercise of legislative and constituent powers requires the Senate and the House
of Representatives to coordinate and act as distinct bodies in furtherance of Congress’ role under
our constitutional scheme. While the latter justifies and, in fact, necessitates the separateness of the
two Houses of Congress as they relate inter se, no such dichotomy need be made when Congress
interacts with the other two co-equal branches of government.
It is more in keeping with the co-equal nature of the three governmental branches to assign the
same weight to considerations that any of its representatives may have regarding aspiring nominees
to the judiciary. The representatives of the Senate and the House of Representatives act as such for
one branch and should not have any more quantitative influence as the other branches in the
exercise of prerogatives evenly bestowed upon the three. Sound reason and principle of equality
among the three branches support this conclusion. [Emphases and underscoring supplied]
The argument that a senator cannot represent a member of the House of Representatives in the
JBC and vice-versa is, thus, misplaced. In the JBC, any member of Congress, whether from the
Senate or the House of Representatives, is constitutionally empowered to represent the entire
Congress. It may be a constricted constitutional authority, but it is not an absurdity.
From this score stems the conclusion that the lone representative of Congress is entitled to one full
vote. This pronouncement effectively disallows the scheme of splitting the said vote into half (1/2),
between two representatives of Congress. Not only can this unsanctioned practice cause disorder in
the voting process, it is clearly against the essence of what the Constitution authorized. After all,
basic and reasonable is the rule that what cannot be legally done directly cannot be done indirectly.
To permit or tolerate the splitting of one vote into two or more is clearly a constitutional
circumvention that cannot be countenanced by the Court. Succinctly put, when the Constitution
envisioned one member of Congress sitting in the JBC, it is sensible to presume that this
representation carries with him one full vote.
It is also an error for respondents to argue that the President, in effect, has more influence over the
JBC simply because all of the regular members of the JBC are his appointees. The principle of
checks and balances is still safeguarded because the appointment of all the regular members of the
JBC is subject to a stringent process of confirmation by the Commission on Appointments, which is
composed of members of Congress.
Respondents’ contention that the current irregular composition of the JBC should be accepted,
simply because it was only questioned for the first time through the present action, deserves scant
consideration. Well-settled is the rule that acts done in violation of the Constitution no matter how
frequent, usual or notorious cannot develop or gain acceptance under the doctrine of estoppel or
laches, because once an act is considered as an infringement of the Constitution it is void from the
very beginning and cannot be the source of any power or authority.
It would not be amiss to point out, however, that as a general rule, an unconstitutional act is not a
law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is
inoperative as if it has not been passed at all. This rule, however, is not absolute. Under the doctrine
of operative facts, actions previous to the declaration of unconstitutionality are legally recognized.
They are not nullified. This is essential in the interest of fair play. To reiterate the doctrine enunciated
in Planters Products, Inc. v. Fertiphil Corporation:32
The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity
and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a
statute prior to a determination of unconstitutionality is an operative fact and may have
consequences which cannot always be ignored. The past cannot always be erased by a new judicial
declaration. The doctrine is applicable when a declaration of unconstitutionality will impose an undue
burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a
declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the
acts done by a municipality in reliance upon a law creating it.33
Under the circumstances, the Court finds the exception applicable in this case and holds that
notwithstanding its finding of unconstitutionality in the current composition of the JBC, all its prior
official actions are nonetheless valid.
Considering that the Court is duty bound to protect the Constitution which was ratified by the direct
action of the Filipino people, it cannot correct what respondents perceive as a mistake in its
mandate. Neither can the Court, in the exercise of its power to interpret the spirit of the Constitution,
read into the law something that is contrary to its express provisions and justify the same as
correcting a perceived inadvertence. To do so would otherwise sanction the Court action of making
amendment to the Constitution through a judicial pronouncement.
In other words, the Court cannot supply the legislative omission. According to the rule of casus
omissus "a case omitted is to be held as intentionally omitted."34 "The principle proceeds from a
reasonable certainty that a particular person, object or thing has been omitted from a legislative
enumeration."35 Pursuant to this, "the Court cannot under its power of interpretation supply the
omission even though the omission may have resulted from inadvertence or because the case in
question was not foreseen or contemplated."36 "The Court cannot supply what it thinks the legislature
would have supplied had its attention been called to the omission, as that would be judicial
legislation."37
Stated differently, the Court has no power to add another member by judicial construction.
The call for judicial activism fails to stir the sensibilities of the Court tasked to guard the Constitution
against usurpation. The Court remains steadfast in confining its powers in the sphere granted by the
Constitution itself. Judicial activism should never be allowed to become judicial exuberance.38 In
cases like this, no amount of practical logic or convenience can convince the Court to perform either
an excision or an insertion that will change the manifest intent of the Framers. To broaden the scope
of congressional representation in the JBC is tantamount to the inclusion of a subject matter which
was not included in the provision as enacted. True to its constitutional mandate, the Court cannot
craft and tailor constitutional provisions in order to accommodate all of situations no matter how ideal
or reasonable the proposed solution may sound. To the exercise of this intrusion, the Court declines.
WHEREFORE, the Motion for Reconsideration filed by respondents is hereby DENIED.
The suspension of the effects of the second paragraph of the dispositive portion of the July 17, 2012
Decision of the Court, which reads, "This disposition is immediately executory," is hereby LIFTED.
SO ORDERED.
60

SUPREME COURT
Manila
EN BANC
G.R. No. 167916 August 26, 2008
SARAH P. AMPONG, petitioner,

vs.
CIVIL SERVICE COMMISSION, CSC-Regional Office No. 11, respondents.
DECISION
REYES R.T., J.:
CAN the Civil Service Commission (CSC) properly assume jurisdiction over administrative proceedings
against a judicial employee involving acts of dishonesty as a teacher, committed prior to her appointment
to the judiciary?
Before Us is a petition for review on certiorari assailing the Decision1 of the Court of Appeals (CA)
affirming the CSC’s exercise of administrative jurisdiction over petitioner.
The Facts
The following facts are uncontroverted:
On November 10, 1991, a Professional Board Examination for Teachers (PBET) 2 was held in Davao City.
A certain Evelyn Junio-Decir3 applied for and took the examination at Room 16, Kapitan Tomas
Monteverde Elementary School. She passed with a rating of 74.27%.4
At the time of the PBET examinations, petitioner Sarah P. Ampong (nee Navarra) and Decir were public
school teachers under the supervision of the Department of Education, Culture and Sports
(DECS).5 Later, on August 3, 1993, Ampong transferred to the Regional Trial Court (RTC) in Alabel,
Sarangani Province, where she was appointed as Court Interpreter III.
On July 5, 1994, a woman representing herself as Evelyn Decir went to the Civil Service Regional Office
(CSRO) No. XI, Davao City, to claim a copy of her PBET Certificate of Eligibility. During the course of the
transaction, the CSRO personnel noticed that the woman did not resemble the picture of the examinee in
the Picture Seat Plan (PSP). Upon further probing, it was confirmed that the person claiming the eligibility
was different from the one who took the examinations. It was petitioner Ampong who took and passed the
examinations under the name Evelyn Decir.
The CSRO conducted a preliminary investigation and determined the existence of a prima facie case
against Decir and Ampong for Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest
of the Service. On August 23, 1994, they were formally charged and required to file answers under oath.
The formal charge reads:
That sometime before the conduct of the November 10, 1991 Professional Board Examination for
Teachers (PBET), a certain Ms. Evelyn B. Junio (now Decir) took the said examination at Rm. 16
Kapitan Tomas Monteverde Elementary School, Davao City, with a passing rate of 74.27%; That
on July 5, 1994 she appeared before the CSC Region XI Office to get her Guro Certificate; That
upon verification, it was found out that the picture attached in the Picture Seat Plan, marked as
Annex "A" and "A-1," respectively, were not the same compared to the picture attached in the
CSC Form 212 of Evelyn Junio-Decir marked herein as annex "B," "B-1," respectively. There was
also a marked difference in the signatures affixed in the said annexes; That further investigations
revealed that it was the pictures of Ms. Sarah Navarra, wife of her husband’s first cousin, who
took the said examination in behalf of Ms. Evelyn Junio-Decir, a provisional teacher; That the said
act of Mesdames Decir and Navarra are acts of dishonesty and conduct prejudicial to the best
interest of the service; that in (sic) taking the CS examination for and in behalf of another
undermines the sanctity of the CS examinations; All these contrary to existing civil service laws
and regulations. (Emphasis supplied)
In her sworn statement dated November 3, 1994, Decir denied the charges against her. She reasoned
out that it must have been the examination proctor who pasted the wrong picture on the PSP and that her
signatures were different because she was still signing her maiden name at the time of the examination.
In her Answer, Decir contended that:
2. The same accusation is denied, the truth being:
a. When I took the Professional Board Examination for Teachers (PBET) in the year
1991, I handed my 1x1 I.D. picture to the proctor assigned in the examination room who
might have inadvertently pasted in the Seat Plan [the] wrong picture instead [of] my own
picture;
b. With respect to the marked difference in my signature both appearing in the aforesaid
Seat Plan and also with the Form 212, the disparity lies in that in the year 1991, when I
took the afroresaid examination, I was still sporting my maiden name Evelyn B. Junio in
order to coincide with all my pertinent supporting papers, like the special order (s.o.),
appointment and among others, purposely to take said communications. However,
immediately after taking the PBET Examination in 1991, I started using the full name of
Evelyn Junio-Decir.6
Even before filing an Answer, petitioner Ampong voluntarily appeared at the CSRO on February 2, 1995
and admitted to the wrongdoing. When reminded that she may avail herself of the services of counsel,
petitioner voluntarily waived said right.
On March 13, 1995, petitioner gave another admission in the following tenor:
Q: Now, what is then your intention in coming to this Region inasmuch as you are still intending
to file an answer to the formal charge?
A: I came here because I want to admit personally. So that I will not be coming here anymore. I
will submit my case for Resolution.
Q: So, you intend to waive your right for the formal hearing and you also admit orally on the
guilt of the charge on the Formal Charge dated August 24, 1994?
A: Yes, Ma’am.
Q: What else do you want to tell the Commission?
A: x x x Inasmuch as I am already remorseful, I am repenting of the wrong that I have done. I

am hoping that the Commission can help x x x so that I will be given or granted another chance to
serve the government.
xxxx
Q: Now inasmuch as you have declared that you have admitted the guilt that you took the
examination for and in behalf of Evelyn Junio Decir, are you telling this to the Commission without
the assistance of the counsel or waiver of your right to be assisted by counsel.
A: Yes, Ma’am. I am waiving my right.7 (Emphasis supplied)
Petitioner reiterated her admission in her sworn Answer dated March 16, 1995:
3. That, during the commission of the act, I was still under the Department of Education, Culture
and Sports, as Teacher in-charge of San Miguel Primary School, Malungon North District, way
back in 1991, when the husband of Evelyn Junio-Decir, my husband’s cousin came to me and
persuaded me to take the examination in behalf of his wife to which I disagreed but he earnestly
begged so that I was convinced to agree because I pity his wife considering that she is an
immediate relative, and there was no monetary consideration involved in this neither a
compensatory reward for me, as I was overcome by their persuasion;
4. That, despite the fact that I was a teacher, I was not aware that the acts I was charged, is a
ground for disciplinary action and punishable by dismissal;
5. That I should not have conformed to this anomalous transaction considering that I was born in
a Christian family, and was brought up in the fear of Lord, and had been a consistent officer of the
Church Board, had been a religious leader for so many years, and had been the organizer of the
Music Festival of the Association of Evangelical Churches of Malungon, Sarangani Province, thus
I was devoted to church work and was known to be of good conduct; and that my friends and
acquaintances can vouch to that, but I was just forced by circumstances to agree to the spouses
Godfre and Evelyn Decir.8 (Emphasis added)
CSC Finding and Penalty
On March 21, 1996, the CSC found petitioner Ampong and Decir guilty of dishonesty, dismissing them
from the service. The dispositive part of the CSC resolution states:
WHEREFORE, the Commission hereby finds Evelyn J. Decir and Sarah P. Navarra guilty of
Dishonesty. Accordingly, they are meted the penalty of dismissal with all its accessory penalties.
The PBET rating of Decir is revoked.9
Petitioner moved for reconsideration, raising for the first time the issue of jurisdiction. 10 She argued that
the exclusive authority to discipline employees of the judiciary lies with the Supreme Court; that the CSC
acted with abuse of discretion when it continued to exercise jurisdiction despite her assumption of duty as
a judicial employee. She contended that at the time the case was instituted on August 23, 1994, the CSC
already lost jurisdiction over her. She was appointed as Interpreter III of the RTC, Branch 38, Alabel,
Sarangani Province on August 3, 1993.
The CSC denied the motion for reconsideration.11 According to the Commission, to allow petitioner to
evade administrative liability would be a mockery of the country’s administrative disciplinary system. It will
open the floodgates for others to escape prosecution by the mere expedient of joining another branch of
government. In upholding its jurisdiction over petitioner, the CSC differentiated between administrative
supervision exercised by the Supreme Court and administrative jurisdiction granted to the Commission
over all civil service employees:
Moreover, it must be pointed out that administrative supervision is distinct from administrative
jurisdiction. While it is true that this Commission does not have administrative supervision over
employees in the judiciary, it definitely has concurrent jurisdiction over them. Such jurisdiction
was conferred upon the Civil Service Commission pursuant to existing law specifically Section
12(11), Chapter 3, Book V of the Administrative Code of 1987 (Executive Order No. 292) which
provides as follows:
"(11) Hear and decide administrative cases instituted by or through it directly or on

appeal, including contested appointment, and review decisions and actions of its offices
and of the agencies attached to it x x x."
The fact that court personnel are under the administrative supervision of the Supreme Court does
not totally isolate them from the operations of the Civil Service Law. Appointments of all officials
and employees in the judiciary is governed by the Civil Service Law (Section 5(6), Article VIII,
1987 Constitution). (Emphasis supplied)
CA Disposition
Via petition for review under Rule 43, petitioner elevated the matter to the CA. 12 She insisted that as a
judicial employee, it is the Supreme Court and not the CSC that has disciplinary jurisdiction over her.
In a Decision dated November 30, 2004,13 the CA denied the petition for lack of merit.
The CA noted that petitioner never raised the issue of jurisdiction until after the CSC ruled against her.
Rather, she willingly appeared before the commission, freely admitted her wrongdoing, and even
requested for clemency. Thus, she was estopped from questioning the Commission’s jurisdiction. The
appellate court opined that while lack of jurisdiction may be assailed at any stage, a party’s active
participation in the proceedings before a court, tribunal or body will estop such party from assailing its
jurisdiction.
The CA further ruled that a member of the judiciary may be under the jurisdiction of two different bodies.
As a public school teacher or a court interpreter, petitioner was part of the civil service, subject to its rules
and regulations. When she committed acts in violation of the Civil Service Law, the CSC was clothed with
administrative jurisdiction over her.
Issue
Petitioner, through this petition, assigns the lone error that:
The Honorable Court of Appeals-First Division decided a question of substance in a way not in
accord with law and jurisprudence, gravely erred in facts and in law, and has sanctioned such
departure and grave error because it ignored or was not aware of Garcia v. De la Peña, 229
SCRA 766 (1994) and Adm. Matter No. OCA I.P.I. 97-329-P (CSC v. Ampong) dated January 31,
2001, which reiterate the rule that exclusive authority to discipline employees of the
judiciary lies with the Supreme Court, in issuing the questioned decision and resolution; which
grave error warrant reversal of the questioned decision and resolution.14
Put simply, the issue boils down to whether the CSC has administrative jurisdiction over an employee of
the Judiciary for acts committed while said employee was still with the Executive or Education
Department.
Our Ruling
The answer to the question at the outset is in the negative but We rule against the petition on the ground
of estoppel.
It is true that the CSC has administrative jurisdiction over the civil service. As defined under the
Constitution and the Administrative Code, the civil service embraces every branch, agency, subdivision,
and instrumentality of the government, and government-owned or controlled corporations.15 Pursuant to
its administrative authority, the CSC is granted the power to "control, supervise, and coordinate the Civil
Service examinations."16 This authority grants to the CSC the right to take cognizance of any irregularity
or anomaly connected with the examinations.17
However, the Constitution provides that the Supreme Court is given exclusive administrative
supervision over all courts and judicial personnel.18 By virtue of this power, it is only the Supreme
Court that can oversee the judges’ and court personnel’s compliance with all laws, rules and regulations.
It may take the proper administrative action against them if they commit any violation. No other branch of
government may intrude into this power, without running afoul of the doctrine of separation of
powers.19 Thus, this Court ruled that the Ombudsman cannot justify its investigation of a judge on the
powers granted to it by the Constitution. It violates the specific mandate of the Constitution granting to the
Supreme Court supervisory powers over all courts and their personnel; it undermines the independence
of the judiciary.20
In Civil Service Commission v. Sta. Ana,21 this Court held that impersonating an examinee of a civil
service examination is an act of dishonesty. But because the offender involved a judicial employee under
the administrative supervision of the Supreme Court, the CSC filed the necessary charges before the
Office of the Court Administrator (OCA), a procedure which this Court validated.
A similar fate befell judicial personnel in Bartolata v. Julaton,22 involving judicial employees who also
impersonated civil service examinees. As in Sta. Ana, the CSC likewise filed the necessary charges
before the OCA because respondents were judicial employees. Finding respondents guilty of dishonesty
and meting the penalty of dismissal, this Court held that "respondents’ machinations reflect their
dishonesty and lack of integrity, rendering them unfit to maintain their positions as public servants and
employees of the judiciary."23
Compared to Sta. Ana and Bartolata, the present case involves a similar violation of the Civil Service Law
by a judicial employee. But this case is slightly different in that petitioner committed the
offense before her appointment to the judicial branch. At the time of commission, petitioner was a public
school teacher under the administrative supervision of the DECS and, in taking the civil service
examinations, under the CSC. Petitioner surreptitiously took the CSC-supervised PBET exam in place of
another person. When she did that, she became a party to cheating or dishonesty in a civil service-
supervised examination.
That she committed the dishonest act before she joined the RTC does not take her case out of the
administrative reach of the Supreme Court.
The bottom line is administrative jurisdiction over a court employee belongs to the Supreme
Court, regardless of whether the offense was committed before or after employment in the
judiciary.
Indeed, the standard procedure is for the CSC to bring its complaint against a judicial employee before
the OCA. Records show that the CSC did not adhere to this procedure in the present case.
However, We are constrained to uphold the ruling of the CSC based on the principle of estoppel. The
previous actions of petitioner have estopped her from attacking the jurisdiction of the CSC. A party who
has affirmed and invoked the jurisdiction of a court or tribunal exercising quasi-judicial functions to secure
an affirmative relief may not afterwards deny that same jurisdiction to escape a penalty. 24 As this Court
declared in Aquino v. Court of Appeals:25
In the interest of sound administration of justice, such practice cannot be tolerated. If we are to
sanction this argument, then all the proceedings had before the lower court and the Court of
Appeals while valid in all other respects would simply become useless. 26
Under the principle of estoppel, a party may not be permitted to adopt a different theory on appeal to
impugn the court’s jurisdiction.27 In Emin v. De Leon,28 this Court sustained the exercise of jurisdiction by
the CSC, while recognizing at the same time that original disciplinary jurisdiction over public school
teachers belongs to the appropriate committee created for the purpose as provided for under the Magna
Carta for Public School Teachers.29 It was there held that a party who fully participated in the proceedings
before the CSC and was accorded due process is estopped from subsequently attacking its jurisdiction.
Petitioner was given ample opportunity to present her side and adduce evidence in her defense before
the CSC. She filed with it her answer to the charges leveled against her. When the CSC found her guilty,
she moved for a reconsideration of the ruling. These circumstances all too clearly show that due process
was accorded to petitioner.
Petitioner’s admission of guilt stands. Apart from her full participation in the proceedings before the
CSC, petitioner admitted to the offense charged – that she impersonated Decir and took the PBET exam
in the latter’s place. We note that even before petitioner filed a written answer, she voluntarily went to the
CSC Regional Office and admitted to the charges against her. In the same breath, she waived her right to
the assistance of counsel. Her admission, among others, led the CSC to find her guilty of dishonesty,
meting out to her the penalty of dismissal.
Now, she assails said confession, arguing that it was given without aid of counsel. In police custodial
investigations, the assistance of counsel is necessary in order for an extra-judicial confession to be made
admissible in evidence against the accused in a criminal complaint. If assistance was waived, the waiver
should have been made with the assistance of counsel.30
But while a party’s right to the assistance of counsel is sacred in proceedings criminal in nature, there is
no such requirement in administrative proceedings. In Lumiqued v. Exevea,31 this Court ruled that a party
in an administrative inquiry may or may not be assisted by counsel. Moreover, the administrative body is
under no duty to provide the person with counsel because assistance of counsel is not an absolute
requirement.32
Petitioner’s admission was given freely. There was no compulsion, threat or intimidation. As found by the
CSC, petitioner’s admission was substantial enough to support a finding of guilt.
The CSC found petitioner guilty of dishonesty. It is categorized as "an act which includes the procurement
and/or use of fake/spurious civil service eligibility, the giving of assistance to ensure the commission or
procurement of the same, cheating, collusion, impersonation, or any other anomalous act which amounts
to any violation of the Civil Service examination."33Petitioner impersonated Decir in the PBET exam, to
ensure that the latter would obtain a passing mark. By intentionally practicing a deception to secure a
passing mark, their acts undeniably involve dishonesty.34
This Court has defined dishonesty as the "(d)isposition to lie, cheat, deceive, or defraud;
untrustworthiness; lack of integrity; lack of honesty, probity or integrity in principle; lack of fairness and
straightforwardness; disposition to defraud, deceive or betray."35 Petitioner’s dishonest act as a civil
servant renders her unfit to be a judicial employee. Indeed, We take note that petitioner should not have
been appointed as a judicial employee had this Court been made aware of the cheating that she
committed in the civil service examinations. Be that as it may, petitioner’s present status as a judicial
employee is not a hindrance to her getting the penalty she deserves.
The conduct and behavior of everyone connected with an office charged with the dispensation of justice
is circumscribed with a heavy burden or responsibility. The image of a court, as a true temple of justice, is
mirrored in the conduct, official or otherwise, of the men and women who work thereat, from the judge to
the least and lowest of its personnel.36 As the Court held in another administrative case for dishonesty:
x x x Any act which diminishes or tends to diminish the faith of the people in the judiciary shall not
be countenanced. We have not hesitated to impose the utmost penalty of dismissal for even the
slightest breach of duty by, and the slightest irregularity in the conduct of, said officers and
employees, if so warranted. Such breach and irregularity detract from the dignity of the highest
court of the land and erode the faith of the people in the judiciary.
xxxx
As a final point, we take this opportunity to emphasize that no quibbling, much less hesitation or
circumvention, on the part of any employee to follow and conform to the rules and regulations
enunciated by this Court and the Commission on Civil Service, should be tolerated. The Court,
therefore, will not hesitate to rid its ranks of undesirables who undermine its efforts toward an
effective and efficient system of justice.37 (Emphasis added)
We will not tolerate dishonesty for the Judiciary expects the best from all its employees. 38 Hindi namin
papayagan ang pandaraya sapagkat inaasahan ng Hudikatura ang pinakamabuti sa lahat nitong
kawani.
WHEREFORE, the petition is DENIED for lack of merit.

SO ORDERED.
61

SUPREME COURT
Manila
EN BANC
A.M. No. SB-14-21-J September 23, 2014

[Formerly A.M. No. 13-10-06-SB]
RE: ALLEGATIONS MADE UNDER OATH AT THE SENATE BLUE RIBBON COMMITTEE
HEARING HELD ON SEPTEMBER 26, 2013 AGAINST ASSOCIATE JUSTICE GREGORY S.
ONG, SANDIGANBAYAN
DECISION
PER CURIAM:
The character of every act depends upon the circumstances in which it is done.
- Justice Oliver Wendell Holmes
This administrative complaint was filed by the Court En Banc after investigation into certain
allegations that surfaced during the Senate Blue Ribbon Committee Hearing indicated prima facie
violations of the Code of Judicial Conduct by an Associate Justice of the Sandiganbayan. The
investigation was conducted motu proprio pursuant to the Court's power of administrative
supervision over members of the Judiciary.1
Factual Antecedents
In the middle of 2013, the local media ran an expose involving billions of government funds
channeled through bogus foundations. Dubbed as the "pork barrel scam," as the money was
sourced from the Priority Development Assistance Fund allotted to members of the House of
Representatives and Senate, the controversy spawned massive protest actions all over the country.
In the course of the investigation conducted by the Senate Committee on Accountability of Public
Officers and Investigations (Blue Ribbon Committee), the names of certain government officials and
other individuals were mentioned by "whistle-blowers" who are former employees of the alleged
mastermind, Janet Lim-Napoles (Mrs. Napoles), wife of an ex-military officer. These personalities
identified by the whistle-blowers allegedly transacted with or attended Mrs. Napoles' parties and
events, among whom is incumbent Sandiganbayan Associate Justice Gregory S. Ong, herein
respondent.
Benhur Luy (Luy), a cousin of Mrs. Napoles who had worked for several years with the Napoleses,
filed illegal detention charges against Mrs. Napoles who accused him of double-dealing. When Luy
went public with his story about Mrs. Napoles' anomalous transactions and before the warrant of
arrest was issued by the court, she reportedly tried to reach out to the other whistle-blowers for them
not to testify against her but instead point to Luy as the one receiving and distributing the money.
Marina Sula (Sula) executed a Sworn Statement2 before the National Bureau of Investigation (NBI)
on August 29, 2013, part of which reads:
32. In the sixteen (16) years that I worked with Ms. Napoles, I witnessed several
personalities visit our offices and join us as our special guests during our parties and other
special occasions. 33. These personalities who would either visit our office or join our events
and affairs are: Senator Franklin Drilon, Senator Jinggoy Estrada and family, Senator Bong
Revilla, Lani Mercado-Revilla, Bryan Revilla, Secretary Rene Villa, Congressman Pichay and
Wife, Congressman Plaza, Congressman Ducut, DAR Director Theresita Panlilio, Catherine
Mae Canlas Santos, Pauline Labayen, Jen Corpuz (Staff of Senator Sotto), Mayor Rene
Maglanque, Atty. Dequina, Justice Gregory Ong, x x x.
34. Before the warrant of arrest was issued against Ms. Napoles, she told us that that case
could take four to five years to clear. She said, "Antayin niyo munang ma-clear pangalan ko
para makakilos ako at matulungan ko kayo". Sinabi niya na meron na siyang kausap sa
Ombudsman at sa Sandiganbayan.
35. On 28 August 2013 while me and my companions were at the NBI, Janet Lim Napoles
called me. She was crying and ask[i]ng me not to turn my back on her, that we should stay
together. She said "kahit maubos lahat ng pera ko, susuportahan ko kayo. Hintay[i]n nyo
kasi lalabas na ang TRO ko."
xxxx
38. Attorney Tan instructed us to implicate Benhur in case we were asked by the NBI. He
said "wala naman ipinakita sa inyong masama si Madam (Janet Lim Napoles). Siguro wala
naman kayong sama ng loob kay madam, kaya nga idiin ninyo si Benhur na siya ang nag-
utos at saka sa kanya ninyo ibinibigay ang pera."3(Emphasis supplied.)
The following day, the social news network Rappler published an article by Aries Rufo entitled
"Exclusive: Napoles Parties with Anti-Graft Court Justice" showing a photograph of Senator Jinggoy
Estrada (Senator Estrada), one of the main public figures involved in the pork barrel scam, together
with Mrs. Napoles and respondent. The reporter had interviewed respondent who quickly denied
knowing Mrs. Napoles and recalled that the photograph was probably taken in one of the parties
frequently hosted by Senator Estrada who is his longtime friend. Respondent also supposedly
admitted that given the ongoing pork barrel controversy, the picture gains a different context;
nevertheless, he insisted that he has untainted service in the judiciary, and further denied he was the
one advising Mrs. Napoles on legal strategies in connection with the Kevlar helmet cases where she
was acquitted by a Division of the Sandiganbayan of which respondent is the Chairman and the then
Acting Presiding Justice.4
On September 12, 2013, Sula executed a "Karagdagang Sinumpaang Salaysay "5 wherein she gave
details regarding those persons named in her sworn statement, alleged to have visited their office or
attended their events, thus:
63) T: Ayon sa paragraph Nos. 32 at 33 ng iyong sinumpaang salaysay na may petsang 29 Agosto
2013, nabanggit mo ang mga personalidad na nakikita mong bumibisita sa inyong opisina o di kaya
naman sa tuwing may party o special occacions si JANET NAPOLES ay may mga special guests
kayo na kinabibilangan ng mga malalaking pulitiko at ang iba naman ay may mga katungkulan sa
gobyerno. Maari mo bang ilahad ang mga pangyayari sa mga bawat pagkakataon na nakita mo sila
sa iyong pagkaka-alala?
S : Opo, iisa-isahin ko po ang mga pangyayari sa mga pagkakataon na nakita ko po ang mga taong
nabanggit ko:
xxxx
w) Justice GREGORY ONG - Isang beses ko po siyang nakitang nagpunta sa office sa 2501
Discovery Centre, Ortigas at nakita ko po silang magkausap ni Madam JANET NAPOLES sa
conference room.
x x x x6
In her testimony before the Senate Blue Ribbon Committee on September 26, 2013, Sula was asked
to confirm her statement regarding Justice Ong, thus:
THE CHAIRMAN. Thank you, Senator Grace.
Isang tanong lang kay Ms. Sula.
Sinabi niyo kanina may tinawagan si Ms. Napoles at sinabi niya, "Malapit na lumabas yung TRO
galing sa korte." May kilala pa ba si Janet Lim Napoles sa ltuwes sa korte sa Sandiganbayan? MS.
SULA. Hindi ko po alam.
THE CHAIRMAN. Your attention is called sa page –
MS. SULA. Sandiganbayan po, sorry. Mayroon po siyang binanggit na ano po –
THE CHAIRMAN. Nandito sa page 20.
MS. SULA. Si Mr. Ong, po, Justice Ong po.
THE CHAIRMAN. Gregory Ong.
MS. SULA Opo.
THE CHAIRMAN. Sa Sandiganbayan?
MS. SULA. Opo.
x x x7 (Emphasis supplied.)
In a letter dated September 26, 2013 addressed to Chief Justice Maria Lourdes P. A. Sereno,
respondent meticulously explained the controversial photograph which raised questions on his
integrity as a magistrate, particularly in connection with the decision rendered by the Sandiganbayan'
s Fourth Division in the Kevlar helmet cases, which convicted some of the accused but acquitted
Mrs. Napoles.
Respondent surmised that the photograph was taken during the birthday of Senator Estrada in
February, either in the year 2012 or 2013, but definitely not in 2010 or earlier. He explained that he
could vaguely remember the circumstances but it would have been rude for him to prevent any guest
from posing with him and Senator Estrada during the party. On the nature of his association with
Mrs. Napoles, respondent asserted:
(4) I can categorically state, on the other hand, that I have never attended any party or social event
hosted by Mrs. Napoles or her family, either before she had a case with our court, or while she
already had a pending case with our court, or at any time afterwards. I have never, to use the term of
Mr. Rufo in his article, "partied" with the Napoleses. (Emphasis supplied.)
As to the Kevlar helmet cases, respondent said it was impossible for him to have been advising Mrs.
Napoles, as claimed by Mr. Rufo, as even the article itself noted that Mrs. Napoles' own brother,
Reynald L. Lim, ( a.k.a. Reynaldo L. Francisco), a co-accused in the case, was convicted by the
Sandiganbayan. He stressed that these cases were decided on the merits by the Sandiganbayan,
acting as a collegial body and he was not even the ponente of the decision. Respondent thus
submitted himself to the discretion of the Chief Justice such that even without being required to
submit an explanation, he voluntarily did so "to defend [his] reputation as a judge and protect the
Sandiganbayan as an institution from unfair and malicious innuendos."
On October 7, 2013, Chief Justice Sereno wrote the Members of this Court, citing the testimonies of
Luy and Sula before the Senate Blue Ribbon Committee "[t]hat the malversation case involving Mrs.
Janet Lim-Napoles, Major Jaime G. Napoles, Jenny Lim Napoles, Reynaldo L. Francisco and other
perpetrators was 'fixed' (inayos) through the intervention of Justice Gregory S. Ong of the
Sandiganbayan", to wit:
SEN. ANGARA. Sa inyo, hindi niyo a/am kung inayos iyong kaso na iyon? Kasi napakaraming
koneksiyon, 'di ba?
xxxx Sige, huwag kang matakot, Benhur.
MR. LUY. Alam ko, inayos ni Ms. Napoles iyon dahil may connect nga siya sa Sandiganbayan
SEN. ANGARA. Okay.
xxxx
THE CHAIRMAN. xxx Sinabi niyo kanina na may tinawagan si Ms. Napoles at sinabi niya "Malapit
na lumabas yung TRO galing sa korte." May kilala pa ba si Janet Lim Napoles sa huwes sa korte sa
Sandiganbayan?
xxxx
MS. SULA. Si Mr. Ong po, Justice Ong po.
THE CHAIRMAN. Gregory Ong.
MS. SULA. Opo.
THE CHAIRMAN. Sa Sandiganbayan?
MS. SULA. Opo.

Xxxx8
Chief Justice Sereno then requested the Court En Banc to conduct an investigation motu proprio
under this Court's power of administrative supervision over members of the judiciary and members
of the legal profession (referring to notaries public who were alleged to have purposely left their
specimen signatures, dry seals and notarial books with Mrs. Napoles to facilitate the incorporation of
non-governmental organizations [NGOs] involved in the scam).9
Under our Resolution dated October 17, 2013, the Court En Banc required respondent to submit his
comment and directed the NBI to furnish the Court with certified copies of the affidavit of Luy. On
November 21, 2013, the Court received respondent's Comment.10 Respondent categorically denied
any irregularity in the Kevlar helmet cases and explained the visit he had made to Mrs. Napoles as
testified by Sula.
On Sula's statement, respondent points out that Sula never really had personal knowledge whether
respondent is indeed the alleged "contact" of Mrs. Napoles at the Sandiganbayan; what she
supposedly "knows" was what Mrs. Napoles merely told her. Hence, Sula's testimony on the matter
is based purely on hearsay. Assuming that Mrs. Napoles actually made the statement, respondent
believes it was given in the context of massive media coverage of the pork barrel scam exploding at
the time. With the consciousness of a looming criminal prosecution before the Office of the
Ombudsman and later before the Sandiganbayan, it was only natural for Mrs. Napoles to assure
Sula and others involved in their business operation that she would not leave or abandon them and
that she would do all that she can to help them just so they would not turn their backs on her and
become whistle-blowers. Thus, even if Mrs. Napoles made misrepresentations to Sula regarding
respondent as her "connection", she only had to do so in order to convince Sula and her co-
employees that the cases to be filed against them would be "fixed."
As to Sula's statement that she personally witnessed respondent at one time visiting Mrs. Napoles at
her office and having a meeting with her at the conference room, respondent said that at the birthday
party of Senator Estrada where the controversial photograph was taken, Mrs. Napoles engaged him
in a casual conversation during which the miraculous healing power of the robe or clothing of the
Black Nazarene of Quiapo was mentioned. When Mrs. Napoles told respondent that she is a close
friend of the Quiapo Church's parish priest, he requested her help to gain access to the Black
Nazarene icon. Eventually, respondent, who is himself a Black Nazarene devotee and was
undergoing treatment for his prostate cancer, was given special permission and was able to drape
the Black Nazarene's robe or clothing for a brief moment over his body and also receive a fragrant
ball of cotton taken or exposed to the holy image, which article he keeps to this day and uses to wipe
any ailing part of his body in order to receive healing. Because of such favor, respondent out of
courtesy went to see Mrs. Napoles and personally thank her. Respondent stressed that that was the
single occasion Sula was talking about in her supplemental affidavit when she said she saw
respondent talking with Mrs. Napoles at the conference room of their office in Discovery Suites.
Respondent maintains that there was nothing improper or irregular for him to have personally seen
Mrs. Napoles at the time in order to thank her, considering that she no longer had any pending case
with his court, and to his knowledge, with any other division of the Sandiganbayan at the time and
even until the date of the preparation of his Comment. He thus prays that this Court duly note his
Comment and accept the same as sufficient compliance with the Court's Resolution dated October
17, 2013.
This Court upon evaluation of the factual circumstances found possible transgressions of the New
Code of Judicial Conduct committed by respondent. Accordingly, a Resolution was issued on
January 21, 2014 stating that:
WHEREFORE, the Court hereby resolves to have the instant administrative matter RE-DOCKETED
as A.M. No. SB-14-21-J (Re: Allegations Made Under Oath at tlze Senate Blue Ribbon Committee
Hearing held on September 26, 2013 against Associate Justice Gregory S. Ong, Sandiganbayan),
and ASSIGNS the same to retired Supreme Court Justice Angelina Sandoval-Gutierrez for
investigation, report and recommendation within a period of sixty (60) days from notice hereof.
The Court further resolves to NOTE the letter dated January 7, 2014 of Atty. Joffre Gil C. Zapata,
Executive Clerk of Court III, Sandiganbayan, Fourth Division, in compliance with the resolution of the
Court En Banc dated December 3, 2013, transmitting the original records of Criminal Case Nos.
26768 and 26769. Atty. Zapata is INFORMED that there is no more need to transmit to this Court
the post-sentence investigation reports and other reports on the supervisory history of the accused-
probationers in Criminal Case Nos. 26768 and 26769.
Report and Recommendation of the Investigating Justice
Justice Angelina Sandoval-Gutierrez, a retired Member of this Court, submitted her report with the
following findings and conclusions:
FACTUAL ANTECEDENTS
1. THE KEVLAR CASE
Two criminal cases were filed with the Sandiganbayan sometime in 2001 - Criminal Case No. 26768
for Falsification of Public Documents and Criminal Case No. 26769 for Violation of Section 3(e) of
the AntiGraft Law. Charged were several members of Philippine Marine Corps and civilian
employees including Ms. Janet L. Napoles (Napoles), her mother Magdalena Francisco (now
deceased), her brother Reynaldo Francisco and wife Anna Marie Dulguime, and her (Napoles') three
employees.
These cases are referred to as the Kevlar case because the issue involved is the same - the
questionable purchase of 500 Kevlar helmets by the Philippine Marine Corps in the amount of
₱3,865,310.00 from five suppliers or companies owned by Napoles.
The prosecution alleged inter alia that the accused, acting in conspiracy, released the payment
although there was yet no delivery of the Kevlar helmets; that the suppliers are mere dummies of
Napoles; and that the helmets were made in Taiwan, not in the U.S.A.
Napoles' husband, Major Jaime Napoles, was dropped from the two Informations in an Order issued
by the Ombudsman on March 18, 2002.
Napoles' mother, brother, and sister-in-law were among those convicted for the lesser crime of
Falsification of Public Documents and sentenced to suffer the penalty of 4 years and 2 months of
prision correccional to 8 years and 1 day of prision mayor and each to pay PS,000.00. They all
underwent probation.
Napoles and six members of the Philippine Marine Corps were acquitted in both cases.
The court ruled that Napoles "was not one of the dealer-payees in the transaction in question. Even
if she owns the bank account where the 14 checks were later deposited, this does not in itself
translate to her conspiracy in the crimes charged x x x."
xxxx
THE INVESTIGATION
xxxx
I. During the investigation, Benhur testified that he and Napoles are second cousins. After passing
the Medical Technology Licensure Examination in 2002, he was employed in the JLN (Janet Lim
Napoles) Corporation as Napoles' personal assistant. As such, he was in charge of disbursements of
her personal funds and those of her office. He was also in charge of government transactions of the
corporation and kept records of its daily business activities.
In the course of Benhur's employment at the JLN Corporation, Napoles mentioned to him the Kevlar
case, then pending in the Sandiganbayan, saying she has a "connect" in that court who would help
her.
When asked about his testimony before the Senate Blue Ribbon Committee concerning the Kevlar
case, Benhur declared that Napoles' "connect" with the Sandiganbayan is respondent, thus:
Q The question was, Mr. Witness, this is coming from Senator Angara, and I quote, "Kailan ho
lumabas yung decision ng Court sa Kevlar?" And just to refresh your memory, Mr. Witness, then Ms.
Sula answered, "I think 2010. Yun po yung lumabas po." And then going forward, Senator Angara
referred to both of you this question: "Sa inyo, hindi ninyo alam kung inayos yung kaso na iyon kasi
napakaraming koneksyon, di ba? Baka alam ng ibang whistleblowers kung nagka-ayusan sa kaso
na iyon. Sige, huwag kang matakot, Benhur." Do you remember that question being asked from
you?
xxxx
A Yes po.
Q And now Mr. Witness, about this statement of yours at the Blue Ribbon Committee that Ms.
Napoles has a certain connect sa Sandiganbayan, who was this connect you were talking about, if
you remember?
Witness Luy
A Si Justice Gregory Ong po.
Q How do you know that Justice Gregory Ong was the connect of Ms. Napoles at the
Sandiganbayan?
A Ang sinabi po ... Si Ms. Napoles, pinsan ko po kasi we are second cousins. So kinuwento talaga
sa akin ni Madam kung ano ang mga developments sa mga cases, kung ano ang mga nangyayari.
Tapos po, sinabi niya sa akin mismo na nakakausap niya si Justice Gregory Ong at ang nagpakilala
raw sa kanya po ay si Senator Jinggoy Estrada.
Benhur further testified that even before the decision in the Kevlar case was promulgated, Napoles
and respondent were already communicating with each other (nag-uusap na po si!a). Therefore, she
was sure the decision would be in her favor:
Q Do you remember the date when the decision (in Kevlar case) was promulgated?
A Ano po, the year 2010 po ma' am.
Q And you met him (Justice Ong) in 2012?
A 2012 po, pero prior to that decision, madam, naririnig ko na po kay madam (Ms. Napoles) kasi
kinukwento na po ni madam sa akin na nag-uusap na po sila ni Justice Gregory Ong.
Q That was after the decision was promulgated?
A Bago po nailabas yung decision, ikinwento po m Ms. Napoles sa akin na nag-uusap na po sila ni
Justice Gregory Ong. Kaya kampante po si Ms. Napoles. Noong lumabas po yung decision, alam
niya na po. Yung ang sabi sa akin ni Ms. Napoles.
Going back to the hearing before the Blue Ribbon Committee, Benhur told Senator Angara that
Napoles fixed the Kevlar case because she has a "connect" in the Sandiganbayan:
"Baka alam ng ibang whistle blowers kung nagkaka-ayusan sa kaso na iyon (Kevlar case). Sige
huwag kang matakot Benhur."
Benhur Luy: "Alam ko inayos ni Ms. Napoles iyon dahil may connect nga siya sa Sandiganbayan."
On how Napoles "inayos" or fixed the Kevlar case, Benhur said that he kept a ledger of the
Sandiganbayan case wherein he listed all her expenses in the sum of P 100 million pesos. He was
surprised why she would spend such amount considering that what was involved in the Kevlar case
was only ₱3.8 million. She explained that she gave various amounts to different people during the
pendency of the case which lasted up to ten years. And before the decision in the Kevlar case was
released, she also gave money to respondent but she did not mention the amount. Thus, she knew
she would be acquitted.
Q You answered Senator Angara this way which we already quoted a while ago, "Alam ko inayos ni
Ms. Napoles iyon dahil may connect nga siya sa Sandiganbayan." You stated that the connect is
Justice Ong. Can you explain before us what you mean, "Alam ko inayos ni Ms. Napoles iyon." What
do you mean by that "inayos"?
A Kasi po ma' am meron kaming ledger ng Sandiganbayan case sa lahat ng nagastos ni Ms. Janet
Napoles, nilista ko po yon lahat. Kasi naririnig ko po kay Janet Napoles, parang pinsan ko po si
Janet Napoles, "Paano nagkaroon ng kaso ang ate ko? So nadiscover ko na Jang po na yun pala
yung Kevlar. So, mahigit one hundred million na nagastos po ni Ms. Napoles kasi di Jang naman po
si sir Justice Gregory Ong ...
xxx
Q Did you come to know to whom she gave all the money?
A Wala po siyang ... basta ang sabi niya inayos na niya si ... binaggit niya po si ... kasi si madam
hindi kasi nagki-keep kasi ako pinsan niya po kasi ako, nabanggit niya po si Justice Gregory Ong.
Sinabi niya nagbigay daw po siya ng pera kay Justice Ong pero she never mentioned kung
magkano yung amount.
xxx
Q Nagbigay ng pera kay Justice Gregory Ong?
A Opo, yung ang sabi niya (referring to Ms. Napoles).
Q To you?
A Yes, madam.
Q Do you remember when she made that kind of statement?
A Bago po ano madam, bago po lumabas yung decision kaya kampante na po si Ms. Napoles bago
lumabas yung decision na acquitted siya. Alam na niya. Sa Kevlar case.
xxx
Justice Gutierrez
Continue counsel.
Witness Luy
Kasi naikwento po madam ni Ms. Napoles na almost PlOO million na ang nagastos niya. Tapos ang
sabi ko nga po sa kanya: "Madam, P 100 million na sa halagang ₱3.8 lang na PO (purchase order)
sa Kevlar helmet, tapos P 100 million na ang nagastos mo?"
Q Did she tell you or explain to you to whom this P 100 million was paid? How was it spent?
A Basta ang natatandaan ko ... di ko na po matandaan ang mga dates kasi parang staggered. May
₱5 million sa ibang tao ang kausap niya. Tapos ito naman tutulong ng ganito. lba-iba kasi madam,
eh.
Q But there was no showing the money was given to Justice Ong?
A Wala po pero nabanggit lang po niya (Ms. Napoles) sa akin na nagbigay po siya kay Justice Ong,
but she never mentioned the amount.
Continuing with his testimony, Benhur declared that in 2012, respondent went twice to Napoles'
office at the Discovery Suites Center, 25 ADB Avenue, Ortigas, Pasig City. On the first visit, Napoles
introduced Justice Ong to Benhur and her other employees.
Benhur narrated what transpired during that visit. According to him, Napoles has so much money
being placed at the Armed Forces of the Philippines and Police Savings and Loan Association, Inc.
(AFPSLAI) which offered 13% interest annually. Napoles called Benhur telling him that respondent
would like to avail of such interest for his BDO check of ₱25.5 million. To arrange this, Napoles
informed Benhur that she would just deposit respondent's ₱25.5 million in her personal account with
Metro bank. Then she would issue to respondent in advance eleven (11) checks, each amounting to
₱282,000.00 as monthly interest, or a total of ₱3,102,000.00 equivalent to 13% interest. Upon
Justice Ong's suggestion, the checks should be paid to cash. So, Benhur prepared the
corresponding eleven (11) checks, thus:
Q With respect to the Kevlar case, what participation did you have, if there was any?
Witness Luy
A Noon 2012 po kasi si Justice Gregory Ong po nasa unit 2501, yung office (of Ms. Napoles), so
kami ni Janet Napoles, nandito sa 2502 kasi yun po talaga ang office namin. Si Ms. Napoles po
sinabi niya sa akin, Ben, kasi si Ms. Napoles, may pera siyang madarni na pine-place niya po sa
AFPSLAI at yung AFPSLAI po ay nagbibigay po sa kanya o nagooffer ng 13% interest annually po.
So, ang nangyari po <loon, sabi ni Janet Napoles, si Justice Ong ho raw, gustong magkaroon din ng
interest parang ganoon. So tutulungan niya. So ang ginawa po namin x x x. Q Meaning to say,
Justice Ong would like to deposit money?
A Opo.
Q So he could get 13% interest?
A Opo, kasi tapos madam ang nangyari po pumunta na po si Ms. Napoles sa kanyang opisina.
Tinawag po niya ako kasi pinasulat na niya sa akin ang checke. So, ang ginawa po ni Ms. Napoles,
yung checke ni .. BDO check po kasi yun. Ang sabi sa akin ni Ms. Napoles, checke daw po yun ni
Justice Gregory Ong. Sa, BDO. So, di ko naman din po nakita Madam yung nakalagay sa ...
Q So it is the check of Justice Ong, not the check of Ms. Napoles?
A Opo, ang amount po ng check madam ay ₱25.5 million ang amount noong BDO check na inissue
...
Q That belongs to Justice Ong?
A Opo. Tapos madam, so ang ginawa po namin ni Ms. Napoles, dahil po 13% interest ang ino-offer
ng AFPSLAI, sabi ni Madam ganito na lang, Ben, ipasok na lang muna natin yung check niya sa
personal account ko. Ako na lang muna for the meantime, mag-iissue ng check sa kanya para
maavail ni Justice Ong yung interest. So, ang ginawa nan1in madam, ₱25.5 million times 13%
interest, tapos divided by 12, lumalabas ₱282,000.00 or ₱283,000.00 or ₱281,000.00 po madam
kasi naground off kami sa ₱282,000.00. So, ang ginawa ni Madam, baga monthly. So eleven (11)
checks ang prinepare namin. Kung hindi po ako nagkakamali po, JLN Corporation check ang ... Ako
pa nga po ang nagsulat at saka bago po namin isinulat yung payee, inalam pa po namin. x x x So,
pumunta na naman si madam sa 2501 kasi nandoon si Justice Gregory Ong. Noong bumalik siya,
pay to cash na lang daw. So, makikita po sa records namin ni Ms. Napoles na pumasok ang ₱25.5
million na amount sa kanyang account at the same time nag-issue siya ng checke na ₱282,000.00
na eleven checks. Nagstart kami madam 2012, siguro sometime July or August or mga ganoong
buwan po. Basta 11 checks, hindi nalalayo doon. So, siguro tapos na.
Q But what actually turned out was that the money of Justice Ong was deposited at the bank but the
interest was paid in advance by Ms. Napoles, and actually the bank will pay Ms. Napoles the
advanced interest she paid to Justice Ong, is that clear? Is that the arrangement? Do you
understand me?
A Kasi ang nangyari po ma'am ganito e: yung ₱25.5 million ipinasok sa personal account ni Ms.
Napoles dito sa Metrobank. Metrobank kasi po yun e.
On the second visit of respondent to Napoles' office, they just engaged in conversation. She ordered
Chinese food for him which, according to Benhur, is his (respondent's) favorite.
On cross-examination, Benhur claimed that in his affidavits executed in the NBI, he did not mention
respondent's name. However, in his reply-affidavit filed with the Sandiganbayan, he alleged that
Napoles issued ₱282,000.00 (the amount stated in each of the 11 checks) but he did not mention
the name of the payee upon instruction of his lawyer, Atty. Baligod. Nonetheless, he knew that the
checks were issued to respondent.
II. Sula, also a whistle blower, testified that she was an employee of JLN Corporation. Her duties
included the formation of corporations by making use of the forms, applying for business licenses,
transfer of properties, purchase of cars, and others.
Sula corroborated Benhur's testimony that respondent visited the office of Napoles twice sometime
in 2012.
Sula was asked to explain her testimony before the Blue Ribbon Committee during the hearing on
September 26, 2013, quoted as follows:
The Chairman (Senator Teofisto Guingona III)
Sinabi ninyo na may tinawagan si Mrs. Napoles at sinabi niya, Malapit nang lumabas yung TRO
galing sa korte. May kilala pa ba si Janet Lim Napoles sa huwes sa korte sa Sandiganbayan?
xxx
Ms. Sula
Si Mr. Ong po. Justice Ong po.
The Chairman
Gregory Ong?
Ms. Sula
Opo.
The Chairman
Sa Sandiganbayan?
Ms. Sula
Opo.
The Chairman
Okay. With that, I will just have a closing statement before we leave the hearing.
Sula explained that the TRO mentioned by Napoles refers to the TRO to be issued by the
Sandiganbayan in the event the case involving the PIO billion PDAF scam against her is filed with
that court; and that Napoles told Sula and the other employees not to worry because she has
contact with the Sandiganbayan - respondent Justice Ong, thus:
Q Not the illegal detention case?
Witness Sula
A Hindi po, pag nakasuhan na po kami sa Sandiganbayan.
Q Okay, again?
A Sa pagkakaintindi po namin, ang sabi po ni Madam na it takes 4 to 5 years, so hihintayin niya na

maacquit, sabi niyang ganoon, ang pangalan niya para maluwag na tulungan kami. Ito po ang
pagkakaintindi namin na sa Sandiganbayan.
Q Yung PDAF?
A Opo, yung PDAF sa Sandiganbayan.
Q Pagdating ng kaso sa Sandiganbayan?
A Opo, kasi po ina-ano po niya, siya po tinitira na ni Benhur - si Madam tungkol sa PlO billion scam.
So, pinag-uusapan namin sa bahay niya sa South Garden Unit na, Madam, paano po yan, pag lahat
ng kaso na iyan dadaan sa lawmakers, dadaan yon sa Ombudsman at saka sa Sandiganbayan?
Sabi niya, "Huwag kayong mag-alala. Meron naman akong mga contact doon." Sabi niyang ganoon
sa Ombudsman at sa Sandiganbayan.
Q Is that in your affidavit?
A Wala po. Pero sinabi ko po doon sa part na yon (her testimony before the Senate Blue Ribbon
Committee) na meron na siyang kilala sa Ombudsman, pero hindi niya nabanggit ang pangalan.
Pero sa Sandiganbayan, ang alam namin kilala niya si Justice Ong.
Q Yun ang sagot niya kay Chairman Guingona. Di ba I read it a while ago?
A Opo, doon sa Sandiganbayan.
Sula also testified that every time Napoles talked to her and the other employees, she would say that
Justice Ong will help her in the Kevlar case. Sula's testimony is as follows:
Q x x x you told me that somebody will help in the Kevlar case?
A Opo. Sinabi po niya sa amin every time po pag nagkukwento siya, sinasabi niya na si Justice Ong
ang tumulong sa kanya para ma-clear po yung Kevlar case niya.
Sula likewise testified that Napoles told her and the other employees that she will fix (aayusin) the
"PDAF case" in the Sandiganbayan. Then they replied in jest that her acquaintance in that court is
respondent. Napoles retorted, "Ay huag na iyon kasi masyadong mataas ang talent fee."
xxxx
III. Aries Rufo, a Reporter of Rappler, testified that he cannot reveal who gave him the photograph
[of respondent beside Napoles and Senator Jinggoy Estrada] because he is shielded by law and he
has to protect his source.
When asked about his comment upon seeing the picture, Rufo said:
Initially, when I saw the picture, since I knew that Justice Ong was one of the members of the
division that handled the Kevlar case, it aroused my curiosity why he was in that picture. Second,
because in journalism, we also get to practice ethical standards, I immediately sensed though that a
Justice or a lawyer, that he should not be seen or be going to a party or be in an event where
respondent (Ms. Napoles) was in a case under his Division. He should not be in a situation that
would compromise the integrity of his office.
Rufo further testified that on August 27, 2013, he faxed a letter to respondent to "get his side about
the photo." The next day, he went to respondent's office and showed it to him. Respondent was
shocked. He explained that it must have been taken during one of the parties hosted by his friend
Senator Jinggoy Estrada; that he did not know that the woman in the picture is Napoles because she
did not appear during the hearing of the Kevlar case; and that such picture must have been taken in
one of those instances when a guest would like to pose with celebrities or public figures.
xxxx
Respondent, in his defense, vehemently denied the imputations hurled against him.
1. He asserted that he could not be the contact or "connect" of Napoles at the

Sandiganbayan for he never met or came to know her during the pendency of the Kevlar
case;
2. Challenging Benhur's testimony that he fixed or "inayos" the Kevlar case, respondent
claimed that it was decided based on the merits by the Sandiganbayan Fourth Division as a
collegial body. The two other members of the court, Justice Jose R. Hernandez (ponente)
and Justice Maria Cristina J. Cornejo, are independent-minded jurists who could not be
pressured or influenced by anybody, not even by their peers;
3. On Benhur's allegation that respondent received an amount of money from Napoles prior
to the promulgation of the decision in the Kevlar case, respondent deplored the fact that
Benhur was attempting to tarnish his reputation without any proof. And that it is unthinkable
for him to have received money from Napoles considering that her mother, brother, and
sister-in-law were convicted;
4. Respondent admitted he went to Napoles' office twice, sometime in March 2012, after the
decision in the Kevlar case was promulgated in 2010 and narrated what prompted him to do
so, thus:
At the birthday party of Senator Jinggoy Estrada on February 17, 2012, Napoles approached him
and introduced herself. She engaged him in a casual conversation and thanked him for her acquittal
in the Kevlar case. Respondent replied she should thank her "evidence" instead, adding that had the
court found enough evidence against her, she would have been convicted. She talked about her
charity works like supporting Chinese priests, building churches and chapels in China, and
sponsoring Chinese Catholic priests. He was not interested though in what she was saying until she
mentioned the name of Msgr. Ramirez, former Parish Priest of Quiapo Church.
Respondent became interested because he has been a devotee of the Holy Black Nazarene since
he was a little boy. Napoles told him that Msgr. Ramirez has with him the robe of the Holy Black
Nazarene which has a healing power if one wears it. Then respondent asked if he can have access
to the robe so he can be cured of his ailment (prostate cancer) which he keeps only to himself and to
the immediate members of his family. Napoles made arrangement with Msgr. Ramirez until
respondent was able to drape the robe over his body for about one or two minutes in Quiapo
Church. He also received a fragrant ball of cotton which he keeps until now to heal any ailing part of
his body. That was a great deal for him. So out of courtesy, he visited Napoles in her office and
thanked her. That was his first visit.
Thereafter, Napoles kept on calling respondent, inviting him to her office, but he kept on declining.
Then finally after two weeks, he acceded for she might think he is "walang kwentang tao." They just
engaged in a small talk for about 30 minutes and had coffee.
5. Concerning Benhur's testimony that Napoles paid respondent an advanced interest consisting of
eleven (11) checks in the amount of ₱282,000.00 each and that he issued to her his BDO check of
₱25.5 million which she deposited in her account, he claimed that "he never issued that check as he
did not intend to invest in AFPSLAI. In fact, he does not have any money deposited there. Inasmuch
as he did not issue any BDO check, it follows that Napoles could not have given him those eleven
(11) checks representing advanced interest. He further explained that he found from the internet that
in AFPSLAI, an investor can only make an initial deposit of ₱30,000.00 every quarter or Pl20,000.00
per year. The limit or ceiling is ₱3 million with an interest of 15% or 16% per annum.
6. The whistle blower's testimony are conflicting and therefore lack credibility. While Sula testified
that Napoles told her that she did not want to approach respondent (should a case involving the pork
barrel scam be filed with the Sandiganbayan) because his talent fee is too high, however, both
whistle blowers claimed that he is Napoles' contact in the Sandiganbayan.
With respect to the Rappler Report, according to respondent, Rufo was insinuating four things: 1.
That there was irregularity in the manner the Kevlar case was decided;
2. That respondent was close to Napoles even during the pendency of the Kevlar case;
3. That respondent was attending parties of the Napoleses; and
4. That respondent was advising Napoles about legal strategies relative to the Kevlar case.
Respondent "dismissed all the above insinuations as false and without factual basis." As to the last
insinuation that he advised Napoles about legal strategies to be pursued in the Kevlar case,
respondent stressed that the case was decided by a collegial body and that he never interceded on
her behalf.
EVALUATION
xxxx
It bears stressing that before the Senate Blue Ribbon Committee, Benhur initially testified that
Napoles fixed or "inayos" the Kevlar case because she has a contact at the Sandiganbayan,
referring to respondent. Sula corroborated Benhur's testimony.
Testifying before the Senate Blue Ribbon Committee is certainly an ordeal. The witnesses and
everything they say are open to the public. They are subjected to difficult questions propounded by
the Senators, supposedly intelligent and knowledgeable of the subject and issues under inquiry. And
they can easily detect whether a person under investigation is telling the truth or not. Considering
this challenging and difficult setting, it is indubitably improbable that the two whistle blowers would
testify false! y against respondent.
Moreover, during the investigation of this case, Benhur and Sula testified in a candid,
straightforward, and categorical manner. Their testimonies were instantaneous, clear, unequivocal,
and carried with it the ring of truth.
In fact, their answers to the undersigned's probing questions were consistent with their testimonies
before the Senate Blue Ribbon Committee. During cross-examination, they did not waver or falter.
The undersigned found the two whistle blowers as credible witnesses and their story untainted with
bias and contradiction, reflective of honest and trustworthy witnesses.
The undersigned therefore finds unmeritorious respondent's claim that Benhur and Sula were lying.
. . . respondent insisted he could not have intervened in the disposition of the Kevlar case
considering that Napoles' mother, brother and sister-in-law were convicted.
Respondent must have forgotten that Napoles' natural instinct was self-preservation. Hence, she
would avail of every possible means to be exonerated. Besides, respondent's belief that the two
members of his Division are independent-minded Jurists remains to be a mere allegation.
xxxx
With the undersigned's finding that there is credence in the testimonies of Benhur and Sula, there is
no need to stretch one's imagination to arrive at the inevitable conclusion that in "fixing" Kevlar case,
money could be the consideration ... Benhur testified he kept a ledger (already shredded) of
expenses amounting to P 100 million incurred by Napoles for the Sandiganbayan during the
pendency of the Kevlar case which extended up to ten years; and that Napoles told him she gave
respondent an undetermined sum of money.
Respondent maintains that the testimonies of Benhur and Sula are pure hearsay, inadmissible in
evidence:
Justice Ong
Your honor, since these are all accusations against me by Luy and Sula, and according to Luy and
Sula, these were only told to them by Napoles, always their statements were ... they do not have
personal knowledge, it was only told to them by Napoles, is it possible that we subpoena Napoles so
that the truth will come out? If. ..
xxxx
Justice Gutierrez
That is your prerogative.
Justice Ong
I am willing to take the risk although I know I am not an acquaintance of Napoles. Just to clear my
name whether I should be hung or I should not be hung.
xxxx
Atty. Geronilla
I don't think it would be necessary, your honor.
Justice Gutierrez (to Atty. Geronilla)
Discuss this matter with your client, file a motion, then we will see.
However, respondent and his counsel did not take any action on the undersigned's suggestion. They
did not present Napoles to rebut the testimonies of Benhur and Sula. Significantly, respondent failed
to consider that his testimony is likewise hearsay. He should have presented Msgr. Ramirez and
Napoles as witnesses to support his claim regarding their role which enabled him to wear the robe of
the Holy Black Nazarene.
x x xx
Respondent's acts of allowing himself to be Napoles' contact in the Sandiganbayan, resulting in the
fixing of the Kevlar case, and of accepting money from her, constitute gross misconduct, a violation
of the New Code of Judicial Conduct for the Philippine Judiciary.
xxxx
That Benhur personally prepared the eleven (11) checks which Napoles handed to respondent led
the undersigned to conclude without hesitation that this charge is true. It is highly inconceivable that
Benhur could devise or concoct his story. He gave a detailed and lucid narration of the events,
concluding that actually Napoles gave respondent ₱3, 102,000.00 as advanced interest.
According to respondent, the purpose of his first visit was to thank Napoles for making it possible for
him to wear the Holy Black Nazarene's robe. Even assuming it is true, nonetheless it is equally true
that during that visit, respondent could have transacted business with Napoles. Why should Napoles
pay respondent an advanced interest of ₱3,102,000.0 with her own money if it were not a
consideration for a favor?
Respondent's transgression pertains to his personal life and no direct relation to his judicial function.
It is not misconduct but plain dishonesty. His act is unquestionably disgraceful and renders him
morally unfit as a member of the Judiciary and unworthy of the privileges the law confers on him.
Furthermore, respondent's conduct supports Benhur's assertion that he received money from
Napoles.
Dishonesty likewise violates Canon 2 (1 and 2) on Integrity of the same Code providing in part that
judges must ensure that their conduct is above reproach and must reaffirm the people's faith in the
integrity of the Judiciary.
Indeed, respondent should not stay in his position even for a moment.
xxxx
...From respondent's end, there was nothing wrong when he visited Napoles twice in her office
considering that the visits took place long after the promulgation of the decision in the Kevlar case.
Contrary to respondent's submission, such acts also constitute gross misconduct in violation of
Canon 4 on Propriety of the same Code. Section 1 provides that judges shall avoid impropriety and
the appearance of impropriety in all of their activities .
. . . respondent's reason for his first visit was to thank Napoles for her help in making it possible for
him to wear the robe of the Holy Black Nazarene. Instead of visiting her, respondent could have
extended his gratitude by simply calling her by phone. Worse, he visited her again because she may
think he is an unworthy person. This is an extremely frail reason. He was seen by the whistle
blowers and their co-workers who, without doubt, readily confirmed that he was Napoles' contact at
the Sandiganbayan and that he "fixed" the decision in the Kevlar case.
Respondent cannot be excused for his unconcern for the position he holds. Being aptly perceived as
the visible personification of law and justice, his personal behavior, not only while in the performance
of official duties but also outside the court, must be beyond reproach. A judicial office circumscribes
a personal conduct and imposes a number of inhibitions, whose faithful observance is the price one
has to pay for holding an exalted position.
xxxx
On the photograph showing respondent
with Senator Jinggoy Estrada and Napoles.
xxxx
This incident manifests respondent's disregard of the dictum that propriety and the appearance of
propriety are essential to the performance of all the activities of a judge. This exacting standard of
decorum is demanded from judges to promote public confidence in the integrity of the Judiciary.
In joining Senator Estrada and Napoles in a picture taking, respondent gave a ground for reproach
by reason of impropriety. It bears reiterating Canon 4 (1) on Propriety of the same Code which
provides that judges shall avoid impropriety and the appearance of impropriety in all of their
activities.
Respondent maintained that he did not know Napoles at that time because she was not present
before the Sandiganbayan during the hearing of the Kevlar case for she must have waived her
appearance. Respondent's explanation lacks merit. That court could not have acquired jurisdiction
over her if she did not appear personally for arraignment.
Of utmost significance is the fact that this is not the first time that respondent has been charged
administratively. In "Assistant Special Prosecutor Ill Rohermina J Jamsani-Rodriguez v. Justices
Gregory S. Ong, Jose R. Hernandez and Rodolfo A. Ponferrada, Sandiganbayan,'' the Supreme
Court found respondent Justice Ong guilty of violation of PD 1606 and The Revised Internal Rules of
the Sandiganbayan for nonobservance of collegiality in hearing criminal cases in the Hall of Justice,
Davao City. Instead of siting as a collegial body, the members of the Sandiganbayan Fourth Division
adopted a different procedure. The Division was divided into two. As then Chairperson of the
Division, respondent was ordered to pay a fine of ₱15,000.00 with a stern warning that a repetition of
the same or similar offense shall be dealt with more severely.
xxxx
...the undersigned cannot hold back her skepticism regarding the acquittal of Napoles. The
Sandiganbayan Fourth Division, of which respondent was the Chairman, held that Napoles did not
conspire with the suppliers in the questionable purchase of the Kevlar helmets as she was not one of
the "dealer-payees" in the transaction in question and that there was no proof of an overt act on her
part. How could the Fourth Division arrive at such conclusion? The Decision itself indicates clearly
that ( 1) Napoles was following up the processing of the documents; (2) that she was in charge of
the delivery of the helmets; and (3) the checks amounting to ₱3,864,310.00 as payment for the
helmets were deposited and cleared in only one bank account, Security Bank Account No. 512-000-
2200, in the name of Napoles.
Considering this glaring irregularity, it is safe to conclude that indeed respondent has a hand in the
acquittal of Napoles. All along, the whistle blowers were telling the truth.
xxxx
RECOMMENDATION
IN VIEW OF THE FOREGOING, It is respectfully recommended, for consideration of the Honorable

Court, that respondent Justice Gregory S. Ong be found GUILTY of gross misconduct, dishonesty,
and impropriety, all in violations of the New Code of Judicial Conduct for the Philippine Judiciary and
be meted the penalty of DISMISSAL from the service WITH FORFEITURE of all retirement benefits,
excluding accrued leave credits, and WITH PREJUDICE to reemployment to any government,
including government-owned or controlled corporations.
xxxx
The Court's Ruling
This Court adopts the findings, conclusions and recommendations of the Investigating Justice which
are well-supported by the evidence on record.
Based on the testimonies of Luy, Sula and Rufo, the Investigating Justice formulated the charges
against the respondent, as follows:
1. Respondent acted as contact of Napoles in connection with the Kevlar case while it was
pending in the Sandiganbayan Fourth Division wherein he is the Chairman;
2. Respondent, being Napoles' contact in the Sandiganbayan, fixed the Kevlar case resulting
in her acquittal;
3. Respondent received an undetermined amount of money from Napoles prior to the

promulgation of the decision in the Kevlar case thus, she was sure ("kampante")of her
acquittal; 4. Respondent visited Napoles in her office where she handed to him eleven (ll)
checks, each amounting to ₱282,000.00 or a total of ₱3,102,000.00, as advanced interest for
his ₱25.5 million BDO check she deposited in her personal account; and
5. Respondent attended Napoles' parties and was photographed with Senator Estrada and
Napoles.11
Respondent thus stands accused of gross misconduct, partiality and corruption or bribery during the
pendency of the Kevlar case, and impropriety on account of his dealing and socializing with Napoles
after her acquittal in the said case. Additionally, respondent failed to disclose in his September 26,
2013 letter to Chief Justice Sereno that he had actually visited Napoles at her office in 2012, as he
vehemently denied having partied with or attended any social event hosted by her.
Misconduct is a transgression of some established and definite rule of action, a forbidden act, a
dereliction of duty, unlawful behavior, willful in character, improper or wrong behavior; while ·"gross"
has been defined as "out of all measure beyond allowance; flagrant; shameful; such conduct as is
not to be excused."12 We agree with Justice Sandoval-Gutierrez that respondent's association with
Napoles during the pendency and after the promulgation of the decision in the Kevlar case resulting
in her acquittal, constitutes gross misconduct notwithstanding the absence of direct evidence of
corruption or bribery in the rendition of the said judgment.
We cannot overemphasize that in administrative proceedings, only substantial evidence, i.e., that
amount of relevant evidence that a reasonable mind might accept as adequate to support a
conclusion, is required. The standard of substantial evidence is satisfied when there is reasonable
ground to believe that respondent is responsible for the misconduct complained of, even if such
evidence might not be overwhelming or even preponderant.13
The testimonies of Luy and Sula established that Napoles had been in contact with respondent
("nag-uusap sila") during the pendency of the Kevlar case. As Napoles' trusted staff, they (especially
Luy who is a cousin) were privy to her daily business and personal activities. Napoles constantly
updated them of developments regarding the case. She revealed to them that she has a "connect" or
"contact" in the Sandiganbayan who will help "fix" the case involving her, her mother, brother and
some employees. Having closely observed and heard Napoles being confident that she will be
acquitted even prior to the promulgation of the decision in the Kevlar case, they were convinced she
was indeed in contact with respondent, whose identity was earlier divulged by Napoles to Luy. Luy
categorically testified that Napoles told him she gave money to respondent but did not disclose the
amount. There was no reason for them to doubt Napoles' statement as they even keep a ledger
detailing her expenses for the "Sandiganbayan," which reached Pl 00 million. Napoles' information
about her association with respondent was confirmed when she was eventually acquitted in 2010
and when they saw respondent visit her office and given the eleven checks issued by Napoles in
2012.
Respondent maintains that the testimonies of Luy and Sula were hearsay as they have no personal
knowledge of the matters they were testifying, which were merely told to them by Napoles.
Specifically, he points to portions of Sula's testimony indicating that Napoles had not just one but
"contact persons" in Ombudsman and Sandiganbayan; hence, it could have been other individuals,
not him, who could help Napoles "fix" the Kevlar case, especially since Napoles never really
disclosed to Sula who was her (Napoles) contact at the Sandiganbayan and at one of their
conversations Napoles even supposedly said that respondent's "talent fee" was too high. Bribery is
committed when a public officer agrees to perform an act in connection with the performance of
official duties in consideration of any offer, promise, gift or present received.14 Ajudge who extorts
money from a party-litigant who has a case before the court commits a serious misconduct and this
Court has condemned such act in the strongest possible terms. Particularly because it has been
committed by one charged with the responsibility of administering the law and rendering justice, it
quickly and surely corrodes respect for law and the courts.15
An accusation of bribery is easy to concoct and difficult to disprove. The complainant must present a
panoply of evidence in support of such an accusation. Inasmuch as what is imputed against the
respondent judge connotes a grave misconduct, the quantum of proof required should be more than
substantial.16 Concededly, the evidence in this case is insufficient to sustain the bribery and
corruption charges against the respondent. Both Luy and Sula have not witnessed respondent
actually receiving money from Napoles in exchange for her acquittal in the Kevlar case. Napoles had
confided to Luy her alleged bribe to respondent.
Notwithstanding the absence of direct evidence of any corrupt act by the respondent, we find
credible evidence of his association with Napoles after the promulgation of the decision in the Kevlar
case. The totality of the circumstances of such association strongly indicates respondent's corrupt
inclinations that only heightened the public's perception of anomaly in the decision-making process.
By his act of going to respondent at her office on two occasions, respondent exposed himself to the
suspicion that he was partial to Napoles. That respondent was not the ponente of the decision which
was rendered by a collegial body did not forestall such suspicion of partiality, as evident from the
public disgust generated by the publication of a photograph of respondent together with Napoles and
Senator Jinggoy Estrada. Indeed, the context of the declarations under oath by Luy and Sula before
the Senate Blue Ribbon Committee, taking place at the height of the "Pork Barrel" controversy,
made all the difference as respondent himself acknowledged. Thus, even in the present
administrative proceeding, their declarations are taken in the light of the public revelations of what
they know of that government corruption controversy, and how it has tainted the image of the
Judiciary.
The hearsay testimonies of Luy and Sula generated intense public interest because of their close
relationship to Napoles and their crucial participation in her transactions with government officials,
dubbed by media as the "Pork Barrel Queen." But as aptly observed by Justice SandovalGutierrez,
the "challenging and difficult setting" of the Senate hearings where they first testified, made it highly
improbable that these whistle blowers would testify against the respondent. During the investigation
of this case, Justice Sandoval-Gutierrez described their manner of testifying as "candid,
straightforward and categorical." She likewise found their testimonies as "instantaneous, clear,
unequivocal, and carried with it the ring of truth," and more important, these are consistent with their
previous testimonies before the Senate; they never wavered or faltered even during cross-
examination.
It is a settled rule that the findings of investigating magistrates are generally given great weight by
the Court by reason of their unmatched opportunity to see the deportment of the witnesses as they
testified.17 The rule which concedes due respect, and even finality, to the assessment of credibility of
witnesses by trial judges in civil and criminal cases applies a fortiori to administrative cases.18 In
particular, we concur with Justice Sandoval-Gutierrez's assessment on the credibility of Luy and
Sula, and disagree with respondent's claim that these witnesses are simply telling lies about his
association with Napoles.
Contrary to respondent's submission, Sula in her testimony said that whenever Napoles talked about
her contacts in the Ombudsman and Sandiganbayan, they knew that insofar as the Sandiganbayan
was concerned, it was understood that she was referring to respondent even as she may have
initially contacted some persons to get to respondent, and also because they have seen him meeting
with Napoles at her office. It appears that Napoles made statements regarding the Kevlar case not
just to Luy but also to the other employees of JLN Corporation. The following are excerpts from
Sula's testimony on direct examination, where she even hinted at their expected outcome of the
Kevlar case:
Atty. Benipayo
Q So, Ms. Sula, what were the statements being made by Ms. Janet Lim Napoles regarding her
involvement in the Kevlar case, or how she was trying to address the problem with the Kevlar case
pending before the Sandiganbayan?
Witness Sula
A Ang alam ko po kasi marami po siyang kinaka-usap na mga lawyers na binabayaran niya para
tulungan siya kay Gregory Ong sa Kevlar case. Tapos, sa kalaunan po, nasabi na niya sa amin na
mcron na po siyang nakilala sa Sandiganbayan na nagngangalang Justice Gregory Ong. Tapos,
sabi niya, siya po ang tutulong sa amin para ma-clear kami. Pero hindi niya sinabi na meron din
pong ma ... sasagot sa kaso. Hindi po lahat, kasi po dalawa sa mga empleyado niya, bale apat,
dalawang empleyado niya, isang kapatid niya at sister-in-law ang mag-aano sa kaso pati yung
mother niya na namatay na ay sasagot din sa kaso. Siya Jang at saka yung asawa niya ang bale
makli-clear sa kaso.
Q So, she told you that two (2) employees, one (1) sister-in-law and one brother will answer for the
case and Janet Lim Napoles and her husband will be acquitted, is that right?
A Yun po ang aking pagkaka-alam kasi po, nag-petition po kasi sila eh, yung mga officemates ko.
Nagkaroon ng probation. Noong lumabas ang hatol, meron silang probation period.
xxxx
Q Which you told me that somebody will help in the Kevlar case?
A Opo. Sinabi po niya sa amin everytime po pag nagkukwento siya, sinasabi niya na si Justice Ong
ang tutulong sa kanya para ma-clear po yung Kevlar case niya.
x x x x19 (Emphasis supplied.)
As it turned out, Napoles' husband was dropped from the two informations while her mother, brother
and sister-in-law were convicted in the lesser charge of falsification of public documents. Apparently,
after her acquittal, Napoles helped those convicted secure a probation. But as stated in our earlier
resolution, the Court will no longer delve into the merits of the Kevlar case as the investigation will
focus on respondent's administrative liability.
Respondent's act of voluntarily meeting with Napoles at her office on two occasions was grossly
improper and violated Section 1, Canon 4 (Propriety) of the New Code of Judicial Conduct, which
took effect on June 1, 2004.
SECTION 1. Judges shall avoid impropriety and the appearance of impropriety in all of their
activities.
A judge must not only be impartial but must also appear to be impartial and that fraternizing with
litigants tarnishes this appearance.20 Public confidence in the Judiciary is eroded by irresponsible or
improper conduct of judges. A judge must avoid all impropriety and the appearance thereof. Being
the subject of constant public scrutiny, a judge should freely and willingly accept restrictions on
conduct that might be viewed as burdensome by the ordinary citizen.21
In Caneda v. Alaan,22 we held that:
Judges are required not only to be impartial but also to appear to be so, for appearance is an
essential manifestation of reality. Canon 2 of the Code of Judicial Conduct enjoins judges to avoid
not just impropriety in their conduct but even the mere appearance of impropriety.
They must conduct themselves in such a manner that they give no ground for reproach.
[Respondent's] acts have been less than circumspect. He should have kept himself free from any
appearance of impropriety and endeavored to distance himself from any act liable to create an
impression of indecorum.
xxxx
Indeed, respondent must always bear in mind that:
"A judicial office traces a line around his official as well as personal conduct, a price one has to pay
for o ccupying an exalted position in the judiciary, beyond which he may not freely venture. Canon 2
of the Code of Judicial Conduct enjoins a judge to avoid not just impropriety in the performance of
judicial duties but in all his activities whether in his public or private life. He must conduct himself in a
manner that gives no ground for reproach." (Emphasis supplied.)
On this score, our previous pronouncements have enjoined judges to avoid association or socializing
with persons who have pending cases before their court. Respondent cites the case of Abundo v.
Mania, Jr.23 where this Court did not find fault with a judge who was charged with fraternizing with his
lawyer-friend. In that case, we said:
Respondent admits that he and Atty. Pajarillo became close friends in 1989 when they were both
RTC judges stationed in Naga City. Since they both resided in Camarines Norte, Atty. Pajarillo
hitched rides with respondent to Daet, Camarines Norte in the latter's car.
In his Comment, respondent claims that he leaves the door to his chambers open to lawyers or
parties with official court business, whose requests and complaints regarding their cases he listens
to in full view of his staff, who are witnesses to his transparency and honesty in conducting such
dialogues. He also admits that Atty. Pajarillo has been to his house on several occasions, but only to
make emergency long-distance calls to his children in Metro Manila. He, however, denies that he
and Atty. Pajarillo were frequently seen eating and drinking together in public places.
We agree with Justice Buzon's finding that the evidence against respondent on this point was
insufficient, viz.:
"On the other hand, the admission of respondent that he attended two public functions where Atty.
Pajarillo was also present; that Atty. Pajarillo had been in his house twice or thrice and used his
telephone; and that he receives lawyers, including Atty. Pajarillo, and litigants inside his chambers,
the door to which is always open so that [the] staff could see that no under the table transactions are
taking place, is not proof that he is fraternizing with Atty. Pajarillo. A judge need not ignore a former
colleague and friend whenever they meet each other or when the latter makes requests which are
not in any manner connected with cases pending in his court. Thus, Canon 30 of the Canons of
Judicial Ethics provides:
'30. Social relations
It is not necessary to the proper performance of judicial duty that judges should live in retirement or
seclusion; it is desirable that, so far as the reasonable attention to the completion of their work will
permit, they continue to mingle in social intercourse, and that they should not discontinue their
interests in or appearance at meetings of members at the bar. A judge should, however, in pending
or prospective litigation before him be scrupulously careful to avoid such action as may reasonably
tend to waken the suspicion that his social or business relations or friendships constitute an element
in determining his judicial course.'"
The factual setting in Abundo v. Mania, Jr. is not similar to the present case because Napoles was
not a colleague or lawyer-friend but an accused in a former case before the Sandiganbayan's Fourth
Division chaired by respondent and which acquitted her from malversation charge. What respondent
perhaps want to underscore is the caveat for judges, in pending or prospective litigation before them,
to avoid such action as may raise suspicion on their partiality in resolving or deciding the case. Thus,
he emphasized in his Memorandum that he "never knew Napoles on a personal level while she was
still on trial as an accused in Kevlar helmet case." Respondent even quoted Sula's testimony
expressing her opinion that she finds nothing wrong with respondent going to Napoles' office
because at that time, the Kevlar case had already been terminated.
We do not share the view that the rule on propriety was intended to cover only pending and
prospective litigations.
Judges must, at all times, be beyond reproach and should avoid even the mere suggestion of
partiality and impropriety.24 Canon 4 of the New Code of Judicial Conduct states that "[p ]ropriety and
the appearance of propriety are essential to the performance of all the activities of a judge." Section
2 further provides:
SEC. 2. As a subject of constant public scrutiny, judges must accept personal restrictions that might
be viewed as burdensome by the ordinary citizen and should do so freely and willingly. In particular,
judges shall conduct themselves in a way that is consistent with the dignity of the judicial office.
As we held in Sibayan-Joaquin v. Javellana25
... Judges, indeed, should be extra prudent in associating with litigants and counsel appearing before
them so as to avoid even a mere perception of possible bias or partiality. It is not expected, of
course, that judges should live in retirement or seclusion from any social intercourse. Indeed, it may
be desirable, for instance, that they continue, time and work commitments permitting, to relate to
members of the bar in worthwhile endeavors and in such fields of interest, in general, as are in
keeping with the noble aims and objectives of the legal profession. In pending or prospective
litigations before them, however, judges should be scrupulously careful to avoid anything that may
tend to awaken the suspicion that their personal, social or sundry relations could influence their
objectivity, for not only must judges possess proficiency in law but that also they must act and
behave in such manner that would assure, with great comfort, litigants and their counsel of the
judges' competence, integrity and independence.
In this light, it does not matter that the case is no longer pending when improper acts were
committed by the judge. Because magistrates are under constant public scrutiny, the termination of
a case will not deter public criticisms for acts which may cast suspicion on its disposition or
resolution. As what transpired in this case, respondent's association with Napoles has unfortunately
dragged the Judiciary into the "Pork Barrel" controversy which initially involved only legislative and
executive officials. Worse, Napoles' much-flaunted "contact" in the judiciary is no less than a Justice
of the Sandiganbayan, our special court tasked with hearing graft cases. We cannot, by any stretch
of indulgence and compassion, consider respondent's transgression as a simple misconduct.
During his testimony, respondent acknowledged his violation of judicial ethics and its serious
repercussions, as shown by his answers to the questions from the Investigation Justice, viz: Justice
Gutierrez
What I am thinking Justice, as a Justice holding a very high position, could it not be possible for you
to just go to the Church of Quiapo and ask the priest there to help you or assist you, no longer
through Ms. Napoles?
Justice Ong
You cannot do that, your honor. Ever since when I was a small boy, I never got near the image of
the Mahal na Poon. Nobody can do that, your honor.
Justice Gutierrez
No, no. What I mean is that you can just go to the priest in Quiapo and make the proper request.
Why did you not do that?
Justice Ong
I don't know, your honor.
Justice Gutierrez
Because you have been suffering from that ailment, mass or whatever, and that you are a devotee
of the Black Nazarene. You could have gone to the Office of the priest there and had that request for
you to wear that robe of the Black Nazarene?
Justice Ong
Hindi ko po alam na may ganyan, your honor. I was only told by Napoles during that conversation.
Had I known that, siguro po pwede ko pong gawin. Had I known that there is such a robe, maybe I
will do that.
Justice Gutierrez
Okay. It happened already. But just to thank Ms. Napoles, I think Justice you should have been very,
very careful about your actuations. You should not have been seen in public, you know, with a
woman like her who was an accused before. You could have thanked her simply by calling her. You
could have relayed to her your true feelings that you are so grateful because of her assistance. Were
it not for her, you could not have worn that Holy Robe of the Black Nazarene. You could have simply
called her instead of going to her office; instead of, you know, going to the Church of Santuario de
San Antonio in Forbes Park. And you should have been more careful not to be seen by the public
with her considering that she was a former accused in that case.
Justice Ong
I will heed to that advice, your honor.

Justice Gutierrez
Q And you admitted a while ago, during the interview conducted by Mr. Aries Rufo that. "That is a
lesson for me; that I should not have associated, you know, with a former respondent or accused in
a case before me." You admitted that? You said you learned you lesson. Was that the first time you
learned that kind of lesson, Mr. Justice? Or even before you took your oath as a member of the
Judiciary, you already knew that lesson, isn't it or was that the first time? That is why you associated
yourself with Senator Jinggoy Estrada who was accused before of plunder?
Justice Ong
Your honor, talking about ....
Justice Gutierrez
Q Do you admit you committed a lapse along that line?
Justice Ong
A Yes, your honor. You have to forgive me for that.26 (Emphasis supplied.)
In her report, Justice Sandoval-Gutierrez noted that respondent's purported reason for visiting
Napoles in her office remains uncorroborated, as Napoles and the Quiapo parish priest were not
presented as witnesses despite her suggestion to respondent and his counsel. On the other hand,
Luy's testimony on what transpired in one of respondent's meeting with Napoles at her office
appears to be the more plausible and truthful version. Expectedly, respondent denied having issued
a BDO check for ₱25 .5 million as claimed by Luy, and asserted he (respondent) did not deposit any
money to AFPSLAI. Unfortunately, Luy is unable to present documentary evidence saying that, as
previously testified by him before the Senate, most of the documents in their office were shredded
upon orders of Napoles when the "Pork Barrel Scam" controversy came out.
Justice Sandoval-Gutierrez stated that the eleven checks of ₱282,000.00 supposed advance interest
for respondent's check deposit to AFPSLAI were given to respondent as consideration for the
favorable ruling in the Kevlar case. Such finding is consistent with Luy's testimony that Napoles
1âw phi 1
spent a staggering PlOO million just to "fix" the said case. Under the circumstances, it is difficult to
believe that respondent went to Napoles office the second time just to have coffee. Respondent's act
of again visiting Napoles at her office, after he had supposedly merely thanked her during the first
visit, tends to support Luy's claim that respondent had a financial deal with Napoles regarding
advance interest for AFPSLAI deposit. The question inevitably arises as to why would Napoles
extend such an accommodation to respondent if not as consideration for her acquittal in the Kevlar
case? Respondent's controversial photograph alone had raised adverse public opinion, with the
media speculating on pay-offs taking place in the courts.
Regrettably, the conduct of respondent gave cause for the public in general to doubt the honesty
and fairness of his participation in the Kevlar case and the integrity of our courts of justice. Before
this Court, even prior to the commencement of administrative investigation, respondent was less
than candid. In his letter to the Chief Justice where he vehemently denied having attended parties or
social events hosted by Napoles, he failed to mention that he had in fact visited Napoles at her
office. Far from being a plain omission, we find that respondent deliberately did not disclose his
social calls to Napoles. It was only when Luy and Sula testified before the Senate and named him as
the "contact" of Napoles in the Sandiganbayan, that respondent mentioned of only one instance he
visited Napoles ("This is the single occasion that Sula was talking about in her supplemental affidavit
x x x."27).
The Court finds that respondent, in not being truthful on crucial matters even before the
administrative complaint was filed against him motu proprio, is guilty of Dishonesty, a violation of
Canon 3 (Integrity) of the New Code of Judicial Conduct.
Dishonesty is a "disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity;

lack of honesty, probity or integrity in principle; lack of fairness and straightforwardness; disposition
to defraud, deceive or betray."28Dishonesty, being a grave offense, carries the extreme penalty of
dismissal from the service with forfeiture of retirement benefits except accrued leave credits, and
with perpetual disqualification from reemployment in government service. Indeed, dishonesty is a
malevolent act that has no place in the Judiciary.29
Under Section 11(A), Rule 140 of the Rules of Court, a respondent found guilty of a serious charge
may be penalized as follows:
SEC. 11. Sanctions. - A. If the respondent is guilty of a serious charge, any of the following
sanctions may be imposed:
1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may
determine, and disqualification from reinstatement or appointment to any public office,
including governmentowned or -controlled corporations. Provided, however, that the
forfeiture of benefits shall in no case include accrued leave credits;
2. Suspension from office without salary and other benefits for more than three (3) but not
exceeding six (6) months; or
3. A fine of more than ₱20,000.00 but not exceeding ₱40,000.00. Considering that
respondent is not a first time offender and the charges of gross misconduct and dishonesty
are both grave offenses showing his unfitness to remain as a magistrate of the special graft
court, we deem it proper to impose the supreme penalty of dismissal.
WHEREFORE, the Court finds respondent Sandiganbayan Associate Justice Gregory S. Ong
GUILTY of GROSS MISCONDUCT, DISHONESTY and IMPROPRIETY, all in violations of the New
Code of Judicial Conduct for the Philippine Judiciary, for which he is hereby DISMISSED from the
service, with forfeiture of all retirement benefits, except accrued leave credits, if any, and with
prejudice to reemployment in any branch, agency or instrumentality of the government including
government-owned or -controlled corporations.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
62

SUPREME COURT
EN BANC
G.R. No. 158791 July 22, 2005
CIVIL SERVICE COMMISSION, Petitioner,

vs.
DEPARTMENT OF BUDGET AND MANAGEMENT, Respondent.
DECISION
CARPIO MORALES, J.:
The Civil Service Commission (petitioner) via the present petition for mandamus seeks to compel the
Department of Budget and Management (respondent) to release the balance of its budget for fiscal
year 2002. At the same time, it seeks a determination by this Court of the extent of the constitutional
concept of fiscal autonomy.
By petitioner’s claim, the amount of ₱215,270,000.00 was appropriated for its Central Office by the
General Appropriations Act (GAA) of 2002, while the total allocations for the same Office, if all
sources of funds are considered, amount to ₱285,660,790.44.1 It complains, however, that the total
fund releases by respondent to its Central Office during the fiscal year 2002 was only
₱279,853,398.14, thereby leaving an unreleased balance of ₱5,807,392.30.
To petitioner, this balance was intentionally withheld by respondent on the basis of its "no report, no
release" policy whereby allocations for agencies are withheld pending their submission of the
documents mentioned in Sections 3.8 to 3.10 and Section 7.0 of National Budget Circular No. 478
on Guidelines on the Release of the FY 2002 Funds,2which documents are:
1. Annual Cash Program (ACP)
2. Requests for the Release of Special Allotment Release Order (SARO) and Notice of Cash
Allocation (NCA)
3. Summary List of Checks Issued and Cancelled
4. Statement of Allotment, Obligations and Balances
5. Monthly Statement of Charges to Accounts Payable
6. Quarterly Report of Actual Income
7. Quarterly Financial Report of Operations
8. Quarterly Physical Report of Operations
9. FY 2001 Preliminary and Final Trial Balance
10. Statement of Accounts Payable
Petitioner contends that the application of the "no report, no release" policy upon independent
constitutional bodies of which it is one is a violation of the principle of fiscal autonomy and, therefore,
unconstitutional.
Respondent, at the outset, opposes the petition on procedural grounds. It contends that first,
petitioner did not exhaust administrative remedies as it could have sought clarification from
respondent’s Secretary regarding the extent of fiscal autonomy before resorting to this Court.
Second, even assuming that administrative remedies were exhausted, there are no exceptional and
compelling reasons to justify the direct filing of the petition with this Court instead of the trial court,
thus violating the hierarchy of courts.
On the merits, respondent, glossing over the issue raised by petitioner on the constitutionality of
enforcing the "no report, no release" policy, denies having strictly enforced the policy upon offices
vested with fiscal autonomy, it claiming that it has applied by extension to these offices
the Resolution of this Court in A.M. No. 92-9-029-SC(Constitutional Mandate on the Judiciary’s
Fiscal Autonomy) issued on June 3, 1993, 3 particularly one of the guiding principles established
therein governing the budget of the Judiciary, to wit:
5. The Supreme Court may submit to the Department of Budget and Management reports of
operation and income, current plantilla of personnel, work and financial plans and similar
reports only for recording purposes. The submission thereof concerning funds previously
released shall not be a condition precedent for subsequent fund releases. (Emphasis and
underscoring supplied)
Respondent proffers at any rate that the delay in releasing the balance of petitioner’s budget was not
on account of any failure on petitioner’s part to submit the required reports; rather, it was due to a
shortfall in revenues.4
The rule on exhaustion of administrative remedies invoked by respondent applies only where there
is an express legal provision requiring such administrative step as a condition precedent to taking
action in court.5 As petitioner is not mandated by any law to seek clarification from the Secretary of
Budget and Management prior to filing the present action, its failure to do so does not call for the
application of the rule.
As for the rule on hierarchy of courts, it is not absolute. A direct invocation of this Court's original
jurisdiction may be allowed where there are special and important reasons therefor, clearly and
specifically set out in the petition.6Petitioner justifies its direct filing of the petition with this Court "as
the matter involves the concept of fiscal autonomy granted to [it] as well as other constitutional
bodies, a legal question not heretofore determined and which only the Honorable Supreme Court
can decide with authority and finality".7 To this Court, such justification suffices for allowing the
petition.
Now on the substantive issues.
That the "no report, no release" policy may not be validly enforced against offices vested with fiscal
autonomy is not disputed. Indeed, such policy cannot be enforced against offices possessing fiscal
autonomy without violating Article IX (A), Section 5 of the Constitution which provides:
Sec. 5. The Commission shall enjoy fiscal autonomy. Their approved appropriations shall be
automatically and regularly released.
In Province of Batangas v. Romulo,8 this Court, in construing the phrase "automatic release" in
Section 6, Article X of the Constitution reading:
Section 6. Local government units shall have a just share, as determined by law, in the national
taxes which shall be automatically released to them,
held:
Webster’s Third New International Dictionary defines "automatic" as "involuntary either wholly or to a
major extent so that any activity of the will is largely negligible; of a reflex nature; without volition;
mechanical; like or suggestive of an automaton." Further, the word "automatically" is defined as "in
an automatic manner: without thought or conscious intention." Being "automatic," thus, connotes
something mechanical, spontaneous and perfunctory. As such the LGUs are not required to
perform any act to receive the "just share" accruing to them from the national coffers. x x x"
(Emphasis and underscoring supplied)9
By parity of construction, "automatic release" of approved annual appropriations to petitioner, a

constitutional commission which is vested with fiscal autonomy, should thus be construed to mean
that no condition to fund releases to it may be imposed. This conclusion is consistent with the above-
cited June 3, 1993 Resolution of this Court which effectively prohibited the enforcement of a "no
report, no release" policy against the Judiciary which has also been granted fiscal autonomy by the
Constitution.10
Respecting respondent’s justification for the withholding of funds from petitioner as due to a shortfall
in revenues, the same does not lie. In the first place, the alleged shortfall is totally unsubstantiated.
In the second place, even assuming that there was indeed such a shortfall, that does not justify non-
compliance with the mandate of above-quoted Article IX (A), Section 5 of the Constitution.
Asturias Sugar Central, Inc. v. Commissioner of Customs teaches that "[a]n interpretation should, if
possible, be avoided under which a statute or provision being construed is defeated, or as otherwise
expressed, nullified, destroyed, emasculated, repealed, explained away, or rendered insignificant,
meaningless, inoperative, or nugatory."11
If respondent’s theory were adopted, then the constitutional mandate to automatically and regularly
release approved appropriations would be suspended every year, or even every month12 that there is
a shortfall in revenues, thereby emasculating to a significant degree, if not rendering insignificant
altogether, such mandate.
Furthermore, the Constitution grants the enjoyment of fiscal autonomy only to the Judiciary, the
Constitutional Commissions of which petitioner is one, and the Ombudsman. To hold that petitioner
may be subjected to withholding or reduction of funds in the event of a revenue shortfall would, to
that extent, place petitioner and the other entities vested with fiscal autonomy on equal footing with
all others which are not granted the same autonomy, thereby reducing to naught the distinction
established by the Constitution.
The agencies which the Constitution has vested with fiscal autonomy should thus be given priority in
the release of their approved appropriations over all other agencies not similarly vested when there
is a revenue shortfall.
Significantly, the Year 2002 GAA itself distinguished between two types of public institutions in the
matter of fund releases. With respect to government agencies in general, the
pertinent General Provisions of the GAA read as follows:
Sec. 62. Prohibition Against Impoundment of Appropriations. No appropriations authorized in

this Act shall be impounded through deduction or retention, unless in accordance with the
guidelines for the imposition and release of reserves and the rules and regulations for
deduction, retention or deferral of releases shall have been issued by the DBM in coordination
with the House Committee on Appropriations and the Senate Committee on Finance.
Accordingly, all the funds appropriated for the purposes, programs, projects and activities authorized
in this Act, except those covered by Special Provision No. 1 of the Unprogrammed
Fund shall be regularly andautomatically released in accordance with the established allotment
period and system by the DBM without any deduction, retention or imposition of reserves. (Emphasis
and underscoring supplied)
Sec. 63. Unmanageable National Government Budget Deficit. Retention or reduction of

appropriations authorized in this Act shall be effected only in cases where there
is unmanageable national government budget deficit.
Unmanageable national government budget deficit as used in this Section shall be construed to
mean that the actual national government budget deficit has exceeded the quarterly budget deficit
targets consistent with the full-year target deficit of P130.0 billion as indicated in the FY 2002 Budget
of Expenditures and Sources of Financing submitted by the President to Congress pursuant to
Section 22, Article VII of the Constitution or there are clear economic indications of an impending
occurrence of such condition, as determined by the Development Budget Coordinating Committee
and approved by the President. (Emphasis and underscoring supplied)
In contrast, the immediately succeeding provision of the Year 2002 GAA, which specifically applied
to offices vested with fiscal autonomy, stated:
Sec. 64. Appropriations of Agencies Vested with Fiscal Autonomy. Any provision of law to
the contrary notwithstanding, the appropriations authorized in this Act for the Judiciary, Congress
of the Philippines, the Commission on Human Rights, the Office of the
Ombudsman, the Civil Service Commission, the Commission on Audit and the Commission on
Elections shall be automatically and regularly released. (Emphasis and underscoring supplied)
Clearly, while the retention or reduction of appropriations for an office is generally allowed when
there is an unmanageable budget deficit, the Year 2002 GAA, in conformity with the
Constitution, excepted from such rule the appropriations for entities vested with fiscal autonomy.
Thus, even assuming that there was a revenue shortfall as respondent claimed, it could not withhold
full release of petitioner’s funds without violating not only the Constitution but also Section 64 of the
General Provisions of the Year 2002 GAA.
This Court is not unaware that its above-cited June 3, 1993 Resolution also states as a guiding
principle on the Constitutional Mandate on the Judiciary’s Fiscal Autonomy that:
4. After approval by Congress, the appropriations for the Judiciary shall be automatically and
regularly released subject to availability of funds. (Underscoring supplied)
This phrase "subject to availability of funds" does not, however, contradict the present ruling that the
funds of entities vested with fiscal autonomy should be automatically and regularly released, a
shortfall in revenues notwithstanding. What is contemplated in the said quoted phrase is a
situation where total revenue collections are so low that they are not sufficient to cover the total
appropriations for all entities vested with fiscal autonomy. In such event, it would be practically
impossible to fully release the Judiciary’s appropriations or any of the entities also vested with fiscal
autonomy for that matter, without violating the right of such other entities to an automatic release of
their own appropriations. It is under that situation that a relaxation of the constitutional mandate to
automatically and regularly release appropriations is allowed.
Considering that the budget for agencies enjoying fiscal autonomy is only a small portion of the total
national budget, only in the most extreme circumstances will the total revenue collections fall short of
the requirements of such agencies. To illustrate, in the Year 2002 GAA the budget for agencies
vested with fiscal autonomy amounted only to ₱14,548,620,000.00, which is 2.53% of the total
appropriations in the amount of ₱575,123,728,000.00.13 In Year 2003 GAA, which was re-enacted in
2004, the budget for the same agencies was ₱13,807,932,000.00, which is 2.27% of the total
appropriations amounting to ₱609,614,730,000.00.14 And in the Year 2005, the budget for the same
agencies was only ₱13,601,124,000.00, which is 2.28% of the total appropriations amounting to
₱597,663,400,000.00.15
Finally, petitioner’s claim that its budget may not be reduced by Congress lower than that of the
previous fiscal year, as is the case of the Judiciary, must be rejected.
For with respect to the Judiciary, Art. VIII, Section 3 of the Constitution explicitly provides:
Section 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be
reduced by the legislature below the amount appropriated for the previous year and, after
approval, shall be automatically and regularly released.16 (Emphasis and underscoring supplied)
On the other hand, in the parallel provision granting fiscal autonomy to Constitutional Commissions,
a similar proscription against the reduction of appropriations below the amount for the previous year
is clearly absent. Article IX (A), Section 5 merely states:
Section 5. The Commission shall enjoy fiscal autonomy. Their approved annual appropriations shall
be automatically and regularly released.
The plain implication of the omission of the provision proscribing such reduction of appropriations
below that for the previous year is that Congress is not prohibited from reducing the appropriations
of Constitutional Commissions below the amount appropriated for them for the previous year.
WHEREFORE, the petition is, in light of all the foregoing discussions, GRANTED. Respondent’s act
of withholding the subject funds from petitioner due to revenue shortfall is hereby
declared UNCONSTITUTIONAL.
Accordingly, respondent is directed to release to petitioner the amount of Five Million Eight Hundred
Seven Thousand, Three hundred Ninety Two Pesos and Thirty Centavos (₱5,807,392.30)
representing the unreleased balance of petitioner’s appropriation for its Central Office by the General
Appropriations Act for FY 2002.
SO ORDERED.
63

SUPREME COURT
Baguio City
EN BANC
G.R. No. 192791 April 24, 2012

DENNIS A. B. FUNA, Petitioner,
vs.
THE CHAIRMAN, COMMISSION ON AUDIT, REYNALDO A. VILLAR, Respondent.
DECISION
VELASCO, JR., J.:
In this Petition for Certiorari and Prohibition under Rule 65, Dennis A. B. Funa challenges the
constitutionality of the appointment of Reynaldo A. Villar as Chairman of the Commission on Audit
and accordingly prays that a judgment issue "declaring the unconstitutionality" of the appointment.
The facts of the case are as follows:
On February 15, 2001, President Gloria Macapagal-Arroyo (President Macapagal-Arroyo) appointed

Guillermo N. Carague (Carague) as Chairman of the Commission on Audit (COA) for a term of
seven (7) years, pursuant to the 1987 Constitution.1 Carague’s term of office started on February 2,
2001 to end on February 2, 2008.
Meanwhile, on February 7, 2004, President Macapagal-Arroyo appointed Reynaldo A. Villar (Villar)

as the third member of the COA for a term of seven (7) years starting February 2, 2004 until
February 2, 2011.
Following the retirement of Carague on February 2, 2008 and during the fourth year of Villar as COA
Commissioner, Villar was designated as Acting Chairman of COA from February 4, 2008 to April 14,
2008. Subsequently, on April 18, 2008, Villar was nominated and appointed as Chairman of the
COA. Shortly thereafter, on June 11, 2008, the Commission on Appointments confirmed his
appointment. He was to serve as Chairman of COA, as expressly indicated in the appointment
papers, until the expiration of the original term of his office as COA Commissioner or on February 2,
2011. Challenged in this recourse, Villar, in an obvious bid to lend color of title to his hold on the
chairmanship, insists that his appointment as COA Chairman accorded him a fresh term of seven (7)
years which is yet to lapse. He would argue, in fine, that his term of office, as such chairman, is up to
February 2, 2015, or 7 years reckoned from February 2, 2008 when he was appointed to that
position.
Meanwhile, Evelyn R. San Buenaventura (San Buenaventura) was appointed as COA

Commissioner to serve the unexpired term of Villar as Commissioner or up to February 2, 2011.
Before the Court could resolve this petition, Villar, via a letter dated February 22, 2011 addressed to
President Benigno S. Aquino III, signified his intention to step down from office upon the
appointment of his replacement. True to his word, Villar vacated his position when President
Benigno Simeon Aquino III named Ma. Gracia Pulido-Tan (Chairman Tan) COA Chairman. This
development has rendered this petition and the main issue tendered therein moot and academic.
case is considered moot and academic when its purpose has become stale,2 or when it ceases to
present a justiciable controversy owing to the onset of supervening events,3 so that a resolution of
the case or a declaration on the issue would be of no practical value or use.4 In such instance, there
is no actual substantial relief which a petitioner would be entitled to, and which will anyway be
negated by the dismissal of the basic petition.5 As a general rule, it is not within Our charge and
function to act upon and decide a moot case. However, in David v. Macapagal-Arroyo,6 We
acknowledged and accepted certain exceptions to the issue of mootness, thus:
courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a
grave violation of the Constitution, second, the exceptional character of the situation and the
paramount public interest is involved, third, when constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public, and fourth, the case is capable of
repetition yet evading review.
Although deemed moot due to the intervening appointment of Chairman Tan and the resignation of
Villar, We consider the instant case as falling within the requirements for review of a moot and
academic case, since it asserts at least four exceptions to the mootness rule discussed in David,
namely: there is a grave violation of the Constitution; the case involves a situation of exceptional
character and is of paramount public interest; the constitutional issue raised requires the formulation
of controlling principles to guide the bench, the bar and the public; and the case is capable of
repetition yet evading review.7 The situation presently obtaining is definitely of such exceptional
nature as to necessarily call for the promulgation of principles that will henceforth "guide the bench,
the bar and the public" should like circumstance arise. Confusion in similar future situations would be
smoothed out if the contentious issues advanced in the instant case are resolved straightaway and
settled definitely. There are times when although the dispute has disappeared, as in this case, it
nevertheless cries out to be addressed. To borrow from Javier v. Pacificador,8 "Justice demands that
we act then, not only for the vindication of the outraged right, though gone, but also for the guidance
of and as a restraint in the future."
Both procedural and substantive issues are raised in this proceeding. The procedural aspect comes
down to the question of whether or not the following requisites for the exercise of judicial review of
an executive act obtain in this petition, viz: (1) there must be an actual case or justiciable
controversy before the court; (2) the question before it must be ripe for adjudication; (3) the person
challenging the act must be a proper party; and (4) the issue of constitutionality must be raised at the
earliest opportunity and must be the very litis mota of the case.9
To Villar, all the requisites have not been met, it being alleged in particular that petitioner, suing as a
taxpayer and citizen, lacks the necessary standing to challenge his appointment.10 On the other hand,
the Office of the Solicitor General (OSG), while recognizing the validity of Villar’s appointment for the
period ending February 11, 2011, has expressed the view that petitioner should have had filed a
petition for declaratory relief or quo warranto under Rule 63 or Rule 66, respectively, of the Rules of
Court instead of certiorari under Rule 65.
Villar’s posture on the absence of some of the mandatory requisites for the exercise by the Court of
its power of judicial review must fail. As a general rule, a petitioner must have the necessary
personality or standing (locus standi) before a court will recognize the issues presented. In
Integrated Bar of the Philippines v. Zamora, We defined locus standi as:
x x x a personal and substantial interest in the case such that the party has sustained or will sustain
a direct injury as a result of the governmental act that is being challenged. The term "interest" means
a material interest, an interest in issue affected by the decree, as distinguished from mere interest in
the question involved, or a mere incidental interest. The gist of the question of standing is whether a
party alleges "such personal stake in the outcome of the controversy as to assure the concrete
adverseness which sharpens the presentation of issues upon which the court depends for
illumination of difficult constitutional questions."11
To have legal standing, therefore, a suitor must show that he has sustained or will sustain a "direct
injury" as a result of a government action, or have a "material interest" in the issue affected by the
challenged official act.12 However, the Court has time and again acted liberally on the locus standi
requirements and has accorded certain individuals, not otherwise directly injured, or with material
interest affected, by a Government act, standing to sue provided a constitutional issue of critical
significance is at stake.13 The rule on locus standi is after all a mere procedural technicality in relation
to which the Court, in a catena of cases involving a subject of transcendental import, has waived, or
relaxed, thus allowing non-traditional plaintiffs, such as concerned citizens, taxpayers, voters or
legislators, to sue in the public interest, albeit they may not have been personally injured by the
operation of a law or any other government act.14 In David, the Court laid out the bare minimum norm
before the so-called "non-traditional suitors" may be extended standing to sue, thusly:
1.) For taxpayers, there must be a claim of illegal disbursement of public funds or that the tax
2.) For voters, there must be a showing of obvious interest in the validity of the election law
in question;
3.) For concerned citizens, there must be a showing that the issues raised are of
4.) For legislators, there must be a claim that the official action complained of infringes their
prerogatives as legislators.
This case before Us is of transcendental importance, since it obviously has "far-reaching

implications," and there is a need to promulgate rules that will guide the bench, bar, and the public in
future analogous cases. We, thus, assume a liberal stance and allow petitioner to institute the instant
petition.
Anent the aforestated posture of the OSG, there is no serious disagreement as to the propriety of
the availment of certiorari as a medium to inquire on whether the assailed appointment of
respondent Villar as COA Chairman infringed the constitution or was infected with grave abuse of
discretion. For under the expanded concept of judicial review under the 1987 Constitution, the
corrective hand of certiorari may be invoked not only "to settle actual controversies involving rights
which are legally demandable and enforceable," but also "to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government."15 "Grave abuse of discretion" denotes:
such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in
other words, where the power is exercised in an arbitrary or despotic manner by reason of passion
or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty
or to a virtual refusal to perform the duty enjoined or to act in contemplation of law.16
We find the remedy of certiorari applicable to the instant case in view of the allegation that then
President Macapagal-Arroyo exercised her appointing power in a manner constituting grave abuse
of discretion.
This brings Us to the pivotal substantive issue of whether or not Villar’s appointment as COA
Chairman, while sitting in that body and after having served for four (4) years of his seven (7) year
term as COA commissioner, is valid in light of the term limitations imposed under, and the
circumscribing concepts tucked in, Sec. 1 (2), Art. IX(D) of the Constitution, which reads:
(2) The Chairman and Commissioners [on Audit] shall be appointed by the President with the
consent of the Commission on Appointments for a term of seven years without reappointment. Of
those first appointed, the Chairman shall hold office for seven years, one commissioner for five
years, and the other commissioner for three years, without reappointment. Appointment to any
vacancy shall be only for the unexpired portion of the term of the predecessor. In no case shall any
member be appointed or designated in a temporary or acting capacity. (Emphasis added.)17
And if valid, for how long can he serve?
At once clear from a perusal of the aforequoted provision are the defined restricting features in the
matter of the composition of COA and the appointment of its members (commissioners and
chairman) designed to safeguard the independence and impartiality of the commission as a body
and that of its individual members.18 These are, first, the rotational plan or the staggering term in the
commission membership, such that the appointment of commission members subsequent to the
original set appointed after the effectivity of the 1987 Constitution shall occur every two years;
second, the maximum but a fixed term-limit of seven (7) years for all commission members whose
appointments came about by reason of the expiration of term save the aforementioned first set of
appointees and those made to fill up vacancies resulting from certain causes; third, the prohibition
against reappointment of commission members who served the full term of seven years or of
members first appointed under the Constitution who served their respective terms of office; fourth,
the limitation of the term of a member to the unexpired portion of the term of the predecessor; and
fifth, the proscription against temporary appointment or designation.
To elucidate on the mechanics of and the adverted limitations on the matter of COA-member
appointments with fixed but staggered terms of office, the Court lays down the following postulates
deducible from pertinent constitutional provisions, as construed by the Court:
1. The terms of office and appointments of the first set of commissioners, or the seven, five
and three-year termers referred to in Sec. 1(2), Art. IX(D) of the Constitution, had already
expired. Hence, their respective terms of office find relevancy for the most part only in
understanding the operation of the rotational plan. In Gaminde v. Commission on Audit,19 the
Court described how the smooth functioning of the rotational system contemplated in said
and like provisions covering the two other independent commissions is achieved thru the
staggering of terms:
x x x [T]he terms of the first Chairmen and Commissioners of the Constitutional

Commissions under the 1987 Constitution must start on a common date [February 02, 1987,
when the 1987 Constitution was ratified] irrespective of the variations in the dates of
appointments and qualifications of the appointees in order that the expiration of the first
terms of seven, five and three years should lead to the regular recurrence of the two-year
interval between the expiration of the terms.
x x x In case of a belated appointment, the interval between the start of the terms and the
actual appointment shall be counted against the appointee.20 (Italization in the original;
emphasis added.)
Early on, in Republic v. Imperial,21 the Court wrote of two conditions, "both
indispensable to [the] workability" of the rotational plan. These conditions may be
described as follows: (a) that the terms of the first batch of commissioners should
start on a common date; and (b) that any vacancy due to death, resignation or
disability before the expiration of the term should be filled only for the unexpired
balance of the term. Otherwise, Imperial continued, "the regularity of the intervals
between appointments would be destroyed." There appears to be near unanimity as
to the purpose/s of the rotational system, as originally conceived, i.e., to place in the
commission a new appointee at a fixed interval (every two years presently), thus
preventing a four-year administration appointing more than one permanent and
regular commissioner,22 or to borrow from Commissioner Monsod of the 1986
CONCOM, "to prevent one person (the President of the Philippines) from dominating
the commissions."23 It has been declared too that the rotational plan ensures
continuity in, and, as indicated earlier, secure the independence of, the commissions
as a body.24
2. An appointment to any vacancy in COA, which arose from an expiration of a term, after
the first chairman and commissioners appointed under the 1987 Constitution have bowed
out, shall, by express constitutional fiat, be for a term of seven (7) years, save when the
appointment is to fill up a vacancy for the corresponding unserved term of an outgoing
member. In that case, the appointment shall only be for the unexpired portion of the
departing commissioner’s term of office. There can only be an unexpired portion when, as a
direct result of his demise, disability, resignation or impeachment, as the case may be, a
sitting member is unable to complete his term of office.25 To repeat, should the vacancy arise
out of the expiration of the term of the incumbent, then there is technically no unexpired
portion to speak of. The vacancy is for a new and complete seven-year term and, ergo, the
appointment thereto shall in all instances be for a maximum seven (7) years.
3. Sec. 1(2), Art. IX(D) of the 1987 Constitution prohibits the "reappointment" of a member of
COA after his appointment for seven (7) years. Writing for the Court in Nacionalista Party v.
De Vera,26 a case involving the promotion of then COMELEC Commissioner De Vera to the
position of chairman, then Chief Justice Manuel Moran called attention to the fact that the
prohibition against "reappointment" comes as a continuation of the requirement that the
commissioners––referring to members of the COMELEC under the 1935 Constitution––shall
hold office for a term of nine (9) years. This sentence formulation imports, notes Chief
Justice Moran, that reappointment is not an absolute prohibition.
4. The adverted system of regular rotation or the staggering of appointments and terms in
the membership for all three constitutional commissions, namely the COA, Commission on
Elections (COMELEC) and Civil Service Commission (CSC) found in the 1987 Constitution
was patterned after the amended 1935 Constitution for the appointment of the members of
COMELEC27 with this difference: the 1935 version entailed a regular interval of vacancy every
three (3) years, instead of the present two (2) years and there was no express provision on
appointment to any vacancy being limited to the unexpired portion of the his predecessor’s
term. The model 1935 provision reads:
Section 1. There shall be an independent Commission on Elections composed of a Chairman and

two other members to be appointed by the President with the consent of the Commission on
Appointments, who shall hold office for a term of nine years and may not be reappointed. Of the
Members of the Commission first appointed, one shall hold office for nine years, another for six
years and the third for three years. x x x
Petitioner now asseverates the view that Sec. 1(2), Art. IX(D) of the 1987 Constitution proscribes
reappointment of any kind within the commission, the point being that a second appointment, be it
for the same position (commissioner to another position of commissioner) or upgraded position
(commissioner to chairperson) is a prohibited reappointment and is a nullity ab initio. Attention is
drawn in this regard to the Court’s disposition in Matibag v. Benipayo.28
Villar’s promotional appointment, so it is argued, is void from the start, constituting as it did a
reappointment enjoined by the Constitution, since it actually needed another appointment to a
different office and requiring another confirmation by the Commission on Appointments.
Central to the adjudication of the instant petition is the correct meaning to be given to Sec. 1(2),
Article IX(D) of the Constitution on the ban against reappointment in relation to the appointment
issued to respondent Villar to the position of COA Chairman.
Without question, the parties have presented two (2) contrasting and conflicting positions. Petitioner
contends that Villar’s appointment is proscribed by the constitutional ban on reappointment under
the aforecited constitutional provision. On the other hand, respondent Villar initially asserted that his
appointment as COA Chairman is valid up to February 2, 2015 pursuant to the same provision.
The Court finds petitioner’s position bereft of merit. The flaw lies in regarding the word
"reappointment" as, in context, embracing any and all species of appointment.
The rule is that if a statute or constitutional provision is clear, plain and free from ambiguity, it must
be given its literal meaning and applied without attempted interpretation.29 This is known as the plain
meaning rule enunciated by the maxim verba legis non est recedendum, or from the words of a
statute there should be no departure.30
The primary source whence to ascertain constitutional intent or purpose is the language of the
provision itself.31 If possible, the words in the Constitution must be given their ordinary meaning, save
where technical terms are employed. J.M. Tuason & Co., Inc. v. Land Tenure Administration
illustrates the verbal legis rule in this wise:
We look to the language of the document itself in our search for its meaning. We do not of course
stop there, but that is where we begin. It is to be assumed that the words in which constitutional
provisions are couched express the objective sought to be attained. They are to be given their
ordinary meaning except where technical terms are employed in which case the significance thus
attached to them prevails. As the Constitution is not primarily a lawyer’s document, it being essential
for the rule of law to obtain that it should ever be present in the people’s consciousness, its language
as much as possible should be understood in the sense they have in common use. What it says
according to the text of the provision to be construed compels acceptance and negates the power of
the courts to alter it, based on the postulate that the framers and the people mean what they say.
Thus there are cases where the need for construction is reduced to a minimum.32 (Emphasis
supplied.)
Let us dissect and examine closely the provision in question:
(2) The Chairman and Commissioners [on Audit] shall be appointed by the President with the
consent of the Commission on Appointments for a term of seven years without reappointment. Of
those first appointed, the Chairman shall hold office for seven years, one commissioner for five
years, and the other commissioner for three years, without reappointment. Appointment to any
vacancy shall be only for the unexpired portion of the term of the predecessor. x x x (Emphasis
added.)
The first sentence is unequivocal enough. The COA Chairman shall be appointed by the President
for a term of seven years, and if he has served the full term, then he can no longer be reappointed or
extended another appointment. In the same vein, a Commissioner who was appointed for a term of
seven years who likewise served the full term is barred from being reappointed. In short, once the
Chairman or Commissioner shall have served the full term of seven years, then he can no longer be
reappointed to either the position of Chairman or Commissioner. The obvious intent of the framers is
to prevent the president from "dominating" the Commission by allowing him to appoint an additional
or two more commissioners.
The same purpose obtains in the second sentence of Sec. 1(2). The Constitutional Convention
barred reappointment to be extended to commissioner-members first appointed under the 1987
Constitution to prevent the President from controlling the commission. Thus, the first Chairman
appointed under the 1987 Constitution who served the full term of seven years can no longer be
extended a reappointment. Neither can the Commissioners first appointed for the terms of five years
and three years be eligible for reappointment. This is the plain meaning attached to the second
sentence of Sec. 1(2), Article IX(D).
On the other hand, the provision, on its face, does not prohibit a promotional appointment from
commissioner to chairman as long as the commissioner has not served the full term of seven years,
further qualified by the third sentence of Sec. 1(2), Article IX (D) that "the appointment to any
vacancy shall be only for the unexpired portion of the term of the predecessor." In addition, such
promotional appointment to the position of Chairman must conform to the rotational plan or the
staggering of terms in the commission membership such that the aggregate of the service of the
Commissioner in said position and the term to which he will be appointed to the position of Chairman
must not exceed seven years so as not to disrupt the rotational system in the commission prescribed
by Sec. 1(2), Art. IX(D).
In conclusion, there is nothing in Sec. 1(2), Article IX(D) that explicitly precludes a promotional
appointment from Commissioner to Chairman, provided it is made under the aforestated
circumstances or conditions.
It may be argued that there is doubt or ambiguity on whether Sec. 1(2), Art. IX(D), as couched,
allows a promotional appointment from Commissioner to Chairman. Even if We concede the
existence of an ambiguity, the outcome will remain the same. J.M. Tuason & Co., Inc.33 teaches that
in case of doubt as to the import and react of a constitutional provision, resort should be made to
extraneous aids of construction, such as debates and proceedings of the Constitutional Convention,
to shed light on and ascertain the intent of the framers or the purpose of the provision being
construed.
The understanding of the Convention as to what was meant by the terms of the constitutional
provision which was the subject of the deliberation goes a long way toward explaining the
understanding of the people when they ratified it. The Court applied this principle in Civil Liberties
Union v. Executive Secretary:
A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind
the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light of the history of the times, and the
condition and circumstances under which the Constitution was framed. The object is to ascertain the
reason which induced the framers of the Constitution to enact the particular provision and the
purpose sought to be accomplished thereby, in order to construe the whole as to make the words
consonant to that reason and calculated to effect that purpose.34 (Emphasis added.)
And again in Nitafan v. Commissioner on Internal Revenue:
x x x The ascertainment of that intent is but in keeping with the fundamental principle of
constitutional construction that the intent of the framers of the organic law and of the people adopting
it should be given effect. The primary task in constitutional construction is to ascertain and thereafter
assure the realization of the purpose of the framers and of the people in the adoption of the
Constitution. It may also be safely assumed that the people in ratifying the Constitution were guided
mainly by the explanation offered by the framers.35 (Emphasis added.)
Much weight and due respect must be accorded to the intent of the framers of the Constitution in
interpreting its provisions.
Far from prohibiting reappointment of any kind, including a situation where a commissioner is
upgraded to the position of chairman, the 1987 Constitution in fact unequivocally allows promotional
appointment, but subject to defined parameters. The ensuing exchanges during the deliberations of
the 1986 Constitutional Commission (CONCOM) on a draft proposal of what would eventually be
Sec. 1(2), Art. IX(D) of the present Constitution amply support the thesis that a promotional
appointment is allowed provided no one may be in the COA for an aggregate threshold period of 7
years:
MS. AQUINO: In the same paragraph, I would propose an amendment x x x. Between x x x the
sentence which begins with "In no case," insert THE APPOINTEE SHALL IN NO CASE SERVE AN
AGGREGATE PERIOD OF MORE THAN SEVEN YEARS. I was thinking that this may approximate
the situation wherein a commissioner is first appointed as chairman. I am willing to withdraw that
amendment if there is a representation on the part of the Committee that there is an implicit intention
to prohibit a term that in the aggregate will exceed more than seven years. If that is the intention, I
am willing to withdraw my amendment.
MR. MONSOD: If the [Gentlewoman] will read the whole Article, she will notice that there is no
reappointment of any kind and, therefore, as a whole there is no way somebody can serve for more
than seven years. The purpose of the last sentence is to make sure that this does not happen by
including in the appointment both temporary and acting capacities.
MS. AQUINO. Yes. Reappointment is fine; that is accounted for. But I was thinking of a situation
wherein a commissioner is upgraded to a position of chairman. But if this provision is intended to
cover that kind of situation, then I am willing to withdraw my amendment.
MR. MONSOD. It is covered.
MR. FOZ. There is a provision on line 29 precisely to cover that situation. It states: "Appointment to
any vacancy shall be only for the unexpired portion of the predecessor." In other words, if there is
upgrading of position from commissioner to chairman, the appointee can serve only the unexpired
portion of the term of the predecessor.
MS. AQUINO: But we have to be very specific x x x because it might shorten the term because he
serves only the unexpired portion of the term of the predecessor.
MR. FOZ: He takes it at his own risk. He knows that he will only have to serve the unexpired portion
of the term of the predecessor. (Emphasis added.)36
The phrase "upgrading of position" found in the underscored portion unmistakably shows that Sec.
1(2), Art. IX(D) of the 1987 Constitution, for all its caveat against reappointment, does not per se
preclude, in any and all cases, the promotional appointment or upgrade of a commissioner to
chairman, subject to this proviso: the appointee’s tenure in office does not exceed 7 years in all.
Indeed, such appointment does not contextually come within the restricting phrase "without
reappointment" twice written in that section. Delegate Foz even cautioned, as a matter of fact, that a
sitting commissioner accepting a promotional appointment to fill up an unexpired portion pertaining
to the higher office does so at the risk of shortening his original term. To illustrate the Foz’s concern:
assume that Carague left COA for reasons other than the expiration of his threshold 7-year term and
Villar accepted an appointment to fill up the vacancy. In this situation, the latter can only stay at the
COA and served the unexpired portion of Carague’s unexpired term as departing COA Chairman,
even if, in the process, his (Villar’s) own 7-year term as COA commissioner has not yet come to an
end. In this illustration, the inviolable regularity of the intervals between appointments in the COA is
preserved.
Moreover, jurisprudence tells us that the word "reappointment" means a second appointment to one
and the same office.37 As Justice Arsenio Dizon (Justice Dizon) aptly observed in his dissent in
Visarra v. Miraflor,38 the constitutional prohibition against the reappointment of a commissioner refers
to his second appointment to the same office after holding it for nine years.39 As Justice Dizon
observed, "[T]he occupant of an office obviously needs no such second appointment unless, for
some valid cause, such as the expiration of his term or resignation, he had ceased to be the legal
occupant thereof." 40 The inevitable implication of Justice Dizon’s cogent observation is that a
promotion from commissioner to chairman, albeit entailing a second appointment, involves a
different office and, hence, not, in the strict legal viewpoint, a reappointment. Stated a bit differently,
"reappointment" refers to a movement to one and the same office. Necessarily, a movement to a
different position within the commission (from Commissioner to Chairman) would constitute an
appointment, or a second appointment, to be precise, but not reappointment.
A similar opinion was expressed in the same Visarra case by the concurring Justice Angelo Bautista,
although he expressly alluded to a promotional appointment as not being a prohibited appointment
under Art. X of the 1935 Constitution.
Petitioner’s invocation of Matibag as additional argument to contest the constitutionality of Villar’s

elevation to the COA chairmanship is inapposite. In Matibag, then President Macapagal-Arroyo
appointed, ad interim, Alfredo Benipayo as COMELEC Chairman and Resurreccion Borra and
Florentino Tuason as Commissioners, each for a term of office of seven (7) years. All three
immediately took their oath of, and assumed, office. These appointments were twice renewed
because the Commission on Appointments failed to act on the first two ad interim appointments. Via
a petition for prohibition, some disgruntled COMELEC officials assail as infirm the appointments of
Benipayo, et al.
Matibag lists (4) four situations where the prohibition on reappointment would arise, or to be specific,
where the proviso "[t]he Chairman and the Commissioners shall be appointed x x x for a term of
seven years without reappointment" shall apply. Justice Antonio T. Carpio declares in his dissent
that Villar’s appointment falls under a combination of two of the four situations.
Conceding for the nonce the correctness of the premises depicted in the situations referred to in
Matibag, that case is of doubtful applicability to the instant petition. Not only is it cast against a
different milieu, but the lis mota of the case, as expressly declared in the main opinion, "is the very
constitutional issue raised by petitioner."41 And what is/are this/these issue/s? Only two defined
issues in Matibag are relevant, viz: (1) the nature of an ad interim appointment and subsumed
thereto the effect of a by-passed ad interim appointment; and (2) the constitutionality of renewals of
ad interim appointments. The opinion defined these issues in the following wise: "Petitioner [Matibag]
filed the instant petition questioning the appointment and the right to remain in office of Benipayo,
Borra and Tuason as Chairman and Commissioners of the COMELEC, respectively. Petitioner
claims that the ad interim appointments of Benipayo, et al. violate the constitutional provisions on the
independence of COMELEC, as well as on the prohibitions on temporary appointments and
reappointments of its Chairman and members." As may distinctly be noted, an upgrade or promotion
was not in issue in Matibag.
We shall briefly address the four adverted situations outlined in Matibag, in which, as there urged,
the uniform proviso on no reappointment––after a member of any of the three constitutional
commissions is appointed for a term of seven (7) years––shall apply. Matibag made the following
formulation:
The first situation is where an ad interim appointee after confirmation by the Commission on
Appointments serves his full 7-year term. Such person cannot be reappointed whether as a member
or as chairman because he will then be actually serving more than seven (7) years.
The second situation is where the appointee, after confirmation, serves part of his term and then
resigns before his seven-year term of office ends. Such person cannot be reappointed whether as a
member or as chair to a vacancy arising from retirement because a reappointment will result in the
appointee serving more than seven years.
The third situation is where the appointee is confirmed to serve the unexpired portion of someone
who died or resigned, and the appointee completes the unexpired term. Such person cannot be
reappointed whether as a member or as chair to a vacancy arising from retirement because a
reappointment will result in the appointee also serving more than seven (7) years.
The fourth situation is where the appointee has previously served a term of less than seven (7)
years, and a vacancy arises from death or resignation. Even if it will not result in his serving more
than seven years, a reappointment of such person to serve an unexpired term is also prohibited
because his situation will be similar to those appointed under the second sentence of Sec. 1(20), Art.
IX-C of the Constitution [referring to the first set of appointees (the 5 and 3 year termers) whose term
of office are less than 7 years but are barred from being reappointed under any situation]."42 (Words
in brackets and emphasis supplied.)
The situations just described constitute an obiter dictum, hence without the force of adjudication, for
the corresponding formulation of the four situations was not in any way necessary to resolve any of
the determinative issues specifically defined in Matibag. An opinion entirely unnecessary for the
decision of the case or one expressed upon a point not necessarily involved in the determination of
the case is an obiter.43
There can be no serious objection to the scenarios depicted in the first, second and third situations,
both hewing with the proposition that no one can stay in any of the three independent commissions
for an aggregate period of more than seven (7) years. The fourth situation, however, does not
commend itself for concurrence inasmuch as it is basically predicated on the postulate that
reappointment, as earlier herein defined, of any kind is prohibited under any and all circumstances.
To reiterate, the word "reappointment" means a second appointment to one and the same office; and
Sec. 1(2), Art. IX(D) of the 1987 Constitution and similar provisions do not peremptorily prohibit the
promotional appointment of a commissioner to chairman, provided the new appointee’s tenure in
both capacities does not exceed seven (7) years in all. The statements in Matibag enunciating the
ban on reappointment in the aforecited fourth situation, perforce, must be abandoned, for, indeed, a
promotional appointment from the position of Commissioner to that of Chairman is constitutionally
permissible and not barred by Sec. 1(2), Art. IX (D) of the Constitution.
One of the aims behind the prohibition on reappointment, petitioner urges, is to ensure and preserve
the independence of COA and its members,44 citing what the dissenting Justice J.B.L Reyes wrote in
Visarra, that once appointed and confirmed, the commissioners should be free to act as their
conscience demands, without fear of retaliation or hope or reward. Pursued to its logical conclusion,
petitioner’s thesis is that a COA member may no longer act with independence if he or she can be
rewarded with a promotion or appointment, for then he or she will do the bidding of the appointing
authority in the hope of being promoted or reappointed.
The unstated reason behind Justice J.B.L. Reyes’ counsel is that independence is really a matter of
choice. Without taking anything away from the gem imparted by the eminent jurist, what Chief
Justice Moran said on the subject of independence is just as logically sound and perhaps even more
compelling, as follows:
A Commissioner, hopeful of reappointment may strive to do good. Whereas, without that hope or
other hope of material reward, his enthusiasm may decline as the end of his term approaches and
he may even lean to abuses if there is no higher restrain in his moral character. Moral character is
no doubt the most effective safeguard of independence. With moral integrity, a commissioner will be
independent with or without the possibility of reappointment.45
The Court is likewise unable to sustain Villar’s proposition that his promotional appointment as COA
Chairman gave him a completely fresh 7-year term––from February 2008 to February 2015––given
his four (4)-year tenure as COA commissioner devalues all the past pronouncements made by this
Court, starting in De Vera, then Imperial, Visarra, and finally Matibag. While there had been
divergence of opinion as to the import of the word "reappointment," there has been unanimity on the
dictum that in no case can one be a COA member, either as chairman or commissioner, or a mix of
both positions, for an aggregate term of more than 7 years. A contrary view would allow a
circumvention of the aggregate 7-year service limitation and would be constitutionally offensive as it
would wreak havoc to the spirit of the rotational system of succession. Imperial, passing upon the
rotational system as it applied to the then organizational set-up of the COMELEC, stated:
The provision that of the first three commissioners appointed "one shall hold office for 9 years,
another for 6 years and the third for 3 years," when taken together with the prescribed term of office
for 9 years without reappointment, evinces a deliberate plan to have a regular rotation or cycle in the
membership of the commission, by having subsequent members appointable only once every three
years.46
To be sure, Villar’s appointment as COA Chairman partakes of a promotional appointment which,

under appropriate setting, would be outside the purview of the constitutional reappointment ban in
Sec 1(2), Art. IX(D) of the Constitution. Nonetheless, such appointment, even for the term appearing
in the underlying appointment paper, ought still to be struck down as unconstitutional for the reason
as shall be explained.
Consider:
In a mandatory tone, the aforecited constitutional provision decrees that the appointment of a COA
member shall be for a fixed 7-year term if the vacancy results from the expiration of the term of the
predecessor. We reproduce in its pertinent part the provision referred to:
(2) The Chairman and Commissioners [on Audit] shall be appointed x x x for a term of seven years
without reappointment. x x x Appointment to any vacancy shall be only for the unexpired portion of
the term of the predecessor. x x x
Accordingly, the promotional appointment as COA Chairman of Villar for a stated fixed term of less
than seven (7) years is void for violating a clear, but mandatory constitutional prescription. There can
be no denying that the vacancy in the position of COA chairman when Carague stepped down in
February 2, 2008 resulted from the expiration of his 7-year term. Hence, the appointment to the
vacancy thus created ought to have been one for seven (7) years in line with the verbal legis
approach47 of interpreting the Constitution. It is to be understood, however, following Gaminde, that in
case of a belated appointment, the interval between the start of the term and the actual appointment
shall be counted against the 7-year term of the appointee. Posing, however, as an insurmountable
barrier to a full 7-year appointment for Villar is the rule against one serving the commission for an
aggregate term of more than seven (7) years.
Where the Constitution or, for that matter, a statute, has fixed the term of office of a public official,
the appointing authority is without authority to specify in the appointment a term shorter or longer
than what the law provides. If the vacancy calls for a full seven-year appointment, the President is
without discretion to extend a promotional appointment for more or for less than seven (7) years.
There is no in between. He or she cannot split terms. It is not within the power of the appointing
authority to override the positive provision of the Constitution which dictates that the term of office of
members of constitutional bodies shall be seven (7) years.48 A contrary reasoning "would make the
term of office to depend upon the pleasure or caprice of the [appointing authority] and not upon the
will [of the framers of the Constitution] of the legislature as expressed in plain and undoubted
language in the law."49
In net effect, then President Macapagal-Arroyo could not have had, under any circumstance, validly
appointed Villar as COA Chairman, for a full 7-year appointment, as the Constitution decrees, was
not legally feasible in light of the 7-year aggregate rule. Villar had already served 4 years of his 7-
year term as COA Commissioner. A shorter term, however, to comply with said rule would also be
invalid as the corresponding appointment would effectively breach the clear purpose of the
Constitution of giving to every appointee so appointed subsequent to the first set of commissioners,
a fixed term of office of 7 years. To recapitulate, a COA commissioner like respondent Villar who
serves for a period less than seven (7) years cannot be appointed as chairman when such position
became vacant as a result of the expiration of the 7-year term of the predecessor (Carague). Such
appointment to a full term is not valid and constitutional, as the appointee will be allowed to serve
more than seven (7) years under the constitutional ban.
On the other hand, a commissioner who resigned before serving his 7- year term can be extended
an appointment to the position of chairman for the unexpired period of the term of the latter, provided
the aggregate of the period he served as commissioner and the period he will serve as chairman will
not exceed seven (7) years. This situation will only obtain when the chairman leaves the office by
reason of death, disability, resignation or impeachment. Let us consider, in the concrete, the
situation of then Chairman Carague and his successor, Villar. Carague was appointed COA
Chairman effective February 2, 2001 for a term of seven (7) years, or up to February 2, 2008. Villar
was appointed as Commissioner on February 2, 2004 with a 7-year term to end on February 2,
2011. If Carague for some reason vacated the chairmanship in 2007, then Villar can resign as
commissioner in the same year and later be appointed as chairman to serve only up to February 2,
2008, the end of the unexpired portion of Carague’s term. In this hypothetical scenario, Villar’s
appointment to the position of chairman is valid and constitutional as the aggregate periods of his
two (2) appointments will only be five (5) years which neither distorts the rotational scheme nor
violates the rule that the sum total of said appointments shall not exceed seven (7) years. Villar
would, however, forfeit two (2) years of his original seven (7)-year term as Commissioner, since, by
accepting an upgraded appointment to Carague’s position, he agreed to serve the unexpired portion
of the term of the predecessor. As illustrated earlier, following Mr. Foz’s line, if there is an upgrading
of position from commissioner to chairman, the appointee takes the risk of cutting short his original
term, knowing pretty well before hand that he will serve only the unexpired portion of the term of his
predecessor, the outgoing COA chairman.
In the extreme hypothetical situation that Villar vacates the position of chairman for causes other
than the expiration of the original term of Carague, the President can only appoint the successor of
Villar for the unexpired portion of the Carague term in line with Sec. 1(2), Art. IX(D) of the
Constitution. Upon the expiration of the original 7-year term of Carague, the President can appoint a
new chairman for a term of seven (7) full years.
In his separate dissent, my esteemed colleague, Mr. Justice Mendoza, takes strong exception to the
view that the promotional appointment of a sitting commissioner is plausible only when he is
appointed to the position of chairman for the unexpired portion of the term of said official who leaves
the office by reason of any the following reasons: death, disability, resignation or impeachment, not
when the vacancy arises out as a result of the expiration of the 7-year term of the past chairman.
There is nothing in the Constitution, so Justice Mendoza counters, that restricts the promotion of an
incumbent commissioner to the chairmanship only in instances where the tenure of his predecessor
was cut short by any of the four events referred to. As earlier explained, the majority view springs
from the interplay of the following premises: The explicit command of the Constitution is that the
"Chairman and the Commissioners shall be appointed by the President x x x for a term of seven
years [and] appointment to any vacancy shall be only for the unexpired portion of the term of the
predecessor." To repeat, the President has two and only two options on term appointments. Either
he extends an appointment for a full 7-year term when the vacancy results from the expiration of
term, or for a shorter period corresponding to the unexpired term of the predecessor when the
vacancy occurs by reason of death, physical disability, resignation or impeachment. If the vacancy
calls for a full seven-year appointment, the Chief Executive is barred from extending a promotional
appointment for less than seven years. Else, the President can trifle with terms of office fixed by the
Constitution.
Justice Mendoza likewise invites attention to an instance in history when a commissioner had been
promoted chairman after the expiration of the term of his predecessor, referring specifically to the
appointment of then COMELEC Commissioner Gaudencio Garcia to succeed Jose P. Carag after
the expiration of the latter’s term in 1959 as COMELEC chairman. Such appointment to the position
of chairman is not constitutionally permissible under the 1987 Constitution because of the policy and
intent of its framers that a COA member who has served his full term of seven (7) years or even for a
shorter period can no longer be extended another appointment to the position of chairman for a full
term of seven (7) years. As revealed in the deliberations of the Constitutional Commission that
crafted the 1987 Constitution, a member of COA who also served as a commissioner for less than
seven (7) years in said position cannot be appointed to the position of chairman for a full term of
seven (7) years since the aggregate will exceed seven (7) years. Thus, the adverted Garcia
appointment in 1959 made under the 1935 Constitution cannot be used as a precedent to an
appointment of such nature under the 1987 Constitution. The dissent further notes that the
upgrading remained uncontested. In this regard, suffice it to state that the promotion in question was
either legal or it was not. If it were not, no amount of repetitive practices would clear it of invalidating
taint.
Lastly, Villar’s appointment as chairman ending February 2, 2011 which Justice Mendoza considers
as valid is likewise unconstitutional, as it will destroy the rationale and policy behind the rotational
system or the staggering of appointments and terms in COA as prescribed in the Constitution. It
disturbs in a way the staggered rotational system of appointment under Sec. 1(2), Art. IX(D) of the
1987 Constitution. Consider: If Villar’s term as COA chairman up to February 2, 2011 is viewed as
valid and constitutional as espoused by my esteemed colleague, then two vacancies have
simultaneously occurred and two (2) COA members going out of office at once, opening positions for
two (2) appointables on that date as Commissioner San Buenaventura’s term also expired on that
day. This is precisely one of the mischiefs the staggering of terms and the regular intervals
appointments seek to address. Note that San Buenaventura was specifically appointed to succeed
Villar as commissioner, meaning she merely occupied the position vacated by her predecessor
whose term as such commissioner expired on February 2, 2011. The result is what the framers of
the Constitution doubtless sought to avoid, a sitting President with a 6-year term of office, like
President Benigno C. Aquino III, appointing all or at least two (2) members of the three-man
Commission during his term. He appointed Ma. Gracia Pulido-Tan as Chairman for the term ending
February 2, 2015 upon the relinquishment of the post by respondent Villar, and Heidi Mendoza was
appointed Commissioner for a 7-year term ending February 2, 2018 to replace San Buenaventura. If
Justice Mendoza’s version is adopted, then situations like the one which obtains in the Commission
will definitely be replicated in gross breach of the Constitution and in clear contravention of the intent
of its framers. Presidents in the future can easily control the Commission depriving it of its
independence and impartiality.
To sum up, the Court restates its ruling on Sec. 1(2), Art. IX(D) of the Constitution, viz:
1. The appointment of members of any of the three constitutional commissions, after the
expiration of the uneven terms of office of the first set of commissioners, shall always be for
a fixed term of seven (7) years; an appointment for a lesser period is void and
unconstitutional.
The appointing authority cannot validly shorten the full term of seven (7) years in case of the
expiration of the term as this will result in the distortion of the rotational system prescribed by
the Constitution.
2. Appointments to vacancies resulting from certain causes (death, resignation, disability or

impeachment) shall only be for the unexpired portion of the term of the predecessor, but
such appointments cannot be less than the unexpired portion as this will likewise disrupt the
staggering of terms laid down under Sec. 1(2), Art. IX(D).
3. Members of the Commission, e.g. COA, COMELEC or CSC, who were appointed for a full
term of seven years and who served the entire period, are barred from reappointment to any
position in the Commission. Corollarily, the first appointees in the Commission under the
Constitution are also covered by the prohibition against reappointment.
4. A commissioner who resigns after serving in the Commission for less than seven years is
eligible for an appointment to the position of Chairman for the unexpired portion of the term
of the departing chairman. Such appointment is not covered by the ban on reappointment,
provided that the aggregate period of the length of service as commissioner and the
unexpired period of the term of the predecessor will not exceed seven (7) years and provided
further that the vacancy in the position of Chairman resulted from death, resignation,
disability or removal by impeachment. The Court clarifies that "reappointment" found in Sec.
1(2), Art. IX(D) means a movement to one and the same office (Commissioner to
Commissioner or Chairman to Chairman). On the other hand, an appointment involving a
movement to a different position or office (Commissioner to Chairman) would constitute a
new appointment and, hence, not, in the strict legal sense, a reappointment barred under the
Constitution.
5. Any member of the Commission cannot be appointed or designated in a temporary or

acting capacity.
WHEREFORE the petition is PARTLY GRANTED. The appointment of then Commissioner

Reynaldo A. Villar to the position of Chairman of the Commission on Audit to replace Guillermo N.
Carague, whose term of office as such chairman has expired, is hereby declared
UNCONSTITUTIONAL for violation of Sec. 1(2), Art. IX(D) of the Constitution.
SO ORDERED.
64
G.R. No. 149036 April 2, 2002
MA. J. ANGELINA G. MATIBAG, petitioner,

vs.
ALFREDO L. BENIPAYO, RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., VELMA
J. CINCO, and GIDEON C. DE GUZMAN in his capacity as Officer-In-Charge, Finance Services
Department of the Commission on Elections, respondents.
CARPIO, J.:
The Case
Before us is an original Petition for Prohibition with prayer for the issuance of a writ of preliminary
injunction and a temporary restraining order under Rule 65 of the 1997 Rules of Civil Procedure.
Petitioner Ma. J. Angelina G. Matibag ("Petitioner" for brevity) questions the constitutionality of the
appointment and the right to hold office of the following: (1) Alfredo L. Benipayo ("Benipayo" for
brevity) as Chairman of the Commission on Elections ("COMELEC" for brevity); and (2)
Resurreccion Z. Borra ("Borra" for brevity) and Florentino A. Tuason, Jr. ("Tuason" for brevity) as
COMELEC Commissioners. Petitioner also questions the legality of the appointment of Velma J.
Cinco1 ("Cinco" for brevity) as Director IV of the COMELEC’s Education and Information Department
("EID" for brevity).
The Facts
On February 2, 1999, the COMELEC en banc appointed petitioner as "Acting Director IV" of the EID.
On February 15, 2000, then Chairperson Harriet O. Demetriou renewed the appointment of
petitioner as Director IV of EID in a "Temporary" capacity. On February 15, 2001, Commissioner
Rufino S.B. Javier renewed again the appointment of petitioner to the same position in a
"Temporary" capacity.2
On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad interim, Benipayo as
COMELEC Chairman,3and Borra4 and Tuason5 as COMELEC Commissioners, each for a term of
seven years and all expiring on February 2, 2008. Benipayo took his oath of office and assumed the
position of COMELEC Chairman. Borra and Tuason likewise took their oaths of office and assumed
their positions as COMELEC Commissioners. The Office of the President submitted to the
Commission on Appointments on May 22, 2001 the ad interim appointments of Benipayo, Borra and
Tuason for confirmation.6 However, the Commission on Appointments did not act on said
appointments.
On June 1, 2001, President Arroyo renewed the ad interim appointments of Benipayo, Borra and
Tuason to the same positions and for the same term of seven years, expiring on February 2,
2008.7 They took their oaths of office for a second time. The Office of the President transmitted on
June 5, 2001 their appointments to the Commission on Appointments for confirmation.8
Congress adjourned before the Commission on Appointments could act on their appointments.
Thus, on June 8, 2001, President Macapagal Arroyo renewed again the ad interim appointments of
Benipayo, Borra and Tuason to the same positions.9 The Office of the President submitted their
appointments for confirmation to the Commission on Appointments.10 They took their oaths of office
anew.
In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated April 11,
200111 addressed to petitioner as Director IV of the EID and to Cinco as Director III also of the EID,
designating Cinco Officer-in-Charge of the EID and reassigning petitioner to the Law Department.
COMELEC EID Commissioner-in-Charge Mehol K. Sadain objected to petitioner’s reassignment in a
Memorandum dated April 14, 200112 addressed to the COMELEC en banc. Specifically,
Commissioner Sadain questioned Benipayo’s failure to consult the Commissioner-in-Charge of the
EID in the reassignment of petitioner.
On April 16, 2001, petitioner requested Benipayo to reconsider her relief as Director IV of the EID
and her reassignment to the Law Department.13 Petitioner cited Civil Service Commission
Memorandum Circular No. 7 dated April 10, 2001, reminding heads of government offices that
"transfer and detail of employees are prohibited during the election period beginning January 2 until
June 13, 2001." Benipayo denied her request for reconsideration on April 18, 2001,14 citing
COMELEC Resolution No. 3300 dated November 6, 2000, which states in part:
"NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it
by the Constitution, the Omnibus Election Code and other election laws, as an exception to
the foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new
employees or fill new positions and transfer or reassign its personnel, when necessary in the
effective performance of its mandated functions during the prohibited period, provided that
the changes in the assignment of its field personnel within the thirty-day period before
election day shall be effected after due notice and hearing."
Petitioner appealed the denial of her request for reconsideration to the COMELEC en banc in a
Memorandum dated April 23, 2001.15 Petitioner also filed an administrative and criminal
complaint16 with the Law Department17 against Benipayo, alleging that her reassignment violated
Section 261 (h) of the Omnibus Election Code, COMELEC Resolution No. 3258, Civil Service
Memorandum Circular No. 07, s. 001, and other pertinent administrative and civil service laws, rules
and regulations.
During the pendency of her complaint before the Law Department, petitioner filed the instant petition
questioning the appointment and the right to remain in office of Benipayo, Borra and Tuason, as
Chairman and Commissioners of the COMELEC, respectively. Petitioner claims that the ad
interim appointments of Benipayo, Borra and Tuason violate the constitutional provisions on the
independence of the COMELEC, as well as on the prohibitions on temporary appointments and
reappointments of its Chairman and members. Petitioner also assails as illegal her removal as
Director IV of the EID and her reassignment to the Law Department. Simultaneously, petitioner
challenges the designation of Cinco as Officer-in-Charge of the EID. Petitioner, moreover, questions
the legality of the disbursements made by COMELEC Finance Services Department Officer-in-
Charge Gideon C. De Guzman to Benipayo, Borra and Tuason by way of salaries and other
emoluments.
In the meantime, on September 6, 2001, President Macapagal Arroyo renewed once again the ad
interimappointments of Benipayo as COMELEC Chairman and Borra and Tuason as
Commissioners, respectively, for a term of seven years expiring on February 2, 2008.18 They all took
their oaths of office anew.
The Issues
The issues for resolution of this Court are as follows:
1. Whether or not the instant petition satisfies all the requirements before this Court may exercise its
power of judicial review in constitutional cases;
2. Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad
interimappointments issued by the President amounts to a temporary appointment prohibited by
Section 1 (2), Article IX-C of the Constitution;
3. Assuming that the first ad interim appointments and the first assumption of office by Benipayo,
Borra and Tuason are legal, whether or not the renewal of their ad interim appointments and
subsequent assumption of office to the same positions violate the prohibition on reappointment
under Section 1 (2), Article IX-C of the Constitution;
4. Whether or not Benipayo’s removal of petitioner from her position as Director IV of the EID and
her reassignment to the Law Department is illegal and without authority, having been done without
the approval of the COMELEC as a collegial body;
5. Whether or not the Officer-in-Charge of the COMELEC’s Finance Services Department, in

continuing to make disbursements in favor of Benipayo, Borra, Tuason and Cinco, is acting in
excess of jurisdiction.
First Issue: Propriety of Judicial Review
Respondents assert that the petition fails to satisfy all the four requisites before this Court may
exercise its power of judicial review in constitutional cases. Out of respect for the acts of the
Executive department, which is co-equal with this Court, respondents urge this Court to refrain from
reviewing the constitutionality of the ad interim appointments issued by the President to Benipayo,
Borra and Tuason unless all the four requisites are present. These are: (1) the existence of an actual
and appropriate controversy; (2) a personal and substantial interest of the party raising the
constitutional issue; (3) the exercise of the judicial review is pleaded at the earliest opportunity; and
(4) the constitutional issue is the lis mota of the case.19 Respondents argue that the second, third and
fourth requisites are absent in this case. Respondents maintain that petitioner does not have a
personal and substantial interest in the case because she has not sustained a direct injury as a
result of the ad interim appointments of Benipayo, Borra and Tuason and their assumption of office.
Respondents point out that petitioner does not claim to be lawfully entitled to any of the positions
assumed by Benipayo, Borra or Tuason. Neither does petitioner claim to be directly injured by the
appointments of these three respondents.
Respondents also contend that petitioner failed to question the constitutionality of the ad
interim appointments at the earliest opportunity. Petitioner filed the petition only on August 3, 2001
despite the fact that the ad interimappointments of Benipayo, Borra and Tuason were issued as
early as March 22, 2001. Moreover, the petition was filed after the third time that these three
respondents were issued ad interim appointments.
Respondents insist that the real issue in this case is the legality of petitioner’s reassignment from the
EID to the Law Department. Consequently, the constitutionality of the ad interim appointments is not
the lis mota of this case.
We are not persuaded.
Benipayo reassigned petitioner from the EID, where she was Acting Director, to the Law
Department, where she was placed on detail service.20 Respondents claim that the reassignment was
"pursuant to x x x Benipayo’s authority as Chairman of the Commission on Elections, and as the
Commission’s Chief Executive Officer."21 Evidently, respondents anchor the legality of petitioner’s
reassignment on Benipayo’s authority as Chairman of the COMELEC. The real issue then turns on
whether or not Benipayo is the lawful Chairman of the COMELEC. Even if petitioner is only an Acting
Director of the EID, her reassignment is without legal basis if Benipayo is not the lawful COMELEC
Chairman, an office created by the Constitution.
On the other hand, if Benipayo is the lawful COMELEC Chairman because he assumed office in
accordance with the Constitution, then petitioner’s reassignment is legal and she has no cause to
complain provided the reassignment is in accordance with the Civil Service Law. Clearly, petitioner
has a personal and material stake in the resolution of the constitutionality of Benipayo’s assumption
of office. Petitioner’s personal and substantial injury, if Benipayo is not the lawful COMELEC
Chairman, clothes her with the requisite locus standi to raise the constitutional issue in this petition.
Respondents harp on petitioner’s belated act of questioning the constitutionality of the ad

interim appointments of Benipayo, Borra and Tuason. Petitioner filed the instant petition only on
August 3, 2001, when the first ad interimappointments were issued as early as March 22, 2001.
However, it is not the date of filing of the petition that determines whether the constitutional issue
was raised at the earliest opportunity. The earliest opportunity to raise a constitutional issue is to
raise it in the pleadings before a competent court that can resolve the same, such that, "if it is not
raised in the pleadings, it cannot be considered at the trial, and, if not considered at the trial, it
cannot be considered on appeal."22 Petitioner questioned the constitutionality of the ad
interim appointments of Benipayo, Borra and Tuason when she filed her petition before this Court,
which is the earliest opportunity for pleading the constitutional issue before a competent body.
Furthermore, this Court may determine, in the exercise of sound discretion, the time when a
constitutional issue may be passed upon.23 There is no doubt petitioner raised the constitutional issue
on time.
Moreover, the legality of petitioner’s reassignment hinges on the constitutionality of Benipayo’s ad

interimappointment and assumption of office. Unless the constitutionality of Benipayo’s ad
interim appointment and assumption of office is resolved, the legality of petitioner’s reassignment
from the EID to the Law Department cannot be determined. Clearly, the lis mota of this case is the
very constitutional issue raised by petitioner.
In any event, the issue raised by petitioner is of paramount importance to the public. The legality of
the directives and decisions made by the COMELEC in the conduct of the May 14, 2001 national
elections may be put in doubt if the constitutional issue raised by petitioner is left unresolved. In
keeping with this Court’s duty to determine whether other agencies of government have remained
within the limits of the Constitution and have not abused the discretion given them, this Court may
even brush aside technicalities of procedure and resolve any constitutional issue raised.24 Here the
petitioner has complied with all the requisite technicalities. Moreover, public interest requires the
resolution of the constitutional issue raised by petitioner.
Second Issue: The Nature of an Ad Interim Appointment
Petitioner argues that an ad interim appointment to the COMELEC is a temporary appointment that
is prohibited by Section 1 (2), Article IX-C of the Constitution, which provides as follows:
"The Chairman and the Commissioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first
appointed, three Members shall hold office for seven years, two Members for five years, and the last
Members for three years, without reappointment. Appointment to any vacancy shall be only for the
unexpired term of the predecessor. In no case shall any Member be appointed or designated in a
temporary or acting capacity." (Emphasis supplied)
Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the
President at her pleasure, and can even be disapproved or simply by-passed by the Commission on
Appointments. For this reason, petitioner claims that an ad interim appointment is temporary in
character and consequently prohibited by the last sentence of Section 1 (2), Article IX-C of the
Constitution.
Based on petitioner’s theory, there can be no ad interim appointment to the COMELEC or to the
other two constitutional commissions, namely the Civil Service Commission and the Commission on
Audit. The last sentence of Section 1 (2), Article IX-C of the Constitution is also found in Article IX-B
and Article IX-D providing for the creation of the Civil Service Commission and the Commission on
Audit, respectively. Petitioner interprets the last sentence of Section 1 (2) of Article IX-C to mean that
the ad interim appointee cannot assume office until his appointment is confirmed by the Commission
on Appointments for only then does his appointment become permanent and no longer temporary in
character.
The rationale behind petitioner’s theory is that only an appointee who is confirmed by the
Commission on Appointments can guarantee the independence of the COMELEC. A confirmed
appointee is beyond the influence of the President or members of the Commission on Appointments
since his appointment can no longer be recalled or disapproved. Prior to his confirmation, the
appointee is at the mercy of both the appointing and confirming powers since his appointment can
be terminated at any time for any cause. In the words of petitioner, a Sword of Damocles hangs over
the head of every appointee whose confirmation is pending with the Commission on Appointments.
We find petitioner’s argument without merit.
An ad interim appointment is a permanent appointment because it takes effect immediately and can
no longer be withdrawn by the President once the appointee has qualified into office. The fact that it
is subject to confirmation by the Commission on Appointments does not alter its permanent
character. The Constitution itself makes an ad interim appointment permanent in character by
making it effective until disapproved by the Commission on Appointments or until the next
adjournment of Congress. The second paragraph of Section 16, Article VII of the Constitution
"The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective only
until disapproval by the Commission on Appointments or until the next adjournment of the
Congress." (Emphasis supplied)
Thus, the ad interim appointment remains effective until such disapproval or next adjournment,
signifying that it can no longer be withdrawn or revoked by the President. The fear that the President
can withdraw or revoke at any time and for any reason an ad interim appointment is utterly without
basis.
More than half a century ago, this Court had already ruled that an ad interim appointment is
permanent in character. In Summers vs. Ozaeta,25 decided on October 25, 1948, we held that:
"x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10,
Article VII of the Constitution, which provides that the ‘President shall have the power to
make appointments during the recess of the Congress, but such appointments shall be
effective only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.’ It is an appointment permanent in nature, and the
circumstance that it is subject to confirmation by the Commission on Appointments does not
alter its permanent character. An ad interim appointment is disapproved certainly for a
reason other than that its provisional period has expired. Said appointment is of course
distinguishable from an ‘acting’ appointment which is merely temporary, good until another
permanent appointment is issued." (Emphasis supplied)
The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus
an ad interimappointment takes effect immediately. The appointee can at once assume office and
exercise, as a de jure officer, all the powers pertaining to the office. In Pacete vs. Secretary of the
Commission on Appointments,26 this Court elaborated on the nature of an ad interim appointment as
follows:
"A distinction is thus made between the exercise of such presidential prerogative requiring
confirmation by the Commission on Appointments when Congress is in session and when it
is in recess. In the former, the President nominates, and only upon the consent of the
Commission on Appointments may the person thus named assume office. It is not so with
reference to ad interim appointments. It takes effect at once. The individual chosen may thus
qualify and perform his function without loss of time. His title to such office is complete. In the
language of the Constitution, the appointment is effective ‘until disapproval by the
Commission on Appointments or until the next adjournment of the Congress.’"
Petitioner cites Black’s Law Dictionary which defines the term "ad interim" to mean "in the meantime"
or "for the time being." Hence, petitioner argues that an ad interim appointment is undoubtedly
temporary in character. This argument is not new and was answered by this Court in Pamantasan
ng Lungsod ng Maynila vs. Intermediate Appellate Court,27 where we explained that:
"x x x From the arguments, it is easy to see why the petitioner should experience difficulty in
understanding the situation. Private respondent had been extended several ‘ad interim’
appointments which petitioner mistakenly understands as appointments temporary in nature.
Perhaps, it is the literal translation of the word ‘ad interim’ which creates such belief. The term is
defined by Black to mean "in the meantime" or "for the time being". Thus, an officer ad interim is one
appointed to fill a vacancy, or to discharge the duties of the office during the absence or temporary
incapacity of its regular incumbent (Black’s Law Dictionary, Revised Fourth Edition, 1978). But such
is not the meaning nor the use intended in the context of Philippine law. In referring to Dr. Esteban’s
appointments, the term is not descriptive of the nature of the appointments given to him. Rather, it is
used to denote the manner in which said appointments were made, that is, done by the President of
the Pamantasan in the meantime, while the Board of Regents, which is originally vested by the
University Charter with the power of appointment, is unable to act. x x x." (Emphasis supplied)
Thus, the term "ad interim appointment", as used in letters of appointment signed by the President,
means a permanent appointment made by the President in the meantime that Congress is in recess.
It does not mean a temporary appointment that can be withdrawn or revoked at any time. The term,
although not found in the text of the Constitution, has acquired a definite legal meaning under
Philippine jurisprudence. The Court had again occasion to explain the nature of an ad
interim appointment in the more recent case of Marohombsar vs. Court of Appeals,28where the Court
stated:
"We have already mentioned that an ad interim appointment is not descriptive of the nature
of the appointment, that is, it is not indicative of whether the appointment is temporary or in
an acting capacity, rather it denotes the manner in which the appointment was made. In the
instant case, the appointment extended to private respondent by then MSU President Alonto,
Jr. was issued without condition nor limitation as to tenure. The permanent status of private
respondent’s appointment as Executive Assistant II was recognized and attested to by the
Civil Service Commission Regional Office No. 12. Petitioner’s submission that private
respondent’s ad interim appointment is synonymous with a temporary appointment which
could be validly terminated at any time is clearly untenable. Ad interim appointments are
permanent but their terms are only until the Board disapproves them." (Emphasis supplied)
An ad interim appointee who has qualified and assumed office becomes at that moment a
government employee and therefore part of the civil service. He enjoys the constitutional protection
that "[n]o officer or employee in the civil service shall be removed or suspended except for cause
provided by law."29 Thus, an ad interim appointment becomes complete and irrevocable once the
appointee has qualified into office. The withdrawal or revocation of an ad interim appointment is
possible only if it is communicated to the appointee before the moment he qualifies, and any
withdrawal or revocation thereafter is tantamount to removal from office.30 Once an appointee has
qualified, he acquires a legal right to the office which is protected not only by statute but also by the
Constitution. He can only be removed for cause, after notice and hearing, consistent with the
requirements of due process.
An ad interim appointment can be terminated for two causes specified in the Constitution. The first
cause is the disapproval of his ad interim appointment by the Commission on Appointments. The
second cause is the adjournment of Congress without the Commission on Appointments acting on
his appointment. These two causes are resolutory conditions expressly imposed by the Constitution
on all ad interim appointments. These resolutory conditions constitute, in effect, a Sword of
Damocles over the heads of ad interim appointees. No one, however, can complain because it is the
Constitution itself that places the Sword of Damocles over the heads of the ad interimappointees.
While an ad interim appointment is permanent and irrevocable except as provided by law, an

appointment or designation in a temporary or acting capacity can be withdrawn or revoked at the
pleasure of the appointing power.31A temporary or acting appointee does not enjoy any security of
tenure, no matter how briefly. This is the kind of appointment that the Constitution prohibits the
President from making to the three independent constitutional commissions, including the
COMELEC. Thus, in Brillantes vs. Yorac,32 this Court struck down as unconstitutional the designation
by then President Corazon Aquino of Associate Commissioner Haydee Yorac as Acting Chairperson
of the COMELEC. This Court ruled that:
"A designation as Acting Chairman is by its very terms essentially temporary and therefore
revocable at will. No cause need be established to justify its revocation. Assuming its validity,
the designation of the respondent as Acting Chairman of the Commission on Elections may
be withdrawn by the President of the Philippines at any time and for whatever reason she
sees fit. It is doubtful if the respondent, having accepted such designation, will not be
estopped from challenging its withdrawal.
xxx
The Constitution provides for many safeguards to the independence of the Commission on
Elections, foremost among which is the security of tenure of its members. That guarantee is
not available to the respondent as Acting Chairman of the Commission on Elections by
designation of the President of the Philippines."
Earlier, in Nacionalista Party vs. Bautista,33 a case decided under the 1935 Constitution, which did not
have a provision prohibiting temporary or acting appointments to the COMELEC, this Court
nevertheless declared unconstitutional the designation of the Solicitor General as acting member of
the COMELEC. This Court ruled that the designation of an acting Commissioner would undermine
the independence of the COMELEC and hence violate the Constitution. We declared then: "It would
be more in keeping with the intent, purpose and aim of the framers of the Constitution to appoint
a permanent Commissioner than to designate one to act temporarily." (Emphasis supplied)
In the instant case, the President did in fact appoint permanent Commissioners to fill the vacancies
in the COMELEC, subject only to confirmation by the Commission on Appointments. Benipayo,
Borra and Tuason were extended permanent appointments during the recess of Congress. They
were not appointed or designated in a temporary or acting capacity, unlike Commissioner Haydee
Yorac in Brillantes vs. Yorac34 and Solicitor General Felix Bautista in Nacionalista Party vs.
Bautista.35 The ad interim appointments of Benipayo, Borra and Tuason are expressly allowed by the
Constitution which authorizes the President, during the recess of Congress, to make appointments
that take effect immediately.
While the Constitution mandates that the COMELEC "shall be independent"36 , this provision should
be harmonized with the President’s power to extend ad interim appointments. To hold that the
independence of the COMELEC requires the Commission on Appointments to first confirm ad
interim appointees before the appointees can assume office will negate the President’s power to
make ad interim appointments. This is contrary to the rule on statutory construction to give meaning
and effect to every provision of the law. It will also run counter to the clear intent of the framers of the
Constitution.
The original draft of Section 16, Article VII of the Constitution - on the nomination of officers subject
to confirmation by the Commission on Appointments - did not provide for ad interim appointments.
The original intention of the framers of the Constitution was to do away with ad interim appointments
because the plan was for Congress to remain in session throughout the year except for a brief 30-
day compulsory recess. However, because of the need to avoid disruptions in essential government
services, the framers of the Constitution thought it wise to reinstate the provisions of the 1935
Constitution on ad interim appointments. The following discussion during the deliberations of the
Constitutional Commission elucidates this:
"FR. BERNAS: X x x our compulsory recess now is only 30 days. So under such
circumstances, is it necessary to provide for ad interim appointments? Perhaps there should
be a little discussion on that.
xxx
MS. AQUINO: My concern is that unless this problem is addressed, this might present
problems in terms of anticipating interruption of government business, considering that we
are not certain of the length of involuntary recess or adjournment of the Congress. We are
certain, however, of the involuntary adjournment of the Congress which is 30 days, but we
cannot leave to conjecture the matter of involuntary recess.
FR. BERNAS: That is correct, but we are trying to look for a formula. I wonder if the
Commissioner has a formula x x x.
xxx
MR. BENGZON: Madam President, apropos of the matter raised by Commissioner Aquino
and after conferring with the Committee, Commissioner Aquino and I propose the following
amendment as the last paragraph of Section 16, the wordings of which are in the 1935
Constitution: THE PRESIDENT SHALL HAVE THE POWER TO MAKE APPOINTMENTS
DURING THE RECESS OF CONGRESS WHETHER IT BE VOLUNTARY OR
COMPULSORY BUT SUCH APPOINTMENTS SHALL BE EFFECTIVE ONLY UNTIL
DISAPPROVAL BY THE COMMISSION ON APPOINTMENTS OR UNTIL THE NEXT
ADJOURNMENT OF THE CONGRESS.
This is otherwise called the ad interim appointments.
xxx
THE PRESIDENT: Is there any objection to the proposed amendment of Commissioners

Aquino and Bengzon, adding a paragraph to the last paragraph of Section 16? (Silence) The
Chair hears none; the amendment is approved."37 (Emphasis supplied)
Clearly, the reinstatement in the present Constitution of the ad interim appointing power of the
President was for the purpose of avoiding interruptions in vital government services that otherwise
would result from prolonged vacancies in government offices, including the three constitutional
commissions. In his concurring opinion in Guevara vs. Inocentes,38 decided under the 1935
Constitution, Justice Roberto Concepcion, Jr. explained the rationale behind ad
interim appointments in this manner:
"Now, why is the lifetime of ad interim appointments so limited? Because, if they expired
before the session of Congress, the evil sought to be avoided – interruption in the discharge
of essential functions – may take place. Because the same evil would result if the
appointments ceased to be effective during the session of Congress and before its
adjournment. Upon the other hand, once Congress has adjourned, the evil aforementioned
may easily be conjured by the issuance of other ad interim appointments or reappointments."
(Emphasis supplied)
Indeed, the timely application of the last sentence of Section 16, Article VII of the Constitution barely
avoided the interruption of essential government services in the May 2001 national elections.
Following the decision of this Court in Gaminde vs. Commission on Appointments,39 promulgated on
December 13, 2000, the terms of office of constitutional officers first appointed under the
Constitution would have to be counted starting February 2, 1987, the date of ratification of the
Constitution, regardless of the date of their actual appointment. By this reckoning, the terms of office
of three Commissioners of the COMELEC, including the Chairman, would end on February 2, 2001.40
Then COMELEC Chairperson Harriet O. Demetriou was appointed only on January 11, 2000 to
serve, pursuant to her appointment papers, until February 15, 2002,41 the original expiry date of the
term of her predecessor, Justice Bernardo P. Pardo, who was elevated to this Court. The original
expiry date of the term of Commissioner Teresita Dy-Liacco Flores was also February 15, 2002,
while that of Commissioner Julio F. Desamito was November 3, 2001.42 The original expiry dates of
the terms of office of Chairperson Demetriou and Commissioners Flores and Desamito were
therefore supposed to fall after the May 2001 elections. Suddenly and unexpectedly, because of
the Gaminde ruling, there were three vacancies in the seven-person COMELEC, with national
elections looming less than three and one-half months away. To their credit, Chairperson Demetriou
and Commissioner Flores vacated their offices on February 2, 2001 and did not question any more
before this Court the applicability of the Gaminderuling to their own situation.
In a Manifestation43 dated December 28, 2000 filed with this Court in the Gaminde case, Chairperson
Demetriou stated that she was vacating her office on February 2, 2001, as she believed any delay in
choosing her successor might create a "constitutional crisis" in view of the proximity of the May 2001
national elections. Commissioner Desamito chose to file a petition for intervention44 in
the Gaminde case but this Court denied the intervention. Thus, Commissioner Desamito also
vacated his office on February 2, 2001.
During an election year, Congress normally goes on voluntary recess between February and June
considering that many of the members of the House of Representatives and the Senate run for re-
election. In 2001, the Eleventh Congress adjourned from January 9, 2001 to June 3,
2001.45 Concededly, there was no more time for Benipayo, Borra and Tuason, who were originally
extended ad interim appointments only on March 22, 2001, to be confirmed by the Commission on
Appointments before the May 14, 2001 elections.
If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the three
vacancies in the COMELEC, there would only have been one division functioning in the COMELEC
instead of two during the May 2001 elections. Considering that the Constitution requires that "all x x
x election cases shall be heard and decided in division",46 the remaining one division would have
been swamped with election cases. Moreover, since under the Constitution motions for
reconsideration "shall be decided by the Commission en banc", the mere absence of one of the four
remaining members would have prevented a quorum, a less than ideal situation considering that the
Commissioners are expected to travel around the country before, during and after the elections.
There was a great probability that disruptions in the conduct of the May 2001 elections could occur
because of the three vacancies in the COMELEC. The successful conduct of the May 2001 national
elections, right after the tumultuous EDSA II and EDSA III events, was certainly essential in
safeguarding and strengthening our democracy.
Evidently, the exercise by the President in the instant case of her constitutional power to make ad
interimappointments prevented the occurrence of the very evil sought to be avoided by the second
paragraph of Section 16, Article VII of the Constitution. This power to make ad interim appointments
is lodged in the President to be exercised by her in her sound judgment. Under the second
paragraph of Section 16, Article VII of the Constitution, the President can choose either of two
modes in appointing officials who are subject to confirmation by the Commission on Appointments.
First, while Congress is in session, the President may nominate the prospective appointee, and
pending consent of the Commission on Appointments, the nominee cannot qualify and assume
office. Second, during the recess of Congress, the President may extend an ad interim appointment
which allows the appointee to immediately qualify and assume office.
Whether the President chooses to nominate the prospective appointee or extend an ad

interim appointment is a matter within the prerogative of the President because the Constitution
grants her that power. This Court cannot inquire into the propriety of the choice made by the
President in the exercise of her constitutional power, absent grave abuse of discretion amounting to
lack or excess of jurisdiction on her part, which has not been shown in the instant case.
The issuance by Presidents of ad interim appointments to the COMELEC is a long-standing practice.

Former President Corazon Aquino issued an ad interim appointment to Commissioner Alfredo E.
Abueg.47 Former President Fidel V. Ramos extended ad interim appointments to Commissioners Julio
F. Desamito, Japal M. Guiani, Graduacion A. Reyes-Claravall and Manolo F. Gorospe.48 Former
President Joseph Estrada also extended ad interim appointments to Commissioners Abdul Gani M.
Marohombsar, Luzviminda Tancangco, Mehol K. Sadain and Ralph C. Lantion.49
The President’s power to extend ad interim appointments may indeed briefly put the appointee at the
mercy of both the appointing and confirming powers. This situation, however, is only for a short
period - from the time of issuance of the ad interim appointment until the Commission on
Appointments gives or withholds its consent. The Constitution itself sanctions this situation, as a
trade-off against the evil of disruptions in vital government services. This is also part of the check-
and-balance under the separation of powers, as a trade-off against the evil of granting the President
absolute and sole power to appoint. The Constitution has wisely subjected the President’s
appointing power to the checking power of the legislature.
This situation, however, does not compromise the independence of the COMELEC as a
constitutional body. The vacancies in the COMELEC are precisely staggered to insure that the
majority of its members hold confirmed appointments, and not one President will appoint all the
COMELEC members.50 In the instant case, the Commission on Appointments had long confirmed
four51 of the incumbent COMELEC members, comprising a majority, who could now be removed from
office only by impeachment. The special constitutional safeguards that insure the independence of
the COMELEC remain in place.52 The COMELEC enjoys fiscal autonomy, appoints its own officials
and employees, and promulgates its own rules on pleadings and practice. Moreover, the salaries of
COMELEC members cannot be decreased during their tenure.
In fine, we rule that the ad interim appointments extended by the President to Benipayo, Borra and
Tuason, as COMELEC Chairman and Commissioners, respectively, do not constitute temporary or
acting appointments prohibited by Section 1 (2), Article IX-C of the Constitution.
Third Issue: The Constitutionality of Renewals of Appointments
Petitioner also agues that assuming the first ad interim appointments and the first assumption of
office by Benipayo, Borra and Tuason are constitutional, the renewal of the their ad interim
appointments and their subsequent assumption of office to the same positions violate the prohibition
on reappointment under Section 1 (2), Article IX-C of the Constitution, which provides as follows:
"The Chairman and the Commissioners shall be appointed by the President with the consent
of the Commission on Appointments for a term of seven years without reappointment. Of
those first appointed, three Members shall hold office for seven years, two Members for five
years, and the last members for three years, without reappointment. X x x." (Emphasis
supplied)
Petitioner theorizes that once an ad interim appointee is by-passed by the Commission on

Appointments, his ad interim appointment can no longer be renewed because this will violate
Section 1 (2), Article IX-C of the Constitution which prohibits reappointments. Petitioner asserts that
this is particularly true to permanent appointees who have assumed office, which is the situation of
Benipayo, Borra and Tuason if their ad interim appointments are deemed permanent in character.
There is no dispute that an ad interim appointee disapproved by the Commission on Appointments

can no longer be extended a new appointment. The disapproval is a final decision of the
Commission on Appointments in the exercise of its checking power on the appointing authority of the
President. The disapproval is a decision on the merits, being a refusal by the Commission on
Appointments to give its consent after deliberating on the qualifications of the appointee. Since the
Constitution does not provide for any appeal from such decision, the disapproval is final and binding
on the appointee as well as on the appointing power. In this instance, the President can no longer
renew the appointment not because of the constitutional prohibition on reappointment, but because
of a final decision by the Commission on Appointments to withhold its consent to the appointment.
An ad interim appointment that is by-passed because of lack of time or failure of the Commission on
Appointments to organize is another matter. A by-passed appointment is one that has not been
finally acted upon on the merits by the Commission on Appointments at the close of the session of
Congress. There is no final decision by the Commission on Appointments to give or withhold its
consent to the appointment as required by the Constitution. Absent such decision, the President is
free to renew the ad interim appointment of a by-passed appointee. This is recognized in Section 17
of the Rules of the Commission on Appointments, which provides as follows:
"Section 17. Unacted Nominations or Appointments Returned to the President. Nominations
or appointments submitted by the President of the Philippines which are not finally acted
upon at the close of the session of Congress shall be returned to the President and, unless
new nominations or appointments are made, shall not again be considered by the
Commission." (Emphasis supplied)
Hence, under the Rules of the Commission on Appointments, a by-passed appointment can be
considered again if the President renews the appointment.
It is well settled in this jurisdiction that the President can renew the ad interim appointments of by-
passed appointees. Justice Roberto Concepcion, Jr. lucidly explained in his concurring opinion in
Guevara vs. Inocentes53why by-passed ad interim appointees could be extended new appointments,
thus:
"In short, an ad interim appointment ceases to be effective upon disapproval by the

Commission, because the incumbent can not continue holding office over the positive
objection of the Commission. It ceases, also, upon "the next adjournment of the Congress",
simply because the President may then issue new appointments - not because of implied
disapproval of the Commission deduced from its inaction during the session of Congress, for,
under the Constitution, the Commission may affect adversely the interim appointments only
by action, never by omission. If the adjournment of Congress were an implied disapproval
of ad interimappointments made prior thereto, then the President could no longer appoint
those so by-passed by the Commission. But, the fact is that the President may reappoint
them, thus clearly indicating that the reason for said termination of the ad
interim appointments is not the disapproval thereof allegedly inferred from said omission of
the Commission, but the circumstance that upon said adjournment of the Congress, the
President is free to make ad interim appointments or reappointments." (Emphasis supplied)
Guevara was decided under the 1935 Constitution from where the second paragraph of Section 16,
Article VII of the present Constitution on ad interim appointments was lifted verbatim.54 The
jurisprudence under the 1935 Constitution governing ad interim appointments by the President is
doubtless applicable to the present Constitution. The established practice under the present
Constitution is that the President can renew the appointments of by-passed ad interim appointees.
This is a continuation of the well-recognized practice under the 1935 Constitution, interrupted only by
the 1973 Constitution which did not provide for a Commission on Appointments but vested sole
appointing power in the President.
The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to
disapproved nor by-passed ad interim appointments. A disapproved ad interim appointment cannot
be revived by another ad interimappointment because the disapproval is final under Section 16,
Article VII of the Constitution, and not because a reappointment is prohibited under Section 1 (2),
Article IX-C of the Constitution. A by-passed ad interim appointment can be revived by a new ad
interim appointment because there is no final disapproval under Section 16, Article VII of the
Constitution, and such new appointment will not result in the appointee serving beyond the fixed
term of seven years.
Section 1 (2), Article IX-C of the Constitution provides that "[t]he Chairman and the Commissioners
shall be appointed x x x for a term of seven years without reappointment." (Emphasis supplied)
There are four situations where this provision will apply. The first situation is where an ad
interim appointee to the COMELEC, after confirmation by the Commission on Appointments, serves
his full seven-year term. Such person cannot be reappointed to the COMELEC, whether as a
member or as a chairman, because he will then be actually serving more than seven years. The
second situation is where the appointee, after confirmation, serves a part of his term and then
resigns before his seven-year term of office ends. Such person cannot be reappointed, whether as a
member or as a chair, to a vacancy arising from retirement because a reappointment will result in
the appointee also serving more than seven years. The third situation is where the appointee is
confirmed to serve the unexpired term of someone who died or resigned, and the appointee
completes the unexpired term. Such person cannot be reappointed, whether as a member or chair,
to a vacancy arising from retirement because a reappointment will result in the appointee also
serving more than seven years.
The fourth situation is where the appointee has previously served a term of less than seven years,
and a vacancy arises from death or resignation. Even if it will not result in his serving more than
seven years, a reappointment of such person to serve an unexpired term is also prohibited because
his situation will be similar to those appointed under the second sentence of Section 1 (2), Article IX-
C of the Constitution. This provision refers to the first appointees under the Constitution whose terms
of office are less than seven years, but are barred from ever being reappointed under any situation.
Not one of these four situations applies to the case of Benipayo, Borra or Tuason.
The framers of the Constitution made it quite clear that any person who has served any term of
office as COMELEC member – whether for a full term of seven years, a truncated term of five or
three years, or even for an unexpired term of any length of time – can no longer be reappointed to
the COMELEC. Commissioner Foz succinctly explained this intent in this manner:
"MR. FOZ. But there is the argument made in the concurring opinion of Justice Angelo
Bautista in the case of Visarra vs. Miraflor, to the effect that the prohibition on reappointment
applies only when the term or tenure is for seven years. But in cases where the appointee
serves only for less than seven years, he would be entitled to reappointment. Unless we put
the qualifying words "without reappointment" in the case of those appointed, then it is
possible that an interpretation could be made later on their case, they can still be
reappointed to serve for a total of seven years.
Precisely, we are foreclosing that possibility by making it clear that even in the case of those
first appointed under the Constitution, no reappointment can be made."55 (Emphasis supplied)
In Visarra vs. Miraflor,56 Justice Angelo Bautista, in his concurring opinion, quoted
Nacionalista vs. De Vera57that a "[r]eappointment is not prohibited when a Commissioner has
held office only for, say, three or six years, provided his term will not exceed nine years in
all." This was the interpretation despite the express provision in the 1935 Constitution that a
COMELEC member "shall hold office for a term of nine years and may not be reappointed."
To foreclose this interpretation, the phrase "without reappointment" appears twice in Section 1 (2),
Article IX-C of the present Constitution. The first phrase prohibits reappointment of any person
previously appointed for a term of seven years. The second phrase prohibits reappointment of any
person previously appointed for a term of five or three years pursuant to the first set of appointees
under the Constitution. In either case, it does not matter if the person previously appointed
completes his term of office for the intention is to prohibit any reappointment of any kind.
However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments
does not constitute a term of office. The period from the time the ad interim appointment is made to
the time it lapses is neither a fixed term nor an unexpired term. To hold otherwise would mean that
the President by his unilateral action could start and complete the running of a term of office in the
COMELEC without the consent of the Commission on Appointments. This interpretation renders
inutile the confirming power of the Commission on Appointments.
The phrase "without reappointment" applies only to one who has been appointed by the President
and confirmed by the Commission on Appointments, whether or not such person completes his term
of office. There must be a confirmation by the Commission on Appointments of the previous
appointment before the prohibition on reappointment can apply. To hold otherwise will lead to
absurdities and negate the President’s power to make ad interim appointments.
In the great majority of cases, the Commission on Appointments usually fails to act, for lack of time,
on the ad interim appointments first issued to appointees. If such ad interim appointments can no
longer be renewed, the President will certainly hesitate to make ad interim appointments because
most of her appointees will effectively be disapproved by mere inaction of the Commission on
Appointments. This will nullify the constitutional power of the President to make ad
interim appointments, a power intended to avoid disruptions in vital government services. This Court
cannot subscribe to a proposition that will wreak havoc on vital government services.
The prohibition on reappointment is common to the three constitutional commissions. The framers of
the present Constitution prohibited reappointments for two reasons. The first is to prevent a second
appointment for those who have been previously appointed and confirmed even if they served for
less than seven years. The second is to insure that the members of the three constitutional
commissions do not serve beyond the fixed term of seven years. As reported in the Journal of the
Constitutional Commission, Commissioner Vicente B. Foz, who sponsored58 the proposed articles on
the three constitutional commissions, outlined the four important features of the proposed articles, to
wit:
"Mr. Foz stated that the Committee had introduced basic changes in the common provision
affecting the three Constitutional Commissions, and which are: 1) fiscal autonomy which
provides (that) appropriations shall be automatically and regularly released to the
Commission in the same manner (as) provided for the Judiciary; 2) fixed term of office
without reappointment on a staggered basis to ensure continuity of functions and to minimize
the opportunity of the President to appoint all the members during his incumbency; 3)
prohibition to decrease salaries of the members of the Commissions during their term of
office; and 4) appointments of members would not require confirmation."59 (Emphasis
supplied)
There were two important amendments subsequently made by the Constitutional Commission to
these four features. First, as discussed earlier, the framers of the Constitution decided to require
confirmation by the Commission on Appointments of all appointments to the constitutional
commissions. Second, the framers decided to strengthen further the prohibition on serving beyond
the fixed seven-year term, in the light of a former chair of the Commission on Audit remaining in
office for 12 years despite his fixed term of seven years. The following exchange in the deliberations
of the Constitutional Commission is instructive:
"MR. SUAREZ: These are only clarificatory questions, Madam President. May I call the
sponsor’s attention, first of all, to Section 2 (2) on the Civil Service Commission wherein it is
stated: "In no case shall any Member be appointed in a temporary or acting capacity." I
detect in the Committee’s proposed resolutions a constitutional hangover, if I may use the
term, from the past administration. Am I correct in concluding that the reason the Committee
introduced this particular provision is to avoid an incident similar to the case of the Honorable
Francisco Tantuico who was appointed in an acting capacity as Chairman of the Commission
on Audit for about 5 years from 1975 until 1980, and then in 1980, was appointed as
Chairman with a tenure of another 7 years. So, if we follow that appointment to (its) logical
conclusion, he occupied that position for about 12 years in violation of the Constitution?
MR. FOZ: It is only one of the considerations. Another is really to make sure that any
member who is appointed to any of the commissions does not serve beyond 7
years."60 (Emphasis supplied)
Commissioner Christian Monsod further clarified the prohibition on reappointment in this manner:
"MR. MONSOD. If the (Commissioner) will read the whole Article, she will notice that there is
no reappointment of any kind and, therefore as a whole there is no way that somebody can
serve for more than seven years. The purpose of the last sentence is to make sure that this
does not happen by including in the appointment both temporary and acting
capacities."61 (Emphasis supplied)
Plainly, the prohibition on reappointment is intended to insure that there will be no reappointment of
any kind. On the other hand, the prohibition on temporary or acting appointments is intended to
prevent any circumvention of the prohibition on reappointment that may result in an appointee’s total
term of office exceeding seven years. The evils sought to be avoided by the twin prohibitions are
very specific - reappointment of any kind and exceeding one’s term in office beyond the maximum
period of seven years.
Not contented with these ironclad twin prohibitions, the framers of the Constitution tightened even
further the screws on those who might wish to extend their terms of office. Thus, the word
"designated" was inserted to plug any loophole that might be exploited by violators of the
Constitution, as shown in the following discussion in the Constitutional Commission:
"MR. DE LOS REYES: On line 32, between the words "appointed" and "in", I propose to
insert the words OR DESIGNATED so that the whole sentence will read: "In no case shall
any Member be appointed OR DESIGNATED in a temporary or acting capacity."
THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say?
MR. FOZ: But it changes the meaning of this sentence. The sentence reads: "In no case
shall any Member be appointed in a temporary or acting capacity."
MR. DE LOS REYES: Mr. Presiding Officer, the reason for this amendment is that some
lawyers make a distinction between an appointment and a designation. The Gentleman will
recall that in the case of Commissioner on Audit Tantuico, I think his term exceeded the
constitutional limit but the Minister of Justice opined that it did not because he was only
designated during the time that he acted as Commissioner on Audit. So, in order to erase
that distinction between appointment and designation, we should specifically place the word
so that there will be no more ambiguity. "In no case shall any Member be appointed OR
DESIGNATED in a temporary or acting capacity."
MR. FOZ: The amendment is accepted, Mr. Presiding Officer.
MR. DE LOS REYES: Thank you.
THE PRESIDING OFFICER (Mr. Trenas): Is there any objection? (Silence) The Chair hears
none; the amendment is approved."62
The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and
Tuason do not violate the prohibition on reappointments because there were no previous
appointments that were confirmed by the Commission on Appointments. A reappointment
presupposes a previous confirmed appointment. The same ad interim appointments and renewals of
appointments will also not breach the seven-year term limit because all the appointments and
renewals of appointments of Benipayo, Borra and Tuason are for a fixed term expiring on February
2, 2008.63 Any delay in their confirmation will not extend the expiry date of their terms of office.
Consequently, there is no danger whatsoever that the renewal of the ad interim appointments of
these three respondents will result in any of the evils intended to be exorcised by the twin
prohibitions in the Constitution. The continuing renewal of the ad interim appointment of these three
respondents, for so long as their terms of office expire on February 2, 2008, does not violate the
prohibition on reappointments in Section 1 (2), Article IX-C of the Constitution.
Fourth Issue: Respondent Benipayo’s Authority to Reassign Petitioner
Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and
reassign her to the Law Department. Petitioner further argues that only the COMELEC, acting as a
collegial body, can authorize such reassignment. Moreover, petitioner maintains that a reassignment
without her consent amounts to removal from office without due process and therefore illegal.
Petitioner’s posturing will hold water if Benipayo does not possess any color of title to the office of
Chairman of the COMELEC. We have ruled, however, that Benipayo is the de jure COMELEC
Chairman, and consequently he has full authority to exercise all the powers of that office for so long
as his ad interim appointment remains effective. Under Section 7 (4), Chapter 2, Subtitle C, Book V
of the Revised Administrative Code, the Chairman of the COMELEC is vested with the following
power:
"Section 7. Chairman as Executive Officer; Powers and Duties. The Chairman, who shall be
the Chief Executive Officer of the Commission, shall:
xxx
(4) Make temporary assignments, rotate and transfer personnel in accordance with the
provisions of the Civil Service Law." (Emphasis supplied)
The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own
authority to transfer or reassign COMELEC personnel in accordance with the Civil Service Law. In
the exercise of this power, the Chairman is not required by law to secure the approval of the
COMELEC en banc.
Petitioner’s appointment papers dated February 2, 1999, February 15, 2000 and February 15, 2001,
attached as Annexes "X", "Y" and "Z" to her Petition, indisputably show that she held her Director IV
position in the EID only in an acting or temporary capacity.64 Petitioner is not a Career Executive
Service (CES) officer, and neither does she hold Career Executive Service Eligibility, which are
necessary qualifications for holding the position of Director IV as prescribed in the Qualifications
Standards (Revised 1987) issued by the Civil Service Commission.65 Obviously, petitioner does not
enjoy security of tenure as Director IV. In Secretary of Justice Serafin Cuevas vs. Atty. Josefina G.
Bacal,66 this Court held that:
"As respondent does not have the rank appropriate for the position of Chief Public Attorney,
her appointment to that position cannot be considered permanent, and she can claim no
security of tenure in respect of that position. As held in Achacoso v. Macaraig:
‘It is settled that a permanent appointment can be issued only ‘to a person who
meets all the requirements for the position to which he is being appointed, including
the appropriate eligibility prescribed.’ Achacoso did not. At best, therefore, his
appointment could be regarded only as temporary. And being so, it could be
withdrawn at will by the appointing authority and ‘at a moment’s notice’, conformably
to established jurisprudence x x x.
The mere fact that a position belongs to the Career Service does not automatically
confer security of tenure on its occupant even if he does not possess the required
qualifications. Such right will have to depend on the nature of his appointment, which
in turn depends on his eligibility or lack of it. A person who does not have the
requisite qualifications for the position cannot be appointed to it in the first place, or
as an exception to the rule, may be appointed to it merely in an acting capacity in the
absence of appropriate eligibles. The appointment extended to him cannot be
regarded as permanent even if it may be so designated x x x.’"
Having been appointed merely in a temporary or acting capacity, and not possessed of the
necessary qualifications to hold the position of Director IV, petitioner has no legal basis in claiming
that her reassignment was contrary to the Civil Service Law. This time, the vigorous argument of
petitioner that a temporary or acting appointment can be withdrawn or revoked at the pleasure of the
appointing power happens to apply squarely to her situation.
Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act
under Section 261 (h) of the Omnibus Election Code, which provides as follows:
"Section 261. Prohibited Acts. The following shall be guilty of an election offense:
xxx
(h) Transfer of officers and employees in the civil service - Any public official who makes or
causes any transfer or detail whatever of any officer or employee in the civil service including
public school teachers, within the election period except upon prior approval of the
Commission."
Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect
transfers or reassignments of COMELEC personnel during the election period.67 Moreover, petitioner
insists that the COMELEC en banc must concur to every transfer or reassignment of COMELEC
personnel during the election period.
Contrary to petitioner’s allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300
dated November 6, 2000,68 exempting the COMELEC from Section 261 (h) of the Omnibus Election
Code. The resolution states in part:
"WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the Omnibus Election Code
xxx
Sec. 261. Prohibited Acts. The following shall be guilty of an election offense:
xxx
(h) Transfer of officers and employees in the civil service – Any public official who
makes or causes any transfer or detail whatever of any officer or employee in the
civil service including public school teachers, within the election period except upon
approval of the Commission.
WHEREAS, the aforequoted provisions are applicable to the national and local elections on
May 14, 2001;
WHEREAS, there is an urgent need to appoint, transfer or reassign personnel of the

Commission on Elections during the prohibited period in order that it can carry out its
constitutional duty to conduct free, orderly, honest, peaceful and credible elections;
"NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it
by the Constitution, the Omnibus Election Code and other election laws, as an exception to
the foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new
employees or fill new positions and transfer or reassign its personnel, when necessary in the
effective performance of its mandated functions during the prohibited period, provided that
the changes in the assignment of its field personnel within the thirty-day period before
election day shall be effected after due notice and hearing." (Emphasis supplied)
The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer
or reassignment can be made within thirty days prior to election day, refers only to
COMELEC field personnel and not to head office personnel like the petitioner. Under the Revised
Administrative Code,69 the COMELEC Chairman is the sole officer specifically vested with the power
to transfer or reassign COMELEC personnel. The COMELEC Chairman will logically exercise the
authority to transfer or reassign COMELEC personnel pursuant to COMELEC Resolution No. 3300.
The COMELEC en banc cannot arrogate unto itself this power because that will mean amending the
Revised Administrative Code, an act the COMELEC en banc cannot legally do.
COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC
personnel should carry the concurrence of the COMELEC as a collegial body. Interpreting
Resolution No. 3300 to require such concurrence will render the resolution meaningless since the
COMELEC en banc will have to approve every personnel transfer or reassignment, making the
resolution utterly useless. Resolution No. 3300 should be interpreted for what it is, an approval to
effect transfers and reassignments of personnel, without need of securing a second approval from
the COMELEC en banc to actually implement such transfer or reassignment.
The COMELEC Chairman is the official expressly authorized by law to transfer or reassign
COMELEC personnel. The person holding that office, in a de jure capacity, is Benipayo. The
COMELEC en banc, in COMELEC Resolution No. 3300, approved the transfer or reassignment of
COMELEC personnel during the election period. Thus, Benipayo’s order reassigning petitioner from
the EID to the Law Department does not violate Section 261 (h) of the Omnibus Election Code. For
the same reason, Benipayo’s order designating Cinco Officer-in-Charge of the EID is legally
unassailable.
Fifth Issue: Legality of Disbursements to Respondents
Based on the foregoing discussion, respondent Gideon C. De Guzman, Officer-in-Charge of the

Finance Services Department of the Commission on Elections, did not act in excess of jurisdiction in
paying the salaries and other emoluments of Benipayo, Borra, Tuason and Cinco.
WHEREFORE, the petition is dismissed for lack of merit. Costs against petitioner.
SO ORDERED.
65

SUPREME COURT
Manila
EN BANC
G.R. No. 191672 November 25, 2014
DENNIS A. B. FUNA, Petitioner,

vs.
THE CHAIRMAN, CIVIL SERVICE COMMISSION, FRANCISCO T. DUQUE III, EXECUTIVE
SECRETARY LEANDRO R. MENDOZA, OFFICE OF THE PRESIDENT, Respondents.
DECISION
BERSAMIN, J.:
The independence of the Civil Service Commission (CSC) is explicitly mandated under Section
1,1 Article IX-A of the 1987 Constitution. Additionally, Section 2,2 Article IX-A of the 1987 Constitution
prohibits its Members, during their tenure, from holding any other office or employment.
These constitutional provisions3 are central to this special civil action for certiorari and prohibition
brought to assail the designation of Hon. Francisco T. Duque III, Chairman of the CSC, as a member
of the Board of Directors or Trustees in an ex officio capacity of the (a) Government Service
Insurance System (GSIS); (b) Philippine Health Insurance Corporation (PHILHEALTH), (c) the
Employees Compensation Commission (ECC), and (d) the Home Development Mutual Fund
(HDMF).
Antecedents
On January 11, 2010, then President Gloria Macapagal-Arroyo appointed Duque as Chairman of the
CSC. The Commission on Appointments confirmed Duque’s appointment on February 3, 2010.
On February 22, 2010,President Arroyo issued Executive Order No. 864 (EO 864), whose complete
text is quoted as follows:
EXECUTIVE ORDER NO. 864
INCLUSION OF THE CHAIRMAN OF THE CIVIL SERVICE COMMISSION IN THE BOARD OF

TRUSTEES/DIRECTORS OF THE GOVERNMENT SERVICE INSURANCE SYSTEM, PHILIPPINE
HEALTH INSURANCE CORPORATION, EMPLOYEES’ COMPENSATION COMMISSION AND
THE HOME DEVELOPMENT MUTUAL FUND
WHEREAS, Section 2 (1), Article IX-B of the 1987 Philippine Constitution provides that the civil
service embraces all branches, subdivisions, instrumentalities, and agencies of the Government,
including government-owned or controlled corporations with original charters;
WHEREAS, Section 3, Article IX-B of the 1987 Constitution mandates, among others, that the Civil
Service Commission (CSC), as the central personnel agency of the government, shall establish a
career service and adopt measures to promote morale, efficiency, integrity, responsiveness,
progressiveness, and courtesy in the civil service, and shall strengthen the merit and rewards
system, integrate all human resources development programs for all levels and ranks, and
institutionalize a management climate conducive to public accountability; WHEREAS, Section 14,
Chapter 3, Title I-A, Book V of the Administrative Code of 1987 (Executive Order No. 292) expressly
states that the Chairman of the CSC shall bea member of the Board of Directors or of other
governing bodies of government entities whose functions affect the career development,
employment, status, rights, privileges, and welfare of government officials and employees, such as
the Government Service Insurance System, Foreign Service Board, Foreign Trade Service Board,
National Board for Teachers, and such other similar boards as may be created by law;
WHEREAS, Presidential Decree No. 1 dated September 24, 1972, explicitly empowers the President
of the Republic of the Philippines to reorganize the entire Executive Branch of the National
Government, as a vital and priority measure to effect the desired changes and reforms in the social,
economic and political structure of the country;
WHEREAS, Section 18 (a), ArticleIV of Republic Act No. 7875 (An Act Instituting a National Health
Insurance Program For All Filipinos and Establishing the Philippine Health Insurance Corporation
For The Purpose) or otherwise known as the "National Health Insurance Act of 1995", Section 42 (G)
of Republic Act No. 8291 (An Act Amending Presidential Decree No. 1146, as amended, Expanding
and Increasing the Coverage of Benefits of the Government Service Insurance System, Instituting
Reforms Therein and For Other Purposes) or otherwise known as "The Government Service
Insurance System Act of 1997, Article 176, Chapter 3 of Presidential Decree No. 626 (Employees’
Compensation and State Insurance Fund), and Presidential Decree No. 1530 (Instituting a System
of Voluntary Contributions for Housing Purpose[s]) or otherwise known as the "Pag-ibig Fund" reveal
that while the Chairman of the CSC is not included in the list of those who could sit as a member of
the Board of Directors of the Philhealth or of the Board of Trustees of the GSIS, ECC and the Pag-
ibig Fund, said laws did not expressly repeal Section 14, Chapter 3, Title I-A, Book V of the
Administrative Code of 1987 and Presidential Decree No. 1; WHEREAS, it is settled that repeals by
implication are not favored as laws are presumed to be passed with deliberation and full knowledge
of all laws existing on the subject;
WHEREAS, a scrutiny of the mandated functions and duties of the Board of Trustees of the GSIS,
ECC and HDMF and the Board of Directors of the PhilHealth shows that the same are all geared
towards the advancement of the welfare of government officials and employees, which functions fall
within the province of the CSC;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the

Philippines, by virtue of the powers vested in me by law, do hereby order and direct:
Section 1. The Chairman of the Civil Service Commission shall sit as an Ex-Officio member of the
Board of Trustees of the Government Service Insurance System, Employees’ Compensation
Commission and the Home Development Mutual Fund and the Board of Directors of the Philippine
Health Insurance Corporation pursuant to Section 14, Chapter 3, Title I-A, Book V of Executive
Order No. 292 (Administrative Code of 1987).
Section 2. This Executive Order shall take effect immediately.
Done in the City of Manila, this 22nd day of February, in the year of Our Lord, Two Thousand and
Ten.4
Pursuant to EO 864, Duque was designated as a member of the Board of Directors or Trustees of
the following government-owned or government- controlled corporations (GOCCs): (a) GSIS; (b)
PHILHEALTH;(c) ECC; and (d) HDMF.
On April 8, 2010, petitioner Dennis A.B. Funa, in his capacity as taxpayer, concerned citizen and
lawyer, filed the instant petition challenging the constitutionality of EO 864, as well as Section 14,
Chapter 3, Title I-A, Book V of Executive Order No. 292 (EO 292), otherwise known as The
Administrative Code of 1987, and the designation of Duque as a member of the Board of Directors
or Trustees of the GSIS, PHIC, ECC and HDMF for being clear violations of Section 1 and Section 2,
Article IX-A of the 1987 Constitution.
The Case
The Court is confronted with the proper interpretation of Section 1 and Section 2, Article IX-A of the
1987 Constitution and Section 14, Chapter 3, Title I-A, Book V of EO 292 to ascertain the
constitutionality of the designation of Duque, in an ex officio capacity, as Director or Trustee of the
GSIS, PHIC, ECC and HDMF.
Petitioner asserts that EO 864 and Section 14, Chapter 3, Title I-A, Book V of EO 292 violate the
independence of the CSC, which was constitutionally created to be protected from outside
influences and political pressures due to the significance of its government functions.5 He further
asserts that such independence is violated by the fact that the CSC is not a part of the Executive
Branch of Government while the concerned GOCCs are considered instrumentalities of the
Executive Branch of the Government.6 In this situation, the President may exercise his power of
control over the CSC considering that the GOCCs in which Duque sits as Board member are
attached to the Executive Department.7
Petitioner argues that Section 14, Chapter 3, Title I-A, Book V of EO 292 unduly and
unconstitutionally expands the role of the CSC, which is primarily centered on personnel-related
concerns involving government workers, to include insurance, housing and health matters of
employees in the government service.8 He observes that the independence of the CSC will not be
compromised if these matters are instead addressed by entering into a memorandum of agreement
or by issuing joint circulars with the concerned agencies, rather than allowing a member of the CSC
to sit as a member of the governing Boards of these agencies.9
Petitioner notes that the charters of the GSIS, PHILHEALTH, ECC and HDMF do not mention that
the CSC Chairman sits as a member of their governing Boards in an ex officiocapacity.10 Such being
the case, the President may not amend the charters, which are enacted by Congress, by the mere
issuance of an executive order.11
Petitioner posits that EO 864 and Section 14, Chapter 3, Title I-A, Book V of EO 292 violate the
prohibition imposed upon members of constitutional commissions from holding any other office or
employment.12 A conflict of interest may arise in the event that a Board decision of the GSIS,
PHILHEALTH, ECC and HDMF concerning personnel-related matters is elevated to the CSC
considering that such GOCCs have original charters, and their employees are governed by CSC
laws, rules and regulations.13
In their Comment, respondents maintain that Duque’s membership in the governing Boards of the
GSIS, PHILHEALTH, ECC and HDMF is constitutional. They explain that EO 864 and Section 14,
Chapter 3, Title IA, Book V of EO 292 preserve the independence of the CSC considering that
GOCCs with original charters such as the GSIS, PHILHEALTH, ECC and HDMF are excluded from
the supervision and control that secretaries and heads exercise over the departments to which these
GOCCs are attached.14 Ultimately, these GOCCs are exempted from the executive control of the
President.15
As to the matter of conflict of interest, respondents point out that Duque is just one member of the
CSC, or of the Boards of the GSIS, PHILHEALTH, ECC and HDMF, such that matters resolved by
these bodies may be resolved with or without Duque’s participation.16 Respondents submit that the
prohibition against holding any other office or employment under Section 2, Article IX-A of the 1987
Constitution does not cover positions held without additional compensation in ex officio capacities.
Relying on the pronouncement in Civil Liberties Union v. Executive Secretary,17 they assert that since
the 1987 Constitution, which provides a stricter prohibition against the holding of multiple offices by
executive officials, allows them to hold positions in ex officio capacities, the same rule is applicable
to members of the Constitutional Commissions.18 Moreover, the mandatory tenor of Section 14,
Chapter 3, Title I-A, Book V of EO 292 clearly indicates that the CSC Chairman’s membership in the
governing bodies mentioned therein merely imposes additional duties and functions as an incident
and necessary consequence of his appointment as CSC Chairman.19
Respondents insist that EO 864 and Section 14, Chapter 3, Title I-A, Book V of EO 292, as well as
the charters of the GSIS, PHILHEALTH, ECC and HDMF, are consistent with each other. While the
charters of these GOCCs do not provide that CSC Chairman shall be a member of their respective
governing Boards, there islikewise no prohibition mentioned under said charters.20 EO 864, issued in
conformity with Section 14, Chapter 3, Title I-A, Book V of EO 292, could not have impliedly
amended the charters of the GSIS, PHILHEALTH, ECC and HDMF because the former relates to
the law on the CSC while the latter involve the creation and incorporation of the respective
GOCCs.21 As their subject matters differ from each other, the enactment of the subsequent law is not
deemed to repeal or amend the charters of the GOCCs, being considered prior laws.22
Issue
Does the designation of Duque as member of the Board of Directors or Trustees of the GSIS,
PHILHEALTH, ECC and HDMF, in an ex officio capacity, impair the independence of the CSC and
violate the constitutional prohibition against the holding of dual or multiple offices for the Members of
the Constitutional Commissions?
Our Ruling
The Court partially grants the petition. The Court upholds the constitutionality of Section 14, Chapter
3, Title I-A, Book V of EO 292, but declares unconstitutional EO 864 and the designation of Duque in
an ex officio capacity as a member of the Board of Directors or Trustees of the GSIS, PHILHEALTH,
ECC and HDMF.
1.
Requisites of judicial review
Like almost all powers conferred by the Constitution, the power of judicial review is subject to
limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial
power; (2) the person challenging the act must have the standing to question the validity of the
subject act or issuance; otherwise stated, he must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the
question of constitutionality must be raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis motaof the case.23
Here, the Office of the Solicitor General (OSG) only disputes the locus standi of petitioner who has
filed this suit in his capacity as taxpayer, concerned citizen and lawyer.24 In view of the earlier
dispositions by the Court in similar public law cases initiated by petitioner, we again affirm his locus
standito bring a suit of this nature. In Funa v. Agra,25 the Court has recently held:
x x x [T]he locus standi of the petitioner as a taxpayer, a concerned citizen and a lawyer to bring a
suit ofthis nature has already been settled in his favor in rulings by the Court on several other public
law litigations he brought. In Funa v. Villar, for one, the Court has held:
To have legal standing, therefore, a suitor must show that he has sustained or will sustain a "direct
injury" as a result of a government action, or have a "material interest" in the issue affected by the
challenged official act. However, the Court has time and again acted liberally on the locus standi
requirements and has accorded certain individuals, not otherwise directly injured, or with material
interest affected, by a Government act, standing to sue provided a constitutional issue of critical
significance is at stake. The rule on locus standi is after all a mere procedural technicality in relation
to which the Court, in a catena of cases involving a subject of transcendental import, has waived, or
relaxed, thus allowing non-traditional plaintiffs, such as concerned citizens, taxpayers, voters or
legislators, to sue in the public interest, albeit they may not have been personally injured by the
operation of a law or any other government act. In David, the Court laid out the bare minimum norm
before the so-called "non-traditional suitors" may be extended standing to sue, thusly:
1.) For taxpayers, there must be a claim of illegal disbursement of public funds or that the tax
2.) For voters, there must be a showing of obvious interest in the validity of the election law
in question;
3.) For concerned citizens, there must be a showing that the issues raised are of
4.) For legislators, there must be a claim that the official action complained of infringes their
prerogatives as legislators.
This case before Us is of transcendental importance, since it obviously has "far-reaching

implications," and there is a need to promulgate rules that will guide the bench, bar, and the public in
future analogous cases. We, thus, assume a liberal stance and allow petitioner to institute the instant
petition.20 (Bold emphasis supplied)
In Funa v. Ermita, the Court recognized the locus standi of the petitioner as a taxpayer, a concerned
citizen and a lawyer because the issue raised therein involved a subject of transcendental
importance whose resolution was necessary to promulgate rules to guide the Bench, Bar, and the
public in similar cases.
The Court notes, however, that during the pendency of this petition, Duque’s designation as Director
or Trustee of the GSIS, PHILHEALTH, ECC and PHIC could have terminated or been rendered
invalid by the enactment of Republic Act No. 10149,26 thus causing this petition and the main issue
tendered herein moot and academic. Pertinent provisions of Republic Act No.10149, which took
effect on June 6, 2011, state:
SEC. 13. Number of Directors/Trustees.—The present number of Directors/Trustees provided in the

charter of the GOCCs shall be maintained.
SEC. 14. Ex Officio Alternates.—The ex officio members of the GOCC may designate their
respective alternates who shall be the officials next-in-rank to them and whose acts shall be
considered the acts of their principals.
SEC. 15. Appointment of the Board of Directors/Trustees of GOCCs.—An Appointive Director shall
be appointed by the President of the Philippines from a shortlist prepared by the GCG.
The GCG shall formulate its rules and criteria in the selection and nomination of prospective
appointees and shall cause the creation of search committees to achieve the same. All nominees
included in the list submitted by the GCG to the President shall meet the Fit and Proper Rule as
defined un this Act and such other qualifications which the GCG may determine taking into
consideration the unique requirements of each GOCC. The GCG shall ensure that the shortlist shall
exceed by at least fifty percent (50%) of the number of directors /trustees tobe appointed. In the
event that the President does not see fit to appoint any of the nominees included in the shortlist, the
President shall ask the GCG to submit additional nominees.
xxxx
SEC. 17. Term of Office.—Any provision in the charters of each GOCC to the contrary
notwithstanding, the term of office of each Appointive Director shall be for one(1) year, unless
sooner removed for cause: Provided, however,That the Appointive Director shall continue to hold
office until the successor is appointed. An Appointive Director may be nominated by the GCG for
reappointment by the President only if one obtains a performance score of above average or its
equivalent or higher in the immediately preceding year of tenure as Appointive Director based on the
performance criteria for Appointive Directors for the GOCC.
Appointed to any vacancy shall be only for the unexpired term of the predecessor. The appointment
of a director to fill such vacancy shall be in accordance with the manner provided in Section 15 of
this Act.
Any provision of law to the contrary notwithstanding, all incumbent CEOs and appointive members of
the Board of GOCCs shall, upon approval of this Act, have a term of office until June 30, 2011,
unless sooner replaced by the President: Provided, however, That the incumbent CEOs and
appointive members of the Board shall continue in office until the successor have been appointed by
the President.
A moot and academic case is one thatceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or value.27
2.
Unconstitutionality of Duque’sdesignation as member
of the governing boards of the GSIS, PHIC, ECC and HDMF
Nonetheless, this Court has exercised its power of judicial review in cases otherwise rendered moot
and academic by supervening events on the basis of certain recognized exceptions, namely: (1)
there is a grave violation of the Constitution; (2) the case involves a situation of exceptional
character and is of paramount public interest; (3) the constitutional issue raised requires the
formulation of controlling principles to guide the Bench, the Bar and the public; and (4) the case is
capable of repetition yet evading review.28
The situation now obtaining definitely falls under the requirements for the review of a moot and
academic case. For the guidance of and as a restraint upon the future,29 the Court will not abstain
from exercising its power of judicial review, the cessation of the controversy notwithstanding. We
proceed to resolve the substantive issue concerning the constitutionality of Duque’s ex officio
designation as member of the Board of Directors or Trustees of the GSIS, PHILHEALTH, ECC and
HDMF.
The underlying principle for the resolution of the present controversy rests on the correct application
of Section 1 and Section 2, Article IX-A of the 1987 Constitution, which provide: Section 1. The
Constitutional Commissions, which shall be independent, are the Civil Service Commission, the
Commission on Elections, and the Commission on Audit.
Section 2. No Member of a Constitutional Commission shall, during his tenure, hold any other office
or employment. Neither shall he engage in the practice of any profession or in the active
management or control of any business which in any way may be affected by the functions of his
office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any
franchise or privilege granted by the Government, any of its subdivisions, agencies, or
instrumentalities, including government-owned or controlled corporations or their subsidiaries.
Section 1, Article IX-A of the 1987 Constitution expressly describes all the Constitutional
Commissions as "independent."Although their respective functions are essentially executive in
nature, they are not under the control of the President of the Philippines in the discharge of such
functions. Each of the Constitutional Commissions conducts its own proceedings under the
applicable laws and its own rules and in the exercise of its own discretion. Its decisions, orders and
rulings are subject only to review on certiorariby the Court as provided by Section 7, Article IX-A of
the 1987 Constitution.30 To safeguard the independence of these Commissions, the 1987
Constitution, among others,31 imposes under Section 2, Article IX-A of the Constitution certain
inhibitions and disqualifications upon the Chairmen and members to strengthen their integrity, to wit:
(a) Holding any other office or employment during their tenure;
(b) Engaging in the practice of any profession;
(c) Engaging in the active management or control of any business which in any way may be
affected by the functions of his office; and
(d) Being financially interested, directly or indirectly, in any contract with, or in any franchise
or privilege granted by the Government, any of its subdivisions, agencies or instrumentalities,
including government-owned or – controlled corporations or their subsidiaries.32
The issue herein involves the first disqualification abovementioned, which is the disqualification from
holding any other office or employment during Duque’s tenure as Chairman of the CSC. The Court
finds it imperative to interpret this disqualification in relation to Section 7, paragraph (2), Article IX-B
of the Constitution and the Court’s pronouncement in Civil Liberties Union v. Executive Secretary.
Section 7, paragraph (2),Article IX-B reads:
Section 7. x x x
Unless otherwise allowed by law or the primary functions of his position, no appointive official shall
hold any other office or employment in the Government or any subdivision, agency or instrumentality
thereof,including government-owned or controlled corporations or their subsidiaries.
In Funa v. Ermita,33 where petitioner challenged the concurrent appointment of Elena H. Bautista as
Undersecretary of the Department of Transportation and Communication and as Officer-in-Charge of
the Maritime Industry Authority, the Court reiterated the pronouncement in Civil Liberties Union
v.The Executive Secretary on the intent of the Framers on the foregoing provision of the 1987
Constitution, to wit:
Thus, while all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law orby the primary
functions of their positions, members of the Cabinet, their deputies and assistants may do so only
when expressly authorized by the Constitution itself. In other words, Section 7, Article IX-B is meant
to lay down the general rule applicable to all elective and appointive public officials and employees,
while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice-
President, Members of the Cabinet, their deputies and assistants.
xxxx
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition
on the President, Vice-President, members of the Cabinet, their deputies and assistants with respect
to holding multiple offices or employment in the government during their tenure, the exception to this
prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is
prohibitory so that it must be understood as intended to bea positive and unequivocal negation of the
privilege of holding multiple government offices or employment. Verily, wherever the language used
in the constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal
negation. The phrase "unless otherwise provided in this Constitution" must be given a literal
interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-
President being appointed as a member of the Cabinet under Section 3, par. (2),Article VII; or acting
as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the
Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of Section 8
(1), Article VIII.34
Being an appointive public official who does not occupy a Cabinet position (i.e., President, the Vice-
President, Members of the Cabinet, their deputies and assistants), Duque was thus covered by the
general rule enunciated under Section 7, paragraph (2), Article IX-B. He can hold any other office or
employment in the Government during his tenure if such holding is allowed by law or by the primary
functions of his position.
Respondents insist that Duque’s ex officio designation as member of the governing Boards of the
GSIS, PHILHEALTH, ECC and HDMF is allowed by the primary functions of his position as the CSC
Chairman. To support this claim, they cite Section 14, Chapter 3, Title I-A, Book V of EO 292, to wit:
Section 14. Membership of the Chairman in Boards.—The Chairman shall be a member of the Board
of Directors or of other governing bodies of government entities whose functions affect the career
development, employment status, rights, privileges, and welfare of government officials and
employees, such as the Government Service Insurance System, Foreign Service Board, Foreign
Trade Service Board, National Board for Teachers, and such other similar boards as may be created
by law.
As to the meaning of ex officio, the Court has decreed in Civil Liberties Union v. Executive Secretary
that –
x x x x The term ex officiomeans "from office; by virtue of office." It refers to an "authority derived
from official character merely, not expressly conferred upon the individual character, but rather
annexed to the official position." Ex officio likewise denotes an "act done in an official character, or
as a consequence of office, and without any other appointment or authority other than that conferred
by the office." An ex officio member of a board is one who is a member by virtue of his title to a
certain office, and without further warrant or appointment. x x x
xxxx
The ex officio position being actually and in legal contemplation part of the principal office, it follows
that the official concerned has no right to receive additional compensation for his services in the said
position. The reason is that these services are already paid for and covered by the compensation
attached to his principal office. x x x35
Section 3, Article IX-B of the 1987 Constitution describes the CSC as the central personnel agency
of the government and is principally mandated to establish a career service and adopt measures to
promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil
service; to strengthen the merit and rewards system; to integrate all human resources development
programs for all levels and ranks; and to institutionalize a management climate conducive to public
accountability. Its specific powers and functions are as follows:
(1) Administer and enforce the constitutional and statutory provisions on the merit system for
all levels and ranks in the Civil Service;
(2) Prescribe, amend and enforce rules and regulations for carrying into effect the provisions
of the Civil Service Law and other pertinent laws;
(3) Promulgate policies, standards and guidelines for the Civil Service and adopt plans and
programs to promote economical, efficient and effective personnel administration in the
government;
(4) Formulate policies and regulations for the administration, maintenance and
implementation of position classification and compensation and set standards for the
establishment, allocation and reallocation of pay scales, classes and positions;
(5) Render opinion and rulings on all personnel and other Civil Service matters which shall
be binding on all heads of departments, offices and agencies and which may be brought to
the Supreme Court on certiorari;
(6) Appoint and discipline its officials and employees in accordance with law and exercise
control and supervision over the activities of the Commission;
(7) Control, supervise and coordinate Civil Service examinations. Any entity or official in
government may be called upon by the Commission to assist in the preparation and conduct
of said examinations including security, use of buildings and facilities as well as personnel
and
transportation of examination materials which shall be exempt from inspection regulations;
(8) Prescribe all forms for Civil Service examinations, appointments, reports and such other
forms as may be required by law, rules and regulations;
(9) Declare positions in the Civil Service as may properly be primarily confidential, highly
technical or policy determining;
(10) Formulate, administer and evaluate programs relative to the development and retention
of qualified and competent work force in the public service;
(11) Hear and decide administrative cases instituted by or brought before it directly or on
appeal, including contested appointments, and review decisions and actions of its offices and
of the agencies attached to it. Officials and employees who fail to comply with such
decisions, orders, or rulings shall be liable for contempt of the Commission. Its decisions,
orders, or rulings shall be final and executory. Such decisions, orders, or rulings may be
brought to the Supreme Court on certiorari by the aggrieved party within thirty (30) daysfrom
receipt of a copy thereof;
(12) Issue subpoena and subpoena duces tecum for the production of documents and
records pertinent to investigation and inquiries conducted by it in accordance withits authority
conferred by the Constitution and pertinent laws;
(13) Advise the President on all matters involving personnel management in the government
service and submit to the President an annual report on the personnel programs;
(14) Take appropriate action on all appointments and other personnel matters in the Civil
Service including extension of Service beyond retirement age;
(15) Inspect and audit the personnel actions and programs of the departments, agencies,
bureaus, offices, local government units and other instrumentalities of the government
including government-owned or controlled corporations; conduct periodic review of the
decisions and actions of offices or officials to whom authority has been delegated by the
Commission as well as the conduct of the officials and the employees in these offices and
apply appropriate sanctions when necessary;
(16) Delegate authority for the performance of any functions to departments, agencies and
offices where such functions may be effectively performed;
(17) Administer the retirement program for government officials and employees, and accredit
government services and evaluate qualifications for retirement;
(18) Keep and maintain personnel records of all officials and employees in the Civil Service;
and
(19) Perform all functions properly belonging to a central personnel agency and such other
functions as may be provided by law.36
On the other hand, enumerated below are the specific duties and responsibilities of the CSC
Chairman, namely:
(1) Direct all operations of the Commission;
(2) Establish procedures for the effective operations of the Commission;

(3) Transmit to the President rules and regulations, and other guidelines adopted by the
Chairman which require Presidential attention including annual and other periodic reports;
(4) Issue appointments to, and enforce decisions on administrative discipline involving
officials and employees of the Commission;
(5) Delegate authority for the performance of any function to officials and employees of the
Commission;
(6) Approve and submit the annual and supplemental budget of the Commission; and
(7) Perform such other functionsas may be provided by law.37
Section 14, Chapter 3, Title I-A, Book V of EO 292 is clear that the CSC Chairman’s membership in
a governing body is dependent on the condition that the functions of the government entity where he
will sit as its Board member must affect the career development, employment status, rights,
privileges, and welfare of government officials and employees. Based on this, the Court finds no
irregularity in Section 14, Chapter 3, Title I-A, Book V of EO 292 because matters affecting the
career development, rights and welfare of government employees are among the primary functions
of the CSC and are consequently exercised through its Chairman. The CSC Chairman’s
membership therein must, therefore, be considered to be derived from his position as such.
Accordingly, the constitutionality of Section 14, Chapter 3, Title I-A, Book V of EO 292 is upheld.
However, there is a need to determine further whether Duque’s designation as Board member of the
GSIS, PHILHEALTH, ECC and HDMF is in accordance with the 1987 Constitution and the condition
laid down in Section 14, Chapter 3, Title I-A, Book V of EO 292. It is necessary for this purpose to
examine the functions of these government entities under their respective charters, to wit:
The GSIS Charter, Republic Act No. 8291
SECTION 41. Powers and Functions of the GSIS. — The GSIS shall exercise the following powers
and functions:
(a) to formulate, adopt, amend and/or rescind such rules and regulations as may be
necessary to carry out the provisions and purposes of this Act, as well as the effective
exercise of the powers and functions, and the discharge of duties and responsibilities of the
GSIS, its officers and employees;
(b) to adopt or approve the annual and supplemental budget of receipts and expenditures
including salaries and allowances of the GSIS personnel; to authorize such capital and
operating expenditures and disbursements of the GSIS as may be necessary and proper for
the effective management and operation of the GSIS;
(c) to invest the funds of the GSIS, directly or indirectly, in accordance with the provisions of
this Act;
(d) to acquire, utilize or dispose of, in any manner recognized by law, real or personal
property in the Philippines or elsewhere necessary to carry out the purposes of this Act;
(e) to conduct continuing actuarialand statistical studies and valuations to determine the
financial condition of the GSIS and taking into consideration such studies and valuations and
the limitations herein provided, re-adjust the benefits, contributions, premium rates, interest
rates or the allocation or re-allocation of the funds to the contingencies covered;
(f) to have the power of succession;
(g) to sue and be sued;
(h) to enter into, make, perform and carry out contracts of every kind and description with
any person, firm or association or corporation, domestic or foreign;
(i) to carry on any other lawful business whatsoever in pursuance of, or in connection with
the provisions of this Act;
(j) to have one or more offices in and outside of the Philippines, and to conduct its business
and exercise its powers throughout and in any part of the Republic of the Philippines and/or
in any or all foreign countries, states and territories: Provided, That the GSIS shall maintain a
branch office in every province where there exists a minimum of fifteen thousand (15,000)
membership; (k) to borrow funds from any source, private or government, foreign or
domestic, only as an incident in the securitization of housing mortgages of the GSIS and on
account of its receivables from any government or private entity;
(l) to invest, own or otherwise participate in equity in any establishment, firm or entity;
(m) to approve appointments in the GSIS except appointments to positions which are policy
determining, primarily confidential or highly technical in nature according to the Civil Service
rules and regulations: Provided, That all positions in the GSIS shall be governed by a
compensation and position classification system and qualifications standards approved bythe
GSIS Board of Trustees based on a comprehensive job analysis and audit of actual duties
and responsibilities: Provided, further, That the compensation plan shall be comparable with
the prevailing compensation plans in the private sector and shall be subject to the periodic
review by the Board no more than once every four (4) years without prejudice to yearly merit
reviews or increases based on productivity and profitability;
(n) to design and adopt an Early Retirement Incentive Plan (ERIP) and/or financial
assistance for the purpose of retirement for its own personnel;
(o) to fix and periodically review and adjust the rates of interest and other terms and
conditions for loans and credits extended to members or other persons, whether natural or
juridical;
(p) to enter into agreement with the Social Security System or any other entity, enterprise,
corporation or partnership for the benefit of members transferring from one system to
another subject to the provision of Republic Act No. 7699, otherwise known as the Portability
Law;
(q) to be able to float proper instrument to liquefy long-term maturity by pooling funds for
short-term secondary market;
(r) to submit annually, not later thanJune 30, a publicreport to the President of the Philippines
and the Congress of the Philippines regarding its activities in the administration and
enforcement of this Act during the preceding year including information and
recommendations on broad policies for the development and perfection of the programs of
the GSIS;
(s) to maintain a provident fund, which consists of contributions made by both the GSIS and
its officials and employees and their earnings, for the payment of benefits to such officials
and employees or their heirs under such terms and conditions as it may prescribe;
(t) to approve and adopt guidelines affecting investments, insurance coverage of government
properties, settlement of claims, disposition of acquired assets, privatization or expansion of
subsidiaries, development of housing projects, increased benefit and loan packages to
members, and the enforcement of the provisions of this Act;
(u) any provision of law to the contrary notwithstanding, to authorize the payment of extra
remuneration to the officials and employees directly involved in the collection and/or
remittance of contributions, loan repayments, and other monies due to the GSIS at such
rates and under such conditions as itmay adopt. Provided, That the best interest of the GSIS
shall be observed thereby;
(v) to determine, fix and impose interest upon unpaid premiums due from employers and
employees;
(w) to ensure the collection or recovery of all indebtedness, liabilities and/or accountabilities,
includingunpaid premiums or contributions in favor of the GSISarising from any cause or
source whatsoever, due from all obligors, whether public or private. The Board shall demand
payment or settlement of the obligations referred to herein within thirty (30) days from the
date the obligation becomes due, and in the event of failure or refusal of the obligor or debtor
to comply with the demand, to initiate or institute the necessary or proper actions or suits,
criminal, civil or administrative or otherwise, before the courts, tribunals, commissions,
boards, or bodies of proper jurisdiction within thirty (30) days reckoned from the expiry dateof
the period fixed in the demand within which to pay or settle the account;
(x) to design and implement programs that will promote and mobilize savings and provide
additional resources for social security expansion and at the same time afford individual
members appropriate returns on their savings/investments. The programs shall be so
designed as to spur socio-economic take-off and maintain continued growth; and
(y) to exercise such powers and perform such other acts as may be necessary, useful,
incidental or auxiliary to carry out the provisions of this Act, or to attain the purposesand
objectives of this Act.
The PHILHEALTH Charter, Republic Act No. 7875
SEC. 16. Powers and Functions – The Corporation shall have the following powers and functions:
(a) to administer the National Health Insurance Program;
(b) to formulate and promulgate policies for the sound administration of the Program;
(c) to set standards, rules, and regulations necessary to ensure quality of care, appropriate
utilization of services, fund viability, member satisfaction, and overall accomplishment of
Program objectives;
(d) to formulate and implement guidelines on contributions and benefits; portability of
benefits, cost containment and quality assurance; and health care provider
arrangements,payment, methods, and referral systems;
(e) to establish branch offices as mandated in Article V of this Act;
(f) to receive and manage grants, donations, and other forms of assistance;
(g) to sue and be sued in court;
(h) to acquire property, real and personal, which may be necessary or expedient for the
attainment of the purposes of this Act;
(i) to collect, deposit, invest, administer, and disburse the National Health Insurance Fund in
accordance with the provisions of this Act;
(j) to negotiate and enter into contracts with health care institutions, professionals, and other
persons, juridical or natural, regarding the pricing, payment mechanisms, design and
implementation of administrative and operating systems and procedures, financing, and
delivery of health services;
(k) to authorize Local Health Insurance Offices to negotiate and enter into contracts in the
name and on behalf of the Corporation with any accredited government or private sector
health provider organization, including but not limited to health maintenance organizations,
cooperatives and medical foundations, for the provision ofat least the minimum package of
personal health services prescribed by the Corporation;
(l) to determine requirements and issue guidelines for the accreditation of health care
providers for the Program in accordance with this Act;
(m) to supervise the provision of health benefits with the power to inspect medical and
financial records of health careproviders and patients who are participants in or members of
the Program, and the power to enter and inspect accredited health care institutions, subject
to the rules and regulations to be promulgated by the Corporation;
(n) to organize its office, fix the compensation of and appoint personnel as may be deemed
necessary and upon the recommendation of the president of the Corporation;
(o) to submit to the President of the Philippines and to both Houses of Congress its Annual
Report which shall contain the status of the National Health Insurance Fund, its total
disbursements, reserves, average costing to beneficiaries, any request for additional
appropriation, and other data pertinent to the implementation of the Program and publish a
synopsis of such report in two (2) newspapers of general circulation;
(p) to keep records of the operations of the Corporation and investments of the National
Health Insurance Fund; and
(q) to perform such other acts as it may deem appropriate for the attainment of the objectives
of the Corporation and for the proper enforcement of the provisions of this Act
The HDMF Charter, Republic Act No. 9679

SEC. 13. Powers and Functions of the Fund.– The Fund shall have the powers and functions
specified in this Act and the usual corporate powers:
(a) To formulate, adopt, amend and/or rescind such rules and regulations as may be
necessary to carry out the provisions and purposes of this Act, as well as the effective
exercise of the powers and functions, and the discharge of duties and responsibilities of the
Fund, its officers and employees;
(b) To adopt or approve the annual and supplemental budget of receipts and expenditures
including salaries and allowances of the Fund personnel, to authorize such capital and
operating expenditures and disbursements of the Fund as may be necessary and proper for
the effective management and operation of the Fund;
(c) To submit annually to the President of the Philippines not later than March 15, a report of
its activities and the state of the Fund during the preceding year, including information and
recommendations for the development and improvement thereof;
(d) To invest not less than seventy percent (70%) of its investible funds to housing, in
accordance with this Act;
(e) To acquire, utilize, or dispose of, in any manner recognized by law, real or personal
properties to carry out the purposes of this Act;
(f) To set up its own accounting and computer systems; to conduct continuing actuarial and
statistical studies and valuations to determine the financial viability of the Fund and its
project; to require reports, compilations and analysis of statistical and economic data, as well
as make such other studies and surveys asmay be needed for the proper administration and
development of the Fund;
(g) To have the power of succession; to sue and be sued; to adopt and use a corporate seal;
(h) To enter into and carry out contracts of every kind and description with any person, firm
or association or corporation, domestic or foreign;
(i) To borrow funds from any source, private or government, foreign or domestic;
(j) To invest, own or otherwise participate in equity in any establishment, or entity; to form,
organize, invest in or establish and maintain a subsidiary or subsidiaries in relation to any of
its purposes;
(k) To approve appointments in the Fund except appointments to positions which are policy
determining, primarily confidential or highly technical in nature according to the civil service
rules and regulations: Provided, That all positions in the Fund shall be governed by a
compensation and position classification system and qualification standards approved by the
Fund's Board of Trustees based on a comprehensive job analysis, wage compensation study
and audit of actual duties and responsibilities: Provided, further, That the compensation plan
shall be comparable with prevailing compensation plans in the private sector and shall be
subject to the periodic review of the Board no more than once everyfour (4) years without
prejudice to yearly merit reviews or increases based on productivity and profitability. The
Fund shall, therefore, be exempt from any laws, rules and regulations on salaries and
compensations;
(l) To maintain a provident fund, which shall consist of contributions made by both the Fund
and its officers and employees and their earnings, for the payment ofbenefits to such officials
and employees or their heirs under such terms and conditions as it may prescribe;
(m)To design and adopt an early retirement incentive plan (ERIP) for its own personnel;
(n) To establish field offices and to conduct its business and exercise its powers in these
places; (o) To approve restructuring proposalfor the payment of due but unremitted
contributions and unpaid loan amortizations under such terms and conditions as the Board
ofTrustees may prescribe;
(p) To determine, fix and impose interest and penalties upon unpaid contributions due from
employers and employees;
(q) To ensure the collection and recovery of all indebtedness, liabilities and/or
accountabilities, including unpaid contributions in favor of the Fund arising from any cause or
source or whatsoever, due from all obligors, whether public or private; to demand payment of
the obligations referred to herein, and in the event of failure or refusal of the obligor or debtor
to comply with the demand, to initiate or institute the necessary or proper actions or suits,
criminal, civil, administrative, or otherwise, before the courts, tribunals, commissions, boards
or bodies of proper jurisdiction: Provided, however, That the Fund may compromise or
release, in whole or in part, any interest, penalty or civil liability to the Fund in connection
with the collection of contributions and the lending operations of the Fund, under such terms
and conditions as prescribed by the Board of Trustees: Provided, further, That the Board
may, upon recommendation of the Chief Executive Officer, deputize any member of the
Fund's legal staff to act as special sheriff in foreclosure cases, in the sale or attachment of
the debtor's properties, and in the enforcement ofcourt writs and processes in cases
involving the Fund. The special sheriff of the Fund shall make a report to the proper court
after any action taken by him, which shall treat such action as if it were an act of its own
sheriffs in all respects;
(r) To design and implement other programs that will further promote and mobilize savings
and provide additional resources for the mutual benefit of the members with appropriate
returns on the savings/investments. The program shall be so designed as to spur
socioeconomic take-off and maintain continued growth;
(s) To conduct continuing actuarialand statistical studies and valuations to determine the
financial condition of the Fund and taking into consideration such studies and valuations and
the limitations herein provided, readjust the benefits, contributions, interest rates of the
allocation or reallocation of the funds to the contingencies covered; and
(t) To exercise such powers and perform such acts as may be necessary, useful, incidental
or auxiliary to carry out the provisions of this Act.
The ECC Charter, Presidential Decree No. 626
ART. 177. Powers and duties. - The Commission shall have the following powers and duties:
(a) To assess and fix a rate of contribution from all employers;

(b) To determine the rate of contribution payable by an employer whose records show a high
frequency of work accidents or occupational disease due to failure by the said employer to
observe adequate safety measures;
(c) To approve rules and regulations governing the processing of claims and the settlement
of disputes arising therefrom as prescribed by the System;
(d) To initiate policies and programs toward adequate occupational health and safety and
accident prevention in the working environment, rehabilitation other than those provided for
under Art. 190 hereof, and other related programs and activities, and to appropriate funds
therefor. (As amended by Sec. 3, P.D. 1368).
(e) To make the necessary actuarial studies and calculations concerning the grant of
constant help and income benefits for permanent disability or death, and the rationalization
of the benefits for permanent disability and death under the Title with benefits payable by the
System for similar contingencies; Provided; That the Commission may upgrade benefits and
add new ones subject toapproval of the President; and Provided, Further, That the actuarial
stabilityof the State Insurance Fund shall be guaranteed; Provided, Finally, that such
increases in benefits shall not require any increases in contribution, except as provided for in
paragraph (b) hereof. (As amended by Sec. 3, P.D. 1641).
(f) To appoint the personnel of its staff, subject to civil service law and rules, but exempt from
WAPCO law and regulations;
(g) To adopt annually a budget of expenditures of the Commission and its staff chargeable
against the State Insurance Fund: Provided, that the SSS and GSIS shall advance on a
quarterly basis the remittances of allotment of the loading fund for this Commission's
operational expenses based on its annual budget as duly approved by the Ministry of Budget
and Management. (As amended by Sec. 3, P.D. 1921).
(h) To have the power to administeroath and affirmation, and to issue subpoena and
subpoena duces tecum in connection with any question or issue arising from appealed cases
under this Title.
(i) To sue and be sued in court;
(j) To acquire property, real or personal, which may be necessary or expedient for the
attainment of the purposes of this Title;
(k) To enter into agreements or contracts for such services or aid as may be needed for the
proper, efficient and stable administration of the program;
(l) To perform such other acts as it may deem appropriate for the attainment of the purposes
of the Commission and proper enforcement of the provisions of thisTitle. (As amended by
Sec. 18, P.D.850). (Emphasis supplied.)
The GSIS, PHILHEALTH, ECC and HDMF are vested by their respective charters with various
powers and functions to carry out the purposes for which they were created. While powers and
functions associated with appointments, compensation and benefits affect the career development,
employment status, rights, privileges, and welfare of government officials and employees, the GSIS,
PHILHEALTH, ECC and HDMF are also tasked to perform other corporate powers and functions
that are not personnel-related. All of these powers and functions, whether personnel-related or not,
are carried out and exercised by the respective Boards of the GSIS, PHILHEALTH, ECC and HDMF.
Hence, when the CSC Chairman sits as a member of the governing Boards of the GSIS,
PHILHEALTH, ECC and HDMF, he may exercise these powers and functions, which are not
anymore derived from his position as CSC Chairman, such as imposing intereston unpaid or
unremitted contributions,38 issuing guidelines for the accreditation of health care providers,39 or
approving restructuring proposals in the payment of unpaid loan amortizations.40 The Court also
notes that Duque’s designation as member of the governing Boards of the GSIS, PHILHEALTH,
ECC and HDMF entitles him to receive per diem,41 a form of additional compensation that is
disallowed by the concept of an ex officioposition by virtue of its clear contravention of the
proscription set by Section 2, Article IX-A of the 1987 Constitution. This situation goes against the
principle behind an ex officio position, and must, therefore, be held unconstitutional.
Apart from violating the prohibition against holding multiple offices, Duque’s designation as member
of the governing Boards of the GSIS, PHILHEALTH, ECC and HDMF impairs the independence of
the CSC. Under Section 17,42Article VII of the Constitution, the President exercises control over all
government offices in the Executive Branch. An office that is legally not under the control of the
President is not part of the Executive Branch.43 The Court has aptly explained in Rufino v. Endriga:44
Every government office, entity, or agency must fall under the Executive, Legislative, or Judicial
branches, or must belong to one of the independent constitutional bodies, ormust be a quasi-judicial
body or local government unit. Otherwise, such government office, entity, or agency has no legal
and constitutional basis for its existence.
The CCP does not fall under the Legislative or Judicial branches of government. The CCP is also
1âw phi1
not one of the independent constitutional bodies. Neither is the CCP a quasi-judicial body nor a local
government unit. Thus, the CCP must fall underthe Executive branch. Under the Revised
Administrative Code of 1987, any agency "not placed by law or order creating them under any
specific department" falls "under the Office of the President."
Since the President exercises control over "all the executive departments, bureaus, and offices," the
President necessarily exercises control over the CCP which is an office in the Executive branch. In
mandating that the President "shall have control of all executive . . . offices," x x x Section 17, Article
VII of the 1987 Constitution does not exempt any executive office — oneperforming executive
functions outside of the independent constitutional bodies — from the President’s power of control.
There is no dispute that the CCP performs executive, and not legislative, judicial, or quasi-judicial
functions.
The President’s power of control applies to the acts or decisions of all officers in the Executive
branch. This is true whether such officers are appointed by the President or by heads of
departments, agencies, commissions, or boards. The power of control means the power to revise or
reverse the acts or decisions of a subordinate officer involving the exercise of discretion.
In short, the President sits at the apex of the Executive branch, and exercises "control of all the
executive departments, bureaus, and offices." There can be no instance under the Constitution
where an officer of the Executive branch is outside the control of the President. The Executive
branch is unitary since there is only one President vested with executive power exercising control
over the entire Executive branch. Any office in the Executive branch that is not under the control of
the President is a lost command whose existence is withoutany legal or constitutional basis.
(Emphasis supplied)
As provided in their respective charters, PHILHEALTH and ECC have the status of a government
corporation and are deemed attached to the Department of Health45 and the Department of
Labor,46 respectively. On the other hand, the GSIS and HDMF fall under the Office of the
President.47 The corporate powers of the GSIS, PHILHEALTH, ECC and HDMF are exercised
through their governing Boards, members of which are all appointed by the President of the
Philippines. Undoubtedly, the GSIS, PHILHEALTH, ECC and HDMF and the members of their
respective governing Boards are under the control of the President. As such, the CSC Chairman
cannot be a member of a government entity that is under the control of the President without
impairing the independence vested in the CSC by the 1987 Constitution.
3.
Effect of declaration of unconstitutionality

of Duque’s designation as member of the
governing Boards of theGSIS, PHILHEALTH,
ECC and HDMF - The De FactoOfficer Doctrine
In view of the application of the prohibition under Section 2, Article IX-A of the 1987 Constitution,
Duque did not validly hold office as Director or Trustee of the GSIS, PHILHEALTH, ECC and HDMF
concurrently with his position of CSC Chairman. Accordingly, he was not to be considered as a de
jure officer while he served his term as Director or Trustee of these GOCCs. A de jure officer is one
who is deemed, in all respects, legally appointed and qualified and whose term of office has not
expired.48
That notwithstanding, Duque was a de facto officer during his tenure as a Director or Trustee of the
GSIS, PHILHEALTH, ECC and HDMF. In Civil Liberties Union v. Executive Secretary,49 the Court
has said:
During their tenure in the questioned positions, respondents may be considered de facto officers and
as such entitled to emoluments for actual services rendered. Ithas been held that "in cases where
there is no de jure, officer, a de facto officer, who, in good faith has had possession of the office and
has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and
may in an appropriate action recover the salary, fees and other compensations attached to the
office. This doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that the
public should benefit by the services of an officer de facto and then be freed from all liability to pay
any one for such services. Any per diem, allowances or other emoluments received by the
respondents by virtue of actual services rendered in the questioned positions may therefore be
retained by them.
A de facto officer is one who derives his appointment from one having colorable authority to appoint,
ifthe office is an appointive office, and whose appointment is valid on its face.50 He may also be one
who is in possession of an office, and is discharging its duties under color of authority, by which is
meant authority derived from an appointment, however irregular or informal, so that the incumbent is
not a mere volunteer.51 Consequently, the acts of the de facto officer are just as valid for all purposes
as those of a de jure officer, in so far as the public or third persons who are interested therein are
concerned.52
In order to be clear, therefore, the Court holds that all official actions of Duque as a Director or
Trustee of the GSIS, PHILHEAL TH, ECC and HDMF, were presumed valid, binding and effective as
if he was the officer legally appointed and qualified for the office.53 This clarification is necessary in
order to protect the sanctity and integrity of the dealings by the public with persons whose ostensible
authority emanates from the State. Duque's official actions covered by this clarification extend but
are not limited to the issuance of Board resolutions and memoranda approving appointments to
positions in the concerned GOCCs, promulgation of policies and guidelines on compensation and
employee benefits, and adoption of programs to carry out the corporate powers of the GSIS,
PHILHEAL TH, ECC and HDMF.
WHEREFORE, the petition is PARTIALLY GRANTED. The Court UPHOLDS THE

CONSTITUTIONALITY of Section 14, Chapter 3, Title I-A, Book V of Executive Order No. 292;
ANNULS AND VOIDS Executive Order No. 864 dated February 22, 2010 and the designation of
Hon. Francisco T. Duque III as a Member of the Board of Directors/Trustees of the Government
Service Insurance System; Philippine Health Insurance Corporation; Employees Compensation
Commission; and Home Development Mutual Fund in an ex officio capacity in relation to his
appointment as Chairman of the Civil Service Commission for being UNCONSTITUTIONAL AND
VIOLATIVE of Sections 1 and 2, Article IX-A of the 1987 Constitution; and DECLARES that Hon.
Francisco T. Duque III was a de facto officer during his tenure as Director/Trustee of the
Government Service Insurance System; Philippine Health Insurance Corporation; Employees
Compensation Commission; and Home Development Mutual Fund.
No pronouncement on costs of suit.
SO ORDERED.
66
G.R. No. 160568 September 15, 2004
CIVIL SERVICE COMMISSION, petitioner,

vs.
HERMOGENES P. POBRE, respondent.
DECISION
CORONA, J.:
Before us is a petition for review on certiorari under Rule 45 of the 1997 Revised Rules of Civil
Procedure, seeking a review and reversal of the decision1 dated March 31, 2003 of the Court of
Appeals annulling and setting aside the resolutions2 promulgated by petitioner Civil Service
Commission (CSC), specifically CSC Resolution Nos. 01-1739 dated October 29, 2001 and 02-0236
dated February 19, 2002.
Respondent Hermogenes P. Pobre is a former government official who retired from the government
service three times. Respondent first retired as commissioner of the Commission on Audit (COA) on
March 31, 1986. He reentered the government and retired as chairman of the Board of Accountancy
on October 31, 1990. He was then appointed as associate commissioner of the Professional
Regulation Commission (PRC) of which he retired eventually as chairman on February 17, 2001.
The first two times he retired, respondent Pobre received his terminal leave pay amounting to
₱310,522.60 and ₱55,000, respectively.
On his third retirement, respondent Pobre claimed payment of his terminal leave based on his
highest monthly salary as PRC chairman but to be reckoned from the date he first entered the
government service as budget examiner in the defunct Budget Commission in 1958. He invoked
Section 13 of Commonwealth Act 186:
Sec. 13. Computation of service. - The aggregate period of service which forms the basis for
retirement and calculating the amount of annuity described in section eleven hereof shall be
computed from the date of original employment, whether as a classified or unclassified
employee in the service of an "employer," including periods of service at different times and
under one or more employers; x x x.
Doubtful of the legality of the claim, successor PRC chairperson Antonieta Fortuna-Ibe sought the
opinion of two constitutional commissions, petitioner CSC and the COA.
On October 29, 2001, petitioner CSC promulgated CSC Resolution No. 01-1739 stating that all
respondent Pobre was entitled to were his terminal leave benefits based only on his accrued leave
credits from the date of his assumption to office as PRC chairman and not his total terminal leave
credits, including those earned in other government agencies3 from the beginning of his government
service.
Respondent Pobre sought reconsideration of the above resolution. On February 19, 2002 the CSC
issued Resolution No. 02-0236 denying his motion, with the modification, however, that the
computation of his terminal leave benefits should include his service as PRC associate
commissioner:
WHEREFORE, the motion for reconsideration of former PRC Chairman Hermogenes P.

Pobre is hereby DENIED for want of merit. CSC Resolution No. 01-1739 dated October 29,
2001 is, however, modified such that Chairman Pobre is entitled to the payment of his
terminal leave benefits computed from the date he was appointed as PRC Commissioner
until the termination of his term as Chairman of the Professional Regulation Commission.4
Dissatisfied with the resolution, respondent Pobre elevated the case to the Court of
Appeals via a petition for review, raising two issues:
1. whether or not the CSC had the jurisdiction to pass upon the validity of petitioner’s claim
for terminal leave benefits when this claim was pending adjudication by the COA and
2. whether or not a retired employee who had served a string of government agencies in his
career was entitled to have his terminal leaves computed from the time of his original
appointment to the first agency in the manner retirement annuities are computed under
Section 13 of Commonwealth Act 186.5
In a decision dated March 31, 2003, the Court of Appeals set aside the resolutions of petitioner CSC
and declared that it was the COA, not petitioner CSC, which had jurisdiction to adjudicate
respondent Pobre’s claim for terminal leave benefits:
WHEREFORE, the instant petition is PARTIALLY GRANTED. The assailed Resolution No.
02-0236 dated February 19, 2002 of the Civil Service Commission is ANNULLED and SET
ASIDE for having been issued without jurisdiction. Instead, the parties are ordered to await
the outcome of the query addressed by the respondent Professional Regulation Commission
to the Commission on Audit and thereafter, move on the premises. No costs.
SO ORDERED.6
Petitioner CSC filed a motion for reconsideration but it was denied on September 24, 2003.
Hence, the instant petition. Petitioner CSC raises a lone issue:
WHETHER THE PETITIONER CSC HAS JURISDICTION TO PASS UPON THE VALIDITY
OF RESPONDENT HERMOGENES P. POBRE’S CLAIM FOR TERMINAL LEAVE, THE
COMPUTATION OF WHICH IS TO BE RECKONED FROM THE DATE HE WAS FIRST
EMPLOYED IN THE GOVERNMENT SERVICE IN 1958, UP TO HIS RETIREMENT AS
CHAIRMAN OF THE PROFESSIONAL REGULATION COMMISSION ON FEBRUARY 17,
2001, ALTHOUGH IN THE MEANTIME HE ALREADY RECEIVED THE MONETARY
VALUE OF HIS TERMINAL LEAVE WHEN HE TWICE RETIRED FROM THE
GOVERNMENT SERVICE.7
Petitioner CSC anchors its authority to dispose of respondent Pobre’s claim for terminal leave
benefits to its powers under the 1987 Administrative Code. Section 12 (17), Subtitle A, Title I, Book
V of the Code enumerates the expanded powers and functions of petitioner CSC, among which is to
"(a)dminister the retirement program for government officials and employees."
Under PD 807, otherwise known as the Civil Service Decree of the Philippines, the CSC has, among
others, the following powers and functions:
(1) administer and enforce the constitutional and statutory provisions on the merit system;
(2) prescribe, amend and enforce suitable rules and regulations for carrying into effect the
provisions of the Decree;
(3) promulgate policies, standards, and guidelines for the Civil Service and adopt plans and
programs to promote economical, efficient, and effective personnel administration in the
government;
(4) supervise and coordinate the conduct of civil service examination;
(5) approve appointments, whether original or promotional, to positions in the civil service;
(6) inspect and audit periodically the personnel work program of the different departments,
bureaus, offices, agencies and other instrumentalities of the government;
(7) hear and decide administrative disciplinary cases instituted directly with it or brought to it
on appeal; and
(8) perform such other functions as properly belonging to a central personnel agency.8
On the other hand, the powers and functions of COA are delineated in Section 2 subsections (1) and
(2) Article IX-D of the 1987 Constitution:
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 or held in trust by or pertaining to, the government, or any
of its subdivisions, agencies, or instrumentalities, including government-owned and
controlled corporations with original charters, and on a post-audit basis: (a) constitutional
bodies, commissions and offices that have been granted fiscal autonomy under this
constitution; (b) autonomous state colleges and universities; (c) other government-owned or
controlled corporations and their subsidiaries and (d) such non-governmental entities
receiving subsidy or equity, directly or indirectly, from or through the government which are
required by law or the granting institution to submit to such audit as a condition of subsidy or
equity. However, where the internal control system of the audited agencies is inadequate,
the commission may adopt such measures, including temporary or special pre-audit, as are
necessary and appropriate to correct the deficiencies it shall keep the central accounts of the
government and, for such period as may be provided by law, preserve the vouchers and
other supporting papers pertaining thereto.
(2) The Commission shall have exclusive authority, subject to the limitations in this article, to
define the scope of its audit and examination, establish the technique and methods required
therefor, 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.
These powers and functions may be classified thus:
1. to examine and audit all forms of government revenues;
2. to examine and audit all forms of government expenditures;
3. to settle government accounts;
4. to define the scope and techniques for its own auditing procedures;
5. to promulgate accounting and auditing rules "including those for the prevention
and disallowance of irregular, unnecessary, excessive, extravagant or conscionable
expenditures" and
6. to decide administrative cases involving expenditure of public funds.9
In turn, Section 26 of PD 1445, otherwise known as the Government Auditing Code of the
Philippines states:
SECTION 26. General jurisdiction. - The authority and powers of the Commission shall
extend to and comprehend all matters relating to auditing procedures, systems and controls,
the keeping of the general accounts of the Government, the preservation of vouchers
pertaining thereto for a period of ten years, the examination and inspection of the books,
records, and papers relating to those accounts; and the audit and settlement of the accounts
of all persons respecting funds or property received or held by them in an accountable
capacity, as well as the examination, audit, and settlement of all debts and claims of any sort
due from or owing to the Government or any of its subdivisions, agencies and
instrumentalities. The said jurisdiction extends to all government-owned or controlled
corporations, including their subsidiaries, and other self-governing boards, commissions, or
agencies of the Government, and as herein prescribed, including non-governmental entities
subsidized by the government, those funded by donations through the government, those
required to pay levies or government share, and those for which the government has put up
a counterpart fund or those partly funded by the government. (Italics supplied)
While the determination of leave benefits is within the functions of the CSC as the central personnel
agency of the government, the duty to examine accounts and expenditures relating to such benefits
properly pertains to the COA. Where government expenditures or use of funds is involved, the CSC
cannot claim exclusive jurisdiction simply because leave matters are involved. Thus, even as we
recognize CSC’s jurisdiction in this case, its power is not exclusive as it is shared with the COA.
This Court’s ruling in Borromeo vs. Civil Service Commission10 has already settled this issue. When
petitioner Borromeo retired as chairman of the CSC, he wrote a letter to the COA, coursed through
the CSC chairman, requesting the inclusion of allowances received at the time of his retirement in
the computation of his terminal leave benefits. The COA did not oppose Borromeo’s claim. The
CSC, on the other hand and upon the advice of DBM, denied it, arguing that it had exclusive
jurisdiction over petitioner’s claim because the determination of the legality of leave credit claims
was within its province as the central personnel agency of the government. We ruled that:
The respondent CSC’s stance, however, that it is the body empowered to determine the
legality of claims on leave matters, to the exclusion of COA, is not well-taken. While the
implementation and enforcement of leave benefits are matters within the functions of the
CSC as the central personnel agency of the government, the duty to examine accounts and
expenditures relating to leave benefits properly pertains to the COA. Where government
expenditures or use of funds is involved, the CSC cannot claim an exclusive domain simply
because leave matters are also involved.
The COA, the CSC and the Commission on Elections are equally pre-eminent in their
respective spheres. Neither one may claim dominance over the others. In case of conflicting
rulings, it is the Judiciary which interprets the meaning of the law and ascertains which view
shall prevail.11
Here, there is no conflicting ruling to speak of because the COA is yet to render its opinion on PRC’s
query regarding respondent Pobre’s claim for terminal leave benefits. We therefore find it prudent to
abstain from any pronouncement on this issue and to wait for COA to rule on respondent’s claim.
WHEREFORE, the decision of the Court of Appeals dated March 31, 2003 is hereby MODIFIED. Its
ruling on the issue of jurisdiction is SET ASIDE but the order to await the outcome of COA’s decision
respecting respondent Pobre’s claim is AFFIRMED.
SO ORDERED.
67

SUPREME COURT
Manila
EN BANC
G.R. No. 162224 June 7, 2007
2nd LT. SALVADOR PARREÑO represented by his daughter Myrna P. Caintic, petitioner,
vs.
COMMISSION ON AUDIT and CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES, respondents.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for certiorari1 assailing the 9 January 2003 Decision2 and 13 January
2004 Resolution3 of the Commission on Audit (COA).
The Antecedent Facts
Salvador Parreño (petitioner) served in the Armed Forces of the Philippines (AFP) for 32 years. On 5
January 1982, petitioner retired from the Philippine Constabulary with the rank of 2nd Lieutenant.
Petitioner availed, and received payment, of a lump sum pension equivalent to three years pay. In
1985, petitioner started receiving his monthly pension amounting to ₱13,680.
Petitioner migrated to Hawaii and became a naturalized American citizen. In January 2001, the AFP
stopped petitioner’s monthly pension in accordance with Section 27 of Presidential Decree No.
16384 (PD 1638), as amended by Presidential Decree No. 1650.5 Section 27 of PD 1638, as
amended, provides that a retiree who loses his Filipino citizenship shall be removed from the retired
list and his retirement benefits terminated upon loss of Filipino citizenship. Petitioner requested for
reconsideration but the Judge Advocate General of the AFP denied the request.
Petitioner filed a claim before the COA for the continuance of his monthly pension.
The Ruling of the Commission on Audit
In its 9 January 2003 Decision, the COA denied petitioner’s claim for lack of jurisdiction. The COA
ruled:
It becomes immediately noticeable that the resolution of the issue at hand hinges upon the validity of
Section 27 of P.D. No. 1638, as amended. Pursuant to the mandate of the Constitution, whenever a
dispute involves the validity of laws, "the courts, as guardians of the Constitution, have the inherent
authority to determine whether a statute enacted by the legislature transcends the limit imposed by
the fundamental law. Where the statute violates the Constitution, it is not only the right but the duty
of the judiciary to declare such act as unconstitutional and void." (Tatad vs. Secretary of Department
of Energy, 281 SCRA 330) That being so, prudence dictates that this Commission defer to the
authority and jurisdiction of the judiciary to rule in the first instance upon the constitutionality of the
provision in question.
Premises considered, the request is denied for lack of jurisdiction to adjudicate the same. Claimant
is advised to file his claim with the proper court of original jurisdiction.6
Petitioner filed a motion for reconsideration. Petitioner alleged that the COA has the power and
authority to incidentally rule on the constitutionality of Section 27 of PD 1638, as amended. Petitioner
alleged that a direct recourse to the court would be dismissed for failure to exhaust administrative
remedies. Petitioner further alleged that since his monthly pension involves government funds, the
reason for the termination of the pension is subject to COA’s authority and jurisdiction.
In its 13 January 2004 Resolution, the COA denied the motion. The COA ruled that the doctrine of
exhaustion of administrative remedies does not apply if the administrative body has, in the first
place, no jurisdiction over the case. The COA further ruled that even if it assumed jurisdiction over
the claim, petitioner’s entitlement to the retirement benefits he was previously receiving must
necessarily cease upon the loss of his Filipino citizenship in accordance with Section 27 of PD 1638,
as amended.
Hence, the petition before this Court.
The Issues
Petitioner raises the following issues:
1. Whether Section 27 of PD 1638, as amended, is constitutional;
2. Whether the COA has jurisdiction to rule on the constitutionality of Section 27 of PD 1638, as
amended; and
3. Whether PD 1638, as amended, has retroactive or prospective effect.7
The Ruling of this Court
The petition has no merit.
Jurisdiction of the COA
Petitioner filed his money claim before the COA. A money claim is "a demand for payment of a sum
of money, reimbursement or compensation arising from law or contract due from or owing to a
government agency."8 Under Commonwealth Act No. 327,9 as amended by Presidential Decree No.
1445,10 money claims against the government shall be filed before the COA.11
Section 2(1), Article IX(D) of the 1987 Constitution prescribes the powers of the COA, as follows:
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 or 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, and on a post-audit basis; (a) constitutional bodies, commissions and offices that have
been granted fiscal autonomy under this Constitution; (b) autonomous state colleges and
universities; (c) other government-owned or controlled corporations and their subsidiaries; and (d)
such non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the
Government, which are required by law or the granting institution to submit such audit as a condition
of subsidy or equity. However, where the internal control system of the audited agencies is
inadequate, the Commission may adopt such measures, including temporary or special pre-audit, as
are necessary and appropriate to correct the deficiencies. It shall keep the general accounts of the
Government and, for such period as may be provided by law, preserve the vouchers and other
supporting papers pertaining thereto.
The jurisdiction of the COA over money claims against the government does not include the power
to rule on the constitutionality or validity of laws. The 1987 Constitution vests the power of judicial
review or the power to declare unconstitutional a law, treaty, international or executive agreement,
presidential decree, order, instruction, ordinance, or regulation in this Court and in all Regional Trial
Courts.12 Petitioner’s money claim essentially involved the constitutionality of Section 27 of PD 1638,
as amended. Hence, the COA did not commit grave abuse of discretion in dismissing petitioner’s
money claim.
Petitioner submits that the COA has the authority to order the restoration of his pension even without
ruling on the constitutionality of Section 27 of PD 1638, as amended. The COA actually ruled on the
matter in its 13 January 2004 Resolution, thus:
Furthermore, assuming arguendo that this Commission assumed jurisdiction over the instant case,
claimant’s entitlement to the retirement benefits he was previously receiving must necessarily be
severed or stopped upon the loss of his Filipino citizenship as prescribed in Section 27, P.D. No.
1638, as amended by P.D. No. 1650.13
The COA effectively denied petitioner’s claim because of the loss of his Filipino citizenship.
Application of PD 1638, as amended
Petitioner alleges that PD 1638, as amended, should apply prospectively. The Office of the Solicitor
General (OSG) agrees with petitioner. The OSG argues that PD 1638, as amended, should apply
only to those who joined the military service after its effectivity, citing Sections 33 and 35, thus:
Section 33. Nothing in this Decree shall be construed in any manner to reduce whatever retirement
and separation pay or gratuity or other monetary benefits which any person is heretofore receiving or
is entitled to receive under the provisions of existing law.
xxxx
Section. 35. Except those necessary to give effect to the provisions of this Decree and to preserve
the rights granted to retired or separated military personnel, all laws, rules and regulations
inconsistent with the provisions of this Decree are hereby repealed or modified accordingly.
The OSG further argues that retirement laws are liberally construed in favor of the retirees. Article 4
of the Civil Code provides: "Laws shall have no retroactive effect, unless the contrary is provided."
Section 36 of PD 1638, as amended, provides that it shall take effect upon its approval. It was
signed on 10 September 1979. PD 1638, as amended, does not provide for its retroactive
application. There is no question that PD 1638, as amended, applies prospectively.
However, we do not agree with the interpretation of petitioner and the OSG that PD 1638, as
amended, should apply only to those who joined the military after its effectivity. Since PD 1638, as
amended, is about the new system of retirement and separation from service of military personnel, it
should apply to those who were in the service at the time of its approval. In fact, Section 2 of PD
1638, as amended, provides that "th[e] Decree shall apply to all military personnel in the service of
the Armed Forces of the Philippines." PD 1638, as amended, was signed on 10 September 1979.
Petitioner retired in 1982, long after the approval of PD 1638, as amended. Hence, the provisions of
PD 1638, as amended, apply to petitioner.
Petitioner Has No Vested Right to his
Retirement Benefits
Petitioner alleges that Section 27 of PD 1638, as amended, deprives him of his property which the
Constitution and statutes vest in him. Petitioner alleges that his pension, being a property vested by
the Constitution, cannot be removed or taken from him just because he became a naturalized
American citizen. Petitioner further alleges that the termination of his monthly pension is a penalty
equivalent to deprivation of his life.
The allegations have no merit. PD 1638, as amended, does not impair any vested right or interest of
petitioner. Where the employee retires and meets the eligibility requirements, he acquires a vested
right to the benefits that is protected by the due process clause.14 At the time of the approval of PD
1638 and at the time of its amendment, petitioner was still in active service. Hence, petitioner’s
retirement benefits were only future benefits and did not constitute a vested right. Before a right to
retirement benefits or pension vests in an employee, he must have met the stated conditions of
eligibility with respect to the nature of employment, age, and length of service.15 It is only upon
retirement that military personnel acquire a vested right to retirement benefits. Retirees enjoy a
protected property interest whenever they acquire a right to immediate payment under pre-existing
law.16
Further, the retirement benefits of military personnel are purely gratuitous in nature. They are not
similar to pension plans where employee participation is mandatory, hence, the employees have
contractual or vested rights in the pension which forms part of the compensation.17
Constitutionality of Section 27 of PD 1638
Section 27 of PD 1638, as amended, provides:
Section 27. Military personnel retired under Sections 4, 5, 10, 11 and 12 shall be carried in the
retired list of the Armed Forces of the Philippines. The name of a retiree who loses his Filipino
citizenship shall be removed from the retired list and his retirement benefits terminated upon such
loss.
The OSG agrees with petitioner that Section 27 of PD 1638, as amended, is unconstitutional. The
OSG argues that the obligation imposed on petitioner to retain his Filipino citizenship as a condition
for him to remain in the AFP retired list and receive his retirement benefit is contrary to public policy
and welfare, oppressive, discriminatory, and violative of the due process clause of the Constitution.
The OSG argues that the retirement law is in the nature of a contract between the government and
its employees. The OSG further argues that Section 27 of PD 1638, as amended, discriminates
against AFP retirees who have changed their nationality.
We do not agree.
The constitutional right to equal protection of the laws is not absolute but is subject to reasonable
classification.18 To be reasonable, the classification (a) must be based on substantial distinctions
which make real differences; (b) must be germane to the purpose of the law; (c) must not be limited
to existing conditions only; and (d) must apply equally to each member of the class.19
There is compliance with all these conditions. There is a substantial difference between retirees who
are citizens of the Philippines and retirees who lost their Filipino citizenship by naturalization in
another country, such as petitioner in the case before us. The constitutional right of the state to
require all citizens to render personal and military service20 necessarily includes not only private
citizens but also citizens who have retired from military service. A retiree who had lost his Filipino
citizenship already renounced his allegiance to the state. Thus, he may no longer be compelled by
the state to render compulsory military service when the need arises. Petitioner’s loss of Filipino
citizenship constitutes a substantial distinction that distinguishes him from other retirees who retain
their Filipino citizenship. If the groupings are characterized by substantial distinctions that make real
differences, one class may be treated and regulated differently from another.21
Republic Act No. 707722 (RA 7077) affirmed the constitutional right of the state to a Citizen Armed
Forces. Section 11 of RA 7077 provides that citizen soldiers or reservists include ex-servicemen and
retired officers of the AFP. Hence, even when a retiree is no longer in the active service, he is still a
part of the Citizen Armed Forces. Thus, we do not find the requirement imposed by Section 27 of PD
1638, as amended, oppressive, discriminatory, or contrary to public policy. The state has the right to
impose a reasonable condition that is necessary for national defense. To rule otherwise would be
detrimental to the interest of the state.
There was no denial of due process in this case. When petitioner lost his Filipino citizenship, the
AFP had no choice but to stop his monthly pension in accordance with Section 27 of PD 1638, as
amended. Petitioner had the opportunity to contest the termination of his pension when he requested
for reconsideration of the removal of his name from the list of retirees and the termination of his
pension. The Judge Advocate General denied the request pursuant to Section 27 of PD 1638, as
amended.
Petitioner argues that he can reacquire his Filipino citizenship under Republic Act No. 922523 (RA
9225), in which case he will still be considered a natural-born Filipino. However, petitioner alleges
that if he reacquires his Filipino citizenship under RA 9225, he will still not be entitled to his pension
because of its prior termination. This situation is speculative. In the first place, petitioner has not
shown that he has any intention of reacquiring, or has done anything to reacquire, his Filipino
citizenship. Secondly, in response to the request for opinion of then AFP Chief of Staff, General
Efren L. Abu, the Department of Justice (DOJ) issued DOJ Opinion No. 12, series of 2005, dated 19
January 2005, thus:
[T]he AFP uniformed personnel retirees, having re-acquired Philippine citizenship pursuant to R.A.
No. 9225 and its IRR, are entitled to pension and gratuity benefits reckoned from the date they have
taken their oath of allegiance to the Republic of the Philippines. It goes without saying that these
retirees have no right to receive such pension benefits during the time that they have ceased to be
Filipinos pursuant to the aforequoted P.D. No. 1638, as amended, and any payment made to them
should be returned to the AFP. x x x.24
Hence, petitioner has other recourse if he desires to continue receiving his monthly pension. Just
recently, in AASJS Member-Hector Gumangan Calilung v. Simeon Datumanong,25 this Court upheld
the constitutionality of RA 9225. If petitioner reacquires his Filipino citizenship, he will even recover
his natural-born citizenship.26 In Tabasa v. Court of Appeals,27 this Court reiterated that "[t]he
repatriation of the former Filipino will allow him to recover his natural-born citizenship x x x."
Petitioner will be entitled to receive his monthly pension should he reacquire his Filipino citizenship
since he will again be entitled to the benefits and privileges of Filipino citizenship reckoned from the
time of his reacquisition of Filipino citizenship. There is no legal obstacle to the resumption of his
retirement benefits from the time he complies again with the condition of the law, that is, he can
receive his retirement benefits provided he is a Filipino citizen.
We acknowledge the service rendered to the country by petitioner and those similarly situated.
However, petitioner failed to overcome the presumption of constitutionality of Section 27 of PD 1638,
as amended. Unless the provision is amended or repealed in the future, the AFP has to apply
Section 27 of PD 1638, as amended.
WHEREFORE, we DISMISS the petition. We AFFIRM the 9 January 2003 Decision and 13 January
2004 Resolution of the Commission on Audit.
SO ORDERED.
68
March 17, 2015
G.R. No. 204757
ATTY. JANET D. NACION, Petitioner,

vs.
COMMISSION ON AUDIT, MA. GRACIA PULIDO-TAN, JUANITO ESPINO and HEIDI
MENDOZA, Respondents.
RESOLUTION
REYES, J.:
This resolves the Petition for Certiorari1 filed by petitioner Atty. Janet D. Nacion (Nacion) to assail the
Decision2dated June 14, 2012 and Resolution3 dated November 5, 2012 of respondent Commission
on Audit (COA), finding her guilty of grave misconduct and violation of reasonable office rules and
regulations.
From October 16, 2001 to September 15, 2003, Nacion was assigned by the COA to the
Metropolitan Waterworks Sewerage System (MWSS) as State Auditor V.4 On June 27, 2011, when
Nacion was already holding the position of Director IV of COA, National Government Sector, a
formal charge5 against her was issued by COA Chairperson Ma. Gracia M. Pulido Tan (Chairperson
Tan) for acts found to be committed when she was still with the MWSS. The pertinent portions of the
charge read:
The Administrative Case Evaluation Report dated June 21, 2011 of the Fraud Audit and
Investigation Office (FAIO), Legal Services Sector (LSS) as well as the Investigation Report
submitted by the Team from the FAIO disclosed the following reprehensible actions:
1.Receiving benefits and/or bonuses from MWSS in the total amount of P73,542.00 from
1999-2003[;]
2.Availing of the MWSS Housing Project;
3.Availing of the Multi-Purpose Loan Program – Car Loan.
Based thereon and upon the recommendation of the Director, FAIO-LSS, this Office finds sufficient
basis to administratively charge you with Grave Misconduct and Violation of Reasonable Office
Rules and Regulations which are grounds for administrative action under the Civil Service Law,
Rules and Regulations.
WHEREFORE, you are hereby formally charged with the aforementioned offenses and required to
submit to the Office of the General Counsel, LSS your answer in writing and under oath, within five
(5) days from receipt hereof, x x x.6
Attached to the formal charge, which was docketed as Administrative Case No. 2011-002, were
investigation reports based on MWSS journal vouchers, disbursement vouchers and claims control
index. COA’s investigation of its personnel assigned to MWSS was prompted by its receipt of a letter
from then MWSS Administrator Diosdado Jose M. Allado, who complained of unrecorded checks
and irregularly issued disbursement vouchers that were traced to refer to bonuses and other benefits
of the COA MWSS personnel.7
In her Affidavit/Answer to Formal Charge,8 Nacion admitted that she availed of the MWSS Housing
Project and thus, was awarded a 300-square-meter lot at the MWSS Employees Corporate Office
Housing Project in Novaliches, Quezon City. This was covered by an Individual Notice of
Award9 dated April 8, 2003 issued by the MWSS Corporate Office Multi-Purpose Cooperative
Housing Project. The cost of the lot was 500.00 per sq m or a total of 150,000.00, exclusive of
development cost and miscellaneous expenses. Nacion invoked an honest belief that she could avail
of the benefit given the absence of any prohibition thereon upon COA personnel. COA Resolution
No. 2004-005, which prohibited COA employees from availing of all forms of loan, monetary benefits
or any form of credit assistance from agencies under their audit jurisdiction, was issued only on July
27, 2004.10
Nacion admitted that she also availed of the MWSS Multi-Purpose Loan Program – Car Loan, upon
an honest belief that she was not prohibited from doing so. She emphasized that her car purchase
was not subsidized. She was obligated to pay in full the principal amount of the loan, plus interest
and incidental expenses like registration fees and insurance premiums.11
Nacion, however, denied having received bonuses and benefits from MWSS. She argued that the
MWSS claims control index and journal vouchers upon which the charge was based were not
conclusive proof of her receipt of the benefits, absent payrolls showing her signature. In any case, as
a sign of good faith, Nacion offered to, first, restitute the full amount of 73,542.00 to save
government time and expenses in hearing the case and put to rest the issues that arose from it, and
second, give up her right over the MWSS lot provided she would get back her investment on the
property.12
Ruling of the COA
On June 14, 2012, the COA rendered its Decision13 finding Nacion guilty of grave misconduct and
violation of reasonable rules and regulations. It cited Section 18 of Republic Act (R.A.) No. 6758,
otherwise known as the Compensation and Position Classification Act of 1989, which specifically
prohibits COA personnel from receiving salaries, honoraria, bonuses, allowances or other
emoluments from any government entity, local government unit, government-owned and -controlled
corporations and government financial institutions, except those compensation paid directly by the
COA out of its appropriations and contributions. The COA emphasized that even the availment of all
forms of loan was already prohibited prior to the issuance of COA Resolution No. 2004-005, being
already proscribed by Executive Order No. 29214 and the Code of Ethics for Government Auditors.15
Although grave misconduct is a grave offense that is punishable by the extreme penalty of dismissal
from service, Nacion was only meted out a penalty of one year suspension without pay, after the
COA considered as mitigating the following circumstances:
Director Nacion did not request for a formal investigation, hence, has saved this Commission from
the inconvenience and cost of such proceeding. She also admitted availing both the Housing
1âwphi1
Project and MPLP Car Loan. Her long years in service [are] also worth considering as she has spent
her productive years in the public service. x x x.16
In addition to the suspension, Nacion was ordered to refund the amount of 73,542.0017 and return the
lot which she acquired under the MWSS housing program. The dispositive portion of the COA
decision then reads:
WHEREFORE, premises considered, this Commission finds Director Janet D. Nacion GUILTY of
Grave Misconduct and Violation of Reasonable Office Rules and Regulations proceeding from the
same act of receiving unauthorized allowances and other fringe benefits. Accordingly, she is meted
the penalty of one (1) year suspension without pay effective upon receipt of this Decision, immediate
refund of the amount of P73,542.00, and return of the lot she obtained under the MWSS Employees
Housing Project, with a stern warning that repetition of the same or similar infraction shall be dealt
with more severely.
Let a copy of this Decision form part of the respondent’s personal (201) File in this Commission. The
Chief Executive Staff, Office of the Chairperson and the Assistant Commissioner, Administration
Sector, shall enforce this Decision and report compliance thereof to the Commission Proper.18
Unyielding, Nacion moved to reconsider, but her plea was denied by the COA in a Resolution dated
November 5, 2012.19 Hence, this petition.
The Present Petition
The core issue for the Court’s resolution is: whether or not the COA committed grave abuse of
discretion in finding Nacion guilty of grave misconduct and violation of reasonable office rules and
regulations.
To support her petition against the COA, Nacion invokes due process as she argues that the records
during her tenure with the MWSS should not have been included by the audit team in its
investigations, as no office order covering it was issued by the COA Chairman. Furthermore, the
documentary evidence considered by the Fraud Audit and Investigation Office (FAIO) did not
constitute substantial evidence to prove the commission of the offenses with which she was
charged.
Ruling of the Court
The petition is bereft of merit. At the outset, the Court reiterates:
The concept is well-entrenched: grave abuse of discretion exists when there is an evasion of a
positive duty or a virtual refusal to perform a duty enjoined by law or to act in contemplation of law as
when the judgment rendered is not based on law and evidence but on caprice, whim, and
despotism. Not every error in the proceedings, or every erroneous conclusion of law or fact,
constitutes grave abuse of discretion. The abuse of discretion to be qualified as "grave" must be so
patent or gross as to constitute an evasion of a positive duty or a virtual refusal to perform the duty
or to act at all in contemplation of law.20 (Citations omitted)
Thus, the Court emphasized in Dycoco v. Court of Appeals21 that "[a]n act of a court or tribunal can
only be considered as with grave abuse of discretion when such act is done in a ‘capricious or
whimsical exercise of judgment as is equivalent to lack of jurisdiction.’"22
Upon review, the Court holds that no such grave abuse of discretion may be attributed to the COA
for the procedure it observed, its factual findings and conclusions in Nacion’s case.
Due Process in Administrative Proceedings
In administrative proceedings, the essence of due process is the opportunity to explain one’s side or
seek a reconsideration of the action or ruling complained of, and to submit any evidence he may
have in support of his defense. The demands of due process are sufficiently met when the parties
are given the opportunity to be heard before judgment is rendered.23 Given this and the
circumstances under which the rulings of the COA were issued, the Court finds no violation of
Nacion’s right to due process. As the Office of the Solicitor General correctly argued, the constitution
of a separate fact-finding team specifically for Nacion’s case was not necessary for the satisfaction
of such right.
It bears stressing that Nacion was formally charged by Chairperson Tan, following evidence that
pointed to irregularities committed while she was with the MWSS. Being the COA Chairperson who,
under the law, could initiate administrative proceedings motu proprio, no written complaint against
Nacion from another person was necessary. Section 2 of the COA Memorandum No. 76-48,24 which
Nacion herself invokes, provides:
Sec. 2. How commenced. –
(1) Administrative proceedings may be commenced against a subordinate official or employee of the
Commission by the Chairman motu proprio, or upon sworn, written complaint of any other person.
(Sec. 38 [a], PD 807).
x x x x (Emphasis ours)
The power of the COA to discipline its officials then could not be limited by the procedure being
insisted upon by Nacion. Neither is the authority of the Chairperson to commence the action through
the issuance of the formal charge restricted by the requirement of a prior written complaint. As may
be gleaned from the cited provision, a written complaint under oath is demanded only when the
administrative case is commenced by a person other than the COA Chairperson.
Contrary to Nacion’s claim, the COA also did not act beyond its jurisdiction when her case was
considered by the FAIO investigating team, notwithstanding the fact that the office order which
commanded an inquiry upon MWSS personnel merely referred to alleged unauthorized receipt of
bonuses and benefits from the agency by Atty. Norberto Cabibihan (Atty. Cabibihan) and his staff.
Since Nacion’s stint in MWSS was before Atty. Cabibihan’s, she argued that the team should not
have looked into the records and circumstances during her term. In including benefits received
during her term, Nacion claimed that the investigating team acted beyond its jurisdiction and
deprived her of the right to due process.
The contention fails to persuade; a separate office order was not necessary for the audit team’s
investigation of Nacion’s case. It should be emphasized that prior to the issuance of the formal
charge, the investigations conducted by the team were merely fact-finding. The crucial point was the
COA’s observance of the demands of due process prior to its finding or decision that Nacion was
administratively liable. The formation of a separate fact-finding team that should look specifically into
Nacion’s acts was not necessary to satisfy the requirement. The formal charge was as yet to be
issued by the COA Chairperson, and Nacion’s formal investigation commenced only after she had
filed her answer to the charge. It was undisputed that Nacion, despite a chance, did not request for
such formal investigation, a circumstance which the COA later considered as mitigating. In any case,
she was still accorded before the COA a reasonable opportunity to present her defenses, through
her answer to the formal charge and eventually, motion for reconsideration of the COA’s decision. 1âwphi1
Substantial Evidence in Administrative Case
The Court also finds no grave abuse of discretion on the part of the COA in holding Nacion
administratively liable for the offenses with which she was charged.
In administrative cases, the quantum of evidence that is necessary to declare a person

administratively liable is mere substantial evidence.25 This is defined under Section 5, Rule 133 of the
Rules of Court, to wit:
Sec. 5. Substantial evidence. – In cases filed before administrative or quasi-judicial bodies, a fact
may be deemed established if it is supported by substantial evidence, or that amount of relevant
evidence which a reasonable mind might accept as adequate to justify a conclusion. (Emphasis
ours)
It is settled that the factual findings of administrative bodies are controlling when supported by such
substantial evidence.26 In resolving the present petition, the Court finds no compelling reason to
deviate from this general rule. Three separate acts were found to have been committed by Nacion,
all sufficient to support the COA’s finding of grave misconduct and violation of reasonable office
rules and regulations.
Nacion’s receipt of the prohibited benefits and allowances were duly proved by documentary
evidence. The presentation of documents bearing Nacion’s signature to prove her receipt of the
money was not indispensable. Recipients of unauthorized sums would, after all, ordinarily evade
traces of their receipt of such amounts. Resort to other documents from which such fact could be
deduced was then appropriate. In this case, the claims control indices considered by the COA were
supported by journal vouchers and entries, which constitute public records. No evidence that could
sufficiently challenge the correctness of the contents thereof and the COA’s conclusions therefrom
was presented by Nacion. On the contrary, the COA correctly elucidated that:
For the receipt of allowances and bonuses amounting to P73,542.00, which she denied receiving for
lack of conclusive proof, it must be emphasized that administrative offenses only require substantial,
not conclusive, evidence. The MWSS Claims Control Index is used to record payments made to
each employee, supplier and other agency internal and external creditors. Its preparation and
maintenance are not discretionary upon the agency as COA itself has established the use of it to
serve as an effective tool for internal control. The various other recordings that were gathered to
support the entries in the index of payment established that allowances and benefits have indeed
been extended to Atty. Nacion. It was not a stroke of accident that her name appeared on these
documents. Auditors can certainly explain the appearance of specific names in the indices of
payment and other documents presented herein. x x x.27
Nacion’s availment of the housing and car programs was undisputed. She claimed though to have
availed of these benefits upon an honest belief that she was not prohibited from doing so. Her
alleged good faith, nonetheless, could not support exoneration. Even her claim that officials from
other agencies availed of the same benefits from MWSS could neither qualify as a valid defense nor
be treated as a confirmation of good faith. A prohibited act could not be justified by the mere fact that
other government officers were doing it, especially since given Nacion’s office and distinctive
functions, the other officers might not be similarly situated and covered by similar prohibitions.28
Clearly, the acts of Nacion were prohibited under the law. Among those covering the matter is R.A.
No. 6758, specifically Section 18 thereof which provides:
Section 18. Additional Compensation of Commission on Audit Personnel and of Other Agencies. – In
order to preserve the independence and integrity of the Commission on Audit (COA), its officials and
employees are prohibited from receiving salaries, honoraria, bonuses, allowances or other
emoluments from any government entity, local government unit, and government-owned and
controlled corporations, and government financial institution, except those compensation paid
directly by the COA out of its appropriations and contributions.
xxxx
An observance of the prohibition is mandatory given its purpose vis-à-vis the roles which COA
personnel are required to perform. Given their mandate to look after compliance with laws and
standards in the handling of funds by the government agencies where they are assigned to, COA
personnel must prevent any act that may influence them in the discharge of their duties. In the
present case, the receipt of the subject benefits and allowances was evidently in violation of the
prohibition under the aforequoted Section 18. Nacion should have been wary of her actions and the
prohibitions pertinent to her functions, especially as they affected the expenditure of MWSS funds
which she was duty-bound to eventually examine.
The availment of the loans likewise merited administrative sanctions. Nacion herself cited in her
pleadings before the COA some past cases that involved COA officials, who were disciplined for
availing of car plans in other offices. Nacion was also covered by COA Resolution No. 86-50, also
known as the Code of Ethics for Government Auditors, which demanded from her a high degree of
integrity and professionalism, the avoidance of conflict of interest, and resistance to temptations that
might be prejudicial to the discharge of her duties and to public interest. Otherwise, she would be
placed in an odd situation requiring her review of transactions and expenditures from which she had
directly benefited from.
While she vehemently denied it, Nacion benefited from the subject car and housing programs. Her 1âwphi1
acquisition of the car might not be subsidized by MWSS, but the low three-tier interest rates ranging
from 0-6%29 extended to her by the agency was clearly to her advantage. She was also able to avail
of MWSS’ housing program even when she was not an employee of the agency. Nacion’s availment
of the benefits of the car and housing programs led to the same results that the prohibition on
additional compensation sought to avoid, and defied the rationale for the laws that sought to fortify
COA independence. In Villareña v. The Commission on Audit,30 the Court emphasized:
The primary function of an auditor is to prevent irregular, unnecessary, excessive or extravagant

expenditures of government funds. To be able properly to perform their constitutional mandate, COA
officials need to be insulated from unwarranted influences, so that they can act with independence
and integrity. x x x The removal of the temptation and enticement the extra emoluments may provide
is designed to be an effective way of vigorously and aggressively enforcing the Constitutional
provision mandating the COA to prevent or disallow irregular, unnecessary, excessive, extravagant,
or unconscionable expenditures or uses of government funds and properties.
Stated otherwise, the COA personnel who have nothing to look forward to or expect from their
assigned offices in terms of extra benefits, would have no reason to accord special treatment to the
latter by closing their eyes to irregular or unlawful expenditures or use of funds or property, or
conducting a perfunctory audit. The law realizes that such extra benefits could diminish the
personnel’s seriousness and dedication in the pursuit of their assigned tasks, affect their impartiality
and provide a continuing temptation to ingratiate themselves to the government entity, local
government unit, government-owned and controlled corporations and government financial
institutions, as the case may be. In the end, they would become ineffective auditors.31 (Citations
omitted)
Anent her availment of the MWSS housing project, Nacion insists, as an additional defense, that the
lot was awarded to her by a private entity that was separate and distinct from MWSS, i.e., the
MWSS Corporate Office Multi-Purpose Cooperative Housing Project.32 It is clear, however, that
taking into account the rationale for the prohibition upon government auditors against receipt of
additional benefits and personal gains, the MWSS Employees Housing Project could not be wholly
separated from the MWSS and its officers. If Nacion’s participation in the housing project were to be
allowed, then the influence and conflict of interest which the law aims to thwart would hardly be
prevented. When it denied Nacion’s motion to reconsider, the COA then correctly explained the
following, taking into account the existing structure of the cooperative vis-à-vis the MWSS:
It must be emphasized that the conceptualization of the MWSS Employees Housing Project, the
utilization of the MWSS real property as the site of the MWSS housing project, and the guidelines in
the implementation of the housing project were all approved by the MWSS Board of Trustees, as
evidenced by the minutes of meetings and resolutions issued by the same Board. It is therefore hard
to escape the fact that MWSS officials govern the conduct of official affairs of the cooperative. More
so, officials of the cooperative are likewise officials of MWSS. Thus, the cooperative's affairs being
controlled by the MWSS, such arrangement makes the cooperative conduit or adjunct of the MWSS.
x x x.33
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
69

SUPREME COURT
Manila
EN BANC
G.R. No. 205728 January 21, 2015
THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M.

NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY.
MAVIL V. MAJARUCON, Respondents.
DECISION
LEONEN, J.:
"The Philippines is a democratic and republican State. Sovereignty resides in the people and all
government authority emanates from them." – Article II, Section 1, Constitution
All governmental authority emanates from our people. No unreasonable restrictions of the
fundamental and preferred right to expression of the electorate during political contests no matter
how seemingly benign will be tolerated.
This case defines the extent that our people may shape the debates during elections. It is significant
and of first impression. We are asked to decide whether the Commission on Elections (COMELEC)
has the competence to limit expressions made by the citizens — who are not candidates — during
elections.
Before us is a special civil action for certiorari and prohibition with application for preliminary
injunction and temporary restraining order1 under Rule 65 of the Rules of Court seeking to nullify
COMELEC’s Notice to Remove Campaign Materials2 dated February 22, 2013 and letter3 issued on
February 27, 2013.
The facts are not disputed.
On February 21, 2013, petitioners posted two (2) tarpaulins within a private compound housing the
San Sebastian Cathedral of Bacolod. Each tarpaulin was approximately six feet (6') by ten feet (10')
in size. They were posted on the front walls of the cathedral within public view. The first tarpaulin
contains the message "IBASURA RH Law" referring to the Reproductive Health Law of 2012 or
Republic Act No. 10354. The second tarpaulin is the subject of the present case.4 This tarpaulin
contains the heading "Conscience Vote" and lists candidates as either "(Anti-RH) Team Buhay" with
a check mark, or "(Pro-RH) Team Patay" with an "X" mark.5 The electoral candidates were classified
according to their vote on the adoption of Republic Act No. 10354, otherwise known as the RH
Law.6Those who voted for the passing of the law were classified by petitioners as comprising "Team
Patay," while those who voted against it form "Team Buhay":7
TEAM BUHAY TEAM PATAY
Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casiño, Teddy
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis
Villar, Cynthia Hontiveros, Risa
Party List Buhay Legarda, Loren
Party List Ang Pamilya Party List Gabriela
Party List Akbayan
Party List Bayan Muna
Party List Anak Pawis

During oral arguments, respondents conceded that the tarpaulin was neither sponsored nor paid for
by any candidate. Petitioners also conceded that the tarpaulin contains names ofcandidates for the
2013 elections, but not of politicians who helped in the passage of the RH Law but were not
candidates for that election.
On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as Election Officer of
Bacolod City, issued a Notice to Remove Campaign Materials8 addressed to petitioner Most Rev.
Bishop Vicente M. Navarra. The election officer ordered the tarpaulin’s removal within three (3) days
from receipt for being oversized. COMELEC Resolution No. 9615 provides for the size requirement
of two feet (2’) by three feet (3’).9
On February 25, 2013, petitioners replied10 requesting, among others, that (1) petitioner Bishop be
given a definite ruling by COMELEC Law Department regarding the tarpaulin; and (2) pending this
opinion and the availment of legal remedies, the tarpaulin be allowed to remain.11
On February 27, 2013, COMELEC Law Department issued a letter12 ordering the immediate removal
of the tarpaulin; otherwise, it will be constrained to file an election offense against petitioners. The
letter of COMELEC Law Department was silenton the remedies available to petitioners. The letter
Dear Bishop Navarra:
It has reached this Office that our Election Officer for this City, Atty. Mavil Majarucon, had already
given you notice on February 22, 2013 as regards the election propaganda material posted on the
church vicinity promoting for or against the candidates and party-list groups with the following names
and messages, particularly described as follows:
Material size : six feet (6’) by ten feet (10’)
Description : FULL COLOR TARPAULIN
Image of : SEE ATTACHED PICTURES
Message : CONSCIENCE VOTE (ANTI RH) TEAM
BUHAY; (PRO RH) TEAM PATAY
Location : POSTED ON THE CHURCH VICINITY

OF THE DIOCESE OF BACOLOD CITY
The three (3) – day notice expired on February 25, 2013.
Considering that the above-mentioned material is found to be in violation of Comelec Resolution No.
9615 promulgated on January 15, 2013 particularly on the size (even with the subsequent division of
the said tarpaulin into two), as the lawful size for election propaganda material is only two feet (2’) by
three feet (3’), please order/cause the immediate removal of said election propaganda material,
otherwise, we shall be constrained to file an election offense case against you.
We pray that the Catholic Church will be the first institution to help the Commission on Elections
inensuring the conduct of peaceful, orderly, honest and credible elections.
Thank you and God Bless!
[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13
Concerned about the imminent threatof prosecution for their exercise of free speech, petitioners
initiated this case through this petition for certiorari and prohibition with application for preliminary
injunction and temporary restraining order.14 They question respondents’ notice dated February 22,
2013 and letter issued on February 27, 2013. They pray that: (1) the petition be given due course;
(2) a temporary restraining order (TRO) and/or a writ of preliminary injunction be issued restraining
respondents from further proceeding in enforcing their orders for the removal of the Team Patay
tarpaulin; and (3) after notice and hearing, a decision be rendered declaring the questioned orders of
respondents as unconstitutional and void, and permanently restraining respondents from enforcing
them or any other similar order.15
After due deliberation, this court, on March 5, 2013, issued a temporary restraining order enjoining
respondents from enforcing the assailed notice and letter, and set oral arguments on March 19,
2013.16
On March 13, 2013, respondents filed their comment17 arguing that (1) a petition for certiorari and
prohibition under Rule 65 of the Rules of Court filed before this court is not the proper remedy to
question the notice and letter of respondents; and (2) the tarpaulin is an election propaganda subject
to regulation by COMELEC pursuant to its mandate under Article IX-C, Section 4 of the Constitution.
Hence, respondents claim that the issuances ordering its removal for being oversized are valid and
constitutional.18
During the hearing held on March 19, 2013, the parties were directed to file their respective
memoranda within 10 days or by April 1, 2013, taking into consideration the intervening holidays.19
The issues, which also served as guide for the oral arguments, are:20
I.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER MAJARUCON

AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT ARE
CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE COMELEC WHICH
WOULD WARRANT A REVIEW OF THIS COURT VIA RULE 65 PETITION[;]
A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS DOCTRINE AND

JURISPRUDENTIAL RULES GOVERNING APPEALS FROM COMELEC DECISIONS;
B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS ARE NOT

CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE COMELEC,
WHETHER THERE ARE EXCEPTIONAL CIRCUMSTANCES WHICH WOULD ALLOW
THIS COURT TO TAKE COGNIZANCE OF THE CASE[;]
II.
WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS ARE "POLITICAL
ADVERTISEMENT" OR "ELECTION PROPAGANDA" CONSIDERING THAT PETITIONER IS NOT
A POLITICAL CANDIDATE[;]
III.
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED SPEECH), OR

ELECTION PROPAGANDA/POLITICAL ADVERTISEMENT[;]
A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF EXPRESSION,

WHETHER THE COMELEC POSSESSES THE AUTHORITY TO REGULATE THE SAME[;]
B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]
IV.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER MAJARUCON

AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT VIOLATES THE
PRINCIPLE OF SEPARATION OF CHURCH AND STATE[;] [AND]
V.
WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN VIOLATES THE
CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH AND STATE.
I
PROCEDURAL ISSUES
I.A
This court’s jurisdiction over COMELEC cases
Respondents ask that this petition be dismissed on the ground that the notice and letter are not final
orders, decisions, rulings, or judgments of the COMELEC En Banc issued in the exercise of its
adjudicatory powers, reviewable via Rule 64 of the Rules of Court.21
Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is applicable especially to
raise objections relating to a grave abuse of discretion resulting in the ouster of jurisdiction.22 As a
special civil action, there must also be a showing that there be no plain, speedy, and adequate
remedy in the ordinary course of the law.
Respondents contend that the assailed notice and letter are not subject to review by this court,
whose power to review is "limited only to final decisions, rulings and orders of the COMELEC En
Banc rendered in the exercise of its adjudicatory or quasi-judicial power."23 Instead, respondents
claim that the assailed notice and letter are reviewable only by COMELEC itself pursuant to Article
IX-C, Section 2(3) of the Constitution24 on COMELEC’s power to decide all questions affecting
elections.25 Respondents invoke the cases of Ambil, Jr. v. COMELEC,26 Repol v.
COMELEC,27 Soriano, Jr. v. COMELEC,28 Blanco v. COMELEC,29 and Cayetano v. COMELEC,30 to
illustrate how judicialintervention is limited to final decisions, orders, rulings and judgments of the
COMELEC En Banc.31
These cases are not applicable.
In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern Samar filed the
election protest.32 At issue was the validity of the promulgation of a COMELEC Division
resolution.33 No motion for reconsideration was filed to raise this issue before the COMELEC En
Banc. This court declared that it did not have jurisdiction and clarified:
We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean final orders, rulings and
decisionsof the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers." This
decision must be a final decision or resolution of the Comelec en banc, not of a division, certainly not
an interlocutory order of a division.The Supreme Court has no power to review viacertiorari, an
interlocutory order or even a final resolution of a Division of the Commission on
Elections.35 (Emphasis in the original, citations omitted)
However, in the next case cited by respondents, Repol v. COMELEC, this court provided exceptions
to this general rule. Repolwas another election protest case, involving the mayoralty elections in
Pagsanghan, Samar.36 This time, the case was brought to this court because the COMELEC First
Division issued a status quo ante order against the Regional Trial Court executing its decision
pending appeal.37 This court’s ponencia discussed the general rule enunciated in Ambil, Jr. that it
cannot take jurisdiction to review interlocutory orders of a COMELEC Division.38However, consistent
with ABS-CBN Broadcasting Corporation v. COMELEC,39 it clarified the exception:
This Court, however, has ruled in the past that this procedural requirement [of filing a motion for
reconsideration] may be glossed over to prevent miscarriage of justice, when the issue involves the
principle of social justice or the protection of labor, when the decision or resolution sought to be set
aside is a nullity, or when the need for relief is extremely urgent and certiorari is the only adequate
and speedy remedy available.40
Based on ABS-CBN, this court could review orders and decisions of COMELEC — in electoral
contests — despite not being reviewed by the COMELEC En Banc, if:
1) It will prevent the miscarriage of justice;
2) The issue involves a principle of social justice;
3) The issue involves the protection of labor;
4) The decision or resolution sought tobe set aside is a nullity; or
5) The need for relief is extremely urgent and certiorari is the only adequate and speedy
remedy available.
Ultimately, this court took jurisdiction in Repoland decided that the status quo anteorder issued by
the COMELEC Division was unconstitutional.
Respondents also cite Soriano, Jr. v. COMELEC.This case was also an election protest case
involving candidates for the city council of Muntinlupa City.41 Petitioners in Soriano, Jr.filed before this
court a petition for certiorari against an interlocutory order of the COMELEC First
Division.42 While the petition was pending in this court, the COMELEC First Division dismissed the
main election protest case.43 Sorianoapplied the general rule that only final orders should be
questioned with this court. The ponencia for this court, however, acknowledged the exceptions to the
general rule in ABS-CBN.44
Blanco v. COMELEC, another case cited by respondents, was a disqualification case of one of the
mayoralty candidates of Meycauayan, Bulacan.45 The COMELEC Second Division ruled that
petitioner could not qualify for the 2007 elections due to the findings in an administrative case that he
engaged in vote buying in the 1995 elections.46No motion for reconsideration was filed before the
COMELEC En Banc. This court, however, took cognizance of this case applying one of the
exceptions in ABS-CBN: The assailed resolution was a nullity.47
Finally, respondents cited Cayetano v. COMELEC, a recent election protest case involving the
mayoralty candidates of Taguig City.48 Petitioner assailed a resolution of the COMELEC denying her
motion for reconsideration to dismiss the election protest petition for lack of form and
substance.49 This court clarified the general rule and refused to take cognizance of the review of the
COMELEC order. While recognizing the exceptions in ABS-CBN, this court ruled that these
exceptions did not apply.50
Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do not operate as
precedents to oust this court from taking jurisdiction over this case. All these cases cited involve
election protests or disqualification cases filed by the losing candidate against the winning candidate.
In the present case, petitioners are not candidates seeking for public office. Their petition is filed to
assert their fundamental right to expression.
Furthermore, all these cases cited by respondents pertained to COMELEC’s exercise of its
adjudicatory or quasi-judicial power. This case pertains to acts of COMELEC in the implementation
of its regulatory powers. When it issued the notice and letter, the COMELEC was allegedly
enforcingelection laws.
I.B
Rule 65, grave abuse of discretion,
and limitations on political speech
The main subject of thiscase is an alleged constitutional violation: the infringement on speech and
the "chilling effect" caused by respondent COMELEC’s notice and letter.
Petitioners allege that respondents committed grave abuse of discretion amounting to lack or excess
of jurisdiction in issuing the notice51 dated February 22,2013 and letter52 dated February 27, 2013
ordering the removal of the tarpaulin.53 It is their position that these infringe on their fundamental right
to freedom of expression and violate the principle of separation of church and state and, thus, are
unconstitutional.54
The jurisdiction of this court over the subject matter is determined from the allegations in the petition.
Subject matter jurisdiction is defined as the authority "to hear and determine cases of the general
class to which the proceedings in question belong and is conferred by the sovereign authority which
organizes the court and defines its powers."55Definitely, the subject matter in this case is different
from the cases cited by respondents.
Nothing less than the electorate’s political speech will be affected by the restrictions imposed by
COMELEC. Political speech is motivated by the desire to be heard and understood, to move people
to action. It is concerned with the sovereign right to change the contours of power whether through
the election of representatives in a republican government or the revision of the basic text of the
Constitution. The zeal with which we protect this kind of speech does not depend on our evaluation
of the cogency of the message. Neither do we assess whether we should protect speech based on
the motives of COMELEC. We evaluate restrictions on freedom of expression from their effects. We
protect both speech and medium because the quality of this freedom in practice will define the
quality of deliberation in our democratic society.
COMELEC’s notice and letter affect preferred speech. Respondents’ acts are capable of repetition.
Under the conditions in which it was issued and in view of the novelty of this case,it could result in a
"chilling effect" that would affect other citizens who want their voices heard on issues during the
elections. Other citizens who wish to express their views regarding the election and other related
issues may choose not to, for fear of reprisal or sanction by the COMELEC. Direct resort to this court
is allowed to avoid such proscribed conditions. Rule 65 is also the procedural platform for raising
grave abuse of discretion.
Both parties point to constitutional provisions on jurisdiction. For petitioners, it referred to this court’s
expanded exercise of certiorari as provided by the Constitution as follows:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether ornot 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.56(Emphasis supplied)
On the other hand, respondents relied on its constitutional mandate to decide all questions
affectingelections. Article IX-C, Section 2(3) of the Constitution, provides:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
....
(3) Decide, except those involving the right to vote, all questions affecting elections, including
determination of the number and location of polling places, appointment of election officials and
inspectors, and registration of voters.
Respondents’ reliance on this provision is misplaced.
We are not confronted here with the question of whether the COMELEC, in its exercise of
jurisdiction, gravely abused it. We are confronted with the question as to whether the COMELEC had
any jurisdiction at all with its acts threatening imminent criminal action effectively abridging
meaningful political speech.
It is clear that the subject matter of the controversy is the effect of COMELEC’s notice and letter on
free speech. This does not fall under Article IX-C, Section 2(3) of the Constitution. The use of the
word "affecting" in this provision cannot be interpreted to mean that COMELEC has the exclusive
power to decide any and allquestions that arise during elections. COMELEC’s constitutional
competencies during elections should not operate to divest this court of its own jurisdiction.
The more relevant provision for jurisdiction in this case is Article VIII, Section 5(1) of the
Constitution.This provision provides for this court’s original jurisdiction over petitions for certiorari
and prohibition. This should be read alongside the expanded jurisdiction of the court in Article VIII,
Section 1 of the Constitution.
Certainly, a breach of the fundamental right of expression by COMELEC is grave abuse of

discretion. Thus, the constitutionality of the notice and letter coming from COMELEC is within this
court’s power to review.
During elections, we have the power and the duty to correct any grave abuse of discretion or any act
tainted with unconstitutionality on the part of any government branch or instrumentality. This includes
actions by the COMELEC. Furthermore, it is this court’s constitutional mandate to protect the people
against government’s infringement of their fundamental rights. This constitutional mandate out
weighs the jurisdiction vested with the COMELEC.
It will, thus, be manifest injustice if the court does not take jurisdiction over this case.
I.C
Hierarchy of courts
This brings us to the issue of whether petitioners violated the doctrine of hierarchy of courts in
directly filing their petition before this court.
Respondents contend that petitioners’ failure to file the proper suit with a lower court of concurrent
jurisdiction is sufficient ground for the dismissal of their petition.57 They add that observation of the
hierarchy of courts is compulsory, citing Heirs of Bertuldo Hinog v. Melicor.58 While respondents
claim that while there are exceptions to the general rule on hierarchy of courts, none of these are
present in this case.59
On the other hand, petitioners cite Fortich v. Corona60 on this court’s discretionary power to take
cognizance of a petition filed directly to it if warranted by "compelling reasons, or [by] the nature and
importance of the issues raised. . . ."61 Petitioners submit that there are "exceptional and compelling
reasons to justify a direct resort [with] this Court."62
In Bañez, Jr. v. Concepcion,63 we explained the necessity of the application of the hierarchy of
courts:
The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that
the policy is not to be ignored without serious consequences. The strictness of the policy is designed
to shield the Court from having to deal with causes that are also well within the competence of the
lower courts, and thus leave time to the Court to deal with the more fundamental and more essential
tasks that the Constitution has assigned to it. The Court may act on petitions for the extraordinary
writs of certiorari, prohibition and mandamus only when absolutely necessary or when serious and
important reasons exist to justify an exception to the policy.64
In Bañez, we also elaborated on the reasons why lower courts are allowed to issue writs of certiorari,
prohibition, and mandamus, citing Vergara v. Suelto:65
The Supreme Court is a court of lastresort, and must so remain if it is to satisfactorily perform the
functions assigned to it by the fundamental charter and immemorial tradition. It cannot and should
not be burdened with the task of dealing with causes in the first instance. Its original jurisdiction to
issue the so-called extraordinary writs should be exercised only where absolutely necessary or
where serious and important reasons exist therefore. Hence, that jurisdiction should generally be
exercised relative to actions or proceedings before the Court of Appeals, or before constitutional or
other tribunals, bodies or agencies whose acts for some reason or another are not controllable by
the Court of Appeals. Where the issuance of an extraordinary writ is also within the competence of
the Court of Appeals or a Regional Trial Court, it is in either of these courts that the specific action
for the writ’s procurement must be presented. This is and should continue to be the policy in this
regard, a policy that courts and lawyers must strictly observe.66 (Emphasis omitted)
The doctrine that requires respect for the hierarchy of courts was created by this court to ensure that
every level of the judiciary performs its designated roles in an effective and efficient manner. Trial
courts do not only determine the facts from the evaluation of the evidence presented before them.
They are likewise competent to determine issues of law which may include the validity of an
ordinance, statute, or even an executive issuance in relation to the Constitution.67 To effectively
perform these functions, they are territorially organized into regions and then into branches. Their
writs generally reach within those territorial boundaries. Necessarily, they mostly perform the all-
important task of inferring the facts from the evidence as these are physically presented before
them. In many instances, the facts occur within their territorial jurisdiction, which properly present the
‘actual case’ that makes ripe a determination of the constitutionality of such action. The
consequences, of course, would be national in scope. There are, however, some cases where resort
to courts at their level would not be practical considering their decisions could still be appealed
before the higher courts, such as the Court of Appeals.
The Court of Appeals is primarily designed as an appellate court that reviews the determination of
facts and law made by the trial courts. It is collegiate in nature. This nature ensures more
standpoints in the review of the actions of the trial court. But the Court of Appeals also has original
jurisdiction over most special civil actions. Unlike the trial courts, its writs can have a nationwide
scope. It is competent to determine facts and, ideally, should act on constitutional issues thatmay not
necessarily be novel unless there are factual questions to determine.
This court, on the other hand, leads the judiciary by breaking new ground or further reiterating — in
the light of new circumstances or in the light of some confusions of bench or bar — existing
precedents. Rather than a court of first instance or as a repetition of the actions of the Court of
Appeals, this court promulgates these doctrinal devices in order that it truly performs that role.
In other words, the Supreme Court’s role to interpret the Constitution and act in order to protect
constitutional rights when these become exigent should not be emasculated by the doctrine in
respect of the hierarchy of courts. That has never been the purpose of such doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court has "full discretionary
power to take cognizance and assume jurisdiction [over] special civil actions for certiorari . . .filed
directly with it for exceptionally compelling reasons69 or if warranted by the nature of the issues
clearly and specifically raised in the petition."70 As correctly pointed out by petitioners,71 we have
provided exceptions to this doctrine:
First, a direct resort to this court is allowed when there are genuine issues of constitutionality that
must be addressed at the most immediate time. A direct resort to this court includes availing of the
remedies of certiorari and prohibition toassail the constitutionality of actions of both legislative and
executive branches of the government.72
In this case, the assailed issuances of respondents prejudice not only petitioners’ right to freedom of
expression in the present case, but also of others in future similar cases. The case before this court
involves an active effort on the part of the electorate to reform the political landscape. This has
become a rare occasion when private citizens actively engage the public in political discourse. To
quote an eminent political theorist:
[T]he theory of freedom of expression involves more than a technique for arriving at better social
judgments through democratic procedures. It comprehends a vision of society, a faith and a whole
way of life. The theory grew out of an age that was awakened and invigorated by the idea of new
society in which man's mind was free, his fate determined by his own powers of reason, and his
prospects of creating a rational and enlightened civilization virtually unlimited. It is put forward as a
prescription for attaining a creative, progressive, exciting and intellectually robust community. It
contemplates a mode of life that, through encouraging toleration, skepticism, reason and initiative,
will allow man to realize his full potentialities.It spurns the alternative of a society that is tyrannical,
conformist, irrational and stagnant.73
In a democracy, the citizen’s right tofreely participate in the exchange of ideas in furtherance of
political decision-making is recognized. It deserves the highest protection the courts may provide, as
public participation in nation-building isa fundamental principle in our Constitution. As such, their
right to engage in free expression of ideas must be given immediate protection by this court.
A second exception is when the issuesinvolved are of transcendental importance.74 In these cases,
the imminence and clarity of the threat to fundamental constitutional rights outweigh the necessity for
prudence. The doctrine relating to constitutional issues of transcendental importance prevents courts
from the paralysis of procedural niceties when clearly faced with the need for substantial protection.
In the case before this court, there is a clear threat to the paramount right of freedom of speech and
freedom of expression which warrants invocation of relief from this court. The principles laid down in
this decision will likely influence the discourse of freedom of speech in the future, especially in the
context of elections. The right to suffrage not only includes the right to vote for one’s chosen
candidate, but also the right to vocalize that choice to the public in general, in the hope of influencing
their votes. It may be said that in an election year, the right to vote necessarily includes the right to
free speech and expression. The protection of these fundamental constitutional rights, therefore,
allows for the immediate resort to this court.
Third, cases of first impression75 warrant a direct resort to this court. In cases of first impression, no
jurisprudence yet exists that will guide the lower courts on this matter. In Government of the United
States v. Purganan,76 this court took cognizance of the case as a matter of first impression that may
guide the lower courts:
In the interest of justice and to settle once and for all the important issue of bail in extradition
proceedings, we deem it best to take cognizance of the present case. Such proceedings constitute a
matter of first impression over which there is, as yet, no local jurisprudence to guide lower courts.77
This court finds that this is indeed a case of first impression involving as it does the issue of whether
the right of suffrage includes the right of freedom of expression. This is a question which this court
has yet to provide substantial answers to, through jurisprudence. Thus, direct resort to this court is
allowed.
Fourth, the constitutional issues raisedare better decided by this court. In Drilon v. Lim,78 this court
held that:
. . . it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher
judgmentof this Court in the consideration of its validity, which is better determined after a thorough
deliberation by a collegiate body and with the concurrence of the majority of those who participated
in its discussion.79 (Citation omitted)
In this case, it is this court, with its constitutionally enshrined judicial power, that can rule with finality
on whether COMELEC committed grave abuse of discretion or performed acts contrary to the
Constitution through the assailed issuances.
Fifth, the time element presented in this case cannot be ignored. This case was filed during the 2013
election period. Although the elections have already been concluded, future cases may be filed that
necessitate urgency in its resolution. Exigency in certain situations would qualify as an exception for
direct resort to this court.
Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a constitutional body.
In Albano v. Arranz,80 cited by petitioners, this court held that "[i]t is easy to realize the chaos that
would ensue if the Court of First Instance ofeach and every province were [to] arrogate itself the
power to disregard, suspend, or contradict any order of the Commission on Elections: that
constitutional body would be speedily reduced to impotence."81
In this case, if petitioners sought to annul the actions of COMELEC through pursuing remedies with
the lower courts, any ruling on their part would not have been binding for other citizens whom
respondents may place in the same situation. Besides, thiscourt affords great respect to the
Constitution and the powers and duties imposed upon COMELEC. Hence, a ruling by this court
would be in the best interest of respondents, in order that their actions may be guided accordingly in
the future.
Seventh, petitioners rightly claim that they had no other plain, speedy, and adequate remedy in the
ordinary course of law that could free them from the injurious effects of respondents’ acts in violation
of their right to freedom of expression.
In this case, the repercussions of the assailed issuances on this basic right constitute an
exceptionally compelling reason to justify the direct resort to this court. The lack of other sufficient
remedies in the course of law alone is sufficient ground to allow direct resort to this court.
Eighth, the petition includes questionsthat are "dictated by public welfare and the advancement of
public policy, or demanded by the broader interest of justice, or the orders complained of were found
to be patent nullities, or the appeal was consideredas clearly an inappropriate remedy."82 In the past,
questions similar to these which this court ruled on immediately despite the doctrine of hierarchy of
courts included citizens’ right to bear arms,83 government contracts involving modernization of voters’
registration lists,84 and the status and existence of a public office.85
This case also poses a question of similar, if not greater import. Hence, a direct action to this court is
permitted.
It is not, however, necessary that all of these exceptions must occur at the same time to justify a
direct resort to this court. While generally, the hierarchy of courts is respected, the present case falls
under the recognized exceptions and, as such, may be resolved by this court directly.
I.D
The concept of a political question
Respondents argue further that the size limitation and its reasonableness is a political question,
hence not within the ambit of this court’s power of review. They cite Justice Vitug’s separate opinion
in Osmeña v. COMELEC86 to support their position:
It might be worth mentioning that Section 26, Article II, of the Constitution also states that the "State
shall guarantee equal access to opportunities for public service, and prohibit political dynasties as
may be defined by law." I see neither Article IX (C)(4) nor Section 26, Article II, of the Constitution to
be all that adversarial or irreconcilably inconsistent with the right of free expression. In any event, the
latter, being one of general application, must yield to the specific demands of the Constitution. The
freedom of expression concededly holds, it is true, a vantage point in hierarchy of constitutionally-
enshrined rights but, like all fundamental rights, it is not without limitations.
The case is not about a fight between the "rich" and the "poor" or between the "powerful" and the
"weak" in our society but it is to me a genuine attempt on the part of Congress and the Commission
on Elections to ensure that all candidates are given an equal chance to media coverage and thereby
be equally perceived as giving real life to the candidates’ right of free expression rather than being
viewed as an undue restriction of that freedom. The wisdom in the enactment of the law, i.e., that
which the legislature deems to be best in giving life to the Constitutional mandate, is not for the
Court to question; it is a matter that lies beyond the normal prerogatives of the Court to pass upon.87
This separate opinion is cogent for the purpose it was said. But it is not in point in this case.
The present petition does not involve a dispute between the rich and poor, or the powerful and weak,
on their equal opportunities for media coverage of candidates and their right to freedom of
expression. This case concerns the right of petitioners, who are non-candidates, to post the tarpaulin
in their private property, asan exercise of their right of free expression. Despite the invocation of the
political question doctrine by respondents, this court is not proscribed from deciding on the merits of
this case.
In Tañada v. Cuenco,88 this court previously elaborated on the concept of what constitutes a political
question:
What is generally meant, when it is said that a question is political, and not judicial, is that it is a
matter which is to be exercised by the people in their primary political capacity, or that it has been
specifically delegated to some other department or particular officer of the government,
withdiscretionary power to act.89 (Emphasis omitted)
It is not for this court to rehearse and re-enact political debates on what the text of the law should be.
In political forums, particularly the legislature, the creation of the textof the law is based on a general
discussion of factual circumstances, broadly construed in order to allow for general application by
the executive branch. Thus, the creation of the law is not limited by particular and specific facts that
affect the rights of certain individuals, per se.
Courts, on the other hand, rule on adversarial positions based on existing facts established on a
specific case-to-case basis, where parties affected by the legal provision seek the courts’
understanding of the law.
The complementary nature of the political and judicial branches of government is essential in order
to ensure that the rights of the general public are upheld at all times. In order to preserve this
balance, branches of government must afford due respectand deference for the duties and functions
constitutionally delegated to the other. Courts cannot rush to invalidate a law or rule. Prudence
dictates that we are careful not to veto political acts unless we can craft doctrine narrowly tailored to
the circumstances of the case.
The case before this court does not call for the exercise of prudence or modesty. There is no political
question. It can be acted upon by this court through the expanded jurisdiction granted to this court
through Article VIII, Section 1 of the Constitution.
A political question arises in constitutional issues relating to the powers or competence of different
agencies and departments of the executive or those of the legislature. The political question doctrine
is used as a defense when the petition asks this court to nullify certain acts that are exclusively
within the domain of their respective competencies, as provided by the Constitution or the law. In
such situation, presumptively, this court should act with deference. It will decline to void an act
unless the exercise of that power was so capricious and arbitrary so as to amount to grave abuse of
discretion.
The concept of a political question, however, never precludes judicial review when the act of a
constitutional organ infringes upon a fundamental individual or collective right. Even assuming
arguendo that the COMELEC did have the discretion to choose the manner of regulation of the
tarpaulin in question, it cannot do so by abridging the fundamental right to expression.
Marcos v. Manglapus90 limited the use of the political question doctrine:
When political questions are involved, the Constitution limits the determination to whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
the official whose action is being questioned. If grave abuse is not established, the Court will not
substitute its judgment for that of the official concerned and decide a matter which by its nature or by
law is for the latter alone to decide.91
How this court has chosen to address the political question doctrine has undergone an evolution
since the timethat it had been first invoked in Marcos v. Manglapus. Increasingly, this court has
taken the historical and social context of the case and the relevance of pronouncements of carefully
and narrowly tailored constitutional doctrines. This trend was followed in cases such as Daza v.
Singson92 and Coseteng v. Mitra Jr.93
Daza and Coseteng involved a question as to the application of Article VI, Section 18 of the 1987
Constitution involving the removal of petitioners from the Commission on Appointments. In times
past, this would have involved a quint essentially political question as it related to the dominance of
political parties in Congress. However, in these cases, this court exercised its power of judicial
review noting that the requirement of interpreting the constitutional provision involved the legality and
not the wisdom of a manner by which a constitutional duty or power was exercised. This approach
was again reiterated in Defensor Santiago v. Guingona, Jr.94
In Integrated Bar of the Philippines v. Zamora,95 this court declared again that the possible existence
ofa political question did not bar an examination of whether the exercise of discretion was done with
grave abuse of discretion. In that case, this court ruled on the question of whether there was grave
abuse of discretion in the President’s use of his power to call out the armed forces to prevent and
suppress lawless violence.
In Estrada v. Desierto,96 this court ruled that the legal question as to whether a former President
resigned was not a political question even if the consequences would be to ascertain the political
legitimacy of a successor President.
Many constitutional cases arise from political crises. The actors in such crises may use the
resolution of constitutional issues as leverage. But the expanded jurisdiction of this court now
mandates a duty for it to exercise its power of judicial review expanding on principles that may avert
catastrophe or resolve social conflict.
This court’s understanding of the political question has not been static or unbending. In Llamas v.
Executive Secretary Oscar Orbos,97 this court held:
While it is true that courts cannot inquire into the manner in which the President's discretionary
powers are exercised or into the wisdom for its exercise, it is also a settled rule that when the issue
involved concerns the validity of such discretionary powers or whether said powers are within the
limits prescribed by the Constitution, We will not decline to exercise our power of judicial review. And
such review does not constitute a modification or correction of the act of the President, nor does it
constitute interference with the functions of the President.98
The concept of judicial power in relation to the concept of the political question was discussed most
extensively in Francisco v. HRET.99 In this case, the House of Representatives arguedthat the
question of the validity of the second impeachment complaint that was filed against former Chief
Justice Hilario Davide was a political question beyond the ambit of this court. Former Chief Justice
Reynato Puno elaborated on this concept in his concurring and dissenting opinion:
To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in light of the new
Constitution which expanded the definition of judicial power as including "the duty of the courts of
justice to settle actual controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government." As well
observed by retired Justice Isagani Cruz, this expanded definition of judicial power considerably
constricted the scope of political question. He opined that the language luminously suggests that this
duty (and power) is available even against the executive and legislative departments including the
President and the Congress, in the exercise of their discretionary powers.100 (Emphasis in the
original, citations omitted)
Francisco also provides the cases which show the evolution of the political question, as applied in
the following cases:
In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes, held: The
present Constitution limits resort to the political question doctrine and broadens the scope of judicial
inquiry into areas which the Court,under previous constitutions, would have normally left to the
political departments to decide. x x x
In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither interposes
an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987
Constitution, although said provision by no means does away with the applicability of the principle in
appropriate cases." (Emphasis and italics supplied)
And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The
reason is that, even if we were to assume that the issue presented before us was political in nature,
we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us
that now covers, in proper cases, even the political question.x x x (Emphasis and italics supplied.)
....
In our jurisdiction, the determination of whether an issue involves a truly political and non-justiciable
question lies in the answer to the question of whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to
examine whether the branch or instrumentality of the government properly acted within such
limits.101 (Citations omitted)
As stated in Francisco, a political question will not be considered justiciable if there are no
constitutionally imposed limits on powers or functions conferred upon political bodies. Hence, the
existence of constitutionally imposed limits justifies subjecting the official actions of the body to the
scrutiny and review of this court.
In this case, the Bill of Rights gives the utmost deference to the right to free speech. Any instance
that this right may be abridged demands judicial scrutiny. It does not fall squarely into any doubt that
a political question brings.
I.E
Exhaustion of administrative remedies
Respondents allege that petitioners violated the principle of exhaustion of administrative remedies.
Respondents insist that petitioners should have first brought the matter to the COMELEC En Banc or
any of its divisions.102
Respondents point out that petitioners failed to comply with the requirement in Rule 65 that "there is
no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law."103 They add
that the proper venue to assail the validity of the assailed issuances was in the course of an
administrative hearing to be conducted by COMELEC.104 In the event that an election offense is filed
against petitioners for posting the tarpaulin, they claim that petitioners should resort to the remedies
prescribed in Rule 34 of the COMELEC Rules of Procedure.105
The argument on exhaustion of administrative remedies is not proper in this case.
Despite the alleged non-exhaustion of administrative remedies, it is clear that the controversy is
already ripe for adjudication. Ripeness is the "prerequisite that something had by then been
accomplished or performed by either branch [or in this case, organ of government] before a court
may come into the picture."106
Petitioners’ exercise of their rightto speech, given the message and their medium, had
understandable relevance especially during the elections. COMELEC’s letter threatening the filing of
the election offense against petitioners is already an actionable infringement of this right. The
impending threat of criminal litigation is enough to curtail petitioners’ speech.
In the context of this case, exhaustion of their administrative remedies as COMELEC suggested in
their pleadings prolongs the violation of their freedom of speech.
Political speech enjoys preferred protection within our constitutional order. In Chavez v.
Gonzales,107 Justice Carpio in a separate opinion emphasized: "[i]f everthere is a hierarchy of
protected expressions, political expression would occupy the highest rank, and among different
kinds of political expression, the subject of fair and honest elections would be at the
top."108 Sovereignty resides in the people.109 Political speech is a direct exercise of the sovereignty.
The principle of exhaustion of administrative remedies yields in order to protect this fundamental
right.
Even assuming that the principle of exhaustion of administrative remedies is applicable, the current
controversy is within the exceptions to the principle. In Chua v. Ang,110 this court held:
On the other hand, prior exhaustion of administrative remedies may be dispensed with and judicial
action may be validly resorted to immediately: (a) when there is a violation of due process; (b) when
the issue involved is purely a legal question; (c) when the administrative action is patently illegal
amounting to lack or excess of jurisdiction; (d) when there is estoppel on the part ofthe
administrative agency concerned; (e) when there is irreparable injury; (f) when the respondent is a
department secretary whose acts as analter ego of the President bear the implied and assumed
approval of the latter; (g) when to require exhaustion of administrative remedies would be
unreasonable; (h) when it would amount to a nullification of a claim; (i) when the subject matter is a
private land in land case proceedings; (j) whenthe rule does not provide a plain, speedy and
adequate remedy; or (k) when there are circumstances indicating the urgency of judicial
intervention."111 (Emphasis supplied, citation omitted)
The circumstances emphasized are squarely applicable with the present case. First, petitioners
allegethat the assailed issuances violated their right to freedom of expression and the principle of
separation of church and state. This is a purely legal question. Second, the circumstances of the
present case indicate the urgency of judicial intervention considering the issue then on the RH Law
as well as the upcoming elections. Thus, to require the exhaustion of administrative remedies in this
case would be unreasonable.
Time and again, we have held that this court "has the power to relax or suspend the rules or to
except a case from their operation when compelling reasons so warrant, or whenthe purpose of
justice requires it, [and when] [w]hat constitutes [as] good and sufficient cause that will merit
suspension of the rules is discretionary upon the court".112Certainly, this case of first impression
where COMELEC has threatenedto prosecute private parties who seek to participate in the elections
by calling attention to issues they want debated by the publicin the manner they feel would be
effective is one of those cases.
II
SUBSTANTIVE ISSUES
II.A
COMELEC had no legal basis to regulate expressions made by private citizens
Respondents cite the Constitution, laws, and jurisprudence to support their position that they had the
power to regulate the tarpaulin.113 However, all of these provisions pertain to candidates and political
parties. Petitioners are not candidates. Neither do theybelong to any political party. COMELEC does
not have the authority to regulate the enjoyment of the preferred right to freedom of expression
exercised by a non-candidate in this case.
II.A.1
First, respondents cite Article IX-C, Section 4 of the Constitution, which provides:
Section 4. The Commission may,during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities,
media of communication or information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any government-owned
or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible elections.114 (Emphasis supplied)
Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during the plebiscite for the
creation of the Cordillera Autonomous Region.116 Columnist Pablito V. Sanidad questioned the
provision prohibiting journalists from covering plebiscite issues on the day before and on plebiscite
day.117 Sanidad argued that the prohibition was a violation of the "constitutional guarantees of the
freedom of expression and of the press. . . ."118 We held that the "evil sought to be prevented by this
provision is the possibility that a franchise holder may favor or give any undue advantage to a
candidate in terms of advertising space or radio or television time."119 This court found that "[m]edia
practitioners exercising their freedom of expression during plebiscite periods are neither the
franchise holders nor the candidates[,]"120 thus, their right to expression during this period may not be
regulated by COMELEC.121
Similar to the media, petitioners in the case at bar are neither franchise holders nor candidates.
II.A.2
Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as follows:122
....
(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidates. (Emphasis supplied)
Based on the enumeration made on actsthat may be penalized, it will be inferred that this provision
only affects candidates.
Petitioners assail the "Notice to Remove Campaign Materials" issued by COMELEC. This was
followed bythe assailed letter regarding the "election propaganda material posted on the church
vicinity promoting for or against the candidates and party-list groups. . . ."123
Section 9 of the Fair Election Act124 on the posting of campaign materials only mentions "parties" and
"candidates":
Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and party-
list groups to erect common poster areas for their candidates in not more than ten (10) public places
such as plazas, markets, barangay centers and the like, wherein candidates can post, display or
exhibit election propaganda: Provided, That the size ofthe poster areas shall not exceed twelve (12)
by sixteen (16) feet or its equivalent. Independent candidates with no political parties may likewise
be authorized to erect common poster areas in not more than ten (10) public places, the size of
which shall not exceed four (4) by six (6) feet or its equivalent. Candidates may post any lawful
propaganda material in private places with the consent of the owner thereof, and in public places or
property which shall be allocated equitably and impartially among the candidates. (Emphasis
supplied)
Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and regulations implementing the
Fair Election Act, provides as follows:
SECTION 17. Posting of Campaign Materials. - Parties and candidates may post any lawful
campaign material in:
a. Authorized common poster areasin public places subject to the requirements and/or
limitations set forth in the next following section; and
b. Private places provided it has the consent of the owner thereof.
The posting of campaign materials in public places outside of the designated common poster areas
and those enumerated under Section 7 (g) of these Rules and the like is prohibited. Persons posting
the same shall be liable together with the candidates and other persons who caused the posting. It
will be presumed that the candidates and parties caused the posting of campaign materials outside
the common poster areas if they do not remove the same within three (3) days from notice which
shall be issued by the Election Officer of the city or municipality where the unlawful election
propaganda are posted or displayed.
Members of the PNP and other law enforcement agencies called upon by the Election Officeror
other officials of the COMELEC shall apprehend the violators caught in the act, and file the
appropriate charges against them. (Emphasis supplied)
Respondents considered the tarpaulin as a campaign material in their issuances. The above
provisions regulating the posting of campaign materials only apply to candidates and political parties,
and petitioners are neither of the two.
Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also states that these are
"allowed for all registered political parties, national, regional, sectoral parties or organizations
participating under the party-list elections and for all bona fide candidates seeking national and local
elective positions subject to the limitation on authorized expenses of candidates and political parties.
. . ." Section 6 of COMELEC Resolution No. 9615 provides for a similar wording. These provisions
show that election propaganda refers to matter done by or on behalf of and in coordination with
candidates and political parties. Some level of coordination with the candidates and political parties
for whom the election propaganda are released would ensure that these candidates and political
parties maintain within the authorized expenses limitation.
The tarpaulin was not paid for byany candidate or political party.125 There was no allegation that
petitioners coordinated with any of the persons named in the tarpaulin regarding its posting. On the
other hand, petitioners posted the tarpaulin as part of their advocacy against the RH Law.
Respondents also cite National Press Club v. COMELEC126 in arguing that its regulatory power under
the Constitution, to some extent, set a limit on the right to free speech during election period.127
National Press Club involved the prohibition on the sale and donation of space and time for political
advertisements, limiting political advertisements to COMELEC-designated space and time. This
case was brought by representatives of mass media and two candidates for office in the 1992
elections. They argued that the prohibition on the sale and donation of space and time for political
advertisements is tantamount to censorship, which necessarily infringes on the freedom of speech of
the candidates.128
This court upheld the constitutionality of the COMELEC prohibition in National Press Club. However,
this case does not apply as most of the petitioners were electoral candidates, unlike petitioners in
the instant case. Moreover, the subject matter of National Press Club, Section 11(b) of Republic Act
No. 6646,129 only refers to a particular kind of media such as newspapers, radio broadcasting, or
television.130 Justice Feliciano emphasized that the provision did not infringe upon the right of
reporters or broadcasters to air their commentaries and opinions regarding the candidates, their
qualifications, and program for government. Compared to Sanidadwherein the columnists lost their
ability to give their commentary on the issues involving the plebiscite, National Press Clubdoes not
involve the same infringement.
In the case at bar, petitioners lost their ability to give a commentary on the candidates for the 2013
national elections because of the COMELEC notice and letter. It was not merelya regulation on the
campaigns of candidates vying for public office. Thus, National Press Clubdoes not apply to this
case.
Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code,
defines an"election campaign" as follows:
....
(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote
the election or defeat of a particular candidate or candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees or other groups of persons for the
purpose of soliciting votes and/or undertaking any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or holding interviews for or against

the election of any candidate for public office;
(4) Publishing or distributing campaign literature or materials designed to support or oppose

the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.
The foregoing enumerated acts ifperformed for the purpose of enhancing the chances of aspirants
for nomination for candidacy to a public office by a political party, aggroupment, or coalition of
parties shall not be considered as election campaign or partisan election activity. Public expressions
or opinions or discussions of probable issues in a forthcoming electionor on attributes of or criticisms
against probable candidates proposed to be nominated in a forthcoming political party convention
shall not be construed as part of any election campaign or partisan political activity contemplated
under this Article. (Emphasis supplied)
True, there is no mention whether election campaign is limited only to the candidates and political
parties themselves. The focus of the definition is that the act must be "designed to promote the
election or defeat of a particular candidate or candidates to a public office."
In this case, the tarpaulin contains speech on a matter of public concern, that is, a statement of
either appreciation or criticism on votes made in the passing of the RH law. Thus, petitioners invoke
their right to freedom of expression.
II.B
The violation of the constitutional right
to freedom of speech and expression
Petitioners contend that the assailed notice and letter for the removal of the tarpaulin violate their
fundamental right to freedom of expression.
On the other hand, respondents contend that the tarpaulin is an election propaganda subject to their
regulation pursuant to their mandate under Article IX-C, Section 4 of the Constitution. Thus, the
assailed notice and letter ordering itsremoval for being oversized are valid and constitutional.131
II.B.1
Fundamental to the consideration of this issue is Article III, Section 4 of the Constitution:
Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of
grievances.132
No law. . .
While it is true that the present petition assails not a law but an opinion by the COMELEC Law
Department, this court has applied Article III, Section 4 of the Constitution even to governmental
acts.
In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119 of the Revised
Ordinances of 1927 of Manila for the public meeting and assembly organized by petitioner
Primicias.134 Section 1119 requires a Mayor’s permit for the use of streets and public places for
purposes such as athletic games, sports, or celebration of national holidays.135 What was questioned
was not a law but the Mayor’s refusal to issue a permit for the holding of petitioner’s public
meeting.136 Nevertheless, this court recognized the constitutional right to freedom of speech, to
peaceful assembly and to petition for redress of grievances, albeit not absolute,137 and the petition for
mandamus to compel respondent Mayor to issue the permit was granted.138
In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En Banc Resolution
No. 98-1419 where the COMELEC resolved to approve the issuance of a restraining order to stop
ABS-CBN from conducting exit surveys.139 The right to freedom of expression was similarly upheld in
this case and, consequently, the assailed resolution was nullified and set aside.140
. . . shall be passed abridging. . .
All regulations will have an impact directly or indirectly on expression. The prohibition against the
abridgment of speech should not mean an absolute prohibition against regulation. The primary and
incidental burden on speech must be weighed against a compelling state interest clearly allowed in
the Constitution. The test depends on the relevant theory of speech implicit in the kind of society
framed by our Constitution.
. . . of expression. . .
Our Constitution has also explicitly included the freedom of expression, separate and in addition to
the freedom of speech and of the press provided in the US Constitution. The word "expression" was
added in the 1987 Constitution by Commissioner Brocka for having a wider scope:
MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On Section 9, page 2, line 29,
it says: "No law shall be passed abridging the freedom of speech." I would like to recommend to the
Committee the change of the word "speech" to EXPRESSION; or if not, add the words AND
EXPRESSION after the word "speech," because it is more expansive, it has a wider scope, and it
would refer to means of expression other than speech.
THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?
FR. BERNAS: "Expression" is more broad than speech. We accept it.
MR. BROCKA: Thank you.
THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?
FR. BERNAS: Yes.
THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence) The Chair hears none;
the amendment is approved.
FR. BERNAS: So, that provision will now read: "No law shall be passed abridging the freedom of
speech, expression or of the press . . . ."141 Speech may be said to be inextricably linked to freedom
itself as "[t]he right to think is the beginning of freedom, and speech must be protected from the
government because speech is the beginning of thought."142
II.B.2
Communication is an essential outcome of protected speech.143 Communication exists when "(1) a

speaker, seeking to signal others, uses conventional actions because he orshe reasonably believes
that such actions will be taken by the audience in the manner intended; and (2) the audience so
takes the actions."144 "[I]n communicative action[,] the hearer may respond to the claims by . . . either
accepting the speech act’s claims or opposing them with criticism or requests for justification."145
Speech is not limited to vocal communication. "[C]onduct is treated as a form of speech sometimes
referred to as ‘symbolic speech[,]’"146 such that "‘when ‘speech’ and ‘nonspeech’ elements are
combined in the same course of conduct,’ the ‘communicative element’ of the conduct may be
‘sufficient to bring into play the [right to freedom of expression].’"147
The right to freedom of expression, thus, applies to the entire continuum of speech from utterances
made to conduct enacted, and even to inaction itself as a symbolic manner of communication.
In Ebralinag v. The Division Superintendent of Schools of Cebu,148 students who were members of
the religious sect Jehovah’s Witnesses were to be expelled from school for refusing to salute the
flag, sing the national anthem, and recite the patriotic pledge.149 In his concurring opinion, Justice
Cruz discussed how the salute is a symbolic manner of communication and a valid form of
expression.150 He adds that freedom of speech includes even the right to be silent:
Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of Rights that
guarantees to the individual the liberty to utter what is in his mind also guarantees to him the liberty
not to utter what is not in his mind. The salute is a symbolic manner of communication that conveys
its messageas clearly as the written or spoken word. As a valid form of expression, it cannot be
compelled any more than it can be prohibited in the face of valid religious objections like those
raised in this petition. To impose it on the petitioners is to deny them the right not to speak when
their religion bids them to be silent. This coercion of conscience has no place in the free society.
The democratic system provides for the accommodation of diverse ideas, including the
unconventional and even the bizarre or eccentric. The will of the majority prevails, but it cannot
regiment thought by prescribing the recitation by rote of its opinions or proscribing the assertion of
unorthodox or unpopular views as inthis case. The conscientious objections of the petitioners, no
less than the impatience of those who disagree with them, are protected by the Constitution. The
State cannot make the individual speak when the soul within rebels.151
Even before freedom "of expression" was included in Article III, Section 4 of the present
Constitution,this court has applied its precedent version to expressions other than verbal utterances.
In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to the classification of the
motion picture "Kapit sa Patalim" as "For Adults Only." They contend that the classification "is
without legal and factual basis and is exercised as impermissible restraint of artistic
expression."153 This court recognized that "[m]otion pictures are important both as a medium for the
communication of ideas and the expression of the artistic impulse."154 It adds that "every writer,actor,
or producer, no matter what medium of expression he may use, should be freed from the
censor."155 This court found that "[the Board’s] perception of what constitutes obscenity appears to be
unduly restrictive."156 However, the petition was dismissed solely on the ground that there were not
enough votes for a ruling of grave abuse of discretion in the classification made by the Board.157
II.B.3
Size does matter
The form of expression is just as important as the information conveyed that it forms part of the
expression. The present case is in point.
It is easy to discern why size matters.
First, it enhances efficiency in communication. A larger tarpaulin allows larger fonts which make it
easier to view its messages from greater distances. Furthermore, a larger tarpaulin makes it easier
for passengers inside moving vehicles to read its content. Compared with the pedestrians, the
passengers inside moving vehicles have lesser time to view the content of a tarpaulin. The larger the
fonts and images, the greater the probability that it will catch their attention and, thus, the greater the
possibility that they will understand its message.
Second, the size of the tarpaulin may underscore the importance of the message to the reader.
From an ordinary person’s perspective, those who post their messages in larger fonts care more
about their message than those who carry their messages in smaller media. The perceived
importance given by the speakers, in this case petitioners, to their cause is also part of the message.
The effectivity of communication sometimes relies on the emphasis put by the speakers and onthe
credibility of the speakers themselves. Certainly, larger segments of the public may tend to be more
convinced of the point made by authoritative figures when they make the effort to emphasize their
messages.
Third, larger spaces allow for more messages. Larger spaces, therefore, may translate to more
opportunities to amplify, explain, and argue points which the speakers might want to communicate.
Rather than simply placing the names and images of political candidates and an expression of
support, larger spaces can allow for brief but memorable presentations of the candidates’ platforms
for governance. Larger spaces allow for more precise inceptions of ideas, catalyze reactions to
advocacies, and contribute more to a more educated and reasoned electorate. A more educated
electorate will increase the possibilities of both good governance and accountability in our
government.
These points become more salient when it is the electorate, not the candidates or the political
parties, that speaks. Too often, the terms of public discussion during elections are framed and kept
hostage by brief and catchy but meaningless sound bites extolling the character of the candidate.
Worse, elections sideline political arguments and privilege the endorsement by celebrities. Rather
than provide obstacles to their speech, government should in fact encourage it. Between the
candidates and the electorate, the latter have the better incentive to demand discussion of the more
important issues. Between the candidates and the electorate, the former have better incentives to
avoid difficult political standpoints and instead focus on appearances and empty promises.
Large tarpaulins, therefore, are not analogous to time and place.158 They are fundamentally part of
expression protected under Article III, Section 4 of the Constitution.
II.B.4
There are several theories and schools of thought that strengthen the need to protect the basic right
to freedom of expression.
First, this relates to the right ofthe people to participate in public affairs, including the right to criticize
government actions.
Proponents of the political theory on "deliberative democracy" submit that "substantial, open, [and]
ethical dialogue isa critical, and indeed defining, feature of a good polity."159 This theory may be
considered broad, but it definitely "includes [a] collective decision making with the participation of all
who will beaffected by the decision."160 It anchors on the principle that the cornerstone of every
democracy is that sovereignty resides in the people.161 To ensure order in running the state’s affairs,
sovereign powers were delegated and individuals would be elected or nominated in key government
positions to represent the people. On this note, the theory on deliberative democracy may evolve to
the right of the people to make government accountable. Necessarily, this includes the right of the
people to criticize acts made pursuant to governmental functions.
Speech that promotes dialogue on publicaffairs, or airs out grievances and political discontent,
should thus be protected and encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable
government; that the path of safety lies in the opportunity to discuss freely supposed grievances and
proposed remedies."162
In this jurisdiction, this court held that "[t]he interest of society and the maintenance of good
government demand a full discussion of public affairs."163 This court has, thus, adopted the principle
that "debate on public issues should be uninhibited, robust,and wide open . . . [including even]
unpleasantly sharp attacks on government and public officials."164
Second, free speech should be encouraged under the concept of a market place of ideas. This
theory was articulated by Justice Holmes in that "the ultimate good desired is better reached by [the]
free trade in ideas:"165
When men have realized that time has upset many fighting faiths, they may come to believe even
more than they believe the very foundations of their own conduct that the ultimate good desired is
better reached by free trade in ideas - that the best test of truth is the power of the thought to get
itself accepted in the competition of the market, and that truth is the only ground upon which their
wishes safely can be carried out.166
The way it works, the exposure to the ideas of others allows one to "consider, test, and develop their
own conclusions."167 A free, open, and dynamic market place of ideas is constantly shaping new
ones. This promotes both stability and change where recurring points may crystallize and weak ones
may develop. Of course, free speech is more than the right to approve existing political beliefs and
economic arrangements as it includes, "[t]o paraphrase Justice Holmes, [the] freedom for the
thought that we hate, no less than for the thought that agrees with us."168 In fact, free speech may
"best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger."169 It is in this context that we should guard
against any curtailment of the people’s right to participate in the free trade of ideas.
Third, free speech involves self-expression that enhances human dignity. This right is "a means of
assuring individual self-fulfillment,"170 among others. In Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills Co., Inc,171 this court discussed as follows:
The rights of free expression, free assembly and petition, are not only civil rights but also political
rights essential to man's enjoyment of his life, to his happiness and to his full and complete
fulfillment.Thru these freedoms the citizens can participate not merely in the periodic establishment
of the government through their suffrage but also in the administration of public affairs as well as in
the discipline of abusive public officers. The citizen is accorded these rights so that he can appeal to
the appropriate governmental officers or agencies for redress and protection as well as for the
imposition of the lawful sanctions on erring public officers and employees.172 (Emphasis supplied)
Fourth, expression is a marker for group identity. For one, "[v]oluntary associations perform [an]
important democratic role [in providing] forums for the development of civil skills, for deliberation,
and for the formation of identity and community spirit[,] [and] are largely immune from [any]
governmental interference."173 They also "provide a buffer between individuals and the state - a free
space for the development of individual personality, distinct group identity, and dissident ideas - and
a potential source of opposition to the state."174 Free speech must be protected as the vehicle to find
those who have similar and shared values and ideals, to join together and forward common goals.
Fifth, the Bill of Rights, free speech included, is supposed to "protect individuals and minorities
against majoritarian abuses perpetrated through [the] framework [of democratic
governance]."175 Federalist framers led by James Madison were concerned about two potentially
vulnerable groups: "the citizenry at large - majorities - who might be tyrannized or plundered by
despotic federal officials"176 and the minorities who may be oppressed by "dominant factions of the
electorate [that] capture [the] government for their own selfish ends[.]"177 According to Madison, "[i]t is
of great importance in a republic not only to guard the society against the oppression of its rulers, but
to guard one part of the society against the injustice of the other part."178 We should strive to ensure
that free speech is protected especially in light of any potential oppression against those who find
themselves in the fringes on public issues.
Lastly, free speech must be protected under the safety valve theory.179 This provides that "nonviolent
manifestations of dissent reduce the likelihood of violence[.]"180 "[A] dam about to burst . . . resulting
in the ‘banking up of a menacing flood of sullen anger behind the walls of restriction’"181 has been
used to describe the effect of repressing nonviolent outlets.182 In order to avoid this situation and
prevent people from resorting to violence, there is a need for peaceful methods in making
passionate dissent. This includes "free expression and political participation"183 in that they can "vote
for candidates who share their views, petition their legislatures to [make or] change laws, . . .
distribute literature alerting other citizens of their concerns[,]"184 and conduct peaceful rallies and
other similar acts.185 Free speech must, thus, be protected as a peaceful means of achieving one’s
goal, considering the possibility that repression of nonviolent dissent may spill over to violent means
just to drive a point.
II.B.5
Every citizen’s expression with political consequences enjoys a high degree of protection.
Respondents argue that the tarpaulinis election propaganda, being petitioners’ way of endorsing
candidates who voted against the RH Law and rejecting those who voted for it.186 As such, it is
subject to regulation by COMELEC under its constitutional mandate.187 Election propaganda is
defined under Section 1(4) of COMELEC Resolution No. 9615 as follows: SECTION 1. Definitions . .
.
....
4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted,
published, printed, displayed or exhibited, in any medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other symbol or graphic representation that is capable of
being associated with a candidate or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the election of the said candidate or
candidates to a public office. In broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped announcements, teasers, and
other forms of advertising messages or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal opinion, that appear on any
Internet website, including, but not limited to, social networks, blogging sites, and micro-blogging
sites, in return for consideration, or otherwise capable of pecuniary estimation.
On the other hand, petitioners invoke their "constitutional right to communicate their opinions, views
and beliefs about issues and candidates."188 They argue that the tarpaulin was their statement of
approval and appreciation of the named public officials’ act of voting against the RH Law, and their
criticism toward those who voted in its favor.189It was "part of their advocacy campaign against the
RH Law,"190 which was not paid for by any candidate or political party.191 Thus, "the questioned orders
which . . . effectively restrain[ed] and curtail[ed] [their] freedom of expression should be declared
unconstitutional and void."192
This court has held free speech and other intellectual freedoms as "highly ranked in our scheme of
constitutional values."193 These rights enjoy precedence and primacy.194 In Philippine Blooming Mills,
this court discussed the preferred position occupied by freedom of expression:
Property and property rights can belost thru prescription; but human rights are imprescriptible. If
human rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to
limit the power of government and ceases to be an efficacious shield against the tyranny of officials,
of majorities, ofthe influential and powerful, and of oligarchs - political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred
position as they are essential to the preservation and vitality of our civil and political institutions; and
such priority "gives these liberties the sanctity and the sanction not permitting dubious
intrusions."195 (Citations omitted)
This primordial right calls for utmost respect, more so "when what may be curtailed is the
dissemination of information to make more meaningful the equally vital right of suffrage."196 A similar
idea appeared in our jurisprudence as early as 1969, which was Justice Barredo’s concurring and
dissenting opinion in Gonzales v. COMELEC:197
I like to reiterate over and over, for it seems this is the fundamental point others miss, that genuine
democracy thrives only where the power and right of the people toelect the men to whom they would
entrust the privilege to run the affairs of the state exist. In the language of the declaration of
principles of our Constitution, "The Philippines is a republican state. Sovereignty resides in the
people and all government authority emanates from them" (Section 1, Article II). Translating this
declaration into actuality, the Philippines is a republic because and solely because the people in it
can be governed only by officials whom they themselves have placed in office by their votes. And in
it is on this cornerstone that I hold it tobe self-evident that when the freedoms of speech, press and
peaceful assembly and redress of grievances are being exercised in relation to suffrage or asa
means to enjoy the inalienable right of the qualified citizen to vote, they are absolute and timeless. If
our democracy and republicanism are to be worthwhile, the conduct of public affairs by our officials
must be allowed to suffer incessant and unabating scrutiny, favorable or unfavorable, everyday and
at all times. Every holder of power in our government must be ready to undergo exposure any
moment of the day or night, from January to December every year, as it is only in this way that he
can rightfully gain the confidence of the people. I have no patience for those who would regard
public dissection of the establishment as an attribute to be indulged by the people only at certain
periods of time. I consider the freedoms of speech, press and peaceful assembly and redress of
grievances, when exercised in the name of suffrage, as the very means by which the right itself to
vote can only be properly enjoyed.It stands to reason therefore, that suffrage itself would be next to
useless if these liberties cannot be untrammelled [sic] whether as to degree or time.198 (Emphasis
supplied)
Not all speech are treated the same. In Chavez v. Gonzales, this court discussed that some types of
speech may be subject to regulation:
Some types of speech may be subjected to some regulation by the State under its pervasive police
power, in order that it may not be injurious to the equal right of others or those of the community or
society. The difference in treatment is expected because the relevant interests of one type of
speech, e.g., political speech, may vary from those of another, e.g., obscene speech.
Distinctionshave therefore been made in the treatment, analysis, and evaluation ofthe permissible
scope of restrictions on various categories of speech. We have ruled, for example, that in our
jurisdiction slander or libel, lewd and obscene speech, as well as "fighting words" are not entitled to
constitutional protection and may be penalized.199 (Citations omitted)
We distinguish between politicaland commercial speech. Political speech refers to speech "both
intended and received as a contribution to public deliberation about some issue,"200 "foster[ing]
informed and civicminded deliberation."201 On the other hand, commercial speech has been defined
as speech that does "no more than propose a commercial transaction."202 The expression resulting
from the content of the tarpaulin is, however, definitely political speech. In Justice Brion’s dissenting
opinion, he discussed that "[t]he content of the tarpaulin, as well as the timing of its posting, makes it
subject of the regulations in RA 9006 and Comelec Resolution No. 9615."203 He adds that "[w]hile
indeed the RH issue, by itself,is not an electoralmatter, the slant that the petitioners gave the issue
converted the non-election issue into a live election one hence, Team Buhay and Team Patay and
the plea to support one and oppose the other."204
While the tarpaulin may influence the success or failure of the named candidates and political
parties, this does not necessarily mean it is election propaganda. The tarpaulin was not paid for or
posted "in return for consideration" by any candidate, political party, or party-list group.
The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or the rules and
regulations implementing Republic Act No. 9006 as an aid to interpret the law insofar as the facts of
this case requires, states:
4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted,
published, printed, displayed or exhibited, in any medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other symbol or graphic representation that is capable of
being associated with a candidate or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the election of the said candidate or
candidates to a public office. In broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped announcements, teasers, and
other forms of advertising messages or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal opinion, that appear on any
Internet website, including, but not limited to, social networks, blogging sites, and micro-blogging
sites, in return for consideration, or otherwise capable of pecuniary estimation. (Emphasis supplied)
It is clear that this paragraph suggests that personal opinions are not included, while sponsored
messages are covered.
Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615 states:
SECTION 1. Definitions - As used in this Resolution:
1. The term "election campaign" or "partisan political activity" refers to an act designed to promote
the election or defeat of a particular candidate or candidates to a public office, and shall include any
of the following:
....
Personal opinions, views, and preferences for candidates, contained in blogs shall not be considered
acts of election campaigning or partisan politicalactivity unless expressed by government officials in
the Executive Department, the Legislative Department, the Judiciary, the Constitutional
Commissions, and members of the Civil Service.
In any event, this case does not refer to speech in cyberspace, and its effects and parameters
should be deemed narrowly tailored only in relation to the facts and issues in this case. It also
appears that such wording in COMELEC Resolution No. 9615 does not similarly appear in Republic
Act No. 9006, the law it implements.
We should interpret in this manner because of the value of political speech.
As early as 1918, in United States v. Bustos,205 this court recognized the need for full discussion of
public affairs. We acknowledged that free speech includes the right to criticize the conduct of public
men:
The interest of society and the maintenance of good government demand a full discussion of public
affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of official dom. Men in public life may
suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear
conscience. A public officer must not be too thin-skinned with reference to comment upon his official
acts. Only thus can the intelligence and dignity of the individual be exalted.206
Subsequent jurisprudence developed the right to petition the government for redress of grievances,
allowing for criticism, save for some exceptions.207 In the 1951 case of Espuelas v. People,208 this
court noted every citizen’s privilege to criticize his or her government, provided it is "specific and
therefore constructive, reasoned or tempered, and not a contemptuous condemnation of the entire
government set-up."209
The 1927 case of People v. Titular210 involved an alleged violation of the Election Law provision
"penaliz[ing] the anonymous criticism of a candidate by means of posters or circulars."211 This court
explained that it is the poster’s anonymous character that is being penalized.212 The ponente adds
that he would "dislike very muchto see this decision made the vehicle for the suppression of public
opinion."213
In 1983, Reyes v. Bagatsing214 discussed the importance of allowing individuals to vent their views.
According to this court, "[i]ts value may lie in the fact that there may be something worth hearing
from the dissenter [and] [t]hat is to ensurea true ferment of ideas."215
Allowing citizens to air grievances and speak constructive criticisms against their government
contributes to every society’s goal for development. It puts forward matters that may be changed for
the better and ideas that may be deliberated on to attain that purpose. Necessarily, it also makes the
government accountable for acts that violate constitutionally protected rights.
In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act No. 6646, which prohibits mass
media from selling print space and air time for campaign except to the COMELEC, to be a
democracy-enhancing measure.216This court mentioned how "discussion of public issues and debate
on the qualifications of candidates in an election are essential to the proper functioning of the
government established by our Constitution."217
As pointed out by petitioners, "speech serves one of its greatest public purposes in the context of
elections when the free exercise thereof informs the people what the issues are, and who are
supporting what issues."218 At the heart of democracy is every advocate’s right to make known what
the people need to know,219 while the meaningful exercise of one’s right of suffrage includes the right
of every voter to know what they need to know in order to make their choice.
Thus, in Adiong v. COMELEC,220 this court discussed the importance of debate on public issues, and
the freedom of expression especially in relation to information that ensures the meaningful exercise
of the right of suffrage:
We have adopted the principle that debate on public issues should be uninhibited, robust, and wide
open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on
government and public officials. Too many restrictions will deny to people the robust, uninhibited,
and wide open debate, the generating of interest essential if our elections will truly be free, clean and
honest.
We have also ruled that the preferred freedom of expression calls all the more for the utmost respect
when what may be curtailed is the dissemination of information to make more meaningful the equally
vital right of suffrage.221(Emphasis supplied, citations omitted)
Speech with political consequences isat the core of the freedom of expression and must be
protected by this court.
Justice Brion pointed out that freedomof expression "is not the god of rights to which all other rights
and even government protection of state interest must bow."222
The right to freedom of expression isindeed not absolute. Even some forms of protected speech are
still subjectto some restrictions. The degree of restriction may depend on whether the regulation is
content-based or content-neutral.223 Content-based regulations can either be based on the viewpoint
of the speaker or the subject of the expression.
II.B.6
Content-based regulation
COMELEC contends that the order for removal of the tarpaulin is a content-neutral regulation. The
order was made simply because petitioners failed to comply with the maximum size limitation for
lawful election propaganda.224
On the other hand, petitioners argue that the present size regulation is content-based as it applies
only to political speech and not to other forms of speech such as commercial speech.225 "[A]ssuming
arguendo that the size restriction sought to be applied . . . is a mere time, place, and manner
regulation, it’s still unconstitutional for lack of a clear and reasonable nexus with a constitutionally
sanctioned objective."226
The regulation may reasonably be considered as either content-neutral or content-

based.227 Regardless, the disposition of this case will be the same. Generally, compared with other
forms of speech, the proposed speech is content-based.
As pointed out by petitioners, the interpretation of COMELEC contained in the questioned order
applies only to posters and tarpaulins that may affect the elections because they deliver opinions
that shape both their choices. It does not cover, for instance, commercial speech.
Worse, COMELEC does not point to a definite view of what kind of expression of non-candidates will
be adjudged as "election paraphernalia." There are no existing bright lines to categorize speech as
election-related and those that are not. This is especially true when citizens will want to use their
resources to be able to raise public issues that should be tackled by the candidates as what has
happened in this case. COMELEC’s discretion to limit speech in this case is fundamentally
unbridled.
Size limitations during elections hit ata core part of expression. The content of the tarpaulin is not
easily divorced from the size of its medium.
Content-based regulation bears a heavy presumption of invalidity, and this court has used the clear
and present danger rule as measure.228 Thus, in Chavez v. Gonzales:
A content-based regulation, however, bears a heavy presumption of invalidity and is measured

against the clear and present danger rule. The latter will pass constitutional muster only if justified by
a compelling reason, and the restrictions imposedare neither overbroad nor vague.229 (Citations
omitted)
Under this rule, "the evil consequences sought to be prevented must be substantive, ‘extremely
serious and the degree of imminence extremely high.’"230 "Only when the challenged act has
overcome the clear and present danger rule will it pass constitutional muster, with the government
having the burden of overcoming the presumed unconstitutionality."231
Even with the clear and present danger test, respondents failed to justify the regulation. There is no
compelling and substantial state interest endangered by the posting of the tarpaulinas to justify
curtailment of the right of freedom of expression. There is no reason for the state to minimize the
right of non-candidate petitioners to post the tarpaulin in their private property. The size of the
tarpaulin does not affect anyone else’s constitutional rights.
Content-based restraint or censorship refers to restrictions "based on the subject matter of the
utterance or speech."232 In contrast, content-neutral regulation includes controls merely on the
incidents of the speech such as time, place, or manner of the speech.233
This court has attempted to define "content-neutral" restraints starting with the 1948 case of
Primicias v. Fugoso.234The ordinance in this case was construed to grant the Mayor discretion only to
determine the public places that may be used for the procession ormeeting, but not the power to
refuse the issuance of a permit for such procession or meeting.235 This court explained that free
speech and peaceful assembly are "not absolute for it may be so regulated that it shall not
beinjurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the
community or society."236
The earlier case of Calalang v. Williams237 involved the National Traffic Commission resolution that
prohibited the passing of animal-drawn vehicles along certain roads at specific hours.238 This court
similarly discussed police power in that the assailed rules carry outthe legislative policy that "aims to
promote safe transit upon and avoid obstructions on national roads, in the interest and convenience
of the public."239
As early as 1907, United States v. Apurado240 recognized that "more or less disorder will mark the
public assembly of the people to protest against grievances whether real or imaginary, because on
such occasions feeling is always wrought to a high pitch of excitement. . . ."241 It is with this backdrop
that the state is justified in imposing restrictions on incidental matters as time, place, and manner of
the speech.
In the landmark case of Reyes v. Bagatsing, this court summarized the steps that permit applicants
must follow which include informing the licensing authority ahead of time as regards the date, public
place, and time of the assembly.242 This would afford the public official time to inform applicants if
there would be valid objections, provided that the clear and present danger test is the standard used
for his decision and the applicants are given the opportunity to be heard.243 This ruling was practically
codified in Batas Pambansa No. 880, otherwise known as the Public Assembly Act of 1985.
Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid content-neutral
regulation. In the 2006 case of Bayan v. Ermita,244 this court discussed how Batas Pambansa No.
880 does not prohibit assemblies but simply regulates their time, place, and manner.245 In 2010, this
court found in Integrated Bar of the Philippines v. Atienza246 that respondent Mayor Atienza
committed grave abuse of discretion when he modified the rally permit by changing the venue from
Mendiola Bridge to Plaza Miranda without first affording petitioners the opportunity to be heard.247
We reiterate that the regulation involved at bar is content-based. The tarpaulin content is not easily
divorced from the size of its medium.
II.B.7
Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing a size limit for
tarpaulins are content-neutral regulations as these "restrict the mannerby which speech is relayed
but not the content of what is conveyed."248
If we apply the test for content-neutral regulation, the questioned acts of COMELEC will not pass the
three requirements for evaluating such restraints on freedom of speech.249 "When the speech
restraints take the form of a content-neutral regulation, only a substantial governmental interest is
required for its validity,"250 and it is subject only to the intermediate approach.251
This intermediate approach is based on the test that we have prescribed in several cases.252 A
content-neutral government regulation is sufficiently justified:
[1] if it is within the constitutional power of the Government; [2] if it furthers an important or
substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of
free expression; and [4] if the incident restriction on alleged [freedom of speech & expression] is no
greater than is essential to the furtherance of that interest.253
On the first requisite, it is not within the constitutional powers of the COMELEC to regulate the
tarpaulin. As discussed earlier, this is protected speech by petitioners who are non-candidates. On
the second requirement, not only must the governmental interest be important or substantial, it must
also be compelling as to justify the restrictions made.
Compelling governmental interest would include constitutionally declared principles. We have held,
for example, that "the welfare of children and the State’s mandate to protect and care for them, as
parens patriae,254 constitute a substantial and compelling government interest in regulating . . .
utterances in TV broadcast."255
Respondent invokes its constitutional mandate to ensure equal opportunity for public information
campaigns among candidates in connection with the holding of a free, orderly, honest, peaceful, and
credible election.256
Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are necessary to ensure
equality of public information campaigns among candidates, as allowing posters with different sizes
gives candidates and their supporters the incentive to post larger posters[,] [and] [t]his places
candidates with more money and/or with deep-pocket supporters at an undue advantage against
candidates with more humble financial capabilities."257
First, Adiong v. COMELEC has held that this interest is "not as important as the right of [a private
citizen] to freely express his choice and exercise his right of free speech."258 In any case, faced with
both rights to freedom of speech and equality, a prudent course would be to "try to resolve the
tension in a way that protects the right of participation."259
Second, the pertinent election lawsrelated to private property only require that the private property
owner’s consent be obtained when posting election propaganda in the property.260 This is consistent
with the fundamental right against deprivation of property without due process of law.261 The present
facts do not involve such posting of election propaganda absent consent from the property owner.
Thus, this regulation does not apply in this case.
Respondents likewise cite the Constitution262 on their authority to recommend effective measures to
minimize election spending. Specifically, Article IX-C, Section 2(7) provides:
....
(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidates. (Emphasis supplied) This
does not qualify as a compelling and substantial government interest to justify regulation of the
preferred right to freedom of expression.
The assailed issuances for the removal of the tarpaulin are based on the two feet (2’) by three feet
(3’) size limitation under Section 6(c) of COMELEC Resolution No. 9615. This resolution implements
the Fair Election Act that provides for the same size limitation.263
This court held in Adiong v. COMELEC that "[c]ompared to the paramount interest of the State in
guaranteeing freedom of expression, any financial considerations behind the regulation are of
marginal significance."264 In fact, speech with political consequences, as in this case, should be
encouraged and not curtailed. As petitioners pointed out, the size limitation will not serve the
objective of minimizing election spending considering there is no limit on the number of tarpaulins
that may be posted.265
The third requisite is likewise lacking. We look not only at the legislative intent or motive in imposing
the restriction, but more so at the effects of such restriction, if implemented. The restriction must not
be narrowly tailored to achieve the purpose. It must be demonstrable. It must allow alternative
avenues for the actor to make speech.
In this case, the size regulation is not unrelated to the suppression of speech. Limiting the maximum
sizeof the tarpaulin would render ineffective petitioners’ message and violate their right to exercise
freedom of expression.
The COMELEC’s act of requiring the removal of the tarpaulin has the effect of dissuading
expressions with political consequences. These should be encouraged, more so when exercised to
make more meaningful the equally important right to suffrage.
The restriction in the present case does not pass even the lower test of intermediate scrutiny for
content-neutral regulations.
The action of the COMELEC in thiscase is a strong deterrent to further speech by the electorate.
Given the stature of petitioners and their message, there are indicators that this will cause a "chilling
effect" on robust discussion during elections.
The form of expression is just as important as the message itself. In the words of Marshall McLuhan,
"the medium is the message."266 McLuhan’s colleague and mentor Harold Innis has earlier asserted
that "the materials on which words were written down have often counted for more than the words
themselves."267
III
Freedom of expression and equality
III.A
The possibility of abuse
Of course, candidates and political parties do solicit the help of private individuals for the
endorsement of their electoral campaigns.
On the one extreme, this can take illicit forms such as when endorsement materials in the form of
tarpaulins, posters, or media advertisements are made ostensibly by "friends" but in reality are really
paid for by the candidate or political party. This skirts the constitutional value that provides for equal
opportunities for all candidates.
However, as agreed by the parties during the oral arguments in this case, this is not the situation
that confronts us. In such cases, it will simply be a matter for investigation and proof of fraud on the
part of the COMELEC.
The guarantee of freedom of expression to individuals without any relationship to any political
candidate should not be held hostage by the possibility of abuse by those seeking to be elected. It is
true that there can be underhanded, covert, or illicit dealings so as to hide the candidate’s real levels
of expenditures. However, labelling all expressions of private parties that tend to have an effect on
the debate in the elections as election paraphernalia would be too broad a remedy that can stifle
genuine speech like in this case. Instead, to address this evil, better and more effective enforcement
will be the least restrictive means to the fundamental freedom.
On the other extreme, moved by the credentials and the message of a candidate, others will spend
their own resources in order to lend support for the campaigns. This may be without agreement
between the speaker and the candidate or his or her political party. In lieu of donating funds to the
campaign, they will instead use their resources directly in a way that the candidate or political party
would have doneso. This may effectively skirt the constitutional and statutory limits of campaign
spending.
Again, this is not the situation in this case.
The message of petitioners in thiscase will certainly not be what candidates and political parties will
carry in their election posters or media ads. The message of petitioner, taken as a whole, is an
advocacy of a social issue that it deeply believes. Through rhetorical devices, it communicates the
desire of Diocese that the positions of those who run for a political position on this social issue be
determinative of how the public will vote. It primarily advocates a stand on a social issue; only
secondarily — even almost incidentally — will cause the election or non-election of a candidate.
The twin tarpaulins consist of satire of political parties. Satire is a "literary form that employs such
devices as sarcasm, irony and ridicule to deride prevailing vices or follies,"268 and this may target any
individual or group in society, private and government alike. It seeks to effectively communicate a
greater purpose, often used for "political and social criticism"269 "because it tears down facades,
deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly democratic than to
have the high-and-mighty lampooned and spoofed."270 Northrop Frye, wellknown in this literary field,
claimed that satire had two defining features: "one is wit or humor founded on fantasy or a sense of
the grotesque and absurd, the other is an object of attack."271 Thus, satire frequently uses
exaggeration, analogy, and other rhetorical devices.
The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead individuals nor could
the Archbishop of the Diocese of Bacolod have intended it to mean that the entire plan of the
candidates in his list was to cause death intentionally. The tarpaulin caricatures political parties and
parodies the intention of those in the list. Furthermore, the list of "Team Patay" is juxtaposed with the
list of "Team Buhay" that further emphasizes the theme of its author: Reproductive health is an
important marker for the church of petitioners to endorse.
The messages in the tarpaulins are different from the usual messages of candidates. Election
paraphernalia from candidates and political parties are more declarative and descriptive and contain
no sophisticated literary allusion to any social objective. Thus, they usually simply exhort the public
to vote for a person with a brief description of the attributes of the candidate. For example "Vote for
[x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba kami sa Makati."
This court’s construction of the guarantee of freedom of expression has always been wary of
censorship or subsequent punishment that entails evaluation of the speaker’s viewpoint or the
content of one’s speech. This is especially true when the expression involved has political
consequences. In this case, it hopes to affect the type of deliberation that happens during elections.
A becoming humility on the part of any human institution no matter how endowed with the secular
ability to decide legal controversies with finality entails that we are not the keepers of all wisdom.
Humanity’s lack of omniscience, even acting collectively, provides space for the weakest dissent.
Tolerance has always been a libertarian virtue whose version is embedded in our Billof Rights.
There are occasional heretics of yesterday that have become our visionaries. Heterodoxies have
always given us pause. The unforgiving but insistent nuance that the majority surely and comfortably
disregards provides us with the checks upon reality that may soon evolve into creative solutions to
grave social problems. This is the utilitarian version. It could also be that it is just part of human
necessity to evolve through being able to express or communicate.
However, the Constitution we interpret is not a theoretical document. It contains other provisions
which, taken together with the guarantee of free expression, enhances each other’s value. Among
these are the provisions that acknowledge the idea of equality. In shaping doctrine construing these
constitutional values, this court needs to exercise extraordinary prudence and produce narrowly
tailored guidance fit to the facts as given so as not to unwittingly cause the undesired effect of
diluting freedoms as exercised in reality and, thus, render them meaningless.
III.B.
Speech and equality:
Some considerations We first establish that there are two paradigms of free speech that separate at
the point of giving priority to equality vis-à-vis liberty.272
In an equality-based approach, "politically disadvantaged speech prevails over regulation[,] but

regulation promoting political equality prevails over speech."273 This view allows the government
leeway to redistribute or equalize ‘speaking power,’ such as protecting, even implicitly subsidizing,
unpopular or dissenting voices often systematically subdued within society’s ideological
ladder.274 This view acknowledges that there are dominant political actors who, through authority,
power, resources, identity, or status, have capabilities that may drown out the messages of others.
This is especially true in a developing or emerging economy that is part of the majoritarian world like
ours.
The question of libertarian tolerance
This balance between equality and the ability to express so as to find one’s authentic self or to
participate in the self determination of one’s communities is not new only to law. It has always been
a philosophical problematique.
In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse
recognized how institutionalized inequality exists as a background limitation, rendering freedoms
exercised within such limitation as merely "protect[ing] the already established machinery of
discrimination."275 In his view, any improvement "in the normal course of events" within an unequal
society, without subversion, only strengthens existing interests of those in power and control.276
In other words, abstract guarantees of fundamental rights like freedom of expression may become
meaningless if not taken in a real context. This tendency to tackle rights in the abstract compromises
liberties. In his words:
Liberty is self-determination, autonomy—this is almost a tautology, but a tautology which results

from a whole series of synthetic judgments. It stipulates the ability to determine one’s own life: to be
able to determine what to do and what not to do, what to suffer and what not. But the subject of this
autonomy is never the contingent, private individual as that which he actually is or happens to be; it
is rather the individual as a human being who is capable of being free with the others. And the
problem of making possible such a harmony between every individual liberty and the other is not that
of finding a compromise between competitors, or between freedom and law, between general and
individual interest, common and private welfare in an established society, but of creating the society
in which man is no longer enslaved by institutions which vitiate self-determination from the
beginning. In other words, freedom is still to be created even for the freest of the existing
societies.277 (Emphasis in the original)
Marcuse suggests that the democratic argument — with all opinions presented to and deliberated by
the people — "implies a necessary condition, namely, that the people must be capable of
deliberating and choosing on the basis of knowledge, that they must have access to authentic
information, and that, on this basis, their evaluation must be the result of autonomous thought."278 He
submits that "[d]ifferent opinions and ‘philosophies’ can no longer compete peacefully for adherence
and persuasion on rational grounds: the ‘marketplace of ideas’ is organized and delimited by those
who determine the national and the individual interest."279 A slant toward left manifests from his belief
that "there is a ‘natural right’ of resistance for oppressed and overpowered minorities to use
extralegal means if the legal ones have proved to be inadequate."280 Marcuse, thus, stands for an
equality that breaks away and transcends from established hierarchies, power structures, and
indoctrinations. The tolerance of libertarian society he refers to as "repressive tolerance."
Legal scholars
The 20th century also bears witness to strong support from legal scholars for "stringent protections
of expressive liberty,"281 especially by political egalitarians. Considerations such as "expressive,
deliberative, and informational interests,"282 costs or the price of expression, and background facts,
when taken together, produce bases for a system of stringent protections for expressive liberties.283
Many legal scholars discuss the interest and value of expressive liberties. Justice Brandeis proposed
that "public discussion is a political duty."284 Cass Sustein placed political speech on the upper tier of
his twotier model for freedom of expression, thus, warranting stringent protection.285 He defined
political speech as "both intended and received as a contribution to public deliberation about some
issue."286
But this is usually related also tofair access to opportunities for such liberties.287 Fair access to
opportunity is suggested to mean substantive equality and not mere formal equalitysince "favorable
conditions for realizing the expressive interest will include some assurance of the resources required
for expression and some guarantee that efforts to express views on matters of common concern will
not be drowned out by the speech of betterendowed citizens."288 Justice Brandeis’ solution is to
"remedy the harms of speech with more speech."289 This view moves away from playing down the
danger as merely exaggerated, toward "tak[ing] the costs seriously and embrac[ing] expression as
the preferred strategy for addressing them."290 However, in some cases, the idea of more speech
may not be enough. Professor Laurence Tribe observed the need for context and "the specification
of substantive values before [equality] has full meaning."291 Professor Catherine A. MacKinnon adds
that "equality continues to be viewed in a formal rather than a substantive sense."292 Thus, more
speech can only mean more speech from the few who are dominant rather than those who are not.
Our jurisprudence
This court has tackled these issues.
Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the validity of Section 11(b)
ofthe Electoral Reforms Law of 1987.293 This section "prohibits mass media from selling or giving free
of charge print space or air time for campaign or other political purposes, except to the Commission
on Elections."294 This court explained that this provision only regulates the time and manner of
advertising in order to ensure media equality among candidates.295 This court grounded this measure
on constitutional provisions mandating political equality:296 Article IX-C, Section 4
Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or
opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible elections. (Emphasis supplied)
Article XIII, Section 1
Section 1. The Congress shall give highest priorityto the enactment of measures that protect and
enhance the right of all the people to human dignity, reducesocial, economic, and political
inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the
common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and
its increments. (Emphasis supplied)
Article II, Section 26

Section 26. The State shall guarantee equal access to opportunities for public service, and prohibit
political dynasties as may be defined by law. (Emphasis supplied)
Thus, in these cases, we have acknowledged the Constitution’s guarantee for more substantive
expressive freedoms that take equality of opportunities into consideration during elections.
The other view
However, there is also the other view. This is that considerations of equality of opportunity or
equality inthe ability of citizens as speakers should not have a bearing in free speech doctrine.
Under this view, "members of the public are trusted to make their own individual evaluations of
speech, and government is forbidden to intervene for paternalistic or redistributive reasons . . .
[thus,] ideas are best left to a freely competitive ideological market."297 This is consistent with the
libertarian suspicion on the use of viewpoint as well as content to evaluate the constitutional validity
or invalidity of speech.
The textual basis of this view is that the constitutional provision uses negative rather than affirmative
language. It uses ‘speech’ as its subject and not ‘speakers’.298 Consequently, the Constitution
protects free speech per se, indifferent to the types, status, or associations of its
speakers.299 Pursuant to this, "government must leave speakers and listeners in the private order to
their own devices in sorting out the relative influence of speech."300
Justice Romero’s dissenting opinion in Osmeña v. COMELEC formulates this view that freedom of
speech includes "not only the right to express one’s views, but also other cognate rights relevant to
the free communication [of] ideas, not excluding the right to be informed on matters of public
concern."301 She adds:
And since so many imponderables may affect the outcome of elections — qualifications of voters
and candidates, education, means of transportation, health, public discussion, private animosities,
the weather, the threshold of a voter’s resistance to pressure — the utmost ventilation of opinion of
men and issues, through assembly, association and organizations, both by the candidate and the
voter, becomes a sine qua non for elections to truly reflect the will of the electorate.302 (Emphasis
supplied)
Justice Romero’s dissenting opinion cited an American case, if only to emphasize free speech
primacy such that"courts, as a rule are wary to impose greater restrictions as to any attempt to
curtail speeches with political content,"303 thus:
the concept that the government may restrict the speech of some elements in our society in order to
enhance the relative voice of the others is wholly foreign to the First Amendment which was
designed to "secure the widest possible dissemination of information from diverse and antagonistic
sources" and "to assure unfettered interchange of ideas for the bringing about of political and social
changes desired by the people."304
This echoes Justice Oliver Wendell Holmes’ submission "that the market place of ideas is still the
best alternative to censorship."305
Parenthetically and just to provide the whole detail of the argument, the majority of the US Supreme
Court in the campaign expenditures case of Buckley v. Valeo "condemned restrictions (even if
content-neutral) on expressive liberty imposed in the name of ‘enhanc[ing] the relative voice of
others’ and thereby ‘equaliz[ing] access to the political arena."306 The majority did not use the
equality-based paradigm.
One flaw of campaign expenditurelimits is that "any limit placed on the amount which a person can
speak, which takes out of his exclusive judgment the decision of when enough is enough, deprives
him of his free speech."307
Another flaw is how "[a]ny quantitative limitation on political campaigning inherently constricts the
sum of public information and runs counter to our ‘profound national commitment that debate on
public issues should be uninhibited, robust, and wide-open.’"308
In fact, "[c]onstraining those who have funds or have been able to raise funds does not ease the
plight of those without funds in the first place . . . [and] even if one’s main concern isslowing the
increase in political costs, it may be more effective torely on market forces toachieve that result than
on active legal intervention."309 According to Herbert Alexander, "[t]o oppose limitations is not
necessarily to argue that the sky’s the limit [because in] any campaign there are saturation levels
and a point where spending no longer pays off in votes per dollar."310
III. C.
When private speech amounts
to election paraphernalia
The scope of the guarantee of free expression takes into consideration the constitutional respect for
human potentiality and the effect of speech. It valorizes the ability of human beings to express and
their necessity to relate. On the other hand, a complete guarantee must also take into consideration
the effects it will have in a deliberative democracy. Skewed distribution of resources as well as the
cultural hegemony of the majority may have the effect of drowning out the speech and the messages
of those in the minority. In a sense, social inequality does have its effect on the exercise and effect
of the guarantee of free speech. Those who have more will have better access to media that
reaches a wider audience than those who have less. Those who espouse the more popular ideas
will have better reception than the subversive and the dissenters of society.To be really heard and
understood, the marginalized view normally undergoes its own degree of struggle.
The traditional view has been to tolerate the viewpoint of the speaker and the content of his or her
expression. This view, thus, restricts laws or regulation that allows public officials to make judgments
of the value of such viewpoint or message content. This should still be the principal approach.
However, the requirements of the Constitution regarding equality in opportunity must provide limits to
some expression during electoral campaigns.
Thus clearly, regulation of speech in the context of electoral campaigns made by candidates or the
members of their political parties or their political parties may be regulated as to time, place, and
manner. This is the effect of our rulings in Osmeña v. COMELEC and National Press Club v.
COMELEC.
Regulation of speech in the context of electoral campaigns made by persons who are not candidates
or who do not speak as members of a political party which are, taken as a whole, principally
advocacies of a social issue that the public must consider during elections is unconstitutional. Such
regulation is inconsistent with the guarantee of according the fullest possible range of opinions
coming from the electorate including those that can catalyze candid, uninhibited, and robust debate
in the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by a private citizen which will not
amount toan election paraphernalia to be validly regulated by law.
Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of
persons who are not candidates or who do not speak as members of a political party if they are not
candidates, only if what is regulated is declarative speech that, taken as a whole, has for its principal
object the endorsement of a candidate only. The regulation (a) should be provided by law, (b)
reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of all candidates
to be heard and considering the primacy of the guarantee of free expression, and (d) demonstrably
the least restrictive means to achieve that object. The regulation must only be with respect to the
time, place, and manner of the rendition of the message. In no situation may the speech be
prohibited or censored onthe basis of its content. For this purpose, it will notmatter whether the
speech is made with or on private property.
This is not the situation, however, in this case for two reasons. First, as discussed, the principal
message in the twin tarpaulins of petitioners consists of a social advocacy.
Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the present law —
Section 3.3 of Republic Act No. 9006 and Section 6(c) of COMELEC Resolution No. 9615 — if
applied to this case, will not pass the test of reasonability. A fixed size for election posters or
tarpaulins without any relation to the distance from the intended average audience will be arbitrary.
At certain distances, posters measuring 2 by 3 feet could no longer be read by the general public
and, hence, would render speech meaningless. It will amount to the abridgement of speech with
political consequences.
IV
Right to property
Other than the right to freedom of expression311 and the meaningful exercise of the right to
suffrage,312 the present case also involves one’s right to property.313
Respondents argue that it is the right of the state to prevent the circumvention of regulations relating
to election propaganda by applying such regulations to private individuals.314 Certainly, any provision
or regulation can be circumvented. But we are not confronted with this possibility. Respondents
agree that the tarpaulin in question belongs to petitioners. Respondents have also agreed, during
the oral arguments, that petitioners were neither commissioned nor paid by any candidate or political
party to post the material on their walls.
Even though the tarpaulin is readily seen by the public, the tarpaulin remains the private property of
petitioners. Their right to use their property is likewise protected by the Constitution.
In Philippine Communications Satellite Corporation v. Alcuaz:315
Any regulation, therefore, which operates as an effective confiscation of private property or

constitutes an arbitrary or unreasonable infringement of property rights is void, because it is
repugnant to the constitutional guaranties of due process and equal protection of the
laws.316 (Citation omitted)
This court in Adiong held that a restriction that regulates where decals and stickers should be posted
is "so broad that it encompasses even the citizen’s private property."317 Consequently, it violates
Article III, Section 1 of the Constitution which provides thatno person shall be deprived of his
property without due process of law. This court explained:
Property is more than the mere thing which a person owns, it includes the right to acquire, use, and
dispose of it; and the Constitution, in the 14th Amendment, protects these essential attributes.
Property is more than the mere thing which a person owns. It is elementary that it includes the right
to acquire, use, and dispose of it. The Constitution protects these essential attributes of property.
Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of
the free use, enjoyment, and disposal of a person’s acquisitions without control or diminution save
by the law of the land. 1 Cooley’s Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])318
This court ruled that the regulation in Adiong violates private property rights:
The right to property may be subject to a greater degree of regulation but when this right is joined by
a "liberty" interest, the burden of justification on the part of the Government must be exceptionally
convincing and irrefutable. The burden is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display
of election propaganda in any place, whether public or private, except inthe common poster areas
sanctioned by COMELEC. This means that a private person cannot post his own crudely prepared
personal poster on his own front dooror on a post in his yard. While the COMELEC will certainly
never require the absurd, there are no limits to what overzealous and partisan police officers, armed
with a copy of the statute or regulation, may do.319 Respondents ordered petitioners, who are private
citizens, to remove the tarpaulin from their own property. The absurdity of the situation is in itself an
indication of the unconstitutionality of COMELEC’s interpretation of its powers.
Freedom of expression can be intimately related with the right to property. There may be no
expression when there is no place where the expression may be made. COMELEC’s infringement
upon petitioners’ property rights as in the present case also reaches out to infringement on their
fundamental right to speech.
Respondents have not demonstrated thatthe present state interest they seek to promote justifies the
intrusion into petitioners’ property rights. Election laws and regulations must be reasonable. It must
also acknowledge a private individual’s right to exercise property rights. Otherwise, the due process
clause will be violated.
COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the posting of election
propaganda in private property without the consent of the owners of such private property.
COMELEC has incorrectly implemented these regulations. Consistent with our ruling in Adiong, we
find that the act of respondents in seeking to restrain petitioners from posting the tarpaulin in their
own private property is an impermissible encroachments on the right to property.
V
Tarpaulin and its message are not religious speech
We proceed to the last issues pertaining to whether the COMELEC in issuing the questioned notice
and letter violated the right of petitioners to the free exercise of their religion.
At the outset, the Constitution mandates the separation of church and state.320 This takes many
forms. Article III, Section 5 of the Constitution, for instance provides:
Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. Noreligious test shall be required for the
exercise of civil or political rights.
There are two aspects of this provision.321 The first is the none stablishment clause.322 Second is the
free exercise and enjoyment of religious profession and worship.323
The second aspect is atissue in this case.
Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other religious
make such act immune from any secular regulation.324 The religious also have a secular existence.
They exist within a society that is regulated by law.
The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a bishop amounts to
religious expression. This notwithstanding petitioners’ claim that "the views and position of the
petitioners, the Bishop and the Diocese of Bacolod, on the RH Bill is inextricably connected to its
Catholic dogma, faith, and moral teachings. . . ."325
The difficulty that often presents itself in these cases stems from the reality that every act can be
motivated by moral, ethical, and religious considerations. In terms of their effect on the corporeal
world, these acts range from belief, to expressions of these faiths, to religious ceremonies, and then
to acts of a secular character that may, from the point of view of others who do not share the same
faith or may not subscribe to any religion, may not have any religious bearing.
Definitely, the characterizations ofthe religious of their acts are not conclusive on this court.
Certainly, our powers of adjudication cannot be blinded by bare claims that acts are religious in
nature.
Petitioners erroneously relied on the case of Ebralinag v. The Division Superintendent of Schools of
Cebu326 in claiming that the court "emphatically" held that the adherents ofa particular religion shall be
the ones to determine whether a particular matter shall be considered ecclesiastical in nature.327 This
court in Ebralinagexempted Jehovah’s Witnesses from participating in the flag ceremony "out of
respect for their religious beliefs, [no matter how] "bizarre" those beliefsmay seem to others."328 This
court found a balance between the assertion of a religious practice and the compelling necessities of
a secular command. It was an early attempt at accommodation of religious beliefs.
In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:
With religion looked upon with benevolence and not hostility, benevolent neutrality allows
accommodation of religion under certain circumstances. Accommodations are government policies
that take religion specifically intoaccount not to promote the government’s favored form of religion,
but to allow individuals and groups to exercise their religion without hindrance. Their purpose or
effect therefore is to remove a burden on, or facilitate the exercise of, a person’s or institution’s
religion. As Justice Brennan explained, the "government [may] take religion into account . . . to
exempt, when possible, from generally applicable governmental regulation individuals whose
religious beliefs and practices would otherwise thereby be infringed, or to create without state
involvement an atmosphere in which voluntary religious exercise may flourish."330
This court also discussed the Lemon test in that case, such that a regulation is constitutional when:
(1) it has a secular legislative purpose; (2) it neither advances nor inhibits religion; and (3) it does not
foster an excessive entanglement with religion.331
As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not convey any religious
doctrine of the Catholic church."332 That the position of the Catholic church appears to coincide with
the message of the tarpaulin regarding the RH Law does not, by itself, bring the expression within
the ambit of religious speech. On the contrary, the tarpaulin clearly refers to candidates classified
under "Team Patay" and "Team Buhay" according to their respective votes on the RH Law.
The same may be said of petitioners’ reliance on papal encyclicals to support their claim that the
expression onthe tarpaulin is an ecclesiastical matter. With all due respect to the Catholic faithful,
the church doctrines relied upon by petitioners are not binding upon this court. The position of the
Catholic religion in the Philippines as regards the RH Law does not suffice to qualify the posting by
one of its members of a tarpaulin as religious speech solely on such basis. The enumeration of
candidates on the face of the tarpaulin precludes any doubtas to its nature as speech with political
consequences and not religious speech.
Furthermore, the definition of an "ecclesiastical affair" in Austria v. National Labor Relations

Commission333 cited by petitioners finds no application in the present case. The posting of the
tarpaulin does not fall within the category of matters that are beyond the jurisdiction of civil courts as
enumerated in the Austriacase such as "proceedings for excommunication, ordinations of religious
ministers, administration of sacraments and other activities withattached religious significance."334
A FINAL NOTE
We maintain sympathies for the COMELEC in attempting to do what it thought was its duty in this
case. However, it was misdirected.
COMELEC’s general role includes a mandate to ensure equal opportunities and reduce spending
among candidates and their registered political parties. It is not to regulate or limit the speech of the
electorate as it strives to participate inthe electoral exercise.
The tarpaulin in question may be viewed as producing a caricature of those who are running for
public office.Their message may be construed generalizations of very complex individuals and party-
list organizations.
They are classified into black and white: as belonging to "Team Patay" or "Team Buhay."
But this caricature, though not agreeable to some, is still protected speech.
That petitioners chose to categorize them as purveyors of death or of life on the basis of a single
issue — and a complex piece of legislation at that — can easily be interpreted as anattempt to
stereo type the candidates and party-list organizations. Not all may agree to the way their thoughts
were expressed, as in fact there are other Catholic dioceses that chose not to follow the example of
petitioners.
Some may have thought that there should be more room to consider being more broad-minded and
non-judgmental. Some may have expected that the authors would give more space to practice
forgiveness and humility.
But, the Bill of Rights enumerated in our Constitution is an enumeration of our fundamental liberties.
It is not a detailed code that prescribes good conduct. It provides space for all to be guided by their
conscience, not only in the act that they do to others but also in judgment of the acts of others.
Freedom for the thought we can disagree with can be wielded not only by those in the minority. This
can often be expressed by dominant institutions, even religious ones. That they made their point
dramatically and in a large way does not necessarily mean that their statements are true, or that they
have basis, or that they have been expressed in good taste.
Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a specie of

expression protected by our fundamental law. It is an expression designed to invite attention, cause
debate, and hopefully, persuade. It may be motivated by the interpretation of petitioners of their
ecclesiastical duty, but their parishioner’s actions will have very real secular consequences.
Certainly, provocative messages do matter for the elections.
What is involved in this case is the most sacred of speech forms: expression by the electorate that
tends to rouse the public to debate contemporary issues. This is not speechby candidates or political
parties to entice votes. It is a portion of the electorate telling candidates the conditions for their
election. It is the substantive content of the right to suffrage.
This. is a form of speech hopeful of a quality of democracy that we should all deserve. It is protected
as a fundamental and primordial right by our Constitution. The expression in the medium chosen by
petitioners deserves our protection.
WHEREFORE, the instant petition is GRANTED. The temporary restraining order previously issued
is hereby made permanent. The act of the COMELEC in issuing the assailed notice dated February
22, 2013 and letter dated February 27, 2013 is declared unconstitutional.
SO ORDERED.
70
G.R. No. 166032 February 28, 2005
ELENITA I. BALAJONDA, petitioner,

vs.
COMMISSION ON ELECTIONS (FIRST DIVISION) and MARICEL S. FRANCISCO, respondents.
DECISION
TINGA, J.:
Whether or not the Commission on Elections has power to order the immediate execution of its
judgment or final order involving a disputed barangay chairmanship is at the heart of the
present Petition for Certiorari1 under Rule 65 of the 1997 Rules of Civil Procedure.
On 16 July 2002, petitioner Elenita I. Balajonda (Balajonda) was proclaimed as the duly elected
Barangay Chairman (Punong Barangay), having won the office in the barangay elections held the
previous day.2 Her margin of victory over private respondent Maricel Francisco (Francisco) was four-
hundred twenty (420) votes.3 Francisco duly filed a petition for election protest, within ten (10) days
from the date of proclamation, lodged with the Metropolitan Trial Court (MeTC) of Quezon City,
Branch 35.4
In answer to the protest, Balajonda alleged that Francisco’s petition stated no cause of action and
that the allegations of electoral fraud and irregularities were "baseless, conjectural, flimsy, frivolous,
preposterous and mere figments of the latter’s wild imagination." She also laid stress on the fact that
although the grounds relied upon by Francisco were violations of election laws, not a single person
had been prosecuted for violation of the same.5 1ªvvphi 1.nét
After the issues were joined, the MeTC ordered the revision of ballots in sixty-nine (69) ballot boxes,
and eventually, the ballots in thirty-nine (39) precincts were revised.6 After trial, MeTC dismissed the
protest with its finding that Balajonda still led Francisco by four hundred eighteen (418) votes.7 The
dispositive part of its Decision reads as follows:
WHEREFORE, the Protest filed by Maricel Susano Francisco is hereby DENIED. The proclamation
of Elenita I. Balajonda as the duly proclaimed Barangay Captain of Barangay Sta. Monica, Quezon
City during the 15 July 2002 Barangay Election is hereby upheld.8
Francisco appealed the MeTC Decision to the Commission on Elections (COMELEC). In

a Resolution9 promulgated on 2 February 2004, the COMELEC First Division reversed the MeTC,
finding that Francisco won over Balajonda by one hundred eleven (111) votes. The COMELEC First
Division thus annulled the proclamation of 0Balajonda, and declared in her stead Francisco as the
duly elected Barangay Chairman. The dispositive portion of the Resolutionreads:
WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the Appeal.
The decision of the Metropolitan Trial Court of Quezon City, Branch 35 is hereby SET ASIDE. The
proclamation of ELENITA BALAJONDA as Punong Barangay of said Barangay is ANNULLED.
Protestant MARICEL FRANCISCO is hereby declared the duly elected Punong Barangay of
Barangay Sta. Monica, Novaliches City.
ACCORDINGLY, the Commission (FIRST DIVISION) hereby ORDERS:
1. Protestee ELENITA "Baby" BALAJONDA to VACATE the post of Punong Barangay of Sta.
Monica, Novaliches City in favor of MARICEL SUSANO FRANCISCO and to CEASE and DESIST
from performing the functions attached to said office.
No pronouncement as to costs.
SO ORDERED.10
Balajonda seasonably filed a Motion for Reconsideration11 of the COMELEC First

Division’s Resolution.12 In the meantime, Francisco filed a Motion for Execution13 dated 5 February
2004, praying for a writ of execution in accordance with Section 2(a) of Rule 39 of the Revised Rules
of Court [Sec. 2(a), Rule 39], which allows discretionary execution of judgment upon good reasons
to be stated in the order.14
Balajonda duly opposed15 the Motion for Execution, arguing in the main that under Sec. 2(a), Rule
39, only the judgment or final order of a trial court may be the subject of discretionary execution
pending appeal. However, in its Order16 dated 26 November 2004, the COMELEC First Division after
due hearing granted the motion and directed the issuance of a Writ of Execution,17 ordering
Balajonda to cease and desist from discharging her functions as Barangay Chairman and relinquish
said office to Francisco. The Order states in part:
WHEREFORE, the Motion is hereby GRANTED. In order to implement the Resolution of the
Commission (First Division) in the above entitled case, the Clerk of Commission (Director IV, ECAD)
is hereby DIRECTED to issue a WRIT OF EXECUTION ordering ELENITA I. BALAJONDA to
CEASE and DESIST from discharging the powers and duties of Barangay Captain of Sta. Monica,
Novaliches, Quezon City and to relinquish the same to and in favor of MARICEL S. FRANCISCO
who was declared duly elected to the post in the Resolution pending final disposition of the Motion
for Reconsideration filed by Protestee in the above-entitled case. Protestant however is ordered to
post a bond in the amount of FIFTY THOUSAND PESOS (₱50,000.00) which shall answer for
whatever damage protestee will sustain by reason of this execution if the final resolution of the
protest would decide that the protestant is not entitled thereto. This Order is immediately executory. 1awphi 1.nét
SO ORDERED. 18
This Order is the subject of the present petition.
In support of her thesis that the COMELEC First Division committed grave abuse of discretion in
granting execution pending appeal, Balajonda in essence submits the following grounds, thus: (1)
that the COMELEC may order the immediate execution only of the decision of the trial court but not
its own decision; (2) that the order of execution which the COMELEC First Division issued is not
founded on good reasons as it is a mere pro forma reproduction of the reasons enumerated
in Ramas v. COMELEC;19 and (3) the COMELEC exhibited manifest partiality and bias in favor of
Francisco when it transgressed its own rule.20 Balajonda invoked only the first ground in her
opposition to the Motion For Execution, but definitely not the second and third. In any event, all the
l^vvphi1.net
grounds are bereft of merit.
Early last year, the Court, through Mr. Justice Antonio T. Carpio in Batul v. Bayron,21 affirmed a
similar order of the COMELEC First Division directing the immediate execution of its own judgment.
Despite the silence of the COMELEC Rules of Procedure as to the procedure of the issuance of a
writ of execution pending appeal, there is no reason to dispute the COMELEC’s authority to do so,
considering that the suppletory application of the Rules of Court is expressly authorized by Section
1, Rule 41 of the COMELEC Rules of Procedure which provides that absent any applicable
provisions therein the pertinent provisions of the Rules of Court shall be applicable by analogy or in
a suppletory character and effect.
Batul also clearly shows that the judgments which may be executed pending appeal need not be
only those rendered by the trial court, but by the COMELEC as well. It stated, thus:
It is true that present election laws are silent on the remedy of execution pending appeal in election
contests. However, neither Ramas nor Santos declared that such remedy is exclusive to election
contests involving elective barangay and municipal officials as argued by Batul. Section 2 allowing
execution pending appeal in the discretion of the court applies in a suppletory manner to election
cases, including those involving city and provincial officials.22
Batul is different from this case in that in Batul the decision subject of the order of immediate
execution was rendered by the poll body in the exercise of its original jurisdiction23 while the decision
in this case was promulgated in the exercise of its appellate jurisdiction. Still, there is no reason to
dispose of this petition in a manner different from Batul. The public policy underlying the suppletory
application of Sec. 2(a), Rule 39 is to obviate a hollow victory for the duly elected candidate as
determined by either the courts or the COMELEC.24 Towards that end, we have consistently
employed liberal construction of procedural rules in election cases to the end that the will of the
people in the choice of public officers may not be defeated by mere technical
objections.25 Balajonda’s argument is anchored on a simplistic, literalist reading of Sec. 2(a), Rule 39
that barely makes sense, especially in the light of the COMELEC’s specialized and expansive role in
relation to election cases.
Anent the second ground, we find that the COMELEC First Division committed no grave abuse of
discretion in ruling that:
In the instant case, the protestant cited the good reasons enunciated in Ramas v. Comelec (286
SCRA 189), to wit: (1) the public interest involved or the will of the electorate; (2) the shortness of
the remaining period, and (3) the length of time that the election contest has been pending.
After evaluating the case, we rule that the reasons cited are indeed obtaining. Public interest is best
served if the herein Protestant who actually received the highest number of votes should be
immediately be installed. It is likewise true that the remaining period or the unexpired term is too
short that to further prolong the tenure of the protestee is a virtual denial of the right of the
protestant, the duly elected barangay captain, to assume office.
Considering that there are good reasons for the issuance of an Order of Execution, to wit: dictates of
public policy and the shortness of the remaining period, we have to grant the Motion.26
All that Balajonda musters in the main to debunk the poll body’s ruling is that it is just a pro
forma reproduction of the reasons enunciated in pertinent jurisprudence for the grant of execution
pending appeal.27 The argument suffers from a discernible fallacy. The reasons relied upon by the
COMELEC First Division are either self-evident or borne out by the law.
With respect to the first reason, it cannot be disputed with success that public interest demands that
the winner on the basis of a full and incisive recount and new appreciation of votes should be
installed in office without delay. Indeed, "[I]t is neither fair nor just to keep in office for an uncertain
period one whose right is under suspicion."28
Balajonda’s corollary argument that the public interest involved or the will of the electorate is fully
determined only after the election contest becomes final29 would, if sustained, negate altogether the
purpose of allowing executions pending appeal in the first place. Indeed, the argument begs the
question. In this regard, Balajonda’s filing of a Motion for Reconsideration of the decision likewise did
not divest the COMELEC First Division of jurisdiction to rule on the Motion For Execution. Once
more, Batul30 instructs us that the filing of a motion for reconsideration of the COMELEC First
Division’s resolution with the COMELEC en banc does not suspend the execution thereof.
As regards the second reason, it is provided in Republic Act No. 916431 that barangay officials
elected in the barangay elections of July 2002 shall serve up to November 2005. Thus when the poll
body’s First Division promulgated the challenged Order on 26 November 2004, directing immediate
execution of its Decision pending final disposition of Balajonda’s motion for reconsideration by the
COMELEC en banc, the expiry of the term of the disputed position was a scant twelve (12) months
away.
At this point, the Court cannot take judicial notice of what Balajonda calls "the consensus to extend
the terms of barangay captains" purportedly soon to be enacted into law by Congress.32 The Court
lacks the powers of prognostication to ascertain whether there is such a "consensus" and, more so,
whether it would actually ripen to reality in the future.
In a bid to ascribe partiality and bias in favor of Francisco to the COMELEC itself, Balajonda alleges
that the poll body failed to observe its own Rules of Procedure33 directing the Clerk of Court, within
twenty-four (24) hours following the filing of a motion for reconsideration, to notify the Presiding
Commissioner and therefore to set the motion for hearing, and the Presiding Commissioner in turn
thereafter to certify the case to the Commission en banc.34 However, the record does not bear out
Balajonda’s charge. The case was not forwarded to the COMELEC en banc right away precisely
because of the pendency of Francisco’s motion for immediate execution and Balajonda’s motions.
According to the COMELEC Records, Balajonda filed with the First Division on 03 March 2004
a Manifestation with Motion for Leave to Xerox Contested Ballots,35 and on 03 March 2004
a Manifestation with Motion for Partial Reconsideration.36
It is noteworthy that the COMELEC First Division did not make use of the third reason invoked by
Francisco which refers to the length of time that the election contest has been
pending.37 Consequently, it is pointless to address Balajonda’s accusation that the delay in the
disposition of the election protest is attributable to Francisco.38
WHEREFORE, the Petition is hereby DISMISSED for failure of petitioner Elenita I. Balajonda to
show that respondent COMELEC acted with grave abuse of discretion in promulgating the
challenged Order dated 24 November 2004. Costs against petitioner.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,

Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario, and Garcia, JJ.,
concur.
71

SUPREME COURT
Manila
EN BANC
G.R. No. 192793 February 22, 2011
FESTO R. GALANG, JR., Petitioner,

vs.
HON. RAMIRO R. GERONIMO, as Presiding Judge of the Regional Trial Court of Romblon,
Branch 81; and NICASIO M. RAMOS, Respondents.
DECISION
PERALTA, J.:
This resolves the Petition for Certiorari under Rule 65 of the Rules of Court, praying that the
Order1 of the Regional Trial Court (RTC) of Romblon, Branch 81, dated June 24, 2010, denying
petitioner's Motion to Admit Answer and the Order2 dated July 22, 2010, denying herein petitioner's
Omnibus Motion, be reversed and set aside.
The records reveal the following antecedent facts.
On May 12, 2010, at 12:37 p.m., petitioner was proclaimed winner for the mayoralty race during the
May 10, 2010 Automated Elections for the Municipality of Cajidiocan, Province of Romblon. The
proclamation was based on the Certificate of Canvass (COC), but without the official signed
Certificate of Canvass for Proclamation (COCP). This was done with the approval of the Provincial
Board of Canvassers (PBOC) Chairman.
Subsequently, private respondent Nicasio Ramos, who was also a mayoralty candidate in the same
election, requested the Commission on Elections (COMELEC) to conduct a manual reconciliation of
the votes cast. The COMELEC then issued Resolution No. 8923, granting said request. The manual
reconciliation was done on May 20, 2010 at the Sangguniang Bayan Session Hall, after which
proceedings the eight winning Sangguniang BayanMembers were also proclaimed. The MBOC
made erasures and corrections using correction fluid on the COCP for the Sangguniang
Bayan Members to reflect the results of the manual reconciliation. As for the COCP for the
previously proclaimed mayoralty and vice-mayoralty candidates, the total number of votes for each
of the candidates remained the same even after the manual reconciliation; hence, only the date was
erased and changed to read "May 20, 2010" to correspond with the date of the manual
reconciliation.
On May 27, 2010, private respondent filed an election protest case against petitioner before the
RTC. The following day, the court sheriff went to petitioner's residence to serve summons with a
copy of the petition. The Sheriff's Return of Summons3 stated that the sheriff was able to serve
Summons on petitioner by leaving the same and the attached copy of the protest with a certain
Gerry Rojas, who was then at petitioner's residence.
On June 8, 2010, petitioner, together with his then counsel of record, Atty. Abner Perez, appeared in
court and requested a copy of the summons with a copy of the election protest. During the hearing
on said date, respondent judge directed petitioner to file the proper pleading and, on June 11, 2010,
petitioner filed a Motion to Admit Answer, to which was attached his Answer with Affirmative Defense
and Counterclaim. One of his affirmative defenses was that the electoral protest was filed out of
time, since it was filed more than ten (10) days after the date of proclamation of the winning
candidate.
The trial court then issued the assailed Order dated June 24, 2010, finding the service of Summons
on petitioner on May 28, 2010 as valid, and declaring the Answer filed on June 11, 2010, as filed out
of time. The dispositive portion of said Order reads as follows:
WHEREFORE, in view of the foregoing, the Motion to Admit Answer is DENIED for lack of merit.
The Motion to Admit Answer having been denied, the preliminary conference shall proceed ex parte,
as previously scheduled pursuant to Section 1, Rule 9, A.M. No. 10-4-1-SC.
SO ORDERED.4
On July 12, 2010, petitioner filed an Omnibus Motion to: (1) Restore Protestee's Standing in Court;
(2) Motion for Reconsideration of the Order dated June 24, 2010; and (3) Suspend Proceedings
Pending Resolution of Falsification Case Before the Law Department of the COMELEC. However,
on July 22, 2010, the trial court issued the second assailed Order denying petitioner's Omnibus
Motion.
Hence, the present petition for certiorari and prohibition under Rule 65, alleging that respondent
judge acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or
excess of jurisdiction in considering as valid, the Sheriff's Service of Summons on May 28, 2010 on
a person not residing in petitioner's residence.
On the other hand, respondents pointed out that the petition for certiorari should not be filed with this
Court but with the COMELEC.
The petition must fail.

Section 4, Rule 65 of the Rules of Court, as amended by A.M. No. 07-7-12-SC, which provides when
and where a petition for certiorari should be filed, states thus:
SEC. 4. When and where to file petition. – The petition shall be filed not later than sixty (60) days
from notice of the judgment or resolution. In case a motion for reconsideration or new trial is timely
filed, whether such motion is required or not, the petition shall be filed not later than sixty (60) days
counted from the notice of the denial of the motion.
If the petition relates to an act or an omission of a municipal trial court or of a corporation, a board,
an officer or a person, it shall be filed with the Regional Trial Court exercising jurisdiction over the
territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals or with
the Sandiganbayan, whether or not the same is in aid of the court’s appellate jurisdiction. If the
petition involves an act or an omission of a quasi-judicial agency, unless otherwise provided by law
or these rules, the petition shall be filed with and be cognizable only by the Court of Appeals. 1awphi1
In election cases involving an act or an omission of a municipal or a regional trial court,

the petition shall be filed exclusively with the Commission on Elections, in aid of its appellate
jurisdiction.5
The question then is, would taking cognizance of a petition for certiorari questioning an interlocutory
order of the regional trial court in an electoral protest case be considered in aid of the appellate
jurisdiction of the COMELEC? The Court finds in the affirmative.
Interpreting the phrase "in aid of its appellate jurisdiction," the Court held in J.M. Tuason & Co., Inc.
v. Jaramillo, et al.6 that if a case may be appealed to a particular court or judicial tribunal or body,
then said court or judicial tribunal or body has jurisdiction to issue the extraordinary writ
of certiorari, in aid of its appellate jurisdiction. This was reiterated in De Jesus v. Court of
Appeals,7 where the Court stated that a court may issue a writ of certiorari in aid of its appellate
jurisdiction if said court has jurisdiction to review, by appeal or writ of error, the final orders or
decisions of the lower court.
Note that Section 8, Rule 14 of the 2010 Rules of Procedure in Election Contests Before the Courts
Involving Elective Municipal Officials states that:
Sec. 8. Appeal. - An aggrieved party may appeal the decision to the COMELEC within five (5)
days after promulgation, by filing a notice of appeal with the court that rendered the decision, with
copy served on the adverse counsel or on the adverse party who is not represented by counsel.8
Since it is the COMELEC which has jurisdiction to take cognizance of an appeal from the decision of
the regional trial court in election contests involving elective municipal officials, then it is also the
COMELEC which has jurisdiction to issue a writ of certiorari in aid of its appellate jurisdiction.
Clearly, petitioner erred in invoking this Court's power to issue said extraordinary writ.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
72
SUPREME COURT
Manila
EN BANC
G.R. No.195953 August 9, 2011
CERIACO BULILIS, Petitioner,

vs.
VICTORINO NUEZ, Hon. PRESIDING JUDGE, 6th MCTC, Ubay, Bohol, Hon. Presiding Judge,
RTC, Branch 52, Talibon, Bohol,Respondents.
RESOLUTION
LEONARDO-DE CASTRO, J.:
On October 25, 2010, petitioner Ceriaco Bulilis (Bulilis) was proclaimed winner of the elections for
punong barangay of Barangay Bulilis, Ubay, Bohol. He won over respondent Victorino Nuez (Nuez)
by a margin of four (4) votes. On November 2, 2010, Nuez filed an Election Protest1 (for judicial
recount and annulment of proclamation) with the 6th Municipal Circuit Trial Court (MCTC) of Ubay,
Bohol. It was inexplicably docketed as Civil Case No. 134-10.
On November 5, 2010, Bulilis, through counsel, filed an Answer,2 denying the allegations in the
protest and praying for its dismissal on the ground that the MCTC had no jurisdiction since the
protest failed to implead the Chairman and the Members of the Board of Election Inspectors who
were purportedly indispensable parties. On the same date, the Clerk of Court of the MCTC issued a
notice of "hearing"3 for November 9, 2010. However, counsel for Bulilis claimed that he never
received said "notice" nor was he in any way informed that the November 9, 2010 hearing was a
preliminary conference. He allegedly only learned that there was a hearing set on November 9, 2010
and it was for preliminary conference when he received a copy of respondent Nuez’s Preliminary
Conference Brief, the day before the scheduled hearing or on November 8, 2010.
At about 1:45 p.m., on November 9, 2010, counsel for Bulilis filed his Preliminary Conference Brief
with the Clerk of Court and also furnished Nuez’s counsel with a copy. However, when the case was
called at 2:10 p.m., counsel for Nuez moved in open court to be allowed to present evidence ex
parte. Noting that counsel for Bulilis failed to file his brief and to furnish a copy of the brief on the
other party at least one (1) day prior to the preliminary conference as required by Section 4, Rule 9
of A.M. No. 07-4-15-SC, Judge Daniel Jose J. Garces (Judge Garces) granted Nuez’s motion to
present evidence ex parte.4
Counsel for Bulilis filed a motion for reconsideration on November 10, 2010, asserting the lack of
proper notice to him of the preliminary conference. In an Order dated November 15, 2010,5 the
MCTC denied the motion for reconsideration on the grounds that the notice of hearing dated
November 5, 2010 was received by petitioner Bulilis himself on said date and counsel for Bulilis was
made aware of the November 9, 2010 preliminary conference when he received the brief for
protestant Nuez the day before.
Bulilis filed a petition for certiorari6 under Rule 65 of the Rules of Court with the Regional Trial Court
(RTC) of Talibon, Bohol. However, in an Order7 dated December 22, 2010, the RTC dismissed the
petition on the ground that it is the Commission on Elections (COMELEC) that has exclusive
appellate jurisdiction over petitions for certiorari in election cases involving municipal and barangay
officials.
Bulilis’s motion for reconsideration of the RTC Decision was denied in an Order8 dated March 9,
2011. Hence, he filed the present petition for certiorari (under Rule 65) with prayer for writ of
preliminary injunction with this Court (the Petition), claiming that he is raising purely questions of law;
that the MCTC had no jurisdiction for protestant’s failure to implead indispensable parties; that the
MCTC committed grave abuse of discretion in ordering reception of protestant’s evidence ex parte;
and that under the rules relied upon by the RTC, the COMELEC’s appellate jurisdiction in election
cases is allegedly limited to decisions of election courts and not interlocutory orders.
In a Resolution9 dated March 29, 2011, this Court required respondent Nuez to comment. In his
Comment dated June 13, 2011, Nuez alleged that Bulilis is "guilty of invoking a mistaken Remedy
and using a wrong Venue, but also committing the same failure of compliance re filing fees."10
The Petition must fail.
It appears from the record that the questioned notice of preliminary conference issued in the instant
election protest may have been defective in that (1) the notice issued by the MCTC clerk of court
was a generic notice of hearing without any mention that it was for preliminary conference, and (2) it
was served on the party himself despite being represented by counsel in contravention of Rule 9,
Section 211 of A.M. No. 07-4-15-SC.12 For this reason we disagree with the RTC’s finding that
impliedly ascribed all fault to petitioner in failing to timely file his preliminary conference brief. We,
nonetheless, find that the RTC and even this Court have no jurisdiction to correct any error that may
have been committed by MCTC Judge Garces in his order to allow the protestant to present
evidence ex parte.
Petitioner contends that the petition for certiorari that he filed with the RTC was "not an election
case" (i.e., not relating to elections, returns or qualifications of elective officials), but one imputing
grave abuse of discretion on the part of the MCTC judge in his issuance of an interlocutory order. He
further claims that the COMELEC’s appellate jurisdiction is only limited to "decided barangay
election cases."13
There is no merit in petitioner’s argument that Rule 28, Section 1 of the COMELEC Rules of
Procedure limits the COMELEC’s jurisdiction over petitions for certiorari in election cases to issues
related to elections, returns and qualifications of elective municipal and barangay officials. Said
provision, taken together with the succeeding section,14 undeniably shows that an aggrieved party
may file a petition for certiorari with the COMELEC whenever a judge hearing an election case has
acted without or in excess of his jurisdiction or with grave abuse of discretion and there is no appeal,
nor any plain, speedy, and adequate remedy in the ordinary course of law.
Neither can petitioner take refuge in Rule 14, Section 12 of A.M. No. 07-4-15-SC which provides:
SEC. 12. Jurisdiction of the Commission on Elections in certiorari cases. - The Commission on
Elections has the authority to issue the extraordinary writs of certiorari, prohibition
and mandamus only in aid of its appellate jurisdiction over decisions of the courts in election cases
involving elective municipal and barangay officials. (Emphasis supplied.)
Petitioner relies on the above-quoted provision to claim that the COMELEC only has appellate
jurisdiction over decisions of the courts in election cases and not interlocutory orders. As the RTC
correctly observed, the Court had in a subsequent issuance, A.M. No. 07-7-12-SC15 (which
amended, among others, Rule 65 of the Rules of Court), clearly provided that:
In election cases involving an act or an omission of a municipal or a regional trial court, the petition
shall be filed exclusively with the Commission on Elections, in aid of its appellate jurisdiction.
(Emphases supplied.)
Plainly, from the foregoing, this Court recognizes the COMELEC’s appellate jurisdiction over
petitions for certiorari against all acts or omissions of courts in election cases. Indeed, in the recent
case of Galang v. Geronimo,16 the Court had the opportunity to rule that a petition for certiorari
questioning an interlocutory order of a trial court in an electoral protest was within the appellate
jurisdiction of the COMELEC. To quote the relevant portion of that decision:
v. Jaramillo, et al. that if a case may be appealed to a particular court or judicial tribunal or body,
then said court or judicial tribunal or body has jurisdiction to issue the extraordinary writ of certiorari,
in aid of its appellate jurisdiction. This was reiterated in De Jesus v. Court of Appeals, where the
Court stated that a court may issue a writ of certiorari in aid of its appellate jurisdiction if said court
has jurisdiction to review, by appeal or writ of error, the final orders or decisions of the lower court. 1avv phi 1
Sec. 8. Appeal. — An aggrieved party may appeal the decision to the COMELEC within five (5) days
after promulgation, by filing a notice of appeal with the court that rendered the decision, with copy
served on the adverse counsel or on the adverse party who is not represented by counsel.
Clearly, petitioner erred in invoking this Court's power to issue said extraordinary writ. (Emphasis
supplied.)
Although Galang involved a petition for certiorari involving an interlocutory order of a regional trial
court in a municipal election contest, the rationale for the above ruling applies to an interlocutory
order issued by a municipal trial court in a barangay election case. Under Rule 14, Section 8 of A.M.
No. 07-4-15-SC, decisions of municipal trial courts in election contests involving barangay officials
are appealed to the COMELEC. Following the Galang doctrine, it is the COMELEC which has
jurisdiction over petitions for certiorari involving acts of the municipal trial courts in such election
contests.
In all, the RTC committed no grave abuse of discretion in dismissing the petition for lack of
jurisdiction. This being the case, the Court finds it unnecessary to resolve the other issues raised by
petitioner.
WHEREFORE, the present Petition is DISMISSED.
SO ORDERED.
73

SUPREME COURT
Manila
EN BANC
G.R. No.195953 August 9, 2011
CERIACO BULILIS, Petitioner,

vs.
VICTORINO NUEZ, Hon. PRESIDING JUDGE, 6th MCTC, Ubay, Bohol, Hon. Presiding Judge,
RTC, Branch 52, Talibon, Bohol,Respondents.
RESOLUTION
LEONARDO-DE CASTRO, J.:
On October 25, 2010, petitioner Ceriaco Bulilis (Bulilis) was proclaimed winner of the elections for
punong barangay of Barangay Bulilis, Ubay, Bohol. He won over respondent Victorino Nuez (Nuez)
by a margin of four (4) votes. On November 2, 2010, Nuez filed an Election Protest1 (for judicial
recount and annulment of proclamation) with the 6th Municipal Circuit Trial Court (MCTC) of Ubay,
Bohol. It was inexplicably docketed as Civil Case No. 134-10.
On November 5, 2010, Bulilis, through counsel, filed an Answer,2 denying the allegations in the
protest and praying for its dismissal on the ground that the MCTC had no jurisdiction since the
protest failed to implead the Chairman and the Members of the Board of Election Inspectors who
were purportedly indispensable parties. On the same date, the Clerk of Court of the MCTC issued a
notice of "hearing"3 for November 9, 2010. However, counsel for Bulilis claimed that he never
received said "notice" nor was he in any way informed that the November 9, 2010 hearing was a
preliminary conference. He allegedly only learned that there was a hearing set on November 9, 2010
and it was for preliminary conference when he received a copy of respondent Nuez’s Preliminary
Conference Brief, the day before the scheduled hearing or on November 8, 2010.
At about 1:45 p.m., on November 9, 2010, counsel for Bulilis filed his Preliminary Conference Brief
with the Clerk of Court and also furnished Nuez’s counsel with a copy. However, when the case was
called at 2:10 p.m., counsel for Nuez moved in open court to be allowed to present evidence ex
parte. Noting that counsel for Bulilis failed to file his brief and to furnish a copy of the brief on the
other party at least one (1) day prior to the preliminary conference as required by Section 4, Rule 9
of A.M. No. 07-4-15-SC, Judge Daniel Jose J. Garces (Judge Garces) granted Nuez’s motion to
present evidence ex parte.4
Counsel for Bulilis filed a motion for reconsideration on November 10, 2010, asserting the lack of
proper notice to him of the preliminary conference. In an Order dated November 15, 2010,5 the
MCTC denied the motion for reconsideration on the grounds that the notice of hearing dated
November 5, 2010 was received by petitioner Bulilis himself on said date and counsel for Bulilis was
made aware of the November 9, 2010 preliminary conference when he received the brief for
protestant Nuez the day before.
Bulilis filed a petition for certiorari6 under Rule 65 of the Rules of Court with the Regional Trial Court
(RTC) of Talibon, Bohol. However, in an Order7 dated December 22, 2010, the RTC dismissed the
petition on the ground that it is the Commission on Elections (COMELEC) that has exclusive
appellate jurisdiction over petitions for certiorari in election cases involving municipal and barangay
officials.
Bulilis’s motion for reconsideration of the RTC Decision was denied in an Order8 dated March 9,
2011. Hence, he filed the present petition for certiorari (under Rule 65) with prayer for writ of
preliminary injunction with this Court (the Petition), claiming that he is raising purely questions of law;
that the MCTC had no jurisdiction for protestant’s failure to implead indispensable parties; that the
MCTC committed grave abuse of discretion in ordering reception of protestant’s evidence ex parte;
and that under the rules relied upon by the RTC, the COMELEC’s appellate jurisdiction in election
cases is allegedly limited to decisions of election courts and not interlocutory orders.
In a Resolution9 dated March 29, 2011, this Court required respondent Nuez to comment. In his
Comment dated June 13, 2011, Nuez alleged that Bulilis is "guilty of invoking a mistaken Remedy
and using a wrong Venue, but also committing the same failure of compliance re filing fees."10
The Petition must fail.
It appears from the record that the questioned notice of preliminary conference issued in the instant
election protest may have been defective in that (1) the notice issued by the MCTC clerk of court
was a generic notice of hearing without any mention that it was for preliminary conference, and (2) it
was served on the party himself despite being represented by counsel in contravention of Rule 9,
Section 211 of A.M. No. 07-4-15-SC.12 For this reason we disagree with the RTC’s finding that
impliedly ascribed all fault to petitioner in failing to timely file his preliminary conference brief. We,
nonetheless, find that the RTC and even this Court have no jurisdiction to correct any error that may
have been committed by MCTC Judge Garces in his order to allow the protestant to present
evidence ex parte.
Petitioner contends that the petition for certiorari that he filed with the RTC was "not an election
case" (i.e., not relating to elections, returns or qualifications of elective officials), but one imputing
grave abuse of discretion on the part of the MCTC judge in his issuance of an interlocutory order. He
further claims that the COMELEC’s appellate jurisdiction is only limited to "decided barangay
election cases."13
There is no merit in petitioner’s argument that Rule 28, Section 1 of the COMELEC Rules of
Procedure limits the COMELEC’s jurisdiction over petitions for certiorari in election cases to issues
related to elections, returns and qualifications of elective municipal and barangay officials. Said
provision, taken together with the succeeding section,14 undeniably shows that an aggrieved party
may file a petition for certiorari with the COMELEC whenever a judge hearing an election case has
acted without or in excess of his jurisdiction or with grave abuse of discretion and there is no appeal,
nor any plain, speedy, and adequate remedy in the ordinary course of law.
Neither can petitioner take refuge in Rule 14, Section 12 of A.M. No. 07-4-15-SC which provides:
SEC. 12. Jurisdiction of the Commission on Elections in certiorari cases. - The Commission on
Elections has the authority to issue the extraordinary writs of certiorari, prohibition
and mandamus only in aid of its appellate jurisdiction over decisions of the courts in election cases
involving elective municipal and barangay officials. (Emphasis supplied.)
Petitioner relies on the above-quoted provision to claim that the COMELEC only has appellate
jurisdiction over decisions of the courts in election cases and not interlocutory orders. As the RTC
correctly observed, the Court had in a subsequent issuance, A.M. No. 07-7-12-SC15 (which
amended, among others, Rule 65 of the Rules of Court), clearly provided that:
In election cases involving an act or an omission of a municipal or a regional trial court, the petition
shall be filed exclusively with the Commission on Elections, in aid of its appellate jurisdiction.
(Emphases supplied.)
Plainly, from the foregoing, this Court recognizes the COMELEC’s appellate jurisdiction over
petitions for certiorari against all acts or omissions of courts in election cases. Indeed, in the recent
case of Galang v. Geronimo,16 the Court had the opportunity to rule that a petition for certiorari
questioning an interlocutory order of a trial court in an electoral protest was within the appellate
jurisdiction of the COMELEC. To quote the relevant portion of that decision:
v. Jaramillo, et al. that if a case may be appealed to a particular court or judicial tribunal or body,
then said court or judicial tribunal or body has jurisdiction to issue the extraordinary writ of certiorari,
in aid of its appellate jurisdiction. This was reiterated in De Jesus v. Court of Appeals, where the
Court stated that a court may issue a writ of certiorari in aid of its appellate jurisdiction if said court
has jurisdiction to review, by appeal or writ of error, the final orders or decisions of the lower court. 1avv phi 1
Sec. 8. Appeal. — An aggrieved party may appeal the decision to the COMELEC within five (5) days
after promulgation, by filing a notice of appeal with the court that rendered the decision, with copy
served on the adverse counsel or on the adverse party who is not represented by counsel.
Clearly, petitioner erred in invoking this Court's power to issue said extraordinary writ. (Emphasis
supplied.)
Although Galang involved a petition for certiorari involving an interlocutory order of a regional trial
court in a municipal election contest, the rationale for the above ruling applies to an interlocutory
order issued by a municipal trial court in a barangay election case. Under Rule 14, Section 8 of A.M.
No. 07-4-15-SC, decisions of municipal trial courts in election contests involving barangay officials
are appealed to the COMELEC. Following the Galang doctrine, it is the COMELEC which has
jurisdiction over petitions for certiorari involving acts of the municipal trial courts in such election
contests.
In all, the RTC committed no grave abuse of discretion in dismissing the petition for lack of
jurisdiction. This being the case, the Court finds it unnecessary to resolve the other issues raised by
petitioner.
WHEREFORE, the present Petition is DISMISSED.

SO ORDERED.
74

SUPREME COURT
Manila
EN BANC
G.R. No. 171248 April 2, 2007
DR. MAHID M. MUTILAN, Petitioner,

vs.
COMMISSION ON ELECTIONS and ZALDY UY AMPATUAN, Respondents.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for certiorari1 assailing the 28 December 2005 Order2 of the
Commission on Elections (COMELEC) En Banc.
The Antecedent Facts
Dr. Mahid M. Mutilan (petitioner) and Zaldy Uy Ampatuan (private respondent) were candidates for
Governor during the election of regional officials held on 8 August 2005 in the Autonomous Region
of Muslim Mindanao (ARMM). On 11 August 2005, private respondent was proclaimed as the duly
elected Governor of the ARMM.
On 19 August 2005, petitioner filed an Electoral Protest and/or Petition to Annul the Elections. The
case was docketed as EPC No. 2005-3. Petitioner contested the results of the elections in
Maguindanao, Basilan, Tawi-Tawi, and Sulu on the ground that no actual election was conducted in
the precincts in these four provinces. Petitioner alleged that the voters did not actually vote and that
the ballots were filled up by non-registered voters in the four provinces. Petitioner also contested the
results in the municipalities of Butig, Sultan Gumander, Calanogas, Tagoloan, Kapai, Masiu, and
Maguing in Lanao del Sur where massive substitute voting allegedly took place.
The Ruling of the COMELEC Second Division
In its 21 November 2005 Order,3 the COMELEC Second Division dismissed the petition.
The COMELEC Second Division stated that during the initial hearing of the case, petitioner’s counsel
admitted that the petition was not an election protest but one for annulment of elections. Petitioner’s
counsel prayed that the case be elevated to the COMELEC En Banc. Petitioner argued that
"jurisdiction over the x x x petition is vested by law in the entire Honorable Commission both in banc
and in division, such that this Honorable Commission (Second Division) can legally elevate the case
to the Honorable Commission En Banc pursuant to its rules of procedure to expedite disposition of
election case."4
The COMELEC Second Division ruled that jurisdiction over petitions for annulment of elections is
vested in the COMELEC En Banc. However, the elevation of the case to the COMELEC En Banc is
not sanctioned by the rules or by jurisprudence. Thus, the COMELEC Second Division dismissed the
petition for lack of jurisdiction. The dispositive portion of the 21 November 2005 Order reads:
IN VIEW OF THE FOREGOING, and considering the categorical admission of the [petitioner] that
the instant petition is not an election protest but one for annulment of elections, the Commission
(Second Division) hereby DISMISSESthe same for lack of jurisdiction. Sec. 4 of Republic Act 7166
confers upon the Commission sitting en banc the exclusive jurisdiction over petition for annulment of
election.
Anent the prayer to elevate the petition to annul the elections to the Commission en banc, the
Commission (Second Division) hereby DENIES the same for want of requisite authority therefor
under the Rules.
SO ORDERED.5 (Emphasis in the original)
On 29 November 2005, petitioner filed a Motion for Reconsideration of the 21 November 2005 Order
of the COMELEC Second Division. On 29 December 2005, petitioner filed a Motion to Admit Verified
Copies of Motion for Reconsideration. Petitioner’s counsel alleged that at the time of the filing of the
motion for reconsideration, petitioner was in Marawi City and his verification arrived in Manila only
after the filing of the motion for reconsideration. Petitioner’s counsel alleged that he had to file the
unverified motion for reconsideration because he had only five days from receipt of the 21 November
2005 Order to file the motion.
The Ruling of the COMELEC En Banc
In its Order dated 28 December 2005, the COMELEC En Banc denied the motion for reconsideration
for petitioner’s failure to verify it in accordance with Section 3, Rule 19 of the COMELEC Rules of
Procedure. The COMELEC En Banc ruled that the 21 November 2005 Order of the COMELEC
Second Division had become final and executory on 8 December 2005. Thus:
ACCORDINGLY, the Clerk of the Commission, Electoral Contests Adjudication Department

(ECAD)[,] this Commission, is hereby directed to immediately issue an Entry of Judgment.
Let copies of this Order, the Entry of Judgment and Order of 21 November 2005 be furnished Her
Excellency, Hon. Gloria Macapagal-Arroyo, President of the Republic of the Philippines, the Hon.
Secretary. Department of Interior and Local Government, the Hon. Chairman, Commission on Audit
and the Secretary, Regional Assembly, Autonomous Region in Muslim Mindanao (ARMM).
SO ORDERED.6 (Emphasis in the original)
Hence, the petition before this Court.
The Issues
Petitioner raises the following issues before this Court:
1. Whether the COMELEC Second Division acted in excess of its jurisdiction and with grave
abuse of discretion amounting to lack or excess of jurisdiction in dismissing the petition to
annul elections and in not elevating the petition to the COMELEC En Banc.
2. Whether the COMELEC En Banc acted in excess of its jurisdiction and with grave abuse
of discretion amounting to lack or excess of jurisdiction in denying petitioner’s motion for
reconsideration for lack of verification.7
The Ruling of this Court
The petition is partly meritorious
The COMELEC Second Division is Not Prohibited from Elevating the Petition to the
COMELEC En Banc
Petitioner alleges that the COMELEC Second Division gravely abused its discretion in dismissing the
petition for annulment of elections. Citing Section 3, Article IX-C of the 1987 Constitution, petitioner
alleges that "[p]ublic respondent en banc or in division possesses the jurisdiction conferred by the
Constitution in the entire public respondent as one whole collegial body or unit and such jurisdiction
continues to exist when the public respondent sits either en banc or in a division."8 As such, the
COMELEC Second Division has the "jurisdiction and authority to take action on the petition x x x
[and] to legally elevate the petition to public respondent sitting en banc."9
Section 3, Article IX-C of the 1987 Constitution provides:
The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of
procedure in order to expedite disposition of election cases, including pre-proclamation
controversies. All such election cases shall be heard and decided in division, provided that motions
for reconsideration of decisions shall be decided by the Commission en banc.
Under Section 3, Article IX-C of the 1987 Constitution, all election cases, including pre-proclamation
controversies, must be heard and decided by a division of the COMELEC.
In his Electoral Protest and/or Petition to Annul the Elections, petitioner seeks for a declaration of
failure of elections in the contested areas. Petitioner’s counsel readily admitted during the initial
hearing that the petition was for annulment of elections.
Under Section 4 of Republic Act No. 7166 (RA 7166),10 jurisdiction over postponements, failure of
elections and special elections vests in the COMELEC En Banc.11 The jurisdiction of the
COMELEC En Banc over a petition to declare a failure of elections has been affirmed by this Court
which ruled that a petition to declare a failure of elections is neither a pre-proclamation controversy
nor an election case.12 A prayer to annul election results and a prayer to declare failure of elections
based on allegations of fraud, terrorism, violence or analogous causes are actually of the same
nature and are denominated similarly in the Omnibus Election Code.13 Thus, the COMELEC Second
Division has no jurisdiction over the petition to annul the elections.
Petitioner alleges that the docketing of the case as an election protest case was based on the
determination of the administrative docket staff. Petitioner argues that the internal docketing should
not prejudice his rights and should not divest the COMELEC, sitting either En Banc or in Division, of
its jurisdiction over the petition.
The argument has no merit. Petitioner filed an Electoral Protest and/or Petition to Annul the
Elections. Petitioner cannot put the blame on the docketing clerk because he clearly tried to avail of
two different remedies, each one falling under separate jurisdictions.
The COMELEC Second Division ruled that automatic elevation of the case to the En Banc is not
sanctioned by the rules or by jurisprudence. Petitioner argues that the COMELEC Second Division
should have elevated the petition to the COMELEC En Banc instead of dismissing the petition for
lack of jurisdiction.
We agree with petitioner. While automatic elevation of a case erroneously filed with the Division
to En Banc is not provided in the COMELEC Rules of Procedure, such action is not prohibited.
Section 4, Rule 2 of the COMELEC Rules of Procedure provides:
Means to Effect Jurisdiction. - All auxiliary writs, processes and other means necessary to carry into
effect its powers or jurisdiction may be employed by the Commission; and if the procedure to be
followed in the exercise of such power or jurisdiction is not specifically provided for by law
or these rules, any suitable process or proceeding may be adopted. (Emphasis supplied)
Hence, there is nothing in the COMELEC Rules of Procedure to prevent the COMELEC Second
Division from referring the petition to annul the elections to the COMELEC En Banc.
Nevertheless, the petition must still fail.
In his Electoral Protest and/or Petition to Annul the Elections, petitioner alleged that no actual
election was conducted in the contested areas. Petitioner further alleged that the voters did not
actually vote and the ballots were filled up by non-registered voters. Petitioner also alleged massive
disenfranchisement and substitute voting. Petitioner argued that the irregularities warrant the
annulment and setting aside of the elections in the contested areas.
There are three instances where a failure of elections may be declared, thus:
(a) the election in any polling place has not been held on the date fixed on account of force
majeure, violence, terrorism, fraud or other analogous causes;
(b) the election in any polling place has been suspended before the hour fixed by law for the
closing of the voting on account of force majeure, violence, terrorism, fraud or other
analogous causes; or
(c) after the voting and during the preparation and transmission of the election returns or in
the custody or canvass thereof, such election results in a failure to elect on account of force
majeure, violence, terrorism, fraud or other analogous causes.14
In all three instances, there is a resulting failure to elect.15 In the first instance, the election has not
been held. In the second instance, the election has been suspended. In the third instance, the
preparation and the transmission of the election returns give rise to the consequent failure to elect;
the third instance is interpreted to mean that nobody emerged as a winner.16
None of the three instances is present in this case. In this case, the elections took place. In fact,
private respondent was proclaimed the winner. Petitioner contests the results of the elections on the
grounds of massive disenfranchisement, substitute voting, and farcical and statistically improbable
results. Petitioner alleges that no actual election was conducted because the voters did not actually
vote and the ballots were filled up by non-registered voters.
Petitioner alleges that "[i]n some instances, the ballots were forcibly grabbed by armed persons and
the same were filled-up even before election day."17 However, petitioner did not cite the particulars of
his allegations. Petitioner further alleges that "election returns were already filled up even before the
counting started;"18 "votes credited to candidates even exceeded the number of registered voters of
the precincts;"19 and "in one of the counting areas, the tally boards were filled up in the presence of
some Comelec officials even before the ballots were counted."20Again, petitioner failed to state the
particulars of these incidents except that "[s]ome of these anomalies were committed in the
municipalities of Butig, Sultan Gumander, Calanogas, Tagoloan, Kapai and Maguing of Lanao del
Sur."21
The other allegations of petitioner, particularly the transfer of venue of the canvass without previous
notice to the candidates, the proclamation of private respondent without canvassing the results of
the "farcical election" in Tawi-Tawi, the erasures in the certificate of canvass, the lack of initials by
the Provincial Board of Canvassers, the use of different inks and handwritings, and the act of the
Provincial Board of Canvassers in simply noting his objections to the canvass of the returns, are not
grounds that would warrant the annulment of the elections.
In Pasandalan v. Commission on Elections, the Court explained:
To warrant a declaration of failure of election on the ground of fraud, the fraud must prevent or
suspend the holding of an election, or mar fatally the preparation, transmission, custody and
canvass of the election returns. The conditions for the declaration of failure of election are stringent.
Otherwise, elections will never end for losers will always cry fraud and terrorism.
The allegations of massive substitution of voters, multiple voting, and other electoral anomalies
should be resolved in a proper election protest in the absence of any of three instances justifying a
declaration of failure of election. In an election protest, the election is not set aside, and there is only
a revision or recount of the ballots cast to determine the real winner.
The nullification of elections or declaration of failure of elections is an extraordinary remedy. The

party who seeks the nullification of an election has the burden of proving entitlement to this remedy.
It is not enough that a verified petition is filed. The allegations in the petition must make out a prima
facie case for declaration of failure of election, and convincing evidence must substantiate the
allegations.22
Here, the allegations of petitioner in his petition to annul the elections fail to make out a prima
facie case to warrant the declaration of failure of elections.
Motion for Reconsideration Must Be Verified
Section 3, Rule 19 of the COMELEC Rules of Procedure requires that the motion for reconsideration
be verified.23The COMELEC En Banc ruled that there was no valid motion for reconsideration
because petitioner failed to comply with Section 3, Rule 19 of the COMELEC Rules of Procedure.
The COMELEC En Banc ruled that the Order of the COMELEC Second Division had become final
and executory.
Petitioner alleges that the absence of verification in his motion for reconsideration constitutes a slight
or minor lapse and defect. Petitioner further alleges that the absence of verification is merely a
formal defect and does not affect the validity and efficacy of the pleading.
Petitioner alleges that the motion for reconsideration was filed within five days from receipt of the
COMELEC Second Division’s Decision in accordance with Section 2, Rule 19 of the COMELEC
Rules of Procedure. Petitioner alleges that the motion for reconsideration was not verified because
he was then in Marawi City. Petitioner’s verification did not arrive in Manila until after the filing of the
motion for reconsideration. Petitioner alleges that upon the arrival of the verification in Manila, his
counsel filed a Motion to Admit Verified Copies of Motion for Reconsideration and explained the
reason for the delayed submission of petitioner’s verification.
Petitioner’s motion for reconsideration was filed on 29 November 2005. The COMELEC En
Banc denied the motion for reconsideration in its Order dated 28 December 2005. Petitioner filed the
Motion to Admit Verified Copies of Motion for Reconsideration only on 29 December 2005, one day
after the COMELEC En Banc’s denial of his motion for reconsideration and one month after the
filing of the original motion for reconsideration.
Grave abuse of discretion implies capricious and whimsical exercise of judgment amounting to lack
of jurisdiction, or arbitrary and despotic exercise of power because of passion or personal
hostility.24 It is not sufficient that a tribunal, in the exercise of its power, abused its discretion; such
abuse must be grave.25 The grave abuse of discretion must be so patent and gross as to amount to
an evasion or refusal to perform a duty enjoined by law.26 In this case, we see no grave abuse of
discretion on the part of the COMELEC En Banc in denying petitioner’s motion for reconsideration.
The Motion to Admit Verified Copies of Motion for Reconsideration was filed only after the denial by
the COMELEC En Banc of the original and unverified motion for reconsideration.
WHEREFORE, we DISMISS the petition. We AFFIRM the 28 December 2005 Order of the
COMELEC En Banc.
SO ORDERED.
75

SUPREME COURT
Manila
EN BANC
G.R. No. L-119694 May 22, 1995
PHILIPPINE PRESS INSTITUTE, INC., for and in behalf of 139 members, represented by its
President, Amado P. Macasaet and its Executive Director Ermin F. Garcia, Jr., petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
FELICIANO, J.:
The Philippine Press Institute, Inc. ("PPI") is before this Court assailing the constitutional validity of
Resolution No. 2772 issued by respondent Commission on Elections ("Comelec") and its
corresponding Comelec directive dated 22 March 1995, through a Petition for Certiorari and
Prohibition. Petitioner PPI is a non-stock, non-profit organization of newspaper and magazine
publishers.
On 2 March 1995, Comelec promulgated Resolution No. 2772, which reads in part:
xxx xxx xxx
Sec. 2. Comelec Space. — The Commission shall procure free print space of not
less than one half (1/2) page in at least one newspaper of general circulation in every
province or city for use as "Comelec Space" from March 6, 1995 in the case of
candidates for senator and from March 21, 1995 until May 12, 1995. In the absence
of said newspaper, "Comelec Space" shall be obtained from any magazine or
periodical of said province or city.
Sec. 3. Uses of Comelec Space. — "Comelec Space" shall be allocated by the

Commission, free of charge, among all candidates within the area in which the
newspaper, magazine or periodical is circulated to enable the candidates to make
known their qualifications, their stand on public issues and their platforms and
programs of government.
"Comelec Space" shall also be used by the Commission for dissemination of vital
election information.
Sec. 4. Allocation of Comelec Space. — (a) "Comelec Space" shall also be available
to all candidates during the periods stated in Section 2 hereof. Its allocation shall be
equal and impartial among all candidates for the same office. All candidates
concerned shall be furnished a copy of the allocation of "Comelec Space" for their
information, guidance and compliance.
(b) Any candidate desiring to avail himself of "Comelec Space" from newspapers or
publications based in the Metropolitan Manila Area shall submit an application
therefor, in writing, to the Committee on Mass Media of the Commission. Any
candidate desiring to avail himself of "Comelec Space" in newspapers or publications
based in the provinces shall submit his application therefor, in writing, to the
Provincial Election Supervisor concerned. Applications for availment of "Comelec
Space" maybe filed at any time from the date of effectivity of this Resolution.
(c) The Committee on Mass Media and the Provincial Election Supervisors
shall allocate available "Comelec Space" among the candidates concerned by
lottery of which said candidates shall be notified in advance, in writing, to be present
personally or by representative to witness the lottery at the date, time and place
specified in the notice. Any party objecting to the result of the lottery may appeal to
the Commission.
(d) The candidates concerned shall be notified by the Committee on Mass Media or
the Provincial Election Supervisor, as the case maybe, sufficiently in advance and in
writing of the date of issue and the newspaper or publication allocated to him, and
the time within which he must submit the written material for publication in the
"Comelec Space".
xxx xxx xxx

Sec. 8. Undue Reference to Candidates/Political Parties in Newspapers. — No
newspaper or publication shall allow to be printed or published in the news, opinion,
features, or other sections of the newspaper or publication accounts or comments
which manifestly favor or oppose any candidate or political party by unduly or
repeatedly referring to or including therein said candidate or political party. However,
unless the facts and circumstances clearly indicate otherwise, the Commission will
respect the determination by the publisher and/or editors of the newspapers or
publications that the accounts or views published are significant, newsworthy and of
public interest. (Emphasis supplied)
Apparently in implementation of this Resolution, Comelec through Commissioner Regalado E.

Maambong sent identical letters, dated 22 March 1995, to various publishers of newspapers like
the Business World, the Philippine Star, the Malaya and the Philippine Times Journal, all members
of PPI. These letters read as follows:
This is to advise you that pursuant to Resolution No. 2772 of the Commission on
Elections, you are directed to provide free print space of not less than one half (1/2)
page for use as "Comelec Space" or similar to the print support which you have
extended during the May 11, 1992 synchronized elections which was 2 full pages for
each political party fielding senatorial candidates, from March 6, 1995 to May 6,
1995, to make known their qualifications, their stand on public issues and their
platforms and programs of government.
We shall be informing the political parties and candidates to submit directly to

you their pictures, biographical data, stand on key public issues and platforms of
government either as raw data or in the form of positives or camera-ready materials.
Please be reminded that the political parties/candidates may be accommodated in

your publication any day upon receipt of their materials until May 6, 1995 which is the
last day for campaigning.
We trust you to extend your full support and cooperation in this regard. (Emphasis
supplied)
In this Petition for Certiorari and Prohibition with prayer for the issuance of a Temporary Restraining
Order, PPI asks us to declare Comelec Resolution No. 2772 unconstitutional and void on the ground
that it violates the prohibition imposed by the Constitution upon the government, and any of its
agencies, against the taking of private property for public use without just compensation. Petitioner
also contends that the 22 March 1995 letter directives of Comelec requiring publishers to give free
"Comelec Space" and at the same time process raw data to make it camera-ready, constitute
impositions of involuntary servitude, contrary to the provisions of Section 18 (2), Article III of the
1987 Constitution. Finally, PPI argues that Section 8 of Comelec Resolution No. 2772 is violative of
the constitutionally guaranteed freedom of speech, of the press and of expression.1
On 20 April 1995, this Court issued a Temporary Restraining Order enjoining Comelec from
enforcing and implementing Section 2 of Resolution No. 2772, as well as the Comelec directives
addressed to various print media enterprises all dated 22 March 1995. The Court also required the
respondent to file a Comment on the Petition.
The Office of the Solicitor General filed its Comment on behalf of respondent Comelec alleging that
Comelec Resolution No. 2772 does not impose upon the publishers any obligation to provide free
print space in the newspapers as it does not provide any criminal or administrative sanction for non-
compliance with that Resolution. According to the Solicitor General, the questioned Resolution
merely established guidelines to be followed in connection with the procurement of "Comelec
space," the procedure for and mode of allocation of such space to candidates and the conditions or
requirements for the candidate's utilization of the "Comelec space" procured. At the same time,
however, the Solicitor General argues that even if the questioned Resolution and its implementing
letter directives are viewed as mandatory, the same would nevertheless be valid as an exercise of
the police power of the State. The Solicitor General also maintains that Section 8 of Resolution No.
2772 is a permissible exercise of the power of supervision or regulation of the Comelec over the
communication and information operations of print media enterprises during the election period to
safeguard and ensure a fair, impartial and credible election.2
At the oral hearing of this case held on 28 April 1995, respondent Comelec through its Chairman,
Hon. Bernardo Pardo, in response to inquiries from the Chief Justice and other Members of the
Court, stated that Resolution No. 2772, particularly Section 2 thereof and the 22 March 1995 letters
dispatched to various members of petitioner PPI, were not intended to compel those members to
supply Comelec with free print space. Chairman Pardo represented to the Court that Resolution and
the related letter-directives were merely designed to solicit from the publishers the same free print
space which many publishers had voluntarily given to Comelec during the election period relating to
the 11 May 1992 elections. Indeed, the Chairman stated that the Comelec would, that very
afternoon, meet and adopt an appropriate amending or clarifying resolution, a certified true copy of
which would forthwith be filed with the Court.
On 5 May 1995, the Court received from the Office of the Solicitor General a manifestation which
attached a copy of Comelec Resolution No. 2772-A dated 4 May 1995. The operative portion of this
Resolution follows:
NOW THEREFORE, pursuant to the powers vested in it by the Constitution, the

Omnibus Election Code, Republic Acts No. 6646 and 7166 and other election laws,
the Commission on Elections RESOLVED to clarify Sections 2 and 8 of Res. No.
2772 as follows:
1. Section 2 of Res. No. 2772 shall not be construed

to mean as requiring publishers of the different mass
media print publications to provide print space under
pain of prosecution, whether administrative, civil or
criminal, there being no sanction or penalty for
violation of said Section provided for either in said
Resolution or in Section 90 of Batas Pambansa Blg.
881, otherwise known as the Omnibus Election Code,
on the grant of "Comelec space."
2. Section 8 of Res. No. 2772 shall not be construed

to mean as constituting prior restraint on the part of
publishers with respect to the printing or publication of
materials in the news, opinion, features or other
sections of their respective publications or other
accounts or comments, it being clear from the last
sentence of said Section 8 that the Commission shall,
"unless the facts and circumstances clearly indicate
otherwise . . . respect the determination by the
publisher and/or editors of the newspapers or
publications that the accounts or views published are
significant, newsworthy and of public interest."
This Resolution shall take effect upon approval. (Emphasis in the original)
While, at this point, the Court could perhaps simply dismiss the Petition for Certiorari and Prohibition
as having become moot and academic, we consider it not inappropriate to pass upon the first
constitutional issue raised in this case. Our hope is to put this issue to rest and prevent its
resurrection.
Section 2 of Resolution No. 2772 is not a model of clarity in expression. Section 1 of Resolution No.
2772-A did not try to redraft Section 2; accordingly, Section 2 of Resolution No. 2772 persists in its
original form. Thus, we must point out that, as presently worded, and in particular as interpreted and
applied by the Comelec itself in its 22 March 1995 letter-directives to newspaper publishers, Section
2 of Resolution No. 2772 is clearly susceptible of the reading that petitioner PPI has given it. That
Resolution No. 2772 does not, in express terms, threaten publishers who would disregard it or its
implementing letters with some criminal or other sanction, does not by itself demonstrate that the
Comelec's original intention was simply to solicit or request voluntary donations of print space from
publishers. A written communication officially directing a print media company to supply free print
space, dispatched by a government (here a constitutional) agency and signed by a member of the
Commission presumably legally authorized to do so, is bound to produce a coercive effect upon the
company so addressed. That the agency may not be legally authorized to impose, or cause the
imposition of, criminal or other sanctions for disregard of such directions, only aggravates the
constitutional difficulties inhearing in the present situation. The enactment or addition of such
sanctions by the legislative authority itself would be open to serious constitutional objection.
To compel print media companies to donate "Comelec-space" of the dimensions specified in Section
2 of Resolution No. 2772 (not less than one-half page), amounts to "taking" of private personal
property for public use or purposes. Section 2 failed to specify the intended frequency of such
compulsory "donation:" only once during the period from 6 March 1995 (or 21 March 1995) until 12
May 1995? or everyday or once a week? or as often as Comelec may direct during the same
period? The extent of the taking or deprivation is not insubstantial; this is not a case of a de
minimistemporary limitation or restraint upon the use of private property. The monetary value of the
compulsory "donation," measured by the advertising rates ordinarily charged by newspaper
publishers whether in cities or in non-urban areas, may be very substantial indeed.
The taking of print space here sought to be effected may first be appraised under the rubric of
expropriation of private personal property for public use. The threshold requisites for a lawful taking
of private property for public use need to be examined here: one is the necessity for the taking;
another is the legal authority to effect the taking. The element of necessity for the taking has not
been shown by respondent Comelec. It has not been suggested that the members of PPI are
unwilling to sell print space at their normal rates to Comelec for election purposes. Indeed, the
unwillingness or reluctance of Comelec to buy print space lies at the heart of the problem. 3 Similarly,
it has not been suggested, let alone demonstrated, that Comelec has been granted the power of
eminent domain either by the Constitution or by the legislative authority. A reasonable relationship
between that power and the enforcement and administration of election laws by Comelec must be
shown; it is not casually to be assumed.
That the taking is designed to subserve "public use" is not contested by petitioner PPI. We note only
that, under Section 3 of Resolution No. 2772, the free "Comelec space" sought by the respondent
Commission would be used not only for informing the public about the identities, qualifications and
programs of government of candidates for elective office but also for "dissemination of vital election
information" (including, presumably, circulars, regulations, notices, directives, etc. issued by
Comelec). It seems to the Court a matter of judicial notice that government offices and agencies
(including the Supreme Court) simply purchase print space, in the ordinary course of events, when
their rules and regulations, circulars, notices and so forth need officially to be brought to the attention
of the general public.
The taking of private property for public use is, of course, authorized by the Constitution, but not
without payment of "just compensation" (Article III, Section 9). And apparently the necessity of
paying compensation for "Comelec space" is precisely what is sought to be avoided by respondent
Commission, whether Section 2 of Resolution No. 2772 is read as petitioner PPI reads it, as an
assertion of authority to require newspaper publishers to "donate" free print space for Comelec
purposes, or as an exhortation, or perhaps an appeal, to publishers to donate free print space, as
Section 1 of Resolution No. 2772-A attempts to suggest. There is nothing at all to prevent
newspaper and magazine publishers from voluntarily giving free print space to Comelec for the
purposes contemplated in Resolution No. 2772. Section 2 of Resolution No. 2772 does not,
however, provide a constitutional basis for compelling publishers, against their will, in the kind of
factual context here present, to provide free print space for Comelec purposes. Section 2 does not
constitute a valid exercise of the power of eminent domain.
We would note that the ruling here laid down by the Court is entirely in line with the theory of
democratic representative government. The economic costs of informing the general public about
the qualifications and programs of those seeking elective office are most appropriately distributed as
widely as possible throughout our society by the utilization of public funds, especially funds raised by
taxation, rather than cast solely on one small sector of society, i.e., print media enterprises. The
benefits which flow from a heightened level of information on and the awareness of the electoral
process are commonly thought to be community-wide; the burdens should be allocated on the same
basis.
As earlier noted, the Solicitor General also contended that Section 2 of Resolution No. 2772, even if
read as compelling publishers to "donate" "Comelec space, " may be sustained as a valid exercise of
the police power of the state. This argument was, however, made too casually to require prolonged
consideration on our part. Firstly, there was no effort (and apparently no inclination on the part of
Comelec) to show that the police power — essentially a power of legislation — has been
constitutionally delegated to respondent Commission.4 Secondly, while private property may indeed
be validly taken in the legitimate exercise of the police power of the state, there was no attempt to
show compliance in the instant case with the requisites of a lawful taking under the police power. 5
Section 2 of Resolution No. 2772 is a blunt and heavy instrument that purports, without a showing of
existence of a national emergency or other imperious public necessity, indiscriminately and without
regard to the individual business condition of particular newspapers or magazines located in differing
parts of the country, to take private property of newspaper or magazine publishers. No attempt was
made to demonstrate that a real and palpable or urgent necessity for the taking of print space
confronted the Comelec and that Section 2 of Resolution No. 2772 was itself the only reasonable
and calibrated response to such necessity available to the Comelec. Section 2 does not constitute a
valid exercise of the police power of the State.
We turn to Section 8 of Resolution No. 2772, which needs to be quoted in full again:
Sec. 8. Undue Reference to Candidates/Political Parties in Newspapers. — No

newspaper or publication shall allow to be printed or published in the news, opinion,
features, or other sections of the newspaper or publication accounts or comments
which manifestly favor or oppose any candidate or political party by unduly or
repeatedly referring to or including therein said candidate or political party. However,
unless the facts and circumstances clearly indicate otherwise, the Commission will
respect the determination by the publisher and/or editors of the newspapers or
publications that the accounts or views published are significant, newsworthy and of
public interest.
It is not easy to understand why Section 8 was included at all in Resolution No. 2772. In any case,
Section 8 should be viewed in the context of our decision in National Press Club v. Commission on
Elections. 6 There the Court sustained the constitutionality of Section 11 (b) of R.A. No. 6646, known
as the Electoral Reforms Law of 1987, which prohibits the sale or donation of print space and airtime
for campaign or other political purposes, except to the Comelec. In doing so, the Court carefully
distinguished (a) paid political advertisements which are reached by the prohibition of Section 11 (b),
from (b) the reporting of news, commentaries and expressions of belief or opinion by reporters,
broadcasters, editors, commentators or columnists which fall outside the scope of Section 11 (b) and
which are protected by the constitutional guarantees of freedom of speech and of the press:
Secondly, and more importantly, Section 11 (b) is limited in its scope of application.
Analysis of Section 11 (b) shows that it purports to apply only to the purchase and
sale, including purchase and sale disguised as a donation, of print space and air
time for campaign or other political purposes. Section 11 (b) does not purport in any
way to restrict the reporting by newspapers or radio or television stations of news or
news-worthy events relating to candidates, their qualifications, political parties and
programs of government. Moreover, Section 11 (b) does not reach commentaries
and expressions of belief or opinion by reporters or broadcaster or editors or
commentators or columnists in respect of candidates, their qualifications, and
programs and so forth, so long at least as such comments, opinions and beliefs are
not in fact advertisements for particular candidates covertly paid for. In sum, Section
11 (b) is not to be read as reaching any report or commentary or other coverage that,
in responsible media, is not paid for by candidates for political office. We read
Section 11 (b) as designed to cover only paid political advertisements of particular
candidates.
The above limitation in scope of application of Section 11 (b) — that it does not
restrict either the reporting of or the expression of belief or opinion or comment upon
the qualifications and programs and activities of any and all candidates for office —
constitutes the critical distinction which must be made between the instant case and
that of Sanidad v. Commission on Elections. . . . 7 (Citations omitted; emphasis
supplied)
Section 8 of Resolution No. 2772 appears to represent the effort of the Comelec to establish a
guideline for implementation of the above-quoted distinction and doctrine in National Press Club an
effort not blessed with evident success. Section 2 of Resolution No. 2772-A while possibly helpful,
does not add substantially to the utility of Section 8 of Resolution No. 2772. The distinction between
paid political advertisements on the one hand and news reports, commentaries and expressions of
belief or opinion by reporters, broadcasters, editors, etc. on the other hand, can realistically be given
operative meaning only in actual cases or controversies, on a case-to-case basis, in terms of very
specific sets of facts.
At all events, the Court is bound to note that PPI has failed to allege any specific affirmative action
on the part of Comelec designed to enforce or implement Section 8. PPI has not claimed that it or
any of its members has sustained actual or imminent injury by reason of Comelec action under
Section 8. Put a little differently, the Court considers that the precise constitutional issue here sought
to be raised — whether or not Section 8 of Resolution No. 2772 constitutes a permissible exercise of
the Comelec's power under Article IX, Section 4 of the Constitution to
supervise or regulate the enjoyment or utilization of all franchise or permits for the
operation of — media of communication or information — [for the purpose of
ensuring] equal opportunity, time and space, and the right of reply, including
reasonable, equal rates therefore, for public information campaigns and forums
among candidates in connection with the objective of holding free, orderly honest,
peaceful and credible elections —
is not ripe for judicial review for lack of an actual case or controversy involving, as the very lis
mota thereof, the constitutionality of Section 8.
Summarizing our conclusions:
1. Section 2 of Resolution No. 2772, in its present form and as interpreted by Comelec in its 22
March 1995 letter directives, purports to require print media enterprises to "donate" free print space
to Comelec. As such, Section 2 suffers from a fatal constitutional vice and must be set aside and
nullified.
2. To the extent it pertains to Section 8 of Resolution No. 2772, the Petition for Certiorari and
Prohibition must be dismissed for lack of an actual, justiciable case or controversy.
WHEREFORE, for all the foregoing, the Petition for Certiorari and Prohibition is GRANTED in part
and Section 2 of Resolution No. 2772 in its present form and the related letter-directives dated 22
March 1995 are hereby SET ASIDE as null and void, and the Temporary Restraining Order is
hereby MADE PERMANENT. The Petition is DISMISSED in part, to the extent it relates to Section 8
of Resolution No. 2772. No pronouncement as to costs.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza and Francisco, JJ., concur.
Quiason, J., is on leave.
76

SUPREME COURT
Baguio City
EN BANC
G.R. No. 132922 April 21, 1998
TELECOMMUNICATIONS AND BROADCAST ATTORNEYS OF THE PHILIPPINES, INC. and

GMA NETWORK, INC., petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.
MENDOZA, J.:
In Osmeña v. COMELEC, G.R. No. 132231, decided March 31, 1998,1 we upheld the validity of §
11(b) of R.A. No. 6646 which prohibits the sale or donation of print space or air time for political ads,
except to the Commission on Elections under §90, of B.P. No. 881, the Omnibus Election Code, with
respect to print media, and §92, with respect to broadcast media. In the present case, we consider
the validity of §92 of B.P. Blg. No. 881 against claims that the requirement that radio and television
time be given free takes property without due process of law; that it violates the eminent domain
clause of the Constitution which provides for the payment of just compensation; that it denies
broadcast media the equal protection of the laws; and that, in any event, it violates the terms of the
franchise of petitioner GMA Network, Inc.
Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. is an organization of

lawyers of radio and television broadcasting companies. They are suing as citizens, taxpayers, and
registered voters. The other petitioner, GMA Network, Inc., operates radio and television
broadcasting stations throughout the Philippines under a franchise granted by Congress.
Petitioners challenge the validity of §92 on the ground (1) that it takes property without due process
of law and without just compensation; (2) that it denies radio and television broadcast companies the
equal protection of the laws; and (3) that it is in excess of the power given to the COMELEC to
supervise or regulate the operation of media of communication or information during the period of
election.
The Question of Standing
At the threshold of this suit is the question of standing of petitioner Telecommunications and
Broadcast Attorneys of the Philippines, Inc. (TELEBAP). As already noted, its members assert an
interest as lawyers of radio and television broadcasting companies and as citizens, taxpayers, and
registered voters.
In those cases2 in which citizens were authorized to sue, this Court upheld their standing in view of
the "transcendental importance" of the constitutional question raised which justified the granting of
relief. In contrast, in the case at bar, as will presently be shown, petitioner's substantive claim is
without merit. To the extent, therefore, that a party's standing is determined by the substantive merit
of his case or preliminary estimate thereof, petitioner TELEBAP must be held to be without standing.
Indeed, a citizen will be allowed to raise a constitutional question only when he can show that he has
personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the
government; the injury fairly is fairly traceable to the challenged action; and the injury is likely to be
redressed by a favorable action.3 Members of petitioner have not shown that they have suffered
harm as a result of the operation of §92 of B.P. Blg. 881.
Nor do members of petitioner TELEBAP have an interest as registered voters since this case does
not concern their right of suffrage. Their interest in §92 of B.P. Blg. 881 should be precisely in
upholding its validity.
Much less do they have an interest as taxpayers since this case does not involve the exercise by
Congress of its taxing or spending power.4 A party suing as a taxpayer must specifically show that he
has a sufficient interest in preventing the illegal expenditure of money raised by taxation and that he
will sustain a direct injury as a result of the enforcement of the questioned statute.
Nor indeed as a corporate entity does TELEBAP have standing to assert the rights of radio and
television broadcasting companies. Standing jus tertii will be recognized only if it can be shown that
the party suing has some substantial relation to the third party, or that the third party cannot assert
his constitutional right, or that the eight of the third party will be diluted unless the party in court is
allowed to espouse the third party's constitutional claim. None of these circumstances is here
present. The mere fact that TELEBAP is composed of lawyers in the broadcast industry does not
entitle them to bring this suit in their name as representatives of the affected companies.
Nevertheless, we have decided to take this case since the other petitioner, GMA Network, Inc.,
appears to have the requisite standing to bring this constitutional challenge. Petitioner operates radio
and television broadcast stations in the Philippines affected by the enforcement of §92 of B.P. Blg.
881 requiring radio and television broadcast companies to provide free air time to the COMELEC for
the use of candidates for campaign and other political purposes.
Petitioner claims that it suffered losses running to several million pesos in providing COMELEC Time
in connection with the 1992 presidential election and the 1995 senatorial election and that it stands
to suffer even more should it be required to do so again this year. Petitioner's allegation that it will
suffer losses again because it is required to provide free air time is sufficient to give it standing to
question the validity of §92.5
Airing of COMELEC Time, a
Reasonable Condition for
Grant of Petitioner's
Franchise
As pointed out in our decision in Osmeña v. COMELEC, §11(b) of R.A. No. 6646 and §90 and §92 of
the B.P. Blg. 881 are part and parcel of a regulatory scheme designed to equalize the opportunity of
candidates in an election in regard to the use of mass media for political campaigns. These statutory
provisions state in relevant parts:
R.A. No. 6646
Sec. 11. Prohibited Forms of Election Propaganda. — In addition to the forms of election
propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:
xxx xxx xxx
(b) for any newspapers, radio broadcasting or television station, or other mass media, or any
person making use of the mass media to sell or to give free of charge print space or air time
for campaign or other political purposes except to the Commission as provided under
Section 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator,
announcer or personality who is a candidate for any elective public office shall take a leave
of absence from his work as such during the campaign period.
B.P. Blg. 881, (Omnibus Election Code)

Sec. 90. Comelec space. — The Commission shall procure space in at least one newspaper
of general circulation in every province or city; Provided, however, That in the absence of
said newspaper, publication shall be done in any other magazine or periodical in said
province or city, which shall be known as "Comelec Space" wherein candidates can
announce their candidacy. Said space shall be allocated, free of charge, equally and
impartially by the Commission among all candidates within the area in which the newspaper
is circulated. (Sec. 45, 1978 EC).
Sec. 92. Comelec time. — The commission shall procure radio and television time to be
known as "Comelec Time" which shall be allocated equally and impartially among the
candidates within the area of coverage of all radio and television stations. For this purpose,
the franchise of all radio broadcasting and television stations are hereby amended so as to
provide radio or television time, free of charge, during the period of the campaign. (Sec. 46,
1978 EC)
Thus, the law prohibits mass media from selling or donating print space and air time to the
candidates and requires the COMELEC instead to procure print space and air time for allocation to
the candidates. It will be noted that while §90 of B.P. Blg. 881 requires the COMELEC to procure
print space which, as we have held, should be paid for, §92 states that air time shall be procured by
the COMELEC free of charge.
Petitioners contend that §92 of BP Blg. 881 violates the due process clause6 and the eminent
domain provision7 of the Constitution by taking air time from radio and television broadcasting
stations without payment of just compensation. Petitioners claim that the primary source of revenue
of the radio and television stations is the sale of air time to advertisers and that to require these
stations to provide free air time is to authorize a taking which is not "a de minimis temporary
limitation or restraint upon the use of private property." According to petitioners, in 1992, the GMA
Network, Inc. lost P22,498,560.00 in providing free air time of one (1) hour every morning from
Mondays to Fridays and one (1) hour on Tuesdays and Thursday from 7:00 to 8:00 p.m. (prime time)
and, in this year's elections, it stands to lose P58,980,850.00 in view of COMELEC'S requirement
that radio and television stations provide at least 30 minutes of prime time daily for the COMELEC
Time.8
Petitioners' argument is without merit, All broadcasting, whether by radio or by television stations, is
licensed by the government. Airwave frequencies have to be allocated as there are more individuals
who want to broadcast than there are frequencies to assign.9 A franchise is thus a privilege subject,
among other things, to amended by Congress in accordance with the constitutional provision that
"any such franchise or right granted . . . shall be subject to amendment, alteration or repeal by the
Congress when the common good so requires."10
The idea that broadcast stations may be required to provide COMELEC Time free of charge is not
new. It goes back to the Election Code of 1971 (R.A. No. 6388), which provided:
Sec. 49. Regulation of election propaganda through mass media. — (a) The franchise of all
radio broadcasting and television stations are hereby amended so as to require each such
station to furnish free of charge, upon request of the Commission [on Elections], during the
period of sixty days before the election not more than fifteen minutes of prime time once a
week which shall be known as "Comelec Time" and which shall be used exclusively by the
Commission to disseminate vital election information. Said "Comelec Time" shall be
considered as part of the public service time said stations are required to furnish the
Government for the dissemination of public information and education under their respective
franchises or permits.
The provision was carried over with slight modification by the 1978 Election Code (P.D. No. 1296),
which provided:
Sec. 46. COMELEC Time. — The Commission [on Elections] shall procure radio and
television time to be known as "COMELEC Time" which shall be allocated equally and
impartially among the candidates within the area of coverage of said radio and television
stations. For this purpose, the franchises of all radio broadcasting and television stations are
hereby amended so as to require such stations to furnish the Commission radio or television
time, free of charge, during the period of the campaign, at least once but not oftener than
every other day.
Substantially the same provision is now embodied in §92 of B.P. Blg. 881.
Indeed, provisions for COMELEC Tima have been made by amendment of the franchises of radio
and television broadcast stations and, until the present case was brought, such provisions had not
been thought of as taking property without just compensation. Art. XII, §11 of the Constitution
authorizes the amendment of franchises for "the common good." What better measure can be
conceived for the common good than one for free air time for the benefit not only of candidates but
even more of the public, particularly the voters, so that they will be fully informed of the issues in an
election? "[I]t is the right of the viewers and listeners, not the right of the broadcasters, which is
paramount."11
Nor indeed can there be any constitutional objection to the requirement that broadcast stations give
free air time. Even in the United States, there are responsible scholars who believe that government
controls on broadcast media can constitutionally be instituted to ensure diversity of views and
attention to public affairs to further the system of free expression. For this purpose, broadcast
stations may be required to give free air time to candidates in an election. 12 Thus, Professor Cass R.
Sunstein of the University of Chicago Law School, in urging reforms in regulations affecting the
broadcast industry, writes:
Elections. We could do a lot to improve coverage of electoral campaigns. Most important,

government should ensure free media time for candidates. Almost all European nations
make such provisions; the United States does not. Perhaps government should pay for such
time on its own. Perhaps broadcasters should have to offer it as a condition for receiving a
license. Perhaps a commitment to provide free time would count in favor of the grant of a
license in the first instance. Steps of this sort would simultaneously promote attention to
public affairs and greater diversity of view. They would also help overcome the distorting
effects of "soundbites" and the corrosive financial pressures faced by candidates in seeking
time on the media. 13
In truth, radio and television broadcasting companies, which are given franchises, do not own the
airwaves and frequencies through which they transmit broadcast signals and images. They are
merely given the temporary privilege of using them. Since a franchise is a mere privilege, the
exercise of the privilege may reasonably be burdened with the performance by the grantee of some
form of public service. Thus, in De Villata v. Stanley,14 a regulation requiring interisland vessels
licensed to engage in the interisland trade to carry mail and, for this purpose, to give advance notice
to postal authorities of date and hour of sailings of vessels and of changes of sailing hours to enable
them to tender mail for transportation at the last practicable hour prior to the vessel's departure, was
held to be a reasonable condition for the state grant of license. Although the question of
compensation for the carriage of mail was not in issue, the Court strongly implied that such service
could be without compensation, as in fact under Spanish sovereignty the mail was carried free.15
In Philippine Long Distance Telephone Company v. NTC,16 the Court ordered the PLDT to allow the
interconnection of its domestic telephone system with the international gateway facility of Eastern
Telecom. The Court cited (1) the provisions of the legislative franchise allowing such
interconnection; (2) the absence of any physical, technical, or economic basis for restricting the
linking up of two separate telephone systems; and (3) the possibility of increase in the volume of
international traffic and more efficient service, at more moderate cost, as a result of interconnection.
Similarly, in the earlier case of PLDT v. NTC,17 it was held:
Such regulation of the use and ownership of telecommunications systems is in the exercise
of the plenary police power of the State for the promotion of the general welfare. The 1987
Constitution recognizes the existence of that power when it provides:
Sec. 6. The use of property bears a social function, and all economic agents
shall contribute to the common good. Individuals and private groups,
including corporations, cooperatives, and similar collective organizations,
shall have the right to own, establish, and operate economic enterprises,
subject to the duty of the State to promote distributive justice and to intervene
when the common good so demands (Article XII).
The interconnection which has been required of PLDT is a form of "intervention" with
property rights dictated by "the objective of government to promote the rapid expansion of
telecommunications services in all areas of the Philippines, . . . to maximize the use of
telecommunications facilities available, . . . in recognition of the vital role of communications
in nation building . . . and to ensure that all users of the public telecommunications service
have access to all other users of the service wherever they may be within the Philippines at
an acceptable standard of service and at reasonable cost" (DOTC Circular No. 90-248).
Undoubtedly, the encompassing objective is the common good. The NTC, as the regulatory
agency of the State, merely exercised its delegated authority to regulate the use of
telecommunications networks when it decreed interconnection.
In the granting of the privilege to operate broadcast stations and thereafter supervising radio and
television stations, the state spends considerable public funds in licensing and supervising such
stations. 18 It would be strange if it cannot even require the licensees to render public service by
giving free air time.
Considerable effort is made in the dissent of Mr. Justice Panganiban to show that the production of
television programs involves large expenditure and requires the use of equipment for which huge
investments have to be made. The dissent cites the claim of GMA Network that the grant of free air
time to the COMELEC for the duration of the 1998 campaign period would cost the company
P52,380,000, representing revenue it would otherwise earn if the air time were sold to advertisers,
and the amount of P6,600,850, representing the cost of producing a program for the COMELEC
Time, or the total amount of P58,980,850.
The claim that petitioner would be losing P52,380,000 in unrealized revenue from advertising is
based on the assumption that air time is "finished product" which, it is said, become the property of
the company, like oil produced from refining or similar natural resources after undergoing a process
for their production. But air time is not owned by broadcast companies. As held in Red Lion
Broadcasting Co. v. F.C.C.,19 which upheld the right of a party personally attacked to reply, "licenses
to broadcast do not confer ownership of designated frequencies, but only the temporary privilege of
using them." Consequently, "a license permits broadcasting, but the license has no constitutional
right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his
fellow citizens. There is nothing in the First Amendment which prevents the Government from
requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary
with obligations to present those views and voices which are representative of his community and
which would otherwise, by necessity, be barred from the airwaves." 20 As radio and television
broadcast stations do not own the airwaves, no private property is taken by the requirement that they
provide air time to the COMELEC.
Justice Panganiban's dissent quotes from Tolentino on the Civil Code which says that "the air lanes
themselves 'are not property because they cannot be appropriated for the benefit of any individual.'"
(p. 5) That means neither the State nor the stations own the air lanes. Yet the dissent also says that
"The franchise holders can recover their huge investments only by selling air time to advertisers." (p.
13) If air lanes cannot be appropriated, how can they be used to produce air time which the
franchise holders can sell to recover their investment? There is a contradiction here.
As to the additional amount of P6,600,850, it is claimed that this is the cost of producing a program
and it is for such items as "sets and props," "video tapes," "miscellaneous (other rental, supplies,
transportation, etc.)," and "technical facilities (technical crew such as director and cameraman as
well as 'on air plugs')." There is no basis for this claim. Expenses for these items will be for the
account of the candidates. COMELEC Resolution No. 2983, §6(d) specifically provides in this
connection:
(d) Additional services such as tape-recording or video-taping of programs, the preparation

of visual aids, terms and condition thereof, and consideration to be paid therefor may be
arranged by the candidates with the radio/television station concerned. However, no
radio/television station shall make any discrimination among candidates relative to charges,
terms, practices or facilities for in connection with the services rendered.
It is unfortunate that in the effort to show that there is taking of private property worth millions of
pesos, the unsubstantiated charge is made that by its decision the Court permits the "grand larceny
of precious time," and allows itself to become "the people's unwitting oppressor." The charge is really
unfortunate. In Jackson v. Rosenbaun,21 Justice Holmes was so incensed by the resistance of
property owners to the erection of party walls that he was led to say in his original draft, "a statute,
which embodies the community's understanding of the reciprocal rights and duties of neighboring
landowners, does not need to invoke the penalty larceny of the police power in its justification."
Holmes's brethren corrected his taste, and Holmes had to amend the passage so that in the end it
spoke only of invoking "the police power."22 Justice Holmes spoke of the "petty larceny" of the police
power. Now we are being told of the "grand larceny [by means of the police power] of precious air
time."
Giving Free Air Time a Duty
Assumed by Petitioner
Petitioners claim that §92 is an invalid amendment of R.A. No. 7252 which granted GMA Network,
Inc. a franchise for the operation of radio and television broadcasting stations. They argue that
although §5 of R.A. No. 7252 gives the government the power to temporarily use and operate the
stations of petitioner GMA Network or to authorize such use and operation, the exercise of this right
must be compensated.
The cited provision of. R.A. No. 7252 states:

Sec. 5. Right of Government. — A special right is hereby reserved to the President of the
Philippines, in times of rebellion, public peril, calamity, emergency, disaster or disturbance of
peace and order, to temporarily take over and operate the stations of the grantee, to
temporarily suspend the operation of any station in the interest of public safety, security and
public welfare, or to authorize the temporary use and operation thereof by any agency of the
Government, upon due compensation to the grantee, for the use of said stations during the
period when they shall be so operated.
The basic flaw in petitioner's argument is that it assumes that the provision for COMELEC Time
constitutes the use and operation of the stations of the GMA Network, Inc., This is not so. Under §92
of B.P. Blg. 881, the COMELEC does not take over the operation of radio and television stations but
only the allocation of air time to the candidates for the purpose of ensuring, among other things,
equal opportunity, time, and the right to reply as mandated by the Constitution.23
Indeed, it is wrong to claim an amendment of petitioner's franchise for the reason that B.P. Blg. 881,
which is said to have amended R.A. No. 7252, actually antedated it.24 The provision of §92 of B.P.
Blg. 881 must be deemed instead to be incorporated in R.A. No. 7252. And, indeed, §4 of the latter
statute does.
For the fact is that the duty imposed on the GMA Network, Inc. by its franchise to render "adequate
public service time" implements §92 of B.P. Blg. 881. Undoubtedly, its purpose is to enable the
government to communicate with the people on matters of public interest. Thus, R.A. No. 7252
provides:
Sec. 4. Responsibility to the Public. — The grantee shall provide adequate public service
time to enable the Government, through the said broadcasting stations, to reach the
population on important public issues; provide at all times sound and balanced programming;
promote public participation such as in community programming; assist in the functions of
public information and education; conform to the ethics of honest enterprise; and not use its
station for the broadcasting of obscene and indecent language, speech, act or scene, or for
the dissemination of deliberately false information or willful misrepresentation, or to the
detriment of the public interest, or to incite, encourage, or assist in subversive or treasonable
acts. (Emphasis added).
It is noteworthy that §40 of R.A. No. 6388, from which §92 of B.P. Blg. 881 was taken, expressly
provided that the COMELEC Time should "be considered as part of the public service time said
stations are required to furnish the Government for the dissemination of public information and
education under their respective franchises or permits." There is no reason to suppose that §92 of
B.P. Blg. 881 considers the COMELEC Time therein provided to be otherwise than as a public
service which petitioner is required to render under §4 of its charter (R.A. No. 7252). In sum, B.P.
Blg. 881, §92 is not an invalid amendment of petitioner's franchise but the enforcement of a duty
voluntarily assumed by petitioner in accepting a public grant of privilege.
Thus far, we have confined the discussion to the provision of §92 of B.P. Blg. 881 for free air time
without taking into account COMELEC Resolution No. 2983-A, §2 of which states:
Sec. 2. Grant of "Comelec Time." — Every radio broadcasting and television station
operating under franchise shall grant the Commission, upon payment of just compensation,
at least thirty (30) minutes of prime time daily, to be known as "Comelec Time", effective
February 10, 1998 for candidates for President, Vice-President and Senators, and effective
March 27, 1998, for candidates for local elective offices, until May 9, 1998. (Emphasis
added).
This is because the amendment providing for the payment of "just compensation" is invalid, being in
contravention of §92 of B.P. Blg. 881 that radio and television time given during the period of the
campaign shall be "free of charge." Indeed, Resolution No. 2983 originally provided that the time
allocated shall be "free of charge," just as §92 requires such time to be given "free of charge." The
amendment appears to be a reaction to petitioner's claim in this case that the original provision was
unconstitutional because it allegedly authorized the taking of property without just compensation.
The Solicitor General, relying on the amendment, claims that there should be no more dispute
because the payment of compensation is now provided for. It is basic, however, that an
administrative agency cannot, in the exercise of lawmaking, amend a statute of Congress. Since §2
of Resolution No. 2983-A is invalid, it cannot be invoked by the parties.
Law Allows Flextime for Programming
by Stations, Not Confiscation of
Air Time by COMELEC
It is claimed that there is no standard in the law to guide the COMELEC in procuring free air time
and that "theoretically the COMELEC can demand all of the air time of such stations."25 Petitioners
do not claim that COMELEC Resolution No. 2983-A arbitrarily sequesters radio and television time.
What they claim is that because of the breadth of the statutory language, the provision in question is
susceptible of "unbridled, arbitrary and oppressive exercise."26
The contention has no basis. For one, the COMELEC is required to procure free air time for
candidates "within the area of coverage" of a particular radio or television broadcaster so that it
cannot, for example, procure such time for candidates outside that area. At what time of the day and
how much time the COMELEC may procure will have to be determined by it in relation to the overall
objective of informing the public about the candidates, their qualifications and their programs of
government. As stated in Osmeña v. COMELEC, the COMELEC Time provided for in §92, as well
as the COMELEC Space provided for in §90, is in lieu of paid ads which candidates are prohibited to
have under §11(b) of R.A. No. 6646. Accordingly, this objective must be kept in mind in determining
the details of the COMELEC Time as well as those of the COMELEC Space.
There would indeed be objection to the grant of power to the COMELEC if §92 were so detailed as
to leave no room for accommodation of the demands of radio and television programming. For were
that the case, there could be an intrusion into the editorial prerogatives of radio and television
stations.
Differential Treatment of
Broadcast Media Justified
Petitioners complain that B.P. Blg. 881, §92 singles out radio and television stations to provide free
air time. They contend that newspapers and magazines are not similarly required as, in fact,
in Philippine Press Institute v.COMELEC,27 we upheld their right to the payment of just compensation
for the print space they may provide under §90.
The argument will not bear analysis. It rests on the fallacy that broadcast media are entitled to the
same treatment under the free speech guarantee of the Constitution as the print media. There are
important differences in the characteristics of the two media, however, which justify their differential
treatment for free speech purposes. Because of the physical limitations of the broadcast spectrum,
the government must, of necessity, allocate broadcast frequencies to those wishing to use them.
There is no similar justification for government allocation and regulation of the print media.28
In the allocation of limited resources, relevant conditions may validly be imposed on the grantees or
licensees. The reason for this is that, as already noted, the government spends public funds for the
allocation and regulation of the broadcast industry, which it does not do in the case of the print
media. To require the radio and television broadcast industry to provide free air time for the
COMELEC Time is a fair exchange for what the industry gets.
From another point of view, this Court has also held that because of the unique and pervasive
influence of the broadcast media, "[n]ecessarily . . . the freedom of television and radio broadcasting
is somewhat lesser in scope than the freedom accorded to newspaper and print media."29
The broadcast media have also established a uniquely pervasive presence in the lives of all
Filipinos. Newspapers and current books are found only in metropolitan areas and in the
poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low
income masses who find the cost of books, newspapers, and magazines beyond their humble
means. Basic needs like food and shelter perforce enjoy high priorities.
On the other hand, the transistor radio is found everywhere. The television set is also
becoming universal. Their message may be simultaneously received by a national or
regional audience of listeners including the indifferent or unwilling who happen to be within
reach of a blaring radio or television set. The materials broadcast over the airwaves reach
every person of every age, persons of varying susceptibilities to persuasion, persons of
different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive
speech would he difficult to monitor or predict. The impact of the vibrant speech is forceful
and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity
to cogitate, analyze, and reject the utterance. 30
Petitioners' assertion therefore that §92 of B.P. Blg. 881 denies them the equal protection of the law
has no basis. In addition, their plea that §92 (free air time) and §11(b) of R.A. No. 6646 (ban on paid
political ads) should be invalidated would pave the way for a return to the old regime where
moneyed candidates could monopolize media advertising to the disadvantage of candidates with
less resources. That is what Congress tried to reform in 1987 with the enactment of R.A. No. 6646.
We are not free to set aside the judgment of Congress, especially in light of the recent failure of
interested parties to have the law repealed or at least modified.
Requirement of COMELEC Time, a
Reasonable Exercise of the
State's Power to Regulate
Use of Franchises
Finally, it is argued that the power to supervise or regulate given to the COMELEC under Art. IX-C,
§4 of the Constitution does not include the power to prohibit. In the first place, what the COMELEC is
authorized to supervise or regulate by Art. IX-C, §4 of the Constitution,31 among other things, is the
use by media of information of their franchises or permits, while what Congress (not the COMELEC)
prohibits is the sale or donation of print space or air time for political ads. In other words, the object
of supervision or regulation is different from the object of the prohibition. It is another fallacy for
petitioners to contend that the power to regulate does not include the power to prohibit. This may
have force if the object of the power were the same.
In the second place, the prohibition in §11(b) of R.A. No. 6646 is only half of the regulatory provision
in the statute. The other half is the mandate to the COMELEC to procure print space and air time for
allocation to candidates. As we said in Osmeña v. COMELEC:
The term political "ad ban" when used to describe §11(b) of R.A. No. 6646, is misleading, for
even as §11(b) prohibits the sale or donation of print space and air time to political
candidates, it mandates the COMELEC to procure and itself allocate to the candidates space
and time in the media. There is no suppression of political ads but only a regulation of the
time and manner of advertising.
xxx xxx xxx
. . . What is involved here is simply regulation of this nature. Instead of leaving candidates to
advertise freely in the mass media, the law provides for allocation, by the COMELEC of print
space and air time to give all candidates equal time and space for the purpose of ensuring
"free, orderly, honest, peaceful, and credible elections."
With the prohibition on media advertising by candidates themselves, the COMELEC Time and
COMELEC Space are about the only means through which candidates can advertise their
qualifications and programs of government. More than merely depriving their qualifications and
programs of government. More than merely depriving candidates of time for their ads, the failure of
broadcast stations to provide air time unless paid by the government would clearly deprive the
people of their right to know. Art III, §7 of the Constitution provides that "the right of the people to
information on matters of public concern shall be recognized," while Art. XII, §6 states that "the use
of property bears a social function [and] the right to own, establish, and operate economic
enterprises [is] subject to the duty of the State to promote distributive justice and to intervene when
the common good so demands."
To affirm the validity of §92 of B.P. Blg. 881 is to hold public broadcasters to their obligation to see to
it that the variety and vigor of public debate on issues in an election is maintained. For while
broadcast media are not mere common carriers but entities with free speech rights, they are also
public trustees charged with the duty of ensuring that the people have access to the diversity of
views on political issues. This right of the people is paramount to the autonomy of broadcast media.
To affirm the validity of §92, therefore, is likewise to uphold the people's right to information on
matters of public concern. The use of property bears a social function and is subject to the state's
duty to intervene for the common good. Broadcast media can find their just and highest reward in the
fact that whatever altruistic service they may render in connection with the holding of elections is for
that common good.
For the foregoing reasons, the petition is dismissed.
SO ORDERED.
77

SUPREME COURT
Manila
EN BANC
G.R. No. 205357 September 2, 2014
GMA NETWORK, INC., Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.
SENATOR ALAN PETER "COMPAÑERO" S. CAYETANO,Petitioner-Intervenor.
x-----------------------x
G.R. No. 205374
ABC DEVELOPMENT CORPORATION, Petitioner,

vs.
x-----------------------x
G.R. No. 205592
MANILA BROADCASTING COMPANY, INC. and NEWSOUNDS BROADCASTING NETWORK,

INC., Petitioner,
vs.
x-----------------------x
G.R. No. 205852
KAPISANAN NG MGA BRODKASTER NG PILIPINAS (KBP) and ABS-CBN

CORPORATION, Petitioners,
vs.
x-----------------------x
G.R. No. 206360
RADIO MINDANAO NETWORK, INC., Petitioner,

vs.
DECISION
PERALTA, J.:
"The clash of rights demands a delicate balancing of interests approach which is a 'fundamental
postulate of constitutional law.'"1
Once again the Court is asked to draw a carefully drawn balance in the incessant conflicts between
rights and regulations, liberties and limitations, and competing demands of the different segments of
society. Here, we are confronted with the need to strike a workable and viable equilibrium between a
constitutional mandate to maintain free, orderly, honest, peaceful and credible elections, together
with the aim of ensuring equal opportunity, time and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums among
candidates,2 on one hand, and the imperatives of a republican and democratic state,3 together with
its guaranteed rights of suffrage,4 freedom of speech and of the press,5 and the people's right to
information,6 on the other.
In a nutshell, the present petitions may be seen as in search of the answer to the question - how
does the Charter of a republican and democratic State achieve a viable and acceptable balance
between liberty, without which, government becomes an unbearable tyrant, and authority, without
which, society becomes an intolerable and dangerous arrangement?
Assailed in these petitions are certain regulations promulgated by the Commission on Elections
(COMELEC) relative to the conduct of the 2013 national and local elections dealing with political
advertisements. Specifically, the petitions question the constitutionality of the limitations placed on
aggregate airtime allowed to candidates and political parties, as well as the requirements incident
thereto, such as the need to report the same, and the sanctions imposed for violations.
The five (5) petitions before the Court put in issue the alleged unconstitutionality of Section 9 (a) of
COMELEC Resolution No. 9615 (Resolution) limiting the broadcast and radio advertisements of
candidates and political parties for national election positions to an aggregate total of one hundred
twenty (120) minutes and one hundred eighty (180) minutes, respectively. They contend that such
restrictive regulation on allowable broadcast time violates freedom of the press, impairs the people's
right to suffrage as well as their right to information relative to the exercise of their right to choose
who to elect during the forth coming elections.
The heart of the controversy revolves upon the proper interpretation of the limitation on the number
of minutes that candidates may use for television and radio advertisements, as provided in Section 6
of Republic Act No. 9006 (R.A. No. 9006), otherwise known as the Fair Election Act. Pertinent
portions of said provision state, thus:
Sec. 6. Equal Access to Media Time and Space. - All registered parties and bona fide candidates
shall have equal access to media time and space. The following guidelines may be amplified on by
the COMELEC:
xxxx
6.2 (a) Each bona fide candidate or registered political party for a nationally elective office shall be
entitled to not more than one hundred twenty (120) minutes of television advertisement and one
hundred eighty (180) minutes of radio advertisement whether by purchase or donation.
b. Each bona fide candidate or registered political party for a locally elective office shall be entitled to
not more than sixty ( 60) minutes of television advertisement and ninety (90) minutes of radio
advertisement whether by purchase or donation.
For this purpose, the COMELEC shall require any broadcast station or entity to submit to the
COMELEC a copy of its broadcast logs and certificates of performance for the review and
verification of the frequency, date, time and duration of advertisements broadcast for any candidate
or political party.
During the previous elections of May 14, 2007 and May 10, 2010, COMELEC issued Resolutions
implementing and interpreting Section 6 of R.A. No. 9006, regarding airtime limitations, to mean that
a candidate is entitled to the aforestated number of minutes "per station."7 For the May 2013
elections, however, respondent COMELEC promulgated Resolution No. 9615 dated January 15,
2013, changing the interpretation of said candidates' and political parties' airtime limitation for
political campaigns or advertisements from a "per station" basis, to a "total aggregate" basis.
Petitioners ABS-CBN Corporation (ABS-CBN), ABC Development Corporation (ABC), GMA

Network, Incorporated ( GMA), Manila Broadcasting Company, Inc. (MBC), Newsounds
Broadcasting Network, Inc. (NBN), and Radio Mindanao Network, Inc. (RMN) are owners/operators
of radio and television networks in the Philippines, while petitioner Kapisanan ng mga Brodkaster ng
Pilipinas (KBP) is the national organization of broadcasting companies in the Philippines
representing operators of radio and television stations and said stations themselves. They sent their
respective letters to the COMELEC questioning the provisions of the aforementioned Resolution,
thus, the COMELEC held public hearings. Thereafter, on February 1, 2013, respondent issued
Resolution No. 9631 amending provisions of Resolution No. 9615. Nevertheless, petitioners still
found the provisions objectionable and oppressive, hence, the present petitions.
All of the petitioners assail the following provisions of the Resolution:
a) Section 7 (d),8 which provides for a penalty of suspension or revocation of an offender's

franchise or permit, imposes criminal liability against broadcasting entities and their officers
in the event they sell airtime in excess of the size, duration, or frequency authorized in the
new rules;
b) Section 9 (a),9 which provides for an "aggregate total" airtime instead of the previous "per
station" airtime for political campaigns or dvertisements, and also required prior COMELEC
approval for candidates' television and radio guestings and appearances; and
c) Section 14,10 which provides for a candidate's "right to reply."
In addition, petitioner ABC also questions Section 1 (4) 11 thereof, which defines the term "political
advertisement" or "election propaganda," while petitioner GMA further assails Section 35, 12 which
states that any violation of said Rules shall constitute an election offense.
On March 15, 2013, Senator Alan Peter S. Cayetano (Petitioner-Intervenor) filed a Motion for Leave
to Intervene and to File and Admit the Petition-in-Intervention, which was granted by the Court per its
Resolution dated March 19, 2013. Petitioner-Intervenor also assails Section 9 (a) of the Resolution
changing the interpretation of candidates' and political parties' airtime limitation for political
campaigns or advertisements from a "per station" basis, to a "total aggregate" basis. Petitioners
allege that Resolutions No. 9615 and 9631, amending the earlier Resolution, are unconstitutional
and issued without jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction, for the reasons set forth hereunder.
Petitioners posit that Section 9 (a) of the assailed Resolution provides for a very restrictive
aggregate airtime limit and a vague meaning for a proper computation of "aggregate total" airtime,
and violates the equal protection guarantee, thereby defeating the intent and purpose of R.A. No.
9006.
Petitioners contend that Section 9 (a), which imposes a notice requirement, is vague and infringes
on the constitutionally protected freedom of speech, of the press and of expression, and on the right
of people to be informed on matters of public concern
Also, Section 9 (a) is a cruel and oppressive regulation as it imposes an unreasonable and almost
impossible burden on broadcast mass media of monitoring a candidate's or political party's
aggregate airtime, otherwise, it may incur administrative and criminal liability.
Further, petitioners claim that Section 7 (d) is null and void for unlawfully criminalizing acts not
prohibited and penalized as criminal offenses by R.A. No. 9006.
Section 14 of Resolution No. 9615, providing for a candidate's or political party's "right to reply," is
likewise assailed to be unconstitutional for being an improper exercise of the COMELEC's regulatory
powers; for constituting prior restraint and infringing petitioners' freedom of expression, speech and
the press; and for being violative of the equal protection guarantee. In addition to the foregoing,
petitioner GMA further argues that the Resolution was promulgated without public consultations, in
violation of petitioners' right to due process. Petitioner ABC also avers that the Resolution's definition
of the terms "political advertisement" and "election propaganda" suffers from overbreadth, thereby
producing a "chilling effect," constituting prior restraint.
On the other hand, respondent posits in its Comment and Opposition13 dated March 8, 2013, that the
petition should be denied based on the following reasons:
Respondent contends that the remedies of certiorari and prohibition are not available to petitioners,
because the writ of certiorari is only available against the COMELEC's adjudicatory or quasi-judicial
powers, while the writ of prohibition only lies against the exercise of judicial, quasijudicial or
ministerial functions. Said writs do not lie against the COMELEC's administrative or rule-making
powers.
Respondent likewise alleges that petitioners do not have locus standi, as the constitutional rights
and freedoms they enumerate are not personal to them, rather, they belong to candidates, political
parties and the Filipino electorate in general, as the limitations are imposed on candidates, not on
media outlets. It argues that petitioners' alleged risk of exposure to criminal liability is insufficient to
give them legal standing as said "fear of injury" is highly speculative and contingent on a future act.
Respondent then parries petitioners' attack on the alleged infirmities of the Resolution's provisions.
Respondent maintains that the per candidate rule or total aggregate airtime limit is in accordance
with R.A. No. 9006 as this would truly give life to the constitutional objective to equalize access to
media during elections. It sees this as a more effective way of levelling the playing field between
candidates/political parties with enormous resources and those without much. Moreover, the
COMELEC's issuance of the assailed Resolution is pursuant to Section 4, Article IX (C) of the
Constitution which vests on the COMELEC the power to supervise and regulate, during election
periods, transportation and other public utilities, as well as mass media, to wit:
Sec. 4. The Commission may, during the election period, supervise or regulate the enjoyment or
opportunity, and equal rates therefor, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible
elections.
This being the case, then the Resolutions cannot be said to have been issued with grave abuse of
discretion amounting to lack of jurisdiction.
Next, respondent claims that the provisions are not vague because the assailed Resolutions have
given clear and adequate mechanisms to protect broadcast stations from potential liability arising
from a candidate's or party's violation of airtime limits by putting in the proviso that the station "may
require buyer to warrant under oath that such purchase [of airtime] is not in excess of size, duration
or frequency authorized by law or these rules." Furthermore, words should be understood in the
sense that they have in common usage, and should be given their ordinary meaning. Thus, in the
provision for the right to reply, "charges" against candidates or parties must be understood in the
ordinary sense, referring to accusations or criticisms.
Respondent also sees no prior restraint in the provisions requiring notice to the COMELEC for
appearances or guestings of candidates in bona fide news broadcasts. It points out that the fact that
notice may be given 24 hours after first broadcast only proves that the mechanism is for monitoring
purposes only, not for censorship. Further, respondent argues, that for there to be prior restraint,
official governmental restrictions on the press or other forms of expression must be done in advance
of actual publication or dissemination. Moreover, petitioners are only required to inform the
COMELEC of candidates'/parties' guestings, but there is no regulation as to the content of the news
or the expressions in news interviews or news documentaries. Respondent then emphasized that
the Supreme Court has held that freedom of speech and the press may be limited in light of the duty
of the COMELEC to ensure equal access to opportunities for public service.
With regard to the right to reply provision, respondent also does not consider it as restrictive of the
airing of bona fide news broadcasts. More importantly, it stressed, the right to reply is enshrined in
the Constitution, and the assailed Resolutions provide that said right can only be had after going
through administrative due process. The provision was also merely lifted from Section 10 of R.A. No.
9006, hence, petitioner ABC is actually attacking the constitutionality of R.A. No. 9006, which cannot
be done through a collateral attack.
Next, respondent counters that there is no merit to ABC's claim that the Resolutions' definition of
"political advertisement" or "election propaganda" suffers from overbreadth, as the extent or scope of
what falls under said terms is clearly stated in Section 1 (4) of Resolution No. 9615.
It is also respondent's view that the nationwide aggregate total airtime does not violate the equal
protection clause, because it does not make any substantial distinctions between national and
regional and/or local broadcast stations, and even without the aggregate total airtime rule,
candidates and parties are likely to be more inclined to advertise in national broadcast stations.
Respondent likewise sees no merit in petitioners' claim that the Resolutions amount to taking of
private property without just compensation. Respondent emphasizes that radio and television
broadcasting companies do not own the airwaves and frequencies through which they transmit
broadcast signals; they are merely given the temporary privilege to use the same. Since they are
merely enjoying a privilege, the same may be reasonably burdened with some form of public service,
in this case, to provide candidates with the opportunity to reply to charges aired against them.
Lastly, respondent contends that the public consultation requirement does not apply to constitutional
commissions such as the COMELEC, pursuant to Section 1, Chapter I, Book VII of the
Administrative Code of 1987. Indeed, Section 9, Chapter II, Book VII of said Code provides, thus:
Section 9. Public Participation. - (1) If not otherwise required by law, an agency shall, as far
as practicable, publish or circulate notices of proposed rules and afford interested parties the
opportunity to submit their views prior to the adoption of any rule.
However, Section 1, Chapter 1, Book VII of said Code clearly provides:

Section 1. Scope. -This Book shall be applicable to all agencies as defined in the next
succeeding section, except the Congress, the Judiciary, the Constitutional Commissions,
military establishments in all matters relating exclusively to Armed Forces personnel, the
Board of Pardons and Parole, and state universities and colleges.
Nevertheless, even if public participation is not required, respondent still conducted a meeting with
representatives of the KBP and various media outfits on December 26, 2012, almost a month before
the issuance of Resolution No. 9615.
On April 2, 2013, petitioner GMA filed its Reply,14 where it advanced the following counter-
arguments:
According to GMA, a petition for certiorari is the proper remedy to question the herein assailed
Resolutions, which should be considered as a "decision, order or ruling of the Commission" as
mentioned in Section 1, Rule 37 of the COMELEC Rules of Procedure which provides:
Section 1. Petition for Certiorari,· and Time to File. - Unless otherwise provided by law, or by any
specific provisions in these Rules, any decision, order or ruling of the Commission may be brought to
the Supreme Court on certiorari by the aggrieved party within thirty (30) days from its promulgation.
GMA further stressed that this case involves national interest, and the urgency of the matter justifies
its resort to the remedy of a petition for certiorari.
Therefore, GMA disagrees with the COMELEC's position that the proper remedy is a petition for
declaratory relief because such action only asks the court to make a proper interpretation of the
rights of parties under a statute or regulation. Such a petition does not nullify the assailed statute or
regulation, or grant injunctive relief, which petitioners are praying for in their petition. Thus, GMA
maintains that a petition for certiorari is the proper remedy.
GMA further denies that it is making a collateral attack on the Fair Election Act, as it is not attacking
said law. GMA points out that it has stated in its petition that the law in fact allows the sale or
donation of airtime for political advertisements and does not impose criminal liability against radio
and television stations. What it is assailing is the COMELEC's erroneous interpretation of the law's
provisions by declaring such sale and/or donation of airtime unlawful, which is contrary to the
purpose of the Fair Election Act.
GMA then claims that it has legal standing to bring the present suit because:
x x x First, it has personally suffered a threatened injury in the form of risk of criminal liability
because of the alleged unconstitutional and unlawful conduct of respondent COMELEC in expanding
what was provided for in R.A. No. 9006. Second, the injury is traceable to the challenged action of
respondent COMELEC, that is, the issuance of the assailed Resolutions. Third, the injury is likely to
be redressed by the remedy sought in petitioner GMA's Petition, among others, for the Honorable
Court to nullify the challenged pertinent provisions of the assailed Resolutions.15
On substantive issues, GMA first argues that the questioned Resolutions are contrary to the
objective and purpose of the Fair Election Act. It points out that the Fair Election Act even repealed
the political ad ban found in the earlier law, R.A. No. 6646. The Fair Election Act also speaks of
"equal opportunity" and "equal access,'' but said law never mentioned equalizing the economic
station of the rich and the poor, as a declared policy. Furthermore, in its opinion, the supposed
correlation between candidates' expenditures for TV ads and actually winning the elections, is a
mere illusion, as there are other various factors responsible for a candidate's winning the election.
GMA then cites portions of the deliberations of the Bicameral Conference Committee on the bills that
led to the enactment of the Fair Election Act, and alleges that this shows the legislative intent that
airtime allocation should be on a "per station" basis. Thus, GMA claims it was arbitrary and a grave
abuse of discretion for the COMELEC to issue the present Resolutions imposing airtime limitations
on an "aggregate total" basis.
It is likewise insisted by GMA that the assailed Resolutions impose an unconstitutional burden on
them, because their failure to strictly monitor the duration of total airtime that each candidate has
purchased even from other stations would expose their officials to criminal liability and risk losing the
station's good reputation and goodwill, as well as its franchise. It argues that the wordings of the
Resolutions belie the COMELEC's claim that petitioners would only incur liability if they "knowingly"
sell airtime beyond the limits imposed by the Resolutions, because the element of knowledge is
clearly absent from the provisions thereof. This makes the provisions have the nature of malum
prohibitum.
Next, GMA also says that the application of the aggregate airtime limit constitutes prior restraint and
is unconstitutional, opining that "[t]he reviewing power of respondent COMELEC and its sole
judgment of a news event as a political advertisement are so pervasive under the assailed
Resolutions, and provoke the distastes or chilling effect of prior restraint"16 as even a legitimate
exercise of a constitutional right might expose it to legal sanction. Thus, the governmental interest of
leveling the playing field between rich and poor candidates cannot justify the restriction on the
freedoms of expression, speech and of the press.
On the issue of lack of prior public participation, GMA cites Section 82 of the Omnibus Election
Code, pertinent portions of which provide, thus:
Section 82. Lawful election propaganda. - Lawful election propaganda shall include:
xxxx
All other forms of election propaganda not prohibited by this Code as the Commission may authorize
after due notice to all interested parties and hearing where all the interested parties were given an
equal opportunity to be heard: Provided, That the Commission's authorization shall be published in
two newspapers of general circulation throughout the nation for at least twice within one week after
the authorization has been granted.
There having been no prior public consultation held, GMA contends that the COMELEC is guilty of
depriving petitioners of its right to due process of law.
GMA then concludes that it is also entitled to a temporary restraining order, because the
implementation of the Resolutions in question will cause grave and irreparable damage to it by
disrupting and emasculating its mandate to provide television and radio services to the public, and
by exposing it to the risk of incurring criminal and administrative liability by requiring it to perform the
impossible task of surveillance and monitoring, or the broadcasts of other radio and television
stations.
Thereafter, on April 4, 2013, the COMELEC, through the Office of the Solicitor General (OSG), filed
a Supplemental Comment and Opposition17 where it further expounded on the legislative intent
behind the Fair Election Act, also quoting portions of the deliberations of the Bicameral Conference
Committee, allegedly adopting the Senate Bill version setting the computation of airtime limits on a
per candidate, not per station, basis. Thus, as enacted into law, the wordings of Section 6 of the Fair
Election Act shows that the airtime limit is imposed on a per candidate basis, rather than on a per
station basis. Furthermore, the COMELEC states that petitioner intervenor Senator Cayetano is
wrong in arguing that there should be empirical data to support the need to change the computation
of airtime limits from a per station basis to a per candidate basis, because nothing in law obligates
the COMELEC to support its Resolutions with empirical data, as said airtime limit was a policy
decision dictated by the legislature itself, which had the necessary empirical and other data upon
which to base said policy decision.
The COMELEC then points out that Section 2 (7),18 Article IX (C) of the Constitution empowers it to
recommend to Congress effective measures to minimize election spending and in furtherance of
such constitutional power, the COMELEC issued the questioned Resolutions, in faithful
implementation of the legislative intent and objectives of the Fair Election Act.
The COMELEC also dismisses Senator Cayetano's fears that unauthorized or inadvertent inclusion
of his name, initial, image, brand, logo, insignia and/or symbol in tandem advertisements will be
charged against his airtime limits by pointing out that what will be counted against a candidate's
airtime and expenditures are those advertisements that have been paid for or donated to them to
which the candidate has given consent.
With regard to the attack that the total aggregate airtime limit constitutes prior restraint or undue
abridgement of the freedom of speech and expression, the COMELEC counters that "the
Resolutions enjoy constitutional and congressional imprimatur. It is the Constitution itself that
imposes the restriction on the freedoms of speech and expression, during election period, to
promote an important and significant governmental interest, which is to equalize, as far as
practicable, the situation of rich and poor candidates by preventing the former from enjoying the
undue advantage offered by huge campaign 'war chests."'19
Lastly, the COMELEC also emphasizes that there is no impairment of the people's right to
information on matters of public concern, because in this case, the COMELEC is not withholding
access to any public record.
On April 16, 2013, this Court issued a Temporary Restraining Order20 (TRO) in view of the urgency
involved and to prevent irreparable injury that may be caused to the petitioners if respondent
COMELEC is not enjoined from implementing Resolution No. 9615.
On April 19, 2013 respondent filed an Urgent Motion to Lift Temporary Restraining Order and Motion
for Early Resolution of the Consolidated Petitions.21
On May 8, 2013, petitioners ABS-CBN and the KBP filed its Opposition/Comment22 to the said
Motion. Not long after, ABC followed suit and filed its own Opposition to the Motion23 filed by the
respondent.
In the interim, respondent filed a Second Supplemental Comment and Opposition24 dated April 8,
2013.
In the Second Supplemental Comment and Opposition, respondent delved on points which were not
previously discussed in its earlier Comment and Supplemental Comment, particularly those raised in
the petition filed by petitioner ABS-CBN and KBP.
Respondent maintains that certiorari in not the proper remedy to question the Constitutionality of the
assailed Resolutions and that petitioners ABS-CBN and KBP have no locus standi to file the present
petition.
Respondent posits that contrary to the contention of petitioners, the legislative history of R.A. No.
9006 conclusively shows that congress intended the airtime limits to be computed on a "per
candidate" and not on a "per station" basis. In addition, the legal duty of monitoring lies with the
COMELEC. Broadcast stations are merely required to submit certain documents to aid the
COMELEC in ensuring that candidates are not sold airtime in excess of the allowed limits.
Also, as discussed in the earlier Comment, the prior notice requirement is a mechanism designed to
inform the COMELEC of the appearances or guesting of candidates in bona fide news broadcasts. It
is for monitoring purposes only, not censorship. It does not control the subject matter of news
broadcasts in anyway. Neither does it prevent media outlets from covering candidates in news
interviews, news events, and news documentaries, nor prevent the candidates from appearing
thereon.
As for the right to reply, respondent insists that the right to reply provision cannot be considered a
prior restraint on the freedoms of expression, speech and the press, as it does not in any way restrict
the airing of bona fide new broadcasts. Media entities are free to report any news event, even if it
should turn out to be unfavourable to a candidate or party. The assailed Resolutions merely give the
candidate or party the right to reply to such charges published or aired against them in news
broadcasts.
Moreover, respondent contends that the imposition of the penalty of suspension and revocation of
franchise or permit for the sale or donation of airtime beyond the allowable limits is sanctioned by the
Omnibus Election Code.
Meanwhile, RMN filed its Petition on April 8, 2013. On June 4, 2013, the Court issued a
Resolution25 consolidating the case with the rest of the petitions and requiring respondent to
comment thereon.
On October 10, 2013, respondent filed its Third Supplemental Comment and Opposition.26 Therein,
respondent stated that the petition filed by RMN repeats the issues that were raised in the previous
petitions. Respondent, likewise, reiterated its arguments that certiorari in not the proper remedy to
question the assailed resolutions and that RMN has no locus standi to file the present petition.
Respondent maintains that the arguments raised by RMN, like those raised by the other petitioners
are without merit and that RMN is not entitled to the injunctive relief sought.
The petition is partly meritorious.
At the outset, although the subject of the present petit10ns are Resolutions promulgated by the
COMELEC relative to the conduct of the 2013 national and local elections, nevertheless the issues
raised by the petitioners have not been rendered moot and academic by the conclusion of the 2013
elections. Considering that the matters elevated to the Court for resolution are susceptible to
repetition in the conduct of future electoral exercises, these issues will be resolved in the present
action.
PROCEDURAL ASPECTS
Matters of procedure and technicalities normally take a backseat when issues of substantial and
transcendental importance are presented before the Court. So the Court does again in this particular
case.
Proper Remedy
Respondent claims that certiorari and prohibition are not the proper remedies that petitioners have
taken to question the assailed Resolutions of the COMELEC. Technically, respondent may have a
point. However, considering the very important and pivotal issues raised, and the limited time, such
technicality should not deter the Court from having to make the final and definitive pronouncement
that everyone else depends for enlightenment and guidance. "[T]his Court has in the past seen fit to
step in and resolve petitions despite their being the subject of an improper remedy, in view of the
public importance of the tile issues raised therein.27
It has been in the past, we do so again.
Locus Standi
Every time a constitutional issue is brought before the Court, the issue of locus standi is raised to
question the personality of the parties invoking the Court's jurisdiction. The Court has routinely made
reference to a liberalized stance when it comes to petitions raising issues of transcendental
importance to the country. Invariably, after some discussions, the Court would eventually grant
standing.28
In this particular case, respondent also questions the standing of the petitioners. We rule for the
petitioners. For petitioner-intervenor Senator Cayetano, he undoubtedly has standing since he is a
candidate whose ability to reach out to the electorate is impacted by the assailed Resolutions.
For the broadcast companies, they similarly have the standing in view of the direct injury they may
suffer relative to their ability to carry out their tasks of disseminating information because of the
burdens imposed on them. Nevertheless, even in regard to the broadcast companies invoking the
injury that may be caused to their customers or the public - those who buy advertisements and the
people who rely on their broadcasts - what the Court said in White Light Corporation v. City of
Manila29 may dispose of the question. In that case, there was an issue as to whether owners of
establishments offering "wash-up" rates may have the requisite standing on behalf of their patrons'
equal protection claims relative to an ordinance of the City of Manila which prohibited "short-time" or
"wash-up" accommodation in motels and similar establishments. The Court essentially condensed
the issue in this manner: "[T]he crux of the matter is whether or not these establishments have the
requisite standing to plead for protection of their patrons' equal protection rights."30 The Court then
went on to hold:
Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to
and harm from the law or action challenged to support that party's participation in the case. More
importantly, the doctrine of standing is built on the principle of separation of powers, sparing as it
does unnecessary interference or invalidation by the judicial branch of the actions rendered by its
co-equal branches of government.
The requirement of standing is a core component of the judicial system derived directly from the
Constitution. The constitutional component of standing doctrine incorporates concepts which
concededly are not susceptible of precise definition. In this jurisdiction, the extancy of "a direct and
personal interest" presents the most obvious cause, as well as the standard test for a petitioner's
standing. In a similar vein, the United States Supreme Court reviewed and elaborated on the
meaning of the three constitutional standing requirements of injury, causation, and redressability in
Allen v. Wright.
Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth
doctrine, taxpayer suits, third party standing and, especially in the Philippines, the doctrine of
transcendental importance.
For this particular set of facts, the concept of third party standing as an exception and the
overbreadth doctrine are appropriate. x x x
xxxx
American jurisprudence is replete with examples where parties-ininterest were allowed standing to
advocate or invoke the fundamental due process or equal protection claims of other persons or
classes of persons injured by state action. x x x
xxxx
Assuming arguendo that petitioners do not have a relationship with their patrons for the former to
assert the rights of the latter, the overbreadth doctrine comes into play. In overbreadth analysis,
challengers to government action are in effect permitted to raise the rights of third parties. Generally
applied to statutes infringing on the freedom of speech, the overbreadth doctrine applies when a
statute needlessly restrains even constitutionally guaranteed rights. In this case, the petitioners claim
that the Ordinance makes a sweeping intrusion into the right to liberty of their clients. We can see
that based on the allegations in the petition, the Ordinance suffers from overbreadth.
We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to
patronize their establishments for a "wash-rate" time frame.31
If in regard to commercial undertakings, the owners may have the right to assert a constitutional right
of their clients, with more reason should establishments which publish and broadcast have the
standing to assert the constitutional freedom of speech of candidates and of the right to information
of the public, not to speak of their own freedom of the press. So, we uphold the standing of
petitioners on that basis.
SUBSTANTIVE ASPECTS
Aggregate Time Limits
COMELEC Resolution No. 9615 introduced a radical departure from the previous COMELEC
resolutions relative to the airtime limitations on political advertisements. This essentially consists in
computing the airtime on an aggregate basis involving all the media of broadcast communications
compared to the past where it was done on a per station basis. Thus, it becomes immediately
obvious that there was effected a drastic reduction of the allowable minutes within which candidates
and political parties would be able to campaign through the air. The question is accordingly whether
this is within the power of the COMELEC to do or not. The Court holds that it is not within the power
of the COMELEC to do so.
a. Past elections and airtime limits
The authority of the COMELEC to impose airtime limits directly flows from the Fair Election Act (R.A.
No. 9006 [2001])32 - one hundred (120) minutes of television advertisement and one-hundred· eighty
(180) minutes for radio advertisement. For the 2004 elections, the respondent COMELEC
promulgated Resolution No. 652033 implementing the airtime limits by applying said limitation on a
per station basis.34 Such manner of determining airtime limits was likewise adopted for the 2007
elections, through Resolution No. 7767.35 In the 2010 elections, under Resolution No. 8758,36 the
same was again adopted. But for the 2013 elections, the COMELEC, through Resolution No. 9615,
as amended by Resolution No. 9631, chose to aggregate the total broadcast time among the
different broadcast media, thus: Section 9. Requirements and/or Limitations on the Use of Election
Propaganda through Mass Media. - All parties and bona fide candidates shall have equal access to
media time and space for their election propaganda during the campaign period subject to the
following requirements and/or limitations:
a. Broadcast Election Propaganda
The duration of an air time that a candidate, or party may use for their broadcast advertisements or
election propaganda shall be, as follows:
For Candidates/Registered Not more than an aggregate total of one

Political parties for a National hundred (120) minutes of television
Elective Position advertising, whether appearing on national,
regional, or local, free or cable television, and
one hundred eighty (180) minutes of radio
advertising, whether airing on national,
regional, or local radio, whether by purchase or
donation
For Candidates/Registered Not more than an aggregate total of sixty (60)

Political parties for a Local minutes of television advertising, whether
Elective Position appearing on national, regional, or local, free
or cable television, and ninety (90) minutes of
radio advertising, whether airing on national,
regional, or local radio, whether by purchase or
donation.
In cases where two or more candidates or parties whose names, initials, images, brands, logos,
insignias, color motifs, symbols, or forms of graphical representations are displayed, exhibited, used,
or mentioned together in the broadcast election propaganda or advertisements, the length of time
during which they appear or are being mentioned or promoted will be counted against the airtime
limits allotted for the said candidates or parties and the cost of the said advertisement will likewise
be considered as their expenditures, regardless of whoever paid for the advertisements or to whom
the said advertisements were donated.
x x x x37
Corollarily, petitioner-intervenor, Senator Cayetano, alleges:
6.15. The change in the implementation of Section 6 of R.A. 9006 was undertaken by respondent
Comelec without consultation with the candidates for the 2013 elections, affected parties such as
media organizations, as well as the general public. Worse, said change was put into effect without
explaining the basis therefor and without showing any data in support of such change. Respondent
Comelec merely maintained that such action "is meant to level the playing field between the
moneyed candidates and those who don i have enough resources," without particularizing the
empirical data upon which such a sweeping statement was based. This was evident in the public
hearing held on 31 January 2013 where petitioner GMA, thru counsel, explained that no empirical
data on he excesses or abuses of broadcast media were brought to the attention of the public by
respondent Comelec, or even stated in the Comelec
Resolution No. 9615. Thus –

xxxx
Chairman Brillantes
So if we can regulate and amplify, we may amplify meaning we can expand if we want to. But the
authority of the Commission is if we do not want to amplify and we think that the 120 or 180 is okay
we cannot be compelled to amplify. We think that 120 or 180 is okay, is enough.
Atty. Lucila
But with due respect Your Honor, I think the basis of the resolution is found in the law and the law
has been enterpreted (sic) before in 2010 to be 120 per station, so why the change, your Honor?
Chairman Brillantes
No, the change is not there, the right to amplify is with the Commission on Elections. Nobody can
encroach in our right to amplify. Now, if in 2010 the Commission felt that per station or per network is
the rule then that is the prerogative of the Commission then they could amplify it to expand it. If the
current Commission feels that 120 is enough for the particular medium like TV and 180 for radio, that
is our prerogative. How can you encroach and what is unconstitutional about it?
Atty. Lucila
We are not questioning the authority of the Honorable Commission to regulate Your Honor, we are
just raising our concern on the manner of regulation because as it is right now, there is a changing
mode or sentiments of the Commission and the public has the right to know, was there rampant
overspending on political ads in 2010, we were not informed Your Honor. Was there abuse of the
media in 2010, we were not informed Your Honor. So we would like to know what is the basis of the
sudden change in this limitation, Your Honor .. And law must have a consistent interpretation that
[is]our position, Your Honor.
Chairman Brillantes
But my initial interpretation, this is personal to this representation counsel, is that if the Constitution
allows us to regulate and then it gives us the prerogative to amplify then the prerogative to amplify
you should leave this to the discretion of the Commission. Which means if previous Commissions
felt that expanding it should be part of our authority that was a valid exercise if we reduce it to what
is provided for by law which is 120-180 per medium, TV, radio, that is also within the law and that is
still within our prerogative as provided for by the Constitution. If you say we have to expose the
candidates to the public then I think the reaction should come, the negative reaction should come
from the candidates not from the media, unless you have some interest to protect directly. Is there
any interest on the part of the media to expand it?
Atty. Lucila
Well, our interest Your Honor is to participate in this election Your Honor and we have been
constantly (sic) as the resolution says and even in the part involved because you will be getting
some affirmative action time coming from the media itself and Comelec time coming from the media
itself. So we could like to be both involved in the whole process of the exercise of the freedom of
suffrage Your Honor.
Chairman Brillantes
Yes, but the very essence of the Constitutional provision as well as the provision of 9006 is actually
to level the playing field. That should be the paramount consideration. If we allow everybody to make
use of all their time and all radio time and TV time then there will be practically unlimited use of the
mass media ....
Atty. Lucila
Was there in 2010 Your Honor, was there any data to support that there was an unlimited and abuse
of a (sic) political ads in the mass media that became the basis of this change in interpretation Your
Honor? We would like to know about it Your Honor.
Chairman Brillantes
What do you think there was no abuse in 201 O?
Atty. Lucila
As far as the network is concern, there was none Your Honor.
Chairman Brillantes
There was none ..... .
Atty. Lucila
I'm sorry, Your Honor ...
Chairman Brillantes
Yes, there was no abuse, okay, but there was some advantage given to those who took ... who had
the more moneyed candidates took advantage of it.
Atty. Lucila
But that is the fact in life, Your Honor there are poor candidates, there are rich candidates. No
amount of law or regulation can even level the playing filed (sic) as far as the economic station in life
of the candidates are concern (sic) our Honor.38
Given the foregoing observations about what happened during the hearing, Petitioner-Intervenor
went on to allege that:
6.16. Without any empirical data upon which to base the regulatory measures in Section 9 (a),
respondent Comelec arbitrarily changed the rule from per station basis to aggregate airtime basis.
Indeed, no credence should be given to the cliched explanation of respondent Comelec (i.e. leveling
the playing field) in its published statements which in itself is a mere reiteration of the rationale for
the enactment of the political ad ban of Republic Act No. 6646, and which has likewise been foisted
when said political ad ban was lifted by R.A. 9006.39
From the foregoing, it does appear that the COMELEC did not have any other basis for coming up
with a new manner of determining allowable time limits except its own idea as to what should be the
maximum number of minutes based on its exercise of discretion as to how to level the playing field.
The same could be encapsulized in the remark of the COMELEC Chairman that "if the Constitution
allows us to regulate and then it gives us the prerogative to amplify then the prerogative to amplify
you should leave this to the discretion of the Commission."40
The Court could not agree with what appears as a nonchalant exercise of discretion, as expounded
anon.
b. COMELEC is duty bound to come up with reasonable basis for changing the interpretation and
implementation of the airtime limits
There is no question that the COMELEC is the office constitutionally and statutorily authorized to
enforce election laws but it cannot exercise its powers without limitations - or reasonable basis. It
could not simply adopt measures or regulations just because it feels that it is the right thing to do, in
so far as it might be concerned. It does have discretion, but such discretion is something that must
be exercised within the bounds and intent of the law. The COMELEC is not free to simply change
the rules especially if it has consistently interpreted a legal provision in a particular manner in the
past. If ever it has to change the rules, the same must be properly explained with sufficient basis.
Based on the transcripts of the hearing conducted by the COMELEC after it had already
promulgated the Resolution, the respondent did not fully explain or justify the change in computing
the airtime allowed candidates and political parties, except to make reference to the need to "level
the playing field." If the "per station" basis was deemed enough to comply with that objective in the
past, why should it now be suddenly inadequate? And, the short answer to that from the respondent,
in a manner which smacks of overbearing exercise of discretion, is that it is within the discretion of
the COMELEC. As quoted in the transcript, "the right to amplify is with the COMELEC. Nobody can
encroach in our right to amplify. Now, if in 2010 the Commission felt that per station or per network is
the rule then that is the prerogative of the Commission then they could amplify it to expand it. If the
current Commission feels that 120 is enough for the particular medium like TV and 180 for radio, that
is our prerogative. How can you encroach and what is unconstitutional about it?"41
There is something basically wrong with that manner of explaining changes in administrative rules.
For one, it does not really provide a good basis for change. For another, those affected by such rules
must be given a better explanation why the previous rules are no longer good enough. As the Court
has said in one case:
While stability in the law, particularly in the business field, is desirable, there is no demand that the
NTC slavishly follow precedent. However, we think it essential, for the sake of clarity and intellectual
honesty, that if an administrative agency decides inconsistently with previous action, that it explain
thoroughly why a different result is warranted, or ?f need be, why the previous standards should no
longer apply or should be overturned. Such explanation is warranted in order to sufficiently establish
a decision as having rational basis. Any inconsistent decision lacking thorough, ratiocination in
support may be struck down as being arbitrary. And any decision with absolutely nothing to support
it is a nullity.42
What the COMELEC came up with does not measure up to that level of requirement and
accountability which elevates administrative rules to the level of respectability and acceptability.
Those governed by administrative regulations are entitled to a reasonable and rational basis for any
changes in those rules by which they are supposed to live by, especially if there is a radical
departure from the previous ones.
c. The COMELEC went beyond the authority granted it by the law in adopting "aggregate" basis in
the determination of allowable airtime
The law, which is the basis of the regulation subject of these petitions, pertinently provides:
6.2. (a) Each bona fide candidate or registered political party for a nationally elective office shall be
entitled to not more than one hundred twenty (120) minutes of television advertisement and one
hundred eighty (180) minutes of radio advertisement whether by purchase or donation.
(b) Each bona fide candidate or registered political party for a locally elective office shall be entitled
to not more than sixty (60) minutes of television advertisement and ninety (90) minutes of radio
advertisement whether by purchase or donation; x x x
The law, on its face, does not justify a conclusion that the maximum allowable airtime should be
based on the totality of possible broadcast in all television or radio stations. Senator Cayetano has
called our attention to the legislative intent relative to the airtime allowed - that it should be on a "per
station" basis.43
This is further buttressed by the fact that the Fair Election Act (R.A. No. 9006) actually repealed the
previous provision, Section ll(b) of Republic Act No. 6646,44 which prohibited direct political
advertisements -the so-called "political ad ban." If under the previous law, no candidate was allowed
to directly buy or procure on his own his broadcast or print campaign advertisements, and that he
must get it through the COMELEC Time or COMELEC Space, R.A. No. 9006 relieved him or her
from that restriction and allowed him or her to broadcast time or print space subject to the limitations
set out in the law. Congress, in enacting R.A. No. 9006, felt that the previous law was not an
effective and efficient way of giving voice to the people. Noting the debilitating effects of the previous
law on the right of suffrage and Philippine democracy, Congress decided to repeal such rule by
enacting the Fair Election Act.
In regard to the enactment of the new law, taken in the context of the restrictive nature of the
previous law, the sponsorship speech of Senator Raul Roco is enlightening:
The bill seeks to repeal Section 85 of the Omnibus Election Code and Sections 10 and 11 of RA
6646. In view of the importance of their appeal in connection with the thrusts of the bill, I hereby
quote these sections in full:
"SEC. 85. Prohibited forms of election propaganda. - It shall be unlawful:
"(a) To print, publish, post or distribute any poster, pamphlet, circular, handbill, or printed
matter urging voters to vote for or against any candidate unless they hear the names and
addresses of the printed and payor as required in Section 84 hereof;
"(b) To erect, put up, make use of, attach, float or display any billboard, tinplate-poster,
balloons and the like, of whatever size, shape, form or kind, advertising for or against any
candidate or political party;
"(c) To purchase, manufacture, request, distribute or accept electoral propaganda gadgets,

such as pens, lighters, fans of whatever nature, flashlights, athletic goods or materials,
wallets, shirts, hats, bandannas, matches, cigarettes and the like, except that campaign
supporters accompanying a candidate shall be allowed to wear hats and/or shirts or T-shirts
advertising a candidate;
"(d) To show or display publicly any advertisement or propaganda for or against any
candidate by means of cinematography, audio-visual units or other screen projections except
telecasts which may be allowed as hereinafter provided; and
"(e) For any radio broadcasting or television station to sell or give free of charge airtime for
campaign and other political purposes except as authorized in this Code under the rules and
regulations promulgated by the Commission pursuant thereto;
"Any prohibited election propaganda gadget or advertisement shall be stopped, confiscated or tom
down by the representative of the Commission upon specific authority of the Commission." "SEC.
10. Common Poster Areas. - The Commission shall designate common poster areas in strategic
public places such as markets, barangay centers and the like wherein candidates can post, display
or exhibit election propaganda to announce or further their candidacy.
"Whenever feasible, common billboards may be installed by the Commission and/or non-partisan
private or civic organizations which the Commission may authorize whenever available, after due
notice and hearing, in strategic areas where it may readily be seen or read, with the heaviest
pedestrian and/or vehicular traffic in the city or municipality.
The space in such common poster areas or billboards shall be allocated free of charge, if feasible,
equitably and impartially among the candidates in the province, city or municipality. "SEC. 11.
Prohibite,d Forms of Election Propaganda. - In addition to the forms of election propaganda
prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint,
inscribe, write, post, display or puolicly exhibit any election propaganda in any place, whether private
or public, except in common poster areas and/or billboards provided in the immediately preceding
section, at the candidate's own residence, or at the campaign headquarters of the candidate or
political party: Provided, That such posters or election propaganda shall in no case exceed two (2)
feet by three (3) feet in area; Provided, further, That at the site of and on the occasion of a public
meeting or rally, streamers, not more than two (2) feet and not exceeding three (3) feet by eight (8)
each may be displayed five (5) days before the date of the meeting or rally, and shall be removed
within twenty-four (24) hours after said meeting or rally; and
"(b) For any newspapers, radio broadcasting or television station, or other mass media, or any
person making use of the mass media to sell or give for free of charge print space or air time for
campaign or other political purposes except to the Commission as provided under Section 90 and 92
of Batas Pambansa Big. 881. Any mass media columnist, commentator, announcer or personality
who is a candidate for any elective public office shall take a leave of absence from his work as such
during the campaign."
The repeal of the provision on the Common Poster Area implements the strong recommendations of
the Commission on Elections during the hearings. It also seeks to apply the doctrine enunciated by
the Supreme Court in the case of Blo Umpar Adiong vs. Commission on Elections, 207 SCRA 712,
31 March 1992. Here a unanimous Supreme Court ruled: The COMELEC's prohibition on the
posting of decals and stickers on "mobile" places whether public or private except [in] designated
areas provided for by the COMELEC itself is null and void on constitutional grounds.
For the foregoing reasons, we commend to our colleagues the early passage of Senate Bill No.
1742. In so doing, we move one step towards further ensuring "free, orderly, honest, peaceful and
credible elections" as mandated by the Constitution.45
Given the foregoing background, it is therefore ineluctable to conclude that Congress intended to
provide a more expansive and liberal means by which the candidates, political parties, citizens and
other stake holders in the periodic electoral exercise may be given a chance to fully explain and
expound on their candidacies and platforms of governance, and for the electorate to be given a
chance to know better the personalities behind the candidates. In this regard, the media is also given
a very important part in that undertaking of providing the means by which the political exercise
becomes an interactive process. All of these would be undermined and frustrated with the kind of
regulation that the respondent came up with.
The respondent gave its own understanding of the import of the legislative deliberations on the
adoption of R.A. No. 9006 as follows:
The legislative history of R.A. 9006 clearly shows that Congress intended to impose the per
candidate or political party aggregate total airtime limits on political advertisements and election
propaganda. This is evidenced by the dropping of the "per day per station" language embodied in
both versions of the House of Representatives and Senate bills in favour of the "each candidate" and
"not more than" limitations now found in Section 6 of R.A. 9006.
The pertinent portions of House Bill No. 9000 and Senate Bill No. 1742 read as follows:
House Bill No. 9000:
SEC. 4. Section 86 of the same Batas is hereby amended to read as follows:
Sec. 86. Regulation of Election Propaganda Through Mass Media.
xxx xxx xxx
A) The total airtime available to the candidate and political party, whether by purchase or by
donation, shall be limited to five (5) minutes per day in each television, cable television and radio
stations during the applicable campaign period.
Senate Bill No. 1742:
SEC. 5. Equal Access to Media Space and Time. -All registered parties and bona fide candidates
shall have equal access to media space and time. The following guidelines may be amplified by the
COMELEC.
xxx xxx xxx
2. The total airtime available for each registered party and bona fide candidate whether by purchase
or donation shall not exceed a total of one (1) minute per day per television or radio station.
(Emphasis supplied.)
As Section 6 of R.A. 9006 is presently worded, it can be clearly seen that the legislature intended the
aggregate airtime limits to be computed on per candidate or party basis. Otherwise, if the legislature
intended the computation to be on per station basis, it could have left the original "per day per
station" formulation.46
The Court does not agree. It cannot bring itself to read the changes in the bill as disclosing an intent
that the COMELEC wants this Court to put on the final language of the law. If anything, the change
in language meant that the computation must not be based on a "per day" basis for each television
or radio station. The same could not therefore lend itself to an understanding that the total allowable
time is to be done on an aggregate basis for all television or radio stations. Clearly, the respondent
in this instance went beyond its legal mandate when it provided for rules beyond what was
contemplated by the law it is supposed to implement. As we held in Lakin, Jr. v. Commission on
Elections:47
The COMELEC, despite its role as the implementing arm of the Government in the enforcement and
administration of all laws and regulations relative to the conduct of an election, has neither the
authority nor the license to expand, extend, or add anything to the law it seeks to implement thereby.
The IRRs the COMELEC issued for that purpose should always be in accord with the law to be
implemented, and should not override, supplant, or modify the law. It is basic that the IRRs should
remain consistent with the law they intend to carry out.
Indeed, administrative IRRs adopted by a particular department of the Government under legislative
authority must be in harmony with the provisions of the law, and should be for the sole purpose of
carrying the law's general provisions into effect. The law itself cannot be expanded by such IRRs,
because an administrative agency cannot amend an act of Congress.48
In the case of Lakin, Jr., the COMELEC's explanation that the Resolution then in question did not
add anything but merely reworded and rephrased the statutory provision did not persuade the Court.
With more reason here since the COMELEC not only reworded or rephrased the statutory provision -
it practically replaced it with its own idea of what the law should be, a matter that certainly is not
within its authority. As the Court said in Villegas v. Subido:49
One last word. Nothing is better settled in the law than that a public official exercises power, not
rights. The government itself is merely an agency through which the will of the state is expressed
and enforced. Its officers therefore are likewise agents entrusted with the responsibility of
discharging its functions. As such there is no presumption that they are empowered to act. There
must be a delegation of such authority, either express or implied. In the absence of a valid grant,
they are devoid of power. What they do suffers from a fatal infirmity. That principle cannot be
sufficiently stressed. In the appropriate language of Chief Justice Hughes: "It must be conceded that
departmental zeal may not be permitted to outrun the authority conferred by statute." Neither the
high dignity of the office nor the righteousness of the motive then is an acceptable substitute.
Otherwise the rule of law becomes a myth. Such an eventuality, we must take all pains to avoid.50
So it was then. So does the rule still remains the same.
d. Section 9 (a) of COMELEC Resolution No. 9615 on airtime limits also goes against the
constitutional guaranty of freedom of expression, of speech and of the press
The guaranty of freedom to speak is useless without the ability to communicate and disseminate
what is said. And where there is a need to reach a large audience, the need to access the means
and media for such dissemination becomes critical. This is where the press and broadcast media
come along. At the same time, the right to speak and to reach out would not be meaningful if it is just
a token ability to be heard by a few. It must be coupled with substantially reasonable means by
which the communicator and the audience could effectively interact. Section 9 (a) of COMELEC
Resolution No. 9615, with its adoption of the "aggregate-based" airtime limits unreasonably restricts
the guaranteed freedom of speech and of the press.
Political speech is one of the most important expressions protected by the Fundamental Law.
"[F]reedom of speech, of expression, and of the press are at the core of civil liberties and have to be
protected at all costs for the sake of democracy."51 Accordingly, the same must remain unfettered
unless otherwise justified by a compelling state interest.
In regard to limitations on political speech relative to other state interests, an American case
observed:
A restriction on the amount of money a person or group can spend on political communication during
a campaign necessarily reduces the quantity of expression by restricting the number of issues
discussed, the depth of their exploration, and the size of the audience reached. This is because
virtually every means of communicating ideas in today's mass society requires the expenditure of
money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation
costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The
electorate's increasing dependence on television, radio, and other mass media for news and
information has made these expensive modes of communication indispensable instruments of
effective political speech.
The expenditure limitations contained in the Act represent substantial, rather than merely theoretical
restraints on the quantity and diversity of political speech. The $1,000 ceiling on spending "relative to
a clearly identified candidate," 18 U.S.C. § 608(e)(l) (1970 ed., Supp. IV), would appear to exclude
all citizens and groups except candidates, political parties, and the institutional press from any
significant use of the most effective modes of communication. Although the Act's limitations on
expenditures by campaign organizations and political parties provide substantially greater room for
discussion and debate, they would have required restrictions in the scope of a number of past
congressional and Presidential campaigns and would operate to constrain campaigning by
candidates who raise sums in excess of the spending ceiling.52
Section 9 (a) ofCOMELEC Resolution No. 9615 comes up with what is challenged as being an
unreasonable basis for determining the allowable air time that candidates and political parties may
avail of. Petitioner GMA came up with its analysis of the practical effects of such a regulation:
5.8. Given the reduction of a candidate's airtime minutes in the New Rules, petitioner GMA
estimates that a national candidate will only have 120 minutes to utilize for his political
advertisements in television during the whole campaign period of 88 days, or will only have
81.81 seconds per day TV exposure allotment. If he chooses to place his political
advertisements in the 3 major TV networks in equal allocation, he will only have 27.27
seconds of airtime per network per day. This barely translates to 1 advertisement spot on a
30-second spot basis in television.
5.9. With a 20-hour programming per day and considering the limits of a station's coverage,
it will be difficult for 1 advertising spot to make a sensible and feasible communication to the
public, or in political propaganda, to "make known [a candidate's] qualifications and stand on
public issues".
5.10 If a candidate loads all of his 81.81 seconds per day in one network, this will translate to
barely three 30-second advertising spots in television on a daily basis using the same
assumptions above.
5.11 Based on the data from the 2012 Nielsen TV audience measurement in Mega Manila,
the commercial advertisements in television are viewed by only 39.2% of the average total
day household audience if such advertisements are placed with petitioner GMA, the leading
television network nationwide and in Mega Manila. In effect, under the restrictive aggregate
airtime limits in the New Rules, the three 30-second political advertisements of a candidate in
petitioner GMA will only be communicated to barely 40% of the viewing audience, not even
the voting population, but only in Mega Manila, which is defined by AGB Nielsen Philippines
to cover Metro Manila and certain urban areas in the provinces of Bulacan, Cavite, Laguna,
Rizal, Batangas and Pampanga. Consequently, given the voting population distribution and
the drastically reduced supply of airtime as a result of the New Rules' aggregate airtime
limits, a national candidate will be forced to use all of his airtime for political advertisements
in television only in urban areas such as Mega Manila as a political campaign tool to achieve
maximum exposure.
5.12 To be sure, the people outside of Mega Manila or other urban areas deserve to be
informed of the candidates in the national elections, and the said candidates also enjoy the
right to be voted upon by these informed populace.53
The Court agrees. The assailed rule on "aggregate-based" airtime limits is unreasonable and
arbitrary as it unduly restricts and constrains the ability of candidates and political parties to reach
out and communicate with the people. Here, the adverted reason for imposing the "aggregate-
based" airtime limits - leveling the playing field - does not constitute a compelling state interest which
would justify such a substantial restriction on the freedom of candidates and political parties to
communicate their ideas, philosophies, platforms and programs of government. And, this is specially
so in the absence of a clear-cut basis for the imposition of such a prohibitive measure. In this
particular instance, what the COMELEC has done is analogous to letting a bird fly after one has
clipped its wings.
It is also particularly unreasonable and whimsical to adopt the aggregate-based time limits on
broadcast time when we consider that the Philippines is not only composed of so many islands.
There are also a lot of languages and dialects spoken among the citizens across the country.
Accordingly, for a national candidate to really reach out to as many of the electorates as possible,
then it might also be necessary that he conveys his message through his advertisements in
languages and dialects that the people may more readily understand and relate to. To add all of
these airtimes in different dialects would greatly hamper the ability of such candidate to express
himself - a form of suppression of his political speech.
Respondent itself states that "[t]elevision is arguably the most costeffective medium of
dissemination. Even a slight increase in television exposure can significantly boost a candidate's
popularity, name recall and electability."54 If that be so, then drastically curtailing the ability of a
candidate to effectively reach out to the electorate would unjustifiably curtail his freedom to speak as
a means of connecting with the people.
Finally on this matter, it is pertinent to quote what Justice Black wrote in his concurring opinion in the
landmark Pentagon Papers case: "In the First Amendment, the Founding Fathers gave the free
press the protection it must have to fulfill its essential role in our democracy. The press was to serve
the governed, not the governors. The Government's power to censor the press was abolished so
that the press would remain forever free to censure the Government. The press was protected so
that it could bare the secrets of government and inform the people. Only a free and unrestrained
press can effectively expose deception in government."55
In the ultimate analysis, when the press is silenced, or otherwise muffled in its undertaking of acting
as a sounding board, the people ultimately would be the victims.
e. Section 9 (a) of Resolution 9615 is violative of the people's right to suffrage
Fundamental to the idea of a democratic and republican state is the right of the people to determine
their own destiny through the choice of leaders they may have in government. Thus, the primordial
importance of suffrage and the concomitant right of the people to be adequately informed for the
intelligent exercise of such birthright. It was said that:
x x x As long as popular government is an end to be achieved and safeguarded, suffrage, whatever
may be the modality and form devised, must continue to be the means by which the great reservoir
of power must be emptied into the receptacular agencies wrought by the people through their
Constitution in the interest of good government and the common weal. Republicanism, in so far as it
implies the adoption of a representative type of government, necessarily points to the enfranchised
citizen as a particle of popular sovereignty and as the ultimate source of the established authority.
He has a voice in his Government and whenever possible it is the solemn duty of the judiciary, when
called upon to act in justifiable cases, to give it efficacy and not to stifle or frustrate it. This,
fundamentally, is the reason for the rule that ballots should be read and appreciated, if not with
utmost, with reasonable, liberality. x x x56 It has also been said that "[ c ]ompetition in ideas and
governmental policies is at the core of our electoral process and of the First Amendment
freedoms."57 Candidates and political parties need adequate breathing space - including the means
to disseminate their ideas. This could not be reasonably addressed by the very restrictive manner by
which the respondent implemented the time limits in regard to political advertisements in the
broadcast media.
f. Resolution No. 9615 needs prior hearing before adoption
The COMELEC promulgated Resolution No. 9615 on January 15, 2013 then came up with a public
hearing on January 31, 2013 to explain what it had done, particularly on the aggregate-based air
time limits. This circumstance also renders the new regulation, particularly on the adoption of the
aggregate-based airtime limit, questionable. It must not be overlooked that the new Resolution
introduced a radical change in the manner in which the rules on airtime for political advertisements
are to be reckoned. As such there is a need for adequate and effective means by which they may be
adopted, disseminated and implemented. In this regard, it is not enough that they be published - or
explained - after they have been adopted.
While it is true that the COMELEC is an independent office and not a mere administrative agency
under the Executive Department, rules which apply to the latter must also be deemed to similarly
apply to the former, not as a matter of administrative convenience but as a dictate of due process.
And this assumes greater significance considering the important and pivotal role that the COMELEC
plays in the life of the nation. Thus, whatever might have been said in Commissioner of Internal
Revenue v. Court of Appeals,58 should also apply mutatis mutandis to the COMELEC when it comes
to promulgating rules and regulations which adversely affect, or impose a heavy and substantial
burden on, the citizenry in a matter that implicates the very nature of government we have adopted:
It should be understandable that when an administrative rule is merely interpretative in nature, its
applicability needs nothing further than its bare issuance for it gives no real consequence more than
what the law itself has already prescribed. When, upon the other hand, the administrative rule goes
beyond merely providing for the means that can facilitate or render least cumbersome the
implementation of the law but substantially adds to or increases the burden of those governed, it
behooves the agency to accord at least to those directly affected a chance to be heard, and
thereafter to be duly informed, before that new issuance is given the force and effect of law.
A reading of RMC 37-93, particularly considering the circumstances under which it has been issued,
convinces us that the circular cannot be viewed simply as a corrective measure (revoking in the
process the previous holdings of past Commissioners) or merely as construing Section 142(c)(l) of
the NIRC, as amended, but has, in fact and most importantly, been made in order to place "Hope
Luxury," "Premium More" and "Champion" within the classification of locally manufactured cigarettes
bearing foreign brands and to thereby have them covered by RA 7654. Specifically, the new law
would have its amendatory provisions applied to locally manufactured cigarettes which at the time of
its effectivity were not so classified as bearing foreign brands. x x x In so doing, the BIR not simply
interpreted the law; verily, it legislated under its quasi-legislative authority. The due observance of
the requirements of notice, of hearing, and of publication should not have been then ignored.59
For failing to conduct prior hearing before coming up with Resolution No. 9615, said Resolution,
specifically in regard to the new rule on aggregate airtime is declared defective and ineffectual.
g. Resolution No. 9615 does not impose an unreasonable burden on the broadcast industry
It is a basic postulate of due process, specifically in relation to its substantive component, that any
governmental rule or regulation must be reasonable in its operations and its impositions. Any
restrictions, as well as sanctions, must be reasonably related to the purpose or objective of the
government in a manner that would not work unnecessary and unjustifiable burdens on the citizenry.
Petitioner GMA assails certain requirements imposed on broadcast stations as unreasonable. It
explained:
5.40 Petitioner GMA currently operates and monitors 21 FM and AM radio stations
nationwide and 8 originating television stations (including its main transmitter in Quezon City)
which are authorized to dechain national programs for airing and insertion of local content
and advertisements.
5.41 In light of the New Rules wherein a candidate's airtime minutes are applied on an
aggregate basis and considering that said Rules declare it unlawful in Section 7( d) thereof
for a radio, television station or other mass media to sell or give for free airtime to a
candidate in excess of that allowed by law or by said New Rules:
"Section 7. Prohibited Forms of Election Propaganda -During the campaign period, it is

unlawful: x x x x x x x x x
(d) for any newspaper or publication, radio, television or cable television station, or other
mass media, or any person making use of the mass media to sell or to give free of charge
print space or air time for campaign or election propaganda purposes to any candidate or
party in excess of the size, duration or frequency authorized by law or these rules;
xxx xxx xxx
(Emphasis supplied)
petitioner GMA submits that compliance with the New Rules in order to avoid administrative
or criminal liability would be unfair, cruel and oppressive.
x x x x.
5.43 In the present situation wherein airtime minutes shall be shared by all television and
radio stations, broadcast mass media organizations would surely encounter insurmountable
difficulties in monitoring the airtime minutes spent by the numerous candidates for various
elective positions, in real time.
5.44 An inquiry with the National Telecommunications Commission (NTC) bears out that
there are 372 television stations and 398 AM and 800 FM radio stations nationwide as of
June 2012. In addition, there are 1, 113 cable TV providers authorized by the NTC to operate
within the country as of the said date.
5.45 Given such numbers of broadcast entities and the necessity to monitor political
advertisements pursuant to the New Rules, petitioner OMA estimates that monitoring
television broadcasts of all authorized television station would involve 7,440 manhours per
day. To aggravate matters, since a candidate may also spend his/her broadcasting minutes
on cable TV, additional 281,040 manhours per day would have to be spent in monitoring the
various channels carried by cable TV throughout the Philippines. As far as radio broadcasts
(both AM and FM stations) are concerned, around 23,960 manhours per day would have to
be devoted by petitioner OMA to obtain an accurate and timely determination of a political
candidate's remaining airtime minutes. During the campaign period, petitioner OMA would
have to spend an estimated 27,494,720 manhours in monitoring the election campaign
commercials of the different candidates in the country. 1âw phi1
5.46 In order to carry-out the obligations imposed by the New Rules, petitioner OMA further
estimates that it would need to engage and train 39,055 additional persons on an eight-hour
shift, and assign them all over the country to perform the required monitoring of radio,
television and cable TV broadcasts. In addition, it would likewise need to allot radio,
television, recording equipment and computers, as well as telecommunications equipment,
for this surveillance and monitoring exercise, thus imputing additional costs to the company.
Attached herewith are the computations explaining how the afore-said figures were derived
and the conservative assumptions made by petitioner OMA in reaching said figures, as
Annex "H".
5.47 Needless to say, such time, manpower requirements, expense and effort would have to
be replicated by each and every radio station to ensure that they have properly monitored
around 33 national and more than 40,000 local candidates' airtime minutes and thus, prevent
any risk of administrative and criminal liability.60
The Court cannot agree with the contentions of GMA. The apprehensions of the petitioner appear
more to be the result of a misappreciation of the real import of the regulation rather than a real and
present threat to its broadcast activities. The Court is more in agreement with the respondent when it
explained that:
The legal duty of monitoring lies with the Comelec. Broadcast stations are merely required to submit
certain documents to aid the Comelec in ensuring that candidates are not sold airtime in excess of
the allowed limits. These documents include: (1) certified true copies of broadcast logs, certificates
of performance, and certificates of acceptance, or other analogous record on specified dates
(Section 9[d][3], Resolution No. 9615, in relation to Section 6.2, R.A. 9006; and (2) copies of all
contract for advertising, promoting or opposing any political party or the candidacy of any person for
public office within five (5) days after its signing (Section 6.3, R.A. 9006).
*****
[T]here is absolutely no duty on the broadcast stations to do monitoring, much less monitoring in real
time. GMA grossly exaggerates when it claims that the non-existent duty would require them to hire
and train an astounding additional 39,055 personnel working on eight-hour shifts all over the
country.61
The Court holds, accordingly, that, contrary to petitioners' contention, the Reporting Requirement for
the COMELEC's monitoring is reasonable.
Further, it is apropos to note that, pursuant to Resolution No. 9631,62 the respondent revised the third
paragraph of Section 9 (a). As revised, the provision now reads:
Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona
fide news documentary, if the appearance of the candidate is incidental to the presentation of the
subject or subjects covered by the news documentary, or on-the-spot coverage of bona fide news
events, including but not limited to events sanctioned by the Commission on Elections, political
conventions, and similar activities, shall not be deemed to be broadcast election propaganda within
the meaning of this provision. For purposes of monitoring by the COMELEC and ensuring that
parties and candidates were afforded equal opportunities to promote their candidacy, the media
entity shall give prior notice to the COMELEC, through the appropriate Regional Election Director
(RED), or in the case of the National Capital Region (NCR), the Education and Information
Department (EID). If such prior notice is not feasible or practicable, the notice shall be sent within
twenty-four (24) hours from the first broadcast or publication. Nothing in the foregoing sentence
1awp++i 1
shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news
interviews, news documentaries, and on-the-spot coverage of news events, from the obligation
imposed upon them under Sections 10 and 14 of these Rules."63
Further, the petitioner in G.R. No. 205374 assails the constitutionality of such monitoring
requirement, contending, among others, that it constitutes prior restraint. The Court finds otherwise.
Such a requirement is a reasonable means adopted by the COMELEC to ensure that parties and
candidates are afforded equal opportunities to promote their respective candidacies. Unlike the
restrictive aggregate-based airtime limits, the directive to give prior notice is not unduly burdensome
and unreasonable, much less could it be characterized as prior restraint since there is no restriction
on dissemination of information before broadcast. Additionally, it is relevant to point out that in the
original Resolution No. 9615, the paragraph in issue was worded in this wise:
Appearance or guesting by a candidate on any bona fide newscast, bona fide news interview, bona
fide news documentary, if the appearance of the candidate is incidental to the presentation of the
subject or subjects covered by the news documentary, or on-the-spot coverage of bona fide news
events, including but not limited to events sanctioned by the Commission on Elections, political
conventions, and similar activities, shall not be deemed to be broadcast election propaganda within
the meaning of this provision. To determine whether the appearance or guesting in a program is
bona fide, the broadcast stations or entities must show that (1) prior approval of the Commission
was secured; and (2) candidates and parties were afforded equal opportunities to promote their
candidacy. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in
connection with the presentation of newscasts, news interviews, news documentaries, and on-the-
spot coverage of news events, from the obligation imposed upon them under Sections 10 and 14 of
these Rules.64
Comparing the original with the revised paragraph, one could readily appreciate what the COMELEC
had done - to modify the requirement from "prior approval" to "prior notice." While the former may be
suggestive of a censorial tone, thus inviting a charge of prior restraint, the latter is more in the nature
of a content-neutral regulation designed to assist the poll body to undertake its job of ensuring fair
elections without having to undertake any chore of approving or disapproving certain expressions.
Also, the right to reply provision is reasonable
In the same way that the Court finds the "prior notice" requirement as not constitutionally infirm, it
similarly concludes that the "right to reply" provision is reasonable and consistent with the
constitutional mandate.
Section 14 of Resolution No. 9615, as revised by Resolution No. 9631, provides:

SECTION 14. Right to Reply. - All registered political parties, party-list groups or coalitions and bona
fide candidates shall have the right to reply to charges published or aired against them. The reply
shall be given publicity by the newspaper, television, and/or radio station which first printed or aired
the charges with the same prominence or in the same page or section or in the same time slot as the
first statement.
Registered political parties, party-list groups or coalitions and bona fide candidates may invoke the
right to reply by submitting within a nonextendible period of forty-eight hours from first broadcast or
publication, a formal verified claim against the media outlet to the COMELEC, through the
appropriate RED. The claim shall include a detailed enumeration of the circumstances and
occurrences which warrant the invocation of the right to reply and must be accompanied by
supporting evidence, such a copy of the publication or recording of the television or radio broadcast,
as the case may be. If the supporting evidence is not yet available due to circumstances beyond the
power of the claimant, the latter shall supplement his claim as soon as the supporting evidence
becomes available, without delay on the part of the claimant. The claimant must likewise furnish a
copy of the verified claim and its attachments to the media outlet concerned prior to the filing of the
claim with the COMELEC.
The COMELEC, through the RED, shall view the verified claim within forty-eight ( 48) hours from
receipt thereof, including supporting evidence, and if circumstances warrant, give notice to the media
outlet involved for appropriate action, which shall, within forty-eight ( 48) hours, submit its comment,
answer or response to the RED, explaining the action it has taken to address the claim. The media
outlet must likewise furnish a copy of the said comment, answer or response to the claimant invoking
the right to reply.
Should the claimant insist that his/her right to reply was not addressed, he/she may file the
appropriate petition and/or complaint before the Commission on Elections or its field offices, which
shall be endorsed to the Clerk of Court.
The attack on the validity of the "right to reply" provision is primarily anchored on the alleged ground
of prior restraint, specifically in so far as such a requirement may have a chilling effect on speech or
of the freedom of the press.
Petitioner ABC states, inter alia:
5 .14 5. A "conscious and detailed consideration" of the interplay of the relevant interests -
the constitutional mandate granting candidates the right to reply and the inviolability of the
constitutional freedom of expression, speech, and the press - will show that the Right to
Reply, as provided for in the Assailed Resolution, is an impermissible restraint on these
fundamental freedoms.
5.146. An evaluation of the factors set forth in Soriano (for the balancing of interests test)
with respect to the present controversy will show that the Constitution does not tilt the
balance in favor of the Right to Reply provision in the Assailed Resolution and the supposed
governmental interest it attempts to further.65
The Constitution itself provides as part of the means to ensure free, orderly, honest, fair and credible
elections, a task addressed to the COMELEC to provide for a right to reply.66 Given that express
constitutional mandate, it could be seen that the Fundamental Law itself has weighed in on the
balance to be struck between the freedom of the press and the right to reply. Accordingly, one is not
merely to see the equation as purely between the press and the right to reply. Instead, the
constitutionallymandated desiderata of free, orderly, honest, peaceful, and credible elections would
necessarily have to be factored in trying to see where the balance lies between press and the
demands of a right-to-reply.
Moreover, as already discussed by the Court in Telecommunications and Broadcast Attorneys of the
Philippines, Inc. v. Commission on Elections.67
In truth, radio and television broadcasting companies, which are given franchises, do not own the
airwaves and frequencies through which they transmit broadcast signals and images. They are
merely given the temporary privilege of using them. Since a franchise is a mere privilege, the
exercise of the privilege may reasonably be burdened with the performance by the grantee of some
form of public service. x x x68
Relevant to this aspect are these passages from an American Supreme Court decision with regard
to broadcasting, right to reply requirements, and the limitations on speech:
We have long recognized that each medium of expression presents special First Amendment
problems. Joseph Burstyn, Inc. v. Wilson, 343 US 495, 502-503, 96 L Ed 1098, 72 S Ct 777. And of
all forms of communication, it is broadcasting that has received the most limited First Amendment
protection. Thus, although other speakers cannot be licensed except under laws that carefully define
and narrow official discretion, a broadcaster may be deprived of his license and his forum if the
Commission decides that such an action would serve "the public interest, convenience, and
necessity." Similarly, although the First Amendment protects newspaper publishers from being
required to print the replies of those whom they criticize, Miami Herald Publishing Co. v. Tornillo, 418
US 241, 41 L Ed 2d 730, 94 S Ct 2831, it affords no such protection to broadcasters; on the
contrary, they must give free time to the victims of their criticism. Red Lion Broadcasting Co. v. FCC,
395 US. 367, 23 L Ed 2d 371, 89 S Ct 1794.
The reasons for these distinctions are complex, but two have relevance to the present case. First,
the broadcast media have established a uniquely pervasive presence in the lives of all Americans.
Patently offensive, indecent material presented over the airwaves confronts the citizen not only in
public, but also in the privacy of the home, where the individual's right to be left alone plainly
outweighs the First Amendment rights of an intruder. Rowan v. Post Office Dept., 397 US 728, 25 L
Ed 2d 736, 90 S Ct 1484. Because the broadcast audience is constantly tuning in and out, prior
warnings cannot completely protect the listener or viewer from unexpected program content. To say
that one may avoid further offense by turning off the radio when he hears indecent language is like
saying that the remedy for an assault is to run away after the first blow. One may hang up on an
indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm
that has already taken place.
Second, broadcasting is uniquely accessible to children, even those too young to read. Although
Cohen's written message might have been incomprehensible to a first grader, Pacifica's broadcast
could have enlarged a child's vocabulary in an instant. Other forms of offensive expression may be
withheld from the young without restricting the expression at its source. Bookstores and motion
picture theaters, for example, may be prohibited from making indecent material available to children.
We held in Ginsberg v. New York, 390 US 629, that the government's interest in the "well-being of its
youth" and in supporting "parents' claim to authority in their own household" justified the regulation of
otherwise protected expression. The ease with which children may obtain access to broadcast
material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of
indecent broadcasting.69
Given the foregoing considerations, the traditional notions of preferring speech and the press over
so many other values of society do not readily lend itself to this particular matter. Instead, additional
weight should be accorded on the constitutional directive to afford a right to reply. If there was no
such mandate, then the submissions of petitioners may more easily commend themselves for this
Court's acceptance. But as noted above, this is not the case. Their arguments simplistically provide
minimal importance to that constitutional command to the point of marginalizing its importance in the
equation.
In fine, when it comes to election and the exercise of freedom of speech, of expression and of the
press, the latter must be properly viewed in context as being necessarily made to accommodate the
imperatives of fairness by giving teeth and substance to the right to reply requirement.
WHEREFORE, premises considered, the petitions are PARTIALLY GRANTED, Section 9 (a) of
Resolution No. 9615, as amended by Resolution No. 9631, is declared UNCONSTITUTIONAL and,
therefore, NULL and VOID. The constitutionality of the remaining provisions of Resolution No. 9615,
as amended by Resolution No. 9631, is upheld and remain in full force and effect.
In view of this Decision, the Temporary Restraining Order issued by the Court on April 16, 2013 is
hereby made PERMANENT.
SO ORDERED.
78

SUPREME COURT
Manila
EN BANC
G.R. No. 199139 September 9, 2014
ELSIE S. CAUSING, Petitioner,

vs.
COMMISSION ON ELECTIONS AND HERNAN D. BIRON, SR., Respondents.
DECISION
BERSAMIN, J.:
The issue is whether the relocation of the petitioner by respondent Municipal Mayor during the
election period from her office as the Local Civil Registrar to the Office of the Mayor just a few steps
away constituted a prohibited act under the Omnibus Election Codeand the relevant Resolution of
the Commission on Elections.
The Case
Petitioner Elsie Causing (Causing) assails the Resolution of the Commission on Elections En
Banc(COMELECEn Banc) promulgated on September 9, 2011 dismissing her complaint-affidavit
dated June 8, 2010 docketed as E.O. CaseNo. 10-131 entitled Elsie S. Causing v. Hernan D. Biron,
Sr. charging Municipal Mayor HernanD. Biron, Sr. (Mayor Biron) of Barotac Nuevo, Iloilo with
violating COMELEC Resolution No. 8737 in relation to Section 261 (g),(h), and (x) of the Omnibus
Election Code.1
Antecedents
On January 1, 1993, Causing assumed office as the Municipal Civil Registrar of Barotac Nuevo,
Iloilo. On May 28, 2010, Mayor Biron issued Memorandum No. 12, Series of 2010,2 which reads:
Office Order No. 12

Series of 2010
MRS. ELSIE S. CAUSING

Municipal Civil Registrar
LGU Barotac Nuevo
Exigencies of service so requiring, you are hereby detailed at the Office of the Municipal Mayor
effective upon receipt of this Order and shall likewise receive direct orders from the undersigned as
to particular functions our office may require from time to time.
For your information and strict compliance.
xxxx
On the same date, Mayor Biron also issued Office Order No. 13 detailing Catalina V. Belonio
(Belonio), another municipal employee, to the office of the Local Civil Registrar of Barotac Nuevo,
Iloilo to assume the functions and duties as Local Civil Registrar-designate effective upon receipt of
the order. Office Order No. 13 reads:
Office Order No. 13

Series of 2010
MS. CATALINA V. BELONIO

Administrative Officer III
Office of the Municipal Mayor
Exigencies of service so requiring, you are hereby detailed at the Office of the Local Civil Registrar
and assume the functions and duties as LCR-Designate effective upon receipt of this Order.
As such, you are hereby authorized to sign and issue documents relative thereto including the claim
for travel allowance and seminar expenses.
For you information and compliance.
x x x x3
On June 1, 2010, Mayor Biron issued to Causing Memorandum No. 17, Series of 2010, and
Memorandum No. 17-A, Series of 2010, respectively reading as follows:
Memorandum No. 17
You are hereby directed to report to the Office of the Mayor effective immediately upon receipt of this
Order and signing of MCR documents shall likewise be done at my office where you will be provided
with a table for this particular function.
For clarity purposes preparation ofsuch documents relative to civil registration provided for under
R.A.No. 9048 and R.A. 9255 shall be done at the office of MCR, after which, the said documents
shall be forwarded to you for your signature.
Additional duties and functions shall likewise be under my direct supervision.
Office Order No. 12 issued on May 28, 2010 is hereby repealed accordingly.
For your strict compliance.4
Memorandum No. 17-A
You are hereby directed to report to the Office of the Mayor effective immediately upon receipt of this
Order. You have to take action on R.A. 9048 and sign MCR documents at my office where you will
be provided with a table for this particular function.
For clarity purposes, preparation of documents relative to civil registration shall be done at the office
of MCR, after which, the said completed documents shall be forwarded to you for your signature.
Additional duties and functions shall likewise be under my direct supervision.
Office Order No. 12 issued on May 28, 2010 is hereby repealed accordingly.
For your strict compliance.5
In view of the foregoing issuances by Mayor Biron, Causing filed the complaint-affidavit dated June
8, 2010 in the Office of the Regional Election Director, Region VI, in Iloilo City, claiming that Office
Order No. 12 dated May 28, 2010 issued by Mayor Biron ordering her detail to the Office of the
Municipal Mayor, being made within the election period and without prior authority from the
COMELEC, was illegal and violative of Section 1, Paragraph A, No. 1, in connection with Section 6
(B) of COMELEC Resolution No. 8737, Series of 2009, to wit:
xxxx
5. The issuance of Office Order No. 12 dated May 28, 2010 by the municipal mayor ordering my
detail atthe Office of the Municipal Mayor, made within the election period and without prior written
authority from the COMELEC is illegal and violative of Section 1, Paragraph A, No 1 in connection
with Section 6 (B) of COMELEC Resolution No. 8737 (Series of 2009) otherwise known as " In the
Matter of Enforcing the Prohibition against appointment or hiring of new employees, creating or filing
of new positions, giving any salary increase or transferring or detailing any officer or employee in the
civil service and suspension of local elective officials in connection with the May 10, 2010 national
and local elections;’
xxxx
8. Further, said transfer of detail does not fall under any of the exceptions to the requirement of prior
authority from the COMELEC, as provided under Section 7 of COMELEC Resolution No. 8737.
x x x x6
In his counter-affidavit,7 Mayor Biron countered that the purpose of transferring the office of Causing
was to closely supervise the performance of her functions after complaints regarding her negative
behavior in dealing with her co-employees and with the public transacting business in her office had
been received;8 that as the local chief executive, he was empowered to take personnel actions and
other management prerogatives for the good of public service; that Causing was not being stripped
of her functions as the Municipal Civil Registrar; that she was not transferred or detailed to another
office in order to perform a different function; and that she was not demoted to a lower position that
diminishedher salary and other benefits.9
On March 1, 2011, Atty. Elizabeth Doronilla, the Provincial Election Supervisor (PES), recommended
the dismissal of the complaint-affidavit for lack of probable cause to charge MayorBiron with the
violation of Section (h) of the Omnibus Election Code, as implemented by Resolution No. 8737.
On September 9, 2011, the COMELEC En Bancaffirmed the findings and recommendation of PES
Doronilla,10observing that Mayor Biron did not transfer or detail Causing but only required her to
physically report to the Mayor’s office and to perform her functions thereat; and that he did not strip
her of her functions as the Municipal Civil Registrar, and did not deprive her of her supervisory
functions over her staff.11
Hence, this petition for certiorari.
Issues
Causing submits that Office Order 12 and Office Order 13 were gross violations of COMELEC
Resolution No. 8737, Series of 2009, that implemented Section 261 (g), (h), and (x) of the Omnibus
Election Code; that the prohibition contained in said provisions covered any movement during the
election period, whether it was by reassignment, appointment, promotion, or demotion, regardless of
rank, level or salaryof the affected personnel; that her detail to the Office of the Mayor was a clear
case of personnel movement prohibited by law;12 and that Mayor Biron violated the provisions
because he did not secure from the COMELEC the prior authority to transfer or detail her during the
election period.13
In addition, Causing claims that the COMELEC En Banccommitted grave abuse of discretion in
affirming the findings of PES Doronilla to the effect that there was no probable cause to hold Mayor
Biron liable for violating the Omnibus Election Code; and that the COMELEC En Banc totally
disregarded a crucial piece ofevidence — the existence of Office Order No. 13 that had ordered the
detail of Belonio as the Local Civil Registrar-designate.14
In his comment,15 Mayor Biron insists that the petition for certiorari should be dismissed because of
the petitioner’s failure to file a motion for reconsideration in the COMELEC, and because of her
failure to attach copies of equally important documents pertinent to the case.16 He emphasizes that
Office Order No. 12 was issued by his office for the purpose of closely supervising her in performing
her functions after complaints about her behavior in dealing with her co-workers and withthe public
transacting business in her office had been received by his office.17 He accuses her of willfully
suppressing evidence, specifically the two office orders that clarified that she would still be
performing the functions of her office, albeit in the Office of the Mayor.18
Mayor Biron reiterates his counter-affidavit, namely: (a) that there was no transfer or detail involved,
and any movement of Causing, if at all, was a purely physical transfer, that is, only a few steps from
her office to the Office of the Mayor, without any change in the present work, agency, position, rank
and compensation;19 and (b) that granting without admitting that the movement constituted
reassignment, the same was not covered by the provisions of COMELEC Resolution No. 8737,
which expressly limited the prohibition to either transfer or detail only.20 Mayor Biron posits that Office
Order No. 13 purportedly ordering the detail of Belonio as Local Civil Registrar-designate was a
mere piece of paper, which Belonio never received.21 He points out that his actions were upheld by
the decision dated August 13,2010 of the Regional Office of the Civil Service Commission
dismissing the appeal by Causing of the assailed office orders.22
Finally, Mayor Biron asserts that Causing did not demonstrate that the COMELEC En
Banccommitted grave abuse of discretion in affirming the findings that there was no probable
causeto hold him liable for violation of the Omnibus Election Code.23
On its part, the COMELEC, through the Office of the Solicitor General (OSG),24 defends its
questioned resolution, stating that the words transferand detail, having already acquired legislative
and jurisprudential meanings, should not be understood in their literal sense; that Causing was
neither transferred nor detailed; that she was not moved to a different office with the same rank,
level and salary, or to another agency;25 and that Mayor Biron’s act of transferring the office space of
Causing was intra vires, and found legal support in the power of supervision and control accorded to
local chief executives under the Local Government Code.26
Ruling
The petition has no merit.
1.
Procedural Issue:
Causing did not file a motion for reconsideration before filing the petition for certiorari
Section 7, Article IX-A of the Constitution states that unless otherwise provided by the Constitution or
by law, any decision, order, or ruling of each Commission may be brought to the Court on
certiorariby the aggrieved party within 30 days from receipt of a copy thereof. For this reason, the
Rules of Court(1997) contains a separate rule(Rule 64) on the review of the decisions of the
COMELEC and the Commission on Audit.27 Rule 64 is generally identical with certiorariunder Rule
65,28 except as to the period of the filing of the petition for certiorari, that is, in the former, the period
is 30 days from notice of the judgment or final order or resolution sought to be reviewed but, in the
latter, not later than 60 days from notice of the judgment, order or resolution assailed.29
Mayor Biron indicates that Causing did not file a motion for reconsideration before coming to the
Court. Causing submits, however, that she was not required to file the motion for reconsideration
because the only recourse of an aggrieved party from the decision of the COMELEC was the filing of
the petition for certiorariunder either Rule 64 or Rule 65.30
The well-established rule is that the motion for reconsideration is an indispensable condition before
an aggrieved party can resort to the special civil action for certiorariunder Rule 65 of the Rules of
Court. The filing of the motion for reconsideration before the resort to certiorariwill lie is intended to
afford to the public respondent the opportunity to correct any actual or fancied error attributed to it by
way of re-examination of the legal and factual aspects of the case.31
The rule is not absolute, however, considering that jurisprudence has laid down exceptions to the
requirement for the filing of a petition for certiorariwithout first filing a motion for reconsideration,
namely: (a) where the order is a patent nullity, as where the court a quohas no jurisdiction; (b) where
the questions raised in the certiorariproceedings have been duly raised and passed upon by the
lower court, or are the same as those raised and passed upon in the lower court; (c) where there is
an urgent necessity for the resolution of the question, and any further delay would prejudice the
interests of the Government, or of the petitioner, or the subject matter of the petition is perishable;
(d) where, under the circumstances, a motion for reconsideration would be useless; (e) where the
petitioner was deprived of due process, and there is extreme urgency for relief; (f) where, in a
criminal case, relief from an order ofarrest is urgent, and the granting of such relief by the trial court
is improbable; (g) where the proceedings in the lower court are a nullity for lack of due process; (h)
where the proceeding was ex parteor in which the petitioner had no opportunity to object; and (i)
where the issue raised is one purely oflaw or public interest is involved.
A perusal of the circumstances of the case shows that none of the foregoing exceptions was
applicable herein. Hence, Causing should have filed the motion for reconsideration, especially
because there was nothing in the COMELEC Rules of Procedure thatprecluded the filing of the
motion for reconsideration in election offense cases.32
Accordingly, the petition must be dismissed.
2.
Substantive Issues:
Mayor Biron’s acts did not violate the Omnibus Election Code and the COMELEC Resolution
On the merits, the petition should also fail.
E.O. Case No. 10-131 was founded on Mayor Biron’s alleged violation of COMELEC Resolution No.
8737,Series of 2009, in relation to Section 261(g), (h) and (x) of the Omnibus Election Code, which
respectively provide:
Resolution No. 8737
Section 1. Prohibited Acts
A. During the election period from January 10, 2010 to June 09, 2010, no public official shall,
except upon prior authority of the Commission:
1. Make or cause any transfer or detail whatsoever of any officer or employee in the civil
service, including public school teachers. "Transfer" as used in this provision shall be
construed as any personnel movement from one government agency to another or from one
department, division, geographical unit or subdivision of a government agency to another
withor without the issuance of an appointment.
xxxx
Section 261(g), (h) and (x) of the Omnibus Election Code
Sec. 261. Prohibited Acts. - The following shall be guilty of an election offense:
xxxx
(g) Appointment of new employees, creation of new position, promotion, or giving salary
increases. - During the periodof forty-five days before a regular election and thirty days
before a special election, (1) any head, official or appointing officer of a government office,
agency or instrumentality, whether national or local, including government-owned or
controlled corporations, who appoints or hires any new employee, whether provisional,
temporary or casual, or creates and fills any new position, except upon prior authority of the
Commission. The Commission shall not grant the authority sought unless, it is satisfied that
the position to be filled is essential to the proper functioning of the office or agency
concerned, and that the position shall not be filled in a manner that may influence the
election.
As an exception to the foregoing provisions, a new employee may be appointed in case of

urgent need: Provided, however, That notice of the appointment shall be given to the
Commission within three days from the date of the appointment. Any appointment or hiring in
violation of this provision shall be null and void.
(2) Any government official who promotes, or gives any increase of salary or remuneration or
privilege to any government official or employee, including those in government-owned or
controlled corporations.
(h) Transfer of officers and employees in the civil service. - Any public official who makes or
causes any transfer or detail whatever of any officer or employee in the civil service including
publicschool teachers, within the election period except upon prior approval of the
Commission. x x x x
(x) Suspension of elective provincial, city, municipal or barangay officer. - The provisions of
law to the contrary notwithstanding during the election period, any public official who
suspends, without prior approval of the Commission, any elective provincial, city, municipal
or barangay officer, unless said suspension will be for purposes of applying the AntiGraft and
Corrupt Practices Act in relation to the suspension and removal of elective officials; in which
case the provisions of this section shall be inapplicable.
The only personnel movements prohibited by COMELEC Resolution No. 8737 were transfer and
detail. Transferis defined in the Resolution as "any personnel movement from one government
agency to another or from one department, division, geographical unit or subdivision of a
government agency to another with or without the issuance of an appointment;" while detailas
defined in the Administrative Code of 1987is the movement of an employee from one agency to
another without the issuance of an appointment.33 Having acquired technicaland legal meanings,
transferand detailmust be construed as such. Obviously, the movement involving Causing did not
equate to either a transfer or a detail within the contemplation of the law if Mayor Biron only thereby
physically transferred her office area from its old location tothe Office of the Mayor "some little steps"
away.34 We cannot accept the petitioner’sargument, therefore, that the phrase "any transfer or detail
whatsoever" encompassed "any and all kinds and manner of personnel movement,"35 including the
mere change in office location.
Moreover, Causing’s too-literal understanding of transfershould not hold sway because the
provisions involved here werecriminal in nature. Mayor Biron was sought to be charged with an
1âwphi1
election offense punishable under Section 264 of the Omnibus Election Code.36 It is a basic rule of
statutory construction that penal statutes are to be liberally construed in favor of the accused. Every
reasonable doubt must then be resolved in favor of the accused.37 This means that the courts must
not bring cases within the provision of a law that are not clearly embraced by it. In short, no act can
be pronounced criminal unless it is clearly made so by statute prior to its commission (nullum
crimen, nulla poena, sine lege). So, too, no person who is not clearly within the terms of a statute
can be brought within them.
Equally material is that Mayor Biron’s act of transferring the office space of Causing was rooted in
his power of supervision and control over the officials and employees serving in his local government
unit, in order to ensure the faithful discharge of their duties and functions.38 His explanation that he
transferred Causing’s work station from her original office to his office in order to closely supervise
her after his office received complaints against her could not be justly ignored. Verily, she thereafter
continued to perform her tasks, and uninterruptedly received her salaries as the Municipal Civil
Registrar even after the transfer to the Office of the Mayor.
The issuance of Office Order No. 13 by Mayor Biron detailing Belonio to the Office of the Local Civil
Registrar was not proof of Mayor Biron’s "crystal clear intention" to replace and transfer her during
the election period.39 As the COMELEC En Bancfound, Belonio did not receive the order, and
Causing remained as the Municipal Civil Registrar, leaving the detailing of Belonio uncompleted.
Without the actual appointment of Belonio as the Municipal Civil Registrar, it would be unwarranted
to criminally charge Mayor Biron ofviolating Section 261 of the Omnibus Election Code.
It is interesting to note that aside from the present election offense case, Causing initiated an
administrative case in the Civil Service Commission to challenge her "reassignment" pursuant to the
same office orders. In that administrative case, she referred to the personnel movement not as a
transferor detail, but as a reassignmentthat constituted her constructive dismissal.40
On August 13, 2010, the CSC Regional Office No. 6 in Mandurriao, Iloilo City ruled thatalthough
Mayor Biron used the word detailin referring to the personnel movement effected, the personnel
action that actually took place, albeit a reassignment, was a valid reassignment, viz: In the instant
case, Causing is not stripped of her functions as Municipal Civil Registrar (MCR). She was merely
required to physically report to the Mayor’s Office and perform her functions as Municipal Civil
Registrar therein. Definitely, she isstill the MCR, albeit doing her work physically outside of her usual
work station. She is also not deprived of her supervisory function over the staff as she continues to
review their work and signs documents they prepared. While she may encounter difficulty in
performing her duties as a supervisor as she is not physically near her staff, that by itself, however,
does not mean that she has lost supervision over them. That difficulty, nonetheless, is not
tantamount to constructive dismissal. That Mayor Biron prefers to ensure that Causing faithfully
discharging her duties as MCR is principally an exercise of his sound judgment and discretion. He
alone has the discretion to decide when to resort to the necessity of implementing changes in the
workplace as he occupies the ideal vantage point and is in the best position to determine the needs
of his agency and how to satisfy those needs. Besides, contrary to the allegations of Causing, none
of the elements of constructive dismissal is present. 1âw phi1
WHEREFORE, the instant appeal of Elsie B. Causing is DISMISSED. Office Order No. 12. Dated
May 28, 2010 and Office Orders No. 17 and 17-A dated June 01, 2010 of Mayor Hernan D. Biron,
Sr. of Barotac Nuevo, Iloilo are AFFIRMED.41
Considering that reassignment was not prohibited by the Omnibus Election Code, there was no
probable cause to criminally charge Mayor Biron with the violation of the Omnibus Election Code.
WHEREFORE, the Court DISMISSES the petition for certiorari; AFFIRMS the Resolution of the
Commission on Elections promulgated on September 9, 2011 dismissing E.O. Case No. 10-131
entitled Elsie S. Causing v. Hernan D. Biron, Sr.; and ORDERS the petitioner to pay the costs of suit.
SO ORDERED.
79

SUPREME COURT
Manila
EN BANC
G.R. No. 179430 July 27, 2009
JAMELA SALIC MARUHOM, Petitioner,

vs.
COMMISSION ON ELECTIONS, and MOHAMMADALI "Mericano" A. ABINAL, Respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a Petition for Certiorari1 with Prayer for the Issuance of a Temporary Restraining Order
and/or Writ of Preliminary Injunction assailing the Resolution2 dated 21 August 2007 of the
Commission on Elections (COMELEC) En Banc and Resolution3 dated 8 May 2007 of the
COMELEC First Division, both pertaining to SPA No. 07-093.
The facts gathered from the records are as follows:
Petitioner Jamela Salic Maruhom (Maruhom) and private respondent Mohammadali "Mericano" A.
Abinal (Abinal) were mayoralty candidates in the Municipality of Marantao, Lanao del Sur, for the 14
May 2007 national and local elections. Both Maruhom and Abinal filed their respective sworn
Certificates of Candidacy (COCs) for the said position with the COMELEC Election Officer of
Marantao. Abinal was then the incumbent Mayor of Marantao who was seeking re-election.
On 1 April 2007, Abinal filed before the COMELEC a Petition for Disqualification and to Deny Due
Course to or Cancel the Certificate of Candidacy under Section 78 of Batas Pambansa Bilang
881,4 otherwise known as the Omnibus Election Code of the Philippines (OEC),5 against Maruhom,
which was docketed as SPA No. 07-093. Abinal alleged that Maruhom was a double registrant,
being a registered voter in Precinct No. 0208A, Barangay Panggao Saduc, Marawi City and Precinct
No. 0040A, Barangay Kialdan Proper, Marantao. Maruhom registered as a voter in Marawi on 26
July 2003. Only three days thereafter, on 29 July 2003, Maruhom registered again as a voter in
Marantao, without canceling her Marawi registration. There being double registration, Maruhom’s
subsequent registration in Marantao was null and void ab initio. And, not being a registered voter in
Marantao, Maruhom was disqualified from running for municipal mayor of said municipality.6
Abinal also averred that Maruhom made false material representations in her registrations in Marawi
and Marantao.7 Maruhom stated in her Marawi registration that: (1) she was "Jamela H. Salic
Maruhom"; (2) she was born on 5 April 1960; (3) she was born in Marawi; and (4) she had resided in
Marawi for 43 years. On the other hand, Maruhom indicated in her Marantao registration that: (1)
she was "Hadja Jamelah Salic Abani"; (2) she was born on 3 September 1960; (3) she was born in
Marantao; and (4) she had resided in Marantao for 42 years.8
Abinal further claimed that Maruhom also made false material representations in her COC. Maruhom
wrote in her Marantao registration9 that she was born on 3 September 1960; she was a registered
voter in Precinct No. 0040A, Marantao; and her surname was "Abani" and her maiden/maternal
name was "Salic." In contrast, Maruhom declared10 in her COC that she was born on 5 April 1960;
she was a registered voter in Precinct No. 0042A, Marantao; and her surname was "Salic" and her
maiden/maternal name was "Abani, Mama, Esmail, Maruhom." Moreover, Maruhom was registered
in Marantao as "Hadja Jamelah Salic Abani." This was inconsistent with the Certificate of Nomination
dated 23 March 2007, issued by Dr. Ombra A. Tamano, Lanao del Sur Provincial Chairman of Laban
ng Demokratikong Pilipino, stating that Maruhom’s full name was "Jamelah Abani Salic."
Abinal asserted that the aforementioned false material representations made by Maruhom were valid
grounds for denying due course to, or cancellation of, the latter’s COC under Section 78 of the
OEC.11
Maruhom filed before the COMELEC an Answer with Motion to Dismiss SPA No. 07-093 contending
that she was qualified to run as municipal mayor of Marantao, as she had all the qualifications and
none of the disqualifications provided by law. A candidate could only be disqualified for a ground
provided by law, and there was no law declaring double registration as a ground for disqualification.
Maruhom also insisted that she did not make false material representations in her COC, because
her complete name was "Salic, Jamelah, Abani, Mama, Esmail, Maruhom." Maruhom explained that
"Salic" was her father’s surname; "Jamelah" was her first name; that "Abani, Mama, Esmail" were
her paternal and maternal grandparents’ names; and "Maruhom" was her husband’s surname.
Hence, Maruhom asked the COMELEC to dismiss Abinal’s Petition in SPA No. 07-093.12
After submission of the parties’ Position Papers and Memoranda, the COMELEC First Division
issued a Resolution in SPA No. 07-093 on 8 May 2007, granting Abinal’s Petition. The COMELEC
First Division found that Maruhom had two subsisting registrations, one in Marawi, and another in
Marantao. Maruhom’s Marantao registration was void ab initio pursuant to COMELEC Minute
Resolution No. 00-1513, issued on 25 July 2000.13 Since Maruhom was not a registered voter in
Marantao, she was disqualified from being a mayoralty candidate therein. Thus, the COMELEC First
Division ordered the deletion of Maruhom’s name from the list of official candidates for municipal
mayor of Marantao.
Maruhom filed a Motion for Reconsideration of the 8 May 2007 Resolution of the COMELEC First
Division, to which Abinal filed an Opposition.14 The COMELEC First Division then referred
Maruhom’s Motion for Reconsideration to the COMELEC en banc for disposition.15
Meanwhile, the 14 May 2007 national and local elections were held, and Abinal won over Maruhom.
Abinal was proclaimed the duly elected municipal mayor of Marantao and, thereupon, assumed
office. Maruhom filed an election protest against Abinal before the Regional Trial Court (RTC) of
Lanao del Sur, Branch 10, docketed as Election Case No. 1731-07.16
On 21 August 2007, the COMELEC En Banc issued a Resolution denying Maruhom’s Motion for
Reconsideration and affirming in toto the 8 May 2007 Resolution of the COMELEC First Division.
The COMELEC En Banc further ordered the referral of the case to the COMELEC Law Department
for investigation on the possible commission of an election offense by Maruhom.
Aggrieved, Maruhom filed the instant Petition for Certiorari, under Rule 64 of the Revised Rules of
Court, imputing grave abuse of discretion on the part of COMELEC, based on the following grounds:
I.
THE COMELEC HAS NO JURISDICTION TO DECLARE NULL AND VOID THE REGISTRATION
OF THE PETITIONER AS A REGISTERED VOTER OF MARANTAO, LANAO DEL SUR IN THE
MAY 14, 2007 ELECTIONS;
II.
THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF

JURISDICTION WHEN IT DECLARED THE PETITIONER AS A DOUBLE REGISTRANT.17
The Petition at bar has no merit.
Maruhom challenges in her Petition the jurisdiction of the COMELEC in declaring her registration in
Marantao void. She asserts that Section 2, Article IX(c) of the Constitution prohibits the COMELEC
from assuming jurisdiction or deciding issues involving the right to vote. Section 33 of Republic Act
No. 8189, or the Voter’s Registration Act of 1996 (VRA), confers upon the Municipal Trial Courts
(MTCs) and Metropolitan Trial Courts (MeTCs) original and exclusive jurisdiction over all cases of
inclusion and exclusion of voters in their respective cities or municipalities. Maruhom argues that the
validity of her registration in Marantao can only be directly challenged in a petition for exclusion filed
with the MTC of Marantao, and cannot be collaterally attacked in the Petition for Disqualification and
to Deny Due Course to or Cancel the Certificate of Candidacy filed by Abinal before the COMELEC.
Maruhom further contends that the reliance by COMELEC on its "broad plenary powers to enforce
and administer all laws relating to election" is baseless in light of the aforementioned Section 33 of
the VRA. The Resolution dated 8 May 2007 of the COMELEC First Division and Resolution dated 21
August 2007 of the COMELEC En Banc amount to judicial legislation, since the COMELEC has no
authority to prescribe what the law does not provide, its functions not being legislative.18
Maruhom, whether intentionally or inadvertently, is muddling the issues in this case. The present
case is not about her being denied her right to register as a voter, but is all about her making false
material representations in her COC, which would warrant the cancellation of the same.
Abinal’s Petition in SPA No. 07-093 primarily prays that the COMELEC deny due course to or cancel
Maruhom’s COC under Section 78 of the OEC, alleging that Maruhom made false material
representations in her COC.
Under Section 78 of the OEC, a false representation of material fact in the COC is a ground for the
denial or cancellation of the COC. The false representation must pertain to a material fact that
affects the right of the candidate to run for the election for which he filed his COC. Such material fact
refers to a candidate’s eligibility or qualification for elective office like citizenship, residence
or status as a registered voter.19 Aside from the requirement of materiality, the false representation
must consist of a deliberate attempt to mislead, misinform, or hide a fact that would otherwise render
a candidate ineligible. In other words, it must be made with the intention to deceive the electorate as
to the would-be candidate’s qualifications for public office.20
It is settled that the COMELEC has jurisdiction over a petition filed under Section 78 of the OEC.21 In
the exercise of such jurisdiction, it is within the competence of the COMELEC to determine whether
false representation as to material facts was made in the COC.22
If the candidate states a material representation in the COC that is false, the COMELEC is
empowered to deny due course to or cancel the COC. The person whose COC is denied due course
or cancelled under Section 78 of the OEC is not treated as a candidate at all, as if such person
never filed a COC.23
Evidence on record supports the following facts: Maruhom registered as a voter in Marawi on 26 July
2003;24 only three days after, on 29 July 2003, Maruhom again registered as a voter in Marantao,
without first canceling her registeration in Marawi;25 and on 28 March 2007, Maruhom filed her COC
declaring that she was a registered voter in Marantao and eligible to run as a candidate for the
position of mayor of said municipality.26
Given Maruhom’s double registration in Marawi and Marantao, then COMELEC should determine
which registration was valid and which one was null. COMELEC could not consider both
registrations valid because it would then give rise to the anomalous situation where Maruhom could
vote in two precincts at the same time. This would be a dangerous precedent that would open the
floodgates to massive election cheating and fraud. This was precisely the situation that the
COMELEC intended to address when it issued its Minute Resolution No. 00-1513 on 25 July 2000,
seven years prior to the 14 May 2007 elections in which Maruhom intended to run. To foster honesty
and credibility in the registration of voters, so as to avoid the padding of vote registration, COMELEC
laid down the rule in Minute Resolution No. 00-1513 that while the first registration of any voter
subsists, any subsequent registration thereto is void ab initio.
Following the clear and plain words of Minute Resolution No. 00-1513, therefore, Maruhom’s earlier
registration in Marawi is deemed valid, while her subsequent registration in Marantao is void ab
initio. Accordingly, Maruhom cannot be considered a registered voter in Marantao and, thus, she
made a false representation in her COC when she claimed to be one.
Maruhom’s voter registration constitutes a material fact because it affects her eligibility to be elected
as municipal mayor of Marantao. Section 39(a) of Republic Act No. 7160, otherwise known as the
Local Government Code of 1991,27 requires that an elective local official must be, among other
things, a registered voter in the barangay, municipality, city or province where he intends to be
elected.
Several circumstances convince us that Maruhom was aware that she had a subsisting registration
in Marawi and deliberately attempted to conceal said fact, which would have rendered her ineligible
to run as mayoralty candidate in Marantao. Before filing her COC, Maruhom requested the
COMELEC to cancel her Marawi registration.28 It is undisputed that by the time Maruhom filed her
COC, the COMELEC had not yet acted on her request for cancellation of her Marawi registration.
Despite knowing that her request for cancellation of her Marawi registration was still pending before
the COMELEC, Maruhom proceeded to declare, under oath, in her COC, that she was a registered
voter in Marantao and that she was eligible to run for the position of mayor of said municipality.
There is no showing that Maruhom informed or advised the election officer of Marantao of her
subsisting Marawi registration and her pending request for cancellation of the same. Evidently,
Maruhom would much rather sweep the fact of her Marawi registration under the carpet, than deal
with the complications arising from it, which may very well put in jeopardy her intention to run for
mayor of Marantao. lawphil
Indeed, Maruhom made false material representations in her COC that she was a registered voter in
Marantao and that she was eligible to be a mayoralty candidate in said municipality.
Maruhom’s insistence that only the MTC has jurisdiction to rule on her voter registration is specious.
It must be underscored that in addition to the express jurisdiction of COMELEC over petitions for
cancellation of COCs, on the ground of false material representations, under Section 78 of the OEC,
the Constitution also extends to COMELEC all the necessary and incidental powers for it to achieve
the holding of free, orderly, honest, peaceful, and credible elections.29 The determination, therefore,
made by the COMELEC that Maruhom’s Marawi registration is valid, while her Marantao registration
is void, is only in accord with its explicit jurisdiction, or at the very least, its residual powers.
Furthermore, as aptly pointed out by Abinal and COMELEC, through the Office of the Solicitor
General,30the 8 May 2007 Resolution of the COMELEC First Division and the 21 August 2007
Resolution of the COMELEC en banc merely defeated Maruhom’s intent to run for elective office, but
it did not deprive her of her right to vote. Although Maruhom’s registration in Marantao is void, her
registration in Marawi still subsists. She may be barred from voting or running for mayor in the
former, but she may still exercise her right to vote, or even run for an elective post, in the latter.
Maruhom does not deny at all that she registered twice. However, Maruhom calls our attention to the
fact that on 30 December 2003, she made a written request to the election officer of Marawi to
cancel her registration therein as a voter. On 20 March 2007, she reiterated her request to the same
election officer. On 23 March 2007, she also informed the COMELEC Law Department of her
request for cancellation of her registration in Marawi. Thus, the failure of the election officer of
Marawi to cancel Maruhom’s voter registration in said municipality, despite repeated requests,
should not be taken against the latter.31
It is true that Maruhom did make several requests for the cancellation of her Marawi registration, but
without official action by the COMELEC thereon, they remain mere requests. They cannot simply be
deemed granted. We take note that Maruhom’s first request for cancellation of her Marawi
registration was submitted on 30 December 2003, and her next request was made only on 20
March 2007. Maruhom subsequently filed her COC for the mayoralty position in Marantao on 28
March 2007. Far from convincing us that she had exercised due diligence in having her Marawi
registration cancelled, we are more persuaded that Maruhom had not been assiduous in ensuring
that her request for cancellation be acted upon by COMELEC. Maruhom’s reiteration of her request
for cancellation of her Marawi registration on 20 March 2007, three years and three months since
her first request, and just a week prior to the filing of her COC for the mayoralty position in Marantao,
reveals a harried attempt to comply with the eligibility requirements for her candidacy than a sincere
desire to right a wrong. COMELEC, thus, had more than enough basis to support its conclusion of
Maruhom being a double registrant whose subsequent registration in Marantao was null and void,
rendering her unfit to run as municipal mayor therein.
Therefore, Maruhom, at the time she filed her COC, could not have honestly declared therein that
she was a registered voter of Marantao and an eligible candidate for mayor of the said municipality.
It is incumbent upon Maruhom to truthfully state her eligibility in her COC, especially so because the
COC is filled up under oath.32 An elective office is a public trust. He who aspires for elective office
should not make a mockery of the electoral process by falsely representing himself.33
The well-settled rule is that this Court will not interfere with a COMELEC decision/resolution unless
the COMELEC is shown to have committed grave abuse of discretion. Correctly understood, grave
abuse of discretion is such "capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction, or an exercise of power in an arbitrary and despotic manner by reason of passion or
personal hostility, or an exercise of judgment so patent and gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform the duty enjoined, or to act in a manner not at all in
contemplation of law."34 Given our foregoing discussion, we find no capricious and whimsical
exercise of judgment on the part of the COMELEC in rendering the assailed Resolutions in SPA No.
07-093.
WHEREFORE, after due deliberation, the instant Petition for Certiorari is hereby DISMISSED. The
Resolution dated 8 May 2007 of the COMELEC First Division and the Resolution dated 21 August
2007 of the COMELEC En Banc in SPA No. 07-093, are hereby AFFIRMED in toto. Costs against
petitioner Jamela Salic Maruhom.
SO ORDERED.
80

SUPREME COURT
Manila
EN BANC
G.R. No. 168792 February 23, 2009
ANTONIO B. GUNSI, SR., Petitioner,

vs.
THE HONORABLE COMMISSIONERS, COMMISSION ON ELECTIONS and DATU ISRAEL
SINSUAT,Respondents.
DECISION
NACHURA, J.:
At bar is a petition for certiorari and prohibition under Rule 651 of the Rules of Court filed by
petitioner Antonio B. Gunsi Sr. (Gunsi) challenging the June 9, 2005 Resolution2 of the Commission
on Elections (COMELEC) En Banc which affirmed the October 11, 2004 Order3 of the COMELEC
Second Division.
The undisputed facts:
On January 9, 2004, private respondent Datu Israel Sinsuat (Sinsuat) filed a petition for the denial of
due course to or cancellation of the certificate of candidacy (COC) of Gunsi in connection with the
May 10, 2004 Synchronized National and Local Elections. Essentially, Sinsuat sought the
disqualification of Gunsi for Mayor of South Upi, Maguindanao, alleging, that: (a) Gunsi was not a
registered voter in the Municipality of South Upi, Maguindanao since he failed to sign his application
for registration; (b) Gunsi’s name was inserted illegally in the List of Applicants and Voters by Alice
Lim, Acting Election Officer of South Upi, Maguindanao; and (c) the unsigned application for
registration has no legal effect.
In refutation, Gunsi asseverated that his failure to sign his application for registration did not affect
the validity of his registration since he possesses the qualifications of a voter set forth in Section 116
of the Omnibus Election Code as amended by Section 9 of Republic Act 8189.
On March 12, 2004, after hearing, the Investigating Officer and Provincial Election Supervisor III,
Lintang H. Bedol, issued a resolution recommending Gunsi’s disqualification to run for Municipal
Mayor of South Upi, Maguindanao on the ground that he is not a registered voter of the municipality.
Bedol pointed out that the signature in the application for registration is indispensable for its validity
as it is an authentication and affirmation of the data appearing therein.
On August 2, 2004, the COMELEC Second Division issued a Resolution,4 to wit:
Although this case has become moot and academic since [Sinsuat] had been proclaimed as the
winning candidate for the position of Mayor of South Upi, Maguindanao, in connection with the May
10, 2004 Synchronized National and Local Elections, [w]e, however, cannot allow the irregularities
accompanying [Gunsi’s] registration as raised by [Sinsuat] in his petition.
The absence of [Gunsi’s] signature in his application for registration casts serious doubt in its
preparation and execution. It also renders the authenticity of the document questionable. In
Dalumpines v. Court of Appeals, the Supreme Court ruled that "the absence of the signature of the
contracting parties on the deed itself casts serious doubt in the preparation and execution of the
deed."
In addition, the inclusion of [Gunsi’s] name in the Election Registration Board’s Certified List of
Applicants for Registration appears to have been added irregularly as the last name in a list of
applicants arranged alphabetically.
WHEREFORE, considering that [Gunsi] lost in the election for the position of Mayor of South Upi,
Maguindanao and the fact that [Sinsuat] was duly proclaimed as Mayor of South Upi, Maguindanao
on May 16, 2004, there being only one respondent, the instant petition is hereby DISMISSED for
being moot and academic.
The Law Department, however, is directed to investigate the alleged irregularities herein mentioned
for possible violation of election laws and to file the necessary information as the evidence warrants.
SO ORDERED.5
Subsequently, the same division of the COMELEC issued the herein assailed Order6 clarifying the
August 2, 2004 Resolution, thus:
In the light, however, of the pending pre-proclamation case docketed as SPC 04-247, filed by herein
respondent, and the resolution issued by the [COMELEC] (First Division) annulling the proclamation
of [Sinsuat], the possibility that a re-canvassing of the election returns of the Municipality of South
Upi, Maguindanao is becoming more certain. Therefore, the ruling of the [COMELEC] (Second
Division) dismissing the present petition for disqualification against herein respondent for being moot
and academic becomes ineffective for the fact that, as argued by [Sinsuat] in his manifestation and
clarification, his proclamation has been annulled by the [COMELEC] (First Division).
It is therefore, incumbent upon the [COMELEC] (Second Division) to issue a categorical ruling based
on its finding as already articulated in the August 2, 2004 resolution.
xxxx
In accordance with the above finding of the [COMELEC] (Second Division) it is [o]ur resolve that
[petitioner] Antonio B. Gunsi, Sr. is disqualified to run as Mayor of South Upi, Maguindanao for being
a non-registered resident of the same municipality.
WHEREFORE, premises considered, the [COMELEC] (Second Division), hereby, clarifies its August
2, 2004 resolution by declaring that, in accordance with the findings of the [COMELEC] (Second
Division) in the promulgated resolution, [petitioner] Antonio B. Gunsi, Sr. is hereby DISQUALIFIED to
run as Mayor of South Upi, Maguindanao for being a non-registered resident of the same.
SO ORDERED.7
Upon motion for reconsideration of Gunsi, the COMELEC En Banc issued the herein assailed
Resolution:8
A perusal of the motion for reconsideration would show that the respondent failed to raise any new
material issue. All matters raised in the Motion had already been traversed and resolved in the
Recommendation of Provincial Election Supervisor Lintang Bedol dated March 12, 2004 and the
Resolution of this Commission (Second Division) promulgated last August 2, 2004 as clarified by its
Order dated October 11, 2004.
WHEREFORE, premises considered, the MOTION FOR RECONSIDERATION is hereby DENIED.

The ORDER dated October 11, 2004 is AFFIRMED.
SO ORDERED.9
Hence, this petition imputing grave abuse of discretion to the COMELEC. Gunsi posits the following
issues for our resolution:
WHETHER OR NOT THE HONORABLE COMMISSION HAS JURISDICTION OVER CASES

INVOLVING THE RIGHT TO VOTE.
GRANTING FOR THE SAKE OF ARGUMENT THAT THE HONORABLE COMMISSION HAS
JURISDICTION, WHETHER OR NOT THE HONORABLE SECOND DIVISION CAN CLARIFY ITS
RESOLUTION AFTER SIXTY-NINE (69) DAYS FROM ITS PROMULGATION OR AFTER IT HAS
BECOME FINAL AND EXECUTORY.
JURISDICTION, WHETHER OR NOT THE HONORABLE COMMISSION COMMITTED SERIOUS
ERRORS WHICH IS TANTAMOUNT TO GRAVE ABUSE OF DISCRETION.
JURISDICTION, WHETHER OR NOT THE HONORABLE COMMISSION IS CORRECT WHEN IT
DISQUALIFIED [GUNSI] TO RUN AS MAYOR OF SOUTH UPI, MAGUINDANAO FOR BEING A
NON REGISTERED RESIDENT OF THE SAME DUE TO HIS INADVERTENT FAILURE TO AFFIX
HIS SIGNATURE OVER HIS HANDWRITTEN NAME IN THE SPACE PROVIDED THEREFOR IN
HIS APPLICATION FOR REGISTRATION PERSONALLY FILLED UP, SWORN TO AN
ADMINISTERING OFFICER AND DULY FILED WITH THE COMELEC.10
At the outset, we note that the term of office of Mayor of South Upi, Maguindanao, for which position
Gunsi was disqualified by the COMELEC to run as a candidate had long expired on June 30, 2007
following the last elections held on May 14 of the same year. The expiration of term, therefore, is a
supervening event which renders this case moot and academic.
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical value. As a rule, courts
decline jurisdiction over such case, or dismiss it on ground of mootness.11
The rule, however, admits of exceptions. Thus, courts may choose to decide cases otherwise moot
and academic if: first, there is a grave violation of the Constitution; second, the exceptional character
of the situation and the paramount public interest is involved; third, the constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar and the public; or fourth, the
case is capable of repetition yet evasive of review.12 None of the foregoing exceptions calling for this
Court to exercise jurisdiction obtains in this instance.
In any event, upon a perusal of the merits or lack thereof, the petition is clearly dismissible.
Gunsi insists that he possessed the qualifications to run for Mayor of South Upi, Maguindanao;
specifically, he claims that he was a registered voter at the time he filed his COC. Gunsi is adamant
that his mere failure to affix his signature to the application for registration, which he accomplished
personally before Joel Ellano, COMELEC Administering Officer, did not necessarily invalidate his
application for registration. Consequently, Gunsi maintains that he is a registered voter, especially
considering that his name appears in the Registry List of Voters. In all, Gunsi avers that his COC
should not have been cancelled; ultimately, he should not have been disqualified from running as
Mayor of South Upi, Maguindanao.
We are not convinced. Gunsi’s arguments are annihilated by Section 10 of Republic Act No.
8189,13 The Voter’s Registration Act of 1996, which explicitly provides in pertinent part:
SECTION 10. Registration of Voters. – A qualified voter shall be registered in the permanent list of
voters in a precinct of the city or municipality wherein he resides to be able to vote in any election.
To register as a voter, he shall personally accomplish an application form for registration as
prescribed by the Commission in three (3) copies before the Election Officer on any date during
office hours after having acquired the qualifications of a voter.
xxxx
x x x The application for registration shall contain three (3) specimen signatures of the applicant,
clear and legible rolled prints of his left and right thumbprints, with four identification size copies of
his latest photograph, attached thereto, to be taken at the expense of the Commission.14
In stark contrast are the prevailing circumstances of Gunsi’s application for registration:
1. Only a photocopy15 of Gunsi’s application for registration was submitted in evidence before
Investigating Officer Bedol as the original thereof was purportedly lost. The photocopy of the
document clearly shows that Gunsi failed to sign parts 2 and 3 thereof. The administering
officer, Joel Ellano, likewise did not sign part 3 of said document. These parts refer to the
oath which Gunsi should have taken to validate and swear to the veracity of the contents
appearing in the application for registration. 1avv phi 1
2. Joel Ellano was not presented by Gunsi to corroborate his claim that his failure to sign the
application was merely due to inadvertence. Surprisingly, Gunsi chose to present, as
witness, Alice Lim, Acting Election Officer of South Upi, Maguindanao, who admitted that she
received an unsigned letter furnishing her a copy of Gunsi’s unsigned application for
registration and that she did not bother requiring Gunsi to accomplish in full the application
for registration in order to complete the List of Voters.16 Lim likewise admits to inserting
Gunsi’s name in the List of Voters based on the photocopy of an unsigned application for
registration which she had previously seen. Hence, the listing of the Applicants for
Registration and the Lists of Voters which are alphabetically arranged with Gunsi’s name
inserted thereat.17
3. The testimonies of Noraida Enero, Rowena Unson and Abdullah Mato, Municipal
Treasurer of Upi, members of the Election Registration Board of South Upi, Maguindanao,
who all categorically stated that they did not encounter Gunsi’s application for registration.18
Plainly, from the foregoing, the irregularities surrounding Gunsi’s application for registration
eloquently proclaim that he did not comply with the minimum requirements of RA No. 8189. This
leads to only one conclusion: that Gunsi, not having demonstrated that he duly accomplished an
application for registration, is not a registered voter. In short, the cancellation of Gunsi’s COC by the
COMELEC and his consequent disqualification from running as Mayor of South Upi, Maguindanao,
was correct.
WHEREFORE, premises considered, the petition is hereby DISMISSED. The COMELEC Order and
Resolution dated October 11, 2004 and June 9, 2005 are AFFIRMED.
SO ORDERED.
81

SUPREME COURT
Manila
EN BANC
G.R. No. 189698 December 1, 2009
ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners,

vs.
DECISION
NACHURA, J.:
In our predisposition to discover the "original intent" of a statute, courts become the unfeeling pillars
of the status quo. Little do we realize that statutes or even constitutions are bundles of compromises
thrown our way by their framers. Unless we exercise vigilance, the statute may already be out of
tune and irrelevant to our day.1 It is in this light that we should address the instant case.
Before the Court is a petition for prohibition and certiorari, with prayer for the issuance of a
temporary restraining order and a writ of preliminary injunction, assailing Section 4(a) of Resolution
No. 8678 of the Commission on Elections (COMELEC). In view of pressing contemporary events,
the petition begs for immediate resolution.
The Antecedents
This controversy actually stems from the law authorizing the COMELEC to use an automated
election system (AES).
On December 22, 1997, Congress enacted Republic Act (R.A.) No. 8436, entitled "AN ACT
AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION
SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT
NATIONAL AND LOCAL ELECTORAL EXERCISES, PROVIDING FUNDS THEREFOR AND FOR
OTHER PURPOSES." Section 11 thereof reads:
SEC. 11. Official Ballot.- The Commission shall prescribe the size and form of the official ballot
which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in
an initiative, referendum or plebiscite. Under each position, the names of candidates shall be
arranged alphabetically by surname and uniformly printed using the same type size. A fixed space
where the chairman of the Board of Election inspectors shall affix his/her signature to authenticate
the official ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of candidacy/petition for
registration/manifestation to participate in the election shall not be later than one hundred twenty
(120) days before the elections: - Provided, That, any elective official, whether national or local,
running for any office other than the one which he/she is holding in a permanent capacity, except for
president and vice president, shall be deemed resigned only upon the start of the campaign period
corresponding to the position for which he/she is running: Provided, further, That, unlawful acts or
omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period:
Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the
certificate of candidacy for the positions of President, Vice President, Senators and candidates
under the Party-List System as well as petitions for registration and/or manifestation to participate in
the Party-List System shall be on February 9, 1998 while the deadline for the filing of certificate of
candidacy for other positions shall be on March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng
Pilipinas at the price comparable with that of private printers under proper security measures which
the Commission shall adopt. The Commission may contract the services of private printers upon
certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the
printing requirements. Accredited political parties and deputized citizens' arms of the Commission
may assign watchers in the printing, storage and distribution of official ballots.
To prevent the use of fake ballots, the Commission through the Committee shall ensure that the
serial number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by
inexpensive hardware and shall be impossible to reproduce on a photocopying machine and that
identification marks, magnetic strips, bar codes and other technical and security markings, are
provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at the rate of one (1)
ballot for every registered voter with a provision of additional four (4) ballots per precinct.2
Almost a decade thereafter, Congress amended the law on January 23, 2007 by enacting R.A. No.
9369, entitled "AN ACT AMENDING REPUBLIC ACT NO. 8436, ENTITLED "AN ACT
AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION
SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT
NATIONAL AND LOCAL ELECTORAL EXERCISES, TO ENCOURAGE TRANSPARENCY,
CREDIBILITY, FAIRNESS AND ACCURACY OF ELECTIONS, AMENDING FOR THE PURPOSE
BATAS PAMPANSA BLG. 881, AS AMEMDED, REPUBLIC ACT NO. 7166 AND OTHER RELATED
ELECTION LAWS, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES." Section 13
of the amendatory law modified Section 11 of R.A. No. 8436, thus:
SEC. 13. Section 11 of Republic Act No. 8436 is hereby amended to read as follows:
Section 15. Official Ballot.- The Commission shall prescribe the format of the electronic display
and/or the size and form of the official ballot, which shall contain the titles of the position to be filled
and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Where practicable,
electronic displays must be constructed to present the names of all candidates for the same position
in the same page or screen, otherwise, the electronic displays must be constructed to present the
entire ballot to the voter, in a series of sequential pages, and to ensure that the voter sees all of the
ballot options on all pages before completing his or her vote and to allow the voter to review and
change all ballot choices prior to completing and casting his or her ballot. Under each position to be
filled, the names of candidates shall be arranged alphabetically by surname and uniformly indicated
using the same type size. The maiden or married name shall be listed in the official ballot, as
preferred by the female candidate. Under each proposition to be vote upon, the choices should be
uniformly indicated using the same font and size.
A fixed space where the chairman of the board of election inspectors shall affix his/her signature to
authenticate the official ballot shall be provided.
For this purpose, the Commission shall set the deadline for the filing of certificate of
candidacy/petition of registration/manifestation to participate in the election. Any person who files his
certificate of candidacy within this period shall only be considered as a candidate at the start of the
campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or
omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign
period: Provided, finally, That any person holding a public appointive office or position, including
active members of the armed forces, and officers and employees in government-owned or -
controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate
the same at the start of the day of the filing of his/her certificate of candidacy.
Political parties may hold political conventions to nominate their official candidates within thirty (30)
days before the start of the period for filing a certificate of candidacy.
With respect to a paper-based election system, the official ballots shall be printed by the National
Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private
printers under proper security measures which the Commission shall adopt. The Commission may
contract the services of private printers upon certification by the National Printing Office/Bangko
Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and
deputized citizens' arms of the Commission shall assign watchers in the printing, storage and
distribution of official ballots.
necessary safeguards, such as, but not limited to, bar codes, holograms, color shifting ink,
microprinting, are provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at the rate of one ballot
for every registered voter with a provision of additional three ballots per precinct.3
Pursuant to its constitutional mandate to enforce and administer election laws, COMELEC issued
Resolution No. 8678,4 the Guidelines on the Filing of Certificates of Candidacy (CoC) and
Nomination of Official Candidates of Registered Political Parties in Connection with the May 10,
2010 National and Local Elections. Sections 4 and 5 of Resolution No. 8678 provide:
SEC. 4. Effects of Filing Certificates of Candidacy.- a) Any person holding a public appointive office
or position including active members of the Armed Forces of the Philippines, and other officers and
employees in government-owned or controlled corporations, shall be considered ipso facto resigned
from his office upon the filing of his certificate of candidacy.
b) Any person holding an elective office or position shall not be considered resigned upon the filing
of his certificate of candidacy for the same or any other elective office or position.
SEC. 5. Period for filing Certificate of Candidacy.- The certificate of candidacy shall be filed on
regular days, from November 20 to 30, 2009, during office hours, except on the last day, which shall
be until midnight.
Alarmed that they will be deemed ipso facto resigned from their offices the moment they file their
CoCs, petitioners Eleazar P. Quinto and Gerino A. Tolentino, Jr., who hold appointive positions in
the government and who intend to run in the coming elections,5 filed the instant petition for
prohibition and certiorari, seeking the declaration of the afore-quoted Section 4(a) of Resolution No.
8678 as null and void.
The Petitioners' Contention
Petitioners contend that the COMELEC gravely abused its discretion when it issued the assailed
Resolution. They aver that the advance filing of CoCs for the 2010 elections is intended merely for
the purpose of early printing of the official ballots in order to cope with time limitations. Such advance
filing does not automatically make the person who filed the CoC a candidate at the moment of filing.
In fact, the law considers him a candidate only at the start of the campaign period. Petitioners then
assert that this being so, they should not be deemed ipso facto resigned from their government
offices when they file their CoCs, because at such time they are not yet treated by law as
candidates. They should be considered resigned from their respective offices only at the start of the
campaign period when they are, by law, already considered as candidates.6
Petitioners also contend that Section 13 of R.A. No. 9369, the basis of the assailed COMELEC
resolution, contains two conflicting provisions. These must be harmonized or reconciled to give
effect to both and to arrive at a declaration that they are not ipso facto resigned from their positions
upon the filing of their CoCs.7
Petitioners further posit that the provision considering them as ipso facto resigned from office upon
the filing of their CoCs is discriminatory and violates the equal protection clause in the Constitution.8
The Respondent's Arguments
On the procedural aspect of the petition, the Office of the Solicitor General (OSG), representing
respondent COMELEC, argues that petitioners have no legal standing to institute the suit."
Petitioners have not yet filed their CoCs, hence, they are not yet affected by the assailed provision in
the COMELEC resolution. The OSG further claims that the petition is premature or unripe for judicial
determination." Petitioners have admitted that they are merely planning to file their CoCs for the
coming 2010 elections. Their interest in the present controversy is thus merely speculative and
contingent upon the filing of the same. The OSG likewise contends that petitioners availed of the
wrong remedy. They are questioning an issuance of the COMELEC made in the exercise of the
latter's rule-making power. Certiorari under Rule 65 is then an improper remedy.9
On the substantive aspect, the OSG maintains that the COMELEC did not gravely abuse its
discretion in phrasing Section 4(a) of Resolution No. 8678 for it merely copied what is in the law. The
OSG, however, agrees with petitioners that there is a conflict in Section 13 of R.A. No. 9369 that
should be resolved. According to the OSG, there seems to be no basis to consider appointive
officials as ipso facto resigned and to require them to vacate their positions on the same day that
they file their CoCs, because they are not yet considered as candidates at that time. Further, this -
deemed resigned- provision existed in Batas Pambansa Bilang (B.P. Blg.) 881, and no longer finds a
place in our present election laws with the innovations brought about by the automated system.10
Our Ruling
I.
At first glance, the petition suffers from an incipient procedural defect. What petitioners assail in their
petition is a resolution issued by the COMELEC in the exercise of its quasi-legislative power.
Certiorari under Rule 65, in relation to Rule 64, cannot be availed of, because it is a remedy to
question decisions, resolutions and issuances made in the exercise of a judicial or quasi-judicial
function.11 Prohibition is also an inappropriate remedy, because what petitioners actually seek from
the Court is a determination of the proper construction of a statute and a declaration of their rights
thereunder. Obviously, their petition is one for declaratory relief,12 over which this Court does not
exercise original jurisdiction.13
However, petitioners raise a challenge on the constitutionality of the questioned provisions of both
the COMELEC resolution and the law. Given this scenario, the Court may step in and resolve the
instant petition.
The transcendental nature and paramount importance of the issues raised and the compelling state
interest involved in their early resolution the period for the filing of CoCs for the 2010 elections has
already started and hundreds of civil servants intending to run for elective offices are to lose their
employment, thereby causing imminent and irreparable damage to their means of livelihood and, at
the same time, crippling the government's manpowerfurther dictate that the Court must, for propriety,
if only from a sense of obligation, entertain the petition so as to expedite the adjudication of all,
especially the constitutional, issues.
In any event, the Court has ample authority to set aside errors of practice or technicalities of
procedure and resolve the merits of a case. Repeatedly stressed in our prior decisions is the
principle that the Rules were promulgated to provide guidelines for the orderly administration of
justice, not to shackle the hand that dispenses it. Otherwise, the courts would be consigned to being
mere slaves to technical rules, deprived of their judicial discretion.14
II.
To put things in their proper perspective, it is imperative that we trace the brief history of the assailed
provision. Section 4(a) of COMELEC Resolution No. 8678 is a reproduction of the second proviso in
the third paragraph of Section 13 of R.A. No. 9369, which for ready reference is quoted as follows:
candidacy/petition for registration/manifestation to participate in the election. Any person who files
his certificate of candidacy within this period shall only be considered as a candidate at the start of
the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or
the same at the start of the day of the filing of his/her certificate of candidacy.15
Notably, this proviso is not present in Section 11 of R.A. No. 8436, the law amended by R.A. No.
9369. The proviso was lifted from Section 66 of B.P. Blg. 881 or the Omnibus Election Code (OEC)
of the Philippines, which reads:
Sec. 66. Candidates holding appointive office or position.- Any person holding a public appointive
office or position, including active members of the Armed Forces of the Philippines, and officers and
employees in government-owned or controlled corporations, shall be considered ipso facto resigned
from his office upon the filing of his certificate of candidacy.
It may be recalled-in inverse chronology-that earlier, Presidential Decree No. 1296, or the 1978
Election Code, contained a similar provision, thus'
SECTION 29. Candidates holding appointive office or position. - Every person holding a public
appointive office or position, including active members of the Armed Forces of the Philippines, and
officers and employees in government-owned or controlled corporations, shall ipso facto cease in his
office or position on the date he files his certificate of candidacy. Members of the Cabinet shall
continue in the offices they presently hold notwithstanding the filing of certificate of candidacy,
subject to the pleasure of the President of the Philippines.
Much earlier, R.A. No. 6388, or the Election Code of 1971, likewise stated in its Section 23 the
following:
SECTION 23. Candidates Holding Appointive Office or Position. - Every person holding a public
appointive office or position, including active members of the Armed Forces of the Philippines and
every officer or employee in government-owned or controlled corporations, shall ipso facto cease in
his office or position on the date he files his certificate of candidacy: Provided, That the filing of a
certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which he
may have incurred.
Going further back in history, R.A. No. 180, or the Revised Election Code approved on June 21,
1947, also provided that
SECTION 26. Automatic cessation of appointive officers and employees who are candidates. - Every
person holding a public appointive office or position shall ipso facto cease in his office or position on
the date he files his certificate of candidacy.
During the Commonwealth era, Commonwealth Act (C.A.) No. 725, entitled "AN ACT TO PROVIDE
FOR THE NEXT ELECTION FOR PRESIDENT AND VICE-PRESIDENT OF THE PHILIPPINES,
SENATORS AND MEMBERS OF THE HOUSE OF REPRESENTATIVES, AND APPROPRIATING
THE NECESSARY FUNDS THEREFOR," approved on January 5, 1946, contained, in the last
paragraph of its Section 2, the following:
A person occupying any civil office by appointment in the government or any of its political
subdivisions or agencies or government-owned or controlled corporations, whether such office by
appointive or elective, shall be considered to have resigned from such office from the moment of the
filing of such certificate of candidacy.
Significantly, however, C.A. No. 666, entitled "AN ACT TO PROVIDE FOR THE FIRST ELECTION
FOR PRESIDENT AND VICE-PRESIDENT OF THE PHILIPPINES, SENATORS, AND MEMBERS
OF THE HOUSE OF REPRESENTATIVES, UNDER THE CONSTITUTION AND THE
AMENDMENTS THEREOF," enacted without executive approval on June 22, 1941, the precursor of
C.A. No. 725, only provided for automatic resignation of elective, but not appointive, officials.
Nevertheless, C.A. No. 357, or the Election Code approved on August 22, 1938, had, in its Section
22, the same verbatim provision as Section 26 of R.A. No. 180.
The earliest recorded Philippine law on the subject is Act No. 1582, or the Election Law enacted by
the Philippine Commission in 1907, the last paragraph of Section 29 of which reads:
Sec. 29. Penalties upon officers.- x x x.
No public officer shall offer himself as a candidate for election, nor shall he be eligible during the
time that he holds said public office to election, at any municipal, provincial or Assembly election,
except for reelection to the position which he may be holding, and no judge of the Court of First
Instance, justice of the peace, provincial fiscal, or officer or employee of the Bureau of Constabulary
or of the Bureau of Education shall aid any candidate or influence in any manner or take any part in
any municipal, provincial, or Assembly election under penalty of being deprived of his office and
being disqualified to hold any public office whatever for a term of five years: Provided, however, That
the foregoing provisions shall not be construed to deprive any person otherwise qualified of the right
to vote at any election.
From this brief historical excursion, it may be gleaned that the second proviso in the third paragraph
of Section 13 of R.A. No. 9369- that any person holding a public appointive office or position,
including active members of the armed forces, and officers, and employees in government-owned or
the same at the start of the day of the filing of his/her certificate of candidacy- traces its roots to the
period of the American occupation.
In fact, during the deliberations of Senate Bill No. 2231, the bill later to be consolidated with House
Bill No. 5352 and enacted as R.A. No. 9369, Senator Richard Gordon, the principal author of the bill,
acknowledged that the said proviso in the proposed legislative measure is an old provision which
was merely copied from earlier existing legislation, thus'
Senator Osmeña.- May I just opine here and perhaps obtain the opinion of the good Sponsor.- This
reads like, "ANY PERSON HOLDING [means currently] A PUBLIC APPOINTIVE POSITION" SHALL
BE CONSIDERED IPSO FACTO RESIGNED- [which means that the prohibition extends only to
appointive officials] "INCLUDING ACTIVE MEMBERS OF THE ARMED FORCES, OFFICERS AND
EMPLOYEES"- This is a prohibition, Mr. President.- This means if one is chairman of SSS or PDIC,
he is deemed ipso facto resigned when he files his certificate of candidacy.- Is that the intention
Senator Gordon.- This is really an old provision, Mr. President.
Senator Osmeña.- It is in bold letters, so I think it was a Committee amendment.
Senator Gordon.- No, it has always been there.
Senator Osmeña.- I see.
Senator Gordon.- I guess the intention is not to give them undue advantage, especially certain
people.
Senator Osmeña.- All right.16
In that Senate deliberation, however, Senator Miriam Defensor-Santiago expressed her concern
over the inclusion of the said provision in the new law, given that the same would be
disadvantageous and unfair to potential candidates holding appointive positions, while it grants a
consequent preferential treatment to elective officials, thus'
Senator Santiago.- On page 15, line 31, I know that this is a losing cause, so I make this point more
as a matter of record than of any feasible hope that it can possibly be either accepted or if we come
to a division of the House, it will be upheld by the majority.
I am referring to page 15, line 21.- The proviso begins: "PROVIDED FINALLY, THAT ANY PERSON
HOLDING A PUBLIC APPOINTIVE OFFICE - SHALL BE CONSIDERED IPSO FACTO RESIGNED
FROM HIS/HER OFFICE."
The point that I made during the appropriate debate in the past in this Hall is that there is, for me, no
valid reason for exempting elective officials from this inhibition or disqualification imposed by the
law.- If we are going to consider appointive officers of the government, including AFP members and
officers of government-owned and controlled corporations, or any other member of the appointive
sector of the civil service, why should it not apply to the elective sector for, after all, even senators
and congressmen are members of the civil service as well
Further, it is self-serving for the Senate, or for the Congress in general, to give an exception to itself
which is not available to other similarly situated officials of government. Of course, the answer is, the
reason why we are special is that we are elected. Since we are imposing a disqualification on all
other government officials except ourselves, I think, it is the better part of delicadeza to inhibit
ourselves as well, so that if we want to stay as senators, we wait until our term expires. But if we
want to run for some other elective office during our term, then we have to be considered resigned
just like everybody else. That is my proposed amendment. But if it is unacceptable to the
distinguished Sponsor, because of sensitivity to the convictions of the rest of our colleagues, I will
understand.
Senator Gordon. Mr. President, I think the suggestion is well-thought of.- It is a good policy.-
However, this is something that is already in the old law which was upheld by the Supreme court in a
recent case that the rider was not upheld and that it was valid.17
The obvious inequality brought about by the provision on automatic resignation of appointive civil
servants must have been the reason why Senator Recto proposed the inclusion of the following
during the period of amendments: "ANY PERSON WHO FILES HIS CERTIFICATE OF CANDIDACY
WITHIN THIS PERIOD SHALL ONLY BE CONSIDERED AS A CANDIDATE AT THE START OF
THE CAMPAIGN PERIOD FOR WHICH HE FILED HIS COC."18 The said proviso seems to mitigate
the situation of disadvantage afflicting appointive officials by considering persons who filed their
CoCs as candidates only at the start of the campaign period, thereby, conveying the tacit intent that
persons holding appointive positions will only be considered as resigned at the start of the campaign
period when they are already treated by law as candidates.
Parenthetically, it may be remembered that Section 67 of the OEC and Section 11 of R.A. No. 8436
contained a similar provision on automatic resignation of elective officials upon the filing of their
CoCs for any office other than that which they hold in a permanent capacity or for President or Vice-
President. However, with the enactment of R.A. No. 9006, or the Fair Election Act,19 in 2001, this
provision was repealed by Section 1420 of the said act. There was, thus, created a situation of
obvious discrimination against appointive officials who were deemed ipso facto resigned from their
offices upon the filing of their CoCs, while elective officials were not.
This situation was incidentally addressed by the Court in Fari᳠v. The Executive Secretary21 when it
ruled that
Section 14 of Rep. Act No. 9006

Is Not Violative of the Equal
Protection Clause of the Constitution
The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to
elective officials gives undue benefit to such officials as against the appointive ones and violates the
equal protection clause of the constitution, is tenuous.
The equal protection of the law clause in the Constitution is not absolute, but is subject to
reasonable classification.- If the groupings are characterized by substantial distinctions that make
real differences, one class may be treated and regulated differently from the other. The Court has
explained the nature of the equal protection guarantee in this manner:
The equal protection of the law clause is against undue favor and individual or class privilege, as
well as hostile discrimination or the oppression of inequality.- It is not intended to prohibit legislation
which is limited either in the object to which it is directed or by territory within which it is to operate.-
It does not demand absolute equality among residents; it merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to privileges conferred and liabilities
enforced.- The equal protection clause is not infringed by legislation which applies only to those
persons falling within a specified class, if it applies alike to all persons within such class, and
reasonable grounds exist for making a distinction between those who fall within such class and
those who do not.
Substantial distinctions clearly exist between elective officials and appointive officials. The former
occupy their office by virtue of the mandate of the electorate. They are elected to an office for a
definite term and may be removed therefrom only upon stringent conditions. On the other hand,
appointive officials hold their office by virtue of their designation thereto by an appointing authority.-
Some appointive officials hold their office in a permanent capacity and are entitled to security of
tenure while others serve at the pleasure of the appointing authority.
Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8,
Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987
(Executive Order No. 292), appointive officials, as officers and employees in the civil service, are
strictly prohibited from engaging in any partisan political activity or take part in any election except to
vote.- Under the same provision, elective officials, or officers or employees holding political offices,
are obviously expressly allowed to take part in political and electoral activities.
By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators
deemed it proper to treat these two classes of officials differently with respect to the effect on their
tenure in the office of the filing of the certificates of candidacy for any position other than those
occupied by them.- Again, it is not within the power of the Court to pass upon or look into the wisdom
of this classification.
Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-a-vis
appointive officials, is anchored upon material and significant distinctions and all the persons
belonging under the same classification are similarly treated, the equal protection clause of the
Constitution is, thus, not infringed.22
However, it must be remembered that the Court, in Fari᳠/i>, was intently focused on the main issue
of whether the repealing clause in the Fair Election Act was a constitutionally proscribed rider, in that
it unwittingly failed to ascertain with stricter scrutiny the impact of the retention of the provision on
automatic resignation of persons holding appointive positions (Section 66) in the OEC, vis-୶is the
equal protection clause.- Moreover, the Court's vision in Fari᳠/i> was shrouded by the fact that
petitioners therein, Fari᳠et al., never posed a direct challenge to the constitutionality of Section 66 of
the OEC. Fari᳠et al. rather merely questioned, on constitutional grounds, the repealing clause, or
Section 14 of the Fair Election Act. The Court's afore-quoted declaration in Fari᳠/i> may then very
well be considered as an obiter dictum.
III.
The instant case presents a rare opportunity for the Court, in view of the constitutional challenge
advanced by petitioners, once and for all, to settle the issue of whether the second proviso in the
third paragraph of Section 13 of R.A. No. 9369, a reproduction of Section 66 of the OEC, which, as
shown above, was based on provisions dating back to the American occupation, is violative of the
equal protection clause.
But before delving into the constitutional issue, we shall first address the issues on legal standing
and on the existence of an actual controversy.
Central to the determination of locus standi is the question of whether a party has alleged such a
personal stake in the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions.23 In this case, petitioners allege that they will be directly affected by
COMELEC Resolution No. 8678 for they intend, and they all have the qualifications, to run in the
2010 elections. The OSG, for its part, contends that since petitioners have not yet filed their CoCs,
they are not yet candidates; hence, they are not yet directly affected by the assailed provision in the
COMELEC resolution.
The Court, nevertheless, finds that, while petitioners are not yet candidates, they have the standing
to raise the constitutional challenge, simply because they are qualified voters. A restriction on
candidacy, such as the challenged measure herein, affects the rights of voters to choose their public
officials. The rights of voters and the rights of candidates do not lend themselves to neat separation;
laws that affect candidates always have at least some theoretical, correlative effect on voters.24 The
Court believes that both candidates and voters may challenge, on grounds of equal protection, the
assailed measure because of its impact on voting rights.25
In any event, in recent cases, this Court has relaxed the stringent direct injury test and has observed
a liberal policy allowing ordinary citizens, members of Congress, and civil organizations to prosecute
actions involving the constitutionality or validity of laws, regulations and rulings.26
We have also stressed in our prior decisions that the exercise by this Court of judicial power is
limited to the determination and resolution of actual cases and controversies.27 The Court, in this
case, finds that an actual case or controversy exists between the petitioners and the COMELEC, the
body charged with the enforcement and administration of all election laws. Petitioners have alleged
in a precise manner that they would engage in the very acts that would trigger the enforcement of
the provisionthey would file their CoCs and run in the 2010 elections. Given that the assailed
provision provides for ipso facto resignation upon the filing of the CoC, it cannot be said that it
presents only a speculative or hypothetical obstacle to petitioners' candidacy.28
IV.
Having hurdled what the OSG posed as obstacles to judicial review, the Court now delves into the
constitutional challenge.
It is noteworthy to point out that the right to run for public office touches on two fundamental
freedoms, those of expression and of association. This premise is best explained in Mancuso v.
Taft,29 viz.:
Freedom of expression guarantees to the individual the opportunity to write a letter to the local
newspaper, speak out in a public park, distribute handbills advocating radical reform, or picket an
official building to seek redress of grievances. All of these activities are protected by the First
Amendment if done in a manner consistent with a narrowly defined concept of public order and
safety. The choice of means will likely depend on the amount of time and energy the individual
wishes to expend and on his perception as to the most effective method of projecting his message to
the public. But interest and commitment are evolving phenomena. What is an effective means for
protest at one point in time may not seem so effective at a later date. The dilettante who participates
in a picket line may decide to devote additional time and resources to his expressive activity. As his
commitment increases, the means of effective expression changes, but the expressive quality
remains constant. He may decide to lead the picket line, or to publish the newspaper. At one point in
time he may decide that the most effective way to give expression to his views and to get the
attention of an appropriate audience is to become a candidate for public office-means generally
considered among the most appropriate for those desiring to effect change in our governmental
systems. He may seek to become a candidate by filing in a general election as an independent or by
seeking the nomination of a political party. And in the latter instance, the individual's expressive
activity has two dimensions: besides urging that his views be the views of the elected public official,
he is also attempting to become a spokesman for a political party whose substantive program
extends beyond the particular office in question. But Cranston has said that a certain type of its
citizenry, the public employee, may not become a candidate and may not engage in any campaign
activity that promotes himself as a candidate for public office. Thus the city has stifled what may be
the most important expression an individual can summon, namely that which he would be willing to
effectuate, by means of concrete public action, were he to be selected by the voters.
It is impossible to ignore the additional fact that the right to run for office also affects the freedom to
associate. In Williams v. Rhodes, supra, the Court used strict review to invalidate an Ohio election
system that made it virtually impossible for third parties to secure a place on the ballot. The Court
found that the First Amendment protected the freedom to associate by forming and promoting a
political party and that that freedom was infringed when the state effectively denied a party access to
its electoral machinery. The Cranston charter provision before us also affects associational rights,
albeit in a slightly different way. An individual may decide to join or participate in an organization or
political party that shares his beliefs. He may even form a new group to forward his ideas. And at
some juncture his supporters and fellow party members may decide that he is the ideal person to
carry the group's standard into the electoral fray. To thus restrict the options available to political
organization as the Cranston charter provision has done is to limit the effectiveness of association;
and the freedom to associate is intimately related with the concept of making expression effective.
Party access to the ballot becomes less meaningful if some of those selected by party machinery to
carry the party's programs to the people are precluded from doing so because those nominees are
civil servants.
Whether the right to run for office is looked at from the point of view of individual expression or
associational effectiveness, wide opportunities exist for the individual who seeks public office. The
fact of candidacy alone may open previously closed doors of the media. The candidate may be
invited to discuss his views on radio talk shows; he may be able to secure equal time on television to
elaborate his campaign program; the newspapers may cover his candidacy; he may be invited to
debate before various groups that had theretofore never heard of him or his views. In short, the fact
of candidacy opens up a variety of communicative possibilities that are not available to even the
most diligent of picketers or the most loyal of party followers. A view today, that running for public
office is not an interest protected by the First Amendment, seems to us an outlook stemming from an
earlier era when public office was the preserve of the professional and the wealthy. Consequently
we hold that candidacy is both a protected First Amendment right and a fundamental interest. Hence
any legislative classification that significantly burdens that interest must be subjected to strict equal
protection review.30
Here, petitioners' interest in running for public office, an interest protected by Sections 4 and 8 of
Article III of the Constitution, is breached by the proviso in Section 13 of R.A. No. 9369. It is now the
opportune time for the Court to strike down the said proviso for being violative of the equal protection
clause and for being overbroad.
In considering persons holding appointive positions as ipso facto resigned from their posts upon the
filing of their CoCs, but not considering as resigned all other civil servants, specifically the elective
ones, the law unduly discriminates against the first class. The fact alone that there is substantial
distinction between those who hold appointive positions and those occupying elective posts, does
not justify such differential treatment.
In order that there can be valid classification so that a discriminatory governmental act may pass the
constitutional norm of equal protection, it is necessary that the four (4) requisites of valid
classification be complied with, namely:
(1) It must be based upon substantial distinctions;
(2) It must be germane to the purposes of the law;
(3) It must not be limited to existing conditions only; and
(4) It must apply equally to all members of the class.
The first requirement means that there must be real and substantial differences between the classes
treated differently. As illustrated in the fairly recent Mirasol v. Department of Public Works and
Highways,31 a real and substantial distinction exists between a motorcycle and other motor vehicles
sufficient to justify its classification among those prohibited from plying the toll ways. Not all
motorized vehicles are created equal a two-wheeled vehicle is less stable and more easily
overturned than a four-wheel vehicle.
Nevertheless, the classification would still be invalid if it does not comply with the second
requirement if it is not germane to the purpose of the law. Justice Isagani A. Cruz (Ret.), in his
treatise on constitutional law, explains,
The classification, even if based on substantial distinctions, will still be invalid if it is not germane to
the purpose of the law. To illustrate, the accepted difference in physical stamina between men and
women will justify the prohibition of the latter from employment as miners or stevedores or in other
heavy and strenuous work. On the basis of this same classification, however, the law cannot provide
for a lower passing average for women in the bar examinations because physical strength is not the
test for admission to the legal profession. Imported cars may be taxed at a higher rate than locally
assembled automobiles for the protection of the national economy, but their difference in origin is no
justification for treating them differently when it comes to punishing violations of traffic regulations.
The source of the vehicle has no relation to the observance of these rules.32
The third requirement means that the classification must be enforced not only for the present but as
long as the problem sought to be corrected continues to exist. And, under the last requirement, the
classification would be regarded as invalid if all the members of the class are not treated similarly,
both as to rights conferred and obligations imposed.33
Applying the four requisites to the instant case, the Court finds that the differential treatment of
persons holding appointive offices as opposed to those holding elective ones is not germane to the
purposes of the law.
The obvious reason for the challenged provision is to prevent the use of a governmental position to
promote one's candidacy, or even to wield a dangerous or coercive influence on the electorate. The
measure is further aimed at promoting the efficiency, integrity, and discipline of the public service by
eliminating the danger that the discharge of official duty would be motivated by political
considerations rather than the welfare of the public.34 The restriction is also justified by the
proposition that the entry of civil servants to the electoral arena, while still in office, could result in
neglect or inefficiency in the performance of duty because they would be attending to their campaign
rather than to their office work.
If we accept these as the underlying objectives of the law, then the assailed provision cannot be
constitutionally rescued on the ground of valid classification. Glaringly absent is the requisite that the
classification must be germane to the purposes of the law. Indeed, whether one holds an appointive
office or an elective one, the evils sought to be prevented by the measure remain. For example, the
Executive Secretary, or any Member of the Cabinet for that matter, could wield the same influence
as the Vice-President who at the same time is appointed to a Cabinet post (in the recent past,
elected Vice-Presidents were appointed to take charge of national housing, social welfare
development, interior and local government, and foreign affairs). With the fact that they both head
executive offices, there is no valid justification to treat them differently when both file their CoCs for
the elections. Under the present state of our law, the Vice-President, in the example, running this
time, let us say, for President, retains his position during the entire election period and can still use
the resources of his office to support his campaign.
As to the danger of neglect, inefficiency or partisanship in the discharge of the functions of his
appointive office, the inverse could be just as true and compelling. The public officer who files his
certificate of candidacy would be driven by a greater impetus for excellent performance to show his
fitness for the position aspired for.
Mancuso v. Taft,35 cited above, explains that the measure on automatic resignation, which restricts
the rights of civil servants to run for officea right inextricably linked to their freedom of expression
and association, is not reasonably necessary to the satisfaction of the state interest. Thus, in striking
down a similar measure in the United States, Mancuso succinctly declares'
In proceeding to the second stage of active equal protection review, however, we do see some
contemporary relevance of the Mitchell decision. National Ass'n of Letter Carriers, supra. In order for
the Cranston charter provision to withstand strict scrutiny, the city must show that the exclusion of all
government employees from candidacy is necessary to achieve a compelling state interest. And, as
stated in Mitchell and other cases dealing with similar statutes, see Wisconsin State Employees,
supra; Broadrick, supra, government at all levels has a substantial interest in protecting the integrity
of its civil service. It is obviously conceivable that the impartial character of the civil service would be
seriously jeopardized if people in positions of authority used their discretion to forward their electoral
ambitions rather than the public welfare. Similarly if a public employee pressured other fellow
employees to engage in corrupt practices in return for promises of post-election reward, or if an
employee invoked the power of the office he was seeking to extract special favors from his
superiors, the civil service would be done irreparable injury. Conversely, members of the public,
fellow-employees, or supervisors might themselves request favors from the candidate or might
improperly adjust their own official behavior towards him. Even if none of these abuses actually
materialize, the possibility of their occurrence might seriously erode the public's confidence in its
public employees. For the reputation of impartiality is probably as crucial as the impartiality itself; the
knowledge that a clerk in the assessor's office who is running for the local zoning board has access
to confidential files which could provide pressure points for furthering his campaign is destructive
regardless of whether the clerk actually takes advantage of his opportunities. For all of these
reasons we find that the state indeed has a compelling interest in maintaining the honesty and
impartiality of its public work force.
We do not, however, consider the exclusionary measure taken by Cranston-a flat prohibition on
office-seeking of all kinds by all kinds of public employees-as even reasonably necessary to
satisfaction of this state interest. As Justice Marshall pointed out in Dunn v. Blumstein, [s]tatutes
affecting constitutional rights must be drawn with precision. For three sets of reasons we conclude
that the Cranston charter provision pursues its objective in a far too heavy-handed manner and
hence must fall under the equal protection clause. First, we think the nature of the regulation-a broad
prophylactic rule-may be unnecessary to fulfillment of the city's objective. Second, even granting
some sort of prophylactic rule may be required, the provision here prohibits candidacies for all types
of public office, including many which would pose none of the problems at which the law is aimed.
Third, the provision excludes the candidacies of all types of public employees, without any attempt to
limit exclusion to those employees whose positions make them vulnerable to corruption and conflicts
of interest.
There is thus no valid justification to treat appointive officials differently from the elective ones. The
classification simply fails to meet the test that it should be germane to the purposes of the law. The
measure encapsulated in the second proviso of the third paragraph of Section 13 of R.A. No. 9369
and in Section 66 of the OEC violates the equal protection clause.
V.
The challenged provision also suffers from the infirmity of being overbroad.
First, the provision pertains to all civil servants holding appointive posts without distinction as to
whether they occupy high positions in government or not. Certainly, a utility worker in the
government will also be considered as ipso facto resigned once he files his CoC for the 2010
elections. This scenario is absurd for, indeed, it is unimaginable how he can use his position in the
government to wield influence in the political world.
While it may be admitted that most appointive officials who seek public elective office are those who
occupy relatively high positions in government, laws cannot be legislated for them alone, or with
them alone in mind. For the right to seek public elective office is universal, open and unrestrained,
subject only to the qualification standards prescribed in the Constitution and in the laws. These
qualifications are, as we all know, general and basic so as to allow the widest participation of the
citizenry and to give free rein for the pursuit of one's highest aspirations to public office. Such is the
essence of democracy.
Second, the provision is directed to the activity of seeking any and all public offices, whether they be
partisan or nonpartisan in character, whether they be in the national, municipal or barangay level.
Congress has not shown a compelling state interest to restrict the fundamental right involved on
such a sweeping scale.36
Specific evils require specific treatments, not through overly broad measures that unduly restrict
guaranteed freedoms of the citizenry. After all, sovereignty resides in the people, and all
governmental power emanates from them.
Mancuso v. Taft,37 on this point, instructs
As to approaches less restrictive than a prophylactic rule, there exists the device of the leave of
absence. Some system of leaves of absence would permit the public employee to take time off to
pursue his candidacy while assuring him his old job should his candidacy be unsuccessful.
Moreover, a leave of absence policy would eliminate many of the opportunities for engaging in the
questionable practices that the statute is designed to prevent. While campaigning, the candidate
would feel no conflict between his desire for election and his publicly entrusted discretion, nor any
conflict between his efforts to persuade the public and his access to confidential documents. But
instead of adopting a reasonable leave of absence policy, Cranston has chosen a provision that
makes the public employee cast off the security of hard-won public employment should he desire to
compete for elected office.
The city might also promote its interest in the integrity of the civil service by enforcing, through
dismissal, discipline, or criminal prosecution, rules or statutes that treat conflict of interests, bribery,
or other forms of official corruption. By thus attacking the problem directly, instead of using a broad
prophylactic rule, the city could pursue its objective without unduly burdening the First Amendment
rights of its employees and the voting rights of its citizens. Last term in Dunn v. Blumstein, the
Supreme Court faced an analogous question when the State of Tennessee asserted that the interest
of ballot box purity justified its imposition of one year and three month residency requirements before
a citizen could vote. Justice Marshall stated, inter alia, that Tennessee had available a number of
criminal statutes that could be used to punish voter fraud without unnecessary infringement on the
newcomer's right to vote. Similarly, it appears from the record in this case that the Cranston charter
contains some provisions that might be used against opportunistic public employees.
Even if some sort of prophylactic rule is necessary, we cannot say that Cranston has put much effort
into tailoring a narrow provision that attempts to match the prohibition with the problem. The charter
forbids a Cranston public employee from running for any office, anywhere. The prohibition is not
limited to the local offices of Cranston, but rather extends to statewide offices and even to national
offices. It is difficult for us to see that a public employee running for the United States Congress
poses quite the same threat to the civil service as would the same employee if he were running for a
local office where the contacts and information provided by his job related directly to the position he
was seeking, and hence where the potential for various abuses was greater. Nor does the Cranston
charter except the public employee who works in Cranston but aspires to office in another local
jurisdiction, most probably his town of residence. Here again the charter precludes candidacies
which can pose only a remote threat to the civil service. Finally, the charter does not limit its
prohibition to partisan office-seeking, but sterilizes also those public employees who would seek
nonpartisan elective office. The statute reviewed in Mitchell was limited to partisan political activity,
and since that time other courts have found the partisan-nonpartisan distinction a material one. See
Kinnear, supra; Wisconsin State Employees, supra; Gray v. Toledo, supra. While the line between
nonpartisan and partisan can often be blurred by systems whose true characters are disguised by
the names given them by their architects, it seems clear that the concerns of a truly partisan office
and the temptations it fosters are sufficiently different from those involved in an office removed from
regular party politics to warrant distinctive treatment in a charter of this sort.
The third and last area of excessive and overinclusive coverage of the Cranston charter relates not
to the type of office sought, but to the type of employee seeking the office. As Justice Douglas
pointed out in his dissent in Mitchell, 330 U.S. at 120-126, 67 S.Ct. 556, restrictions on
administrative employees who either participate in decision-making or at least have some access to
information concerning policy matters are much more justifiable than restrictions on industrial
employees, who, but for the fact that the government owns the plant they work in, are, for purposes
of access to official information, identically situated to all other industrial workers. Thus, a worker in
the Philadelphia mint could be distinguished from a secretary in an office of the Department of
Agriculture; so also could a janitor in the public schools of Cranston be distinguished from an
assistant comptroller of the same city. A second line of distinction that focuses on the type of
employee is illustrated by the cases of Kinnear and Minielly, supra. In both of these cases a civil
service deputy decided to run for the elected office of sheriff. The courts in both cases felt that the
no-candidacy laws in question were much too broad and indicated that perhaps the only situation
sensitive enough to justify a flat rule was one in which an inferior in a public office electorally
challenged his immediate superior. Given all these considerations, we think Cranston has not given
adequate attention to the problem of narrowing the terms of its charter to deal with the specific kinds
of conflict-of-interest problems it seeks to avoid.
We also do not find convincing the arguments that after-hours campaigning will drain the energy of
the public employee to the extent that he is incapable of performing his job effectively and that
inevitable on-the-job campaigning and discussion of his candidacy will disrupt the work of others.
Although it is indisputable that the city has a compelling interest in the performance of official work,
the exclusion is not well-tailored to effectuate that interest. Presumably the city could fire the
individual if he clearly shirks his employment responsibilities or disrupts the work of others. Also, the
efficiency rationale common to both arguments is significantly underinclusive. It applies equally well
to a number of non-political, extracurricular activities that are not prohibited by the Cranston charter.
Finally, the connection between after-hours campaigning and the state interest seems tenuous; in
many cases a public employee would be able to campaign aggressively and still continue to do his
job well.38
Incidentally, Clements v. Fashing39 sustained as constitutional a provision on the automatic

resignation of District Clerks, County Clerks, County Judges, County Treasurers, Criminal District
Attorneys, County Surveyors, Inspectors of Hides and Animals, County Commissioners, Justices of
the Peace, Sheriffs, Assessors and Collectors of Taxes, District Attorneys, County Attorneys, Public
Weighers, and Constables if they announce their candidacy or if they become candidates in any
general, special or primary election.
In Clements, it may be readily observed that a provision treating differently particular officials, as
distinguished from all others, under a classification that is germane to the purposes of the law, merits
the stamp of approval from American courts. Not, however, a general and sweeping provision, and
more so one violative of the second requisite for a valid classification, which is on its face
unconstitutional.
On a final note, it may not be amiss to state that the Americans, from whom we copied the provision
in question, had already stricken down a similar measure for being unconstitutional. It is high-time
that we, too, should follow suit and, thus, uphold fundamental liberties over age-old, but barren,
restrictions to such freedoms.
WHEREFORE, premises considered, the petition is GRANTED. The second proviso in the third
paragraph of Section 13 of Republic Act No. 9369, Section 66 of the Omnibus Election Code and
Section 4(a) of COMELEC Resolution No. 8678 are declared as UNCONSTITUTIONAL.
SO ORDERED.
82

SUPREME COURT
Manila
EN BANC
G.R. No. 165983 April 24, 2007
JOY CHRISMA B. LUNA, Petitioner,

vs.
COMMISSION ON ELECTIONS, TOMAS LAYAO, SOLOMON LALUGAN III, NELIA LAZAGA,
ANTHONY LAYAO, CIPRIANO LAPEZ, JR., VICTORIA LAYAO, MODERNO LAPEZ, RODRIGO
PARIÑAS, and EUGENIO CABER DONATO, Respondents.
DECISION
CARPIO, J.:
The Case
Before this Court is a petition for certiorari1 with prayer for the issuance of a temporary restraining
order, writ of preliminary injunction or status quo order questioning the 4 June 2004 Resolution of the
Commission on Elections (COMELEC) First Division and the 22 November 2004 Resolution of the
COMELEC En Banc in SPA Case No. 04-306. The 4 June 2004 Resolution denied due course to the
substitution of petitioner Joy Chrisma B. Luna (Luna) for Hans Roger Luna (Hans Roger) and
declared the substitution invalid. The 22 November 2004 Resolution denied Luna’s motion for
reconsideration.
The Facts
On 15 January 2004, Luna filed her certificate of candidacy for the position of vice-mayor of
Lagayan, Abra as a substitute for Hans Roger, who withdrew his certificate of candidacy on the
same date. Ruperto Blanco, Election Officer of Lagayan, Abra removed the name of Hans Roger
from the list of candidates and placed the name of Luna.
On 20 April 2004, private respondents Tomas Layao, Solomon Lalugan III, Nelia Lazaga, Anthony
Layao, Cipriano Lapez, Jr., Victoria Layao, Moderno Lapez, Rodrigo Pariñas, and Eugenio Caber
Donato (private respondents) filed a petition for the cancellation of the certificate of candidacy or
disqualification of Luna. Private respondents alleged that Luna made a false material representation
in her certificate of candidacy because Luna is not a registered voter of Lagayan, Abra but a
registered voter of Bangued, Abra. Private respondents also claimed that Luna’s certificate of
candidacy was not validly filed because the substitution by Luna for Hans Roger was invalid. Private
respondents alleged that Hans Roger was only 20 years old on election day and, therefore, he was
disqualified to run for vice-mayor and cannot be substituted by Luna.21ªvvphi 1.nét
The COMELEC’s Ruling
In the 4 June 2004 Resolution, the COMELEC First Division granted the petition and denied due
course to the substitution of Luna for Hans Roger. The COMELEC First Division ruled that, while
Luna complied with the procedural requirements for substitution, Hans Roger was not a valid
candidate for vice-mayor. The COMELEC First Division pointed out that Hans Roger, being
underage,3 did not file a valid certificate of candidacy and, thus, Hans Roger was not a valid
candidate for vice-mayor who could be substituted by Luna. The COMELEC First Division also ruled
that Luna was not a registered voter of Lagayan, Abra and that this was sufficient to disqualify Luna
from running as vice-mayor.
On 28 June 2004, Luna filed a motion for reconsideration with the COMELEC En Banc. Luna added
that the 4 June 2004 Resolution was issued in violation of her right to due process because she was
not given the opportunity to present evidence on her behalf with the COMELEC First Division.
In the 22 November 2004 Resolution, the COMELEC En Banc denied the motion for reconsideration
and affirmed with modification the 4 June 2004 Resolution. The COMELEC En Banc affirmed the
finding that Hans Roger, being underage, may not be validly substituted by Luna. The COMELEC En
Banc also ruled that Luna’s right to due process was not violated because Luna was notified of the
petition and was given the opportunity to be heard. However, the COMELEC En Banc ruled that
Luna was a registered voter of Lagayan, Abra.
Hence, this petition.
In a Resolution dated 11 January 2005, we required the parties to maintain the status quo prevailing
before the issuance of the assailed COMELEC resolutions pending the resolution of this petition.4
The Issues
Luna raised the following issues:
1. Whether the COMELEC committed grave abuse of discretion when it ruled that there was
no violation of Luna’s right to due process; and
2. Whether the COMELEC committed grave abuse of discretion when it ruled that there was
no valid substitution by Luna for Hans Roger.
The Court’s Ruling
The petition is partly meritorious.
Luna’s Right to Due Process was not Violated
Luna contends that her right to due process was violated because she was not given the opportunity
to present her evidence before the COMELEC First Division.
Under Rule 23 of the 1993 COMELEC Rules of Procedure, a petition to deny due course to or
cancel a certificate of candidacy shall be heard summarily after due notice. The law mandates that
the candidates must be notified of the petition against them and should be given the opportunity to
present evidence on their behalf.5 This is the essence of due process.
In this case, the COMELEC En Banc stated that the records showed that three days after the
petition was filed, the Provincial Election Supervisor, as hearing officer, with the assistance of the
Philippine National Police Provincial Command, tried to personally serve a copy of the petition to
Luna. But Luna refused to formally receive the petition. On 26 April 2004, the Office of the Provincial
Election Supervisor sent the notice via registered mail and still Luna did not file an answer.
The Court finds that Luna’s right to due process was not violated. The COMELEC notified Luna of
the petition filed against her and Luna was given the opportunity to present evidence on her behalf.
This constitutes compliance with the requirements of due process.
Substitution of Luna for Hans Roger was Valid
Luna contends that Hans Roger filed a valid certificate of candidacy and, subsequently, upon Hans
Roger’s withdrawal of his certificate of candidacy, there was a valid substitution by Luna.
On the other hand, the COMELEC ruled that Hans Roger, being under age, could not be considered
to have filed a valid certificate of candidacy and, therefore, is not a valid candidate who could be
substituted by Luna.
When a candidate files his certificate of candidacy, the COMELEC has a ministerial duty to receive
and acknowledge its receipt. Section 76 of the Omnibus Election Code (Election Code) provides:
Sec. 76. Ministerial duty of receiving and acknowledging receipt.- The Commission, provincial
election supervisor, election registrar or officer designated by the Commission or the board of
election inspectors under the succeeding section shall have the ministerial duty to receive and
acknowledge receipt of the certificate of candidacy.
In this case, when Hans Roger filed his certificate of candidacy on 5 January 2004,6 the COMELEC
had the ministerial duty to receive and acknowledge receipt of Hans Roger’s certificate of candidacy.
Thus, the COMELEC had the ministerial duty to give due course to Hans Roger’s certificate of
candidacy.7
On 15 January 2004, Hans Roger withdrew his certificate of candidacy. The Election Code allows a
person who has filed a certificate of candidacy to withdraw the same prior to the election by
submitting a written declaration under oath.8 There is no provision of law which prevents a candidate
from withdrawing his certificate of candidacy before the election.9
On the same date, Luna filed her certificate of candidacy as substitute for Hans Roger. Section 77 of
the Election Code prescribes the rules on substitution of an official candidate of a registered political
party who dies, withdraws, or is disqualified for any cause after the last day for the filing of certificate
of candidacy. Section 77 of the Election Code provides:
Sec. 77. Candidates in case of death, disqualification or withdrawal of another. - If after the last
day for the filing of certificates of candidacy, an official candidate of a registered or accredited
political party dies, withdraws or is disqualified for any cause, only a person belonging to, and
certified by, the same political party may file a certificate of candidacy to replace the candidate who
died, withdrew or was disqualified. The substitute candidate nominated by the political party
concerned may file his certificate of candidacy for the office affected in accordance with the
preceding sections not later than mid-day of election day of the election. If the death, withdrawal or
disqualification should occur between the day before the election and mid-day of election day, said
certificate may be filed with any board of election inspectors in the political subdivision where he is a
candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with
the Commission.
Since Hans Roger withdrew his certificate of candidacy and the COMELEC found that Luna
complied with all the procedural requirements for a valid substitution,10 Luna can validly substitute for
Hans Roger.
The COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in
declaring that Hans Roger, being under age, could not be considered to have filed a valid certificate
of candidacy and, thus, could not be validly substituted by Luna. The COMELEC may not, by itself,
without the proper proceedings, deny due course to or cancel a certificate of candidacy filed in due
form.11 In Sanchez v. Del Rosario,12 the Court ruled that the question of eligibility or ineligibility of a
candidate for non-age is beyond the usual and proper cognizance of the COMELEC.
Section 7413 of the Election Code provides that the certificate of candidacy shall state, among others,
the date of birth of the person filing the certificate. Section 7814 of the Election Code provides that in
case a person filing a certificate of candidacy has committed false material representation, a verified
petition to deny due course to or cancel the certificate of candidacy of said person may be filed at
any time not later than 25 days from the time of filing of the certificate of candidacy.
If Hans Roger made a material misrepresentation as to his date of birth or age in his certificate of
candidacy, his eligibility may only be impugned through a verified petition to deny due course to or
cancel such certificate of candidacy under Section 78 of the Election Code.
In this case, there was no petition to deny due course to or cancel the certificate of candidacy of
Hans Roger. The COMELEC only declared that Hans Roger did not file a valid certificate of
candidacy and, thus, was not a valid candidate in the petition to deny due course to or cancel Luna’s
certificate of candidacy. In effect, the COMELEC, without the proper proceedings, cancelled Hans
Roger’s certificate of candidacy and declared the substitution by Luna invalid.
It would have been different if there was a petition to deny due course to or cancel Hans Roger’s
certificate of candidacy. For if the COMELEC cancelled Hans Roger’s certificate of candidacy after
the proper proceedings, then he is no candidate at all and there can be no substitution of a person
whose certificate of candidacy has been cancelled and denied due course.15 However, Hans Roger’s
certificate of candidacy was never cancelled or denied due course by the COMELEC.
Moreover, Hans Roger already withdrew his certificate of candidacy before the COMELEC declared
that he was not a valid candidate. Therefore, unless Hans Roger’s certificate of candidacy was
denied due course or cancelled in accordance with Section 78 of the Election Code, Hans Roger’s
certificate of candidacy was valid and he may be validly substituted by Luna.
WHEREFORE, we PARTLY GRANT the petition. We AFFIRM the ruling of the COMELEC En
Banc that there was no violation of petitioner Joy Chrisma B. Luna’s right to due process. We SET
ASIDE the ruling of the COMELEC En Banc that the substitution by petitioner Joy Chrisma B. Luna
for Hans Roger Luna was invalid. Petitioner Joy Chrisma B. Luna validly substituted for Hans Roger
Luna.
SO ORDERED.
83

SUPREME COURT
Manila
EN BANC
G.R. No. 181613 November 25, 2009
ROSALINDA A. PENERA, Petitioner,

vs.
COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, Respondents.
RESOLUTION
CARPIO, J.:
We grant Rosalinda A. Penera’s (Penera) motion for reconsideration of this Court’s Decision of 11
September 2009 (Decision).
The assailed Decision dismissed Penera’s petition and affirmed the Resolution dated 30 July 2008
of the COMELEC En Banc as well as the Resolution dated 24 July 2007 of the COMELEC Second
Division. The Decision disqualified Penera from running for the office of Mayor in Sta. Monica,
Surigao del Norte and declared that the Vice-Mayor should succeed Penera.
In support of her motion for reconsideration, Penera submits the following arguments:
1. Penera was not yet a candidate at the time of the incident under Section 11 of RA 8436 as
amended by Section 13 of RA 9369.
2. The petition for disqualification failed to submit convincing and substantial evidence
against Penera for violation of Section 80 of the Omnibus Election Code.
3. Penera never admitted the allegations of the petition for disqualification and has
consistently disputed the charge of premature campaigning.
4. The admission that Penera participated in a motorcade is not the same as admitting she
engaged in premature election campaigning.
Section 79(a) of the Omnibus Election Code defines a "candidate" as "any person aspiring for or
seeking an elective public office, who has filed a certificate of candidacy x x x." The second
sentence, third paragraph, Section 15 of RA 8436, as amended by Section 13 of RA 9369, provides
that "[a]ny person who files his certificate of candidacy within [the period for filing] shall only be
considered as a candidate at the start of the campaign period for which he filed his certificate of
candidacy." The immediately succeeding proviso in the same third paragraph states that "unlawful
acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid
campaign period." These two provisions determine the resolution of this case.
The Decision states that "[w]hen the campaign period starts and [the person who filed his certificate
of candidacy] proceeds with his/her candidacy, his/her intent turning into actuality, we can already
consider his/her acts, after the filing of his/her COC and prior to the campaign period, as the
promotion of his/her election as a candidate, hence, constituting premature campaigning, for which
he/she may be disqualified."1
Under the Decision, a candidate may already be liable for premature campaigning after the filing of
the certificate of candidacy but even before the start of the campaign period. From the filing of the
certificate of candidacy, even long before the start of the campaign period, the Decision considers
the partisan political acts of a person so filing a certificate of candidacy "as the promotion of his/her
election as a candidate." Thus, such person can be disqualified for premature campaigning for acts
done before the start of the campaign period. In short, the Decision considers a person who files a
certificate of candidacy already a "candidate" even before the start of the campaign period. lawphil
The assailed Decision is contrary to the clear intent and letter of the law.
The Decision reverses Lanot v. COMELEC,2 which held that a person who files a certificate of
candidacy is not a candidate until the start of the campaign period. In Lanot, this
Court explained:
Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a
person engages in an election campaign or partisan political activity; (2) the act is designed to
promote the election or defeat of a particular candidate or candidates; (3) the act is done outside the
campaign period.
The second element requires the existence of a "candidate." Under Section 79(a), a candidate is one
who "has filed a certificate of candidacy" to an elective public office. Unless one has filed his
certificate of candidacy, he is not a "candidate." The third element requires that the campaign period
has not started when the election campaign or partisan political activity is committed.
Assuming that all candidates to a public office file their certificates of candidacy on the last day,
which under Section 75 of the Omnibus Election Code is the day before the start of the campaign
period, then no one can be prosecuted for violation of Section 80 for acts done prior to such last day.
Before such last day, there is no "particular candidate or candidates" to campaign for or against. On
the day immediately after the last day of filing, the campaign period starts and Section 80 ceases to
apply since Section 80 covers only acts done "outside" the campaign period.
Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only apply to
acts done on such last day, which is before the start of the campaign period and after at least one
candidate has filed his certificate of candidacy. This is perhaps the reason why those running for
elective public office usually file their certificates of candidacy on the last day or close to the last day.
There is no dispute that Eusebio’s acts of election campaigning or partisan political activities were
committed outside of the campaign period. The only question is whether Eusebio, who filed his
certificate of candidacy on 29 December 2003, was a "candidate" when he committed those acts
before the start of the campaign period on 24 March 2004.
Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of certificates of
candidacy to 120 days before election day. Thus, the original deadline was moved from 23 March
2004 to 2 January 2004, or 81 days earlier. The crucial question is: did this change in the deadline
for filing the certificate of candidacy make one who filed his certificate of candidacy before 2 January
2004 immediately liable for violation of Section 80 if he engaged in election campaign or partisan
political activities prior to the start of the campaign period on 24 March 2004?
Section 11 of RA 8436 provides:
SECTION 11. Official Ballot. – The Commission shall prescribe the size and form of the official ballot
which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in
an initiative, referendum or plebiscite. Under each position, the names of candidates shall be
arranged alphabetically by surname and uniformly printed using the same type size. A fixed space
where the chairman of the Board of Election Inspectors shall affix his/her signature to authenticate
the official ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/
manifestation to participate in the election shall not be later than one hundred twenty (120) days
before the elections: Provided, That, any elective official, whether national or local, running for any
office other than the one which he/she is holding in a permanent capacity, except for president and
vice-president, shall be deemed resigned only upon the start of the campaign period corresponding
to the position for which he/she is running: Provided, further, That, unlawful acts or omissions
applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided,
finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of
candidacy for the positions of President, Vice-President, Senators and candidates under the party-
list system as well as petitions for registration and/or manifestation to participate in the party-list
system shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for
other positions shall be on March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng
Pilipinas at the price comparable with that of private printers under proper security measures which
the Commission shall adopt. The Commission may contract the services of private printers upon
certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the
printing requirements. Accredited political parties and deputized citizens’ arms of the Commission
may assign watchers in the printing, storage and distribution of official ballots.
serial number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by
inexpensive hardware and shall be impossible to reproduce on a photocopying machine, and that
identification marks, magnetic strips, bar codes and other technical and security markings, are
provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at the rate of one (1)
ballot for every registered voter with a provision of additional four (4) ballots per precinct.
Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy is to
give ample time for the printing of official ballots. This is clear from the following deliberations of the
Bicameral Conference Committee:
SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,]
uniform for local and national officials?
THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present
periods.
SENATOR GONZALES. But the moment one files a certificate of candidacy, he’s already a
candidate, and there are many prohibited acts on the part of candidate.
THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .
SENATOR GONZALES. And you cannot say that the campaign period has not yet began (sic).
THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that the filing of the certificate will not
bring about one’s being a candidate.
SENATOR GONZALES. If that’s a fact, the law cannot change a fact.
THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the certificate of
candidacy will not result in that official vacating his position, we can also provide that insofar he is
concerned, election period or his being a candidate will not yet commence. Because here, the
reason why we are doing an early filing is to afford enough time to prepare this machine readable
ballots.
So, with the manifestations from the Commission on Elections, Mr. Chairman, the House Panel will
withdraw its proposal and will agree to the 120-day period provided in the Senate version.
THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.
xxxx
SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts which
apply immediately upon being a candidate?
THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to afford the
Comelec enough time to print the ballots, this provision does not intend to change the campaign
periods as presently, or rather election periods as presently fixed by existing law.
THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition.
THE CHAIRMAN (REP. TANJUATCO). That’s right.
THE ACTING CHAIRMAN (SEN. FERNAN). Okay.
THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict anymore
because we are talking about the 120-day period before election as the last day of filing a certificate
of candidacy, election period starts 120 days also. So that is election period already. But he will still
not be considered as a candidate.
Thus, because of the early deadline of 2 January 2004 for purposes of printing of official ballots,
Eusebio filed his certificate of candidacy on 29 December 2003. Congress, however, never intended
the filing of a certificate of candidacy before 2 January 2004 to make the person filing to become
immediately a "candidate" for purposes other than the printing of ballots. This legislative intent
prevents the immediate application of Section 80 of the Omnibus Election Code to those filing to
meet the early deadline. The clear intention of Congress was to preserve the "election periods as x x
x fixed by existing law" prior to RA 8436 and that one who files to meet the early deadline "will still
not be considered as a candidate."3 (Emphasis in the original)
Lanot was decided on the ground that one who files a certificate of candidacy is not a candidate until
the start of the campaign period. This ground was based on the deliberations of the legislators who
explained the intent of the provisions of RA 8436, which laid the legal framework for an automated
election system. There was no express provision in the original RA 8436 stating that one who files a
certificate of candidacy is not a candidate until the start of the campaign period.
When Congress amended RA 8436, Congress decided to expressly incorporate the Lanot doctrine
into law, realizing that Lanot merely relied on the deliberations of Congress in holding that —
The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law"
prior to RA 8436 and that one who files to meet the early deadline "will still not be considered as a
candidate."4 (Emphasis supplied)
Congress wanted to insure that no person filing a certificate of candidacy under the early deadline
required by the automated election system would be disqualified or penalized for any partisan
political act done before the start of the campaign period. Thus, in enacting RA 9369, Congress
expressly wrote the Lanot doctrine into the second sentence, third paragraph of the amended
Section 15 of RA 8436, thus:
xxx
candidacy/petition for registration/manifestation to participate in the election. Any person who files
his certificate of candidacy within this period shall only be considered as a candidate at the start of
the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or
the same at the start of the day of the filing of his/her certificate of candidacy. (Boldfacing and
underlining supplied)
Congress elevated the Lanot doctrine into a statute by specifically inserting it as the second
sentence of the third paragraph of the amended Section 15 of RA 8436, which cannot be annulled
by this Court except on the sole ground of its unconstitutionality. The Decision cannot reverse Lanot
without repealing this second sentence, because to reverse Lanot would mean repealing this second
sentence.
The assailed Decision, however, in reversing Lanot does not claim that this second sentence or any
portion of Section 15 of RA 8436, as amended by RA 9369, is unconstitutional. In fact, the Decision
considers the entire Section 15 good law. Thus, the Decision is self-contradictory — reversing Lanot
but maintaining the constitutionality of the second sentence, which embodies the Lanot doctrine. In
so doing, the Decision is irreconcilably in conflict with the clear intent and letter of the second
sentence, third paragraph, Section 15 of RA 8436, as amended by RA 9369.
In enacting RA 9369, Congress even further clarified the first proviso in the third paragraph of
Section 15 of RA 8436. The original provision in RA 8436 states —
x x x Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect
upon the start of the aforesaid campaign period, x x x.
In RA 9369, Congress inserted the word "only" so that the first proviso now reads —
x x x Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon
the start of the aforesaid campaign period x x x. (Emphasis supplied)
Thus, Congress not only reiterated but also strengthened its mandatory directive that election
offenses can be committed by a candidate "only" upon the start of the campaign period. This clearly
means that before the start of the campaign period, such election offenses cannot be so committed.
When the applicable provisions of RA 8436, as amended by RA 9369, are read together, these
provisions of law do not consider Penera a candidate for purposes other than the printing of ballots,
until the start of the campaign period. There is absolutely no room for any other interpretation.
We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio:
x x x The definition of a "candidate" in Section 79(a) of the Omnibus Election Code should be read
together with the amended Section 15 of RA 8436. A "‘candidate’ refers to any person aspiring for or
seeking an elective public office, who has filed a certificate of candidacy by himself or through an
accredited political party, aggroupment or coalition of parties." However, it is no longer enough to
merely file a certificate of candidacy for a person to be considered a candidate because "any person
who files his certificate of candidacy within [the filing] period shall only be considered a candidate at
the start of the campaign period for which he filed his certificate of candidacy." Any person may thus
file a certificate of candidacy on any day within the prescribed period for filing a certificate of
candidacy yet that person shall be considered a candidate, for purposes of determining one’s
possible violations of election laws, only during the campaign period. Indeed, there is no "election
campaign" or "partisan political activity" designed to promote the election or defeat of a particular
candidate or candidates to public office simply because there is no "candidate" to speak of prior to
the start of the campaign period. Therefore, despite the filing of her certificate of candidacy, the law
does not consider Penera a candidate at the time of the questioned motorcade which was conducted
a day before the start of the campaign period. x x x
The campaign period for local officials began on 30 March 2007 and ended on 12 May 2007. Penera
filed her certificate of candidacy on 29 March 2007. Penera was thus a candidate on 29 March 2009
only for purposes of printing the ballots. On 29 March 2007, the law still did not consider Penera a
candidate for purposes other than the printing of ballots. Acts committed by Penera prior to 30 March
2007, the date when she became a "candidate," even if constituting election campaigning or partisan
political activities, are not punishable under Section 80 of the Omnibus Election Code. Such acts are
within the realm of a citizen’s protected freedom of expression. Acts committed by Penera within the
campaign period are not covered by Section 80 as Section 80 punishes only acts outside the
campaign period.5
The assailed Decision gives a specious reason in explaining away the first proviso in the third
paragraph, the amended Section 15 of RA 8436 that election offenses applicable to candidates take
effect only upon the start of the campaign period. The Decision states that:
x x x [T]he line in Section 15 of Republic Act No. 8436, as amended, which provides that "any
unlawful act or omission applicable to a candidate shall take effect only upon the start of the
campaign period," does not mean that the acts constituting premature campaigning can only be
committed, for which the offender may be disqualified, during the campaign period. Contrary to the
pronouncement in the dissent, nowhere in said proviso was it stated that campaigning before the
start of the campaign period is lawful, such that the offender may freely carry out the same with
impunity.
As previously established, a person, after filing his/her COC but prior to his/her becoming a
candidate (thus, prior to the start of the campaign period), can already commit the acts described
under Section 79(b) of the Omnibus Election Code as election campaign or partisan political activity,
However, only after said person officially becomes a candidate, at the beginning of the campaign
period, can said acts be given effect as premature campaigning under Section 80 of the Omnibus
Election Code. Only after said person officially becomes a candidate, at the start of the campaign
period, can his/her disqualification be sought for acts constituting premature campaigning.
Obviously, it is only at the start of the campaign period, when the person officially becomes a
candidate, that the undue and iniquitous advantages of his/her prior acts, constituting premature
campaigning, shall accrue to his/her benefit. Compared to the other candidates who are only about
to begin their election campaign, a candidate who had previously engaged in premature
campaigning already enjoys an unfair headstart in promoting his/her candidacy.6(Emphasis supplied)
It is a basic principle of law that any act is lawful unless expressly declared unlawful by law. This is
specially true to expression or speech, which Congress cannot outlaw except on very narrow
grounds involving clear, present and imminent danger to the State. The mere fact that the law does
not declare an act unlawful ipso facto means that the act is lawful. Thus, there is no need for
Congress to declare in Section 15 of RA 8436, as amended by RA 9369, that political partisan
activities before the start of the campaign period are lawful. It is sufficient for Congress to state that
"any unlawful act or omission applicable to a candidate shall take effect only upon the start of the
campaign period." The only inescapable and logical result is that the same acts, if done before the
start of the campaign period, are lawful.
In layman’s language, this means that a candidate is liable for an election offense only for acts done
during the campaign period, not before. The law is clear as daylight — any election offense that may
be committed by a candidate under any election law cannot be committed before the start of the
campaign period. In ruling that Penera is liable for premature campaigning for partisan political acts
before the start of the campaigning, the assailed Decision ignores the clear and express provision of
the law.
The Decision rationalizes that a candidate who commits premature campaigning can be disqualified
or prosecuted only after the start of the campaign period. This is not what the law says. What the law
says is "any unlawful act or omission applicable to a candidate shall take effect only upon the start of
the campaign period." The plain meaning of this provision is that the effective date when partisan
political acts become unlawful as to a candidate is when the campaign period starts. Before the start
of the campaign period, the same partisan political acts are lawful.
The law does not state, as the assailed Decision asserts, that partisan political acts done by a
candidate before the campaign period are unlawful, but may be prosecuted only upon the start of the
campaign period. Neither does the law state that partisan political acts done by a candidate before
the campaign period are temporarily lawful, but becomes unlawful upon the start of the campaign
period. This is clearly not the language of the law. Besides, such a law as envisioned in the
Decision, which defines a criminal act and curtails freedom of expression and speech, would be void
for vagueness.
Congress has laid down the law — a candidate is liable for election offenses only upon the start of
the campaign period. This Court has no power to ignore the clear and express mandate of the law
that "any person who files his certificate of candidacy within [the filing] period shall only be
considered a candidate at the start of the campaign period for which he filed his certificate of
candidacy." Neither can this Court turn a blind eye to the express and clear language of the law that
"any unlawful act or omission applicable to a candidate shall take effect only upon the start of the
campaign period."
The forum for examining the wisdom of the law, and enacting remedial measures, is not this Court
but the Legislature. This Court has no recourse but to apply a law that is as clear, concise and
express as the second sentence, and its immediately succeeding proviso, as written in the third
paragraph of Section 15 of RA 8436, as amended by RA 9369.
WHEREFORE, we GRANT petitioner Rosalinda A. Penera’s Motion for Reconsideration. We SET

ASIDE the Decision of this Court in G.R. No. 181613 promulgated on 11 September 2009, as well as
the Resolutions dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division and the
COMELEC En Banc, respectively, in SPA No. 07-224. Rosalinda A. Penera shall continue as Mayor
of Sta. Monica, Surigao del Norte.
SO ORDERED.
84
P.E.T. CASE No. 002 March 29, 2005
RONALD ALLAN POE a.k.a. FERNANDO POE, JR., Protestant,

vs.
GLORIA MACAPAGAL-ARROYO, Protestee.
RESOLUTION
QUISUMBING, J.:
The moving finger writes, says Omar Khayyam in the Rubayyat, and having writ, moves on. Nor all
your piety nor wit, adds the poet, could lure it back to cancel half a line; nor all your tears wash out a
word of it.
Such is my view on the providential case for our consideration.
Before this Electoral Tribunal, composed pursuant to the Constitution, by all the fifteen members of
the Supreme Court, is a matter of first impression. We are tasked not only to determine, as originally
prayed for, who between the Protestant and the Protestee was the true winner in the May 10, 2004
Presidential Elections, but also to decide now whether the Protestant’s widow (Mrs. Jesusa Sonora
Poe, popularly known as the cinema star Susan Roces) could intervene and/or substitute for the
deceased party, assuming arguendo that the protest could survive his death.
If one were guided by folk wisdom expressed in the adage that in a democracy, the voice of the
people is the voice of God, then it would appear our task had been made easy by fateful events.
Past midnight, in the early hours of June 24, 2004, the Congress as the representatives of the
sovereign people and acting as the National Board of Canvassers, in a near-unanimous roll-call
vote, proclaimed Mrs. Gloria Macapagal Arroyo (GMA) the duly elected President of the Philippines.
She obtained 12,905,808 votes, as against 11,782,232 votes for the second-placer, the movie actor
Fernando Poe, Jr. (FPJ).1 She took her Oath of Office before the Chief Justice of the Supreme Court
on June 30, 2004.
Refusing to concede defeat, the second-placer in the elections, Mr. FPJ, filed seasonably an election
protest before this Electoral Tribunal on July 23, 2004. Mrs. GMA, through counsel, filed her Answer
with Counter Protest on August 5, 2004. As counsels for the parties exchanged lively motions to
rush the presentation of their respective positions on the controversy, an act of God intervened. On
December 14, 2004, the Protestant died in the course of his medical treatment at St. Luke’s
Hospital. The medical certificate, filed by counsel as part of the Notice of Death of the Protestant,
showed that he died of cardio-pulmonary arrest, secondary to cerebral infarction.
However, neither the Protestee’s proclamation by Congress nor the death of her main rival as a
fortuitous intervening event, appears to abate the present controversy in the public arena. Instead,
notice may be taken of periodic mass actions, demonstrations, and rallies raising an outcry for this
Tribunal to decide the electoral protest of Mr. FPJ against Mrs. GMA once and for all. The oracular
function of this Tribunal, it would appear, needs to be fully exercised to make manifest here and
abroad who is the duly elected leader of the Filipino nation. All these, despite the fact that the
submissions by the parties on their respective sides in the protest and the counter-protest are thus
far, far from completed.
Needless to stress, this Tribunal cannot shirk its constitutional duty. Yet, neither could it go beyond
its mandate under the Constitution and the law. Further, this Tribunal is guided by its Rules, as well
as the Rules of Court in a suppletory manner. Considering the transcendental importance of the
electoral contest involving the Presidency, a rush to judgment is simply out of the question. Yet
decide the matter we must, without further delay, to prevent popular unrest and avoid further
destabilization of government at the highest level.
Together with the formal Notice of the Death of Protestant, his counsel has submitted to the
Tribunal, dated January 10, 2005, a "MANIFESTATION with URGENT PETITION/MOTION to
INTERVENE AS A SUBSTITUTE FOR DECEASED PROTESTANT FPJ," by the widow, Mrs.
Jesusa Sonora Poe, who signed the verification and certification therein.
As movant/intervenor, Mrs. FPJ claims that because of the untimely demise of her husband and in
representation not only of her deceased husband but more so because of the paramount interest of
the Filipino people, there is an urgent need for her to continue and substitute for her late husband in
the election protest initiated by him to ascertain the true and genuine will of the electorate in the
2004 elections. In support of her assertion, she cites De Castro v. Commission on
Elections,2 and Lomugdang v. Javier,3 to the effect that the death of the protestant does not
constitute a ground for the dismissal of the contest nor oust the trial court of the jurisdiction to decide
the election contest. She stresses nevertheless that even if the instant protest case succeeds, she is
cognizant that as a mere substitute she cannot succeed, assume or be entitled to said elective
office, and her utmost concern is not personal but one that involves the public’s interest. She prays,
however, that if subsequently determined that the protestee Gloria Macapagal-Arroyo did not get the
highest number of votes for president, for protestee to be disallowed from remaining in office, and
thus prevented from exercising the powers, duties, responsibilities and prerogatives reserved only to
the duly-elected president or her legitimate successor.
In her Comment, the Protestee, Mrs. GMA, relying on Vda. de De Mesa v. Mencias4 and subsequent
cases including analogous cases decided by the House of Representatives Electoral Tribunal
(HRET), asserts that the widow of a deceased candidate is not the proper party to replace the
deceased protestant since a public office is personal and not a property that passes on to the heirs.
She points out that the widow has no legal right to substitute for her husband in an election protest,
since no such right survives the husband, considering that the right to file an election protest is
personal and non-transmissible.
Protestee also contends Mrs. FPJ cannot substitute for her deceased husband because under the
Rules of the Presidential Electoral Tribunal, only the registered candidates who obtained the 2nd and
3rd highest votes for the presidency may contest the election of the president and patently, Mrs. FPJ
did not receive the 2nd and 3rd highest votes for she was not even a candidate for the presidency in
the election that is being contested.
Citing pertinent PET Rules, protestee also stresses that this Tribunal has no jurisdiction over actions
of surviving spouses to ascertain the vote of the electorate as the Tribunal has jurisdiction only over
election protests and quo warranto cases.
According to protestee, movant/intervenor Mrs. FPJ cannot use "the public interest" to justify her
request to be substituted for her husband. "Public interest", i.e. the need to dispel uncertainty over
the real choice of the electorate, is applicable only in election contests, not in an action to merely
"ascertain the true and genuine will of the people." She asserts that the only case herein cognizable
by this Tribunal is an election protest involving a protestant and a protestee, not between the
electorate and the protestee. Citing analogous HRET cases, protestee avers that in a case where
the protestant, the primary adversary in an election protest case dies, the public interest in said
protest dies with him.
Protestee also contends that in the adversarial nature of a protest case where one of the parties
dies, a correct ruling cannot be had because the dead protestant could no longer refute his
adversary’s allegations because death has rendered him hors de combat.
Further citing Defensor-Santiago v. Ramos,5 protestee points out that this Tribunal, nonetheless,
confirmed its power to dismiss an electoral case on technical grounds. She adds that if the Tribunal
can do so on a technicality, all the more it could for a stronger reason, that of protestant’s death.
In her Reply, movant/intervenor argues that reference of protestee to the HRET case of Abadilla v.
Ablan,6 was erroneous inasmuch as said case was a congressional protest and the controlling case
is De Castro. She likewise contends that protestant failed to distinguish between a right to an office
which protestant concedes is personal and non-transmissible vis-à-vis the right to pursue the
process which is not personal but imbued with public interest. She likewise stresses that the death of
the protestant abolished the personal/private character of the protest, as protestant’s right to assume
if he prevails, necessarily disappears, and the same cannot be transferred to anyone else,
protestant’s widow included. She insists, however, that the public interest remains. Further,
movant/intervenor posits that the protest having been commenced cannot be abated by the death of
the protestant and the only real issue is the determination of the proper substitute. She avers that
the Tribunal’s rule is clear on who can commence and initiate a protest compared to the persons
who can initiate a quo warranto. She admits that in the former, only the second and third placers in
the presidential election are authorized to commence the contest, while in the latter, any voter may
initiate the petition. She contends that with no personal interest involved, any registered voter can
continue the duly-commenced protest as the real-party-in-interest which is analogous to a quo
warranto. She contradicts protestee and insists that allowing "any voter" to substitute just like in
a quo warranto will not open the floodgate to whimsical protests, and the imagined political instability
feared by protestee will even more be pronounced if the protest is dismissed. Movant/intervenor
reiterates that the issue at hand involves just the continuation of proceedings by allowing substitution
and the taking over by the substitute of the prosecution of the protest already "duly commenced."
Plainly, the issue here is: May the widow substitute/intervene for the protestant who died during the
pendency of the latter’s protest case?
The fundamental rule applicable in a presidential election protest is Rule 14 of the PET Rules. It
provides,
Rule 14. Election Protest.–Only the registered candidate for President or for Vice-President
of the Philippines who received the second or third highest number of votes may contest the
election of the President or the Vice-President, as the case may be, by filing a verified
petition with the Clerk of the Presidential Electoral Tribunal within thirty (30) days after the
proclamation of the winner.
Pursuant to this rule, only two persons, the 2nd and 3rd placers, may contest the election. By this
express enumeration, the rule makers have in effect determined the real parties in interest
concerning an on-going election contest. It envisioned a scenario where, if the declared winner had
not been truly voted upon by the electorate, the candidate who received that 2nd or the 3rd highest
number of votes would be the legitimate beneficiary in a successful election contest.
This Tribunal, however, does not have any rule on substitution nor intervention but it does allow for
the analogous and suppletory application of the Rules of Court, decisions of the Supreme Court, and
the decisions of the electoral tribunals.7
Rule 3, Section 16 is the rule on substitution in the Rules of Court.8 This rule allows substitution by a
legal representative. It can be gleaned from the citation of this rule that movant/intervenor seeks to
appear before this Tribunal as the legal representative/substitute of the late protestant prescribed by
said Section 16. However, in our application of this rule to an election contest, we have every time
ruled that a public office is personal to the public officer and not a property transmissible to the heirs
upon death.9 Thus, we consistently rejected substitution by the widow or the heirs in election
contests where the protestant dies during the pendency of the protest. In Vda. de De Mesa v.
Mencias,10 we recognized substitution upon the death of the protestee but denied substitution by the
widow or heirs since they are not the real parties in interest. Similarly, in the later case of De la
Victoria v. Commission on Elections,11 we struck down the claim of the surviving spouse and children
of the protestee to the contested office for the same reason. Even in analogous cases before other
electoral tribunals,12 involving substitution by the widow of a deceased protestant, in cases where the
widow is not a real party in interest, we denied substitution by the wife or heirs.
This is not to say that death of the protestant necessarily abates the pending action. We have held
as early as Vda. de De Mesa (1966) that while the right to a public office is personal and exclusive to
the public officer, an election protest is not purely personal and exclusive to the protestant or to the
protestee such that the death of either would oust the court of all authority to continue the protest
proceedings.13 Hence, we have allowed substitution and intervention but only by a real party in
interest. A real party in interest is the party who would be benefited or injured by the judgment, and
the party who is entitled to the avails of the suit.14 In Vda. de De Mesa v. Mencias15 and Lomugdang
v. Javier,16 we permitted substitution by the vice-mayor since the vice-mayor is a real party in interest
considering that if the protest succeeds and the protestee is unseated, the vice-mayor succeeds to
the office of the mayor that becomes vacant if the one duly elected cannot assume office. In
contrast, herein movant/intervenor, Mrs. FPJ, herself denies any claim to the august office of
President. Thus, given the circumstances of this case, we can conclude that protestant’s widow is
not a real party in interest to this election protest.
We are not unaware that a contest before election tribunals has two aspects. First, it is in pursuit of
one’s right to a public office, and second, it is imbued with public interest.
Indeed the personal aspect of the case is inextricably linked with the public interest. For an election
protest involves not merely conflicting private aspirations but is imbued with public interest which
raises it into a plane over and above ordinary civil actions.17 But herein movant/intervenor, Mrs. FPJ,
has overly stressed that it is with the "paramount public interest" in mind that she desires "to pursue
the process" commenced by her late husband. She avers that she is "pursuing the process" to
determine who truly won the election, as a service to the Filipino people. We laud her noble intention
and her interest to find out the true will of the electorate. However, nobility of intention is not the point
of reference in determining whether a person may intervene in an election protest. Rule 19, Section
1 of the Rules of Court18 is the applicable rule on intervention in the absence of such a rule in the
PET Rules. In such intervention, the interest which allows a person to intervene in a suit must be in
the matter of litigation and of such direct and immediate character that the intervenor will either gain
or lose by the effect of the judgment. In this protest, Mrs. FPJ will not immediately and directly
benefit from the outcome should it be determined that the declared president did not truly get the
highest number of votes. We fully appreciate counsel’s manifestation that movant/intervenor herself
claims she has no interest in assuming the position as she is aware that she cannot succeed to the
presidency, having no legal right to it. Yet thus far, in this case, no real parties such as the vice-
presidential aspirants in the 2004 elections, have come forward to intervene, or to be substituted for
the deceased protestant. In our view, if persons not real parties in the action could be allowed to
intervene, proceedings will be unnecessarily complicated, expensive and interminable – and this is
not the policy of the law.19 It is far more prudent to abide by the existing strict limitations on
intervention and substitution under the law and the rules.
Conformably then with the law, the rules and prevailing jurisprudence, this Tribunal finds no
justifiable reason to grant the petition/motion for intervention and substitution.
WHEREFORE, the motion of movant/intervenor JESUSA SONORA POE a.k.a. SUSAN ROCES to
intervene and substitute for the deceased protestant is DENIED for lack of merit.
Acting on the protest and considering the Notice of the Death, submitted by counsel of protestant
RONALD ALLAN POE, a.k.a. FERNANDO POE, JR., we also resolve that Presidential Electoral
Tribunal Case No. 002, entitled Ronald Allan Poe a.k.a. Fernando Poe, Jr. v. Gloria Macapagal-
Arroyo, should be as it is hereby DISMISSED on the ground that no real party in interest has come
forward within the period allowed by law, to intervene in this case or be substituted for the deceased
protestant.
SO ORDERED.
85

PRESIDENTIAL ELECTORAL TRIBUNAL
Manila
EN BANC
P.E.T. Case No. 001 February 13, 1996
MIRIAM DEFENSOR-SANTIAGO, protestant,

vs.
FIDEL VALDEZ RAMOS, protestee.
RESOLUTION
In her motion of 16 August 1995, reiterated in her Comment of 29 August 1995, Protestant Miriam
Defensor-Santiago prayed that the revision of ballots in the remaining precincts of the pilot areas be
dispensed with and the revision process in the pilot areas be deemed completed.
We deferred action on that motion and required the Protestant and the Protestee to submit their
respective memoranda on the issue of whether this case had been rendered moot by the election of
the Protestant as a Senator in the May 1995 election and her assumption of office as such on 30
June 1995.
The Protestant answers this issue in the negative. Relying on Sibulo vda. de De Mesa
vs. Mencias,1 Lomugdang vs. Javier,2 and De Castro vs. Ginete,3 she asserts that an election contest
involves not only an adjudication and settlement of the private interests of the rival candidates, but
more importantly, the paramount need to dispel, once and for all, the uncertainty that beclouds the
true choice of the electorate. Hence, it is imbued with public interest and should be pursued to its
final conclusion to determine the bona fide winner. She further asserts that an election case may be
rendered moot only if the term of the contested office has expired,4 thus her election as Senator and
assumption of office as such cannot, under the rule laid down in Moraleja vs. Relova,5 be construed
as an abandonment of the instant protest. Finally, she alleges that this Court has departed from the
orthodox view that a case should be dismissed if it has been mooted.6
For his part, the Protestee submits that there is strong legal basis for this Tribunal to rule that the
Protestant is deemed to have abandoned the instant protest, in light of the ruling in Dimaporo
vs. Mitra7 which construed Section 67, Article IX of B.P. Blg. 881 (Omnibus Election Code).8 He
submits, however, that public interest requires that this protest be resolved on the merits considering
that: (a) it involves a matter of paramount and grave public interest; and (b) it was filed merely to
keep Protestant Santiago in the limelight in preparation for her Senatorial campaign. He likewise
claims that a resolution on the merits would confirm his victory in the 11 May 1992 presidential
election and prove that the instant protest is unfounded. Further more, it would establish guiding and
controlling principles or doctrines with respect to presidential election protest cases, thereby
educating the bench and the bar and preventing the indiscriminate filing of baseless protest cases.
We cannot subscribe to the view of the Protestee that by filing her certificate of candidacy for
Senator Protestant Santiago ipso facto forfeited her claim to the office of President pursuant to
Section 67 of B.P. Blg. 881. Plainly, the said section applies exclusively to an incumbent elective
official who files a certificate of candidacy for any office "other than the one he is holding in a
permanent capacity." Even more plain is that the Protestant was not the incumbent President at the
time she filed her certificate of candidacy for Senator nor at any time before that. Thus, the holding
in Dimaporo does not apply to the Protestant.
Neither do we find any convincing logic to the Protestee's proposition that this case should
nevertheless be resolved on the merits because its filing was done in bad faith, i.e., merely to keep
the Protestant in the limelight in preparation for her Senatorial campaign. If that were so, then public
interest would be served if this case were put to an abrupt end after the Protestant won a seat in the
Senate. Finally, neither do we find any cogent nor compelling reason to proceed with this case, in
the event that we find it to be moot, simply to establish guiding and controlling principles or doctrines
with respect to election protests involving the office of the President or the Vice-President.
I.
The key then to the resolution of the aforestated issue is the consideration of public interest and
public policy and their encompassing effects on election cases which have been unequivocally
expressed in the cases cited by the Protestant.
In Sibulo vda. de De Mesa vs. Mencias,9 this Court stated:

It is axiomatic that an election contest, involving as it does not only the adjudication and
settlement of the private interests of the rival candidates but also the paramount need of
dispelling once and for all the uncertainty that beclouds the real choice of the electorate with
respect to who shall discharge the prerogatives of the offices within their gift, is a proceeding
imbued with public interest which raises it onto a plane over and above ordinary civil actions.
For this reason, broad perspectives of public policy impose upon courts the imperative duty
to ascertain by all means within their command who is the real candidate elected in as
expeditious a manner as possible, without being fettered by technicalities and procedural
barriers to the end that the will of the people may not be frustrated (Ibasco vs. Ilao, et al.,
G.R. L-17512, December 29, 1960; Reforma vs. De Luna, G.R. L-13242, July 31, 1958). So
inextricably intertwined are the interests of the contestants and those of the public that there
can be no gainsaying the logic of the proposition that even the voluntary cessation in office of
the protestee not only does not ipso facto divest him or the character of an adversary in the
contest inasmuch as he retains a party interest to keep his political opponent out of the office
and maintain therein his successor, but also does not in any manner impair or detract from
the jurisdiction of the court to pursue the proceeding to its final conclusion (De Los Angeles
vs. Rodriguez, 46 Phil. 595, 597; Salcedo vs. Hernandez, 62 Phil. 584, 587; Galves vs.
Maramba, G.R. L-13206).
Upon the same principle, the death of the protestee De Mesa did not abate the proceedings
in the election protest filed against him, and it may be stated as a rule that an election
contest survives and must be prosecuted to final judgment despite the death of the
protestee. (In Silverio vs. Castro, 19 SCRA 520 [1967], where the trial court proceeded with
the trial of an election protest and decided it even if the protestee had already died and his
Vice-Mayor had assumed office by succession, this Court, instead of dismissing the appeal
brought on behalf of the deceased protestee, required the Vice-Mayor to intervene on the
side of the appellant)
In Lomugdang vs. Javier,10 this Court declared:
Determination of what candidate has been in fact elected is a matter clothed with public
interest, wherefore, public policy demands that an election contest, duly commenced, be not
abated by the death of the contestant. We have squarely so ruled in Sibulo vda. de Mesa
vs. Judge Mencias, G.R. No. L-24583, October 26, 1966, in the same spirit that led this
Court to hold that the ineligibility of the protestant is not a defense (Caesar vs. Garrido, 53
Phil. 57), and that the protestee's cessation in office is not a ground for the dismissal of the
contest nor detract the Court's jurisdiction to decide the case (Angeles vs. Rodriguez, 46
Phil. 595; Salcedo vs. Hernandez, 62 Phil. 584).
In the same Sibulo case, already cited, this Court likewise ruled that by virtue of Section 7,
Republic Act 2264, the vice-mayor elect has the status of a real party in interest in the
continuation of the proceedings and is entitled to intervene therein. For if the protest
succeeds and the protestee is unseated, the vice mayor succeeds to the office of mayor that
becomes vacant if the duly elected cannot assume the post.
In Moraleja vs. Relova,11 this Court ruled:
As to the contention that by accepting such appointment as Technical Assistant, protestant

has abandoned his protest, all that need be said is that once the court has acquired
jurisdiction over an election contest, the public interest involved demands that the true winner
be known without regard to the wishes or acts of the parties, so much so that there can be
no default, compromise nor stipulation of facts in this kind of cases. (Francisco, How To Try
Election Cases, p. 163, citing Civilio v. Tomacruz, 62 Phil. 689). In the same manner that the
acceptance by the protestee of an appointment to another position is not a ground for
dismissal of the protest (Philippine Law on Elections by Martin, 1970 ed., pp. 258-
259, citing Calvo v. Maramba, G.R. No. L-13206, January 7, 1918) like the resignation of the
protestee from the contested office (Angeles v. Rodriguez, 46 Phil. 595), simply because it is
of public interest that the real winner be known, neither can the acceptance of a more or less
temporary employment, such as that of a technical assistant of the Vice-Governor, which is a
primarily confidential position, be considered as inconsistent with protestant's determination
to protect and pursue the public interest involved in the matter of who is the real choice of the
electorate. In such instances, the plight of protestant may be viewed in the same light as that
of an employee who has been illegally dismissed and who, to find means to support himself
and family while he prosecutes his case for reinstatement, accepts a temporary employment
elsewhere. Such employee is not deemed to have abandoned the position he seeks to
recover. (Tan v. Gimenez, et al. G.R. No. L-12525, February 19, 1960, 107 Phil. 17; Potot v.
Bagano, G.R. No. L-2456, January 25, 1949, 82 Phil. 679). Of course, the case of protestant
who accepts a permanent appointment to a regular office could be different, but We are not
ruling on it here.
In De Castro vs. Ginete,12 this Court stated:
The purpose of an election protest is to ascertain whether the candidate proclaimed elected
by the board of canvassers is really the lawful choice of the electorate. What is sought in an
election protest is the correction of the canvass of the votes, which is the basis of the
proclamation of the winning candidate. An election contest involves a public office in which
the public has an interest. Certainly, the act of a losing candidate of recognizing the one who
is proclaimed the winner should not bar the losing candidate from questioning the validity of
the election of the winner in the manner provided by law.
The factual milieu in these cases is not on all fours with the instant protest.
In Sibulo vda. de De Mesa, as in the later case of Silverio vs. Castro,13 the protestee had been
proclaimed the winning mayoralty candidate and had assumed office, and then died during the
pendency of the election protest. While in Lomugdang, it was the protestant who died during the
pendency of the protest.
In Moraleja, the election protest survived the protestant's acceptance of temporary employment
during the pendency of his election protest. Likewise, in De los Angeles vs. Rodriguez,14 cited
in Sibulo vda. de De Mesa, an election protest was continued despite the resignation from office of
the protestee.
Finally, in De Castro, the only issue presented was whether the protest should be dismissed on the
ground of estoppel. In this proceeding, the protestant congratulated the protestee after the latter was
proclaimed the winner by the board of canvassers and even exhorted those present during the
inauguration and installation into office of the protestee to support the latter's administration.
May the above dicta apply to the case of Protestant Santiago who assumed the office of Senator
after her election as such in the 8 May 1995 election? This question was impliedly raised but not
resolved in Moraleja. For after holding that the acceptance by the protestant therein of a temporary
appointment during the pendency of his protest did not amount to an abandonment thereof, nor
could it be considered inconsistent with his determination to protect and pursue the public interest
involved in the election protest, this Court noted: "Of course, the case of a protestant who accepts a
permanent appointment to a regular office could be different, but We are not ruling on it here."15
Indeed, it would be entirely different where the protestant pursued the new position through a
popular election, as in the case of Protestant Santiago who filed a certificate of candidacy for
Senator in the 8 May 1995 election, campaigned for such office, and submitted herself to be voted
upon. She knew that the term of office of the Senators who would then be elected would be six
years, to commence at noon on the thirtieth day of June next following their election16 and to end at
noon of 30 June 2001. Knowing her high sense of integrity and candor, it is most unlikely that during
her campaign, she promised to serve the electorate as Senator, subject to the outcome of this
protest. In short, she filed her certificate of candidacy for the Senate without any qualification,
condition, or reservation.
In so doing, she entered into a political contract with the electorate that if elected, she would assume
the office of Senator, discharge its functions and serve her constituency as such for the term for
which she was elected. These are givens which are in full accord with the principle enshrined in the
Constitution that, public office is a public trust, and public officers and employees must at all times
be accountable to the people and serve them with utmost responsibility, integrity, loyalty and
efficiency.17
Indeed, it has been aptly said:
It is impossible that government shall be carried on, and the functions of civil society
exercised, without the aid and intervention of public servants or officers, and every person,
therefore, who enters into civil society and avails himself of the benefits and protection of the
government, must owe to this society, or, in other words, to the public, at least a social duty
to bear his share of the public burdens, by accepting and performing, under reasonable
circumstances, the duties of those public offices to which he may be lawfully chosen.18
In this jurisdiction, an elected public official may even be held criminally liable should he refuse to
discharge an elective office.19
The term of office of the Senators elected in the 8 May 1995 election is six years, the first three of
which coincides with the last three years of the term of the President elected in the 11 May 1992
synchronized elections. The latter would be Protestant Santiago's term if she would succeed in
proving in the instant protest. that she was the true winner in the 1992 elections. In assuming the
office of Senator then, the Protestant has effectively abandoned or withdrawn this protest, or at the
very least, in the language of Moraleja, abandoned her "determination to protect and pursue the
public interest involved in the matter of who is the real choice of the electorate." Such abandonment
or withdrawal operates to render moot the instant protest. Moreover, the dismissal of this protest
would serve public interest as it would dissipate the aura of uncertainty as to the results of the 1992
presidential election, thereby enhancing the all too crucial political stability of the nation during this
period of national recovery.
It must also be stressed that under the Rules of the Presidential Electoral Tribunal, an election
protest may be summarily dismissed, regardless of the public policy and public interest implications
thereof, on the following grounds:
(1) The petition is insufficient in form and substance;
(2) The petition is filed beyond the periods provided in Rules 14 and 15 hereof;
(3) The filing fee is not paid within the periods provided for in these Rules;
(4) The cash deposit, or the first P100,000.00 thereof, is not paid within 10 days after the
filing of the protest; and
(5) The petition or copies thereof and the annexes thereto filed with the Tribunal are not
clearly legible.20
Other grounds for a motion to dismiss, e.g., those provided in the Rules of Court which apply in a
suppletory character, 21 may likewise be pleaded as affirmative defenses in the answer. After which,
the Tribunal may, in its discretion, hold a preliminary hearing on such grounds.22 In sum, if an election
protest may be dismissed on technical grounds, then it must be, for a decidedly stronger reason, if it
has become moot due to its abandonment by the Protestant.
II.
There is yet another reason why this case should now be dismissed.
This Tribunal cannot close its eyes to the fact that the Protestant has decided to waive the revision
of the remaining unrevised ballots from 4,017 precincts out of the 17,527 precincts of the designated
three pilot areas. This is an unabashed reversal from her original stand in her Motion and
Manifestation dated 18 October 1993. Taking this into account, this Tribunal declared in its
resolution of 21 October 1993:
After deliberating on the foregoing pleadings and the arguments of the parties, the Tribunal
rules for the Protestant insofar as the revision of the remaining ballot boxes from her pilot
areas are concerned, and against the immediate application of Rule 61 of the Rules of the
Tribunal to the Protestee in respect of the Counter-Protest.
At this stage of the proceedings in this case it cannot be reasonably determined whether the
revised ballots are "considerable" enough to establish a trend either in favor of or against the
Protestant as would justify an appropriate action contemplated in Rule 61 of the Rules of the
Tribunal, or whether the unrevised ballots from said areas would not, in the language of the
Protestant, "materially affect the result of the representative sample of the ballot boxes so far
revised." As to the 1,300 ballot boxes from Makati, the proper time to raise the objections to
the ballot boxes and its contents would be during the revision stage.
Consequently, we resolved therein to:
A. ORDER the revision of the remaining unrevised ballot boxes enumerated in the
aforequoted paragraph A of the 5 October 1993 Resolution and for that purpose to DIRECT
the Acting Clerk of Court of the Tribunal to collect said ballot boxes and other election
documents and paraphernalia from their respective custodians in the event that their
revisions in connection with other election protests in which they are involved have been
terminated, and if such revisions are not yet completed, to coordinate with the appropriate
tribunal or court in which such other election protests are pending and which have already
obtained custody of the ballot boxes and started revision with the end in view of either
seeking expeditious revisions in such other election protests or obtaining the custody of the
ballot boxes and related election documents and paraphernalia for their immediate delivery
to the Tribunal; and
B. REQUIRE the Protestant to inform the Tribunal, within ten (10) days from receipt hereof, if
after the completion of the revision of the ballots from her pilot areas she would present
evidence in connection therewith.
Until the present, however, the Protestant has not informed the Tribunal whether after the
completion of the revision of the ballots from her pilot areas, she still intends to present evidence in
connection therewith. This failure then, is nothing short of a manifest indication that she no longer
intends to do so.
It is entirely irrelevant at this stage of the proceedings that the Protestant's revisors discovered in the
course of the revisions alleged irregularities in 13,510 out of the 17,525 contested precincts in the
pilot areas and have objected to thousands of ballots cast in favor of the Protestee. Revision is
merely the first stage, and not the alpha and omega, of an election contest. In no uncertain terms
then, this Tribunal declared in its resolution of 18 March 1993 that:
Protestant knows only too well, being a lawyer and a former judge herself, that the revision
phase of her protest is but the first stage in the resolution of her electoral protest and that the
function of the revisors is very limited. In her 12 February 1993 Comment on Protestee's 5
February 1993 Urgent Motion for the issuance of a resolution which, inter alia, would clarify
that revisors may observe the objections and/or claims made by the revisors of the other
party as well as the ballots subject thereof, and record such observations in a form to be
provided for that purpose, Protestant unequivocally stated:
8. Further, the principle and plan of the RPET [Rules of the Presidential Electoral
Tribunal] is to subdivide the entire election contest into various stages. Thus, the first
stage is the Revision Proper. Second is the technical examination if so desired by
either party. Third is the reception of evidence. And Fourth, is the filing of parties'
memoranda.
and described the function of the revisors as "solely to examine and segregate the ballots
according to which ballots they would like to contest or object (contested ballots) and those
which they admit or have no objections (uncontested ballots)." Indeed, revisors do not have
any judicial discretion; their duties are merely clerical in nature (Hontiveros vs. Altavas, 24
Phil. 632 [1913]). In fact, their opinion or decision on the more crucial or critical matter of
what ballots are to be contested or not does not even bind the Tribunal (Yalung vs. Atienza,
52 Phil. 781 [1929]; Olano vs. Tibayan, 53 Phil. 168 [1929]). Thus, no undue importance may
be given to the revision phase of an election contest. It can never serve as a logical or an
acceptable basis for the conclusion that massive fraud or irregularities were committed
during an election or that a Protestant had won in said election. If that were so, a Protestant
may contest all ballot boxes and, in the course of the revision thereof, object for any
imagined ground whatsoever, even if the same be totally unfounded and ridiculous to all
ballots credited to the Protestee; and then, at the end of the day, said Protestant may even
announce to the whole world that contrary to what is reflected in the election returns,
Protestee had actually lost the elections.
All told, a dismissal of this election protest is inevitable.
III.
However, three Members of the Tribunal outrightly disagree with the foregoing disquisitions. Hence,
a reply to the important points they raise is in order.
Mr. Justice Puno's perception that the majority would dismiss this "election protest as moot and
academic on two (2) grounds: first, that the findings of irregularities made by the revisors of the
protestant in the course of the revision of ballots in 13,510 contested precincts are entirely irrelevant;
and second, she abandoned her protest when she filed her certificate of candidacy in the 8 May
1995 senatorial elections," is inaccurate. The dispositive portion of this resolution leaves no room for
any doubt or miscomprehension that the dismissal is based on the ground that the protest "has been
rendered moot and academic by its abandonment or withdrawal by the Protestant as a consequence
of her election and assumption of office as Senator and her discharge of the duties and functions
thereof." There is, therefore, ONLY ONE reason or ground why the protest has been rendered moot
and academic, i.e., it has been abandoned or withdrawn. This was the very issue upon which the
parties were required, in the resolution of 26 September 1995, to submit their respective
memoranda.
The majority neither conveyed, asserted nor even suggested, as Mr. Justice Puno has apparently
understood, that this protest has become moot and academic because the finding of irregularities by
the Protestant's revisors in the course of the revision of the ballots in 13,510 contested precincts in
the pilot areas are "entirely irrelevant," and that the Protestant has abandoned this protest by filing a
certificate of candidacy for the office of Senator in the 8 May 1995 elections. The majority's views on
"irrelevancy" and "on the filing of the certificate of candidacy" are not the grounds themselves, but
parts only of the arguments to strengthen the conclusion reached, i.e., abandonment. Otherwise
stated, in order to make the point crystal clear, the majority never held that the irrelevancy of the
finding of irregularities is a ground why this protest has become moot and academic. It only declared
that the Protestant's: (a) waiver of revision of the unrevised ballots from the remaining 4,017
contested precincts in the pilot areas; and (b) failure to comply with the resolution of 21 October
1995 requiring her to inform the Tribunal within ten days from notice if she would still present
evidence after completion of the revision of the ballots from her pilot areas rendered such "findings"
of irregularities entirely irrelevant considering the Tribunal's disquisitions on what revision is in its 18
March 1993 resolution.
In his dissent, Mr. Justice Puno lifted the words "entirely irrelevant"; from the fourth paragraph under
the heading "II" of this Resolution. It must, however, be stressed that the said paragraph is
inexorably linked to the preceding two paragraphs relating to the above-mentioned waiver and non-
compliance, which provide the major premises for the fourth paragraph; more concretely, the latter is
nothing more than the logical conclusion which the major premises support.
The reasons adduced by Mr. Justice Puno for the Protestant's turn-around are mere speculations. In
any event, the protestant's possible "belief . . . that the contested ballots in 13,500 precincts when
properly appreciated will sufficiently establish her electoral victory," cannot stand against her
previous insistence to proceed with the revision of the remaining unrevised ballots and the
aforementioned finding of the Tribunal in its resolution of 21 October 1993. The Tribunal is not to
blame for "the slow pace of the protest," if at all she so believes in such a state of things. Neither can
the thought of cutting costs be a valid reason. The Protestant knew from the outset that the revision
of the ballots in the pilot areas was a crucial phase of this protest because, under Rule 61 of the
Rules of the Tribunal, the protest could forthwith be dismissed if the Tribunal were convinced that
she would probably fail to make out a case but only after examination of the ballots from the pilot
areas and the evaluation of the evidence offered in connection therewith. It goes without saying that
every ballot then in the pilot areas counts.
Then too, it was never the view of the majority that the Protestant's filing of the certificate of
candidacy for a seat in the Senate in the 8 May 1995 election was the sole and exclusive operative
act for what Mr. Justice Puno perceives to be the majority's second ground why this protest has
become moot and academic. To the majority, such filing was only the initial step in a series of acts
performed by the Protestant to convincingly evince her abandonment of this protest, viz.,
campaigning for the office of Senator, assumption of such office after her election and her discharge
of the duties and functions of the said office. Precisely, in the resolution of 26 September 1995, this
Court directed the Protestant and the Protestee to submit their respective memoranda on the issue
[o]f whether or not the protest has not been rendered moot and academic by the election of
the Protestant as Senator and her subsequent assumption of office as such on 30 June
1995. (emphasis supplied)
As to the concept of abandonment, Mr. Justice Puno and Mr. Justice Kapunan cite Black's Law
Dictionary and the cases of Roebuck vs. Mecosta Country Road Commission,23 Dober vs. Ukase Inv.
Co., 24 and McCall vs. Cull,25 cited therein. We have turned to the primary sources of these cases,
meticulously perused them, and found none materially significant to this protest.
The first two cases above refer to abandonment of property. Roebuck involved the issue of whether
a roadway had been abandoned by the Mecosta Road Commission. The Court therein held that in
order for there to be an abandonment of land dedicated to public use, two elements must
concur, viz., (a) intention to relinquish the right or property, but without intending to transfer title to
any particular person; and (b) the external act which such intention is carried into effect.
While Dober, on the issue of whether the plaintiff therein abandoned a certain property,
quoted Corpus Juris that the intention to abandon must be determined from the facts and
circumstances of the case. There must be a clear, unequivocal and decisive act of the party to
constitute abandonment in respect of a right secured an act done which shows a determination in
the individual not to have a benefit which is designed for him.
It is, of course, settled that a public office is not deemed property.26
Only McCall involved the issue of abandonment of office. It is stated therein as follows:
Abandonment is a matter of intention and, when thought of in connection with an office,

implies that the occupant has quit the office and ceased to perform its duties. As long as he
continues to discharge the duties of the office, even though his source of title is two
appointments, one valid and the other invalid, it cannot be said he has abandoned it. It was
said in Steingruber v. City of San Antonio, Tex. Com. App., 220 S.W. 77, 78: "A public office
may be abandoned. Abandonment is a species of resignation. Resignation and
abandonment are voluntary acts. The former is a formal relinquishment; the latter a
relinquishment through non-user. Abandonment implies non-user, but non-user does not, of
itself, constitute abandonment. The failure to perform the duties pertaining to the office must
be with actual or imputed intention on the part of the officer to abandon and relinquish the
office. The intention may be inferred from the acts and conduct of the party, and is a question
of fact. Abandonment may result from an acquiescence by the officer in his wrongful removal
or discharge, but, as in other cases of abandonment, the question of intention is involved.
Strictly speaking, McCall is inapplicable to this protest for, as correctly stated in the dissent of Mr.
Justice Kapunan, the Protestant could not abandon the office of President which she was not
holding at the time she filed the certificate of candidacy for Senator. But the majority of the Tribunal
never declared, nor even implied, that she abandoned the office of President because it knew that
she had yet nothing to abandon. Precisely, she filed this protest to be declared the winner for that
office, to thereafter assume and perform the duties thereof, and exercise the powers appertaining
thereto. What the Tribunal explicitly states is that the Protestant abandoned this Protest, thereby
rendering this protest moot.
Mr. Justice Puno also insists that abandonment raises a question of fact and that the Tribunal cannot
resolve it "for lack of competent evidence"; moreover, he notes that the Protestee "has not adduced
evidence which can be the basis for a finding that she intentionally abandoned her protest; on the
contrary, the Protestee does not want the protest to be dismissed on a technicality but prays that it
be decided on the merits." Suffice it to say that the Protestant herself has not denied nor questioned
the following facts, which by themselves, constitute overwhelming proof of the intention to abandon
the protest:
(a) Filing of a certificate of candidacy for Senator for the 8 May 1995 elections;
(b) Campaigning for the office of Senator in such election;
(c) Taking her oath of office as Senator upon the commencement of the term therefor;
(d) Assumption of office as Senator; and
(e) Discharge and performance of the duties appertaining to the office of Senator.
These acts speak for themselves res ipsa loquitur to negate any proposition that the Protestant has
not abandoned this protest.
Thus, what initially appears to be the correct view in the dissent is, in the final analysis, misplaced.
This must also be the verdict upon the following pronouncements of Mr. Justice Puno:
A more fundamental reason prevents me from joining the majority. With due respect, I submit
that the majority ruling on abandonment is inconsistent with the doctrine that an election
contest is concerned less with the private interest of the candidates but more with public
interest. Under a republican regime of government, the overarching object of an election
contest is to seek and enforce the judgment of the people on who should govern them. It is
not a happenstance that the first declaration of policy of our Constitution underlines in bright
that "sovereignty resides in the people and all government authority emanates from them."
The first duty of a citizen as a particle of sovereignty in a democracy is to exercise his
sovereignty just as the first duty of any reigning government is to uphold the sovereignty of
the people at all cost. Thus, in Moraleja vs. Relova, we emphatically held that ". . . once the
court has acquired jurisdiction over an election contest, the public interest involved demands
that the true winner be known without regard to the wishes or acts of the parties so much so
that there can be no default, compromise nor stipulation of facts in this kind of cases."
Wisely, this Tribunal has consistently demurred from dismissing election contests even on
the ground of death of the protestee or the protestant.
The majority appears to stray away from this lodestar of our Constitution. It will dismiss the
case at bar even while the protestee and the protestant are yet alive, even while the term of
the 1992 president-elect has yet to expire, and even while the protestee and the protestant
together plead, that the Tribunal should determine the true will of the people by deciding their
dispute on the merit[s] and not on technicalities that trifle with the truth. I submit that it is the
better stance for the Tribunal to decide this election contest on the merit[s] and vindicate the
political judgment of the people which far surpasses in significance all other considerations.
Our duty to tell the people who have the right to govern them cannot depend on the
uncertain oscillations of politics of the litigants as often times they are directed by the wind of
convenience, and not by the weal of the public.
For one, the majority has, in no uncertain terms, demonstrated the dissimilarities in the factual
settings of the instant protest vis-a-vis the earlier cases that enunciated the doctrine relied on by Mr.
Justice Puno. Then, too, it must be reiterated, to avoid further miscomprehension, that
the Moraleja ruling even conceded that the matter of abandonment "could be different" if the
petitioner therein had accepted "a permanent appointment to a regular office" during the pendency
of his protest. In short, Moraleja in fact intimates abandonment of an election protest if, in the
meantime, the Protestant accepts a permanent appointment to a regular office. If that be so, then
would it be, and for weightier reasons, against a protestant who voluntarily sought election to an
office whose term would extend beyond the expiry date of the term of the contested office, and after
winning the said election, took her oath and assumed office and thereafter continuously serves it.
In Moraleja, the Supreme Court was meticulous in excluding abandonment from the enumeration of
specific "acts or wishes" of the parties which must be disregarded because of the public interest
component of an election protest. As reflected in the above quotation from Mr. Justice Puno's
dissent, only default, compromise, or stipulation of factsare included.
Finally, with all due respect, the above pronouncement of Mr. Justice Puno forgets that, as distinctly
pointed out in the early part of this Resolution, the Rules of the Tribunal allow summary dismissal of
election protests even for less important grounds, to repeat, such as the petition filed with the
Tribunal or the annexes attached thereto are not clearly legible, or the filing fees and cash deposits
were not filed within the periods fixed in the Rules,27 and the additional provision for dismissal under
Rule 61. All these provisions of the Rules would then be put to naught or, at the very least, modified
or amended in a way not authorized by the Rules, if the theory of Mr. Justice Puno be accepted.
Such theory would unreasonably bind the Tribunal to the technical minutiae of trial on the merits to
bring to their ultimate end all protests or contests filed before it including those filed by candidates
who even forgot to vote for themselves and obtained no votes in the final count, but, unable to
accept defeat, filed a protest claiming massive fraud and irregularities, vote-buying, and terrorism.
Consequently, all the time and energy of the Justices of the Supreme Court would be spent
appreciating millions of revised ballots to the prejudice of their regular judicial functions in the Court,
as the electoral protest of every Juan, Pedro, and Jose who lost in the presidential elections would
have to be heard on the merits. Public policy abhors such a scenario and no public good stands to
be thereby served.
WHEREFORE, the Tribunal hereby resolved to
(1) GRANT the Protestant's Motion of 16 August 1995 to dispense with the revision of ballots
and other election documents in the remaining precincts of the pilot areas;
(2) DISMISS the instant election protest, since it has been rendered moot and academic by
its abandonment or withdrawal by the Protestant as a consequence of her election and
assumption of office as Senator and her discharge of the duties and functions thereof; and
(3) DISMISS, as a consequence, the Protestee's Counter-Protest.
No pronouncements as to costs.
SO ORDERED.
86
P.E.T. CASE No. 003 March 31, 2005
LOREN B. LEGARDA, Protestant,

vs.
NOLI L. DE CASTRO, Protestee.
RESOLUTION
QUISUMBING, J.:
In a Resolution1 dated January 18, 2005, the Presidential Electoral Tribunal (PET) confirmed the
jurisdiction over the protest of Loren B. Legarda and denied the motion of protestee Noli L. de Castro
for its outright dismissal. The Tribunal further ordered concerned officials to undertake measures for
the protection and preservation of the ballot boxes and election documents subject of the protest.
On February 4, 2005, protestee filed a motion for reconsideration assailing the said resolution.
Protestee contends therein that:
THIS HONORABLE TRIBUNAL ERRED IN RULING THAT IT CAN RE-CANVASS THE

ELECTION RETURNS AND OTHER CANVASS DOCUMENTS DESPITE THE
AVAILABILITY OF THE BALLOTS.
II
THIS HONORABLE TRIBUNAL ERRED IN RULING THAT IT HAS THE POWER TO

CORRECT MANIFEST ERRORS IN THE ELECTION RETURNS OR CERTIFICATES OF
CANVASS.
III
THIS HONORABLE TRIBUNAL ERRED IN TRANSFORMING ITSELF INTO A

CANVASSING BODY.
IV
THIS HONORABLE TRIBUNAL ERRED IN RULING THAT THE INSTANT

PETITION/PROTEST ALLEGED A CAUSE OF ACTION SUFFICIENT TO CONTEST
PROTESTEE’S VICTORY IN THE 10 MAY 2004 VICE-PRESIDENTIAL ELECTIONS.2
Protestee argues that where the correctness of the number of votes is the issue, the best evidence
are the ballots;3that the process of correcting the manifest errors in the certificates of canvass or
election returns is a function of the canvassing bodies;4 that once the canvassing bodies had done
their functions, no alteration or correction of manifest errors can be made;5 that since the authority of
the Tribunal involves an exercise of judicial power to determine the facts based on the evidence
presented and to apply the law based on the established facts, it cannot perform the ministerial
function of canvassing election returns;6 that the averments contained in the protest are mere
conclusions of law which are inadequate to form a valid cause of action;7 that the allegations are not
supported by facts;8 and that the allegations were merely copied from a pleading in another election
protest.9 He further claims that since the errors sought to be corrected are no longer clear and
obvious, it would be impossible for the Tribunal to correct the alleged errors at this stage.10
In her Comment, protestant avers that protestee’s motion was merely a reiteration of the issues
already resolved by the Tribunal.11 However, although protestee’s contentions may be mere
reiterations of his previous pleadings and arguments, and he does not raise new substantial issues,
nonetheless, in order to write finis to the controversy on jurisdictional issues, we now revisit our
resolution of January 18, 2005.
Protestee contends that the Tribunal cannot correct the manifest errors on the statements of votes
(SOV) and certificates of canvass (COC). But it is not suggested by any of the parties that questions
on the validity, authenticity and correctness of the SOVs and COCs are outside the Tribunal’s
jurisdiction. The constitutional function as well as the power and the duty to be the sole judge of all
contests relating to the election, returns and qualification of the President and Vice-President is
expressly vested in the PET, in Section 4, Article VII of the Constitution. Included therein is the duty
to correct manifest errors in the SOVs and COCs.12 There is no necessity, in our view, to amend the
PET Rules to perform this function within the ambit of its constitutional function.
We also note the apparent ambivalence of the protestee relative to the Tribunal’s jurisdiction over re-
canvass of the election returns. He claims the Tribunal’s authority to re-canvass is "inexorably linked
to [its] constitutional mandate as the sole judge of all contests relating to the presidential and the
vice-presidential elections."13 Contrarily, he states that the Tribunal cannot re-canvass and must
resolve the protest through revision of ballots. If he contends that the Tribunal has the authority to re-
canvass, there is no reason why it cannot perform this function now. We agree that the ballots are
the best and most conclusive evidence in an election contest where the correctness of the number
of votes of each candidate is involved.14 However, we do not find any reason to resort to revision in
the first part of the protest, considering that the protestant concedes the correctness of the ballot
results, concerning the number of votes obtained by both protestant and protestee, and
reflected in the election returns.15Protestant merely seeks the correction of manifest errors, that is,
errors in the process of different levels of transposition and addition of votes. Revision of ballots in
case of manifest errors, in these circumstances, might only cause unwarranted delay in the
proceedings.
On the matter of sufficiency of the protest, protestee failed to adduce new substantial arguments to
reverse our ruling. We hold that while Peña v. House of Representatives Electoral Tribunal16 on
requisites of sufficiency of election protest is still good law, it is inapplicable in this case. We
dismissed the petition in Peña because it failed to specify the contested precincts. In the instant
protest, protestant enumerated all the provinces, municipalities and cities where she questions all
the results in all the precincts therein. The protest here is sufficient in form and substantively,
serious enough on its face to pose a challenge to protestee’s title to his office. In our view, the
instant protest consists of alleged ultimate facts, not mere conclusions of law, that need to be proven
in due time.
Considering that we find the protest sufficient in form and substance, we must again stress
that nothing as yet has been proved as to the veracity of the allegations. The protest is only
sufficient for the Tribunal to proceed and give the protestant the opportunity to prove her case
pursuant to Rule 61 of the PET Rules.17 Although said rule only pertains to revision of ballots,
nothing herein prevents the Tribunal from allowing or including the correction of manifest errors,
pursuant to the Tribunal’s rule-making power under Section 4, Article VII of the Constitution.18
On a related matter, the protestant in her reiterating motion19 prays for ocular inspection and
inventory-taking of ballot boxes, and appointment of watchers. However, the Tribunal has already
ordered the protection and safeguarding of the subject ballot boxes; and it has issued also the
appropriate directives to officials concerned. At this point, we find no showing of an imperative need
for the relief prayed for, since protective and safeguard measures are already being undertaken by
the custodians of the subject ballot boxes.
WHEREFORE, protestee’s motion for reconsideration is hereby DENIED WITH FINALITY for lack of
merit. Protestant’s reiterating motion for ocular inspection and inventory-taking with very urgent
prayer for the appointment of watchers is also DENIED for lack of showing as to its actual necessity.
Further, the protestant LOREN B. LEGARDA is ORDERED to specify, within ten (10) days from
notice, the three (3) provinces best exemplifying the manifest errors alleged in the first part of her
protest, and three (3) provinces best exemplifying the frauds and irregularities alleged in the second
part of her protest, for the purpose herein elucidated.
Lastly, the Tribunal hereby ORDERS the Commission on Elections to SUBMIT, within 30 days
hereof, the official project of precincts of the May 2004 Elections.
SO ORDERED.
87

SUPREME COURT
Manila
EN BANC
G.R. No. 199149 January 22, 2013
LIWAYWAY VINZONS-CHATO, Petitioner,

vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and ELMER E.
PANOTES, Respondents.
x-----------------------x
G.R. No. 201350
ELMER E. PANOTES, Petitioner,

vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and LIWAYWAYVINZONS-
CHATO, Respondents.
DECISION
PERLAS -BERNABE, J.:
Before us are consolidated cases involving the use of the picture images of ballots as the equivalent
of the original paper ballots for purposes of determining the true will of the electorate in the Second
Legislative District of Camarines Norte in the May 10, 2010 elections, which was "the maiden run for
full automation,"1 as authorized by Republic Act (R.A.) No. 93692 amending R.A. No. 8436 that
called for the adoption of an automated election system in national and local elections.
The Factual Antecedents
Liwayway Vinzons-Chato (Chato) renewed her bid in the May 10, 2010 elections as representative
of the Second Legislative District of Camarines Norte, composed of the seven (7) Municipalities of
Daet, Vinzons, Basud, Mercedes, Talisay, San Vicente, and San Lorenzo, with a total of 205
clustered precincts. She lost to Elmer E. Panotes (Panotes) who was proclaimed the winner on May
12, 2010 having garnered a total of 51,707 votes as against Chato's 47,822 votes, or a plurality of
3,885 votes,3 summarized in the petition4 as follows:
1âw phi1
No. of votes for No. of votes for

Municipality Panotes Chato
Daet 18,085 15,911
Vinzons 8,107 6,713
Basud 7,879 6,527
Mercedes 7,739 9,333
Talisay 5,015 4,190
San Vicente 2,359 2,453
San Lorenzo 2,520 2,695
TOTAL 51,707 47,822
On May 24, 2010, Chato filed an electoral protest before the House of Representatives Electoral
Tribunal (HRET), which was docketed as HRET Case No. 10-040, assailing the results in all the 160
clustered precincts in four (4) municipalities, namely: Daet, Vinzons, Basud and Mercedes.5 No
counter-protest was interposed by Panotes.
Pursuant to Rule 37 of the 2011 Rules of the HRET, Chato designated forty (40) pilot clustered
precincts, equivalent to 25% of the total number of protested clustered precincts, in which revision of
ballots shall be conducted. The initial revision of ballots, conducted on March 21 - 24, 2011, showed
a substantial discrepancy between the votes of the parties per physical count vis-a-vis their votes
per election returns in the following precincts of the Municipalities of Basud and Daet:6
Based
Votes for Chato Votes for Panotes

Clustered
Precinct Per Per Gain Per Per Gain
No. Election Physical or Election Physical or
Returns Count -Loss Returns Count -Loss
6 166 183 17 268 164 - 104
7 119 134 15 206 85 - 121

8 70 81 11 239 133 - 106
15 87 105 18 193 100 - 93
19 148 191 43 239 138 - 101
25 233 261 28 399 251 - 148
27 263 287 24 366 214 - 152
Daet
Votes for Chato Votes for Panotes

Clustered
Precinct Per Per Gain Per Per Gain
No. Election Physical or Election Physical or
Returns Count -Loss Returns Count -Loss
2 269 295 26 354 157 - 197
7 243 275 32 363 2 - 361
17 183 202 19 269 36 - 233
23 281 318 37 440 334 - 106
24 223 261 38 341 227 - 114
25 202 229 27 391 343 - 48
31 258 284 26 407 305 - 102
32 243 267 24 521 511 - 10
40 259 293 34 373 96 - 277
41 226 260 34 348 54 - 294
44 294 313 19 404 357 - 47
56 287 309 22 399 320 - 79
60 153 182 29 252 77 - 175

On March 24, 2011, Panotes lost no time in moving7 for the suspension of the proceedings in the
case, and praying that a preliminary hearing be set in order to determine first the integrity of the
ballots and the ballot boxes used in the elections. He further urged that, should it be shown during
such hearing that the ballots and ballot boxes were not preserved, the HRET should direct the
printing of the picture images of the ballots of the questioned precincts stored in the data storage
device for said precincts.
The motion was prompted by certain irregularities8 in the condition of the ballot boxes subject of the
revision, which Panotes described as follows:
Outer condition:
a. The top cover of the ballot box is loose and can be lifted, so the election documents – e.g.
ballots, minutes of voting, election returns – can be taken out.
b. In some ballot boxes, when the key was inserted into the padlock, the upper portion of the
lock disconnected from its body, which means that the lock had been previously tampered
with.
c. In the municipalities where Petitioner (Panotes) was able to seal the ballot boxes with
packing tape, this tape seal was broken/cut/sliced, which means that the ballot boxes had
been opened prior to the initial revision.
d. Some of the self-locking security seal was not properly attached.
Inner condition:
a. The contents of the ballot box – e.g. ballots and the documents – were in total disarray,
which means that it was tampered with.
b. Some of the Minutes of Voting and Election Returns were MISSING and only the ballots
were found inside the ballot box.
c. The ballots were unnecessarily folded and/or crumpled in the clustered precincts where
the votes of (Panotes) were substantially reduced.
Consequently, in its Resolution9 No. 11-208, the HRET directed the copying of the picture image files
of ballots relative to the protest, which was scheduled to commence on April 25, 2011 and everyday
thereafter until completion.10 Chato, however, moved11 for the cancellation of the decryption and
copying of ballot images arguing inter alia that there was no legal basis therefor and that the HRET
had not issued any guidelines governing the exercise thereof.
Notwithstanding, the decryption and copying proceeded as scheduled.
Chato then filed an Urgent Motion to Prohibit the Use by Protestee of the Decrypted and Copied
Ballot Images in the Instant Case12 reiterating the lack of legal basis for the decryption and copying
of ballot images inasmuch as no preliminary hearing had been conducted showing that the integrity
of the ballots and ballot boxes was not preserved. She cited Section 10(d) of the HRET Guidelines
on the Revision of Ballots, which reads:
(d) When it has been shown, in a preliminary hearing set by the parties or by the Tribunal, that the
integrity of the ballots and ballot boxes used in the May 10, 2010 elections was not preserved, as
when there is proof of tampering or substitutions, the Tribunal shall direct the printing of the picture
images of the ballots of the subject precinct stored in the data storage device for the same precinct.
The Tribunal shall provide a non-partisan technical person who shall conduct the necessary
authentication process to ensure that the data or image stored is genuine and not a substitute. It is
only upon such determination that the printed picture image can be used for the revision, (as
amended per Resolution of February 10, 2011).
Moreover, Chato alleged that the ballot images were taken from polluted Compact Flash (CF) cards.
Atty. Anne A. Romero-Cortez (Atty. Cortez), the Camarines Norte Provincial Elections Supervisor,
was said to have admitted during canvassing proceedings that the CF cards for the Municipalities of
Labo, Vinzons and Basud were defective and had to be replaced. The pertinent portion of the
Transcript of Stenographic Notes (TSN) taken during the canvassing proceedings for President and
Vice-President held on June 2, 2010 is reproduced hereunder:
REP. VINZONS-CHATO: Yes, I requested the presence of the other two members because the
information that I gathered would be that there was a time log of about six hours where you would
stop the canvassing, and the information that we got from our lawyers there was that there were
certain cards that had no memory and had to be reconfigured from some precincts, and that, in the
meantime, you stopped the canvassing and resumed after six hours.
ATTY. ROMERO-CORTEZ: This is what happened. Because of the municipalities of Labo, Vinzons,
and Basud, there were CF cards that had to be replaced because they were defective.
REP. VINZONS-CHATO: But, that was after the voting had closed, right? The voting had closed and
those cards were defective and you had to replace them.
ATTY. ROMERO-CORTEZ: To my recollection, Your Honor, that was during May 10.13
Panotes, on the other hand, stressed in his Opposition14 to the foregoing motion that the decryption
and copying of the ballot images was at the behest of the HRET itself, acting through Atty. Marie
Grace T. Javier-Ibay, who formally requested on February 10, 2011 the copying of the picture image
files of ballots and election returns in 13 election protests pending before it. Should he then decide to
use the decrypted and copied ballot images, there is nothing in the HRET rules that prohibit the
same.
With respect to the allegation that certain defective CF cards were replaced, Panotes argued15 that it
was during the election day, May 10, 2010, that the CF cards were found to be not working so they
had to be re-configured. Consequently, the voting in some precincts in the Municipalities of Labo,
Vinzons and Basud started late, but the voting period was extended accordingly. For this reason, the
canvassing before the Provincial Board of Canvassers was halted in order to wait for the
transmission of the results from the Municipal Board of Canvassers, which could not be done until
each and every clustered precinct was duly accounted for.
The case was subsequently set for preliminary hearing on May 27, 2011 in order to determine the
integrity of the CF cards used in the questioned elections.16 In said hearing, Chato presented the
following witnesses: (1) Oscar Villafuerte, Vice-Chairman of the Provincial Board of Canvassers of
Camarines Norte; (2) Reynaldo Mago, a media practitioner; and (3) Angel Abria, an Information
Technology (IT) expert.17
On June 8, 2011, the HRET issued the assailed Resolution18 No. 11-321 denying Chato's Urgent
Motion to Prohibit the Use by Protestee of the Decrypted and Copied Ballot Images in the Instant
Case on the ground that she failed to show proof that the CF cards used in the twenty (20) precincts
in the Municipalities of Basud and Daet with substantial variances were not preserved or were
violated. The Tribunal stressed that, since Atty. Cortez was not presented in court to clarify the
matter of the alleged replacement of CF cards, it remained unclear whether the replacement was
done before or after the elections, and which precincts were involved. Moreover, the testimonies of
the witnesses that were actually presented were found to be irrelevant and immaterial.
Significantly, the HRET declared that, although the actual ballots used in the May 10, 2010 elections
are the best evidence of the will of the voters, the picture images of the ballots are regarded as the
equivalent of the original, citing Rule 4 of the Rules on Electronic Evidence, which reads:
Sec. 1. Original of an electronic document. – An electronic document shall be regarded as

the equivalent of an original document under the Best Evidence Rule if it is a printout or
output readable by sight or other means, shown to reflect the data accurately.
Sec. 2. Copies as equivalent of the originals. – When a document is in two or more copies
executed at or about the same time with identical contents, or is a counterpart produced by
the same impression as the original, or from the same matrix, or by mechanical or electronic
re-recording, or by chemical reproduction, or by other equivalent techniques which
accurately reproduces the original, such copies or duplicates shall be regarded as the
equivalent of the original.
Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the
original if:
(a) a genuine question is raised as to the authenticity of the original; or
(b) in the circumstances it would be unjust or inequitable to admit the copy in lieu of the
original.
Aggrieved, Chato filed a Motion for Reconsideration19, which was denied in the Resolution20 No. 11-
487 dated September 15, 2011. The HRET categorically held that:
x x x (T)he votes determined after the revision in the 20 precincts in Basud and Daet, which yielded
reversal of votes, cannot be relied upon, as they do not reflect the true will of the electorate. Hence,
the Tribunal has to rely on what is reflected in the election returns and/or statement of votes by
precinct the same being the best evidence of the results of the election in said precincts in lieu of the
altered ballots.
The Issues
G.R. No. 199149
In this petition for certiorari and prohibition with prayer for a temporary restraining order and/or writ of
prohibitory injunction, Chato claims that the HRET committed grave abuse of discretion amounting to
lack or excess of jurisdiction in issuing Resolution No. 11-321 dated June 8, 2011 and Resolution
No. 11-487 dated September 15, 2011. Her petition is anchored on the following grounds:
I.
THE HON. PUBLIC RESPONDENT HRET IN RESOLUTION NO. 11-321 (DATED 08 JUNE
2011) REGARDED THE PICTURE IMAGES OF THE BALLOTS AS THE EQUIVALENT OF
THE ORIGINAL, AND USED THE PICTURE IMAGES OF THE BALLOTS IN ITS
SUBSEQUENT RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) – DESPITE
THE FACT THAT UNDER REPUBLIC ACT NO. 9369 THE PICTURE IMAGES OF THE
BALLOTS ARE NOT THE "OFFICIAL BALLOTS" SINCE THE AUTOMATED ELECTION
SYSTEM (AES) USED DURING THE MAY 2010 ELECTIONS WAS PAPER BASED.
II.
SUBSEQUENT RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) – EVEN IF THE
PICTURE IMAGES OF THE BALLOTS CANNOT BE REGARDED AS THE EQUIVALENT
OF THE ORIGINAL PAPER BALLOTS UNDER THE RULES ON ELECTRONIC EVIDENCE.
IN THE FIRST PLACE, THE RULES ON ELECTRONIC EVIDENCE DO NOT EVEN APPLY
TO THE PICTURE IMAGES OF THE BALLOTS.
III.
SUBSEQUENT RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) – EVEN IF
UNDER THE ELECTRONIC COMMERCE ACT OF 2000, THE PICTURE IMAGES OF THE
PAPER BALLOTS ARE NOT THE EQUIVALENT OF THE ORIGINAL PAPER BALLOTS.
IV.
PETITIONER HAS SHOWN BY SUBSTANTIAL EVIDENCE THAT THE CF CARDS USED
IN THE MAY 2010 ELECTIONS WERE NOT PRESERVED OR WERE VIOLATED.
V.
THERE IS NO LEGAL BASIS FOR THE HONORABLE TRIBUNAL TO CONSIDER THE
PICTURE IMAGE OF THE BALLOTS AS EVIDENCE, SINCE SUCH PICTURE IMAGES
ARE NOT EVEN RECOGNIZED AND THEIR APPRECIATION ARE NOT PROVIDED FOR,
UNDER THE OMNIBUS ELECTION CODE.
VI.
THE HON. PUBLIC RESPONDENT HRET ISSUED RESOLUTION NO. 11-487 (DATED 15
SEPTEMBER 2011) DESPITE THE PENDENCY OF THE COMELEC INVESTIGATION ON
THE MAIN CF CARD FOR CLUSTERED PRECINCT 44 OF THE MUNICIPALITY OF DAET.
VII.
SEPTEMBER 2011) BASED ON VILLAFUERTE VS. JACOB (15 HRET REPORT 754),
WHICH IS ONLY AN HRET CASE WHICH HAS NO PRECEDENTIAL VALUE.
VIII.
JUNE 2011) AND RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) – IN
CONTRAVENTION OF CASE LAW THAT THERE SHOULD BE A FULL BLOWN TRIAL
CONCERNING THE INTEGRITY OF THE BALLOTS.21
G.R. No. 201350
After the initial revision of the pilot protested clustered precincts, Chato moved,22 as early as March
24, 2011, for the revision of ballots in all of the protested clustered precincts arguing that the results
of the revision of twenty-five percent (25%) of said precincts indicate a reasonable recovery of votes
in her favor. On May 12, 2011, she filed a second motion23 reiterating her prayer for the
continuance of the revision. The HRET denied the motion "until the Tribunal shall have determined
the merit or legitimacy of the protest, relative to the revised forty (40) pilot protested clustered
precincts."24 For the same reason, the HRET denied two (2) other similar motions25 filed by Chato.
However, on March 22, 2012, the HRET issued the assailed Resolution26 No. 12-079 directing the
continuation of the revision of ballots in the remaining seventy-five percent (75%) protested clustered
precincts, or a total of 120 precincts. Expectedly, Panotes moved27 for reconsideration of Resolution
No. 12-079, which was denied in the Order28 dated April 10, 2012 for lack of merit. The HRET further
warned that any attempt on the part of the revisors to delay the revision proceedings or to destroy
the integrity of the ballots and other election documents involved, including but not limited to,
marking or tearing of ballots shall be sufficient ground(s) for immediate disqualification.
Panotes is now before Us via the instant petition for certiorari and prohibition alleging grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the HRET in issuing Resolution
No. 12-079 and Order dated April 10, 2012 considering that –
1.THE HONORABLE TRIBUNAL ALREADY CATEGORICALLY RULED IN ITS OWN

RESOLUTION NO. 11-487 THAT THE VOTES DETERMINED IN THE REVISION CANNOT
BE RELIED UPON SINCE THEY ARE THE PRODUCT OF ALTERED BALLOTS;
2.THE ISSUES RESOLVED IN RESOLUTION NO. 11-487 DATED SEPTEMBER 8, 2011

AND THOSE IN RESOLUTION NO. 12-079 DATED MARCH 22, 2012 ARE
INTERRELATED;
3.PURSUANT TO THE RULING OF THIS MOST HONORABLE COURT IN THE CASE OF

VARIAS VS. COMELEC (G.R. NO. 189078 FEBRUARY 11, 2010), THE RESULTS OF THE
REVISION OF QUESTIONABLE BALLOTS CANNOT PREVAIL OVER ELECTION
RETURNS;
4.THE PICTURE IMAGE OF THE BALLOTS MAY BE USED AS PROOF OF THE
INTEGRITY OF THE PAPER BALLOTS;
5.RESOLUTION NO. 12-079 HAS NO LEGAL AND FACTUAL BASES TO STAND ON

BECAUSE PRIVATE RESPONDENT FAILED TO ESTABLISH THE MERIT OR
LEGITIMARY [sic] OF HER PROTEST CONSIDERING THAT SHE FAILED TO MAKE A
REASONABLE RECOVERY OR MUCH LESS, ANY RECOVERY AT ALL;
6.RESOLUTION NO. 12-079 IS CONTRADICTORY TO THE FINDINGS OF THE PUBLIC

RESPONDENT HRET IN ITS RESOLUTION NO. 11-487;
7.THE PENDENCY OF THE PETITION FOR CERTIORARI FILED BY PRIVATE

RESPONDENT BEFORE THE SUPREME COURT IS A PRELIMINARY MATTER THAT
MUST BE RESOLVED FIRST BEFORE THE HONORABLE TRIBUNAL MAY ORDER THE
REVISION OF THE REMAINING 75% OF THE PROTESTED PRECINCTS;
8.THE RELIABILITY OF THE COMPACT FLASH CARDS HAS NOT BEEN SHOWN TO BE
QUESTIONABLE;
9.THE RESULT OF THE RECOUNT CANNOT BE USED TO OVERTURN THE RESULTS

AS REFLECTED IN THE ELECTION RETURNS BECAUSE THE BALLOTS IN EP CASE
NO. 10-040 HAVE BEEN TAMPERED.29
"It is hornbook principle that our jurisdiction to review decisions and orders of electoral tribunals is
exercised only upon showing of grave abuse of discretion committed by the tribunal;" otherwise, we
shall not interfere with the electoral tribunal’s exercise of its discretion or jurisdiction. "Grave abuse
of discretion has been defined as the capricious and whimsical exercise of judgment, or the exercise
of power in an arbitrary manner, where the abuse is so patent and gross as to amount to an evasion
of positive duty."30
The acts complained of in these cases pertain to the HRET’s exercise of its discretion, an exercise
which we find to be well within the bounds of its authority and, therefore, beyond our power to restrict
or curtail.
G.R. No. 199149
Chato assails in this petition the following issuances of the HRET: (1) Resolution No. 11-321 dated
June 8, 2011 denying her Urgent Motion to Prohibit the Use by Protestee of the Decrypted and
Copied Ballot Images in the Instant Case; and (2) Resolution No. 11-487 dated September 15, 2011
denying her Motion for Reconsideration of Resolution No. 11-321.
The crucial issue posed by Chato is whether or not the picture images of the ballots may be
considered as the "official ballots" or the equivalent of the original paper ballots which the voters
filled out. She maintains that, since the automated election system (AES) used during the May 10,
2010 elections was paper-based,31 the "official ballot" is only the paper ballot that was printed by the
National Printing Office and/or the Bangko Sentral ng Pilipinas pursuant to Section 15 of R.A. No.
8436, as amended by R.A. No. 9369, which reads in part as follows:
Sec.15. Official Ballot. – x x x

xxxx
With respect to a paper-based election system, the official ballots shall be printed by the National
Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private
printers under proper security measures which the Commission shall adopt. The Commission may
contact the services of private printers upon certification by the National Printing Office/Bangko
Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and
deputized citizen's arms of the Commission shall assign watchers in the printing, storage and
distribution of official ballots.
xxxx
Section 2 (3) of R.A. No. 9369 defines "official ballot" where AES is utilized as the "paper ballot,
whether printed or generated by the technology applied, that faithfully captures or represents the
votes cast by a voter recorded or to be recorded in electronic form."
An automated election system, or AES, is a system using appropriate technology which has been
demonstrated in the voting, counting, consolidating, canvassing, and transmission of election result,
and other electoral process.32There are two types of AES identified under R.A. No. 9369: (1) paper-
based election system; and (2) direct recording electronic election system. A paper-based election
system, such as the one adopted during the May 10, 2010 elections, is the type of AES that "use
paper ballots, records and counts votes, tabulates, consolidates/canvasses and transmits
electronically the results of the vote count."33 On the other hand, direct recording electronic election
system "uses electronic ballots, records, votes by means of a ballot display provided with
mechanical or electro-optical component that can be activated by the voter, processes data by
means of computer programs, record voting data and ballot images, and transmits voting results
electronically."34
As earlier stated, the May 10, 2010 elections used a paper-based technology that allowed voters to
fill out an official paper ballot by shading the oval opposite the names of their chosen candidates.
Each voter was then required to personally feed his ballot into the Precinct Count Optical Scan
(PCOS) machine which scanned both sides of the ballots simultaneously,35 meaning, in just one
pass.36 As established during the required demo tests, the system captured the images of the ballots
in encrypted format which, when decrypted for verification, were found to be digitized
representations of the ballots cast.37
We agree, therefore, with both the HRET and Panotes that the picture images of the ballots, as
scanned and recorded by the PCOS, are likewise "official ballots" that faithfully captures in electronic
form the votes cast by the voter, as defined by Section 2 (3) of R.A. No. 9369. As such, the printouts
thereof are the functional equivalent of the paper ballots filled out by the voters and, thus, may be
used for purposes of revision of votes in an electoral protest.
It bears stressing that the digital images of the ballots captured by the PCOS machine are stored in
an encrypted format in the CF cards.38 "Encryption is the process of encoding messages (or
information) in such a way that eavesdroppers or hackers cannot read it, but that authorized parties
can. In an encryption scheme, the message or information (referred to as plaintext) is encrypted
using an encryption algorithm, turning it into an unreadable ciphertext. This is usually done with the
use of an encryption key, which specifies how the message is to be encoded. Any adversary that
can see the ciphertext, should not be able to determine anything about the original message. An
authorized party, however, is able to decode the ciphertext using a decryption algorithm, that usually
requires a secret decryption key, that adversaries do not have access to."39
Despite this security feature, however, the possibility of tampering or substitution of the CF cards did
not escape the HRET, which provided in its Guidelines on the Revision of Ballots that:
Sec. 11. Printing of the picture images of the ballots in lieu of photocopying. – Unless it has been
shown, in a preliminary hearing set by the parties or motu propio, that the integrity of any of the
Compact Flash (CF) Cards used in the May 10, 2010 elections was not preserved or the same was
violated, as when there is proof of tampering or substitution, the Tribunal, in lieu of photocopying of
ballots upon any motion of any of the parties, shall direct the printing of the picture image of the
ballots of the subject precinct stored in the data storage device for the same precinct. The Tribunal
shall provide a non-partisan technical person who shall conduct the necessary authentication
process to ensure that the data or image stored is genuine and not a substitute.
Accordingly, the HRET set the instant case for preliminary hearing on May 27, 2011, and directed
Chato, the protestant, to present testimonial and/or documentary evidence to show proof that the
integrity of the CF cards used in the May 10, 2010 elections was not preserved or was violated.40
However, in the assailed Resolution No. 11-321, the HRET found Chato's evidence insufficient. The
testimonies of the witnesses she presented were declared irrelevant and immaterial as they did not
refer to the CF cards used in the 20 precincts in the Municipalities of Basud and Daet with
substantial variances. Pertinent portions of the transcripts of stenographic notes during the May 27,
2011 preliminary hearing are quoted hereunder:41
REYNANTE B. MAGO:
Q: Do you have any knowledge regarding the municipalities of Basud and Daet?
A: Wala po kasi hindi naman yung ang aking bet [sic, should have been "beat", a journalistic jargon
for the reporter's official place of assignment]
Q: Wala kang nalalaman regarding the municipalities of Basud and Daet?
A: Wala po.
Q: Are you sure?
A: Sure na sure po kasi hindi ko naman po yun bet [sic] noong mga panahon na yun. Wala po akong
direct na knowledge o participation regarding that during the time of election period.
PROVINCIAL PROSECUTOR OSCAR J. VILAFUERTE:
Q: Before proceeding with your testimony, I would ask if you have any knowledge about the election
regarding the municipalities of Basud and Daet?
A: Well, as the Vice-Chairman of the Provincial Board of Canvassers, Your Honor, in the last May
10, 2010 elections, yes.
Q: Regarding the last CF cards?
A: No. We are just limited to the reception of the election results.

Q: So, with regard to the CF cards in the municipalities of Basud and Daet, you do not have any
knowledge at all?
A: Personally, no, because it does not affect us, Your Honor.
MR. ANGEL S. AVERIA, JR:
Q: Will you be testifying regarding CF cards involving the municipalities of Daet and Basud?
A: Not specific to those municipalities.
Q: Sa Daet, wala?
A: Wala.
Q: Sa Basud, wala?
A: Wala ho. The reports I wrote for CENPEG is on a national scale.
To substitute our own judgment to the findings of the HRET will doubtless constitute an intrusion into
its domain and a curtailment of its power to act of its own accord on its evaluation of the evidentiary
weight42 of testimonies presented before it. Thus, for failure of Chato to discharge her burden of
proving that the integrity of the questioned CF cards had not been preserved, no further
protestations to the use of the picture images of the ballots as stored in the CF cards should be
entertained.
Moreover, after having participated and presented her evidence at the May 27, 2011 preliminary
hearing, Chato cannot now be heard to complain that the proceedings therein did not amount to a
full blown trial on the merits required in the case of Tolentino v. COMELEC43 for weighing the
integrity of ballots.
Her allegation with respect to the pendency of the COMELEC investigation on the main CF card for
Clustered Precinct 44 of the Municipality of Daet, which was previously ordered by the HRET itself
when the election officer submitted only the back-up CF card that did not, however, contain picture
images of the ballots,44 could not in the least bit affect the resolution of this case. As correctly pointed
out by the HRET, the same concerns only one (1) precinct out of the 20 precincts with substantial
variances.45 At any rate, the following explanation46 proferred by the HRET should put the issue to
rest, viz:
x x x On November 2, 2011, John Rex C. Laudiangco of the COMELEC Law Department, filed
Comelec's Compliance with Manifestation and Motion to Admit the Attached Fact-Finding
Investigation Report explaining the delay in the conduct of the investigation which was duly
conducted on October 7, 2011, and submitting therewith a comprehensive Fact-Finding Investigation
Report on the said investigation which was docketed in the Law Department as Case No. FF.INV.
(LD) 11-46 entitled "In the Matter of Investigation on What Happened to the Main CF (Compact
Flash) card for Clustered Precinct No. 44 for the Municipality of Daet, Camarines Norte."
In sum, the investigation revealed that the main CF Card for CP No. 44 of the Municipality of Daet
could possibly be located inside the ballot box of the Municipal Board of Canvassers (MBOC) of
Daet, Camarines Norte (serial no. CE-07-166991), after having been allegedly submitted in an
improvised envelope, by the Board of Election Inspectors (BEI) of said CP 44 to the MBOC. It was,
therefore, recommended that said ballot box be opened to retrieve the said CF card.
Accordingly, in her January 6, 2012 letter to public respondent, Atty. Anne A. Romero-Cortez
submitted certain documents relative to the opening of the ballot box of the MBOC of Daet,
Camarines Norte (serial no. CE-07-166991) so the main CF Card for CP 44 of Daet may be
retrieved and its custody turned over to the Election Records and Statistics Department (ERSD),
COMELEC.
Likewise, in her January 6, 2012 letter to public respondent, ERSD Director Ester L. Villaflor-Roxas
requested that a representative from public respondent be present on the day to witness the
verification and backing-up of the contents of the main CF card for CP No. 44 of Daet, Camarines
Norte.
Verily, the case of the alleged missing CF Card for Clustered Precinct No. 44 is no mystery at all.
G.R. No. 201350
In the main, Panotes ascribes grave abuse of discretion on the part of the HRET in ordering the
continuation of the revision of ballots in the remaining 75% of the protested clustered precincts
despite having previously ruled that the votes determined after the revision in the 20 precincts in the
Municipalities of Basud and Daet, which yielded reversal of votes, cannot be relied upon, as they do
not reflect the true will of the electorate.
The Constitution mandates that the HRET "shall be the sole judge of all contests relating to the
election, returns and qualifications" of its members. By employing the word "sole", the Constitution is
emphatic that the jurisdiction of the HRET in the adjudication of election contests involving its
members is intended to be its own – full, complete and unimpaired.47 The Tribunal, thus,
unequivocally asserted its exclusive control in Rule 7 of the 2011 HRET Rules, as follows:
Rule 7. Exclusive Control of Functions. – The Tribunal shall have exclusive control, direction, and
supervision of all matters pertaining to its own functions and operation.
There can be no challenge, therefore, to such exclusive control absent any clear showing, as in this
case, of arbitrary and improvident use by the Tribunal of its power that constitutes a denial of due
process of law, or upon a demonstration of a very clear unmitigated error, manifestly constituting
such grave abuse of discretion that there has to be a remedy therefor.48
Contrary to Panotes' posturing, there existed legal and factual bases for the revision of the remaining
75% of the protested clustered precincts. Rule 37 of the 2011 HRET Rules clearly provides that,
after post-revision determination of the merit or legitimacy of the protest, the Tribunal may proceed
with the revision of the ballots in the remaining contested precincts, thus:
Rule 37. Post-Revision Determination of the Merit or Legitimacy of Protest Prior to Revision of
Counter-Protest; Pilot Precincts; Initial Revision. – Any provision of these Rules to the contrary
notwithstanding, as soon as the issues in any contest before the Tribunal have been joined, the
Protestant, in case the protest involves more than 50% of the total number of precincts in the district,
shall be required to state and designate in writing within a fixed period at most twenty five (25%)
percent of the total number of precincts involved in the protest which said party deems as best
exemplifying or demonstrating the electoral irregularities or fraud pleaded by him; and the revision of
the ballots or the examination, verification or re-tabulation of election returns and/or reception of
evidence shall begin with such pilot precincts designated. Otherwise, the revision of ballots or the
examination, verification and re-tabulation of election returns and/or reception of evidence shall
begin with all the protested precincts. The revision of ballots or the examination, verification and re-
tabulation of election returns in the counter-protested precincts shall not be commenced until the
Tribunal shall have determined through appreciation of ballots or election documents and/or
reception of evidence, which reception shall not exceed ten (10) days, the merit or legitimacy of the
protest, relative to the pilot protested precincts. Based on the results of such post-revision
determination, the Tribunal may dismiss the protest without further proceedings, if and when no
reasonable recovery was established from the pilot protested precincts, or proceed with the revision
of the ballots or the examination, verification and re-tabulation of election returns in the remaining
contested precincts.
Panotes argues that Chato had not made a reasonable recovery in the initial revision of ballots in the
25% pilot protested clustered precincts and, as such, the HRET should have dismissed the protest in
accordance with the aforequoted provision instead of ordering further the revision of the remaining
75% of the protested clustered precincts. 1âwphi 1
It should be pointed out, however, that the provision in question is couched in the permissive term
"may" instead of the mandatory word "shall." Therefore, it is merely directory, and the HRET is not
without authority to opt to proceed with the revision of ballots in the remaining contested precincts
even if there was no reasonable recovery made by the protestant in the initial revision.
In the assailed Resolution49 No. 12-079, the HRET justified its action by its need "to re-examine what
appears to be a peculiar design to impede the will of the electorate," and that a revision of all the
protested clustered precincts will allow it "to see the whole picture of the controversy." Thus said the
HRET:
The evidence as presented by the parties involving the twenty-five percent (25%) pilot protested
clustered precincts is still insufficient to justify an indubitable conclusion. There are still material
issues that should be taken into account. The substantial increase in the number of ballots for
protestant and the substantial decrease in the number of ballots for protestee after comparing the
election returns with the physical counts of the ballots are prima facie findings that should not be
trivialized. Also, the reliability of the compact flash cards including its admissibility was raised by the
protestant as an area of concern which needs precise and definitive ruling by the Tribunal. A
complete disavowal of the constitutional duty will be debased if the Tribunal is not going to see the
whole picture of the controversy. After all, the revision proceedings will not unduly toll the precious
time of the Tribunal. All of the ballot boxes involved in this protest are already in the custody of the
Tribunal and will not require sizeable manpower to revise it.
At the risk of unduly encroaching on the exclusive prerogative of the HRET as the sole judge of
election contests involving its members, we cannot substitute our own judgment for that of the HRET
on the issues of whether the evidence presented during the initial revision could affect the officially
proclaimed results and whether the continuation of the revision proceedings could lead to a
determination of the true will of the electorate. 50
In any case, as pointed out by the HRET, the revision proceedings for the remaining 75% protested
clustered precincts had already been conducted from May 2-9, 2012 thereby rendering the issue
moot and academic.
Having, thus, established the futility of Panotes' case, we need not belabor the other issues raised in
this petition.
WHEREFORE, the petitions are hereby DISMISSED for lack of merit.

SO ORDERED.
88

SUPREME COURT
Manila
EN BANC
G.R. No. 193237 October 9, 2012
DOMINADOR G. JALOSJOS, JR., Petitioner,

vs.
COMMISSION ON ELECTIONS and AGAPITO J. CARDINO, Respondents.
x-----------------------x
G.R. No. 193536
AGAPITO J. CARDINO, Petitioner,

vs.
DOMINADOR G. JALOSJOS, JR., and COMMISSION ON ELECTIONS, Respondents.
DECISION
CARPIO, J.:
These are two special civil actions for certiorari1 questioning the resolutions of the Commission on
Elections (COMELEC) in SPA No. 09-076 (DC). In G.R. No. 193237, Dominador G. Jalosjos, Jr.
(Jalosjos) seeks to annul the 10 May 2010 Resolution2 of the COMELEC First Division and the 11
August 2010 Resolution3 of the COMELEC En Banc, which both ordered the cancellation of his
certificate of candidacy on the ground of false material representation. In G.R. No. 193536, Agapito
J. Cardino (Cardino) challenges the 11 August 2010 Resolution of the COMELEC En Banc, which
applied the rule on succession under the Local Government Code in filling the vacancy in the Office
of the Mayor of Dapitan City, Zamboanga del Norte created by the cancellation of Jalosjos’
certificate of candidacy.
The Facts
Both Jalosjos and Cardino were candidates for Mayor of Dapitan City, Zamboanga del Norte in the
May 2010 elections. Jalosjos was running for his third term. Cardino filed on 6 December 2009 a
petition under Section 78 of the Omnibus Election Code to deny due course and to cancel the
certificate of candidacy of Jalosjos. Cardino asserted that Jalosjos made a false material
representation in his certificate of candidacy when he declared under oath that he was eligible for
the Office of Mayor.
Cardino claimed that long before Jalosjos filed his certificate of candidacy, Jalosjos had already
been convicted by final judgment for robbery and sentenced to prisión mayor by the Regional Trial
Court, Branch 18 (RTC) of Cebu City, in Criminal Case No. CCC-XIV-140-CEBU. Cardino asserted
that Jalosjos has not yet served his sentence. Jalosjos admitted his conviction but stated that he had
already been granted probation. Cardino countered that the RTC revoked Jalosjos’ probation in an
Order dated 19 March 1987. Jalosjos refuted Cardino and stated that the RTC issued an Order
dated 5 February 2004 declaring that Jalosjos had duly complied with the order of probation.
Jalosjos further stated that during the 2004 elections the COMELEC denied a petition for
disqualification filed against him on the same grounds.4
The COMELEC En Banc narrated the circumstances of Jalosjos’ criminal record as follows:
As backgrounder, Jalosjos and three (3) others were accused of the crime of robbery on January 22,
1969 in Cebu City. On April 30, 1970, Judge Francisco Ro. Cupin of the then Circuit Criminal Court
of Cebu City found him and his co-accused guilty of robbery and sentenced them to suffer the
penalty of prision correccional minimum to prision mayor maximum. Jalosjos appealed this decision
to the Court of Appeals but his appeal was dismissed on August 9, 1973. It was only after a lapse of
several years or more specifically on June 17, 1985 that Jalosjos filed a Petition for Probation before
the RTC Branch 18 of Cebu City which was granted by the court. But then, on motion filed by his
Probation Officer, Jalosjos’ probation was revoked by the RTC Cebu City on March 19, 1987 and the
corresponding warrant for his arrest was issued. Surprisingly, on December 19, 2003, Parole and
Probation Administrator Gregorio F. Bacolod issued a Certification attesting that respondent
Jalosjos, Jr., had already fulfilled the terms and conditions of his probation. This Certification was the
one used by respondent Jalosjos to secure the dismissal of the disqualification case filed against
him by Adasa in 2004, docketed as SPA No. 04-235.
This prompted Cardino to call the attention of the Commission on the decision of the Sandiganbayan
dated September 29, 2008 finding Gregorio F. Bacolod, former Administrator of the Parole and
Probation Administration, guilty of violating Section 3(e) of R.A. 3019 for issuing a falsified
Certification on December 19, 2003 attesting to the fact that respondent Jalosjos had fully complied
with the terms and conditions of his probation. A portion of the decision of the Sandiganbayan is
quoted hereunder:
The Court finds that the above acts of the accused gave probationer Dominador Jalosjos, Jr.,
unwarranted benefits and advantage because the subject certification, which was issued by the
accused without adequate or official support, was subsequently utilized by the said probationer as
basis of the Urgent Motion for Reconsideration and to Lift Warrant of Arrest that he filed with the
Regional Trial Court of Cebu City, which prompted the said court to issue the Order dated February
5, 2004 in Crim. Case No. CCC-XIV-140-CEBU, declaring that said probationer has complied with
the order of probation and setting aside its Order of January 16, 2004 recalling the warrant or [sic]
arrest; and that said Certification was also used by the said probationer and became the basis for
the Commission on Elections to deny in its Resolution of August 2, 2004 the petition or [sic] private
complainant James Adasa for the disqualification of the probationer from running for re-election as
Mayor of Dapitan City in the National and Local Elections of 2004.5
The COMELEC’s Rulings
On 10 May 2010, the COMELEC First Division granted Cardino’s petition and cancelled Jalosjos’
certificate of candidacy. The COMELEC First Division concluded that "Jalosjos has indeed
committed material misrepresentation in his certificate of candidacy when he declared, under oath,
that he is eligible for the office he seeks to be elected to when in fact he is not by reason of a final
judgment in a criminal case, the sentence of which he has not yet served."6 The COMELEC First
Division found that Jalosjos’ certificate of compliance of probation was fraudulently issued; thus,
Jalosjos has not yet served his sentence. The penalty imposed on Jalosjos was the indeterminate
sentence of one year, eight months and twenty days of prisión correccional as minimum, to four
years, two months and one day of prisión mayor as maximum. The COMELEC First Division ruled
that Jalosjos "is not eligible by reason of his disqualification as provided for in Section 40(a) of
Republic Act No. 7160."7
On 11 August 2010, the COMELEC En Banc denied Jalosjos’ motion for reconsideration. The
pertinent portions of the 11 August 2010 Resolution read:
With the proper revocation of Jalosjos’ earlier probation and a clear showing that he has not yet
served the terms of his sentence, there is simply no basis for Jalosjos to claim that his civil as well
as political rights have been violated. Having been convicted by final judgment,
Jalosjos is disqualified to run for an elective position or to hold public office. His proclamation as the
elected mayor in the May 10, 2010 election does not deprive the Commission of its authority to
resolve the present petition to its finality, and to oust him from the office he now wrongfully holds.
WHEREFORE, in view of the foregoing, the Motion for Reconsideration is denied for utter lack of
merit. Jalosjos is hereby OUSTED from office and ordered to CEASE and DESIST from occupying
and discharging the functions of the Office of the Mayor of Dapitan City, Zamboanga. Let the
provisions of the Local Government Code on succession apply.
SO ORDERED.8
Jalosjos filed his petition on 25 August 2010, docketed as G.R. No. 193237, while Cardino filed his
petition on 17 September 2010, docketed as G.R. No. 193536.
On 22 February 2011, this Court issued a Resolution dismissing G.R. No. 193237.
WHEREFORE, the foregoing premises considered, the Petition for Certiorari is DISMISSED. The
assailed Resolution dated May 10, 2010 and Resolution dated August 11, 2010 of the Commission
on Elections in SPA Case No. 09-076 (DC) are hereby AFFIRMED.9
Cardino filed a Manifestation on 17 March 2011 praying that this Court take judicial notice of its
resolution in G.R. No. 193237. Jalosjos filed a Motion for Reconsideration10 on 22 March 2011. On 29
March 2011, this Court resolved11 to consolidate G.R. No. 193536 with G.R. No. 193237.Jalosjos
then filed a Manifestation on 1 June 2012 which stated that "he has resigned from the position of
Mayor of the City of Dapitan effective 30 April 2012, which resignation was accepted by the
Provincial Governor of Zamboanga del Norte, Atty. Rolando E. Yebes."12 Jalosjos’ resignation was
made "in deference with the provision of the Omnibus Election Code in relation to his candidacy as
Provincial Governor of Zamboanga del Sur in May 2013."13
These cases are not rendered moot by Jalosjos’ resignation. In resolving Jalosjos’ Motion for
Reconsideration in G.R. No. 193237 and Cardino’s Petition in G.R. No. 193536, we address not only
Jalosjos’ eligibility to run for public office and the consequences of the cancellation of his certificate
of candidacy, but also COMELEC’s constitutional duty to enforce and administer all laws relating to
the conduct of elections.
The Issues
In G.R. No. 193237, Jalosjos argues that the COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it (1) ruled that Jalosjos’ probation was revoked; (2)
ruled that Jalosjos was disqualified to run as candidate for Mayor of Dapitan City, Zamboanga del
Norte; and (3) cancelled Jalosjos’ certificate of candidacy without making a finding that Jalosjos
committed a deliberate misrepresentation as to his qualifications, as Jalosjos relied in good faith
upon a previous COMELEC decision declaring him eligible for the same position from which he is
now being ousted. Finally, the Resolutions dated 10 May 2010 and 11 August 2010 were issued in
violation of the COMELEC Rules of Procedure.
In G.R. No. 193536, Cardino argues that the COMELEC acted with grave abuse of discretion
amounting to lack or excess of jurisdiction when it added to the dispositive portion of its 11 August
2010 Resolution that the provisions of the Local Government Code on succession should apply.
This Court’s Ruling
The perpetual special disqualification against Jalosjos arising from his criminal conviction by final
judgment is a material fact involving eligibility which is a proper ground for a petition under Section
78 of the Omnibus Election Code. Jalosjos’ certificate of candidacy was void from the start since he
was not eligible to run for any public office at the time he filed his certificate of candidacy. Jalosjos
was never a candidate at any time, and all votes for Jalosjos were stray votes. As a result of
Jalosjos’ certificate of candidacy being void ab initio, Cardino, as the only qualified candidate,
actually garnered the highest number of votes for the position of Mayor.
The dissenting opinions affirm with modification the 10 May 2010 Resolution of the COMELEC First
Division and the 11 August 2010 Resolution of the COMELEC En Banc. The dissenting opinions
erroneously limit the remedy against Jalosjos to disqualification under Section 68 of the Omnibus
Election Code and apply the rule on succession under the Local Government Code.
A false statement in a certificate of candidacy that a candidate is eligible to run for public office is a
false material representation which is a ground for a petition under Section 78 of the same Code.
Sections 74 and 78 read:
Sec. 74. Contents of certificate of candidacy. – The certificate of candidacy shall state that the
person filing it is announcing his candidacy for the office stated therein and that he is eligible for said
office; if for Member of the Batasang Pambansa, the province, including its component cities, highly
urbanized city or district or sector which he seeks to represent; the political party to which he
belongs; civil status; his date of birth; residence; his post office address for all election purposes; his
profession or occupation; that he will support and defend the Constitution of the Philippines and will
maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees
promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a
foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental
reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to
the best of his knowledge.
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. – A verified petition
seeking to deny due course or to cancel a certificate of candidacy may be filed by the person
exclusively on the ground that any material representation contained therein as required under
Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from
the time of the filing of the certificate of candidacy and shall be decided, after due notice and
hearing, not later than fifteen days before the election. (Emphasis supplied)
Section 74 requires the candidate to state under oath in his certificate of candidacy "that he is
eligible for said office." A candidate is eligible if he has a right to run for the public office.14 If a
candidate is not actually eligible because he is barred by final judgment in a criminal case from
running for public office, and he still states under oath in his certificate of candidacy that he is eligible
to run for public office, then the candidate clearly makes a false material representation that is a
ground for a petition under Section 78.
A sentence of prisión mayor by final judgment is a ground for disqualification under Section 40 of the
Local Government Code and under Section 12 of the Omnibus Election Code. It is also a material
fact involving the eligibility of a candidate under Sections 74 and 78 of the Omnibus Election Code.
Thus, a person can file a petition under Section 40 of the Local Government Code or under either
Section 12 or Section 78 of the Omnibus Election Code. The pertinent provisions read:
Section 40, Local Government Code:
Sec. 40. Disqualifications. - The following persons are disqualified from running for any elective local
position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an
offense punishable by one (1) year or more of imprisonment, within two (2) years after
serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-political cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to reside
abroad and continue to avail of the same right after the effectivity of this Code; and
(g) The insane or feeble-minded.
Section 12, Omnibus Election Code:
Sec. 12. Disqualifications. — Any person who has been declared by competent authority insane or
incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for
any offense for which he was sentenced to a penalty of more than eighteen months or for a crime
involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he
has been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed removed upon the
declaration by competent authority that said insanity or incompetence had been removed or after the
expiration of a period of five years from his service of sentence, unless within the same period he
again becomes disqualified.
Section 68, Omnibus Election Code:
Sec. 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is
declared by final decision by a competent court guilty of, or found by the Commission of having (a)
given money or other material consideration to influence, induce or corrupt the voters or public
officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c)
spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited,
received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated
any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be
disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any
person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to
run for any elective office under this Code, unless said person has waived his status as permanent
resident or immigrant of a foreign country in accordance with the residence requirement provided for
in the election laws.
Revised Penal Code:
Art. 27. Reclusion perpetua. — x x x
Prisión mayor and temporary disqualification. — The duration of the penalties of prisión mayor and
temporary disqualification shall be from six years and one day to twelve years, except when the
penalty of disqualification is imposed as an accessory penalty, in which case, it shall be that of the
principal penalty.
xxxx
Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. — The penalties
of perpetual or temporary absolute disqualification for public office shall produce the following
effects:
1. The deprivation of the public offices and employments which the offender may have held,
even if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular elective office or to be
elected to such office.
3. The disqualification for the offices or public employments and for the exercise of any of the
rights mentioned.
In case of temporary disqualification, such disqualification as is comprised in paragraphs 2

and 3 of this article shall last during the term of the sentence.
4. The loss of all rights to retirement pay or other pension for any office formerly held.
Art. 31. Effects of the penalties of perpetual or temporary special disqualification. — The penalties of
perpetual or temporary special disqualification for public office, profession or calling shall produce
the following effects:
1. The deprivation of the office, employment, profession or calling affected.
2. The disqualification for holding similar offices or employments either perpetually or during
the term of the sentence, according to the extent of such disqualification.
Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of
the right of suffrage. — The perpetual or temporary special disqualification for the exercise of the
right of suffrage shall deprive the offender perpetually or during the term of the sentence, according
to the nature of said penalty, of the right to vote in any popular election for any public office or to be
elected to such office. Moreover, the offender shall not be permitted to hold any public office during
the period of his disqualification.
Art. 42. Prisión mayor — its accessory penalties. — The penalty of prisión mayor shall carry with it
that of temporary absolute disqualification and that of perpetual special disqualification from the right
of suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the
same shall have been expressly remitted in the pardon. (Emphasis supplied)
The penalty of prisión mayor automatically carries with it, by operation of law,15 the accessory
penalties of temporary absolute disqualification and perpetual special disqualification. Under Article
30 of the Revised Penal Code, temporary absolute disqualification produces the effect of
"deprivation of the right to vote in any election for any popular elective office or to be elected to such
office." The duration of the temporary absolute disqualification is the same as that of the principal
penalty. On the other hand, under Article 32 of the Revised Penal Code perpetual special
disqualification means that "the offender shall not be permitted to hold any public office during the
period of his disqualification," which is perpetually. Both temporary absolute disqualification and
perpetual special disqualification constitute ineligibilities to hold elective public office. A person
suffering from these ineligibilities is ineligible to run for elective public office, and commits a false
material representation if he states in his certificate of candidacy that he is eligible to so run.
In Lacuna v. Abes,16 the Court, speaking through Justice J.B.L. Reyes, explained the import of the
accessory penalty of perpetual special disqualification:
On the first defense of respondent-appellee Abes, it must be remembered that appellee’s conviction
of a crime penalized with prisión mayor which carried the accessory penalties of temporary absolute
disqualification and perpetual special disqualification from the right of suffrage (Article 42, Revised
Penal Code); and Section 99 of the Revised Election Code disqualifies a person from voting if he
had been sentenced by final judgment to suffer one year or more of imprisonment.
The accessory penalty of temporary absolute disqualification disqualifies the convict for public office
and for the right to vote, such disqualification to last only during the term of the sentence (Article 27,
paragraph 3, & Article 30, Revised Penal Code) that, in the case of Abes, would have expired on 13
October 1961.
But this does not hold true with respect to the other accessory penalty of perpetual special
disqualification for the exercise of the right of suffrage. This accessory penalty deprives the convict
of the right to vote or to be elected to or hold public office perpetually, as distinguished from
temporary special disqualification, which lasts during the term of the sentence. Article 32, Revised
Penal Code, provides:
the period of disqualification.
The word "perpetually" and the phrase "during the term of the sentence" should be applied
distributively to their respective antecedents; thus, the word "perpetually" refers to the perpetual kind
of special disqualification, while the phrase "during the term of the sentence" refers to the temporary
special disqualification. The duration between the perpetual and the temporary (both special) are
necessarily different because the provision, instead of merging their durations into one period, states
that such duration is "according to the nature of said penalty" — which means according to whether
the penalty is the perpetual or the temporary special disqualification. (Emphasis supplied)
Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification "deprives
the convict of the right to vote or to be elected to or hold public office perpetually."
The accessory penalty of perpetual special disqualification takes effect immediately once the
judgment of conviction becomes final. The effectivity of this accessory penalty does not depend on
the duration of the principal penalty, or on whether the convict serves his jail sentence or not. The
last sentence of Article 32 states that "the offender shall not be permitted to hold any public office
during the period of his perpetual special disqualification." Once the judgment of conviction becomes
final, it is immediately executory. Any public office that the convict may be holding at the time of his
conviction becomes vacant upon finality of the judgment, and the convict becomes ineligible to run
for any elective public office perpetually. In the case of Jalosjos, he became ineligible perpetually to
hold, or to run for, any elective public office from the time his judgment of conviction became final.
Perpetual special disqualification is a ground for a petition under Section 78 of the Omnibus Election
Code because this accessory penalty is an ineligibility, which means that the convict is not eligible to
run for public office, contrary to the statement that Section 74 requires him to state under oath. As
used in Section 74, the word "eligible" means having the right to run for elective public office, that is,
having all the qualifications and none of the ineligibilities to run for public office. As this Court held in
Fermin v. Commission on Elections,17 the false material representation may refer to "qualifications or
eligibility." One who suffers from perpetual special disqualification is ineligible to run for public office.
If a person suffering from perpetual special disqualification files a certificate of candidacy stating
under oath that "he is eligible to run for (public) office," as expressly required under Section 74, then
he clearly makes a false material representation that is a ground for a petition under Section 78. As
this Court explained in Fermin:
Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on
the lack of qualifications but on a finding that the candidate made a material representation that is
false, which may relate to the qualifications required of the public office he/she is running for. It is
noted that the candidate states in his/her CoC that he/she is eligible for the office he/she seeks.
Section 78 of the OEC, therefore, is to be read in relation to the constitutional and statutory
provisions on qualifications or eligibility for public office. If the candidate subsequently states a
material representation in the CoC that is false, the COMELEC, following the law, is empowered to
deny due course to or cancel such certificate. Indeed, the Court has already likened a proceeding
under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they both deal
with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a "Section
78" petition is filed before proclamation, while a petition for quo warranto is filed after proclamation of
the winning candidate.18 (Emphasis supplied)
Conviction for robbery by final judgment with the penalty of prisión mayor, to which perpetual special
disqualification attaches by operation of law, is not a ground for a petition under Section 68 because
robbery is not one of the offenses enumerated in Section 68. Insofar as crimes are concerned,
Section 68 refers only to election offenses under the Omnibus Election Code and not to crimes
under the Revised Penal Code. For ready reference, we quote again Section 68 of the Omnibus
Election Code:
Sec. 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is
given money or other material consideration to influence, induce or corrupt the voters or public
officials performing electoral functions;
(b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an
amount in excess of that allowed by this Code; (d) solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and
261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any person who is a permanent
resident of or an immigrant to a foreign country shall not be qualified to run for any elective office
under this Code, unless said person has waived his status as permanent resident or immigrant of a
foreign country in accordance with the residence requirement provided for in the election laws.
(Emphasis supplied)
There is absolutely nothing in the language of Section 68 that will justify including the crime of
robbery as one of the offenses enumerated in this Section. All the offenses enumerated in Section
68 refer to offenses under the Omnibus Election Code. The dissenting opinion of Justice Reyes
gravely errs when it holds that Jalosjos’ conviction for the crime of robbery under the Revised Penal
Code is a ground for "a petition for disqualification under Section 68 of the OEC and not for
cancellation of COC under Section 78 thereof." This Court has already ruled that offenses punished
in laws other than in the Omnibus Election Code cannot be a ground for a petition under Section 68.
In Codilla, Sr. v. de Venecia,19 the Court declared:
The jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section
68 of the Omnibus Election Code. All other election offenses are beyond the ambit of COMELEC
jurisdiction.They are criminal and not administrative in nature. (Emphasis supplied)
A candidate for mayor during the 2010 local elections certifies under oath four statements: (1) a
statement that the candidate is a natural born or naturalized Filipino citizen; (2) a statement that the
candidate is not a permanent resident of, or immigrant to, a foreign country; (3) a statement that the
candidate is eligible for the office he seeks election; and (4) a statement of the candidate’s
allegiance to the Constitution of the Republic of the Philippines.20
We now ask: Did Jalosjos make a false statement of a material fact in his certificate of candidacy
when he stated under oath that he was eligible to run for mayor? The COMELEC and the dissenting
opinions all found that Jalosjos was not eligible to run for public office. The COMELEC concluded
that Jalosjos made a false material representation that is a ground for a petition under Section 78.
The dissenting opinion of Justice Reyes, however, concluded that the ineligibility of Jalosjos is a
disqualification which is a ground for a petition under Section 68 and not under Section 78. The
dissenting opinion of Justice Brion concluded that the ineligibility of Jalosjos is a disqualification that
is not a ground under Section 78 without, however, saying under what specific provision of law a
petition against Jalosjos can be filed to cancel his certificate of candidacy.
What is indisputably clear is that the false material representation of Jalosjos is a ground for a
petition under Section 78. However, since the false material representation arises from a crime
penalized by prisión mayor, a petition under Section 12 of the Omnibus Election Code or Section 40
of the Local Government Code can also be properly filed. The petitioner has a choice whether to
anchor his petition on Section 12 or Section 78 of the Omnibus Election Code, or on Section 40 of
the Local Government Code. The law expressly provides multiple remedies and the choice of which
remedy to adopt belongs to the petitioner.
The COMELEC properly cancelled Jalosjos’ certificate of candidacy. A void certificate of candidacy
on the ground of ineligibility that existed at the time of the filing of the certificate of candidacy can
never give rise to a valid candidacy, and much less to valid votes.21 Jalosjos’ certificate of candidacy
was cancelled because he was ineligible from the start to run for Mayor. Whether his certificate of
candidacy is cancelled before or after the elections is immaterial because the cancellation on such
ground means he was never a valid candidate from the very beginning, his certificate of candidacy
being void ab initio. Jalosjos’ ineligibility existed on the day he filed his certificate of candidacy, and
the cancellation of his certificate of candidacy retroacted to the day he filed it. Thus, Cardino ran
unopposed. There was only one qualified candidate for Mayor in the May 2010 elections – Cardino –
who received the highest number of votes.
Decisions of this Court holding that the second-placer cannot be proclaimed winner if the first-placer
is disqualified or declared ineligible22 should be limited to situations where the certificate of candidacy
of the first-placer was valid at the time of filing but subsequently had to be cancelled because of a
violation of law that took place, or a legal impediment that took effect, after the filing of the certificate
of candidacy. If the certificate of candidacy is void ab initio, then legally the person who filed such
void certificate of candidacy was never a candidate in the elections at any time. All votes for such
non-candidate are stray votes and should not be counted. Thus, such non-candidate can never be a
first-placer in the elections. If a certificate of candidacy void ab initio is cancelled on the day, or
before the day, of the election, prevailing jurisprudence holds that all votes for that candidate are
stray votes.23 If a certificate of candidacy void ab initio is cancelled one day or more after the
elections, all votes for such candidate should also be stray votes because the certificate of
candidacy is void from the very beginning. This is the more equitable and logical approach on the
effect of the cancellation of a certificate of candidacy that is void ab initio. Otherwise, a certificate of
candidacy void ab initio can operate to defeat one or more valid certificates of candidacy for the
same position.
Even without a petition under either Section 12 or Section 78 of the Omnibus Election Code, or
under Section 40 of the Local Government Code, the COMELEC is under a legal duty to cancel the
certificate of candidacy of anyone suffering from the accessory penalty of perpetual special
disqualification to run for public office by virtue of a final judgment of conviction. The final judgment
of conviction is notice to the COMELEC of the disqualification of the convict from running for public
office. The law itself bars the convict from running for public office, and the disqualification is part of
the final judgment of conviction. The final judgment of the court is addressed not only to the
Executive branch, but also to other government agencies tasked to implement the final judgment
under the law.
Whether or not the COMELEC is expressly mentioned in the judgment to implement the
disqualification, it is assumed that the portion of the final judgment on disqualification to run for
elective public office is addressed to the COMELEC because under the Constitution the COMELEC
is duty bound to "enforce and administer all laws and regulations relative to the conduct of an
election."24 The disqualification of a convict to run for public office under the Revised Penal Code, as
affirmed by final judgment of a competent court, is part of the enforcement and administration of "all
laws" relating to the conduct of elections.
To allow the COMELEC to wait for a person to file a petition to cancel the certificate of candidacy of
one suffering from perpetual special disqualification will result in the anomaly that these cases so
grotesquely exemplify. Despite a prior perpetual special disqualification, Jalosjos was elected and
served twice as mayor. The COMELEC will be grossly remiss in its constitutional duty to "enforce
and administer all laws" relating to the conduct of elections if it does not motu proprio bar from
running for public office those suffering from perpetual special disqualification by virtue of a final
judgment.
WHEREFORE, the Motion for Reconsideration in G.R. No. 193237 is DENIED, and the Petition in
G.R. No. 193536 is GRANTED. The Resolutions dated 10 May 2010 and 11 August 2010 of the
COMELEC First Division and the COMELEC En Bane, respectively, in SPA No. 09-076 (DC), are
AFFIRMED with the MODIFICATION that Agapito J. Cardino ran unopposed in the May 2010
elections and thus received the highest number of votes for Mayor. The COMELEC En Bane is
DIRECTED to constitute a Special City Board of Canvassers to proclaim Agapito J. Cardino as the
duly elected Mayor of Dapitan City, Zamboanga del Norte.
Let copies of this Decision be furnished the Secretaries of the Department of Justice and the
Department of Interior and Local Government so they can cause the arrest of, and enforce the jail
sentence on, Dominador G. Jalosjos, Jr. due to his conviction for the crime of robbery in a final
judgment issued by the Regional Trial Court (Branch 18) of Cebu City in Criminal Case No. CCC-
XIV-140-CEBU.
SO ORDERED.
89

SUPREME COURT
Manila
EN BANC
G.R. No. 195649 April 16, 2013
CASAN MACODE MAQUILING, Petitioner,

vs.
COMMISSION ON ELECTIONS, ROMMEL ARNADO y CAGOCO, LINOG G.
BALUA, Respondents.
DECISION
SERENO, CJ.:
THE CASE
This is a Petition for Certiorari ender Rule 64 in conjunction with Rule 65 of the Rules of Court to
review the Resolutions of the Commission on Elections (COMELEC). The Resolution1 in SPA No.
10-1 09(DC) of the COMELEC First Division dated 5 October 201 0 is being assailed for applying
Section 44 of the Local Government Code while the Resolution2 of the COMELEC En Banc dated 2
February 2011 is being questioned for finding that respondent Rommel Arnado y Cagoco
(respondent Arnado/Arnado) is solely a Filipino citizen qualified to run for public office despite his
continued use of a U.S. passport.
FACTS
Respondent Arnado is a natural born Filipino citizen.3 However, as a consequence of his subsequent
naturalization as a citizen of the United States of America, he lost his Filipino citizenship. Arnado
applied for repatriation under Republic Act (R.A.) No. 9225 before the Consulate General of the
Philippines in San Franciso, USA and took the Oath of Allegiance to the Republic of the Philippines
on 10 July 2008.4 On the same day an Order of Approval of his Citizenship Retention and Re-
acquisition was issued in his favor.5
The aforementioned Oath of Allegiance states:

I, Rommel Cagoco Arnado, solemnly swear that I will support and defend the Constitution of the
Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted
authorities of the Philippines and I hereby declare that I recognize and accept the supreme authority
of the Philippines and will maintain true faith and allegiance thereto; and that I impose this obligation
upon myself voluntarily without mental reservation or purpose of evasion.6
On 3 April 2009 Arnado again took his Oath of Allegiance to the Republic and executed an Affidavit
of Renunciation of his foreign citizenship, which states:
I, Rommel Cagoco Arnado, do solemnly swear that I absolutely and perpetually renounce all
allegiance and fidelity to the UNITED STATES OF AMERICA of which I am a citizen, and I divest
myself of full employment of all civil and political rights and privileges of the United States of
America.
I solemnly swear that all the foregoing statement is true and correct to the best of my knowledge and
belief.7
On 30 November 2009, Arnado filed his Certificate of Candidacy for Mayor of Kauswagan, Lanao del
Norte, which contains, among others, the following statements:
I am a natural born Filipino citizen / naturalized Filipino citizen.
I am not a permanent resident of, or immigrant to, a foreign country.
I am eligible for the office I seek to be elected to.
I will support and defend the Constitution of the Republic of the Philippines and will maintain true
faith and allegiance thereto. I will obey the laws, legal orders and decrees promulgated by the duly
constituted authorities.
I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion.8
On 28 April 2010, respondent Linog C. Balua (Balua), another mayoralty candidate, filed a petition to
disqualify Arnado and/or to cancel his certificate of candidacy for municipal mayor of Kauswagan,
Lanao del Norte in connection with the 10 May 2010 local and national elections.9
Respondent Balua contended that Arnado is not a resident of Kauswagan, Lanao del Norte and that
he is a foreigner, attaching thereto a certification issued by the Bureau of Immigration dated 23 April
2010 indicating the nationality of Arnado as "USA-American."10To further bolster his claim of
Arnado’s US citizenship, Balua presented in his Memorandum a computer-generated travel
record11 dated 03 December 2009 indicating that Arnado has been using his US Passport No.
057782700 in entering and departing the Philippines. The said record shows that Arnado left the
country on 14 April 2009 and returned on 25 June 2009, and again departed on 29 July 2009,
arriving back in the Philippines on 24 November 2009.
Balua likewise presented a certification from the Bureau of Immigration dated 23 April 2010,
certifying that the name "Arnado, Rommel Cagoco" appears in the available Computer
Database/Passenger manifest/IBM listing on file as of 21 April 2010, with the following pertinent
travel records:
DATE OF Arrival : 01/12/2010

NATIONALITY : USA-AMERICAN
PASSPORT : 057782700
DATE OF Arrival : 03/23/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 05778270012
On 30 April 2010, the COMELEC (First Division) issued an Order13 requiring the respondent to
personally file his answer and memorandum within three (3) days from receipt thereof.
After Arnado failed to answer the petition, Balua moved to declare him in default and to present
evidence ex-parte.
Neither motion was acted upon, having been overtaken by the 2010 elections where Arnado
garnered the highest number of votes and was subsequently proclaimed as the winning candidate
for Mayor of Kauswagan, Lanao del Norte.
It was only after his proclamation that Arnado filed his verified answer, submitting the following
documents as evidence:14
1. Affidavit of Renunciation and Oath of Allegiance to the Republic of the Philippines dated
03 April 2009;
2. Joint-Affidavit dated 31 May 2010 of Engr. Virgil Seno, Virginia Branzuela, Leoncio
Daligdig, and Jessy Corpin, all neighbors of Arnado, attesting that Arnado is a long-time
resident of Kauswagan and that he has been conspicuously and continuously residing in his
family’s ancestral house in Kauswagan;
3. Certification from the Punong Barangay of Poblacion, Kauswagan, Lanao del Norte dated
03 June 2010 stating that Arnado is a bona fide resident of his barangay and that Arnado
went to the United States in 1985 to work and returned to the Philippines in 2009;
4. Certification dated 31 May 2010 from the Municipal Local Government Operations Office
of Kauswagan stating that Dr. Maximo P. Arnado, Sr. served as Mayor of Kauswagan, from
January 1964 to June 1974 and from 15 February 1979 to 15 April 1986; and
5. Voter Certification issued by the Election Officer of Kauswagan certifying that Arnado has
been a registered voter of Kauswagan since 03 April 2009.
THE RULING OF THE COMELEC FIRST DIVISION
Instead of treating the Petition as an action for the cancellation of a certificate of candidacy based on
misrepresentation,15 the COMELEC First Division considered it as one for disqualification. Balua’s
contention that Arnado is a resident of the United States was dismissed upon the finding that "Balua
failed to present any evidence to support his contention,"16 whereas the First Division still could "not
conclude that Arnado failed to meet the one-year residency requirement under the Local
Government Code."17
In the matter of the issue of citizenship, however, the First Division disagreed with Arnado’s claim
that he is a Filipino citizen.18
We find that although Arnado appears to have substantially complied with the requirements of R.A.
No. 9225, Arnado’s act of consistently using his US passport after renouncing his US citizenship on
03 April 2009 effectively negated his Affidavit of Renunciation.
xxxx
Arnado’s continued use of his US passport is a strong indication that Arnado had no real intention to
renounce his US citizenship and that he only executed an Affidavit of Renunciation to enable him to
run for office. We cannot turn a blind eye to the glaring inconsistency between Arnado’s unexplained
use of a US passport six times and his claim that he re-acquired his Philippine citizenship and
renounced his US citizenship. As noted by the Supreme Court in the Yu case, "a passport is defined
as an official document of identity and nationality issued to a person intending to travel or sojourn in
foreign countries." Surely, one who truly divested himself of US citizenship would not continue to
avail of privileges reserved solely for US nationals.19
The dispositive portion of the Resolution rendered by the COMELEC
First Division reads:
WHEREFORE, in view of the foregoing, the petition for disqualification and/or to cancel the
certificate of candidacy of Rommel C. Arnado is hereby GRANTED. Rommel C. Arnado’s
proclamation as the winning candidate for Municipal Mayor of Kauswagan, Lanao del Nore is hereby
ANNULLED. Let the order of succession under Section 44 of the Local Government Code of 1991
take effect.20
The Motion for Reconsideration and

the Motion for Intervention
Arnado sought reconsideration of the resolution before the COMELEC En Banc on the ground that
"the evidence is insufficient to justify the Resolution and that the said Resolution is contrary to
law."21 He raised the following contentions:22
1. The finding that he is not a Filipino citizen is not supported by the evidence consisting of
his Oath of Allegiance and the Affidavit of Renunciation, which show that he has substantially
complied with the requirements of R.A. No. 9225;
2. The use of his US passport subsequent to his renunciation of his American citizenship is
not tantamount to a repudiation of his Filipino citizenship, as he did not perform any act to
swear allegiance to a country other than the Philippines;
3. He used his US passport only because he was not informed of the issuance of his
Philippine passport, and that he used his Philippine passport after he obtained it;
4. Balua’s petition to cancel the certificate of candidacy of Arnado was filed out of time, and
the First Division’s treatment of the petition as one for disqualification constitutes grave
abuse of discretion amounting to excess of jurisdiction;23
5. He is undoubtedly the people’s choice as indicated by his winning the elections;

6. His proclamation as the winning candidate ousted the COMELEC from jurisdiction over
the case; and
7. The proper remedy to question his citizenship is through a petition for quo warranto, which
should have been filed within ten days from his proclamation.
Petitioner Casan Macode Maquiling (Maquiling), another candidate for mayor of Kauswagan, and
who garnered the second highest number of votes in the 2010 elections, intervened in the case and
filed before the COMELEC En Banc a Motion for Reconsideration together with an Opposition to
Arnado’s Amended Motion for Reconsideration. Maquiling argued that while the First Division
correctly disqualified Arnado, the order of succession under Section 44 of the Local Government
Code is not applicable in this case. Consequently, he claimed that the cancellation of Arnado’s
candidacy and the nullification of his proclamation, Maquiling, as the legitimate candidate who
obtained the highest number of lawful votes, should be proclaimed as the winner.
Maquiling simultaneously filed his Memorandum with his Motion for Intervention and his Motion for
Reconsideration. Arnado opposed all motions filed by Maquiling, claiming that intervention is
prohibited after a decision has already been rendered, and that as a second-placer, Maquiling
undoubtedly lost the elections and thus does not stand to be prejudiced or benefitted by the final
adjudication of the case.
RULING OF THE COMELEC EN BANC
In its Resolution of 02 February 2011, the COMELEC En Banc held that under Section 6 of Republic
Act No. 6646, the Commission "shall continue with the trial and hearing of the action, inquiry or
protest even after the proclamation of the candidate whose qualifications for office is questioned."
As to Maquiling’s intervention, the COMELEC En Banc also cited Section 6 of R.A. No. 6646 which
allows intervention in proceedings for disqualification even after elections if no final judgment has
been rendered, but went on further to say that Maquiling, as the second placer, would not be
prejudiced by the outcome of the case as it agrees with the dispositive portion of the Resolution of
the First Division allowing the order of succession under Section 44 of the Local Government Code
to take effect.
The COMELEC En Banc agreed with the treatment by the First Division of the petition as one for
disqualification, and ruled that the petition was filed well within the period prescribed by law,24 having
been filed on 28 April 2010, which is not later than 11 May 2010, the date of proclamation.
However, the COMELEC En Banc reversed and set aside the ruling of the First Division and granted
Arnado’s Motion for Reconsideration, on the following premises:
First:
By renouncing his US citizenship as imposed by R.A. No. 9225, the respondent embraced his
Philippine citizenship as though he never became a citizen of another country. It was at that time,
April 3, 2009, that the respondent became a pure Philippine Citizen again.
xxxx
The use of a US passport … does not operate to revert back his status as a dual citizen prior to his
renunciation as there is no law saying such. More succinctly, the use of a US passport does not
operate to "un-renounce" what he has earlier on renounced. The First Division’s reliance in the case
of In Re: Petition for Habeas Corpus of Willy Yu v. Defensor-Santiago, et al. is misplaced. The
petitioner in the said case is a naturalized citizen who, after taking his oath as a naturalized Filipino,
applied for the renewal of his Portuguese passport. Strict policy is maintained in the conduct of
citizens who are not natural born, who acquire their citizenship by choice, thus discarding their
original citizenship. The Philippine State expects strict conduct of allegiance to those who choose to
be its citizens. In the present case, respondent is not a naturalized citizen but a natural born citizen
who chose greener pastures by working abroad and then decided to repatriate to supposedly help in
the progress of Kauswagan. He did not apply for a US passport after his renunciation. Thus the
mentioned case is not on all fours with the case at bar.
xxxx
The respondent presented a plausible explanation as to the use of his US passport. Although he
applied for a Philippine passport, the passport was only issued on June 18, 2009. However, he was
not notified of the issuance of his Philippine passport so that he was actually able to get it about
three (3) months later. Yet as soon as he was in possession of his Philippine passport, the
respondent already used the same in his subsequent travels abroad. This fact is proven by the
respondent’s submission of a certified true copy of his passport showing that he used the same for
his travels on the following dates: January 31, 2010, April 16, 2010, May 20, 2010, January 12,
2010, March 31, 2010 and June 4, 2010. This then shows that the use of the US passport was
because to his knowledge, his Philippine passport was not yet issued to him for his use. As probably
pressing needs might be undertaken, the respondent used whatever is within his control during that
time.25
In his Separate Concurring Opinion, COMELEC Chairman Sixto Brillantes cited that the use of
foreign passport is not one of the grounds provided for under Section 1 of Commonwealth Act No.
63 through which Philippine citizenship may be lost.
"The application of the more assimilative principle of continuity of citizenship is more appropriate in
this case. Under said principle, once a person becomes a citizen, either by birth or naturalization, it
is assumed that he desires to continue to be a citizen, and this assumption stands until he voluntarily
denationalizes or expatriates himself. Thus, in the instant case respondent after reacquiring his
Philippine citizenship should be presumed to have remained a Filipino despite his use of his
American passport in the absence of clear, unequivocal and competent proof of expatriation.
Accordingly, all doubts should be resolved in favor of retention of citizenship."26
On the other hand, Commissioner Rene V. Sarmiento dissented, thus:
Respondent evidently failed to prove that he truly and wholeheartedly abandoned his allegiance to
the United States. The latter’s continued use of his US passport and enjoyment of all the privileges
of a US citizen despite his previous renunciation of the afore-mentioned citizenship runs contrary to
his declaration that he chose to retain only his Philippine citizenship. Respondent’s submission with
the twin requirements was obviously only for the purpose of complying with the requirements for
running for the mayoralty post in connection with the May 10, 2010 Automated National and Local
Elections.
Qualifications for elective office, such as citizenship, are continuing requirements; once any of them
is lost during his incumbency, title to the office itself is deemed forfeited. If a candidate is not a
citizen at the time he ran for office or if he lost his citizenship after his election to office, he is
disqualified to serve as such. Neither does the fact that respondent obtained the plurality of votes for
the mayoralty post cure the latter’s failure to comply with the qualification requirements regarding his
citizenship.
Since a disqualified candidate is no candidate at all in the eyes of the law, his having received the
highest number of votes does not validate his election. It has been held that where a petition for
disqualification was filed before election against a candidate but was adversely resolved against him
after election, his having obtained the highest number of votes did not make his election valid. His
ouster from office does not violate the principle of vox populi suprema est lex because the
application of the constitutional and statutory provisions on disqualification is not a matter of
popularity. To apply it is to breath[e] life to the sovereign will of the people who expressed it when
they ratified the Constitution and when they elected their representatives who enacted the law.27
THE PETITION BEFORE THE COURT
Maquiling filed the instant petition questioning the propriety of declaring Arnado qualified to run for
public office despite his continued use of a US passport, and praying that Maquiling be proclaimed
as the winner in the 2010 mayoralty race in Kauswagan, Lanao del Norte.
Ascribing both grave abuse of discretion and reversible error on the part of the COMELEC En Banc
for ruling that Arnado is a Filipino citizen despite his continued use of a US passport, Maquiling now
seeks to reverse the finding of the COMELEC En Banc that Arnado is qualified to run for public
office.
Corollary to his plea to reverse the ruling of the COMELEC En Banc or to affirm the First Division’s
disqualification of Arnado, Maquiling also seeks the review of the applicability of Section 44 of the
Local Government Code, claiming that the COMELEC committed reversible error in ruling that "the
succession of the vice mayor in case the respondent is disqualified is in order."
There are three questions posed by the parties before this Court which will be addressed seriatim as
the subsequent questions hinge on the result of the first.
The first question is whether or not intervention is allowed in a disqualification case.
The second question is whether or not the use of a foreign passport after renouncing foreign
citizenship amounts to undoing a renunciation earlier made.
A better framing of the question though should be whether or not the use of a foreign passport after
renouncing foreign citizenship affects one’s qualifications to run for public office.
The third question is whether or not the rule on succession in the Local Government Code is
applicable to this case.
OUR RULING
Intervention of a rival candidate in a

disqualification case is proper when
there has not yet been any
Petitioner Casan Macode Maquiling intervened at the stage when respondent Arnado filed a Motion
for Reconsideration of the First Division Resolution before the COMELEC En Banc. As the candidate
who garnered the second highest number of votes, Maquiling contends that he has an interest in the
disqualification case filed against Arnado, considering that in the event the latter is disqualified, the
votes cast for him should be considered stray and the second-placer should be proclaimed as the
winner in the elections.
It must be emphasized that while the original petition before the COMELEC is one for cancellation of
the certificate of candidacy and / or disqualification, the COMELEC First Division and the COMELEC
En Banc correctly treated the petition as one for disqualification.
The effect of a disqualification case is enunciated in Section 6 of R.A. No. 6646:
Sec. 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to
be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such election, the Court or Commission shall
continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is strong.
Mercado v. Manzano28
clarified the right of intervention in a disqualification case. In that case, the Court said:
That petitioner had a right to intervene at that stage of the proceedings for the disqualification
against private respondent is clear from Section 6 of R.A. No. 6646, otherwise known as the
Electoral Reforms Law of 1987, which provides: Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If
for any reason a candidate is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election, the Court or Commission
shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the
proclamation of such candidate whenever the evidence of guilt is strong. Under this provision,
intervention may be allowed in proceedings for disqualification even after election if there has yet
been no final judgment rendered.29
Clearly then, Maquiling has the right to intervene in the case. The fact that the COMELEC En Banc
has already ruled that Maquiling has not shown that the requisites for the exemption to the second-
placer rule set forth in Sinsuat v. COMELEC30 are present and therefore would not be prejudiced by
the outcome of the case, does not deprive Maquiling of the right to elevate the matter before this
Court.
Arnado’s claim that the main case has attained finality as the original petitioner and respondents
therein have not appealed the decision of the COMELEC En Banc, cannot be sustained. The
elevation of the case by the intervenor prevents it from attaining finality. It is only after this Court has
ruled upon the issues raised in this instant petition that the disqualification case originally filed by
Balua against Arnado will attain finality.
The use of foreign passport after renouncing one’s foreign citizenship is a positive and
voluntary act of representation as to one’s nationality and citizenship; it does not divest
Filipino citizenship regained by repatriation but it recants the Oath of Renunciation required
to qualify one to run for an elective position.
Section 5(2) of The Citizenship Retention and Re-acquisition Act of 2003 provides:
Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil and political
rights and be subject to all attendant liabilities and responsibilities under existing laws of the
Philippines and the following conditions:
xxxx
(2)Those seeking elective public in the Philippines shall meet the qualification for holding such public
office as required by the Constitution and existing laws and, at the time of the filing of the certificate
of candidacy, make a personal and sworn renunciation of any and all foreign before any public
officer authorized to administer an oath.
x x x31
Rommel Arnado took all the necessary steps to qualify to run for a public office. He took the Oath of
Allegiance and renounced his foreign citizenship. There is no question that after performing these
twin requirements required under Section 5(2) of R.A. No. 9225 or the Citizenship Retention and Re-
acquisition Act of 2003, he became eligible to run for public office.
Indeed, Arnado took the Oath of Allegiance not just only once but twice: first, on 10 July 2008 when
he applied for repatriation before the Consulate General of the Philippines in San Francisco, USA,
and again on 03 April 2009 simultaneous with the execution of his Affidavit of Renunciation. By
taking the Oath of Allegiance to the Republic, Arnado re-acquired his Philippine citizenship. At the
time, however, he likewise possessed American citizenship. Arnado had therefore become a dual
citizen.
After reacquiring his Philippine citizenship, Arnado renounced his American citizenship by executing
an Affidavit of Renunciation, thus completing the requirements for eligibility to run for public office.
By renouncing his foreign citizenship, he was deemed to be solely a Filipino citizen, regardless of
the effect of such renunciation under the laws of the foreign country.32
However, this legal presumption does not operate permanently and is open to attack when, after
renouncing the foreign citizenship, the citizen performs positive acts showing his continued
possession of a foreign citizenship.33
Arnado himself subjected the issue of his citizenship to attack when, after renouncing his foreign
citizenship, he continued to use his US passport to travel in and out of the country before filing his
certificate of candidacy on 30 November 2009. The pivotal question to determine is whether he was
solely and exclusively a Filipino citizen at the time he filed his certificate of candidacy, thereby
rendering him eligible to run for public office.
Between 03 April 2009, the date he renounced his foreign citizenship, and 30 November 2009, the
date he filed his COC, he used his US passport four times, actions that run counter to the affidavit of
renunciation he had earlier executed. By using his foreign passport, Arnado positively and voluntarily
represented himself as an American, in effect declaring before immigration authorities of both
countries that he is an American citizen, with all attendant rights and privileges granted by the United
States of America.
The renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time,
only to be violated the next day. It requires an absolute and perpetual renunciation of the foreign
citizenship and a full divestment of all civil and political rights granted by the foreign country which
granted the citizenship.
Mercado v. Manzano34 already hinted at this situation when the Court declared:
His declarations will be taken upon the faith that he will fulfill his undertaking made under oath.
Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine
citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-Santiago, we
sustained the denial of entry into the country of petitioner on the ground that, after taking his oath as
a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in
commercial documents executed abroad that he was a Portuguese national. A similar sanction can
be taken against anyone who, in electing Philippine citizenship, renounces his foreign nationality, but
subsequently does some act constituting renunciation of his Philippine citizenship.
While the act of using a foreign passport is not one of the acts enumerated in Commonwealth Act
No. 63 constituting renunciation and loss of Philippine citizenship,35 it is nevertheless an act which
repudiates the very oath of renunciation required for a former Filipino citizen who is also a citizen of
another country to be qualified to run for a local elective position.
When Arnado used his US passport on 14 April 2009, or just eleven days after he renounced his
American citizenship, he recanted his Oath of Renunciation36 that he "absolutely and perpetually
renounce(s) all allegiance and fidelity to the UNITED STATES OF AMERICA"37 and that he
"divest(s) himself of full employment of all civil and political rights and privileges of the United States
of America."38
We agree with the COMELEC En Banc that such act of using a foreign passport does not divest
Arnado of his Filipino citizenship, which he acquired by repatriation. However, by representing
himself as an American citizen, Arnado voluntarily and effectively reverted to his earlier status as a
dual citizen. Such reversion was not retroactive; it took place the instant Arnado represented himself
as an American citizen by using his US passport.
This act of using a foreign passport after renouncing one’s foreign citizenship is fatal to Arnado’s bid
for public office, as it effectively imposed on him a disqualification to run for an elective local position.
Arnado’s category of dual citizenship is that by which foreign citizenship is acquired through a
positive act of applying for naturalization. This is distinct from those considered dual citizens by
virtue of birth, who are not required by law to take the oath of renunciation as the mere filing of the
certificate of candidacy already carries with it an implied renunciation of foreign citizenship.39 Dual
citizens by naturalization, on the other hand, are required to take not only the Oath of Allegiance to
the Republic of the Philippines but also to personally renounce foreign citizenship in order to qualify
as a candidate for public office.
By the time he filed his certificate of candidacy on 30 November 2009, Arnado was a dual citizen
enjoying the rights and privileges of Filipino and American citizenship. He was qualified to vote, but
by the express disqualification under Section 40(d) of the Local Government Code,40 he was not
qualified to run for a local elective position.
In effect, Arnado was solely and exclusively a Filipino citizen only for a period of eleven days, or
from 3 April 2009 until 14 April 2009, on which date he first used his American passport after
renouncing his American citizenship.
This Court has previously ruled that:
Qualifications for public office are continuing requirements and must be possessed not only at the
time of appointment or election or assumption of office but during the officer's entire tenure. Once
any of the required qualifications is lost, his title may be seasonably challenged. x x x.41
The citizenship requirement for elective public office is a continuing one. It must be possessed not
just at the time of the renunciation of the foreign citizenship but continuously. Any act which violates
the oath of renunciation opens the citizenship issue to attack.
We agree with the pronouncement of the COMELEC First Division that "Arnado’s act of consistently
using his US passport effectively negated his "Affidavit of Renunciation."42 This does not mean, that
he failed to comply with the twin requirements under R.A. No. 9225, for he in fact did.
It was after complying with the requirements that he performed positive acts which effectively
disqualified him from running for an elective public office pursuant to Section 40(d) of the Local
Government Code of 1991.
The purpose of the Local Government Code in disqualifying dual citizens from running for any
elective public office would be thwarted if we were to allow a person who has earlier renounced his
foreign citizenship, but who subsequently represents himself as a foreign citizen, to hold any public
office.
Arnado justifies the continued use of his US passport with the explanation that he was not notified of
the issuance of his Philippine passport on 18 June 2009, as a result of which he was only able to
obtain his Philippine passport three (3) months later.43
The COMELEC En Banc differentiated Arnado from Willy Yu, the Portuguese national who sought
naturalization as a Filipino citizen and later applied for the renewal of his Portuguese passport. That
Arnado did not apply for a US passport after his renunciation does not make his use of a US
passport less of an act that violated the Oath of Renunciation he took. It was still a positive act of
representation as a US citizen before the immigration officials of this country.
The COMELEC, in ruling favorably for Arnado, stated "Yet, as soon as he was in possession of his
Philippine passport, the respondent already used the same in his subsequent travels abroad."44 We
cannot agree with the COMELEC. Three months from June is September. If indeed, Arnado used
his Philippine passport as soon as he was in possession of it, he would not have used his US
passport on 24 November 2009.
Besides, Arnado’s subsequent use of his Philippine passport does not correct the fact that after he
renounced his foreign citizenship and prior to filing his certificate of candidacy, he used his US
passport. In the same way that the use of his foreign passport does not undo his Oath of
Renunciation, his subsequent use of his Philippine passport does not undo his earlier use of his US
passport.
Citizenship is not a matter of convenience. It is a badge of identity that comes with attendant civil
and political rights accorded by the state to its citizens. It likewise demands the concomitant duty to
maintain allegiance to one’s flag and country. While those who acquire dual citizenship by choice are
afforded the right of suffrage, those who seek election or appointment to public office are required to
renounce their foreign citizenship to be deserving of the public trust. Holding public office demands
full and undivided allegiance to the Republic and to no other.
We therefore hold that Arnado, by using his US passport after renouncing his American citizenship,
has recanted the same Oath of Renunciation he took. Section 40(d) of the Local Government Code
applies to his situation. He is disqualified not only from holding the public office but even from
becoming a candidate in the May 2010 elections.
We now resolve the next issue.
Resolving the third issue necessitates revisiting Topacio v. Paredes45 which is the jurisprudential
spring of the principle that a second-placer cannot be proclaimed as the winner in an election
contest. This doctrine must be re-examined and its soundness once again put to the test to address
the ever-recurring issue that a second-placer who loses to an ineligible candidate cannot be
proclaimed as the winner in the elections.
The Facts of the case are as follows:
On June 4, 1912, a general election was held in the town of Imus, Province of Cavite, to fill the office
of municipal president. The petitioner, Felipe Topacio, and the respondent, Maximo Abad, were
opposing candidates for that office. Topacio received 430 votes, and Abad 281. Abad contested the
election upon the sole ground that Topacio was ineligible in that he was reelected the second time to
the office of the municipal president on June 4, 1912, without the four years required by Act No.
2045 having intervened.46
Abad thus questioned the eligibility of To p a c i o on the basis of a statutory prohibition for seeking a
second re-election absent the four year interruption.
The often-quoted phrase in Topacio v. Paredes is that "the wreath of victory cannot be transferred
from an ineligible candidate to any other candidate when the sole question is the eligibility of the one
receiving a plurality of the legally cast ballots."47
This phrase is not even the ratio decidendi; it is a mere obiter dictum. The Court was comparing "the
effect of a decision that a candidate is not entitled to the office because of fraud or irregularities in
the elections x x x with that produced by declaring a person ineligible to hold such an office."
The complete sentence where the phrase is found is part of a comparison and contrast between the
two situations, thus:
Again, the effect of a decision that a candidate is not entitled to the office because of fraud or
irregularities in the elections is quite different from that produced by declaring a person ineligible to
hold such an office. In the former case the court, after an examination of the ballots may find that
some other person than the candidate declared to have received a plurality by the board of
canvassers actually received the greater number of votes, in which case the court issues its
mandamus to the board of canvassers to correct the returns accordingly; or it may find that the
manner of holding the election and the returns are so tainted with fraud or illegality that it cannot be
determined who received a plurality of the legally cast ballots. In the latter case, no question as to
the correctness of the returns or the manner of casting and counting the ballots is before the
deciding power, and generally the only result can be that the election fails entirely. In the former, we
have a contest in the strict sense of the word, because of the opposing parties are striving for
supremacy. If it be found that the successful candidate (according to the board of canvassers)
obtained a plurality in an illegal manner, and that another candidate was the real victor, the former
must retire in favor of the latter. In the other case, there is not, strictly speaking, a contest, as the
wreath of victory cannot be transferred from an ineligible candidate to any other candidate when the
sole question is the eligibility of the one receiving a plurality of the legally cast ballots. In the one
case the question is as to who received a plurality of the legally cast ballots; in the other, the
question is confined to the personal character and circumstances of a single individual.48 (Emphasis
supplied)
Note that the sentence where the phrase is found starts with "In the other case, there is not, strictly
speaking, a contest" in contrast to the earlier statement, "In the former, we have a contest in the
strict sense of the word, because of the opposing parties are striving for supremacy."
The Court in Topacio v. Paredes cannot be said to have held that "the wreath of victory cannot be
transferred from an ineligible candidate to any other candidate when the sole question is the
eligibility of the one receiving a plurality of the legally cast ballots."
A proper reading of the case reveals that the ruling therein is that since the Court of First Instance is
without jurisdiction to try a disqualification case based on the eligibility of the person who obtained
the highest number of votes in the election, its jurisdiction being confined "to determine which of the
contestants has been duly elected" the judge exceeded his jurisdiction when he "declared that no
one had been legally elected president of the municipality of Imus at the general election held in that
town on 4 June 1912" where "the only question raised was whether or not Topacio was eligible to be
elected and to hold the office of municipal president."
The Court did not rule that Topacio was disqualified and that Abad as the second placer cannot be
proclaimed in his stead. The Court therein ruled:
For the foregoing reasons, we are of the opinion and so hold that the respondent judge exceeded his
jurisdiction in declaring in those proceedings that no one was elected municipal president of the
municipality of Imus at the last general election; and that said order and all subsequent proceedings
based thereon are null and void and of no effect; and, although this decision is rendered on
respondents' answer to the order to show cause, unless respondents raised some new and
additional issues, let judgment be entered accordingly in 5 days, without costs. So ordered.49
On closer scrutiny, the phrase relied upon by a host of decisions does not even have a legal basis to
stand on. It was a mere pronouncement of the Court comparing one process with another and
explaining the effects thereof. As an independent statement, it is even illogical.
Let us examine the statement:
"x x x the wreath of victory cannot be transferred from an ineligible candidate to any other candidate
when the sole question is the eligibility of the one receiving a plurality of the legally cast ballots."
What prevents the transfer of the wreath of victory from the ineligible candidate to another
candidate?
When the issue being decided upon by the Court is the eligibility of the one receiving a plurality of
the legally cast ballots and ineligibility is thereafter established, what stops the Court from adjudging
another eligible candidate who received the next highest number of votes as the winner and
bestowing upon him that "wreath?"
An ineligible candidate who receives the highest number of votes is a wrongful winner. By express
legal mandate, he could not even have been a candidate in the first place, but by virtue of the lack of
material time or any other intervening circumstances, his ineligibility might not have been passed
upon prior to election date. Consequently, he may have had the opportunity to hold himself out to the
electorate as a legitimate and duly qualified candidate. However, notwithstanding the outcome of the
elections, his ineligibility as a candidate remains unchanged. Ineligibility does not only pertain to his
qualifications as a candidate but necessarily affects his right to hold public office. The number of
ballots cast in his favor cannot cure the defect of failure to qualify with the substantive legal
requirements of eligibility to run for public office.
The popular vote does not cure the

ineligibility of a candidate.
The ballot cannot override the constitutional and statutory requirements for qualifications and
disqualifications of candidates. When the law requires certain qualifications to be possessed or that
certain disqualifications be not possessed by persons desiring to serve as elective public officials,
those qualifications must be met before one even becomes a candidate. When a person who is not
qualified is voted for and eventually garners the highest number of votes, even the will of the
electorate expressed through the ballot cannot cure the defect in the qualifications of the candidate.
To rule otherwise is to trample upon and rent asunder the very law that sets forth the qualifications
and disqualifications of candidates. We might as well write off our election laws if the voice of the
electorate is the sole determinant of who should be proclaimed worthy to occupy elective positions in
our republic.
This has been, in fact, already laid down by the Court in Frivaldo v. COMELEC50 when we
pronounced:
x x x. The fact that he was elected by the people of Sorsogon does not excuse this patent violation
of the salutary rule limiting public office and employment only to the citizens of this country. The
qualifications prescribed for elective office cannot be erased by the electorate alone.
The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially
if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule
requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the
Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and
renouncing all fealty and fidelity to any other state.51 (Emphasis supplied)
This issue has also been jurisprudentially clarified in Velasco v. COMELEC52 where the Court ruled
that the ruling in Quizon and Saya-ang cannot be interpreted without qualifications lest "Election
victory x x x becomes a magic formula to bypass election eligibility requirements."53
We have ruled in the past that a candidate’s victory in the election may be considered a sufficient
basis to rule in favor of the candidate sought to be disqualified if the main issue involves defects in
the candidate’s certificate of candidacy. We said that while provisions relating to certificates of
candidacy are mandatory in terms, it is an established rule of interpretation as regards election laws,
that mandatory provisions requiring certain steps before elections will be construed as directory after
the elections, to give effect to the will of the people. We so ruled in Quizon v. COMELEC and Saya-
ang v. COMELEC:
The present case perhaps presents the proper time and opportunity to fine-tune our above ruling.
We say this with the realization that a blanket and unqualified reading and application of this ruling
can be fraught with dangerous significance for the rule of law and the integrity of our elections. For
one, such blanket/unqualified reading may provide a way around the law that effectively negates
election requirements aimed at providing the electorate with the basic information to make an
informed choice about a candidate’s eligibility and fitness for office.
The first requirement that may fall when an unqualified reading is made is Section 39 of the LGC
which specifies the basic qualifications of local government officials. Equally susceptive of being
rendered toothless is Section 74 of the OEC that sets out what should be stated in a COC. Section
78 may likewise be emasculated as mere delay in the resolution of the petition to cancel or deny due
course to a COC can render a Section 78 petition useless if a candidate with false COC data wins.
To state the obvious, candidates may risk falsifying their COC qualifications if they know that an
election victory will cure any defect that their COCs may have. Election victory then becomes a
magic formula to bypass election eligibility requirements. (Citations omitted)
What will stop an otherwise disqualified individual from filing a seemingly valid COC, concealing any
disqualification, and employing every strategy to delay any disqualification case filed against him so
he can submit himself to the electorate and win, if winning the election will guarantee a disregard of
constitutional and statutory provisions on qualifications and disqualifications of candidates?
It is imperative to safeguard the expression of the sovereign voice through the ballot by ensuring that
its exercise respects the rule of law. To allow the sovereign voice spoken through the ballot to trump
constitutional and statutory provisions on qualifications and disqualifications of candidates is not
democracy or republicanism. It is electoral anarchy. When set rules are disregarded and only the
electorate’s voice spoken through the ballot is made to matter in the end, it precisely serves as an
open invitation for electoral anarchy to set in.
1âw phi 1
Maquiling is not a second-placer as

he obtained the highest number of
votes from among the qualified
candidates.
With Arnado’s disqualification, Maquiling then becomes the winner in the election as he obtained the
highest number of votes from among the qualified candidates.
We have ruled in the recent cases of Aratea v. COMELEC54 and Jalosjos v. COMELEC55 that a void
COC cannot produce any legal effect.
Thus, the votes cast in favor of the ineligible candidate are not considered at all in determining the
winner of an election.
Even when the votes for the ineligible candidate are disregarded, the will of the electorate is still
respected, and even more so. The votes cast in favor of an ineligible candidate do not constitute the
sole and total expression of the sovereign voice. The votes cast in favor of eligible and legitimate
candidates form part of that voice and must also be respected.
As in any contest, elections are governed by rules that determine the qualifications and
disqualifications of those who are allowed to participate as players. When there are participants who
turn out to be ineligible, their victory is voided and the laurel is awarded to the next in rank who does
not possess any of the disqualifications nor lacks any of the qualifications set in the rules to be
eligible as candidates.
There is no need to apply the rule cited in Labo v. COMELEC56 that when the voters are well aware
within the realm of notoriety of a candidate’s disqualification and still cast their votes in favor said
candidate, then the eligible candidate obtaining the next higher number of votes may be deemed
elected. That rule is also a mere obiter that further complicated the rules affecting qualified
candidates who placed second to ineligible ones.
The electorate’s awareness of the candidate’s disqualification is not a prerequisite for the
disqualification to attach to the candidate. The very existence of a disqualifying circumstance makes
the candidate ineligible. Knowledge by the electorate of a candidate’s disqualification is not
necessary before a qualified candidate who placed second to a disqualified one can be proclaimed
as the winner. The second-placer in the vote count is actually the first-placer among the qualified
candidates.
That the disqualified candidate has already been proclaimed and has assumed office is of no
moment. The subsequent disqualification based on a substantive ground that existed prior to the
filing of the certificate of candidacy voids not only the COC but also the proclamation.
Section 6 of R.A. No. 6646 provides:
Section 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment
to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such election, the Court or Commission shall
continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the
proclamation of such candidate whenever the evidence of his guilt is strong.
There was no chance for Arnado’s proclamation to be suspended under this rule because Arnado
failed to file his answer to the petition seeking his disqualification. Arnado only filed his Answer on 15
June 2010, long after the elections and after he was already proclaimed as the winner.
The disqualifying circumstance surrounding Arnado’s candidacy involves his citizenship. It does not
involve the commission of election offenses as provided for in the first sentence of Section 68 of the
Omnibus Election Code, the effect of which is to disqualify the individual from continuing as a
candidate, or if he has already been elected, from holding the office.
The disqualifying circumstance affecting Arnado is his citizenship. As earlier discussed, Arnado was
both a Filipino and an American citizen when he filed his certificate of candidacy. He was a dual
citizen disqualified to run for public office based on Section 40(d) of the Local Government Code.
Section 40 starts with the statement "The following persons are disqualified from running for any
elective local position." The prohibition serves as a bar against the individuals who fall under any of
the enumeration from participating as candidates in the election.
With Arnado being barred from even becoming a candidate, his certificate of candidacy is thus
rendered void from the beginning. It could not have produced any other legal effect except that
Arnado rendered it impossible to effect his disqualification prior to the elections because he filed his
answer to the petition when the elections were conducted already and he was already proclaimed
the winner.
To hold that such proclamation is valid is to negate the prohibitory character of the disqualification
which Arnado possessed even prior to the filing of the certificate of candidacy. The affirmation of
Arnado's disqualification, although made long after the elections, reaches back to the filing of the
certificate of candidacy. Arnado is declared to be not a candidate at all in the May 201 0 elections.
Arnado being a non-candidate, the votes cast in his favor should not have been counted. This leaves
Maquiling as the qualified candidate who obtained the highest number of votes. Therefore, the rule
on succession under the Local Government Code will not apply.
WHEREFORE, premises considered, the Petition is GRANTED. The Resolution of the COMELEC
En Bane dated 2 February 2011 is hereby ANNULLED and SET ASIDE. Respondent ROMMEL
ARNADO y CAGOCO is disqualified from running for any local elective position. CASAN MACODE
MAQUILING is hereby DECLARED the duly elected Mayor of Kauswagan, Lanao del Norte in the 10
May 2010 elections.
This Decision is immediately executory.
Let a copy of this Decision be served personally upon the parties and the Commission on Elections.
SO ORDERED.
90

SUPREME COURT
Manila
EN BANC
G.R. No. 199612 January 22, 2013
RENATO M. FEDERICO, Petitioner,

vs.
COMMISSION ON ELECTIONS, COMELEC EXECUTIVE DIRECTOR and OSMUNDO M.
MALIGAYA,Respondents.
DECISION
MENDOZA, J.:
This is a petition for certiorari under Rule 65, in relation to Rule 64, of the Rules of Court, assailing
the December 21, 2011 Resolution1 of the Commission on Elections (Comelec) En Bane. in SPC No.
10-082, entitled In Re: Petition to Annul the Proclamation of Respondent Renato M. Federico,
Osmundo M. Maligaya v. Renato M. Federico and the Municipal Board of Canvassers of Santo
Tomas, Batangas.
The Facts
Edna Sanchez (Edna) and private respondent Osmundo M. Maligaya (Maligaya) were candidates for
the position of municipal mayor of Sto. Tomas, Batangas, in the May 10, 2010 Automated National
and Local Elections. Maligaya was the Liberal Party’s official mayoralty candidate.2
On April 27, 2010, Armando Sanchez, husband of Edna and the gubernatorial candidate for the
province of Batangas, died. Two days later, or on April 29, 2010,3 Edna withdrew her Certificate of
Candidacy (COC) for the position of mayor. She then filed a new COC and the corresponding
Certificate of Nomination and Acceptance (CONA) for the position of governor as substitute
candidate for her deceased husband.
On May 5, 2010, petitioner Renato M. Federico (Federico) filed with the Office of the Election Officer
of Sto. Tomas, Batangas, his COC4 and CONA5 as official candidate of the Nationalista Party and as
substitute candidate for mayor, in view of the withdrawal of Edna.
On May 7, 2010, the Comelec Law Department referred the Affidavit of Withdrawal, the COC and
the CONA of Edna, as substitute candidate for her late husband, and those of Federico, as
substitute candidate for her, to the Comelec En Banc for its consideration.6
On the same day, May 7, 2010, Maligaya filed his Petition to Deny Due Course and to Cancel
Certificate of Candidacy7 of Federico before the Comelec, docketed as SPA No. 10-137 (DC).
Maligaya sought to have Federico declared ineligible to run as substitute candidate for Edna
because the period to file the COC for substitute candidates had already lapsed after December 14,
2009, pursuant to Section 13 of Comelec Resolution No. 8678.8
In Resolution No. 8889,9 dated May 8, 2010, the COMELEC En Banc gave due course to the COC
of Edna as substitute gubernatorial candidate in the Batangas province and to that of Federico as
substitute mayoralty candidate in Sto. Tomas.
By that time, however, the official ballots had already been printed. Expectedly, on May 10, 2010,
the day of elections, the name "SANCHEZ, Edna P." was retained in the list of candidates for Mayor
of Sto. Tomas, and garnered the highest number of votes - 28,389 against Maligaya’s 22,577
votes.10
On May 11, 2010, the Municipal Board of Canvassers (MBOC) printed the Certificate of Canvass of
Votes and Proclamation of Winning Candidates11 (COCVP) showing "SANCHEZ Edna P." as the
winning mayoralty candidate. The printed COCVP, reads:
WE, THE UNDERSIGNED MEMBERS of the CITY/MUNICIPAL BOARD OF CANVASSERS do

hereby certify under oath that we have duly canvassed the votes cast in 81 precincts in the
city/municipality for the Candidates therein for city/municipality offices in the elections held on May
10, 2010. Attached hereto and forming part hereof is a Statement of Votes by Precinct (CEF No. 20-
A-1) obtained by each candidate for the offices of Mayor and Vice-Mayor.
That after such canvass, it appears that SANCHEZ, Edna P. obtained 28389 votes for the office of
City/Municipality Mayor, the same being the highest number of votes legally cast for said office; and
SILVA, Armenius O. obtained 25532 votes for the office of City/Municipality Vice Mayor, the same
being the highest number of votes legally cast for said office.
ON THE BASIS OF THE FOREGOING, we hereby proclaim the above candidates as the duly
elected City/Municipality Mayor and City/Municipality Vice Mayor.
IN WITNESS WHEREOF, we have signed these presents in SANTO TOMAS, Province of Batangas
this Tue May 11, 14:09:55 PHT 2010.
[Emphases and underscoring supplied]
This action of MBOC prompted Maligaya to file his Petition to Annul Proclamation of Respondent
Edna Sanchez,12docketed as SPC No. 10-022, on May 20, 2010. This petition was, however, later
withdrawn, as agreed upon by the parties, and the case was dismissed by the Comelec First
Division.13
A second print-out14 of the COCVP was issued by the MBOC bearing the same time and date with
the same number of votes garnered by Edna being credited to Federico. The second print-out reads:
WE, THE UNDERSIGNED MEMBERS of the CITY/MUNICIPAL BOARD OF CANVASSERS do

hereby certify under oath that we have duly canvassed the votes cast in 81 precincts in the
city/municipality for the Candidates therein for city/municipality offices in the elections held on May
10, 2010. Attached hereto and forming part hereof is a Statement of Votes by Precinct (CEF No. 20-
A-1) obtained by each candidate for the offices of Mayor and Vice-Mayor.
That after such canvass, it appears that FEDERICO, Renato M. obtained 28389 votes for the office
of City/Municipality Mayor, the same being the highest number of votes legally cast for said office;
and SILVA, Armenius O. obtained 25532 votes for the office of City/Municipality Vice Mayor, the
same being the highest number of votes legally cast for said office.
ON THE BASIS OF THE FOREGOING, we hereby proclaim the above candidates as the duly
elected City/Municipality Mayor and City/Municipality Vice Mayor.
IN WITNESS WHEREOF, we have signed these presents in SANTO TOMAS, Province of Batangas
this Tue May 11, 14:09:55 PHT 2010.
[Emphases and underscoring supplied]
On June 1, 2010, upon learning of the proclamation of Federico as the winning mayoralty candidate
by the MBOC, Maligaya filed his Petition to Annul Proclamation of Respondent Renato M.
Federico15 as mayor of Sto. Tomas, Batangas, docketed as SPC No. 10-082. The petition was
predicated on the alleged illegal act of the MBOC in issuing a falsified and patently antedated
second COCVP in the name of Federico without reconvening, without due notice, and without
annulling the first COCVP issued in favor of Edna.
In his answer to the petition, Federico raised, among others, the defenses that the petition was an
erroneous remedy, having no basis under the rules; that it was not based on valid grounds; and that
it should not have been given due course as it was belatedly filed.16
The members of the MBOC likewise filed an answer, claiming good faith when they proclaimed
Federico as winner considering that the substitutions of Edna and Federico were valid under
Comelec Resolution No. 8889.17
Meanwhile, Maligaya’s petition to deny due course and to cancel the COC of Federico was denied
by the Comelec Second Division in its Resolution,18 dated October 19, 2010. It gave due course to
Federico’s COC and CONA on the basis of the Comelec En Banc’s Resolution No. 8889 which
upheld Federico’s substitution.
In its Resolution,19 dated June 21, 2011, the Comelec First Division denied Maligaya’s petition to
annul the proclamation of Federico for having been filed out of time, as it was filed beyond the ten
(10) day period from the day of proclamation as provided for under Section 6, Rule 4 of Comelec
Resolution 8804.20 Further, it held that Federico’s filing of candidacy for mayor, vice Edna, was valid.
Maligaya then filed his Verified Partial Motion for Reconsideration,21 dated June 27, 2011, insisting
that his petition had not yet prescribed and that Federico’s substitution was null and void with his
COC and CONA filed after December 14, 2009, the deadline provided for under Section 13 of
Comelec Resolution No. 8678. He further claimed that the generation of a second print-out of the
COCVP bearing the same time and date with the same number of votes garnered by Edna being
credited to Federico was questionable for it was impossible for Federico to be proclaimed as the
winning candidate because the Canvassing and Consolidating System (CCS) had already printed a
COCVP with the name of Edna, as the winner.
The said partial motion for reconsideration was elevated to the Comelec En Banc for proper
disposition.
In his Comment22 on Maligaya’s partial motion for reconsideration, Federico pointed out that his
substitution of Edna had already been upheld with finality and, thus, could no longer be questioned.
He prayed for the dismissal of the case.
In the hearing of August 25, 2011, the Comelec En Banc considered the case submitted for
resolution.
On August 31, 2011, Federico filed a motion for reconsideration23 of the Comelec En Banc’s Order
given in the August 25, 2011 hearing, claiming that the case was barred by forum shopping and litis
pendentia. Pending his motion, he elevated the matter to the Supreme Court on September 9, 2011
by way of a Petition for Certiorari and Prohibition, docketed as G.R. No. 198283. This petition was
subsequently dismissed by the Court on October 4, 2011 for being premature in view of the
pendency of the partial motion for reconsideration before the Comelec En Banc.24
On December 21, 2011, the Comelec En Banc issued the assailed Resolution granting Maligaya’s
partial motion for reconsideration. Thus:
WHEREFORE, in view of the foregoing, the instant Partial Motion for Reconsideration is GRANTED.
The proclamation of respondent Federico is hereby ANNULLED. Accordingly:
1. The Executive Director is ordered to constitute a Special Municipal Board of Canvassers

for the municipality of Sto. Tomas, Batangas;
2. The Special Municipal Board of Canvassers is ordered to immediately notify the parties,
reconvene and proclaim petitioner OSMUNDO M. MALIGAYA as the duly elected Mayor of
Sto. Tomas, Batangas; and
3. The Law Department is directed to conduct an investigation on the members of the (Old)
Municipal Board of Canvassers of Sto. Tomas, Batangas for possible violation of Section 32
pars. (c) and (f) Article VI of COMELEC Resolution No. 8809.
Let the Executive Director implement this resolution.
SO ORDERED.25
The Comelec En Banc ruled that the petition for the annulment of Federico’s proclamation filed on
June 1, 2011 was within the prescribed ten (10) day period. It explained that the period for the filing
of the said petition should be reckoned from May 27, 2011, when Maligaya discovered the existence
of the second COCVP and not on May 11, 2011, the proclamation date. The Comelec En Banc was
of the view that the annulment of Federico’s proclamation was in order because of his invalid
substitution of Edna, as his substitute COC was filed beyond the deadline and due to the illegality of
the proceedings of the MBOC in generating the second COCVP without authority from the Comelec
and without notice to the parties, in violation of Comelec Resolution No. 8804.
Hence, Federico filed the present Petition for Certiorari with Prayer for Writ of Preliminary Injunction
and/or Temporary Restraining Order, dated December 23, 2011, before this Court anchored on the
following
GROUNDS
(I)
The validity of Petitioner’s substitution as mayoralty candidate is already a settled fact.
A. Petitioner validly substituted Edna Sanchez pursuant to Section 77 of the Omnibus

Election Code.
B. The validity of Petitioner’s substitution was already decided with finality by the Comelec.
C. Resolution No. 8889 is valid. The Comelec, in issuing Resolution No. 8889, passed upon
all matters and issues laid before it in the case. Moreover, after Resolution No. 8889 was
issued, it was in force and had to be complied with.
(II)
The proclamation of Petitioner was regular and done in accordance with law.
A. The votes cast for "SANCHEZ, Edna P." were legally considered votes for Petitioner.
B. The petition to annul Petitioner’s proclamation was filed out of time.
(III)
Private Respondent cannot validly be proclaimed as elected mayor because he was the losing
candidate.26
In the meantime, on December 29, 2011, the Comelec En Banc issued Minute Resolution No. 11-
1306 constituting the special MBOC pursuant to its December 21, 2011 Resolution.27
On January 16, 2012, the Comelec En Banc issued a Writ of Execution ordering Federico to vacate
the position as mayor and to cease and desist from performing the functions of the said office.28
On January 17, 2012, the Special MBOC issued a notice to convene on January 24, 2012 at the
Comelec’s Session Hall for the purpose of proclaiming Maligaya as the duly elected mayor.29
In its Resolution, dated January 17, 2012, the Court required the respondents in this case to
comment on Federico’s petition for certiorari within ten (10) days from notice, to which Maligaya and
the Comelec complied. In the same Resolution, the Court issued a Temporary Restraining Order
(TRO) enjoining the Comelec from constituting and reconvening the Special MBOC and from
proclaiming Maligaya as mayor of Sto. Tomas, Batangas.30
Pending resolution of the case, on February 28, 2012, Vice-Mayor Armenius Silva (Intervenor Silva)
of Sto. Tomas, Batangas, filed his Motion for Leave to Intervene,31 praying essentially that as
Federico failed to qualify, he should be adjudged as his legal successor as mayor, under Section 44
of the Local Government Code32 (LGC).
Both the Office of the Solicitor General (OSG) and Maligaya opposed the motion to intervene, both
arguing that he (Maligaya) was the only mayoralty candidate left to be voted for given the withdrawal
of Edna and Federico’s invalid substitution. Maligaya, then, was not a second placer but the sole and
only placer in the elections. Hence, the doctrine of the second-placer would not apply to him.
The Issues
From the pleadings of the parties, the principal issues presented for resolution are: (1) whether
Federico could validly substitute Edna who withdrew her candidacy for the mayoralty position; (2)
whether Maligaya’s Petition to Annul Proclamation of Federico as mayor of Sto. Tomas, Batangas,
docketed as SPC No. 10-082, was filed on time; and (3) granting that Federico was disqualified,
whether he should be succeeded by Intervenor Silva under the LGC or replaced by Maligaya.
Essentially, the issue thrust upon the Court is whether the Comelec gravely abused its discretion
when it annulled Federico’s proclamation as the winning candidate on the ground that his
substitution as mayoralty candidate was void.
Federico insists that his substitution of Edna was valid and had long been final in view of Comelec
Resolution No. 8889. He likewise argues that his proclamation as mayor of Sto. Tomas, Batangas,
was valid and regular and, hence, it must be upheld.
The Court agrees with the position taken by the OSG representing public respondent Comelec En
Banc. The electoral commission committed no grave abuse of discretion when it came out with its
December 21, 2011 Resolution,33 in SPC No. 10-082, granting Maligaya’s partial motion for
reconsideration. The Court shall discuss the issues in seriatim.
Federico’s substitution of Edna Sanchez

as mayoralty candidate was not valid
In its assailed December 21, 2011 Resolution, the Comelec En Banc annulled Federico’s
proclamation as mayor of Sto. Tomas, Batangas, on the ground that his substitution of Edna was
invalid, the substitute COC and CONA having been filed after the December 14, 2009 deadline
provided for under Section 13 of Comelec Resolution No. 8678.
Federico argues that Comelec Resolution No. 8678 cannot prevail over the provisions of Section 77
of Batas Pambansa Bilang 881, the Omnibus Election Code (OEC), prescribing the rules on
substitution of an official candidate of a registered political party who dies, withdraws or is
disqualified for any cause after the last day for the filing of his COC. The law provides:
Sec. 77. Candidates in case of death, disqualification or withdrawal of another. - If after the last day
for the filing of certificates of candidacy, an official candidate of a registered or accredited political
party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by,
the same political party may file a certificate of candidacy to replace the candidate who died,
withdrew or was disqualified. The substitute candidate nominated by the political party concerned
may file his certificate of candidacy for the office affected in accordance with the preceding sections
not later than mid-day of the day of the election. If the death, withdrawal or disqualification should
occur between the day before the election and mid-day of election day, said certificate may be filed
with any board of election inspectors in the political subdivision where he is a candidate, or, in the
case of candidates to be voted for by the entire electorate of the country, with the Commission.
(Emphasis supplied)
Federico posits that he timely filed his COC as it was not later than midday of the day of the election.
He argues that the law makes no distinction between the different causes for substitution – death,
disqualification or withdrawal. Regardless of the cause of substitution, the deadline for the filing of a
substitute COC is "not later than mid-day of the election." Accordingly, he asserts that he validly
substituted Edna having filed his COC and CONA on May 5, 2010 or five (5) days before the
elections and having complied with all the procedural requirements for a valid substitution.
Federico’s argument is not well-taken.
The Comelec is empowered by law to prescribe such rules so as to make efficacious and successful
the conduct of the first national automated election.
On January 23, 2007, Congress enacted Republic Act (R.A.) No. 9369, An Act Amending Republic
Act No. 8436, Entitled ‘An Act Authorizing The Commission On Elections To Use An Automated
Election System In The May 11, 1998 National Or Local Elections And In Subsequent National And
Local Electoral Exercises,’ To Encourage Transparency, Credibility, Fairness And Accuracy Of
Elections, Amending For The Purpose Batas Pambansa Blg. 881, As Amended, Republic Act No.
7166 And Other Related Elections Laws, Providing Funds Therefor And For Other Purposes.
Section 13 of said law partially provides:
SEC. 13. Section 11 of Republic Act No. 8436 is hereby amended to read as follows:
SEC.15. Official Ballot. - The Commission shall prescribe the format of the electronic display and/or
the size and form of the official ballot, which shall contain the titles of the position to be filled and/or
the proposition to be voted upon in an initiative, referendum or plebiscite. Where practicable,
electronic displays must be constructed to present the names of all candidates for the same position
in the same page or screen, otherwise, the electronic displays must be constructed to present the
entire ballot to the voter, in a series of sequential pages, and to ensure that the voter sees all of the
ballot options on all pages before completing his or her vote and to allow the voter to review and
change all ballot choices prior to completing and casting his or her ballot.
Under each position to be filled, the names of candidates shall be arranged alphabetically by
surname and uniformly indicated using the same type size. The maiden or married name shall be
listed in the official ballot, as preferred by the female candidate. Under each proposition to be vote
upon, the choices should be uniformly indicated using the same font and size.
A fixed space where the chairman of the board of election inspector shall affix her/her signature to
authenticate the official ballot shall be provided.
candidacy/petition of registration/manifestation to participate in the election. Any person who files his
certificate of candidacy within this period shall only be considered as a candidate at the start of the
campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or
omissions applicable to a candidate shall effect only upon that start of the aforesaid campaign
active members of the armed forces, and officers, and employees in government-owned or-
the same at the start of the day of the filing of his/her certification of candidacy. (Emphasis supplied)
Under said provision, "the Comelec, which has the constitutional mandate to enforce and administer
all laws and regulations relative to the conduct of an election,"34 has been empowered to set the
dates for certain pre-election proceedings. In the exercise of such constitutional and legislated
power, especially to safeguard and improve on the Automated Election System (AES), Comelec
came out with Resolution No. 8678.
As automated elections had been mandated by law, there was a need for the early printing of the
ballots. So that all candidates would be accommodated in the ballots, the early filing of COCs was
necessary. If there would be late filing and approval of COCs, the names of aspiring candidates
would not be included in the ballot, the only document to be read by the Precinct Count Optical Scan
(PCOS) machines.
The Law, Rules and Regulations

on Substitution
With regard to substitutions, Congress and the Comelec came out with laws and rules addressing
anticipated problems in such cases. Thus, under Section 12 of R.A. No. 9006, in order to obviate
confusion, the name of the substitute candidate should, as much as possible, bear the same
surname as that of the substituted candidate. Section 12 reads:
Section 12. Substitution of Candidates. – In case of valid substitutions after the official ballots have
been printed, the votes cast for the substituted candidates shall be considered as stray votes but
shall not invalidate the whole ballot. For this purpose, the official ballots shall provide spaces where
the voters may write the name of the substitute candidates if they are voting for the latter: Provided,
however, That if the substitute candidate of the same family name, this provision shall not apply.
[Emphases supplied]
Regarding the May 10, 2010 automated elections, the Comelec came out with Resolution No. 8678.
On substitution, Section 13 thereof provides:
SEC. 13. Substitution of Candidates, in case of death, disqualification or withdrawal of another. - If

after the last day for the filing of certificate of candidacy, an official candidate of a registered political
party dies, withdraws or is disqualified for any cause, he may be substituted by a candidate
belonging to, and nominated by, the same political party. No substitute shall be allowed for any
independent candidate.
The substitute for a candidate who withdrew may file his certificate of candidacy as herein provided
for the office affected not later than December 14, 2009.
The substitute for a candidate who died or suffered permanent incapacity or disqualified by final
judgment, may file his certificate of candidacy up to mid-day of election day. If the death or
permanent disability should occur between the day before the election and mid-day of election day,
the substitute candidate may file the certificate with any board of election inspectors in the political
subdivision where he is a candidate, or in the case of a candidate for President, Vice-President or
Senator, with the Law Department of the Commission on Elections in Manila.
No person who has withdrawn his candidacy for a position shall be eligible as substitute candidate
for any other position after the deadline for filing of certificates of candidacy. [Emphasis and
underscoring supplied]
As correctly pointed out by the OSG, it is clear from the foregoing that different deadlines were set to
govern the specific circumstances that would necessitate the substitution of a candidate due to
death, disqualification or withdrawal. In case of death or disqualification, the substitute had until
midday of the election day to file the COC. In case of withdrawal, which is the situation at bench, the
substitute should have filed a COC by December 14, 2009.
The reason for the distinction can easily be divined. Unlike death or disqualification, withdrawal is
voluntary. Generally, a candidate has sufficient time to ponder on his candidacy and to withdraw
while the printing has not yet started. If a candidate withdraws after the printing, the name of the
substitute candidate can no longer be accommodated in the ballot and a vote for the substitute will
just be wasted.
When Batangas Governor Armando Sanchez died on April 27, 2010, Edna withdrew her candidacy
as mayor and substituted her late husband as gubernatorial candidate for the province on April 29,
2010. The party actually had the option to substitute another candidate for Governor aside from
Edna. By fielding Edna as their substitute candidate for Governor, the party knew that she had to
withdraw her candidacy for Mayor. Considering that the deadline for substitution in case of
withdrawal had already lapsed, no person could substitute her as mayoralty candidate. The sudden
death of then Governor Armando Sanchez and the substitution by his widow in the gubernatorial
race could not justify a belated substitution in the mayoralty race.
Comelec Resolution No. 8889

not binding on Maligaya
Federico asserts that Resolution No. 8889, which gave due course to the COC of Edna, as
gubernatorial candidate; and his COC, as mayoralty candidate, was valid as the Comelec passed
upon all matters and issues laid before it in the case. According to him, the legal presumption was
that official duty had been regularly performed. The resolution was an operative fact by which the
Comelec denied Maligaya’s petition to deny due course to the COC of Federico, and on the basis of
which the MBOC counted the votes for Edna as votes cast for Federico.
As far as Maligaya is concerned, the resolution was void as it lacked legal basis as Federico’s
substitution was invalid, his COC having been filed only on May 5, 2010, or after December 14,
2009, the deadline provided for under Section 13 of Comelec Resolution No. 8678. No reason was
mentioned in the resolution why his COC was given due course except that the withdrawal "merely
caused a vacuum in mayoralty contest."35 The resolution reads:
Mrs. Edna P. Sanchez is qualified to substitute for her deceased husband. And this substitution is
not contrary to law or our rules. She is stepping up from her candidacy as Mayor to Governor, and
such action merely caused a vacuum in mayoralty contest. The rule being cited by the Law
Department that the substitute for a candidate who withdrew may file his certificate of candidacy as
herein provided for the office affected not later than December 14, 2009, is far from germane
considering that the vacancy arose by reason of the death of Governor Sanchez.
To stress, the vacancy in the mayoralty race in Sto. Tomas, Batangas, was due to the withdrawal of
Edna as mayoralty candidate, not due to the death of Armando Sanchez.
Accordingly, the Court agrees with the OSG that Resolution No. 8889 was void as it was in
contravention of the guidelines set forth under Resolution No. 8678. With respect to Federico, it
cannot be regarded as a valid source of any right, like the right to be voted for public office. Indeed,
a void judgment can never be final and executory and may be assailed at any time.36
"Where a proclamation is null and void, the proclamation is no proclamation at all and the proclaimed
candidate's assumption of office cannot deprive the Comelec of the power to declare such nullity and
annul the proclamation."37
More importantly, Resolution No. 8889 was merely an administrative issuance, based on documents
forwarded to the Comelec. It was not a result of an adversarial proceeding, where the parties were
heard and allowed to adduce evidence. In issuing Resolution No. 8889, the Comelec did not bother
to notify the parties who would have been affected. It was, thus, not a decision in an actual case or
controversy which ripened into finality.
Unquestionably, parties who had no participation therein were not bound by the resolution. Federico
cannot invoke res judicata, one of the requirements of which is identity of parties. Stated differently,
as Maligaya was not a party in the said proceeding, Resolution No. 8889 was not binding on him.
The second COCVP in favor of

Federico had no legal basis.
Without question, the votes garnered by Edna could not be credited to Federico as he was never a
legitimate candidate. As there was an invalid substitution, there could not be a valid proclamation. In
effect, the second COCVP in his name had no legal basis. Granting that those who voted for Edna
had in mind to vote for Federico, nonetheless, the fact that there was no compliance with the rules
cannot be ignored.
x x x. In a choice between provisions on material qualifications of elected officials, on the one hand,
and the will of the electorate in any given locality, on the other, we believe and so hold that we
cannot choose the electorate will. The balance must always tilt in favor of upholding and enforcing
the law. To rule otherwise is to slowly gnaw at the rule of law.38
It was alleged that the MBOC of Sto. Tomas, Batangas, raised the hands of Federico as the winner.
As correctly pointed out by Maligaya, however, this was impossible because the CCS printed the
name of Edna Sanchez as the winner on the first COCVP. Thereafter, the MBOC came out with a
second COCVP, this time, with the name of Federico on it with the same number of votes as that of
Edna, and generated on the very same date and the very same time as the first COCVP - a physical
impossibility.
Maligaya’s Petition to Annul

the Proclamation of Federico
was filed on time
Maligaya became aware of the issuance of the second COCVP in favor of Federico only on May 27,
2010. From that day, he had ten (10) days to question the dubious proceeding in the MBOC under
Section 6 of Resolution No. 8804. Considering that Maligaya filed his petition to annul Federico’s
May 10, 2010 proclamation on June 1, 2010, it was indeed filed on time.
It has been argued that there is no evidence that Maligaya became aware of the issuance of the
second COCVP in favor of Federico only on May 27, 2010. In this regard, the Court believes that the
actions taken by Maligaya after the elections and the separate proclamations of Edna and Federico
strongly indicate that he was telling the truth. Indeed, there is no rhyme or reason why he should file
a petition questioning the proclamation of Edna if he had knowledge of the subsequent proclamation
of Federico. The Court adopts with approbation his reasoning on the matter. Thus:
5.35. Private respondent pursued and prosecuted this case with the knowledge that it was
Edna Sanchez who was proclaimed, until he came to know of the alleged proclamation of
respondent Federico on May 27, 2010. Consequently, he filed another petition on June 1,
2010, this time against Federico, to annul his proclamation. The June 1, 2010 petition was
filed within ten days from the knowledge of the alleged proclamation of Federico.
5.36. The filing of SPC NO. 10-022 demonstrates that private respondent Maligaya believed
in good faith that it was Edna Sanchez that was proclaimed and that he did not initially know
that there was a COCVP in the name of Federico. SPC No. 10-022 is also a proof that
petitioner did not dilly dally in protecting his rights. There simply is no reason and it runs
counter to human conduct for Maligaya to file a petition for annulment of proclamation of
Edna Sanchez if he knew all along that it was Federico who was proclaimed.
5.37. In the same manner, the filing of the present petition against Federico shows that the
proclamation of Federico was fraudulent or at least made surreptitiously. Had Maligaya
known of the proclamation of Federico, he should have outrightly filed the petition for
annulment of proclamation against Federico. But because it was made without any notice to
the herein private respondent, he only knew of it on May 27, 2010, thus, the petition on June
1, 2010. Private respondent did not certainly sleep on his rights as he filed the proper petition
within the prescribed period. He could not be penalized for belated filing when, as shown
above, the COCVP of Federico was surreptitiously accomplished. Thus, the Comelec En
Banc did not commit grave abuse of discretion in upholding the interest of herein private
respondent Maligaya.39 [Emphasis and underscoring in the original]
Accordingly, the Comelec did not abuse its discretion when it annulled the actions of the MBOC and
the proclamation of Federico. Such exercise is within its powers under the law to administer and
enforce election laws.
x x x, The statutory power of supervision and control by the COMELEC over the boards of
canvassers includes the power to revise or reverse the action of the boards, as well as to do what
the boards should have done. Such power includes the authority to initiate motu propio such steps or
actions as may be required pursuant to law, like reviewing the actions of the board; conducting an
inquiry affecting the genuineness of election returns beyond the election records of the polling places
involved; annulling canvass or proclamations based on incomplete returns or on incorrect or
tampered returns; invalidating a canvass or proclamation made in an unauthorized meeting of the
board of canvassers either because it lacked a quorum or because the board did not meet at all;
requiring the board to convene.401âw phi 1
There being no valid substitution,

the candidate with the highest number
of votes should be proclaimed as the
duly elected mayor
As Federico's substitution was not valid, there was only one qualified candidate in the mayoralty race
in Sto. Tomas, Batangas Maligaya. Being the only candidate, he received the highest number of
votes. Accordingly, he should be proclaimed as the duly elected mayor in the May 10,2010
elections.41
Considering that Maligaya was the winner, the position of Intervenor Silva that he be considered the
legal successor of Federico, whom he claims failed to qualify, has no legal basis. There is simply no
vacancy. When there is no vacancy, the rule on succession under Section 4442 of the LGC cannot be
invoked.
WHEREFORE, the petition is DENIED.
The Motion for Leave to Intervene filed by Armenius Silva is DENIED.
The Temporary Restraining Order issued by the Court is ordered lifted.
SO ORDERED.
91

SUPREME COURT
Manila
EN BANC
G.R. No. 205033 June 18, 2013
ROMEO G. JALOSJOS, Petitioner,

vs.
THE COMMISSION ON ELECTIONS, MARIA ISABELLE G. CLIMACO-SALAZAR, ROEL B.
NATIVIDAD, ARTURO N. ONRUBIA, AHMAD NARZAD K. SAMPANG, JOSE L. LOBREGAT,
ADELANTE ZAMBOANGA PARTY, AND ELBERT C. ATILANO, Respondents.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for certiorari1 file under Rule 64 in relation to Rule 65 of the Rules of Court is
the Commission on Elections' (COMELEC) En Bane Resolution No. 96132 dated January 15, 2013,
ordering the denial of due course to and/or cancellation of petitioner Romeo G. Jalosjos' certificate of
candidacy (CoC) as a mayoralty candidate for Zamboanga City.
The Facts
On November 16, 2001, the Court promulgated its Decision in G.R. Nos. 132875-76, entitled
"People of the Philippines v. Romeo G. Jalosjos," convicting petitioner by final judgment of two (2)
counts of statutory rape and six (6) counts of acts of lasciviousness.4 Consequently, he was
sentenced to suffer the principal penalties of reclusion perpetua and reclusion temporal5 for each
count, respectively, which carried the accessory penalty of perpetual absolute disqualification
pursuant to Article 41 of the Revised Penal Code (RPC).6 On April 30, 2007, then President Gloria
Macapagal Arroyo issued an order commuting his prison term to sixteen (16) years, three (3) months
and three (3) days (Order of Commutation). After serving the same, he was issued a Certificate of
Discharge From Prison on March 18, 2009.7
On April 26, 2012,8 petitioner applied to register as a voter in Zamboanga City. However, because of
his previous conviction, his application was denied by the Acting City Election Officer of the Election
Registration Board (ERB), prompting him to file a Petition for Inclusion in the Permanent List of
Voters (Petition for Inclusion) before the Municipal Trial Court in Cities of Zamboanga City, Branch 1
(MTCC).9 Pending resolution of the same, he filed a CoC10 on October 5, 2012, seeking to run as
mayor for Zamboanga City in the upcoming local elections scheduled on May 13, 2013 (May 2013
Elections). In his CoC, petitioner stated, inter alia, that he is eligible for the said office and that he is
a registered voter of Barangay Tetuan, Zamboanga City.
On October 18, 2012,11 the MTCC denied his Petition for Inclusion on account of his perpetual
absolute disqualification which in effect, deprived him of the right to vote in any election. Such denial
was affirmed by the Regional Trial Court of Zamboanga City, Branch 14 (RTC) in its October 31,
2012 Order12 which, pursuant to Section 13813 of Batas Pambansa Bilang 881, as amended,
otherwise known as the "Omnibus Election Code" (OEC), was immediately final and executory.
Meanwhile, five (5) petitions were lodged before the COMELEC’s First and Second Divisions
(COMELEC Divisions), praying for the denial of due course to and/or cancellation of petitioner’s
CoC. Pending resolution, the COMELEC En Banc issued motu proprio Resolution No. 961314 on
January 15, 2013, resolving "to CANCEL and DENY due course the Certificate of Candidacy filed by
Romeo G. Jalosjos as Mayor of Zamboanga City in the May 13, 2013 National and Local Elections"
due to his perpetual absolute disqualification as well as his failure to comply with the voter
registration requirement. As basis, the COMELEC En Banc relied on the Court’s pronouncement in
the consolidated cases of Dominador Jalosjos, Jr. v. COMELEC and Agapito Cardino v.
COMELEC15 (Jalosjos, Jr. and Cardino).
Hence, the instant petition.
Issues Before the Court
Submitted for the Court’s determination are the following issues: (a) whether the COMELEC En
Banc acted beyond its jurisdiction when it issued motu proprio Resolution No. 9613 and in so doing,
violated petitioner’s right to due process; and (b) whether petitioner’s perpetual absolute
disqualification to run for elective office had already been removed by Section 40(a) of Republic Act
No. 7160, otherwise known as the "Local Government Code of 1991" (LGC).
The petition is bereft of merit.
At the outset, the Court observes that the controversy in this case had already been mooted by the
exclusion of petitioner in the May 2013 Elections. Nevertheless, in view of the doctrinal value of the
issues raised herein, which may serve to guide both the bench and the bar in the future, the Court
takes this opportunity to discuss on the same.
A. Nature and validity of motu

proprio issuance of Resolution No.
9613.
Petitioner claims that the COMELEC En Banc usurped the COMELEC Divisions’ jurisdiction by
cancelling motu proprio petitioner’s CoC through Resolution No. 9613, contrary to Section 3, Article
IX-C of the 1987 Philippine Constitution (Constitution) which reads:
SEC. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its
rules of procedure in order to expedite disposition of election cases, including pre-proclamation
for reconsideration of decisions shall be decided by the Commission en banc. (Emphasis and
Concomitantly, he also claims that his right to procedural due process had been violated by the
aforementioned issuance.
The Court is not persuaded.
The above-cited constitutional provision requiring a motion for reconsideration before the COMELEC
En Banc may take action is confined only to cases where the COMELEC exercises its quasi-judicial
power. It finds no application, however, in matters concerning the COMELEC’s exercise of
administrative functions. The distinction between the two is well-defined. As illumined in Villarosa v.
COMELEC:16
The term ‘administrative’ connotes, or pertains, to ‘administration, especially management, as by

managing or conducting, directing or superintending, the execution, application, or conduct of
persons or things. It does not entail an opportunity to be heard, the production and weighing of
evidence, and a decision or resolution thereon. While a ‘quasi-judicial function’ is a term which
applies to the action, discretion, etc., of public administrative officers or bodies, who are required to
investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them,
as a basis for their official action and to exercise discretion of a judicial nature. (Emphasis and
Crucial therefore to the present disquisition is the determination of the nature of the power exercised
by the COMELEC En Banc when it promulgated Resolution No. 9613.
The foregoing matter is not without established precedent. In Jalosjos, Jr. and Cardino, the Court
held that the COMELEC’s denial of due course to and/or cancellation of a CoC in view of a
candidate’s disqualification to run for elective office based on a final conviction is subsumed under
its mandate to enforce and administer all laws relating to the conduct of elections. Accordingly, in
such a situation, it is the COMELEC’s duty to cancel motu proprio the candidate’s CoC,
notwithstanding the absence of any petition initiating a quasi-judicial proceeding for the resolution of
the same. Thus, the Court stated:17
Even without a petition under either Section 12 or Section 78 of the Omnibus Election Code, or
under Section 40 of the Local Government Code, the COMELEC is under a legal duty to cancel the
certificate of candidacy of anyone suffering from the accessory penalty of perpetual special
of conviction is notice to the COMELEC of the disqualification of the convict from running for public
office. The law itself bars the convict from running for public office, and the disqualification is part of
the final judgment of conviction. The final judgment of the court is addressed not only to the
under the law.
election." The disqualification of a convict to run for public office under the Revised Penal Code, as
affirmed by final judgment of a competent court, is part of the enforcement and administration of "all
laws" relating to the conduct of elections.
To allow the COMELEC to wait for a person to file a petition to cancel the certificate of candidacy of
one suffering from perpetual special disqualification will result in the anomaly that these cases so
grotesquely exemplify. Despite a prior perpetual special disqualification, Jalosjos was elected and
served twice as mayor. The COMELEC will be grossly remiss in its constitutional duty to "enforce
and administer all laws" relating to the conduct of elections if it does not motu proprio bar from
running for public office those suffering from perpetual special disqualification by virtue of a final
judgment. (Emphasis and underscoring supplied)
In Aratea v. COMELEC (Aratea),18 the Court similarly pronounced that the disqualification of a
convict to run for public office, as affirmed by final judgment of a competent court, is part of the
enforcement and administration of all laws relating to the conduct of elections.19
Applying these principles to the case at bar, it is clear that the COMELEC En Banc did not exercise
its quasi-judicial functions when it issued Resolution No. 9613 as it did not assume jurisdiction over
any pending petition or resolve any election case before it or any of its divisions. Rather, it merely
performed its duty to enforce and administer election laws in cancelling petitioner’s CoC on the basis
of his perpetual absolute disqualification, the fact of which had already been established by his final
conviction. In this regard, the COMELEC En Banc was exercising its administrative functions,
dispensing with the need for a motion for reconsideration of a division ruling under Section 3, Article
IX-C of the Constitution, the same being required only in quasi-judicial proceedings.
Lest it be misunderstood, while the denial of due course to and/or cancellation of one’s CoC
generally necessitates the exercise of the COMELEC’s quasi-judicial functions commenced through
a petition based on either Sections 1220 or 7821 of the OEC, or Section 4022 of the LGC, when the
grounds therefor are rendered conclusive on account of final and executory judgments – as when a
candidate’s disqualification to run for public office is based on a final conviction – such exercise falls
within the COMELEC’s administrative functions, as in this case.
In this light, there is also no violation of procedural due process since the COMELEC En Banc would
be acting in a purely administrative manner. Administrative power is concerned with the work of
applying policies and enforcing orders as determined by proper governmental organs.23 As
petitioner’s disqualification to run for public office had already been settled in a previous case and
now stands beyond dispute, it is incumbent upon the COMELEC En Banc to cancel his CoC as a
matter of course, else it be remiss in fulfilling its duty to enforce and administer all laws and
regulations relative to the conduct of an election.
Equally compelling is the fact that the denial of petitioner’s Petition for Inclusion as a registered voter
in Zamboanga City had already attained finality by virtue of the RTC’s Order dated October 31,
2012. In this accord, petitioner’s non-compliance with the voter registration requirement under
Section 39(a) of the LGC24 is already beyond question and likewise provides a sufficient ground for
the cancellation of his CoC altogether.
B. Petitioner’s right to run for

elective office.
It is petitioner’s submission that Article 30 of the RPC was partially amended by Section 40(a) of the
LGC and thus, claims that his perpetual absolute disqualification had already been removed.
The argument is untenable.
Well-established is the rule that every new statute should be construed in connection with those
already existing in relation to the same subject matter and all should be made to harmonize and
stand together, if they can be done by any fair and reasonable interpretation.25
On the one hand, Section 40(a) of the LGC, applicable as it is to local elective candidates, provides:
SEC. 40. Disqualifications. – The following persons are disqualified from running for any elective
local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;
(Emphasis and underscoring supplied)
And on the other hand, Article 30 of the RPC reads:
ART. 30. Effects of the penalties of perpetual or temporary absolute disqualification. - The penalties
effects:
2. The deprivation of the right to vote in any election for any popular office or to be elected to
such office.
rights mentioned.
In case of temporary disqualification, such disqualification as is comprised in paragraphs 2

and 3 of this Article shall last during the term of the sentence.
(Emphasis and underscoring supplied)
Keeping with the above-mentioned statutory construction principle, the Court observes that the
conflict between these provisions of law may be properly reconciled. In particular, while Section
40(a) of the LGC allows a prior convict to run for local elective office after the lapse of two (2) years
from the time he serves his sentence, the said provision should not be deemed to cover cases
wherein the law26 imposes a penalty, either as principal or accessory,27 which has the effect of
disqualifying the convict to run for elective office. An example of this would be Article 41 of the RPC,
which imposes the penalty of perpetual28 absolute29 disqualification as an accessory to the principal
penalties of reclusion perpetua and reclusion temporal:
ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties. - The penalties of
reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or
during the period of the sentence as the case may be, and that of perpetual absolute disqualification
which the offender shall suffer even though pardoned as to the principal penalty, unless the same
shall have been expressly remitted in the pardon. (Emphasis and underscoring supplied)
In this relation, Article 30 of the RPC, as earlier cited, provides that the penalty of perpetual absolute
disqualification has the effect of depriving the convicted felon of the privilege to run for elective
office. To note, this penalty, as well as other penalties of similar import, is based on the presumptive
rule that one who is rendered infamous by conviction of a felony, or other base offense indicative of
moral turpitude, is unfit to hold public office,30 as the same partakes of a privilege which the State
grants only to such classes of persons which are most likely to exercise it for the common good.31
Pertinently, it is observed that the import of Article 41 in relation to Article 30 of the RPC is more
direct and specific in nature – insofar as it deprives the candidate to run for elective office due to his
conviction – as compared to Section 40(a) of the LGC which broadly speaks of offenses involving
moral turpitude and those punishable by one (1) year or more of imprisonment without any
consideration of certain disqualifying effects to one’s right to suffrage. Accordingly, Section 40(a) of
the LGC should be considered as a law of general application and therefore, must yield to the more
definitive RPC provisions in line with the principle of lex specialis derogat generali – general
legislation must give way to special legislation on the same subject, and generally is so interpreted
as to embrace only cases in which the special provisions are not applicable. In other words, where
two statutes are of equal theoretical application to a particular case, the one specially designed
therefor should prevail.32
In the present case, petitioner was sentenced to suffer the principal penalties of reclusion perpetua
and reclusion temporal which, pursuant to Article 41 of the RPC, carried with it the accessory penalty
of perpetual absolute disqualification and in turn, pursuant to Article 30 of the RPC, disqualified him
to run for elective office. As discussed, Section 40(a) of the LGC would not apply to cases wherein a
penal provision – such as Article 41 in this case – directly and specifically prohibits the convict from
running for elective office. Hence, despite the lapse of two (2) years from petitioner’s service of his
commuted prison term, he remains bound to suffer the accessory penalty of perpetual absolute
disqualification which consequently, disqualifies him to run as mayor for Zamboanga City.
Notably, Article 41 of the RPC expressly states that one who is previously convicted of a crime
punishable by reclusion perpetua or reclusion temporal continues to suffer the accessory penalty of
perpetual absolute disqualification even though pardoned as to the principal penalty, unless the said
accessory penalty shall have been expressly remitted in the pardon.33 In this case, the same
accessory penalty had not been expressly remitted in the Order of Commutation or by any
subsequent pardon and as such, petitioner’s disqualification to run for elective office is deemed to
subsist.
Further, it is well to note that the use of the word "perpetual" in the aforementioned accessory
penalty connotes a lifetime restriction and in this respect, does not depend on the length of the
prison term which is imposed as its principal penalty. Instructive on this point is the Court’s ruling in
Lacuna v. Abes,34 where the court explained the meaning of the term "perpetual" as applied to the
penalty of disqualification to run for public office:
October 1961.
temporary special disqualification, which lasts during the term of the sentence. (Emphasis and
Likewise, adopting the Lacuna ruling, the Court, in the more recent cases of Aratea,35 Jalosjos, Jr.
and Cardino,36held:
the convict of the right to vote or to be elected to or hold public office perpetually."
judgment of conviction becomes final. The effectivity of this accessory penalty does not depend on
the duration of the principal penalty, or on whether the convict serves his jail sentence or not. The
during the period of his [perpetual special] disqualification." Once the judgment of conviction
becomes final, it is immediately executory. Any public office that the convict may be holding at the
time of his conviction becomes vacant upon finality of the judgment, and the convict becomes
ineligible to run for any elective public office perpetually. (Emphasis underscoring supplied)
All told, applying the established principles of statutory construction, and more significantly,
considering the higher interests of preserving the sanctity of our elections, the Court holds that
Section 40(a) of the LGC has not removed the penalty of perpetual absolute disqualification which
petitioner continues to suffer. Thereby, he remains disqualified to run for any elective office
1âw phi1
pursuant to Article 30 of the RPC.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
92

SUPREME COURT
Manila
EN BANC
G.R. No. 195229 October 9, 2012
EFREN RACEL ARA TEA, Petitioner,

vs.
COMMISSiON ON ELECTIONS and ESTELA D. ANTlPOLO, Respondents.
DECISION
CARPIO, J.:
The Case
This is a special civil action for certiorari1 seeking to review and nullify the
Resolution2 dated 2 February 2011 and the Order3 dated 12 January 2011 of the Commission on
Elections (COMELEC) En Banc in Dra. Sigrid S. Rodolfo v. Romeo D. Lonzanida, docketed as SPA
No. 09-158 (DC). The petition asserts that the COMELEC issued the Resolution and Order with
grave abuse of discretion amounting to lack or excess of jurisdiction.
The Facts
Romeo D. Lonzanida (Lonzanida) and Estela D. Antipolo (Antipolo) were candidates for Mayor of
San Antonio, Zambales in the May 2010 National and Local Elections. Lonzanida filed his certificate
of candidacy on 1 December 2009.4 On 8 December 2009, Dra. Sigrid S. Rodolfo (Rodolfo) filed a
petition under Section 78 of the Omnibus Election Code to disqualify Lonzanida and to deny due
course or to cancel Lonzanida’s certificate of candidacy on the ground that Lonzanida was elected,
and had served, as mayor of San Antonio, Zambales for four (4) consecutive terms immediately prior
to the term for the May 2010 elections. Rodolfo asserted that Lonzanida made a false material
representation in his certificate of candidacy when Lonzanida certified under oath that he was
eligible for the office he sought election. Section 8, Article X of the 1987 Constitution5 and Section
43(b) of the Local Government Code6 both prohibit a local elective official from being elected and
serving for more than three consecutive terms for the same position.
The COMELEC Second Division rendered a Resolution7 on 18 February 2010 cancelling Lonzanida’s
certificate of candidacy. Pertinent portions of the 18 February 2010 Resolution read:
Respondent Lonzanida never denied having held the office of mayor of San Antonio, Zambales for
more than nine consecutive years. Instead he raised arguments to forestall or dismiss the petition on
the grounds other than the main issue itself. We find such arguments as wanting. Respondent
Lonzanida, for holding the office of mayor for more than three consecutive terms, went against the
three-term limit rule; therefore, he could not be allowed to run anew in the 2010 elections. It is time
to infuse new blood in the political arena of San Antonio.
WHEREFORE, premises considered, the instant petition is hereby GRANTED. The Certificate of
Candidacy of Respondent Romeo D. Lonzanida for the position of mayor in the municipality of San
Antonio, Zambales is hereby CANCELLED. His name is hereby ordered STRICKEN OFF the list of
Official Candidates for the position of Mayor of San Antonio, Zambales in May 10, 2010 elections.
SO ORDERED.8
Lonzanida’s motion for reconsideration before the COMELEC En Banc remained pending during the
May 2010 elections. Lonzanida and Efren Racel Aratea (Aratea) garnered the highest number of
votes and were respectively proclaimed Mayor and Vice-Mayor.
Aratea took his oath of office as Acting Mayor before Regional Trial Court (RTC) Judge Raymond C.
Viray of Branch 75, Olongapo City on 5 July 2010.9 On the same date, Aratea wrote the Department
of Interior and Local Government (DILG) and requested for an opinion on whether, as Vice-Mayor,
he was legally required to assume the Office of the Mayor in view of Lonzanida’s disqualification.
DILG Legal Opinion No. 117, S. 201010 stated that Lonzanida was disqualified to hold office by
reason of his criminal conviction. As a consequence of Lonzanida’s disqualification, the Office of the
Mayor was deemed permanently vacant. Thus, Aratea should assume the Office of the Mayor in an
acting capacity without prejudice to the COMELEC’s resolution of Lonzanida’s motion for
reconsideration. In another letter dated 6 August 2010, Aratea requested the DILG to allow him to
take the oath of office as Mayor of San Antonio, Zambales. In his response dated 24 August 2010,
then Secretary Jesse M. Robredo allowed Aratea to take an oath of office as "the permanent
Municipal Mayor of San Antonio, Zambales without prejudice however to the outcome of the cases
pending before the [COMELEC]."11
On 11 August 2010, the COMELEC En Banc issued a Resolution12 disqualifying Lonzanida from
running for Mayor in the May 2010 elections. The COMELEC En Banc’s resolution was based on
two grounds: first, Lonzanida had been elected and had served as Mayor for more than three
consecutive terms without interruption; and second, Lonzanida had been convicted by final judgment
of ten (10) counts of falsification under the Revised Penal Code. Lonzanida was sentenced for each
count of falsification to imprisonment of four (4) years and one (1) day of prisión correccional as
minimum, to eight (8) years and one (1) day of prisión mayor as maximum. The judgment of
conviction became final on 23 October 2009 in the Decision of this Court in Lonzanida v.
People,13 before Lonzanida filed his certificate of candidacy on 1 December 2009. Pertinent portions
of the 11 August 2010 Resolution read:
Prescinding from the foregoing premises, Lonzanida, for having served as Mayor of San Antonio,
Zambales for more than three (3) consecutive terms and for having been convicted by a final
judgment of a crime punishable by more than one (1) year of imprisonment, is clearly disqualified to
run for the same position in the May 2010 Elections.
WHEREFORE, in view of the foregoing, the Motion for Reconsideration is hereby DENIED.
SO ORDERED.14
On 25 August 2010, Antipolo filed a Motion for Leave to Intervene and to Admit Attached Petition-in-
Intervention.15She claimed her right to be proclaimed as Mayor of San Antonio, Zambales because
Lonzanida ceased to be a candidate when the COMELEC Second Division, through its 18 February
2010 Resolution, ordered the cancellation of his certificate of candidacy and the striking out of his
name from the list of official candidates for the position of Mayor of San Antonio, Zambales in the
May 2010 elections.
In his Comment filed on 26 January 2011, Aratea asserted that Antipolo, as the candidate who
received the second highest number of votes, could not be proclaimed as the winning candidate.
Since Lonzanida’s disqualification was not yet final during election day, the votes cast in his favor
could not be declared stray. Lonzanida’s subsequent disqualification resulted in a permanent
vacancy in the Office of Mayor, and Aratea, as the duly-elected Vice-Mayor, was mandated by
Section 4416 of the Local Government Code to succeed as Mayor.
The COMELEC’s Rulings
The COMELEC En Banc issued an Order dated 12 January 2011, stating:
Acting on the "Motion for Leave to Intervene and to Admit Attached Petition-in-Intervention" filed by
Estela D. Antipolo (Antipolo) and pursuant to the power of this Commission to suspend its Rules or
any portion thereof in the interest of justice, this Commission hereby RESOLVES to:
1. GRANT the aforesaid Motion;
2. ADMIT the Petition-in-Intervention filed by Antipolo;
3. REQUIRE the Respondent, ROMEO DUMLAO LONZANIDA, as well as EFREN RACEL

ARATEA, proclaimed Vice-Mayor of San Antonio, Zambales, to file their respective Comments on
the Petition-in- Intervention within a non-extendible period of five (5) days from receipt thereof;
4. SET the above-mentioned Petition-in-Intervention for hearing on January 26, 2011 at 10:00 a.m.
COMELEC Session Hall, 8th Floor, Palacio del Gobernador, Intramuros, Manila.
WHEREFORE, furnish copies hereof the parties for their information and compliance.
SO ORDERED.17
In its Resolution dated 2 February 2011, the COMELEC En Banc no longer considered Lonzanida’s
qualification as an issue: "It is beyond cavil that Lonzanida is not eligible to hold and discharge the
functions of the Office of the Mayor of San Antonio, Zambales. The sole issue to be resolved at this
juncture is how to fill the vacancy resulting from Lonzanida’s disqualification."18 The Resolution further
stated:
We cannot sustain the submission of Oppositor Aratea that Intervenor Antipolo could never be
proclaimed as the duly elected Mayor of Antipolo [sic] for being a second placer in the elections. The
teachings in the cases of Codilla vs. De Venecia and Nazareno and Domino vs. COMELEC, et al.,
while they remain sound jurisprudence find no application in the case at bar. What sets this case
apart from the cited jurisprudence is that the notoriety of Lonzanida’s disqualification and ineligibility
to hold public office is established both in fact and in law on election day itself. Hence, Lonzanida’s
name, as already ordered by the Commission on February 18, 2010 should have been stricken off
from the list of official candidates for Mayor of San Antonio, Zambales.
WHEREFORE, in view of the foregoing, the Commission hereby:
1. Declares NULL and VOID the proclamation of respondent ROMEO D. LONZANIDA;
2. GRANTS the Petition for Intervention of Estela D. Antipolo;
3. Orders the immediate CONSTITUTION of a Special Municipal Board of Canvassers to

PROCLAIM Intervenor Estela D. Antipolo as the duly elected Mayor of San Antonio, Zambales;
4. Orders Vice-Mayor Efren Racel Aratea to cease and desist from discharging the functions of the
Office of the Mayor, and to cause a peaceful turn-over of the said office to Antipolo upon her
proclamation; and
5. Orders the Office of the Executive Director as well as the Regional Election Director of Region III
to cause the implementation of this Resolution and disseminate it to the Department of Interior and
Local Government.
SO ORDERED.19
Aratea filed the present petition on 9 February 2011.
The Issues
The manner of filling up the permanent vacancy in the Office of the Mayor of San Antonio, Zambales
is dependent upon the determination of Lonzanida’s removal. Whether Lonzanida was disqualified
under Section 68 of the Omnibus Election Code, or made a false material representation under
Section 78 of the same Code that resulted in his certificate of candidacy being void ab initio, is
determinative of whether Aratea or Antipolo is the rightful occupant to the Office of the Mayor of San
Antonio, Zambales.
The dissenting opinions reverse the COMELEC’s 2 February 2011 Resolution and 12 January 2011
Order. They hold that Aratea, the duly elected Vice-Mayor of San Antonio, Zambales, should be
declared Mayor pursuant to the Local Government Code’s rule on succession.
The dissenting opinions make three grave errors: first, they ignore prevailing jurisprudence that a
false representation in the certificate of candidacy as to eligibility in the number of terms elected and
served is a material fact that is a ground for a petition to cancel a certificate of candidacy under
Section 78; second, they ignore that a false representation as to eligibility to run for public office due
to the fact that the candidate suffers from perpetual special disqualification is a material fact that is a
ground for a petition to cancel a certificate of candidacy under Section 78; and third, they resort to a
strained statutory construction to conclude that the violation of the three-term limit rule cannot be a
ground for cancellation of a certificate of candidacy under Section 78, even when it is clear and plain
that violation of the three-term limit rule is an ineligibility affecting the qualification of a candidate to
elective office.
The dissenting opinions tread on dangerous ground when they assert that a candidate’s eligibility to
the office he seeks election must be strictly construed to refer only to the details, i.e., age,
citizenship, or residency, among others, which the law requires him to state in his COC, and which
he must swear under oath to possess. The dissenting opinions choose to view a false certification of
a candidate’s eligibility on the three-term limit rule not as a ground for false material representation
under Section 78 but as a ground for disqualification under Section 68 of the same Code. This is
clearly contrary to well-established jurisprudence.
We hold that Antipolo, the alleged "second placer," should be proclaimed Mayor because
Lonzanida’s certificate of candidacy was void ab initio. In short, Lonzanida was never a candidate at
all. All votes for Lonzanida were stray votes. Thus, Antipolo, the only qualified candidate, actually
garnered the highest number of votes for the position of Mayor.
Qualifications and Disqualifications
Section 65 of the Omnibus Election Code points to the Local Government Code for the qualifications
of elective local officials. Paragraphs (a) and (c) of Section 39 and Section 40 of the Local
Government Code provide in pertinent part:
Sec. 39. Qualifications. ‒ (a) An elective local official must be a citizen of the Philippines; a
registered voter in the barangay, municipality, city or province x x x; a resident therein for at least
one (1) year immediately preceding the day of the election; and able to read and write Filipino or any
other local language or dialect.
xxxx
(c) Candidates for the position of mayor or vice-mayor of independent component cities, component
cities, or municipalities must be at least twenty-one (21) years of age on election day.
xxxx
Sec. 40. Disqualifications. - The following persons are disqualified from running for any elective local
position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an
offense punishable by one (1) year or more of imprisonment, within two (2) years after
serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-political cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad
and continue to avail of the same right after the effectivity of this Code; and
(g) The insane or feeble-minded. (Emphasis supplied)
Section 12 of the Omnibus Election Code provides:
Sec. 12. Disqualification. — Any person who has been declared by competent authority insane or
incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for
any offense for which he was sentenced to a penalty of more than eighteen months or for a
crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office,
unless he has been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed removed upon the
declaration by competent authority that said insanity or incompetence had been removed or after the
expiration of a period of five years from his service of sentence, unless within the same period he
again becomes disqualified. (Emphasis supplied)
The grounds for disqualification for a petition under Section 68 of the Omnibus Election Code are
specifically enumerated:
Sec. 68. Disqualifications. ‒ Any candidate who, in an action or protest in which he is a party is
given money or other material consideration to influence, induce or corrupt the voters or
public officials performing electoral functions; (b) committed acts of terrorism to enhance his
candidacy; (c) spent in his election campaign an amount in excess of that allowed by this
Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96,
97 and 104; (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc,
subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected,
from holding the office. Any person who is a permanent resident of or an immigrant to a foreign
country shall not be qualified to run for any elective office under this Code, unless said person has
waived his status as permanent resident or immigrant of a foreign country in accordance with the
residence requirement provided for in the election laws. (Emphasis supplied)
A petition for disqualification under Section 68 clearly refers to "the commission of prohibited acts
and possession of a permanent resident status in a foreign country."20 All the offenses mentioned
in Section 68 refer to election offenses under the Omnibus Election Code, not to violations of
other penal laws. There is absolutely nothing in the language of Section 68 that would justify
including violation of the three-term limit rule, or conviction by final judgment of the crime of
falsification under the Revised Penal Code, as one of the grounds or offenses covered under
Section 68. In Codilla, Sr. v. de Venecia,21 this Court ruled:
[T]he jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section
68 of the Omnibus Election Code. All other election offenses are beyond the ambit of COMELEC
jurisdiction. They are criminal and not administrative in nature. x x x
Clearly, the violation by Lonzanida of the three-term limit rule, or his conviction by final judgment of
the crime of falsification under the Revised Penal Code, does not constitute a ground for a petition
under Section 68.
False Material Representation
Section 78 of the Omnibus Election Code states that a certificate of candidacy may be denied or
cancelled when there is false material representation of the contents of the certificate of
candidacy:
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. ‒ A verified petition
seeking to deny due course or to cancel a certificate of candidacy may be filed by the
person exclusively on the ground that any material representation contained therein as
required under Section 74 hereof is false. The petition may be filed at any time not later than
twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after
due notice and hearing, not later than fifteen days before the election. (Emphasis supplied)
Section 74 of the Omnibus Election Code details the contents of the certificate of candidacy:
Sec. 74. Contents of certificate of candidacy. ‒ The certificate of candidacy shall state that the
person filing it is announcing his candidacy for the office stated therein and that he is eligible for
said office; if for Member of the Batasang Pambansa, the province, including its component cities,
highly urbanized city or district or sector which he seeks to represent; the political party to which he
the best of his knowledge.
x x x x (Emphasis supplied)
A candidate for mayor in the 2010 local elections was thus required to provide 12 items of
information in the certificate of candidacy:22 name; nickname or stage name; gender; age; place of
birth; political party that nominated the candidate; civil status; residence/address; profession or
occupation; post office address for election purposes; locality of which the candidate is a registered
voter; and period of residence in the Philippines before 10 May 2010. The candidate also certifies
four statements: a statement that the candidate is a natural born or naturalized Filipino citizen; a
statement that the candidate is not a permanent resident of, or immigrant to, a foreign country; a
statement that the candidate is eligible for the office he seeks election; and a statement of the
candidate’s allegiance to the Constitution of the Republic of the Philippines.23 The certificate of
candidacy should also be under oath, and filed within the period prescribed by law.
The conviction of Lonzanida by final judgment, with the penalty of prisión mayor, disqualifies him
perpetually from holding any public office, or from being elected to any public office. This
perpetual disqualification took effect upon the finality of the judgment of conviction, before
Lonzanida filed his certificate of candidacy. The pertinent provisions of the Revised Penal Code
are as follows:
Art. 27. Reclusion perpetua. — x x x

Prisión mayor and temporary disqualification. — The duration of the penalties of prisión
mayor and temporary disqualification shall be from six years and one day to twelve years,
except when the penalty of disqualification is imposed as an accessory penalty, in which
case, it shall be that of the principal penalty.
xxxx
Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. — The penalties
effects:
2. The deprivation of the right to vote in any election for any popular elective office or to be
elected to such office.
rights mentioned.
In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of

this article shall last during the term of the sentence.
Art. 31. Effects of the penalties of perpetual or temporary special disqualification. — The penalties
of perpetual or temporary special disqualification for public office, profession or calling shall
produce the following effects:
1. The deprivation of the office, employment, profession or calling affected.
2. The disqualification for holding similar offices or employments either perpetually or during the term
of the sentence, according to the extent of such disqualification.
the right of suffrage. — The perpetual or temporary special disqualification for the exercise of
the right of suffrage shall deprive the offender perpetually or during the term of the sentence,
according to the nature of said penalty, of the right to vote in any popular election for any public
office or to be elected to such office. Moreover, the offender shall not be permitted to hold any
public office during the period of his disqualification.
Art. 42. Prisión mayor — Its accessory penalties. — The penalty of prision mayor shall carry with it
that of temporary absolute disqualification and that of perpetual special disqualification from
the right of suffrage which the offender shall suffer although pardoned as to the principal penalty,
unless the same shall have been expressly remitted in the pardon. (Emphasis supplied)
The penalty of prisión mayor automatically carries with it, by operation of law,24 the accessory
penalties of temporary absolute disqualification and perpetual special disqualification. Under
Article 30 of the Revised Penal Code, temporary absolute disqualification produces the effect of
"deprivation of the right to vote in any election for any popular elective office or to be elected to such
office.” The duration of temporary absolute disqualification is the same as that of the principal
penalty of prisión mayor. On the other hand, under Article 32 of the Revised Penal Code, perpetual
special disqualification means that "the offender shall not be permitted to hold any public
office during the period of his disqualification,” which is perpetually. Both temporary absolute
disqualification and perpetual special disqualification constitute ineligibilities to hold elective public
office. A person suffering from these ineligibilities is ineligible to run for elective public office,
and commits a false material representation if he states in his certificate of candidacy that he
is eligible to so run.
In Lacuna v. Abes (Lacuna),25 the Court, speaking through Justice J.B.L. Reyes, explained the import
of the accessory penalty of perpetual special disqualification:
On the first defense of respondent-appellee Abes, it must be remembered that appellee’s conviction
of a crime penalized with prision mayor which carried the accessory penalties of temporary absolute
disqualification and perpetual special disqualification from the right of suffrage (Article 42, Revised
Penal Code); and Section 99 of the Revised Election Code disqualifies a person from voting if he
had been sentenced by final judgment to suffer one year or more of imprisonment.
October 1961.
temporary special disqualification, which lasts during the term of the sentence. Article 32, Revised
Penal Code, provides:
the period of disqualification.
The word "perpetually" and the phrase "during the term of the sentence" should be applied
distributively to their respective antecedents; thus, the word "perpetually" refers to the perpetual kind
of special disqualification, while the phrase "during the term of the sentence" refers to the temporary
special disqualification. The duration between the perpetual and the temporary (both special) are
necessarily different because the provision, instead of merging their durations into one period, states
that such duration is "according to the nature of said penalty" — which means according to whether
the penalty is the perpetual or the temporary special disqualification. (Emphasis supplied)
the convict of the right to vote or to be elected to or hold public office perpetually.”
judgment of conviction becomes final. The effectivity of this accessory penalty does not depend
on the duration of the principal penalty, or on whether the convict serves his jail sentence or not. The
during the period of his [perpetual special] disqualification." Once the judgment of conviction
becomes final, it is immediately executory. Any public office that the convict may be holding at the
time of his conviction becomes vacant upon finality of the judgment, and the convict becomes
ineligible to run for any elective public office perpetually. In the case of Lonzanida, he
became ineligible perpetually to hold, or to run for, any elective public office from the time
the judgment of conviction against him became final. The judgment of conviction was
promulgated on 20 July 2009 and became final on 23 October 2009, before Lonzanida filed his
certificate of candidacy on 1 December 2009 . 26
Perpetual special disqualification is a ground for a petition under Section 78 of the Omnibus
Election Code because this accessory penalty is an ineligibility, which means that the convict is not
eligible to run for public office, contrary to the statement that Section 74 requires him to state under
oath in his certificate of candidacy. As this Court held in Fermin v. Commission on Elections,27 the
false material representation may refer to "qualifications or eligibility.” One who suffers from
perpetual special disqualification is ineligible to run for public office. If a person suffering from
perpetual special disqualification files a certificate of candidacy stating under oath that "he is eligible
to run for (public) office," as expressly required under Section 74, then he clearly makes a false
material representation that is a ground for a petition under Section 78. As this Court explained
in Fermin:
false, which may relate to the qualifications required of the public office he/she is running
for. It is noted that the candidate states in his/her CoC that he/she is eligible for the office
he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional
and statutory provisions on qualifications or eligibility for public office. If the candidate
subsequently states a material representation in the CoC that is false, the COMELEC,
following the law, is empowered to deny due course to or cancel such certificate. Indeed, the
Court has already likened a proceeding under Section 78 to a quo warranto proceeding under
Section 253 of the OEC since they both deal with the eligibility or qualification of a candidate, with
the distinction mainly in the fact that a "Section 78" petition is filed before proclamation, while a
petition for quo warranto is filed after proclamation of the winning candidate.28(Emphasis supplied)
Latasa, Rivera and Ong:
The Three-Term Limit Rule as a Ground for Ineligibility
Section 74 requires the candidate to certify that he is eligible for the public office he seeks
election. Thus, Section 74 states that "the certificate of candidacy shall state that the person
filing x x x is eligible for said office.” The three-term limit rule, enacted to prevent the
establishment of political dynasties and to enhance the electorate’s freedom of choice,29 is found both
in the Constitution30 and the law.31 After being elected and serving for three consecutive terms, an
elective local official cannot seek immediate reelection for the same office in the next regular
election32 because he is ineligible. One who has an ineligibility to run for elective public office is not
"eligible for [the] office." As used in Section 74, the word "eligible"33 means having the right to run for
elective public office, that is, having all the qualifications and none of the ineligibilities to run for the
public office.
In Latasa v. Commission on Elections,34 petitioner Arsenio Latasa was elected mayor of the
Municipality of Digos, Davao del Sur in 1992, 1995, and 1998. The Municipality of Digos was
converted into the City of Digos during Latasa’s third term. Latasa filed his certificate of candidacy
for city mayor for the 2001 elections. Romeo Sunga, Latasa’s opponent, filed before the COMELEC
a "petition to deny due course, cancel certificate of candidacy and/or disqualification" under Section
78 on the ground that Latasa falsely represented in his certificate of candidacy that he is eligible to
run as mayor of Digos City. Latasa argued that he did not make any false representation. In his
certificate of candidacy, Latasa inserted a footnote after the phrase "I am eligible" and indicated
"*Having served three (3) term[s] as municipal mayor and now running for the first time as city
mayor." The COMELEC First Division cancelled Latasa’s certificate of candidacy for violation of the
three-term limit rule but not for false material representation. This Court affirmed the COMELEC En
Banc’s denial of Latasa’s motion for reconsideration.
We cancelled Marino Morales’ certificate of candidacy in Rivera III v. Commission on

Elections (Rivera).35 We held that Morales exceeded the maximum three-term limit, having been
elected and served as Mayor of Mabalacat for four consecutive terms (1995 to 1998, 1998 to 2001,
2001 to 2004, and 2004 to 2007). We declared him ineligible as a candidate for the same position for
the 2007 to 2010 term. Although we did not explicitly rule that Morales’ violation of the three-term
limit rule constituted false material representation, we nonetheless granted the petition to cancel
Morales’ certificate of candidacy under Section 78. We also affirmed the cancellation of Francis
Ong’s certificate of candidacy in Ong v. Alegre,36 where the "petition to disqualify, deny due course
and cancel" Ong’s certificate of candidacy under Section 78 was predicated on the violation of the
three-term limit rule.
Loong, Fermin and Munder:
When Possession of a Disqualifying Condition

is Not a Ground for a Petition for Disqualification
It is obvious from a reading of the laws and jurisprudence that there is an overlap in the grounds for
eligibility and ineligibility vis-à-vis qualifications and disqualifications. For example, a candidate may
represent that he is a resident of a particular Philippine locality37 when he is actually a permanent
resident of another country.38 In cases of such overlap, the petitioner should not be constrained in his
choice of remedy when the Omnibus Election Code explicitly makes available multiple
remedies.39 Section 78 allows the filing of a petition to deny due course or to cancel a certificate of
candidacy before the election, while Section 253 allows the filing of a petition for quo warranto after
the election. Despite the overlap of the grounds, one should not confuse a petition for disqualification
using grounds enumerated in Section 68 with a petition to deny due course or to cancel a certificate
of candidacy under Section 78.
The distinction between a petition under Section 68 and a petition under Section 78 was discussed
in Loong v. Commission on Elections40 with respect to the applicable prescriptive period. Respondent
Nur Hussein Ututalum filed a petition under Section 78 to disqualify petitioner Benjamin Loong for
the office of Regional Vice-Governor of the Autonomous Government of Muslim Mindanao for false
representation as to his age. The petition was filed 16 days after the election, and clearly beyond the
prescribed 25 day period from the last day of filing certificates of candidacy. This Court ruled that
Ututalum’s petition was one based on false representation under Section 78, and not for
disqualification under Section 68. Hence, the 25-day prescriptive period provided in Section 78
should be strictly applied. We recognized the possible gap in the law:
It is true that the discovery of false representation as to material facts required to be stated in a
certificate of candidacy, under Section 74 of the Code, may be made only after the lapse of the 25-
day period prescribed by Section 78 of the Code, through no fault of the person who discovers such
misrepresentations and who would want the disqualification of the candidate committing the
misrepresentations. It would seem, therefore, that there could indeed be a gap between the time of
the discovery of the misrepresentation, (when the discovery is made after the 25-day period under
Sec. 78 of the Code has lapsed) and the time when the proclamation of the results of the election is
made. During this so-called "gap" the would-be petitioner (who would seek the disqualification of the
candidate) is left with nothing to do except to wait for the proclamation of the results, so that he could
avail of a remedy against the misrepresenting candidate, that is, by filing a petition for quo warranto
against him. Respondent Commission sees this "gap" in what it calls a procedural gap which,
according to it, is unnecessary and should be remedied.
At the same time, it can not be denied that it is the purpose and intent of the legislative branch of the
government to fix a definite time within which petitions of protests related to eligibility of candidates
for elective offices must be filed, as seen in Sections 78 and 253 of the Code. Respondent
Commission may have seen the need to remedy this so-called “procedural gap", but it is not for it to
prescribe what the law does not provide, its function not being legislative. The question of whether
the time to file these petitions or protests is too short or ineffective is one for the Legislature to
decide and remedy.41
In Fermin v. Commission on Elections,42 the issue of a candidate’s possession of the required one-
year residency requirement was raised in a petition for disqualification under Section 68 instead of a
petition to deny due course or to cancel a certificate of candidacy under Section 78. Despite the
question of the one-year residency being a proper ground under Section 78, Dilangalen, the
petitioner before the COMELEC in Fermin, relied on Section 5(C)(1) and 5(C)(3)(a)(4) of COMELEC
Resolution No. 780043 and filed the petition under Section 68. In Fermin, we ruled that "a COMELEC
rule or resolution cannot supplant or vary legislative enactments that distinguish the grounds for
disqualification from those of ineligibility, and the appropriate proceedings to raise the said
grounds."44 A petition for disqualification can only be premised on a ground specified in Section 12 or
68 of the Omnibus Election Code or Section 40 of the Local Government Code. Thus, a petition
questioning a candidate’s possession of the required one-year residency requirement, as
distinguished from permanent residency or immigrant status in a foreign country, should be filed
under Section 78, and a petition under Section 68 is the wrong remedy.
In Munder v. Commission on Elections,45 petitioner Alfais Munder filed a certificate of candidacy for
Mayor of Bubong, Lanao del Sur on 26 November 2009. Respondent Atty. Tago Sarip filed a petition
for Munder’s disqualification on 13 April 2010. Sarip claimed that Munder misrepresented that he
was a registered voter of Bubong, Lanao del Sur, and that he was eligible to register as a voter in
2003 even though he was not yet 18 years of age at the time of the voter’s registration. Moreover,
Munder’s certificate of candidacy was not accomplished in full as he failed to indicate his precinct
and did not affix his thumb-mark. The COMELEC Second Division dismissed Sarip’s petition and
declared that his grounds are not grounds for disqualification under Section 68 but for denial or
cancellation of Munder’s certificate of candidacy under Section 78. Sarip’s petition was filed out of
time as he had only 25 days after the filing of Munder’s certificate of candidacy, or until 21 December
2009, within which to file his petition.
The COMELEC En Banc, however, disqualified Munder. In reversing the COMELEC Second
Division, the COMELEC En Banc did not rule on the propriety of Sarip’s remedy but focused on the
question of whether Munder was a registered voter of Bubong, Lanao del Sur. This Court reinstated
the COMELEC Second Division’s resolution. This Court ruled that the ground raised in the petition,
lack of registration as voter in the locality where he was running as a candidate, is inappropriate for a
petition for disqualification. We further declared that with our ruling in Fermin, we had already
rejected the claim that lack of substantive qualifications of a candidate is a ground for a petition for
disqualification under Section 68. The only substantive qualification the absence of which is a
ground for a petition under Section 68 is the candidate’s permanent residency or immigrant status in
a foreign country.
The dissenting opinions place the violation of the three-term limit rule as a disqualification under
Section 68 as the violation allegedly is "a status, circumstance or condition which bars him from
running for public office despite the possession of all the qualifications under Section 39 of the [Local
Government Code]." In so holding the dissenting opinions write in the law what is not found in the
law. Section 68 is explicit as to the proper grounds for disqualification under said Section. The
grounds for filing a petition for disqualification under Section 68 are specifically enumerated in said
Section. However, contrary to the specific enumeration in Section 68 and contrary to prevailing
jurisprudence, the dissenting opinions add to the enumerated grounds the violation of the three-term
limit rule and falsification under the Revised Penal Code, which are obviously not found in the
enumeration in Section 68.
The dissenting opinions equate Lonzanida’s possession of a disqualifying condition (violation of the
three-term limit rule) with the grounds for disqualification under Section 68. Section 68 is explicit as
to the proper grounds for disqualification: the commission of specific prohibited acts under the
Omnibus Election Code and possession of a permanent residency or immigrant status in a foreign
country. Any other false representation regarding a material fact should be filed under Section 78,
specifically under the candidate’s certification of his eligibility. In rejecting a violation of the three-
term limit as a condition for eligibility, the dissenting opinions resort to judicial legislation, ignoring
the verba legis doctrine and well-established jurisprudence on this very issue.
In a certificate of candidacy, the candidate is asked to certify under oath his eligibility, and thus
qualification, to the office he seeks election. Even though the certificate of candidacy does not
specifically ask the candidate for the number of terms elected and served in an elective position,
such fact is material in determining a candidate’s eligibility, and thus qualification for the office.
Election to and service of the same local elective position for three consecutive terms renders a
candidate ineligible from running for the same position in the succeeding elections. Lonzanida
misrepresented his eligibility because he knew full well that he had been elected, and had served, as
mayor of San Antonio, Zambales for more than three consecutive terms yet he still certified that he
was eligible to run for mayor for the next succeeding term. Thus, Lonzanida’s representation that he
was eligible for the office that he sought election constitutes false material representation as to his
qualification or eligibility for the office.
Legal Duty of COMELEC

to Enforce Perpetual Special Disqualification
Even without a petition under Section 78 of the Omnibus Election Code, the COMELEC is under a
legal duty to cancel the certificate of candidacy of anyone suffering from perpetual special
of conviction is judicial notice to the COMELEC of the disqualification of the convict from running for
public office. The law itself bars the convict from running for public office, and the disqualification is
part of the final judgment of conviction. The final judgment of the court is addressed not only to the
under the law.
election."46 The disqualification of a convict to run for elective public office under the Revised Penal
Code, as affirmed by final judgment of a competent court, is part of the enforcement and
administration of "all the laws" relating to the conduct of elections.
Effect of a Void Certificate of Candidacy

A cancelled certificate of candidacy void ab initio cannot give rise to a valid candidacy, and much
less to valid votes.47 We quote from the COMELEC’s 2 February 2011 Resolution with approval:
As early as February 18, 2010, the Commission speaking through the Second Division had already
ordered the cancellation of Lonzanida’s certificate of candidacy, and had stricken off his name in the
list of official candidates for the mayoralty post of San Antonio, Zambales. Thereafter, the
Commission En Banc in its resolution dated August 11, 2010 unanimously affirmed the resolution
disqualifying Lonzanida. Our findings were likewise sustained by the Supreme Court no less. The
disqualification of Lonzanida is not simply anchored on one ground. On the contrary, it was
emphasized in our En Banc resolution that Lonzanida’s disqualification is two-pronged: first, he
violated the constitutional fiat on the three-term limit; and second, as early as December 1, 2009, he
is known to have been convicted by final judgment for ten (10) counts of Falsification under Article
171 of the Revised Penal Code. In other words, on election day, respondent Lonzanida’s
disqualification is notoriously known in fact and in law. Ergo, since respondent Lonzanida was never
a candidate for the position of Mayor [of] San Antonio, Zambales, the votes cast for him should be
considered stray votes. Consequently, Intervenor Antipolo, who remains as the sole qualified
candidate for the mayoralty post and obtained the highest number of votes, should now be
proclaimed as the duly elected Mayor of San Antonio, Zambales.48 (Boldfacing and underscoring in
the original; italicization supplied)
Lonzanida's certificate of candidacy was cancelled because he was ineligible or not qualified to run
for Mayor. Whether his certificate of candidacy is cancelled before or after the elections is immaterial
1âw phi 1
because the cancellation on such ground means he was never a candidate from the very beginning,
his certificate of candidacy being void ab initio. There was only one qualified candidate for Mayor in
the May 201 0 elections - Anti polo, who therefore received the highest number of votes.
WHEREFORE, the petition is DISMISSED. The Resolution dated 2 February 2011 and the Order
dated 12 January 2011 of the COMELEC En Bane in SPA No. 09-158 (DC) are AFFIRMED. The
COMELEC En Bane is DIRECTED to constitute a Special Municipal Board of Canvassers to
proclaim Estela D. Antipolo as the duly elected Mayor of San Antonio, Zambales. Petitioner Efren
Racel Aratea is ORDERED to cease and desist from discharging the functions of the Office of the
Mayor of San Antonio, Zambales.
SO ORDERED.
93

SUPREME COURT
Manila
EN BANC
G.R. No. 196804 October 9, 2012
MAYOR BARBARA RUBY C. TALAGA, Petitioner,

vs.
COMMISSION ON ELECTIONS and RODERICK A. ALCALA, Respondents.
x-----------------------x
G.R. No. 197015
PHILIP M. CASTILLO, Petitioner,

vs.
COMMISSION ON ELECTIONS, BARBARA RUBY TALAGA and RODERICK A.
ALCALA, Respondents.
DECISION
BERSAMIN, J.:
In focus in these consolidated special civil actions are the disqualification of a substitute who was
proclaimed the winner of a mayoralty election; and the ascertainment of who should assume the
office following the substitute’s disqualification.
The consolidated petitions for certiorari seek to annul and set aside the En Banc Resolution issued
on May 20, 2011 in SPC No. 10-024 by the Commission on Elections (COMELEC), the dispositive
portion of which states:
WHEREFORE, judgment is hereby rendered:
1. REVERSING and SETTING ASIDE the January 11, 2011 Resolution of the Second
Division;
2. GRANTING the petition in intervention of Roderick A. Alcala;
3. ANNULLING the election and proclamation of respondent Barbara C. Talaga as mayor of

Lucena City and CANCELLING the Certificate of Canvass and Proclamation issued therefor;
4. Ordering respondent Barbara Ruby Talaga to cease and desist from discharging the
functions of the Office of the Mayor;
5. In view of the permanent vacancy in the Office of the Mayor of Lucena City, the
proclaimed Vice-Mayor is ORDERED to succeed as Mayor as provided under Section 44 of
the Local Government Code;
6. DIRECTING the Clerk of Court of the Commission to furnish copies of this Resolution to
the Office of the President of the Philippines, the Department of Interior and Local
Government, the Department of Finance and the Secretary of the Sangguniang Panglunsod
of Lucena City.
Let the Department of Interior and Local Government and the Regional Election Director of Region
IV of COMELEC implement this resolution.
SO ORDERED.1
Antecedents
On November 26, 2009 and December 1, 2009, Ramon Talaga (Ramon) and Philip M. Castillo
(Castillo) respectively filed their certificates of candidacy (CoCs) for the position of Mayor of Lucena
City to be contested in the scheduled May 10, 2010 national and local elections.2
Ramon, the official candidate of the Lakas-Kampi-CMD,3 declared in his CoC that he was eligible for
the office he was seeking to be elected to.
Four days later, or on December 5, 2009, Castillo filed with the COMELEC a petition denominated
as In the Matter of the Petition to Deny Due Course to or Cancel Certificate of Candidacy of Ramon
Y. Talaga, Jr. as Mayor for Having Already Served Three (3) Consecutive Terms as a City Mayor of
Lucena, which was docketed as SPA 09-029 (DC).4 He alleged
therein that Ramon, despite knowing that he had been elected and had served three consecutive
terms as Mayor of Lucena City, still filed his CoC for Mayor of Lucena City in the May 10, 2010
national and local elections.
The pertinent portions of Castillo’s petition follow:
1. Petitioner is of legal age, Filipino, married, and a resident of Barangay Mayao Crossing,
Lucena City but may be served with summons and other processes of this Commission at
the address of his counsel at 624 Aurora Blvd., Lucena City 4301;
2. Respondent Ramon Y. Talaga, Jr. is likewise of legal age, married, and a resident of
Barangay Ibabang Iyam, Lucena City and with postal address at the Office of the City Mayor,
City Hall, Lucena City, where he may be served with summons and other processes of this
Commission;
3. Petitioner, the incumbent city vice-mayor of Lucena having been elected during the 2007
local elections, is running for city mayor of Lucena under the Liberal party this coming 10
May 2010 local elections and has filed his certificate of candidacy for city mayor of Lucena;
4. Respondent was successively elected mayor of Lucena City in 2001, 2004, and 2007 local
elections based on the records of the Commission on Elections of Lucena City and had fully
served the aforesaid three (3) terms without any voluntary and involuntary interruption;
5. Except the preventive suspension imposed upon him from 13 October 2005 to 14
November 2005 and from 4 September 2009 to 30 October 2009 pursuant to
Sandiganbayan 4th Division Resolution in Criminal Case No. 27738 dated 3 October 2005,
the public service as city mayor of the respondent is continuous and uninterrupted under the
existing laws and jurisprudence;
6. There is no law nor jurisprudence to justify the filing of the certificate of candidacy of the
respondent, hence, such act is outrightly unconstitutional, illegal, and highly immoral;
7. Respondent, knowing well that he was elected for and had fully served three (3)
consecutive terms as a city mayor of Lucena, he still filed his Certificate of Candidacy for City
Mayor of Lucena for this coming 10 May 2010 national and local elections;
8. Under the Constitution and existing Election Laws, New Local Government Code of the
Philippines, and jurisprudence the respondent is no longer entitled and is already disqualified
to be a city mayor for the fourth consecutive term;
9. The filing of the respondent for the position of city mayor is highly improper, unlawful and
is potentially injurious and prejudicial to taxpayers of the City of Lucena; and
10. It is most respectfully prayed by the petitioner that the respondent be declared
disqualified and no longer entitled to run in public office as city mayor of Lucena City based
on the existing law and jurisprudence.5
The petition prayed for the following reliefs, to wit:
WHEREFORE, premises considered, it is respectfully prayed that the Certificate of Candidacy filed
by the respondent be denied due course to or cancel the same and that he be declared as a
disqualified candidate under the existing Election Laws and by the provisions of the New Local
Government Code.6 (Emphasis supplied.)
Ramon countered that that the Sandiganbayan had preventively suspended him from office during
his second and third terms; and that the three-term limit rule did not then apply to him pursuant to
the prevailing jurisprudence7 to the effect that an involuntary separation from office amounted to an
interruption of continuity of service for purposes of the application of the three-term limit rule.
In the meantime, on December 23, 2009, the Court promulgated the ruling in Aldovino, Jr. v.
Commission on Elections,8 holding that preventive suspension, being a mere temporary incapacity,
was not a valid ground for avoiding the effect of the three-term limit rule. Thus, on December 30,
2009, Ramon filed in the COMELEC a Manifestation with Motion to Resolve, taking into account the
intervening ruling in Aldovino. Relevant portions of his Manifestation with Motion to Resolve are
quoted herein, viz:
4. When respondent filed his certificate of candidacy for the position of Mayor of Lucena City, the
rule that ‘where the separation from office is caused by reasons beyond the control of the officer –
i.e. involuntary – the service of term is deemed interrupted’ has not yet been overturned by the new
ruling of the Supreme Court. As a matter of fact, the prevailing rule then of the Honorable
Commission in [sic] respect of the three (3)-term limitation was its decision in the case of Aldovino,
et al. vs. Asilo where it stated:
"Thus, even if respondent was elected during the 2004 elections, which was supposedly his third
and final term as city councilor, the same cannot be treated as a complete service or full term in
office since the same was interrupted when he was suspended by the Sandiganbayan Fourth
Division. And the respondent actually heeded the suspension order since he did not receive his
salary during the period October 16-31 and November 1-15 by reason of his actual suspension from
office. And this was further bolstered by the fact that the DILG issued a
Memorandum directing him, among others, to reassume his position." (Emphasis supplied.)
5. Clearly, there was no misrepresentation on the part of respondent as would constitute a ground
for the denial of due course to and/or the cancellation of respondent’s certificate of candidacy at the
time he filed the same. Petitioner’s ground for the denial of due course to and/or the cancellation of
respondent’s certificate of candidacy thus has no basis, in fact and in law, as there is no ground to
warrant such relief under the Omnibus Election Code and/or its implementing laws.
6. Pursuant, however, to the new ruling of the Supreme Court in respect of the issue on the three
(3)-term limitation, respondent acknowledges that he is now DISQUALIFIED to run for the position of
Mayor of Lucena City having served three (3) (albeit interrupted) terms as Mayor of Lucena City prior
to the filing of his certificate of candidacy for the 2010 elections.
7. In view of the foregoing premises and new jurisprudence on the matter, respondent respectfully
submits the present case for decision declaring him as DISQUALIFIED to run for the position of
Mayor of Lucena City.9
Notwithstanding his express recognition of his disqualification to run as Mayor of Lucena City in the
May 10, 2010 national and local elections, Ramon did not withdraw his CoC.
Acting on Ramon’s Manifestation with Motion to Resolve, the COMELEC First Division issued a
Resolution on April 19, 2010,10 disposing as follows:
WHEREFORE, premises considered, the instant Petition is hereby GRANTED. Accordingly, Ramon
Y. Talaga, Jr. is hereby declared DISQUALIFIED to run for Mayor of Lucena City for the 10 May
2010 National and Local Elections.
SO ORDERED.
Initially, Ramon filed his Verified Motion for Reconsideration against the April 19, 2010 Resolution of
the COMELEC First Division.11 Later on, however, he filed at 9:00 a.m. of May 4, 2010 an Ex-parte
Manifestation of Withdrawal of the Pending Motion for Reconsideration.12 At 4:30 p.m. on the same
date, Barbara Ruby filed her own CoC for Mayor of Lucena City in substitution of Ramon, attaching
thereto the Certificate of Nomination and Acceptance (CONA) issued by Lakas-Kampi-CMD, the
party that had nominated Ramon.13
On May 5, 2010, the COMELEC En Banc, acting on Ramon’s Ex parte Manifestation of Withdrawal,
declared the COMELEC First Division’s Resolution dated April 19, 2010 final and executory.14
On election day on May 10, 2010, the name of Ramon remained printed on the ballots but the votes
cast in his favor were counted in favor of Barbara Ruby as his substitute candidate, resulting in
Barbara Ruby being ultimately credited with 44,099 votes as against Castillo’s 39,615 votes.15
Castillo promptly filed a petition in the City Board of Canvassers (CBOC) seeking the suspension of
Barbara Ruby’s proclamation.16
It was only on May 13, 2010 when the COMELEC En Banc, upon the recommendation of its Law
Department,17gave due course to Barbara Ruby’s CoC and CONA through Resolution No. 8917,
thereby including her in the certified list of candidates.18 Consequently, the CBOC proclaimed
Barbara Ruby as the newly-elected Mayor of Lucena City.19
On May 20, 2010, Castillo filed a Petition for Annulment of Proclamation with the
COMELEC,20 docketed as SPC 10-024. He alleged that Barbara Ruby could not substitute Ramon
because his CoC had been cancelled and denied due course; and Barbara Ruby could not be
considered a candidate because the COMELEC En Banc had approved her substitution three days
after the elections; hence, the votes cast for Ramon should be considered stray.
In her Comment on the Petition for Annulment of Proclamation,21 Barbara Ruby maintained the
validity of her substitution. She countered that the COMELEC En Banc did not deny due course to or
cancel Ramon’s COC, despite a declaration of his disqualification, because there was no finding that
he had committed misrepresentation, the ground for the denial of due course to or cancellation of his
COC. She prayed that with her valid substitution, Section 12 of Republic Act No. 900622 applied,
based on which the votes cast for Ramon were properly counted in her favor.
On July 26, 2010, Roderick Alcala (Alcala), the duly-elected Vice Mayor of Lucena City, sought to
intervene,23positing that he should assume the post of Mayor because Barbara Ruby’s substitution
had been invalid and Castillo had clearly lost the elections.
On January 11, 2011, the COMELEC Second Division dismissed Castillo’s petition and Alcala’s
petition-in-intervention,24 holding:
In the present case, Castillo was notified of Resolution 8917 on May 13, 2010 as it was the basis for
the proclamation of Ruby on that date. He, however, failed to file any action within the prescribed
period either in the Commission or the Supreme Court assailing the said resolution. Thus, the said
resolution has become final and executory. It cannot anymore be altered or reversed.
xxxx
x x x. A close perusal of the petition filed by Castillo in SPA 10-029 (Dc) shows that it was actually
for the disqualification of Ramon for having served three consecutive terms, which is a ground for his
disqualification under the Constitution in relation to Section 4(b)3 of Resolution 8696. There was no
mention therein that Ramon has committed material representation that would be a ground for the
cancellation or denial of due course to the CoC of Ramon under Section 78 of the Omnibus Election
Code. The First Division, in fact, treated the petition as one for disqualification as gleaned from the
body of the resolution and its dispositive portion quoted above. This treatment of the First Division of
the petition as one for disqualification only is affirmed by the fact that its members signed Resolution
No. 8917 where it was clearly stated that the First Division only disqualified Ramon.
Having been disqualified only, the doctrine laid down in Miranda v. Abaya is not applicable. Ramon
was rightly substituted by Ruby. As such, the votes for Ramon cannot be considered as stray votes
but should be counted in favor of Ruby since the substituted and the substitute carry the same
surname – Talaga, as provided in Section 12 of Republic Act No. 9006.
xxxx
Moreover, there is no provision in the Omnibus Election Code or any election laws for that matter
which requires that the substitution and the Certificate of Candidacy of the substitute should be
approved and given due course first by the Commission or the Law Department before it can be
considered as effective. All that Section 77 of the Omnibus Election Code as implemented by
Section 13 of Resolution No. 8678 requires is that it should be filed with the proper office. The
respondent is correct when she argued that in fact even the BEI can receive a CoC of a substitute
candidate in case the cause for the substitution happened between the day before the election and
mid-day of election day. Thus, even if the approval of the substitution was made after the election,
the substitution became effective on the date of the filing of the CoC with the Certificate of
Nomination and Acceptance.
There being no irregularity in the substitution by Ruby of Ramon as candidate for mayor of Lucena
City, the counting of the votes of Ramon in favor of Ruby is proper. The proclamation, thus, of Ruby
as mayor elect of Lucena City is in order. Hence, we find no cogent reason to annul the proclamation
of respondent Barbara Ruby C. Talaga as the duly elected Mayor of the City of Lucena after the
elections conducted on May 10, 2010.25
Acting on Castillo and Alcala’s respective motions for reconsideration, the COMELEC En Banc
issued the assailed Resolution dated May 20, 2011 reversing the COMELEC Second Division’s
ruling.26
Pointing out that: (a) Resolution No. 8917 did not attain finality for being issued without a hearing as
a mere incident of the COMELEC’s ministerial duty to receive the COCs of substitute candidates; (b)
Resolution No. 8917 was based on the wrong facts; and (c) Ramon’s disqualification was resolved
with finality only on May 5, 2010, the COMELEC En Banc concluded that Barbara Ruby could not
have properly substituted Ramon but had simply become an additional candidate who had filed her
COC out of time; and held that Vice Mayor Alcala should succeed to the position pursuant to Section
44 of the Local Government Code (LGC).27
Issues
The core issue involves the validity of the substitution by Barbara Ruby as candidate for the position
of Mayor of Lucena City in lieu of Ramon, her husband.
Ancillary to the core issue is the determination of who among the contending parties should assume
the contested elective position.
Ruling
The petitions lack merit.
1.
Existence of a valid CoC is a condition

sine qua non for a valid substitution
The filing of a CoC within the period provided by law is a mandatory requirement for any person to
be considered a candidate in a national or local election. This is clear from Section 73 of the
Omnibus Election Code, to wit:
Section 73. Certificate of candidacy — No person shall be eligible for any elective public office
unless he files a sworn certificate of candidacy within the period fixed herein.
Section 74 of the Omnibus Election Code specifies the contents of a COC, viz:
Section 74. Contents of certificate of candidacy.—The certificate of candidacy shall state that the
person filing it is announcing his candidacy for the office stated therein and that he is eligible for said
office; if for Member of the Batasang Pambansa, the province, including its component cities, highly
urbanized city or district or sector which he seeks to represent; the political party to which he
the best of his knowledge. x x x
The evident purposes of the requirement for the filing of CoCs and in fixing the time limit for filing
them are, namely: (a) to enable the voters to know, at least 60 days prior to the regular election, the
candidates from among whom they are to make the choice; and (b) to avoid confusion and
inconvenience in the tabulation of the votes cast. If the law does not confine to the duly-registered
candidates the choice by the voters, there may be as many persons voted for as there are voters,
and votes may be cast even for unknown or fictitious persons as a mark to identify the votes in favor
of a candidate for another office in the same election.28 Moreover, according to Sinaca v. Mula,29 the
CoC is:
x x x in the nature of a formal manifestation to the whole world of the candidate’s political creed or
lack of political creed. It is a statement of a person seeking to run for a public office certifying that he
announces his candidacy for the office mentioned and that he is eligible for the office, the name of
the political party to which he belongs, if he belongs to any, and his post-office address for all
election purposes being as well stated.
Accordingly, a person’s declaration of his intention to run for public office and his affirmation that he
possesses the eligibility for the position he seeks to assume, followed by the timely filing of such
declaration, constitute a valid CoC that render the person making the declaration a valid or official
candidate.
There are two remedies available to prevent a candidate from running in an electoral race. One is
through a petition for disqualification and the other through a petition to deny due course to or cancel
a certificate of candidacy. The Court differentiated the two remedies in Fermin v. Commission on
Elections,30 thuswise:
x x x A petition for disqualification, on the one hand, can be premised on Section 12 or 68 of the
Omnibus Election Code, or Section 40 of the Local Government Code. On the other hand, a petition
to deny due course to or cancel a CoC can only be grounded on a statement of a material
representation in the said certificate that is false. The petitions also have different effects. While a
person who is disqualified under Section 68 is merely prohibited to continue as a candidate, the
person whose certificate is cancelled or denied due course under Section 78 is not treated as a
candidate at all, as if he/she never filed a CoC.31
Inasmuch as the grounds for disqualification under Section 68 of the Omnibus Election Code (i.e.,
prohibited acts of candidates, and the fact of a candidate’s permanent residency in another country
when that fact affects the residency requirement of a candidate) are separate and distinct from the
grounds for the cancellation of or denying due course to a COC (i.e., nuisance candidates under
Section 69 of the Omnibus Election Code; and material misrepresentation under Section 78 of the
Omnibus Election Code), the Court has recognized in Miranda v. Abaya32that the following
circumstances may result from the granting of the petitions, to wit:
(1) A candidate may not be qualified to run for election but may have filed a valid CoC;
(2) A candidate may not be qualified and at the same time may not have filed a valid CoC;
and
(3) A candidate may be qualified but his CoC may be denied due course or cancelled.
In the event that a candidate is disqualified to run for a public office, or dies, or withdraws his CoC
before the elections, Section 77 of the Omnibus Election Code provides the option of substitution, to
wit:
Section 77. Candidates in case of death, disqualification or withdrawal. — If after the last day for the
filing of certificates of candidacy, an official candidate of a registered or accredited political party
dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the
same political party may file a certificate of candidacy to replace the candidate who died, withdrew or
was disqualified. The substitute candidate nominated by the political party concerned may file his
certificate of candidacy for the office affected in accordance with the preceding sections not later
than mid-day of the day of the election. If the death, withdrawal or disqualification should occur
between the day before the election and mid-day of election day, said certificate may be filed with
any board of election inspectors in the political subdivision where he is a candidate, or, in the case of
candidates to be voted for by the entire electorate of the country, with the Commission.
Nonetheless, whether the ground for substitution is death, withdrawal or disqualification of a

candidate, Section 77 of the Omnibus Election Code unequivocally states that only an official
candidate of a registered or accredited party may be substituted.
Considering that a cancelled CoC does not give rise to a valid candidacy,33 there can be no valid
substitution of the candidate under Section 77 of the Omnibus Election Code. It should be clear, too,
that a candidate who does not file a valid CoC may not be validly substituted, because a person
without a valid CoC is not considered a candidate in much the same way as any person who has not
filed a CoC is not at all a candidate.34
Likewise, a candidate who has not withdrawn his CoC in accordance with Section 73 of the Omnibus
Election Code may not be substituted. A withdrawal of candidacy can only give effect to a
substitution if the substitute candidate submits prior to the election a sworn CoC as required by
Section 73 of the Omnibus Election Code.35
2.
Declaration of Ramon’s disqualification

rendered his CoC invalid; hence, he was not
a valid candidate to be properly substituted
In the light of the foregoing rules on the CoC, the Court concurs with the conclusion of the
COMELEC En Banc that the Castillo petition in SPA 09-029 (DC) was in the nature of a petition to
deny due course to or cancel a CoC under Section 78 of the Omnibus Election Code.
In describing the nature of a Section 78 petition, the Court said in Fermin v. Commission on
Elections:36
false, which may relate to the qualifications required of the public office he/she is running for. It is
noted that the candidate states in his/her CoC that he/she is eligible for the office he/she seeks.
Section 78 of the OEC, therefore, is to be read in relation to the constitutional and statutory
provisions on qualifications or eligibility for public office. If the candidate subsequently states a
material representation in the CoC that is false, the COMELEC, following the law, is empowered to
deny due course to or cancel such certificate. Indeed, the Court has already likened a proceeding
under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they both deal
with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a "Section
78" petition is filed before proclamation, while a petition for quo warranto is filed after proclamation of
the winning candidate.
Castillo’s petition contained essential allegations pertaining to a Section 78 petition, namely: (a)
Ramon made a false representation in his CoC; (b) the false representation referred to a material
matter that would affect the substantive right of Ramon as candidate (that is, the right to run for the
election for which he filed his certificate); and (c) Ramon made the false representation with the
intention to deceive the electorate as to his qualification for public office or deliberately attempted to
mislead, misinform, or hide a fact that would otherwise render him ineligible.37 The petition expressly
challenged Ramon’s eligibility for public office based on the prohibition stated in the Constitution and
the Local Government Code against any person serving three consecutive terms, and specifically
prayed that "the Certificate of Candidacy filed by the respondent Ramon be denied due course to or
cancel the same and that he be declared as a disqualified candidate."38
The denial of due course to or the cancellation of the CoC under Section 78 involves a finding not
only that a person lacks a qualification but also that he made a material representation that is
false.39 A petition for the denial of due course to or cancellation of CoC that is short of the
requirements will not be granted. In Mitra v. Commission on Elections,40 the Court stressed that there
must also be a deliberate attempt to mislead, thus:
The false representation under Section 78 must likewise be a "deliberate attempt to mislead,
misinform, or hide a fact that would otherwise render a candidate ineligible." Given the purpose of
the requirement, it must be made with the intention to deceive the electorate as to the would-be
candidate’s qualifications for public office. Thus, the misrepresentation that Section 78 addresses
cannot be the result of a mere innocuous mistake, and cannot exist in a situation where the intent to
deceive is patently absent, or where no deception on the electorate results. The deliberate character
of the misrepresentation necessarily follows from a consideration of the consequences of any
material falsity: a candidate who falsifies a material fact cannot run; if he runs and is elected, he
cannot serve; in both cases, he can be prosecuted for violation of the election laws.
It is underscored, however, that a Section 78 petition should not be interchanged or confused with a
Section 68 petition. The remedies under the two sections are different, for they are based on
different grounds, and can result in different eventualities.41 A person who is disqualified under
Section 68 is prohibited to continue as a candidate, but a person whose CoC is cancelled or denied
due course under Section 78 is not considered as a candidate at all because his status is that of a
person who has not filed a CoC.42 Miranda v. Abaya43 has clarified that a candidate who is disqualified
under Section 68 can be validly substituted pursuant to Section 77 because he remains a candidate
until disqualified; but a person whose CoC has been denied due course or cancelled under Section
78 cannot be substituted because he is not considered a candidate. 1âw phi 1
To be sure, the cause of Ramon’s ineligibility (i.e., the three-term limit) is enforced both by the
Constitution and statutory law. Article X, Section 8 of the 1987 Constitution provides:
Section 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary 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 was elected.
Section 43 of the Local Government Code reiterates the constitutional three-term limit for all elective
local officials, to wit:
Section 43. Term of Office. – (a) x x x
(b) No local elective official shall serve for more than three (3) consecutive terms in the same
position. Voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for which the elective official concerned was
elected. (Emphasis supplied.)
The objective of imposing the three-term limit rule was "to avoid the evil of a single person
accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay
in the same office." The Court underscored this objective in Aldovino, Jr. v. Commission on
Elections,44 stating:
x x x The framers of the Constitution specifically included an exception to the people’s freedom to
choose those who will govern them in order to avoid the evil of a single person accumulating
excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same
office. To allow petitioner Latasa to vie for the position of city mayor after having served for three
consecutive terms as a municipal mayor would obviously defeat the very intent of the framers when
they wrote this exception. Should he be allowed another three consecutive terms as mayor of the
City of Digos, petitioner would then be possibly holding office as chief executive over the same
territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very
scenario sought to be avoided by the Constitution, if not abhorred by it.
To accord with the constitutional and statutory proscriptions, Ramon was absolutely precluded from
asserting an eligibility to run as Mayor of Lucena City for the fourth consecutive term. Resultantly, his
CoC was invalid and ineffectual ab initio for containing the incurable defect consisting in his false
declaration of his eligibility to run. The invalidity and inefficacy of his CoC made his situation even
worse than that of a nuisance candidate because the nuisance candidate may remain eligible
despite cancellation of his CoC or despite the denial of due course to the CoC pursuant to Section
69 of the Omnibus Election Code.45
Ramon himself specifically admitted his ineligibility when he filed his Manifestation with Motion to
Resolve on December 30, 2009 in the COMELEC.46 That sufficed to render his CoC invalid,
considering that for all intents and purposes the COMELEC’s declaration of his disqualification had
the effect of announcing that he was no candidate at all.
We stress that a non-candidate like Ramon had no right to pass on to his substitute. As Miranda v.
Abaya aptly put it:
Even on the most basic and fundamental principles, it is readily understood that the concept of a
substitute presupposes the existence of the person to be substituted, for how can a person take the
place of somebody who does not exist or who never was. The Court has no other choice but to rule
that in all the instances enumerated in Section 77 of the Omnibus Election Code, the existence of a
valid certificate of candidacy seasonably filed is a requisite sine qua non.
All told, a disqualified candidate may only be substituted if he had a valid certificate of candidacy in
the first place because, if the disqualified candidate did not have a valid and seasonably filed
certificate of candidacy, he is and was not a candidate at all. If a person was not a candidate, he
cannot be substituted under Section 77 of the Code. Besides, if we were to allow the so-called
"substitute" to file a "new" and "original" certificate of candidacy beyond the period for the filing
thereof, it would be a crystalline case of unequal protection of the law, an act abhorred by our
Constitution.47 (Emphasis supplied)
3.
Granting without any qualification of petition in

SPA No. 09-029(DC) manifested COMELEC’s intention to
declare Ramon disqualified and to cancel his CoC
That the COMELEC made no express finding that Ramon committed any deliberate
misrepresentation in his CoC was of little consequence in the determination of whether his CoC
should be deemed cancelled or not.
In Miranda v. Abaya,48 the specific relief that the petition prayed for was that the CoC "be not given
due course and/or cancelled." The COMELEC categorically granted "the petition" and then
pronounced — in apparent contradiction — that Joel Pempe Miranda was "disqualified." The
Court held that the COMELEC, by granting the petition without any qualification, disqualified Joel
Pempe Miranda and at the same time cancelled Jose Pempe Miranda’s CoC. The Court explained:
The question to settle next is whether or not aside from Joel "Pempe" Miranda being disqualified by
the Comelec in its May 5, 1998 resolution, his certificate of candidacy had likewise been denied due
course and cancelled.
The Court rules that it was.
Private respondent’s petition in SPA No. 98-019 specifically prayed for the following:
WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by respondent for the
position of Mayor for the City of Santiago be not given due course and/or cancelled.
Other reliefs just and equitable in the premises are likewise prayed for.
(Rollo, p. 31; Emphasis ours.)
In resolving the petition filed by private respondent specifying a very particular relief, the Comelec
ruled favorably in the following manner:
WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the Petition.
Respondent JOSE "Pempe" MIRANDA is hereby DISQUALIFIED from running for the position of
mayor of Santiago City, Isabela, in the May 11, 1998 national and local elections.
SO ORDERED.
(p.43, Rollo; Emphasis ours.)
From a plain reading of the dispositive portion of the Comelec resolution of May 5, 1998 in SPA No.
98-019, it is sufficiently clear that the prayer specifically and particularly sought in the petition was
GRANTED, there being no qualification on the matter whatsoever. The disqualification was simply
ruled over and above the granting of the specific prayer for denial of due course and cancellation of
the certificate of candidacy. x x x.49
xxxx
x x x. There is no dispute that the complaint or petition filed by private respondent in SPA No. 98-019
is one to deny due course and to cancel the certificate of candidacy of Jose "Pempe" Miranda (Rollo,
pp. 26-31). There is likewise no question that the said petition was GRANTED without any
qualification whatsoever. It is rather clear, therefore, that whether or not the Comelec granted any
further relief in SPA No. 98-019 by disqualifying the candidate, the fact remains that the said petition
was granted and that the certificate of candidacy of Jose "Pempe" Miranda was denied due course
and cancelled. x x x.50
The crucial point of Miranda v. Abaya was that the COMELEC actually granted the particular relief of
cancelling or denying due course to the CoC prayed for in the petition by not subjecting that relief to
any qualification.
Miranda v. Abaya applies herein. Although Castillo’s petition in SPA No. 09-029 (DC) specifically
sought both the disqualification of Ramon and the denial of due course to or cancellation of his CoC,
the COMELEC categorically stated in the Resolution dated April 19, 2010 that it was granting the
petition. Despite the COMELEC making no finding of material misrepresentation on the part of
Ramon, its granting of Castillo’s petition without express qualifications manifested that the
COMELEC had cancelled Ramon’s CoC based on his apparent ineligibility. The Resolution dated
April 19, 2010 became final and executory because Castillo did not move for its reconsideration, and
because Ramon later withdrew his motion for reconsideration filed in relation to it.
4.
Elected Vice Mayor must succeed

and assume the position of Mayor
due to a permanent vacancy in the office
On the issue of who should assume the office of Mayor of Lucena City, Castillo submits that the
doctrine on the rejection of the second-placer espoused in Labo, Jr. v. Commission on
Elections51 should not apply to him because Ramon’s disqualification became final prior to the
elections.52 Instead, he cites Cayat v. Commission on Elections,53where the Court said:
x x x In Labo there was no final judgment of disqualification before the elections. The doctrine on the
rejection of the second placer was applied in Labo and a host of other cases because the judgment
declaring the candidate’s disqualification in Labo and the other cases had not become final before
the elections. To repeat, Labo and the other cases applying the doctrine on the rejection of the
second placer have one common essential condition — the disqualification of the candidate had not
become final before the elections. This essential condition does not exist in the present case.
Thus, in Labo, Labo’s disqualification became final only on 14 May 1992, three days after the 11
May 1992 elections. On election day itself, Labo was still legally a candidate. In the present case,
Cayat was disqualified by final judgment 23 days before the 10 May 2004 elections. On election day,
Cayat was no longer legally a candidate for mayor. In short, Cayat’s candidacy for Mayor of Buguias,
Benguet was legally non-existent in the 10 May 2004 elections.
The law expressly declares that a candidate disqualified by final judgment before an election cannot
be voted for, and votes cast for him shall not be counted. This is a mandatory provision of law.
Section 6 of Republic Act No. 6646, The Electoral Reforms Law of 1987, states:
Sec. 6. Effect of Disqualification Case.— Any candidate who has been declared by final judgment to
be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of votes in such election, the Court
or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon
motion of the complainant or any intervenor, may during the pendency thereof order the suspension
of the proclamation of such candidate whenever the evidence of his guilt is strong. (Emphasis
added)
Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when the
disqualification becomes final before the elections, which is the situation covered in the first
sentence of Section 6. The second is when the disqualification becomes final after the elections,
which is the situation covered in the second sentence of Section 6.
The present case falls under the first situation. Section 6 of the Electoral Reforms Law governing the
first situation is categorical: a candidate disqualified by final judgment before an election cannot be
voted for, and votes cast for him shall not be counted. The Resolution disqualifying Cayat became
final on 17 April 2004, way before the 10 May 2004 elections. Therefore, all the 8,164 votes cast in
Cayat’s favor are stray. Cayat was never a candidate in the 10 May 2004 elections. Palileng’s
proclamation is proper because he was the sole and only candidate, second to none.54
Relying on the pronouncement in Cayat, Castillo asserts that he was entitled to assume the position
of Mayor of Lucena City for having obtained the highest number of votes among the remaining
qualified candidates.
It would seem, then, that the date of the finality of the COMELEC resolution declaring Ramon
disqualified is decisive. According to Section 10, Rule 19 of the COMELEC’s Resolution No. 8804,55 a
decision or resolution of a Division becomes final and executory after the lapse of five days following
its promulgation unless a motion for reconsideration is seasonably filed. Under Section 8, Rule 20 of
Resolution No. 8804, the decision of the COMELEC En Banc becomes final and executory five days
after its promulgation and receipt of notice by the parties.
The COMELEC First Division declared Ramon disqualified through its Resolution dated April 19,
2010, the copy of which Ramon received on the same date.56 Ramon filed a motion for
reconsideration on April 21, 201057 in accordance with Section 7 of COMELEC Resolution No.
8696,58 but withdrew the motion on May 4, 2010,59ostensibly to allow his substitution by Barbara
Ruby. On his part, Castillo did not file any motion for reconsideration. Such circumstances indicated
that there was no more pending matter that could have effectively suspended the finality of the ruling
in due course. Hence, the Resolution dated April 19, 2010 could be said to have attained finality
upon the lapse of five days from its promulgation and receipt of it by the parties. This happened
probably on April 24, 2010. Despite such finality, the COMELEC En Banc continued to act on the
withdrawal by Ramon of his motion for reconsideration through the May 5, 2010 Resolution declaring
the April 19, 2010 Resolution of the COMELEC First Division final and executory.
Yet, we cannot agree with Castillo’s assertion that with Ramon’s disqualification becoming final prior
to the May 10, 2010 elections, the ruling in Cayat was applicable in his favor. Barbara Ruby’s filing of
her CoC in substitution of Ramon significantly differentiated this case from the factual circumstances
obtaining in Cayat. Rev. Fr. Nardo B. Cayat, the petitioner in Cayat, was disqualified on April 17,
2004, and his disqualification became final before the May 10, 2004 elections. Considering that no
substitution of Cayat was made, Thomas R. Palileng, Sr., his rival, remained the only candidate for
the mayoralty post in Buguias, Benguet. In contrast, after Barbara Ruby substituted Ramon, the May
10, 2010 elections proceeded with her being regarded by the electorate of Lucena City as a bona
fide candidate. To the electorate, she became a contender for the same position vied for by Castillo,
such that she stood on the same footing as Castillo. Such standing as a candidate negated Castillo’s
claim of being the candidate who obtained the highest number of votes, and of being consequently
entitled to assume the office of Mayor.
Indeed, Castillo could not assume the office for he was only a second placer. Labo, Jr. should be
1âw phi 1
applied. There, the Court emphasized that the candidate obtaining the second highest number of
votes for the contested office could not assume the office despite the disqualification of the first
placer because the second placer was "not the choice of the sovereign will."60 Surely, the Court
explained, a minority or defeated candidate could not be deemed elected to the office.61 There was to
be no question that the second placer lost in the election, was repudiated by the electorate, and
could not assume the vacated position.62 No law imposed upon and compelled the people of Lucena
City to accept a loser to be their political leader or their representative.63
The only time that a second placer is allowed to take the place of a disqualified winning candidate is
when two requisites concur, namely: (a) the candidate who obtained the highest number of votes is
disqualified; and (b) the electorate was fully aware in fact and in law of that candidate’s
disqualification as to bring such awareness within the realm of notoriety but the electorate still cast
the plurality of the votes in favor of the ineligible candidate.64 Under this sole exception, the electorate
may be said to have waived the validity and efficacy of their votes by notoriously misapplying their
franchise or throwing away their votes, in which case the eligible candidate with the second highest
number of votes may be deemed elected.65 But the exception did not apply in favor of Castillo simply
because the second element was absent. The electorate of Lucena City were not the least aware of
the fact of Barbara Ruby’s ineligibility as the substitute. In fact, the COMELEC En Banc issued the
Resolution finding her substitution invalid only on May 20, 2011, or a full year after the decisions.
On the other hand, the COMELEC En Banc properly disqualified Barbara Ruby from assuming the
position of Mayor of Lucena City. To begin with, there was no valid candidate for her to substitute
due to Ramon’s ineligibility. Also, Ramon did not voluntarily withdraw his CoC before the elections in
accordance with Section 73 of the Omnibus Election Code. Lastly, she was not an additional
candidate for the position of Mayor of Lucena City because her filing of her CoC on May 4, 2010 was
beyond the period fixed by law. Indeed, she was not, in law and in fact, a candidate.66
A permanent vacancy in the office of Mayor of Lucena City thus resulted, and such vacancy should
be filled pursuant to the law on succession defined in Section 44 of the LGC, to wit:67
Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice-
Mayor. – If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or
vice-mayor concerned shall become the governor or mayor. x x x
WHEREFORE, the Court DISMISSES the petitions in these consolidated cases; AFFIRMS the
Resolution issued on May 20, 2011 by the COMELEC En Banc; and ORDERS the petitioners to pay
the costs of suit.
SO ORDERED.
94

SUPREME COURT
Manila
EN BANC
G.R. No. 179313 September 17, 2009
MAKIL U. PUNDAODAYA, Petitioner,

vs.
COMMISSION ON ELECTIONSN and ARSENIO DENSING NOBLE, Respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition1 for certiorari under Rule 65 assails the August 3, 2007 Resolution2 of the Commission
on Elections (COMELEC) En Banc in SPA No. 07-202, which declared private respondent Arsenio
Densing Noble (Noble) qualified to run for municipal mayor of Kinoguitan, Misamis Oriental, in the
May 14, 2007 Synchronized National and Local Elections.
The facts are as follows:
Petitioner Makil U. Pundaodaya (Pundaodaya) is married to Judith Pundaodaya, who ran against
Noble for the position of municipal mayor of Kinoguitan, Misamis Oriental in the 2007 elections.
On March 27, 2007, Noble filed his Certificate of Candidacy, indicating therein that he has been a
resident of Purok 3, Barangay Esperanza, Kinoguitan, Misamis Oriental for 15 years.
On April 3, 2007, Pundaodaya filed a petition for disqualification3 against Noble docketed as SPA
No. 07-202, alleging that the latter lacks the residency qualification prescribed by existing laws for
elective local officials; that he never resided nor had any physical presence at a fixed place in Purok
3, Barangay Esperanza, Kinoguitan, Misamis Oriental; and that he does not appear to have the
intention of residing therein permanently. Pundaodaya claimed that Noble is in fact a resident of
Lapasan, Cagayan de Oro City, where he also maintains a business called OBERT Construction
Supply.
In his Answer,4 Noble averred that he is a registered voter and resident of Barangay Esperanza,
Kinoguitan, Misamis Oriental; that on January 18, 1992, he married Bernadith Go, the daughter of
then Mayor Narciso Go of Kinoguitan, Misamis Oriental; that he has been engaged in electoral
activities since his marriage; and that he voted in the said municipality in the 1998, 2001 and 2004
elections.
In a resolution dated May 13, 2007,5 the Second Division of the COMELEC ruled in favor of
Pundaodaya and disqualified Noble from running as mayor, thus:
Respondent Noble’s claim that he is a registered voter and has actually voted in the past three (3)
elections in the said municipality does not sufficiently establish that he has actually elected residency
at Kinoguitan, Misamis Oriental. Neither does campaigning in previous elections sufficiently establish
residence.
Respondent Noble failed to show that he has indeed acquired domicile at Kinoguitan, Misamis
Oriental. He failed to prove not only his bodily presence in the new locality but has likewise failed to
show that he intends to remain at Kinoguitan, Misamis Oriental and abandon his residency at
Lapasan, Cagayan de Oro City.
WHEREFORE, premises considered, the instant Petition to Disqualify Aresnio Densing Noble is
hereby GRANTED.
SO ORDERED.6
Noble filed a motion for reconsideration of the above resolution. In the meantime, he garnered the
highest number of votes and was proclaimed the winning candidate on May 15, 2007. Pundaodaya
then filed an Urgent Motion to Annul Proclamation.7
On August 3, 2007, the COMELEC En Banc reversed the decision of the Second Division and
declared Noble qualified to run for the mayoralty position.
The COMELEC En Banc held that when Noble married Bernadith Go on January 18, 1992, the
couple has since resided in Kinoguitan, Misamis Oriental; that he was a registered voter and that he
participated in the last three elections; and although he is engaged in business in Cagayan de Oro
City, the fact that he resides in Kinoguitan and is a registered voter and owns property thereat,
sufficiently meet the residency requirement.8 Thus:
WHEREFORE, premises considered, the Commission (en banc) RESOLVED, as it hereby

RESOLVES, to GRANT the instant Motion for Reconsideration and to REVERSE AND SET ASIDE
the Resolution promulgated on May 13, 2007 issued by the Commission (Second Division).
ACCORDINGLY, respondent ARSENIO DENSING NOBLE is QUALIFIED to run for the local
elective position of Municipal Mayor of the Municipality of Kinoguitan, Misamis Oriental in the May
14, 2007 Synchronized National and Local Elections.
SO ORDERED.9
Pundaodaya filed the instant petition for certiorari, alleging that the COMELEC En Banc acted with
grave abuse of discretion when it declared Noble qualified to run; when it did not annul Noble’s
proclamation; and when it failed to proclaim the true winning candidate, Judith Pundaodaya.
In a resolution dated November 13, 2007,10 the Court required the respondents to comment on the
petition.
Public respondent, through the Office of the Solicitor General, filed a Manifestation and
Motion11 praying that it be excused from filing a separate comment and that the said pleading be
considered sufficient compliance with the November 13, 2007 Resolution.
Meanwhile, for Noble’s failure to comply, the Court issued Resolutions12 dated July 15, 2008 and
December 9, 2008 requiring him to show cause why he should not be disciplinarily dealt with or held
in contempt, imposing a fine of ₱1,000.00, and requiring him to file a comment. On June 2, 2009, the
Court deemed Noble to have waived the filing of the comment.13
The issues for resolution are: whether the COMELEC En Banc gravely abused its discretion: 1) in
declaring Noble qualified to run for the mayoralty position; and 2) in failing to order the annulment of
Noble’s proclamation and refusing to proclaim Judith Pundaodaya as the winning candidate.
Section 39 of Republic Act No. 7160, otherwise known as the Local Government Code, requires that
an elective local official must be a resident in the barangay, municipality, city or province where he
intends to serve for at least one year immediately preceding the election.14
In Japzon v. Commission on Elections,15 it was held that the term "residence" is to be understood not
in its common acceptation as referring to "dwelling" or "habitation," but rather to "domicile" or legal
residence, that is, "the place where a party actually or constructively has his permanent home,
where he, no matter where he may be found at any given time, eventually intends to return and
remain (animus manendi)."
In Domino v. Commission on Elections,16 the Court explained that domicile denotes a fixed
permanent residence to which, whenever absent for business, pleasure, or some other reasons, one
intends to return. It is a question of intention and circumstances. In the consideration of
circumstances, three rules must be borne in mind, namely: (1) that a man must have a residence or
domicile somewhere; (2) when once established it remains until a new one is acquired; and (3) a
man can have but one residence or domicile at a time. 1av vphi1
If one wishes to successfully effect a change of domicile, he must demonstrate an actual removal or
an actual change of domicile, a bona fide intention of abandoning the former place of residence and
establishing a new one, and definite acts which correspond with the purpose.17 Without clear and
positive proof of the concurrence of these three requirements, the domicile of origin continues.18
Records show that Noble’s domicile of origin was Lapasan, Cagayan de Oro City. However, he
claims to have chosen Kinoguitan, Misamis Oriental as his new domicile. To substantiate this, he
presented before the COMELEC his voter registration records;19 a Certification dated April 25, 2007
from Election Officer II Clavel Z. Tabada;20 his Marriage Certificate;21 and affidavits of residents of
Kinoguitan22 attesting that he established residence in the municipality after his marriage to
Bernadith Go. In addition, he presented receipts23 from the Provincial Treasurer for payment of his
water bills, and Certifications from the Municipal Treasurer and Municipal Engineer that he has been
a consumer of the Municipal Water System since June 2003. To prove ownership of property, he
also presented a Deed of Sale24 over a real property dated June 3, 1996.
The above pieces of documentary evidence, however, fail to convince us that Noble successfully
effected a change of domicile. As correctly ruled by the COMELEC Second Division, private
respondent’s claim that he is a registered voter and has actually voted in the past 3 elections in
Kinoguitan, Misamis Oriental do not sufficiently establish that he has actually elected residency in
the said municipality. Indeed, while we have ruled in the past that voting gives rise to a strong
presumption of residence, it is not conclusive evidence thereof. 25 Thus, in Perez v. Commission on
Elections,26 we held that a person’s registration as voter in one district is not proof that he is not
domiciled in another district. The registration of a voter in a place other than his residence of origin is
not sufficient to consider him to have abandoned or lost his residence.27
To establish a new domicile of choice, personal presence in the place must be coupled with conduct
indicative of that intention. It requires not only such bodily presence in that place but also a declared
and probable intent to make it one’s fixed and permanent place of abode.28
In this case, Noble’s marriage to Bernadith Go does not establish his actual physical presence in
Kinoguitan, Misamis Oriental. Neither does it prove an intention to make it his permanent place of
residence. We are also not persuaded by his alleged payment of water bills in the absence of
evidence showing to which specific properties they pertain. And while Noble presented a Deed of
Sale for real property, the veracity of this document is belied by his own admission that he does not
own property in Kinoguitan, Misamis Oriental.29
On the contrary, we find that Noble has not abandoned his original domicile as shown by the
following: a) Certification dated April 12, 2007 of the Barangay Kagawad of Barangay Lapasan,
Cagayan de Oro City stating that Noble is a resident of the barangay;30 b) Affidavit31 of the Barangay
Kagawad of Esperanza, Kinoguitan, Misamis Oriental dated April 14, 2007, attesting that Noble has
not resided in Barangay Esperanza in Kinoguitan; c) photos32and official receipts33 showing that
Noble and his wife maintain their residence and businesses in Lapasan; d) tax declarations34 of real
properties in Cagayan de Oro City under the name of Noble; and e) the "Household Record of
Barangay Inhabitants"35 of Mayor Narciso Go, which did not include Noble or his wife, Bernadith Go,
which disproves Noble’s claim that he resides with his father-in-law.
From the foregoing, we find that Noble’s alleged change of domicile was effected solely for the
purpose of qualifying as a candidate in the 2007 elections. This we cannot allow. In Torayno, Sr. v.
Commission on Elections, 36 we held that the one-year residency requirement is aimed at excluding
outsiders "from taking advantage of favorable circumstances existing in that community for electoral
gain." Establishing residence in a community merely to meet an election law requirement defeats the
purpose of representation: to elect through the assent of voters those most cognizant and sensitive
to the needs of the community.37 Thus, we find Noble disqualified from running as municipal mayor
of Kinoguitan, Misamis Oriental in the 2007 elections.
Notwithstanding Noble’s disqualification, we find no basis for the proclamation of Judith

Pundaodaya, as mayor. The rules on succession under the Local Government Code, explicitly
provides:
SECTION 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and
Vice-Mayor. – If a permanent vacancy occurs in the office of the xxx mayor, the xxx vice-mayor
concerned shall become the xxx mayor.
xxxx
For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher
vacant office, refuses to assume office, fails to qualify or is removed from office, voluntarily resigns,
or is otherwise permanently incapacitated to discharge the functions of his office.
x x x x (Emphasis ours)
Thus, considering the permanent vacancy in the Office of the Mayor of Kinoguitan, Misamis Oriental
occasioned by Noble’s disqualification, the proclaimed Vice-Mayor shall then succeed as mayor.38
WHEREFORE, the petition is GRANTED. The August 3, 2007 Resolution of the COMELEC En Banc
in SPA No. 07-202 declaring respondent Arsenio Densing Noble qualified to run as Mayor of
Kinoguitan, Misamis Oriental, is REVERSED AND SET ASIDE. In view of the permanent vacancy in
the Office of the Mayor of Kinoguitan, Misamis Oriental, the proclaimed Vice-Mayor is ORDERED to
succeed as Mayor.
SO ORDERED.
95

SUPREME COURT
Manila
EN BANC
BAR MATTER No. 914 October 1, 1999

RE: APPLICATION FOR ADMISSION TO THE PHILIPPINE BAR,
vs.
VICENTE D. CHING, applicant.
RESOLUTION
KAPUNAN, J.:
Can a legitimate child born under the 1935 Constitution of a Filipino mother and an alien father
validly elect Philippine citizenship fourteen (14) years after he has reached the age of majority? This
is the question sought to be resolved in the present case involving the application for admission to
the Philippine Bar of Vicente D. Ching.
The facts of this case are as follows:
Vicente D. Ching, the legitimate son of the spouses Tat Ching, a Chinese citizen, and Prescila A.
Dulay, a Filipino, was born in Francia West, Tubao, La Union on 11 April 1964. Since his birth, Ching
has resided in the Philippines.
On 17 July 1998, Ching, after having completed a Bachelor of Laws course at the St. Louis
University in Baguio City, filed an application to take the 1998 Bar Examinations. In a Resolution of
this Court, dated 1 September 1998, he was allowed to take the Bar Examinations, subject to the
condition that he must submit to the Court proof of his Philippine citizenship.
In compliance with the above resolution, Ching submitted on 18 November 1998, the following
documents:
1. Certification, dated 9 June 1986, issued by the Board of Accountancy of the

Professional Regulations Commission showing that Ching is a certified public
accountant;
2. Voter Certification, dated 14 June 1997, issued by Elizabeth B. Cerezo, Election

Officer of the Commission on Elections (COMELEC) in Tubao La Union showing that
Ching is a registered voter of the said place; and
3. Certification, dated 12 October 1998, also issued by Elizabeth B. Cerezo, showing

that Ching was elected as a member of the Sangguniang Bayan of Tubao, La Union
during the 12 May 1992 synchronized elections.
On 5 April 1999, the results of the 1998 Bar Examinations were released and Ching was one of the
successful Bar examinees. The oath-taking of the successful Bar examinees was scheduled on 5
May 1999. However, because of the questionable status of Ching's citizenship, he was not allowed
to take his oath. Pursuant to the resolution of this Court, dated 20 April 1999, he was required to
submit further proof of his citizenship. In the same resolution, the Office of the Solicitor General
(OSG) was required to file a comment on Ching's petition for admission to the bar and on the
documents evidencing his Philippine citizenship.
The OSG filed its comment on 8 July 1999, stating that Ching, being the "legitimate child of a
Chinese father and a Filipino mother born under the 1935 Constitution was a Chinese citizen and
continued to be so, unless upon reaching the age of majority he elected Philippine citizenship" 1 in
strict compliance with the provisions of Commonwealth Act No. 625 entitled "An Act Providing for the
Manner in which the Option to Elect Philippine Citizenship shall be Declared by a Person Whose
Mother is a Filipino Citizen." The OSG adds that "(w)hat he acquired at best was only an inchoate
Philippine citizenship which he could perfect by election upon reaching the age of majority." 2 In this
regard, the OSG clarifies that "two (2) conditions must concur in order that the election of Philippine
citizenship may be effective, namely: (a) the mother of the person making the election must be a
citizen of the Philippines; and (b) said election must be made upon reaching the age of
majority." 3 The OSG then explains the meaning of the phrase "upon reaching the age of majority:"
The clause "upon reaching the age of majority" has been construed to mean a
reasonable time after reaching the age of majority which had been interpreted by the
Secretary of Justice to be three (3) years (VELAYO, supra at p. 51 citing Op., Sec. of
Justice No. 70, s. 1940, Feb. 27, 1940). Said period may be extended under certain
circumstances, as when a (sic) person concerned has always considered himself a
Filipino (ibid., citing Op. Nos. 355 and 422, s. 1955; 3, 12, 46, 86 and 97, s. 1953).
But in Cuenco, it was held that an election done after over seven (7) years was not
made within a reasonable time.
In conclusion, the OSG points out that Ching has not formally elected Philippine citizenship and, if
ever he does, it would already be beyond the "reasonable time" allowed by present jurisprudence.
However, due to the peculiar circumstances surrounding Ching's case, the OSG recommends the
relaxation of the standing rule on the construction of the phrase "reasonable period" and the
allowance of Ching to elect Philippine citizenship in accordance with C.A. No. 625 prior to taking his
oath as a member of the Philippine Bar.
On 27 July 1999, Ching filed a Manifestation, attaching therewith his Affidavit of Election of
Philippine Citizenship and his Oath of Allegiance, both dated 15 July 1999. In his Manifestation,
Ching states:
1. I have always considered myself as a Filipino;
2. I was registered as a Filipino and consistently declared myself as one in my school

records and other official documents;
3. I am practicing a profession (Certified Public Accountant) reserved for Filipino

citizens;
4. I participated in electoral process[es] since the time I was eligible to vote;
5. I had served the people of Tubao, La Union as a member of the Sangguniang

Bayan from 1992 to 1995;
6. I elected Philippine citizenship on July 15, 1999 in accordance with

Commonwealth Act No. 625;
7. My election was expressed in a statement signed and sworn to by me before a

notary public;
8. I accompanied my election of Philippine citizenship with the oath of allegiance to
the Constitution and the Government of the Philippines;
9. I filed my election of Philippine citizenship and my oath of allegiance to (sic) the

Civil Registrar of Tubao La Union, and
10. I paid the amount of TEN PESOS (Ps. 10.00) as filing fees.
Since Ching has already elected Philippine citizenship on 15 July 1999, the question raised is
whether he has elected Philippine citizenship within a "reasonable time." In the affirmative, whether
his citizenship by election retroacted to the time he took the bar examination.
When Ching was born in 1964, the governing charter was the 1935 Constitution. Under Article IV,
Section 1(3) of the 1935 Constitution, the citizenship of a legitimate child born of a Filipino mother
and an alien father followed the citizenship of the father, unless, upon reaching the age of majority,
the child elected Philippine citizenship. 4 This right to elect Philippine citizenship was recognized in
the 1973 Constitution when it provided that "(t)hose who elect Philippine citizenship pursuant to the
provisions of the Constitution of nineteen hundred and thirty-five" are citizens of the
Philippines. 5 Likewise, this recognition by the 1973 Constitution was carried over to the 1987
Constitution which states that "(t)hose born before January 17, 1973 of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority" are Philippine citizens. 6 It should be noted,
however, that the 1973 and 1987 Constitutional provisions on the election of Philippine citizenship
should not be understood as having a curative effect on any irregularity in the acquisition of
citizenship for those covered by the 1935 Constitution. 7 If the citizenship of a person was subject to
challenge under the old charter, it remains subject to challenge under the new charter even if the
judicial challenge had not been commenced before the effectivity of the new Constitution. 8
C.A. No. 625 which was enacted pursuant to Section 1(3), Article IV of the 1935 Constitution,
prescribes the procedure that should be followed in order to make a valid election of Philippine
citizenship. Under Section 1 thereof, legitimate children born of Filipino mothers may elect Philippine
citizenship by expressing such intention "in a statement to be signed and sworn to by the party
concerned before any officer authorized to administer oaths, and shall be filed with the nearest civil
registry. The said party shall accompany the aforesaid statement with the oath of allegiance to the
Constitution and the Government of the Philippines."
However, the 1935 Constitution and C.A. No. 625 did not prescribe a time period within which the
election of Philippine citizenship should be made. The 1935 Charter only provides that the election
should be made "upon reaching the age of majority." The age of majority then commenced upon
reaching twenty-one (21) years. 9 In the opinions of the Secretary of Justice on cases involving the
validity of election of Philippine citizenship, this dilemma was resolved by basing the time period on
the decisions of this Court prior to the effectivity of the 1935 Constitution. In these decisions, the
proper period for electing Philippine citizenship was, in turn, based on the pronouncements of the
Department of State of the United States Government to the effect that the election should be made
within a "reasonable time" after attaining the age of majority. 10 The phrase "reasonable time" has
been interpreted to mean that the election should be made within three (3) years from reaching the
age of
majority. 11 However, we held in Cuenco vs. Secretary of Justice, 12 that the three (3) year period is
not an inflexible rule. We said:
It is true that this clause has been construed to mean a reasonable period after
reaching the age of majority, and that the Secretary of Justice has ruled that three (3)
years is the reasonable time to elect Philippine citizenship under the constitutional
provision adverted to above, which period may be extended under certain
circumstances, as when the person concerned has always considered himself a
Filipino. 13
However, we cautioned in Cuenco that the extension of the option to elect Philippine citizenship is
not indefinite:
Regardless of the foregoing, petitioner was born on February 16, 1923. He became
of age on February 16, 1944. His election of citizenship was made on May 15, 1951,
when he was over twenty-eight (28) years of age, or over seven (7) years after he
had reached the age of majority. It is clear that said election has not been made
"upon reaching the age of majority." 14
In the present case, Ching, having been born on 11 April 1964, was already thirty-five (35) years old
when he complied with the requirements of C.A. No. 625 on 15 June 1999, or over fourteen (14)
years after he had reached the age of majority. Based on the interpretation of the phrase "upon
reaching the age of majority," Ching's election was clearly beyond, by any reasonable yardstick, the
allowable period within which to exercise the privilege. It should be stated, in this connection, that
the special circumstances invoked by Ching, i.e., his continuous and uninterrupted stay in the
Philippines and his being a certified public accountant, a registered voter and a former elected public
official, cannot vest in him Philippine citizenship as the law specifically lays down the requirements
for acquisition of Philippine citizenship by election.
Definitely, the so-called special circumstances cannot constitute what Ching erroneously labels as
informal election of citizenship. Ching cannot find a refuge in the case of In re: Florencio
Mallare, 15 the pertinent portion of which reads:
And even assuming arguendo that Ana Mallare were (sic) legally married to an alien,
Esteban's exercise of the right of suffrage when he came of age, constitutes a
positive act of election of Philippine citizenship. It has been established that Esteban
Mallare was a registered voter as of April 14, 1928, and that as early as 1925 (when
he was about 22 years old), Esteban was already participating in the elections and
campaigning for certain candidate[s]. These acts are sufficient to show his
preference for Philippine citizenship. 16
Ching's reliance on Mallare is misplaced. The facts and circumstances obtaining therein are very
different from those in the present case, thus, negating its applicability. First, Esteban Mallare was
born before the effectivity of the 1935 Constitution and the enactment of C.A. No. 625. Hence, the
requirements and procedures prescribed under the 1935 Constitution and C.A. No. 625 for electing
Philippine citizenship would not be applicable to him. Second, the ruling in Mallare was an obiter
since, as correctly pointed out by the OSG, it was not necessary for Esteban Mallare to elect
Philippine citizenship because he was already a Filipino, he being a natural child of a Filipino
mother. In this regard, the Court stated:
Esteban Mallare, natural child of Ana Mallare, a Filipina, is therefore himself a

Filipino, and no other act would be necessary to confer on him all the rights and
privileges attached to Philippine citizenship (U.S. vs. Ong Tianse, 29 Phil. 332;
Santos Co vs. Government of the Philippine Islands, 42 Phil. 543, Serra vs. Republic,
L-4223, May 12, 1952, Sy Quimsuan vs. Republic, L-4693, Feb. 16, 1953; Pitallano
vs. Republic, L-5111, June 28, 1954). Neither could any act be taken on the
erroneous belief that he is a non-filipino divest him of the citizenship privileges to
which he is rightfully entitled. 17
The ruling in Mallare was reiterated and further elaborated in Co vs. Electoral Tribunal of the House
of Representatives, 18 where we held:
We have jurisprudence that defines "election" as both a formal and an informal

process.
In the case of In re: Florencio Mallare (59 SCRA 45 [1974]), the Court held that the
exercise of the right of suffrage and the participation in election exercises constitute a
positive act of election of Philippine citizenship. In the exact pronouncement of the
Court, we held:
Esteban's exercise of the right of suffrage when he came of age

constitutes a positive act of Philippine citizenship. (p. 52: emphasis
supplied)
The private respondent did more than merely exercise his right of suffrage. He has established his
life here in the Philippines.
For those in the peculiar situation of the respondent who cannot be excepted to have
elected Philippine citizenship as they were already citizens, we apply the In Re
Mallare rule.
xxx xxx xxx
The filing of sworn statement or formal declaration is a requirement for those who still
have to elect citizenship. For those already Filipinos when the time to elect came up,
there are acts of deliberate choice which cannot be less binding. Entering a
profession open only to Filipinos, serving in public office where citizenship is a
qualification, voting during election time, running for public office, and other
categorical acts of similar nature are themselves formal manifestations for these
persons.
An election of Philippine citizenship presupposes that the person electing is an alien.

Or his status is doubtful because he is a national of two countries. There is no doubt
in this case about Mr. Ong's being a Filipino when he turned twenty-one (21).
We repeat that any election of Philippine citizenship on the part of the private
respondent would not only have been superfluous but it would also have resulted in
an absurdity. How can a Filipino citizen elect Philippine citizenship? 19
The Court, like the OSG, is sympathetic with the plight of Ching. However, even if we consider the
special circumstances in the life of Ching like his having lived in the Philippines all his life and his
consistent belief that he is a Filipino, controlling statutes and jurisprudence constrain us to disagree
with the recommendation of the OSG. Consequently, we hold that Ching failed to validly elect
Philippine citizenship. The span of fourteen (14) years that lapsed from the time he reached the age
of majority until he finally expressed his intention to elect Philippine citizenship is clearly way beyond
the contemplation of the requirement of electing "upon reaching the age of majority." Moreover,
Ching has offered no reason why he delayed his election of Philippine citizenship. The prescribed
procedure in electing Philippine citizenship is certainly not a tedious and painstaking process. All that
is required of the elector is to execute an affidavit of election of Philippine citizenship and, thereafter,
file the same with the nearest civil registry. Ching's unreasonable and unexplained delay in making
his election cannot be simply glossed over.
Philippine citizenship can never be treated like a commodity that can be claimed when needed and
suppressed when convenient. 20 One who is privileged to elect Philippine citizenship has only an
inchoate right to such citizenship. As such, he should avail of the right with fervor, enthusiasm and
promptitude. Sadly, in this case, Ching slept on his opportunity to elect Philippine citizenship and, as
a result. this golden privilege slipped away from his grasp.
IN VIEW OF THE FOREGOING, the Court Resolves to DENY Vicente D. Ching's application for
admission to the Philippine Bar.
SO ORDERED.
96

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 183133 July 26, 2010
BALGAMELO CABILING MA, FELIX CABILING MA, JR., AND VALERIANO CABILING
MA, Petitioners,
vs.
COMMISSIONER ALIPIO F. FERNANDEZ, JR., ASSOCIATE COMMISSIONER ARTHEL B.
CARONOÑGAN, ASSOCIATE COMMISSIONER JOSE DL. CABOCHAN, ASSOCIATE
COMMISSIONER TEODORO B. DELARMENTE AND ASSOCIATE COMMISSIONER FRANKLIN
Z. LITTAUA, in their capacities as Chairman and Members of the Board of Commissioners
(Bureau of Immigration), and MAT G. CATRAL, Respondents.
DECISION
PEREZ, J.:
Should children born under the 1935 Constitution of a Filipino mother and an alien father, who
executed an affidavit of election of Philippine citizenship and took their oath of allegiance to the
government upon reaching the age of majority, but who failed to immediately file the documents of
election with the nearest civil registry, be considered foreign nationals subject to deportation as
undocumented aliens for failure to obtain alien certificates of registration?
Positioned upon the facts of this case, the question is translated into the inquiry whether or not the
omission negates their rights to Filipino citizenship as children of a Filipino mother, and erase the
years lived and spent as Filipinos.
The resolution of these questions would significantly mark a difference in the lives of herein
petitioners.
The Facts
Balgamelo Cabiling Ma (Balgamelo), Felix Cabiling Ma, Jr. (Felix, Jr.), Valeriano Cabiling Ma
(Valeriano), Lechi Ann Ma (Lechi Ann), Arceli Ma (Arceli), Nicolas Ma (Nicolas), and Isidro Ma
(Isidro) are the children of Felix (Yao Kong) Ma,1 a Taiwanese, and Dolores Sillona Cabiling, a
Filipina.2
Records reveal that petitioners Felix, Jr., Balgamelo and Valeriano were all born under aegis of the
1935 Philippine Constitution in the years 1948, 1951, and 1957, respectively.3
They were all raised in the Philippines and have resided in this country for almost sixty (60) years;
they spent their whole lives, studied and received their primary and secondary education in the
country; they do not speak nor understand the Chinese language, have not set foot in Taiwan, and
do not know any relative of their father; they have not even traveled abroad; and they have already
raised their respective families in the Philippines.4
During their age of minority, they secured from the Bureau of Immigration their Alien Certificates of
Registration (ACRs). 5
Immediately upon reaching the age of twenty-one, they claimed Philippine citizenship in accordance
with Section 1(4), Article IV, of the 1935 Constitution, which provides that "(t)hose whose mothers
are citizens of the Philippines and, upon reaching the age of majority, elect Philippine citizenship"
are citizens of the Philippines. Thus, on 15 August 1969, Felix, Jr. executed his affidavit of election
of Philippine citizenship and took his oath of allegiance before then Judge Jose L. Gonzalez,
Municipal Judge, Surigao, Surigao del Norte.6 On 14 January 1972, Balgamelo did the same before
Atty. Patrocinio C. Filoteo, Notary Public, Surigao City, Surigao del Norte.7 In 1978, Valeriano took
his oath of allegiance before then Judge Salvador C. Sering, City Court of Surigao City, the fact of
which the latter attested to in his Affidavit of 7 March 2005.8
Having taken their oath of allegiance as Philippine citizens, petitioners, however, failed to have the
necessary documents registered in the civil registry as required under Section 1 of Commonwealth
Act No. 625 (An Act Providing the Manner in which the Option to Elect Philippine Citizenship shall be
Declared by a Person whose Mother is a Filipino Citizen). It was only on 27 July 2005 or more than
thirty (30) years after they elected Philippine citizenship that Balgamelo and Felix, Jr. did so.9 On the
other hand, there is no showing that Valeriano complied with the registration requirement.
Individual certifications10 all dated 3 January 2005 issued by the Office of the City Election Officer,
Commission on Elections, Surigao City, show that all of them are registered voters
of Barangay Washington, Precinct No. 0015A since June 1997, and that records on previous
registrations are no longer available because of the mandatory general registration every ten (10)
years. Moreover, aside from exercising their right of suffrage, Balgamelo is one of the
incumbent Barangay Kagawads in Barangay Washington, Surigao City.11
Records further reveal that Lechi Ann and Arceli were born also in Surigao City in 195312 and
1959,13 respectively. The Office of the City Civil Registrar issued a Certification to the effect that the
documents showing that Arceli elected Philippine citizenship on 27 January 1986 were registered in
its Office on 4 February 1986. However, no other supporting documents appear to show that Lechi
Ann initially obtained an ACR nor that she subsequently elected Philippine citizenship upon reaching
the age of majority. Likewise, no document exists that will provide information on the citizenship of
Nicolas and Isidro.
The Complaint
On 16 February 2004, the Bureau of Immigration received the Complaint-Affidavit14 of a certain Mat
G. Catral (Mr. Catral), alleging that Felix (Yao Kong) Ma and his seven (7) children are undesirable
and overstaying aliens. Mr. Catral, however, did not participate in the proceedings, and the Ma
family could not but believe that the complaint against them was politically motivated because they
strongly supported a candidate in Surigao City in the 2004 National and Local Elections.15
On 9 November 2004, the Legal Department of the Bureau of Immigration charged them for violation
of Sections 37(a)(7)16 and 45(e)17 of Commonwealth Act No. 613, otherwise known as the Philippine
Immigration Act of 1940, as amended. The Charge Sheet18 docketed as BSI-D.C. No. AFF-04-574
(OC-STF-04-09/23-1416) reads, in part:
That Respondents x x x, all Chinese nationals, failed and continuously failed to present any valid
document to show their respective status in the Philippines. They likewise failed to produce
documents to show their election of Philippines (sic) citizenship, hence, undocumented and
overstaying foreign nationals in the country.
That respondents, being aliens, misrepresent themselves as Philippine citizens in order to evade the
requirements of the immigration laws.
Ruling of the Board of Commissioners, Bureau of Immigration
After Felix Ma and his seven (7) children were afforded the opportunity to refute the allegations, the
Board of Commissioners (Board) of the Bureau of Immigration (BI), composed of the public
respondents, rendered a Judgment dated 2 February 2005 finding that Felix Ma and his children
violated Commonwealth Act No. 613, Sections 37(a)(7) and 45(e) in relation to BI Memorandum
Order Nos. ADD-01-031 and ADD-01-035 dated 6 and 22 August 2001, respectively.19
The Board ruled that since they elected Philippine citizenship after the enactment of Commonwealth
Act No. 625, which was approved on 7 June 1941, they were governed by the following rules and
regulations:
1. Section 1 of Commonwealth Act No. 625, providing that the election of Philippine
citizenship embodied in a statement sworn before any officer authorized to administer oaths
and the oath of allegiance shall be filed with the nearest civil registry;20 and Commission of
Immigration and Deportation (CID, now Bureau of Immigration [BI]) Circular dated 12 April
1954,21 detailing the procedural requirements in the registration of the election of Philippine
citizenship.
2. Memorandum Order dated 18 August 195622 of the CID, requiring the filing of a petition for
the cancellation of their alien certificate of registration with the CID, in view of their election of
Philippine citizenship;
3. Department of Justice (DOJ) Opinion No. 182, 19 August 1982; and DOJ Guidelines, 27
March 1985, requiring that the records of the proceedings be forwarded to the Ministry (now
the Department) of Justice for final determination and review.23
As regards the documentation of aliens in the Philippines, Administrative Order No. 1-93 of the
Bureau of Immigration24 requires that ACR, E-series, be issued to foreign nationals who apply for
initial registration, finger printing and issuance of an ACR in accordance with the Alien Registration
Act of 1950.25 According to public respondents, any foreign national found in possession of an ACR
other than the E-series shall be considered improperly documented aliens and may be proceeded
against in accordance with the Immigration Act of 1940 or the Alien Registration Act of 1950, as
amended.26
Supposedly for failure to comply with the procedure to prove a valid claim to Philippine
citizenship via election proceedings, public respondents concluded that Felix, Jr. Balgamelo, Arceli,
Valeriano and Lechi Ann are undocumented and/or improperly documented aliens.27
Nicolas and Isidro, on the other hand, did not submit any document to support their claim that they
are Philippine citizens. Neither did they present any evidence to show that they are properly
documented aliens. For these reasons, public respondents likewise deemed them undocumented
and/or improperly documented aliens.28
The dispositive portion29 of the Judgment of 2 February 2005 reads:
1. Subject to the submission of appropriate clearances, summary deportation of Felix (Yao

Kong) Ma, Felix Ma, Jr., Balgamelo Ma, Valeriano Ma, Lechi Ann Ma, Nicolas Ma, Arceli Ma
and Isidro Ma, Taiwanese [Chinese], under C.A. No. 613, Sections 37(a)(7), 45(e) and 38 in
relation to BI M.O. Nos. ADD-01-031 and ADD-01-035 dated 6 and 22 August 2001,
respectively;
2. Issuance of a warrant of deportation against Felix (Yao Kong) Ma, Felix Ma, Jr.,
Balgamelo Ma, Valeriano Ma, Lechi Ann Ma, Nicolas Ma, Arceli Ma and Isidro Ma under C.A.
No. 613, Section 37(a);
3. Inclusion of the names of Felix (Yao Kong) Ma, Felix Ma, Jr., Balgamelo Ma, Valeriano
Ma, Lechi Ann Ma, Nicolas Ma, Arceli Ma and Isidro Ma in the Immigration Blacklist; and
4. Exclusion from the Philippines of Felix (Yao Kong) Ma, Felix Ma, Jr., Balgamelo Ma,
Valeriano Ma, Lechi Ann Ma, Nicolas Ma, Arceli Ma and Isidro Ma under C.A. No. 613,
Section 29(a)(15). (Emphasis supplied.)
In its Resolution30 of 8 April 2005, public respondents partially reconsidered their Judgment of 2
February 2005. They were convinced that Arceli is an immigrant under Commonwealth Act No. 613,
Section 13(g).31 However, they denied the Motion for Reconsideration with respect to Felix Ma and
the rest of his children.32
Ruling of the Court of Appeals
On 3 May 2005, only Balgamelo, Felix, Jr., and Valeriano filed the Petition for Certiorari under Rule
65 of the 1997 Rules of Civil Procedure before the Court of Appeals, which was docketed as CA-
G.R. SP No. 89532. They sought the nullification of the issuances of the public respondents, to wit:
(1) the Judgment dated 2 February 2005, ordering the summary deportation of the petitioners,
issuance of a warrant of deportation against them, inclusion of their names in the Immigration
Blacklist, and exclusion of the petitioners from the Philippines; and (2) the Resolution dated 8 April
2005, denying the petitioners’ Motion for Reconsideration.
On 29 August 2007, the Court of Appeals dismissed the petition33 after finding that the petitioners
"failed to comply with the exacting standards of the law providing for the procedure and conditions
for their continued stay in the Philippines either as aliens or as its nationals."34
On 29 May 2008, it issued a Resolution35 denying the petitioners’ Motion for Reconsideration dated
20 September 2007.
To reiterate, a person’s continued and uninterrupted stay in the Philippines, his being a registered
voter or an elected public official cannot vest in him Philippine citizenship as the law specifically lays
down the requirements for acquisition of Philippine citizenship by election. The prescribed procedure
in electing Philippine citizenship is certainly not a tedious and painstaking process. All that is
required of the elector is to execute an affidavit of election of Philippine citizenship and, thereafter,
file the same with the nearest civil registry. The constitutional mandate concerning citizenship must
be adhered to strictly. Philippine citizenship can never be treated like a commodity that can be
claimed when needed and suppressed when convenient. One who is privileged to elect Philippine
citizenship has only an inchoate right to such citizenship. As such, he should avail of the right with
fervor, enthusiasm and promptitude.36
Our Ruling
The 1935 Constitution declares as citizens of the Philippines those whose mothers are citizens of
the Philippines and elect Philippine citizenship upon reaching the age of majority. The mandate
states:
Section 1. The following are citizens of the Philippines:
(1) xxx;
xxxx
(4) Those whose mothers are citizens of the Philippines and, upon reaching the age
of majority, elect Philippine citizenship.37
In 1941, Commonwealth Act No. 625 was enacted. It laid down the manner of electing Philippine
citizenship, to wit:
Section 1. The option to elect Philippine citizenship in accordance with subsection (4), Section 1,
Article IV, of the Constitution shall be expressed in a statement to be signed and sworn to by the
party concerned before any officer authorized to administer oaths, and shall be filed with the nearest
civil registry. The said party shall accompany the aforesaid statement with the oath of allegiance to
the Constitution and the Government of the Philippines.
The statutory formalities of electing Philippine citizenship are: (1) a statement of election under oath;
(2) an oath of allegiance to the Constitution and Government of the Philippines; and (3) registration
of the statement of election and of the oath with the nearest civil registry.
In Re:Application for Admission to the Philippine Bar, Vicente D. Ching,38 we determined the
meaning of the period of election described by phrase "upon reaching the age of majority." Our
references were the Civil Code of the Philippines, the opinions of the Secretary of Justice, and the
case of Cueco v. Secretary of Justice.39 We pronounced:
x x x [T]he 1935 Constitution and C.A. No. 625 did not prescribe a time period within which the
election of Philippine citizenship should be made. The 1935 Charter only provides that the election
should be made "upon reaching the age of majority." The age of majority then commenced upon
reaching twenty-one (21) years.40 In the opinions of the Secretary of Justice on cases involving the
validity of election of Philippine citizenship, this dilemma was resolved by basing the time period on
the decisions of this Court prior to the effectivity of the 1935 Constitution. In these decisions, the
proper period for electing Philippine citizenship was, in turn, based on the pronouncements of the
Department of State of the United States Government to the effect that the election should be made
within a reasonable time after attaining the age of majority.41 The phrase "reasonable time" has been
interpreted to mean that the elections should be made within three (3) years from reaching the age
of majority.42 However, we held in Cue[n]co vs. Secretary of Justice,43 that the three (3) year period is
not an inflexible rule. We said:
It is true that this clause has been construed to mean a reasonable time after reaching the age of
majority, and that the Secretary of Justice has ruled that three (3) years is the reasonable time to
elect Philippine citizenship under the constitutional provision adverted to above, which period may
be extended under certain circumstances, as when the person concerned has always considered
himself a Filipino.
However, we cautioned in Cue[n]co that the extension of the option to elect Philippine citizenship is
not indefinite.
Regardless of the foregoing, petitioner was born on February 16, 1923. He became of age on
February 16, 1944. His election of citizenship was made on May 15, 1951, when he was over
twenty-eight (28) years of age, or over seven (7) years after he had reached the age of majority. It is
clear that said election has not been made "upon reaching the age of majority.44
We reiterated the above ruling in Go, Sr. v. Ramos,45 a case in which we adopted the findings of the
appellate court that the father of the petitioner, whose citizenship was in question, failed to elect
Philippine citizenship within the reasonable period of three (3) years upon reaching the age of
majority; and that "the belated submission to the local civil registry of the affidavit of election and
oath of allegiance x x x was defective because the affidavit of election was executed after the oath of
allegiance, and the delay of several years before their filing with the proper office was not
satisfactorily explained."46
In both cases, we ruled against the petitioners because they belatedly complied with all the
requirements. The acts of election and their registration with the nearest civil registry were all done
beyond the reasonable period of three years upon reaching the age of majority.
The instant case presents a different factual setting. Petitioners complied with the first and second
requirements upon reaching the age of majority. It was only the registration of the documents of
election with the civil registry that was belatedly done.
We rule that under the facts peculiar to the petitioners, the right to elect Philippine citizenship has not
been lost and they should be allowed to complete the statutory requirements for such election.
Such conclusion, contrary to the finding of the Court of Appeals, is in line with our decisions in In
Re:Florencio Mallare,47 Co v. Electoral Tribunal of the House of Representatives,48 and
Re:Application for Admission to the Philippine Bar, Vicente D. Ching.49
In Mallare, Esteban’s exercise of the right of suffrage when he came of age was deemed to be a
positive act of election of Philippine citizenship.50 The Court of Appeals, however, said that the case
cannot support herein petitioners’ cause, pointing out that, unlike petitioner, Esteban is a natural
child of a Filipina, hence, no other act would be necessary to confer on him the rights and privileges
of a Filipino citizen,51 and that Esteban was born in 192952 prior to the adoption of the 1935
Constitution and the enactment of Commonwealth Act No. 625.53
In the Co case, Jose Ong, Jr. did more than exercise his right of suffrage, as he established his life
here in the Philippines.54 Again, such circumstance, while similar to that of herein petitioners’, was
not appreciated because it was ruled that any election of Philippine citizenship on the part of Ong
would have resulted in absurdity, because the law itself had already elected Philippine citizenship for
him55 as, apparently, while he was still a minor, a certificate of naturalization was issued to his
father.56
In Ching, it may be recalled that we denied his application for admission to the Philippine Bar
because, in his case, all the requirements, to wit: (1) a statement of election under oath; (2) an oath
of allegiance to the Constitution and Government of the Philippines; and (3) registration of the
statement of election and of the oath with the nearest civil registry were complied with only fourteen
(14) years after he reached the age of majority. Ching offered no reason for the late election of
Philippine citizenship.57
In all, the Court of Appeals found the petitioners’ argument of good faith and "informal election"
unacceptable and held:
Their reliance in the ruling contained in Re:Application for Admission to the Philippine Bar, Vicente
D. Ching, [which was decided on 1 October 1999], is obviously flawed. It bears emphasis that the
Supreme Court, in said case, did not adopt the doctrine laid down in In Re: Florencio Mallare. On the
contrary, the Supreme Court was emphatic in pronouncing that "the special circumstances invoked
by Ching, i.e., his continuous and uninterrupted stay in the Philippines and his being a certified
public accountant, a registered voter and a former elected public official, cannot vest in him
Philippine citizenship as the law specifically lays down the requirements for acquisition of Philippine
citizenship by election.58
We are not prepared to state that the mere exercise of suffrage, being elected public official,
continuous and uninterrupted stay in the Philippines, and other similar acts showing exercise of
Philippine citizenship can take the place of election of citizenship. What we now say is that where, as
in petitioners’ case, the election of citizenship has in fact been done and documented within the
constitutional and statutory timeframe, the registration of the documents of election beyond the
frame should be allowed if in the meanwhile positive acts of citizenship have publicly, consistently,
and continuously been done. The actual exercise of Philippine citizenship, for over half a century by
the herein petitioners, is actual notice to the Philippine public which is equivalent to formal
registration of the election of Philippine citizenship.
For what purpose is registration?
In Pascua v. Court of Appeals,59 we elucidated the principles of civil law on registration:
To register is to record or annotate. American and Spanish authorities are unanimous on the
meaning of the term "to register" as "to enter in a register; to record formally and distinctly; to enroll;
to enter in a list."60 In general, registration refers to any entry made in the books of the registry,
including both registration in its ordinary and strict sense, and cancellation, annotation, and even the
marginal notes. In strict acceptation, it pertains to the entry made in the registry which records
solemnly and permanently the right of ownership and other real rights.61 Simply stated, registration is
made for the purpose of notification.62
Actual knowledge may even have the effect of registration as to the person who has knowledge
thereof. Thus, "[i]ts purpose is to give notice thereof to all persons (and it) operates as a notice of the
deed, contract, or instrument to others."63 As pertinent is the holding that registration "neither adds to
its validity nor converts an invalid instrument into a valid one between the parties."64 It lays emphasis
on the validity of an unregistered document.
Comparable jurisprudence may be consulted.
In a contract of partnership, we said that the purpose of registration is to give notice to third parties;
that failure to register the contract does not affect the liability of the partnership and of the partners to
third persons; and that neither does such failure affect the partnership’s juridical personality.65 An
unregistered contract of partnership is valid as among the partners, so long as it has the essential
requisites, because the main purpose of registration is to give notice to third parties, and it can be
assumed that the members themselves knew of the contents of their contract.66 The non-registration
of a deed of donation does not also affect its validity. Registration is not a requirement for the validity
of the contract as between the parties, for the effect of registration serves chiefly to bind third
persons.67
Likewise relevant is the pronouncement that registration is not a mode of acquiring a right. In an
analogous case involving an unrecorded deed of sale, we reiterated the settled rule that registration
is not a mode of acquiring ownership.
Registration does not confer ownership. It is not a mode of acquiring dominion, but only a means of
confirming the fact of its existence with notice to the world at large.68
Registration, then, is the confirmation of the existence of a fact. In the instant case, registration is the
confirmation of election as such election. It is not the registration of the act of election, although a
valid requirement under Commonwealth Act No. 625, that will confer Philippine citizenship on the
petitioners. It is only a means of confirming the fact that citizenship has been claimed.
Indeed, we even allow the late registration of the fact of birth and of marriage.69 Thus, has it been
admitted through existing rules that the late registration of the fact of birth of a child does not erase
the fact of birth. Also, the fact of marriage cannot be declared void solely because of the failure to
have the marriage certificate registered with the designated government agency.
Notably, the petitioners timely took their oath of allegiance to the Philippines. This was a serious
undertaking. It was commitment and fidelity to the state coupled with a pledge "to renounce
absolutely and forever all allegiance" to any other state. This was unqualified acceptance of their
identity as a Filipino and the complete disavowal of any other nationality.
Petitioners have passed decades of their lives in the Philippines as Filipinos. Their present status
having been formed by their past, petitioners can no longer have any national identity except that
which they chose upon reaching the age of reason.
Corollary to this fact, we cannot agree with the view of the Court of Appeals that since the ACR
presented by the petitioners are no longer valid on account of the new requirement to present an E-
series ACR, they are deemed not properly documented.70 On the contrary, petitioners should not be
expected to secure E-series ACR because it would be inconsistent with the election of citizenship
and its constructive registration through their acts made public, among others, their exercise of
suffrage, election as public official, and continued and uninterrupted stay in the Philippines since
birth. The failure to register as aliens is, obviously, consistent with petitioners’ election of Philippine
citizenship.
The leanings towards recognition of the citizenship of children of Filipino mothers have been
indicated not alone by the jurisprudence that liberalized the requirement on time of election, and
recognized positive acts of Philippine citizenship.
The favor that is given to such children is likewise evident in the evolution of the constitutional
provision on Philippine citizenship.
Thus, while the 1935 Constitution requires that children of Filipino mothers elect Philippine
citizenship upon reaching their age of majority,71 upon the effectivity of the 1973 Constitution, they
automatically become Filipinos72 and need not elect Philippine citizenship upon reaching the age of
majority. The 1973 provision reads:
(1) xxx.
(2) Those whose fathers and mothers are citizens of the Philippines.73
Better than the relaxation of the requirement, the 1987 Constitution now classifies them as natural-
born citizens upon election of Philippine citizenship. Thus, Sec. 2, Article IV thereof provides:
Section 2. Natural-born citizens are those who are citizens of the Philippines from birth without
having to perform any act to acquire or perfect their Philippine citizenship. Those who elect
Philippine citizenship in accordance with paragraph (3), Section 1 hereof74 shall be deemed natural-
born citizens. (Emphasis supplied.)
The constitutional bias is reflected in the deliberations of the 1986 Constitutional Commission.
MR. CONCEPCION. x x x.
xxxx
x x x x As regards those born of Filipino mothers, the 1935 Constitution merely gave them the option
to choose Philippine citizenship upon reaching the age of majority, even, apparently, if the father
were an alien or unknown. Upon the other hand, under the 1973 Constitution, children of mixed
marriages involving an alien father and a Filipino mother are Filipino citizens, thus liberalizing the
counterpart provision in the 1935 Constitution by dispensing with the need to make a declaration of
intention upon reaching the age of majority. I understand that the committee would further liberalize
this provision of the 1935 Constitution. The Committee seemingly proposes to further liberalize the
policy of the 1935 Constitution by making those who became citizens of the Philippines through a
declaration of intention to choose their mother’s citizenship upon reaching the majority age by
declaring that such children are natural-born citizens of the Philippines.75
xxxx
xxx Why does the draft resolution adopt the provision of the 1973 Constitution and not that of the
1935? 76
xxxx
FR. BERNAS. x x x Precisely, the reason behind the modification of the 1935 rule on citizenship was
a recognition of the fact that it reflected a certain male chauvinism, and it was for the purpose of
remedying that this proposed provision was put in. The idea was that we should not penalize the
mother of a child simply because she fell in love with a foreigner. Now, the question on what
citizenship the child would prefer arises. We really have no way of guessing the preference of the
infant. But if we recognize the right of the child to choose, then let him choose when he reaches the
age of majority. I think dual citizenship is just a reality imposed on us because we have no control of
the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether or
not she is considered a citizen of another country is something completely beyond our control. But
certainly it is within the jurisdiction of the Philippine government to require that [at] a certain point, a
child be made to choose. But I do not think we should penalize the child before he is even able to
choose. I would, therefore, support the retention of the modification made in 1973 of the male
chauvinistic rule of the 1935 Constitution.77
xxxx
MR. REGALADO. With respect to a child who became a Filipino citizen by election, which the
Committee is now planning to consider a natural-born citizen, he will be so the moment he opts for
Philippine citizenship. Did the Committee take into account the fact that at the time of birth, all he
had was just an inchoate right to choose Philippine citizenship, and yet, by subsequently choosing
Philippine citizenship, it would appear that his choice retroacted to the date of his birth so much so
that under the Gentleman’s proposed amendment, he would be a natural-born citizen?78
FR. BERNAS. But the difference between him and the natural-born who lost his status is that the
natural-born who lost his status, lost it voluntarily; whereas, this individual in the situation
contemplated in Section 1, paragraph 3 never had the chance to choose.79
xxxx
[on the period within which to elect Philippine citizenship]
MR. RODRIGO. [T]his provision becomes very, very important because his election of Philippine
citizenship makes him not only a Filipino citizen but a natural-born Filipino citizen, entitling him to run
for Congress, to be a Justice of the Supreme Court x x x.80
We are guided by this evolvement from election of Philippine citizenship upon reaching the age of
majority under the 1935 Philippine Constitution to dispensing with the election requirement under the
1973 Philippine Constitution to express classification of these children as natural-born citizens under
the 1987 Constitution towards the conclusion that the omission of the 1941 statutory requirement of
registration of the documents of election should not result in the obliteration of the right to Philippine
citizenship.1avvphi1
Having a Filipino mother is permanent. It is the basis of the right of the petitioners to elect Philippine
citizenship. Petitioners elected Philippine citizenship in form and substance. The failure to register
the election in the civil registry should not defeat the election and resultingly negate the permanent
fact that they have a Filipino mother. The lacking requirements may still be complied with subject to
the imposition of appropriate administrative penalties, if any. The documents they submitted
supporting their allegations that they have already registered with the civil registry, although
belatedly, should be examined for validation purposes by the appropriate agency, in this case, the
Bureau of Immigration. Other requirements embodied in the administrative orders and other
issuances of the Bureau of Immigration and the Department of Justice shall be complied with within
a reasonable time.
WHEREFORE, the Decision dated 29 August 2007, and the Resolution dated 29 May 2008 of the
Court of Appeals in CA-G.R. SP No. 89532 affirming the Judgment dated 2 February 2005, and the
Resolution dated 8 April 2005 of the Bureau of Immigration in BSI-D.C. No. AFF-04-574 OC-STF-04-
09/23-1416 are hereby SET ASIDE with respect to petitioners Balgamelo Cabiling Ma, Felix Cabiling
Ma, Jr., and Valeriano Cabiling Ma. Petitioners are given ninety (90) days from notice within which to
COMPLY with the requirements of the Bureau of Immigration embodied in its Judgment of 2
February 2005. The Bureau of Immigration shall ENSURE that all requirements, including the
payment of their financial obligations to the state, if any, have been complied with subject to the
imposition of appropriate administrative fines; REVIEW the documents submitted by the petitioners;
and ACT thereon in accordance with the decision of this Court.
SO ORDERED.
97

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 187567 February 15, 2012
THE REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
NORA FE SAGUN, Respondent.
DECISION
VILLARAMA, JR., J.:
Before us is a petition for review on certiorari filed by the Solicitor General on behalf of the Republic
of the Philippines, seeking the reversal of the April 3, 2009 Decision1 of the Regional Trial Court
(RTC), Branch 3, of Baguio City in Spcl. Pro. Case No. 17-R. The RTC granted the petition2 filed by
respondent Nora Fe Sagun entitled "In re: Judicial Declaration of Election of Filipino Citizenship,
Nora Fe Sagun v. The Local Civil Registrar of Baguio City."
The facts follow:
Respondent is the legitimate child of Albert S. Chan, a Chinese national, and Marta Borromeo, a
Filipino citizen. She was born on August 8, 1959 in Baguio City3 and did not elect Philippine
citizenship upon reaching the age of majority. In 1992, at the age of 33 and after getting married to
Alex Sagun, she executed an Oath of Allegiance4 to the Republic of the Philippines. Said document
was notarized by Atty. Cristeta Leung on December 17, 1992, but was not recorded and registered
with the Local Civil Registrar of Baguio City.
Sometime in September 2005, respondent applied for a Philippine passport. Her application was
denied due to the citizenship of her father and there being no annotation on her birth certificate that
she has elected Philippine citizenship. Consequently, she sought a judicial declaration of her
election of Philippine citizenship and prayed that the Local Civil Registrar of Baguio City be ordered
to annotate the same on her birth certificate.
In her petition, respondent averred that she was raised as a Filipino, speaks Ilocano and Tagalog
fluently and attended local schools in Baguio City, including Holy Family Academy and the Saint
Louis University. Respondent claimed that despite her part-Chinese ancestry, she always thought of
herself as a Filipino. She is a registered voter of Precinct No. 0419A of Barangay Manuel A. Roxas
in Baguio City and had voted in local and national elections as shown in the Voter
Certification5 issued by Atty. Maribelle Uminga of the Commission on Elections of Baguio City.
She asserted that by virtue of her positive acts, she has effectively elected Philippine citizenship and
such fact should be annotated on her record of birth so as to entitle her to the issuance of a
Philippine passport.
On August 7, 2007, the Office of the Solicitor General (OSG) entered its appearance as counsel for
the Republic of the Philippines and authorized the City Prosecutor of Baguio City to appear in the
above mentioned case.6 However, no comment was filed by the City Prosecutor.
After conducting a hearing, the trial court rendered the assailed Decision on April 3, 2009 granting
the petition and declaring respondent a Filipino citizen. The fallo of the decision reads:
WHEREFORE, the instant petition is hereby GRANTED. Petitioner Nora Fe Sagun y Chan is hereby
DECLARED [a] FILIPINO CITIZEN, having chosen or elected Filipino citizenship.
Upon payment of the required fees, the Local Civil Registrar of Baguio City is hereby directed to
annotate [on] her birth certificate, this judicial declaration of Filipino citizenship of said petitioner.
IT IS SO ORDERED.7
Contending that the lower court erred in so ruling, petitioner, through the OSG, directly filed the
instant recourse viaa petition for review on certiorari before us. Petitioner raises the following issues:
Whether or not an action or proceeding for judicial declaration of Philippine citizenship is

procedurally and jurisdictionally permissible; and,
II
Whether or not an election of Philippine citizenship, made twelve (12) years after reaching
the age of majority, is considered to have been made "within a reasonable time" as
interpreted by jurisprudence.8
Petitioner argues that respondent’s petition before the RTC was improper on two counts: for one,
law and jurisprudence clearly contemplate no judicial action or proceeding for the declaration of
Philippine citizenship; and for another, the pleaded registration of the oath of allegiance with the
local civil registry and its annotation on respondent’s birth certificate are the ministerial duties of the
registrar; hence, they require no court order. Petitioner asserts that respondent’s petition before the
trial court seeking a judicial declaration of her election of Philippine citizenship undeniably entails a
determination and consequent declaration of her status as a Filipino citizen which is not allowed
under our legal system. Petitioner also argues that if respondent’s intention in filing the petition is
ultimately to have her oath of allegiance registered with the local civil registry and annotated on her
birth certificate, then she does not have to resort to court proceedings.
Petitioner further argues that even assuming that respondent’s action is sanctioned, the trial court
erred in finding respondent as having duly elected Philippine citizenship since her purported election
was not in accordance with the procedure prescribed by law and was not made within a "reasonable
time." Petitioner points out that while respondent executed an oath of allegiance before a notary
public, there was no affidavit of her election of Philippine citizenship. Additionally, her oath of
allegiance which was not registered with the nearest local civil registry was executed when she was
already 33 years old or 12 years after she reached the age of majority. Accordingly, it was made
beyond the period allowed by law.
In her Comment,9 respondent avers that notwithstanding her failure to formally elect Filipino
citizenship upon reaching the age of majority, she has in fact effectively elected Filipino citizenship
by her performance of positive acts, among which is the exercise of the right of suffrage. She claims
that she had voted and participated in all local and national elections from the time she was of legal
age. She also insists that she is a Filipino citizen despite the fact that her "election" of Philippine
citizenship was delayed and unregistered.
In reply,10 petitioner argues that the special circumstances invoked by respondent, like her continuous
and uninterrupted stay in the Philippines, her having been educated in schools in the country, her
choice of staying here despite the naturalization of her parents as American citizens, and her being a
registered voter, cannot confer on her Philippine citizenship as the law specifically provides the
requirements for acquisition of Philippine citizenship by election.
Essentially, the issues for our resolution are: (1) whether respondent’s petition for declaration of
election of Philippine citizenship is sanctioned by the Rules of Court and jurisprudence; (2) whether
respondent has effectively elected Philippine citizenship in accordance with the procedure
prescribed by law.
The petition is meritorious.
At the outset, it is necessary to stress that a direct recourse to this Court from the decisions, final
resolutions and orders of the RTC may be taken where only questions of law are raised or involved.
There is a question of law when the doubt or difference arises as to what the law is on a certain state
of facts, which does not call for an examination of the probative value of the evidence presented by
the parties-litigants. On the other hand, there is a question of fact when the doubt or controversy
arises as to the truth or falsity of the alleged facts. Simply put, when there is no dispute as to fact,
the question of whether the conclusion drawn therefrom is correct or not, is a question of law.11
In the present case, petitioner assails the propriety of the decision of the trial court declaring
respondent a Filipino citizen after finding that respondent was able to substantiate her election of
Filipino citizenship. Petitioner contends that respondent’s petition for judicial declaration of election
of Philippine citizenship is procedurally and jurisdictionally impermissible. Verily, petitioner has
raised questions of law as the resolution of these issues rest solely on what the law provides given
the attendant circumstances.
In granting the petition, the trial court stated:
This Court believes that petitioner was able to fully substantiate her petition regarding her election of
Filipino citizenship, and the Local Civil Registrar of Baguio City should be ordered to annotate in her
birth certificate her election of Filipino citizenship. This Court adds that the petitioner’s election of
Filipino citizenship should be welcomed by this country and people because the petitioner has the
choice to elect citizenship of powerful countries like the United States of America and China,
however, petitioner has chosen Filipino citizenship because she grew up in this country, and has
learned to love the Philippines. Her choice of electing Filipino citizenship is, in fact, a testimony that
many of our people still wish to live in the Philippines, and are very proud of our country.
WHEREFORE, the instant petition is hereby GRANTED. Petitioner Nora Fe Sagun y Chan is hereby
DECLARED as FILIPINO CITIZEN, having chosen or elected Filipino citizenship.12
For sure, this Court has consistently ruled that there is no proceeding established by law, or the
Rules for the judicial declaration of the citizenship of an individual.13 There is no specific legislation
authorizing the institution of a judicial proceeding to declare that a given person is part of our
citizenry.14 This was our ruling in Yung Uan Chu v. Republic15citing the early case of Tan v. Republic
of the Philippines,16 where we clearly stated:
Under our laws, there can be no action or proceeding for the judicial declaration of the citizenship of
an individual. Courts of justice exist for settlement of justiciable controversies, which imply a given
right, legally demandable and enforceable, an act or omission violative of said right, and a remedy,
granted or sanctioned by law, for said breach of right. As an incident only of the adjudication of the
rights of the parties to a controversy, the court may pass upon, and make a pronouncement relative
to their status. Otherwise, such a pronouncement is beyond judicial power. x x x
Clearly, it was erroneous for the trial court to make a specific declaration of respondent’s Filipino
citizenship as such pronouncement was not within the court’s competence.
As to the propriety of respondent’s petition seeking a judicial declaration of election of Philippine

citizenship, it is imperative that we determine whether respondent is required under the law to make
an election and if so, whether she has complied with the procedural requirements in the election of
Philippine citizenship.
When respondent was born on August 8, 1959, the governing charter was the 1935 Constitution,
which declares as citizens of the Philippines those whose mothers are citizens of the Philippines and
elect Philippine citizenship upon reaching the age of majority. Sec. 1, Art. IV of the 1935
Constitution reads:
xxxx
(4) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority,
elect Philippine citizenship.
Under Article IV, Section 1(4) of the 1935 Constitution, the citizenship of a legitimate child born of a
Filipino mother and an alien father followed the citizenship of the father, unless, upon reaching the
age of majority, the child elected Philippine citizenship. The right to elect Philippine citizenship was
recognized in the 1973 Constitution when it provided that "[t]hose who elect Philippine citizenship
pursuant to the provisions of the Constitution of nineteen hundred and thirty-five" are citizens of the
Philippines.17 Likewise, this recognition by the 1973 Constitution was carried over to the 1987
Constitution which states that "[t]hose born before January 17, 1973 of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority" are Philippine citizens.18 It should be noted,
however, that the 1973 and 1987 Constitutional provisions on the election of Philippine citizenship
should not be understood as having a curative effect on any irregularity in the acquisition of
citizenship for those covered by the 1935 Constitution. If the citizenship of a person was subject to
challenge under the old charter, it remains subject to challenge under the new charter even if the
judicial challenge had not been commenced before the effectivity of the new Constitution.19
Being a legitimate child, respondent’s citizenship followed that of her father who is Chinese, unless
upon reaching the age of majority, she elects Philippine citizenship. It is a settled rule that only
legitimate children follow the citizenship of the father and that illegitimate children are under the
parental authority of the mother and follow her nationality.20 An illegitimate child of Filipina need not
perform any act to confer upon him all the rights and privileges attached to citizens of the
Philippines; he automatically becomes a citizen himself.21 But in the case of respondent, for her to be
considered a Filipino citizen, she must have validly elected Philippine citizenship upon reaching the
age of majority.
Commonwealth Act (C.A.) No. 625,22 enacted pursuant to Section 1(4), Article IV of the 1935
Constitution, prescribes the procedure that should be followed in order to make a valid election of
Philippine citizenship, to wit:
Section 1. The option to elect Philippine citizenship in accordance with subsection (4), [S]ection 1,
Article IV, of the Constitution shall be expressed in a statement to be signed and sworn to by the
party concerned before any officer authorized to administer oaths, and shall be filed with the nearest
civil registry. The said party shall accompany the aforesaid statement with the oath of allegiance to
the Constitution and the Government of the Philippines.
Based on the foregoing, the statutory formalities of electing Philippine citizenship are: (1) a
statement of election under oath; (2) an oath of allegiance to the Constitution and Government of the
Philippines; and (3) registration of the statement of election and of the oath with the nearest civil
registry.23
Furthermore, no election of Philippine citizenship shall be accepted for registration under C.A. No.
625 unless the party exercising the right of election has complied with the requirements of the Alien
Registration Act of 1950. In other words, he should first be required to register as an
alien.24 Pertinently, the person electing Philippine citizenship is required to file a petition with the
Commission of Immigration and Deportation (now Bureau of Immigration) for the cancellation of his
alien certificate of registration based on his aforesaid election of Philippine citizenship and said
Office will initially decide, based on the evidence presented the validity or invalidity of said
election.25 Afterwards, the same is elevated to the Ministry (now Department) of Justice for final
determination and review.26 1âwphi1
It should be stressed that there is no specific statutory or procedural rule which authorizes the direct
filing of a petition for declaration of election of Philippine citizenship before the courts. The special
proceeding provided under Section 2, Rule 108 of the Rules of Court on Cancellation or Correction
of Entries in the Civil Registry, merely allows any interested party to file an action for cancellation or
correction of entry in the civil registry, i.e., election, loss and recovery of citizenship, which is not the
relief prayed for by the respondent.
Be that as it may, even if we set aside this procedural infirmity, still the trial court’s conclusion that
respondent duly elected Philippine citizenship is erroneous since the records undisputably show that
respondent failed to comply with the legal requirements for a valid election. Specifically, respondent
had not executed a sworn statement of her election of Philippine citizenship. The only documentary
evidence submitted by respondent in support of her claim of alleged election was her oath of
allegiance, executed 12 years after she reached the age of majority, which was unregistered. As
aptly pointed out by the petitioner, even assuming arguendo that respondent’s oath of allegiance
suffices, its execution was not within a reasonable time after respondent attained the age of majority
and was not registered with the nearest civil registry as required under Section 1 of C.A. No. 625.
The phrase "reasonable time" has been interpreted to mean that the election should be made
generally within three (3) years from reaching the age of majority.27 Moreover, there was no
satisfactory explanation proffered by respondent for the delay and the failure to register with the
nearest local civil registry.
Based on the foregoing circumstances, respondent clearly failed to comply with the procedural
requirements for a valid and effective election of Philippine citizenship. Respondent cannot assert
that the exercise of suffrage and the participation in election exercises constitutes a positive act of
election of Philippine citizenship since the law specifically lays down the requirements for acquisition
of citizenship by election. The mere exercise of suffrage, continuous and uninterrupted stay in the
Philippines, and other similar acts showing exercise of Philippine citizenship cannot take the place of
election of Philippine citizenship. Hence, respondent cannot now be allowed to seek the intervention
of the court to confer upon her Philippine citizenship when clearly she has failed to validly elect
Philippine citizenship. As we held in Ching,28 the prescribed procedure in electing Philippine
citizenship is certainly not a tedious and painstaking process. All that is required of the elector is to
execute an affidavit of election of Philippine citizenship and, thereafter, file the same with the nearest
civil registry. Having failed to comply with the foregoing requirements, respondent’s petition before
the trial court must be denied.
WHEREFORE, the petition is GRANTED. The Decision dated April 3, 2009 of the Regional Trial
Court, Branch 3 of Baguio City in Spcl. Pro. Case No. 17-R is REVERSED and SET ASIDE. The
petition for judicial declaration of election of Philippine citizenship filed by respondent Nora Fe Sagun
is hereby DISMISSED for lack of merit.
No costs.
SO ORDERED.
98
G.R. No. 142840 May 7, 2001
ANTONIO BENGSON III, petitioner,

vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO C.
CRUZ, respondents.
CONCURRING OPINION
DISSENTING OPINION
KAPUNAN, J.:
The citizenship of respondent Teodoro C. Cruz is at issue in this case, in view of the constitutional
requirement that "no person shall be a Member of the House of Representative unless he is a
natural-born citizen."1
Respondent Cruz was a natural-born citizen of the Philippines. He was born in San Clemente,
Tarlac, on April 27, 1960, of Filipino parents. The fundamental law then applicable was the 1935
Constitution.2
On November 5, 1985, however, respondent Cruz enlisted in the United States Marine Corps and
without the consent of the Republic of the Philippines, took an oath of allegiance to the United
States. As a Consequence, he lost his Filipino citizenship for under Commonwealth Act No. 63,
section 1(4), a Filipino citizen may lose his citizenship by, among other, "rendering service to or
accepting commission in the armed forces of a foreign country." Said provision of law reads:
SECTION 1. How citizenship may be lost. – A Filipino citizen may lose his citizenship in any
of the following ways and/or events:
xxx
(4) By rendering services to, or accepting commission in, the armed of a foreign
country: Provided, That the rendering of service to, or the acceptance of such commission in,
the armed forces of a foreign country, and the taking of an oath of allegiance incident
thereto, with the consent of the Republic of the Philippines, shall not divest a Filipino of his
Philippine citizenship if either of the following circumstances is present:
(a) The Republic of the Philippines has a defensive and/or offensive pact of alliance with said
foreign country; or
(b) The said foreign country maintains armed forces on Philippine territory with the consent
of the Republic of the Philippines: Provided, That the Filipino citizen concerned, at the time of
rendering said service, or acceptance of said commission, and taking the oath of allegiance
incident thereto, states that he does so only in connection with his service to said foreign
country; And provided, finally, That any Filipino citizen who is rendering service to, or is
commissioned in, the armed forces of a foreign country under any of the circumstances
mentioned in paragraph (a) or (b), shall not be Republic of the Philippines during the period
of his service to, or commission in, the armed forces of said country. Upon his discharge
from the service of the said foreign country, he shall be automatically entitled to the full
enjoyment of his civil and politically entitled to the full enjoyment of his civil political rights as
a Filipino citizen x x x.
Whatever doubt that remained regarding his loss of Philippine citizenship was erased by his
naturalization as a U.S. citizen on June 5, 1990, in connection with his service in the U.S. Marine
Corps.
On March 17, 1994, respondent Cruz reacquired his Philippine citizenship through repatriation under
Republic Act No. 2630.3 He ran for and was elected as the Representative of the Second District of
Pangasinan in the May 11, 1998 elections. He won by a convincing margin of 26,671 votes over
petitioner Antonio Bengson III, who was then running for reelection. 1âwphi1.nêt
Subsequently, petitioner filed a case for Quo Warranto Ad Cautelam with respondent House of
Representatives Electoral Tribunal (HRET) claiming that respondent Cruz was not qualified to
become a member of the House of Representatives since he is not a natural-born citizen as required
under Article VI, section 6 of the Constitution.4
On March 2, 2000, the HRET rendered its decision5 dismissing the petition for quo warranto and
declaring Cruz the duly elected Representative of the Second District of Pangasinan in the May
1998 elections. The HRET likewise denied petitioner's motion for reconsideration of the decision in
its resolution dated April 27, 2000.6
Petitioner thus filed the present petition for certiorari assailing the HRET's decision on the following
grounds:
1. The HRET committed serious errors and grave abuse of discretion, amounting to excess
of jurisdiction, when it ruled that private respondent is a natural-born citizen of the
Philippines despite the fact that he had ceased being such in view of the loss and
renunciation of such citizenship on his part.
2. The HRET committed serious errors and grave abuse of discretion, amounting to excess
of jurisdiction, when it considered private respondent as a citizen of the Philippines despite
the fact he did not validly acquire his Philippine citizenship.
3. Assuming that private respondent's acquisition of Philippine citizenship was invalid, the
HRET committed serious errors and grave abuse of discretion, amounting to excess of
jurisdiction, when it dismissed the petition despite the fact that such reacquisition could not
legally and constitutionally restore his natural-born status.7
The issue now before us is whether respondent Cruz, a natural-born Filipino who became an
American citizen, can still be considered a natural-born Filipino upon his reacquisition of Philippine
citizenship.
Petitioner asserts that respondent Cruz may no longer be considered a natural-born Filipino since he
lost h is Philippine citizenship when he swore allegiance to the United States in 1995, and had to
reacquire the same by repatriation. He insists that Article citizens are those who are from birth with
out having to perform any act to acquire or perfect such citizenship.
Respondent on the other hand contends that he reacquired his status as natural-born citizen when
he was repatriated since the phrase "from birth" in Article IV, Section 2 refers to the innate, inherent
and inborn characteristic of being a natural-born citizen.
The petition is without merit.
The 1987 Constitution enumerates who are Filipino citizens as follow:
(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution;
(2) Those whose fathers or mothers are citizens of the Philippines;
(3) Those born before January 17, 1973 of Filipino mother, who elect Philippine citizenship
upon reaching the age of majority, and
(4) Those who are naturalized in accordance with law.8
There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization. These ways of
acquiring citizenship correspond to the two kinds of citizens: the natural-born citizen, and the
naturalized citizen. A person who at the time of his birth is a citizen of a particular country, is a
natural-born citizen thereof.9
As defined in the same Constitution, natural-born citizens "are those citizens of the Philippines from
birth without having to perform any act to acquire or perfect his Philippine citezenship."10
On the other hand, naturalized citizens are those who have become Filipino citizens through
naturalization, generally under Commonwealth Act No. 473, otherwise known as the Revised
Naturalization Law, which repealed the former Naturalization Law (Act No. 2927), and by Republic
Act No. 530.11 To be naturalized, an applicant has to prove that he possesses all the
qualifications12 and none of the disqualification13 provided by law to become a Filipino citizen. The
decision granting Philippine citizenship becomes executory only after two (2) years from its
promulgation when the court is satisfied that during the intervening period, the applicant has (1) not
left the Philippines; (2) has dedicated himself to a lawful calling or profession; (3) has not been
convicted of any offense or violation of Government promulgated rules; or (4) committed any act
prejudicial to the interest of the nation or contrary to any Government announced policies.14
Filipino citizens who have lost their citizenship may however reacquire the same in the manner
provided by law. Commonwealth Act. No. (C.A. No. 63), enumerates the three modes by which
Philippine citizenship may be reacquired by a former citizen: (1) by naturalization, (2) by repatriation,
and (3) by direct act of Congress.15
Naturalization is mode for both acquisition and reacquisition of Philippine citizenship. As a mode of
initially acquiring Philippine citizenship, naturalization is governed by Commonwealth Act No. 473, as
amended. On the other hand, naturalization as a mode for reacquiring Philippine citizenship is
governed by Commonwealth Act No. 63.16 Under this law, a former Filipino citizen who wishes to
reacquire Philippine citizenship must possess certain qualifications17and none of the disqualification
mentioned in Section 4 of C.A. 473.18
Repatriation, on the other hand, may be had under various statutes by those who lost their
citizenship due to: (1) desertion of the armed forces;19 services in the armed forces of the allied
forces in World War II;20 (3) service in the Armed Forces of the United States at any other time,21 (4)
marriage of a Filipino woman to an alien;22 and (5) political economic necessity.23
As distinguished from the lengthy process of naturalization, repatriation simply consists of the taking
of an oath of allegiance to the Republic of the Philippine and registering said oath in the Local Civil
Registry of the place where the person concerned resides or last resided.
In Angat v. Republic,24 we held:
xxx. Parenthetically, under these statutes [referring to RA Nos. 965 and 2630], the person
desiring to reacquire Philippine citizenship would not even be required to file a petition in
court, and all that he had to do was to take an oath of allegiance to the Republic of the
Philippines and to register that fact with the civil registry in the place of his residence or
where he had last resided in the Philippines. [Italics in the original.25
Moreover, repatriation results in the recovery of the original nationality.26 This means that a
naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino
citizen. On the other hand, if he was originally a natural-born citizen before he lost his Philippine
citizenship, he will be restored to his former status as a natural-born Filipino.
In respondent Cruz's case, he lost his Filipino citizenship when he rendered service in the Armed
Forces of the United States. However, he subsequently reacquired Philippine citizenship under R.A.
No. 2630, which provides:
Section 1. Any person who had lost his Philippine citizenship by rendering service to, or
accepting commission in, the Armed Forces of the United States, or after separation from the
Armed Forces of the United States, acquired United States citizenship, may reacquire
Philippine citizenship by taking an oath of allegiance to the Republic of the Philippines and
registering the same with Local Civil Registry in the place where he resides or last resided in
the Philippines. The said oath of allegiance shall contain a renunciation of any other
citizenship.
Having thus taken the required oath of allegiance to the Republic and having registered the same in
the Civil Registry of Magantarem, Pangasinan in accordance with the aforecited provision,
respondent Cruz is deemed to have recovered his original status as a natural-born citizen, a status
which he acquired at birth as the son of a Filipino father.27 It bears stressing that the act of
repatriation allows him to recover, or return to, his original status before he lost his Philippine
citizenship.
Petitioner's contention that respondent Cruz is no longer a natural-born citizen since he had to
perform an act to regain his citizenship is untenable. As correctly explained by the HRET in its
decision, the term "natural-born citizen" was first defined in Article III, Section 4 of the 1973
Constitution as follows:
Sec. 4. A natural-born citizen is one who is a citizen of the Philippines from birth without
having to perform any act to acquire or perfect his Philippine citizenship.
Two requisites must concur for a person to be considered as such: (1) a person must be a Filipino
citizen birth and (2) he does not have to perform any act to obtain or perfect his Philippine
citizenship.
Under the 1973 Constitution definition, there were two categories of Filipino citizens which were not
considered natural-born: (1) those who were naturalized and (2) those born before January 17,
1973,38 of Filipino mothers who, upon reaching the age of majority, elected Philippine citizenship.
Those "naturalized citizens" were not considered natural-born obviously because they were not
Filipino at birth and had to perform an act to acquire Philippine citizenship. Those born of Filipino
mothers before the effectively of the 1973 Constitution were likewise not considered natural-born
because they also had to perform an act to perfect their Philippines citizenship.
The present Constitution, however, now consider those born of Filipino mothers before the effectivity
of the 1973 Constitution and who elected Philippine citizenship upon reaching the majority age as
natural-born. After defining who re natural-born citizens, Section 2 of Article IV adds a sentence:
"Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be
deemed natural-born citizens." Consequently, only naturalized Filipinos are considered not natural-
born citizens. It is apparent from the enumeration of who are citizens under the present Constitution
that there are only two classes of citizens: (1) those who are natural-born and (2) those who are
naturalized in accordance with law. A citizen who is not a naturalized Filipino, i.e., did not have to
undergo the process of naturalization to obtain Philippine citizenship, necessarily is natural-born
Filipino. Noteworthy is the absence in said enumeration of a separate category for persons who,
after losing Philippine citizenship, subsequently reacquire it. The reason therefor is clear: as to such
persons, they would either be natural-born or naturalized depending on the reasons for the loss of
their citizenship and the mode prescribed by the applicable law for the reacquisition thereof. As
respondent Cruz was not required by law to go through naturalization proceeding in order to
reacquire his citizenship, he is perforce a natural-born Filipino. As such, he possessed all the
necessary qualifications to be elected as member of the House of Representatives.
A final point. The HRET has been empowered by the Constitution to be the "sole judge" of all
contests relating to the election, returns, and qualifications of the members of the House.29 The
Court's jurisdiction over the HRET is merely to check "whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction" on the part of the latter.30 In the absence
thereof, there is no occasion for the Court to exercise its corrective power and annul the decision of
the HRET nor to substitute the Court's judgement for that of the latter for the simple reason that it is
not the office of a petition for certiorari to inquire into the correctness of the assailed
decision.31 There is no such showing of grave abuse of discretion in this case.
WHEREFORE, the petition is hereby DISMISSED.

SO ORDERED
99

SUPREME COURT
Manila
EN BANC
G.R. No. 160869 May 11, 2007
AASJS (ADVOCATES AND ADHERENTS OF SOCIAL JUSTICE FOR SCHOOL TEACHERS AND
ALLIED WORKERS) MEMBER - HECTOR GUMANGAN CALILUNG, Petitioner,
vs.
THE HONORABLE SIMEON DATUMANONG, in his official capacity as the Secretary of
Justice, Respondent.
DECISION
QUISUMBING, J.:
This is an original action for prohibition under Rule 65 of the 1997 Revised Rules of Civil Procedure.
Petitioner filed the instant petition against respondent, then Secretary of Justice Simeon
Datumanong, the official tasked to implement laws governing citizenship.1 Petitioner prays that a writ
of prohibition be issued to stop respondent from implementing Republic Act No. 9225, entitled "An
Act Making the Citizenship of Philippine Citizens Who Acquire Foreign Citizenship Permanent,
Amending for the Purpose Commonwealth Act No. 63, As Amended, and for Other Purposes."
Petitioner avers that Rep. Act No. 9225 is unconstitutional as it violates Section 5, Article IV of the
1987 Constitution that states, "Dual allegiance of citizens is inimical to the national interest and shall
be dealt with by law."
Rep. Act No. 9225, signed into law by President Gloria M. Arroyo on August 29, 2003, reads:
SECTION 1. Short Title.-This Act shall be known as the "Citizenship Retention and Reacquisition Act
of 2003."
SEC. 2. Declaration of Policy.-It is hereby declared the policy of the State that all Philippine citizens
who become citizens of another country shall be deemed not to have lost their Philippine citizenship
under the conditions of this Act.
SEC. 3. Retention of Philippine Citizenship.-Any provision of law to the contrary notwithstanding,

natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their
naturalization as citizens of a foreign country are hereby deemed to have reacquired Philippine
citizenship upon taking the following oath of allegiance to the Republic:
"I ___________________________, solemnly swear (or affirm) that I will support and defend the
Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by
the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept
the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I
impose this obligation upon myself voluntarily without mental reservation or purpose of evasion."
Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a
foreign country shall retain their Philippine citizenship upon taking the aforesaid oath.
SEC. 4. Derivative Citizenship. - The unmarried child, whether legitimate, illegitimate or adopted,
below eighteen (18) years of age, of those who reacquire Philippine citizenship upon effectivity of
this Act shall be deemed citizens of the Philippines.
SEC. 5. Civil and Political Rights and Liabilities. - Those who retain or reacquire Philippine
citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant
liabilities and responsibilities under existing laws of the Philippines and the following conditions:
(1) Those intending to exercise their right of suffrage must meet the requirements under
Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The
Overseas Absentee Voting Act of 2003" and other existing laws;
(2) Those seeking elective public office in the Philippines shall meet the qualifications for
holding such public office as required by the Constitution and existing laws and, at the time
of the filing of the certificate of candidacy, make a personal and sworn renunciation of any
and all foreign citizenship before any public officer authorized to administer an oath;
(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to
the Republic of the Philippines and its duly constituted authorities prior to their assumption of
office: Provided, That they renounce their oath of allegiance to the country where they took
that oath;
(4) Those intending to practice their profession in the Philippines shall apply with the proper
authority for a license or permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any public office in the Philippines cannot
be exercised by, or extended to, those who:
(a) are candidates for or are occupying any public office in the country of which they are
naturalized citizens; and/or
(b) are in the active service as commissioned or noncommissioned officers in the armed
forces of the country which they are naturalized citizens.
SEC. 6. Separability Clause. - If any section or provision of this Act is held unconstitutional or invalid,
any other section or provision not affected thereby shall remain valid and effective.
SEC. 7. Repealing Clause. - All laws, decrees, orders, rules and regulations inconsistent with the
provisions of this Act are hereby repealed or modified accordingly.
SEC. 8. Effectivity Clause. - This Act shall take effect after fifteen (15) days following its publication
in the Official Gazette or two (2) newspapers of general circulation.
In this petition for prohibition, the following issues have been raised: (1) Is Rep. Act No. 9225
unconstitutional? (2) Does this Court have jurisdiction to pass upon the issue of dual allegiance?
We shall discuss these issues jointly.
Petitioner contends that Rep. Act No. 9225 cheapens Philippine citizenship. He avers that Sections
2 and 3 of Rep. Act No. 9225, together, allow dual allegiance and not dual citizenship. Petitioner
maintains that Section 2 allows all Filipinos, either natural-born or naturalized, who become foreign
citizens, to retain their Philippine citizenship without losing their foreign citizenship. Section 3 permits
dual allegiance because said law allows natural-born citizens of the Philippines to regain their
Philippine citizenship by simply taking an oath of allegiance without forfeiting their foreign
allegiance.2 The Constitution, however, is categorical that dual allegiance is inimical to the national
interest.
The Office of the Solicitor General (OSG) claims that Section 2 merely declares as a state policy that
"Philippine citizens who become citizens of another country shall be deemed not to have lost their
Philippine citizenship." The OSG further claims that the oath in Section 3 does not allow dual
allegiance since the oath taken by the former Filipino citizen is an effective renunciation and
repudiation of his foreign citizenship. The fact that the applicant taking the oath recognizes and
accepts the supreme authority of the Philippines is an unmistakable and categorical affirmation of his
undivided loyalty to the Republic.3
In resolving the aforecited issues in this case, resort to the deliberations of Congress is necessary to
determine the intent of the legislative branch in drafting the assailed law. During the deliberations,
the issue of whether Rep. Act No. 9225 would allow dual allegiance had in fact been the subject of
debate. The record of the legislative deliberations reveals the following:
xxxx
Pursuing his point, Rep. Dilangalen noted that under the measure, two situations exist - - the
retention of foreign citizenship, and the reacquisition of Philippine citizenship. In this case, he
observed that there are two citizenships and therefore, two allegiances. He pointed out that under
the Constitution, dual allegiance is inimical to public interest. He thereafter asked whether with the
creation of dual allegiance by reason of retention of foreign citizenship and the reacquisition of
Philippine citizenship, there will now be a violation of the Constitution…
Rep. Locsin underscored that the measure does not seek to address the constitutional injunction on
dual allegiance as inimical to public interest. He said that the proposed law aims to facilitate the
reacquisition of Philippine citizenship by speedy means. However, he said that in one sense, it
addresses the problem of dual citizenship by requiring the taking of an oath. He explained that the
problem of dual citizenship is transferred from the Philippines to the foreign country because the
latest oath that will be taken by the former Filipino is one of allegiance to the Philippines and not to
the United States, as the case may be. He added that this is a matter which the Philippine
government will have no concern and competence over.
Rep. Dilangalen asked why this will no longer be the country's concern, when dual allegiance is
involved.
Rep. Locsin clarified that this was precisely his objection to the original version of the bill, which did
not require an oath of allegiance. Since the measure now requires this oath, the problem of dual
allegiance is transferred from the Philippines to the foreign country concerned, he explained.
xxxx
Rep. Dilangalen asked whether in the particular case, the person did not denounce his foreign
citizenship and therefore still owes allegiance to the foreign government, and at the same time, owes
his allegiance to the Philippine government, such that there is now a case of dual citizenship and
dual allegiance.
Rep. Locsin clarified that by swearing to the supreme authority of the Republic, the person implicitly
renounces his foreign citizenship. However, he said that this is not a matter that he wishes to
address in Congress because he is not a member of a foreign parliament but a Member of the
House.
xxxx
Rep. Locsin replied that it is imperative that those who have dual allegiance contrary to national
interest should be dealt with by law. However, he said that the dual allegiance problem is not
addressed in the bill. He then cited the Declaration of Policy in the bill which states that "It is hereby
declared the policy of the State that all citizens who become citizens of another country shall be
deemed not to have lost their Philippine citizenship under the conditions of this Act." He stressed
that what the bill does is recognize Philippine citizenship but says nothing about the other
citizenship.
Rep. Locsin further pointed out that the problem of dual allegiance is created wherein a natural-born
citizen of the Philippines takes an oath of allegiance to another country and in that oath says that he
abjures and absolutely renounces all allegiance to his country of origin and swears allegiance to that
foreign country. The original Bill had left it at this stage, he explained. In the present measure, he
clarified, a person is required to take an oath and the last he utters is one of allegiance to the
country. He then said that the problem of dual allegiance is no longer the problem of the Philippines
but of the other foreign country.4 (Emphasis supplied.)
From the above excerpts of the legislative record, it is clear that the intent of the legislature in
drafting Rep. Act No. 9225 is to do away with the provision in Commonwealth Act No. 635 which
takes away Philippine citizenship from natural-born Filipinos who become naturalized citizens of
other countries. What Rep. Act No. 9225 does is allow dual citizenship to natural-born Filipino
citizens who have lost Philippine citizenship by reason of their naturalization as citizens of a foreign
country. On its face, it does not recognize dual allegiance. By swearing to the supreme authority of
the Republic, the person implicitly renounces his foreign citizenship. Plainly, from Section 3, Rep.
Act No. 9225 stayed clear out of the problem of dual allegiance and shifted the burden of confronting
the issue of whether or not there is dual allegiance to the concerned foreign country. What happens
to the other citizenship was not made a concern of Rep. Act No. 9225.
Petitioner likewise advances the proposition that although Congress has not yet passed any law on
the matter of dual allegiance, such absence of a law should not be justification why this Court could
not rule on the issue. He further contends that while it is true that there is no enabling law yet on dual
allegiance, the Supreme Court, through Mercado v. Manzano,6 already had drawn up the guidelines
on how to distinguish dual allegiance from dual citizenship.7
For its part, the OSG counters that pursuant to Section 5, Article IV of the 1987 Constitution, dual
allegiance shall be dealt with by law. Thus, until a law on dual allegiance is enacted by Congress,
the Supreme Court is without any jurisdiction to entertain issues regarding dual allegiance.8
To begin with, Section 5, Article IV of the Constitution is a declaration of a policy and it is not a self-
executing provision. The legislature still has to enact the law on dual allegiance. In Sections 2 and 3
of Rep. Act No. 9225, the framers were not concerned with dual citizenship per se, but with the
status of naturalized citizens who maintain their allegiance to their countries of origin even after their
naturalization.9 Congress was given a mandate to draft a law that would set specific parameters of
what really constitutes dual allegiance.10 Until this is done, it would be premature for the judicial
department, including this Court, to rule on issues pertaining to dual allegiance.
Neither can we subscribe to the proposition of petitioner that a law is not needed since the case of
Mercado had already set the guidelines for determining dual allegiance. Petitioner
misreads Mercado. That case did not set the parameters of what constitutes dual allegiance but
merely made a distinction between dual allegiance and dual citizenship.
Moreover, in Estrada v. Sandiganbayan,11 we said that the courts must assume that the legislature is
ever conscious of the borders and edges of its plenary powers, and passed laws 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, we
must proceed with judicial restraint and act with caution and forbearance.12 The doctrine of
separation of powers demands no less. We cannot arrogate the duty of setting the parameters of
what constitutes dual allegiance when the Constitution itself has clearly delegated the duty of
determining what acts constitute dual allegiance for study and legislation by Congress.
WHEREFORE, the petition is hereby DISMISSED for lack of merit.
SO ORDERED.
100
G.R. No. 162759 August 4, 2006
LOIDA NICOLAS-LEWIS, GREGORIO B. MACABENTA, ALEJANDRO A. ESCLAMADO,

ARMANDO B. HEREDIA, REUBEN S. SEGURITAN, ERIC LACHICA FURBEYRE, TERESITA A.
CRUZ, JOSEFINA OPENA DISTERHOFT, MERCEDES V. OPENA, CORNELIO R. NATIVIDAD,
EVELYN D. NATIVIDAD, Petitioners,
vs.
DECISION
GARCIA, J.:
In this petition for certiorari and mandamus, petitioners, referring to themselves as "duals" or dual
citizens, pray that they and others who retained or reacquired Philippine citizenship under Republic
Act (R.A.) No. 9225, the Citizenship Retention and Re-Acquisition Act of 2003, be allowed to avail
themselves of the mechanism provided under the Overseas Absentee Voting Act of 2003 1 (R.A.
9189) and that the Commission on Elections (COMELEC) accordingly be ordered to allow them to
vote and register as absentee voters under the aegis of R.A. 9189.
The facts:
Petitioners are successful applicants for recognition of Philippine citizenship under R.A. 9225 which
accords to such applicants the right of suffrage, among others. Long before the May 2004 national
and local elections, petitioners sought registration and certification as "overseas absentee voter" only
to be advised by the Philippine Embassy in the United States that, per a COMELEC letter to the
Department of Foreign Affairs dated September 23, 2003 2, they have yet no right to vote in such
elections owing to their lack of the one-year residence requirement prescribed by the Constitution.
The same letter, however, urged the different Philippine posts abroad not to discontinue their
campaign for voter’s registration, as the residence restriction adverted to would contextually affect
merely certain individuals who would likely be eligible to vote in future elections.
Prodded for clarification by petitioner Loida Nicolas-Lewis in the light of the ruling in Macalintal vs.
COMELEC 3 on the residency requirement, the COMELEC wrote in response:
Although R.A. 9225 enjoys the presumption of constitutionality …, it is the Commission's position
that those who have availed of the law cannot exercise the right of suffrage given under the OAVL
for the reason that the OAVL was not enacted for them. Hence, as Filipinos who have merely re-
acquired their citizenship on 18 September 2003 at the earliest, and as law and jurisprudence now
stand, they are considered regular voters who have to meet the requirements of residency, among
others under Section 1, Article 5 of the Constitution. 4
Faced with the prospect of not being able to vote in the May 2004 elections owing to the
COMELEC's refusal to include them in the National Registry of Absentee Voters, petitioner Nicolas-
Lewis et al., 5 filed on April 1, 2004 this petition for certiorari and mandamus.
A little over a week before the May 10, 2004 elections, or on April 30, 2004, the COMELEC filed a
Comment, 6 therein praying for the denial of the petition. As may be expected, petitioners were not
able to register let alone vote in said elections.
On May 20, 2004, the Office of the Solicitor General (OSG) filed a Manifestation (in Lieu of
Comment), therein stating that "all qualified overseas Filipinos, including dual citizens who care to
exercise the right of suffrage, may do so" , observing, however, that the conclusion of the 2004
elections had rendered the petition moot and academic. 7
The holding of the 2004 elections had, as the OSG pointed out, indeed rendered the petition moot
and academic, but insofar only as petitioners’ participation in such political exercise is concerned.
The broader and transcendental issue tendered or subsumed in the petition, i.e., the propriety of
allowing "duals" to participate and vote as absentee voter in future elections, however, remains
unresolved.
Observing the petitioners’ and the COMELEC’s respective formulations of the issues, the same may
be reduced into the question of whether or not petitioners and others who might have meanwhile
retained and/or reacquired Philippine citizenship pursuant to R.A. 9225 may vote as absentee voter
under R.A. 9189.
The Court resolves the poser in the affirmative, and thereby accords merit to the petition.
In esse, this case is all about suffrage. A quick look at the governing provisions on the right of
suffrage is, therefore, indicated.
We start off with Sections 1 and 2 of Article V of the Constitution, respectively reading as follows:
SECTION 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified
by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at
least one year and in the place wherein they propose to vote for at least six months immediately
preceding the election. xxx.
SEC 2. The Congress shall provide … a system for absentee voting by qualified Filipinos abroad.
In a nutshell, the aforequoted Section 1 prescribes residency requirement as a general eligibility

factor for the right to vote. On the other hand, Section 2 authorizes Congress to devise a system
wherein an absentee may vote, implying that a non-resident may, as an exception to the residency
prescription in the preceding section, be allowed to vote.
In response to its above mandate, Congress enacted R.A. 9189 - the OAVL 8 - identifying in its
Section 4 who can vote under it and in the following section who cannot, as follows:
Section 4. Coverage. – All citizens of the Philippines abroad, who are not otherwise disqualified by
law, at least eighteen (18) years of age on the day of elections, may vote for president, vice-
president, senators and party-list representatives.
Section 5. Disqualifications. – The following shall be disqualified from voting under this Act:
(a) Those who have lost their Filipino citizenship in accordance with Philippine laws;
(b) Those who have expressly renounced their Philippine citizenship and who have pledged
allegiance to a foreign country;
(c) Those who have … [been] convicted in a final judgment by a court or tribunal of an offense
punishable by imprisonment of not less than one (1) year, including those who have … been found
guilty of Disloyalty as defined under Article 137 of the Revised Penal Code, ….;
(d) An immigrant or a permanent resident who is recognized as such in the host country, unless
he/she executes, upon registration, an affidavit prepared for the purpose by the Commission
declaring that he/she shall resume actual physical permanent residence in the Philippines not later
than three (3) years from approval of his/her registration under this Act. Such affidavit shall also
state that he/she has not applied for citizenship in another country. Failure to return shall be the
cause for the removal of the name of the immigrant or permanent resident from the National Registry
of Absentee Voters and his/her permanent disqualification to vote in absentia.
(e) Any citizen of the Philippines abroad previously declared insane or incompetent by competent
authority …. (Words in bracket added.)
Notably, Section 5 lists those who cannot avail themselves of the absentee voting mechanism.
However, Section 5(d) of the enumeration respecting Filipino immigrants and permanent residents in
another country opens an exception and qualifies the disqualification rule. Section 5(d) would,
however, face a constitutional challenge on the ground that, as narrated in Macalintal, it -
… violates Section 1, Article V of the 1987 Constitution which requires that the voter must be a
resident in the Philippines for at least one year and in the place where he proposes to vote for at
least six months immediately preceding an election. [The challenger] cites … Caasi vs. Court of
Appeals 9 to support his claim [where] the Court held that a "green card" holder immigrant to the [US]
is deemed to have abandoned his domicile and residence in the Philippines.
[The challenger] further argues that Section 1, Article V of the Constitution does not allow provisional
registration or a promise by a voter to perform a condition to be qualified to vote in a political
exercise; that the legislature should not be allowed to circumvent the requirement of the Constitution
on the right of suffrage by providing a condition thereon which in effect amends or alters the
aforesaid residence requirement to qualify a Filipino abroad to vote. He claims that the right of
suffrage should not be granted to anyone who, on the date of the election, does not possess the
qualifications provided for by Section 1, Article V of the Constitution. 10 (Words in bracket added.)
As may be recalled, the Court upheld the constitutionality of Section 5(d) of R.A. 9189 mainly on the
strength of the following premises:
As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an immigrant or
permanent resident who is "recognized as such in the host country" because immigration or
permanent residence in another country implies renunciation of one's residence in his country of
origin. However, same Section allows an immigrant and permanent resident abroad to register as
voter for as long as he/she executes an affidavit to show that he/she has not abandoned his domicile
in pursuance of the constitutional intent expressed in Sections 1 and 2 of Article V that "all citizens of
the Philippines not otherwise disqualified by law" must be entitled to exercise the right of suffrage
and, that Congress must establish a system for absentee voting; for otherwise, if actual, physical
residence in the Philippines is required, there is no sense for the framers of the Constitution to
mandate Congress to establish a system for absentee voting.
Contrary to the claim of [the challenger], the execution of the affidavit itself is not the enabling or
enfranchising act. The affidavit required in Section 5(d) is not only proof of the intention of the
immigrant or permanent resident to go back and resume residency in the Philippines, but more
significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of
origin. Thus, it is not correct to say that the execution of the affidavit under Section 5(d) violates the
Constitution that proscribes "provisional registration or a promise by a voter to perform a condition to
be qualified to vote in a political exercise." 11
Soon after Section 5(d) of R.A. 9189 passed the test of constitutionality, Congress enacted R.A.
9225 the relevant portion of which reads:
SEC. 2. Declaration of Policy. – It is hereby declared the policy of the State that all Philippine
citizens who become citizens of another country shall be deemed not to have lost their Philippine
citizenship under the conditions of this Act.
SEC. 3. Retention of Philippine Citizenship. – Any provision of law to the contrary notwithstanding,
naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine
xxx xxx xxx
SEC. 4. Derivative Citizenship. – The unmarried child, whether legitimate, illegitimate or adopted,
below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of
SEC. 5. Civil and Political Rights and Liabilities. – Those who retain or re-acquire Philippine
(1) Those intending to exercise their right of suffrage must meet the requirements under Section 1,
Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee
Voting Act of 2003" and other existing laws;
(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding
such public office as required by the Constitution and existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship
…;
3) xxx xxx xxx.
(4) xxx xxx xxx;
(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be
exercised by, or extended to, those who:
(a) are candidates for or are occupying any public office in the country of which they are naturalized
citizens; and/or
(b) are in active service as commissioned or non-commissioned officers in the armed forces of the
country which they are naturalized citizens.
After what appears to be a successful application for recognition of Philippine citizenship under R.A.
9189, petitioners now invoke their right to enjoy … political rights, specifically the right of suffrage,
pursuant to Section 5 thereof.
Opposing the petitioners’ bid, however, respondent COMELEC invites attention to the same Section
5 (1) providing that "duals" can enjoy their right to vote, as an adjunct to political rights, only if they
meet the requirements of Section 1, Article V of the Constitution, R.A. 9189 and other existing laws.
Capitalizing on what at first blush is the clashing provisions of the aforecited provision of the
Constitution, which, to repeat, requires residency in the Philippines for a certain period, and R.A.
9189 which grants a Filipino non-resident absentee voting rights, 12 COMELEC argues:
4. ‘DUALS’ MUST FIRST ESTABLISH THEIR DOMICILE/ RESIDENCE IN THE PHILIPPINES
4.01. The inclusion of such additional and specific requirements in RA 9225 is logical. The ‘duals,’
upon renouncement of their Filipino citizenship and acquisition of foreign citizenship, have practically
and legally abandoned their domicile and severed their legal ties to the homeland as a
consequence. Having subsequently acquired a second citizenship (i.e., Filipino) then, ‘duals’ must,
for purposes of voting, first of all, decisively and definitely establish their domicile through positive
acts; 13
The Court disagrees.
As may be noted, there is no provision in the dual citizenship law - R.A. 9225 - requiring "duals" to
actually establish residence and physically stay in the Philippines first before they can exercise their
right to vote. On the contrary, R.A. 9225, in implicit acknowledgment that "duals" are most likely non-
residents, grants under its Section 5(1) the same right of suffrage as that granted an absentee voter
under R.A. 9189. It cannot be overemphasized that R.A. 9189 aims, in essence, to enfranchise as
much as possible all overseas Filipinos who, save for the residency requirements exacted of an
ordinary voter under ordinary conditions, are qualified to vote. Thus, wrote the Court in Macalintal:
It is clear from these discussions of the … Constitutional Commission that [it] intended to
enfranchise as much as possible all Filipino citizens abroad who have not abandoned their domicile
of origin. The Commission even intended to extend to young Filipinos who reach voting age abroad
whose parents’ domicile of origin is in the Philippines, and consider them qualified as voters for the
first time.
It is in pursuance of that intention that the Commission provided for Section 2 [Article V] immediately
after the residency requirement of Section 1. By the doctrine of necessary implication in statutory
construction, …, the strategic location of Section 2 indicates that the Constitutional Commission
provided for an exception to the actual residency requirement of Section 1 with respect to qualified
Filipinos abroad. The same Commission has in effect declared that qualified Filipinos who are not in
the Philippines may be allowed to vote even though they do not satisfy the residency requirement in
Section 1, Article V of the Constitution.
That Section 2 of Article V of the Constitution is an exception to the residency requirement found in
Section 1 of the same Article was in fact the subject of debate when Senate Bill No. 2104, which
became R.A. No. 9189, was deliberated upon on the Senate floor, thus:
Senator Arroyo. Mr. President, this bill should be looked into in relation to the constitutional
provisions. I think the sponsor and I would agree that the Constitution is supreme in any statute that
we may enact.
Let me read Section 1, Article V, of the Constitution ….
xxx xxx xxx
Now, Mr. President, the Constitution says, "who shall have resided in the Philippines." They are
permanent immigrants. They have changed residence so they are barred under the Constitution.
This is why I asked whether this committee amendment which in fact does not alter the original text
of the bill will have any effect on this?
Senator Angara. Good question, Mr. President. And this has been asked in various fora. This is in
compliance with the Constitution. One, the interpretation here of "residence" is synonymous with
"domicile."
As the gentleman and I know, Mr. President, "domicile" is the intent to return to one's home. And the
fact that a Filipino may have been physically absent from the Philippines and may be physically a
resident of the United States, for example, but has a clear intent to return to the Philippines, will
make him qualified as a resident of the Philippines under this law.
This is consistent, Mr. President, with the constitutional mandate that we – that Congress – must
provide a franchise to overseas Filipinos.
If we read the Constitution and the suffrage principle literally as demanding physical presence, then
there is no way we can provide for offshore voting to our offshore kababayan, Mr. President.
Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of Article V, it reads: "The
Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a
system for absentee voting by qualified Filipinos abroad."
The key to this whole exercise, Mr. President, is "qualified." In other words, anything that we may do
or say in granting our compatriots abroad must be anchored on the proposition that they are
qualified. Absent the qualification, they cannot vote. And "residents" (sic) is a qualification.
xxx xxx xxx
Look at what the Constitution says – "In the place wherein they propose to vote for at least six
months immediately preceding the election."
Mr. President, all of us here have run (sic) for office.
I live in Makati. My neighbor is Pateros …. We are separated only by a creek. But one who votes in
Makati cannot vote in Pateros unless he resides in Pateros for six months. That is how restrictive our
Constitution is. ….
As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so. But he must do
so, make the transfer six months before the election, otherwise, he is not qualified to vote.
xxx xxx xxx
Senator Angara. It is a good point to raise, Mr. President. But it is a point already well-debated even
in the constitutional commission of 1986. And the reason Section 2 of Article V was placed
immediately after the six-month/one-year residency requirement is to demonstrate unmistakably that
Section 2 which authorizes absentee voting is an exception to the six-month/one-year residency
requirement. That is the first principle, Mr. President, that one must remember.
The second reason, Mr. President, is that under our jurisprudence … – "residency" has been
interpreted as synonymous with "domicile."
But the third more practical reason, … is, if we follow the interpretation of the gentleman, then it is
legally and constitutionally impossible to give a franchise to vote to overseas Filipinos who do not
physically live in the country, which is quite ridiculous because that is exactly the whole point of this
exercise – to enfranchise them and empower them to vote. 14 (Emphasis and words in bracket
added; citations omitted)
Lest it be overlooked, no less than the COMELEC itself admits that the Citizenship Retention and
Re-Acquisition Act expanded the coverage of overseas absentee voting. According to the poll body:
1.05 With the passage of RA 9225 the scope of overseas absentee voting has been consequently
expanded so as to include Filipinos who are also citizens of other countries, subject, however, to the
strict prerequisites indicated in the pertinent provisions of RA 9225; 15
Considering the unison intent of the Constitution and R.A. 9189 and the expansion of the scope of
that law with the passage of R.A. 9225, the irresistible conclusion is that "duals" may now exercise
the right of suffrage thru the absentee voting scheme and as overseas absentee voters. R.A. 9189
defines the terms adverted to in the following wise:
"Absentee Voting" refers to the process by which qualified citizens of the Philippines abroad exercise
their right to vote;
"Overseas Absentee Voter" refers to a citizen of the Philippines who is qualified to register and vote
under this Act, not otherwise disqualified by law, who is abroad on the day of elections;
While perhaps not determinative of the issue tendered herein, we note that the expanded thrust of
R.A. 9189 extends also to what might be tag as the next generation of "duals". This may be deduced
from the inclusion of the provision on derivative citizenship in R.A. 9225 which reads:
SEC. 4. Derivative Citizenship. – The unmarried child, whether legitimate, illegitimate or adopted,
below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of
It is very likely that a considerable number of those unmarried children below eighteen (18) years of
age had never set foot in the Philippines. Now then, if the next generation of "duals" may
nonetheless avail themselves the right to enjoy full civil and political rights under Section 5 of the
Act, then there is neither no rhyme nor reason why the petitioners and other present day "duals,"
provided they meet the requirements under Section 1, Article V of the Constitution in relation to R.A.
9189, be denied the right of suffrage as an overseas absentee voter. Congress could not have
plausibly intended such absurd situation.
WHEREFORE, the instant petition is GRANTED. Accordingly, the Court rules and so holds that
those who retain or re-acquire Philippine citizenship under Republic Act No. 9225, the Citizenship
Retention and Re-Acquisition Act of 2003, may exercise the right to vote under the system of
absentee voting in Republic Act No. 9189, the Overseas Absentee Voting Act of 2003.
SO ORDERED.
101

SUPREME COURT
Manila
EN BANC
G.R. No. 176947 February 19, 2009
GAUDENCIO M. CORDORA, Petitioner,

vs.
COMMISSION ON ELECTIONS and GUSTAVO S. TAMBUNTING, Respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for certiorari and mandamus, with prayer for the issuance of a temporary restraining
order under Rule 65 of the 1997 Rules of Civil Procedure.
In EO Case No. 05-17, Gaudencio M. Cordora (Cordora) accused Gustavo S. Tambunting

(Tambunting) of an election offense for violating Section 74 in relation to Section 262 of the Omnibus
Election Code. The Commission on Elections’ (COMELEC) En Banc dismissed Cordora’s complaint
in a Resolution1 dated 18 August 2006. The present petition seeks to reverse the 18 August 2006
Resolution as well as the Resolution2 dated 20 February 2007 of the COMELEC En Banc which
denied Cordora’s motion for reconsideration.
The Facts
In his complaint affidavit filed before the COMELEC Law Department, Cordora asserted that
Tambunting made false assertions in the following items:
That Annex A [Tambunting’s Certificate of Candidacy for the 2001 elections] and Annex B
[Tambunting’s Certificate of Candidacy for the 2004 elections] state, among others, as follows,
particularly Nos. 6, 9 and 12 thereof:
1. No. 6 – I am a Natural Born/Filipino Citizen
2. No. 9 – No. of years of Residence before May 14, 2001.
36 in the Philippines and 25 in the Constituency where I seek to be elected;
3. No. 12 – I am ELIGIBLE for the office I seek to be elected.3 (Boldface and capitalization in
the original)
Cordora stated that Tambunting was not eligible to run for local public office because Tambunting
lacked the required citizenship and residency requirements.
To disprove Tambunting’s claim of being a natural-born Filipino citizen, Cordora presented a

certification from the Bureau of Immigration which stated that, in two instances, Tambunting claimed
that he is an American: upon arrival in the Philippines on 16 December 2000 and upon departure
from the Philippines on 17 June 2001. According to Cordora, these travel dates confirmed that
Tambunting acquired American citizenship through naturalization in Honolulu, Hawaii on 2
December 2000. Cordora concluded:
That Councilor Gustavo S. Tambunting contrary to the provision of Sec 74 (OEC): [sic] Re:
CONTENTS OF CERTIFICATE OF CANDIDACY: which requires the declarant/affiant to state,
among others, under oath, that he is a Filipino (No. 6), No. 9- residence requirement which he
lost when [he was] naturalized as an American Citizen on December 2, 2000 at [sic] Honolulu,
Hawaii, knowingly and willfully affirmed and reiterated that he possesses the above basic
requirements under No. 12 – that he is indeed eligible for the office to which he seeks to be
elected, when in truth and in fact, the contrary is indubitably established by his own
statements before the Philippine Bureau of Immigration x x x.4 (Emphases in the original)
Tambunting, on the other hand, maintained that he did not make any misrepresentation in his
certificates of candidacy. To refute Cordora’s claim that Tambunting is not a natural-born Filipino,
Tambunting presented a copy of his birth certificate which showed that he was born of a Filipino
mother and an American father. Tambunting further denied that he was naturalized as an American
citizen. The certificate of citizenship conferred by the US government after Tambunting’s father
petitioned him through INS Form I-130 (Petition for Relative) merely confirmed Tambunting’s
citizenship which he acquired at birth. Tambunting’s possession of an American passport did not
mean that Tambunting is not a Filipino citizen. Tambunting also took an oath of allegiance on 18
November 2003 pursuant to Republic Act No. 9225 (R.A. No. 9225), or the Citizenship Retention
and Reacquisition Act of 2003.
Tambunting further stated that he has resided in the Philippines since birth. Tambunting has imbibed
the Filipino culture, has spoken the Filipino language, and has been educated in Filipino schools.
Tambunting maintained that proof of his loyalty and devotion to the Philippines was shown by his
service as councilor of Parañaque.
To refute Cordora’s claim that the number of years of residency stated in Tambunting’s certificates of
candidacy is false because Tambunting lost his residency because of his naturalization as an
American citizen, Tambunting contended that the residency requirement is not the same as
citizenship.
The Ruling of the COMELEC Law Department
The COMELEC Law Department recommended the dismissal of Cordora’s complaint against
Tambunting because Cordora failed to substantiate his charges against Tambunting. Cordora’s
reliance on the certification of the Bureau of Immigration that Tambunting traveled on an American
passport is not sufficient to prove that Tambunting is an American citizen.
The Ruling of the COMELEC En Banc
The COMELEC En Banc affirmed the findings and the resolution of the COMELEC Law Department.
The COMELEC En Banc was convinced that Cordora failed to support his accusation against
Tambunting by sufficient and convincing evidence.
The dispositive portion of the COMELEC En Banc’s Resolution reads as follows:
WHEREFORE, premises considered, the instant complaint is hereby DISMISSED for insufficiency of
evidence to establish probable cause.
SO ORDERED.5
Commissioner Rene V. Sarmiento (Commissioner Sarmiento) wrote a separate opinion which

concurred with the findings of the En Banc Resolution. Commissioner Sarmiento pointed out that
Tambunting could be considered a dual citizen. Moreover, Tambunting effectively renounced his
American citizenship when he filed his certificates of candidacy in 2001 and 2004 and ran for public
office.
Cordora filed a motion for reconsideration which raised the same grounds and the same arguments
in his complaint. In its Resolution promulgated on 20 February 2007, the COMELEC En
Banc dismissed Cordora’s motion for reconsideration for lack of merit.
The Issue
Cordora submits that the COMELEC acted with grave abuse of discretion amounting to lack or
excess of jurisdiction when it declared that there is no sufficient evidence to support probable cause
that may warrant the prosecution of Tambunting for an election offense.
Cordora’s petition is not an action to disqualify Tambunting because of Tambunting’s failure to meet
citizenship and residency requirements. Neither is the present petition an action to declare
Tambunting a non-Filipino and a non-resident. The present petition seeks to prosecute Tambunting
for knowingly making untruthful statements in his certificates of candidacy.
The petition has no merit. We affirm the ruling of the COMELEC En Banc.
Whether there is Probable Cause to Hold Tambunting for Trial for Having Committed an
Election Offense
There was no grave abuse of discretion in the COMELEC En Banc’s ruling that there is no sufficient
and convincing evidence to support a finding of probable cause to hold Tambunting for trial for
violation of Section 74 in relation to Section 262 of the Omnibus Election Code.
Probable cause constitutes those facts and circumstances which would lead a reasonably discreet
and prudent man to believe that an offense has been committed. Determining probable cause is an
intellectual activity premised on the prior physical presentation or submission of documentary or
testimonial proofs either confirming, negating or qualifying the allegations in the complaint.6
Section 74 of the Omnibus Election Code reads as follows:
Contents of certificate of candidacy. — The certificate of candidacy shall state that the person
filing it is announcing his candidacy for the office stated therein and that he is eligible for said office;
x x x the political party to which he belongs; civil status; his date of birth; residence; his post office
address for all election purposes; his profession or occupation; that he will support and defend the
Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the
laws, legal orders and decrees promulgated by the duly constituted authorities; that he is not a
permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is
assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in
the certificate of candidacy are true to the best of his knowledge.
xxx
The person filing a certificate of candidacy shall also affix his latest photograph, passport size; a
statement in duplicate containing his bio-data and program of government not exceeding one
hundred words, if he so desires.
Section 262 of the Omnibus Election Code, on the other hand, provides that violation of Section 74,
among other sections in the Code, shall constitute an election offense.
Tambunting’s Dual Citizenship
Tambunting does not deny that he is born of a Filipino mother and an American father. Neither does
he deny that he underwent the process involved in INS Form I-130 (Petition for Relative) because of
his father’s citizenship. Tambunting claims that because of his parents’ differing citizenships, he is
both Filipino and American by birth. Cordora, on the other hand, insists that Tambunting is a
naturalized American citizen.
We agree with Commissioner Sarmiento’s observation that Tambunting possesses dual citizenship.
Because of the circumstances of his birth, it was no longer necessary for Tambunting to undergo the
naturalization process to acquire American citizenship. The process involved in INS Form I-130 only
served to confirm the American citizenship which Tambunting acquired at birth. The certification from
the Bureau of Immigration which Cordora presented contained two trips where Tambunting claimed
that he is an American. However, the same certification showed nine other trips where Tambunting
claimed that he is Filipino. Clearly, Tambunting possessed dual citizenship prior to the filing of his
certificate of candidacy before the 2001 elections. The fact that Tambunting had dual citizenship did
not disqualify him from running for public office.7
Requirements for dual citizens from birth who desire to run for public office
We deem it necessary to reiterate our previous ruling in Mercado v. Manzano, wherein we ruled that
dual citizenship is not a ground for disqualification from running for any elective local position.
To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result
of the concurrent application of the different laws of two or more states, a person is simultaneously
considered a national by the said states. For instance, such a situation may arise when a person
whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state
which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his
part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV)
of our Constitution, it is possible for the following classes of citizens of the Philippines to possess
dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the
principle of jus soli;
(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their
fathers’ country such children are citizens of that country;
(3) Those who marry aliens if by the laws of the latter’s country the former are considered
citizens, unless by their act or omission they are deemed to have renounced Philippine
citizenship.
There may be other situations in which a citizen of the Philippines may, without performing any act,
be also a citizen of another state; but the above cases are clearly possible given the constitutional
provisions on citizenship.
Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by
some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance
is the result of an individual’s volition.
xxx
[I]n including §5 in Article IV on citizenship, the concern of the Constitutional Commission was not
with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries
of origin even after their naturalization. Hence, the phrase "dual citizenship" in R.A. No. 7160, §40(d)
and in R.A. No. 7854, §20 must be understood as referring to "dual allegiance."
Consequently, persons with mere dual citizenship do not fall under this
disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict
process with respect to the termination of their status, for candidates with dual citizenship, it
should suffice if, upon the filing of their certificates of candidacy, they elect Philippine
citizenship to terminate their status as persons with dual citizenship considering that their
condition is the unavoidable consequence of conflicting laws of different states. As Joaquin
G. Bernas, one of the most perceptive members of the Constitutional Commission, pointed out:
"[D]ual citizenship is just a reality imposed on us because we have no control of the laws on
citizenship of other countries. We recognize a child of a Filipino mother. But whether or not she is
considered a citizen of another country is something completely beyond our control."
By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other
country of which they are also citizens and thereby terminate their status as dual citizens. It may be
that, from the point of view of the foreign state and of its laws, such an individual has not effectively
renounced his foreign citizenship. That is of no moment as the following discussion on §40(d)
between Senators Enrile and Pimentel clearly shows:
SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17: "Any person
with dual citizenship" is disqualified to run for any elective local position. Under the present
Constitution, Mr. President, someone whose mother is a citizen of the Philippines but his father is a
foreigner is a natural-born citizen of the Republic. There is no requirement that such a natural-born
citizen, upon reaching the age of majority, must elect or give up Philippine citizenship.
On the assumption that this person would carry two passports, one belonging to the country of his or
her father and one belonging to the Republic of the Philippines, may such a situation disqualify the
person to run for a local government position?
SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment when he would
want to run for public office, he has to repudiate one of his citizenships.
SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of origin or the
country of the father claims that person, nevertheless, as a citizen,? No one can renounce. There
are such countries in the world. 1avv phi 1
SENATOR PIMENTEL. Well, the very fact that he is running for public office would, in effect, be an
election for him of his desire to be considered a Filipino citizen.
SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require an election.
Under the Constitution, a person whose mother is a citizen of the Philippines is, at birth, a citizen
without any overt act to claim the citizenship.
SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the Gentleman’s
example, if he does not renounce his other citizenship, then he is opening himself to question. So, if
he is really interested to run, the first thing he should do is to say in the Certificate of Candidacy that:
"I am a Filipino citizen, and I have only one citizenship."
SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr. President. He will
always have one citizenship, and that is the citizenship invested upon him or her in the Constitution
of the Republic.
SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will prove that he
also acknowledges other citizenships, then he will probably fall under this
disqualification.8 (Emphasis supplied)
We have to consider the present case in consonance with our rulings in Mercado v.
Manzano,9 Valles v. COMELEC,10 and AASJS v. Datumanong.11 Mercado and Valles involve similar
operative facts as the present case. Manzano and Valles, like Tambunting, possessed dual
citizenship by the circumstances of their birth. Manzano was born to Filipino parents in the United
States which follows the doctrine of jus soli. Valles was born to an Australian mother and a Filipino
father in Australia. Our rulings in Manzano and Valles stated that dual citizenship is different from
dual allegiance both by cause and, for those desiring to run for public office, by effect. Dual
citizenship is involuntary and arises when, as a result of the concurrent application of the different
laws of two or more states, a person is simultaneously considered a national by the said states.
Thus, like any other natural-born Filipino, it is enough for a person with dual citizenship who seeks
public office to file his certificate of candidacy and swear to the oath of allegiance contained therein.
Dual allegiance, on the other hand, is brought about by the individual’s active participation in the
naturalization process. AASJS states that, under R.A. No. 9225, a Filipino who becomes a
naturalized citizen of another country is allowed to retain his Filipino citizenship by swearing to the
supreme authority of the Republic of the Philippines. The act of taking an oath of allegiance is an
implicit renunciation of a naturalized citizen’s foreign citizenship.
R.A. No. 9225, or the Citizenship Retention and Reacquisition Act of 2003, was enacted years after
the promulgation of Manzano and Valles. The oath found in Section 3 of R.A. No. 9225 reads as
follows:
I __________ , solemnly swear (or affirm) that I will support and defend the Constitution of the
Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted
authorities of the Philippines; and I hereby declare that I recognize and accept the supreme authority
of the Philippines and will maintain true faith and allegiance thereto; and that I impose this obligation
upon myself voluntarily without mental reservation or purpose of evasion.
In Sections 2 and 3 of R.A. No. 9225, the framers were not concerned with dual citizenship per se,
but with the status of naturalized citizens who maintain their allegiance to their countries of origin
even after their naturalization.12 Section 5(3) of R.A. No. 9225 states that naturalized citizens who
reacquire Filipino citizenship and desire to run for elective public office in the Philippines shall "meet
the qualifications for holding such public office as required by the Constitution and existing laws and,
at the time of filing the certificate of candidacy, make a personal and sworn renunciation of any and
all foreign citizenship before any public officer authorized to administer an oath" aside from the oath
of allegiance prescribed in Section 3 of R.A. No. 9225. The twin requirements of swearing to an Oath
of Allegiance and executing a Renunciation of Foreign Citizenship served as the bases for our
recent rulings in Jacot v. Dal and COMELEC,13 Velasco v. COMELEC,14 and Japzon v.
COMELEC,15 all of which involve natural-born Filipinos who later became naturalized citizens of
another country and thereafter ran for elective office in the Philippines. In the present case,
Tambunting, a natural-born Filipino, did not subsequently become a naturalized citizen of another
country. Hence, the twin requirements in R.A. No. 9225 do not apply to him.
Tambunting’s residency
Cordora concluded that Tambunting failed to meet the residency requirement because of
Tambunting’s naturalization as an American. Cordora’s reasoning fails because Tambunting is not a
naturalized American. Moreover, residency, for the purpose of election laws, includes the twin
elements of the fact of residing in a fixed place and the intention to return there permanently,16 and is
not dependent upon citizenship.
In view of the above, we hold that Cordora failed to establish that Tambunting indeed willfully made
false entries in his certificates of candidacy. On the contrary, Tambunting sufficiently proved his
innocence of the charge filed against him. Tambunting is eligible for the office which he sought to be
elected and fulfilled the citizenship and residency requirements prescribed by law.
WHEREFORE, we DISMISS the petition. We AFFIRM the Resolutions of the Commission on
Elections En Banc dated 18 August 2006 and 20 February 2007 in EO Case No. 05-17.
SO ORDERED.
102

SUPREME COURT
Manila
EN BANC
G.R. No. 198742 August 10, 2012
TEODORA SOBEJANA-CONDON, Petitioner,

vs.
COMMISSION ON ELECTIONS, LUIS M. BAUTISTA, ROBELITO V. PICAR and WILMA P.
PAGADUAN,Respondents.
SERENO,*
PERLAS-BERNABE, JJ *
DECISION
REYES, J.:
Failure to renounce foreign citizenship in accordance with the exact tenor of Section 5(2) of Republic
Act (R.A.) No. 9225 renders a dual citizen ineligible to run for and thus hold any elective public
office.
The Case
At bar is a special civil action for certiorari1 under Rule 64 of the Rules of Court seeking to nullify
Resolution2 dated September 6, 2011 of the Commission on Elections (COMELEC) en banc in EAC
(AE) No. A-44-2010. The assailed resolution (a) reversed the Order3 dated November 30, 2010 of
COMELEC Second Division dismissing petitioner’s appeal; and (b) affirmed the consolidated
Decision4 dated October 22, 2010 of the Regional Trial Court (RTC), Bauang, La Union, Branch 33,
declaring petitioner Teodora Sobejana-Condon (petitioner) disqualified and ineligible to her position
as Vice-Mayor of Caba, La Union.
The Undisputed Facts
The petitioner is a natural-born Filipino citizen having been born of Filipino parents on August 8,
1944. On December 13, 1984, she became a naturalized Australian citizen owing to her marriage to
a certain Kevin Thomas Condon.
On December 2, 2005, she filed an application to re-acquire Philippine citizenship before the
Philippine Embassy in Canberra, Australia pursuant to Section 3 of R.A. No. 9225 otherwise known
as the "Citizenship Retention and Re-Acquisition Act of 2003."5 The application was approved and
the petitioner took her oath of allegiance to the Republic of the Philippines on December 5, 2005.
On September 18, 2006, the petitioner filed an unsworn Declaration of Renunciation of Australian
Citizenship before the Department of Immigration and Indigenous Affairs, Canberra, Australia, which
in turn issued the Order dated September 27, 2006 certifying that she has ceased to be an
Australian citizen.6
The petitioner ran for Mayor in her hometown of Caba, La Union in the 2007 elections. She lost in
her bid. She again sought elective office during the May 10, 2010 elections this time for the position
of Vice-Mayor. She obtained the highest numbers of votes and was proclaimed as the winning
candidate. She took her oath of office on May 13, 2010.
Soon thereafter, private respondents Robelito V. Picar, Wilma P. Pagaduan7 and Luis M.
Bautista,8 (private respondents) all registered voters of Caba, La Union, filed separate petitions for
quo warranto questioning the petitioner’s eligibility before the RTC. The petitions similarly sought the
petitioner’s disqualification from holding her elective post on the ground that she is a dual citizen and
that she failed to execute a "personal and sworn renunciation of any and all foreign citizenship
before any public officer authorized to administer an oath" as imposed by Section 5(2) of R.A. No.
9225.
The petitioner denied being a dual citizen and averred that since September 27, 2006, she ceased to
be an Australian citizen. She claimed that the Declaration of Renunciation of Australian Citizenship
she executed in Australia sufficiently complied with Section 5(2), R.A. No. 9225 and that her act of
running for public office is a clear abandonment of her Australian citizenship.
Ruling of the RTC
In its consolidated Decision dated October 22, 2010, the trial court held that the petitioner’s failure to
comply with Section 5(2) of R.A. No. 9225 rendered her ineligible to run and hold public office. As
admitted by the petitioner herself during trial, the personal declaration of renunciation she filed in
Australia was not under oath. The law clearly mandates that the document containing the
renunciation of foreign citizenship must be sworn before any public officer authorized to administer
oath. Consequently, the RTC’s decision disposed as follows:
WHEREFORE, premises considered, the Court renders judgment in FAVOR of [private respondents]
and AGAINST (petitioner):
1) DECLARING [petitioner] TEODORA SOBEJANA-CONDON, disqualified and ineligible to hold the

office of Vice-Mayor of Caba, La Union;
2) NULLIFYING her proclamation as the winning candidate for Vice-Mayor of said municipality; and
3) DECLARING the position of Vice-Mayor in said municipality vacant.
SO ORDERED.9
Ruling of the COMELEC
The petitioner appealed to the COMELEC but the appeal was dismissed by the Second Division in
its Order10 dated November 30, 2010 for failure to pay the docket fees within the prescribed period.
On motion for reconsideration, the appeal was reinstated by the COMELEC en banc in its
Resolution11 dated September 6, 2011. In the same issuance, the substantive merits of the appeal
were given due course. The COMELEC en banc concurred with the findings and conclusions of the
RTC; it also granted the Motion for Execution Pending Appeal filed by the private respondents.
The decretal portion of the resolution reads:
WHEREFORE, premises considered the Commission RESOLVED as it hereby RESOLVES as

follows:
1. To DISMISS the instant appeal for lack of merit;
2. To AFFIRM the DECISION dated 22 October 2010 of the court a quo; and
3. To GRANT the Motion for Execution filed on November 12, 2010.
SO ORDERED.12 (Emphasis supplied)
Hence, the present petition ascribing grave abuse of discretion to the COMELEC en banc.
The Petitioner’s Arguments
The petitioner contends that since she ceased to be an Australian citizen on September 27, 2006,
she no longer held dual citizenship and was only a Filipino citizen when she filed her certificate of
candidacy as early as the 2007 elections. Hence, the "personal and sworn renunciation of foreign
citizenship" imposed by Section 5(2) of R.A. No. 9225 to dual citizens seeking elective office does
not apply to her.
She further argues that a sworn renunciation is a mere formal and not a mandatory requirement. In
support thereof, she cites portions of the Journal of the House of Representatives dated June 2 to 5,
2003 containing the sponsorship speech for House Bill (H.B.) No. 4720, the precursor of R.A. No.
9225.
She claims that the private respondents are estopped from questioning her eligibility since they
failed to do so when she filed certificates of candidacy for the 2007 and 2010 elections.
Lastly, she disputes the power of the COMELEC en banc to: (a) take cognizance of the substantive
merits of her appeal instead of remanding the same to the COMELEC Second Division for the
continuation of the appeal proceedings; and (b) allow the execution pending appeal of the RTC’s
judgment.
The Issues
Posed for resolution are the following issues: I) Whether the COMELEC en banc may resolve the
merits of an appeal after ruling on its reinstatement; II) Whether the COMELEC en banc may order
the execution of a judgment rendered by a trial court in an election case; III) Whether the private
respondents are barred from questioning the qualifications of the petitioner; and IV) For purposes of
determining the petitioner’s eligibility to run for public office, whether the "sworn renunciation of
foreign citizenship" in Section 5(2) of R.A. No. 9225 is a mere pro-forma requirement.

I. An appeal may be simultaneously
reinstated and definitively resolved
by the COMELEC en banc in a
resolution disposing of a motion for
reconsideration.
The power to decide motions for reconsideration in election cases is arrogated unto the COMELEC
en banc by Section 3, Article IX-C of the Constitution, viz:
Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its
rules of procedure in order to expedite disposition of election cases, including pre-proclamation
for reconsideration of decisions shall be decided by the Commission en banc.
A complementary provision is present in Section 5(c), Rule 3 of the COMELEC Rules of Procedure,
to wit:
Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the
Commission en banc except motions on interlocutory orders of the division which shall be resolved
by the division which issued the order.
Considering that the above cited provisos do not set any limits to the COMELEC en banc’s
prerogative in resolving a motion for reconsideration, there is nothing to prevent the body from
directly adjudicating the substantive merits of an appeal after ruling for its reinstatement instead of
remanding the same to the division that initially dismissed it.
We thus see no impropriety much more grave abuse of discretion on the part of the COMELEC en
banc when it proceeded to decide the substantive merits of the petitioner’s appeal after ruling for its
reinstatement.
Further, records show that, in her motion for reconsideration before the COMELEC en banc, the
petitioner not only proffered arguments on the issue on docket fees but also on the issue of her
eligibility. She even filed a supplemental motion for reconsideration attaching therewith supporting
documents13 to her contention that she is no longer an Australian citizen. The petitioner, after
obtaining an unfavorable decision, cannot be permitted to disavow the en banc’s exercise of
discretion on the substantial merits of her appeal when she herself invoked the same in the first
place.
The fact that the COMELEC en banc had remanded similar appeals to the Division that initially
dismissed them cannot serve as a precedent to the disposition of the petitioner’s appeal. A decision
or resolution of any adjudicating body can be disposed in several ways. To sustain petitioner’s
argument would be virtually putting a straightjacket on the COMELEC en banc’s adjudicatory
powers.
More significantly, the remand of the appeal to the COMELEC Second Division would be
unnecessarily circuitous and repugnant to the rule on preferential disposition of quo warranto cases
espoused in Rule 36, Section 15 of the COMELEC Rules of Procedure.14
II. The COMELEC en banc has the

power to order discretionary
execution of judgment.
We cannot subscribe to petitioner’s submission that the COMELEC en banc has no power to order
the issuance of a writ of execution and that such function belongs only to the court of origin.
There is no reason to dispute the COMELEC’s authority to order discretionary execution of judgment
in view of the fact that the suppletory application of the Rules of Court is expressly sanctioned by
Section 1, Rule 41 of the COMELEC Rules of Procedure.15
Under Section 2, Rule 39 of the Rules of Court, execution pending appeal may be issued by an
appellate court after the trial court has lost jurisdiction. In Batul v. Bayron,16 we stressed the import of
the provision vis-à-vis election cases when we held that judgments in election cases which may be
executed pending appeal includes those decided by trial courts and those rendered by the
COMELEC whether in the exercise of its original or appellate jurisdiction.
III. Private respondents are not

estopped from questioning
petitioner’s eligibility to hold public
office.
The fact that the petitioner’s qualifications were not questioned when she filed certificates of
candidacy for 2007 and 2010 elections cannot operate as an estoppel to the petition for quo
warranto before the RTC.
Under the Batas Pambansa Bilang 881 (Omnibus Election Code), there are two instances where a
petition questioning the qualifications of a registered candidate to run for the office for which his
certificate of candidacy was filed can be raised, to wit:
(1) Before election, pursuant to Section 78 thereof which provides that:
Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. – A verified petition
seeking to deny due course or to cancel a certificate of candidacy may be filed by any person
exclusively on the ground that any material representation contained therein as required under
Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from
the time of the filing of the certificate of candidacy and shall be decided, after due notice and
hearing, not later than fifteen days before the election; and
(2) After election, pursuant to Section 253 thereof, viz:
Sec. 253. Petition for quo warranto. – Any voter contesting the election of any Member of the
Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty
to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission
within ten days after the proclamation of the results of the election. (Emphasis ours)
Hence, if a person qualified to file a petition to disqualify a certain candidate fails to file the petition
within the twenty-five (25)-day period prescribed by Section 78 of the Omnibus Election Code for
whatever reasons, the elections laws do not leave him completely helpless as he has another
chance to raise the disqualification of the candidate by filing a petition for quo warranto within ten
(10) days from the proclamation of the results of the election, as provided under Section 253 of the
Omnibus Election Code.17
The above remedies were both available to the private respondents and their failure to utilize
Section 78 of the Omnibus Election Code cannot serve to bar them should they opt to file, as they
did so file, a quo warranto petition under Section 253.
IV. Petitioner is disqualified from

running for elective office for
failure to renounce her Australian
citizenship in accordance with
Section 5(2) of R.A. No. 9225.
R.A. No. 9225 allows the retention and re-acquisition of Filipino citizenship for natural-born citizens
who have lost their Philippine citizenship18 by taking an oath of allegiance to the Republic, thus:
Section 3. Retention of Philippine Citizenship. – Any provision of law to the contrary notwithstanding,
naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine
"I, _____________________, solemnly swear (or affirm) that I will support and defend the
Constitution of the Republic of the Philippines and obey the laws and legal orders
promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I
recognize and accept the supreme authority of the Philippines and will maintain true faith and
allegiance thereto; and that I imposed this obligation upon myself voluntarily without mental
reservation or purpose of evasion."
The oath is an abbreviated repatriation process that restores one’s Filipino citizenship and all civil
and political rights and obligations concomitant therewith, subject to certain conditions imposed in
Section 5, viz:
Sec. 5. Civil and Political Rights and Liabilities. – Those who retain or re-acquire Philippine
(1) Those intending to exercise their right of suffrage must meet the requirements under Section 1,
Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee
Voting Act of 2003" and other existing laws;
(2) Those seeking elective public office in the Philippines shall meet the qualification for holding such
public office as required by the Constitution and existing laws and, at the time of the filing of the
before any public officer authorized to administer an oath;
(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the
Republic of the Philippines and its duly constituted authorities prior to their assumption of office:
Provided, That they renounce their oath of allegiance to the country where they took that oath;
(4) Those intending to practice their profession in the Philippines shall apply with the proper authority
for a license or permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be
exercised by, or extended to, those who:
(a) are candidates for or are occupying any public office in the country of which they are naturalized
citizens; and/or
(b) are in active service as commissioned or non-commissioned officers in the armed forces of the
country which they are naturalized citizens. (Emphasis ours)
Under the provisions of the aforementioned law, the petitioner has validly re-acquired her Filipino
citizenship when she took an Oath of Allegiance to the Republic of the Philippines on December 5,
2005. At that point, she held dual citizenship, i.e., Australian and Philippine.
On September 18, 2006, or a year before she initially sought elective public office, she filed a
renunciation of Australian citizenship in Canberra, Australia. Admittedly, however, the same was not
under oath contrary to the exact mandate of Section 5(2) that the renunciation of foreign citizenship
must be sworn before an officer authorized to administer oath.
To obviate the fatal consequence of her inutile renunciation, the petitioner pleads the Court to
interpret the "sworn renunciation of any and all foreign citizenship" in Section 5(2) to be a mere pro
forma requirement in conformity with the intent of the Legislature. She anchors her submission on
the statement made by Representative Javier during the floor deliberations on H.B. No. 4720, the
precursor of R.A. No. 9225.
At the outset, it bears stressing that the Court’s duty to interpret the law according to its true intent is
exercised only when the law is ambiguous or of doubtful meaning. The first and fundamental duty of
the Court is to apply the law. As such, when the law is clear and free from any doubt, there is no
occasion for construction or interpretation; there is only room for application.19 Section 5(2) of R.A.
No. 9225 is one such instance.
Ambiguity is a condition of admitting two or more meanings, of being understood in more than one
way, or of referring to two or more things at the same time. For a statute to be considered
ambiguous, it must admit of two or more possible meanings.20
The language of Section 5(2) is free from any ambiguity. In Lopez v. COMELEC,21 we declared its
categorical and single meaning: a Filipino American or any dual citizen cannot run for any elective
public position in the Philippines unless he or she personally swears to a renunciation of all foreign
citizenship at the time of filing the certificate of candidacy. We also expounded on the form of the
renunciation and held that to be valid, the renunciation must be contained in an affidavit duly
executed before an officer of the law who is authorized to administer an oath stating in clear and
unequivocal terms that affiant is renouncing all foreign citizenship.
The same meaning was emphasized in Jacot v. Dal,22 when we held that Filipinos re-acquiring or
retaining their Philippine citizenship under R.A. No. 9225 must explicitly renounce their foreign
citizenship if they wish to run for elective posts in the Philippines, thus:
The law categorically requires persons seeking elective public office, who either retained their
Philippine citizenship or those who reacquired it, to make a personal and sworn renunciation of any
and all foreign citizenship before a public officer authorized to administer an oath simultaneous with
or before the filing of the certificate of candidacy.
Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have been
naturalized as citizens of a foreign country, but who reacquired or retained their Philippine
citizenship (1) to take the oath of allegiance under Section 3 of Republic Act No. 9225, and (2) for
those seeking elective public offices in the Philippines, to additionally execute a personal and sworn
renunciation of any and all foreign citizenship before an authorized public officer prior or
simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine
elections.
Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and sworn renunciation
of any and all foreign citizenship) requires of the Filipinos availing themselves of the benefits under
the said Act to accomplish an undertaking other than that which they have presumably complied with
under Section 3 thereof (oath of allegiance to the Republic of the Philippines). This is made clear in
the discussion of the Bicameral Conference Committee on Disagreeing Provisions of House Bill No.
4720 and Senate Bill No. 2130 held on 18 August 2003 (precursors of Republic Act No. 9225),
where the Hon. Chairman Franklin Drilon and Hon. Representative Arthur Defensor explained to
Hon. Representative Exequiel Javier that the oath of allegiance is different from the renunciation of
foreign citizenship;
xxxx
The intent of the legislators was not only for Filipinos reacquiring or retaining their Philippine
citizenship under Republic Act No. 9225 to take their oath of allegiance to the Republic of the
Philippines, but also to explicitly renounce their foreign citizenship if they wish to run for elective
posts in the Philippines. To qualify as a candidate in Philippine elections, Filipinos must only have
one citizenship, namely, Philippine citizenship.23 (Citation omitted and italics and underlining ours)
Hence, in De Guzman v. COMELEC,24 we declared petitioner therein to be disqualified from running

for the position of vice-mayor for his failure to make a personal and sworn renunciation of his
American citizenship.
We find no reason to depart from the mandatory nature infused by the above rulings to the phrase
"sworn renunciation". The language of the provision is plain and unambiguous. It expresses a single,
definite, and sensible meaning and must thus be read literally.25 The foreign citizenship must be
formally rejected through an affidavit duly sworn before an officer authorized to administer oath.
It is conclusively presumed to be the meaning that the Legislature has intended to convey.26 Even a
resort to the Journal of the House of Representatives invoked by the petitioner leads to the same
inference, viz:
INTERPELLATION OF REP. JAVIER
Rep. Javier initially inquired whether under the Bill, dual citizenship is only limited to natural-born
Filipinos and not to naturalized Filipinos.
Rep. Libanan replied in the affirmative.
Rep. Javier subsequently adverted to Section 5 of the Bill which provides that natural-born Filipinos
who have dual citizenship shall continue to enjoy full civil and political rights. This being the case, he
sought clarification as to whether they can indeed run for public office provided that they renounce
their foreign citizenship.
Rep. Libanan replied in the affirmative, citing that these citizens will only have to make a personal
and sworn renunciation of foreign citizenship before any authorized public officer.
Rep. Javier sought further clarification on this matter, citing that while the Bill provides them with full
civil and political rights as Filipino citizens, the measure also discriminates against them since they
are required to make a sworn renunciation of their other foreign citizenship if and when they run for
public office. He thereafter proposed to delete this particular provision.
In his rejoinder, Rep. Libanan explained that this serves to erase all doubts regarding any
issues that might be raised pertaining to the citizenship of any candidate. He subsequently
cited the case of Afroyim vs. Rusk, wherein the United States considered a naturalized
American still as an American citizen even when he cast his vote in Israel during one of its
elections.
Rep. Javier however pointed out that the matter of voting is different because in voting, one is not
required to renounce his foreign citizenship. He pointed out that under the Bill, Filipinos who run for
public office must renounce their foreign citizenship. He pointed out further that this is a contradiction
in the Bill.
Thereafter, Rep. Javier inquired whether Filipino citizens who had acquired foreign citizenship and
are now entitled to reacquire their Filipino citizenship will be considered as natural-born citizens. As
such, he likewise inquired whether they will also be considered qualified to run for the highest
elective positions in the country.
Rep. Libanan replied in the affirmative, citing that the only requirement is that they make a sworn
renunciation of their foreign citizenship and that they comply with the residency and registration
requirements as provided for in the Constitution.
Whereupon, Rep. Javier noted that under the Constitution, natural-born citizens are those who are
citizens at the time of birth without having to perform an act to complete or perfect his/her
citizenship.
Rep. Libanan agreed therewith, citing that this is the reason why the Bill seeks the repeal of CA No.
63. The repeal, he said, would help Filipino citizens who acquired foreign citizenship to retain their
citizenship. With regard then to Section 5 of the Bill, he explained that the Committee had decided to
include this provision because Section 18, Article XI of the Constitution provides for the
accountability of public officers.
In his rejoinder, Rep. Javier maintained that in this case, the sworn renunciation of a foreign
citizenship will only become a pro forma requirement.
On further queries of Rep. Javier, Rep. Libanan affirmed that natural-born Filipino citizens who
became foreign citizens and who have reacquired their Filipino citizenship under the Bill will be
considered as natural-born citizens, and therefore qualified to run for the presidency, the vice-
presidency or for a seat in Congress. He also agreed with the observation of Rep. Javier that a
natural-born citizen is one who is a citizen of the country at the time of birth. He also explained that
the Bill will, in effect, return to a Filipino citizen who has acquired foreign citizenship, the status of
being a natural-born citizen effective at the time he lost his Filipino citizenship.
As a rejoinder, Rep. Javier opined that doing so would be discriminating against naturalized Filipino
citizens and Filipino citizens by election who are all disqualified to run for certain public offices. He
then suggested that the Bill be amended by not considering as natural-born citizens those Filipinos
who had renounced their Filipino citizenship and acquired foreign citizenship. He said that they
should be considered as repatriated citizens.
In reply, Rep. Libanan assured Rep. Javier that the Committee will take note of the latter’s
comments on the matter. He however stressed that after a lengthy deliberation on the subject, the
Committees on Justice, and Foreign Affairs had decided to revert back to the status of being natural-
born citizens those natural-born Filipino citizens who had acquired foreign citizenship but now
wished to reacquire their Filipino citizenship.
Rep. Javier then explained that a Filipina who loses her Filipino citizenship by virtue of her marriage
to a foreigner can regain her repatriated Filipino citizenship, upon the death of her husband, by
simply taking her oath before the Department of Justice (DOJ).
Rep. Javier said that he does not oppose the Bill but only wants to be fair to other Filipino citizens
who are not considered natural-born. He reiterated that natural-born Filipino citizens who had
renounced their citizenship by pledging allegiance to another sovereignty should not be allowed to
revert back to their status of being natural-born citizens once they decide to regain their Filipino
citizenship. He underscored that this will in a way allow such Filipinos to enjoy dual citizenship.
On whether the Sponsors will agree to an amendment incorporating the position of Rep. Javier, Rep.
Libanan stated that this will defeat the purpose of the Bill.
Rep. Javier disagreed therewith, adding that natural-born Filipino citizens who acquired foreign
citizenships and later decided to regain their Filipino citizenship, will be considered as repatriated
citizens.
Rep. Libanan cited the case of Bengzon vs. HRET wherein the Supreme Court had ruled that only
naturalized Filipino citizens are not considered as natural-born citizens.
In reaction, Rep. Javier clarified that only citizens by election or those whose mothers are Filipino
citizens under the 1935 Constitution and who elected Filipino citizenship upon reaching the age of
maturity, are not deemed as natural-born citizens.
In response, Rep. Libanan maintained that in the Bengzon case, repatriation results in the recovery
of one’s original nationality and only naturalized citizens are not considered as natural-born citizens.
On whether the Sponsors would agree to not giving back the status of being natural-born citizens to
natural-born Filipino citizens who acquired foreign citizenship, Rep. Libanan remarked that the Body
in plenary session will decide on the matter.27
The petitioner obviously espouses an isolated reading of Representative Javier’s statement; she
conveniently disregards the preceding and succeeding discussions in the records.
The above-quoted excerpts of the legislative record show that Representative Javier’s statement
ought to be understood within the context of the issue then being discussed, that is – whether former
natural-born citizens who re-acquire their Filipino citizenship under the proposed law will revert to
their original status as natural-born citizens and thus be qualified to run for government positions
reserved only to natural-born Filipinos, i.e. President, Vice-President and Members of the Congress.
It was Representative Javier’s position that they should be considered as repatriated Filipinos and
not as natural-born citizens since they will have to execute a personal and sworn renunciation of
foreign citizenship. Natural-born citizens are those who need not perform an act to perfect their
citizenship. Representative Libanan, however, maintained that they will revert to their original status
as natural-born citizens. To reconcile the renunciation imposed by Section 5(2) with the principle that
natural-born citizens are those who need not perform any act to perfect their citizenship,
Representative Javier suggested that the sworn renunciation of foreign citizenship be considered as
a mere pro forma requirement.
Petitioner’s argument, therefore, loses its point. The "sworn renunciation of foreign citizenship" must
be deemed a formal requirement only with respect to the re-acquisition of one’s status as a natural-
born Filipino so as to override the effect of the principle that natural-born citizens need not perform
any act to perfect their citizenship. Never was it mentioned or even alluded to that, as the petitioner
wants this Court to believe, those who re-acquire their Filipino citizenship and thereafter run for
public office has the option of executing an unsworn affidavit of renunciation.
It is also palpable in the above records that Section 5 was intended to complement Section 18,
Article XI of the Constitution on public officers’ primary accountability of allegiance and loyalty, which
provides:
Sec. 18. – Public officers and employees owe the State and this Constitution allegiance at all times
and any public officer or employee who seeks to change his citizenship or acquire the status of an
immigrant of another country during his tenure shall be dealt with by law.
An oath is a solemn declaration, accompanied by a swearing to God or a revered person or thing,

that one’s statement is true or that one will be bound to a promise. The person making the oath
implicitly invites punishment if the statement is untrue or the promise is broken. The legal effect of an
oath is to subject the person to penalties for perjury if the testimony is false.28
Indeed, the solemn promise, and the risk of punishment attached to an oath ensures truthfulness to
the prospective public officer’s abandonment of his adopted state and promise of absolute allegiance
and loyalty to the Republic of the Philippines.
To hold the oath to be a mere pro forma requirement is to say that it is only for ceremonial purposes;
it would also accommodate a mere qualified or temporary allegiance from government officers when
the Constitution and the legislature clearly demand otherwise.
Petitioner contends that the Australian Citizenship Act of 1948, under which she is already deemed
to have lost her citizenship, is entitled to judicial notice. We disagree.
Foreign laws are not a matter of judicial notice. Like any other fact, they must be alleged and
proven.29 To prove a foreign law, the party invoking it must present a copy thereof and comply with
Sections 24 and 25 of Rule 132 of the Revised Rules of Court which reads:
Sec. 24. Proof of official record. – The record of public documents referred to in paragraph (a) of
Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or
by a copy attested by the officer having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the
custody. If the office in which the record is kept is in a foreign country, the certificate may be made
by a secretary of the embassy or legation, consul general, consul, vice- consul, or consular agent or
by any officer in the foreign service of the Philippines stationed in the foreign country in which the
record is kept, and authenticated by the seal of his office. (Emphasis ours)
Sec. 25. What attestation of copy must state. – Whenever a copy of a document or record is attested
for the purpose of the evidence, the attestation must state, in substance, that the copy is a correct
copy of the original, or a specific part thereof, as the case may be. The attestation must be under the
official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under
the seal of such court.
The Court has admitted certain exceptions to the above rules and held that the existence of a foreign
law may also be established through: (1) a testimony under oath of an expert witness such as an
attorney-at-law in the country where the foreign law operates wherein he quotes verbatim a section
of the law and states that the same was in force at the time material to the facts at hand; and (2)
likewise, in several naturalization cases, it was held by the Court that evidence of the law of a foreign
country on reciprocity regarding the acquisition of citizenship, although not meeting the prescribed
rule of practice, may be allowed and used as basis for favorable action, if, in the light of all the
circumstances, the Court is "satisfied of the authenticity of the written proof offered." Thus, in a
number of decisions, mere authentication of the Chinese Naturalization Law by the Chinese
Consulate General of Manila was held to be a competent proof of that law.30
The petitioner failed to prove the Australian Citizenship Act of 1948 through any of the above
methods. As uniformly observed by the RTC and COMELEC, the petitioner failed to show proof of
the existence of the law during trial. Also, the letter issued by the Australian government showing
that petitioner already renounced her Australian citizenship was unauthenticated hence, the courts a
quo acted judiciously in disregarding the same.
We are bound to arrive at a similar conclusion even if we were to admit as competent evidence the
said letter in view of the photocopy of a Certificate of Authentication issued by Consular Section of
the Philippine Embassy in Canberra, Australia attached to the petitioner’s motion for reconsideration.
We have stressed in Advocates and Adherents of Social Justice for School Teachers and Allied
Workers (AASJS) Member v. Datumanong31 that the framers of R.A. No. 9225 did not intend the law
to concern itself with the actual status of the other citizenship.
This Court as the government branch tasked to apply the enactments of the legislature must do so
conformably with the wisdom of the latter sans the interference of any foreign law. If we were to read
the Australian Citizen Act of 1948 into the application and operation of R.A. No. 9225, we would be
applying not what our legislative department has deemed wise to require. To do so would be a
brazen encroachment upon the sovereign will and power of the people of this Republic.32
The petitioner’s act of running for public office does not suffice to serve as an effective renunciation
of her Australian citizenship. While this Court has previously declared that the filing by a person with
dual citizenship of a certificate of candidacy is already considered a renunciation of foreign
citizenship,33 such ruling was already adjudged superseded by the enactment of R.A. No. 9225 on
August 29, 2003 which provides for the additional condition of a personal and sworn renunciation of
foreign citizenship.34
The fact that petitioner won the elections can not cure the defect of her candidacy. Garnering the
most number of votes does not validate the election of a disqualified candidate because the
application of the constitutional and statutory provisions on disqualification is not a matter of
popularity.35
In fine, R.A. No. 9225 categorically demands natural-born Filipinos who re-acquire their citizenship
and seek elective office, to execute a personal and sworn renunciation of any and all foreign
citizenships before an authorized public officer prior to or simultaneous to the filing of their
certificates of candidacy, to qualify as candidates in Philippine elections.36 The rule applies to all
those who have re-acquired their Filipino citizenship, like petitioner, without regard as to whether
they are still dual citizens or not. It is a pre-requisite imposed for the exercise of the right to run for
public office.
Stated differently, it is an additional qualification for elective office specific only to Filipino citizens
who re-acquire their citizenship under Section 3 of R.A. No. 9225. It is the operative act that restores
their right to run for public office. The petitioner's failure to comply therewith in accordance with the
exact tenor of the law, rendered ineffectual the Declaration of Renunciation of Australian Citizenship
she executed on September 18, 2006. As such, she is yet to regain her political right to seek elective
office. Unless she executes a sworn renunciation of her Australian citizenship, she is ineligible to run
for and hold any elective office in the Philippines.
WHEREFORE, in view of all the foregoing, the petition is hereby DISMISSED. The Resolution dated
September 6, 2011 of the Commission on Elections en bane in EAC (AE) No. A-44-2010
is AFFIRMED in toto.
SO ORDERED.
103

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 183110 October 7, 2013
REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
AZUCENA SAAVEDRA BATUGAS, Respondent.
DECISION
DEL CASTILLO, J.:
"It is universally accepted that a State, in extending the privilege of citizenship to an alien wife of one
of its citizens could have had no other objective than to maintain a unity of allegiance among the
members of the family."1
This Petition for Review on Certiorari2 assails the May 23, 2008 Decision3 of the Court of Appeals
(CA) G.R. CV No. 00523, which affirmed the January 31, 2005 Decision4 of the Regional Trial Court
(RTC), Branch 29, Zamboanga del Sur that granted the Petition for Naturalization5 of respondent
Azucena Saavedra Batuigas (Azucena).
Factual Antecedents
On December 2, 2002, Azucena filed a Petition for Naturalization before the RTC of Zamboanga del
Sur. The case was docketed as Naturalization Case No. 03-001 and raffled to Branch 29 of said
court.
Azucena alleged in her Petition that she believes in the principles underlying the Philippine
Constitution; that she has conducted herself in a proper and irreproachable manner during the
period of her stay in the Philippines, as well as in her relations with the constituted Government and
with the community in which she is living; that she has mingled socially with the Filipinos and has
evinced a sincere desire to learn and embrace their customs, traditions, and ideals; that she has all
the qualifications required under Section 2 and none of the disqualifications enumerated in Section 4
of Commonwealth Act No. 473 (CA473);6 that she is not opposed to organized government nor is
affiliated with any association or group of persons that uphold and teach doctrines opposing all
organized governments; that she is not defending or teaching the necessity or propriety of violence,
personal assault, or assassination for the success and predominance of men’s ideas; that she is
neither a polygamist nor believes in polygamy; that the nation of which she is a subject is not at war
with the Philippines; that she intends in good faith to become a citizen of the Philippines and to
renounce absolutely and forever all allegiance and fidelity to any foreign prince, potentate, state or
sovereignty, and particularly to China; and that she will reside continuously in the Philippines from
the time of the filing of her Petition up to the time of her naturalization.
After all the jurisdictional requirements mandated by Section 97 of CA 473had been complied with,
the Office of the Solicitor General (OSG) filed its Motion to Dismiss8 on the ground that Azucena
failed to allege that she is engaged in a lawful occupation or in some known lucrative trade. Finding
the grounds relied upon by the OSG to be evidentiary in nature, the RTC denied said
Motion.9 Thereafter, the hearing for the reception of Azucena’s evidence was then set on May 18,
2004.10
Neither the OSG nor the Office of the Provincial Prosecutor appeared on the day of the hearing.
Hence, Azucena’s counsel moved that the evidence be presented ex-parte, which the RTC granted.
Accordingly, the RTC designated its Clerk of Court as Commissioner to receive Azucena’s
evidence.11 During the November 5, 2004 ex-parte hearing, no representative from the OSG
appeared despite due notice.12
Born in Malangas, Zamboanga del Sur on September 28, 1941 to Chinese parents,13 Azucena has
never departed the Philippines since birth. She has resided in Malangas, Zamboanga del Sur from
1941-1942; in Margosatubig, Zamboanga del Sur from 1942-1968; in Bogo City for nine months; in
Ipil, Zamboanga del Sur from 1969-1972; in Talisayan, Misamis Oriental from 1972-1976; and, in
Margosatubig, Zamboanga del Sur, thereafter, up to the filing of her Petition.
Azucena can speak English, Tagalog, Visayan, and Chavacano. Her primary, secondary, and
tertiary education were taken in Philippine schools,i.e., Margosatubig Central Elementary School in
1955,14 Margosatubig Academy in1959,15 and the Ateneo de Zamboanga in 1963,16 graduating with a
degree in Bachelor of Science in Education. She then practiced her teaching profession at the Pax
High School for five years, in the Marian Academy in Ipil for two years, and in Talisayan High School
in Misamis Oriental for another two years.17
In 1968, at the age of 26, Azucena married Santiago Batuigas18 (Santiago),a natural-born Filipino
citizen.19 They have five children, namely Cynthia, Brenda, Aileen, Dennis Emmanuel, and Edsel
James.20 All of them studied in Philippine public and private schools and are all professionals, three
of whom are now working abroad.21
After her stint in Talisayan High School, Azucena and her husband, as conjugal partners, engaged in
the retail business of and later on in milling/distributing rice, corn, and copra. As proof of their
income, Azucena submitted their joint annual tax returns and balance sheets from 2000-200222 and
from 2004-2005.23 The business name and the business permits issued to the spouses’ store,
‘Azucena’s General Merchandising,’ are registered in Santiago’s name,24 and he is also the National
Food Authority licensee for their rice and corn business.25 During their marital union, the Batuigas
spouses bought parcels of land in Barrio Lombog, Margosatubig.26
To prove that she has no criminal record, Azucena submitted clearances issued by the Philippine
National Police of Zamboanga del Sur Provincial Office and by the National Bureau of
Investigation.27 She also presented her Health Examination Record28 declaring her as physically and
mentally fit.
To further support Azucena’s Petition, Santiago and witnesses Eufemio Miniao and Irineo Alfaro
testified.
Ruling of the Regional Trial Court
On January 31, 2005, the RTC found that Azucena has amply supported the allegations in her
Petition. Among these are her lack of a derogatory record, her support for an organized government,
that she is in perfect health, that she has mingled with Filipinos since birth and can speak their
language, that she has never had any transgressions and has been a law abiding citizen, that she
has complied with her obligations to the government involving her business operations, and that the
business and real properties she and Santiago own provide sufficient income for her and her family.
Thus, the RTC ruled:
x x x In sum, the petitioner has all the qualifications and none of the disqualifications to be admitted
as citizen of the Philippines in accordance with the provisions of the Naturalization Law.
WHEREFORE, premises considered, the petition is hereby granted.
SO ORDERED.29
In its Omnibus Motion,30 the OSG argued that the ex-parte presentation of evidence before the
Branch Clerk of Court violates Section 10 of CA 473,31 as the law mandates public hearing in
naturalization cases.
Rejecting this argument in its March 21, 2005 Order,32 the RTC held that the public has been fully
apprised of the naturalization proceedings and was free to intervene. The OSG and its delegate, the
Provincial Prosecutor, are the only officers authorized by law to appear on behalf of the State, which
represents the public. Thus, when the OSG was furnished with a copy of the notice of hearing for the
reception of evidence ex-parte, there was already a sufficient compliance with the requirement of a
public hearing.
The OSG then appealed the RTC judgment to the CA,33 contending that Azucena failed to comply
with the income requirement under CA 473. The OSG maintained that Azucena is not allowed under
the Retail Trade Law (Republic Act No. 1180) to engage directly or indirectly in the retail trade.
Hence, she cannot possibly meet the income requirement. And even if she is allowed, her business
is not a "lucrative trade" within the contemplation of the law or that which has an appreciable margin
of income over expenses in order to provide for adequate support in the event of unemployment,
sickness, or disability to work. The OSG likewise disputed Azucena’s claim that she owns real
property because aliens are precluded from owning lands in the country.
The OSG further asserted that the ex-parte proceeding before the commissioner is not a "public
hearing" as ex-parte hearings are usually done in chambers, without the public in attendance. It
claimed that the State was denied its day in court because the RTC, during the May 18, 2004 initial
hearing, immediately allowed the proceeding to be conducted ex-parte without even giving the State
ample opportunity to be present.
Azucena countered that although she is a teacher by profession, she had to quit to help in the retail
business of her husband, and they were able to send all their children to school.34 It is highly unlikely
that she will become a public charge as she and her spouse have enough savings and could even
be given sufficient support by their children. She contended that the definition of "lucrative
trade/income" should not be strictly applied to her. Being the wife and following Filipino tradition, she
should not be treated like male applicants for naturalization who are required to have their own
"lucrative trade."
Azucena denied that the hearing for her Petition was not made public, as the hearing before the
Clerk of Court was conducted in the court’s session hall. Besides, the OSG cannot claim that it was
denied its day in court as notices have always been sent to it. Hence, its failure to attend is not the
fault of the RTC.
Ruling of the Court of Appeals
In dismissing the OSG’s appeal,35 the CA found that Azucena’s financial condition permits her and
her family to live with reasonable comfort in accordance with the prevailing standard of living and
consistent with the demands of human dignity. It said:
Considering the present high cost of living, which cost of living tends to increase rather than
decrease, and the low purchasing power of the Philippine currency, petitioner-appellee, together with
her Filipino husband, nonetheless, was able to send all her children to college, pursue a lucrative
business and maintain a decent existence. The Supreme Court, in recent decisions, adopted a
higher standard in determining whether a petitioner for Philippine citizenship has a lucrative trade or
profession that would qualify him/her for admission to Philippine citizenship and to which petitioner
has successfully convinced this Court of her ability to provide for herself and avoid becoming a
public charge or a financial burden to her community. x x x36
As for the other issue the OSG raised, the CA held that the RTC had complied with the mandate of
the law requiring notice to the OSG and the Provincial Prosecutor of its scheduled hearing for the
Petition.
Thus, the instant Petition wherein the OSG recapitulates the same arguments it raised before the
CA, i.e., the alleged failure of Azucena to meet the income and public hearing requirements of CA
473.
Our Ruling
The Petition lacks merit.
Under existing laws, an alien may acquire Philippine citizenship through either judicial naturalization
under CA 473 or administrative naturalization under Republic Act No. 9139 (the "Administrative
Naturalization Law of 2000"). A third option, called derivative naturalization, which is available to
alien women married to Filipino husbands is found under Section 15 of CA 473, which provides that:
"any woman who is now or may hereafter be married to a citizen of the Philippines and who might
herself be lawfully naturalized shall be deemed a citizen of the Philippines."
Under this provision, foreign women who are married to Philippine citizens may be deemed ipso
facto Philippine citizens and it is neither necessary for them to prove that they possess other
qualifications for naturalization at the time of their marriage nor do they have to submit themselves to
judicial naturalization. Copying from similar laws in the United States which has since been
amended, the Philippine legislature retained Section 15 of CA 473, which then reflects its intent to
confer Filipino citizenship to the alien wife thru derivative naturalization.37
Thus, the Court categorically declared in Moy Ya Lim Yao v. Commissioner of Immigration:38
Accordingly, We now hold, all previous decisions of this Court indicating otherwise notwithstanding,
that under Section 15 of Commonwealth Act 473, an alien woman marrying a Filipino, native born or
naturalized, becomes ipso facto a Filipina provided she is not disqualified to be a citizen of the
Philippines under Section 4 of the same law. Likewise, an alien woman married to an alien who is
subsequently naturalized here follows the Philippine citizenship of her husband the moment he takes
his oath as Filipino citizen, provided that she does not suffer from any of the disqualifications under
said Section 4.39
As stated in Moy Ya Lim Yao, the procedure for an alien wife to formalize the conferment of Filipino
citizenship is as follows:
Regarding the steps that should be taken by an alien woman married to a Filipino citizen in order to
acquire Philippine citizenship, the procedure followed in the Bureau of Immigration is as follows: The
alien woman must file a petition for the cancellation of her alien certificate of registration alleging,
among other things, that she is married to a Filipino citizen and that she is not disqualified from
acquiring her husband’s citizenship pursuant to Section 4 of Commonwealth Act No. 473, as
amended. Upon the filing of said petition, which should be accompanied or supported by the joint
affidavit of the petitioner and her Filipino husband to the effect that the petitioner does not belong to
any of the groups disqualified by the cited section from becoming naturalized Filipino citizen x x x,
the Bureau of Immigration conducts an investigation and thereafter promulgates its order or decision
granting or denying the petition.40
Records however show that in February 1980, Azucena applied before the then Commission on
Immigration and Deportation (CID) for the cancellation of her Alien Certificate of Registration (ACR)
No. 03070541 by reason of her marriage to a Filipino citizen. The CID granted her application.
However, the Ministry of Justice set aside the ruling of the CID as it found no sufficient evidence that
Azucena’s husband is a Filipino citizen42 as only their marriage certificate was presented to establish
his citizenship.
Having been denied of the process in the CID, Azucena was constrained to file a Petition for judicial
naturalization based on CA 473. While this would have been unnecessary if the process at the CID
was granted in her favor, there is nothing that prevents her from seeking acquisition of Philippine
citizenship through regular naturalization proceedings available to all qualified foreign nationals. The
choice of what option to take in order to acquire Philippine citizenship rests with the applicant. In this
case, Azucena has chosen to file a Petition for judicial naturalization under CA 473. The fact that her
application for derivative naturalization under Section 15 of CA 473 was denied should not prevent
her from seeking judicial naturalization under the same law. It is to be remembered that her
application at the CID was denied not because she was found to be disqualified, but because her
husband’s citizenship was not proven. Even if the denial was based on other grounds, it is proper, in
a judicial naturalization proceeding, for the courts to determine whether there are in fact grounds to
deny her of Philippine citizenship based on regular judicial naturalization proceedings.
As the records before this Court show, Santiago’s Filipino citizenship has been adequately proven.
Under judicial proceeding, Santiago submitted his birth certificate indicating therein that he and his
parents are Filipinos. He also submitted voter’s registration, land titles, and business
registrations/licenses, all of which are public records. He has always comported himself as a Filipino
citizen, an operative fact that should have enabled Azucena to avail of Section 15 of CA473. On the
submitted evidence, nothing would show that Azucena suffers from any of the disqualifications under
Section 4 of the same Act.
However, the case before us is a Petition for judicial naturalization and is not based on Section 15 of
CA 473 which was denied by the then Ministry of Justice. The lower court which heard the petition
and received evidence of her qualifications and absence of disqualifications to acquire Philippine
citizenship, has granted the Petition, which was affirmed by the CA. We will not disturb the findings
of the lower court which had the opportunity to hear and scrutinize the evidence presented during
the hearings on the Petition, as well as determine, based on Azucena’s testimony and deportment
during the hearings, that she indeed possesses all the qualifications and none of the disqualifications
for acquisition of Philippine citizenship.
The OSG has filed this instant Petition on the ground that Azucena does not have the qualification
required in no. 4 of Section 2 of CA 473 as she does not have any lucrative income, and that the
proceeding in the lower court was not in the nature of a public hearing. The OSG had the opportunity
to contest the qualifications of Azucena during the initial hearing scheduled on May 18,
2004.However, the OSG or the Office of the Provincial Prosecutor failed to appear in said hearing,
prompting the lower court to order ex parte presentation of evidence before the Clerk of Court on
November 5, 2004. The OSG was also notified of the ex parte proceeding, but despite notice, again
failed to appear. The OSG had raised this same issue at the CA and was denied for the reasons
stated in its Decision. We find no reason to disturb the findings of the CA on this issue. Neither
should this issue further delay the grant of Philippine citizenship to a woman who was born and lived
all her life, in the Philippines, and devoted all her life to the care of her Filipino family. She has more
than demonstrated, under judicial scrutiny, her being a qualified Philippine citizen. On the second
issue, we also affirm the findings of the CA that since the government who has an interest in, and
the only one who can contest, the citizenship of a person, was duly notified through the OSG and the
Provincial Prosecutor’s office, the proceedings have complied with the public hearing requirement
under CA 473.
No. 4, Section 2 of CA 473 provides as qualification to become a Philippine citizen:
4. He must own real estate in the Philippines worth not less than five thousand pesos, Philippine
currency, or must have known lucrative trade, profession, or lawful occupation.
Azucena is a teacher by profession and has actually exercised her profession before she had to quit
her teaching job to assume her family duties and take on her role as joint provider, together with her
husband, in order to support her family. Together, husband and wife were able to raise all their five
children, provided them with education, and have all become professionals and responsible citizens
of this country. Certainly, this is proof enough of both husband and wife’s lucrative trade. Azucena
herself is a professional and can resume teaching at anytime. Her profession never leaves her, and
this is more than sufficient guarantee that she will not be a charge to the only country she has known
since birth.
Moreover, the Court acknowledged that the main objective of extending the citizenship privilege to
an alien wife is to maintain a unity of allegiance among family members, thus:
It is, therefore, not congruent with our cherished traditions of family unity and identity that a husband
should be a citizen and the wife an alien, and that the national treatment of one should be different
from that of the other. Thus, it cannot be that the husband’s interests in property and business
activities reserved by law to citizens should not form part of the conjugal partnership and be denied
to the wife, nor that she herself cannot, through her own efforts but for the benefit of the partnership,
acquire such interests. Only in rare instances should the identity of husband and wife be refused
recognition, and we submit that in respect of our citizenship laws, it should only be in the instances
where the wife suffers from the disqualifications stated in Section 4 of the Revised Naturalization
Law.43
We are not unmindful of precedents to the effect that there is no proceeding authorized by the law or
by the Rules of Court, for the judicial declaration of the citizenship of an individual.44 "Such judicial
declaration of citizenship cannot even be decreed pursuant to an alternative prayer therefor in a
naturalization proceeding."45
This case however is not a Petition for judicial declaration of Philippine citizenship but rather a
Petition for judicial naturalization under CA 473. In the first, the petitioner believes he is a Filipino
citizen and asks a court to declare or confirm his status as a Philippine citizen. In the second, the
petitioner acknowledges he is an alien, and seeks judicial approval to acquire the privilege of be
coming a Philippine citizen based on requirements required under CA 473.Azucena has clearly
proven, under strict judicial scrutiny, that she is qualified for the grant of that privilege, and this Court
will not stand in the way of making her a part of a truly Filipino family.
WHEREFORE, the Petition is DENIED. The May 23, 2008 Decision of the Court of Appeals in CA-
G.R. CV No. 00523 which affirmed the January 31,2005 Decision of the Regional Trial Court, Branch
29, Zamboanga del Sur that granted the Petition for Naturalization, is hereby
AFFIRMED. Subject to compliance with the period and the requirements under Republic Act No.
530which supplements the Revised Naturalization Law, let a Certificate of Naturalization be issued
to AZUCENA SAAVEDRA BATUIGAS after taking an oath of allegiance to the Republic of the
Philippines. Thereafter, her Alien Certificate of Registration should be cancelled.
SO ORDERED.
104
G.R. No. 125793 August 29, 2006
JOEVANIE ARELLANO TABASA, Petitioner,

vs.
HON. COURT OF APPEALS, BUREAU OF IMMIGRATION and DEPORTATION and WILSON
SOLUREN, Respondents.
DECISION
VELASCO, JR., J.:
Citizenship is a priceless possession. Former U.S. Chief Justice Earl Warren fittingly emphasized its
crowning value when he wrote that "it is man’s basic right for it is nothing less than to have
rights." 1 When a person loses citizenship, therefore, the State sees to it that its reacquisition may
only be granted if the former citizen fully satisfies all conditions and complies with the applicable law.
Without doubt, repatriation is not to be granted simply based on the vagaries of the former Filipino
citizen.
The Case
The instant petition for review 2 under Rule 45 of the 1997 Rules of Civil Procedure contests the
denial by the Court of Appeals (CA) of the Petition for Habeas Corpus interposed by petitioner
Joevanie Arellano Tabasa from the Order of Summary Deportation issued by the Bureau of
Immigration and Deportation (BID) for his return to the United States.
The Facts
The facts as culled by the CA from the records show that petitioner Joevanie Arellano Tabasa was a
natural-born citizen of the Philippines. In 1968, 3 when petitioner was seven years old, 4 his father,
Rodolfo Tabasa, became a naturalized citizen 5 of the United States. By derivative naturalization
(citizenship derived from that of another as from a person who holds citizenship by virtue of
naturalization 6), petitioner also acquired American citizenship.
Petitioner arrived in the Philippines on August 3, 1995, and was admitted as a "balikbayan" for one
year. Thereafter, petitioner was arrested and detained by agent Wilson Soluren of the BID on May
23, 1996, pursuant to BID Mission Order No. LIV-96-72 in Baybay, Malay, Aklan; subsequently, he
was brought to the BID Detention Center in Manila.7
Petitioner was investigated by Special Prosecutor Atty. Edy D. Donato at the Law and Investigation
Division of the BID on May 28, 1996; and on the same day, Tabasa was accused of violating Section
8, Chapter 3, Title 1, Book 3 of the 1987 Administrative Code, in a charge sheet which alleged:
1. That on 3 August 1995, respondent (petitioner herein [Tabasa]) arrived in the Philippines and was
admitted as a balikbayan;
2. That in a letter dated 16 April 1996, Honorable Kevin Herbert, Consul General of [the] U.S.
Embassy, informed the Bureau that respondent’s Passport No. 053854189 issued on June 10, 1994
in San Francisco, California, U.S.A., had been revoked by the U.S. Department of State;
3. Hence, respondent [petitioner Tabasa] is now an undocumented and undesirable alien and may
be summarily deported pursuant to Law and Intelligence Instructions No. 53 issued by then
Commissioner Miriam Defensor Santiago to effect his deportation (Exhibit 3). 8
The pertinent portion of the Herbert letter is as follows:
The U.S. Department of State has revoked U.S. passport 053854189 issued on June 10, 1994 in
San Francisco, California under the name of Joevanie Arellano Tabasa, born on February 21, 1959
in the Philippines. Mr. Tabasa’s passport has been revoked because he is the subject of an
outstanding federal warrant of arrest issued on January 25, 1996 by the U.S. District Court for the
Northern District of California, for violation of Section 1073, "Unlawful Flight to Avoid Prosecution," of
Title 18 of the United States Code. He is charged with one count of a felon in possession of a
firearm, in violation of California Penal Code, Section 12021(A)(1), and one count of sexual battery,
in violation of California Penal Code, Section 243.4 (D). 9
The BID ordered petitioner’s deportation to his country of origin, the United States, on May 29, 1996,
in the following summary deportation order:
Records show that on 16 April 1996, Mr. Kevin F. Herbert, Consul General of the U.S. Embassy in
Manila, filed a request with the Bureau to apprehend and deport the abovenamed [sic] respondent
[petitioner Tabasa] on the ground that a standing warrant for several federal charges has been
issued against him, and that the respondent’s Passport No. 053854189 has been revoked.
By reason thereof, and on the strength of Mission Order No. LIV-96-72, Intelligence operatives
apprehended the respondent in Aklan on 23 May 1996.
In Schonemann vs. Commissioner Santiago, et al., (G.R. No. 81461 [sic, ‘81461’ should be ‘86461’],
30 May 1989), the Supreme Court ruled that if a foreign embassy cancels the passport of an alien,
or does not reissue a valid passport to him, the alien loses the privilege to remain in the country.
Further, under Office Memorandum Order No. 34 issued on 21 August 1989, summary deportation
proceedings lie where the passport of the alien has expired.
It is, thus, apparent that respondent has lost his privilege to remain in the country. 10
Petitioner filed before the CA a Petition for Habeas Corpus with Preliminary Injunction and/or
Temporary Restraining Order 11 on May 29, 1996, which was docketed as CA-G.R. SP No. 40771.
Tabasa alleged that he was not afforded due process; that no warrant of arrest for deportation may
be issued by immigration authorities before a final order of deportation is made; that no notice of the
cancellation of his passport was made by the U.S. Embassy; that he is entitled to admission or to a
change of his immigration status as a non-quota immigrant because he is married to a Filipino
citizen as provided in Section 13, paragraph (a) of the Philippine Immigration Act of 1940; and that
he was a natural-born citizen of the Philippines prior to his derivative naturalization when he was
seven years old due to the naturalization of his father, Rodolfo Tabasa, in 1968.
At the time Tabasa filed said petition, he was already 35 years old. 12
On May 30, 1996, the CA ordered the respondent Bureau to produce the person of the petitioner on
June 3, 1996 and show the cause of petitioner’s detention, and restrained the Bureau from
summarily deporting him. On June 3, 1996, the BID presented Tabasa before the CA; and on June
6, 1996, the CA granted both parties ten (10) days within which to file their memoranda, after which
the case would be considered submitted for decision. 13Meanwhile, the Commissioner of Immigration
granted the petitioner’s temporary release on bail on a PhP 20,000.00 cash bond. 14
However, on June 13, 1996, petitioner filed a Supplemental Petition alleging that he had acquired
Filipino citizenship by repatriation in accordance with Republic Act No. 8171 (RA 8171), and that
because he is now a Filipino citizen, he cannot be deported or detained by the respondent Bureau. 15
The Ruling of the Court of Appeals
The CA, in its August 7, 1996 Decision, 16 denied Tabasa’s petition on the ground that he had not
legally and successfully acquired––by repatriation––his Filipino citizenship as provided in RA 8171.
The court said that although he became an American citizen by derivative naturalization when his
father was naturalized in 1968, there is no evidence to show that he lost his Philippine citizenship
"on account of political or economic necessity," as explicitly provided in Section 1, RA 8171—the law
governing the repatriation of natural-born Filipinos who have lost their citizenship. The affidavit does
not state that political or economic necessity was the compelling reason for petitioner’s parents to
give up their Filipino citizenship in 1968. Moreover, the court a quo found that petitioner Tabasa did
not dispute the truth of the April 16, 1996 letter of the United States Consul General Kevin F. Herbert
or the various warrants issued for his arrest by the United States court. The court a quo noted that
after petitioner was ordered deported by the BID on May 29, 1996, he successively executed an
Affidavit of Repatriation on June 6, 1996 and took an oath of allegiance to the Republic of the
Philippines on June 13, 1996––more than ten months after his arrival in the country on August 3,
1995. The appellate court considered petitioner’s "repatriation" as a last ditch effort to avoid
deportation and prosecution in the United States. The appellate court concluded that his only reason
to want to reacquire Filipino citizenship is to avoid criminal prosecution in the United States of
America. The court a quo, therefore, ruled against Tabasa, whose petition is now before us.
The Issue
The only issue to be resolved is whether petitioner has validly reacquired Philippine citizenship
under RA 8171. If there is no valid repatriation, then he can be summarily deported for his being an
undocumented alien.
The Court finds no merit in this petition.
RA 8171, "An Act Providing for the Repatriation of Filipino Women Who Have Lost Their Philippine
Citizenship by Marriage to Aliens and of Natural-Born Filipinos," was enacted on October 23, 1995. It
provides for the repatriation of only two (2) classes of persons, viz:
Filipino women who have lost their Philippine citizenship by marriage to aliens and natural-born
Filipinos who have lost their Philippine citizenship, including their minor children, on account of
political or economic necessity, may reacquire Philippine citizenship through repatriation in the
manner provided in Section 4 of Commonwealth Act No. 63, as amended: Provided, That the
applicant is not a:
(1) Person opposed to organized government or affiliated with any association or group of persons
who uphold and teach doctrines opposing organized government;
(2) Person defending or teaching the necessity or propriety of violence, personal assault, or
association for the predominance of their ideas;
(3) Person convicted of crimes involving moral turpitude; or
(4) Person suffering from mental alienation or incurable contagious diseases. 17 (Emphasis supplied.)
Does petitioner Tabasa qualify as a natural-born Filipino who had lost his Philippine citizenship by
reason of political or economic necessity under RA 8171?
He does not.
Persons qualified for repatriation under RA 8171
To reiterate, the only persons entitled to repatriation under RA 8171 are the following:
a. Filipino women who lost their Philippine citizenship by marriage to aliens; and
b. Natural-born Filipinos including their minor children who lost their Philippine citizenship on account
of political or economic necessity.
Petitioner theorizes that he could be repatriated under RA 8171 because he is a child of a natural-
born Filipino, and that he lost his Philippine citizenship by derivative naturalization when he was still
a minor.
Petitioner overlooks the fact that the privilege of repatriation under RA 8171 is available only to
natural-born Filipinos who lost their citizenship on account of political or economic necessity, and to
the minor children of said natural-born Filipinos. This means that if a parent who had renounced his
Philippine citizenship due to political or economic reasons later decides to repatriate under RA 8171,
his repatriation will also benefit his minor children according to the law. This includes a situation
where a former Filipino subsequently had children while he was a naturalized citizen of a foreign
country. The repatriation of the former Filipino will allow him to recover his natural-born citizenship
and automatically vest Philippine citizenship on his children of jus sanguinis or blood
relationship: 18 the children acquire the citizenship of their parent(s) who are natural-born Filipinos.
To claim the benefit of RA 8171, however, the children must be of minor age at the time the petition
for repatriation is filed by the parent. This is so because a child does not have the legal capacity for
all acts of civil life much less the capacity to undertake a political act like the election of citizenship.
On their own, the minor children cannot apply for repatriation or naturalization separately from their
parents.
In the case at bar, there is no dispute that petitioner was a Filipino at birth. In 1968, while he was still
a minor, his father was naturalized as an American citizen; and by derivative naturalization,
petitioner acquired U.S. citizenship. Petitioner now wants us to believe that he is entitled to
automatic repatriation as a child of natural-born Filipinos who left the country due to political or
economic necessity. This is absurd. Petitioner was no longer a minor at the time of his "repatriation"
on June 13, 1996. The privilege under RA 8171 belongs to children who are of minor age at the time
of the filing of the petition for repatriation.
Neither can petitioner be a natural-born Filipino who left the country due to political or economic
necessity. Clearly, he lost his Philippine citizenship by operation of law and not due to political or
economic exigencies. It was his father who could have been motivated by economic or political
reasons in deciding to apply for naturalization. The decision was his parent’s and not his. The
privilege of repatriation under RA 8171 is extended directly to the natural-born Filipinos who could
prove that they acquired citizenship of a foreign country due to political and economic reasons, and
extended indirectly to the minor children at the time of repatriation.
In sum, petitioner is not qualified to avail himself of repatriation under RA 8171. However, he can
possibly reacquire Philippine citizenship by availing of the Citizenship Retention and Re-acquisition
Act of 2003 (Republic Act No. 9225) by simply taking an oath of allegiance to the Republic of the
Philippines.
Where to file a petition for repatriation pursuant to RA 8171
Even if we concede that petitioner Tabasa can avail of the benefit of RA 8171, still he failed to follow
the procedure for reacquisition of Philippine citizenship. He has to file his petition for repatriation with
the Special Committee on Naturalization (SCN), which was designated to process petitions for
repatriation pursuant to Administrative Order No. 285 (A.O. No. 285) dated August 22, 1996, to wit:
Section 1. Composition.—The composition of the Special Committee on Naturalization, with the

Solicitor General as Chairman, the Undersecretary of Foreign Affairs and the Director-General of the
National Intelligence Coordinating Agency, as members, shall remain as constituted.
Sec. 2. Procedure.—Any person desirous of repatriating or reacquiring Filipino citizenship pursuant
to R.A. No. 8171 shall file a petition with the Special Committee on Naturalization which shall
process the same. If their applications are approved[,] they shall take the necessary oath of
allegiance to the Republic of the Philippines, after which they shall be deemed to have reacquired
Philippine citizenship. The Commission on Immigration and Deportation shall thereupon cancel their
certificate of registration (emphasis supplied).
Sec. 3. Implementing Rules.—The Special Committee is hereby authorized to promulgate rules and
regulations and prescribe the appropriate forms and the required fees for the processing of petitions.
Sec. 4. Effectivity.—This Administrative Order shall take effect immediately.
In the Amended Rules and Regulations Implementing RA 8171 issued by the SCN on August 5,
1999, applicants for repatriation are required to submit documents in support of their petition such as
their birth certificate and other evidence proving their claim to Filipino citizenship. 19 These
requirements were imposed to enable the SCN to verify the qualifications of the applicant particularly
in light of the reasons for the renunciation of Philippine citizenship.
What petitioner simply did was that he took his oath of allegiance to the Republic of the Philippines;
then, executed an affidavit of repatriation, which he registered, together with the certificate of live
birth, with the Office of the Local Civil Registrar of Manila. The said office subsequently issued him a
certificate of such registration. 20 At that time, the SCN was already in place and operational by virtue
of the June 8, 1995 Memorandum issued by President Fidel V. Ramos. 21 Although A.O. No. 285
designating the SCN to process petitions filed pursuant to RA 8171 was issued only on August 22,
1996, it is merely a confirmatory issuance according to the Court in Angat v. Republic. 22 Thus,
petitioner should have instead filed a petition for repatriation before the SCN.
Requirements for repatriation under RA 8171
Even if petitioner––now of legal age––can still apply for repatriation under RA 8171, he nevertheless
failed to prove that his parents relinquished their Philippine citizenship on account of political or
economic necessity as provided for in the law. Nowhere in his affidavit of repatriation did he mention
that his parents lost their Philippine citizenship on account of political or economic reasons. It is
notable that under the Amended Rules and Regulations Implementing RA 8171, the SCN requires a
petitioner for repatriation to set forth, among others, "the reason/s why petitioner lost his/her Filipino
citizenship, whether by marriage in case of Filipino woman, or whether by political or economic
necessity in case of [a] natural-born Filipino citizen who lost his/her Filipino citizenship. In case of the
latter, such political or economic necessity should be specified." 23
Petitioner Tabasa asserts, however, that the CA erred in ruling that the applicant for repatriation
must prove that he lost his Philippine citizenship on account of political or economic necessity. He
theorizes that the reference to ‘political or economic reasons’ is "merely descriptive, not restrictive, of
the widely accepted reasons for naturalization in [a] foreign country." 24
Petitioner’s argument has no leg to stand on.
A reading of Section 1 of RA 8171 shows the manifest intent of the legislature to limit the benefit of
repatriation only to natural-born Filipinos who lost their Philippine citizenship on account of political
or economic necessity, in addition to Filipino women who lost their Philippine citizenship by marriage
to aliens. The precursor of RA 8171, Presidential Decree No. 725 (P.D. 725), 25 which was enacted
on June 5, 1975 amending Commonwealth Act No. 63, also gives to the same groups of former
Filipinos the opportunity to repatriate but without the limiting phrase, "on account of political or
economic necessity" in relation to natural-born Filipinos. By adding the said phrase to RA 8171, the
lawmakers clearly intended to limit the application of the law only to political or economic migrants,
aside from the Filipino women who lost their citizenship by marriage to aliens. This intention is more
evident in the following sponsorship speech of Rep. Andrea B. Domingo on House Bill No. 1248, the
origin of RA 8171, to wit:
Ms. Domingo: x x x
From my experience as the Commissioner of the Bureau of Immigration and Deportation, I observed
that there are only four types of Filipinos who leave the country.
The first is what we call the "economic refugees" who go abroad to work because there is no work to
be found in the country. Then we have the "political refugees" who leave the country for fear of their
lives because they are not in consonance with the prevailing policy of government. The third type is
those who have committed crimes and would like to escape from the punishment of said crimes.
Lastly, we have those Filipinos who feel that they are not Filipinos, thereby seeking other citizenship
elsewhere.
Of these four types of Filipinos, Mr. Speaker, the first two have to leave the country not of choice, but
rather out of sacrifice to look for a better life, as well as for a safer abode for themselves and their
families. It is for these two types of Filipinos that this measure is being proposed for approval by this
body. (Emphasis supplied.)
xxxx
x x x [I]f the body would recall, I mentioned in my short sponsorship speech the four types of
Filipinos who leave their country. And the two types—the economic and political refugees—are the
ones being addressed by this proposed law, and they are not really Filipino women who lost their
citizenship through marriage. We had a lot of problems with these people who left the country
because of political persecution or because of pressing economic reasons, and after feeling that
they should come back to the country and get back their citizenship and participate as they should in
the affairs of the country, they find that it is extremely difficult to get their citizenship back because
they are treated no different from any other class of alien. 26
From these two sources, namely, P.D. 725 and the sponsorship speech on House Bill No. 1248, it is
incontrovertible that the intent of our legislators in crafting Section 1 of RA 8171, as it is precisely
worded out, is to exclude those Filipinos who have abandoned their country for reasons other than
political or economic necessity.
Petitioner contends it is not necessary to prove his political or economic reasons since the act of
renouncing allegiance to one’s native country constitutes a "necessary and unavoidable shifting of
his political allegiance," and his father’s loss of Philippine citizenship through naturalization "cannot
therefore be said to be for any reason other than political or economic necessity." 27
This argument has no merit.
While it is true that renunciation of allegiance to one’s native country is necessarily a political act, it
does not follow that the act is inevitably politically or economically motivated as alleged by petitioner.
To reiterate, there are other reasons why Filipinos relinquish their Philippine citizenship. The
sponsorship speech of former Congresswoman Andrea B. Domingo illustrates that aside from
economic and political refugees, there are Filipinos who leave the country because they have
committed crimes and would like to escape from punishment, and those who really feel that they are
not Filipinos and that they deserve a better nationality, and therefore seek citizenship elsewhere.
Thus, assuming petitioner Tabasa is qualified under RA 8171, it is incumbent upon him to prove to
the satisfaction of the SCN that the reason for his loss of citizenship was the decision of his parents
to forfeit their Philippine citizenship for political or economic exigencies. He failed to undertake this
crucial step, and thus, the sought relief is unsuccessful.
Repatriation is not a matter of right, but it is a privilege granted by the State. This is mandated by the
1987 Constitution under Section 3, Article IV, which provides that citizenship may be lost or
reacquired in the manner provided by law. The State has the power to prescribe by law the
qualifications, procedure, and requirements for repatriation. It has the power to determine if an
applicant for repatriation meets the requirements of the law for it is an inherent power of the State to
choose who will be its citizens, and who can reacquire citizenship once it is lost. If the applicant, like
petitioner Tabasa, fails to comply with said requirements, the State is justified in rejecting the petition
for repatriation.
Petitioner: an undocumented alien subject to summary deportation
Petitioner claims that because of his repatriation, he has reacquired his Philippine citizenship;
therefore, he is not an undocumented alien subject to deportation.
This theory is incorrect.
As previously explained, petitioner is not entitled to repatriation under RA 8171 for he has not shown
that his case falls within the coverage of the law.
Office Memorandum No. 34 dated August 21, 1989 of the BID is enlightening on summary
deportation:
2. The Board of Special Inquiry and the Hearing Board IV shall observe summary deportation
proceedings in cases where the charge against the alien is overstaying, or the expiration or
cancellation by his government of his passport. In cases involving overstaying aliens, BSI and the
Hearing Board IV shall merely require the presentation of the alien’s valid passport and shall decide
the case on the basis thereof.
3. If a foreign embassy cancels the passport of the alien, or does not reissue a valid passport to him,
the alien loses the privilege to remain in the country, under the Immigration Act, Sections 10 and 15
(Schonemann v. Santiago, et al., G.R. No. 81461 [sic, should be ‘86461’], 30 May 1989). The
automatic loss of the privilege obviates deportation proceedings. In such instance, the Board of
Commissioners may issue summary judgment of deportation which shall be immediately
executory. 28
In addition, in the case of Schonemann v. Defensor Santiago, et al., this Court held:
It is elementary that if an alien wants to stay in the Philippines, he must possess the necessary
documents. One of these documents is a valid passport. There are, of course, exceptions where in
the exercise of its sovereign prerogatives the Philippines may grant refugee status, refuse to
extradite an alien, or otherwise allow him or her to stay here even if he [the alien] has no valid
passport or Philippine visa. "Boat people" seeking residence elsewhere are examples. However, the
grant of the privilege of staying in the Philippines is discretionary on the part of the proper
authorities. There is no showing of any grave abuse of discretion, arbitrariness, or whimsicality in the
questioned summary judgment. x x x 29
Petitioner Tabasa, whose passport was cancelled after his admission into the country, became an
undocumented alien who can be summarily deported. His subsequent "repatriation" cannot bar such
deportation especially considering that he has no legal and valid reacquisition of Philippine
citizenship.
WHEREFORE, this petition for review is DISMISSED, and the August 7, 1996 Decision of the Court
of Appeals is AFFIRMED. No costs to the petitioner.
SO ORDERED.
105

SUPREME COURT
Manila
EN BANC
G.R. No. 180088 January 19, 2009
MANUEL B. JAPZON, Petitioner,

vs.
COMMISSION ON ELECTIONS and JAIME S. TY, Respondents.
DECISION
CHICO-NAZARIO, J.:
This is a Petition for Review on Certiorari under Rules 641 and 652 of the Revised Rules of Court
seeking to annul and set aside the Resolution3 dated 31 July 2007 of the First Division of public
respondent Commission on Elections (COMELEC) and the Resolution4 dated 28 September 2007 of
COMELEC en banc, in SPA No. 07-568, for having been rendered with grave abuse of discretion,
amounting to lack or excess of jurisdiction.
Both petitioner Manuel B. Japzon (Japzon) and private respondent Jaime S. Ty (Ty) were
candidates for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, in the
local elections held on 14 May 2007.
On 15 June 2007, Japzon instituted SPA No. 07-568 by filing before the COMELEC a Petition5 to
disqualify and/or cancel Ty’s Certificate of Candidacy on the ground of material misrepresentation.
Japzon averred in his Petition that Ty was a former natural-born Filipino, having been born on 9
October 1943 in what was then Pambujan Sur, Hernani Eastern Samar (now the Municipality of
General Macarthur, Easter Samar) to spouses Ang Chim Ty (a Chinese) and Crisanta Aranas
Sumiguin (a Filipino). Ty eventually migrated to the United States of America (USA) and became a
citizen thereof. Ty had been residing in the USA for the last 25 years. When Ty filed his Certificate of
Candidacy on 28 March 2007, he falsely represented therein that he was a resident of Barangay 6,
Poblacion, General Macarthur, Eastern Samar, for one year before 14 May 2007, and was not a
permanent resident or immigrant of any foreign country. While Ty may have applied for the
reacquisition of his Philippine citizenship, he never actually resided in Barangay 6, Poblacion,
General Macarthur, Eastern Samar, for a period of one year immediately preceding the date of
election as required under Section 39 of Republic Act No. 7160, otherwise known as the Local
Government Code of 1991. In fact, even after filing his application for reacquisition of his Philippine
citizenship, Ty continued to make trips to the USA, the most recent of which was on 31 October
2006 lasting until 20 January 2007. Moreover, although Ty already took his Oath of Allegiance to the
Republic of the Philippines, he continued to comport himself as an American citizen as proven by his
travel records. He had also failed to renounce his foreign citizenship as required by Republic Act No.
9225, otherwise known as the Citizenship Retention and Reacquisition Act of 2003, or related laws.
Hence, Japzon prayed for in his Petition that the COMELEC order the disqualification of Ty from
running for public office and the cancellation of the latter’s Certificate of Candidacy.
In his Answer6 to Japzon’s Petition in SPA No. 07-568, Ty admitted that he was a natural-born
Filipino who went to the USA to work and subsequently became a naturalized American citizen. Ty
claimed, however, that prior to filing his Certificate of Candidacy for the Office of Mayor of the
Municipality of General Macarthur, Eastern Samar, on 28 March 2007, he already performed the
following acts: (1) with the enactment of Republic Act No. 9225, granting dual citizenship to natural-
born Filipinos, Ty filed with the Philippine Consulate General in Los Angeles, California, USA, an
application for the reacquisition of his Philippine citizenship; (2) on 2 October 2005, Ty executed an
Oath of Allegiance to the Republic of the Philippines before Noemi T. Diaz, Vice Consul of the
Philippine Consulate General in Los Angeles, California, USA; (3) Ty applied for a Philippine
passport indicating in his application that his residence in the Philippines was at A. Mabini St.,
Barangay 6, Poblacion, General Macarthur, Eastern Samar. Ty’s application was approved and he
was issued on 26 October 2005 a Philippine passport; (4) on 8 March 2006, Ty personally secured
and signed his Community Tax Certificate (CTC) from the Municipality of General Macarthur, in
which he stated that his address was at Barangay 6, Poblacion, General Macarthur, Eastern Samar;
(5) thereafter, on 17 July 2006, Ty was registered as a voter in Precinct 0013A, Barangay 6,
Poblacion, General Macarthur, Eastern Samar; (6) Ty secured another CTC dated 4 January 2007
again stating therein his address as Barangay 6, Poblacion, General Macarthur, Eastern Samar; and
(7) finally, Ty executed on 19 March 2007 a duly notarized Renunciation of Foreign Citizenship.
Given the aforementioned facts, Ty argued that he had reacquired his Philippine citizenship and
renounced his American citizenship, and he had been a resident of the Municipality of General
Macarthur, Eastern Samar, for more than one year prior to the 14 May 2007 elections. Therefore, Ty
sought the dismissal of Japzon’s Petition in SPA No. 07-568.
Pending the submission by the parties of their respective Position Papers in SPA No. 07-568, the 14
May 2007 elections were already held. Ty acquired the highest number of votes and was declared
Mayor of the Municipality of General Macarthur, Eastern Samar, by the Municipal Board of
Canvassers on 15 May 2007.7
Following the submission of the Position Papers of both parties, the COMELEC First Division
rendered its Resolution8 dated 31 July 2007 in favor of Ty.
The COMELEC First Division found that Ty complied with the requirements of Sections 3 and 5 of
Republic Act No. 9225 and reacquired his Philippine citizenship, to wit:
Philippine citizenship is an indispensable requirement for holding an elective public office, and the
purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person
owing allegiance to another nation, shall govern our people and our country or a unit of territory
thereof. Evidences revealed that [Ty] executed an Oath of Allegiance before Noemi T. Diaz, Vice
Consul of the Philippine Consulate General, Los Angeles, California, U.S.A. on October 2, 2005 and
executed a Renunciation of Foreign Citizenship on March 19, 2007 in compliance with R.A. [No.]
9225. Moreover, neither is [Ty] a candidate for or occupying public office nor is in active service as
commissioned or non-commissioned officer in the armed forces in the country of which he was
naturalized citizen.9
The COMELEC First Division also held that Ty did not commit material misrepresentation in stating
in his Certificate of Candidacy that he was a resident of Barangay 6, Poblacion, General Macarthur,
Eastern Samar, for at least one year before the elections on 14 May 2007. It reasoned that:
Although [Ty] has lost his domicile in [the] Philippines when he was naturalized as U.S. citizen in
1969, the reacquisition of his Philippine citizenship and subsequent acts thereof proved that he has
been a resident of Barangay 6, Poblacion, General Macarthur, Eastern Samar for at least one (1)
year before the elections held on 14 May 2007 as he represented in his certificate of candidacy[.]
As held in Coquilla vs. Comelec:
"The term ‘residence’ is to be understood not in its common acceptation as referring to ‘dwelling’ or
‘habitation,’ but rather to ‘domicile’ or legal residence, that is, ‘the place where a party actually or
constructively has his permanent home, where he, no matter where he may be found at any given
time, eventually intends to return and remain (animus manendi).’ A domicile of origin is acquired by
every person at birth. It is usually the place where the child’s parents reside and continues until the
same is abandoned by acquisition of new domicile (domicile of choice).
In the case at bar, petitioner lost his domicile of origin in Oras by becoming a U.S. citizen after
enlisting in the U.S. Navy in 1965. From then on and until November 10, 2000, when he reacquired
Philippine citizenship, petitioner was an alien without any right to reside in the Philippines save as
our immigration laws may have allowed him to stay as a visitor or as a resident alien.
Indeed, residence in the United States is a requirement for naturalization as a U.S. citizen. Title 8,
§1427(a) of the United States Code provides:
Requirements of naturalization: Residence
(a) No person, except as otherwise provided in this subchapter, shall be naturalized unless such
applicant, (1) year immediately preceding the date of filing his application for naturalization has
resided continuously, after being lawfully admitted for permanent residence, within the United States
for at least five years and during the five years immediately preceding the date of filing his petition
has been physically present therein for periods totaling at least half of that time, and who has
resided within the State or within the district of the Service in the United States in which the applicant
filed the application for at least three months, (2) has resided continuously within the United States
from the date of the application up to the time of admission to citizenship, and (3) during all period
referred to in this subsection has been and still is a person of good moral character, attached to the
principles of the Constitution of the United States, and well disposed to the good order and
happiness of the United States. (Emphasis added)
In Caasi v. Court of Appeals, this Court ruled that immigration to the United States by virtue of a
‘greencard,’ which entitles one to reside permanently in that country, constitutes abandonment of
domicile in the Philippines. With more reason then does naturalization in a foreign country result in
an abandonment of domicile in the Philippines.
Records showed that after taking an Oath of Allegiance before the Vice Consul of the Philippine
Consulate General on October 2, 2005, [Ty] applied and was issued a Philippine passport on
October 26, 2005; and secured a community tax certificate from the Municipality of General
Macarthur on March 8, 2006. Evidently, [Ty] was already a resident of Barangay 6, Poblacion,
General Macarthur, Eastern Samar for more than one (1) year before the elections on May 14,
2007.10 (Emphasis ours.)
The dispositive portion of the 31 July 2007 Resolution of the COMELEC First Division, thus, reads:
WHEREFORE, premises considered, the petition is DENIED for lack of merit.11
Japzon filed a Motion for Reconsideration of the foregoing Resolution of the COMELEC First
Division. On 28 September 2007, the COMELEC en banc issued its Resolution12 denying Japzon’s
Motion for Reconsideration and affirming the assailed Resolution of the COMELEC First Division, on
the basis of the following ratiocination:
We have held that a Natural born Filipino who obtains foreign citizenship, and subsequently spurns
the same, is by clear acts of repatriation a Filipino Citizen and hence qualified to run as a candidate
for any local post.
xxxx
It must be noted that absent any showing of irregularity that overturns the prevailing status of a
citizen, the presumption of regularity remains. Citizenship is an important aspect of every individual’s
constitutionally granted rights and privileges. This is essential in determining whether one has the
right to exercise pre-determined political rights such as the right to vote or the right to be elected to
office and as such rights spring from citizenship.
Owing to its primordial importance, it is thus presumed that every person is a citizen of the country in
which he resides; that citizenship once granted is presumably retained unless voluntarily
relinquished; and that the burden rests upon who alleges a change in citizenship and allegiance to
establish the fact.
Our review of the Motion for Reconsideration shows that it does not raise any new or novel issues.
The arguments made therein have already been dissected and expounded upon extensively by the
first Division of the Commission, and there appears to be no reason to depart from the wisdom of the
earlier resolution. We thus affirm that [Ty] did not commit any material misrepresentation when he
accomplished his Certificate of Candidacy. The only ground for denial of a Certificate of Candidacy
would be when there was material misrepresentation meant to mislead the electorate as to the
qualifications of the candidate. There was none in this case, thus there is not enough reason to deny
due course to the Certificate of Candidacy of Respondent James S. Ty.13
Failing to obtain a favorable resolution from the COMELEC, Japzon proceeded to file the instant
Petition for Certiorari, relying on the following grounds:
A. THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CAPRICIOUSLY,
WHIMSICALLY AND WANTONLY DISREGARDED THE PARAMETERS SET BY LAW AND
JURISPRUDENCE FOR THE ACQUISITION OF A NEW DOMICILE OF CHOICE AND
RESIDENCE.14
B. THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CAPRICIOUSLY,
WHIMSICALLY AND WANTONLY REFUSED TO CANCEL [TY’S] CERTIFICATE OF CANDIDACY,
AND CONSEQUENTLY DECLARE [JAPZON] AS THE DULY ELECTED MAYOR OF GEN.
MACARTHUR, EASTERN SAMAR.15
Japzon argues that when Ty became a naturalized American citizen, he lost his domicile of origin. Ty
did not establish his residence in the Municipality of General Macarthur, Eastern Samar, Philippines,
just because he reacquired his Philippine citizenship. The burden falls upon Ty to prove that he
established a new domicile of choice in General Macarthur, Eastern Samar, a burden which he failed
to discharge. Ty did not become a resident of General Macarthur, Eastern Samar, by merely
executing the Oath of Allegiance under Republic Act No. 9225.
Therefore, Japzon asserts that Ty did not meet the one-year residency requirement for running as a
mayoralty candidate in the 14 May 2007 local elections. The one-year residency requirement for
those running for public office cannot be waived or liberally applied in favor of dual citizens.
Consequently, Japzon believes he was the only remaining candidate for the Office of Mayor of the
Municipality of General Macarthur, Eastern Samar, and is the only placer in the 14 May 2007 local
elections.
Japzon prays for the Court to annul and set aside the Resolutions dated 31 July 2007 and 28
September 2007 of the COMELEC First Division and en banc, respectively; to issue a new
resolution denying due course to or canceling Ty’s Certificate of Candidacy; and to declare Japzon
as the duly elected Mayor of the Municipality of General Macarthur, Eastern Samar.
As expected, Ty sought the dismissal of the present Petition. According to Ty, the COMELEC
already found sufficient evidence to prove that Ty was a resident of the Municipality of General
Macarthur, Eastern Samar, one year prior to the 14 May 2007 local elections. The Court cannot
evaluate again the very same pieces of evidence without violating the well-entrenched rule that
findings of fact of the COMELEC are binding on the Court. Ty disputes Japzon’s assertion that the
COMELEC committed grave abuse of discretion in rendering the assailed Resolutions, and avers
that the said Resolutions were based on the evidence presented by the parties and consistent with
prevailing jurisprudence on the matter. Even assuming that Ty, the winning candidate for the Office
of Mayor of the Municipality of General Macarthur, Eastern Samar, is indeed disqualified from
running in the local elections, Japzon as the second placer in the same elections cannot take his
place.
The Office of the Solicitor General (OSG), meanwhile, is of the position that Ty failed to meet the
one-year residency requirement set by law to qualify him to run as a mayoralty candidate in the 14
May 2007 local elections. The OSG opines that Ty was unable to prove that he intended to remain in
the Philippines for good and ultimately make it his new domicile. Nonetheless, the OSG still prays for
the dismissal of the instant Petition considering that Japzon, gathering only the second highest
number of votes in the local elections, cannot be declared the duly elected Mayor of the Municipality
of General Macarthur, Eastern Samar, even if Ty is found to be disqualified from running for the said
position. And since it took a position adverse to that of the COMELEC, the OSG prays from this
Court to allow the COMELEC to file its own Comment on Japzon’s Petition. The Court, however, no
longer acted on this particular prayer of the COMELEC, and with the submission of the Memoranda
by Japzon, Ty, and the OSG, it already submitted the case for decision.
The Court finds no merit in the Petition at bar.
There is no dispute that Ty was a natural-born Filipino. He was born and raised in the Municipality of
General Macarthur, Eastern Samar, Philippines. However, he left to work in the USA and eventually
became an American citizen. On 2 October 2005, Ty reacquired his Philippine citizenship by taking
his Oath of Allegiance to the Republic of the Philippines before Noemi T. Diaz, Vice Consul of the
Philippine Consulate General in Los Angeles, California, USA, in accordance with the provisions of
Republic Act No. 9225.16 At this point, Ty still held dual citizenship, i.e., American and Philippine. It
was only on 19 March 2007 that Ty renounced his American citizenship before a notary public and,
resultantly, became a pure Philippine citizen again.
It bears to point out that Republic Act No. 9225 governs the manner in which a natural-born Filipino
may reacquire or retain17 his Philippine citizenship despite acquiring a foreign citizenship, and
provides for his rights and liabilities under such circumstances. A close scrutiny of said statute would
reveal that it does not at all touch on the matter of residence of the natural-born Filipino taking
advantage of its provisions. Republic Act No. 9225 imposes no residency requirement for the
reacquisition or retention of Philippine citizenship; nor does it mention any effect of such
reacquisition or retention of Philippine citizenship on the current residence of the concerned natural-
born Filipino. Clearly, Republic Act No. 9225 treats citizenship independently of residence. This is
only logical and consistent with the general intent of the law to allow for dual citizenship. Since a
natural-born Filipino may hold, at the same time, both Philippine and foreign citizenships, he may
establish residence either in the Philippines or in the foreign country of which he is also a citizen.
Residency in the Philippines only becomes relevant when the natural-born Filipino with dual
citizenship decides to run for public office.
Section 5(2) of Republic Act No. 9225 reads:
SEC. 5. Civil and Political Rights and Liabilities. – Those who retain or reacquire Philippine
xxxx
such public office as required by the Constitution and existing laws and, at the time of the filing of the
before any public officer authorized to administer an oath.
Breaking down the afore-quoted provision, for a natural born Filipino, who reacquired or retained his
Philippine citizenship under Republic Act No. 9225, to run for public office, he must: (1) meet the
qualifications for holding such public office as required by the Constitution and existing laws; and (2)
make a personal and sworn renunciation of any and all foreign citizenships before any public officer
authorized to administer an oath.
That Ty complied with the second requirement is beyond question. On 19 March 2007, he personally
executed a Renunciation of Foreign Citizenship before a notary public. By the time he filed his
Certificate of Candidacy for the Office of Mayor of the Municipality of General Macarthur, Eastern
Samar, on 28 March 2007, he had already effectively renounced his American citizenship, keeping
solely his Philippine citizenship.
The other requirement of Section 5(2) of Republic Act No. 9225 pertains to the qualifications
required by the Constitution and existing laws.
Article X, Section 3 of the Constitution left it to Congress to enact a local government code which
shall provide, among other things, for the qualifications, election, appointment and removal, term,
salaries, powers and functions and duties of local officials, and all other matters relating to the
organization and operation of the local units.
Pursuant to the foregoing mandate, Congress enacted Republic Act No. 7160, the Local
Government Code of 1991, Section 39 of which lays down the following qualifications for local
elective officials:
SEC. 39. Qualifications. – (a) An elective local official must be a citizen of the Philippines; a
registered voter in the barangay, municipality, city or province or, in the case of a member of the
sangguniang panlalawigan, sangguniang panlungsod, or sanggunian bayan, the district where he
intends to be elected; a resident therein for at least one (1) year immediately preceding the day of
the election; and able to read and write Filipino or any other local language or dialect.
xxxx
(c) Candidates for the position of mayor or vice mayor of independent component cities, component
cities, or municipalities must be at least twenty-one (21) years of age on election day.
The challenge against Ty’s qualification to run as a candidate for the Office of Mayor of the
Municipality of General Macarthur, Eastern Samar, centers on his purported failure to meet the one-
year residency requirement in the said municipality.
The term "residence" is to be understood not in its common acceptation as referring to "dwelling" or
"habitation," but rather to "domicile" or legal residence, that is, "the place where a party actually or
constructively has his permanent home, where he, no matter where he may be found at any given
time, eventually intends to return and remain (animus manendi)."18
A domicile of origin is acquired by every person at birth. It is usually the place where the child’s
parents reside and continues until the same is abandoned by acquisition of new domicile (domicile of
choice). In Coquilla,19 the Court already acknowledged that for an individual to acquire American
citizenship, he must establish residence in the USA. Since Ty himself admitted that he became a
naturalized American citizen, then he must have necessarily abandoned the Municipality of General
Macarthur, Eastern Samar, Philippines, as his domicile of origin; and transferred to the USA, as his
domicile of choice.
As has already been previously discussed by this Court herein, Ty’s reacquisition of his Philippine
citizenship under Republic Act No. 9225 had no automatic impact or effect on his
residence/domicile. He could still retain his domicile in the USA, and he did not necessarily regain
his domicile in the Municipality of General Macarthur, Eastern Samar, Philippines. Ty merely had the
option to again establish his domicile in the Municipality of General Macarthur, Eastern Samar,
Philippines, said place becoming his new domicile of choice. The length of his residence therein
shall be determined from the time he made it his domicile of choice, and it shall not retroact to the
time of his birth.
How then could it be established that Ty indeed established a new domicile in the Municipality of
General Macarthur, Eastern Samar, Philippines?
In Papandayan, Jr. v. Commission on Elections,20 the Court provided a summation of the different
principles and concepts in jurisprudence relating to the residency qualification for elective local
officials. Pertinent portions of the ratio in Papandayan are reproduced below:
Our decisions have applied certain tests and concepts in resolving the issue of whether or not a
candidate has complied with the residency requirement for elective positions. The principle of
animus revertendi has been used to determine whether a candidate has an "intention to return" to
the place where he seeks to be elected. Corollary to this is a determination whether there has been
an "abandonment" of his former residence which signifies an intention to depart therefrom. In Caasi
v. Court of Appeals, this Court set aside the appealed orders of the COMELEC and the Court of
Appeals and annulled the election of the respondent as Municipal Mayor of Bolinao, Pangasinan on
the ground that respondent’s immigration to the United States in 1984 constituted an abandonment
of his domicile and residence in the Philippines. Being a green card holder, which was proof that he
was a permanent resident or immigrant of the United States, and in the absence of any waiver of his
status as such before he ran for election on January 18, 1988, respondent was held to be
disqualified under §68 of the Omnibus Election Code of the Philippines (Batas Pambansa Blg. 881).
In Co v. Electoral Tribunal of the House of Representatives, respondent Jose Ong, Jr. was
proclaimed the duly elected representative of the 2nd District of Northern Samar. The House of
Representatives Electoral Tribunal (HRET) upheld his election against claims that he was not a
natural born Filipino citizen and a resident of Laoang, Northern Samar. In sustaining the ruling of the
HRET, this Court, citing Faypon v. Quirino, applied the concept of animus revertendi or "intent to
return," stating that his absence from his residence in order to pursue studies or practice his
profession as a certified public accountant in Manila or his registration as a voter other than in the
place where he was elected did not constitute loss of residence. The fact that respondent made
periodical journeys to his home province in Laoag revealed that he always had animus revertendi.
In Abella v. Commission on Elections and Larrazabal v. Commission on Elections, it was explained

that the determination of a person’s legal residence or domicile largely depends upon the intention
that may be inferred from his acts, activities, and utterances. In that case, petitioner Adelina
Larrazabal, who had obtained the highest number of votes in the local elections of February 1, 1988
and who had thus been proclaimed as the duly elected governor, was disqualified by the COMELEC
for lack of residence and registration qualifications, not being a resident nor a registered voter of
Kananga, Leyte. The COMELEC ruled that the attempt of petitioner Larrazabal to change her
residence one year before the election by registering at Kananga, Leyte to qualify her to run for the
position of governor of the province of Leyte was proof that she considered herself a resident of
Ormoc City. This Court affirmed the ruling of the COMELEC and held that petitioner Larrazabal had
established her residence in Ormoc City, not in Kananga, Leyte, from 1975 up to the time that she
ran for the position of Provincial Governor of Leyte on February 1, 1988. There was no evidence to
show that she and her husband maintained separate residences, i.e., she at Kananga, Leyte and her
husband at Ormoc City. The fact that she occasionally visited Kananga, Leyte through the years did
not signify an intention to continue her residence after leaving that place.
In Romualdez v. RTC, Br. 7, Tacloban City, the Court held that "domicile" and "residence" are
synonymous. The term "residence," as used in the election law, imports not only an intention to
reside in a fixed place but also personal presence in that place, coupled with conduct indicative of
such intention. "Domicile" denotes a fixed permanent residence to which when absent for business
or pleasure, or for like reasons, one intends to return. In that case, petitioner Philip G. Romualdez
established his residence during the early 1980’s in Barangay Malbog, Tolosa, Leyte. It was held
that the sudden departure from the country of petitioner, because of the EDSA People’s Power
Revolution of 1986, to go into self-exile in the United States until favorable conditions had been
established, was not voluntary so as to constitute an abandonment of residence. The Court
explained that in order to acquire a new domicile by choice, there must concur (1) residence or
bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon
the old domicile. There must be animus manendi coupled with animus non revertendi. The purpose
to remain in or at the domicile of choice must be for an indefinite period of time; the change of
residence must be voluntary; and the residence at the place chosen for the new domicile must be
actual.
Ultimately, the Court recapitulates in Papandayan, Jr. that it is the fact of residence that is the
decisive factor in determining whether or not an individual has satisfied the residency qualification
requirement.
As espoused by Ty, the issue of whether he complied with the one-year residency requirement for
running for public office is a question of fact. Its determination requires the Court to review, examine
and evaluate or weigh the probative value of the evidence presented by the parties before the
COMELEC.
The COMELEC, taking into consideration the very same pieces of evidence presently before this
Court, found that Ty was a resident of the Municipality of General Macarthur, Eastern Samar, one
year prior to the 14 May 2007 local elections. It is axiomatic that factual findings of administrative
agencies, such as the COMELEC, which have acquired expertise in their field are binding and
conclusive on the Court. An application for certiorari against actions of the COMELEC is confined to
instances of grave abuse of discretion amounting to patent and substantial denial of due process,
considering that the COMELEC is presumed to be most competent in matters falling within its
domain.21
The Court even went further to say that the rule that factual findings of administrative bodies will not
be disturbed by courts of justice, except when there is absolutely no evidence or no substantial
evidence in support of such findings, should be applied with greater force when it concerns the
COMELEC, as the framers of the Constitution intended to place the COMELEC—created and
explicitly made independent by the Constitution itself—on a level higher than statutory administrative
organs. The factual finding of the COMELEC en banc is therefore binding on the Court.22
The findings of facts of quasi-judicial agencies which have acquired expertise in the specific matters
entrusted to their jurisdiction are accorded by this Court not only respect but even finality if they are
supported by substantial evidence. Only substantial, not preponderance, of evidence is necessary.
Section 5, Rule 133 of the Rules of Court provides that in cases filed before administrative or quasi-
judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that
amount of relevant evidence which a reasonable mind might accept as adequate to justify a
conclusion.23
The assailed Resolutions dated 31 July 2007 and 28 September 2007 of the COMELEC First
Division and en banc, respectively, were both supported by substantial evidence and are, thus,
binding and conclusive upon this Court.
Ty’s intent to establish a new domicile of choice in the Municipality of General Macarthur, Eastern
Samar, Philippines, became apparent when, immediately after reacquiring his Philippine citizenship
on 2 October 2005, he applied for a Philippine passport indicating in his application that his
residence in the Philippines was at A. Mabini St., Barangay 6, Poblacion, General Macarthur,
Eastern Samar. For the years 2006 and 2007, Ty voluntarily submitted himself to the local tax
jurisdiction of the Municipality of General Macarthur, Eastern Samar, by paying community tax and
securing CTCs from the said municipality stating therein his address as A. Mabini St., Barangay 6,
Poblacion, General Macarthur, Eastern Samar. Thereafter, Ty applied for and was registered as a
voter on 17 July 2006 in Precinct 0013A, Barangay 6, Poblacion, General Macarthur, Eastern
Samar.
In addition, Ty has also been bodily present in the Municipality of General Macarthur, Eastern
Samar, Philippines, since his arrival on 4 May 2006, inarguably, just a little over a year prior to the
14 May 2007 local elections. Japzon maintains that Ty’s trips abroad during said period, i.e., to
Bangkok, Thailand (from 14 to 18 July 2006), and to the USA (from 31 October 2006 to 19 January
2007), indicate that Ty had no intention to permanently reside in the Municipality of General
Macarthur, Eastern Samar, Philippines. The COMELEC First Division and en banc, as well as this
Court, however, view these trips differently. The fact that Ty did come back to the Municipality of
General Macarthur, Eastern Samar, Philippines, after said trips, is a further manifestation of his
animus manendi and animus revertendi.
There is no basis for this Court to require Ty to stay in and never leave at all the Municipality of
General Macarthur, Eastern Samar, for the full one-year period prior to the 14 May 2007 local
elections so that he could be considered a resident thereof. To the contrary, the Court has previously
ruled that absence from residence to pursue studies or practice a profession or registration as a
voter other than in the place where one is elected, does not constitute loss of residence.24 The Court
also notes, that even with his trips to other countries, Ty was actually present in the Municipality of
General Macarthur, Eastern Samar, Philippines, for at least nine of the 12 months preceding the 14
May 2007 local elections. Even if length of actual stay in a place is not necessarily determinative of
the fact of residence therein, it does strongly support and is only consistent with Ty’s avowed intent
in the instant case to establish residence/domicile in the Municipality of General Macarthur, Eastern
Samar.
Japzon repeatedly brings to the attention of this Court that Ty arrived in the Municipality of General
Macarthur, Eastern Samar, on 4 May 2006 only to comply with the one-year residency requirement,
so Ty could run as a mayoralty candidate in the 14 May 2007 elections. In Aquino v.
COMELEC,25 the Court did not find anything wrong in an individual changing residences so he could
run for an elective post, for as long as he is able to prove with reasonable certainty that he has
effected a change of residence for election law purposes for the period required by law. As this Court
already found in the present case, Ty has proven by substantial evidence that he had established
residence/domicile in the Municipality of General Macarthur, Eastern Samar, by 4 May 2006, a little
over a year prior to the 14 May 2007 local elections, in which he ran as a candidate for the Office of
the Mayor and in which he garnered the most number of votes.
Finally, when the evidence of the alleged lack of residence qualification of a candidate for an elective
position is weak or inconclusive and it clearly appears that the purpose of the law would not be
thwarted by upholding the victor’s right to the office, the will of the electorate should be respected.
For the purpose of election laws is to give effect to, rather than frustrate, the will of the voters.26 To
successfully challenge Ty’s disqualification, Japzon must clearly demonstrate that Ty’s ineligibility is
so patently antagonistic to constitutional and legal principles that overriding such ineligibility and
thereby giving effect to the apparent will of the people would ultimately create greater prejudice to
the very democratic institutions and juristic traditions that our Constitution and laws so zealously
protect and promote. In this case, Japzon failed to substantiate his claim that Ty is ineligible to be
Mayor of the Municipality of General Macarthur, Eastern Samar, Philippines.
WHEREFORE, premises considered, the instant Petition for Certiorari is DISMISSED.
SO ORDERED.
106

SUPREME COURT
Manila
EN BANC
G.R. No. 179848 November 27, 2008
NESTOR A. JACOT, petitioner,

vs.
ROGEN T. DAL and COMMISSION ON ELECTIONS, respondents.
DECISION
CHICO-NAZARIO, J.:
Petitioner Nestor A. Jacot assails the Resolution1 dated 28 September 2007 of the Commission on
Elections (COMELEC) En Banc in SPA No. 07-361, affirming the Resolution dated 12 June 2007 of the
COMELEC Second Division2 disqualifying him from running for the position of Vice-Mayor of Catarman,
Camiguin, in the 14 May 2007 National and Local Elections, on the ground that he failed to make a
personal renouncement of his United States (US) citizenship.
Petitioner was a natural born citizen of the Philippines, who became a naturalized citizen of the US on 13
December 1989. 3
Petitioner sought to reacquire his Philippine citizenship under Republic Act No. 9225, otherwise known as
the Citizenship Retention and Re-Acquisition Act. He filed a request for the administration of his Oath of
Allegiance to the Republic of the Philippines with the Philippine Consulate General (PCG) of Los Angeles,
California. The Los Angeles PCG issued on 19 June 2006 an Order of Approval 4 of petitioner’s request,
and on the same day, petitioner took his Oath of Allegiance to the Republic of the Philippines before Vice
Consul Edward C. Yulo. 5 On 27 September 2006, the Bureau of Immigration issued Identification
Certificate No. 06-12019 recognizing petitioner as a citizen of the Philippines. 6
Six months after, on 26 March 2007, petitioner filed his Certificate of Candidacy for the Position of Vice-
Mayor of the Municipality of Catarman, Camiguin. 7
On 2 May 2007, respondent Rogen T. Dal filed a Petition for Disqualification 8 before the COMELEC
Provincial Office in Camiguin against petitioner, arguing that the latter failed to renounce his US
citizenship, as required under Section 5(2) of Republic Act No. 9225, which reads as follows:
Section 5. Civil and Political Rights and Liabilities.–Those who retain or reacquire Philippine
xxxx
such public office as required by the Constitution and existing laws and, at the time of the filing of
the certificate of candidacy, make a personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to administer an oath.
In his Answer9 dated 6 May 2007 and Position Paper10 dated 8 May 2007, petitioner countered that his
Oath of Allegiance to the Republic of the Philippines made before the Los Angeles PCG and the oath
contained in his Certificate of Candidacy operated as an effective renunciation of his foreign citizenship.
In the meantime, the 14 May 2007 National and Local Elections were held. Petitioner garnered the
highest number of votes for the position of Vice Mayor.
On 12 June 2007, the COMELEC Second Division finally issued its Resolution11 disqualifying the
petitioner from running for the position of Vice-Mayor of Catarman, Camiguin, for failure to make the
requisite renunciation of his US citizenship. The COMELEC Second Division explained that the
reacquisition of Philippine citizenship under Republic Act No. 9225 does not automatically bestow upon
any person the privilege to run for any elective public office. It additionally ruled that the filing of a
Certificate of Candidacy cannot be considered as a renunciation of foreign citizenship. The COMELEC
Second Division did not consider Valles v. COMELEC12 and Mercado v. Manzano13 applicable to the
instant case, since Valles and Mercado were dual citizens since birth, unlike the petitioner who lost his
Filipino citizenship by means of naturalization. The COMELEC, thus, decreed in the aforementioned
Resolution that:
ACCORDINGLY, NESTOR ARES JACOT is DISQUALIFIED to run for the position of Vice-
Mayor of Catarman, Camiguin for the May 14, 2007 National and Local Elections. If proclaimed,
respondent cannot thus assume the Office of Vice-Mayor of said municipality by virtue of such
disqualification.14
Petitioner filed a Motion for Reconsideration on 29 June 2007 reiterating his position that his Oath of
Allegiance to the Republic of the Philippines before the Los Angeles PCG and his oath in his Certificate of
Candidacy sufficed as an effective renunciation of his US citizenship. Attached to the said Motion was an
"Oath of Renunciation of Allegiance to the United States and Renunciation of Any and All Foreign
Citizenship" dated 27 June 2007, wherein petitioner explicitly renounced his US citizenship.15 The
COMELEC en banc dismissed petitioner’s Motion in a Resolution16 dated 28 September 2007 for lack of
merit.
Petitioner sought remedy from this Court via the present Special Civil Action for Certiorari under Rule 65
of the Revised Rules of Court, where he presented for the first time an "Affidavit of Renunciation of
Allegiance to the United States and Any and All Foreign Citizenship"17 dated 7 February 2007. He avers
that he executed an act of renunciation of his US citizenship, separate from the Oath of Allegiance to the
Republic of the Philippines he took before the Los Angeles PCG and his filing of his Certificate of
Candidacy, thereby changing his theory of the case during the appeal. He attributes the delay in the
presentation of the affidavit to his former counsel, Atty. Marciano Aparte, who allegedly advised him that
said piece of evidence was unnecessary but who, nevertheless, made him execute an identical document
entitled "Oath of Renunciation of Allegiance to the United States and Renunciation of Any and All Foreign
Citizenship" on 27 June 2007 after he had already filed his Certificate of Candidacy. 18
Petitioner raises the following issues for resolution of this Court:
WHETHER OR NOT PUBLIC RESPONDENT EXERCISED GRAVE ABUSE OF DISCRETION

WHEN IT HELD THAT PETITIONER FAILED TO COMPLY WITH THE PROVISIONS OF R.A.
9225, OTHERWISE KNOWN AS THE "CITIZENSHIP RETENTION AND RE-ACQUISITION ACT
OF 2003," SPECIFICALLY SECTION 5(2) AS TO THE REQUIREMENTS FOR THOSE
SEEKING ELECTIVE PUBLIC OFFICE;
II
WHETHER OR NOT PUBLIC RESPONDENT EXERCISED GRAVE ABUSE OF DISCRETION

WHEN IT HELD THAT PETITIONER FAILED TO COMPLY WITH THE PROVISIONS OF THE
COMELEC RULES OF PROCEDURE AS REGARDS THE PAYMENT OF THE NECESSARY
MOTION FEES; AND
III
WHETHER OR NOT UPHOLDING THE DECISION OF PUBLIC RESPONDENT WOULD
RESULT IN THE FRUSTRATION OF THE WILL OF THE PEOPLE OF CATARMAN,
CAMIGUIN.19
The Court determines that the only fundamental issue in this case is whether petitioner is disqualified
from running as a candidate in the 14 May 2007 local elections for his failure to make a personal and
sworn renunciation of his US citizenship.
This Court finds that petitioner should indeed be disqualified.
Contrary to the assertions made by petitioner, his oath of allegiance to the Republic of the Philippines
made before the Los Angeles PCG and his Certificate of Candidacy do not substantially comply with the
requirement of a personal and sworn renunciation of foreign citizenship because these are distinct
requirements to be complied with for different purposes.
Section 3 of Republic Act No. 9225 requires that natural-born citizens of the Philippines, who are
already naturalized citizens of a foreign country, must take the following oath of allegiance to the Republic
of the Philippines to reacquire or retain their Philippine citizenship:
SEC. 3. Retention of Philippine Citizenship.–Any provision of law to the contrary notwithstanding,

"I __________ solemnly swear (or affirm) that I will support and defend the Constitution of the
Republic of the Philippines and obey the laws and legal orders promulgated by the duly
constituted authorities of the Philippines; and I hereby declare that I recognize and accept the
supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I
impose this obligation upon myself voluntarily, without mental reservation or purpose of evasion."
By the oath dictated in the afore-quoted provision, the Filipino swears allegiance to the Philippines, but
there is nothing therein on his renunciation of foreign citizenship. Precisely, a situation might arise under
Republic Act No. 9225 wherein said Filipino has dual citizenship by also reacquiring or retaining his
Philippine citizenship, despite his foreign citizenship.
The afore-quoted oath of allegiance is substantially similar to the one contained in the Certificate of
Candidacy which must be executed by any person who wishes to run for public office in Philippine
elections. Such an oath reads:
I am eligible for the office I seek to be elected. I will support and defend the Constitution of the
Philippines and will maintain true faith and allegiance thereto; that I will obey the laws, legal
orders and decrees promulgated by the duly constituted authorities of the Republic of the
Philippines; and that I impose this obligation upon myself voluntarily, without mental reservation
or purpose of evasion. I hereby certify that the facts stated herein are true and correct of my own
personal knowledge.
Now, Section 5(2) of Republic Act No. 9225 specifically provides that:
Section 5. Civil and Political Rights and Liabilities.–Those who retain or reacquire Philippine
xxxx
such public office as required by the Constitution and existing laws and, at the time of the filing of
the certificate of candidacy, make a personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to administer an oath.
The law categorically requires persons seeking elective public office, who either retained their Philippine
citizenship or those who reacquired it, to make a personal and sworn renunciation of any and all foreign
citizenship before a public officer authorized to administer an oath simultaneous with or before the filing of
the certificate of candidacy.20
Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have been
naturalized as citizens of a foreign country, but who reacquired or retained their Philippine
citizenship (1) to take the oath of allegiance under Section 3 of Republic Act No. 9225, and (2) for
those seeking elective public offices in the Philippines, to additionally execute a personal and
sworn renunciation of any and all foreign citizenship before an authorized public officer prior or
simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine
elections.
Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and sworn renunciation of any
and all foreign citizenship) requires of the Filipinos availing themselves of the benefits under the said Act
to accomplish an undertaking other than that which they have presumably complied with under Section 3
thereof (oath of allegiance to the Republic of the Philippines). This is made clear in the discussion of the
Bicameral Conference Committee on Disagreeing Provisions of House Bill No. 4720 and Senate Bill No.
2130 held on 18 August 2003 (precursors of Republic Act No. 9225), where the Hon. Chairman Franklin
Drilon and Hon. Representative Arthur Defensor explained to Hon. Representative Exequiel Javier that
the oath of allegiance is different from the renunciation of foreign citizenship:
CHAIRMAN DRILON. Okay. So, No. 2. "Those seeking elective public office in the Philippines
shall meet the qualifications for holding such public office as required by the Constitution and
existing laws and, at the time of the filing of the certificate of candidacy, make a personal and
sworn renunciation of any and all foreign citizenship before any public officer authorized to
administer an oath." I think it’s very good, ha? No problem?
REP. JAVIER. … I think it’s already covered by the oath.
CHAIRMAN DRILON. Renouncing foreign citizenship.
REP. JAVIER. Ah… but he has taken his oath already.
CHAIRMAN DRILON. No…no, renouncing foreign citizenship.
xxxx
CHAIRMAN DRILON. Can I go back to No. 2. What’s your problem, Boy? Those seeking
elective office in the Philippines.
REP. JAVIER. They are trying to make him renounce his citizenship thinking that ano…
CHAIRMAN DRILON. His American citizenship.
REP. JAVIER. To discourage him from running?
CHAIRMAN DRILON. No.
REP. A.D. DEFENSOR. No. When he runs he will only have one citizenship. When he runs
for office, he will have only one. (Emphasis ours.)
There is little doubt, therefore, that the intent of the legislators was not only for Filipinos reacquiring or
retaining their Philippine citizenship under Republic Act No. 9225 to take their oath of allegiance to the
Republic of the Philippines, but also to explicitly renounce their foreign citizenship if they wish to run for
elective posts in the Philippines. To qualify as a candidate in Philippine elections, Filipinos must only have
one citizenship, namely, Philippine citizenship.
By the same token, the oath of allegiance contained in the Certificate of Candidacy, which is substantially
similar to the one contained in Section 3 of Republic Act No. 9225, does not constitute the personal and
sworn renunciation sought under Section 5(2) of Republic Act No. 9225. It bears to emphasize that the
said oath of allegiance is a general requirement for all those who wish to run as candidates in Philippine
elections; while the renunciation of foreign citizenship is an additional requisite only for those who have
retained or reacquired Philippine citizenship under Republic Act No. 9225 and who seek elective public
posts, considering their special circumstance of having more than one citizenship.
Petitioner erroneously invokes the doctrine in Valles21 and Mercado,22 wherein the filing by a person with
dual citizenship of a certificate of candidacy, containing an oath of allegiance, was already considered a
renunciation of foreign citizenship. The ruling of this Court in Valles and Mercado is not applicable to the
present case, which is now specially governed by Republic Act No. 9225, promulgated on 29 August
2003.
In Mercado, which was cited in Valles, the disqualification of therein private respondent Manzano was
sought under another law, Section 40(d) of the Local Government Code, which reads:
SECTION 40. Disqualifications. The following persons are disqualified from running for any
elective local position:
xxxx
(d) Those with dual citizenship.
The Court in the aforesaid cases sought to define the term "dual citizenship" vis-à-vis the concept of "dual
allegiance." At the time this Court decided the cases of Valles and Mercado on 26 May 1999 and 9
August 2000, respectively, the more explicitly worded requirements of Section 5(2) of Republic Act No.
9225 were not yet enacted by our legislature.23
Lopez v. Commission on Elections24 is the more fitting precedent for this case since they both share the
same factual milieu. In Lopez, therein petitioner Lopez was a natural-born Filipino who lost his Philippine
citizenship after he became a naturalized US citizen. He later reacquired his Philippine citizenship by
virtue of Republic Act No. 9225. Thereafter, Lopez filed his candidacy for a local elective position, but
failed to make a personal and sworn renunciation of his foreign citizenship. This Court unequivocally
declared that despite having garnered the highest number of votes in the election, Lopez is nonetheless
disqualified as a candidate for a local elective position due to his failure to comply with the requirements
of Section 5(2) of Republic Act No. 9225.
Petitioner presents before this Court for the first time, in the instant Petition for Certiorari, an "Affidavit of
Renunciation of Allegiance to the United States and Any and All Foreign Citizenship," 25 which he
supposedly executed on 7 February 2007, even before he filed his Certificate of Candidacy on 26 March
2007. With the said Affidavit, petitioner puts forward in the Petition at bar a new theory of his case–that he
complied with the requirement of making a personal and sworn renunciation of his foreign citizenship
before filing his Certificate of Candidacy. This new theory constitutes a radical change from the earlier
position he took before the COMELEC–that he complied with the requirement of renunciation by his oaths
of allegiance to the Republic of the Philippines made before the Los Angeles PCG and in his Certificate of
Candidacy, and that there was no more need for a separate act of renunciation.
As a rule, no question will be entertained on appeal unless it has been raised in the proceedings below.
Points of law, theories, issues and arguments not brought to the attention of the lower court,
administrative agency or quasi-judicial body need not be considered by a reviewing court, as they cannot
be raised for the first time at that late stage. Basic considerations of fairness and due process impel this
rule.26 Courts have neither the time nor the resources to accommodate parties who chose to go to trial
haphazardly.27
Likewise, this Court does not countenance the late submission of evidence. 28 Petitioner should have
offered the Affidavit dated 7 February 2007 during the proceedings before the COMELEC.
Section 1 of Rule 43 of the COMELEC Rules of Procedure provides that "In the absence of any
applicable provisions of these Rules, the pertinent provisions of the Rules of Court in the Philippines shall
be applicable by analogy or in suppletory character and effect." Section 34 of Rule 132 of the Revised
Rules of Court categorically enjoins the admission of evidence not formally presented:
SEC. 34. Offer of evidence. - The court shall consider no evidence which has not been formally
offered. The purpose for which the evidence is offered must be specified.
Since the said Affidavit was not formally offered before the COMELEC, respondent had no opportunity to
examine and controvert it. To admit this document would be contrary to due process. 29 Additionally, the
piecemeal presentation of evidence is not in accord with orderly justice.30
The Court further notes that petitioner had already presented before the COMELEC an identical
document, "Oath of Renunciation of Allegiance to the United States and Renunciation of Any and All
Foreign Citizenship" executed on 27 June 2007, subsequent to his filing of his Certificate of Candidacy on
26 March 2007. Petitioner attached the said Oath of 27 June 2007 to his Motion for Reconsideration with
the COMELEC en banc. The COMELEC en banc eventually refused to reconsider said document for
being belatedly executed. What was extremely perplexing, not to mention suspect, was that petitioner did
not submit the Affidavit of 7 February 2007 or mention it at all in the proceedings before the COMELEC,
considering that it could have easily won his case if it was actually executed on and in existence before
the filing of his Certificate of Candidacy, in compliance with law.
The justification offered by petitioner, that his counsel had advised him against presenting this crucial
piece of evidence, is lame and unconvincing. If the Affidavit of 7 February 2007 was in existence all
along, petitioner’s counsel, and even petitioner himself, could have easily adduced it to be a crucial piece
of evidence to prove compliance with the requirements of Section 5(2) of Republic Act No. 9225. There
was no apparent danger for petitioner to submit as much evidence as possible in support of his case,
than the risk of presenting too little for which he could lose.
And even if it were true, petitioner’s excuse for the late presentation of the Affidavit of 7 February 2007
will not change the outcome of petitioner’s case.
It is a well-settled rule that a client is bound by his counsel’s conduct, negligence, and mistakes in
handling the case, and the client cannot be heard to complain that the result might have been different
had his lawyer proceeded differently.31 The only exceptions to the general rule -- that a client is bound by
the mistakes of his counsel -- which this Court finds acceptable are when the reckless or gross
negligence of counsel deprives the client of due process of law, or when the application of the rule results
in the outright deprivation of one’s property through a technicality.32 These exceptions are not attendant in
this case.
The Court cannot sustain petitioner’s averment that his counsel was grossly negligent in deciding against
the presentation of the Affidavit of 7 February 2007 during the proceedings before the COMELEC.
Mistakes of attorneys as to the competency of a witness; the sufficiency, relevancy or irrelevancy of
certain evidence; the proper defense or the burden of proof, failure to introduce evidence, to summon
witnesses and to argue the case -- unless they prejudice the client and prevent him from properly
presenting his case -- do not constitute gross incompetence or negligence, such that clients may no
longer be bound by the acts of their counsel.33
Also belying petitioner’s claim that his former counsel was grossly negligent was the fact that petitioner
continuously used his former counsel’s theory of the case. Even when the COMELEC already rendered
an adverse decision, he persistently argues even to this Court that his oaths of allegiance to the Republic
of the Philippines before the Los Angeles PCG and in his Certificate of Candidacy amount to the
renunciation of foreign citizenship which the law requires. Having asserted the same defense in the
instant Petition, petitioner only demonstrates his continued reliance on and complete belief in the position
taken by his former counsel, despite the former’s incongruous allegations that the latter has been grossly
negligent.
Petitioner himself is also guilty of negligence. If indeed he believed that his counsel was inept, petitioner
should have promptly taken action, such as discharging his counsel earlier and/or insisting on the
submission of his Affidavit of 7 February 2007 to the COMELEC, instead of waiting until a decision was
rendered disqualifying him and a resolution issued dismissing his motion for reconsideration; and,
thereupon, he could have heaped the blame on his former counsel. Petitioner could not be so easily
allowed to escape the consequences of his former counsel’s acts, because, otherwise, it would render
court proceedings indefinite, tentative, and subject to reopening at any time by the mere subterfuge of
replacing counsel. 34
Petitioner cites De Guzman v. Sandiganbayan,35 where therein petitioner De Guzman was unable to
present a piece of evidence because his lawyer proceeded to file a demurrer to evidence, despite the
Sandiganbayan’s denial of his prior leave to do so. The wrongful insistence of the lawyer in filing a
demurrer to evidence had totally deprived De Guzman of any chance to present documentary evidence in
his defense. This was certainly not the case in the Petition at bar.
Herein, petitioner was in no way deprived of due process. His counsel actively defended his suit by
attending the hearings, filing the pleadings, and presenting evidence on petitioner’s behalf. Moreover,
petitioner’s cause was not defeated by a mere technicality, but because of a mistaken reliance on a
doctrine which is not applicable to his case. A case lost due to an untenable legal position does not justify
a deviation from the rule that clients are bound by the acts and mistakes of their counsel. 36
Petitioner also makes much of the fact that he received the highest number of votes for the position of
Vice-Mayor of Catarman during the 2007 local elections. The fact that a candidate, who must comply with
the election requirements applicable to dual citizens and failed to do so, received the highest number of
votes for an elective position does not dispense with, or amount to a waiver of, such requirement. 37 The
will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they
mistakenly believed that the candidate was qualified. The rules on citizenship qualifications of a candidate
must be strictly applied. If a person seeks to serve the Republic of the Philippines, he must owe his
loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other state. 38 The
application of the constitutional and statutory provisions on disqualification is not a matter of popularity. 39
WHEREFORE, the instant appeal is DISMISSED. The Resolution dated 28 September 2007 of the
COMELEC en banc in SPA No. 07-361, affirming the Resolution dated 12 June 2007 of the COMELEC
Second Division, is AFFIRMED. Petitioner is DISQUALIFIED to run for the position of Vice-Mayor of
Catarman, Camiguin in the 14 May 2007 National and Local Elections, and if proclaimed, cannot assume
the Office of Vice-Mayor of said municipality by virtue of such disqualification. Costs against petitioner.
SO ORDERED.
107
G.R. No. 135083 May 26, 1999
ERNESTO S. MERCADO, petitioner,

vs.
EDUARDO BARRIOS MANZANO and the COMMISSION ON ELECTIONS, respondents.
MENDOZA, J.:
Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates for
vice mayor of the City of Makati in the May 11, 1998 elections. The other one was Gabriel V. Daza
III. The results of the election were as follows:
Eduardo B. Manzano 103,853
Ernesto S. Mercado 100,894
Gabriel V. Daza III 54,2751
The proclamation of private respondent was suspended in view of a pending petition for
disqualification filed by a certain Ernesto Mamaril who alleged that private respondent was not a
citizen of the Philippines but of the United States.
In its resolution, dated May 7, 1998,2 the Second Division of the COMELEC granted the petition of
Mamaril and ordered the cancellation of the certificate of candidacy of private respondent on the
ground that he is a dual citizen and, under §40(d) of the Local Government Code, persons with dual
citizenship are disqualified from running for any elective position. The COMELEC's Second Division
said:
What is presented before the Commission is a petition for disqualification of Eduardo

Barrios Manzano as candidate for the office of Vice-Mayor of Makati City in the May
11, 1998 elections. The petition is based on the ground that the respondent is an
American citizen based on the record of the Bureau of Immigration and
misrepresented himself as a natural-born Filipino citizen.
In his answer to the petition filed on April 27, 1998, the respondent admitted that he
is registered as a foreigner with the Bureau of Immigration under Alien Certificate of
Registration No. B-31632 and alleged that he is a Filipino citizen because he was
born in 1955 of a Filipino father and a Filipino mother. He was born in the United
States, San Francisco, California, September 14, 1955, and is considered in
American citizen under US Laws. But notwithstanding his registration as an
American citizen, he did not lose his Filipino citizenship.
Judging from the foregoing facts, it would appear that respondent Manzano is born a
Filipino and a US citizen. In other words, he holds dual citizenship.
The question presented is whether under our laws, he is disqualified from the
position for which he filed his certificate of candidacy. Is he eligible for the office he
seeks to be elected?
Under Section 40(d) of the Local Government Code, those holding dual citizenship
are disqualified from running for any elective local position.
WHEREFORE, the Commission hereby declares the respondent Eduardo Barrios

Manzano DISQUALIFIED as candidate for Vice-Mayor of Makati City.
On May 8, 1998, private respondent filed a motion for reconsideration.3 The motion remained
pending even until after the election held on May 11, 1998.
Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the COMELEC, the
board of canvassers tabulated the votes cast for vice mayor of Makati City but suspended the
On May 19, 1998, petitioner sought to intervene in the case for disqualification.4 Petitioner's motion
was opposed by private respondent.
The motion was not resolved. Instead, on August 31, 1998, the COMELEC en banc rendered its
resolution. Voting 4 to 1, with one commissioner abstaining, the COMELEC en banc reversed the
ruling of its Second Division and declared private respondent qualified to run for vice mayor of the
City of Makati in the May 11, 1998 elections.5 The pertinent portions of the resolution of the
COMELEC en banc read:
As aforesaid, respondent Eduardo Barrios Manzano was born in San Francisco,

California, U.S.A. He acquired US citizenship by operation of the United States
Constitution and laws under the principle ofjus soli.
He was also a natural born Filipino citizen by operation of the 1935 Philippine
Constitution, as his father and mother were Filipinos at the time of his birth. At the
age of six (6), his parents brought him to the Philippines using an American passport
as travel document. His parents also registered him as an alien with the Philippine
Bureau of Immigration. He was issued an alien certificate of registration. This,
however, did not result in the loss of his Philippine citizenship, as he did not
renounce Philippine citizenship and did not take an oath of allegiance to the United
States.
It is an undisputed fact that when respondent attained the age of majority, he

registered himself as a voter, and voted in the elections of 1992, 1995 and 1998,
which effectively renounced his US citizenship under American law. Under Philippine
law, he no longer had U.S. citizenship.
At the time of the May 11, 1998 elections, the resolution of the Second Division,
adopted on May 7, 1998, was not yet final. Respondent Manzano obtained the
highest number of votes among the candidates for vice-mayor of Makati City,
garnering one hundred three thousand eight hundred fifty three (103,853) votes over
his closest rival, Ernesto S. Mercado, who obtained one hundred thousand eight
hundred ninety four (100,894) votes, or a margin of two thousand nine hundred fifty
nine (2,959) votes. Gabriel Daza III obtained third place with fifty four thousand two
hundred seventy five (54,275) votes. In applying election laws, it would be far better
to err in favor of the popular choice than be embroiled in complex legal issues
involving private international law which may well be settled before the highest court
(Cf. Frivaldo vs. Commission on Elections, 257 SCRA 727).
WHEREFORE, the Commission en banc hereby REVERSES the resolution of the

Second Division, adopted on May 7, 1998, ordering the cancellation of the
respondent's certificate of candidacy.
We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a

candidate for the position of vice-mayor of Makati City in the May 11, 1998, elections.
ACCORDINGLY, the Commission directs the Makati City Board of Canvassers, upon
proper notice to the parties, to reconvene and proclaim the respondent Eduardo Luis
Barrios Manzano as the winning candidate for vice-mayor of Makati City.
Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on the evening of
August 31, 1998, proclaimed private respondent as vice mayor of the City of Makati.
This is a petition for certiorari seeking to set aside the aforesaid resolution of the COMELEC en
banc and to declare private respondent disqualified to hold the office of vice mayor of Makati City.
Petitioner contends that —
[T]he COMELEC en banc ERRED in holding that:
A. Under Philippine law, Manzano was no longer a U.S. citizen when he:
1. He renounced his U.S. citizenship when he attained the age of

majority when he was already 37 years old; and,
2. He renounced his U.S. citizenship when he (merely) registered

himself as a voter and voted in the elections of 1992, 1995 and 1998.
B. Manzano is qualified to run for and or hold the elective office of Vice-Mayor of the
City of Makati;
C. At the time of the May 11, 1998 elections, the resolution of the Second Division
adopted on 7 May 1998 was not yet final so that, effectively, petitioner may not be
declared the winner even assuming that Manzano is disqualified to run for and hold
the elective office of Vice-Mayor of the City of Makati.
We first consider the threshold procedural issue raised by private respondent Manzano — whether
petitioner Mercado his personality to bring this suit considering that he was not an original party in
the case for disqualification filed by Ernesto Mamaril nor was petitioner's motion for leave to
intervene granted.
I. PETITIONER'S RIGHT TO BRING THIS SUIT
Private respondent cites the following provisions of Rule 8 of the Rules of Procedure of the
COMELEC in support of his claim that petitioner has no right to intervene and, therefore, cannot
bring this suit to set aside the ruling denying his motion for intervention:
Sec. 1. When proper and when may be permitted to intervene. — Any person
allowed to initiate an action or proceeding may, before or during the trial of an action
or proceeding, be permitted by the Commission, in its discretion to intervene in such
action or proceeding, if he has legal interest in the matter in litigation, or in the
success of either of the parties, or an interest against both, or when he is so situated
as to be adversely affected by such action or proceeding.
xxx xxx xxx
Sec. 3. Discretion of Commission. — In allowing or disallowing a motion for

intervention, the Commission or the Division, in the exercise of its discretion, shall
consider whether or not the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties and whether or not the intervenor's
rights may be fully protected in a separate action or proceeding.
Private respondent argues that petitioner has neither legal interest in the matter in litigation
nor an interest to protect because he is "a defeated candidate for the vice-mayoralty post of
Makati City [who] cannot be proclaimed as the Vice-Mayor of Makati City if the private
respondent be ultimately disqualified by final and executory judgment."
The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the
proceedings before the COMELEC, there had already been a proclamation of the results of the
election for the vice mayoralty contest for Makati City, on the basis of which petitioner came out only
second to private respondent. The fact, however, is that there had been no proclamation at that time.
Certainly, petitioner had, and still has, an interest in ousting private respondent from the race at the
time he sought to intervene. The rule in Labo v. COMELEC,6 reiterated in several cases,7 only
applies to cases in which the election of the respondent is contested, and the question is whether
one who placed second to the disqualified candidate may be declared the winner. In the present
case, at the time petitioner filed a "Motion for Leave to File Intervention" on May 20, 1998, there had
been no proclamation of the winner, and petitioner's purpose was precisely to have private
respondent disqualified "from running for [an] elective local position" under §40(d) of R.A. No. 7160.
If Ernesto Mamaril (who originally instituted the disqualification proceedings), a registered voter of
Makati City, was competent to bring the action, so was petitioner since the latter was a rival
candidate for vice mayor of Makati City.
Nor is petitioner's interest in the matter in litigation any less because he filed a motion for
intervention only on May 20, 1998, after private respondent had been shown to have garnered the
highest number of votes among the candidates for vice mayor. That petitioner had a right to
intervene at that stage of the proceedings for the disqualification against private respondent is clear
from §6 of R.A. No. 6646, otherwise known as the Electoral Reform Law of 1987, which provides:
Any candidate who his been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election, the Court
or Commission shall continue with the trial and hearing of action, inquiry, or protest
and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the
evidence of guilt is strong.
Under this provision, intervention may be allowed in proceedings for disqualification even after
election if there has yet been no final judgment rendered.
The failure of the COMELEC en banc to resolve petitioner's motion for intervention was tantamount
to a denial of the motion, justifying petitioner in filing the instant petition for certiorari. As the
COMELEC en banc instead decided the merits of the case, the present petition properly deals not
only with the denial of petitioner's motion for intervention but also with the substantive issues
respecting private respondent's alleged disqualification on the ground of dual citizenship.
This brings us to the next question, namely, whether private respondent Manzano possesses dual
citizenship and, if so, whether he is disqualified from being a candidate for vice mayor of Makati City.
II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION
The disqualification of private respondent Manzano is being sought under §40 of the Local
Government Code of 1991 (R.A. No. 7160), which declares as "disqualified from running for any
elective local position: . . . (d) Those with dual citizenship." This provision is incorporated in the
Charter of the City of Makati. 8
Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General, who sides with him
in this case, contends that through §40(d) of the Local Government Code, Congress has
"command[ed] in explicit terms the ineligibility of persons possessing dual allegiance to hold local
elective office."
To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result
of the concurrent application of the different laws of two or more states, a person is simultaneously
considered a national by the said states.9 For instance, such a situation may arise when a person
whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state
which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his
part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV)
of our Constitution, it is possible for the following classes of citizens of the Philippines to possess
dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the
principle of jus soli;
(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of
their father's' country such children are citizens of that country;
(3) Those who marry aliens if by the laws of the latter's country the former are
considered citizens, unless by their act or omission they are deemed to have
renounced Philippine citizenship.
There may be other situations in which a citizen of the Philippines may, without performing any act,
be also a citizen of another state; but the above cases are clearly possible given the constitutional
provisions on citizenship.
Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by
some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance
is the result of an individual's volition.
With respect to dual allegiance, Article IV, §5 of the Constitution provides: "Dual allegiance of
citizens is inimical to the national interest and shall be dealt with by law." This provision was included
in the 1987 Constitution at the instance of Commissioner Blas F. Ople who explained its necessity
as follows: 10
. . . I want to draw attention to the fact that dual allegiance is not dual citizenship. I
have circulated a memorandum to the Bernas Committee according to which a dual
allegiance — and I reiterate a dual allegiance — is larger and more threatening than
that of mere double citizenship which is seldom intentional and, perhaps, never
insidious. That is often a function of the accident of mixed marriages or of birth on
foreign soil. And so, I do not question double citizenship at all.
What we would like the Committee to consider is to take constitutional cognizance of

the problem of dual allegiance. For example, we all know what happens in the
triennial elections of the Federation of Filipino-Chinese Chambers of Commerce
which consists of about 600 chapters all over the country. There is a Peking ticket, as
well as a Taipei ticket. Not widely known is the fact chat the Filipino-Chinese
community is represented in the Legislative Yuan of the Republic of China in Taiwan.
And until recently, sponsor might recall, in Mainland China in the People's Republic
of China, they have the Associated Legislative Council for overseas Chinese wherein
all of Southeast Asia including some European and Latin countries were
represented, which was dissolved after several years because of diplomatic friction.
At that time, the Filipino-Chinese were also represented in that Overseas Council.
When I speak of double allegiance, therefore, I speak of this unsettled kind of

allegiance of Filipinos, of citizens who are already Filipinos but who, by their acts,
may be said to be bound by a second allegiance, either to Peking or Taiwan. I also
took close note of the concern expressed by some Commissioners yesterday,
including Commissioner Villacorta, who were concerned about the lack of guarantees
of thorough assimilation, and especially Commissioner Concepcion who has always
been worried about minority claims on our natural resources.
Dull allegiance can actually siphon scarce national capital to Taiwan, Singapore,
China or Malaysia, and this is already happening. Some of the great commercial
places in downtown Taipei are Filipino-owned, owned by Filipino-Chinese — it is of
common knowledge in Manila. It can mean a tragic capital outflow when we have to
endure a capital famine which also means economic stagnation, worsening
unemployment and social unrest.
And so, this is exactly what we ask — that the Committee kindly consider
incorporating a new section, probably Section 5, in the article on Citizenship which
will read as follows: DUAL ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND
SHALL BE DEALT WITH ACCORDING TO LAW.
In another session of the Commission, Ople spoke on the problem of these citizens with dual
allegiance, thus: 11
. . . A significant number of Commissioners expressed their concern about dual

citizenship in the sense that it implies a double allegiance under a double sovereignty
which some of us who spoke then in a freewheeling debate thought would be
repugnant to the sovereignty which pervades the Constitution and to citizenship itself
which implies a uniqueness and which elsewhere in the Constitution is defined in
terms of rights and obligations exclusive to that citizenship including, of course, the
obligation to rise to the defense of the State when it is threatened, and back of this,
Commissioner Bernas, is, of course, the concern for national security. In the course
of those debates, I think some noted the fact that as a result of the wave of
naturalizations since the decision to establish diplomatic relations with the People's
Republic of China was made in 1975, a good number of these naturalized Filipinos
still routinely go to Taipei every October 10; and it is asserted that some of them do
renew their oath of allegiance to a foreign government maybe just to enter into the
spirit of the occasion when the anniversary of the Sun Yat-Sen Republic is
commemorated. And so, I have detected a genuine and deep concern about double
citizenship, with its attendant risk of double allegiance which is repugnant to our
sovereignty and national security. I appreciate what the Committee said that this
could be left to the determination of a future legislature. But considering the scale of
the problem, the real impact on the security of this country, arising from, let us say,
potentially great numbers of double citizens professing double allegiance, will the
Committee entertain a proposed amendment at the proper time that will prohibit, in
effect, or regulate double citizenship?
Clearly, in including §5 in Article IV on citizenship, the concern of the Constitutional Commission was
not with dual citizens per se but with naturalized citizens who maintain their allegiance to their
countries of origin even after their naturalization. Hence, the phrase "dual citizenship" in R.A. No.
7160, §40(d) and in R.A. No. 7854, §20 must be understood as referring to "dual allegiance."
Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those
with dual allegiance, who must, therefore, be subject to strict process with respect to the termination
of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their
certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with
dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of
different states. As Joaquin G. Bernas, one of the most perceptive members of the Constitutional
Commission, pointed out: "[D]ual citizenship is just a reality imposed on us because we have no
control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But
whether she is considered a citizen of another country is something completely beyond our
control." 12
By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other
country of which they are also citizens and thereby terminate their status as dual citizens. It may be
that, from the point of view of the foreign state and of its laws, such an individual has not effectively
renounced his foreign citizenship. That is of no moment as the following discussion on §40(d)
between Senators Enrile and Pimentel clearly shows: 13
SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page
17: "Any person with dual citizenship" is disqualified to run for any elective local
position. Under the present Constitution, Mr. President, someone whose mother is a
citizen of the Philippines but his father is a foreigner is a natural-born citizen of the
Republic. There is no requirement that such a natural born citizen, upon reaching the
age of majority, must elect or give up Philippine citizenship.
On the assumption that this person would carry two passports, one belonging to the
country of his or her father and one belonging to the Republic of the Philippines, may
such a situation disqualify the person to run for a local government position?
SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment
when he would want to run for public office, he has to repudiate one of his
citizenships.
SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of
origin or the country of the father claims that person, nevertheless, as a citizen? No
one can renounce. There are such countries in the world.
SENATOR PIMENTEL. Well, the very fact that he is running for public office would,
in effect, be an election for him of his desire to be considered as a Filipino citizen.
SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require
an election. Under the Constitution, a person whose mother is a citizen of the
Philippines is, at birth, a citizen without any overt act to claim the citizenship.
SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the
Gentleman's example, if he does not renounce his other citizenship, then he is
opening himself to question. So, if he is really interested to run, the first thing he
should do is to say in the Certificate of Candidacy that: "I am a Filipino citizen, and I
have only one citizenship."
SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr.
President. He will always have one citizenship, and that is the citizenship invested
upon him or her in the Constitution of the Republic.
SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will
prove that he also acknowledges other citizenships, then he will probably fall under
this disqualification.
This is similar to the requirement that an applicant for naturalization must renounce "all allegiance
and fidelity to any foreign prince, potentate, state, or sovereignty" 14 of which at the time he is a
subject or citizen before he can be issued a certificate of naturalization as a citizen of the
Philippines. In Parado v. Republic, 15 it was held:
[W]hen a person applying for citizenship by naturalization takes an oath that he

renounce, his loyalty to any other country or government and solemnly declares that
he owes his allegiance to the Republic of the Philippines, the condition imposed by
law is satisfied and compiled with. The determination whether such renunciation is
valid or fully complies with the provisions of our Naturalization Law lies within the
province and is an exclusive prerogative of our courts. The latter should apply the
law duly enacted by the legislative department of the Republic. No foreign law may or
should interfere with its operation and application. If the requirement of the Chinese
Law of Nationality were to be read into our Naturalization Law, we would be applying
not what our legislative department has deemed it wise to require, but what a foreign
government has thought or intended to exact. That, of course, is absurd. It must be
resisted by all means and at all cost. It would be a brazen encroachment upon the
sovereign will and power of the people of this Republic.
III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP
The record shows that private respondent was born in San Francisco, California on September 4,
1955, of Filipino parents. Since the Philippines adheres to the principle of jus sanguinis, while the
United States follows the doctrine of jus soli, the parties agree that, at birth at least, he was a
national both of the Philippines and of the United States. However, the COMELEC en banc held that,
by participating in Philippine elections in 1992, 1995, and 1998, private respondent "effectively
renounced his U.S. citizenship under American law," so that now he is solely a Philippine national.
Petitioner challenges this ruling. He argues that merely taking part in Philippine elections is not
sufficient evidence of renunciation and that, in any event, as the alleged renunciation was made
when private respondent was already 37 years old, it was ineffective as it should have been made
when he reached the age of majority.
In holding that by voting in Philippine elections private respondent renounced his American
citizenship, the COMELEC must have in mind §349 of the Immigration and Nationality Act of the
United States, which provided that "A person who is a national of the United States, whether by birth
or naturalization, shall lose his nationality by: . . . (e) Voting in a political election in a foreign state or
participating in an election or plebiscite to determine the sovereignty over foreign territory." To be
sure this provision was declared unconstitutional by the U.S. Supreme Court in Afroyim v. Rusk 16 as
beyond the power given to the U.S. Congress to regulate foreign relations. However, by filing a
certificate of candidacy when he ran for his present post, private respondent elected Philippine
citizenship and in effect renounced his American citizenship. Private respondent's certificate of
candidacy, filed on March 27, 1998, contained the following statements made under oath:
6. I AM A FILIPINO CITIZEN (STATE IF "NATURAL-BORN" OR

"NATURALIZED") NATURAL-BORN
xxx xxx xxx
10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN

LORENZO, CITY/MUNICIPALITY OF MAKATI, PROVINCE OF NCR.
11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN

COUNTRY.
12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL SUPPORT

AND DEFEND THE CONSTITUTION OF THE PHILIPPINES AND WILL MAINTAIN
TRUE FAITH AND ALLEGIANCE THERETO; THAT I WILL OBEY THE LAWS,
LEGAL ORDERS AND DECREES PROMULGATED BY THE DULY CONSTITUTED
AUTHORITIES OF THE REPUBLIC OF THE PHILIPPINES; AND THAT I IMPOSE
THIS OBLIGATION UPON MYSELF VOLUNTARILY, WITHOUT MENTAL
RESERVATION OR PURPOSE OF EVASION. I HEREBY CERTIFY THAT THE
FACTS STATED HEREIN ARE TRUE AND CORRECT OF MY OWN PERSONAL
KNOWLEDGE.
The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively
removing any disqualification he might have as a dual citizen. Thus, in Frivaldo v. COMELEC it was
held: 17
It is not disputed that on January 20, 1983 Frivaldo became an American. Would the
retroactivity of his repatriation not effectively give him dual citizenship, which under
Sec. 40 of the Local Government Code would disqualify him "from running for any
elective local position?" We answer this question in the negative, as there is cogent
reason to hold that Frivaldo was really STATELESS at the time he took said oath of
allegiance and even before that, when he ran for governor in 1988. In his Comment,
Frivaldo wrote that he "had long renounced and had long abandoned his American
citizenship — long before May 8, 1995. At best, Frivaldo was stateless in the interim
— when he abandoned and renounced his US citizenship but before he was
repatriated to his Filipino citizenship."
On this point, we quote from the assailed Resolution dated December 19, 1995:
By the laws of the United States, petitioner Frivaldo lost his American
citizenship when he took his oath of allegiance to the Philippine
Government when he ran for Governor in 1988, in 1992, and in 1995.
Every certificate of candidacy contains an oath of allegiance to the
Philippine Government.
These factual findings that Frivaldo has lost his foreign nationality long before the
elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic
that such findings of the Commission are conclusive upon this Court, absent any
showing of capriciousness or arbitrariness or abuse.
There is, therefore, no merit in petitioner's contention that the oath of allegiance contained in private
respondent's certificate of candidacy is insufficient to constitute renunciation that, to be effective,
such renunciation should have been made upon private respondent reaching the age of majority
since no law requires the election of Philippine citizenship to be made upon majority age.
Finally, much is made of the fact that private respondent admitted that he is registered as an
American citizen in the Bureau of Immigration and Deportation and that he holds an American
passport which he used in his last travel to the United States on April 22, 1997. There is no merit in
this. Until the filing of his certificate of candidacy on March 21, 1998, he had dual citizenship. The
acts attributed to him can be considered simply as the assertion of his American nationality before
the termination of his American citizenship. What this Court said in Aznar
v. COMELEC 18 applies mutatis mundatis to private respondent in the case at bar:
. . . Considering the fact that admittedly Osmeña was both a Filipino and an
American, the mere fact that he has a Certificate staring he is an American does not
mean that he is not still a Filipino. . . . [T]he Certification that he is an American does
not mean that he is not still a Filipino, possessed as he is, of both nationalities or
citizenships. Indeed, there is no express renunciation here of Philippine citizenship;
truth to tell, there is even no implied renunciation of said citizenship. When We
consider that the renunciation needed to lose Philippine citizenship must be
"express," it stands to reason that there can be no such loss of Philippine citizenship
when there is no renunciation, either "express" or "implied."
To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a
permanent resident or immigrant of another country; that he will defend and support the Constitution
of the Philippines and bear true faith and allegiance thereto and that he does so without mental
reservation, private respondent has, as far as the laws of this country are concerned, effectively
repudiated his American citizenship and anything which he may have said before as a dual citizen.
On the other hand, private respondent's oath of allegiance to the Philippines, when considered with
the fact that he has spent his youth and adulthood, received his education, practiced his profession
as an artist, and taken part in past elections in this country, leaves no doubt of his election of
Philippine citizenship.
His declarations will be taken upon the faith that he will fulfill his undertaking made under oath.
Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine
citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-Santiago, 19 we
sustained the denial of entry into the country of petitioner on the ground that, after taking his oath as
a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in
commercial documents executed abroad that he was a Portuguese national. A similar sanction can
be taken against any one who, in electing Philippine citizenship, renounces his foreign nationality,
but subsequently does some act constituting renunciation of his Philippine citizenship.
WHEREFORE, the petition for certiorari is DISMISSED for lack of merit. 1âwphi1.nêt
SO ORDERED.
108
G.R. No. 161434 March 3, 2004
MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR., petitioners,

vs.
The COMMISSION ON ELECTIONS, RONALD ALLAN KELLY POE (a.k.a. FERNANDO POE,
JR.) and VICTORINO X. FORNIER, respondents.
x-----------------------------x
G.R. No. 161634 March 3, 2004
ZOILO ANTONIO VELEZ, petitioner,

vs.
RONALD ALLAN KELLEY POE, a.k.a. FERNANDO POE, JR., respondent.
x-----------------------------x
G. R. No. 161824 March 3, 2004
VICTORINO X. FORNIER, petitioner,

vs.
HON. COMMISSION ON ELECTIONS and RONALD ALLAN KELLEY POE, ALSO KNOWN AS
FERNANDO POE JR., respondents.
DECISION
VITUG, J.:
Citizenship is a treasured right conferred on those whom the state believes are deserving of
the privilege. It is a "precious heritage, as well as an inestimable acquisition,"1 that cannot be
taken lightly by anyone - either by those who enjoy it or by those who dispute it.
Before the Court are three consolidated cases, all of which raise a single question of profound
importance to the nation. The issue of citizenship is brought up to challenge the qualifications of a
presidential candidate to hold the highest office of the land. Our people are waiting for the judgment
of the Court with bated breath. Is Fernando Poe, Jr., the hero of silver screen, and now one of the
main contenders for the presidency, a natural-born Filipino or is he not?
The moment of introspection takes us face to face with Spanish and American colonial roots and
reminds us of the rich heritage of civil law and common law traditions, the fusion resulting in a hybrid
of laws and jurisprudence that could be no less than distinctly Filipino.
Antecedent Case Settings
On 31 December 2003, respondent Ronald Allan Kelly Poe, also known as Fernando Poe, Jr.
(hereinafter "FPJ"), filed his certificate of candidacy for the position of President of the Republic of
the Philippines under the Koalisyon ng Nagkakaisang Pilipino (KNP) Party, in the forthcoming
national elections. In his certificate of candidacy, FPJ, representing himself to be a natural-born
citizen of the Philippines, stated his name to be "Fernando Jr.," or "Ronald Allan" Poe, his date of
birth to be 20 August 1939 and his place of birth to be Manila.
Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus
Hon. Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr.,
Respondents," initiated, on 09 January 2004, a petition docketed SPA No. 04-003 before the
Commission on Elections ("COMELEC") to disqualify FPJ and to deny due course or to cancel his
certificate of candidacy upon the thesis that FPJ made a material misrepresentation in his certificate
of candidacy by claiming to be a natural-born Filipino citizen when in truth, according to Fornier, his
parents were foreigners; his mother, Bessie Kelley Poe, was an American, and his father, Allan Poe,
was a Spanish national, being the son of Lorenzo Pou, a Spanish subject. Granting, petitioner
asseverated, that Allan F. Poe was a Filipino citizen, he could not have transmitted his Filipino
citizenship to FPJ, the latter being an illegitimate child of an alien mother. Petitioner based the
allegation of the illegitimate birth of respondent on two assertions - first, Allan F. Poe contracted a
prior marriage to a certain Paulita Gomez before his marriage to Bessie Kelley and, second, even if
no such prior marriage had existed, Allan F. Poe, married Bessie Kelly only a year after the birth of
respondent.
In the hearing before the Third Division of the COMELEC on 19 January 2004, petitioner, in support
of his claim, presented several documentary exhibits - 1) a copy of the certificate of birth of FPJ, 2) a
certified photocopy of an affidavit executed in Spanish by Paulita Poe y Gomez attesting to her
having filed a case for bigamy and concubinage against the father of respondent, Allan F. Poe, after
discovering his bigamous relationship with Bessie Kelley, 3) an English translation of the affidavit
aforesaid, 4) a certified photocopy of the certificate of birth of Allan F. Poe, 5) a certification issued
by the Director of the Records Management and Archives Office, attesting to the fact that there was
no record in the National Archives that a Lorenzo Poe or Lorenzo Pou resided or entered the
Philippines before 1907, and 6) a certification from the Officer-In-Charge of the Archives Division of
the National Archives to the effect that no available information could be found in the files of the
National Archives regarding the birth of Allan F. Poe.
On his part, respondent, presented twenty-two documentary pieces of evidence, the more significant
ones being - a) a certification issued by Estrella M. Domingo of the Archives Division of the National
Archives that there appeared to be no available information regarding the birth of Allan F. Poe in the
registry of births for San Carlos, Pangasinan, b) a certification issued by the Officer-In-Charge of the
Archives Division of the National Archives that no available information about the marriage of Allan
F. Poe and Paulita Gomez could be found, c) a certificate of birth of Ronald Allan Poe, d) Original
Certificate of Title No. P-2247 of the Registry of Deeds for the Province of Pangasinan, in the name
of Lorenzo Pou, e) copies of Tax Declaration No. 20844, No. 20643, No. 23477 and No. 23478 in
the name of Lorenzo Pou, f) a copy of the certificate of death of Lorenzo Pou, g) a copy of the
purported marriage contract between Fernando Pou and Bessie Kelley, and h) a certification issued
by the City Civil Registrar of San Carlos City, Pangasinan, stating that the records of birth in the said
office during the period of from 1900 until May 1946 were totally destroyed during World War II.
On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack of merit. Three days later,
or on 26 January 2004, Fornier filed his motion for reconsideration. The motion was denied on 06
February 2004 by the COMELEC en banc. On 10 February 2004, petitioner assailed the decision of
the COMELEC before this Court conformably with Rule 64, in relation to Rule 65, of the Revised
Rules of Civil Procedure. The petition, docketed G. R. No. 161824, likewise prayed for a temporary
restraining order, a writ of preliminary injunction or any other resolution that would stay the finality
and/or execution of the COMELEC resolutions.
The other petitions, later consolidated with G. R. No. 161824, would include G. R. No. 161434,
entitled "Maria Jeanette C. Tecson, and Felix B. Desiderio, Jr., vs. The Commission on Elections,
Ronald Allan Kelley Poe (a.k.a. ‘Fernando Poe, Jr.’), and Victorino X. Fornier," and the other,
docketed G. R. No. 161634, entitled "Zoilo Antonio G. Velez, vs. Ronald Allan Kelley Poe, a.k.a.
Fernando Poe, Jr.," both challenging the jurisdiction of the COMELEC and asserting that, under
Article VII, Section 4, paragraph 7, of the 1987 Constitution, only the Supreme Court had original
and exclusive jurisdiction to resolve the basic issue on the case.
Jurisdiction of the Court
In G. R. No. 161824
In seeking the disqualification of the candidacy of FPJ and to have the COMELEC deny due course
to or cancel FPJ’s certificate of candidacy for alleged misrepresentation of a material fact (i.e., that
FPJ was a natural-born citizen) before the COMELEC, petitioner Fornier invoked Section 78 of the
Omnibus Election Code –
"Section 78. Petition to deny due course to or cancel a certificate of candidacy. --- A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by
any person exclusively on the ground that any material representation contained therein as
required under Section 74 hereof is false" –
in consonance with the general powers of COMELEC expressed in Section 52 of the Omnibus
Election Code -
"Section 52. Powers and functions of the Commission on Elections. In addition to the powers
and functions conferred upon it by the Constitution, the Commission shall have exclusive
charge of the enforcement and administration of all laws relative to the conduct of elections
for the purpose of ensuring free, orderly and honest elections" -
and in relation to Article 69 of the Omnibus Election Code which would authorize "any
interested party" to file a verified petition to deny or cancel the certificate of candidacy of any
nuisance candidate.
Decisions of the COMELEC on disqualification cases may be reviewed by the Supreme Court per
Rule 642 in an action for certiorari under Rule 653 of the Revised Rules of Civil Procedure. Section 7,
Article IX, of the 1987 Constitution also reads –
"Each Commission shall decide by a majority vote of all its Members any case or matter
brought before it within sixty days from the date of its submission for decision or resolution. A
case or matter is deemed submitted for decision or resolution upon the filing of the last
pleading, brief, or memorandum, required by the rules of the Commission or by the
Commission itself. Unless otherwise provided by this Constitution or by law, any decision,
order, or ruling of each Commission may be brought to the Supreme Court on certiorari by
the aggrieved party within thirty days from receipt of a copy thereof."
Additionally, Section 1, Article VIII, of the same Constitution provides that judicial power is vested in
one Supreme Court and in such lower courts as may be established by law which power "includes
the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
the Government."
It is sufficiently clear that the petition brought up in G. R. No. 161824 was aptly elevated to, and
could well be taken cognizance of by, this Court. A contrary view could be a gross denial to our
people of their fundamental right to be fully informed, and to make a proper choice, on who could or
should be elected to occupy the highest government post in the land.
In G. R. No. 161434 and G. R. No. 161634
Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G. R. No. 161634, invoke the
provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the jurisdiction
of the COMELEC when it took cognizance of SPA No. 04-003 and in urging the Supreme Court to
instead take on the petitions they directly instituted before it. The Constitutional provision cited
reads:
"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the
election, returns, and qualifications of the President or Vice-President, and may promulgate
its rules for the purpose."
The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973
Constitution to designate any tribunal to be the sole judge of presidential and vice-presidential
contests, has constrained this Court to declare, in Lopez vs. Roxas,4 as "not (being) justiciable"
controversies or disputes involving contests on the elections, returns and qualifications of the
President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to enact
Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal to Try,
Hear and Decide Protests Contesting the Election of the President-Elect and the Vice-President-
Elect of the Philippines and Providing for the Manner of Hearing the Same." Republic Act 1793
designated the Chief Justice and the Associate Justices of the Supreme Court to be the members of
the tribunal. Although the subsequent adoption of the parliamentary form of government under the
1973 Constitution might have implicitly affected Republic Act No. 1793, the statutory set-up,
nonetheless, would now be deemed revived under the present Section 4, paragraph 7, of the 1987
Constitution.
Ordinary usage would characterize a "contest" in reference to a post-election scenario. Election

contests consist of either an election protest or a quo warranto which, although two distinct
remedies, would have one objective in view, i.e., to dislodge the winning candidate from office. A
perusal of the phraseology in Rule 12, Rule 13, and Rule 14 of the "Rules of the Presidential
Electoral Tribunal," promulgated by the Supreme Court en banc on 18 April 1992, would support this
premise -
"Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of all contests relating to the
election, returns, and qualifications of the President or Vice-President of the Philippines.
"Rule 13. How Initiated. - An election contest is initiated by the filing of an election protest or
a petition for quo warranto against the President or Vice-President. An election protest shall
not include a petition for quo warranto. A petition for quo warranto shall not include an
election protest.
"Rule 14. Election Protest. - Only the registered candidate for President or for Vice-President
of the Philippines who received the second or third highest number of votes may contest the
election of the President or the Vice-President, as the case may be, by filing a verified
petition with the Clerk of the Presidential Electoral Tribunal within thirty (30) days after the
proclamation of the winner."
The rules categorically speak of the jurisdiction of the tribunal over contests relating to the election,
returns and qualifications of the "President" or "Vice-President", of the Philippines, and not of
"candidates" for President or Vice-President. A quo warranto proceeding is generally defined as
being an action against a person who usurps, intrudes into, or unlawfully holds or exercises a public
office.5 In such context, the election contest can only contemplate a post-election scenario. In Rule
14, only a registered candidate who would have received either the second or third highest number
of votes could file an election protest. This rule again presupposes a post-election scenario.
It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4, paragraph 7, of
the 1987 Constitution, would not include cases directly brought before it, questioning the
qualifications of a candidate for the presidency or vice-presidency before the elections are held.
Accordingly, G. R. No. 161434, entitled "Maria Jeanette C. Tecson, et al., vs. Commission on
Elections et al.," and G. R. No. 161634, entitled "Zoilo Antonio Velez vs. Ronald Allan Kelley Poe
a.k.a. Fernando Poe, Jr." would have to be dismissed for want of jurisdiction.
The Citizenship Issue
Now, to the basic issue; it should be helpful to first give a brief historical background on the concept
of citizenship.
Perhaps, the earliest understanding of citizenship was that given by Aristotle, who, sometime in 384
to 322 B.C., described the "citizen" to refer to a man who shared in the administration of justice and
in the holding of an office.6Aristotle saw its significance if only to determine the constituency of the
"State," which he described as being composed of such persons who would be adequate in number
to achieve a self-sufficient existence.7 The concept grew to include one who would both govern and
be governed, for which qualifications like autonomy, judgment and loyalty could be expected.
Citizenship was seen to deal with rights and entitlements, on the one hand, and with concomitant
obligations, on the other.8 In its ideal setting, a citizen was active in public life and fundamentally
willing to submit his private interests to the general interest of society.
The concept of citizenship had undergone changes over the centuries. In the 18th century, the
concept was limited, by and large, to civil citizenship, which established the rights necessary for
individual freedom, such as rights to property, personal liberty and justice.9 Its meaning expanded
during the 19th century to include political citizenship, which encompassed the right to participate in
the exercise of political power.10 The 20th century saw the next stage of the development of social
citizenship, which laid emphasis on the right of the citizen to economic well-being and social
security.11 The idea of citizenship has gained expression in the modern welfare state as it so
developed in Western Europe. An ongoing and final stage of development, in keeping with the
rapidly shrinking global village, might well be the internationalization of citizenship.12
The Local Setting - from Spanish Times to the Present
There was no such term as "Philippine citizens" during the Spanish regime but "subjects of Spain" or
"Spanish subjects."13 In church records, the natives were called 'indios', denoting a low regard for the
inhabitants of the archipelago. Spanish laws on citizenship became highly codified during the 19th
century but their sheer number made it difficult to point to one comprehensive law. Not all of these
citizenship laws of Spain however, were made to apply to the Philippine Islands except for those
explicitly extended by Royal Decrees.14
Spanish laws on citizenship were traced back to the Novisima Recopilacion, promulgated in Spain
on 16 July 1805 but as to whether the law was extended to the Philippines remained to be the
subject of differing views among experts;15 however, three royal decrees were undisputably made
applicable to Spaniards in the Philippines - the Order de la Regencia of 14 August 1841,16 the Royal
Decree of 23 August 1868 specifically defining the political status of children born in the Philippine
Islands,17 and finally, the Ley Extranjera de Ultramar of 04 July 1870, which was expressly made
applicable to the Philippines by the Royal Decree of 13 July 1870.18
The Spanish Constitution of 1876 was never extended to the Philippine Islands because of the
express mandate of its Article 89, according to which the provisions of the Ultramar among which
this country was included, would be governed by special laws.19
It was only the Civil Code of Spain, made effective in this jurisdiction on 18 December 1889, which
came out with the first categorical enumeration of who were Spanish citizens. -
"(a) Persons born in Spanish territory,
"(b) Children of a Spanish father or mother, even if they were born outside of Spain,
"(c) Foreigners who have obtained naturalization papers,
"(d) Those who, without such papers, may have become domiciled inhabitants of any town of
the Monarchy."20
The year 1898 was another turning point in Philippine history. Already in the state of decline as a
superpower, Spain was forced to so cede her sole colony in the East to an upcoming world power,
the United States. An accepted principle of international law dictated that a change in sovereignty,
while resulting in an abrogation of all political laws then in force, would have no effect on civil laws,
which would remain virtually intact.
The Treaty of Paris was entered into on 10 December 1898 between Spain and the United
States.21 Under Article IX of the treaty, the civil rights and political status of the native inhabitants of
the territories ceded to the United States would be determined by its Congress -
"Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the
present treaty relinquishes or cedes her sovereignty may remain in such territory or may
remove therefrom, retaining in either event all their rights of property, including the right to
sell or dispose of such property or of its proceeds; and they shall also have the right to carry
on their industry, commerce, and professions, being subject in respect thereof to such laws
as are applicable to foreigners. In case they remain in the territory they may preserve their
allegiance to the Crown of Spain by making, before a court of record, within a year from the
date of the exchange of ratifications of this treaty, a declaration of their decision to preserve
such allegiance; in default of which declaration they shall be held to have renounced it and to
have adopted the nationality of the territory in which they reside.
Thus –
"The civil rights and political status of the native inhabitants of the territories hereby ceded to
the United States shall be determined by the Congress."22
Upon the ratification of the treaty, and pending legislation by the United States Congress on the
subject, the native inhabitants of the Philippines ceased to be Spanish subjects. Although they did
not become American citizens, they, however, also ceased to be "aliens" under American laws and
were thus issued passports describing them to be citizens of the Philippines entitled to the protection
of the United States.
The term "citizens of the Philippine Islands" appeared for the first time in the Philippine Bill of 1902,
also commonly referred to as the Philippine Organic Act of 1902, the first comprehensive legislation
of the Congress of the United States on the Philippines -
".... that all inhabitants of the Philippine Islands continuing to reside therein, who were
Spanish subjects on the 11th day of April, 1891, and then resided in said Islands, and their
children born subsequent thereto, shall be deemed and held to be citizens of the Philippine
Islands and as such entitled to the protection of the United States, except such as shall have
elected to preserve their allegiance to the Crown of Spain in accordance with the provisions
of the treaty of peace between the United States and Spain, signed at Paris, December tenth
eighteen hundred and ninety eight."23
Under the organic act, a "citizen of the Philippines" was one who was an inhabitant of the
Philippines, and a Spanish subject on the 11th day of April 1899. The term "inhabitant" was taken to
include 1) a native-born inhabitant, 2) an inhabitant who was a native of Peninsular Spain, and 3) an
inhabitant who obtained Spanish papers on or before 11 April 1899.24
Controversy arose on to the status of children born in the Philippines from 11 April 1899 to 01 July
1902, during which period no citizenship law was extant in the Philippines. Weight was given to the
view, articulated in jurisprudential writing at the time, that the common law principle of jus soli,
otherwise also known as the principle of territoriality, operative in the United States and England,
governed those born in the Philippine Archipelago within that period.25 More about this later.
In 23 March 1912, the Congress of the United States made the following amendment to the
Philippine Bill of 1902 -
"Provided, That the Philippine Legislature is hereby authorized to provide by law for the
acquisition of Philippine citizenship by those natives of the Philippine Islands who do not
come within the foregoing provisions, the natives of other insular possession of the United
States, and such other persons residing in the Philippine Islands who would become citizens
of the United States, under the laws of the United States, if residing therein."26
With the adoption of the Philippine Bill of 1902, the concept of "Philippine citizens" had for the first
time crystallized. The word "Filipino" was used by William H. Taft, the first Civil Governor General in
the Philippines when he initially made mention of it in his slogan, "The Philippines for the Filipinos."
In 1916, the Philippine Autonomy Act, also known as the Jones Law restated virtually the provisions
of the Philippine Bill of 1902, as so amended by the Act of Congress in 1912 -
"That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day
of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their
children born subsequently thereto, shall be deemed and held to be citizens of the Philippine
Islands, except such as shall have elected to preserve their allegiance to the Crown of Spain
in accordance with the provisions of the treaty of peace between the United States and
Spain, signed at Paris December tenth, eighteen hundred and ninety-eight and except such
others as have since become citizens of some other country; Provided, That the Philippine
Legislature, herein provided for, is hereby authorized to provide for the acquisition of
Philippine citizenship by those natives of the Philippine Islands who do not come within the
foregoing provisions, the natives of the insular possessions of the United States, and such
other persons residing in the Philippine Islands who are citizens of the United States, or who
could become citizens of the United States under the laws of the United States, if residing
therein."
Under the Jones Law, a native-born inhabitant of the Philippines was deemed to be a citizen of the
Philippines as of 11 April 1899 if he was 1) a subject of Spain on 11 April 1899, 2) residing in the
Philippines on said date, and, 3) since that date, not a citizen of some other country.
While there was, at one brief time, divergent views on whether or not jus soli was a mode of
acquiring citizenship, the 1935 Constitution brought to an end to any such link with common law, by
adopting, once and for all, jus sanguinis or blood relationship as being the basis of Filipino
citizenship -
"Section 1, Article III, 1935 Constitution. The following are citizens of the Philippines -
"(1) Those who are citizens of the Philippine Islands at the time of the adoption of this
Constitution
"(2) Those born in the Philippines Islands of foreign parents who, before the adoption of this
Constitution, had been elected to public office in the Philippine Islands.
"(3) Those whose fathers are citizens of the Philippines.
"(4) Those whose mothers are citizens of the Philippines and upon reaching the age of
majority, elect Philippine citizenship.
"(5) Those who are naturalized in accordance with law."
Subsection (4), Article III, of the 1935 Constitution, taken together with existing civil law provisions at
the time, which provided that women would automatically lose their Filipino citizenship and acquire
that of their foreign husbands, resulted in discriminatory situations that effectively incapacitated the
women from transmitting their Filipino citizenship to their legitimate children and required illegitimate
children of Filipino mothers to still elect Filipino citizenship upon reaching the age of majority.
Seeking to correct this anomaly, as well as fully cognizant of the newly found status of Filipino
women as equals to men, the framers of the 1973 Constitution crafted the provisions of the new
Constitution on citizenship to reflect such concerns -
"Section 1, Article III, 1973 Constitution - The following are citizens of the Philippines:
"(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution.
"(2) Those whose fathers or mothers are citizens of the Philippines.
"(3) Those who elect Philippine citizenship pursuant to the provisions of the Constitution of
nineteen hundred and thirty-five.
For good measure, Section 2 of the same article also further provided that –
"A female citizen of the Philippines who marries an alien retains her Philippine citizenship,
unless by her act or omission she is deemed, under the law to have renounced her
citizenship."
The 1987 Constitution generally adopted the provisions of the 1973 Constitution, except for
subsection (3) thereof that aimed to correct the irregular situation generated by the questionable
proviso in the 1935 Constitution.
Section I, Article IV, 1987 Constitution now provides:
"The following are citizens of the Philippines:
"(1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution.
"(2) Those whose fathers or mothers are citizens of the Philippines.
"(3) Those born before January 17, 1973 of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority; and
The Case Of FPJ
Section 2, Article VII, of the 1987 Constitution expresses:
"No person may be elected President unless he is a natural-born citizen of the Philippines, a
registered voter, able to read and write, at least forty years of age on the day of the election,
and a resident of the Philippines for at least ten years immediately preceding such election."
The term "natural-born citizens," is defined to include "those who are citizens of the Philippines from
birth without having to perform any act to acquire or perfect their Philippine citizenship."27
The date, month and year of birth of FPJ appeared to be 20 August 1939 during the regime of the
1935 Constitution. Through its history, four modes of acquiring citizenship - naturalization, jus soli,
res judicata and jus sanguinis28 – had been in vogue. Only two, i.e., jus soli and jus sanguinis, could
qualify a person to being a "natural-born" citizen of the Philippines. Jus soli, per Roa vs. Collector of
Customs29 (1912), did not last long. With the adoption of the 1935 Constitution and the reversal of
Roa in Tan Chong vs. Secretary of Labor30 (1947), jus sanguinis or blood relationship would now
become the primary basis of citizenship by birth.
Documentary evidence adduced by petitioner would tend to indicate that the earliest established
direct ascendant of FPJ was his paternal grandfather Lorenzo Pou, married to Marta Reyes, the
father of Allan F. Poe. While the record of birth of Lorenzo Pou had not been presented in evidence,
his death certificate, however, identified him to be a Filipino, a resident of San Carlos, Pangasinan,
and 84 years old at the time of his death on 11 September 1954. The certificate of birth of the father
of FPJ, Allan F. Poe, showed that he was born on 17 May 1915 to an Español father, Lorenzo Pou,
and a mestiza Español mother, Marta Reyes. Introduced by petitioner was an "uncertified" copy of a
supposed certificate of the alleged marriage of Allan F. Poe and Paulita Gomez on 05 July 1936.
The marriage certificate of Allan F. Poe and Bessie Kelley reflected the date of their marriage to be
on 16 September 1940. In the same certificate, Allan F. Poe was stated to be twenty-five years old,
unmarried, and a Filipino citizen, and Bessie Kelley to be twenty-two years old, unmarried, and an
American citizen. The birth certificate of FPJ, would disclose that he was born on 20 August 1939 to
Allan F. Poe, a Filipino, twenty-four years old, married to Bessie Kelly, an American citizen, twenty-
one years old and married.
Considering the reservations made by the parties on the veracity of some of the entries on the birth
certificate of respondent and the marriage certificate of his parents, the only conclusions that could
be drawn with some degree of certainty from the documents would be that -
1. The parents of FPJ were Allan F. Poe and Bessie Kelley;
2. FPJ was born to them on 20 August 1939;
3. Allan F. Poe and Bessie Kelley were married to each other on 16 September, 1940;
4. The father of Allan F. Poe was Lorenzo Poe; and
5. At the time of his death on 11 September 1954, Lorenzo Poe was 84 years old.
Would the above facts be sufficient or insufficient to establish the fact that FPJ is a natural-born
Filipino citizen? The marriage certificate of Allan F. Poe and Bessie Kelley, the birth certificate of
FPJ, and the death certificate of Lorenzo Pou are documents of public record in the custody of a
public officer. The documents have been submitted in evidence by both contending parties during
the proceedings before the COMELEC.
The birth certificate of FPJ was marked Exhibit "A" for petitioner and Exhibit "3" for respondent. The
marriage certificate of Allan F. Poe to Bessie Kelley was submitted as Exhibit "21" for respondent.
The death certificate of Lorenzo Pou was submitted by respondent as his Exhibit "5." While the last
two documents were submitted in evidence for respondent, the admissibility thereof, particularly in
reference to the facts which they purported to show, i.e., the marriage certificate in relation to the
date of marriage of Allan F. Poe to Bessie Kelley and the death certificate relative to the death of
Lorenzo Pou on 11 September 1954 in San Carlos, Pangasinan, were all admitted by petitioner, who
had utilized those material statements in his argument. All three documents were certified true
copies of the originals.
Section 3, Rule 130, Rules of Court states that -

"Original document must be produced; exceptions. - When the subject of inquiry is the
contents of a document, no evidence shall be admissible other than the original document
itself, except in the following cases:
"x x x xxx xxx
"(d) When the original is a public record in the custody of a public office or is recorded in a
public office."
Being public documents, the death certificate of Lorenzo Pou, the marriage certificate of Allan F. Poe
and Bessie Kelly, and the birth certificate of FPJ, constitute prima facie proof of their contents.
Section 44, Rule 130, of the Rules of Court provides:
"Entries in official records. Entries in official records made in the performance of his duty by a
public officer of the Philippines, or by a person in the performance of a duty specially
enjoined by law, are prima facie evidence of the facts therein stated."
The trustworthiness of public documents and the value given to the entries made therein could be
grounded on 1) the sense of official duty in the preparation of the statement made, 2) the penalty
which is usually affixed to a breach of that duty, 3) the routine and disinterested origin of most such
statements, and 4) the publicity of record which makes more likely the prior exposure of such errors
as might have occurred.31
The death certificate of Lorenzo Pou would indicate that he died on 11 September 1954, at the age
of 84 years, in San Carlos, Pangasinan. It could thus be assumed that Lorenzo Pou was born
sometime in the year 1870 when the Philippines was still a colony of Spain. Petitioner would argue
that Lorenzo Pou was not in the Philippines during the crucial period of from 1898 to 1902
considering that there was no existing record about such fact in the Records Management and
Archives Office. Petitioner, however, likewise failed to show that Lorenzo Pou was at any other place
during the same period. In his death certificate, the residence of Lorenzo Pou was stated to be San
Carlos, Pangasinan. In the absence of any evidence to the contrary, it should be sound to conclude,
or at least to presume, that the place of residence of a person at the time of his death was also his
residence before death. It would be extremely doubtful if the Records Management and Archives
Office would have had complete records of all residents of the Philippines from 1898 to 1902.
Proof of Paternity and Filiation
Under Civil Law.
Petitioner submits, in any case, that in establishing filiation (relationship or civil status of the child to
the father [or mother]) or paternity (relationship or civil status of the father to the child) of an
illegitimate child, FPJ evidently being an illegitimate son according to petitioner, the mandatory rules
under civil law must be used.
Under the Civil Code of Spain, which was in force in the Philippines from 08 December 1889 up until
the day prior to 30 August 1950 when the Civil Code of the Philippines took effect, acknowledgment
was required to establish filiation or paternity. Acknowledgment was either judicial (compulsory) or
voluntary. Judicial or compulsory acknowledgment was possible only if done during the lifetime of
the putative parent; voluntary acknowledgment could only be had in a record of birth, a will, or a
public document.32 Complementary to the new code was Act No. 3753 or the Civil Registry Law
expressing in Section 5 thereof, that -
"In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the
parents of the infant or only by the mother if the father refuses. In the latter case, it shall not
be permissible to state or reveal in the document the name of the father who refuses to
acknowledge the child, or to give therein any information by which such father could be
identified."
In order that the birth certificate could then be utilized to prove voluntary acknowledgment of filiation
or paternity, the certificate was required to be signed or sworn to by the father. The failure of such
requirement rendered the same useless as being an authoritative document of recognition.33 In
Mendoza vs. Mella,34 the Court ruled -
"Since Rodolfo was born in 1935, after the registry law was enacted, the question here really
is whether or not his birth certificate (Exhibit 1), which is merely a certified copy of the
registry record, may be relied upon as sufficient proof of his having been voluntarily
recognized. No such reliance, in our judgment, may be placed upon it. While it contains the
names of both parents, there is no showing that they signed the original, let alone swore to
its contents as required in Section 5 of Act No. 3753. For all that might have happened, it
was not even they or either of them who furnished the data to be entered in the civil register.
Petitioners say that in any event the birth certificate is in the nature of a public document
wherein voluntary recognition of a natural child may also be made, according to the same
Article 131. True enough, but in such a case, there must be a clear statement in the
document that the parent recognizes the child as his or her own."
In the birth certificate of respondent FPJ, presented by both parties, nowhere in the document was
the signature of Allan F. Poe found. There being no will apparently executed, or at least shown to
have been executed, by decedent Allan F. Poe, the only other proof of voluntary recognition
remained to be "some other public document." In Pareja vs. Pareja,35 this Court defined what could
constitute such a document as proof of voluntary acknowledgment:
"Under the Spanish Civil Code there are two classes of public documents, those executed by
private individuals which must be authenticated by notaries, and those issued by competent
public officials by reason of their office. The public document pointed out in Article 131 as
one of the means by which recognition may be made belongs to the first class."
Let us leave it at that for the moment.
The 1950 Civil Code categorized the acknowledgment or recognition of illegitimate children into
voluntary, legal or compulsory. Voluntary recognition was required to be expressedly made in a
record of birth, a will, a statement before a court of record or in any authentic writing. Legal
acknowledgment took place in favor of full blood brothers and sisters of an illegitimate child who was
recognized or judicially declared as natural. Compulsory acknowledgment could be demanded
generally in cases when the child had in his favor any evidence to prove filiation. Unlike an action to
claim legitimacy which would last during the lifetime of the child, and might pass exceptionally to the
heirs of the child, an action to claim acknowledgment, however, could only be brought during the
lifetime of the presumed parent.
Amicus Curiae Ruben F. Balane defined, during the oral argument, "authentic writing," so as to be
an authentic writing for purposes of voluntary recognition, simply as being a genuine or indubitable
writing of the father. The term would include a public instrument (one duly acknowledged before a
notary public or other competent official) or a private writing admitted by the father to be his.
The Family Code has further liberalized the rules; Article 172, Article 173, and Article 175 provide:
"Art. 172. The filiation of legitimate children is established by any of the following:
"(1) The record of birth appearing in the civil register or a final judgment; or
"(2) An admission of legitimate filiation in a public document or a private handwritten

instrument and signed by the parent concerned.
"In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
"(1) The open and continuous possession of the status of a legitimate child; or
"(2) Any other means allowed by the Rules of Court and special laws.
"Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime
and shall be transmitted to the heirs should the child die during minority or in a state of
insanity. In these cases, the heirs shall have a period of five years within which to institute
the action.
"The action already commenced by the child shall survive notwithstanding the death of either
or both of the parties.
"x x x xxx x x x.
"Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on
the same, evidence as legitimate children.
"The action must be brought within the same period specified in Article 173, except when the
action is based on the second paragraph of Article 172, in which case the action may be
brought during the lifetime of the alleged parent."
The provisions of the Family Code are retroactively applied; Article 256 of the code reads:
"Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair
vested or acquired rights in accordance with the Civil Code or other laws."
Thus, in Vda. de Sy-Quia vs. Court of Appeals,36 the Court has ruled:
"We hold that whether Jose was a voluntarily recognized natural child should be decided
under Article 278 of the Civil Code of the Philippines. Article 2260 of that Code provides that
'the voluntary recognition of a natural child shall take place according to this Code, even if
the child was born before the effectivity of this body of laws' or before August 30, 1950.
Hence, Article 278 may be given retroactive effect."
It should be apparent that the growing trend to liberalize the acknowledgment or recognition of
illegitimate children is an attempt to break away from the traditional idea of keeping well apart
legitimate and non-legitimate relationships within the family in favor of the greater interest and
welfare of the child. The provisions are intended to merely govern the private and personal affairs of
the family. There is little, if any, to indicate that the legitimate or illegitimate civil status of the
individual would also affect his political rights or, in general, his relationship to the State. While,
indeed, provisions on "citizenship" could be found in the Civil Code, such provisions must be taken in
the context of private relations, the domain of civil law; particularly -
"Civil Law is that branch of law which has for its double purpose the organization of the
family and the regulation of property. It has thus [been] defined as the mass of precepts
which determine and regulate the relations of assistance, authority and obedience among
members of a family, and those which exist among members of a society for the protection of
private interests."37
In Yañez de Barnuevo vs. Fuster,38 the Court has held:
"In accordance with Article 9 of the Civil Code of Spain, x x x the laws relating to family rights
and duties, or to the status, condition and legal capacity of persons, govern Spaniards
although they reside in a foreign country; that, in consequence, 'all questions of a civil
nature, such as those dealing with the validity or nullity of the matrimonial bond, the domicile
of the husband and wife, their support, as between them, the separation of their properties,
the rules governing property, marital authority, division of conjugal property, the classification
of their property, legal causes for divorce, the extent of the latter, the authority to decree it,
and, in general, the civil effects of marriage and divorce upon the persons and properties of
the spouses, are questions that are governed exclusively by the national law of the husband
and wife."
The relevance of "citizenship" or "nationality" to Civil Law is best exemplified in Article 15 of the Civil
Code, stating that -
"Laws relating to family rights and duties, or to the status, condition and legal capacity of
persons are binding upon citizens of the Philippines, even though living abroad" -
that explains the need to incorporate in the code a reiteration of the Constitutional provisions on
citizenship. Similarly, citizenship is significant in civil relationships found in different parts of the Civil
Code,39 such as on successional rights and family relations.40 In adoption, for instance, an adopted
child would be considered the child of his adoptive parents and accorded the same rights as their
legitimate child but such legal fiction extended only to define his rights under civil law41 and not his
political status.
Civil law provisions point to an obvious bias against illegitimacy. This discriminatory attitude may be
traced to the Spanish family and property laws, which, while defining proprietary and successional
rights of members of the family, provided distinctions in the rights of legitimate and illegitimate
children. In the monarchial set-up of old Spain, the distribution and inheritance of titles and wealth
were strictly according to bloodlines and the concern to keep these bloodlines uncontaminated by
foreign blood was paramount.
These distinctions between legitimacy and illegitimacy were codified in the Spanish Civil Code, and
the invidious discrimination survived when the Spanish Civil Code became the primary source of our
own Civil Code. Such distinction, however, remains and should remain only in the sphere of civil law
and not unduly impede or impinge on the domain of political law.
The proof of filiation or paternity for purposes of determining his citizenship status should thus be
deemed independent from and not inextricably tied up with that prescribed for civil law purposes.
The Civil Code or Family Code provisions on proof of filiation or paternity, although good law, do not
have preclusive effects on matters alien to personal and family relations. The ordinary rules on
evidence could well and should govern. For instance, the matter about pedigree is not necessarily
precluded from being applicable by the Civil Code or Family Code provisions.
Section 39, Rule 130, of the Rules of Court provides -

"Act or Declaration about pedigree. The act or declaration of a person deceased, or unable
to testify, in respect to the pedigree of another person related to him by birth or marriage,
may be received in evidence where it occurred before the controversy, and the relationship
between the two persons is shown by evidence other than such act or declaration. The word
`pedigree’ includes relationship, family genealogy, birth, marriage, death, the dates when
and the places where these facts occurred, and the names of the relatives. It embraces also
facts of family history intimately connected with pedigree."
For the above rule to apply, it would be necessary that (a) the declarant is already dead or unable to
testify, (b) the pedigree of a person must be at issue, (c) the declarant must be a relative of the
person whose pedigree is in question, (d) declaration must be made before the controversy has
occurred, and (e) the relationship between the declarant and the person whose pedigree is in
question must be shown by evidence other than such act or declaration.
Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of Bessie Kelley Poe
submitted as Exhibit 20 before the COMELEC, might be accepted to prove the acts of Allan F. Poe,
recognizing his own paternal relationship with FPJ, i.e, living together with Bessie Kelley and his
children (including respondent FPJ) in one house, and as one family -
"I, Ruby Kelley Mangahas, of legal age and sound mind, presently residing in Stockton,
California, U.S.A., after being sworn in accordance with law do hereby declare that:
"1. I am the sister of the late Bessie Kelley Poe.
"2. Bessie Kelley Poe was the wife of Fernando Poe, Sr.
"3. Fernando and Bessie Poe had a son by the name of Ronald Allan Poe, more popularly
known in the Philippines as `Fernando Poe, Jr.,’ or `FPJ’.
"4. Ronald Allan Poe `FPJ’ was born on August 20, 1939 at St. Luke's Hospital, Magdalena
Street, Manila.
"x x x xxx xxx
"7. Fernando Poe Sr., and my sister Bessie, met and became engaged while they were
students at the University of the Philippines in 1936. I was also introduced to Fernando Poe,
Sr., by my sister that same year.
"8. Fernando Poe, Sr., and my sister Bessie had their first child in 1938.
"9. Fernando Poe, Sr., my sister Bessie and their first three children, Elizabeth, Ronald, Allan
and Fernando II, and myself lived together with our mother at our family's house on Dakota
St. (now Jorge Bocobo St.), Malate until the liberation of Manila in 1945, except for some
months between 1943-1944.
"10. Fernando Poe, Sr., and my sister, Bessie, were blessed with four (4) more children after
Ronald Allan Poe.
"x x x xxx xxx

"18. I am executing this Declaration to attest to the fact that my nephew, Ronald Allan Poe is
a natural born Filipino, and that he is the legitimate child of Fernando Poe, Sr.
"Done in City of Stockton, California, U.S.A., this 12th day of January 2004.
Ruby Kelley Mangahas Declarant DNA Testing
In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to
obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child
and any physical residue of the long dead parent could be resorted to. A positive match would clear
up filiation or paternity. In Tijing vs. Court of Appeals,42 this Court has acknowledged the strong weight of
DNA testing -
"Parentage will still be resolved using conventional methods unless we adopt the modern and
scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for
identification and parentage testing. The University of the Philippines Natural Science Research
Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using
short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person
has two (2) copies, one copy from the mother and the other from the father. The DNA from the
mother, the alleged father and the child are analyzed to establish parentage. Of course, being a
novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as
the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence.
For it was said, that courts should apply the results of science when competently obtained in aid of
situations presented, since to reject said result is to deny progress."
Petitioner’s Argument For Jurisprudential Conclusiveness
Petitioner would have it that even if Allan F. Poe were a Filipino citizen, he could not have
transmitted his citizenship to respondent FPJ, the latter being an illegitimate child. According to
petitioner, prior to his marriage to Bessie Kelley, Allan F. Poe, on July 5, 1936, contracted marriage
with a certain Paulita Gomez, making his subsequent marriage to Bessie Kelley bigamous and
respondent FPJ an illegitimate child. The veracity of the supposed certificate of marriage between
Allan F. Poe and Paulita Gomez could be most doubtful at best. But the documentary evidence
introduced by no less than respondent himself, consisting of a birth certificate of respondent and a
marriage certificate of his parents showed that FPJ was born on 20 August 1939 to a Filipino father
and an American mother who were married to each other a year later, or on 16 September 1940.
Birth to unmarried parents would make FPJ an illegitimate child. Petitioner contended that as an
illegitimate child, FPJ so followed the citizenship of his mother, Bessie Kelley, an American citizen,
basing his stand on the ruling of this Court in Morano vs. Vivo,43 citing Chiongbian vs. de Leo44 and
Serra vs. Republic.45
On the above score, the disquisition made by amicus curiae Joaquin G. Bernas, SJ, is most
convincing; he states -
"We must analyze these cases and ask what the lis mota was in each of them. If the
pronouncement of the Court on jus sanguinis was on the lis mota, the pronouncement would
be a decision constituting doctrine under the rule of stare decisis. But if the pronouncement
was irrelevant to the lis mota, the pronouncement would not be a decision but a mere obiter
dictum which did not establish doctrine. I therefore invite the Court to look closely into these
cases.
"First, Morano vs. Vivo. The case was not about an illegitimate child of a Filipino father. It
was about a stepson of a Filipino, a stepson who was the child of a Chinese mother and a
Chinese father. The issue was whether the stepson followed the naturalization of the
stepfather. Nothing about jus sanguinis there. The stepson did not have the blood of the
naturalized stepfather.
"Second, Chiongbian vs. de Leon. This case was not about the illegitimate son of a Filipino
father. It was about a legitimate son of a father who had become Filipino by election to public
office before the 1935 Constitution pursuant to Article IV, Section 1(2) of the 1935
Constitution. No one was illegitimate here.
"Third, Serra vs. Republic. The case was not about the illegitimate son of a Filipino father.
Serra was an illegitimate child of a Chinese father and a Filipino mother. The issue was
whether one who was already a Filipino because of his mother who still needed to be
naturalized. There is nothing there about invidious jus sanguinis.
"Finally, Paa vs. Chan.46 This is a more complicated case. The case was about the
citizenship of Quintin Chan who was the son of Leoncio Chan. Quintin Chan claimed that his
father, Leoncio, was the illegitimate son of a Chinese father and a Filipino mother. Quintin
therefore argued that he got his citizenship from Leoncio, his father. But the Supreme Court
said that there was no valid proof that Leoncio was in fact the son of a Filipina mother. The
Court therefore concluded that Leoncio was not Filipino. If Leoncio was not Filipino, neither
was his son Quintin. Quintin therefore was not only not a natural-born Filipino but was not
even a Filipino.
"The Court should have stopped there. But instead it followed with an obiter dictum. The
Court said obiter that even if Leoncio, Quintin's father, were Filipino, Quintin would not be
Filipino because Quintin was illegitimate. This statement about Quintin, based on a contrary
to fact assumption, was absolutely unnecessary for the case. x x x It was obiter dictum, pure
and simple, simply repeating the obiter dictum in Morano vs. Vivo.
"x x x xxx xxx
"Aside from the fact that such a pronouncement would have no textual foundation in the
Constitution, it would also violate the equal protection clause of the Constitution not once but
twice. First, it would make an illegitimate distinction between a legitimate child and an
illegitimate child, and second, it would make an illegitimate distinction between the
illegitimate child of a Filipino father and the illegitimate child of a Filipino mother.
"The doctrine on constitutionally allowable distinctions was established long ago by People
vs. Cayat.47 I would grant that the distinction between legitimate children and illegitimate
children rests on real differences. x x x But real differences alone do not justify invidious
distinction. Real differences may justify distinction for one purpose but not for another
purpose.
"x x x What is the relevance of legitimacy or illegitimacy to elective public service? What
possible state interest can there be for disqualifying an illegitimate child from becoming a
public officer. It was not the fault of the child that his parents had illicit liaison. Why deprive
the child of the fullness of political rights for no fault of his own? To disqualify an illegitimate
child from holding an important public office is to punish him for the indiscretion of his
parents. There is neither justice nor rationality in that. And if there is neither justice nor
rationality in the distinction, then the distinction transgresses the equal protection clause and
must be reprobated."
The other amici curiae, Mr. Justice Vicente Mendoza (a former member of this Court), Professor
Ruben Balane and Dean Martin Magallona, at bottom, have expressed similar views. The thesis of
petitioner, unfortunately hinging solely on pure obiter dicta, should indeed fail.
Where jurisprudence regarded an illegitimate child as taking after the citizenship of its mother, it did
so for the benefit the child. It was to ensure a Filipino nationality for the illegitimate child of an alien
father in line with the assumption that the mother had custody, would exercise parental authority and
had the duty to support her illegitimate child. It was to help the child, not to prejudice or discriminate
against him.
The fact of the matter – perhaps the most significant consideration – is that the 1935 Constitution,
the fundamental law prevailing on the day, month and year of birth of respondent FPJ, can never be
more explicit than it is. Providing neither conditions nor distinctions, the Constitution states that
among the citizens of the Philippines are "those whose fathers are citizens of the Philippines." There
utterly is no cogent justification to prescribe conditions or distinctions where there clearly are none
provided.
In Sum –
(1) The Court, in the exercise of its power of judicial review, possesses jurisdiction over the
petition in G. R. No. 161824, filed under Rule 64, in relation to Rule 65, of the Revised Rules
of Civil Procedure. G.R. No. 161824 assails the resolution of the COMELEC for alleged
grave abuse of discretion in dismissing, for lack of merit, the petition in SPA No. 04-003
which has prayed for the disqualification of respondent FPJ from running for the position of
President in the 10th May 2004 national elections on the contention that FPJ has committed
material representation in his certificate of candidacy by representing himself to be a natural-
born citizen of the Philippines.
(2) The Court must dismiss, for lack of jurisdiction and prematurity, the petitions in G. R. No.
161434 and No. 161634 both having been directly elevated to this Court in the latter’s
capacity as the only tribunal to resolve a presidential and vice-presidential election contest
under the Constitution. Evidently, the primary jurisdiction of the Court can directly be invoked
only after, not before, the elections are held.
(3) In ascertaining, in G.R. No. 161824, whether grave abuse of discretion has been
committed by the COMELEC, it is necessary to take on the matter of whether or not
respondent FPJ is a natural-born citizen, which, in turn, depended on whether or not the
father of respondent, Allan F. Poe, would have himself been a Filipino citizen and, in the
affirmative, whether or not the alleged illegitimacy of respondent prevents him from taking
after the Filipino citizenship of his putative father. Any conclusion on the Filipino citizenship
of Lorenzo Pou could only be drawn from the presumption that having died in 1954 at 84
years old, Lorenzo would have been born sometime in the year 1870, when the Philippines
was under Spanish rule, and that San Carlos, Pangasinan, his place of residence upon his
death in 1954, in the absence of any other evidence, could have well been his place of
residence before death, such that Lorenzo Pou would have benefited from the "en masse
Filipinization" that the Philippine Bill had effected in 1902. That citizenship (of Lorenzo Pou),
if acquired, would thereby extend to his son, Allan F. Poe, father of respondent FPJ. The
1935 Constitution, during which regime respondent FPJ has seen first light, confers
citizenship to all persons whose fathers are Filipino citizens regardless of whether such
children are legitimate or illegitimate.
(4) But while the totality of the evidence may not establish conclusively that respondent FPJ
is a natural-born citizen of the Philippines, the evidence on hand still would preponderate in
his favor enough to hold that he cannot be held guilty of having made a material
misrepresentation in his certificate of candidacy in violation of Section 78, in relation to
Section 74, of the Omnibus Election Code. Petitioner has utterly failed to substantiate his
case before the Court, notwithstanding the ample opportunity given to the parties to present
their position and evidence, and to prove whether or not there has been material
misrepresentation, which, as so ruled in Romualdez-Marcos vs. COMELEC,48 must not only
be material, but also deliberate and willful.
WHEREFORE, the Court RESOLVES to DISMISS –
1. G. R. No. 161434, entitled "Maria Jeanette C. Tecson and Felix B. Desiderio, Jr.,
Petitioners, versus Commission on Elections, Ronald Allan Kelley Poe (a.k.a. "Fernando
Poe, Jr.,) and Victorino X. Fornier, Respondents," and G. R. No. 161634, entitled "Zoilo
Antonio Velez, Petitioner, versus Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr.,
Respondent," for want of jurisdiction.
2. G. R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus Hon. Commission on

Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr.," for failure to show
grave abuse of discretion on the part of respondent Commission on Elections in dismissing
the petition in SPA No. 04-003.
No Costs.
SO ORDERED.
Davide, Jr., C.J., see separate opinion, concurring.

Puno, J., on leave but was allowed to vote; see separate opinion.
Panganiban, J., on official leave; allowed to vote but did not send his vote on the matter.
Quisumbing, J., joins the dissent of Justices Tinga and Morales; case should have been remanded.
Ynares-Santiago, J., concurs and also with J. Puno’s separate opinion.
Sandoval-Gutierrez, J., concurs, please see separate opinion.
Carpio, J., see dissenting opinion.
Austria-Martinez, J., concurs, please see separate opinion.
Corona, J., joins the dissenting opinion of Justice Morales.
Carpio-Morales, J., see dissenting opinion.
Callejo, Sr., J., please see concurring opinion.
Azcuna, J., concurs in a separate opinion.
Tinga, J., dissents per separate opinion.
SEPARATE OPINION
DAVIDE, JR. C.J.:
The procedural and factual antecedents of these consolidated cases are as follows:
On 9 January 2004, petitioner Victorino X. Fornier filed with public respondent Commission on
Elections (COMELEC) a petition to disqualify private respondent Fernando Poe, Jr. (FPJ) and to
deny due course to or cancel his certificate of candidacy for the position of President in the
forthcoming 10 May 2004 presidential elections. As a ground therefore, he averred that FPJ
committed falsity in a material representation in his certificate of candidacy in declaring that he is a
natural-born Filipino citizen when in truth and in fact he is not, since he is the illegitimate son of
Bessie Kelley, an American citizen, and Allan Poe, a Spanish national. The case was docketed as
COMELEC Case SPA No. 04-003 and assigned to the COMELEC’s First Division.
At the hearing before the First Division of the COMELEC, petitioner Fornier offered FPJ’s record of
birth to prove that FPJ was born on 20 August 1939 to Bessie Kelley, an American citizen, and Allan
Poe, who was then married to Paulita Gomez. Upon the other hand, FPJ tried to establish that his
father was a Filipino citizen whose parents, although Spanish nationals, were Filipino citizens. He
adduced in evidence a copy of the marriage contract of Allan Poe and Bessie Kelley, showing that
they were married on 16 September 1940 in Manila.
In its Resolution of 23 January 2004, the First Division of the COMELEC dismissed COMELEC Case
SPA No. 04-003 for lack of merit. It declared that COMELEC’s jurisdiction is limited to all matters
relating to election, returns and qualifications of all elective regional, provincial and city officials, but
not those of national officials like the President. It has, however, jurisdiction to pass upon the issue
of citizenship of national officials under Section 78 of the Omnibus Election Code on petitions to
deny due course or cancel certificates of candidacy on the ground that any material representation
contained therein is false. It found that the evidence adduced by petitioner Fornier is not substantial,
and that FPJ did not commit any falsehood in material representation when he stated in his
certificate of candidacy that he is a natural-born Filipino citizen.
His motion for reconsideration filed before the COMELEC en banc having been denied, petitioner
Fornier filed a petition with this Court, which was docketed as G.R. No. 161824.
Meanwhile, petitioners Maria Jeanette C. Tecson and Felix B. Desiderio, Jr. came to this Court via a
special civil action for certiorari under Rule 65 of the Rules of Court, docketed as G.R. No. 161434,
to challenge the jurisdiction of the COMELEC over the issue of the citizenship of FPJ. They assert
that only this Court has jurisdiction over the issue in light of the last paragraph of Section 4 of Article
VII of the Constitution, which provides:
The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election
purpose.
On 29 January 2004 petitioner Velez filed a similar petition, which was docketed as G.R. No.
161634.
The core issues in these consolidated cases, as defined by the Court during the oral argument, are
as follows:
(1) Whether the COMELEC has jurisdiction over petitions to deny due course to or cancel
certificates of candidacy of Presidential candidates;
(2) Whether the Supreme Court has jurisdiction over the petitions of (a) Tecson, et al., (b)
Velez, and (c) Fornier; and
(3) Whether respondent FPJ is a Filipino citizen, and if so, whether he is a natural-born
Filipino citizen.
These consolidated petitions must be dismissed.
Both the petitions of Tecson and Velez invoke the jurisdiction of this Court as provided for in the last
paragraph of Section 4 of Article VII of the Constitution, and raise the issue of the ineligibility of a
candidate for President on the ground that he is not a natural-born citizen of the Philippines. The
actions contemplated in the said provision of the Constitution are post-election remedies, namely,
regular election contests and quo warranto. The petitioner should have, instead, resorted to pre-
election remedies, such as those prescribed in Section 68 (Disqualifications), in relation to Section
72; Section 69 (Nuisance candidates); and Section 78 (Petition to deny course to or cancel a
certificate of candidacy), in relation to Section 74, of the Omnibus Election Code, which are
implemented in Rules 23, 24 and 25 of the COMELEC Rules of Procedure. These pre-election
remedies or actions do not, however, fall within the original jurisdiction of this Court.
Under the Omnibus Election Code and the COMELEC Rules of Procedure, the COMELEC has the
original jurisdiction to determine in an appropriate proceeding whether a candidate for an elective
office is eligible for the office for which he filed his certificate of candidacy or is disqualified to be a
candidate or to continue such candidacy because of any of the recognized grounds for
disqualification. Its jurisdiction over COMELEC SPA No. 04-003 is, therefore, beyond question.
Upon the other hand, this Court has jurisdiction over Fornier’s petition (G.R. No. 161824) under
Section 7 of Article IX-A of the Constitution, which provides:
Section 7. Each Commission shall decide by a majority vote of all its Members any case or matter
brought before it within sixty days from the date of its submission for decision or resolution. A case
or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or
memorandum required by the rules of the Commission or by the Commission itself. Unless
otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission
may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from
receipt of a copy thereof.
This Court can also take cognizance of the issue of whether the COMELEC committed grave abuse
of discretion amounting to lack or excess of jurisdiction in issuing the challenged resolution in
COMELEC SPA No. 04-003 by virtue of Section 1 of Article VIII of the Constitution, which reads as
follows:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of nay branch or
instrumentality of the Government.
On the issue of whether private respondent FPJ is a natural-born Filipino citizen, the following facts
have been established by a weighty preponderance of evidence either in the pleadings and the
documents attached thereto or from the admissions of the parties, through their counsels, during the
oral arguments:
1. FPJ was born on 20 August 1939 in Manila, Philippines.

2. FPJ was born to Allan Poe and Bessie Kelley.
3. Bessie Kelley and Allan Poe were married on 16 September 1940.
4. Allan Poe was a Filipino because his father, Lorenzo Poe, albeit a Spanish subject, was
not shown to have declared his allegiance to Spain by virtue of the Treaty of Paris and the
Philippine Bill of 1902.
From the foregoing it is clear that respondent FPJ was born before the marriage of his parents.
Thus, pursuant to the Civil Code then in force, he could either be (a) a natural child if both his
parents had no legal impediments to marry each other; or (b) an illegitimate child if, indeed, Allan
Poe was married to another woman who was still alive at the time FPJ was born.
Petitioner Fornier never alleged that Allan Poe was not the father of FPJ. By revolving his case
around the illegitimacy of FPJ, Fornier effectively conceded paternity or filiation as a non-issue. For
purposes of the citizenship of an illegitimate child whose father is a Filipino and whose mother is an
alien, proof of paternity or filiation is enough for the child to follow the citizenship of his putative
father, as advanced by Fr. Joaquin Bernas, one of the amici curiae. Since paternity or filiation is in
fact admitted by petitioner Fornier, the COMELEC committed no grave abuse of discretion in holding
that FPJ is a Filipino citizen, pursuant to paragraph 3 of Section 1 of Article IV of the 1935
Constitution, which reads:
(3) Those whose fathers are citizens of the Philippines.
I agree with the amici curiae that this provision makes no distinction between legitimate and
illegitimate children of Filipino fathers. It is enough that filiation is established or that the child is
acknowledged or recognized by the father.
DISSENTING OPINION
CARPIO, J.:
I dissent from the majority opinion.
The Antecedent Proceedings
Petitioner Fornier filed before the Commission on Elections ("Comelec") a "Petition for
Disqualification of Presidential Candidate Ronald Allan Kelley Poe a.k.a. Fernando Poe, Jr." on the
ground that Fernando Poe, Jr. ("FPJ") is not a natural-born Philippine citizen. The Comelec First
Division dismissed the petition, ruling that petitioner failed to present substantial evidence that FPJ
committed "any material misrepresentation when he stated in his Certificate of Candidacy that he is
a natural-born citizen." On motion for reconsideration, the Comelec En Banc affirmed the ruling of
the First Division. Petitioner Fornier now assails the Comelec En Banc resolution under Rule 64 in
relation to Rule 65 of the Rules of Court.
The Undisputed Facts

The undisputed facts are based on two documents and the admission of FPJ. The first document is
the Birth Certificate of FPJ, showing he was born on 20 August 1939. The Birth Certificate is an
evidence of FPJ.[1] The second document is the Marriage Certificate of Allan F. Poe and Bessie
Kelley, showing that their marriage took place on 16 September 1940. The Marriage Certificate is
also an evidence of FPJ.[2] Moreover, FPJ admits that his mother Bessie Kelley was an American
citizen.[3]
Based on these two documents and admission, the undisputed facts are: (1) FPJ was born out of
wedlock and therefore illegitimate,[4] and (2) the mother of FPJ was an American citizen.
The Issues
The issues raised in Fornier’s petition are:
(a) Whether the Court has jurisdiction over the petition to disqualify FPJ as a candidate for
President on the ground that FPJ is not a natural-born Philippine citizen;
(b) Whether FPJ is a natural-born citizen of the Philippines.
Jurisdiction
The Comelec has jurisdiction to determine initially the qualifications of all candidates. Under Section
2(1), Article IX-C of the Constitution, the Comelec has the power and function to "[E]nforce and
administer all laws and regulations relative to the conduct of an election." The initial determination of
who are qualified to file certificates of candidacies with the Comelec clearly falls within this all-
encompassing constitutional mandate of the Comelec. The conduct of an election necessarily
includes the initial determination of who are qualified under existing laws to run for public office in an
election. Otherwise, the Comelec’s certified list of candidates will be cluttered with unqualified
candidates making the conduct of elections unmanageable. For this reason, the Comelec weeds out
every presidential election dozens of candidates for president who are deemed nuisance candidates
by the Comelec.[5]
Section 2(3), Article IX-C of the Constitution also empowers the Comelec to "[D]ecide, except those
involving the right to vote, all questions affecting elections x x x." The power to decide "all questions
affecting elections" necessarily includes the power to decide whether a candidate possesses the
qualifications required by law for election to public office. This broad constitutional power and
function vested in the Comelec is designed precisely to avoid any situation where a dispute affecting
elections is left without any legal remedy. If one who is obviously not a natural-born Philippine
citizen, like Arnold Schwarzenneger, runs for President, the Comelec is certainly not powerless to
cancel the certificate of candidacy of such candidate. There is no need to wait until after the
elections before such candidate may be disqualified.
Under Rule 25 on "Disqualification of Candidates" of the Comelec Rules of Procedure, a voter may
question before the Comelec the qualifications of any candidate for public office. Thus, Rule 25
provides:
Section 1. Grounds for Disqualification. — Any candidate who does not possess all the qualifications
of a candidate as provided for by the Constitution or by existing law or who commits any act
declared by law to be grounds for disqualification may be disqualified from continuing as a
candidate.
Section 2. Who May File Petition for Disqualification. — Any citizen of voting age, or duly registered
political party, organization or coalition of political parties may file with the Law Department of the
Commission a petition to disqualify a candidate on grounds provided by law. (Emphasis supplied)
The Comelec adopted its Rules of Procedure pursuant to its constitutional power to promulgate its
own rules of procedure[6] to expedite the disposition of cases or controversies falling within its
jurisdiction.
The Comelec has ruled upon the qualifications of candidates, even if the Constitution provides that
some other body shall be the "sole judge" of the qualifications of the holders of the public offices
involved. The Court has upheld the jurisdiction of Comelec to issue such rulings,[7] even when the
issue is the citizenship of a candidate.[8] Thus, the Comelec has jurisdiction to determine initially if
FPJ meets the citizenship qualification to run for President.
However, the Comelec En Banc, in its scanty resolution, failed to state the factual bases of its ruling.
The Comelec En Banc also failed to rule conclusively on the issue presented – whether FPJ is a
natural-born Philippine citizen. The Comelec En Banc affirmed the First Division ruling that "[W]e feel
we are not at liberty to finally declare whether or not the respondent is a natural-born citizen." In
short, the Comelec En Banc allowed a candidate for President to run in the coming elections without
being convinced that the candidate is a natural-born Philippine citizen. Clearly, the Comelec En
Banc acted with grave abuse of discretion. Under Section 1, Article VIII, as well as Section 5, Article
VIII, of the Constitution, the Court has jurisdiction to hear and decide the issue in a petition for
certiorari under Rule 64 in relation to Rule 65.
To hold that the Court acquires jurisdiction to determine the qualification of a candidate for President
only after the elections would lead to an absurd situation. The Court would have to wait for an alien
to be elected on election day before he could be disqualified to run for President. If the case is not
decided immediately after the election, an alien who wins the election may even assume office as
President before he is finally disqualified. Certainly, this is not what the Constitution says when it
provides that "[N]o person may be elected President unless he is a natural-born citizen of the
Philippines."[9] The clear and specific language of the Constitution prohibits the election of one who
is not a natural-born citizen. Thus, the issue of whether a candidate for President is a natural-born
Philippine citizen must be decided before the election.
Governing Laws
Since FPJ was born on 20 August 1939, his citizenship at the time of his birth depends on the
Constitution and statutes in force at the time of his birth.[10] FPJ’s citizenship at the time of his birth
in 1939, applying the laws in force in 1939, determines whether he is a natural-born Philippine
citizen.
Natural-born Philippine citizens are "those who are citizens of the Philippines from birth without
having to perform any act to acquire or perfect their Philippine citizenship."[11] If a person has to
perform an act, such as proving in an administrative or judicial proceeding, that an event subsequent
to his birth transpired thus entitling him to Philippine citizenship, such person is not a natural born
citizen.[12]
The 1935 Constitution and the Spanish Civil Code, the laws in force in 1939, are the governing laws
that determine whether a person born in 1939 is a Philippine citizen at the time of his birth in 1939.
Any subsequent legislation cannot change the citizenship at birth of a person born in 1939 because
such legislation would violate the constitutional definition of a natural-born citizen as one who is a
Philippine citizen from birth. In short, one who is not a Philippine citizen at birth in 1939 cannot be
declared by subsequent legislation a natural-born citizen.
General Principles
A legitimate child of a Filipino father follows the citizenship of the father. A child born within wedlock
is presumed to be the son of the father[13] and thus carries the blood of the father. Under the
doctrine of jus sanguinis, as provided for in Section 1(3), Article III of the 1935 Constitution, a
legitimate child, by the fact of legitimacy, automatically follows the citizenship of the Filipino father.
An illegitimate child, however, enjoys no presumption at birth of blood relation to any father unless
the father acknowledges the child at birth.[14] The law has always required that "in all cases of
illegitimate children, their filiation must be duly proved."[15] The only legally known parent of an
illegitimate child, by the fact of illegitimacy, is the mother of the child who conclusively carries the
blood of the mother. Thus, unless the father acknowledges the illegitimate child at birth, the
illegitimate child can only acquire the citizenship of the only legally known parent - the mother.
However, if the Filipino father is legally known because the filiation (blood relation of illegitimate child
to the father) of the child to the Filipino father is established in accordance with law, the child follows
the citizenship of the Filipino father. This gives effect, without discrimination between legitimate and
illegitimate children, to the provision of the 1935 Constitution that "[T]hose whose fathers are citizens
of the Philippines"[16] are Philippine citizens.
Nature of Citizenship
If the Filipino father acknowledges the illegitimate child at birth, the child is a natural-born Philippine
citizen because no other act after his birth is required to acquire or perfect his Philippine citizenship.
The child possesses all the qualifications to be a Philippine citizen at birth.
If the Filipino father acknowledges the child after birth, the child is a Philippine citizen as of the time
of the acknowledgment. In this case, the child does not possess all the qualifications to be a
Philippine citizen at birth because an act - the acknowledgement of the Filipino father - is required for
the child to acquire or perfect his Philippine citizenship. Statutory provisions on retroactivity of
acknowledgment cannot be given effect because they would be contrary to the constitutional
definition of natural- born citizens as those who are Philippine citizens at birth without having to
perform any act to acquire or perfect their Philippine citizenship.
If the illegitimacy of a child is established, there is no presumption that the child has the blood of any
man who is supposed to be the father. There is only a conclusive presumption that the child has the
blood of the mother. If an illegitimate child claims to have the blood of a man who is supposed to be
the child’s father, such blood relation must be established in accordance with proof of filiation as
required by law.
Where the illegitimate child of an alien mother claims to follow the citizenship of the putative father,
the burden is on the illegitimate child to establish a blood relation to the putative Filipino father since
there is no presumption that an illegitimate child has the blood of the putative father. Even if the
putative father admits paternity after the birth of the illegitimate child, there must be an administrative
or judicial approval that such blood relation exists upon proof of paternity as required by law.
Citizenship, being a matter of public and State interest, cannot be conferred on an illegitimate child
of an alien mother on the mere say so of the putative Filipino father. The State has a right to
examine the veracity of the claim of paternity. Otherwise, the grant of Philippine citizenship to an
illegitimate child of an alien mother is left to the sole discretion of the putative Filipino father. For
example, a Philippine citizen of Chinese descent can simply claim that he has several illegitimate
children in China. The State cannot be required to grant Philippine passports to these supposed
illegitimate children born in China of Chinese mothers just because the putative Filipino father
acknowledges paternity of these illegitimate children. There must be either an administrative or
judicial determination that the claim of the putative Filipino father is true.
The case of the illegitimate Vietnamese children, born in Vietnam of Vietnamese mothers and
allegedly of Filipino fathers, is illustrative. These children grew up in Vietnam, many of them studying
there until high school. These children grew up knowing they were Vietnamese citizens. In 1975, a
Philippine Navy vessel brought them, together with their Vietnamese mothers, to the Philippines as
Saigon fell to the communists. The mothers of these children became stateless when the Republic of
(South) Vietnam ceased to exist in 1975. The Department of Justice rendered Opinion No. 49 dated
3 May 1995 that being children of Filipino fathers, these Vietnamese children, even if illegitimate, are
Philippine citizens under Section 1(3), Article IV of the 1935 Constitution and Section 1(2), Article III
of the 1973 Constitution. This Opinion is cited by FPJ as basis for his claim of being a natural-born
Philippine citizen.[17] However, this Opinion categorically stated that before the illegitimate
Vietnamese children may be considered Filipino citizens "it is necessary in every case referred to
that such paternity be established by sufficient and convincing documentary evidence."[18]
In short, the illegitimate child must prove to the proper administrative or judicial authority the
paternity of the alleged Filipino father by "sufficient and convincing documentary evidence." Clearly,
an administrative or judicial act is necessary to confer on the illegitimate Vietnamese children
Philippine citizenship. The mere claim of the illegitimate child of filiation to a Filipino father, or the
mere acknowledgment of the alleged Filipino father, does not automatically confer Philippine
citizenship on the child. The State must be convinced of the veracity of such claim and approve the
same. Since the illegitimate Vietnamese children need to perform an act to acquire or perfect
Philippine citizenship, they are not natural-born Philippine citizens. They become Philippine citizens
only from the moment the proper administrative or judicial authority approve and recognize their
filiation to their alleged Filipino fathers.
The rationale behind requiring that only natural-born citizens may hold certain high public offices[19]
is to insure that the holders of these high public offices grew up knowing they were at birth citizens of
the Philippines. In their formative years they knew they owed from birth their allegiance to the
Philippines. In case any other country claims their allegiance, they would be faithful and loyal to the
Philippines of which they were citizens from birth. This is particularly true to the President who is the
commander-in-chief of the armed forces.[20] The President of the Philippines must owe, from birth,
allegiance to the Philippines and must have grown up knowing that he was a citizen of the
Philippines at birth. The constitutional definition of a natural-born Philippine citizen would lose its
meaning and efficacy if one who was at birth recognized by law as an alien were declared forty
years later[21] a natural-born Philippine citizen just because his alleged Filipino father subsequently
admitted his paternity.
Proof of Filiation
Article 131[22] of the Spanish Civil Code, the law in force in 1939, recognized only the following as
proof of filiation of a natural child:
a. acknowledgment in a record of birth;
b. acknowledgment in a will;
c. acknowledgment in some other public document.
To establish his Philippine citizenship at birth, FPJ must present either an acknowledgement in a
record of birth, or an acknowledgment in some other public document executed at the time of his
birth. An acknowledgment executed after birth does not make one a citizen at birth but a citizen from
the time of such acknowledgment since the acknowledgment is an act done after birth to acquire or
perfect Philippine citizenship.
After the birth of one who is not a natural-born Philippine citizen, a subsequent legislation liberalizing
proof of filiation cannot apply to such person to make him a natural-born citizen. A natural-born
Philippine citizen is expressly defined in the Constitution as one who is a citizen at birth. If a person
is not a citizen at birth, no subsequent legislation can retroactively declare him a citizen at birth since
it would violate the constitutional definition of a natural-born citizen.
Burden of Proof
Any person who claims to be a citizen of the Philippines has the burden of proving his Philippine
citizenship. Any person who claims to be qualified to run for President because he is, among others,
a natural-born Philippine citizen, has the burden of proving he is a natural-born citizen. Any doubt
whether or not he is natural-born citizen is resolved against him. The constitutional requirement of a
natural-born citizen, being an express qualification for election as President, must be complied with
strictly as defined in the Constitution. As the Court ruled in Paa v. Chan: [23]
It is incumbent upon a person who claims Philippine citizenship to prove to the satisfaction of the
Court that he is really a Filipino. No presumption can be indulged in favor of the claimant of
Philippine citizenship, and any doubt regarding citizenship must be resolved in favor of the State.
Since the undisputed facts show that FPJ is an illegitimate child, having been born out of wedlock,
the burden is on FPJ to prove his blood relation to his alleged Filipino father. An illegitimate child
enjoys no presumption of blood relation to any father. Such blood relationship must be established in
the appropriate proceedings in accordance with law.
Private party litigants cannot stipulate on the Philippine citizenship of a person because citizenship is
not a private right or property, but a matter of public and State interest. Even if petitioner Fornier
admits that FPJ, although illegitimate, is the son of Allan F. Poe, such admission cannot bind the
State for the purpose of conferring on FPJ the status of a natural-born Philippine citizen or even of a
naturalized citizen. Certainly, the Court will not recognize a person as a natural-born Philippine
citizen just because the private party litigants have admitted or stipulated on such a status. In the
present case, the Solicitor General, as representative of the Government, is strongly disputing the
status of FPJ as a natural-born Philippine citizen.
Legitimation
Under Article 123[24] of the Spanish Civil Code, legitimation took effect as of the date of marriage.
There was no retroactivity of the effects of legitimation on the rights of the legitimated child. Thus, a
legitimated child acquired the rights of a legitimate child only as of the date of marriage of the natural
parents. Allan F. Poe and Bessie Kelley were married on 16 September 1940 while FPJ was born
more than one year earlier on 20 August 1939. Assuming that Allan F. Poe was FPJ’s natural father,
the effects of legitimation did not retroact to the birth of FPJ on 20 August 1939.
Besides, legitimation vests only civil, not political rights, to the legitimated child. As the Court held in
Ching Leng:[25]
The framers of the Civil Code had no intention whatsoever to regulate therein political questions.
Hence, apart from reproducing the provisions of the Constitution on citizenship, the Code contains
no precept thereon except that which refers all matters of "naturalization", as well as those related to
the "loss and reacquisition of citizenship" to "special laws." Consistently with this policy, our Civil
Code does not include therein any rule analogous to Articles 18 to 28 of the Civil Code of Spain,
regulating citizenship. (Underscoring in the original)
Clearly, even assuming that the marriage of Allan F. Poe and Bessie Kelley legitimated FPJ, such
legitimation did not vest retroactively any civil or political rights to FPJ.
Treaty of Paris of 1898 and Philippine Bill of 1902
FPJ admits that his grandfather, Lorenzo Pou, was a Spanish citizen who came to the Philippines
from Spain.[26] To benefit from the mass naturalization under the Treaty of Paris of 1898 and the
Philippine Bill of 1902, FPJ must prove that Lorenzo Pou was an inhabitant and resident of the
Philippines on 11 April 1899. Once it is established that Lorenzo Pou was an inhabitant and resident
of the Philippines on 11 April 1899, then he is presumed to have acquired Philippine citizenship
under the Treaty of Paris of 1898 and the Philippine Bill of 1902.[27] Being an inhabitant and
resident of the Philippines on 11 April 1899 is the determinative fact to fall under the coverage of the
Treaty of Paris of 1898 and the Philippine Bill of 1902.[28]
There is, however, no evidence on record that Lorenzo Pou was a Philippine inhabitant and resident
on 11 April 1899. The date of arrival of Lorenzo Pou in the Philippines is not known. If he arrived in
the Philippines after 11 April 1899, then he could not benefit from the mass naturalization under the
Treaty of Paris of 1898 and the Philippine Bill of 1902. There is also no evidence that Lorenzo Pou
was naturalized as a Philippine citizen after 11 April 1899. Thus, there can be no presumption that
Lorenzo Pou was a Philippine citizen.
There is also no evidence on record that Allan F. Poe, the son of Lorenzo Pou and the alleged father
of FPJ, was naturalized as a Philippine citizen. Thus, based on the evidence adduced there is no
legal basis for claiming that Allan F. Poe is a Philippine citizen. Nevertheless, there is no need to
delve further into this issue since the Court can decide this case without determining the citizenship
of Lorenzo Pou and Allan F. Poe. Whether or not Lorenzo Pou and Allan F. Poe were Philippine
citizens is not material in resolving whether FPJ is a natural-born Philippine citizen.
Convention on the Rights of the Child
The Philippines signed the Convention on the Rights of the Child on 26 January 1990 and ratified
the same on 21 August 1990. The Convention defines a child to mean "every human being below
the age of eighteen years unless, under the law applicable to the child, majority is attained earlier."
Obviously, FPJ cannot invoke the Convention since he is not a child as defined in the Convention,
and he was born half a century before the Convention came into existence. FPJ’s citizenship at birth
in 1939 could not in any way be affected by the Convention which entered into force only on 2
September 1990.
The Convention has the status of a municipal law[29] and its ratification by the Philippines could not
have amended the express requirement in the Constitution that only natural-born citizens of
Philippines are qualified to be President. While the Constitution apparently favors natural-born
citizens over those who are not, that is the explicit requirement of the Constitution which neither the
Executive Department nor the Legislature, in ratifying a treaty, could amend. In short, the
Convention cannot amend the definition in the Constitution that natural-born citizens are "those who
are citizens of the Philippines from birth without having to perform any act to acquire or perfect their
Philippine citizenship."
In any event, the Convention guarantees a child "the right to acquire a nationality,"[30] and requires
States Parties to "ensure the implementation" of this right, "in particular where the child would
otherwise be stateless."[31] Thus, as far as nationality or citizenship is concerned, the Convention
guarantees the right of the child to acquire a nationality so that he may not be stateless. The
Convention does not guarantee a child a citizenship at birth, but merely "the right to acquire a
nationality" in accordance with municipal law. When FPJ was born in 1939, he was apparently under
United States law an American citizen at birth.[32] After his birth FPJ also had the right to acquire
Philippine citizenship by proving his filiation to his alleged Filipino father in accordance with
Philippine law. At no point in time was FPJ in danger of being stateless. Clearly, FPJ cannot invoke
the Convention to claim he is a natural-born Philippine citizen.
The Doctrine in Ching Leng v. Galang
The prevailing doctrine today is that an illegitimate child of a Filipino father and an alien mother
follows the citizenship of the alien mother as the only legally known parent. The illegitimate child,
even if acknowledged and legally adopted by the Filipino father, cannot acquire the citizenship of the
father. The Court made this definitive doctrinal ruling in Ching Leng v. Galang,[33] which involved
the illegitimate minor children of a naturalized Filipino of Chinese descent with a Chinese woman, Sy
An. The illegitimate children were later on jointly adopted by the naturalized Filipino and his legal
wife, So Buan Ty.
The facts in Ching Leng as quoted by the Court from the trial court’s decision are as follows:
After the petitioner Ching Leng Alias Ching Ban Lee obtained judgment in this Court dated May 2,
1950 granting his petition for naturalization, he together with his wife So Buan Ty filed another
petition also in this Court in Special Proc. No. 1216 for the adoption of Ching Tiong Seng, Ching
Liong Ding, Victoria Ching Liong Yam, Sydney Ching and Ching Tiong An, all minors and admittedly
the illegitimate children of petitioner Ching Leng with one Sy An, a Chinese citizen. Finding the
petition for adoption proper, this Court granted the same in a decision dated September 12, 1950,
declaring the said minors free from all legal obligations of obedience and maintenance with respect
to their mother Sy An and to all legal intents and purposes the children of the adopter Ching Leng
alias Ching Ban Lee and So Buan Ty with all the legal rights and obligations provided by law.
On September 29, 1955, Ching Leng took his oath of allegiance and became therefore a full pledge
(sic) Filipino citizen. Believing now that his adopted illegitimate children became Filipino citizens by
virtue of his naturalization, petitioner Ching Leng addressed a communication to the respondent
Commissioner of Immigration requesting that the alien certificate of registration of the said minors be
cancelled. (Bold underscoring supplied)
In Ching Leng, the Court made a definitive ruling on the meaning of "minor child or children" in
Section 15 of the Naturalization Law,[34] as well as the meaning of children "whose parents are
citizens of the Philippines" under the Constitution. The Court categorically ruled that these children
refer to legitimate children only, and not to illegitimate children. Thus, the Court held:
It is claimed that the phrases "minor children" and "minor child", used in these provisions, include
adopted children. The argument is predicated upon the theory that an adopted child is, for all intents
and purposes, a legitimate child. Whenever, the word "children" or "child" is used in statutes, it is
generally understood, however, to refer to legitimate children, unless the context of the law and its
spirit indicate clearly the contrary. Thus, for instance, when the Constitution provides that "those
whose parents are citizens of the Philippines, "and "those whose mothers are citizens of the
Philippines," who shall elect Philippine citizenship "upon reaching the age of majority", are citizens of
the Philippines (Article IV, Section 1, subdivisions 3 and 4), our fundamental law clearly refers to
legitimate children (Chiong Bian vs. De Leon, 46 Off. Gaz., 3652-3654; Serra v. Republic, L-4223,
May 12, 1952).
Similarly, the children alluded to in said section 15 are those begotten in lawful wedlock, when the
adopter, at least is the father. In fact, illegitimate children are under the parental authority of the
mother and follow her nationality, not that of the illegitimate father (U.S. vs. Ong Tianse, 29 Phil.
332, 335-336; Santos Co vs. Gov’t of the Philippines, 52 Phil. 543, 544; Serra v. Republic, supra;
Gallofin v. Ordoñez, 70 Phil. 287; Quimsuan vs. Republic, L-4693, Feb. 16, 1953). Although,
adoption gives "to the adopted person the same rights and duties as if he were a legitimate child of
the adopter", pursuant to said Article 341 of our Civil Code, we have already seen that the rights
therein alluded to are merely those enumerated in Article 264, and do not include the acquisition of
the nationality of the adopter.
Moreover, as used in said section 15 of the Naturalization Law, the term "children" could not possibly
refer to those whose relation to the naturalized person is one created by legal fiction, as, for
instance, by adoption, for, otherwise, the place and time of birth of the child would be immaterial.
The fact that the adopted persons involved in the case at bar are illegitimate children of appellant
Ching Leng does not affect substantially the legal situation before us, for, by legal fiction, they are
now being sought to be given the status of legitimate children of said appellant, despite the
circumstance that the Civil Code of the Philippine does not permit their legitimation. (Bold
Ching Leng, penned by Justice Roberto Concepcion in October 1958, was a unanimous decision of
the Court En Banc. Subsequent Court decisions, including Paa v. Chan[35] and Morano et al. v.
Vivo,[36] have cited the doctrine laid down in Ching Leng that the provision in the 1935 Constitution
stating "those whose fathers are citizens of the Philippines" refers only to legitimate children. When
the 1973 and 1987 Constitutions were drafted, the framers did not attempt to change the intent of
this provision, even as they were presumably aware of the Ching Leng doctrine.
Nevertheless, I believe that it is now time to abandon the Ching Leng doctrine. The inexorable
direction of the law, both international and domestic in the last 100 years, is to eliminate all forms of
discrimination between legitimate and illegitimate children. Where the Constitution does not
distinguish between legitimate and illegitimate children, we should not also distinguish, especially
when private rights are not involved as in questions of citizenship. Abandoning the Ching Leng
doctrine upholds the equal protection clause of the Constitution. Abandoning the Ching Leng
doctrine is also in compliance with our treaty obligation under the Covenant on the Rights of Children
mandating States Parties to eliminate all forms of discrimination based on the status of children,
save of course those distinctions prescribed in the Constitution itself like the reservation of certain
high public offices to natural-born citizens.
Abandoning the Ching Leng doctrine does not mean, however, that an illegitimate child of a Filipino
father and an alien mother automatically becomes a Philippine citizen at birth. We have repeatedly
ruled that an illegitimate child does not enjoy any presumption of blood relation to the alleged father
until filiation or blood relation is proved as provided by law.[37] Article 887 of the Civil Code
expressly provides that "[I]n all cases of illegitimate children, their filiation must be duly proved." The
illegitimate child becomes a Philippine citizen only from the time he establishes his blood relation to
the Filipino father. If the blood relation is established after the birth of the illegitimate child, then the
child is not a natural-born Philippine citizen since an act is required after birth to acquire or perfect
his Philippine citizenship.
Conclusion
In conclusion, private respondent Fernando Poe, Jr. is not a natural-born Philippine citizen since
there is no showing that his alleged Filipino father Allan F. Poe acknowledged him at birth. The
Constitution defines a natural-born citizen as a Philippine citizen "from birth without having to
perform any act to acquire or perfect" his Philippine citizenship. Private respondent Fernando Poe,
Jr. does not meet this citizenship qualification.
Therefore, I vote to grant the petition of Victorino X. Fornier. However, I vote to dismiss the petitions
of Maria Jeanette C. Tecson, Felix B. Desiderio, Jr. and Zoilo Antonio Velez on the ground that their
direct petitions invoking the jurisdiction of the Court under Section 4, paragraph 7, Article VII of the
Constitution are premature, there being no election contest in this case
109
March 18, 2015
G.R. No. 199113
RENATO M. DAVID, Petitioner,

vs.
EDITHA A. AGBAY and PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
VILLARAMA, JR., J.:
This is a petition for review under Rule 45 seeking to reverse the Order1 dated October 8, 2011 of
the Regional Trial Court (RTC) of Pinamalayan, Oriental Mindoro, which denied the petition for
certiorari filed by Renato(petitioner)M. David. Petitioner assailed the Order2 dated March 22, 2011 of
the Municipal Trial Court (MTC) of Socorro, Oriental Mindoro denying his motion for redetermination
of probable cause.
The factual antecedents:
In 1974, petitioner migrated to Canada where he became a Canadian citizen by naturalization. Upon
their retirement, petitioner and his wife returned to the Philippines. Sometime in 2000, they
purchased a 600-square meter lot along the beach in Tambong, Gloria, Oriental Mindoro where they
constructed a residential house. However, in the year 2004, they came to know that the portion
where they built their house is public land and part of the salvage zone.
On April 12, 2007, petitioner filed a Miscellaneous Lease Application3 (MLA) over the subject land
with the Department of Environment and Natural Resources (DENR) at the Community Environment
and Natural Resources Office (CENRO) in Socorro. In the said application, petitioner indicated that
he is a Filipino citizen.
Private respondent Editha A. Agbay opposed the application on the ground that petitioner, a
Canadian citizen, is disqualified to own land. She also filed a criminal complaint for falsification of
public documents under Article 172 of the Revised Penal Code (RPC) (I.S. No. 08-6463) against the
petitioner.
Meanwhile, petitioner re-acquired his Filipino citizenship under the provisions of Republic Act No.
9225,4 (R.A. 9225) as evidenced by Identification Certificate No. 266-10-075 issued by the Consulate
General of the Philippines (Toronto) on October 11, 2007.
In his defense, petitioner averred that at the time he filed his application, he had intended to re-
acquire Philippine citizenship and that he had been assured by a CENRO officer that he could
declare himself as a Filipino. He further alleged that he bought the property from the Agbays who
misrepresented to him that the subject property was titled land and they have the right and authority
to convey the same. The dispute had in fact led to the institution of civil and criminal suits between
him and private respondent’s family.
On January 8, 2008,6 the Office of the Provincial Prosecutor issued its Resolution7 finding probable
cause to indict petitioner for violation of Article 172 of the RPC and recommending the filing of the
corresponding information in court. Petitioner challenged the said resolution in a petition for review
he filed before the Department of Justice (DOJ).
On June 3, 2008, the CENRO issued an order rejecting petitioner’s MLA. It ruled that petitioner’s
subsequent re-acquisition of Philippine citizenship did not cure the defect in his MLA which was
void ab initio.8
In the meantime, on July 26, 2010, the petition for review filed by petitioner was denied by the DOJ
which held that the presence of the elements of the crime of falsification of public document suffices
to warrant indictment of the petitioner notwithstanding the absence of any proof that he gained or
intended to injure a third person in committing the act of falsification.9 Consequently, an information
for Falsification of Public Document was filed before the MTC (Criminal Case No. 2012) and a
warrant of arrest was issued against the petitioner.
On February 11, 2011, after the filing of the Information and before his arrest, petitioner filed an
Urgent Motion for Re-Determination of Probable Cause10 in the MTC. Interpreting the provisions of
the law relied upon by petitioner, the said court denied the motion, holding that R.A. 9225 makes a
distinction between those who became foreign citizens during its effectivity, and those who lost their
Philippine citizenship before its enactment when the governing law was Commonwealth Act No.
6311 (CA 63). Since the crime for which petitioner was charged was alleged and admitted to have
been committed on April 12, 2007 before he had reacquired his Philippine citizenship, the MTC
concluded that petitioner was at that time still a Canadian citizen. Thus, the MTC ordered:
WHEREFORE, for lack of jurisdiction over the person of the accused, and for lack of merit, the
motion is DENIED.
SO ORDERED.12
In his motion for reconsideration,13 petitioner questioned the foregoing order denying him relief on the
ground of lack of jurisdiction and insisted that the issue raised is purely legal. He argued that since
his application had yet to receive final evaluation and action by the DENR Region IV-B office in
Manila, it is academic to ask the citizenship of the applicant (petitioner) who had re-acquired
Philippine citizenship six months after he applied for lease of public land. The MTC denied the
motion for reconsideration.14
Dissatisfied, petitioner elevated the case to the RTC via a petition15 for certiorari under Rule 65,
alleging grave abuse of discretion on the part of the MTC. He asserted that first, jurisdiction over the
person of an accused cannot be a pre-condition for the re-determination of probable cause by the
court that issues a warrant of arrest; and second, the March 22, 2011 Order disregarded the legal
fiction that once a natural-born Filipino citizen who had been naturalized in another country re-
acquires his citizenship under R.A. 9225, his Filipino citizenship is thus deemed not to have been
lost on account of said naturalization.
In his Comment and Opposition,16 the prosecutor emphasized that the act of falsification was already
consummated as petitioner has not yet re-acquired his Philippine citizenship, and his subsequent
oath to re-acquire Philippine citizenship will only affect his citizenship status and not his criminal act
which was long consummated prior to said oath of allegiance.
On October 8, 2011, the RTC issued the assailed Order denying the petition for certiorari after
finding no grave abuse of discretion committed by the lower court, thus:
ACCORDINGLY, the petition is hereby DENIED. At any rate petitioner is not left without any remedy
or recourse because he can proceed to trial where he can make use of his claim to be a Filipino
citizen as his defense to be adjudicated in a full blown trial, and in case of conviction, to appeal such
conviction.
SO ORDERED.17
Petitioner is now before us arguing that –
A. By supporting the prosecution of the petitioner for falsification, the lower court has
disregarded the undisputed fact that petitioner is a natural-born Filipino citizen, and that by
re-acquiring the same status under R.A. No. 9225 he was by legal fiction "deemed not to
have lost" it at the time of his naturalization in Canada and through the time when he was
said to have falsely claimed Philippine citizenship.
B. By compelling petitioner to first return from his legal residence in Canada and to surrender
or allow himself to be arrested under a warrant for his alleged false claim to Philippine
citizenship, the lower court has pre-empted the right of petitioner through his wife and
counsel to question the validity of the said warrant of arrest against him before the same is
implemented, which is tantamount to a denial of due process.18
In his Comment, the Solicitor General contends that petitioner’s argument regarding the retroactivity
of R.A. 9225 is without merit. It is contended that this Court’s rulings in Frivaldo v. Commission on
1âw phi1
Elections19 and Altarejos v. Commission on Elections20 on the retroactivity of one’s reacquisition of
Philippine citizenship to the date of filing his application therefor cannot be applied to the case of
herein petitioner. Even assuming for the sake of argument that such doctrine applies in the present
situation, it will still not work for petitioner’s cause for the simple reason that he had not alleged,
much less proved, that he had already applied for reacquisition of Philippine citizenship before he
made the declaration in the Public Land Application that he is a Filipino. Moreover, it is stressed that
in falsification of public document, it is not necessary that the idea of gain or intent to injure a third
person be present. As to petitioner’s defense of good faith, such remains to be a defense which may
be properly raised and proved in a full- blown trial.
On the issue of jurisdiction over the person of accused (petitioner), the Solicitor General opines that
in seeking an affirmative relief from the MTC when he filed his Urgent Motion for Re-determination of
Probable Cause, petitioner is deemed to have submitted his person to the said court’s jurisdiction by
his voluntary appearance. Nonetheless, the RTC correctly ruled that the lower court committed no
grave abuse of discretion in denying the petitioner’s motion after a judicious, thorough and personal
evaluation of the parties’ arguments contained in their respective pleadings, and the evidence
submitted before the court.
In sum, the Court is asked to resolve whether (1) petitioner may be indicted for falsification for
representing himself as a Filipino in his Public Land Application despite his subsequent re-
acquisition of Philippine citizenship under the provisions of R.A. 9225; and (2) the MTC properly
denied petitioner’s motion for re-determination of probable cause on the ground of lack of jurisdiction
over the person of the accused (petitioner).
R.A. 9225, otherwise known as the "Citizenship Retention and Re- acquisition Act of 2003," was
signed into law by President Gloria Macapagal-Arroyo on August 29, 2003. Sections 2 and 3 of said
law read:
SEC. 2. Declaration of Policy.–It is hereby declared the policy of the State that all Philippine citizens
who become citizens of another country shall be deemed not to have lost their Philippine
citizenship under the conditions of this Act.
SEC. 3. Retention of Philippine Citizenship.–Any provision of law to the contrary notwithstanding,

"I ______________________, solemnly swear (or affirm) that I will support and defend the
Constitution of the Republic of the Philippines and obey the laws and legal orders promulgated by
the duly constituted authorities of the Philippines; and I hereby declare that I recognize and accept
the supreme authority of the Philippines and will maintain true faith and allegiance thereto; and that I
impose this obligation upon myself voluntarily without mental reservation or purpose of evasion."
foreign country shall retain their Philippine citizenship upon taking the aforesaid
oath. (Emphasis supplied)
While Section 2 declares the general policy that Filipinos who have become citizens of another
country shall be deemed "not to have lost their Philippine citizenship," such is qualified by the phrase
"under the conditions of this Act." Section 3 lays down such conditions for two categories of natural-
born Filipinos referred to in the first and second paragraphs. Under the first paragraph are those
natural-born Filipinos who have lost their citizenship by naturalization in a foreign country who
shall re-acquire their Philippine citizenship upon taking the oath of allegiance to the Republic of the
Philippines. The second paragraph covers those natural-born Filipinos who became foreign citizens
after R.A. 9225 took effect, who shall retain their Philippine citizenship upon taking the same oath.
The taking of oath of allegiance is required for both categories of natural-born Filipino citizens who
became citizens of a foreign country, but the terminology used is different, "re-acquired" for the first
group, and "retain" for the second group.
The law thus makes a distinction between those natural-born Filipinos who became foreign citizens
before and after the effectivity of R.A. 9225. Although the heading of Section 3 is "Retention of
Philippine Citizenship", the authors of the law intentionally employed the terms "re-acquire" and
"retain" to describe the legal effect of taking the oath of allegiance to the Republic of the Philippines.
This is also evident from the title of the law using both re-acquisition and retention.
In fine, for those who were naturalized in a foreign country, they shall be deemed to have re-
acquired their Philippine citizenship which was lost pursuant to CA 63, under which naturalization in
a foreign country is one of the ways by which Philippine citizenship may be lost. As its title declares,
R.A. 9225 amends CA 63 by doing away with the provision in the old law which takes away
Philippine citizenship from natural-born Filipinos who become naturalized citizens of other countries
and allowing dual citizenship,21 and also provides for the procedure for re-acquiring and retaining
Philippine citizenship. In the case of those who became foreign citizens after R.A. 9225 took effect,
they shall retain Philippine citizenship despite having acquired foreign citizenship provided they took
the oath of allegiance under the new law.
Petitioner insists we should not distinguish between re-acquisition and retention in R.A. 9225. He
asserts that in criminal cases, that interpretation of the law which favors the accused is preferred
because it is consistent with the constitutional presumption of innocence, and in this case it becomes
more relevant when a seemingly difficult question of law is expected to have been understood by the
accused, who is a non-lawyer, at the time of the commission of the alleged offense. He further cites
the letter-reply dated January 31, 201122 of the Bureau of Immigration (BI) to his query, stating that
his status as a natural-born Filipino will be governed by Section 2 of R.A. 9225.
These contentions have no merit.
That the law distinguishes between re-acquisition and retention of Philippine citizenship was made
clear in the discussion of the Bicameral Conference Committee on the Disagreeing Provisions of
House Bill No. 4720 and Senate Bill No. 2130 held on August 18, 2003, where Senator Franklin
Drilon was responding to the query of Representative Exequiel Javier:
REP. JAVIER. I have some questions in Section 3. Here, under Section 3 of the Senate version,
"Any provision of law on the contrary notwithstanding, natural-born citizens of the Philippines who,
after the effectivity of this Act, shall… and so forth, ano, shall retain their Philippine citizenship.
Now in the second paragraph, natural-born citizens who have lost their citizenship by reason of their
naturalization after the effectivity of this Act are deemed to have reacquired…
THE CHAIRMAN (SEN. DRILON). Prior to the effectivity.
REP. JAVIER. Well, you have two kinds of natural-born citizens here. Natural-born citizens who
acquired foreign citizenship after the effectivity of this act are considered to have retained their
citizenship. But natural-born citizens who lost their Filipino citizenship before the effectivity of this act
are considered to have reacquired. May I know the distinction? Do you mean to say that natural-born
citizens who became, let’s say, American citizens after the effectivity of this act are considered
natural-born?
Now in the second paragraph are the natural-born citizens who lost their citizenship before the
effectivity of this act are no longer natural born citizens because they have just reacquired their
citizenship. I just want to know this distinction, Mr. Chairman.
THE CHAIRMAN (SEN. DRILON). The title of the Senate version is precisely retention and
reacquisition. The reacquisition will apply to those who lost their Philippine citizenship by
virtue of Commonwealth Act 63.Upon the effectivity -- assuming that we can agree on this, upon
the effectivity of this new measure amending Commonwealth Act 63, the Filipinos who lost their
citizenship is deemed to have reacquired their Philippine citizenship upon the effectivity of the act.
The second aspect is the retention of Philippine citizenship applying to future instances. So
that’s the distinction.
REP. JAVIER. Well, I’m just asking this question because we are here making distinctions between
natural-born citizens. Because this is very important for certain government positions, ‘no, because
natural-born citizens are only qualified for a specific…
THE CHAIRMAN (SEN. DRILON). That is correct.
REP. JAVIER. ...positions under the Constitution and under the law.
THE CHAIRMAN (SEN. DRILON). Yes. We can get to that later on. It’s one of the provisions, yes.
But just for purposes of the explanation, Congressman Javier, that is our conceptualization.
Reacquired for those who previously lost [Filipino citizenship] by virtue of Commonwealth
Act 63, and retention for those in the future. (Emphasis supplied)
Considering that petitioner was naturalized as a Canadian citizen prior to the effectivity of R.A. 9225,
he belongs to the first category of natural- born Filipinos under the first paragraph of Section 3 who
lost Philippine citizenship by naturalization in a foreign country. As the new law allows dual
citizenship, he was able to re-acquire his Philippine citizenship by taking the required oath of
allegiance.
For the purpose of determining the citizenship of petitioner at the time of filing his MLA, it is not
necessary to discuss the rulings in Frivaldo and Altarejos on the retroactivity of such reacquisition
because R.A. 9225 itself treats those of his category as having already lost Philippine citizenship, in
contradistinction to those natural-born Filipinos who became foreign citizens after R.A. 9225 came
into force. In other words, Section 2 declaring the policy that considers Filipinos who became foreign
citizens as not to have lost their Philippine citizenship, should be read together with Section 3, the
second paragraph of which clarifies that such policy governs all cases after the new law’s effectivity.
As to the letter-reply of BI, it simply quoted Section 2 of R.A. 9225 without any reference to Section 3
on the particular application of reacquisition and retention to Filipinos who became foreign citizens
before and after the effectivity of R.A. 9225.
Petitioner’s plea to adopt the interpretation most favorable to the accused is likewise misplaced.
Courts adopt an interpretation more favorable to the accused following the time-honored principle
that penal statutes are construed strictly against the State and liberally in favor of the accused.23 R.A.
9225, however, is not a penal law.
Falsification of documents under paragraph 1, Article 17224 in relation to Article 17125 of the RPC
refers to falsification by a private individual, or a public officer or employee who did not take
advantage of his official position, of public, private, or commercial documents. The elements of
falsification of documents under paragraph 1, Article 172 of the RPC are:
(1)that the offender is a private individual or a public officer or employee who did not take
advantage of his official position;
(2)that he committed any of the acts of falsification enumerated in Article 171 of the RPC;
and
(3)that the falsification was committed in a public, official or commercial document.26
Petitioner made the untruthful statement in the MLA, a public document, that he is a Filipino citizen
at the time of the filing of said application, when in fact he was then still a Canadian citizen. Under
CA 63, the governing law at the time he was naturalized as Canadian citizen, naturalization in a
foreign country was among those ways by which a natural-born citizen loses his Philippine
citizenship. While he re-acquired Philippine citizenship under R.A. 9225 six months later, the
falsification was already a consummated act, the said law having no retroactive effect insofar as his
dual citizenship status is concerned. The MTC therefore did not err in finding probable cause for
falsification of public document under Article 172, paragraph 1.
The MTC further cited lack of jurisdiction over the person of petitioner accused as ground for
denying petitioner’s motion for re- determination of probable cause, as the motion was filed prior to
his arrest. However, custody of the law is not required for the adjudication of reliefs other than an
application for bail.27 In Miranda v. Tuliao,28 which involved a motion to quash warrant of arrest, this
Court discussed the distinction between custody of the law and jurisdiction over the person, and held
that jurisdiction over the person of the accused is deemed waived when he files any pleading
seeking an affirmative relief, except in cases when he invokes the special jurisdiction of the court by
impugning such jurisdiction over his person. Thus:
In arguing, on the other hand, that jurisdiction over their person was already acquired by their filing
of the above Urgent Motion, petitioners invoke our pronouncement, through Justice Florenz D.
Regalado, in Santiago v. Vasquez:
The voluntary appearance of the accused, whereby the court acquires jurisdiction over his person, is
accomplished either by his pleading to the merits (such as by filing a motion to quash or other
pleadings requiring the exercise of the court’s jurisdiction thereover, appearing for arraignment,
entering trial) or by filing bail. On the matter of bail, since the same is intended to obtain the
provisional liberty of the accused, as a rule the same cannot be posted before custody of the
accused has been acquired by the judicial authorities either by his arrest or voluntary surrender.
Our pronouncement in Santiago shows a distinction between custody of the law and jurisdiction over
the person. Custody of the law is required before the court can act upon the application for bail, but
is not required for the adjudication of other reliefs sought by the defendant where the mere
application therefor constitutes a waiver of the defense of lack of jurisdiction over the person of the
accused. Custody of the law is accomplished either by arrest or voluntary surrender, while
jurisdiction over the person of the accused is acquired upon his arrest or voluntary appearance. One
can be under the custody of the law but not yet subject to the jurisdiction of the court over his
person, such as when a person arrested by virtue of a warrant files a motion before arraignment to
quash the warrant. On the other hand, one can be subject to the jurisdiction of the court over his
person, and yet not be in the custody of the law, such as when an accused escapes custody after
his trial has commenced. Being in the custody of the law signifies restraint on the person, who is
thereby deprived of his own will and liberty, binding him to become obedient to the will of the law.
Custody of the law is literally custody over the body of the accused. It includes, but is not limited to,
detention.
xxxx
While we stand by our above pronouncement in Pico insofar as it concerns bail, we clarify that, as a
general rule, one who seeks an affirmative relief is deemed to have submitted to the
jurisdiction of the court. As we held in the aforecited case of Santiago, seeking an affirmative
relief in court, whether in civil or criminal proceedings, constitutes voluntary appearance.
xxxx
To recapitulate what we have discussed so far, in criminal cases, jurisdiction over the person of
the accused is deemed waived by the accused when he files any pleading seeking an
affirmative relief, except in cases when he invokes the special jurisdiction of the court by
impugning such jurisdiction over his person.Therefore, in narrow cases involving special
appearances, an accused can invoke the processes of the court even though there is neither
jurisdiction over the person nor custody of the law. However, if a person invoking the special
jurisdiction of the court applies for bail, he must first submit himself to the custody of the
law.29 (Emphasis supplied)
Considering that petitioner sought affirmative relief in filing his motion for re-determination of
probable cause, the MTC clearly erred in stating that it lacked jurisdiction over his person.
Notwithstanding such erroneous ground stated in the MTC's order, the RTC correctly ruled that no
grave abuse of discretion was committed by the MTC in denying the said motion for lack of merit.
WHEREFORE, the petition is DENIED. The Order dated October 8, 2011 of the Regional Trial Court
of Pinamalayan, Oriental Mindoro in Civil Case No. SCA-07-11 (Criminal Case No. 2012) is
hereby AFFIRMED and UPHELD.
With costs against the petitioner.
SO ORDERED.
110

SUPREME COURT
FIRST DIVISION
G.R. No. 161629 July 29, 2005
ATTY. RONALDO P. LEDESMA, Petitioners,

vs.
HON. COURT OF APPEALS, HON. ANIANO A. DESIERTO, in his capacity as Ombudsman,
HON. ABELARDO L. APORTADERA, in his capacity as Assistant Ombudsman, and
Ombudsman’s Fact Finding and Intelligence Bureau, represented by Director AGAPITO
ROSALES,Respondents.
DECISION
This petition for review on certiorari seeks to reverse and set aside the decision1 dated August 28,
2003 and the resolution2 dated January 15, 2004 of the Court of Appeals3 in CA-G.R. SP No. 58264
which affirmed with modification public respondents’ (1) Joint Resolution dated January 22, 1999,
which ordered, among other things, petitioner’s suspension for one (1) year for conduct prejudicial to
the service; and (2) Order dated February 8, 2000, as reiterated in a Memorandum dated March 17,
2000, which denied petitioner’s motion for reconsideration but reduced his suspension to nine (9)
months without pay. The Court of Appeals modified the above issuances by further reducing
petitioner’s suspension from nine (9) months to six (6) months and one (1) day without pay.4
Petitioner Atty. Ronaldo P. Ledesma is the Chairman of the First Division of the Board of Special
Inquiry (BSI) of the Bureau of Immigration and Deportation (BID). In a letter-complaint filed by
Augusto Somalio with the Fact Finding and Intelligence Bureau (FIIB) of the Office of the
Ombudsman, an investigation was requested on alleged anomalies surrounding the extension of the
Temporary Resident Visas (TRVs) of two (2) foreign nationals. The FIIB investigation revealed
seven (7) other cases of TRV extensions tainted with similar irregularities.
As a result, the FIIB, as nominal complainant, filed before the Administrative Adjudication Bureau
(AAB) of the Office of the Ombudsman a formal complaint against herein petitioner. Also charged
administratively were Atty. Arthel Caronongan and Ma. Elena P. Ang, Board Member and Executive
Assistant, respectively, in petitioner’s division. With respect to petitioner, the complaint was treated
as both a criminal and an administrative charge and docketed as OMB-0-98-0214 (criminal aspect),
for nine (9) counts of violation of the Anti-Graft and Corrupt Practices Act and for falsification of
public documents, and OMB-ADM-0-98-0038 (administrative aspect), for nine (9) counts of
Dishonesty, Grave Misconduct, Falsification of Public Documents and Gross Neglect of Duty.
The complaint against petitioner, Caronongan and Ang alleged the following illegal acts: (a)
irregularly granting TRVs beyond the prescribed period; and (b) using "recycled" or photocopied
applications for a TRV extension without the applicants affixing their signatures anew to validate the
correctness and truthfulness of the information previously stated therein. Specifically, petitioner and
Caronongan allegedly signed the Memorandum of Transmittal to the Board of Commission (BOC) of
the BID, forwarding the applications for TRV extension of several aliens whose papers were
questionable.
In a Joint Resolution5 dated January 22, 1999, Graft Investigation Officer Marlyn M. Reyes resolved
the administrative cases filed against petitioner, Caronongan and Ang, as follows:
WHEREFORE, foregoing considered, it is respectfully recommended that:
1. Respondent ATTY. RONALDO P. LEDESMA be SUSPENDED from the service for one (1) year
for Conduct Prejudicial to the Interest of the Service;
2. The instant case against ATTY. ARTHEL B. CARONONGAN be DISMISSED, the same having
been rendered moot and academic; and
3. The instant case against respondent MA. ELENA P. ANG be DISMISSED for lack of sufficient
evidence.
SO RESOLVED.6
Respondent Assistant Ombudsman Abelardo L. Aportadera, Jr. reviewed the Joint Resolution which
was approved by respondent Ombudsman Desierto on December 29, 1999.7
In the meantime, on July 9, 1999, respondent Ombudsman approved a Resolution8 dated June 22,
1999 of Graft Investigation Officer Marilou B. Ancheta-Mejica, dismissing the criminal charges
against petitioner for insufficiency of evidence.9
Petitioner filed a motion for reconsideration10 in the administrative case alleging that the BOC which
reviews all applications for TRVs extension, approved the TRVs in question, hence, petitioner
argued that it effectively declared the applications for extension regular and in order and waived any
infirmity thereon.
In an Order11 dated February 8, 2000, Graft Officer Reyes recommended the denial of the motion for
reconsideration which was approved by respondent Ombudsman on March 24, 2000 but reduced
the period of suspension from one (1) year to nine (9) months without pay.
On April 13, 2000, petitioner filed a petition for review with the Court of Appeals, which included a
prayer for the issuance of a writ of preliminary prohibitory mandatory injunction and/or temporary
restraining order to enjoin public respondents from implementing the order of suspension. The Court
of Appeals issued the TRO on April 19, 2000.
In its Decision dated August 28, 2003, the Court of Appeals affirmed petitioner’s suspension but
reduced the period from nine (9) months to six (6) months and one (1) day without pay.12
With the denial of his motion for reconsideration, petitioner filed the instant petition for review on the
following grounds:
I.
IN PROMULGATING ITS ASSAILED DECISION, RESPONDENT COURT OF APPEALS

MANIFESTLY OVERLOOKED THE FOLLOWING RELEVANT FACTS AND MATTERS WHICH, IF
PROPERLY CONSIDERED, WOULD HAVE JUSTIFIED A DIFFERENT CONCLUSION IN FAVOR
OF PETITIONER:
...
II.
THE PRONOUNCEMENT OF RESPONDENT COURT OF APPEALS THAT THE FINDING OF THE

OMBUDSMAN IS NOT MERELY ADVISORY ON THE BUREAU OF IMMIGRATION (BI) IS
CONTRARY TO THE PERTINENT PROVISION OF THE 1987 CONSTITUTION AND APPLICABLE
DECISIONS OF THE HONORABLE COURT.
III.
RESPONDENT COURT OF APPEALS ALSO FAILED TO CONSIDER THAT THE OMBUDSMAN’S

RESOLUTION FINDING PETITIONER ADMINISTRATIVELY LIABLE CONSTITUTES AN
INDIRECT ENCROACHMENT INTO THE POWER OF THE BUREAU OF IMMIGRATION OVER
IMMIGRATION MATTERS.13
The petition lacks merit.
Petitioner insists that it was the BOC which approved the questioned applications for the extension
of the TRVs. He denies that he misled or deceived the BOC into approving these applications and
argues that the BOC effectively ratified his actions and sanctioned his conduct when it approved the
subject applications. Petitioner adds that he acted in good faith and the government did not suffer
any damage as a result of his alleged administrative lapse.
We are not persuaded. In his attempt to escape liability, petitioner undermines his position in the BID
and his role in the processing of the subject applications. But by his own admission,14 it appears that
the BSI not only transmits the applications for TRV extension and its supporting documents, but
more importantly, it interviews the applicants and evaluates their papers before making a
recommendation to the BOC. The BSI reviews the applications and when it finds them in order, it
executes a Memorandum of Transmittal to the BOC certifying to the regularity and propriety of the
applications.
In Arias v. Sandiganbayan,15 we stated that all heads of offices have to rely to a reasonable extent
on their subordinates. Practicality and efficiency in the conduct of government business dictate that
the gritty details be sifted and reviewed by the time it reaches the final approving authority. In the
case at bar, it is not unreasonable for the BOC to rely on the evaluation and recommendation of the
BSI as it cannot be expected to review every detail of each application transmitted for its approval.
Petitioner being the Chairman of the First Division of the BSI has direct supervision over its
proceedings. Thus, he cannot feign ignorance or good faith when the irregularities in the TRV
extension applications are so patently clear on its face. He is principally accountable for certifying
the regularity and propriety of the applications which he knew were defective.
Petitioner could not validly claim that he was singled out for prosecution. It is of record that
administrative cases were also filed against Caronongan and Ang, but extraneous circumstances
rendered the case against Caronongan moot while the case against Ang was dismissed because it
was proven that she merely implemented the approved decision of the BOC.
Equally untenable is the contention that the BOC’s approval of the defective applications for TRV
extension cured any infirmities therein and effectively absolved petitioner’s administrative lapse. The
instant administrative case pertains to the acts of petitioner as Chairman of the First Division of the
BSI in processing nine (9) defective applications, independent of and without regard to the action
taken by the BOC. It does not impugn the validity of the TRV extensions as to encroach upon the
authority of the BID on immigration matters. The main thrust of the case is to determine whether
petitioner committed any misconduct, nonfeasance, misfeasance or malfeasance in the performance
of his duties.
Anent the second and third grounds, petitioner essentially puts in issue the import of the
Ombudsman’s findings. Petitioner questions the Court of Appeals’ pronouncement that the findings
of the Ombudsman "may not be said to be merely recommendatory" upon the Immigration
Commissioner. He argues that to uphold the appellate court’s ruling expands the authority granted
by the Constitution to the Office of the Ombudsman and runs counter to prevailing jurisprudence on
the matter, particularly Tapiador v. Office of the Ombudsman.16 Petitioner submits that the
Ombudsman’s findings that the TRV applications were illegal constitutes an indirect interference by
the Ombudsman into the powers of the BOC over immigration matters.
We do not agree. The creation of the Office of the Ombudsman is a unique feature of the 1987
Constitution.17 The Ombudsman and his deputies, as protectors of the people, are mandated to act
promptly on complaints filed in any form or manner against officers or employees of the
Government, or of any subdivision, agency or instrumentality thereof, including government-owned
or controlled corporations.18 Foremost among its powers is the authority to investigate and prosecute
cases involving public officers and employees, thus:
Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties:
(1) Investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient.
Republic Act No. 6770, otherwise known as The Ombudsman Act of 1989, was passed into law on
November 17, 1989 and provided for the structural and functional organization of the Office of the
Ombudsman. RA 6770 mandated the Ombudsman and his deputies not only to act promptly on
complaints but also to enforce the administrative, civil and criminal liability of government officers
and employees in every case where the evidence warrants to promote efficient service by the
Government to the people.19
The authority of the Ombudsman to conduct administrative investigations as in the present case is
settled.20 Section 19 of RA 6770 provides:
SEC. 19. Administrative Complaints. – The Ombudsman shall act on all complaints relating, but not
limited to acts or omissions which:
(1) Are contrary to law or regulation;
(2) Are unreasonable, unfair, oppressive or discriminatory;
(3) Are inconsistent with the general course of an agency’s functions, though in accordance with law;
(4) Proceed from a mistake of law or an arbitrary ascertainment of facts;
(5) Are in the exercise of discretionary powers but for an improper purpose; or
(6) Are otherwise irregular, immoral or devoid of justification.
The point of contention is the binding power of any decision or order that emanates from the Office
of the Ombudsman after it has conducted its investigation. Under Section 13(3) of Article XI of the
1987 Constitution, it is provided:
...
(3) Direct the officer concerned to take appropriate action against a public official or employee at
fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith. (Emphasis supplied)
Petitioner insists that the word "recommend" be given its literal meaning; that is, that the
Ombudsman’s action is only advisory in nature rather than one having any binding effect,
citing Tapiador v. Office of the Ombudsman,21thus:
... Besides, assuming arguendo, that petitioner were administratively liable, the Ombudsman has no
authority to directly dismiss the petitioner from the government service, more particularly from his
position in the BID. Under Section 13, subparagraph (3), of Article XI of the 1987 Constitution, the
Ombudsman can only "recommend" the removal of the public official or employee found to be at
fault, to the public official concerned.22
For their part, the Solicitor General and the Office of the Ombudsman argue that the word
"recommend" must be taken in conjunction with the phrase "and ensure compliance therewith". The
proper interpretation of the Court’s statement in Tapiador should be that the Ombudsman has the
authority to determine the administrative liability of a public official or employee at fault, and direct
and compel the head of the office or agency concerned to implement the penalty imposed. In other
words, it merely concerns the procedural aspect of the Ombudsman’s functions and not
its jurisdiction.
We agree with the ratiocination of public respondents. Several reasons militate against a literal
interpretation of the subject constitutional provision. Firstly, a cursory reading of Tapiador reveals
that the main point of the case was the failure of the complainant therein to present substantial
evidence to prove the charges of the administrative case. The statement that made reference to the
power of the Ombudsman is, at best, merely an obiter dictum and, as it is unsupported by sufficient
explanation, is susceptible to varying interpretations, as what precisely is before us in this case.
Hence, it cannot be cited as a doctrinal declaration of this Court nor is it safe from judicial
examination.
The provisions of RA 6770 support public respondents’ theory. Section 15 is substantially the same
as Section 13, Article XI of the Constitution which provides for the powers, functions and duties of
the Ombudsman. We draw attention to subparagraph 3, to wit:
SEC. 15. Powers, Functions and Duties. – The Office of the Ombudsman shall have the following
powers, functions and duties:
...
(3) Direct the officer concerned to take appropriate action against a public officer or employee at
fault or who neglects to perform an act or discharge a duty required by law, and recommend his
removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or
enforce its disciplinary authority as provided in Section 21 of this Act: Provided, That the refusal by
any officer without just cause to comply with an order of the Ombudsman to remove, suspend,
demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform
an act or discharge a duty required by law shall be a ground for disciplinary action against said
officer; (Emphasis supplied)
We note that the proviso above qualifies the "order" "to remove, suspend, demote, fine, censure, or
prosecute" an officer or employee – akin to the questioned issuances in the case at bar. That the
refusal, without just cause, of any officer to comply with such an order of the Ombudsman to
penalize an erring officer or employee is a ground for disciplinary action, is a strong indication that
the Ombudsman’s "recommendation" is not merely advisory in nature but is actually mandatory
within the bounds of law. This should not be interpreted as usurpation by the Ombudsman of the
authority of the head of office or any officer concerned. It has long been settled that the power of the
Ombudsman to investigate and prosecute any illegal act or omission of any public official is not an
exclusive authority but a shared or concurrent authority in respect of the offense charged.23 By
stating therefore that the Ombudsman "recommends" the action to be taken against an erring officer
or employee, the provisions in the Constitution and in RA 6770 intended that the implementation of
the order be coursed through the proper officer, which in this case would be the head of the BID.
It is likewise apparent that under RA 6770, the lawmakers intended to provide the Office of the
Ombudsman with sufficient muscle to ensure that it can effectively carry out its mandate as protector
of the people against inept and corrupt government officers and employees. The Office was granted
the power to punish for contempt in accordance with the Rules of Court.24 It was given disciplinary
authority over all elective and appointive officials of the government and its subdivisions,
instrumentalities and agencies (with the exception only of impeachable officers, members of
Congress and the Judiciary).25 Also, it can preventively suspend any officer under its authority
pending an investigation when the case so warrants.26
The foregoing interpretation is consistent with the wisdom and spirit behind the creation of the Office
of the Ombudsman. The records of the deliberations of the Constitutional Commission27 reveal the
following:
MR. MONSOD:
Madam President, perhaps it might be helpful if we give the spirit and intendment of the Committee.
What we wanted to avoid is the situation where it deteriorates into a prosecution arm. We wanted to
give the idea of the Ombudsman a chance, with prestige and persuasive powers, and also a chance
to really function as a champion of the citizen.
However, we do not want to foreclose the possibility that in the future, The Assembly, as it may see
fit, may have to give additional powers to the Ombudsman; we want to give the concept of a pure
Ombudsman a chance under the Constitution.
MR. RODRIGO:
Madam President, what I am worried about is if we create a constitutional body which has neither
punitive nor prosecutory powers but only persuasive powers, we might be raising the hopes of our
people too much and then disappoint them.
MR. MONSOD:
I agree with the Commissioner.
MR. RODRIGO:
Anyway, since we state that the powers of the Ombudsman can later on be implemented by the
legislature, why not leave this to the legislature?28
MR. MONSOD:
Yes, because we want to avoid what happened in 1973. I read the committee report which
recommended the approval of the 27 resolutions for the creation of the office of the Ombudsman,
but notwithstanding the explicit purpose enunciated in that report, the implementing law – the last
one, P.D. No. 1630—did not follow the main thrust; instead it created the Tanodbayan, ...
...
MR. MONSOD: (reacting to statements of Commissioner Blas Ople):
May we just state that perhaps the honorable Commissioner has looked at it in too much of an
absolutist position, The Ombudsman is seen as a civil advocate or a champion of the citizens
against the bureaucracy, not against the President. On one hand, we are told he has no teeth and
he lacks other things. On the other hand, there is the interpretation that he is a competitor to the
President, as if he is being brought up to the same level as the President.
With respect to the argument that he is a toothless animal, we would like to say that we are
promoting the concept in its form at the present, but we are also saying that he can exercise such
powers and functions as may be provided by law in accordance with the direction of the thinking of
Commissioner Rodrigo. We did not think that at this time we should prescribe this, but we leave it up
to Congress at some future time if it feels that it may need to designate what powers the
Ombudsman need in order that he be more effective. This is not foreclosed.
So, his is a reversible disability, unlike that of a eunuch; it is not an irreversible disability. (Emphasis
supplied)29
It is thus clear that the framers of our Constitution intended to create a stronger and more effective
Ombudsman, independent and beyond the reach of political influences and vested with powers that
are not merely persuasive in character. The Constitutional Commission left to Congress to empower
the Ombudsman with prosecutorial functions which it did when RA 6770 was enacted. In the case
of Uy v. Sandiganbayan,30 it was held:
Clearly, the Philippine Ombudsman departs from the classical Ombudsman model whose function is
merely to receive and process the people’s complaints against corrupt and abusive government
personnel. The Philippine Ombudsman, as protector of the people, is armed with the power to
prosecute erring public officers and employees, giving him an active role in the enforcement of laws
on anti-graft and corrupt practices and such other offenses that may be committed by such officers
and employees. The legislature has vested him with broad powers to enable him to implement his
own actions. ...31
In light of the foregoing, we hold that the Court of Appeals did not commit any error in finding the
petitioner guilty of conduct prejudicial to the interest of the service and reducing petitioner’s period of
suspension to six (6) months and one (1) day without pay, taking into account the education and
length of service of petitioner.
WHEREFORE, the instant petition is DENIED. The Decision dated August 28, 2003 and the
Resolution dated January 15, 2004 of the Court of Appeals in CA-G.R. SP No. 58264
are AFFIRMED.
SO ORDERED.
111
G. R. No. 159314 June 26, 2006
EDGARDO V. ESTARIJA, Petitioner,

vs.
EDWARD F. RANADA and the Honorable OMBUDSMAN Aniano A. Desierto (now succeeded
by Hon. Simeon Marcelo), and his Deputy OMBUDSMAN for Mindanao, Hon. Antonio E.
Valenzuela, Respondents.
DECISION
QUISUMBING, J.:
This petition for review on certiorari assails the February 12, 2003 Decision1 of the Court of Appeals
in CA-G.R. SP No. 62557 which affirmed the October 2, 2000 Decision2 of the Office of the
Ombudsman-Mindanao in OMB-MIN-ADM-98-183.
The facts are as follows:
On August 10, 1998, respondent Edward F. Ranada, a member of the Davao Pilots Association, Inc.
(DPAI) and Davao Tugboat and Allied Services, Inc., (DTASI) filed an administrative complaint for
Gross Misconduct before the Office of the Ombudsman-Mindanao, against petitioner Captain
Edgardo V. Estarija, Harbor Master of the Philippine Ports Authority (PPA), Port of Davao, Sasa,
Davao City.3
The complaint alleged that Estarija, who as Harbor Master issues the necessary berthing permit for
all ships that dock in the Davao Port, had been demanding monies ranging from P200 to P2000 for
the approval and issuance of berthing permits, and P5000 as monthly contribution from the DPAI.
The complaint alleged that prior to August 6, 1998, in order to stop the mulcting and extortion
activities of Estarija, the association reported Estarija’s activities to the National Bureau of
Investigation (NBI). On August 6, 1998, the NBI caught Estarija in possession of the P5,000 marked
money used by the NBI to entrap Estarija.
Consequently, the Ombudsman ordered petitioner’s preventive suspension4 and directed him to
answer the complaint. The Ombudsman filed a criminal case docketed as Criminal Case No. 41,464-
98, against Estarija for violation of Republic Act No. 3019, The Anti-Graft and Corrupt Practices Act,
before the Regional Trial Court of Davao City, Branch No. 8.5
In his counter-affidavit6 and supplemental counter-affidavit,7 petitioner vehemently denied demanding

sums of money for the approval of berthing permits. He claimed that Adrian Cagata, an employee of
the DPAI, called to inform him that the DPAI had payables to the PPA, and although he went to the
association’s office, he was hesitant to get the P5,000 from Cagata because the association had no
pending transaction with the PPA. Estarija claimed that Cagata made him believe that the money
was a partial remittance to the PPA of the pilotage fee for July 1998 representing 10% of the monthly
gross revenue of their association. Nonetheless, he received the money but assured Cagata that he
would send an official receipt the following day. He claimed that the entrapment and the subsequent
filing of the complaint were part of a conspiracy to exact personal vengeance against him on account
of Ranada’s business losses occasioned by the cancellation of the latter’s sub-agency agreement
with Asia Pacific Chartering Phil., Inc., which was eventually awarded to a shipping agency managed
by Estarija’s son.
On August 31, 2000, the Ombudsman rendered a decision8 in the administrative case, finding
Estarija guilty of dishonesty and grave misconduct. The dispositive portion reads:
WHEREFORE, premises considered, there being substantial evidence, respondent EDGARDO V.

ESTARIJA is hereby found guilty of Dishonesty and Grave Misconduct and is hereby DISMISSED
from the service with forfeiture of all leave credits and retirement benefits, pursuant to Section 23(a)
and (c) of Rule XIV, Book V, in relation to Section 9 of Rule XIV both of the Omnibus Rules
Implementing Book V of the Administrative Code of 1987 (Executive Order No. 292). He is
disqualified from re-employment in the national and local governments, as well as in any government
instrumentality or agency, including government owned or controlled corporations. This decision is
immediately executory after it attains finality. Let a copy of this decision be entered in the personal
records of respondent EDGARDO V. ESTARIJA.
PPA Manager Manuel C. Albarracin is hereby directed to implement this Office Decision after it
attains finality.
SO DECREED.9
Estarija seasonably filed a motion for reconsideration.10 Estarija claimed that dismissal was
unconstitutional since the Ombudsman did not have direct and immediate power to remove
government officials, whether elective or appointive, who are not removable by impeachment. He
maintains that under the 1987 Constitution, the Ombudsman’s administrative authority is merely
recommendatory, and that Republic Act No. 6770, otherwise known as "The Ombudsman Act of
1989", is unconstitutional because it gives the Office of the Ombudsman additional powers that are
not provided for in the Constitution.
The Ombudsman denied the motion for reconsideration in an Order11 dated October 31, 2000. Thus,
Estarija filed a Petition for Review with urgent prayer for the issuance of a temporary restraining
order and writ of preliminary prohibitory injunction before the Court of Appeals. The Court of
Appeals, on February 12, 2003, dismissed the petition and affirmed the Ombudsman’s decision.
The Court of Appeals held that the attack on the constitutionality of Rep. Act No. 6770 was
procedurally and substantially flawed. First, the constitutionality issue was belatedly raised in the
motion for reconsideration of the decision of the Ombudsman. Second, the petitioner was unable to
prove the constitutional breach and failed to overcome the presumption of constitutionality in favor of
the questioned statute.
The Court of Appeals affirmed the decision of the Ombudsman, holding that receiving extortion
money constituted dishonesty and grave misconduct. According to the Court of Appeals, petitioner
failed to refute the convincing evidence offered by the complainant. Petitioner presented affidavits
executed by the high-ranking officials of various shipping agencies which were found by the Court of
Appeals to be couched in general and loose terms, and according to the appellate court, could not
be given more evidentiary weight than the sworn testimonies of complainant and other witnesses
that were subjected to cross-examination.
Petitioner filed a motion for reconsideration but the Court of Appeals denied the same for lack of
merit. Hence, the instant petition assigning the following errors:
(A) That certain basic factual findings of the Court of Appeals as hereunder specified,
are not borne by any substantial evidence, or are contrary to the evidence on record,
or that the Court of Appeals has drawn a conclusion or inference which is manifestly
mistaken or is based on a misappreciation of the facts as to call for a corrective
review by this Honorable Supreme Court;
(B) That Republic Act No. 6770, otherwise known as the "Ombudsman’s Act of 1989",
is unconstitutional, or that the Honorable OMBUDSMAN does not have any
constitutional direct and immediate power, authority or jurisdiction to remove,
suspend, demote, fine or censure, herein Petitioner and all other government officials,
elective or appointive, not removable by impeachment, consistent with Sec. 13, par.
No. (3), Art XI, of the 1987 Philippine Constitution.
(C) That corollary to, or consistent with, the aforecited Second Reason, said
REPUBLIC ACT No. 6770, as amended, is constitutionally impaired and invalid insofar
as it is inconsistent with, or violative of, the aforecited constitutional provisions (Sec
13, No. 3, Art XI).
(D) That the issue of "jurisdiction" or constitutionality or validity of a law, statute, rule
or regulation can be raised at any stage of the case, even by way of a motion for
reconsideration after a decision has been rendered by the court or judicial arbiter
concerned.
(E) That the DECISION of the Court of Appeals is contrary to jurisprudential law,
specifically to the ruling of this Honorable SUPREME COURT in the case of "Renato A.
Tapiador, Petitioner versusOffice of the Ombudsman and Atty. Ronaldo P. Ledesma,
Respondents, G.R No. 129124" decided on March 15, 2002.
(F) That assuming arguendo that the Honorable OMBUDSMAN does have such direct
constitutional power to remove, suspend, etc. government officials not removable by
impeachment, the DECISION rendered in said case OMB-MIN-ADM-98-[183], finding
Petitioner "guilty of Dishonesty and Grave Misconduct" and directing his "dismissal
from the service, with forfeiture of all leave credits and retirement benefits xxx", is still
contrary to law and the evidence on record, or, at the very least, the charge of
"Dishonesty" is not included in RANADA’s administrative complaint and absolutely no
evidence was presented to prove "Dishonesty" and the complaint which was limited
to "[Grave] Misconduct" only;
(G) That further assuming arguendo that Petitioner is subject to direct administrative
disciplinary authority by the Honorable OMBUDSMAN whether under the Constitution
or RA 6770, and assuming that he is "guilty" of "Dishonesty and Grave Misconduct",
the Court of Appeals violated Sec. 25 of R.A. 6770 for not considering and applying,
several mitigating circumstances in favor of Petitioner and that the penalty (of
dismissal with loss of benefits) imposed by OMBUDSMAN is violative of Sec. 25, of
R.A. 6770 and is too harsh, inhumane, violative of his human dignity, human rights
and his other constitutional right not to be deprived of his property and/or property
rights without due process, is manifestly unproportionate to the offense for which
Petitioner is being penalized, and, should, therefore, be substantially modified or
reduced to make it fair, reasonable, just, humane and proportionate to the offense
committed. (Emphasis supplied).12
Essentially, the issues for our resolution are: First, Is there substantial evidence to hold petitioner
liable for dishonesty and grave misconduct? Second, Is the power of the Ombudsman to directly
remove, suspend, demote, fine or censure erring officials unconstitutional?
On the first issue, petitioner claims that the factual findings of the Court of Appeals are not supported
by substantial evidence, and that the Court of Appeals misappreciated the facts of the case.
Petitioner contends that he cannot be liable for grave misconduct as he did not commit extortion. He
insists that he was merely prodded by Adrian Cagata to receive the money. He claims that as a
bonded official it was not wrong for him to receive the money and he had authority to assist the
agency in the collection of money due to the agency, e.g. payment for berthing permits. Moreover,
he argues that the signing of berthing permits is only ministerial on his part and he does not have
influence on their approval, which is the function of the berthing committee. Consequently, he avers,
it makes no sense why he would extort money in consideration of the issuance of berthing permits.
We note that indeed petitioner has no hand in the approval of berthing permits. But, it is undisputed
that he does decide on the berthing space to be occupied by the vessels. The berthing committee
likewise consults him on technical matters. We note, too, that he claims he was only instructed to
receive the money from Cagata, yet he admits that there was no pending transaction between the
PPA and the DPAI.
In his Comment, the Ombudsman, through the Solicitor General, counters that petitioner raised
questions of facts which are not reviewable by this Court. He argued that contrary to the petitioner’s
claim, the judgment of guilt for dishonesty and grave misconduct was based on the evidence
presented. Petitioner was caught red-handed in an entrapment operation by the NBI. According to
the Ombudsman, the entrapment of the petitioner met the test for a valid entrapment i.e. the conduct
of the law enforcement agent was not likely to induce a normally law-abiding person, other than one
who is ready and willing to commit the offense. The presumption in entrapment is that a law abiding
person would normally resist the temptation to commit a crime that is presented by the simple
opportunity to act unlawfully. Entrapment is contingent on the accused’s predisposition to commit the
offense charged, his state of mind, and his inclination before his exposure to government agents.
Thus, entrapment is not made ineffectual by the conduct of the entrapping officers. When Estarija
went to the office of Adrian Cagata to pick up the money, his doing so was indicative of his
willingness to commit the crime.
In an administrative proceeding, the quantum of proof required for a finding of guilt is only substantial
evidence, that amount of relevant evidence which a reasonable mind might accept as adequate to
justify a conclusion.13 Further, precedents tell us that the factual findings of the Office of the
Ombudsman when supported by substantial evidence are conclusive,14 and such findings made by
an administrative body which has acquired expertise are accorded not only respect but even
finality.15
As shown on the records, Estarija called the office of the DPAI and demanded the payment of the
monthly contribution from Captain Zamora. Captain Zamora conveyed the demand to Ranada who
in turn reported the matter to the NBI. Thereafter, an entrapment operation was staged. Adrian
Cagata called Estarija to confirm the payment, and that the money was already available at their
office. Accordingly, Estarija went to the DPAI office and collected the P5,000 marked money. Upon
departure of Estarija from the office, the NBI operatives frisked him and recovered the P5,000
marked money.
We are unconvinced by Estarija’s explanation of his conduct. He does not deny that he went to the
DPAI office to collect the money and that he actually received the money. Since there was no
pending transaction between the PPA and the DPAI, he had no reason to go to the latter’s office to
collect any money. Even if he was authorized to assist in the collection of money due the agency, he
should have issued an official receipt for the transaction, but he did not do so. All told, we are
convinced that there is substantial evidence to hold petitioner liable for grave misconduct.
Misconduct is a transgression of some established and definite rule of action, more particularly,
unlawful behavior or gross negligence by a public officer. And when the elements of corruption, clear
intent to violate the law or flagrant disregard of established rule are manifest, the public officer shall
be liable for grave misconduct.16 We are convinced that the decision of the Ombudsman finding
petitioner administratively liable for grave misconduct is based on substantial evidence. When there
is substantial evidence in support of the Ombudsman’s decision, that decision will not be
overturned.17
The same findings sustain the conclusion that Estarija is guilty of dishonesty. The term dishonesty
implies disposition to lie, cheat, deceive, or defraud, untrustworthiness, lack of integrity, lack of
honesty, probity or integrity in principle, lack of fairness and straightforwardness, disposition to
defraud, deceive or betray.18 Patently, petitioner had been dishonest about accepting money from
DPAI.
Now, the issue pending before us is: Does the Ombudsman have the constitutional power to directly
remove from government service an erring public official?
At the outset, the Court of Appeals held that the constitutional question on the Ombudsman’s power
cannot be entertained because it was not pleaded at the earliest opportunity. The Court of Appeals
said that petitioner had every opportunity to raise the same in his pleadings and during the course of
the trial. Instead, it was only after the adverse decision of the Ombudsman that he was prompted to
assail the power of the Ombudsman in his motion for reconsideration. The Court of Appeals held
that the constitutional issue was belatedly raised in the proceedings before the Ombudsman, thus, it
cannot be considered on appeal.
When the issue of unconstitutionality of a legislative act is raised, the Court may exercise its power
of judicial review only if the following requisites are present: (1) an actual and appropriate case and
controversy; (2) a personal and substantial interest of the party raising the constitutional question;
(3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the constitutional
question raised is the very lis mota of the case.19
For our purpose, only the third requisite is in question. Unequivocally, the law requires that the
question of constitutionality of a statute must be raised at the earliest opportunity. In Matibag v.
Benipayo,20 we held that the earliest opportunity to raise a constitutional issue is to raise it in the
pleadings before a competent court that can resolve the same, such that, if it was not raised in the
pleadings before a competent court, it cannot be considered at the trial, and, if not considered in the
trial, it cannot be considered on appeal.
In Matibag, President Gloria Macapagal-Arroyo appointed, ad interim, Alfredo L. Benipayo as

Chairman of the Commission on Elections (COMELEC). Ma. J. Angelina G. Matibag was the
Director IV of the Education and Information Department (EID) but Benipayo reassigned her to the
Law Department. Matibag sought reconsideration of her relief as Director of the EID and her
reassignment to the Law Department. Benipayo denied her request for reconsideration.
Consequently, Matibag appealed the denial of her request to the COMELEC en banc. In addition,
Matibag filed a complaint against Benipayo before the Law Department for violation of the Civil
Service Rules and election laws. During the pendency of her complaint before the Law Department,
Matibag filed a petition before this Court assailing the constitutionality of the ad interim appointment
of Benipayo and the other COMELEC Commissioners. We held that the constitutional issue was
raised on time because it was the earliest opportunity for pleading the constitutional issue before a
competent body.
In the case of Umali v. Guingona, Jr.,21 the question of the constitutionality of the creation of the
Presidential Commission on Anti-Graft and Corruption (PCAGC) was raised in the motion for
reconsideration after the Regional Trial Court of Makati rendered a decision. When appealed, the
Court did not entertain the constitutional issue because it was not raised in the pleadings in the trial
court. In that case, the Court did not exercise judicial review on the constitutional question because it
was belatedly raised and not properly pleaded, thus, it cannot be considered by the Court on appeal.
In this case, petitioner raised the issue of constitutionality of Rep. Act No. 6770 in his motion for the
reconsideration of the Ombudsman’s decision. Verily, the Ombudsman has no jurisdiction to
entertain questions on the constitutionality of a law. Thus, when petitioner raised the issue of
constitutionality of Rep. Act No. 6770 before the Court of Appeals, which is the competent court, the
constitutional question was raised at the earliest opportune time. Furthermore, this Court may
determine, in the exercise of sound discretion, the time when a constitutional issue may be passed
upon.22
In assailing the constitutionality of Rep. Act No. 6770, petitioner contends that the Ombudsman has
only the powers enumerated under Section 13,23 Article XI of the Constitution; and that such powers
do not include the power to directly remove, suspend, demote, fine, or censure a government official.
Its power is merely to recommend the action to the officer concerned. Moreover, petitioner,
citing Tapiador v. Office of the Ombudsman,24 insists that although the Constitution provides that the
Ombudsman can promulgate its own rules of procedure and exercise other powers or perform such
functions or duties as may be provided by law,
Sections 15,25 21,26 2227 and 2528 of Rep. Act No. 6770 are inconsistent with Section 13, Article XI of
the Constitution because the power of the Ombudsman is merely to recommend appropriate actions
to the officer concerned.
For the State, the Solicitor General maintains that the framers of the 1987 Constitution did not intend
to spell out, restrictively, each act which the Ombudsman may or may not do, since the purpose of
the Constitution is to provide simply a framework within which to build the institution. In addition, the
Solicitor General avers that what petitioner invoked was merely an obiter dictum in the case
of Tapiador v. Office of the Ombudsman.
We find petitioner’s contentions without merit. Among the powers of the Ombudsman enumerated in
Section 13, Article XI of the Constitution are:
1. Investigate on its own, or on complaint by any person, any act or omission of any public
official, employee, office or agency, when such act or omission appears to be illegal, unjust,
improper, or inefficient.
2. Direct, upon complaint or at its own instance, any public official or employee of the
Government, or any subdivision, agency or instrumentality thereof, as well as of any
government owned or controlled corporation with original charter, to perform and expedite
any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in
the performance of duties.
3. Direct the Officer concerned to take appropriate action against a public official or
employee at fault, and recommend his removal, suspension, demotion, fine, censure, or
prosecution, and ensure compliance therewith.
4. Direct the officer concerned, in any appropriate case, and subject to such limitations as
may be provided by law, to furnish it with copies of documents relating to contracts or
transactions entered into by his office involving the disbursement or use of public funds or
properties, and report any irregularity to the Commission on Audit for appropriate action.
5. Request any government agency for assistance and information necessary in the
discharge of its responsibilities, and to examine, if necessary, pertinent records and
documents.
6. Publicize matters covered by its investigation when circumstances so warrant and with
due prudence.
7. Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in
the Government and make recommendations for their elimination and the observance of high
standards of ethics and efficiency.
8. Promulgate its rules of procedure and exercise such other powers or perform such
functions or duties as may be provided by law.
Rep. Act No. 6770 provides for the functional and structural organization of the Office of the
Ombudsman. In passing Rep. Act No. 6770, Congress deliberately endowed the Ombudsman with
the power to prosecute offenses committed by public officers and employees to make him a more
active and effective agent of the people in ensuring accountability in public office.29 Moreover, the
legislature has vested the Ombudsman with broad powers to enable him to implement his own
actions.30
In Ledesma v. Court of Appeals,31 we held that Rep. Act No. 6770 is consistent with the intent of the
framers of the 1987 Constitution. They gave Congress the discretion to give the Ombudsman
powers that are not merely persuasive in character. Thus, in addition to the power of the
Ombudsman to prosecute and conduct investigations, the lawmakers intended to provide the
Ombudsman with the power to punish for contempt and preventively suspend any officer under his
authority pending an investigation when the case so warrants. He was likewise given disciplinary
authority over all elective and appointive officials of the government and its subdivisions,
instrumentalities and agencies except members of Congress and the Judiciary.
We also held in Ledesma that the statement in Tapiador v. Office of the Ombudsman that made
reference to the power of the Ombudsman is, at best, merely an obiter dictum and cannot be cited
as a doctrinal declaration of this Court.32
Lastly, the Constitution gave Congress the discretion to give the Ombudsman other powers and
functions. Expounding on this power of Congress to prescribe other powers, functions, and duties to
the Ombudsman, we quote Commissioners Colayco and Monsod during the interpellation by
Commissioner Rodrigo in the Constitutional Commission of 1986 on the debates relative to the
power of the Ombudsman:
MR. RODRIGO: Let us go back to the division between the powers of the Tanodbayan and the
Ombudsman which says that:
The Tanodbayan . . . shall continue to function and exercise its powers as provided by law, except
those conferred on the office of the Ombudsman created under this Constitution.
The powers of the Ombudsman are enumerated in Section 12.
MR. COLAYCO: They are not exclusive.
MR. RODRIGO: So, these powers can also be exercised by the Tanodbayan?
MR. COLAYCO: No, I was saying that the powers enumerated here for the Ombudsman are not
exclusive.
MR. RODRIGO: Precisely, I am coming to that. The last of the enumerated functions of the
Ombudsman is: "to exercise such powers or perform such functions or duties as may be provided by
law." So, the legislature may vest him with powers taken away from the Tanodbayan, may it not?
MR. COLAYCO: Yes.
MR. MONSOD: Yes.
xxxx
MR. RODRIGO: And precisely, Section 12(6) says that among the functions that can be performed
by the Ombudsman are "such functions or duties as may be provided by law." x x x
MR. COLAYCO: Madam President, that is correct.
MR. MONSOD: Madam President, perhaps it might be helpful if we give the spirit and intendment of
the Committee. What we wanted to avoid is the situation where it deteriorates into a prosecution
arm. We wanted to give the idea of the Ombudsman a chance, with prestige and persuasive powers,
and also a chance to really function as a champion of the citizen.
However, we do not want to foreclose the possibility that in the future, the Assembly, as it may see
fit, may have to give additional powers to the Ombudsman; we want to give the concept of a pure
Ombudsman a chance under the Constitution.
MR. RODRIGO: Madam President, what I am worried about is, if we create a constitutional body
which has neither punitive nor prosecutory powers but only persuasive powers, we might be raising
the hopes of our people too much and then disappoint them.
MR. MONSOD: I agree with the Commissioner.
MR. RODRIGO: Anyway, since we state that the powers of the Ombudsman can later on be
implemented by the legislature, why not leave this to the legislature?
MR. MONSOD: Yes, because we want to avoid what happened in 1973. I read the committee report
which recommended the approval of the 27 resolutions for the creation of the office of the
Ombudsman, but notwithstanding the explicit purpose enunciated in that report, the implementing
law — the last one, P.D. No. 1630 — did not follow the main thrust; instead it created the
Tanodbayan (2 record, 270-271). (emphasis supplied)
xxxx
MR. MONSOD (reacting to statements of Commissioner Blas Ople): May we just state that perhaps
the [H]onorable Commissioner has looked at it in too much of an absolutist position. The
Ombudsman is seen as a civil advocate or a champion of the citizens against the bureaucracy, not
against the President. On one hand, we are told he has no teeth and he lacks other things. On the
other hand, there is the interpretation that he is a competitor to the President, as if he is being
brought up to the same level as the President.
With respect to the argument that he is a toothless animal, we would like to say that we are
promoting the concept in its form at the present, but we are also saying that he can exercise such
powers and functions as may be provided by law in accordance with the direction of the thinking of
Commissioner Rodrigo. We did not think that at this time we should prescribe this, but we leave it up
to Congress at some future time if it feels that it may need to designate what powers the
Ombudsman need in order that he be more effective. This is not foreclosed.
So, this is a reversible disability, unlike that of a eunuch; it is not an irreversible disability (emphasis
supplied).33
Thus, the Constitution does not restrict the powers of the Ombudsman in Section 13, Article XI of the
1987 Constitution, but allows the Legislature to enact a law that would spell out the powers of the
Ombudsman. Through the enactment of Rep. Act No. 6770, specifically Section 15, par. 3, the
lawmakers gave the Ombudsman such powers to sanction erring officials and employees, except
members of Congress, and the Judiciary.34 To conclude, we hold that Sections 15, 21, 22 and 25 of
Republic Act No. 6770 are constitutionally sound. The powers of the Ombudsman are not merely
recommendatory. His office was given teeth to render this constitutional body not merely functional
but also effective. Thus, we hold that under Republic Act No. 6770 and the 1987 Constitution, the
Ombudsman has the constitutional power to directly remove from government service an erring
public official other than a member of Congress and the Judiciary.
WHEREFORE, the petition is DENIED. The assailed Decision dated February 12, 2003 of the Court
of Appeals in CA-G.R. SP No. 62557 and Resolution dated July 28, 2003 are hereby AFFIRMED.
No costs.
SO ORDERED.
112
G.R. Nos. 140199-200 February 6, 2002
FELICITO S. MACALINO, petitioner,

vs.
SANDIGANBAYAN and OFFICE OF THE OMBUDSMAN, respondents.
DECISION
PARDO, J.:
The case is a petition for certiorari1 assailing the jurisdiction of the Ombudsman and the
Sandiganbayan to take cognizance of two criminal cases2 against petitioner and his wife Liwayway
S. Tan, contending that he is not a public officer within the jurisdiction of the Sandiganbayan.3
On September 16, 1992, the Special Prosecutor, Office of the Ombudsman, with the approval of the
Ombudsman, filed with the Sandiganbayan two informations against petitioner and Liwayway S. Tan
charging them with estafa through falsification of official documents (Criminal Case No. 18022) and
frustrated estafa through falsification of mercantile documents (Criminal Case No. 19268), as
follows:
"CRIMINAL CASE NO. 18022
"That on or about the 15th day of March, 1989 and for sometime prior or subsequent thereto, in the
Municipality of Mandaluyong, Metro Manila, and within the jurisdiction of this Honorable Court, the
above-named accused, FELICITO S. MACALINO, being then the Assistant Manager of the Treasury
Division and the Head of the Loans Administration & Insurance Section of the Philippine National
Construction Corporation (PNCC), a government-controlled corporation with offices at EDSA corner
Reliance St., Mandaluyong, and hence, a public officer, while in the performance of his official
functions, taking advantage of his position, committing the offense in relation to his office and
conspiring and confederating with his spouse LIWAYWAY S. TAN, being then the owner of Wacker
Marketing, did then and there willfully, unlawfully, feloniously and by means of deceit defraud the
Philippine National Construction Corporation in the following manner: in preparing the application
with the Philippine National Bank, Buendia Branch for the issuance of a demand draft in the amount
of NINE HUNDRED EIGHTY THREE THOUSAND SIX HUNDRED EIGHTY-TWO & 11/100 PESOS
(₱983,682.11), Philippine Currency, in favor of Bankers Trust Company, accused FELICITO
S. MACALINO superimposed the name "Wacker Marketing" as payee to make it appear that the
demand draft was payable to it, when in truth and in fact and as the accused very well knew, it was
the Bankers Trust Company which was the real payee as indicated in Check Voucher No. 3-800-89
and PNB Check No. B236746 supporting said application for demand draft; subsequently accused
FELICITO S. MACALINO likewise inserted into the letter of PNCC to PNB Buendia Branch the
words "payable to Wacker Marketing" to make it appear that the demand drafts to be picked up by
the designated messenger were payable to Wacker Marketing when in truth and in fact the real
payee was Bankers Trust Company; and as a result of such acts of falsification, PNB Buendia
issued 19 demand drafts for ₱50,000.00 each and another demand draft for ₱33,682.11, all, payable
to Wacker Marketing, which were subsequently delivered to accused Felicitor S. Macalino and which
accused LIWAYWAY S. TAN thereafter exchanged with PNB Balanga Branch for 19 checks at
₱50,000.00 each and another for ₱33,682.11 and all of which she later deposited into Account No.
0042-0282-6 of Wacker Marketing at Philtrust Cubao, thereby causing pecuniary damage and
prejudice to Philippine National Construction Corporation in the amount of ₱983,682.11.
"CONTRARY TO LAW.
"Manila, Philippines, August 24, 1992."4
"CRIMINAL CASE NO. 19268
"That on or about the 4th day of April, 1990, and subsequently thereafter, in the Municipality of
Mandaluyong, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named
accused, FELICITO S. MACALINO, being then the Assistant Manager of the Treasury Division and
the Head of the Loans Administration and Insurance Section of the Philippine National Construction
Corporation, a government-controlled corporation with offices at EDSA corner Reliance St.,
Mandaluyong, Metro Manila, and hence, a public officer, while in the performance of his official
functions, taking advantage of his position, committing the offense in relation to his office, and
conspiring and confederating with his spouse LIWAYWAY S. TAN, being then the owner of Wacker
Marketing, did then and there willfully, unlawfully, feloniously and by means of deceit defraud the
Philippine National Construction Corporation in the following manner: after receiving Check Voucher
No. 04-422-90 covering the partial payment by PNCC of the sinking fund to International Corporate
Bank (Interbank) as well as Check No. 552312 for TWO MILLION TWO HUNDRED FIFTY
THOUSAND PESOS (₱2,250,000.00), Philippine Currency, payable to Interbank for the purpose,
accused FELICITO S. MACALINO falsified PNB Check No. 552312 by altering the payee indicated
therein to make it appear that the aforesaid check was payable to Wacker Marketing instead of
Interbank and further falsified the schedule of check disbursements sent to PNB Buendia by making
it appear therein that the payee of Check No. 552312 was Wacker Marketing when in truth and in
fact and as the accused very well knew, it was Interbank which was the real payee; accused
LIWAYWAY S. TAN thereafter deposited Check No. 552312 into Account No. 0042-0282-6 of
Wacker Marketing at Philtrust Cubao and Wacker Marketing subsequently issued Philtrust Check
No. 148039 for ₱100,000.00 in favor of accused FELICITO S. MACALINO; which acts of falsification
performed by the accused would have defrauded the Philippine National Construction Corporation of
₱2,250,000.00 had not PNB Buendia ordered the dishonor of Check No. 552312 after noting the
alteration/erasures thereon, thereby failing to produce the felony by reason of causes independent of
the will of the accused.
"CONTRARY TO LAW.
"Manila, Philippines, May 28, 1993."5
Upon arraignment on November 9, 1992, petitioner pleaded not guilty to the charges. Hence, trial
proceeded.6
However, during the initial presentation of evidence for the defense, petitioner moved for leave to file
a motion to dismiss on the ground that the Sandiganbayan has no jurisdiction over him since he is
not a public officer because the Philippine National Construction Corporation (PNCC), formerly the
Construction and Development Corporation of the Philippines (CDCP), is not a government-owned
or controlled corporation with original charter.7 The People of the Philippines opposed the motion.8
On August 5, 1999, the Sandiganbayan promulgated a resolution denying petitioner’s motion to
dismiss for lack of merit.9
Hence, this petition.10
The Issue
The sole issue raised is whether petitioner, an employee of the PNCC, is a public officer within the
coverage of R. A. No. 3019, as amended.
Petitioner contends that an employee of the PNCC is not a public officer as defined under Republic
Act No. 3019, as follows:
"Sec. 2. (a) xxx xxx xxx.
"(b) Public officer includes elective and appointive officials and employees, permanent or temporary,
whether in the unclassified or classified or exempted service receiving compensation, even nominal,
from the government as defined in the preceding paragraph."
We agree.
To resolve the issue, we resort to the 1987 Constitution. Article XI, on the Accountability of Public
Officers, provides:
"Section 12. The Ombudsman and his deputies, as protectors of the people, shall act promptly on
complaints filed in any form or manner against public officials or employees of the Government, or
any subdivision, agency or instrumentality thereof, including government-owned or controlled
corporations x x x."
"Section 13. The Office of the Ombudsman shall have the following powers, functions and duties:
"1. Investigate on its own, or on complaint by any person, any act or omission of any public
official oremployee, office or agency, when such act or omission appears to be illegal, unjust,
improper and inefficient. x x x
"2. Direct, upon complaint or at its instance, any public official or employee of the
government, or any subdivision, agency or instrumentality thereof, as well as of any
government-owned or controlled corporations with original charters, to perform and expedite
any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in
the performance of duties." (underscoring supplied)
Further, Article IX-B, Section 2 (1) of the 1987 Constitution provides:
"The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the
Government, including government-owned and controlled corporations with original charters."
(underscoring supplied)
Republic Act No. 6770 provides:

"Section 15. Powers, Functions and Duties -The Office of the Ombudsman shall have the following
powers, functions and duties:
"1. Investigate and prosecute on its own or on complaint by any person, any act or omission of any
public officer or employee, office or agency, when such act or omission appears to be illegal, unjust,
improper or inefficient. x x x.
"2. Direct, upon complaint or at its own instance, any officer or employee of the Government, or of
any subdivision, agency or instrumentality thereof, as well as any government-owned or controlled
corporations with originalcharters, to perform and expedite any act or duty required by law, or to
stop, prevent, and correct any abuse or impropriety in the performance of duties."
Inasmuch as the PNCC has no original charter as it was incorporated under the general law on
corporations, it follows inevitably that petitioner is not a public officer within the coverage of R. A. No.
3019, as amended. Thus, the Sandiganbayan has no jurisdiction over him. The only instance when
the Sandiganbayan has jurisdiction over a private individual is when the complaint charges him
either as a co-principal, accomplice or accessory of a public officer who has been charged with a
crime within the jurisdiction of Sandiganbayan.11
The cases12 cited by respondent People of the Philippines are inapplicable because they were
decided under the provisions of the 1973 Constitution which included as public officers, officials and
employees of corporations owned and controlled by the government though organized and existing
under the general corporation law. The 1987 Constitution excluded such corporations.
1âwphi1
The crimes charged against petitioner were committed in 1989 and 1990.13 The criminal actions were
instituted in 1992. It is well-settled that "the jurisdiction of a court to try a criminal case is determined
by the law in force at the institution of the action."14
The Fallo
IN VIEW WHEREOF, the Court GRANTS the petition. The Court SETS ASIDE the order dated July
29, 1999 of the Sandiganbayan in Criminal Cases Nos. 18022 and 19268 and ORDERS the
DISMISSAL of the two (2) cases against petitioner and his wife.
No costs.
SO ORDERED.
113

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 135715 April 13, 2011
PRESIDENTIAL AD HOC FACT- FINDING COMMITTEE ON BEHEST LOANS, represented by

MAGDANGAL B. ELMA, PCGG CHAIRMAN AND ORLANDO C. SALVADOR AS CONSULTANT
OF THE TECHNICAL WORKING GROUP OF THE AD-HOC COMMITTEE, Petitioners,
vs.
HONORABLE ANIANO A. DESIERTO AS OMBUDSMAN, PANFILO O. DOMINGO, CONRADO S.
REYES, ENRIQUE M. HERBOZA, MOHAMMAD ALI DIMAPORO, ABDULLAH DIMAPORO AND
AMER DIANALAN,Respondents.
DECISION
PEREZ, J.:
This petition for review on certiorari1 is one among the 17 cases filed before us by the Presidential
Ad Hoc Fact-Finding Committee on Behest Loans, charging public respondent Ombudsman Aniano
A. Desierto (Ombudsman) for grave abuse of discretion, when, on the ground of prescription and
insufficiency of evidence, he dismissed all of these cases then pending before him, including this
case in OMB-0-97-1718.
The Facts
Respondents Mohammad Ali Dimaporo, Abdullah Dimaporo, and Amer Dianalan, were stockholders
and officers of the Mindanao Coconut Oil Mills (MINCOCO), a domestic corporation established in
1974,2 while respondents Panfilo O. Domingo, Conrado S. Reyes, Enrique M. Herboza, and Ricardo
Sunga, were then officers of the National Investment and Development Corporation (NIDC).
On 10 May 1976, MINCOCO applied for a Guarantee Loan Accommodation with the NIDC for the
amount of approximately P30,400,000.00, which the NIDC’s Board of Directors approved on 23 June
1976.
The guarantee loan was, however, both undercapitalized and under-collateralized because
MINCOCO’s paid capital then was only P7,000,000.00 and its assets worth is P7,000,000.00.
This notwithstanding, MINCOCO further obtained additional Guarantee Loan Accommodations from
NIDC in the amount of P13,647,600.00 and P7,000,000.00,3 respectively.
When MINCOCO’s mortgage liens were about to be foreclosed by the government banks due its
outstanding obligations, Eduardo Cojuangco issued a memorandum dated 18 July 1983, bearing the
late President Ferdinand E. Marcos’ (President Marcos) marginal note, disallowing the foreclosure of
MINCOCO’s properties.4 The government banks were not able to recover any amount from
MINCOCO and President Marcos’ marginal note was construed by the NIDC to have effectively
released MINCOCO, including its owners, from all of its financial liabilities.5
The above mentioned transactions, were, however, discovered only in 1992 after then President
Fidel V. Ramos (President Ramos), in an effort to recover the ill-gotten wealth of the late President
Marcos, his family, and cronies, issued Administrative Order No. 136 creating the Presidential Ad
Hoc Fact-Finding Committee on Behest Loans (the Committee), with the Chairman of the Philippine
Commission on Good Government (PCGG) as the Committee’s head. The Committee was directed,
inter alia, to inventory all behest loans, and identify the lenders and borrowers, including the principal
officers and stockholders of the borrowing firms, as well as the persons responsible for the granting
of loans or who influenced the grant thereof.7 Subsequently, then President Ramos issued
Memorandum Order No. 618 outlining the criteria which may be utilized as a frame of reference in
determining a behest loan, viz:
a. It is under-collateralized;
b. The borrower corporation is undercapitalized;
c. Direct or indirect endorsement by high government officials like presence of marginal note;
d. Stockholders, officers or agents of the borrower corporation are identified as cronies;
e. Deviation of use of loan proceeds from the purpose intended;
f. Use of corporate layering;
g. Non-feasibility of the project for which financing is being sought;
h. Extraordinary speed in which the loan release was made.
The Committee found that twenty-one (21) corporations, including MINCOCO, obtained behest
loans. It claimed that the fact that MINCOCO was under-collateralized and undercapitalized; that its
officers were identified as cronies; that the late President Marcos had marginal note, effectively
waiving the government’s right to foreclose MINCOCO’s mortgage liens; and, that the Guarantee
Loan Accommodation were approved in an extraordinary speed of one month, bore badges of
behest loans.
Subsequently, the Committee filed with the Ombudsman a sworn complaint against MINCOCO’s
Officers and NIDC’s Board of Directors for violation of Section 3(e) and (g) of Republic Act No.
3019,9 as amended.
By Resolution dated 9 July 1998, the Ombudsman motu prorio dismissed the complaint on the
grounds that, first, there was insufficient evidence to warrant the indictment of the persons charged;
and, second, the alleged offenses had prescribed.10 The Ombudsman explained:
Being undercapitalized, standing alone is meaningless. The approval of the loans/guarantees was
still based on sound lending practice, otherwise, MINCOCO would have been disqualified from
obtaining the same. If MINCOCO’s equity was more than the amount of the loans, there was no
need for it to obtain the latter.
Anent the claim that Mohammad Ali Dimaporo was a crony of the late President Marcos, no
evidence was adduced to prove the same, hence, remains a bare allegation. x x x.
On the issue that the notation by President Marcos in the Memorandum of July 18, 1983 is a behest
order, suffice it to state that these marginal notes, if they meant endorsement as defined under
Memorandum Order No. 61, endorsed the recommendation regarding the mortgage liens of the
government banks of the Mothballed Coconut Oil Mills and not the approval/grant of the
loans/guarantees in 1976. It is in effect approved the release of the liabilities of the former owners of
coconut oil mills, one of which was MINCOCO, but not the acquisition of the said loans/guarantees.
The take over of MINCOCO by UNICOM without the consent of NIDC is not a characteristic of a
behest loan. It is a mere violation of procedures that does not warrant a criminal action.
xxxx
For the perpetration of the acts being complained of, the respondents are charged of violations of
Sections 3(e) and (g) of Republic Act No. 3019. The instant case however will no longer prosper for
the offenses have already prescribed.
Be it remembered that MINCOCO applied for and was granted loans/guarantees way back in 1976.
Thus, these acts are governed by the law in force at the time of their commission, which is the old
R.A. No. 3019 before its amendment by Batas Pambansa Blg. 195 in March 1982. Offenses
perpetrated prior to the enactment of this latter law prescribed ten (10) years later. And since the
case was filed against the herein respondents only in September 1997, the offenses have long
prescribed in 1986.
Prescription commenced to run in 1976 when the assailed transaction happened. x x x.11
Hence, this petition for review on certiorari under Rule 45 of the Rules of Court.12
The petitioner argued that the right of the State to recover behest loans as ill-gotten wealth is
imprescriptible under Section 15, Article XI of the 1987 Constitution;13 and, assuming that the period
to file criminal charges herefore is subject to prescription, the prescriptive period should be counted
from the time of discovery of behest loans or sometime in 1992 when the Committee was
constituted.14
The Ombudsman, in his Comment, countered that his office has the discretionary power during
preliminary investigation to determine the sufficiency of evidence for indictment;15 that it is beyond
the ambit of the Court to review this exercise of discretion;16 that Section 15, Article XI of the 1987
Constitution applies only to civil suits and not to criminal proceedings;17 and, that the crime under
which the respondents herein were charged had already prescribed.18
Private respondents Panfilo O. Domingo and Enrique M. Herboza, filed their respective Comments
mainly reiterating the Ombudsman’s contentions. The other respondents did not file their Comments,
and, thus, considered to have waived their chance thereto.
The remedy from an adverse resolution of the Ombudsman is a petition for certiorari under Rule 65
of the Rules of Court; what was filed with the Court, however, was a petition for review on certiorari
under Rule 45. Nevertheless, the Court will treat this petition as one filed under Rule 65 since a
reading of its contents shows that the Committee imputes grave abuse of discretion to the
Ombudsman for dismissing the complaint.19 This was how we also treated the previous cases
marred by the same procedural lapse, the latest of which is the 2009 Presidential Ad-Hoc Fact
Finding Committee on Behest Loans v. Desierto (G.R. No. 135703).20
At the core of the controversy is the Ombudsman’s Resolution holding that prescription had already
set-in effectively barring the institution of charges against the private respondents. The Ombudsman
claimed that the alleged behest loans, transpired in 1976,21 and, thus, the complaint filed after more
than two decades from the commission thereof or on 8 October 1997, was well beyond the 10-year
prescriptive period provided for under the old Republic Act No. 3019.22
In resolving the issue of prescription, the following shall be considered: (1) the period of prescription
for the offense charged; (2) the time the period of prescription started to run; and (3) the time the
prescriptive period was interrupted.23
At the outset, the provision found in Section 15, Article XI of the 1987 Constitution that "the right of
the State to recover properties unlawfully acquired by public officials or employees, from them or
from their nominees or transferees, shall not be barred by prescription, laches or estoppels," has
already been settled in Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto
(G.R. No. 130140),24 where the Court held that the above cited constitutional provision "applies only
to civil actions for recovery of ill-gotten wealth, and not to criminal cases."25
The period of prescription for the crime charged in this petition, committed in 1976 and prior to the
amendment of Republic Act No. 3019, is ten (10) years.
Section 1126 of Republic Act No. 3019 as amended by Batas Pambansa Blg. 195, provides that the
offenses committed under Republic Act No. 3019 shall prescribe in fifteen (15) years; prior to this
amendment, however, under the old Republic Act No. 3019, this prescriptive period was only ten
(10) years. In People v. Pacificador,27 the Court held that the longer prescriptive period of 15-years
does not apply in crimes committed prior to the effectivity of Batas Pambansa Blg. 195, which was
approved on 16 March 1982, because, not being favorable to the accused, it cannot be given
retroactive effect. Considering that the alleged crime was committed in 1976, and in line with the
Court’s ruling in Pacificador, the prescription period should be ten (10) years.
Prescription of crime shall begin to run from the day of its commission, and if the same be not known
at the time, from the discovery thereof and the institution of judicial proceedings for its investigation
and punishment.
While we sustain the Ombudsman’s contention that the prescriptive period for the crime charged
herein is 10 years and not 15 years, we are not persuaded that in this specific case, the prescriptive
period began to run in 1976, when the loans were transacted.
The time as to when the prescriptive period starts to run for crimes committed under Republic Act
No. 3019, a special law, is covered by Act No. 3326,28 Section 2 of which provides that:
Section 2. Prescription shall begin to run from the day of the commission of the violation of the law,
and if the same be not known at the time, from the discovery thereof and the institution of judicial
proceedings for its investigation and punishment.
The prescription shall be interrupted when proceedings are instituted against the guilty person, and
shall begin to run again if the proceedings are dismissed for reasons not constituting double
jeopardy.
Generally, the prescriptive period shall commence to run on the day the crime is committed. That an
aggrieved person "entitled to an action has no knowledge of his right to sue or of the facts out of
which his right arises," does not prevent the running of the prescriptive period.29 An exception to this
rule is the "blameless ignorance" doctrine, incorporated in Section 2 of Act No. 3326. Under this
doctrine, "the statute of limitations runs only upon discovery of the fact of the invasion of a right
which will support a cause of action. In other words, the courts would decline to apply the statute of
limitations where the plaintiff does not know or has no reasonable means of knowing the existence
of a cause of action."30 It was in this accord that the Court confronted the question on the running of
the prescriptive period in People v. Duque31 which became the cornerstone of our 1999 Decision in
Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto (G.R. No. 130149),32 and
the subsequent cases33 which Ombudsman Desierto dismissed, emphatically, on the ground of
prescription too. Thus, we held in a catena of cases,34 that if the violation of the special law was not
known at the time of its commission, the prescription begins to run only from the discovery thereof,
i.e., discovery of the unlawful nature of the constitutive act or acts.
Corollary, it is safe to conclude that the prescriptive period for the crime which is the subject herein,
commenced from the date of its discovery in 1992 after the Committee made an exhaustive
investigation.35 When the complaint was filed in 1997, only five years have elapsed, and, hence,
prescription has not yet set in. The rationale for this was succinctly discussed in the 1999
Presidential Ad Hoc Fact-Finding Committee on Behest Loans,36 that "it was well-high impossible for
the State, the aggrieved party, to have known these crimes committed prior to the 1986 EDSA
Revolution, because of the alleged connivance and conspiracy among involved public officials and
the beneficiaries of the loans."37 In yet another pronouncement, in the 2001 Presidential Ad Hoc
Fact-Finding Committee on Behest Loans v. Desierto (G.R. No. 130817),38 the Court held that during
the Marcos regime, no person would have dared to question the legality of these transactions.
While the Ombudsman has the full discretion to determine whether a criminal case is to be filed, the
Court is not precluded from reviewing the Ombudsman’s action when there is a grave abuse of
discretion.
True, the Ombudsman is a constitutionally created body with constitutionally mandated

independence. Despite this, however, the Ombudsman comes within the purview of the Court’s
power of judicial review39 – a peculiar concept of Philippine Ombudsman, embodied in Article VIII,
Section 1 of the 1987 Constitution40 – which serves as a safety net against its capricious and
arbitrary acts.41 Thus, in Garcia-Rueda v. Pascasio,42 the Court held that "while the Ombudsman has
the full discretion to determine whether or not a criminal case is to be filed, the Court is not
precluded from reviewing the Ombudsman’s action when there is grave abuse of discretion."43 This
is because, "while the Ombudsman enjoys, as it must, complete independence, it cannot and must
not lose track of the law, which it is bound to uphold and obey."44
After reviewing the case’s records, the Court finds that the present petition calls for the exercise of
its power of judicial review.
Private respondents are charged with violation of Section 3(e) and (g) of Republic Act No. 3019
which states:
Section 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers
already penalized by existing law, the following shall constitute corrupt practices of any public officer
and are hereby declared to be unlawful:
xxxx
(e) Causing any undue injury to any party, including the Government, or giving any private party any
unwarranted benefits, advantage or preference in the discharge of his official administrative or
judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This
provision shall apply to officers and employees of offices or government corporations charged with
the grant of licenses or permits or other concessions.
xxxx
(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the public officer profited or will profit thereby.
From the 1999 landmark case of Presidential Ad Hoc Fact-Finding Committee on Behest Loans v.
Desierto (G.R. No. 130140),45 to the 2008 Presidential Ad Hoc Fact-Finding Committee on Behest
Loans v. Tabasondra (G.R. No. 133756),46 and to the 2009 Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Desierto (G.R. No. 135703),47 the same issues confronted the Court
as the one presented in the present petition, in that the Ombudsman similarly dismissed these cases
not only on the ground of prescription but also for insufficiency of evidence.48
Interestingly, the facts in Tabasondra49 are squarely on all fours as the present case.
Tabasondra,50 involved Coco-Complex Philippines, Inc., (CCPI), a domestic corporation primarily
incorporated for the manufacture of coconut oil.51 CCPI applied for Guarantee Loan Accommodation
thru the National Investment Development Corporation amounting to P9,277,080.00, allegedly for
the purchase of an oil mill to be supplied by Krupp Germany. The NIDC Board approved the loan in
1969,52 notwithstanding the fact that CCPI was undercapitalized with only P2,111,000.00 paid-up
capital,53 and under-collateralized with only P495,300.00 assets.54 Thus, with the NIDC’s Guarantee
Loan Accommodation, the Philippine National Bank (PNB) granted the loan. Still, with NIDC’s
guarantee, CCPI obtained additional loans from PNB in 1972, which, as of 1992, ballooned to
P205,889,545.76.
When the Committee filed criminal complaints against the CCPI’s Officers and PNB’s Board of
Directors for violation of Section 3(e) and (g) of Republic Act No. 3019, the Ombudsman dismissed
the complaint on the ground of prescription. For this, the Committee charged the Ombudsman for
grave abuse of discretion, but pending its resolution before us, the Ombudsman, taking cue from the
Court’s 1999 ruling in G.R. No. 130140,55 motu proprio reinvestigated the complaint it earlier
dismissed (and was still pending before us), only to dismiss it anew, in a Resolution dated 16
October 2000, opining that NIDC’s Board of Directors, who approved the loans in favor of CCPI,
should have been the ones indicted.56 Subsequently, the Court dismissed Tabasondra for being
moot and academic.
Similarly, in the present petition, MINCOCO was also granted by NIDC a Guarantee Loan
Accommodation amounting initially to P30.4 million pesos, despite its being undercapitalized and
under-collateralized.57
As the Ombudsman admitted, when MINCOCO’s mortgage liens were about to be foreclosed by the
government banks, the late President Marcos intervened and through a marginal note, in connivance
with the NIDC’s officers, waived the liabilities of its owners to the detriment of the government.58 It
behooves the Court that while the Ombudsman admitted this fact, it saw nothing wrong in President
Marcos’ intervention, and the involvement therein of the NIDC’s officers. This intervention alone, by
no less than the highest official of the land, waiving a multi-million peso liability of a private
corporation, should have alarmed the Ombudsman.
It surprises us that while the Ombudsman dismissed Tabasondra for not impleading therein the
NIDC’s Board of Directors, now that they (NIDC’s Board of Directors) have been impleaded, the
Ombudsman still dismissed the complaint, allegedly for insufficiency of evidence.59
Applying mutatis mutandis G.R. No. 13375660 in this petition, it is apparent that there can be liability
for violation of Section 3(e) and (g) of Republic Act No. 3019.
Violation of Section 3(e)61 of Republic Act No. 3019 requires that there be injury caused by giving
unwarranted benefits, advantages or preferences to private parties who conspire with public officers.
In contrast, Section 3(g)62does not require the giving of unwarranted benefits, advantages or
preferences to private parties, its core element being the engagement in a transaction or contract
that is grossly and manifestly disadvantageous to the government.
The waiver of MINCOCO’s multi-peso loan should have been enough basis in finding that probably
Section 3(e) of Republic Act No. 3019 was violated and the fact that NIDC extended a loan
guarantee to MINCOCO, despite its being undercapitalized and under-collateralized, should have
also been enough ground in finding probable cause for violation of Section 3(g) of the above-cited
law.
More importantly, the finding of the Committee that MINCOCO obtained behest loans because of the
following circumstances: MINCOCO was under-collateralized and undercapitalized; its officers were
identified as cronies; President Marcos had marginal note, effectively waiving the government’s right
to foreclose MINCOCO’s mortgage liens; and, NIDC approved MINCOCO’s Guarantee Loan
Accommodation in an extraordinary speed of one month, should have been accorded a proper
modicum of respect by the Ombudsman.
Considering the membership of the Committee – representatives from the Department of Finance,
The Philippine National Bank, the Asset Privatization Trust, the Philippine Export and Foreign Loan
Guarantee Corporation and even the Development Bank of the Philippines – its recommendation
should be given great weight. No doubt, the members of the Committee are experts in the field of
banking. On account of their special knowledge and expertise, they are in a better position to
determine whether standard banking practices are followed in the approval of the loan/guarantee or
what would generally constitute as adequate security for a given loan.63 1avv phi 1
The duty of the Ombudsman in the conduct of a preliminary investigation is to establish whether
there exists probable cause to file information in court against the accused.64 A finding of probable
cause needs only to rest on evidence showing that more likely than not, the accused committed the
crime.65 Considering the quantum of evidence needed to support a finding of probable cause, the
Court holds that the Ombudsman gravely abused its discretion when it dismissed the complaint
against herein respondents.
Preliminary investigation is not the occasion for the full and exhaustive display of the parties’
evidence.66 It is for the presentation of such evidence only as may engender a well founded belief
that an offense has been committed and that the accused is probably guilty thereof.67 The validity
and merits of a party’s accusation or defense, as well as admissibility of testimonies and evidence,
are better ventilated during the trial proper.68
In conclusion, the offenses ascribed to respondents "involve behest loans which bled white the
economy of the country, one of the excesses of the authoritarian regime that led to the EDSA
revolution, a serious evil that the 1987 Constitution aimed to extirpate."69 It involves nothing less than
the interest of the people whose transgressed rights are supposed to be vindicated by their protector
– the Ombudsman.70 As protector of the people, the Ombudsman should be pro-active in making use
of its vast arsenal of powers to "bring the lamp of scrutiny to otherwise dark places even over the
resistance of those who would draw the blinds."71
The criminal liability of Conrado S. Reyes is hereby extinguished in accordance with Article 89(1)72 of
the Revised Penal Code as confirmed by his death certificate.73 With respect to respondents Panfilo
O. Domingo and Mohammad Ali Dimaporo, the facts of their deaths have to be confirmed to
determine the application to them of the same provision.
WHEREFORE, the petition is GRANTED. The Ombudsman is hereby ORDERED to:
1. DISMISS the complaint against deceased respondent Conrado S. Reyes;
2. REQUIRE the counsels of respondents Panfilo O. Domingo and Mohammad Ali Dimaporo
to submit proof of their deaths; and
3. FILE with the Sandiganbayan the necessary Information against respondents Abdullah
Dimaporo, Amer Dianalan, Enrique M. Herboza, and Ricardo Sunga.
SO ORDERED.
114

SUPREME COURT
Manila
EN BANC
G.R. No. 196231 January 28, 2014
EMILIO A. GONZALES III, Petitioner,

vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES, ACTING THROUGH AND REPRESENTED
BY EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE
SECRETARY JOSE AMOR M. AMORANDO, OFFICER-IN-CHARGE - OFFICE OF THE DEPUTY
EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, ATTY. RONALDO A. GERON, DIR. ROWENA
TURINGAN-SANCHEZ, AND ATTY. CARLITO D. CATAYONG, Respondents.
x-----------------------x
G.R. No. 196232
WENDELL BARRERAS-SULIT Petitioner,

vs.
ATTY. PAQUITO N. OCHOA, JR., IN HIS CAP A CITY AS EXECUTIVE SECRETARY, OFFICE OF
THE PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY. CARLO D. SULAY AND ATTY. FROILAN D.
MONTALBAN, JR., IN THEIR CAPACITIES AS CHAIRMAN AND MEMBERS OF OFFICE OF
MALACANANG LEGAL AFFAIRS,Respondents.
DECISION
BRION, J.:
We resolve the Office of the President's (OP 's) motion for reconsideration of our September 4, 2012
Decision1which ruled on the petitions filed by Deputy Ombudsman Emilio Gonzales III and Special
Prosecutor Wendell Barreras-Sulit. Their petitions challenged the constitutionality of Section 8(2) of
Republic Act (RA) No. 6770.2
In the challenged Decision, the Court upheld the constitutionality of Section 8(2) of RA No. 6770 and
ruled that the President has disciplinary jurisdiction over a Deputy Ombudsman and a Special
Prosecutor. The Court, however, reversed the OP ruling that: (i) found Gonzales guilty of Gross
Neglect of Duty and Grave Misconduct constituting betrayal of public trust; and (ii) imposed on him
the penalty of dismissal.
Sulit, who had not then been dismissed and who simply sought to restrain the disciplinary
proceedings against her, solely questioned the jurisdiction of the OP to subject her to disciplinary
proceedings. The Court affirmed the continuation of the proceedings against her after upholding the
constitutionality of Section 8(2) of RA No. 6770.
The fallo of our assailed Decision reads:
WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in OP Case No. 1 O-
J-460 is REVERSED and SET ASIDE. Petitioner Emilio A. Gonzales III is ordered REINSTATED
with payment of backwages corresponding to the period of suspension effective immediately, even
as the Office of the Ombudsman is directed to proceed with the investigation in connection with the
above case against petitioner. In G.R. No. 196232, We AFFIRM the continuation of OP-DC Case
No. ll-B-003 against Special Prosecutor Wendell Barreras-Sulit for alleged acts and omissions
tantamount to culpable violation of the Constitution and a betrayal of public trust, in accordance with
Section 8(2) of the Ombudsman Act of 1989.3
In view of the Court’s ruling, the OP filed the present motion for reconsideration through the Office of
the Solicitor General (OSG).
We briefly narrate the facts that preceded the filing of the petitions and the present motion for
reconsideration.
I. ANTECEDENTS
A. Gonzales’ petition (G.R. No. 196231)
a. Factual antecedents
On May 26, 2008, Christian Kalaw filed separate charges with the Philippine National Police Internal
Affairs Service (PNP-IAS) and with the Manila City Prosecutor’s Office against Manila Police District
Senior Inspector Rolando Mendoza and four others (Mendoza, et al.) for robbery, grave threat,
robbery extortion and physical injury.4
On May 29, 2008, Police Senior Superintendent Atty. Clarence Guinto filed an administrative charge
for grave misconduct with the National Police Commission (NAPOLCOM) PNP-NCRPO against
Mendoza, et al. based on the same allegations made by Kalaw before the PNP-IAS.5
On July 2, 2008, Gonzales, Deputy Ombudsman for Military and Other Law Enforcement Officers
(MOLEO), directed the NAPOLCOM to turn over the records of Mendoza’s case to his office. The
Office of the Regional Director of the NAPOLCOM duly complied on July 24, 2008.6 Mendoza, et al.
filed their position papers with Gonzales, in compliance with his Order.7
Pending Gonzales’ action on Mendoza, et al.’s case (on August 26, 2008), the Office of the City
Prosecutor of Manila City dismissed Kalaw’s complaint against Mendoza, et al. for his failure to
substantiate his allegations.8 Similarly, on October 17, 2008, the PNP-IAS recommended the
dismissal without prejudice of the administrative case against Mendoza, et al. for Kalaw’s failure to
prosecute.9
On February 16, 2009, after preparing a draft decision on Mendoza, et al.’s case, Gonzales
forwarded the entire records to the Office of then Ombudsman Merceditas Gutierrez for her
review.10 In his draft decision, Gonzales found Mendoza, et al. guilty of grave misconduct and
imposed on them the penalty of dismissal from the service.11
Mendoza, et al. received a copy of the Ombudsman’s decision that approved Gonzales’
recommendation on October 30, 2009. Mendoza, et al. filed a motion for reconsideration12 on
November 5, 2009, followed by a Supplement to the Motion for Reconsideration.13
On December 10, 2009, the MOLEO-Records Section forwarded Mendoza, et al.’s case records to
the Criminal Investigation, Prosecution and Administrative Bureau-MOLEO. On December 14, 2009,
the case was assigned to Graft Investigation and Prosecution Officer (GIPO) Dennis Garcia for
review and recommendation.14
GIPO Garcia released a draft order15 to his immediate superior, Director Eulogio S. Cecilio, for
appropriate action on April 5, 2010. Dir. Cecilio signed and forwarded the draft order to Gonzales’
office on April 27, 2010. Gonzales reviewed the draft and endorsed the order, together with the case
records, on May 6, 2010 for the final approval by the Ombudsman.16
On August 23, 2010, pending final action by the Ombudsman on Mendoza, et al.’s case, Mendoza
hijacked a tourist bus and held the 21 foreign tourists and the four Filipino tour assistants on board
as hostages. While the government exerted earnest attempts to peacefully resolve the hostage-
taking, it ended tragically, resulting in the deaths of Mendoza and several others on board the
hijacked bus.
In the aftermath, President Benigno C. Aquino III directed the Department of Justice and the
Department of Interior and Local Government to conduct a joint thorough investigation of the
incident. The two departments issued Joint Department Order No. 01-2010, creating an Incident
Investigation and Review Committee (IIRC).
In its September 16, 2010 First Report, the IIRC found the Ombudsman and Gonzales accountable
for their "gross negligence and grave misconduct in handling the case against Mendoza."17 The IIRC
stated that the Ombudsman and Gonzales’ failure to promptly resolve Mendoza’s motion for
reconsideration, "without justification and despite repeated pleas" xxx "precipitated the desperate
resort to hostage-taking."18 The IIRC recommended the referral of its findings to the OP for further
determination of possible administrative offenses and for the initiation of the proper administrative
proceedings.19
Accordingly, on October 15, 2010, Gonzales was formally charged before the OP for Gross Neglect
of Duty and/or Inefficiency in the Performance of Official Duty and for Misconduct in Office.20
b. The OP ruling
On March 31, 2011, the OP found Gonzales guilty as charged and dismissed him from the
service.21According to the OP, "the inordinate and unjustified delay in the resolution of [Mendoza’s]
Motion for Reconsideration [‘that spanned for nine (9) long months’] xxx amounted to gross neglect
of duty" and "constituted a flagrant disregard of the Office of the Ombudsman’s own Rules of
Procedure."22
c. The Petition
Gonzales posited in his petition that the OP has no administrative disciplinary jurisdiction over a
Deputy Ombudsman. Under Section 21 of RA No. 6770, it is the Ombudsman who exercises
administrative disciplinary jurisdiction over the Deputy Ombudsman.
On the merits, Gonzales argued that his office received the draft order from GIPO Garcia on April
27, 2010. On May 6, 2010, he completed his review of the draft, approved it, and transmitted it to the
Office of the Ombudsman for final approval. Since the draft order on Mendoza’s motion for
reconsideration had to undergo different levels of preparation, review and approval, the period it took
to resolve the motion could not be unjustified, since he himself acted on the draft order only within
nine (9) calendars days from his receipt of the order.23
B. Sulit’s petition (G.R. No. 196232)
In April 2005, the Office of the Ombudsman charged Major General Carlos F. Garcia and several
others, before the Sandiganbayan, with plunder and money laundering. On May 7, 2007, Garcia filed
an Urgent Petition for Bail which the prosecution opposed. The Sandiganbayan denied Garcia's
urgent petition for bail on January 7, 2010, in view of the strength of the prosecution’s evidence
against Garcia.
On February 25, 2010, the Office of the Ombudsman, through Sulit and her prosecutorial staff,
entered into a plea bargaining agreement (Agreement) with Garcia.24 Garcia thereby agreed to: (i)
withdraw his plea of not guilty to the charge of plunder and enter a plea of guilty to the lesser offense
of indirect bribery; and (ii) withdraw his plea of not guilty to the charge of money laundering and
enter a guilty plea to the lesser offense of facilitating money laundering. In exchange, he would
convey to the government his ownership, rights and other interests over the real and personal
properties enumerated in the Agreement and the bank deposits alleged in the information.25
The Sandiganbayan approved the Agreement on May 4, 201026 based on the parties’ submitted Joint
Motion for Approval.27
The apparent one-sidedness of the Agreement drew public outrage and prompted the Committee on
Justice of the House of Representatives to conduct an investigation. After public hearings, the
Committee found that Sulit, her deputies and assistants committed culpable violations of the
Constitution and betrayal of public trust – grounds for removal under Section 8(2) of RA No.
6770.28The Committee recommended to the President the dismissal from the service of Sulit and the
filing of appropriate charges against her deputies and assistants before the appropriate government
office.
Accordingly, the OP initiated an administrative disciplinary proceeding against Sulit.29 On March 24,
2011, Sulit filed her Written Explanation, questioning the OP’s jurisdiction.30 The question of
jurisdiction notwithstanding, the OP set the case for preliminary investigation on April 15, 2011,
prompting Sulit to seek relief from this Court.
II. COURT’S RULING
On motion for reconsideration and further reflection, the Court votes to grant Gonzales’ petition and
to declare Section 8(2) of RA No. 6770 unconstitutional with respect to the Office of the
Ombudsman. (As the full explanation of the Court’s vote describes below, this conclusion does not
apply to Sulit as the grant of independence is solely with respect to the Office of the Ombudsman
which does not include the Office of the Special Prosecutor under the Constitution. The prevailing
ruling on this latter point is embodied in the Concurring and Dissenting Opinion of J. Marvic Mario
Victor Leonen).
A. Preliminary considerations:
a. Absence of motion for reconsideration on the part of the petitioners

At the outset, the Court notes that Gonzales and Sulit did not file a motion for reconsideration of the
Court’s September 4, 2012 Decision; only the OP, through the OSG, moved for the reconsideration
of our ruling reinstating Gonzales.
This omission, however, poses no obstacle for the Court’s review of its ruling on the whole case
since a serious constitutional question has been raised and is one of the underlying bases for the
validity or invalidity of the presidential action. If the President does not have any constitutional
authority to discipline a Deputy Ombudsman and/or a Special Prosecutor in the first place, then any
ruling on the legal correctness of the OP’s decision on the merits will be an empty one.
In other words, since the validity of the OP’s decision on the merits of the dismissal is inextricably
anchored on the final and correct ruling on the constitutional issue, the whole case – including the
constitutional issue – remains alive for the Court’s consideration on motion for reconsideration.
b. The justiciability of the constitutional
issue raised in the petitions
We clarify, too, that the issue of whether a Deputy Ombudsman may be subjected to the
administrative disciplinary jurisdiction of the President (concurrently with that of the Ombudsman) is
a justiciable – not a political – question. A justiciable question is one which is inherently susceptible
of being decided on grounds recognized by law,31 as where the court finds that there are
constitutionally-imposed limits on the exercise of the powers conferred on a political branch of the
government.32
In resolving the petitions, we do not inquire into the wisdom of the Congress’ choice to grant
concurrent disciplinary authority to the President. Our inquiry is limited to whether such statutory
grant violates the Constitution, particularly whether Section 8(2) of RA No. 6770 violates the core
constitutional principle of the independence of the Office of the Ombudsman as expressed in Section
5, Art. XI of the Constitution.
To be sure, neither the Executive nor the Legislative can create the power that Section 8(2) of RA
No. 6770 grants where the Constitution confers none. When exercised authority is drawn from a
vacuum, more so when the authority runs counter to a core constitutional principle and constitutional
intents, the Court is duty-bound to intervene under the powers and duties granted and imposed on it
by Article VIII of the Constitution.
B. The Deputy Ombudsman: Constitutional Issue
a. The Philippine Ombudsman
Prior to the 1973 Constitution, past presidents established several Ombudsman-like agencies to
serve as the people's medium for airing grievances and for direct redress against abuses and
misconduct in the government. Ultimately, however, these agencies failed to fully realize their
objective for lack of the political independence necessary for the effective performance of their
function as government critic.33
It was under the 1973 Constitution that the Office of the Ombudsman became a constitutionally-
mandated office to give it political independence and adequate powers to enforce its mandate.
Pursuant to the 1973 Constitution, President Ferdinand Marcos enacted Presidential Decree (PD)
No. 1487, as amended by PD No. 1607 and PD No. 1630, creating the Office of the Ombudsman to
be known as Tanodbayan. It was tasked principally to investigate, on complaint or motu proprio, any
administrative act of any administrative agency, including any government-owned or controlled
corporation. When the Office of the Tanodbayan was reorganized in 1979, the powers previously
vested in the Special Prosecutor were transferred to the Tanodbayan himself. He was given the
exclusive authority to conduct preliminary investigation of all cases cognizable by the
Sandiganbayan, file the corresponding information, and control the prosecution of these cases.34
With the advent of the 1987 Constitution, a new Office of the Ombudsman was created by
constitutional fiat. Unlike in the 1973 Constitution, its independence was expressly and
constitutionally guaranteed. Its objectives are to enforce the state policy in Section 27, Article II35 and
the standard of accountability in public service under Section 1, Article XI of the 1987 Constitution.
These provisions read:
Section 27. The State shall maintain honesty and integrity in the public service and take positive and
effective measures against graft and corruption.
Section 1. Public office is a public trust. Public officers and employees must, at all times, be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act
with patriotism and justice, and lead modest lives.
Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is envisioned to
be the "protector of the people" against the inept, abusive, and corrupt in the Government, to
function essentially as a complaints and action bureau.36 This constitutional vision of a Philippine
Ombudsman practically intends to make the Ombudsman an authority to directly check and guard
against the ills, abuses and excesses of the bureaucracy. Pursuant to Section 13(8), Article XI of the
1987 Constitution, Congress enacted RA No. 6770 to enable it to further realize the vision of the
Constitution. Section 21 of RA No. 6770 provides:
Section 21. Official Subject to Disciplinary Authority; Exceptions. — The Office of the Ombudsman
shall have disciplinary authority over all elective and appointive officials of the Government and its
subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government,
government-owned or controlled corporations and their subsidiaries, except over officials who may
be removed only by impeachment or over Members of Congress, and the Judiciary. [emphasis ours,
italics supplied]
As the Ombudsman is expected to be an "activist watchman,"37 the Court has upheld its actions,
although not squarely falling under the broad powers granted it by the Constitution and by RA No.
6770, if these actions are reasonably in line with its official function and consistent with the law and
the Constitution.38
The Ombudsman’s broad investigative and disciplinary powers include all acts of malfeasance,
misfeasance, and nonfeasance of all public officials, including Members of the Cabinet and key
Executive officers, during their tenure. To support these broad powers, the Constitution saw it fit to
insulate the Office of the Ombudsman from the pressures and influence of officialdom and partisan
politics and from fear of external reprisal by making it an "independent" office. Section 5,
Article XI of the Constitution expressed this intent, as follows:
Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for
Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be
appointed. [emphasis ours]
Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful
government constitutional agency that is considered "a notch above other grievance-handling
investigative bodies."39 It has powers, both constitutional and statutory, that are commensurate with
its daunting task of enforcing accountability of public officers.40
b. "Independence" of constitutional bodies vis-a-vis the Ombudsman’s independence
Under the Constitution, several constitutional bodies have been expressly labeled as
"independent."41The extent of the independence enjoyed by these constitutional bodies however
varies and is to be interpreted with two significant considerations in mind: first, the functions
performed or the powers involved in a given case; and second, consistency of any allowable
interference to these powers and functions, with the principle of checks and balances.
Notably, the independence enjoyed by the Office of the Ombudsman and by the Constitutional
Commissions shares certain characteristics – they do not owe their existence to any act of
Congress, but are created by the Constitution itself; additionally, they all enjoy fiscal autonomy. In
general terms, the framers of the Constitution intended that these "independent" bodies be insulated
from political pressure to the extent that the absence of "independence" would result in the
impairment of their core functions.
In Bengzon v. Drilon,42 involving the fiscal autonomy of the Judiciary, we ruled against the
interference that the President may bring and maintained that the independence and the flexibility of
the Judiciary, the Constitutional Commissions and the Office of the Ombudsman are crucial to our
legal system.
The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence
and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and
constraints on the manner the independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal autonomy and violative not only the express
mandate of the Constitution but especially as regards the Supreme Court, of the independence and
separation of powers upon which the entire fabric of our constitutional system is based.
The constitutional deliberations explain the Constitutional Commissions’ need for independence. In
the deliberations of the 1973 Constitution, the delegates amended the 1935 Constitution by
providing for a constitutionally-created Civil Service Commission, instead of one created by law, on
the premise that the effectivity of this body is dependent on its freedom from the tentacles of
politics.43 In a similar manner, the deliberations of the 1987 Constitution on the Commission on Audit
highlighted the developments in the past Constitutions geared towards insulating the Commission on
Audit from political pressure.44
Notably, the Constitution also created an "independent" Commission on Human Rights, although it
enjoys a lesser degree of independence since it is not granted fiscal autonomy in the manner fiscal
autonomy is granted to the constitutional commissions. The lack of fiscal autonomy notwithstanding,
the framers of the 1987 Constitution clearly expressed their desire to keep the Commission
independent from the executive branch and other political leaders:
MR. MONSOD. We see the merits of the arguments of Commissioner Rodrigo. If we explain to him
our concept, he can advise us on how to reconcile his position with ours. The position of the
committee is that we need a body that would be able to work and cooperate with the executive
because the Commissioner is right. Many of the services needed by this commission would need not
only the cooperation of the executive branch of the government but also of the judicial branch of
government. This is going to be a permanent constitutional commission over time. We also want a
commission to function even under the worst circumstance when the executive may not be very
cooperative. However, the question in our mind is: Can it still function during that time? Hence, we
are willing to accept suggestions from Commissioner Rodrigo on how to reconcile this. We realize
the need for coordination and cooperation. We also would like to build in some safeguards that it will
not be rendered useless by an uncooperative executive.
xxxx
MR. GARCIA. xxx Very often, when international commissions or organizations on human rights go
to a country, the most credible organizations are independent human rights bodies. Very often these
are private organizations, many of which are prosecuted, such as those we find in many countries in
Latin America. In fact, what we are proposing is an independent body on human rights, which would
provide governments with credibility precisely because it is independent of the present
administration. Whatever it says on the human rights situation will be credible because it is not
subject to pressure or control from the present political leadership.
Secondly, we all know how political fortunes come and go. Those who are in power yesterday are in
opposition today and those who are in power today may be in the opposition tomorrow. Therefore, if
we have a Commission on Human Rights that would investigate and make sure that the rights of
each one is protected, then we shall have a body that could stand up to any power, to defend the
rights of individuals against arrest, unfair trial, and so on.45
These deliberative considerations abundantly show that the independent constitutional commissions
have been consistently intended by the framers to be independent from executive control or
supervision or any form of political influence. At least insofar as these bodies are concerned,
jurisprudence is not scarce on how the "independence" granted to these bodies prevents
presidential interference.
In Brillantes, Jr. v. Yorac,46 we emphasized that the Constitutional Commissions, which have been
characterized under the Constitution as "independent," are not under the control of the President,
even if they discharge functions that are executive in nature. The Court declared as unconstitutional
the President’s act of temporarily appointing the respondent in that case as Acting Chairman of the
Comelec "however well-meaning"47 it might have been.
In Bautista v. Senator Salonga,48 the Court categorically stated that the tenure of the commissioners
of the independent Commission on Human Rights could not be placed under the discretionary power
of the President:
Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by
the Constitution to be independent – as the Commission on Human Rights – and vested with the
delicate and vital functions of investigating violations of human rights, pinpointing responsibility and
recommending sanctions as well as remedial measures therefor, can truly function with
independence and effectiveness, when the tenure in office of its Chairman and Members is made
dependent on the pleasure of the President. Executive Order No. 163-A, being antithetical to the
constitutional mandate of independence for the Commission on Human Rights has to be declared
unconstitutional.
Again, in Atty. Macalintal v. Comelec,49 the Court considered even the mere review of the rules of the
Commission on Elections by Congress a "trampling" of the constitutional mandate of independence
of this body. Obviously, the mere review of rules places considerably less pressure on a
constitutional body than the Executive’s power to discipline and remove key officials of the Office of
the Ombudsman, yet the Court struck down the law as unconstitutional.
The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior – but
is similar in degree and kind – to the independence similarly guaranteed by the Constitution to the
Constitutional Commissions since all these offices fill the political interstices of a republican
democracy that are crucial to its existence and proper functioning.50
c. Section 8(2) of RA No. 6770

vesting disciplinary authority
in the President over the
Deputy Ombudsman violates
the independence of the Office
of the Ombudsman and is thus
unconstitutional
Our discussions, particularly the Court’s expressed caution against presidential interference with the
constitutional commissions, on one hand, and those expressed by the framers of the 1987
Constitution, on the other, in protecting the independence of the Constitutional Commissions, speak
for themselves as overwhelming reasons to invalidate Section 8(2) of RA No. 6770 for violating the
independence of the Office of the Ombudsman.
In more concrete terms, we rule that subjecting the Deputy Ombudsman to discipline and removal by
the President, whose own alter egos and officials in the Executive Department are subject to the
Ombudsman’s disciplinary authority, cannot but seriously place at risk the independence of the
Office of the Ombudsman itself. The Office of the Ombudsman, by express constitutional mandate,
includes its key officials, all of them tasked to support the Ombudsman in carrying out her mandate.
Unfortunately, intrusion upon the constitutionally-granted independence is what Section 8(2) of RA
No. 6770 exactly did. By so doing, the law directly collided not only with the independence that the
Constitution guarantees to the Office of the Ombudsman, but inevitably with the principle of checks
and balances that the creation of an Ombudsman office seeks to revitalize.
What is true for the Ombudsman must be equally and necessarily true for her Deputies who act as
agents of the Ombudsman in the performance of their duties. The Ombudsman can hardly be
expected to place her complete trust in her subordinate officials who are not as independent as she
is, if only because they are subject to pressures and controls external to her Office. This need for
complete trust is true in an ideal setting and truer still in a young democracy like the Philippines
where graft and corruption is still a major problem for the government. For these reasons, Section
8(2) of RA No. 6770 (providing that the President may remove a Deputy Ombudsman) should be
declared void.
The deliberations of the Constitutional Commission on the independence of the Ombudsman fully
support this position. Commissioner Florenz Regalado of the Constitutional Commission expressed
his apprehension that any form of presidential control over the Office of the Ombudsman would
diminish its independence.51 The following exchanges between Commissioners Blas Ople and
Christian Monsod further reveal the constitutional intent to keep the Office of the Ombudsman
independent from the President:
MR. OPLE. xxx
May I direct a question to the Committee? xxx [W]ill the Committee consider later an amendment
xxx, by way of designating the office of the Ombudsman as a constitutional arm for good
government, efficiency of the public service and the integrity of the President of the Philippines,
instead of creating another agency in a kind of administrative limbo which would be accountable to
no one on the pretext that it is a constitutional body?
MR. MONSOD. The Committee discussed that during our committee deliberations and when we
prepared the report, it was the opinion of the Committee — and I believe it still is — that it may not
contribute to the effectiveness of this office of the Ombudsman precisely because many of the
culprits in inefficiency, injustice and impropriety are in the executive department. Therefore, as we
saw the wrong implementation of the Tanodbayan which was under the tremendous influence of the
President, it was an ineffectual body and was reduced to the function of a special fiscal. The whole
purpose of our proposal is precisely to separate those functions and to produce a vehicle that will
give true meaning to the concept of Ombudsman. Therefore, we regret that we cannot accept the
proposition.52
The statements made by Commissioner Monsod emphasized a very logical principle: the Executive
power to remove and discipline key officials of the Office of the Ombudsman, or to exercise any
power over them, would result in an absurd situation wherein the Office of the Ombudsman is given
the duty to adjudicate on the integrity and competence of the very persons who can remove or
suspend its members. Equally relevant is the impression that would be given to the public if the rule
were otherwise. A complainant with a grievance against a high-ranking official of the Executive, who
appears to enjoy the President’s favor, would be discouraged from approaching the Ombudsman
with his complaint; the complainant’s impression (even if misplaced), that the Ombudsman would be
susceptible to political pressure, cannot be avoided. To be sure, such an impression would erode the
constitutional intent of creating an Office of the Ombudsman as champion of the people against
corruption and bureaucracy.
d. The mutual-protection argument for

crafting Section 8(2)of RA No. 6770
In crafting Section 8(2) of RA No. 6770, Congress apparently addressed the concern that a lack of
an external check against the Deputy Ombudsman would result in mutual protection between the
Ombudsman and her Deputies.
While the preceding discussion already suffices to address this concern, it should be added that this
concern stands on shaky grounds since it ignores the existing checks and balances already in place.
On the one hand, the Ombudsman’s Deputies cannot protect the Ombudsman because she is
subject to the impeachment power of Congress. On the other hand, the Ombudsman’s attempt to
cover up the misdeeds of her Deputies can be questioned before the Court on appeal or certiorari.
The same attempt can likewise subject her to impeachment.
The judicial recourse available is only consistent with the nature of the Supreme Court as a non-
political independent body mandated by the Constitution to settle judicial and quasi-judicial disputes,
whose judges and employees are not subject to the disciplinary authority of the Ombudsman and
whose neutrality would be less questionable. The Members of the Court themselves may be
subjected to the impeachment power of Congress.
In these lights, the appeal, if any, of the mutual protection argument becomes distinctly implausible.
At the same time, the Court remains consistent with its established rulings - that the independence
granted to the Constitutional Commissions bars any undue interference from either the Executive or
Congress – and is in full accord with constitutional intent.
e. Congress’ power determines the

manner and causes for the removal
of non-impeachable officers is not a
carte blanch authority
Under Section 2, Article XI of the 1987 Constitution,53 Congress is empowered to determine the
modes of removal from office of all public officers and employees except the President, the Vice-
President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and
the Ombudsman, who are all impeachable officials.
The intent of the framers of the Constitution in providing that "[a]ll other public officers and
employees may be removed from office as provided by law, but not by impeachment" in the second
sentence of Section 2, Article XI is to prevent Congress from extending the more stringent rule of
"removal only by impeachment" to favored public officers.54 Understandably so, impeachment is the
most difficult and cumbersome mode of removing a public officer from office. It is, by its nature, a sui
generis politico-legal process55 that signals the need for a judicious and careful handling as shown by
the process required to initiate the proceeding;56 the one-year limitation or bar for its initiation;57 the
limited grounds for impeachment;58 the defined instrumentality given the power to try impeachment
cases;59 and the number of votes required for a finding of guilt.60 All these argue against the extension
of this removal mechanism beyond those mentioned in the Constitution.
On the practical side, our nation has witnessed the complications and problems an impeachment
proceeding entails, thus justifying its limited application only to the officials occupying the highest
echelons of responsibility in our government. To name a few, some of the negative practical effects
of impeachment are: it stalls legislative work; it is an expensive process in terms of the cost of
prosecution alone; and, more importantly, it is inherently divisive of the nation.61 Thus, in a cost-
benefit analysis of adopting impeachment as a mechanism, limiting Congress’ power to otherwise
legislate on the matter is far more advantageous to the country.
It is in these lights that the second sentence in Section 2, Article XI of the 1987 Constitution should
be read. Contrary to the implied view of the minority, in no way can this provision be regarded as
blanket authority for Congress to provide for any ground of removal it deems fit. While the manner
and cause of removal are left to congressional determination, this must still be consistent with
constitutional guarantees and principles, namely: the right to procedural and substantive due
process; the constitutional guarantee of security of tenure; the principle of separation of powers; and
the principle of checks and balances.62
In short, the authority granted by the Constitution to Congress to provide for the manner and cause
of removal of all other public officers and employees does not mean that Congress can ignore the
basic principles and precepts established by the Constitution.
In the same manner, the congressional determination of the identity of the disciplinary authority is
not a blanket authority for Congress to repose it on whomsoever Congress chooses without running
afoul of the independence enjoyed by the Office of the Ombudsman and without disrupting the
delicate check and balance mechanism under the Constitution. Properly viewed from this
perspective, the core constitutional principle of independence is observed and any possible
absurdity resulting from a contrary interpretation is avoided. In other words, while the Constitution
itself vested Congress with the power to determine the manner and cause of removal of all non-
impeachable officials, this power must be interpreted consistent with the core constitutional principle
of independence of the Office of the Ombudsman. Our observation in Macalintal v. Comelec63 is apt:
The ambit of legislative power under Article VI of the Constitution is circumscribed by other
constitutional provisions. One such provision is Section 1 of Article IX-A of the 1987 Constitution
ordaining that constitutional commissions such as the COMELEC shall be "independent."
While one may argue that the grounds for impeachment under Section 8(2) of RA No. 6770 is
intended as a measure of protection for the Deputy Ombudsman and Special Prosecutor – since
these grounds are not intended to cover all kinds of official wrongdoing and plain errors of judgment
- this argument seriously overlooks the erosion of the independence of the Office of the Ombudsman
that it creates. The mere fact that a statutorily-created sword of Damocles hangs over the Deputy
Ombudsman’s head, by itself, opens up all the channels for external pressures and influence of
officialdom and partisan politics. The fear of external reprisal from the very office he is to check for
excesses and abuses defeats the very purpose of granting independence to the Office of the
Ombudsman.
That a judicial remedy is available (to set aside dismissals that do not conform to the high standard
required in determining whether a Deputy Ombudsman committed an impeachable offense) and that
the President’s power of removal is limited to specified grounds are dismally inadequate when
balanced with the constitutional principle of independence. The mere filing of an administrative case
against the Deputy Ombudsman and the Special Prosecutor before the OP can already result in
their suspension and can interrupt the performance of their functions, in violation of Section 12,
Article XI of the Constitution. With only one term allowed under Section 11, a Deputy Ombudsman or
Special Prosecutor, if removable by the President, can be reduced to the very same ineffective
Office of the Ombudsman that the framers had foreseen and carefully tried to avoid by making these
offices independent constitutional bodies.
At any rate, even assuming that the OP has disciplinary authority over the Deputy Ombudsman, its
decision finding Gonzales guilty of Gross Neglect of Duty and Grave Misconduct constituting
betrayal of public trust is patently erroneous. The OP’s decision perfectly illustrates why the
requirement of impeachment-grounds in Section 8(2) of RA No. 6770 cannot be considered, even at
a minimum, a measure of protection of the independence of the Office of the Ombudsman.
C. The Deputy Ombudsman: The Dismissal Issue
a. The Office of the President’s

finding of gross negligence
has no legal and factual leg to
stand on
The OP’s decision found Gonzales guilty of Gross Neglect of Duty and of Grave Misconduct. The
assailed Decision of the OP reads:
Upon consideration of the First Report, the evidence and allegations of respondent Deputy
Ombudsman himself, and other documentary evidence gathered, this Office finds that the inordinate
and unjustified delay in the resolution of Captain Mendoza’s Motion for Reconsideration timely filed
on 5 November 2009 xxx amounted to gross neglect of duty and/or inefficiency in the performance of
official duty.64
b. No gross neglect of duty or inefficiency
Let us again briefly recall the facts.
1. November 5, 2009 - Mendoza filed a Motion for Reconsideration of the decision of the
Ombudsman,65 which was followed by a Supplement to the Motion for Reconsideration;66
2. December 14, 200967 - GIPO Garcia, who was assigned to review these motions and
make his recommendation for the appropriate action, received the records of the case;
3. April 5, 2010 – GIPO Garcia released a draft order to be reviewed by his immediate
superior, Dir. Cecilio;68
4. April 27, 2010 – Dir. Cecilio signed and forwarded to Gonzales this draft order;69
5. May 6, 2010 (or nine days after the records were forwarded to Gonzales) – Gonzales
endorsed the draft order for the final approval of the Ombudsman.70
Clearly, when Mendoza hijacked the tourist bus on August 23, 2010, the records of the case were
already pending before Ombudsman Gutierrez.
Gross negligence refers to negligence characterized by the want of even the slightest care, acting or
omitting to act in a situation where there is a duty to act, not inadvertently but willfully and
intentionally, with a conscious indifference to consequences insofar as other persons may be
affected. In the case of public officials, there is gross negligence when a breach of duty is flagrant
and palpable.71
Gonzales cannot be guilty of gross neglect of duty and/or inefficiency since he acted on the case
forwarded to him within nine days. In finding Gonzales guilty, the OP72 relied on Section 8, Rule III of
Administrative Order No. 7 (or the Rules of Procedure of the Office of the Ombudsman, series of
1990, as amended) in ruling that Gonzales should have acted on Mendoza’s Motion for
Reconsideration within five days:
Section 8. Motion for reconsideration or reinvestigation: Grounds – Whenever allowable, a motion for
reconsideration or reinvestigation may only be entertained if filed within ten (10) days from receipt of
the decision or order by the party on the basis of any of the following grounds:
a) New evidence had been discovered which materially affects the order, directive or
decision;
b) Grave errors of facts or laws or serious irregularities have been committed prejudicial to
the interest of the movant.
Only one motion for reconsideration or reinvestigation shall be allowed, and the Hearing Officer shall
resolve the same within five (5) days from the date of submission for resolution. [emphasis and
underscore ours]
Even if we consider this provision to be mandatory, the period it requires cannot apply to Gonzales
since he is a Deputy Ombudsman whose obligation is to review the case; he is not simply a Hearing
Officer tasked with the initial resolution of the motion. In Section 6 of Administrative Order No. 7 on
the resolution of the case and submission of the proposed decision, the period for resolving the case
does not cover the period within which it should be reviewed:
Section 6. Rendition of decision. – Not later than thirty (30) days after the case is declared submitted
for resolution, the Hearing Officer shall submit a proposed decision containing his findings and
recommendation for the approval of the Ombudsman. Said proposed decision shall be reviewed by
the Directors, Assistant Ombudsmen and Deputy Ombudsmen concerned. With respect to low
ranking public officials, the Deputy Ombudsman concerned shall be the approving authority. Upon
approval, copies thereof shall be served upon the parties and the head of the office or agency of
which the respondent is an official or employee for his information and compliance with the
appropriate directive contained therein. [italics and emphases supplied]
Thus, the OP’s ruling that Gonzales had been grossly negligent for taking nine days, instead of five
days, to review a case was totally baseless.
c. No actionable failure to supervise subordinates
The OP’s claims that Gonzales could have supervised his subordinates to promptly act on
Mendoza’s motion and apprised the Tanodbayan of the urgency of resolving the same are similarly
groundless.
The Office of the Ombudsman is not a corner office in our bureaucracy. It handles numerous cases
that involve the potential loss of employment of many other public employees. We cannot
conclusively state, as the OP appears to suggest, that Mendoza’s case should have been prioritized
over other similar cases.
The Court has already taken judicial notice of the steady stream of cases reaching the Office of the
Ombudsman.73 This consideration certainly militates against the OSG’s observation that there was "a
grossly inordinate and inexcusable delay"74 on the part of Gonzales.
Equally important, the constitutional guarantee of "speedy disposition of cases" before, among
others, quasi-judicial bodies,75 like the Office of the Ombudsman, is itself a relative concept.76 Thus,
the delay, if any, must be measured in this objective constitutional sense. Unfortunately, because of
the very statutory grounds relied upon by the OP in dismissing Gonzales, the political and, perhaps,
"practical" considerations got the better of what is legal and constitutional.
The facts do not show that Gonzales’ subordinates had in any way been grossly negligent in their
work. While GIPO Garcia reviewed the case and drafted the order for more than three months, it is
noteworthy that he had not drafted the initial decision and, therefore, had to review the case for the
first time.77 Even the Ombudsman herself could not be faulted for acting on a case within four
months, given the amount of cases that her office handles.
The point is that these are not inordinately long periods for the work involved: examination of the
records, research on the pertinent laws and jurisprudence, and exercise of legal judgment and
discretion. If this Court rules that these periods per se constitute gross neglect of duty, the
Ombudsman’s constitutional mandate to prosecute all the erring officials of this country would be
subjected to an unreasonable and overwhelming constraint. Similarly, if the Court rules that these
periods per se constitute gross neglect of duty, then we must be prepared to reconcile this with the
established concept of the right of speedy disposition of cases – something the Court may be hard
put to justify.
d. No undue interest
The OP also found Gonzales guilty of showing undue interest in Mendoza’s case by having the case
endorsed to the Office of the Ombudsman and by resolving it against Mendoza on the basis of the
unverified complaint-affidavit of the alleged victim, Kalaw.
The fact that Gonzales had Mendoza’s case endorsed to his office lies within his mandate, even if it
were based merely on the request of the alleged victim’s father. The Constitution empowers the
Ombudsman and her Deputies to act promptly on complaints filed in any form or manner against any
public official or employee of the government.78 This provision is echoed by Section 13 of RA No.
6770,79 and by Section 3, Rule III of Administrative Order No. 7, series of 1990, as amended.80
Moreover, Gonzales and his subordinates did not resolve the complaint only on the basis of the
unverified affidavit of Kalaw. Based on the prosecution officer’s recommendations, the finding of guilt
on the part of Mendoza, et al. was based on their admissions as well. Mendoza, et al. admitted that
they had arrested Kalaw based on two traffic violations and allowed him to stay the whole night until
the following morning in the police precinct. The next morning, Kalaw was allowed to leave the
precinct despite his failure to show a valid license and based merely on his promise to return with
the proper documents.81 These admissions led Gonzales and his staff to conclude that Mendoza, et
al. irregularly acted in apprehending Kalaw, since the proper procedure for the apprehension of
traffic violators would be to give them a ticket and to file a case, when appropriate.82
Lastly, we cannot deduce undue interest simply because Gonzales’ decision differs from the
decision of the PNP-IAS (which dismissed the complaint against Mendoza). To be sure, we cannot
tie the hands of any judicial or quasi-judicial body by ruling that it should always concur with the
decisions of other judicial or quasi-judicial bodies which may have also taken cognizance of the
case. To do so in the case of a Deputy Ombudsman would be repugnant to the independence that
our Constitution has specifically granted to this office and would nullify the very purpose for which it
was created.
e. Penalty of dismissal totally

incommensurate with established facts
Given the lack of factual basis for the charges against Gonzales, the penalty of removal imposed by
the OP necessarily suffers grave infirmity. Basic strictures of fair play dictate that we can only be
held liable for our own misdeeds; we can be made to account only for lapses in our responsibilities.
It is notable that of all the officers, it was Gonzales who took the least time — nine days — followed
by Cecilio, who took 21 days; Garcia — the writer of the draft — took less than four months, and the
Ombudsman, less than four months until the kidnapping incident rendered Mendoza’s motion moot.
In these lights, the decision of the OP is clearly and patently wrong. This conclusion, however, does
not preclude the Ombudsman from looking into any other possible administrative liability of Gonzales
under existing Civil Service laws, rules and regulations.
D. The Special Prosecutor: The Constitutional Issue
The 1987 Constitution created a new, independent Office of the Ombudsman. The existing
Tanodbayan at the time83 became the Office of the Special Prosecutor under the 1987 Constitution.
While the composition of the independent Office of the Ombudsman under the 1987 Constitution
does not textually include the Special Prosecutor, the weight of the foregoing discussions on the
unconstitutionality of Section 8(2) of RA No. 6770 should equally apply to the
Special Prosecutor on the basis of the legislative history of the Office of the Ombudsman as
expounded in jurisprudence.
Under the 1973 Constitution,84 the legislature was mandated to create the Office of the Ombudsman,
known as the Tanodbayan, with investigative and prosecutorial powers. Accordingly, on June 11,
1978, President Ferdinand Marcos enacted PD No. 1487.85
Under PD No. 1486,86 however, the "Chief Special Prosecutor" (CSP) was given the "exclusive
authority" to conduct preliminary investigation and to prosecute cases that are within the jurisdiction
of the Sandiganbayan.87 PD No. 1486 expressly gave the Secretary of Justice the power of control
and supervision over the Special Prosecutor.88 Consistent with this grant of power, the law also
authorized the Secretary of Justice to appoint or detail to the Office of the CSP "any officer or
employee of Department of Justice or any Bureau or Office under the executive supervision thereof"
to assist the Office of the CSP.
In December 1978, PD No. 160789 practically gave back to the Tanodbayan the powers taken away
from it by the Office of the CSP. The law "created in the Office of the Tanodbayan an Office of the
Chief Special Prosecutor" under the Tanodbayan’s control,90 with the exclusive authority to conduct
preliminary investigation and prosecute all cases cognizable by the Sandiganbayan. Unlike the
earlier decree, the law also empowered the Tanodbayan to appoint Special Investigators and
subordinate personnel and/or to detail to the Office of the CSP any public officer or employees who
"shall be under the supervision and control of the Chief Special Prosecutor."91 In 1979, PD No. 1630
further amended the earlier decrees by transferring the powers previously vested in the Special
Prosecutor directly to the Tanodbayan himself.92
This was the state of the law at the time the 1987 Constitution was ratified. Under the 1987
Constitution, an "independent Office of the Ombudsman" is created.93 The existing Tanodbayan is
made the Office of the Special Prosecutor, "who shall continue to function and exercise its powers
as now94 or hereafter may be provided by law."95
Other than the Ombudsman’s Deputies, the Ombudsman shall appoint all other officials and
employees of the Office of the Ombudsman.96 Section 13(8), Article XI of the 1987 Constitution
provides that the Ombudsman may exercise "such other powers or perform such functions or duties
as may be provided by law." Pursuant to this constitutional command, Congress enacted RA No.
6770 to provide for the functional and structural organization of the Office of the Ombudsman and
the extent of its disciplinary authority.
In terms of composition, Section 3 of RA No. 6770 defines the composition of the Office of the
Ombudsman, including in this Office not only the offices of the several Deputy Ombudsmen but the
Office of the Special Prosecutor as well. In terms of appointment, the law gave the President the
authority to appoint the Ombudsman, his Deputies and the Special Prosecutor, from a list of
nominees prepared by the Judicial and Bar Council. In case of vacancy in these positions, the law
requires that the vacancy be filled within three (3) months from occurrence.97
The law also imposes on the Special Prosecutor the same qualifications it imposes on the
Ombudsman himself/herself and his/her deputies.98 Their terms of office,99 prohibitions and
qualifications,100 rank and salary are likewise the same.101 The requirement on disclosure102 is imposed
on the Ombudsman, the Deputies and the Special Prosecutor as well. In case of vacancy in the
Office of the Ombudsman, the Overall Deputy cannot assume the role of Acting Ombudsman; the
President may designate any of the Deputies or the Special Prosecutor as Acting
Ombudsman.103 The power of the Ombudsman and his or her deputies to require other government
agencies to render assistance to the Office of the Ombudsman is likewise enjoyed by the Special
Prosecutor.104
Given this legislative history, the present overall legal structure of the Office of the Ombudsman,
both under the 1987 Constitution and RA No. 6770, militates against an interpretation that would
insulate the Deputy Ombudsman from the disciplinary authority of the OP and yet expose the
Special Prosecutor to the same ills that a grant of independence to the Office of the Ombudsman
was designed for.
Congress recognized the importance of the Special Prosecutor as a necessary adjunct of the
Ombudsman, aside from his or her deputies, by making the Office of the Special Prosecutor an
organic component of the Office of the Ombudsman and by granting the Ombudsman control and
supervision over that office.105 This power of control and supervision includes vesting the Office of the
Ombudsman with the power to assign duties to the Special Prosecutor as he/she may deem
fit. Thus, by constitutional design, the Special Prosecutor is by no means an ordinary subordinate
1âwphi1
but one who effectively and directly aids the Ombudsman in the exercise of his/her duties, which
include investigation and prosecution of officials in the Executive Department.
Under Section 11(4) of RA No. 6770, the Special Prosecutor handles the prosecution of criminal
cases within the jurisdiction of the Sandiganbayan and this prosecutorial authority includes high-
ranking executive officials. For emphasis, subjecting the Special Prosecutor to disciplinary and
removal powers of the President, whose own alter egos and officials in the Executive Department
are subject to the prosecutorial authority of the Special Prosecutor, would seriously place the
independence of the Office of the Ombudsman itself at risk.
Thus, even if the Office of the Special Prosecutor is not expressly made part of the composition of
the Office of the Ombudsman, the role it performs as an organic component of that Office militates
against a differential treatment between the Ombudsman’s Deputies, on one hand, and the Special
Prosecutor himself, on the other. What is true for the Ombudsman must be equally true, not only for
her Deputies but, also for other lesser officials of that Office who act directly as agents of the
Ombudsman herself in the performance of her duties.
In Acop v. Office of the Ombudsman,106 the Court was confronted with an argument that, at bottom,
the Office of the Special Prosecutor is not a subordinate agency of the Office of the Ombudsman
and is, in fact, separate and distinct from the latter. In debunking that argument, the Court said:
Firstly, the petitioners misconstrue Commissioner Romulo's statement as authority to advocate that
the intent of the framers of the 1987 Constitution was to place the Office of the Special Prosecutor
under the Office of the President. Xxx
In the second place, Section 7 of Article XI expressly provides that the then existing Tanodbayan, to
be henceforth known as the Office of the Special Prosecutor, "shall continue to function and exercise
its powers as now or hereafter may be provided by law, except those conferred on the Office of the
Ombudsman created under this Constitution." The underscored phrase evidently refers to the
Tanodbayan's powers under P.D. No. 1630 or subsequent amendatory legislation. It follows then
that Congress may remove any of the Tanodbayan's/Special Prosecutor's powers under P.D. N0.
1630 or grant it other powers, except those powers conferred by the Constitution on the Office of the
Ombudsman.
Pursuing the present line of reasoning, when one considers that by express mandate of paragraph
8, Section 13, Article XI of the Constitution, the Ombudsman may "exercise such other powers or
perform functions or duties as may be provided by law," it is indubitable then that Congress has the
power to place the Office of the Special Prosecutor under the Office of the Ombudsman.107
Thus, under the present Constitution, there is every reason to treat the Special Prosecutor to be at
par with the Ombudsman's deputies, at least insofar as an extraneous disciplinary authority is
concerned, and must also enjoy the same grant of independence under the Constitution.
III. SUMMARY OF VOTING
In the voting held on January 28, 2014, by a vote of 8-7,108 the Court resolved to reverse its
September 4, 2012 Decision insofar as petitioner Gonzales is concerned (G.R. No. 196231). We
declared Section 8(2) of RA No. 6770 unconstitutional by granting disciplinary jurisdiction to the
President over a Deputy Ombudsman, in violation of the independence of the Office of the
Ombudsman.
However, by another vote of 8-7,109 the Court resolved to maintain the validity of Section 8(2) of RA
No. 6770 insofar as Sulit is concerned. The Court did not consider the Office of the Special
Prosecutor to be constitutionally within the Office of the Ombudsman and is, hence, not entitled to
the independence the latter enjoys under the Constitution.
WHEREFORE, premises considered, the Court resolves to declare Section 8(2)

UNCONSTITUTIONAL. This ruling renders any further ruling on the dismissal of Deputy
Ombudsman Emilio Gonzales III unnecessary, but is without prejudice to the power of the
Ombudsman to conduct an administrative investigation, if warranted, into the possible administrative
liability of Deputy Ombudsman Emilio Gonzales III under pertinent Civil Service laws, rules and
regulations.
SO ORDERED.
115

SUPREME COURT
Baguio City
EN BANC
G.R. No. 180917 April 23, 2010
ATTY. VICENTE E. SALUMBIDES, JR., and GLENDA ARAÑA, Petitioners,

vs.
OFFICE OF THE OMBUDSMAN, RICARDO AGON, RAMON VILLASANTA, ELMER DIZON,
SALVADOR ADUL, and AGNES FABIAN, Respondents,
DECISION
CARPIO MORALES, J.:
Petitioners Vicente Salumbides, Jr. (Salumbides) and Glenda Araña (Glenda) challenge the October
11, 2007 Decision and the December 13, 2007 Resolution of the Court of Appeals1 in CA-G.R. SP
No. 96889 affirming the Office of the Ombudsman's decision finding them guilty of Simple Neglect of
Duty.
Salumbides and Glenda were appointed in July 2001 as Municipal Legal Officer/Administrator and
Municipal Budget Officer, respectively, of Tagkawayan, Quezon.
Towards the end of 2001, Mayor Vicente Salumbides III (the mayor) saw the urgent need to
construct a two-classroom building with fence (the projects) for the Tagkawayan Municipal High
School2 (TMHS) since the public school in the poblacion area would no longer admit high school
freshmen starting school year 2002-2003. On how to solve the classroom shortage, the mayor
consulted Salumbides who suggested that the construction of the two-classroom building be
charged to the account of the Maintenance and Other Operating Expenses/ Repair and Maintenance
of Facilities (MOOE/RMF) and implemented "by administration," as had been done in a previous
classroom building project of the former mayor.
Upon consultation, Glenda advised Salumbides in December 2001, that there were no more
available funds that could be taken from the MOOE/RMF, but the savings of the municipal
government were adequate to fund the projects. She added, however, that the approval by
the Sangguniang Bayan of a proposed supplemental budget must be secured.
The members of the Sangguniang Bayan having already gone on recess for the Christmas holidays,
Glenda and Salumbides advised the mayor to source the funds from the ₱1,000,000 MOOE/RMF
allocation in the approved Municipal Annual Budget for 2002.3
The mayor thus ordered on January 8, 2002 Municipal Engineer Jose Aquino (Aquino) to proceed
with the construction of the projects based on the program of work and bill of materials he (Aquino)
prepared with a total cost estimate of ₱222,000.
Upon advice of Municipal Planning and Development Officer Hernan Jason (Jason), the mayor
included the projects in the list of local government projects scheduled for bidding on January 25,
2002 which, together with the January 31, 2002 public bidding, failed.
The mayor was to admit later his expectation or assumption of risk on reimbursement:
x x x It was my thinking that even if a bidder emerges and gets these 2 projects which were at the
time on-going (although it was also my thinking then that no bidder would possibly bid for these 2
projects as these were cost-estimated very low-P150,000 for the 2-room school building P72,000 for
the fencing) he (bidder) would be reasonable enough to reimburse what I had so far spen[t] for the
project. I said "I" because up to the time of the failed 2 biddings I have shouldered the "vale" of the
laborers and I requisitioned some materials on credit on my own personal account, and not a single
centavo was at the time disbursed by our municipal treasury until all requirements for negotiated
purchase of the materials for the project had been accomplished. As a matter of fact, payments for
the expenses on these 2 projects have been made only starting 19 March 2002. x x x4 (underscoring
supplied)
The construction of the projects commenced without any approved appropriation and ahead of the
public bidding. Salumbides was of the opinion that the projects were regular and legal, based on an
earlier project that was "implemented in the same manner, using the same source of fund and for the
same reason of urgency" which was allowed "because the building was considered merely
temporary as the TMHS is set to be transferred to an 8-hectare lot which the municipal government
is presently negotiating to buy."5
Meanwhile, Aquino suggested to the Sangguniang Bayan the adoption of "model guidelines" in the
implementation of infrastructure projects to be executed "by administration," while Councilor Coleta
Sandro (Coleta) sponsored a Resolution to ratify the projects and to authorize the mayor to enter
into a negotiated procurement. Both actions did not merit the approval of the Sangguniang Bayan.
On May 13, 2002, herein respondents Ricardo Agon, Ramon Villasanta, Elmer Dizon, Salvador Adul
and Agnes Fabian, all members of the Sangguniang Bayan of Tagkawayan, filed with the Office of
the Ombudsman a complaint6 against Salumbides and Glenda (hereafter petitioners), the mayor,
Coleta, Jason and Aquino.
The administrative aspect of the case, docketed as Case No. OMB-L-A-02-0276-E, charged
petitioners et al. with Dishonesty, Grave Misconduct, Gross Neglect of Duty, Conduct Prejudicial to
the Best Interest of the Service, and violation of the Commission on Audit (COA) Rules and the
Local Government Code.
By Order of June 14, 2002, the Office of the Ombudsman, denied the prayer to place petitioners et
al. under preventive suspension pending investigation. By Order dated February 1, 2005, approved
on April 11, 2005, it denied the motion for reconsideration but dropped the mayor and Coleta, both
elective officials, as respondents in the administrative case, the 2004 elections having mooted the
case. The parties were thereupon directed to submit their respective verified position papers to
which petitioners, Jason and Aquino complied by submitting a consolidated position paper on May
19, 2005.
Meanwhile, in response to the subpoena duces tecum issued by the Office of the Ombudsman on
February 18, 2005 requiring the regional officer of the COA to submit the post-audit report on the
projects, Celerino Alviar, COA State Auditor II claimed by Affidavit of May 23, 2005 that the required
documents were among those razed by fire on April 14, 2004 that hit the Office of the Municipal
Accountant where they were temporarily stored due to lack of space at the Provincial Auditor's
Office.1avvphi1
On October 17, 2005, the Office of the Ombudsman approved the September 9, 2005
Memorandum absolving Jason and Aquino, and finding petitioners guilty of Simple Neglect of Duty,
for which they were meted the penalty of suspension from office for a maximum period of six months
with a stern warning against a similar repetition. It also approved on November 2, 2006 the March
27, 2006 Order7 denying the motion for reconsideration.
Their recourse to the appellate court having failed, petitioners come before this Court via Rule 45 of
the Rules of Court.
For non-compliance with the rule on certification against forum shopping, the petition merits outright
dismissal. The verification portion of the petition does not carry a certification against forum
shopping.8
The Court has distinguished the effects of non-compliance with the requirement of verification and
that of certification against forum shopping. A defective verification shall be treated as an unsigned
pleading and thus produces no legal effect, subject to the discretion of the court to allow the
deficiency to be remedied, while the failure to certify against forum shopping shall be cause for
dismissal without prejudice, unless otherwise provided, and is not curable by amendment of the
initiatory pleading.9
Petitioners' disregard of the rules was not the first. Their motion for extension of time to file petition
was previously denied by Resolution of January 15, 200810 for non-compliance with the required
showing of competent proof of identity in the Affidavit of Service. The Court, by Resolution of March
4, 2008,11 later granted their motion for reconsideration with motion to admit appeal (Motion with
Appeal) that was filed on February 18, 2008 or the last day of filing within the extended period.
Moreover, in their Manifestation/Motion12 filed a day later, petitioners prayed only for the admission
of nine additional copies of the Motion with Appeal "due to honest inadvertence" in earlier filing an
insufficient number of copies. Petitioners were less than candid when they surreptitiously submitted
a Motion with Appeal which is differentfrom the first set they had submitted. The second set of
Appeal includes specific Assignment of Errors13 and already contains a certification against forum
shopping14 embedded in the Verification. The two different Verifications were notarized by the same
notary public and bear the same date and document number.15 The rectified verification with
certification, however, was filed beyond the reglementary period.
Its lapses aside, the petition just the same merits denial.
Petitioners urge this Court to expand the settled doctrine of condonation16 to cover coterminous
appointive officials who were administratively charged along with the reelected official/appointing
authority with infractions allegedly committed during their preceding term.
The Court rejects petitioners' thesis.
More than 60 years ago, the Court in Pascual v. Hon. Provincial Board of Nueva Ecija17 issued the
landmark ruling that prohibits the disciplining of an elective official for a wrongful act committed
during his immediately preceding term of office. The Court explained that "[t]he underlying theory is
that each term is separate from other terms, and that the reelection to office operates as a
condonation of the officer's previous misconduct to the extent of cutting off the right to remove him
therefor."18
The Court should never remove a public officer for acts done prior to his present term of office. To
do otherwise would be to deprive the people of their right to elect their officers. When the people
elect[e]d a man to office, it must be assumed that they did this with knowledge of his life and
character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any.
It is not for the court, by reason of such faults or misconduct[,] to practically overrule the will of the
people.19 (underscoring supplied)
Lizares v. Hechanova, et al.20 replicated the doctrine. The Court dismissed the petition in that case
for being moot, the therein petitioner "having been duly reelected, is no longer amenable to
administrative sanctions."21
Ingco v. Sanchez, et al.22 clarified that the condonation doctrine does not apply to a criminal
case.23 Luciano v. The Provincial Governor, et al.,24 Olivarez v. Judge Villaluz,25 and Aguinaldo v.
Santos26 echoed the qualified rule that reelection of a public official does not bar prosecution for
crimes committed by him prior thereto.
Consistently, the Court has reiterated the doctrine in a string of recent jurisprudence including two
cases involving a Senator and a Member of the House of Representatives.27
Salalima v. Guingona, Jr.28 and Mayor Garcia v. Hon. Mojica29 reinforced the doctrine. The
condonation rule was applied even if the administrative complaint was not filed before the reelection
of the public official, and even if the alleged misconduct occurred four days before the elections,
respectively. Salalima did not distinguish as to the date of filing of the administrative complaint, as
long as the alleged misconduct was committed during the prior term, the precise timing or period of
which Garcia did not further distinguish, as long as the wrongdoing that gave rise to the public
official's culpability was committed prior to the date of reelection.
Petitioners' theory is not novel.
A parallel question was involved in Civil Service Commission v. Sojor30 where the Court found no
basis to broaden the scope of the doctrine of condonation:
Lastly, We do not agree with respondent's contention that his appointment to the position of
president of NORSU, despite the pending administrative cases against him, served as a
condonation by the BOR of the alleged acts imputed to him. The doctrine this Court laid down in
Salalima v. Guingona, Jr. and Aguinaldo v. Santos are inapplicable to the present
circumstances. Respondents in the mentioned cases are elective officials, unlike respondent here
who is an appointed official. Indeed, election expresses the sovereign will of the people. Under the
principle of vox populi est suprema lex, the re-election of a public official may, indeed,
supersede a pending administrative case. The same cannot be said of a re-appointment to a
non-career position. There is no sovereign will of the people to speak of when the BOR re-
appointed respondent Sojor to the post of university president.31 (emphasis and underscoring
supplied) lawph!l
Contrary to petitioners' asseveration, the non-application of the condonation doctrine to appointive

officials does not violate the right to equal protection of the law.
In the recent case of Quinto v. Commission on Elections,32 the Court applied the four-fold test in an
equal protection challenge33 against the resign-to-run provision, wherein it discussed the material
and substantive distinctions between elective and appointive officials that could well apply to the
doctrine of condonation:
The equal protection of the law clause is against undue favor and individual or class privilege, as
well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation
which is limited either in the object to which it is directed or by territory within which it is to operate. It
does not demand absolute equality among residents; it merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to privileges conferred and liabilities
enforced. The equal protection clause is not infringed by legislation which applies only to those
persons falling within a specified class, if it applies alike to all persons within such class, and
reasonable grounds exist for making a distinction between those who fall within such class and
those who do not.
Substantial distinctions clearly exist between elective officials and appointive officials. The
former occupy their office by virtue of the mandate of the electorate. They are elected to an office for
a definite term and may be removed therefrom only upon stringent conditions. On the other
hand, appointive officials hold their office by virtue of their designation thereto by an appointing
authority. Some appointive officials hold their office in a permanent capacity and are entitled to
security of tenure while others serve at the pleasure of the appointing authority.
xxxx
An election is the embodiment of the popular will, perhaps the purest expression of the sovereign
power of the people. It involves the choice or selection of candidates to public office by popular vote.
Considering that elected officials are put in office by their constituents for a definite term, x x x
complete deference is accorded to the will of the electorate that they be served by such officials until
the end of the term for which they were elected. In contrast, there is no such expectation insofar as
appointed officials are concerned. (emphasis and underscoring supplied)
The electorate's condonation of the previous administrative infractions of the reelected official cannot
be extended to that of the reappointed coterminous employees, the underlying basis of the rule
being to uphold the will of the people expressed through the ballot. In other words, there is neither
subversion of the sovereign will nor disenfranchisement of the electorate to speak of, in the case of
reappointed coterminous employees.
It is the will of the populace, not the whim of one person who happens to be the appointing authority,
that could extinguish an administrative liability. Since petitioners hold appointive positions, they
cannot claim the mandate of the electorate. The people cannot be charged with the presumption of
full knowledge of the life and character of each and every probable appointee of the elective official
ahead of the latter's actual reelection.
Moreover, the unwarranted expansion of the Pascual doctrine would set a dangerous precedent as it
would, as respondents posit, provide civil servants, particularly local government employees, with
blanket immunity from administrative liability that would spawn and breed abuse in the bureaucracy.
Asserting want of conspiracy, petitioners implore this Court to sift through the evidence and re-
assess the factual findings. This the Court cannot do, for being improper and immaterial.
Under Rule 45 of the Rules of Court, only questions of law may be raised, since the Court is not a
trier of facts.34 As a rule, the Court is not to review evidence on record and assess the probative
weight thereof. In the present case, the appellate court affirmed the factual findings of the Office of
the Ombudsman, which rendered the factual questions beyond the province of the Court.
Moreover, as correctly observed by respondents, the lack of conspiracy cannot be appreciated in

favor of petitioners who were found guilty of simple neglect of duty, for if they conspired to act
negligently, their infraction becomes intentional.35 There can hardly be conspiracy to commit
negligence.36
Simple neglect of duty is defined as the failure to give proper attention to a task expected from an
employee resulting from either carelessness or indifference.37 In the present case, petitioners fell
short of the reasonable diligence required of them, for failing to exercise due care and prudence in
ascertaining the legal requirements and fiscal soundness of the projects before stamping their
imprimatur and giving their advice to their superior.
The appellate court correctly ruled that as municipal legal officer, petitioner Salumbides "failed to
uphold the law and provide a sound legal assistance and support to the mayor in carrying out the
delivery of basic services and provisions of adequate facilities when he advised [the mayor] to
proceed with the construction of the subject projects without prior competitive bidding."38 As pointed
out by the Office of the Solicitor General, to absolve Salumbides is tantamount to allowing with
impunity the giving of erroneous or illegal advice, when by law he is precisely tasked to advise the
mayor on "matters related to upholding the rule of law."39 Indeed, a legal officer who renders a legal
opinion on a course of action without any legal basis becomes no different from a lay person who
may approve the same because it appears justified.
As regards petitioner Glenda, the appellate court held that the improper use of government funds
upon the direction of the mayor and prior advice by the municipal legal officer did not relieve her of
liability for willingly cooperating rather than registering her written objection40 as municipal budget
officer.
Aside from the lack of competitive bidding, the appellate court, pointing to the improper itemization of
the expense, held that the funding for the projects should have been taken from the "capital outlays"
that refer to the appropriations for the purchase of goods and services, the benefits of which extend
beyond the fiscal year and which add to the assets of the local government unit. It added that current
operating expenditures like MOOE/RMF refer to appropriations for the purchase of goods and
services for the conduct of normal local government operations within the fiscal year.41
In Office of the Ombudsman v. Tongson,42 the Court reminded the therein respondents, who were
guilty of simple neglect of duty, that government funds must be disbursed only upon compliance with
the requirements provided by law and pertinent rules.
Simple neglect of duty is classified as a less grave offense punishable by suspension without pay for
one month and one day to six months. Finding no alleged or established circumstance to warrant the
imposition of the maximum penalty of six months, the Court finds the imposition of suspension
without pay for three months justified.
When a public officer takes an oath of office, he or she binds himself or herself to faithfully perform
the duties of the office and use reasonable skill and diligence, and to act primarily for the benefit of
the public. Thus, in the discharge of duties, a public officer is to use that prudence, caution, and
attention which careful persons use in the management of their affairs.43
Public service requires integrity and discipline. For this reason, public servants must exhibit at all
times the highest sense of honesty and dedication to duty. By the very nature of their duties and
responsibilities, public officers and employees must faithfully adhere to hold sacred and render
inviolate the constitutional principle that a public office is a public trust; and must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency.44
WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No.
96889 are AFFIRMED with MODIFICATION, in that petitioners, Vicente Salumbides, Jr. and Glenda
Araña, are suspended from office for three (3) months without pay.
SO ORDERED.
116
G.R. No. 160261 November 10, 2003
ERNESTO B. FRANCISCO, JR., petitioner,

NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO, INC.,
ITS OFFICERS AND MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE VENECIA,
THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON,
REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160262 November 10, 2003
SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZON-

ABAD, petitioners,
ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-in-intervention,
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR
PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G.
TEODORO, JR., REPRESENTA-TIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE
PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M.
DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
x---------------------------------------------------------x
G.R. No. 160263 November 10, 2003
ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-in-
intervention,
vs.
FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE
VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, respondents,
x---------------------------------------------------------x
G.R. No. 160277 November 10, 2003
FRANCISCO I. CHAVEZ, petitioner,

intervention,
vs.
JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT OF THE
SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO, JR., FELIX WILLIAM
FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM BERNARDO-LOKIN, MARCELINO
LIBANAN, EMMYLOU TALIÑO-SANTOS, DOUGLAS CAGAS, SHERWIN GATCHALIAN, LUIS
BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR ERICE, ISMAEL MATHAY,
SAMUEL DANGWA, ALFREDO MARAÑON, JR., CECILIA CARREON-JALOSJOS, AGAPITO
AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMUL-HERMIDA, JOSE CARLOS LACSON,
MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA JAAFAR, WILHELMINO SY-ALVARADO,
CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO,
FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO RUFINO BIAZON, LEOVIGILDO BANAAG,
ERIC SINGSON, JACINTO PARAS, JOSE SOLIS, RENATO MATUBO, HERMINO TEVES,
AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO,
CONRADO ESTRELLA III, ELIAS BULUT, JR., JURDIN ROMUALDO, JUAN PABLO BONDOC,
GENEROSO TULAGAN, PERPETUO YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI
LAPUS, CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS ESCUDERRO, RENE
VELARDE, CELSO LOBREGAT, ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM
MITRA, JOSEPH SANTIAGO, DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLF
PLAZA, JV BAUTISTA, GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA
LAYUS, JUAN MIGUEL ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK
COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO MONTILLA, ROSELLER
BARINAGA, JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO,
JR., AND RUY ELIAS LOPEZ, respondents,
x---------------------------------------------------------x
G.R. No. 160292 November 10, 2003
HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA, NAPOLEON C.
REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S.
MALLARI, petitioners,
intervention,
vs.
HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS CAPACITY
AS SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND THE HOUSE OF
REPRESENTATIVES,respondents,
x---------------------------------------------------------x
G.R. No. 160295 November 10, 2003
SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners,

intervention,
vs.
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR
TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE
PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M.
DRILON, respondents,
x---------------------------------------------------------x
G.R. No. 160310 November 10, 2003
LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON

MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO SARMIENTO,
EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO
TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR., RONNIE
TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME
BOAQUINA, LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA
LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE, WILLIE
RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY SENERIS,
ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER QUIROLGICO, JOSEPH
LEANDRO LOYOLA, ANTONIO LIBREA, FILEMON SIBULO, MANUEL D. COMIA, JULITO U.
SOON, VIRGILIO LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX VILLAESTER, AND
EDILBERTO GALLOR, petitioners,
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE
VENECIA, JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN
DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents.
x---------------------------------------------------------x
G.R. No. 160318 November 10, 2003
PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners,

vs.
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES,
HON. SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE
SENATE, respondents.
x---------------------------------------------------------x
G.R. No. 160342 November 10, 2003
ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED BAR
OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS CAPACITY AS
A TAXPAYER AND MEMBER OF THE ENGINEERING PROFESSION, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83 HONORABLE MEMBERS
OF THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM FUENTEBELLA, respondents.
x---------------------------------------------------------x
G.R. No. 160343 November 10, 2003
INTEGRATED BAR OF THE PHILIPPINES, petitioner,

vs.
THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR
TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE
PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M.
DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160360 November 10, 2003
CLARO B. FLORES, petitioner,

vs.
THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF THE
PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents.
x---------------------------------------------------------x
G.R. No. 160365 November 10, 2003

U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V.
ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN S.
RALLON, ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN B.
CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES AND IN
BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF
THE PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES
FELIX FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND AS
REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES WHO
SIGNED AND FILED THE IMPEACHMENT COMPLAINT AGAINST SUPREME COURT CHIEF
JUSTICE HILARIO G. DAVIDE, JR. respondents.
x---------------------------------------------------------x
G.R. No. 160370 November 10, 2003
FR. RANHILIO CALLANGAN AQUINO, petitioner,

vs.
THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE
HOUSE OF REPRESENTATIVES, respondents.
x---------------------------------------------------------x
G.R. No. 160376 November 10, 2003
NILO A. MALANYAON, petitioner,

vs.
HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION OF
THE 86 SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF JUSTICE
HILARIO G. DAVIDE, JR. AND THE HOUSE OF REPRESENTATIVES, CONGRESS OF THE
PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE VENECIA, respondents.
x---------------------------------------------------------x
G.R. No. 160392 November 10, 2003
VENICIO S. FLORES AND HECTOR L. HOFILEÑA, petitioners,

vs.
THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND THE
SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN
DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160397 November 10, 2003
IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE HILARIO G.

DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner.
x---------------------------------------------------------x
G.R. No. 160403 November 10, 2003
PHILIPPINE BAR ASSOCIATION, petitioner,

vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING OFFICER,
HON. JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE OF THE PHILIPPINES,
THROUGH SENATE PRESIDENT, HON. FRANKLIN DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160405 November 10, 2003
DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M.

MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL
BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW, UNIVERSITY OF
CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU, INC. [YLAC], REPRSEENTED BY ATTY.
MANUEL LEGASPI, CONFEDERATION OF ACCREDITED MEDIATORS OF THE PHILIPPINES,
INC. [CAMP, INC], REPRESENTED BY RODERIC R. POCA, MANDAUE LAWYERS
ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE VELASQUEZ, FEDERACION
INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY THELMA L. JORDAN, CARLOS
G. CO, PRESIENT OF CEBU CHAMBER OF COMMERCE AND INDUSTRY AND CEBU LADY
LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE NAVARRO AND BERNARDITO
FLORIDO, PAST PRESIDENT CEBU CHAMBER OF COMMERCE AND INTEGRATED BAR OF
THE PHILIPPINES, CEBU CHAPTER, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP. JOSE G. DE VENECIA, AS
HOUSE SPEAKER AND THE SENATE, REPRESENTED BY SENATOR FRANKLIN DRILON, AS
SENATE PRESIDENT, respondents.
CARPIO MORALES, J.:
There can be no constitutional crisis arising from a conflict, no matter how passionate and seemingly
irreconcilable it may appear to be, over the determination by the independent branches of
government of the nature, scope and extent of their respective constitutional powers where the
Constitution itself provides for the means and bases for its resolution.
Our nation's history is replete with vivid illustrations of the often frictional, at times turbulent,
dynamics of the relationship among these co-equal branches. This Court is confronted with one such
today involving the legislature and the judiciary which has drawn legal luminaries to chart antipodal
courses and not a few of our countrymen to vent cacophonous sentiments thereon.
There may indeed be some legitimacy to the characterization that the present controversy subject of
the instant petitions – whether the filing of the second impeachment complaint against Chief Justice
Hilario G. Davide, Jr. with the House of Representatives falls within the one year bar provided in the
Constitution, and whether the resolution thereof is a political question – has resulted in a political
crisis. Perhaps even more truth to the view that it was brought upon by a political crisis of
conscience.
In any event, it is with the absolute certainty that our Constitution is sufficient to address all the
issues which this controversy spawns that this Court unequivocally pronounces, at the first instance,
that the feared resort to extra-constitutional methods of resolving it is neither necessary nor legally
permissible. Both its resolution and protection of the public interest lie in adherence to, not departure
from, the Constitution.
In passing over the complex issues arising from the controversy, this Court is ever mindful of the
essential truth that the inviolate doctrine of separation of powers among the legislative, executive or
judicial branches of government by no means prescribes for absolute autonomy in the discharge by
each of that part of the governmental power assigned to it by the sovereign people.
At the same time, the corollary doctrine of checks and balances which has been carefully calibrated
by the Constitution to temper the official acts of each of these three branches must be given effect
without destroying their indispensable co-equality.
Taken together, these two fundamental doctrines of republican government, intended as they are to
insure that governmental power is wielded only for the good of the people, mandate a relationship of
interdependence and coordination among these branches where the delicate functions of enacting,
interpreting and enforcing laws are harmonized to achieve a unity of governance, guided only by
what is in the greater interest and well-being of the people. Verily, salus populi est suprema lex.
Article XI of our present 1987 Constitution provides:
ARTICLE XI
Accountability of Public Officers
SECTION 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead modest lives.
SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman may be removed from
office, on impeachment for, and conviction of, culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public
officers and employees may be removed from office as provided by law, but not by
impeachment.
SECTION 3. (1) The House of Representatives shall have the exclusive power to initiate all
cases of impeachment.
(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member thereof,
which shall be included in the Order of Business within ten session days, and referred to the
proper Committee within three session days thereafter. The Committee, after hearing, and by
a majority vote of all its Members, shall submit its report to the House within sixty session
days from such referral, together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be necessary either to
affirm a favorable resolution with the Articles of Impeachment of the Committee, or override
its contrary resolution. The vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of
all the Members of the House, the same shall constitute the Articles of Impeachment, and
trial by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same official more than once
within a period of one year.
(6) The Senate shall have the sole power to try and decide all cases of impeachment. When
sitting for that purpose, the Senators shall be on oath or affirmation. When the President of
the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not
vote. No person shall be convicted without the concurrence of two-thirds of all the Members
of the Senate.
(7) Judgment in cases of impeachment shall not extend further than removal from office and
disqualification to hold any office under the Republic of the Philippines, but the party
convicted shall nevertheless be liable and subject to prosecution, trial, and punishment
according to law.
(8) The Congress shall promulgate its rules on impeachment to effectively carry out the
purpose of this section. (Emphasis and underscoring supplied)
Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the
House of Representatives adopted and approved the Rules of Procedure in Impeachment
Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous House
Impeachment Rules1 approved by the 11th Congress. The relevant distinctions between these two
Congresses' House Impeachment Rules are shown in the following tabulation:
11TH CONGRESS RULES 12TH CONGRESS NEW RULES
RULE II RULE V
INITIATING IMPEACHMENT BAR AGAINST INITIATION OF

IMPEACHMENT PROCEEDINGS
Section 2. Mode of Initiating AGAINST THE SAME OFFICIAL
Impeachment. – Impeachment shall
be initiated only by a verified Section 16. – Impeachment
complaint for impeachment filed by Proceedings Deemed Initiated. –
any Member of the House of In cases where a Member of the
Representatives or by any citizen House files a verified complaint of
upon a resolution of endorsement by impeachment or a citizen files a
any Member thereof or by a verified verified complaint that is endorsed
complaint or resolution of by a Member of the House through
impeachment filed by at least one- a resolution of endorsement
third (1/3) of all the Members of the against an impeachable officer,
House. impeachment proceedings against
such official are deemed initiated
on the day the Committee on
Justice finds that the verified
complaint and/or resolution against
such official, as the case may be,
is sufficient in substance, or on the
date the House votes to overturn
or affirm the finding of the said
Committee that the verified
complaint and/or resolution, as the
case may be, is not sufficient in
substance.
In cases where a verified

complaint or a resolution of
impeachment is filed or endorsed,
as the case may be, by at least
one-third (1/3) of the Members of
the House, impeachment
proceedings are deemed
initiated at the time of the filing
of such verified complaint or
resolution of impeachment with
the Secretary General.
RULE V Section 17. Bar Against

Initiation Of Impeachment
BAR AGAINST IMPEACHMENT Proceedings. – Within a period of
one (1) year from the date
Section 14. Scope of Bar. – No impeachment proceedings are
impeachment proceedings shall be deemed initiated as provided in
initiated against the same official Section 16 hereof, no
more than once within the period of impeachment proceedings, as
one (1) year. such, can be initiated against the
same official. (Italics in the original;
emphasis and underscoring
supplied)
On July 22, 2002, the House of Representatives adopted a Resolution,2 sponsored by

Representative Felix William D. Fuentebella, which directed the Committee on Justice "to conduct an
investigation, in aid of legislation, on the manner of disbursements and expenditures by the Chief
Justice of the Supreme Court of the Judiciary Development Fund (JDF)."3
On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint4 (first
impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate Justices5 of
this Court for "culpable violation of the Constitution, betrayal of the public trust and other high
crimes."6 The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B. Zamora and
Didagen Piang Dilangalen,7 and was referred to the House Committee on Justice on August 5,
20038 in accordance with Section 3(2) of Article XI of the Constitution which reads:
Section 3(2) A verified complaint for impeachment may be filed by any Member of the House
of Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee, after
hearing, and by a majority vote of all its Members, shall submit its report to the House within
sixty session days from such referral, together with the corresponding resolution. The
resolution shall be calendared for consideration by the House within ten session days from
receipt thereof.
The House Committee on Justice ruled on October 13, 2003 that the first impeachment complaint
was "sufficient in form,"9 but voted to dismiss the same on October 22, 2003 for being insufficient in
substance.10 To date, the Committee Report to this effect has not yet been sent to the House in
plenary in accordance with the said Section 3(2) of Article XI of the Constitution.
Four months and three weeks since the filing on June 2, 2003 of the first complaint or on October
23, 2003, a day after the House Committee on Justice voted to dismiss it, the second impeachment
complaint11 was filed with the Secretary General of the House12 by Representatives Gilberto C.
Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third District, Camarines Sur)
against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative inquiry
initiated by above-mentioned House Resolution. This second impeachment complaint was
accompanied by a "Resolution of Endorsement/Impeachment" signed by at least one-third (1/3) of all
the Members of the House of Representatives.13
Thus arose the instant petitions against the House of Representatives, et. al., most of which petitions
contend that the filing of the second impeachment complaint is unconstitutional as it violates the
provision of Section 5 of Article XI of the Constitution that "[n]o impeachment proceedings shall be
initiated against the same official more than once within a period of one year."
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a
member of the Integrated Bar of the Philippines to use all available legal remedies to stop an
unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition and
Mandamus are of transcendental importance, and that he "himself was a victim of the capricious and
arbitrary changes in the Rules of Procedure in Impeachment Proceedings introduced by the 12th
Congress,"14 posits that his right to bring an impeachment complaint against then Ombudsman
Aniano Desierto had been violated due to the capricious and arbitrary changes in the House
Impeachment Rules adopted and approved on November 28, 2001 by the House of Representatives
and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8, and 9 thereof be
declared unconstitutional; (2) this Court issue a writ of mandamus directing respondents House of
Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5) of the Constitution, to
return the second impeachment complaint and/or strike it off the records of the House of
Representatives, and to promulgate rules which are consistent with the Constitution; and (3) this
Court permanently enjoin respondent House of Representatives from proceeding with the second
impeachment complaint.
In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers, alleging
that the issues of the case are of transcendental importance, pray, in their petition for
Certiorari/Prohibition, the issuance of a writ "perpetually" prohibiting respondent House of
Representatives from filing any Articles of Impeachment against the Chief Justice with the Senate;
and for the issuance of a writ "perpetually" prohibiting respondents Senate and Senate President
Franklin Drilon from accepting any Articles of Impeachment against the Chief Justice or, in the event
that the Senate has accepted the same, from proceeding with the impeachment trial.
In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens,
taxpayers, lawyers and members of the Integrated Bar of the Philippines, alleging that their petition
for Prohibition involves public interest as it involves the use of public funds necessary to conduct the
impeachment trial on the second impeachment complaint, pray for the issuance of a writ of
prohibition enjoining Congress from conducting further proceedings on said second impeachment
complaint.
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that he
has locus standi to bring petitions of this nature in the cases of Chavez v. PCGG15 and Chavez v.
PEA-Amari Coastal Bay Development Corporation,16 prays in his petition for Injunction that the
second impeachment complaint be declared unconstitutional.
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the legal
profession, pray in their petition for Prohibition for an order prohibiting respondent House of
Representatives from drafting, adopting, approving and transmitting to the Senate the second
impeachment complaint, and respondents De Venecia and Nazareno from transmitting the Articles
of Impeachment to the Senate.
In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker Raul M.
Gonzalez, alleging that, as members of the House of Representatives, they have a legal interest in
ensuring that only constitutional impeachment proceedings are initiated, pray in their petition for
Certiorari/Prohibition that the second impeachment complaint and any act proceeding therefrom be
declared null and void.
In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be
protected against all forms of senseless spending of taxpayers' money and that they have an
obligation to protect the Supreme Court, the Chief Justice, and the integrity of the Judiciary, allege in
their petition for Certiorari and Prohibition that it is instituted as "a class suit" and pray that (1) the
House Resolution endorsing the second impeachment complaint as well as all issuances emanating
therefrom be declared null and void; and (2) this Court enjoin the Senate and the Senate President
from taking cognizance of, hearing, trying and deciding the second impeachment complaint, and
issue a writ of prohibition commanding the Senate, its prosecutors and agents to desist from
conducting any proceedings or to act on the impeachment complaint.
In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and
taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the Philippine
Bar, both allege in their petition, which does not state what its nature is, that the filing of the second
impeachment complaint involves paramount public interest and pray that Sections 16 and 17 of the
House Impeachment Rules and the second impeachment complaint/Articles of Impeachment be
declared null and void.
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the
Philippine Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr. Maximo
N. Menez, Jr., as a taxpayer, pray in their petition for the issuance of a Temporary Restraining Order
and Permanent Injunction to enjoin the House of Representatives from proceeding with the second
impeachment complaint.
In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by the
Code of Professional Responsibility to uphold the Constitution, prays in its petition for Certiorari and
Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House
Impeachment Rules be declared unconstitutional and that the House of Representatives be
permanently enjoined from proceeding with the second impeachment complaint.
In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari and
Prohibition that the House Impeachment Rules be declared unconstitutional.
In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition for
Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens, citing Oposa v.
Factoran17 which was filed in behalf of succeeding generations of Filipinos, pray for the issuance of a
writ prohibiting respondents House of Representatives and the Senate from conducting further
proceedings on the second impeachment complaint and that this Court declare as unconstitutional
the second impeachment complaint and the acts of respondent House of Representatives in
interfering with the fiscal matters of the Judiciary.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the issues in
his petition for Prohibition are of national and transcendental significance and that as an official of
the Philippine Judicial Academy, he has a direct and substantial interest in the unhampered
operation of the Supreme Court and its officials in discharging their duties in accordance with the
Constitution, prays for the issuance of a writ prohibiting the House of Representatives from
transmitting the Articles of Impeachment to the Senate and the Senate from receiving the same or
giving the impeachment complaint due course.
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for
Prohibition that respondents Fuentebella and Teodoro at the time they filed the second
impeachment complaint, were "absolutely without any legal power to do so, as they acted without
jurisdiction as far as the Articles of Impeachment assail the alleged abuse of powers of the Chief
Justice to disburse the (JDF)."
In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofileña, alleging that as
professors of law they have an abiding interest in the subject matter of their petition for Certiorari and
Prohibition as it pertains to a constitutional issue "which they are trying to inculcate in the minds of
their students," pray that the House of Representatives be enjoined from endorsing and the Senate
from trying the Articles of Impeachment and that the second impeachment complaint be declared
null and void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but
alleging that the second impeachment complaint is founded on the issue of whether or not the
Judicial Development Fund (JDF) was spent in accordance with law and that the House of
Representatives does not have exclusive jurisdiction in the examination and audit thereof, prays in
his petition "To Declare Complaint Null and Void for Lack of Cause of Action and Jurisdiction" that
the second impeachment complaint be declared null and void.
In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the filing
of the second impeachment complaint involve matters of transcendental importance, prays in its
petition for Certiorari/Prohibition that (1) the second impeachment complaint and all proceedings
arising therefrom be declared null and void; (2) respondent House of Representatives be prohibited
from transmitting the Articles of Impeachment to the Senate; and (3) respondent Senate be
prohibited from accepting the Articles of Impeachment and from conducting any proceedings
thereon.
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray in their
petition for Certiorari/Prohibition that (1) the second impeachment complaint as well as the resolution
of endorsement and impeachment by the respondent House of Representatives be declared null and
void and (2) respondents Senate and Senate President Franklin Drilon be prohibited from accepting
any Articles of Impeachment against the Chief Justice or, in the event that they have accepted the
same, that they be prohibited from proceeding with the impeachment trial.
Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the
eighteen which were filed before this Court,18 prayed for the issuance of a Temporary Restraining
Order and/or preliminary injunction to prevent the House of Representatives from transmitting the
Articles of Impeachment arising from the second impeachment complaint to the Senate. Petition
bearing docket number G.R. No. 160261 likewise prayed for the declaration of the November 28,
2001 House Impeachment Rules as null and void for being unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on
October 28, 2003, sought similar relief. In addition, petition bearing docket number G.R. No. 160292
alleged that House Resolution No. 260 (calling for a legislative inquiry into the administration by the
Chief Justice of the JDF) infringes on the constitutional doctrine of separation of powers and is a
direct violation of the constitutional principle of fiscal autonomy of the judiciary.
On October 28, 2003, during the plenary session of the House of Representatives, a motion was put
forth that the second impeachment complaint be formally transmitted to the Senate, but it was not
carried because the House of Representatives adjourned for lack of quorum,19 and as reflected
above, to date, the Articles of Impeachment have yet to be forwarded to the Senate.
Before acting on the petitions with prayers for temporary restraining order and/or writ of preliminary
injunction which were filed on or before October 28, 2003, Justices Puno and Vitug offered to recuse
themselves, but the Court rejected their offer. Justice Panganiban inhibited himself, but the Court
directed him to participate.
Without necessarily giving the petitions due course, this Court in its Resolution of October 28, 2003,
resolved to (a) consolidate the petitions; (b) require respondent House of Representatives and the
Senate, as well as the Solicitor General, to comment on the petitions not later than 4:30 p.m. of
November 3, 2003; (c) set the petitions for oral arguments on November 5, 2003, at 10:00 a.m.; and
(d) appointed distinguished legal experts as amici curiae.20 In addition, this Court called on
petitioners and respondents to maintain the status quo, enjoining all the parties and others acting for
and in their behalf to refrain from committing acts that would render the petitions moot.
Also on October 28, 2003, when respondent House of Representatives through Speaker Jose C. De
Venecia, Jr. and/or its co-respondents, by way of special appearance, submitted a Manifestation
asserting that this Court has no jurisdiction to hear, much less prohibit or enjoin the House of
Representatives, which is an independent and co-equal branch of government under the
Constitution, from the performance of its constitutionally mandated duty to initiate impeachment
cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion to Intervene
(Ex Abudante Cautela)21 and Comment, praying that "the consolidated petitions be dismissed for
lack of jurisdiction of the Court over the issues affecting the impeachment proceedings and that the
sole power, authority and jurisdiction of the Senate as the impeachment court to try and decide
impeachment cases, including the one where the Chief Justice is the respondent, be recognized and
upheld pursuant to the provisions of Article XI of the Constitution."22
Acting on the other petitions which were subsequently filed, this Court resolved to (a) consolidate
them with the earlier consolidated petitions; (b) require respondents to file their comment not later
than 4:30 p.m. of November 3, 2003; and (c) include them for oral arguments on November 5, 2003.
On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M. Drilon,
filed a Manifestation stating that insofar as it is concerned, the petitions are plainly premature and
have no basis in law or in fact, adding that as of the time of the filing of the petitions, no justiciable
issue was presented before it since (1) its constitutional duty to constitute itself as an impeachment
court commences only upon its receipt of the Articles of Impeachment, which it had not, and (2) the
principal issues raised by the petitions pertain exclusively to the proceedings in the House of
Representatives.
On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to Intervene" in G.R. Nos.
160261, 160262, 160263, 160277, 160292, and 160295, questioning the status quo Resolution
issued by this Court on October 28, 2003 on the ground that it would unnecessarily put Congress
and this Court in a "constitutional deadlock" and praying for the dismissal of all the petitions as the
matter in question is not yet ripe for judicial determination.
On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R. No.
160262 a "Motion for Leave of Court to Intervene and to Admit the Herein Incorporated Petition in
Intervention."
On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,

Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World War II Veterans
Legionnaires of the Philippines, Inc. also filed a "Petition-in-Intervention with Leave to Intervene" in
G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310.
The motions for intervention were granted and both Senator Pimentel's Comment and Attorneys
Macalintal and Quadra's Petition in Intervention were admitted.
On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of
petitioners, intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General Alfredo
Benipayo on the principal issues outlined in an Advisory issued by this Court on November 3, 2003,
to wit:
Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke it;
on what issues and at what time; and whether it should be exercised by this Court at this
time.
In discussing these issues, the following may be taken up:
a) locus standi of petitioners;
b) ripeness(prematurity; mootness);
c) political question/justiciability;
d) House's "exclusive" power to initiate all cases of impeachment;
e) Senate's "sole" power to try and decide all cases of impeachment;
f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of

Article XI of the Constitution; and
g) judicial restraint (Italics in the original)
In resolving the intricate conflux of preliminary and substantive issues arising from the instant
petitions as well as the myriad arguments and opinions presented for and against the grant of the
reliefs prayed for, this Court has sifted and determined them to be as follows: (1) the threshold and
novel issue of whether or not the power of judicial review extends to those arising from impeachment
proceedings; (2) whether or not the essential pre-requisites for the exercise of the power of judicial
review have been fulfilled; and (3) the substantive issues yet remaining. These matters shall now be
discussed in seriatim.
Judicial Review
As reflected above, petitioners plead for this Court to exercise the power of judicial review to
determine the validity of the second impeachment complaint.
This Court's power of judicial review is conferred on the judicial branch of the government in Section
1, Article VIII of our present 1987 Constitution:
SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government. (Emphasis
supplied)
Such power of judicial review was early on exhaustively expounded upon by Justice Jose P. Laurel
in the definitive 1936 case of Angara v. Electoral Commission23 after the effectivity of the 1935
Constitution whose provisions, unlike the present Constitution, did not contain the present provision
in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel discoursed:
x x x In times of social disquietude or political excitement, the great landmarks of the

Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict,
the judicial department is the only constitutional organ which can be called upon
to determine the proper allocation of powers between the several departments and
among the integral or constituent units thereof.
As any human production, our Constitution is of course lacking perfection and perfectibility,
but as much as it was within the power of our people, acting through their delegates to so
provide, that instrument which is the expression of their sovereignty however limited, has
established a republican government intended to operate and function as a harmonious
whole, under a system of checks and balances, and subject to specific limitations and
restrictions provided in the said instrument. The Constitution sets forth in no uncertain
language the restrictions and limitations upon governmental powers and agencies. If
these restrictions and limitations are transcended it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct the course of
government along constitutional channels,for then the distribution of powers would be
mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good
government mere political apothegms. Certainly, the limitations and restrictions embodied in
our Constitution are real as they should be in any living constitution. In the United States
where no express constitutional grant is found in their constitution, the possession of this
moderating power of the courts, not to speak of its historical origin and development there,
has been set at rest by popular acquiescence for a period of more than one and a half
centuries. In our case, this moderating power is granted, if not expressly, by clear
implication from section 2 of article VIII of our Constitution.
The Constitution is a definition of the powers of government. Who is to determine the

nature, scope and extent of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial review under the Constitution. Even
then, this power of judicial review is limited to actual cases and controversies to be exercised
after full opportunity of argument by the parties, and limited further to the constitutional
question raised or the very lis mota presented. Any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile conclusions unrelated to actualities.
Narrowed as its function is in this manner, the judiciary does not pass upon questions of
wisdom, justice or expediency of legislation. More than that, courts accord the presumption
of constitutionality to legislative enactments, not only because the legislature is presumed to
abide by the Constitution but also because the judiciary in the determination of actual cases
and controversies must reflect the wisdom and justice of the people as expressed through
their representatives in the executive and legislative departments of the
government.24 (Italics in the original; emphasis and underscoring supplied)
As pointed out by Justice Laurel, this "moderating power" to "determine the proper allocation of
powers" of the different branches of government and "to direct the course of government along
constitutional channels" is inherent in all courts25 as a necessary consequence of the judicial power
itself, which is "the power of the court to settle actual controversies involving rights which are legally
demandable and enforceable."26
Thus, even in the United States where the power of judicial review is not explicitly conferred upon
the courts by its Constitution, such power has "been set at rest by popular acquiescence for a period
of more than one and a half centuries." To be sure, it was in the 1803 leading case of Marbury v.
Madison27 that the power of judicial review was first articulated by Chief Justice Marshall, to wit:
It is also not entirely unworthy of observation, that in declaring what shall be the supreme law
of the land, the constitution itself is first mentioned; and not the laws of the United States
generally, but those only which shall be made in pursuance of the constitution, have that
rank.
Thus, the particular phraseology of the constitution of the United States confirms and
strengthens the principle, supposed to be essential to all written constitutions, that a
law repugnant to the constitution is void; and that courts, as well as other
departments, are bound by that instrument.28(Italics in the original; emphasis supplied)
In our own jurisdiction, as early as 1902, decades before its express grant in the 1935 Constitution,
the power of judicial review was exercised by our courts to invalidate constitutionally infirm
acts.29 And as pointed out by noted political law professor and former Supreme Court Justice Vicente
V. Mendoza,30 the executive and legislative branches of our government in fact effectively
acknowledged this power of judicial review in Article 7 of the Civil Code, to wit:
Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance
shall not be excused by disuse, or custom or practice to the contrary.
When the courts declare a law to be inconsistent with the Constitution, the former
shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when they
are not contrary to the laws or the Constitution. (Emphasis supplied)
As indicated in Angara v. Electoral Commission,31 judicial review is indeed an integral component of
the delicate system of checks and balances which, together with the corollary principle of separation
of powers, forms the bedrock of our republican form of government and insures that its vast powers
are utilized only for the benefit of the people for which it serves.
The separation of powers is a fundamental principle in our system of government. It

obtains not through express provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of matters within its jurisdiction, and
is supreme within its own sphere. But it does not follow from the fact that the three powers
are to be kept separate and distinct that the Constitution intended them to be absolutely
unrestrained and independent of each other. The Constitution has provided for an
elaborate system of checks and balances to secure coordination in the workings of
the various departments of the government. x x x And the judiciary in turn, with the
Supreme Court as the final arbiter, effectively checks the other departments in the
exercise of its power to determine the law, and hence to declare executive and
legislative acts void if violative of the Constitution.32 (Emphasis and underscoring
supplied)
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "x x x judicial
review is essential for the maintenance and enforcement of the separation of powers and the
balancing of powers among the three great departments of government through the definition and
maintenance of the boundaries of authority and control between them."33 To him, "[j]udicial review is
the chief, indeed the only, medium of participation – or instrument of intervention – of the judiciary in
that balancing operation."34
To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any
branch or instrumentalities of government," the afore-quoted Section 1, Article VIII of the
Constitution engraves, for the first time into its history, into block letter law the so-called
"expanded certiorari jurisdiction" of this Court, the nature of and rationale for which are mirrored in
the following excerpt from the sponsorship speech of its proponent, former Chief Justice
Constitutional Commissioner Roberto Concepcion:
xxx
The first section starts with a sentence copied from former Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes the duty of courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience during
martial law. As a matter of fact, it has some antecedents in the past, but the role of the
judiciary during the deposed regime was marred considerably by the circumstance
that in a number of cases against the government, which then had no legal defense at
all, the solicitor general set up the defense of political questions and got away with it.
As a consequence, certain principles concerning particularly the writ of habeas corpus, that
is, the authority of courts to order the release of political detainees, and other matters related
to the operation and effect of martial law failed because the government set up the defense
of political question. And the Supreme Court said: "Well, since it is political, we have no
authority to pass upon it." The Committee on the Judiciary feels that this was not a
proper solution of the questions involved. It did not merely request an encroachment
upon the rights of the people, but it, in effect, encouraged further violations thereof
during the martial law regime. x x x
xxx
Briefly stated, courts of justice determine the limits of power of the agencies and
offices of the government as well as those of its officers. In other words, the judiciary
is the final arbiter on the question whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously
as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of
jurisdiction. This is not only a judicial power but a duty to pass judgment on matters
of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot
hereafter evade the duty to settle matters of this nature, by claiming that such matters
constitute a political question.35 (Italics in the original; emphasis and underscoring
supplied)
To determine the merits of the issues raised in the instant petitions, this Court must necessarily turn
to the Constitution itself which employs the well-settled principles of constitutional construction.
First, verba legis, that is, wherever possible, the words used in the Constitution must be given
their ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason & Co., Inc.
v. Land Tenure Administration,36 this Court, speaking through Chief Justice Enrique Fernando,
declared:
We look to the language of the document itself in our search for its meaning. We do
not of course stop there, but that is where we begin. It is to be assumed that the
words in which constitutional provisions are couched express the objective sought to
be attained. They are to be given their ordinary meaning except where technical terms
are employed in which case the significance thus attached to them prevails. As the
Constitution is not primarily a lawyer's document, it being essential for the rule of law to
obtain that it should ever be present in the people's consciousness, its language as much as
possible should be understood in the sense they have in common use. What it says
according to the text of the provision to be construed compels acceptance and
negates the power of the courts to alter it, based on the postulate that the framers and the
people mean what they say. Thus these are the cases where the need for construction is
reduced to a minimum.37 (Emphasis and underscoring supplied)
Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be
interpreted in accordance with the intent of its framers. And so did this Court apply this principle
in Civil Liberties Union v. Executive Secretary38 in this wise:
A foolproof yardstick in constitutional construction is the intention underlying the provision

under consideration. Thus, it has been held that the Court in construing a Constitution should
bear in mind the object sought to be accomplished by its adoption, and the evils, if any,
sought to be prevented or remedied. A doubtful provision will be examined in the light of the
history of the times, and the condition and circumstances under which the Constitution was
framed. The object is to ascertain the reason which induced the framers of the
Constitution to enact the particular provision and the purpose sought to be
accomplished thereby, in order to construe the whole as to make the words
consonant to that reason and calculated to effect that purpose.39 (Emphasis and
As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking through Madame Justice
Amuerfina A. Melencio-Herrera, it declared:
x x x The ascertainment of that intent is but in keeping with the fundamental principle
of constitutional construction that the intent of the framers of the organic law and of
the people adopting it should be given effect. The primary task in constitutional
construction is to ascertain and thereafter assure the realization of the purpose of the
framers and of the people in the adoption of the Constitution. It may also be safely
assumed that the people in ratifying the Constitution were guided mainly by the
explanation offered by the framers.41 (Emphasis and underscoring supplied)
Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus,
in Chiongbian v. De Leon,42 this Court, through Chief Justice Manuel Moran declared:
x x x [T]he members of the Constitutional Convention could not have dedicated a

provision of our Constitution merely for the benefit of one person without considering
that it could also affect others.When they adopted subsection 2, they permitted, if not
willed, that said provision should function to the full extent of its substance and its
terms, not by itself alone, but in conjunction with all other provisions of that great
document.43 (Emphasis and underscoring supplied)
Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court affirmed that:
It is a well-established rule in constitutional construction that no one provision of the

Constitution is to be separated from all the others, to be considered alone, but that all
the provisions bearing upon a particular subject are to be brought into view and to be
so interpreted as to effectuate the great purposes of the instrument. Sections bearing
on a particular subject should be considered and interpreted together as to effectuate
the whole purpose of the Constitution and one section is not to be allowed to defeat
another, if by any reasonable construction, the two can be made to stand together.
In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the
words idle and nugatory.45 (Emphasis supplied)
If, however, the plain meaning of the word is not found to be clear, resort to other aids is available. In
still the same case of Civil Liberties Union v. Executive Secretary, this Court expounded:
While it is permissible in this jurisdiction to consult the debates and proceedings of the
constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail as said
proceedings are powerless to vary the terms of the Constitution when the meaning is
clear. Debates in the constitutional convention "are of value as showing the views of the
individual members, and as indicating the reasons for their votes, but they give us no light as
to the views of the large majority who did not talk, much less of the mass of our fellow
citizens whose votes at the polls gave that instrument the force of fundamental law. We
think it safer to construe the constitution from what appears upon its face." The
proper interpretation therefore depends more on how it was understood by the people
adopting it than in the framers's understanding thereof.46 (Emphasis and underscoring
supplied)
It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential

application of the power of judicial review that respondents Speaker De Venecia, et. al. and
intervenor Senator Pimentel raise the novel argument that the Constitution has excluded
impeachment proceedings from the coverage of judicial review.
Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is a
political action which cannot assume a judicial character. Hence, any question, issue or incident
arising at any stage of the impeachment proceeding is beyond the reach of judicial review.47
For his part, intervenor Senator Pimentel contends that the Senate's "sole power to
try" impeachment cases48 (1) entirely excludes the application of judicial review over it; and (2)
necessarily includes the Senate's power to determine constitutional questions relative to
impeachment proceedings.49
In furthering their arguments on the proposition that impeachment proceedings are outside the
scope of judicial review, respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel
rely heavily on American authorities, principally the majority opinion in the case of Nixon v. United
States.50 Thus, they contend that the exercise of judicial review over impeachment proceedings is
inappropriate since it runs counter to the framers' decision to allocate to different fora the powers to
try impeachments and to try crimes; it disturbs the system of checks and balances, under which
impeachment is the only legislative check on the judiciary; and it would create a lack of finality and
difficulty in fashioning relief.51 Respondents likewise point to deliberations on the US Constitution to
show the intent to isolate judicial power of review in cases of impeachment.
Respondents' and intervenors' reliance upon American jurisprudence, the American Constitution and
American authorities cannot be credited to support the proposition that the Senate's "sole power to
try and decide impeachment cases," as provided for under Art. XI, Sec. 3(6) of the Constitution, is a
textually demonstrable constitutional commitment of all issues pertaining to impeachment to the
legislature, to the total exclusion of the power of judicial review to check and restrain any grave
abuse of the impeachment process. Nor can it reasonably support the interpretation that it
necessarily confers upon the Senate the inherently judicial power to determine constitutional
questions incident to impeachment proceedings.
Said American jurisprudence and authorities, much less the American Constitution, are of dubious
application for these are no longer controlling within our jurisdiction and have only limited persuasive
merit insofar as Philippine constitutional law is concerned. As held in the case of Garcia vs.
COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not be beguiled by foreign
jurisprudence some of which are hardly applicable because they have been dictated by different
constitutional settings and needs."53 Indeed, although the Philippine Constitution can trace its origins
to that of the United States, their paths of development have long since diverged. In the colorful
words of Father Bernas, "[w]e have cut the umbilical cord."
The major difference between the judicial power of the Philippine Supreme Court and that of the
U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the U.S.
Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court and
lower courts, as expressly provided for in the Constitution, is not just a power but also a duty, and it
was given an expanded definition to include the power to correct any grave abuse of discretion on
the part of any government branch or instrumentality.
There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution with
respect to the power of the House of Representatives over impeachment proceedings. While the
U.S. Constitution bestows sole power of impeachment to the House of Representatives without
limitation,54 our Constitution, though vesting in the House of Representatives the exclusive power to
initiate impeachment cases,55 provides for several limitations to the exercise of such power as
embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations include the manner of
filing, required vote to impeach, and the one year bar on the impeachment of one and the same
official.
Respondents are also of the view that judicial review of impeachments undermines their finality and
may also lead to conflicts between Congress and the judiciary. Thus, they call upon this Court to
exercise judicial statesmanship on the principle that "whenever possible, the Court should defer to
the judgment of the people expressed legislatively, recognizing full well the perils of judicial
willfulness and pride."56
But did not the people also express their will when they instituted the above-mentioned safeguards
in the Constitution? This shows that the Constitution did not intend to leave the matter of
impeachment to the sole discretion of Congress. Instead, it provided for certain well-defined limits, or
in the language of Baker v. Carr,57"judicially discoverable standards" for determining the validity of
the exercise of such discretion, through the power of judicial review.
The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by respondents in support of
the argument that the impeachment power is beyond the scope of judicial review, are not in point.
These cases concern the denial of petitions for writs of mandamus to compel the legislature to
perform non-ministerial acts, and do not concern the exercise of the power of judicial review.
There is indeed a plethora of cases in which this Court exercised the power of judicial review over
congressional action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled that it is well within the
power and jurisdiction of the Court to inquire whether the Senate or its officials committed a violation
of the Constitution or grave abuse of discretion in the exercise of their functions and prerogatives.
In Tanada v. Angara,61 in seeking to nullify an act of the Philippine Senate on the ground that it
contravened the Constitution, it held that the petition raises a justiciable controversy and that when
an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes
not only the right but in fact the duty of the judiciary to settle the dispute. In Bondoc v. Pineda,62 this
Court declared null and void a resolution of the House of Representatives withdrawing the
nomination, and rescinding the election, of a congressman as a member of the House Electoral
Tribunal for being violative of Section 17, Article VI of the Constitution. In Coseteng v. Mitra,63 it held
that the resolution of whether the House representation in the Commission on Appointments was
based on proportional representation of the political parties as provided in Section 18, Article VI of
the Constitution is subject to judicial review. In Daza v. Singson,64 it held that the act of the House of
Representatives in removing the petitioner from the Commission on Appointments is subject to
judicial review. In Tanada v. Cuenco,65 it held that although under the Constitution, the legislative
power is vested exclusively in Congress, this does not detract from the power of the courts to pass
upon the constitutionality of acts of Congress. In Angara v. Electoral Commission,66 it ruled that
confirmation by the National Assembly of the election of any member, irrespective of whether his
election is contested, is not essential before such member-elect may discharge the duties and enjoy
the privileges of a member of the National Assembly.
Finally, there exists no constitutional basis for the contention that the exercise of judicial review over
impeachment proceedings would upset the system of checks and balances. Verily, the Constitution
is to be interpreted as a whole and "one section is not to be allowed to defeat another."67 Both are
integral components of the calibrated system of independence and interdependence that insures
that no branch of government act beyond the powers assigned to it by the Constitution.
Essential Requisites for Judicial Review
As clearly stated in Angara v. Electoral Commission, the courts' power of judicial review, like almost
all powers conferred by the Constitution, is subject to several limitations, namely: (1) an actual case
or controversy calling for the exercise of judicial power; (2) the person challenging the act must have
"standing" to challenge; he must have a personal and substantial interest in the case such that he
has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest possible opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.
x x x Even then, this power of judicial review is limited to actual cases and controversies to
be exercised after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any attempt at abstraction
could only lead to dialectics and barren legal questions and to sterile conclusions unrelated
to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon
questions of wisdom, justice or expediency of legislation. More than that, courts accord the
presumption of constitutionality to legislative enactments, not only because the legislature is
presumed to abide by the Constitution but also because the judiciary in the determination of
actual cases and controversies must reflect the wisdom and justice of the people as
expressed through their representatives in the executive and legislative departments of the
government.68 (Italics in the original)
Standing
Locus standi or legal standing or has been defined as a personal and substantial interest in the case
such that the party has sustained or will sustain direct injury as a result of the governmental act that
is being challenged. The gist of the question of standing is whether a party alleges such personal
stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult constitutional
questions.69
Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not have
standing since only the Chief Justice has sustained and will sustain direct personal injury. Amicus
curiae former Justice Minister and Solicitor General Estelito Mendoza similarly contends.
Upon the other hand, the Solicitor General asserts that petitioners have standing since this Court
had, in the past, accorded standing to taxpayers, voters, concerned citizens, legislators in cases
involving paramount public interest70 and transcendental importance,71 and that procedural matters
are subordinate to the need to determine whether or not the other branches of the government have
kept themselves within the limits of the Constitution and the laws and that they have not abused the
discretion given to them.72 Amicus curiae Dean Raul Pangalangan of the U.P. College of Law is of
the same opinion, citing transcendental importance and the well-entrenched rule exception that,
when the real party in interest is unable to vindicate his rights by seeking the same remedies, as in
the case of the Chief Justice who, for ethical reasons, cannot himself invoke the jurisdiction of this
Court, the courts will grant petitioners standing.
There is, however, a difference between the rule on real-party-in-interest and the rule on standing,
for the former is a concept of civil procedure73 while the latter has constitutional underpinnings.74 In
view of the arguments set forth regarding standing, it behooves the Court to reiterate the ruling
in Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus standi and to distinguish it from real
party-in-interest.
The difference between the rule on standing and real party in interest has been noted by
authorities thus: "It is important to note . . . that standing because of its constitutional and
public policy underpinnings, is very different from questions relating to whether a particular
plaintiff is the real party in interest or has capacity to sue. Although all three requirements are
directed towards ensuring that only certain parties can maintain an action, standing
restrictions require a partial consideration of the merits, as well as broader policy concerns
relating to the proper role of the judiciary in certain areas.
Standing is a special concern in constitutional law because in some cases suits are brought
not by parties who have been personally injured by the operation of a law or by official action
taken, but by concerned citizens, taxpayers or voters who actually sue in the public interest.
Hence the question in standing is whether such parties have "alleged such a personal stake
in the outcome of the controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions."
xxx
On the other hand, the question as to "real party in interest" is whether he is "the party who
would be benefited or injured by the judgment, or the 'party entitled to the avails of the
suit.'"76 (Citations omitted)
While rights personal to the Chief Justice may have been injured by the alleged unconstitutional acts
of the House of Representatives, none of the petitioners before us asserts a violation of the personal
rights of the Chief Justice. On the contrary, they invariably invoke the vindication of their own rights –
as taxpayers; members of Congress; citizens, individually or in a class suit; and members of the bar
and of the legal profession – which were supposedly violated by the alleged unconstitutional acts of
the House of Representatives.
In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must
be direct and personal. He must be able to show, not only that the law or any government act is
invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a
result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must
appear that the person complaining has been or is about to be denied some right or privilege to
which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of.77 In fine, when the proceeding involves the assertion of a
public right,78 the mere fact that he is a citizen satisfies the requirement of personal interest.
In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are illegally
disbursed, or that public money is being deflected to any improper purpose, or that there is a
wastage of public funds through the enforcement of an invalid or unconstitutional law.79 Before he
can invoke the power of judicial review, however, he must specifically prove that he has sufficient
interest in preventing the illegal expenditure of money raised by taxation and that he would sustain a
direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient
that he has merely a general interest common to all members of the public.80
At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be
entertained.81 This Court opts to grant standing to most of the petitioners, given their allegation that
any impending transmittal to the Senate of the Articles of Impeachment and the ensuing trial of the
Chief Justice will necessarily involve the expenditure of public funds.
As for a legislator, he is allowed to sue to question the validity of any official action which he claims
infringes his prerogatives as a legislator.82 Indeed, a member of the House of Representatives has
standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in
his office.83
While an association has legal personality to represent its members,84 especially when it is
composed of substantial taxpayers and the outcome will affect their vital interests,85 the mere
invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty
to preserve the rule of law and nothing more, although undoubtedly true, does not suffice to clothe it
with standing. Its interest is too general. It is shared by other groups and the whole citizenry.
However, a reading of the petitions shows that it has advanced constitutional issues which deserve
the attention of this Court in view of their seriousness, novelty and weight as precedents.86 It,
therefore, behooves this Court to relax the rules on standing and to resolve the issues presented by
it.
In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening
must be sufficiently numerous to fully protect the interests of all concerned87 to enable the court to
deal properly with all interests involved in the suit,88 for a judgment in a class suit, whether favorable
or unfavorable to the class, is, under the res judicata principle, binding on all members of the class
whether or not they were before the court.89 Where it clearly appears that not all interests can be
sufficiently represented as shown by the divergent issues raised in the numerous petitions before
this Court, G.R. No. 160365 as a class suit ought to fail. Since petitioners additionallyallege standing
as citizens and taxpayers, however, their petition will stand.
The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental
importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing.
There being no doctrinal definition of transcendental importance, the following instructive

determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive: (1)
the character of the funds or other assets involved in the case; (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other party with a more direct and specific
interest in raising the questions being raised.90 Applying these determinants, this Court is satisfied
that the issues raised herein are indeed of transcendental importance.
In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a petitioner
where the petitioner is able to craft an issue of transcendental significance to the people, as when
the issues raised are of paramount importance to the public.91 Such liberality does not, however,
mean that the requirement that a party should have an interest in the matter is totally eliminated. A
party must, at the very least, still plead the existence of such interest, it not being one of which
courts can take judicial notice. In petitioner Vallejos' case, he failed to allege any interest in the case.
He does not thus have standing.
With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires an
intervenor to possess a legal interest in the matter in litigation, or in the success of either of the
parties, or an interest against both, or is so situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court or of an officer thereof. While intervention is
not a matter of right, it may be permitted by the courts when the applicant shows facts which satisfy
the requirements of the law authorizing intervention.92
In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case, they seek to join
petitioners Candelaria, et. al. in G.R. No. 160262. Since, save for one additional issue, they raise the
same issues and the same standing, and no objection on the part of petitioners Candelaria, et. al.
has been interposed, this Court as earlier stated, granted the Motion for Leave of Court to Intervene
and Petition-in-Intervention.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to join
petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene, alleging that
"they will suffer if this insidious scheme of the minority members of the House of Representatives is
successful," this Court found the requisites for intervention had been complied with.
Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277,
160292, 160295, and 160310 were of transcendental importance, World War II Veterans
Legionnaires of the Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene" to raise
the additional issue of whether or not the second impeachment complaint against the Chief Justice is
valid and based on any of the grounds prescribed by the Constitution.
Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et al. and
World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in the matter in
litigation the respective motions to intervene were hereby granted.
Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of making
of record and arguing a point of view that differs with Senate President Drilon's. He alleges that
submitting to this Court's jurisdiction as the Senate President does will undermine the independence
of the Senate which will sit as an impeachment court once the Articles of Impeachment are
transmitted to it from the House of Representatives. Clearly, Senator Pimentel possesses a legal
interest in the matter in litigation, he being a member of Congress against which the herein petitions
are directed. For this reason, and to fully ventilate all substantial issues relating to the matter at
hand, his Motion to Intervene was granted and he was, as earlier stated, allowed to argue.
Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied for, while he asserts
an interest as a taxpayer, he failed to meet the standing requirement for bringing taxpayer's suits as
set forth in Dumlao v. Comelec,93 to wit:
x x x While, concededly, the elections to be held involve the expenditure of public moneys,
nowhere in their Petition do said petitioners allege that their tax money is "being extracted
and spent in violation of specific constitutional protection against abuses of legislative
power," or that there is a misapplication of such funds by respondent COMELEC, or that
public money is being deflected to any improper purpose. Neither do petitioners seek to
restrain respondent from wasting public funds through the enforcement of an invalid or
unconstitutional law.94 (Citations omitted)
In praying for the dismissal of the petitions, Soriano failed even to allege that the act of petitioners
will result in illegal disbursement of public funds or in public money being deflected to any improper
purpose. Additionally, his mere interest as a member of the Bar does not suffice to clothe him with
standing.
Ripeness and Prematurity
In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that for a case to be
considered ripe for adjudication, "it is a prerequisite that something had by then been accomplished
or performed by either branch before a court may come into the picture."96 Only then may the courts
pass on the validity of what was done, if and when the latter is challenged in an appropriate legal
proceeding.
The instant petitions raise in the main the issue of the validity of the filing of the second
impeachment complaint against the Chief Justice in accordance with the House Impeachment Rules
adopted by the 12th Congress, the constitutionality of which is questioned. The questioned acts
having been carried out, i.e., the second impeachment complaint had been filed with the House of
Representatives and the 2001 Rules have already been already promulgated and enforced, the
prerequisite that the alleged unconstitutional act should be accomplished and performed before suit,
as Tan v. Macapagal holds, has been complied with.
Related to the issue of ripeness is the question of whether the instant petitions are
premature. Amicus curiae former Senate President Jovito R. Salonga opines that there may be no
urgent need for this Court to render a decision at this time, it being the final arbiter on questions of
constitutionality anyway. He thus recommends that all remedies in the House and Senate should
first be exhausted.
Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to this
Court to take judicial notice of on-going attempts to encourage signatories to the second
impeachment complaint to withdraw their signatures and opines that the House Impeachment Rules
provide for an opportunity for members to raise constitutional questions themselves when the
Articles of Impeachment are presented on a motion to transmit to the same to the Senate. The dean
maintains that even assuming that the Articles are transmitted to the Senate, the Chief Justice can
raise the issue of their constitutional infirmity by way of a motion to dismiss.
The dean's position does not persuade. First, the withdrawal by the Representatives of their
signatures would not, by itself, cure the House Impeachment Rules of their constitutional infirmity.
Neither would such a withdrawal, by itself, obliterate the questioned second impeachment complaint
since it would only place it under the ambit of Sections 3(2) and (3) of Article XI of the
Constitution97 and, therefore, petitioners would continue to suffer their injuries.
Second and most importantly, the futility of seeking remedies from either or both Houses of
Congress before coming to this Court is shown by the fact that, as previously discussed, neither the
House of Representatives nor the Senate is clothed with the power to rule with definitiveness on the
issue of constitutionality, whether concerning impeachment proceedings or otherwise, as said power
is exclusively vested in the judiciary by the earlier quoted Section I, Article VIII of the Constitution.
Remedy cannot be sought from a body which is bereft of power to grant it.
Justiciability
In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto Concepcion defined the term
"political question," viz:
[T]he term "political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus Juris
Secundum, it refers to "those questions which, under the Constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full discretionary authority has
been delegated to the Legislature or executive branch of the Government." It is concerned
with issues dependent upon the wisdom, not legality, of a particular measure.99(Italics in the
original)
Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason, this
Court vacillated on its stance of taking cognizance of cases which involved political questions. In
some cases, this Court hid behind the cover of the political question doctrine and refused to exercise
its power of judicial review.100 In other cases, however, despite the seeming political nature of the
therein issues involved, this Court assumed jurisdiction whenever it found constitutionally imposed
limits on powers or functions conferred upon political bodies.101 Even in the landmark 1988 case
of Javellana v. Executive Secretary102 which raised the issue of whether the 1973 Constitution was
ratified, hence, in force, this Court shunted the political question doctrine and took cognizance
thereof. Ratification by the people of a Constitution is a political question, it being a question decided
by the people in their sovereign capacity.
The frequency with which this Court invoked the political question doctrine to refuse to take
jurisdiction over certain cases during the Marcos regime motivated Chief Justice Concepcion, when
he became a Constitutional Commissioner, to clarify this Court's power of judicial review and its
application on issues involving political questions, viz:
MR. CONCEPCION. Thank you, Mr. Presiding Officer.
I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment that the
judiciary is the weakest among the three major branches of the service. Since the legislature holds
the purse and the executive the sword, the judiciary has nothing with which to enforce its decisions
or commands except the power of reason and appeal to conscience which, after all, reflects the will
of God, and is the most powerful of all other powers without exception. x x x And so, with the body's
indulgence, I will proceed to read the provisions drafted by the Committee on the Judiciary.
The first section starts with a sentence copied from former Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes the duty of courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience during
martial law. As a matter of fact, it has some antecedents in the past, but the role of the
judiciary during the deposed regime was marred considerably by the circumstance
that in a number of cases against the government, which then had no legal defense at
all, the solicitor general set up the defense of political questions and got away with it.
As a consequence, certain principles concerning particularly the writ of habeas
corpus, that is, the authority of courts to order the release of political detainees, and
other matters related to the operation and effect of martial law failed because the
government set up the defense of political question. And the Supreme Court said: "Well,
since it is political, we have no authority to pass upon it." The Committee on the Judiciary
feels that this was not a proper solution of the questions involved. It did not merely
request an encroachment upon the rights of the people, but it, in effect, encouraged
further violations thereof during the martial law regime. I am sure the members of the
Bar are familiar with this situation. But for the benefit of the Members of the Commission who
are not lawyers, allow me to explain. I will start with a decision of the Supreme Court in 1973
on the case of Javellana vs. the Secretary of Justice, if I am not mistaken. Martial law was
announced on September 22, although the proclamation was dated September 21. The
obvious reason for the delay in its publication was that the administration had apprehended
and detained prominent newsmen on September 21. So that when martial law was
announced on September 22, the media hardly published anything about it. In fact, the
media could not publish any story not only because our main writers were already
incarcerated, but also because those who succeeded them in their jobs were under mortal
threat of being the object of wrath of the ruling party. The 1971 Constitutional Convention
had begun on June 1, 1971 and by September 21 or 22 had not finished the Constitution; it
had barely agreed in the fundamentals of the Constitution. I forgot to say that upon the
proclamation of martial law, some delegates to that 1971 Constitutional Convention, dozens
of them, were picked up. One of them was our very own colleague, Commissioner Calderon.
So, the unfinished draft of the Constitution was taken over by representatives of
Malacañang. In 17 days, they finished what the delegates to the 1971 Constitutional
Convention had been unable to accomplish for about 14 months. The draft of the 1973
Constitution was presented to the President around December 1, 1972, whereupon the
President issued a decree calling a plebiscite which suspended the operation of some
provisions in the martial law decree which prohibited discussions, much less public
discussions of certain matters of public concern. The purpose was presumably to allow a
free discussion on the draft of the Constitution on which a plebiscite was to be held
sometime in January 1973. If I may use a word famous by our colleague, Commissioner
Ople, during the interregnum, however, the draft of the Constitution was analyzed and
criticized with such a telling effect that Malacañang felt the danger of its approval. So, the
President suspended indefinitely the holding of the plebiscite and announced that he would
consult the people in a referendum to be held from January 10 to January 15. But the
questions to be submitted in the referendum were not announced until the eve of its
scheduled beginning, under the supposed supervision not of the Commission on Elections,
but of what was then designated as "citizens assemblies or barangays." Thus the barangays
came into existence. The questions to be propounded were released with proposed answers
thereto, suggesting that it was unnecessary to hold a plebiscite because the answers given
in the referendum should be regarded as the votes cast in the plebiscite. Thereupon, a
motion was filed with the Supreme Court praying that the holding of the referendum be
suspended. When the motion was being heard before the Supreme Court, the Minister of
Justice delivered to the Court a proclamation of the President declaring that the new
Constitution was already in force because the overwhelming majority of the votes cast in the
referendum favored the Constitution. Immediately after the departure of the Minister of
Justice, I proceeded to the session room where the case was being heard. I then informed
the Court and the parties the presidential proclamation declaring that the 1973 Constitution
had been ratified by the people and is now in force.
A number of other cases were filed to declare the presidential proclamation null and void.
The main defense put up by the government was that the issue was a political question and
that the court had no jurisdiction to entertain the case.
xxx
The government said that in a referendum held from January 10 to January 15, the vast
majority ratified the draft of the Constitution. Note that all members of the Supreme Court
were residents of Manila, but none of them had been notified of any referendum in their
respective places of residence, much less did they participate in the alleged referendum.
None of them saw any referendum proceeding.
In the Philippines, even local gossips spread like wild fire. So, a majority of the members of
the Court felt that there had been no referendum.
Second, a referendum cannot substitute for a plebiscite. There is a big difference between
a referendum and a plebiscite. But another group of justices upheld the defense that
the issue was a political question. Whereupon, they dismissed the case. This is not
the only major case in which the plea of "political question" was set up. There have
been a number of other cases in the past.
x x x The defense of the political question was rejected because the issue was clearly
justiciable.
xxx
x x x When your Committee on the Judiciary began to perform its functions, it faced the
following questions: What is judicial power? What is a political question?
The Supreme Court, like all other courts, has one main function: to settle actual
controversies involving conflicts of rights which are demandable and enforceable. There are
rights which are guaranteed by law but cannot be enforced by a judiciary party. In a decided
case, a husband complained that his wife was unwilling to perform her duties as a wife. The
Court said: "We can tell your wife what her duties as such are and that she is bound to
comply with them, but we cannot force her physically to discharge her main marital duty to
her husband. There are some rights guaranteed by law, but they are so personal that to
enforce them by actual compulsion would be highly derogatory to human dignity."
This is why the first part of the second paragraph of Section I provides that:
Judicial power includes the duty of courts to settle actual controversies involving rights which
are legally demandable or enforceable . . .
The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a
presidential system of government, the Supreme Court has, also another important
function. The powers of government are generally considered divided into three
branches: the Legislative, the Executive and the Judiciary. Each one is supreme
within its own sphere and independent of the others. Because of that supremacy
power to determine whether a given law is valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of the agencies and
offices of the government as well as those of its officers. In other words, the judiciary
is the final arbiter on the question whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously
as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of
jurisdiction. This is not only a judicial power but a duty to pass judgment on matters
of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts
cannot hereafter evade the duty to settle matters of this nature, by claiming that such
matters constitute a political question.
I have made these extended remarks to the end that the Commissioners may have an initial
food for thought on the subject of the judiciary.103 (Italics in the original; emphasis supplied)
During the deliberations of the Constitutional Commission, Chief Justice Concepcion further clarified
the concept of judicial power, thus:
MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is
not vested in the Supreme Court alone but also in other lower courts as may be
created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political
questions with jurisdictional questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where
there is a question as to whether the government had authority or had abused its
authority to the extent of lacking jurisdiction or excess of jurisdiction, that is not a
political question. Therefore, the court has the duty to decide.
xxx
FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme Court
according to the new numerical need for votes.
On another point, is it the intention of Section 1 to do away with the political question
doctrine?
MR. CONCEPCION. No.
FR. BERNAS. It is not.
MR. CONCEPCION. No, because whenever there is an abuse of discretion, amounting

to a lack of jurisdiction. . .
FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away with
the political question doctrine.
MR. CONCEPCION. No, certainly not.

When this provision was originally drafted, it sought to define what is judicial power.
But the Gentleman will notice it says, "judicial power includes" and the reason being
that the definition that we might make may not cover all possible areas.
FR. BERNAS. So, this is not an attempt to solve the problems arising from the political
question doctrine.
MR. CONCEPCION. It definitely does not eliminate the fact that truly political
questions are beyond the pale of judicial power.104 (Emphasis supplied)
From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear that
judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by the mere
specter of this creature called the political question doctrine. Chief Justice Concepcion hastened to
clarify, however, that Section 1, Article VIII was not intended to do away with "truly political
questions." From this clarification it is gathered that there are two species of political questions: (1)
"truly political questions" and (2) those which "are not truly political questions."
Truly political questions are thus beyond judicial review, the reason for respect of the doctrine of
separation of powers to be maintained. On the other hand, by virtue of Section 1, Article VIII of the
Constitution, courts can review questions which are not truly political in nature.
As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this Court
has in fact in a number of cases taken jurisdiction over questions which are not truly political
following the effectivity of the present Constitution.
In Marcos v. Manglapus,105 this Court, speaking through Madame Justice Irene Cortes, held:
The present Constitution limits resort to the political question doctrine and broadens the
scope of judicial inquiry into areas which the Court, under previous constitutions, would have
normally left to the political departments to decide.106 x x x
In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro Padilla, this Court
declared:
The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither
interposes an obstacle to judicial determination of the rival claims. The jurisdiction
to delimit constitutional boundaries has been given to this Court. It cannot abdicate
that obligation mandated by the 1987 Constitution, although said provision by no
means does away with the applicability of the principle in appropriate
cases."108 (Emphasis and underscoring supplied)
And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before us
was political in nature, we would still not be precluded from resolving it under
the expanded jurisdiction conferred upon us that now covers, in proper cases, even the
political question.110 x x x (Emphasis and underscoring supplied.)
Section 1, Article VIII, of the Court does not define what are justiciable political questions and non-
justiciable political questions, however. Identification of these two species of political questions may
be problematic. There has been no clear standard. The American case of Baker v. Carr111 attempts
to provide some:
x x x Prominent on the surface of any case held to involve a political question is found
a textually demonstrable constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable standards for resolving it; or
the impossibility of deciding without an initial policy determination of a kind clearly for non-
judicial discretion; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need
for questioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on one
question.112(Underscoring supplied)
Of these standards, the more reliable have been the first three: (1) a textually demonstrable
constitutional commitment of the issue to a coordinate political department; (2) the lack of judicially
discoverable and manageable standards for resolving it; and (3) the impossibility of deciding without
an initial policy determination of a kind clearly for non-judicial discretion. These standards are not
separate and distinct concepts but are interrelated to each in that the presence of one strengthens
the conclusion that the others are also present.
The problem in applying the foregoing standards is that the American concept of judicial review is
radically different from our current concept, for Section 1, Article VIII of the Constitution provides our
courts with far less discretion in determining whether they should pass upon a constitutional issue.
In our jurisdiction, the determination of a truly political question from a non-justiciable political
question lies in the answer to the question of whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to
examine whether the branch or instrumentality of the government properly acted within such limits.
This Court shall thus now apply this standard to the present controversy.
These petitions raise five substantial issues:
I. Whether the offenses alleged in the Second impeachment complaint constitute valid
impeachable offenses under the Constitution.
II. Whether the second impeachment complaint was filed in accordance with Section 3(4),
Article XI of the Constitution.
III. Whether the legislative inquiry by the House Committee on Justice into the Judicial
Development Fund is an unconstitutional infringement of the constitutionally mandated fiscal
autonomy of the judiciary.
IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the 12th
Congress are unconstitutional for violating the provisions of Section 3, Article XI of the
Constitution.
V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI of
the Constitution.
The first issue goes into the merits of the second impeachment complaint over which this
Court has no jurisdiction. More importantly, any discussion of this issue would require this
Court to make a determination of what constitutes an impeachable offense. Such a
determination is a purely political question which the Constitution has left to the sound
discretion of the legislation. Such an intent is clear from the deliberations of the
Constitutional Commission.113
Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment, two of
these, namely, other high crimes and betrayal of public trust, elude a precise definition. In fact, an
examination of the records of the 1986 Constitutional Commission shows that the framers could find
no better way to approximate the boundaries of betrayal of public trust and other high crimes than by
alluding to both positive and negative examples of both, without arriving at their clear cut definition or
even a standard therefor.114 Clearly, the issue calls upon this court to decide a non-justiciable
political question which is beyond the scope of its judicial power under Section 1, Article VIII.
Lis Mota
It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a

governmental act should be avoided whenever possible. Thus, in the case of Sotto v. Commission
on Elections,115 this Court held:
x x x It is a well-established rule that a court should not pass upon a constitutional question
and decide a law to be unconstitutional or invalid, unless such question is raised by the
parties and that when it is raised, if the record also presents some other ground upon
which the court may rest its judgment, that course will be adopted and the
constitutional question will be left for consideration until a case arises in which a
decision upon such question will be unavoidable.116 [Emphasis and underscoring
supplied]
The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,117 where this Court
invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and violative of due
process, to wit:
It has been established that this Court will assume jurisdiction over a constitutional
question only if it is shown that the essential requisites of a judicial inquiry into such
a question are first satisfied. Thus, there must be an actual case or controversy involving a
conflict of legal rights susceptible of judicial determination, the constitutional question must
have been opportunely raised by the proper party, and the resolution of the question is
unavoidably necessary to the decision of the case itself.118 [Emphasis supplied]
Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable and is
the very lis mota or crux of the controversy.
As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second
impeachment complaint, collectively raise several constitutional issues upon which the outcome of
this controversy could possibly be made to rest. In determining whether one, some or all of the
remaining substantial issues should be passed upon, this Court is guided by the related cannon of
adjudication that "the court should not form a rule of constitutional law broader than is required by
the precise facts to which it is applied."119
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the
second impeachment complaint is invalid since it directly resulted from a Resolution120 calling for a
legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim to likewise
be unconstitutional for being: (a) a violation of the rules and jurisprudence on investigations in aid of
legislation; (b) an open breach of the doctrine of separation of powers; (c) a violation of the
constitutionally mandated fiscal autonomy of the judiciary; and (d) an assault on the independence of
the judiciary.121
Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the studied opinion of this
Court that the issue of the constitutionality of the said Resolution and resulting legislative inquiry is
too far removed from the issue of the validity of the second impeachment complaint. Moreover, the
resolution of said issue would, in the Court's opinion, require it to form a rule of constitutional law
touching on the separate and distinct matter of legislative inquiries in general, which would thus be
broader than is required by the facts of these consolidated cases. This opinion is further
strengthened by the fact that said petitioners have raised other grounds in support of their petition
which would not be adversely affected by the Court's ruling.
En passant, this Court notes that a standard for the conduct of legislative inquiries has already been
enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee,122 viz:
The 1987 Constitution expressly recognizes the power of both houses of Congress to
conduct inquiries in aid of legislation. Thus, Section 21, Article VI thereof provides:
The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of procedure.
The rights of persons appearing in or affected by such inquiries shall be respected.
The power of both houses of Congress to conduct inquiries in aid of legislation is not,
therefore absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of
the Constitution. Thus, as provided therein, the investigation must be "in aid of legislation in
accordance with its duly published rules of procedure" and that "the rights of persons
appearing in or affected by such inquiries shall be respected." It follows then that the right
rights of persons under the Bill of Rights must be respected, including the right to due
process and the right not be compelled to testify against one's self.123
In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining the
original petition of petitioners Candelaria, et. al., introduce the new argument that since the second
impeachment complaint was verified and filed only by Representatives Gilberto Teodoro, Jr. and
Felix William Fuentebella, the same does not fall under the provisions of Section 3 (4), Article XI of
the Constitution which reads:
Section 3(4) In case the verified complaint or resolution of impeachment is filed by at least
one-third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.
They assert that while at least 81 members of the House of Representatives signed a Resolution of
Endorsement/Impeachment, the same did not satisfy the requisites for the application of the afore-
mentioned section in that the "verified complaint or resolution of impeachment" was not filed "by at
least one-third of all the Members of the House." With the exception of Representatives Teodoro and
Fuentebella, the signatories to said Resolution are alleged to have verified the same merely as a
"Resolution of Endorsement." Intervenors point to the "Verification" of the Resolution of
Endorsement which states that:
"We are the proponents/sponsors of the Resolution of Endorsement of the abovementioned
Complaint of Representatives Gilberto Teodoro and Felix William B. Fuentebella x x x"124
Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for said
second impeachment complaint to automatically become the Articles of Impeachment and for trial in
the Senate to begin "forthwith," is that the verified complaint be "filed," not merely endorsed, by at
least one-third of the Members of the House of Representatives. Not having complied with this
requirement, they concede that the second impeachment complaint should have been calendared
and referred to the House Committee on Justice under Section 3(2), Article XI of the
Constitution, viz:
Section 3(2) A verified complaint for impeachment may be filed by any Member of the House
of Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee, after
hearing, and by a majority vote of all its Members, shall submit its report to the House within
sixty session days from such referral, together with the corresponding resolution. The
resolution shall be calendared for consideration by the House within ten session days from
receipt thereof.
Intervenors' foregoing position is echoed by Justice Maambong who opined that for Section 3 (4),
Article XI of the Constitution to apply, there should be 76 or more representatives who signed and
verified the second impeachment complaint as complainants, signed and verified the signatories to a
resolution of impeachment. Justice Maambong likewise asserted that the Resolution of
Endorsement/Impeachment signed by at least one-third of the members of the House of
Representatives as endorsers is not the resolution of impeachment contemplated by the
Constitution, such resolution of endorsement being necessary only from at least one Member
whenever a citizen files a verified impeachment complaint.
While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit the
scope of the constitutional issues to the provisions on impeachment, more compelling considerations
militate against its adoption as the lis mota or crux of the present controversy. Chief among this is
the fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No. 160262, have raised this
issue as a ground for invalidating the second impeachment complaint. Thus, to adopt this additional
ground as the basis for deciding the instant consolidated petitions would not only render for naught
the efforts of the original petitioners in G.R. No. 160262, but the efforts presented by the other
petitioners as well.
Again, the decision to discard the resolution of this issue as unnecessary for the determination of the
instant cases is made easier by the fact that said intervenors Macalintal and Quadra have joined in
the petition of Candelaria, et. al., adopting the latter's arguments and issues as their own.
Consequently, they are not unduly prejudiced by this Court's decision.
In sum, this Court holds that the two remaining issues, inextricably linked as they are, constitute the
very lis mota of the instant controversy: (1) whether Sections 15 and 16 of Rule V of the House
Impeachment Rules adopted by the 12th Congress are unconstitutional for violating the provisions of
Section 3, Article XI of the Constitution; and (2) whether, as a result thereof, the second
impeachment complaint is barred under Section 3(5) of Article XI of the Constitution.
Judicial Restraint
Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate, sitting
as an impeachment court, has the sole power to try and decide all cases of impeachment. Again,
this Court reiterates that the power of judicial review includes the power of review over justiciable
issues in impeachment proceedings.
On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here is a moral compulsion
for the Court to not assume jurisdiction over the impeachment because all the Members thereof are
subject to impeachment."125But this argument is very much like saying the Legislature has a moral
compulsion not to pass laws with penalty clauses because Members of the House of
Representatives are subject to them.
The exercise of judicial restraint over justiciable issues is not an option before this Court.
Adjudication may not be declined, because this Court is not legally disqualified. Nor can jurisdiction
be renounced as there is no other tribunal to which the controversy may be referred."126 Otherwise,
this Court would be shirking from its duty vested under Art. VIII, Sec. 1(2) of the Constitution. More
than being clothed with authority thus, this Court is duty-bound to take cognizance of the instant
petitions.127 In the august words of amicus curiae Father Bernas, "jurisdiction is not just a power; it is
a solemn duty which may not be renounced. To renounce it, even if it is vexatious, would be a
dereliction of duty."
Even in cases where it is an interested party, the Court under our system of government cannot
inhibit itself and must rule upon the challenge because no other office has the authority to do
so.128 On the occasion that this Court had been an interested party to the controversy before it, it has
acted upon the matter "not with officiousness but in the discharge of an unavoidable duty and, as
always, with detachment and fairness."129 After all, "by [his] appointment to the office, the public has
laid on [a member of the judiciary] their confidence that [he] is mentally and morally fit to pass upon
the merits of their varied contentions. For this reason, they expect [him] to be fearless in [his] pursuit
to render justice, to be unafraid to displease any person, interest or power and to be equipped with a
moral fiber strong enough to resist the temptations lurking in [his] office."130
The duty to exercise the power of adjudication regardless of interest had already been settled in the
case of Abbas v. Senate Electoral Tribunal.131 In that case, the petitioners filed with the respondent
Senate Electoral Tribunal a Motion for Disqualification or Inhibition of the Senators-Members thereof
from the hearing and resolution of SET Case No. 002-87 on the ground that all of them were
interested parties to said case as respondents therein. This would have reduced the Tribunal's
membership to only its three Justices-Members whose disqualification was not sought, leaving them
to decide the matter. This Court held:
Where, as here, a situation is created which precludes the substitution of any Senator sitting
in the Tribunal by any of his other colleagues in the Senate without inviting the same
objections to the substitute's competence, the proposed mass disqualification, if sanctioned
and ordered, would leave the Tribunal no alternative but to abandon a duty that no other
court or body can perform, but which it cannot lawfully discharge if shorn of the participation
of its entire membership of Senators.
To our mind, this is the overriding consideration — that the Tribunal be not prevented from
discharging a duty which it alone has the power to perform, the performance of which is in
the highest public interest as evidenced by its being expressly imposed by no less than the
fundamental law.
It is aptly noted in the first of the questioned Resolutions that the framers of the Constitution
could not have been unaware of the possibility of an election contest that would involve all
Senators—elect, six of whom would inevitably have to sit in judgment thereon. Indeed, such
possibility might surface again in the wake of the 1992 elections when once more, but for the
last time, all 24 seats in the Senate will be at stake. Yet the Constitution provides no scheme
or mode for settling such unusual situations or for the substitution of Senators designated to
the Tribunal whose disqualification may be sought. Litigants in such situations must simply
place their trust and hopes of vindication in the fairness and sense of justice of the Members
of the Tribunal. Justices and Senators, singly and collectively.
Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral

Tribunal may inhibit or disqualify himself from sitting in judgment on any case before said
Tribunal. Every Member of the Tribunal may, as his conscience dictates, refrain from
participating in the resolution of a case where he sincerely feels that his personal interests or
biases would stand in the way of an objective and impartial judgment. What we are merely
saying is that in the light of the Constitution, the Senate Electoral Tribunal cannot legally
function as such, absent its entire membership of Senators and that no amendment of its
Rules can confer on the three Justices-Members alone the power of valid adjudication of a
senatorial election contest.
More recently in the case of Estrada v. Desierto,132 it was held that:
Moreover, to disqualify any of the members of the Court, particularly a majority of them, is
nothing short of pro tanto depriving the Court itself of its jurisdiction as established by the
fundamental law. Disqualification of a judge is a deprivation of his judicial power. And if that
judge is the one designated by the Constitution to exercise the jurisdiction of his court, as is
the case with the Justices of this Court, the deprivation of his or their judicial power is
equivalent to the deprivation of the judicial power of the court itself. It affects the very heart of
judicial independence. The proposed mass disqualification, if sanctioned and ordered, would
leave the Court no alternative but to abandon a duty which it cannot lawfully discharge if
shorn of the participation of its entire membership of Justices.133 (Italics in the original)
Besides, there are specific safeguards already laid down by the Court when it exercises its power of
judicial review.
In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of
limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis
in Ashwander v. TVA135 as follows:
1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary
proceeding, declining because to decide such questions 'is legitimate only in the last resort,
and as a necessity in the determination of real, earnest and vital controversy between
individuals. It never was the thought that, by means of a friendly suit, a party beaten in the
legislature could transfer to the courts an inquiry as to the constitutionality of the legislative
act.'
2. The Court will not 'anticipate a question of constitutional law in advance of the necessity of
deciding it.' . . . 'It is not the habit of the Court to decide questions of a constitutional nature
unless absolutely necessary to a decision of the case.'
3. The Court will not 'formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied.'
4. The Court will not pass upon a constitutional question although properly presented by the
record, if there is also present some other ground upon which the case may be disposed of.
This rule has found most varied application. Thus, if a case can be decided on either of two
grounds, one involving a constitutional question, the other a question of statutory
construction or general law, the Court will decide only the latter. Appeals from the highest
court of a state challenging its decision of a question under the Federal Constitution are
frequently dismissed because the judgment can be sustained on an independent state
ground.
5. The Court will not pass upon the validity of a statute upon complaint of one who fails to
show that he is injured by its operation. Among the many applications of this rule, none is
more striking than the denial of the right of challenge to one who lacks a personal or property
right. Thus, the challenge by a public official interested only in the performance of his official
duty will not be entertained . . . In Fairchild v. Hughes, the Court affirmed the dismissal of a
suit brought by a citizen who sought to have the Nineteenth Amendment declared
unconstitutional. In Massachusetts v. Mellon, the challenge of the federal Maternity Act was
not entertained although made by the Commonwealth on behalf of all its citizens.
6. The Court will not pass upon the constitutionality of a statute at the instance of one who
has availed himself of its benefits.
7. When the validity of an act of the Congress is drawn in question, and even if a serious
doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain
whether a construction of the statute is fairly possible by which the question may be avoided
(citations omitted).
The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from different
decisions of the United States Supreme Court, can be encapsulated into the following categories:
1. that there be absolute necessity of deciding a case
2. that rules of constitutional law shall be formulated only as required by the facts of the case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by reason of the operation of the statute
5. that the parties are not in estoppel
6. that the Court upholds the presumption of constitutionality.
As stated previously, parallel guidelines have been adopted by this Court in the exercise of judicial
review:
1. actual case or controversy calling for the exercise of judicial power
2. the person challenging the act must have "standing" to challenge; he must have a
personal and substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement
3. the question of constitutionality must be raised at the earliest possible opportunity

4. the issue of constitutionality must be the very lis mota of the case.136
Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the possibility
that "judicial review of impeachments might also lead to embarrassing conflicts between the
Congress and the [J]udiciary." They stress the need to avoid the appearance of impropriety or
conflicts of interest in judicial hearings, and the scenario that it would be confusing and humiliating
and risk serious political instability at home and abroad if the judiciary countermanded the vote of
Congress to remove an impeachable official.137 Intervenor Soriano echoes this argument by alleging
that failure of this Court to enforce its Resolution against Congress would result in the diminution of
its judicial authority and erode public confidence and faith in the judiciary.
Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor
General, the possibility of the occurrence of a constitutional crisis is not a reason for this Court to
refrain from upholding the Constitution in all impeachment cases. Justices cannot abandon their
constitutional duties just because their action may start, if not precipitate, a crisis.
Justice Feliciano warned against the dangers when this Court refuses to act.
x x x Frequently, the fight over a controversial legislative or executive act is not regarded as
settled until the Supreme Court has passed upon the constitutionality of the act involved, the
judgment has not only juridical effects but also political consequences. Those political
consequences may follow even where the Court fails to grant the petitioner's prayer to nullify
an act for lack of the necessary number of votes. Frequently, failure to act explicitly, one way
or the other, itself constitutes a decision for the respondent and validation, or at least quasi-
validation, follows." 138
Thus, in Javellana v. Executive Secretary139 where this Court was split and "in the end there were not
enough votes either to grant the petitions, or to sustain respondent's claims,"140 the pre-existing
constitutional order was disrupted which paved the way for the establishment of the martial law
regime.
Such an argument by respondents and intervenor also presumes that the coordinate branches of the
government would behave in a lawless manner and not do their duty under the law to uphold the
Constitution and obey the laws of the land. Yet there is no reason to believe that any of the branches
of government will behave in a precipitate manner and risk social upheaval, violence, chaos and
anarchy by encouraging disrespect for the fundamental law of the land.
Substituting the word public officers for judges, this Court is well guided by the doctrine in People v.
Veneracion, to wit:141
Obedience to the rule of law forms the bedrock of our system of justice. If [public officers],
under the guise of religious or political beliefs were allowed to roam unrestricted beyond
boundaries within which they are required by law to exercise the duties of their office, then
law becomes meaningless. A government of laws, not of men excludes the exercise of broad
discretionary powers by those acting under its authority. Under this system, [public officers]
are guided by the Rule of Law, and ought "to protect and enforce it without fear or favor,"
resist encroachments by governments, political parties, or even the interference of their own
personal beliefs.142
Constitutionality of the Rules of Procedure

for Impeachment Proceedings
adopted by the 12th Congress
Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16 and
17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of our
present Constitution, contending that the term "initiate" does not mean "to file;" that Section 3 (1) is
clear in that it is the House of Representatives, as a collective body, which has the exclusive power
to initiate all cases of impeachment; that initiate could not possibly mean "to file" because filing can,
as Section 3 (2), Article XI of the Constitution provides, only be accomplished in 3 ways, to wit: (1)
by a verified complaint for impeachment by any member of the House of Representatives; or (2) by
any citizen upon a resolution of endorsement by any member; or (3) by at least 1/3 of all the
members of the House. Respondent House of Representatives concludes that the one year bar
prohibiting the initiation of impeachment proceedings against the same officials could not have been
violated as the impeachment complaint against Chief Justice Davide and seven Associate Justices
had not been initiated as the House of Representatives, acting as the collective body, has yet to act
on it.
The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to statutory
construction is, therefore, in order.
That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz
Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning of
"initiate" as "to file," as proffered and explained by Constitutional Commissioner Maambong during
the Constitutional Commission proceedings, which he (Commissioner Regalado) as amicus
curiae affirmed during the oral arguments on the instant petitions held on November 5, 2003 at
which he added that the act of "initiating" included the act of taking initial action on the complaint,
dissipates any doubt that indeed the word "initiate" as it twice appears in Article XI (3) and (5) of the
Constitution means to file the complaint and take initial action on it.
"Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to

commence, or set going. As Webster's Third New International Dictionary of the English Language
concisely puts it, it means "to perform or facilitate the first action," which jibes with Justice
Regalado's position, and that of Father Bernas, who elucidated during the oral arguments of the
instant petitions on November 5, 2003 in this wise:
Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts

consisting of a beginning, a middle and an end. The end is the transmittal of the articles of
impeachment to the Senate. The middle consists of those deliberative moments leading to
the formulation of the articles of impeachment. The beginning or the initiation is the filing of
the complaint and its referral to the Committee on Justice.
Finally, it should be noted that the House Rule relied upon by Representatives Cojuangco
and Fuentebella says that impeachment is "deemed initiated" when the Justice Committee
votes in favor of impeachment or when the House reverses a contrary vote of the
Committee. Note that the Rule does not say "impeachment proceedings" are initiated but
rather are "deemed initiated." The language is recognition that initiation happened earlier, but
by legal fiction there is an attempt to postpone it to a time after actual initiation. (Emphasis
As stated earlier, one of the means of interpreting the Constitution is looking into the intent of the
law. Fortunately, the intent of the framers of the 1987 Constitution can be pried from its records:
MR. MAAMBONG. With reference to Section 3, regarding the procedure and the substantive
provisions on impeachment, I understand there have been many proposals and, I think,
these would need some time for Committee action.
However, I would just like to indicate that I submitted to the Committee a resolution on
impeachment proceedings, copies of which have been furnished the Members of this body.
This is borne out of my experience as a member of the Committee on Justice, Human Rights
and Good Government which took charge of the last impeachment resolution filed before the
First Batasang Pambansa. For the information of the Committee, the resolution covers
several steps in the impeachment proceedings starting with initiation, action of the
Speaker committee action, calendaring of report, voting on the report, transmittal
referral to the Senate, trial and judgment by the Senate.
xxx
MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the
approval of the amendment submitted by Commissioner Regalado, but I will just make of
record my thinking that we do not really initiate the filing of the Articles of Impeachment on
the floor. The procedure, as I have pointed out earlier, was that the initiation starts with
the filing of the complaint. And what is actually done on the floor is that the committee
resolution containing the Articles of Impeachment is the one approved by the body.
As the phraseology now runs, which may be corrected by the Committee on Style, it appears
that the initiation starts on the floor. If we only have time, I could cite examples in the case of
the impeachment proceedings of President Richard Nixon wherein the Committee on the
Judiciary submitted the recommendation, the resolution, and the Articles of Impeachment to
the body, and it was the body who approved the resolution. It is not the body which
initiates it. It only approves or disapproves the resolution. So, on that score, probably
the Committee on Style could help in rearranging these words because we have to be very
technical about this. I have been bringing with me The Rules of the House of
Representatives of the U.S. Congress. The Senate Rules are with me. The proceedings on
the case of Richard Nixon are with me. I have submitted my proposal, but the Committee has
already decided. Nevertheless, I just want to indicate this on record.
xxx
MR. MAAMBONG. I would just like to move for a reconsideration of the approval of Section 3
(3). My reconsideration will not at all affect the substance, but it is only in keeping with the
exact formulation of the Rules of the House of Representatives of the United States
regarding impeachment.
I am proposing, Madam President, without doing damage to any of this provision, that on
page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate
impeachment proceedings" and the comma (,) and insert on line 19 after the word
"resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in
"impeachment" and replace the word "by" with OF, so that the whole section will now read:
"A vote of at least one-third of all the Members of the House shall be necessary either to
affirm a resolution WITH THE ARTICLES of Impeachment OF the Committee or to override
its contrary resolution. The vote of each Member shall be recorded."
I already mentioned earlier yesterday that the initiation, as far as the House of
Representatives of the United States is concerned, really starts from the filing of the
verified complaint and every resolution to impeach always carries with it the Articles of
Impeachment. As a matter of fact, the words "Articles of Impeachment" are mentioned on
line 25 in the case of the direct filing of a verified compliant of one-third of all the Members of
the House. I will mention again, Madam President, that my amendment will not vary the
substance in any way. It is only in keeping with the uniform procedure of the House of
Representatives of the United States Congress. Thank you, Madam President.143 (Italics in
the original; emphasis and udnerscoring supplied)
This amendment proposed by Commissioner Maambong was clarified and accepted by the
Committee on the Accountability of Public Officers.144
It is thus clear that the framers intended "initiation" to start with the filing of the complaint. In
his amicus curiae brief, Commissioner Maambong explained that "the obvious reason in deleting the
phrase "to initiate impeachment proceedings" as contained in the text of the provision of Section
3 (3) was to settle and make it understood once and for all that the initiation of impeachment
proceedings starts with the filing of the complaint, and the vote of one-third of the House in a
resolution of impeachment does not initiate the impeachment proceedings which was already
initiated by the filing of a verified complaint under Section 3, paragraph (2), Article XI of the
Constitution."145
Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas, who
was also a member of the 1986 Constitutional Commission, that the word "initiate" as used in Article
XI, Section 3(5) means to file, both adding, however, that the filing must be accompanied by an
action to set the complaint moving.
During the oral arguments before this Court, Father Bernas clarified that the word "initiate,"
appearing in the constitutional provision on impeachment, viz:
Section 3 (1) The House of Representatives shall have the exclusive power to initiate all
cases of impeachment.
xxx
within a period of one year, (Emphasis supplied)
refers to two objects, "impeachment case" and "impeachment proceeding."
Father Bernas explains that in these two provisions, the common verb is "to initiate." The object in
the first sentence is "impeachment case." The object in the second sentence is "impeachment
proceeding." Following the principle of reddendo singuala sinuilis, the term "cases" must be
distinguished from the term "proceedings." An impeachment case is the legal controversy that must
be decided by the Senate. Above-quoted first provision provides that the House, by a vote of one-
third of all its members, can bring a case to the Senate. It is in that sense that the House has
"exclusive power" to initiate all cases of impeachment. No other body can do it. However, before a
decision is made to initiate a case in the Senate, a "proceeding" must be followed to arrive at a
conclusion. A proceeding must be "initiated." To initiate, which comes from the Latin word initium,
means to begin. On the other hand, proceeding is a progressive noun. It has a beginning, a middle,
and an end. It takes place not in the Senate but in the House and consists of several steps: (1) there
is the filing of a verified complaint either by a Member of the House of Representatives or by a
private citizen endorsed by a Member of the House of the Representatives; (2) there is the
processing of this complaint by the proper Committee which may either reject the complaint or
uphold it; (3) whether the resolution of the Committee rejects or upholds the complaint, the resolution
must be forwarded to the House for further processing; and (4) there is the processing of the same
complaint by the House of Representatives which either affirms a favorable resolution of the
Committee or overrides a contrary resolution by a vote of one-third of all the members. If at least one
third of all the Members upholds the complaint, Articles of Impeachment are prepared and
transmitted to the Senate. It is at this point that the House "initiates an impeachment case." It is at
this point that an impeachable public official is successfully impeached. That is, he or she is
successfully charged with an impeachment "case" before the Senate as impeachment court.
Father Bernas further explains: The "impeachment proceeding" is not initiated when the complaint is
transmitted to the Senate for trial because that is the end of the House proceeding and the beginning
of another proceeding, namely the trial. Neither is the "impeachment proceeding" initiated when the
House deliberates on the resolution passed on to it by the Committee, because something prior to
that has already been done. The action of the House is already a further step in the proceeding, not
its initiation or beginning. Rather, the proceeding is initiated or begins, when a verified complaint is
filed and referred to the Committee on Justice for action. This is the initiating step which triggers the
series of steps that follow.
The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a
proposal reached the floor proposing that "A vote of at least one-third of all the Members of the
House shall be necessary… to initiate impeachment proceedings," this was met by a proposal to
delete the line on the ground that the vote of the House does not initiate impeachment proceeding
but rather the filing of a complaint does.146 Thus the line was deleted and is not found in the present
Constitution.
Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be
initiated against the same official more than once within a period of one year," it means that no
second verified complaint may be accepted and referred to the Committee on Justice for action. By
his explanation, this interpretation is founded on the common understanding of the meaning of "to
initiate" which means to begin. He reminds that the Constitution is ratified by the people, both
ordinary and sophisticated, as they understand it; and that ordinary people read ordinary meaning
into ordinary words and not abstruse meaning, they ratify words as they understand it and not as
sophisticated lawyers confuse it.
To the argument that only the House of Representatives as a body can initiate impeachment
proceedings because Section 3 (1) says "The House of Representatives shall have the exclusive
power to initiate all cases of impeachment," This is a misreading of said provision and is contrary to
the principle of reddendo singula singulis by equating "impeachment cases" with "impeachment
proceeding."
From the records of the Constitutional Commission, to the amicus curiae briefs of two former
Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the filing of the
impeachment complaint coupled with Congress' taking initial action of said complaint.
Having concluded that the initiation takes place by the act of filing and referral or endorsement of the
impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of
the members of the House of Representatives with the Secretary General of the House, the meaning
of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated,
another impeachment complaint may not be filed against the same official within a one year period.
Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment proceedings
are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified
complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or
overturns the finding of the Committee on Justice that the verified complaint and/or resolution is not
sufficient in substance or (3) by the filing or endorsement before the Secretary-General of the House
of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the
members of the House. These rules clearly contravene Section 3 (5) of Article XI since the rules give
the term "initiate" a meaning different meaning from filing and referral.
In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use
contemporaneous construction as an aid in the interpretation of Sec.3 (5) of Article XI, citing Vera v.
Avelino147 wherein this Court stated that "their personal opinions (referring to Justices who were
delegates to the Constitution Convention) on the matter at issue expressed during this Court's our
deliberations stand on a different footing from the properly recorded utterances of debates and
proceedings." Further citing said case, he states that this Court likened the former members of the
Constitutional Convention to actors who are so absorbed in their emotional roles that intelligent
spectators may know more about the real meaning because of the latter's balanced perspectives
and disinterestedness.148
Justice Gutierrez's statements have no application in the present petitions. There are at present only
two members of this Court who participated in the 1986 Constitutional Commission – Chief Justice
Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken part in these proceedings for
obvious reasons. Moreover, this Court has not simply relied on the personal opinions now given by
members of the Constitutional Commission, but has examined the records of the deliberations and
proceedings thereof.
Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear and
unequivocal that it and only it has the power to make and interpret its rules governing impeachment.
Its argument is premised on the assumption that Congress has absolute power to promulgate its
rules. This assumption, however, is misplaced.
Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on impeachment to
effectively carry out the purpose of this section." Clearly, its power to promulgate its rules on
impeachment is limited by the phrase "to effectively carry out the purpose of this section." Hence,
these rules cannot contravene the very purpose of the Constitution which said rules were intended to
effectively carry out. Moreover, Section 3 of Article XI clearly provides for other specific limitations on
its power to make rules, viz:
Section 3. (1) x x x
(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member thereof,
which shall be included in the Order of Business within ten session days, and referred to the
proper Committee within three session days thereafter. The Committee, after hearing, and by
a majority vote of all its Members, shall submit its report to the House within sixty session
days from such referral, together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be necessary to either
affirm a favorable resolution with the Articles of Impeachment of the Committee, or override
its contrary resolution. The vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of
all the Members of the House, the same shall constitute the Articles of Impeachment, and
trial by the Senate shall forthwith proceed.
within a period of one year.
It is basic that all rules must not contravene the Constitution which is the fundamental law. If as
alleged Congress had absolute rule making power, then it would by necessary implication have the
power to alter or amend the meaning of the Constitution without need of referendum.
In Osmeña v. Pendatun,149 this Court held that it is within the province of either House of Congress
to interpret its rules and that it was the best judge of what constituted "disorderly behavior" of its
members. However, in Paceta v. Secretary of the Commission on Appointments,150 Justice (later
Chief Justice) Enrique Fernando, speaking for this Court and quoting Justice Brandeis in United
States v. Smith,151 declared that where the construction to be given to a rule affects persons other
than members of the Legislature, the question becomes judicial in nature. In Arroyo v. De
Venecia,152 quoting United States v. Ballin, Joseph & Co.,153 Justice Vicente Mendoza, speaking for
this Court, held that while the Constitution empowers each house to determine its rules of
proceedings, it may not by its rules ignore constitutional restraints or violate fundamental rights, and
further that there should be a reasonable relation between the mode or method of proceeding
established by the rule and the result which is sought to be attained. It is only within these limitations
that all matters of method are open to the determination of the Legislature. In the same case
of Arroyo v. De Venecia, Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was
even more emphatic as he stressed that in the Philippine setting there is even more reason for
courts to inquire into the validity of the Rules of Congress, viz:
With due respect, I do not agree that the issues posed by the petitioner are non-
justiciable. Nor do I agree that we will trivialize the principle of separation of power if
we assume jurisdiction over he case at bar. Even in the United States, the principle of
separation of power is no longer an impregnable impediment against the interposition of
judicial power on cases involving breach of rules of procedure by legislators.
Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to view the
issues before the Court. It is in Ballin where the US Supreme Court first defined the
boundaries of the power of the judiciary to review congressional rules. It held:
"x x x
"The Constitution, in the same section, provides, that each house may determine the rules of
its proceedings." It appears that in pursuance of this authority the House had, prior to that
day, passed this as one of its rules:
Rule XV
3. On the demand of any member, or at the suggestion of the Speaker, the names of
members sufficient to make a quorum in the hall of the House who do not vote shall be noted
by the clerk and recorded in the journal, and reported to the Speaker with the names of the
members voting, and be counted and announced in determining the presence of a quorum to
do business. (House Journal, 230, Feb. 14, 1890)
The action taken was in direct compliance with this rule. The question, therefore, is as to
the validity of this rule, and not what methods the Speaker may of his own motion resort to
for determining the presence of a quorum, nor what matters the Speaker or clerk may of their
own volition place upon the journal. Neither do the advantages or disadvantages, the wisdom
or folly, of such a rule present any matters for judicial consideration. With the courts the
question is only one of power. The Constitution empowers each house to determine its
rules of proceedings. It may not by its rules ignore constitutional restraints or violate
fundamental rights, and there should be a reasonable relation between the mode or
method of proceedings established by the rule and the result which is sought to be
attained. But within these limitations all matters of method are open to the determination of
the House, and it is no impeachment of the rule to say that some other way would be better,
more accurate, or even more just. It is no objection to the validity of a rule that a different one
has been prescribed and in force for a length of time. The power to make rules is not one
which once exercised is exhausted. It is a continuous power, always subject to be exercised
by the House, and within the limitations suggested, absolute and beyond the challenge of
any other body or tribunal."
Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of
congressional rules, i.e, whether they are constitutional. Rule XV was examined by the
Court and it was found to satisfy the test: (1) that it did not ignore any constitutional restraint;
(2) it did not violate any fundamental right; and (3) its method had a reasonable relationship
with the result sought to be attained. By examining Rule XV, the Court did not allow its
jurisdiction to be defeated by the mere invocation of the principle of separation of powers.154
xxx
In the Philippine setting, there is a more compelling reason for courts to categorically
reject the political question defense when its interposition will cover up abuse of
power. For section 1, Article VIII of our Constitution was intentionally cobbled to
empower courts "x x x 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." This power is new and was not granted to our courts
in the 1935 and 1972 Constitutions. It was not also xeroxed from the US Constitution or
any foreign state constitution. The CONCOM granted this enormous power to our
courts in view of our experience under martial law where abusive exercises of state
power were shielded from judicial scrutiny by the misuse of the political question
doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM
expanded and sharpened the checking powers of the judiciary vis-à-vis the Executive and
the Legislative departments of government.155
xxx
The Constitution cannot be any clearer. What it granted to this Court is not a mere power
which it can decline to exercise. Precisely to deter this disinclination, the Constitution
imposed it as a duty of this Court to strike down any act of a branch or instrumentality
of government or any of its officials done with grave abuse of discretion amounting to
lack or excess of jurisdiction. Rightly or wrongly, the Constitution has elongated the
checking powers of this Court against the other branches of government despite their more
democratic character, the President and the legislators being elected by the people.156
xxx
The provision defining judicial power as including the 'duty of the courts of justice. . . 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'
constitutes the capstone of the efforts of the Constitutional Commission to upgrade the
powers of this court vis-à-vis the other branches of government. This provision was dictated
by our experience under martial law which taught us that a stronger and more independent
judiciary is needed to abort abuses in government. x x x
xxx
In sum, I submit that in imposing to this Court the duty to annul acts of government
committed with grave abuse of discretion, the new Constitution transformed this Court from
passivity to activism. This transformation, dictated by our distinct experience as nation, is not
merely evolutionary but revolutionary.Under the 1935 and the 1973 Constitutions, this Court
approached constitutional violations by initially determining what it cannot do; under the
1987 Constitution, there is a shift in stress – this Court is mandated to approach
constitutional violations not by finding out what it should not do but what
it must do. The Court must discharge this solemn duty by not resuscitating a past that
petrifies the present.
I urge my brethren in the Court to give due and serious consideration to this new
constitutional provision as the case at bar once more calls us to define the parameters of our
power to review violations of the rules of the House. We will not be true to our trust as the
last bulwark against government abuses if we refuse to exercise this new power or if
we wield it with timidity. To be sure, it is this exceeding timidity to unsheathe the
judicial sword that has increasingly emboldened other branches of government to
denigrate, if not defy, orders of our courts. In Tolentino, I endorsed the view of former
Senator Salonga that this novel provision stretching the latitude of judicial power is distinctly
Filipino and its interpretation should not be depreciated by undue reliance on inapplicable
foreign jurisprudence. In resolving the case at bar, the lessons of our own history should
provide us the light and not the experience of foreigners.157 (Italics in the original emphasis
Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the third
parties alleging the violation of private rights and the Constitution are involved.
Neither may respondent House of Representatives' rely on Nixon v. US158 as basis for arguing that
this Court may not decide on the constitutionality of Sections 16 and 17 of the House Impeachment
Rules. As already observed, the U.S. Federal Constitution simply provides that "the House of
Representatives shall have the sole power of impeachment." It adds nothing more. It gives no clue
whatsoever as to how this "sole power" is to be exercised. No limitation whatsoever is given. Thus,
the US Supreme Court concluded that there was a textually demonstrable constitutional commitment
of a constitutional power to the House of Representatives. This reasoning does not hold with regard
to impeachment power of the Philippine House of Representatives since our Constitution, as earlier
enumerated, furnishes several provisions articulating how that "exclusive power" is to be exercised.
The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state that
impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on
Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House
itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or
resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-
General of the House of Representatives of a verified complaint or a resolution of impeachment by
at least 1/3 of the members of the House thus clearly contravene Section 3 (5) of Article XI as they
give the term "initiate" a meaning different from "filing."
Validity of the Second Impeachment Complaint
Having concluded that the initiation takes place by the act of filing of the impeachment complaint and
referral to the House Committee on Justice, the initial action taken thereon, the meaning of Section 3
(5) of Article XI becomes clear. Once an impeachment complaint has been initiated in the foregoing
manner, another may not be filed against the same official within a one year period following Article
XI, Section 3(5) of the Constitution.
In fine, considering that the first impeachment complaint, was filed by former President Estrada
against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on
June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the second
impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William
Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition
against the initiation of impeachment proceedings against the same impeachable officer within a
one-year period.
Conclusion
If there is anything constant about this country, it is that there is always a phenomenon that takes the
center stage of our individual and collective consciousness as a people with our characteristic flair
for human drama, conflict or tragedy. Of course this is not to demean the seriousness of the
controversy over the Davide impeachment. For many of us, the past two weeks have proven to be
an exasperating, mentally and emotionally exhausting experience. Both sides have fought bitterly a
dialectical struggle to articulate what they respectively believe to be the correct position or view on
the issues involved. Passions had ran high as demonstrators, whether for or against the
impeachment of the Chief Justice, took to the streets armed with their familiar slogans and chants to
air their voice on the matter. Various sectors of society - from the business, retired military, to the
academe and denominations of faith – offered suggestions for a return to a state of normalcy in the
official relations of the governmental branches affected to obviate any perceived resulting instability
upon areas of national life.
Through all these and as early as the time when the Articles of Impeachment had been constituted,
this Court was specifically asked, told, urged and argued to take no action of any kind and form with
respect to the prosecution by the House of Representatives of the impeachment complaint against
the subject respondent public official. When the present petitions were knocking so to speak at the
doorsteps of this Court, the same clamor for non-interference was made through what are now the
arguments of "lack of jurisdiction," "non-justiciability," and "judicial self-restraint" aimed at halting the
Court from any move that may have a bearing on the impeachment proceedings.
This Court did not heed the call to adopt a hands-off stance as far as the question of the
constitutionality of initiating the impeachment complaint against Chief Justice Davide is concerned.
To reiterate what has been already explained, the Court found the existence in full of all the requisite
conditions for its exercise of its constitutionally vested power and duty of judicial review over an
issue whose resolution precisely called for the construction or interpretation of a provision of the
fundamental law of the land. What lies in here is an issue of a genuine constitutional material which
only this Court can properly and competently address and adjudicate in accordance with the clear-
cut allocation of powers under our system of government. Face-to-face thus with a matter or problem
that squarely falls under the Court's jurisdiction, no other course of action can be had but for it to
pass upon that problem head on.
The claim, therefore, that this Court by judicially entangling itself with the process of impeachment
has effectively set up a regime of judicial supremacy, is patently without basis in fact and in law.
This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only the
main issue of whether the impeachment proceedings initiated against the Chief Justice transgressed
the constitutionally imposed one-year time bar rule. Beyond this, it did not go about assuming
jurisdiction where it had none, nor indiscriminately turn justiciable issues out of decidedly political
questions. Because it is not at all the business of this Court to assert judicial dominance over the
other two great branches of the government. Rather, the raison d'etre of the judiciary is to
complement the discharge by the executive and legislative of their own powers to bring about
ultimately the beneficent effects of having founded and ordered our society upon the rule of law.
It is suggested that by our taking cognizance of the issue of constitutionality of the impeachment
proceedings against the Chief Justice, the members of this Court have actually closed ranks to
protect a brethren. That the members' interests in ruling on said issue is as much at stake as is that
of the Chief Justice. Nothing could be farther from the truth.
The institution that is the Supreme Court together with all other courts has long held and been
entrusted with the judicial power to resolve conflicting legal rights regardless of the personalities
involved in the suits or actions. This Court has dispensed justice over the course of time, unaffected
by whomsoever stood to benefit or suffer therefrom, unfraid by whatever imputations or speculations
could be made to it, so long as it rendered judgment according to the law and the facts. Why can it
not now be trusted to wield judicial power in these petitions just because it is the highest ranking
magistrate who is involved when it is an incontrovertible fact that the fundamental issue is not him
but the validity of a government branch's official act as tested by the limits set by the Constitution?
Of course, there are rules on the inhibition of any member of the judiciary from taking part in a case
in specified instances. But to disqualify this entire institution now from the suit at bar is to regard the
Supreme Court as likely incapable of impartiality when one of its members is a party to a case,
which is simply a non sequitur.
No one is above the law or the Constitution. This is a basic precept in any legal system which
recognizes equality of all men before the law as essential to the law's moral authority and that of its
agents to secure respect for and obedience to its commands. Perhaps, there is no other government
branch or instrumentality that is most zealous in protecting that principle of legal equality other than
the Supreme Court which has discerned its real meaning and ramifications through its application to
numerous cases especially of the high-profile kind in the annals of jurisprudence. The Chief Justice
is not above the law and neither is any other member of this Court. But just because he is the Chief
Justice does not imply that he gets to have less in law than anybody else. The law is solicitous of
every individual's rights irrespective of his station in life.
The Filipino nation and its democratic institutions have no doubt been put to test once again by this
impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has resorted to no
other than the Constitution in search for a solution to what many feared would ripen to a crisis in
government. But though it is indeed immensely a blessing for this Court to have found answers in
our bedrock of legal principles, it is equally important that it went through this crucible of a
democratic process, if only to discover that it can resolve differences without the use of force and
aggression upon each other.
WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment

Proceedings which were approved by the House of Representatives on November 28, 2001 are
unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario G.
Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B.
Fuentebella with the Office of the Secretary General of the House of Representatives on October 23,
2003 is barred under paragraph 5, section 3 of Article XI of the Constitution.
SO ORDERED.
117

SUPREME COURT
Manila
EN BANC
G.R. No. 193459 March 8, 2011
MA. MERCEDITAS N. GUTIERREZ Petitioner,

vs.
THE HOUSE OF REPRESENTATIVES COMMITTEE ON JUSTICE, RISA HONTIVEROS-
BARAQUEL, DANILO D. LIM, FELIPE PESTAÑO, EVELYN PESTAÑO, RENATO M. REYES, JR.,
SECRETARY GENERAL OF BAGONG ALYANSANG MAKABAYAN (BAYAN); MOTHER MARY
JOHN MANANZAN, CO-CHAIRPERSON OF PAGBABAGO; DANILO RAMOS, SECRETARY-
GENERAL OF KILUSANG MAGBUBUKID NG PILIPINAS (KMP); ATTY. EDRE OLALIA, ACTING
SECRETARY GENERAL OF THE NATIONAL UNION OF PEOPLE'S LAWYERS (NUPL);
FERDINAND R. GAITE, CHAIRPERSON, CONFEDERATION FOR UNITY, RECOGNITION AND
ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE); and JAMES TERRY RIDON OF
THE LEAGUE OF FILIPINO STUDENTS (LFS), Respondents.
FELICIANO BELMONTE, JR., Respondent-Intervenor.
RESOLUTION
CARPIO MORALES, J.:
For resolution is petitioner’s "Motion for Reconsideration (of the Decision dated 15 February 2011)"
dated February 25, 2011 (Motion).
Upon examination of the averments in the Motion, the Court finds neither substantial nor cogent
reason to reconsider its Decision. A plain reading of the Decision could very well dispose of
petitioner’s previous contentions, raised anew in the Motion, but the Court finds it proper, in
writing finis to the issue, to draw petitioner’s attention to certain markers in the Decision.
Contrary to petitioner’s assertion that the Court sharply deviated from the ruling in Francisco, Jr. v.
The House of Representatives,1 the Decision of February 15, 2011 reaffirmed and illuminated
the Francisco doctrine in light of the particular facts of the present case.
To argue, as petitioner does, that there never was a simultaneous referral of two impeachment
complaints as they were actually referred to the committee "separately, one after the other"2 is to
dismantle her own interpretation of Francisco that the one-year bar is to be reckoned from the filing
of the impeachment complaint. Petitioner’s Motion concedes3 that the Francisco doctrine on the
initiation of an impeachment proceeding includes the House’s initial action on the complaint. By
recognizing the legal import of a referral, petitioner abandons her earlier claim that per Francisco an
impeachment proceeding is initiated by the mere filing of an impeachment complaint.
Having uprooted her reliance on the Francisco case in propping her position that the initiation of an
impeachment proceeding must be reckoned from the filing of the complaint, petitioner insists on
actual initiation and not "constructive initiation by legal fiction" as averred by Justice Adolfo Azcuna
in his separate opinion in Francisco.
In Justice Azcuna’s opinion which concurred with the majority, what he similarly found untenable
was the stretching of the reckoning point of initiation to the time that the Committee on Justice (the
Committee) report reaches the floor of the House.4 Notably, the provisions of the Impeachment
Rules of the 12th Congress that were successfully challenged in Francisco provided that an
impeachment proceeding was to be "deemed initiated" upon the Committee’s finding of sufficiency of
substance or upon the House’s affirmance or overturning of the Committee’s finding,5 which was
clearly referred to as the instances "presumably for internal purposes of the House, as to the timing
of some of its internal action on certain relevant matters."6 Definitely, "constructive initiation by legal
fiction" did not refer to the aspects of filing and referral in the regular course of impeachment, for this
was precisely the gist of Francisco in pronouncing what initiation means.
The Court adhered to the Francisco-ordained balance in the tug-of-war between those who want
to stretch and those who want to shrink the term "initiate," either of which could disrupt the
provision’s congruency to the rationale of the constitutional provision. Petitioner’s imputation that the
Court’s Decision presents a sharp deviation from Francisco as it defers the operability of the one-
year bar rule rings hollow.
Petitioner urges that the word "initiate" must be read in its plain, ordinary and technical meaning, for
it is contrary to reason, logic and common sense to reckon the beginning or start of the initiation
process from its end or conclusion.
Petitioner would have been correct had the subject constitutional provision been worded as "no
initiation process of the impeachment proceeding shall be commenced against the same official
more than once within a period of one year," in which case the reckoning would literally point to the
"start of the beginning." To immediately reckon the initiation to what petitioner herself concedes as
the start of the initiation process is to countenance a raw or half-baked initiation.
In re-affirming what the phrase "no impeachment proceedings shall be initiated" means, the Court
closely applied Francisco on what comprises or completes the initiation phase. Nothing can be more
unequivocal or well-defined than the elucidation of filing-and-referral in Francisco. Petitioner must
come to terms with her denial of the exact terms of Francisco.
Petitioner posits that referral is not an integral or indispensable part of the initiation of impeachment
proceedings, in case of a direct filing of a verified complaint or resolution of impeachment by at least
one-third of all the Members of the House.7
The facts of the case do not call for the resolution of this issue however. Suffice it to restate a
footnote in the Court’s Decision that in such case of "an abbreviated mode of initiation[, x x x] the
filing of the complaint and the taking of initial action [House directive to automatically transmit] are
merged into a single act."8 Moreover, it is highly impossible in such situation to coincidentally initiate
a second impeachment proceeding in the interregnum, if any, given the period between filing and
referral.
Petitioner’s discussion on the singular tense of the word "complaint" is too tenuous to require
consideration. The phraseology of the one-year bar rule does not concern itself with a numerical
limitation of impeachment complaints. If it were the intention of the framers of the Constitution to limit
the number of complaints, they would have easily so stated in clear and unequivocal language.
Petitioner further avers that the demonstrated concerns against reckoning the period from the filing
of the complaint are mere possibilities based on a general mistrust of the Filipino people and their
Representatives. To her, mere possibility of abuse is not a conclusive argument against the
existence of power nor a reason to invalidate a law.
The present case does not involve an invalidation of a legal provision on a grant of power. Since the
issue precisely involves upholding an express limitation of a power, it behooves the Court to look
into the rationale behind the constitutional proscription which guards against an explicit instance of
abuse of power. The Court’s duty entails an examination of the same possible scenarios considered
by the framers of the Constitution (i.e., incidents that may prove to disrupt the law-making function of
Congress and unduly or too frequently harass the impeachable officer), which are basically the same
grounds being invoked by petitioner to arrive at her desired conclusion.
Ironically, petitioner also offers the Court with various possibilities and vivid scenarios to grimly
illustrate her perceived oppression. And her own mistrust leads her to find inadequate the existence
of the pertinent constitutional provisions, and to entertain doubt on "the respect for and adherence of
the House and the respondent committee to the same."9
While petitioner concedes that there is a framework of safeguards for impeachable officers laid down
in Article XI of the Constitution, she downplays these layers of protection as illusory or inutile without
implementation and enforcement, as if these can be disregarded at will. 1avvphi1
Contrary to petitioner’s position that the Court left in the hands of the House the question as to when
an impeachment proceeding is initiated, the Court merely underscored the House’s conscious role in
the initiation of an impeachment proceeding. The Court added nothing new in pinpointing the
obvious reckoning point of initiation in light of the Francisco doctrine. Moreover, referral of an
impeachment complaint to the appropriate committee is already a power or function granted by the
Constitution to the House.
Petitioner goes on to argue that the House has no discretion on the matter of referral of an
impeachment complaint and that once filed, an impeachment complaint should, as a matter of
course, be referred to the Committee.
The House cannot indeed refuse to refer an impeachment complaint that is filed without a subsisting
bar. To refer an impeachment complaint within an existing one-year bar, however, is to commit the
apparently unconstitutional act of initiating a second impeachment proceeding, which may be struck
down under Rule 65 for grave abuse of discretion. It bears recalling that the one-year bar rule itself
is a constitutional limitation on the House’s power or function to refer a complaint.
Tackling on the House floor in its order of business a clearly constitutionally-prohibited second
impeachment complaint on the matter of whether to make the appropriate referral goes precisely into
the propriety of the referral and not on the merits of the complaint. The House needs only to
ascertain the existence or expiry of the constitutional ban of one year, without any regard to the
claims set forth in the complaint.
To petitioner, the intervening days from the filing of the complaint to whatever completes the
initiation of an impeachment proceeding is immaterial in mitigating the influx of successive
complaints since allowing multiple impeachment charges would result to the same harassment and
oppression. She particularly cites Constitutional Commissioner Ricardo Romulo’s concerns on the
amount of time spent if "multiple impeachment charges"10 are allowed. She fails, however, to
establish whether Commissioner Romulo limited or quantified his reference to not more than one
complaint or charge.
IN SUM, the Court did not deviate from, as it did apply the twin rule of filing and referral in the
present case, with Francisco as the guiding light. Petitioner refuses to see the other half of that light,
however.
II
Petitioner, meanwhile, reiterates her argument that promulgation means publication. She again cites
her thesis that Commonwealth Act No. 638, Article 2 of the Civil Code, and the two Tañada v.
Tuvera11 cases mandate that the Impeachment Rules be published for effectivity. Petitioner raises
nothing new to change the Court’s stance on the matter.
To reiterate, when the Constitution uses the word "promulgate," it does not necessarily mean to
publish in the Official Gazette or in a newspaper of general circulation. Promulgation, as used in
Section 3(8), Article XI of the Constitution, suitably takes the meaning of "to make known" as it
should be generally understood.
Petitioner continues to misapply Neri v. Senate Committee on Accountability of Public Officers and
Investigations12where the Court noted that the Constitution unmistakably requires the publication of
rules of procedure pertaining to inquiries in aid of legislation. If the Constitution warranted the
publication of Impeachment Rules, then it could have expediently indicated such requirement as it
did in the case of legislative inquiries.
The Constitution clearly gives the House a wide discretion on how to effectively promulgate its
Impeachment Rules. It is not for this Court to tell a co-equal branch of government on how to do so
when such prerogative is lodged exclusively with it.
Still, petitioner argues that the Court erred when it ruled that "to require publication of the House
Impeachment Rules would only delay the impeachment proceedings and cause the House of
Representatives to violate constitutionally mandated periods…" She insists that the Committee, after
publishing the Impeachment Rules, would still have a remainder of 45 days out of the 60-day period
within which to finish its business.
Petitioner is mistaken in her assertion. Note that the Court discussed the above-mentioned scenario
only "in cases where impeachment complaints are filed at the start of each Congress." Section 3,
Article XI of the Constitution contains relevant self-executing provisions which must be observed at
the start of the impeachment process, the promulgation of the Impeachment Rules notwithstanding.
Petitioner rehashes her allegations of bias and vindictiveness on the part of the Committee
Chairperson, Rep. Niel Tupas, Jr. Yet again, the supposed actuations of Rep. Tupas partake of a
keen performance of his avowed duties and responsibilities as the designated manager of that
phase in the impeachment proceeding. Besides, the actions taken by the Committee were never its
Chairperson’s sole act but rather the collective undertaking of its whole 55-person membership. The
Committee members even took to voting among themselves to validate what actions to take on the
motions presented to the Committee.
Indubitably, an impeachment is not a judicial proceeding, but rather a political exercise. Petitioner
thus cannot demand that the Court apply the stringent standards it asks of justices and judges when
it comes to inhibition from hearing cases. Incidentally, the Impeachment Rules do not provide for any
provision regarding the inhibition of the Committee chairperson or any member from participating in
an impeachment proceeding. The Committee may thus direct any question of partiality towards the
concerned member only. And any decision on the matter of inhibition must be respected, and it is
not for this Court to interfere with that decision.
Except for the constitutionally mandated periods, the pacing or alleged precipitate haste with which
the impeachment proceeding against petitioner is conducted is beyond the Court’s control. Again,
impeachment is a highly politicized intramural that gives the House ample leg room to operate,
subject only to the constitutionally imposed limits.13 And beyond these, the Court is duty-bound to
respect the discretion of a co-equal branch of government on matters which would effectively carry
out its constitutional mandate.
FINALLY, the Court has, in its February 15, 2011 Decision, already lifted its September 14, 2010
Status Quo Ante Order14 which, as said Order clearly stated, was "effective immediately and
continuing until further orders from this Court."15 Such "further order" points to that part of the
disposition in the February 15, 2011 Decision that directs the lifting of the Status Quo Ante Order.
The lifting of the Status Quo Ante Order is effective immediately, the filing of petitioner’s motion for
reconsideration notwithstanding, in the same way that the Status Quo Ante Order was made
effective immediately, respondents’ moves to reconsider or recall it notwithstanding. There is thus no
faulting the Committee if it decides to, as it did proceed with the impeachment proceeding after the
Court released its February 15, 2011 Decision.
WHEREFORE, the Motion for Reconsideration is DENIED for lack of merit.
SO ORDERED.
118

SUPREME COURT
Baguio City
EN BANC
G.R. No. 180050 April 12, 2011
RODOLFO G. NAVARRO, VICTOR F. BERNAL, and RENE O. MEDINA, Petitioners,

vs.
EXECUTIVE SECRETARY EDUARDO ERMITA, representing the President of the Philippines;
Senate of the Philippines, represented by the SENATE PRESIDENT; House of
Representatives, represented by the HOUSE SPEAKER; GOVERNOR ROBERT ACE S.
BARBERS, representing the mother province of Surigao del Norte; GOVERNOR GERALDINE
ECLEO VILLAROMAN, representing the new Province of Dinagat Islands,Respondents,
CONGRESSMAN FRANCISCO T. MATUGAS, HON. SOL T. MATUGAS, HON. ARTURO
CARLOS A. EGAY, JR., HON. SIMEON VICENTE G. CASTRENCE, HON. MAMERTO D.
GALANIDA, HON. MARGARITO M. LONGOS, and HON. CESAR M. BAGUNDOL, Intervenors.
RESOLUTION
NACHURA, J.:
For consideration of the Court is the Urgent Motion to Recall Entry of Judgment dated October 20,
2010 filed by Movant-Intervenors1 dated and filed on October 29, 2010, praying that the Court (a)
recall the entry of judgment, and (b) resolve their motion for reconsideration of the July 20, 2010
Resolution.
To provide a clear perspective of the instant motion, we present hereunder a brief background of the
relevant antecedents—
On October 2, 2006, the President of the Republic approved into law Republic Act (R.A.) No. 9355
(An Act Creating the Province of Dinagat Islands).2 On December 3, 2006, the Commission on
Elections (COMELEC) conducted the mandatory plebiscite for the ratification of the creation of the
province under the Local Government Code (LGC).3The plebiscite yielded 69,943 affirmative votes
and 63,502 negative votes.4 With the approval of the people from both the mother province of
Surigao del
Norte and the Province of Dinagat Islands (Dinagat), the President appointed the interim set of
provincial officials who took their oath of office on January 26, 2007. Later, during the May 14, 2007
synchronized elections, the Dinagatnons elected their new set of provincial officials who assumed
office on July 1, 2007.5
On November 10, 2006, petitioners Rodolfo G. Navarro, Victor F. Bernal and Rene O. Medina,
former political leaders of Surigao del Norte, filed before this Court a petition for certiorari and
prohibition (G.R. No. 175158) challenging the constitutionality of R.A. No. 9355.6 The Court
dismissed the petition on technical grounds. Their motion for reconsideration was also denied.7
Undaunted, petitioners, as taxpayers and residents of the Province of Surigao del Norte, filed
another petition for certiorari8 seeking to nullify R.A. No. 9355 for being unconstitutional. They
alleged that the creation of Dinagat as a new province, if uncorrected, would perpetuate an illegal act
of Congress, and would unjustly deprive the people of Surigao del Norte of a large chunk of the
provincial territory, Internal Revenue Allocation (IRA), and rich resources from the area. They
pointed out that when the law was passed, Dinagat had a land area of 802.12 square kilometers only
and a population of only 106,951, failing to comply with Section 10, Article X of the Constitution and
of Section 461 of the LGC, on both counts, viz.—
Constitution, Article X – Local Government
Section 10. No province, city, municipality, or barangay may be created, divided, merged, abolished,
or its boundary substantially altered, except in accordance with the criteria established in the local
government code and subject to the approval by a majority of the votes cast in a plebiscite in the
political units directly affected.
LGC, Title IV, Chapter I
Section 461. Requisites for Creation. – (a) A province may be created if it has an average annual
income, as certified by the Department of Finance, of not less than Twenty million pesos
(₱20,000,000.00) based on 1991 constant prices and either of the following requisites:
(i) a continuous territory of at least two thousand (2,000) square kilometers, as certified by
the Lands Management Bureau; or
(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified
by the National Statistics Office:
Provided, That, the creation thereof shall not reduce the land area, population, and income of
the original unit or units at the time of said creation to less than the minimum requirements
prescribed herein.
(b) The territory need not be contiguous if it comprises two (2) or more islands or is
separated by a chartered city or cities which do not contribute to the income of the province.
(c) The average annual income shall include the income accruing to the general fund,
exclusive of special funds, trust funds, transfers, and non-recurring income. (Emphasis
supplied.)
On February 10, 2010, the Court rendered its Decision9 granting the petition.10 The Decision
declared R.A. No. 9355 unconstitutional for failure to comply with the requirements on population
and land area in the creation of a province under the LGC. Consequently, it declared the
proclamation of Dinagat and the election of its officials as null and void. The Decision likewise
declared as null and void the provision on Article 9(2) of the Rules and Regulations Implementing
the LGC (LGC-IRR), stating that, "[t]he land area requirement shall not apply where the proposed
province is composed of one (1) or more islands" for being beyond the ambit of Article 461 of the
LGC, inasmuch as such exemption is not expressly provided in the law.11
The Republic, represented by the Office of the Solicitor General, and Dinagat filed their respective
motions for reconsideration of the Decision. In its Resolution12 dated May 12, 2010,13 the Court
denied the said motions.14
Unperturbed, the Republic and Dinagat both filed their respective motions for leave of court to admit
their second motions for reconsideration, accompanied by their second motions for reconsideration.
These motions were eventually "noted without action" by this Court in its June 29, 2010 Resolution.15
Meanwhile, the movants-intervenors filed on June 18, 2010 a Motion for Leave to Intervene and to
File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010.
They alleged that the COMELEC issued Resolution No. 8790, relevant to this case, which
provides—
RESOLUTION NO. 8790
WHEREAS, Dinagat Islands, consisting of seven (7) municipalities, were previously components of
the First Legislative District of the Province of Surigao del Norte. In December 2006 pursuant to
Republic Act No. 9355, the Province of Dinagat Island[s] was created and its creation was ratified on
02 December 2006 in the Plebiscite for this purpose;
WHEREAS, as a province, Dinagat Islands was, for purposes of the May 10, 2010 National and
Local Elections, allocated one (1) seat for Governor, one (1) seat for Vice Governor, one (1) for
congressional seat, and ten (10) Sangguniang Panlalawigan seats pursuant to Resolution No. 8670
dated 16 September 2009;
WHEREAS, the Supreme Court in G.R. No. 180050 entitled "Rodolfo Navarro, et al., vs. Executive
Secretary Eduardo Ermita, as representative of the President of the Philippines, et al." rendered a
Decision, dated 10 February 2010, declaring Republic Act No. 9355 unconstitutional for failure to
comply with the criteria for the creation of a province prescribed in Sec. 461 of the Local
Government Code in relation to Sec. 10, Art. X, of the 1987 Constitution;
WHEREAS, respondents intend to file Motion[s] for Reconsideration on the above decision of the
Supreme Court;
WHEREAS, the electoral data relative to the: (1) position for Member, House of Representatives
representing the lone congressional district of Dinagat Islands, (2) names of the candidates for the
aforementioned position, (3) position for Governor, Dinagat Islands, (4) names of the candidates for
the said position, (5) position of the Vice Governor, (6) the names of the candidates for the said
position, (7) positions for the ten (10) Sangguniang Panlalawigan Members and, [8] all the names of
the candidates for Sangguniang Panlalawigan Members, have already been configured into the
system and can no longer be revised within the remaining period before the elections on May 10,
2010.
NOW, THEREFORE, with the current system configuration, and depending on whether the Decision
of the Supreme Court in Navarro vs. Ermita is reconsidered or not, the Commission RESOLVED, as
it hereby RESOLVES, to declare that:
a. If the Decision is reversed, there will be no problem since the current system configuration
is in line with the reconsidered Decision, meaning that the Province of Dinagat Islands and
the Province of Surigao del Norte remain as two (2) separate provinces;
b. If the Decision becomes final and executory before the election, the Province of Dinagat
Islands will revert to its previous status as part of the First Legislative District, Surigao del
Norte.
But because of the current system configuration, the ballots for the Province of Dinagat
Islands will, for the positions of Member, House of Representatives, Governor, Vice
Governor and Members, Sangguniang Panlalawigan, bear only the names of the candidates
for the said positions.
Conversely, the ballots for the First Legislative District of Surigao del Norte, will, for the
position of Governor, Vice Governor, Member, House of Representatives, First District of
Surigao del Norte and Members, Sangguniang Panlalawigan, show only candidates for the
said position. Likewise, the whole Province of Surigao del Norte, will, for the position of
Governor and Vice Governor, bear only the names of the candidates for the said position[s].
Consequently, the voters of the Province of Dinagat Islands will not be able to vote for the
candidates of Members, Sangguniang Panlalawigan, and Member, House [of]
Representatives, First Legislative District, Surigao del Norte, and candidates for Governor
and Vice Governor for Surigao del Norte. Meanwhile, voters of the First Legislative District of
Surigao del Norte, will not be able to vote for Members, Sangguniang Panlalawigan and
Member, House of Representatives, Dinagat Islands. Also, the voters of the whole Province
of Surigao del Norte, will not be able to vote for the Governor and Vice Governor, Dinagat
Islands. Given this situation, the Commission will postpone the elections for Governor, Vice
Governor, Member, House of Representatives, First Legislative District, Surigao del Norte,
and Members, Sangguniang Panlalawigan, First Legislative District, Surigao del Norte,
because the election will result in [a] failure to elect, since, in actuality, there are no
candidates for Governor, Vice Governor, Members, Sangguniang Panlalawigan, First
Legislative District, and Member, House of Representatives, First Legislative District (with
Dinagat Islands) of Surigao del Norte.
c. If the Decision becomes final and executory after the election, the Province of Dinagat
Islands will revert to its previous status as part of the First Legislative District of Surigao del
Norte. The result of the election will have to be nullified for the same reasons given in Item
"b" above. A special election for Governor, Vice Governor, Member, House of
Representatives, First Legislative District of Surigao del Norte, and Members, Sangguniang
Panlalawigan, First District, Surigao del Norte (with Dinagat Islands) will have to be
conducted.
xxxx
SO ORDERED.
They further alleged that, because they are the duly elected officials of Surigao del Norte whose
positions will be affected by the nullification of the election results in the event that the May 12, 2010
Resolution is not reversed, they have a legal interest in the instant case and would be directly
affected by the declaration of nullity of R.A. No. 9355. Simply put, movants-intervenors’ election to
their respective offices would necessarily be annulled since Dinagat Islands will revert to its previous
status as part of the First Legislative District of Surigao del Norte and a special election will have to
be conducted for governor, vice governor, and House of Representatives member and Sangguniang
Panlalawigan member for the First Legislative District of Surigao del Norte. Moreover, as residents
of Surigao del Norte and as public servants representing the interests of their constituents, they have
a clear and strong interest in the outcome of this case inasmuch as the reversion of Dinagat as part
of the First Legislative District of Surigao del Norte will affect the latter province such that: (1) the
whole administrative set-up of the province will have to be restructured; (2) the services of many
employees will have to be terminated; (3) contracts will have to be invalidated; and (4) projects and
other developments will have to be discontinued. In addition, they claim that their rights cannot be
adequately pursued and protected in any other proceeding since their rights would be foreclosed if
the May 12, 2010 Resolution would attain finality.
In their motion for reconsideration of the May 12, 2010 Resolution, movants-intervenors raised three
(3) main arguments to challenge the above Resolution, namely: (1) that the passage of R.A. No.
9355 operates as an act of Congress amending Section 461 of the LGC; (2) that the exemption from
territorial contiguity, when the intended province consists of two or more islands, includes the
exemption from the application of the minimum land area requirement; and (3) that the Operative
Fact Doctrine is applicable in the instant case.
In the Resolution dated July 20, 2010,16 the Court denied the Motion for Leave to Intervene and to
File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010 on
the ground that the allowance or disallowance of a motion to intervene is addressed to the sound
discretion of the Court, and that the appropriate time to file the said motion was before and not after
the resolution of this case.
On September 7, 2010, movants-intervenors filed a Motion for Reconsideration of the July 20, 2010
Resolution, citing several rulings17 of the Court, allowing intervention as an exception to Section 2,
Rule 19 of the Rules of Court that it should be filed at any time before the rendition of judgment.
They alleged that, prior to the May 10, 2010 elections, their legal interest in this case was not yet
existent. They averred that prior to the May 10, 2010 elections, they were unaware of the
proceedings in this case. Even for the sake of argument that they had notice of the pendency of the
case, they pointed out that prior to the said elections, Sol T. Matugas was a simple resident of
Surigao del Norte, Arturo Carlos A. Egay, Jr. was a member of the Sangguniang Panlalawigan of the
Second District of Surigao del Norte, and Mamerto D. Galanida was the Municipal Mayor of Socorro,
Surigao del Norte, and that, pursuant to COMELEC Resolution No. 8790, it was only after they were
elected as Governor of Surigao del Norte, Vice Governor of Surigao del Norte and Sangguniang
Panlalawigan Member of the First District of Surigao del Norte, respectively, that they became
possessed with legal interest in this controversy.
On October 5, 2010, the Court issued an order for Entry of Judgment, stating that the decision in this
case had become final and executory on May 18, 2010. Hence, the above motion.
At the outset, it must be clarified that this Resolution delves solely on the instant Urgent Motion to
Recall Entry of Judgment of movants-intervenors, not on the second motions for reconsideration of
the original parties, and neither on Dinagat’s Urgent Omnibus Motion, which our
esteemed colleague, Mr. Justice Arturo D. Brion considers as Dinagat’s third motion for
reconsideration. Inasmuch as the motions for leave to admit their respective motions for
reconsideration of the May 12, 2010 Resolution and the aforesaid motions for reconsideration were
already noted without action by the Court, there is no reason to treat Dinagat’s Urgent Omnibus
Motion differently. In relation to this, the Urgent Motion to Recall Entry of Judgment of movants-
intervenors could not be considered as a second motion for reconsideration to warrant the
application of Section 3, Rule 15 of the Internal Rules of the Supreme Court.18 It should be noted that
this motion prays for the recall of the entry of judgment and for the resolution of their motion for
reconsideration of the July 20, 2010 Resolution which remained unresolved. The denial of their
motion for leave to intervene and to admit motion for reconsideration of the May 12, 2010 Resolution
did not rule on the merits of the motion for reconsideration of the May 12, 2010 Resolution, but only
on the timeliness of the intended intervention. Their motion for reconsideration of this denial
elaborated on movants-intervenors’ interest in this case which existed only after judgment had been
rendered. As such, their motion for intervention and their motion for reconsideration of the May 12,
2010 Resolution merely stand as an initial reconsideration of the said resolution.
With due deference to Mr. Justice Brion, there appears nothing in the records to support the claim
that this was a ploy of respondents’ legal tactician to reopen the case despite an entry of judgment.
To be sure, it is actually COMELEC Resolution No. 8790 that set this controversy into motion anew.
To reiterate, the pertinent portion of the Resolution reads:
c. If the Decision becomes final and executory after the election, the Province of Dinagat Islands will
revert to its previous status as part of the First Legislative District of Surigao del Norte. The result of
the election will have to be nullified for the same reasons given in Item "b" above. A special election
for Governor, Vice Governor, Member, House of Representatives, First Legislative District of Surigao
del Norte, and Members, Sangguniang Panlalawigan, First District, Surigao del Norte (with Dinagat
Islands) will have to be conducted. (Emphasis supplied.)
Indeed, COMELEC Resolution No. 8790 spawned the peculiar circumstance of proper party interest
for movants-intervenors only with the specter of the decision in the main case becoming final and
executory. More importantly, if the intervention be not entertained, the movants-intervenors would be
left with no other remedy as regards to the impending nullification of their election to their respective
positions. Thus, to the Court’s mind, there is an imperative to grant the Urgent Motion to Recall Entry
of Judgment by movants-intervenors.
It should be remembered that this case was initiated upon the filing of the petition for certiorari way
back on October 30, 2007. At that time, movants-intervenors had nothing at stake in the outcome of
this case. While it may be argued that their interest in this case should have commenced upon the
issuance of COMELEC Resolution No. 8790, it is obvious that their interest in this case then was
more imaginary than real. This is because COMELEC Resolution No. 8790 provides that should the
decision in this case attain finality prior to the May 10, 2010 elections, the election of the local
government officials stated therein would only have to be postponed. Given such a scenario,
movants-intervenors would not have suffered any injury or adverse effect with respect to the
reversion of Dinagat as part of Surigao del Norte since they would simply have remained candidates
for the respective positions they have vied for and to which they have been elected.
For a party to have locus standi, one must allege "such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult constitutional questions." Because
constitutional cases are often public actions in which the relief sought is likely to affect other
persons, a preliminary question frequently arises as to this interest in the constitutional question
raised.19
It cannot be denied that movants-intervenors will suffer direct injury in the event their Urgent Motion
to Recall Entry of Judgment dated October 29, 2010 is denied and their Motion for Leave to
Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated
May 12, 2010 is denied with finality. Indeed, they have sufficiently shown that they have a personal
and substantial interest in the case, such that if the May 12, 2010 Resolution be not reconsidered,
their election to their respective positions during the May 10, 2010 polls and its concomitant effects
would all be nullified and be put to naught. Given their unique circumstances, movants-intervenors
should not be left without any remedy before this Court simply because their interest in this case
became manifest only after the case had already been decided. The consequences of such a
decision would definitely work to their disadvantage, nay, to their utmost prejudice, without even
them being parties to the dispute. Such decision would also violate their right to due process, a right
that cries out for protection. Thus, it is imperative that the movants-intervenors be heard on the
merits of their cause. We are not only a court of law, but also of justice and equity, such that our
position and the dire repercussions of this controversy should be weighed on the scales of justice,
rather than dismissed on account of mootness.
courts from resolving a case. Courts will decide cases, otherwise moot and academic, if: (1) there is
a grave violation of the Constitution; (2) there is an exceptional character of the situation and the
paramount public interest is involved; (3) the constitutional issue raised requires formation of
controlling principles to guide the bench, the bar, and the public; and (4) the case is capable of
repetition yet evading review.20 The second exception attends this case.
This Court had taken a liberal attitude in the case of David v. Macapagal-Arroyo,21 where
technicalities of procedure on locus standi were brushed aside, because the constitutional issues
raised were of paramount public interest or of transcendental importance deserving the attention of
the Court. Along parallel lines, the motion for intervention should be given due course since
movants-intervenors have shown their substantial legal interest in the outcome of this case, even
much more than petitioners themselves, and because of the novelty, gravity, and weight of the
issues involved.
Undeniably, the motion for intervention and the motion for reconsideration of the May 12, 2010
Resolution of movants-intervenors is akin to the right to appeal the judgment of a case, which,
though merely a statutory right that must comply with the requirements of the rules, is an essential
part of our judicial system, such that courts should proceed with caution not to deprive a party of the
right to question the judgment and its effects, and ensure that every party-litigant, including those
who would be directly affected, would have the amplest opportunity for the proper and just
disposition of their cause, freed from the constraints of technicalities.22
Verily, the Court had, on several occasions, sanctioned the recall entries of judgment in light of
attendant extraordinary circumstances.23 The power to suspend or even disregard rules of procedure
can be so pervasive and compelling as to alter even that which this Court itself had already declared
final.24 In this case, the compelling concern is not only to afford the movants-intervenors the right to
be heard since they would be adversely affected by the judgment in this case despite not being
original parties thereto, but also to arrive at the correct interpretation of the provisions of the LGC
with respect to the creation of local government units. In this manner, the thrust of the Constitution
with respect to local autonomy and of the LGC with respect to decentralization and the attainment of
national goals, as hereafter elucidated, will effectively be realized.
On the merits of the motion for intervention, after taking a long and intent look, the Court finds that
the first and second arguments raised by movants-intervenors deserve affirmative consideration.
It must be borne in mind that the central policy considerations in the creation of local government
units are economic viability, efficient administration, and capability to deliver basic services to their
constituents. The criteria prescribed by the LGC, i.e., income, population and land area, are all
designed to accomplish these results. In this light, Congress, in its collective wisdom, has debated
on the relative weight of each of these three criteria, placing emphasis on which of them should
enjoy preferential consideration.
Without doubt, the primordial criterion in the creation of local government units, particularly of a
province, is economic viability. This is the clear intent of the framers of the LGC. In this connection,
the following excerpts from congressional debates are quoted hereunder—
HON. ALFELOR. Income is mandatory. We can even have this doubled because we thought…
CHAIRMAN CUENCO. In other words, the primordial consideration here is the economic viability of
the new local government unit, the new province?
xxxx
HON. LAGUDA. The reason why we are willing to increase the income, double than the House
version, because we also believe that economic viability is really a minimum. Land area and
population are functions really of the viability of the area, because you have an income level which
would be the trigger point for economic development, population will naturally increase because
there will be an immigration. However, if you disallow the particular area from being converted into a
province because of the population problems in the beginning, it will never be able to reach the point
where it could become a province simply because it will never have the economic take off for it to
trigger off that economic development.
Now, we’re saying that maybe Fourteen Million Pesos is a floor area where it could pay for overhead
and provide a minimum of basic services to the population. Over and above that, the provincial
officials should be able to trigger off economic development which will attract immigration, which will
attract new investments from the private sector. This is now the concern of the local officials. But if
we are going to tie the hands of the proponents, simply by telling them, "Sorry, you are now at 150
thousand or 200 thousand," you will never be able to become a province because nobody wants to
go to your place. Why? Because you never have any reason for economic viability.
xxxx
CHAIRMAN PIMENTEL. Okay, what about land area?
HON. LUMAUIG. 1,500 square kilometers
HON. ANGARA. Walang problema ‘yon, in fact that’s not very critical, ‘yong land area because…
CHAIRMAN PIMENTEL. Okay, ya, our, the Senate version is 3.5, 3,500 square meters, ah, square
kilometers.
HON. LAGUDA. Ne, Ne. A province is constituted for the purpose of administrative efficiency and
delivery of basic services.
CHAIRMAN PIMENTEL. Right.
HON. LAGUDA. Actually, when you come down to it, when government was instituted, there is only
one central government and then everybody falls under that. But it was later on subdivided into
provinces for purposes of administrative efficiency.
CHAIRMAN PIMENTEL. Okay.
HON. LAGUDA. Now, what we’re seeing now is that the administrative efficiency is no longer there
precisely because the land areas that we are giving to our governors is so wide that no one man can
possibly administer all of the complex machineries that are needed.
Secondly, when you say "delivery of basic services," as pointed out by Cong. Alfelor, there are
sections of the province which have never been visited by public officials, precisely because they
don’t have the time nor the energy anymore to do that because it’s so wide. Now, by compressing
the land area and by reducing the population requirement, we are, in effect, trying to follow the basic
policy of why we are creating provinces, which is to deliver basic services and to make it more
efficient in administration.
CHAIRMAN PIMENTEL. Yeah, that’s correct, but on the assumption that the province is able to do it
without being a burden to the national government. That’s the assumption.
HON. LAGUDA. That’s why we’re going into the minimum income level. As we said, if we go on a
minimum income level, then we say, "this is the trigger point at which this administration can take
place."25
Also worthy of note are the requisites in the creation of a barangay, a municipality, a city, and a
province as provided both in the LGC and the LGC-IRR, viz.—
For a Barangay:
LGC: SEC. 386. Requisites for Creation. – (a) A barangay may be created out of a contiguous
territory which has a population of at least two thousand (2,000) inhabitants as certified by the
National Statistics Office except in cities and municipalities within Metro Manila and other
metropolitan political subdivisions or in highly urbanized cities where such territory shall have a
certified population of at least five thousand (5,000) inhabitants: Provided, That the creation thereof
shall not reduce the population of the original barangay or barangays to less than the minimum
requirement prescribed herein.
To enhance the delivery of basic services in the indigenous cultural communities, barangays
may be created in such communities by an Act of Congress, notwithstanding the above
requirement.
(b) The territorial jurisdiction of the new barangay shall be properly identified by metes and
bounds or by more or less permanent natural boundaries. The territory need not be
contiguous if it comprises two (2) or more islands.
(c) The governor or city mayor may prepare a consolidation plan for barangays, based on the
criteria prescribed in this Section, within his territorial jurisdiction. The plan shall be submitted
to the sangguniang panlalawigan or sangguniang panlungsod concerned for appropriate
action. In the case of municipalities within the Metropolitan Manila area and other
metropolitan political subdivisions, the barangay consolidation plan can be prepared and
approved by the sangguniang bayan concerned.
LGC-IRR: ARTICLE 14. Barangays. – (a) Creation of barangays by the sangguniang panlalawigan
shall require prior recommendation of the sangguniang bayan.
(b) New barangays in the municipalities within MMA shall be created only by Act of
Congress, subject to the limitations and requirements prescribed in this Article.
(c) Notwithstanding the population requirement, a barangay may be created in the

indigenous cultural communities by Act of Congress upon recommendation of the LGU or
LGUs where the cultural community is located.
(d) A barangay shall not be created unless the following requisites are present:
(1) Population – which shall not be less than two thousand (2,000) inhabitants,
except in municipalities and cities within MMA and other metropolitan political
subdivisions as may be created by law, or in highly-urbanized cities where such
territory shall have a population of at least five thousand (5,000) inhabitants, as
certified by the NSO. The creation of a barangay shall not reduce the population of
the original barangay or barangays to less than the prescribed minimum/
(2) Land Area – which must be contiguous, unless comprised by two (2) or more
islands. The territorial jurisdiction of a barangay sought to be created shall be
properly identified by metes and bounds or by more or less permanent natural
boundaries.
Municipality:
LGC: SEC. 442. Requisites for Creation. – (a) A municipality may be created if it has an average
annual income, as certified by the provincial treasurer, or at least Two million five hundred thousand
pesos (P2,500,000.00) for the last two (2) consecutive years based on the 1991 constant prices; a
population of at least twenty-five thousand (25,000) inhabitants as certified by the National Statistics
Office; and a contiguous territory of at least fifty (50) square kilometers as certified by the Lands
Management Bureau: Provided, That the creation thereof shall not reduce the land area,
population or income of the original municipality or municipalities at the time of said creation
to less than the minimum requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created municipality shall be properly identified by

metes and bounds. The requirement on land area shall not apply where the municipality
proposed to be created is composed of one (1) or more islands. The territory need not be
contiguous if it comprises two (2) or more islands.
(c) The average annual income shall include the income accruing to the general fund of the
municipality concerned, exclusive of special funds, transfers and non-recurring income.
(d) Municipalities existing as of the date of effectivity of this Code shall continue to exist and
operate as such. Existing municipal districts organized pursuant to presidential issuances or
executive orders and which have their respective set of elective municipal officials holding
office at the time of the effectivity of this Code shall henceforth be considered regular
municipalities.
LGC-IRR: ARTICLE 13. Municipalities. – (a) Requisites for Creation – A municipality shall not be
created unless the following requisites are present:
(i) Income – An average annual income of not less than Two Million Five Hundred Thousand
Pesos (₱2,500,000.00), for the immediately preceding two (2) consecutive years based on
1991 constant prices, as certified by the provincial treasurer. The average annual income
shall include the income accruing to the general fund, exclusive of special funds, special
accounts, transfers, and nonrecurring income;
(ii) Population – which shall not be less than twenty five thousand (25,000) inhabitants, as
certified by NSO; and
(iii) Land area – which must be contiguous with an area of at least fifty (50) square
kilometers, as certified by LMB. The territory need not be contiguous if it comprises two (2) or
more islands. The requirement on land area shall not apply where the proposed municipality
is composed of one (1) or more islands. The territorial jurisdiction of a municipality sought to
be created shall be properly identified by metes and bounds.
The creation of a new municipality shall not reduce the land area, population, and income of
the original LGU or LGUs at the time of said creation to less than the prescribed minimum
requirements. All expenses incidental to the creation shall be borne by the petitioners.
City:
LGC: SEC. 450. Requisites for Creation. – (a) A municipality or a cluster of barangays may be
converted into a component city if it has an average annual income, as certified by the Department
of Finance, of at least Twenty million pesos (₱20,000,000.00) for the last two (2) consecutive years
based on 1991 constant prices, and if it has either of the following requisities:
(i) a contiguous territory of at least one hundred (100) square kilometers, as certified
by the Lands Management Bureau; or,
(ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as
certified by the National Statistics Office: Provided, That, the creation thereof shall
not reduce the land area, population, and income of the original unit or units at the
time of said creation to less than the minimum requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and
bounds. The requirement on land area shall not apply where the city proposed to be created
is composed of one (1) or more islands. The territory need not be contiguous if it comprises
two (2) or more islands.
exclusive of special funds, transfers, and non-recurring income.
LGC-IRR: ARTICLE 11. Cities. – (a) Requisites for creation – A city shall not be created unless the
following requisites on income and either population or land area are present:
(1) Income – An average annual income of not less than Twenty Million Pesos
(₱20,000,000.00), for the immediately preceding two (2) consecutive years based on 1991
constant prices, as certified by DOF. The average annual income shall include the income
accruing to the general fund, exclusive of special funds, special accounts, transfers, and
nonrecurring income; and
(2) Population or land area – Population which shall not be less than one hundred fifty
thousand (150,000) inhabitants, as certified by the NSO; or land area which must be
contiguous with an area of at least one hundred (100) square kilometers, as certified by
LMB. The territory need not be contiguous if it comprises two (2) or more islands or is
The land area requirement shall not apply where the proposed city is composed of one (1) or
more islands. The territorial jurisdiction of a city sought to be created shall be properly
identified by metes and bounds.
The creation of a new city shall not reduce the land area, population, and income of the original LGU
or LGUs at the time of said creation to less than the prescribed minimum requirements. All expenses
incidental to the creation shall be borne by the petitioners.
Provinces:
LGC: SEC. 461. Requisites for Creation. – (a) A province may be created if it has an average annual
income, as certified by the Department of Finance, of not less than Twenty million pesos
(₱20,000,000.00) based on 1991 prices and either of the following requisites:
(i) a contiguous territory of at least two thousand (2,000) square kilometers, as

certified by the Lands Management Bureau; or,
(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as
certified by the National Statistics Office:
Provided, That the creation thereof shall not reduce the land area, population, and income of
the original unit or units at the time of said creation to less than the minimum requirements
prescribed herein.
(b) The territory need not be contiguous if it comprises two (2) or more islands or is
exclusive of special funds, trust funds, transfers, and non-recurring income.
LGC-IRR: ARTICLE 9. Provinces. – (a) Requisites for creation – A province shall not be created
unless the following requisites on income and either population or land area are present:
(1) Income – An average annual income of not less than Twenty Million pesos
(₱20,000,000.00) for the immediately preceding two (2) consecutive years based on 1991
constant prices, as certified by DOF. The average annual income shall include the income
accruing to the general fund, exclusive of special funds, special accounts, transfers, and
non-recurring income; and
(2) Population or land area – Population which shall not be less than two hundred fifty
thousand (250,000) inhabitants, as certified by NSO; or land area which must be contiguous
with an area of at least two thousand (2,000) square kilometers, as certified by LMB. The
territory need not be contiguous if it comprises two (2) or more islands or is separated by a
chartered city or cities which do not contribute to the income of the province. The land area
requirement shall not apply where the proposed province is composed of one (1) or more
islands. The territorial jurisdiction of a province sought to be created shall be properly
identified by metes and bounds.
The creation of a new province shall not reduce the land area, population, and income of the original
LGU or LGUs at the time of said creation to less than the prescribed minimum requirements. All
expenses incidental to the creation shall be borne by the petitioners. (Emphasis supplied.)
It bears scrupulous notice that from the above cited provisions, with respect to the creation of
barangays, land area is not a requisite indicator of viability. However, with respect to the creation of
municipalities, component cities, and provinces, the three (3) indicators of viability and projected
capacity to provide services, i.e., income, population, and land area, are provided for.
But it must be pointed out that when the local government unit to be created consists of one (1) or
more islands, it is exempt from the land area requirement as expressly provided in Section 442 and
Section 450 of the LGC if the local government unit to be created is a municipality or a component
city, respectively. This exemption is absent in the enumeration of the requisites for the creation of a
province under Section 461 of the LGC, although it is expressly stated under Article 9(2) of the LGC-
IRR.
There appears neither rhyme nor reason why this exemption should apply to cities and
municipalities, but not to provinces. In fact, considering the physical configuration of the Philippine
archipelago, there is a greater likelihood that islands or group of islands would form part of the land
area of a newly-created province than in most cities or municipalities. It is, therefore, logical to infer
that the genuine legislative policy decision was expressed in Section 442 (for municipalities) and
Section 450 (for component cities) of the LGC, but was inadvertently omitted in Section 461 (for
provinces). Thus, when the exemption was expressly provided in Article 9(2) of the LGC-IRR, the
inclusion was intended to correct the congressional oversight in Section 461 of the LGC – and to
reflect the true legislative intent. It would, then, be in order for the Court to uphold the validity of
Article 9(2) of the LGC-IRR.
This interpretation finds merit when we consider the basic policy considerations underpinning the
principle of local autonomy.
Section 2 of the LGC, of which paragraph (a) is pertinent to this case, provides—
Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the territorial and
political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them
to attain their fullest development as self-reliant communities and make them more effective partners
in the attainment of national goals. Toward this end, the State shall provide for a more responsive
and accountable local government structure instituted through a system of decentralization whereby
local government units shall be given more powers, authority, responsibilities, and resources. The
process of decentralization shall proceed from the national government to the local government
units.
This declaration of policy is echoed in Article 3(a) of the LGC-IRR26 and in the Whereas clauses of
Administrative Order No. 270,27 which read—
WHEREAS, Section 25, Article II of the Constitution mandates that the State shall ensure the
autonomy of local governments;
WHEREAS, pursuant to this declared policy, Republic Act No. 7160, otherwise known as the Local
Government Code of 1991, affirms, among others, that the territorial and political subdivisions of the
State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest
development as self-reliant communities and make them more effective partners in the attainment of
national goals;
WHEREAS, Section 533 of the Local Government Code of 1991 requires the President to convene
an Oversight Committee for the purpose of formulating and issuing the appropriate rules and
regulations necessary for the efficient and effective implementation of all the provisions of the said
Code; and
WHEREAS, the Oversight Committee, after due deliberations and consultations with all the
concerned sectors of society and consideration of the operative principles of local autonomy as
provided in the Local Government Code of 1991, has completed the formulation of the implementing
rules and regulations; x x x
Consistent with the declared policy to provide local government units genuine and meaningful local
autonomy, contiguity and minimum land area requirements for prospective local government units
should be liberally construed in order to achieve the desired results. The strict interpretation adopted
by the February 10, 2010 Decision could prove to be counter-productive, if not outright absurd,
awkward, and impractical. Picture an intended province that consists of several municipalities and
component cities which, in themselves, also consist of islands. The component cities and
municipalities which consist of islands are exempt from the minimum land area requirement,
pursuant to Sections 450 and 442, respectively, of the LGC. Yet, the province would be made to
comply with the minimum land area criterion of 2,000 square kilometers, even if it consists of several
islands. This would mean that Congress has opted to assign a distinctive preference to create a
province with contiguous land area over one composed of islands — and negate the greater
imperative of development of self-reliant communities, rural progress, and the delivery of basic
services to the constituency. This preferential option would prove more difficult and burdensome if
the 2,000-square-kilometer territory of a province is scattered because the islands are separated by
bodies of water, as compared to one with a contiguous land mass.
Moreover, such a very restrictive construction could trench on the equal protection clause, as it
actually defeats the purpose of local autonomy and decentralization as enshrined in the Constitution.
Hence, the land area requirement should be read together with territorial contiguity.
Another look at the transcript of the deliberations of Congress should prove enlightening:
CHAIRMAN ALFELOR. Can we give time to Congressman Chiongbian,28 with respect to his…
CHAIRMAN LINA. Okay.

HON. CHIONGBIAN. At the outset, Chairman Lina, we would like to apprise the distinguished
Senator about the action taken by the House, on House Bill No. 7166. This was passed about two
years ago and has been pending in the Senate for consideration. This is a bill that I am not the only
one involved, including our distinguished Chairman here. But then we did want to sponsor the bill,
being the Chairman then of the Local Government.
So, I took the cudgels for the rest of the Congressmen, who were more or less interested in the
creation of the new provinces, because of the vastness of the areas that were involved.
At any rate, this bill was passed by the House unanimously without any objection. And as I have said
a while ago, that this has been pending in the Senate for the last two years. And Sen. Pimentel
himself was just in South Cotabato and he delivered a speech that he will support this bill, and he
says, that he will incorporate this in the Local Government Code, which I have in writing from him. I
showed you the letter that he wrote, and naturally, we in the House got hold of the Senate version. It
becomes an impossibility for the whole Philippines to create a new province, and that is quite the
concern of the respective Congressmen.
Now, insofar as the constitutional provision is concerned, there is nothing to stop the mother
province from voting against the bill, if a province is going to be created.
So, we are talking about devolution of powers here. Why is the province not willing to create another
province, when it can be justified. Even Speaker Mitra says, what will happen to Palawan? We won’t
have one million people there, and if you look at Palawan, there will be about three or four provinces
that will comprise that island. So, the development will be hampered.
Now, I would like to read into the record the letter of Sen. Pimentel, dated November 2, 1989. This
was practically about a year after 7166 was approved by the House, House Bill 7166.
On November 2, 1989, the Senator wrote me:
"Dear Congressman Chiongbian:
We are in receipt of your letter of 17 October. Please be informed that your House No. 7166 was
incorporated in the proposed Local Government Code, Senate Bill No. 155, which is pending for
second reading.
Thank you and warm regards.
Very truly yours,"
That is the very context of the letter of the Senator, and we are quite surprised that the Senate has
adopted another position.
So, we would like – because this is a unanimously approved bill in the House, that’s the only bill that
is involving the present Local Government Code that we are practically considering; and this will be
a slap on the House, if we do not approve it, as approved by the lower House. This can be [an]
irritant in the approval of the Conference Committee Report. And I just want to manifest that insofar
as the creation of the province, not only in my province, but the other provinces. That the mother
province will participate in the plebiscite, they can defeat the province, let’s say, on the basis of the
result, the province cannot be created if they lose in the plebiscite, and I don’t see why, we should
put this stringent conditions to the private people of the devolution that they are seeking.
So, Mr. Senator, I think we should consider the situation seriously, because, this is an approved
version of the House, and I will not be the one to raise up and question the Conference Committee
Report, but the rest of the House that are interested in this bill. And they have been approaching the
Speaker about this. So, the Speaker reminded me to make sure that it takes the cudgel of the House
approved version.
So, that’s all what I can say, Mr. Senator, and I don’t believe that it is not, because it’s the wish of the
House, but because the mother province will participate anyhow, you vote them down; and that is
provided for in the Constitution. As a matter of fact, I have seen the amendment with regards to the
creation of the city to be urbanized, subject to the plebiscite. And why should we not allow that to
happen in the provinces! In other words, we don’t want the people who wants to create a new
province, as if they are left in the devolution of powers, when they feel that they are far away from
civilization.
Now, I am not talking about other provinces, because I am unaware, not aware of their situation. But
the province of South Cotabato has a very unique geographical territorial conglomerations. One side
is in the other side of the Bay, of Sarangani Bay. The capital town is in the North; while these other
municipalities are in the East and in the West. And if they have to travel from the last town in the
eastern part of the province, it is about one hundred forty kilometers to the capital town. And from
the West side, it is the same distance. And from the North side, it is about one hundred kilometers.
So that is the problem there. And besides, they have enough resources and I feel that, not because I
am interested in the province, I am after their welfare in the future. Who am I to dictate on those
people? I have no interest but then I am looking at the future development of these areas.
As a matter of fact, if I am in politics, it’s incidental; I do not need to be there, but I can foresee what
the creation of a new province will bring to these people. It will bring them prosperity; it will bring
them more income, and it will encourage even foreign investors. Like the PAP now, they are
concentrating in South Cotabato, especially in the City of
General Santos and the neighboring municipalities, and they are quite interested and even the AID
people are asking me, "What is holding the creation of a new province when practically you need it?"
It’s not 20 or 30 kilometers from the capital town; it’s about 140 kilometers. And imagine those
people have to travel that far and our road is not like Metropolitan Manila. That is as far as from here
to Tarlac. And there are municipalities there that are just one municipality is bigger than the province
of La Union. They have the income. Of course, they don’t have the population because that’s a part
of the land of promise and people from Luzon are migrating everyday because they feel that there
are more opportunities here.
So, by creating the new provinces, not only in my case, in the other cases, it will enhance the
development of the Philippines, not because I am interested in my province. Well, as far as I am
concerned, you know, I am in the twilight years of my life to serve and I would like to serve my
people well. No personal or political interest here. I hope the distinguished Chairman of the
Committee will appreciate the House Bill 7166, which the House has already approved because we
don’t want them to throw the Conference Committee Report after we have worked that the house Bill
has been, you know, drawn over board and not even considered by the Senate. And on top of that,
we are considering a bill that has not yet been passed. So I hope the Senator will take that into
account.
Thank you for giving me this time to explain.
CHAIRMAN LINA. Thank you very much, Congressman James. We will look into the legislative
history of the Senate version on this matter of creation of provinces. I am sure there was an
amendment. As I said, I’ll look into it. Maybe the House version was incorporated in toto, but maybe
during the discussion, their amendments were introduced and, therefore, Senator Pimentel could not
hold on to the original version and as a result new criteria were introduced.
But because of the manifestation that you just made, we will definitely, when we reach a book, Title
IV, on the matter of provinces, we will look at it sympathetically from your end so that the objective
that you want [to] achieve can be realized. So we will look at it with sympathy. We will review our
position on the matter, how we arrived at the Senate version and we will adopt an open mind
definitely when we come into it.
CHAIRMAN ALFELOR. Kanino ‘yan?
CHAIRMAN LINA. Book III.
CHAIRMAN ALFELOR. Title?
CHAIRMAN LINA. Title IV.
CHAIRMAN ALFELOR. I have been pondering on the case of James, especially on economic
stimulation of a certain area. Like our case, because I put myself on our province, our province is
quite very big. It’s composed of four (4) congressional districts and I feel it should be five now. But
during the Batasan time, four of us talked and conversed proposing to divide the province into two.
There are areas then, when since time immemorial, very few governors ever tread on those areas.
That is, maybe you’re acquainted with the Bondoc Peninsula of Quezon, fronting that is Ragay Gulf.
From Ragay there is a long stretch of coastal area. From Albay going to Ragay, very few governors
ever tread [there] before, even today. That area now is infested with NPA. That is the area of
Congressman Andaya.
Now, we thought that in order to stimulate growth, maybe provincial aid can be extended to these
areas. With a big or a large area of a province, a certain administrator or provincial governor
definitely will have no sufficient time. For me, if we really would like to stimulate growth, I believe that
an area where there is physical or geographical impossibilities, where administrators can penetrate, I
think we have to create certain provisions in the law where maybe we can treat it with special
considerations.
Now, we went over the graduate scale of the Philipppine Local Government Data as far as provinces
are concerned. It is very surprising that there are provinces here which only composed of six
municipalities, eight municipalities, seven municipalities. Like in Cagayan, Tuguegarao, there are six
municipalities. Ah, excuse me, Batanes.
CHAIRMAN LINA. Will you look at the case of --- how many municipalities are there in Batanes
province?
CHAIRMAN ALFELOR. Batanes is only six.
CHAIRMAN LINA. Six town. Siquijor?
CHAIRMAN ALFELOR. Siquijor. It is region?
CHAIRMAN LINA. Seven.

CHAIRMAN ALFELOR.L Seven. Anim.
CHAIRMAN LINA. Six also.
CHAIRMAN ALFELOR. Six also.
CHAIRMAN LINA. It seems with a minimum number of towns?
CHAIRMAN ALFELOR. The population of Siquijor is only 70 thousand, not even one congressional
district. But tumaas in 1982. Camiguin, that is Region 9. Wala dito. Nagtataka nga ako ngayon.
CHAIRMAN LINA. Camiguin, Camiguin.
CHAIRMAN ALFELOR. That is region? Camiguin has five municipalities, with a population of 63
thousand. But we do not hold it against the province because maybe that’s one stimulant where
growth can grow, can start. The land area for Camiguin is only 229 square kilometers. So if we hard
fast on requirements of, we set a minimum for every province, palagay ko we just leave it to
legislation, eh. Anyway, the Constitution is very clear that in case we would like to divide, we submit
it to a plebiscite. Pabayaan natin ang tao. Kung maglalagay tayo ng set ng minimum, tila yata
mahihirapan tayo, eh. Because what is really the thrust of the Local Government Code? Growth. To
devolve powers in order for the community to have its own idea how they will stimulate growth in
their respective areas.
So, in every geographical condition, mayroon sariling id[i]osyncracies eh, we cannot make a
generalization.
CHAIRMAN LINA. Will the creation of a province, carved out of the existing province because of
some geographical id[i]osyncracies, as you called it, stimulate the economic growth in the area or
will substantial aid coming from the national government to a particular area, say, to a municipality,
achieve the same purpose?
CHAIRMAN ALFELOR. Ano tayo dito sa budget. All right, here is a province. Usually, tinitingnan
lang yun, provision eh, hindi na yung composition eh. You are entitled to, say, 20% of the area.
There’s a province of Camarines Sur which have the same share with that of Camiguin and Siquijor,
but Camiguin is composed only of five municipalities; in Siquijor, it’s composed of six, but the share
of Siquijor is the same share with that of the province of Camarines Sur, having a bigger area, very
much bigger.
That is the budget in process.
CHAIRMAN LINA. Well, as I said, we are going to consider this very seriously and even with
sympathy because of the explanation given and we will study this very carefully.29
The matters raised during the said Bicameral Conference Committee meeting clearly show the
manifest intention of Congress to promote development in the previously underdeveloped and
uninhabited land areas by allowing them to directly share in the allocation of funds under the national
budget. It should be remembered that, under Sections 284 and 285
of the LGC, the IRA is given back to local governments, and the sharing is based on land area,
population, and local revenue.30
Elementary is the principle that, if the literal application of the law results in absurdity, impossibility,
or injustice, then courts may resort to extrinsic aids of statutory construction, such as the legislative
history of the law,31 or may consider the implementing rules and regulations and pertinent executive
issuances in the nature of executive and/or legislative construction. Pursuant to this principle, Article
9(2) of the LGC-IRR should be deemed incorporated in the basic law, the LGC.
It is well to remember that the LGC-IRR was formulated by the Oversight Committee consisting of
members of both the Executive and Legislative departments, pursuant to Section 53332 of the LGC.
As Section 533 provides, the Oversight Committee shall formulate and issue the appropriate rules
and regulations necessary for the efficient and effective implementation of any and all provisions of
this Code, thereby ensuring compliance with the principles of local autonomy as defined under the
Constitution. It was also mandated by the Constitution that a local government code shall be enacted
by Congress, to wit—
Section 3. The Congress shall enact a local government code which shall provide for a more
responsive and accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the
different local government units their powers, responsibilities, and resources, and provide for the
qualifications, election, appointment and removal, term, salaries, powers and functions and duties of
local officials, and all other matters relating to the organization and operation of the local units.
(Emphasis supplied.)
These State policies are the very reason for the enactment of the LGC, with the view to attain
decentralization and countryside development. Congress saw that the old LGC, Batas Pambansa
Bilang 337, had to be replaced with a new law, now the LGC of 1991, which is more dynamic and
cognizant of the needs of the Philippines as an archipelagic country. This accounts for the
exemption from the land area requirement of local government units composed of one or more
islands, as expressly stated under Sections 442 and 450 of the LGC, with respect to the creation of
municipalities and cities, but inadvertently omitted from Section 461 with respect to the creation of
provinces. Hence, the void or missing detail was filled in by the Oversight Committee in the LGC-
IRR.
With three (3) members each from both the Senate and the House of Representatives, particularly
the chairpersons of their respective Committees on Local Government, it cannot be gainsaid that the
inclusion by the Oversight Committee of the exemption from the land area requirement with respect
to the creation of provinces consisting of one (1) or more islands was intended by Congress, but
unfortunately not expressly stated in Section 461 of the LGC, and this intent was echoed through an
express provision in the LGC-IRR. To be sure, the Oversight Committee did not just arbitrarily and
whimsically insert such an exemption in Article 9(2) of the LGC-IRR. The Oversight Committee
evidently conducted due deliberation and consultations with all the concerned sectors of society and
considered the operative principles of local autonomy as provided in the LGC when the IRR was
formulated.33 Undoubtedly, this amounts not only to an executive construction, entitled to great
weight and respect from this Court,34 but to legislative construction as well, especially with the
inclusion of representatives from the four leagues of local government units as members of the
Oversight Committee.
With the formulation of the LGC-IRR, which amounted to both executive and legislative construction
of the LGC, the many details to implement the LGC had already been put in place, which Congress
understood to be impractical and not too urgent to immediately translate into direct amendments to
the LGC. But Congress, recognizing the capacity and viability of Dinagat to become a full-fledged
province, enacted R.A. No. 9355, following the exemption from the land area requirement, which,
with respect to the creation of provinces, can only be found as an express provision in the LGC-IRR.
In effect, pursuant to its plenary legislative powers, Congress breathed flesh and blood into that
exemption in Article 9(2) of the LGC-IRR and transformed it into law when it enacted R.A. No. 9355
creating the Island Province of Dinagat.
Further, the bill that eventually became R.A. No. 9355 was filed and favorably voted upon in both
Chambers of Congress. Such acts of both Chambers of Congress definitively show the clear
legislative intent to incorporate into the LGC that exemption from the land area requirement, with
respect to the creation of a province when it consists of one or more islands, as expressly provided
only in the LGC-IRR. Thereby, and by necessity, the LGC was amended by way of the enactment of
R.A. No. 9355.
What is more, the land area, while considered as an indicator of viability of a local government unit,
is not conclusive in showing that Dinagat cannot become a province, taking into account its average
annual income of ₱82,696,433.23 at the time of its creation, as certified by the Bureau of Local
Government Finance, which is four times more than the minimum requirement of ₱20,000,000.00 for
the creation of a province. The delivery of basic services to its constituents has been proven
possible and sustainable. Rather than looking at the results of the plebiscite and the May 10, 2010
elections as mere fait accompli circumstances which cannot operate in favor of Dinagat’s existence
as a province, they must be seen from the perspective that Dinagat is ready and capable of
becoming a province. This Court should not be instrumental in stunting such capacity. As we have
held in League of Cities of the Philippines v. Commission on Elections35 —
Ratio legis est anima. The spirit rather than the letter of the law. A statute must be read according to
its spirit or intent, for what is within the spirit is within the statute although it is not within its letter, and
that which is within the letter but not within the spirit is not within the statute. Put a bit differently, that
which is within the intent of the lawmaker is as much within the statute as if within the letter, and that
which is within the letter of the statute is not within the statute unless within the intent of the
lawmakers. Withal, courts ought not to interpret and should not accept an interpretation that would
defeat the intent of the law and its legislators.
So as it is exhorted to pass on a challenge against the validity of an act of Congress, a co-equal

branch of government, it behooves the Court to have at once one principle in mind: the presumption
of constitutionality of statutes. This presumption finds its roots in the tri-partite system of government
and the corollary separation of powers, which enjoins the three great departments of the government
to accord a becoming courtesy for each other’s acts, and not to interfere inordinately with the
exercise by one of its official functions. Towards this end, courts ought to reject assaults against the
validity of statutes, barring of course their clear unconstitutionality. To doubt is to sustain, the theory
in context being that the law is the product of earnest studies by Congress to ensure that no
constitutional prescription or concept is infringed. Consequently, before a law duly challenged is
nullified, an unequivocal breach of, or a clear conflict with, the Constitution, not merely a doubtful or
argumentative one, must be demonstrated in such a manner as to leave no doubt in the mind of the
Court.
WHEREFORE, the Court resolved to:
1. GRANT the Urgent Motion to Recall Entry of Judgment by movants-intervenors, dated and
filed on October 29, 2010;
2. RECONSIDER and SET ASIDE the July 20, 2010 Resolution, and GRANT the Motion for
Leave to Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the
Resolution dated July 20, 2010;
3. GRANT the Intervenors’ Motion for Reconsideration of the Resolution dated May 12,
2010. The May 12, 2010 Resolution is RECONSIDERED and SET ASIDE. The provision in
Article 9(2) of the Rules and Regulations Implementing the Local Government Code of 1991
stating, "The land area requirement shall not apply where the proposed province is
composed of one (1) or more islands," is declared VALID. Accordingly, Republic Act No.
9355 (An Act Creating the Province of Dinagat Islands) is declared as VALID and
CONSTITUTIONAL, and the proclamation of the Province of Dinagat Islands and the
election of the officials thereof are declared VALID; and
4. The petition is DISMISSED.
SO ORDERED.
119

SUPREME COURT
Manila
EN BANC
G.R. No. 203974 April 22, 2014
AURELIO M. UMALI, Petitioner,

vs.
COMMISSION ON ELECTIONS, JULIUS CESAR V. VERGARA, and THE CITY GOVERNMENT
OF CABANATUAN, Respondents.
x-----------------------x
G.R. No. 204371
J.V. BAUTISTA, Petitioner,

vs.
DECISION
VELASCO, JR., J.:
Before the Court is the consolidated case for Petition for Certiorari and Prohibition with prayer for
injunctive relief, docket as G.R. No. 203974, assailing Minute Resolution No. 12-07971 and Minute
Resolution No. 12-09252 dated September 11, 2012 and October 16, 2012, respectively, both
promulgated by public respondent Commission on Elections (COMELEC), and Petition for
Mandamus, docketed G.R. No. 204371, seeking to compel public respondent to implement the
same.
The Facts
On July 11, 2011, the Sangguniang Panglungsod of Cabanatuan City passed Resolution No. 183-
2011, requesting the President to declare the conversion of Cabanatuan City from a component city
of the province of Nueva Ecija into a highly urbanized city (HUC). Acceding to the request, the
President issued Presidential Proclamation No. 418, Series of 2012, proclaiming the City of
Cabanatuan as an HUC subject to "ratification in a plebiscite by the qualified voters therein, as
provided for in Section 453 of the Local Government Code of 1991."
Respondent COMELEC, acting on the proclamation, issued the assailed Minute Resolution No. 12-
0797 which reads:
WHEREFORE, the Commission RESOLVED, as it hereby RESOLVES, that for purposes of the
plebiscite for the conversion of Cabanatuan City from component city to highly-urbanized city, only
those registered residents of Cabanatuan City should participate in the said plebiscite.
The COMELEC based this resolution on Sec. 453 of the Local Government Code of 1991 (LGC),
citing conversion cases involving Puerto Princesa City in Palawan, Tacloban City in Southern Leyte,
and Lapu-Lapu City in Cebu, where only the residents of the city proposed to be converted were
allowed to vote in the corresponding plebiscite.
In due time, petitioner Aurelio M. Umali, Governor of Nueva Ecija, filed a Verified Motion for
Reconsideration, maintaining that the proposed conversion in question will necessarily and directly
affect the mother province of Nueva Ecija. His main argument is that Section 453 of the LGC should
be interpreted in conjunction with Sec. 10, Art. X of the Constitution. He argues that while the
conversion in question does not involve the creation of a new or the dissolution of an existing city,
the spirit of the Constitutional provision calls for the people of the local government unit (LGU)
directly affected to vote in a plebiscite whenever there is a material change in their rights and
responsibilities. The phrase "qualified voters therein" used in Sec. 453 of the LGC should then be
interpreted to refer to the qualified voters of the units directly affected by the conversion and not just
those in the component city proposed to be upgraded. Petitioner Umali justified his position by
enumerating the various adverse effects of the Cabanatuan City’s conversion and how it will cause
material change not only in the political and economic rights of the city and its residents but also of
the province as a whole.
To the Verified Motion for Reconsideration, private respondent Julius Cesar Vergara, city mayor of
Cabanatuan, interposed an opposition on the ground that Sec. 10, Art. X does not apply to
conversions, which is the meat of the matter. He likewise argues that a specific provision of the LGC,
Sec. 453, as couched, allows only the qualified voters of Cabanatuan City to vote in the plebiscite.
Lastly, private respondent pointed out that when Santiago City was converted in 1994 from a
municipality to an independent component city pursuant to Republic Act No. (RA) 7720, the
plebiscite held was limited to the registered voters of the then municipality of Santiago.
Following a hearing conducted on October 4, 2012,3 the COMELEC En Banc on October 16, 2012,
in E.M No. 12-045 (PLEB), by a vote of 5-24 ruled in favor of respondent Vergara through the
assailed Minute Resolution 12-0925. The dispositive portion reads:
The Commission, taking into consideration the arguments of counsels including the Reply-
memorandum of Oppositor, after due deliberation, RESOLVED, as it hereby RESOLVES, as follows:
1) To DENY the Motion for Reconsideration of oppositor Governor Aurelio M. Umali; and
2) To SCHEDULE the conduct of Plebiscite for the conversion of Cabanatuan City from
component city into highly-urbanized city with registered residents only of Cabanatuan City
to participate in said plebiscite.
Let the Deputy Executive Director for Operations implement this resolution.
SO ORDERED.
Hence, the Petition for Certiorari with prayer for injunctive relief, docketed as G.R. No. 203974, on
substantially the same arguments earlier taken by petitioner Umali before the poll body. On the other
hand, public respondent COMELEC, through the Office of the Solicitor General, maintained in its
Comment that Cabanatuan City is merely being converted from a component city into an HUC and
that the political unit directly affected by the conversion will only be the city itself. It argues that in this
instance, no political unit will be created, merged with another, or will be removed from another LGU,
and that no boundaries will be altered. The conversion would merely reinforce the powers and
prerogatives already being exercised by the city, with the political unit’s probable elevation to that of
an HUC as demanded by its compliance with the criteria established under the LGC. Thus, the
participation of the voters of the entire province in the plebiscite will not be necessary.
Private respondent will later manifest that it is adopting the Comment of the COMELEC.
Meanwhile, on October 25, 2012, respondent COMELEC promulgated Resolution No. 9543, which
adopted a calendar of activities and periods of prohibited acts in connection with the conversion of
Cabanatuan City into an HUC. The Resolution set the conduct of the plebiscite on December 1,
2012. Thereafter, a certain Dr. Rodolfo B. Punzalan filed a Petition for Declaratory Relief which was
raffled to the Regional Trial Court (RTC), Branch 40 in Palayan City. In the said case, Punzalan
prayed that Minute Resolution No. 12-0797 be declared unconstitutional, that the trial court decree
that all qualified voters of the province of Nueva Ecija be included in the plebiscite, and that a
Temporary Restraining Order (TRO) be issued enjoining public respondent from implementing the
questioned resolution. On October 19, 2012, the RTC granted the prayer for a TRO.
On November 6, 2012, public respondent through Minute Resolution No. 12-0989 suspended the
preparations for the event in view of the TRO issued by the RTC. On November 27, 2012, the
plebiscite was once again rescheduled to give way to the May 13, 2013 national, local and ARMM
regional elections as per Resolution No. 9563.
After this development, petitioner J.V. Bautista, on December 3, 2012, filed a case before this Court
for Mandamus, docketed as G.R. No. 204371, praying that public respondent be ordered to
schedule the plebiscite either on December 15 or 22, 2012. Petitioner Bautista argued that since the
TRO issued by the RTC has already expired, the duty of the public respondent to hold the plebiscite
has become mandatory and ministerial. Petitioner Bautista also alleged that the delay in holding the
plebiscite is inexcusable given the requirement that it should be held within a period of 120 days
form the date of the President’s declaration.
In its Comment to the Bautista petition, public respondent justified its position by arguing that
mandamus will not issue to enforce a right which is in substantial dispute. With all the legal conflicts
surrounding the case, it cannot be said that there is a clear showing of petitioner Bautista’s
entitlement to the relief sought. Respondent COMELEC likewise relied on Sec. 5 of the Omnibus
Election Code to justify the postponements, citing incidents of violence that ensued in the locality
during the plebiscite period.
After the conclusion of the 2013 elections, public respondent issued Resolution No. 1353 scheduling
the plebiscite to January 25, 2014. However, a TRO was issued by this Court on January 15, 2014 in
G.R. No. 203974 to suspend the conduct of the plebiscite for Cabanatuan City’s conversion. Given
the intertwining factual milieu of the two petitions before the Court, both cases were consolidated on
March 18, 2014.
The Issue
The bone of contention in the present controversy boils down to whether the qualified registered
voters of the entire province of Nueva Ecija or only those in Cabanatuan City can participate in the
plebiscite called for the conversion of Cabanatuan City from a component city into an HUC.
Resolving the Petition for Certiorari either way will necessarily render the Petition for Mandamus
moot and academic for ultimately, the public respondent will be ordered to hold the plebiscite. The
only variation will be as regards its participants.
The Petition for Certiorari is meritorious.
Sec. 453 of the LGC should be interpreted in accordance with Sec. 10, Art. X of the Constitution
Petitioner Umali asseverates that Sec. 10, Art. X of the Constitution should be the basis for
determining the qualified voters who will participate in the plebiscite to resolve the issue. Sec. 10,
Art. X reads:
Section 10, Article X. – No province, city, municipality, or barangay may be created, divided,
merged, abolished, or its boundary substantially altered, except in accordance with the criteria
established in the local government code and subject to approval by a majority of the votes cast in a
plebiscite in the political units directly affected. (emphasis supplied)
Petitioner Umali elucidates that the phrase "political units directly affected" necessarily encompasses
not only Cabanatuan City but the entire province of Nueva Ecija. Hence, all the registered voters in
the province are qualified to cast their votes in resolving the proposed conversion of Cabanatuan
City.
On the other hand, respondents invoke Sec. 453 of the LGC to support their claim that only the City
of Cabanatuan should be allowed to take part in the voting. Sec. 453 states:
Section 453. Duty to Declare Highly Urbanized Status. – It shall be the duty of the President to
declare a city as highly urbanized within thirty (30) days after it shall have met the minimum
requirements prescribed in the immediately preceding Section, upon proper application therefor and
ratification in a plebiscite by the qualified voters therein. (emphasis supplied)
Respondents take the phrase "registered voters therein" in Sec. 453 as referring only to the
registered voters in the city being converted, excluding in the process the voters in the remaining
towns and cities of Nueva Ecija.
Before proceeding to unravel the seeming conflict between the two provisions, it is but proper that
we ascertain first the relationship between Sec. 10, Art. X of the Constitution and Sec. 453 of the
LGC.
First of all, we have to restate the general principle that legislative power cannot be delegated.
Nonetheless, the general rule barring delegation is subject to certain exceptions allowed in the
Constitution, namely:
(1) Delegation by Congress to the President of the power to fix "tariff rates, import and export
quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the
national development program of the Government" under Section 28(2) of Article VI of the
Constitution; and
(2) Delegation of emergency powers by Congress to the President "to exercise powers
necessary and proper to carry out a declared national policy" in times of war and other
national emergency under Section 23(2) of Article VI of the Constitution.
The power to create, divide, merge, abolish or substantially alter boundaries of provinces, cities,
municipalities or barangays, which is pertinent in the case at bar, is essentially legislative in
nature.5 The framers of the Constitution have, however, allowed for the delegation of such power in
Sec. 10, Art. X of the Constitution as long as (1) the criteria prescribed in the LGC is met and (2) the
creation, division, merger, abolition or the substantial alteration of the boundaries is subject to the
approval by a majority vote in a plebiscite.
True enough, Congress delegated such power to the Sangguniang Panlalawigan or Sangguniang
Panlungsod to create barangays pursuant to Sec. 6 of the LGC, which provides:
Section 6. Authority to Create Local Government Units. - A local government unit may be created,
divided, merged, abolished, or its boundaries substantially altered either by law enacted by
Congress in the case of a province, city, municipality, or any other political subdivision, or by
ordinance passed by the sangguniang panlalawigan or sangguniang panlungsod concerned in the
case of a barangay located within its territorial jurisdiction, subject to such limitations and
requirements prescribed in this Code." (emphasis supplied)
The guidelines for the exercise of this authority have sufficiently been outlined by the various LGC
provisions detailing the requirements for the creation of barangays6, municipalities7, cities8, and
provinces9. Moreover, compliance with the plebiscite requirement under the Constitution has also
been directed by the LGC under its Sec. 10, which reads:
Section 10. Plebiscite Requirement. – No creation, division, merger, abolition, or substantial

alteration of boundaries of local government units shall take effect unless approved by a majority of
the votes cast in a plebiscite called for the purpose in the political unit or units directly affected."
(emphasis supplied)
With the twin criteria of standard and plebiscite satisfied, the delegation to LGUs of the power to
create, divide, merge, abolish or substantially alter boundaries has become a recognized exception
to the doctrine of non-delegation of legislative powers.
Likewise, legislative power was delegated to the President under Sec. 453 of the LGC quoted
earlier, which states:
Section 453. Duty to Declare Highly Urbanized Status. – It shall be the duty of the President to
declare a city as highly urbanized within thirty (30) days after it shall have met the minimum
requirements prescribed in the immediately preceding Section, upon proper application therefor and
ratification in a plebiscite by the qualified voters therein.
In this case, the provision merely authorized the President to make a determination on whether or
not the requirements under Sec. 45210 of the LGC are complied with. The provision makes it
ministerial for the President, upon proper application, to declare a component city as highly
urbanized once the minimum requirements, which are based on certifiable and measurable indices
under Sec. 452, are satisfied. The mandatory language "shall" used in the provision leaves the
President with no room for discretion.
In so doing, Sec. 453, in effect, automatically calls for the conduct of a plebiscite for purposes of
conversions once the requirements are met. No further legislation is necessary before the city
proposed to be converted becomes eligible to become an HUC through ratification, as the basis for
the delegation of the legislative authority is the very LGC.
In view of the foregoing considerations, the Court concludes that the source of the delegation of
power to the LGUs under Sec. 6 of the LGC and to the President under Sec. 453 of the same code
is none other than Sec. 10, Art. X of the Constitution.
Respondents, however, posit that Sec. 453 of the LGC is actually outside the ambit of Sec. 10, Art.
X of the Constitution, considering that the conversion of a component city to an HUC is not "creation,
division, merge, abolition or substantial alternation of boundaries" encompassed by the said
constitutional provision.
This proposition is bereft of merit.
First, the Court’s pronouncement in Miranda vs. Aguirre11 is apropos and may be applied by analogy.
While Miranda involves the downgrading, instead of upgrading, as here, of an independent
component city into a component city, its application to the case at bar is nonetheless material in
ascertaining the proper treatment of conversions. In that seminal case, the Court held that the
downgrading of an independent component city into a component city comes within the purview of
Sec. 10, Art. X of the Constitution.
In Miranda, the rationale behind the afore-quoted constitutional provision and its application to cases
of conversion were discussed thusly:
A close analysis of the said constitutional provision will reveal that the creation, division, merger,
abolition or substantial alteration of boundaries of local government units involve a common
denominator - - - material change in the political and economic rights of the local government units
directly affected as well as the people therein. It is precisely for this reason that the Constitution
requires the approval of the people "in the political units directly affected." It is not difficult to
appreciate the rationale of this constitutional requirement. The 1987 Constitution, more than any of
our previous Constitutions, gave more reality to the sovereignty of our people for it was borne out of
the people power in the 1986 EDSA revolution. Its Section 10, Article X addressed the undesirable
practice in the past whereby local government units were created, abolished, merged or divided on
the basis of the vagaries of politics and not of the welfare of the people. Thus, the consent of the
people of the local government unit directly affected was required to serve as a checking mechanism
to any exercise of legislative power creating, dividing, abolishing, merging or altering the boundaries
of local government units. It is one instance where the people in their sovereign capacity decide on a
matter that affects them - - - direct democracy of the people as opposed to democracy thru people’s
representatives. This plebiscite requirement is also in accord with the philosophy of the Constitution
granting more autonomy to local government units.12
It was determined in the case that the changes that will result from the conversion are too substantial
that there is a necessity for the plurality of those that will be affected to approve it. Similar to the
enumerated acts in the constitutional provision, conversions were found to result in material changes
in the economic and political rights of the people and LGUs affected. Given the far-reaching
ramifications of converting the status of a city, we held that the plebiscite requirement under the
constitutional provision should equally apply to conversions as well. Thus, RA 852813 was declared
unconstitutional in Miranda on the ground that the law downgraded Santiago City in Isabela without
submitting it for ratification in a plebiscite, in contravention of Sec. 10, Art. X of the Constitution.
Second, while conversion to an HUC is not explicitly provided in Sec. 10, Art. X of the Constitution
we nevertheless observe that the conversion of a component city into an HUC is substantial
alteration of boundaries.
As the phrase implies, "substantial alteration of boundaries" involves and necessarily entails a
change in the geographical configuration of a local government unit or units. However, the phrase
"boundaries" should not be limited to the mere physical one, referring to the metes and bounds of
the LGU, but also to its political boundaries. It also connotes a modification of the demarcation lines
between political subdivisions, where the LGU’s exercise of corporate power ends and that of the
other begins. And as a qualifier, the alteration must be "substantial" for it to be within the ambit of the
constitutional provision.
Pertinent is Art. 12(c) of the LGC’s Implementing Rules and Regulations, which reads:
Art. 12. Conversion of a Component City into a Highly Urbanized City. –
xxxx
(c) Effect of Conversion – The conversion of a component city into a highly-urbanized city shall make
it independent of the province where it is geographically located. (emphasis added)
Verily, the upward conversion of a component city, in this case Cabanatuan City, into an HUC will
come at a steep price. It can be gleaned from the above-cited rule that the province will inevitably
suffer a corresponding decrease in territory brought about by Cabanatuan City’s gain of
independence. With the city’s newfound autonomy, it will be free from the oversight powers of the
province, which, in effect, reduces the territorial jurisdiction of the latter. What once formed part of
Nueva Ecija will no longer be subject to supervision by the province. In more concrete terms, Nueva
Ecija stands to lose 282.75 sq. km. of its territorial jurisdiction with Cabanatuan City’s severance
from its mother province. This is equivalent to carving out almost 5% of Nueva Ecija’s 5,751.3 sq.
km. area. This sufficiently satisfies the requirement that the alteration be "substantial."
Needless to stress, the alteration of boundaries would necessarily follow Cabanatuan City’s
conversion in the same way that creations, divisions, mergers, and abolitions generally cannot take
place without entailing the alteration. The enumerated acts, after all, are not mutually exclusive, and
more often than not, a combination of these acts attends the reconfiguration of LGUs.
In light of the foregoing disquisitions, the Court rules that conversion to an HUC is substantial
alternation of boundaries governed by Sec. 10, Art. X and resultantly, said provision applies, governs
and prevails over Sec. 453 of the LGC.
Moreover, the rules of statutory construction dictate that a particular provision should be interpreted
with the other relevant provisions in the law The Court finds that it is actually Sec. 10 of the LGC
which is undeniably the applicable provision on the conduct of plebiscites. The title of the provision
itself, "Plebiscite Requirement", makes this obvious. It requires a majority of the votes cast in a
plebiscite called for the purpose in the political unit or units directly affected. On the other hand, Sec.
453 of the LGC, entitled "Duty to Declare Highly Urbanized Status", is only on the duty to declare a
city as highly urbanized. It mandates the Office of the President to make the declaration after the city
has met the requirements under Sec. 452, and upon proper application and ratification in a
plebiscite. The conduct of a plebiscite is then a requirement before a declaration can be made. Thus,
the Court finds that Sec. 10 of the LGC prevails over Sec. 453 of the LGC on the plebiscite
requirement.
We now take the bull by the horns and resolve the issue whether Sec. 453 of the LGC trenches on
Sec. 10, Art. X of the Constitution.
Hornbook doctrine is that neither the legislative, the executive, nor the judiciary has the power to act
beyond the Constitution’s mandate. The Constitution is supreme; any exercise of power beyond
what is circumscribed by the Constitution is ultra vires and a nullity. As elucidated by former Chief
Justice Enrique Fernando in Fernandez v. Cuerva:14
Where the assailed legislative or executive act is found by the judiciary to be contrary to the
Constitution, it is null and void. As the new Civil Code puts it: "When the courts declare a law to be
inconsistent with the Constitution, the former shall be void and the latter shall govern." Administrative
or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or
the Constitution. The above provision of the civil Code reflects the orthodox view that an
unconstitutional act, whether legislative or executive, is not a law, confers no rights, imposes no
duties, and affords no protection. x x x
Applying this orthodox view, a law should be construed in harmony with and not in violation of the
Constitution.15 In a long line of cases, the cardinal principle of construction established is that a
statute should be interpreted to assure its being in consonance with, rather than repugnant to, any
constitutional command or prescription.16 If there is doubt or uncertainty as to the meaning of the
legislative, if the words or provisions are obscure or if the enactment is fairly susceptible of two or
more constitution, that interpretation which will avoid the effect of unconstitutionality will be adopted,
even though it may be necessary, for this purpose, to disregard the more usual or apparent import of
the language used.17
Pursuant to established jurisprudence, the phrase "by the qualified voters therein" in Sec. 453 should
be construed in a manner that will avoid conflict with the Constitution. If one takes the plain meaning
of the phrase in relation to the declaration by the President that a city is an HUC, then, Sec. 453 of
the LGC will clash with the explicit provision under Sec. 10, Art. X that the voters in the "political
units directly affected" shall participate in the plebiscite. Such construction should be avoided in view
of the supremacy of the Constitution. Thus, the Court treats the phrase "by the qualified voters
therein" in Sec. 453 to mean the qualified voters not only in the city proposed to be converted to an
HUC but also the voters of the political units directly affected by such conversion in order to
harmonize Sec. 453 with Sec. 10, Art. X of the Constitution.
The Court finds that respondents are mistaken in construing Sec. 453 in a vacuum. Their
interpretation of Sec. 453 of the LGC runs afoul of Sec. 10, Art. X of the Constitution which explicitly
requires that all residents in the "political units directly affected" should be made to vote.
Respondents make much of the plebiscites conducted in connection with the conversion of Puerto
Princesa City, Tacloban City and Lapu-Lapu City where the ratification was made by the registered
voters in said cities alone. It is clear, however, that the issue of who are entitled to vote in said
plebiscites was not properly raised or brought up in an actual controversy. The issue on who will
vote in a plebiscite involving a conversion into an HUC is a novel issue, and this is the first time that
the Court is asked to resolve the question. As such, the past plebiscites in the aforementioned cities
have no materiality or relevance to the instant petition. Suffice it to say that conversion of said cities
prior to this judicial declaration will not be affected or prejudiced in any manner following the
operative fact doctrine―that “the actual existence of a statute prior to such a determination is an
operative fact and may have consequences which cannot always be erased by a new judicial
declaration.”18
The entire province of Nueva Ecija will be directly

affected by Cabanatuan City’s conversion
After the Court has resolved the seeming irreconcilability of Sec. 10, Art. X of the Constitution and
Sec. 453 of the LGC, it is now time to elucidate the meaning of the phrase "political units directly
affected" under Sec. 10, Art. X.
a. "Political units directly affected" defined
In identifying the LGU or LGUs that should be allowed to take part in the plebiscite, what should
primarily be determined is whether or not the unit or units that desire to participate will be "directly
affected" by the change. To interpret the phrase, Tan v. COMELEC19 and Padilla v. COMELEC20 are
worth revisiting.
We have ruled in Tan, involving the division of Negros Occidental for the creation of the new
province of Negros del Norte, that the LGUs whose boundaries are to be altered and whose
economy would be affected are entitled to participate in the plebiscite. As held:
It can be plainly seen that the aforecited constitutional provision makes it imperative that there be
first obtained "the approval of a majority of votes in the plebiscite in the unit or units affected"
whenever a province is created, divided or merged and there is substantial alteration of the
boundaries. It is thus inescapable to conclude that the boundaries of the existing province of Negros
Occidental would necessarily be substantially altered by the division of its existing boundaries in
order that there can be created the proposed new province of Negros del Norte. Plain and simple
logic will demonstrate than that two political units would be affected.
The first would be the parent province of Negros Occidental because its boundaries would be
substantially altered. The other affected entity would be composed of those in the area subtracted
from the mother province to constitute the proposed province of Negros del Norte.21
xxxx
To form the new province of Negros del Norte no less than three cities and eight municipalities will
be subtracted from the parent province of Negros Occidental. This will result in the removal of
approximately 2,768.4 square kilometers from the land area of an existing province whose
boundaries will be consequently substantially altered. It becomes easy to realize that the consequent
effects of the division of the parent province necessarily will affect all the people living in the
separate areas of Negros Occidental and the proposed province of Negros del Norte. The economy
of the parent province as well as that of the new province will be inevitably affected, either for the
better or for the worse. Whatever be the case, either or both of these political groups will be affected
and they are, therefore, the unit or units referred to in Section 3 of Article XI of the Constitution which
must be included in the plebiscite contemplated therein.22 (emphasis added)
Sec. 3, Art. XI of the 1973 Constitution, as invoked in Tan, states:

SEC. 3. No province, city, municipality or barrio may be created, divided, merged abolished, or its
boundary substantially altered, except in accordance with the criteria established in the local
government code, and subject to the approval by a majority of the votes in a plebiscite in the unit or
units affected. (emphasis added)
Despite the change in phraseology compared to what is now Sec. 10, Art. X, we affirmed our ruling
in Tan in the latter case of Padilla. As held, the removal of the phrase "unit or" only served to sustain
the earlier finding that what is contemplated by the phase "political units directly affected" is the
plurality of political units which would participate in the plebiscite. As reflected in the journal of the
Constitutional Commission:23
Mr. Maambong: While we have already approved the deletion of "unit or," I would like to inform the
Committee that under the formulation in the present Local Government Code, the words used are
actually "political unit or units." However, I do not know the implication of the use of these words.
Maybe there will be no substantial difference, but I just want to inform the Committee about this.
Mr. Nolledo: Can we not adhere to the original "unit or units"? Will there be no objection on the part
of the two Gentlemen from the floor?
Mr. Davide: I would object. I precisely asked for the deletion of the words "unit or" because in the
plebiscite to be conducted, it must involve all the units affected. If it is the creation of a barangay
plebiscite because it is affected. It would mean a loss of a territory. (emphasis added)
The same sentiment was shared by the Senate during its deliberations on Senate Bill No. 155––the
predecessor of the LGC––thus:
Senator Guingona. Can we make that clearer by example? Let us assume that a province has
municipalities and there is a merger of two municipalities. Would this therefore mean that the
plebiscite will be conducted within the two merged municipalities and not in the eight other
municipalities?
Senator Pimentel. The whole province, Mr. President, will be affected, and that is the reason we
probably have to involve the entire province.
Senator Guingona. So the plebiscite will not be held only in the two municipalities which are being
merged, but the entire province will now have to undergo.
Senator Pimentel. I suppose that was the ruling in the Negros del Norte case.
Senator Guingona. Supposing it refers to barangays, will the entire municipality have to vote? There
are two barangays being merged, say, out of 100 barangays. Would the entire municipality have to
participate in the plebiscite?
Senator Pimentel. Yes, Mr. President, because the municipality is affected directly by the merger of
two of its barangay.
Senator Guingona. And, if, out of 100 barangay, 51 are being merged, abolished, whatever, would
the rest of the municipality not participate in the plebiscite?
Senator Pimentel. Do all the 51 barangay that the Gentleman mentioned, Mr. President, belong to
one municipality?
Senator Guingona. Yes.
Senator Pimentel. Then it will only involve the municipality where the 51 barangays belong.
Senator Guingona. Yes. So, the entire municipality will now have to undergo a plebiscite.
Senator Pimentel. That is correct, Mr. President.
Senator Guingona. In the earlier example, if it is only a merger of two municipalities, let us say, in a
province with 10 municipalities – the entire province – will the other municipalities although not
affected also have to participate in the plebiscite?
Senator Pimentel. Yes. The reason is that the municipalities are within the territorial boundaries of
the province itself, it will have to be altered as a result of the two municipalities that the Gentleman
mentioned.24
In the more recent case of Miranda, the interpretation in Tan and Padilla was modified to include not
only changes in economic but also political rights in the criteria for determining whether or not an
LGU shall be considered "directly affected." Nevertheless, the requirement that the plebiscite be
participated in by the plurality of political units directly affected remained.
b. Impact on Economic Rights
To recall, it was held in Miranda that the changes that will result in the downgrading of an LGU from
an independent component city to a component city cannot be categorized as insubstantial, thereby
necessitating the conduct of a plebiscite for its ratification. In a similar fashion, herein petitioner
Umali itemized the adverse effects of Cabanatuan City’s conversion to the province of Nueva Ecija
to justify the province’s participation in the plebiscite to be conducted.
Often raised is that Cabanatuan City’s conversion into an HUC and its severance from Nueva Ecija
will result in the reduction of the Internal Revenue Allotment (IRA) to the province based on Sec. 285
of the LGC. The law states:
Section 285. Allocation to Local Government Units. - The share of local government units in the
internal revenue allotment shall be collected in the following manner:
(a) Provinces - Twenty-three percent (23%);
(b) Cities - Twenty-three percent (23%);
(c) Municipalities - Thirty-four percent (34%); and
(d) Barangays - Twenty percent (20%)
Provided, however, That the share of each province, city, and municipality shall be determined on
the basis of the following formula:
(a) Population - Fifty percent (50%);
(b) Land Area - Twenty-five percent (25%); and

(c) Equal sharing - Twenty-five percent (25%)
In our earlier disquisitions, we have explained that the conversion into an HUC carries the accessory
of substantial alteration of boundaries and that the province of Nueva Ecija will, without a doubt,
suffer a reduction in territory because of the severance of Cabanatuan City. The residents of the city
will cease to be political constituencies of the province, effectively reducing the latter’s population.
Taking this decrease in territory and population in connection with the above formula, it is conceded
that Nueva Ecija will indeed suffer a reduction in IRA given the decrease of its multipliers’ values. As
assessed by the Regional Director of the Department of Budget and Management (DBM) for Region
III:25
Basis for IRA Province of Cabanatuan Province of

Computation Nueva Ecija City Nueva Ecija Net
of Cabanatuan
City
No. of Population 1,843,853 259,267 259,267

CY 2007 Census
Land Area 5,751.33 282.75 5,468.58
(sq. km.)
IRA Share of Actual IRA Estimated IRA Reduction

Nueva Ecija Share share excluding
Cabanatuan
City
Based on ₱800,772,618.45 ₱688,174,751.66 ₱112,597,866.79

Population
Based on Land ₱263,470,472.62 ₱250,517,594.56 P 12,952,878.06

Area
Total ₱125,550,744.85
Clear as crystal is that the province of Nueva Ecija will suffer a substantial reduction of its share in
IRA once Cabanatuan City attains autonomy. In view of the economic impact of Cabanatuan City’s
conversion, petitioner Umali’s contention, that its effect on the province is not only direct but also
adverse, deserves merit.
Moreover, his claim that the province will lose shares in provincial taxes imposed in Cabanatuan City
is well-founded. This is based on Sec. 151 of the LGC, which states:
SECTION 151. Scope of Taxing Powers. – Except as otherwise provided in this Code, the city, may
levy the taxes, fees, and charges which the province or municipality may impose: Provided,
however, That the taxes, fees and charges levied and collected by highly urbanized and
independent component cities shall accrue to them and distributed in accordance with the provisions
of this Code. (emphasis added)
Once converted, the taxes imposed by the HUC will accrue to itself. Prior to this, the province enjoys
the prerogative to impose and collect taxes such as those on sand, gravel and other quarry
resources,26 professional taxes,27 and amusement taxes28 over the component city. While, it may be
argued that this is not a derogation of the province’s taxing power because it is in no way deprived of
its right to collect the mentioned taxes from the rest of its territory, the conversion will still reduce the
province’s taxing jurisdiction, and corollary to this, it will experience a corresponding decrease in
shares in local tax collections. This reduction in both taxing jurisdiction and shares poses a material
and substantial change to the province’s economic rights, warranting its participation in the
plebiscite.
To further exemplify the impact of these changes, a perusal of Secs. 452(a) and 461(a) of the LGC
is in order, viz:
Section 452. Highly Urbanized Cities.
(a) Cities with a minimum population of two hundred thousand (200,000) inhabitants as
certified by the National Statistics Office, and within the latest annual income of at least Fifty
Million Pesos (₱50,000,000.00) based on 1991 constant prices, as certified by the city
treasurer, shall be classified as highly urbanized cities.
Section 461. Requisites for Creation.
(a) A province may be created if it has an average annual income, as certified by the Department of
Finance, of not less than Twenty million pesos (₱20,000,000.00) based on 1991 constant prices and
either of the following requisites:
(i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by
the Lands Management Bureau; or
(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified
by the National Statistics Office:
Provided, That, the creation thereof shall not reduce the land area, population, and income of the
original unit or units at the time of said creation to less than the minimum requirements prescribed
herein.
A component city’s conversion into an HUC and its resultant autonomy from the province is a threat
to the latter’s economic viability. Noteworthy is that the income criterion for a component city to be
converted into an HUC is higher than the income requirement for the creation of a province. The
ensuing reduction in income upon separation would clearly leave a crippling effect on the province’s
operations as there would be less funding to finance infrastructure projects and to defray overhead
costs. Moreover, the quality of services being offered by the province may suffer because of looming
austerity measures. These are but a few of the social costs of the decline in the province’s economic
performance, which Nueva Ecija is bound to experience once its most progressive city of
Cabanatuan attains independence.
c. Impact on Political Rights

Aside from the alteration of economic rights, the political rights of Nueva Ecija and those of its
residents will also be affected by Cabanatuan’s conversion into an HUC. Notably, the administrative
supervision of the province over the city will effectively be revoked upon conversion. Secs. 4 and 12,
Art. X of the Constitution read:
Sec. 4. The President of the Philippines shall exercise general supervision over local governments.
Provinces with respect to component cities and municipalities, and cities and municipalities with
respect to component barangays shall ensure that the acts of their component units are within the
scope of their prescribed powers and functions.
Sec 12. Cities that are highly urbanized, as determined by law, and component cities whose charters
prohibit their voters from voting for provincial elective officials, shall be independent of the province.
The voters of component cities within a province, whose charters contain no such prohibition, shall
not be deprived of their right to vote for elective provincial officials.
Duties, privileges and obligations appertaining to HUCs will attach to Cabanatuan City if it is
converted into an HUC. This includes the right to be outside the general supervision of the province
and be under the direct supervision of the President. An HUC is not subject to provincial oversight
because the complex and varied problems in an HUC due to a bigger population and greater
economic activity require greater autonomy.29 The provincial government stands to lose the power to
ensure that the local government officials of Cabanatuan City act within the scope of its prescribed
powers and functions,30 to review executive orders issued by the city mayor, and to approve
resolutions and ordinances enacted by the city council.31 The province will also be divested of
jurisdiction over disciplinary cases concerning the elected city officials of the new HUC, and the
appeal process for administrative case decisions against barangay officials of the city will also be
modified accordingly.32 Likewise, the registered voters of the city will no longer be entitled to vote for
and be voted upon as provincial officials.33
In cutting the umbilical cord between Cabanatuan City and the province of Nueva Ecija, the city will
be separated from the territorial jurisdiction of the province, as earlier explained. The provincial
government will no longer be responsible for delivering basic services for the city residents’ benefit.
Ordinances and resolutions passed by the provincial council will no longer cover the city. Projects
queued by the provincial government to be executed in the city will also be suspended if not
scrapped to prevent the LGU from performing functions outside the bounds of its territorial
jurisdiction, and from expending its limited resources for ventures that do not cater to its
constituents.1âwphi1
In view of these changes in the economic and political rights of the province of Nueva Ecija and its
residents, the entire province certainly stands to be directly affected by the conversion of
Cabanatuan City into an HUC. Following the doctrines in Tan and Padilla, all the qualified registered
voters of Nueva Ecija should then be allowed to participate in the plebiscite called for that purpose.
Respondents’ apprehension that requiring the entire province to participate in the plebiscite will set a
dangerous precedent leading to the failure of cities to convert is unfounded. Their fear that provinces
will always be expected to oppose the conversion in order to retain the city’s dependence is
speculative at best. In any event, any vote of disapproval cast by those directly affected by the
conversion is a valid exercise of their right to suffrage, and our democratic processes are designed
to uphold the decision of the majority, regardless of the motive behind the vote. It is unfathomable
how the province can be deprived of the opportunity to exercise the right of suffrage in a matter that
is potentially deleterious to its economic viability and could diminish the rights of its constituents. To
limit the plebiscite to only the voters of the areas to be partitioned and seceded from the province is
as absurd and illogical as allowing only the secessionists to vote for the secession that they
demanded against the wishes of the majority and to nullify the basic principle of majority rule.34
WHEREFORE, premises considered, the Petition for Certiorari, docketed as G.R. No. 203974, is
hereby GRANTED. COMELEC Minute Resolution No. 12-0797 dated September 11, 2012 and
Minute Resolution No. 12-0925 dated October 16, 2012 are hereby declared NULL and VOID. Public
respondent COMELEC is hereby enjoined from implementing the said Resolutions. Additionally,
COMELEC is hereby ordered to conduct a plebiscite for the purpose of converting Cabanatuan City
into a Highly Urbanized City to be participated in by the qualified registered voters of Nueva Ecij a
within 120 days from the finality of this Decision. The Petition for Mandamus, docketed as G.R. No.
204371, is hereby DISMISSED.
SO ORDERED.
120
G.R. No. 131136 February 28, 2001
CONRADO L. DE RAMA, petitioner,

vs.
THE COURT OF APPEALS (NINTH DIVISION, THE CIVIL SERVICE COMMISSION), ELADIO
MARTINEZ, DIVINO DE JESUS, MORELL AYALA, ARISTEO CATALLA, DAISY PORTA,
FLORDELIZA ORIASEL, GRACIELA GLORY, FELECIDAD ORINDA Y, MA. PETRA MUFFET
LUCE, ELSA MARINO, BERNARDITA MENDOZA, JANE MACATANGA y ADELFO GLODOVIZA
and FLORENIO RAMOS, respondents.
Upon his assumption to the position of Mayor of Pagbilao, Quezon, petitioner Conrado L. de Raffia
wrote a letter dated July 13, 1995 to the Civil Service Commission (or CSC), seeking the recall of the
appointments of fourteen (14) municipal employees, namely:
NAME POSITION DATE OF

APPOINTMENT
Eladio Martinez Registration Office I June 1, 1995
Divino de Jesus Bookbinder III June 1, 1995
Morell Ayala Accounting Clerk III June 16, 1995
Daisy Porta Clerk IV June 27, 1995
Aristeo Catalla Gen. Services Officer June 19, 1995
Elsa Marino Mun. Agriculturist June 19, 1995
Graciela Glory Bookkeeper II June 27, 1995
Ma. Petra Muffet Accounting Clerk III June 27, 1995

Lucce
Felicidad Orinday Accounting Clerk II June 27, 1995
Bernardita Agricultural June 27, 1995

Mendoza Technologist
Flordeliza Oriasel Clerk I June 27, 1995
Jane Macatangay Day Care Worker I June 27, 1995
Adolfo Glodoviza Utility Worker II June 27, 1995
Florenio Ramos Utility Foreman June 27, 1995
Petitioner de Raffia justified his recall request on the allegation that, the appointments of the said
employees were "midnight" appointments of the former mayor, Ma. Evelyn S. Abeja, done in
violation of Article VII, Section 15 of the 1987 Constitution, which provides:
Section 15. Two months immediately before the next presidential elections and up to the end
of his term, a President or Acting President shall not make appointments, except temporary
appointments to executive positions when continued vacancies therein will prejudice public
service or endanger public safety. (Underscoring supplied)
While the matter was pending before the CSC, three of the above-named employees, namely: Elsa
Marino, Morell Ayala, and Flordeliza Oriazel, filed with the CSC a claim for payment of their salaries,
alleging that although their appointments were declared permanent by Conrado Gulim, Director II of
the CSC Field Office based in Quezon, petitioner de Rama withheld the payment of their salaries
and benefits pursuant to Office Order No. 95-01, which was issued on June 30, 1995, wherein the
appointments of the said fourteen (14) employees were recalled.
Based on the documents submitted by Marino, Ayala and Oriazel, the Legal and Quasi-Judicial
Division of the CSC issued an Order2 finding that since the claimants-employees had assumed their
respective positions and performed their duties pursuant to their appointments, they are therefore
entitled to receive the salaries and benefits appurtenant to their positions. Citing Rule V, Section 10
of the Omnibus Rules3 which provides, in part, that "if the appointee has assumed the duties of the
position, he shall be entitled to receive his salary at once without awaiting the approval of his
appointment by the Commission," the CSC Legal and Quasi-Judicial Division ruled that the said
employees cannot be deprived of their salaries and benefits by the unilateral act of the newly-
assumed mayor.
On April 30, 1996, the CSC denied petitioner's request for the recall of the appointments of the
fourteen employees, for lack of merit. The CSC also cited Rule V, Sections 9 and 10 of the Omnibus
Rules, and declared that the appointments of the said employees were issued in accordance with
pertinent laws. Thus, the same were effective immediately, and cannot be withdrawn or revoked by
the appointing authority until disapproved by the CSC. The CSC also dismissed petitioner's
allegation that these were "midnight" appointments, pointing out that the Constitutional provision
relied upon by petitioner prohibits only those appointments made by an outgoing President and
cannot be made to apply to local elective officials. Thus, the CSC opined, "the appointing authority
can validly issue appointments until his term has expired, as long as the appointee meets the
qualification standards for the position."4
The CSC upheld the validity of the appointments on the ground that they had already been approved
by' the Head of the CSC Field Office in Lucena City, and for petitioner's failure to present evidence
that would warrant the revocation or recall of the said appointments.
Petitioner moved for the reconsideration of the CSC's Resolution, as well as the Order of the CSC
Legal and Quasi-Judicial Division, averring that the CSC was without jurisdiction: (1) to refuse to
revoke the subject appointments; and (2) to uphold the validity of said appointments, even assuming
that there was failure to present evidence that would prove that these appointments contravened
existing laws or rules. He also posited that the CSC erred in finding the appointments valid despite
the existence of circumstances showing that the same were fraudulently issued and processed.
On November 21, 1996, the CSC denied petitioner's motion for reconsideration. The CSC reiterated
its ruling that:
In the absence of any showing that these alleged midnight appointments were defective in
form and in substance, nor is there evidence presented to show that subject appointments
were issued in contravention of law or rules, these appointments are deemed valid and in
effect.
xxx xxx xxx
Mayor de Rama failed to present evidence that subject appointments should be revoked or
recalled because of any of the abovementioned grounds enumerated. As a matter of fact
said appointments were even approved by the Head, Civil Service Field Office, Lucena City
when submitted for attestation. In the absence of a clear showing that these appointments
were issued in violation of any of these grounds, the Commission has no other recourse but
to uphold their validity. (Underscoring supplied).
The CSC also 'cited the Supreme Court ruling in the case of Aquino v. Civil Service
Commission5 wherein this Court held that:
It is well-settled that once an appointment is issued and the moment the appointee assumes
a position in the civil service under a completed appointment, he acquires a legal not merely
equitable right (to the position), which is protected not only by statute, but also by the
Constitution, and cannot be taken away from him either by revocation of the appointment, or
by removal, except for cause, and with previous notice and hearing. (Emphasis supplied)
Consequently, petitioner filed a petition for review before the Court of Appeals, arguing that the CSC
arrived at the erroneous conclusion after it ignored his "supplement to the consolidated appeal and
motion for reconsideration" wherein he laid out evidence showing that the subject appointments
were obtained through fraud.
After reviewing the facts and issues raised by petitioner, the Court of Appeals issued a
Resolution6 dated May 16, 1997 which held that there was no abuse of the power of appointment on
the part of the outgoing mayor.
The Court of Appeals further held that the fact that the appointments of Marino, Ayala, Ramos,
Mendoza and Glory were made more than four (4) months after the publication of the vacancies to
which they were appointed is of no moment. Setting aside petitioner's suppositions, the Court of
Appeals ruled that Republic Act No. 7041 does not provide that every appointment to the local
government service must be made within four (4) months from publication of the vacancies. It cited
Section 80 of said Act, to wit:
Section 80. Public Notice of Vacancy: Personnel Selection Board.
(a) Whenever a local chief executive decides to fill a vacant career position, there shall be
posted notices of the vacancy in at least three (3) conspicuous public places in the local
government unit concerned for a period of not less than fifteen (15) days.
(b) There shall be established in every province, city or municipality a personnel selection
board to assist the local chief executive in the judicious and objective selection of personnel
for employment as well as for promotion, and in the formulation of such policies as would
contribute to employee welfare.
(c) The personnel selection board shall be headed by the local sanggunian concerned. A
representative of the Civil Service Commission, if any, and the personnel officer of the local
government unit concerned shall be ex officio members of the board.7
Likewise, neither did the CSC's own Circular Order No. 27, Section 7, Series of 1991, require that
vacant positions published in a government quarterly must be filled up before the advent of the
succeeding quarter.
On the basis of all the foregoing findings, the Court of Appeals denied for lack of merit the petition for
review.
Petitioner filed a motion for reconsideration arguing that the appellate court erred in upholding the
CSC's resolutions despite the following defects:
I. No screening process and no criteria were adopted by the Personnel Selection Board in
nominating the respondents;
II. No posting in three (3) conspicuous public places of notice of vacancy as required by the
rules and the law;
III. Merit and fitness requirements were not observed by the selection board and by the
appointing authority as required by the Civil Service rules;
IV. Petitioner has valid grounds to recall the appointments of respondents.8
In a Resolution dated October 20, 1997, the Court of Appeals denied the motion for reconsideration.
Hence, the instant petition for review on certiorari on the following assigned errors:
I. THE PUBLIC RESPONDENT COURT OF APPEALS, GRAVELY AND SERIOUSLY

ERRED IN FINDING THAT THE CIVIL SERVICE COMMISSION WAS CORRECT IN NOT
UPHOLDING THE PETITIONERS RECALL OF THE APPOINTMENTS OF PRIVATE
RESPONDENTS IN THE FACE OF FRAUD AND VIOLATION OF RULES AND LAWS ON
ISSUANCE OF APPOINTMENTS.
II. THE-PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING

THAT THE PARTICULAR GROUNDS NAMELY:
I. No screening process and no criteria were adopted by the Personnel Selection

Board in nominating the respondents;
II. No posting in three (3) conspicuous public places of notice of vacancy as required
by the rules and the law;
III. Merit and fitness requirements were not observed by the selection board and by
the appointing authority as required by the Civil Service rules;
IV. Petitioner has valid grounds to recall the appointments of respondents.
ARE NEW ISSUES BECAUSE THE GROUNDS FOR RECALL OF THE APPOINTMENTS
BY THE PETITIONER WERE PRECISELY THE VIOLATION OF LAWS AND
REGULATIONS ON ISSUANCE OF APPOINTMENTS AS RAISED BEFORE THE
RESPONDENT CIVIL SERVICE COMMISSION.
Petitioner assails the findings of both the CSC and the Court of Appeals for being contrary to law
and not being supported by the evidence on record.
This argument is too specious to be given credence. The records reveal that when the petitioner
brought the matter of recalling the appointments of the fourteen (14) private respondents before the
CSC, the only reason he cited to justify his action was that these were "midnight appointments" that
are forbidden under Article VII, Section 15 of the Constitution. However, the CSC ruled, and correctly
so, that the said prohibition applies only to presidential appointments. In truth and in fact, there is no
law that prohibits local elective officials from making appointments during the last days of his or her
tenure. Petitioner certainly did not raise the issue of fraud on the part of the outgoing mayor who
made the appointments. Neither did he allege that the said appointments were tainted by
irregularities or anomalies that breached laws and regulations governing appointments. His solitary
reason for recalling these appointments was that they were, to his personal belief, "midnight
appointments" which the outgoing mayor had no authority to make.
Even in petitioner's consolidated appeal and motion for reconsideration, he did not make any
assertion that these appointments were violative of civil service rules and procedures. Indeed, he
harped on the CSC's alleged lack of jurisdiction to refuse to recall the subject appointments. After
first invoking the authority of the CSC to approve or affirm his act, he then contradicted himself by
arguing that the CSC had no jurisdiction to do so, but only after the CSC had ruled that the recall
was without legal basis. He emphasized that he alone has sole discretion to appoint and recall the
appointment of municipal employees, an authority which, he stressed, the CSC cannot usurp. Yet,
nowhere in said pleading did he cite any other ground, much less present proof that would warrant
the recall of said appointments.
Perhaps realizing the weakness of his arguments, albeit belatedly, petitioner filed a supplement to
the appeal and motion for reconsideration where, for the very first time, he alleged that the
appointments were fraught with irregularities for failing to comply with CSC rules and regulations.
Nevertheless, the CSC overruled petitioner's assertions, holding that no new evidence had been
presented to warrant a reversal of its earlier resolution.
Thus, in a petition for review before the Court of Appeals, petitioner questioned the CSC's
conclusion because it had ignored the allegations and documents he presented in the supplement to
his earlier consolidated appeal and motion for reconsideration. He argued that these form part of the
records of the case and that the CSC erred in failing to consider the assertions he raised therein.
The appellate court, however, agreed with the CSC when it ruled that the documents presented by
petitioner in the supplemental pleading did not constitute "new evidence" that would convince the
CSC to reverse its earlier ruling. In fine, the Court of Appeals, as did the CSC, simply dismissed
petitioner's allegations and documents attached to the supplemental pleading for they did not
constitute new evidence that a court, board or tribunal may entertain.
Herein lies the inconsistency of petitioner's arguments. He faults the Court of Appeals and the CSC
for ignoring his supplemental pleading, while at the same time arguing that the grounds for recall
such as violations of laws and regulations on issuance of appointments are not new issues because
he had timely raised them before the CSC.
There is no question that parties may file supplemental pleadings to supply deficiencies in aid of an
original pleading, but which should not entirely substitute the latter.9 The propriety and substance of
supplemental pleadings are prescribed under Rule 10, Section 6 of the 1997 Rules of Civil
Procedure, which provides:
Sec. 6. Supplemental Pleadings. - Upon motion of a party the court may, upon reasonable
notice and upon such terms as are just, permit him to serve a supplemental pleading setting
forth transactions, occurrences or events which have happened since the date of the
pleading sought to be supplemented. The adverse party may plead thereto within ten (10)
days from notice of the order admitting the supplemental pleading.
Supplemental pleadings must be with reasonable notice, and it is discretionary upon the court or
tribunal to allow the same or not. Thus, the CSC was under no obligation to admit the supplemental
pleading, or even to consider the averments therein.
Secondly, a supplemental pleading must state transactions, occurrences or events which took place
since the time the pleading sought to be supplemented was filed. In the instant case, petitioner
alleged fraud and irregularities that supposedly occurred contemporaneous to the execution of the
appointments. They should have been raised at the very first opportunity. They are not new events
which petitioner could not have originally included as grounds for the recall of the appointments.
Accordingly, the CSC, as well as the Court of Appeals, found that the allegations in his supplemental
pleading did not constitute "new evidence" that can be the proper subject of a supplemental
pleading. These were old facts and issues which he failed to raise earlier. Consequently, the CSC
and the Court of Appeals did not err in refusing to give credence to the supplemental pleading.
Be that as it may, these alleged irregularities were considered by the CSC and the Court of Appeals
as new issues which were raised for the first time on appeal. It is rather too late for petitioner to raise
these issues for the first time on appeal. It is well-settled that issues or questions of fact cannot be
raised for the first time on appeal.10 We have consistently held that matters, theories or arguments
not brought out in the original proceedings cannot be considered on review or appeal where they are
raised for the first time.11 To consider the alleged facts and arguments raised belatedly in the
supplemental pleading to the appeal at this very late stage in the proceedings would amount to
trampling on the basic principles of fair play, justice and due process.12
The grounds for the recall of the appointments that petitioner raised in his supplemental pleading to
the consolidated appeal and motion for reconsideration are that: (1) the rules on screening of
applicants based on adopted criteria were not followed; (2) there was no proper posting of notice of
vacancy; and (3) the merit and fitness requirements set by the civil service rules were not observed.
These are grounds that he could have stated in his order of recall, but which he did not. Neither did
he raise said grounds in his original appeal, but only by way of a supplemental pleading. Failure of
the petitioner to raise said grounds and to present supporting documents constitute a waiver thereof,
and the same arguments and evidence can no longer be entertained on appeal before the CSC, nor
in the Court of Appeals, and much less in a petition for review before the Supreme Court.13 In fine,
the raising of these factual issues for the first time in a pleading which is supplemental only to an
appeal is barred by estoppel.14
Petitioner asks this Court to appreciate and consider these factual issues. It must be recalled that
the jurisdiction of the Supreme Court in a petition for review on certiorari under Rule 45 of the
Revised Rules of Court is limited to reviewing only errors of law, not of fact.15 That is, of course,
unless the factual findings assailed by petitioner are devoid of support by the evidence on record or
the impugned judgment is based on a misapprehension of facts.16
A thorough perusal of the records reveal that the CSC's ruling is supported by the evidence and the
law. The fourteen (14) employees were duly appointed following two meetings of the Personnel
Selection Board held on May 31 and June 26, 1995. There is no showing that any of the private
respondents were not qualified for the positions they were appointed to. Moreover, their
appointments were duly attested to by the Head of the CSC field office at Lucena City. By virtue
thereof, they had already assumed their appointive positions even before petitioner himself assumed
his elected position as town mayor. Consequently, their appointments took effect immediately and
cannot be unilaterally revoked or recalled by petitioner.
It has been held that upon the issuance of an appointment and the appointee's assumption of the
position in the civil service, "he acquires a legal right which cannot be taken away either by
revocation of the appointment or by removal except for cause and with previous notice and
hearing."17 Moreover, it is well-settled that the person assuming a position in the civil service under a
completed appointment acquires a legal, not just an equitable, right to the position. This right is
protected not only by statute, but by the Constitution as well, which right cannot be taken away by
either revocation of the appointment, or by removal, unless there is valid cause to do so, provided
that there is previous notice and hearing.18
Petitioner admits that his very first official act upon assuming the position of town mayor was to issue
Office Order No. 95-01 which recalled the appointments of the private respondents. There was no
previous notice, much less a hearing accorded to the latter. Clearly, it was petitioner who acted in
undue haste to remove the private respondents without regard for the simple requirements or due
process of law. In doing so, he overstepped the bounds of his authority. While he argues that the
appointing power has the sole authority to revoke said appointments, there is no debate that he does
not have blanket authority to do so. Neither can he question the CSC's jurisdiction to affirm or revoke
the recall.
Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised Administrative Code
specifically provides that "an appointment accepted by the appointee cannot be withdrawn or
revoked by the appointing authority and shall remain in force and in effect until disapproved by the
Commission." Thus, it is the CSC that is authorized to recall an appointment initially approved, but
only when such appointment and approval are proven to be in disregard of applicable provisions of
the civil service law and regulations.19
Moreover, Section 10 of the same rule provides:
Sec. 10. An appointment issued in accordance with pertinent laws and rules shall take effect
immediately upon its issuance by the appointing authority, and if the appointee has assumed
the duties of the position, he shall be entitled to receive his salary at once without awaiting
the approval of his appointment by the Commission. The appointment shall remain effective
until disapproved by the Commission. In no case shall an appointment take effect earlier
than the date of its issuance.
Section 20 of Rule VI also provides:
Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on
any of the following grounds:
(a) Non-compliance with the procedures/criteria provided in the agency's Merit

Promotion Plan;
(b) Failure to pass through the agency's Selection/Promotion Board;
(c) Violation of the existing collective agreement between management and

employees relative to promotion; or
(d) Violation of other existing civil service law, rules and regulations.
Accordingly, the appointments of the private respondents may only be recalled on the above-cited
grounds. And yet, the only reason advanced by the petitioner to justify the recall was that these were
"midnight appointments." The CSC correctly ruled, however, that the constitutional prohibition on so-
called "midnight appointments," specifically those made within two (2) months immediately prior to
the next presidential elections, applies only to the President or Acting President.
If ever there were other procedural or legal requirements that were violated in implementing the
appointments of the private respondents, the same were not seasonably brought before the Civil
Service Commission. These cannot be raised for the first time on appeal.
WHEREFORE, in view of all the foregoing, the instant petition for review is DENIED and the
Resolution of the Court of Appeals in CA-G.R. SP No. 42896 affirming CSC Resolutions Nos. 96-
2828 and 96-7525 hereby AFFIRMED in toto.
SO ORDERED.

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51

Republic of the Philippines

G.R. No. 168056 September 1, 2005

G.R. No. 168207

AQUILINO Q. PIMENTEL, JR., LUISA P. EJERCITO-ESTRADA, JINGGOY E. ESTRADA, PANFILO

G.R. No. 168461

ASSOCIATION OF PILIPINAS SHELL DEALERS, INC. represented by its President, ROSARIO

G.R. No. 168463

FRANCIS JOSEPH G. ESCUDERO, VINCENT CRISOLOGO, EMMANUEL JOEL J. VILLANUEVA,

G.R. No. 168730

BATAAN GOVERNOR ENRIQUE T. GARCIA, JR. Petitioner,

-Anne Robert Jacques Turgot (1727-1781)

French statesman and economist

ATTY. BANIQUED : No, Your Honor.

J. PANGANIBAN : That’s correct . . .

J. PANGANIBAN : . . . mitigating measures . . .

ATTY. BANIQUED : Yes, Your Honor.

ATTY. BANIQUED : Yes, Your Honor.

ATTY. BANIQUED : You’re right, Your Honor.

ATTY. BANIQUED : I guess so, Your Honor, yes.

ATTY. BANIQUED : Yes, Your Honor.

G.R. No. 168056

G.R. No. 168207

G.R. No. 168461

Petitioners’ argument is premised on the constitutional right of non-deprivation of life, liberty or

G.R. No. 168730

Relying on the case of Tolentino vs. Secretary of Finance, 235 SCRA

The Court defined the issues, as follows:

a. Article VI, Section 24, and

b. Article VI, Section 26(2)

a. Article VI, Section 28(1), and

b. Article VI, Section 28(2)

a. Article VI, Section 28(1), and

b. Article III, Section 1

RULING OF THE COURT

The Court will now discuss the issues in logical sequence.

a. Article VI, Section 24, and

b. Article VI, Section 26(2)

A. The Bicameral Conference Committee

Rule XII, Section 35 of the Rules of the Senate states:

Striking down such argument, the Court held thus:

end-users. VAT shall be

Article VI, Sec. 26 (2) of the Constitution, states:

Section 27 Rates of Income Tax on Domestic Corporation

The argument does not hold water.

Article VI, Section 24 of the Constitution reads:

a. Article VI, Section 28(1), and

b. Article VI, Section 28(2)

A. No Undue Delegation of Legislative Power

The assailed provisions read as follows:

SEC. 106. Value-Added Tax on Sale of Goods or Properties. –

SEC. 107. Value-Added Tax on Importation of Goods. –

A brief discourse on the principle of non-delegation of powers is instructive.

corollary to the doctrine of separation of powers is the principle of non-delegation of powers, as

(3) Delegation to the people at large;

(4) Delegation to local governments; and

(5) Delegation to administrative bodies.

In Edu vs. Ericta,47 the Court reiterated:

Therefore, no statutory construction or interpretation is needed. Neither can conditions or limitations

Respondents explained the philosophy behind these alternative conditions:

1. VAT/GDP Ratio > 2.8%

2. Nat’l Gov’t Deficit/GDP >1.5%